w? 40688/2608
_ 1 -
{N THE H¥GH comm' OF' KARNATAKA
CIRCUIT BENCH AT GULBARGA H .
DATED "rms THE 25TH DAY OF' MAY, 20Q9« "
BEFORE _ " '
THE HON'BLE MR..3UST>g'é$§.s,I¥rA*1*-1'1, ,:_': V V_
W.P.No.40688>l2;v00é'iIA.;*I'§'& . 2 "
BETWEEN: V ' V
Prabhakar,
S; 0 Devidas Dhongada,
Agftd 38 years, Occ: Nil, _T 9
R/Q ("fife Nanayan Basudkar, V
Komtigalli, Post:CZ}:1in;ii3(31i, 3' 9' _ - '
Dist. Gulbarga. _ PETITIONER
my sri P-W!» H*3mnr;
AND:
, The A EX£:T1C1i£iV§': Engificer,
.' ' ..F. v- . . . . . .. '
V. Sist. ._Gu;ba;»ga.
2. '¥:'1:.€"Chief'
PWD, T' fin B (¥iZ_m'th), Dhaxwad,
_ D.C.CompOund, Qhazwad.
" i' ,S€<:rtéviaIy'' : ,
_ '~.§3I1blié..W0rk3 Depa.,r£m&:1t,
' , M5S:3!.'iil€i:iIIg,
' Bagfgtgalore. RESPONDENTS
H V Mjfiumnr, AGA)
This Writ Petition is filed under Articles 226 8:. 1227 of the
" Consfitutiorz of Inéia prayiag to quash the order of the Labour Court,
Gulbarga dated 29.07.2008, which is at Anncxure-C, Ref.
WP 40688/2008
.. Q ..
N034/$2005 and antler for reinstatement of petitiofier, with full
backwages and 0f aexvice and ali othar Consequentjai
benétfits.
This WP. is com:i12g on for Pmfiminaxy Hearing this
délffi the Court made: the following: ' --« --~.. " ;.
ORDER
1. In this writ gefiiien, petiitioncr ii; :_ c}t_1,ate{1.._.
29.07.2008 passed by the Labo1;1*_{3ouzA’t, C3Vu1ba.zjg:§:,A’.;c¥i:§mi£§éi11g i:}:.e
Reference bearing N934] 2005 mafia» {he Smté’ ‘%V£§II1I¥lCfit mzcier
Section 19(1)(C) of the Indtiétrial (hfirtéiiiéfter referred to
as ‘the Act’, far short}
2. It Wag this ‘fi3¢’}”:~:§{i$fiont:r that he was orally appointed as
a Literate As’Si.s’iant’o?nVC$;?i11yuw;§L’gé basis on 01.03.1933 under the pat
raspondgs.-mt _-5 Exezcutive Engineer, RWLD. S*ub-Division,
mad that he continued his work till he was
0153213? fmfn his service on 14.01.1989. He claimed that as
‘*?z1& ha£1~..5;_§er1«;3l£’il “‘A_;:>etition was mzmbextzd as ‘?65/ 2000, Eventually the said
petition came to be mjected as barzté by limitation. Thereafter,
iifisas claimant approached the appropriate (}Qvcr3:1,m£int seeking
zfiferafice and the State Gcvcmment rezferreci the dispute under
c4251-“‘§”<\
'g 1
xx'
we qeesaxzoes
W3-
Seetien 10(1}((:} of the Act during the year 2005.
Assistant Executive Engineer appeareé azmi c0n’feTste§iVV.
cont;e11r}ing inter alia that the petiiioxggef’ wae ‘1éet: 3:; AV
empicwyee of the respondent 013 beSVie “at3.«i VV
question of Sexminafion of his Ti evas fie
conmnded that the estabfis1}me1;t-~*ef _:£1ie*-»_ree;e>e:1r.l–entViwas not an
indusuy as defined 1inde1″u”‘i:fi.eA was not a
workman. Gmund offiielay was also taken.
3. Based ofi’ Court raisefi issues as
regards theeVi1§it11;eeVfef of the 235′ respondent as an
iifldlistlfy’. Came to be raised as foiieowsc
“W};ethe;the worked under the respondent
as} 3 workm’;2z.::a? if so, whether the services were
~ 4, _feiI1:.1§.f1ete€iA~c.311 14.omi§1989?”
‘i’h0i3gh’..__Qthef”_~vi_ss2;ee were also raisefi, Since they are not very
ylgermanéw fox-“__ fi;e”‘ purpose of disposal of the writ petition, it is
, .e .,”;fij;21ieeeVssa13%’–te refer to ‘Chem.
A’ elaixnaxlbworkman examined himself. He dié not produce
‘V V ségaésféioetzxnerzt to ShOW that he was employed as a workman under
the 13’ respondent nor did he choose to examine any eo—-empiGyee.
WP 40688[20()8
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On behalf of the mspondent, the Assistant Executive Engineer
concerned was examined who deposed that the pctitiozlsrwas never
employed as a Workman in thrtir e:stab1isI1.r:1eI1t.
.3″ The Labour Court, by the impugned order ”
‘ -1
estabiishment ef the mspondent–As3is;{aht*«§’,x€cutivé-1:
ngiz:t:er'--V«wa$. AV r not an inclustryr it has also held 'no; to A
estafifish that the respondent ._cng2.1V’gfz’:ief:’erer1c€:V itglxe long and inortliaate dttlay of 19
years in apprc§5ichingVt11éA~f:r3uI;t. Acczordingly, the reference came: to
£gggrir:§r:d..hy this, the prrzsfint writ getition is filers}.
appr:ari1},g for the §3t3£i’ti0I1€:I’ Sr; Viias Kumar
‘ the judgment of the Apex Court in Civii Appcsal
1/ RG67 dispesed if on 28.09.2067 in the case of Karan Sizngh
Exerfiiitive Engirleezr, Haxyana State Marketing Board, has stmngiy
._.f2r£nt§§;:1ded that the Industriai Triiaunal or the Labour Court have no
g;»:;xs2e;’ to invaiidatc the reference on the ground of deiay. He has
drawn my attention :0 the observations made by file Apex Court in
$2: ..
_=r,/s,’ /’
Err”
W? 40688] 2008
., 5 –
paragraph 9 of the said aids? to the effect, that 1116 ixzéustfiai
Tribtmai nsi1ic1’ai:$’f.¢:’
c0nir:11t:icm in as much as only can the g1*621’nd of delaji; ‘.’;,*1e’1i:fenmné{t
cannot be dismissed hcislding that no fifths” A
is guiity of delay and latchas in I116 réiitzf
couid ha appropriately moulded, x'<t31'at_ ca1:'u'10t._Abg §a ground to
dismiss the reference statixig exists which Ieqmxva' (1
inciustrial adjudicatiozq. recorded by the:
Labour Cofirt 11o t'1'-i,s._;;utrc existed on the ciate of reference
this to d€:}ay;Ca:nnof be
Cnzinsfilv fog: the pefitioner is also further justified in
IA'cQfii:e5:r,;3#§.11g "1.?1at:1b.ve establishxncmt in question namely, the Oficrz of
thé Engineer, Pubiic Works Department, Sub–
V V' Divisiofi; Gulbarga Sistrict, is an industry far the purpose of
H Actt Rcfémnce made to the decisien of the Apex Court by the
L:."«.1§)f}_V1L1I'~ in this regard siating that since it was 3 GOV{§I'IlII1fiI}t
'::'u:3.dTei'taki11g discharging sovfirczign funczions, tha department cannot
VA "bk: {armed as .3 industry cannot be accepted, as the Labour Court has
glossed ever the iaw on this point and has met referred to the other
1
41::
Xx
W? 40688 1′ 2008
:5″
minding precedents incluciing that of Rajappafs
contantion of the iearzled Counsel for the p€titiOl}€f”i:i1€i:tVA”
Court erred in recortiing such a findi:1g:héS’to« L.
8. However, what is not in favziuxjuof case. is the: finding recorded by the question of fact as. to whether the hag. gfispondent as 3 workman and if jvvtféiere terminated on 14.01.1939. 011 Court has held that there was no i'éCOI'd a finding that the ciaimant as 3 Workman It is not
in disizmte tiiat “{€,’«,”‘4((2V(*:_”{.)1:.jV€%1vV’..?.v.A:tE ~€fiii€i§§¥”¥%T§€–~ of the workman, no other material
is pxvduccd befdm fl’}.E:vvC1:(}iiI_”£.V”~”.i36ti’lt3′.(}I1{i’}f’ has not chosen 4:0 examine
PetiAtVit):1–;:-r« has also not filed any apglication calling
13j:n:31’1 xpajgiagsxzgéfit to produce the relevant extract, be it the wage
Vvymgistfir {if the roll or any other dacument. The respondent
has spetgifigzésiiynvfiontended that petitioner was not employed as a
addition, what is required to be kept in mind in this
K ctaSe’A’1;3’»¥:1ié1t tbs: petitioner had approached the Labour Cami: at the
‘ urzéer Section 10(4A) aftczr a iapsc of 11 years from the
{fife of the aliegcd tezminafion and substaquemly by way of reference
under Section 1()(I)(c) in the year 2005 afitisr the claim petitian filed
WP 40688 ,” 2008
-7,
was dismissed. Theugh, learned Counsel for the
contends that in a matter like this, where an empiejseev
an daily wage basis, it is rather hazs1V1′ te”e§r”ne.M_ ‘ct
evidence evidencing either the ‘ the
employee and hence the Labour Ceu.et”:¥as
bmrien an the workman tov e;~”§tabii§ah* iactuaigiy appointed
under the management, in this of this case, I
do not find that $1;.ei1__a to the aid of the
petitkmer. 1 it I i In V V it V
9. In employee raises a dispute
and produceeg Show that he was an employee
and was subeeqniently tezfttaitieted, the burden will shift to the
:.€ii}})’1()jF€_i:”‘ 3z*..v1’1;<__:f[ cQnte:ii:Isvv–th3t there was :10 relationship ef employer
e11if)}0yee,V"£0;"piftiduce necessary decuments and to Show that the
vwerk1i3ia_.fi'VivaeS itietiiitieingaged by the management Counsel for the
petitionelt ie" jiuetified in placing xelianee for this preposition on
juiigiirients of thie Court and also of the Apex Court including
me: iefi' the case in R.H.YEL1′.A’TT1′ vs ASSISTANT wammvm
V J «- 2005:1031 pm 213. But what is gimmg in this case is
though as per the petitioner himself he was terminated from
service on 14.01.1989, he has kept quiet for a peritxri of 1} years to
WP 40688/’2()()8
-3-
make a claim under Section ji0(4A} of the Aci which&V.3§é;§V’V
not majntainabic. Having appmached the Court a
thereafter having msofied to the re11*ie€iy” «1.11;tf,er_:
seeking reference, it was incumbent upgiz} .p€fiIvi'{:IA).IZk&?1′ ztci
acceptable material to prima facie V#:2*»:fé§f3.lb.ishA.{§iat’h§Vb$§?z:iie:;vVéiI1pioycd
the Assimant Executive Enghqcer wages. He
could have atleast made a cafling upon the
zespondent to .__t_he ‘fivhich according to
him wouid mfle-;rt”2!ii$_ done either. In these
ci1’cumst.an§;es,TV it was the duty of the
mspondenfits :.:3taE$li:t~:h- -$’£i£i0ner was not its empioyec.
10¢ Thr; _facts of this case do not Shaw that the
;_vLahQurcomm:i¥t6g§——–wy illggality in holding that in the absencn
of by the employee in support of his plea that
wafis worlman, no finding could ha mcorded balding
“that thez;e :;clati0ns]:1ip of employer and employee and that he
t:§:fB1i;1a£ed illegally on 14.01.1989. At. any rate, this finding of
faétt AL-§a{ri§1g been arrived at on the basis of the material on record.,
‘ in exercise of Writ jurisdiction wii}. net upset the same
fifiless it is found that there is any apparent error or illegality
coxnmiiteci in rscoxding such a fmding.
J9′
W P 40688 / 2008
11. in the light of the above, I do 130′: find any the
conclusion arrived at by the Labour Court Hence,-[ft;h¢..S;§i;ii:”;;i§i:ifio;:1
faiis and the same is dismissed. .’ H »’
:mD<t:~;E
KK