IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 27"' DAY OF DECEMBER,
PRESENT
THE I-ION'BLE MIR. J. s. KHEHAR, CHIEF4':JUSTi'i.CEf.'_"'
AND
THE HONELE MRS. JUsT1cE°MANJULA« _
WRIT APPEAL NO. i .OE20.1 0{L4fPER;)'
BETWEEN
M/S EHARATH
JALAHALLI POST. BANGALORE,~5_6o'Q
REPRESENTED BY=I'i'S ' 'V V "
GENERAL M.ANAGiER€{H.R] V' A APPELLANT
{By SIELAP D FOR AGH ASSOCIATES, ADVS. .1
AND
1.
.. Ǥ:S1%{I"VISHNU.VMU_RTHY.
" S/O. SR1, NARAYANA,
. f .. 'VA-GEO AB-OUT 42 YEARS.
' . EMT D.'NO_;266.
--..T.M;C'O_MP'OUND, 2ND MAIN ROAD
E' 3RD moss, SHIVANAHALLI, BANGALORE
BEL1~SC /ST WELFARE ASSOCIATION
A NO;'T~77/4-5, BEL COLONY.
".;TA1A1~1ALL1 POST, BANGALORE--56O 013
'R/BY ITS GENERAL SECRETARY
3. GOVERNMENT OF KARNATAKA
DEPT. OF LABOUR VIKAS SOUDHA
BANGADORE -- 560 001 ._
R/ BY PRL. SECRETARY RESPONDENTS
{By Sri. V.S. NAIK, ADV.FOR R1) _
{By Sri. N D SATHISH CHANDRA, ADV. FOR
(By Srl. BASAVARAJ KAREDDY — PRL. GoVT..vADyooA’Te * N
FOR R3)
This Writ Appeal is filed u/s’-at ofthe Karnatal{al”‘IrIil§§h:
Court Act praying to set aside the order.passe.dL_ in the”:Wr-‘t
Petition No.9343 / 2009 dt:09 1 0.. ” V
This Appeal having beenhelard, reserved for Jtldgment,
on this day, Manjula Ch’e1lur;J._., the following:
Heard’ “bot’nu_lsidles.
brief to the filing of the above
appeal are as u_nder*: V
‘I’l1′-e responrlent’joined the service of the appellant from
a.’1.2’2,:1’i1 lfsenii skilled helper. Though he started
initially working at HF Section, he was changed to different
fiseotions from time to time. His salary also was fixed at
per day. However, he was paid salary once a
month. The permanent employees in the cadre of semi-
skilled helpers were getting Rs.3,500/- per month. Though
he was treated as a daily wage employee,
continuously till he was refused work on V’
dated 3.1.2994 was sent to the c=rganisati’on -:tol:re.storel”his
work. When his request _was =
approached this Court in W.P;7:l’O8/ i£”39–3.r held’
that the dispute involvesseveralll oi lfaC’ts’,”Vtherefore,
it would be proper for dispute under
the Industrial. a dispute
was raised.’ the matter was decided
beforeiithev relerence came to be rejected
against’ th_e”respondeht;_’ *~ ., ” ‘ «
challenged in WP. 17477/2001.
lllleélfiléld’«–..Sin§léWdudge by his order dated 1.2.2006
setting aside the award of the Labour
Court as follows:
L ” Secondly, it is seen that the issue framed
V’ V. _ was with regard to whether the petitioner was
directly employed or was a contract labourer.
The Labour Court ought to have made the
contractor a party to the proceedings in order to
give a clear finding on the question, whether he..__
was directly employed or otherwise. Thereforef,”_._f~.._
there are circumstances, which stand
face of the award and would require inte1’fe’rer:1:ceVi’ C
by this Court.”
4. The matter was remitted the La’b.0ur’
for fresh consideration. This cameto int’
Writ Appeal No.383/ ar1dr”t1ieiVp_:’.’\/rit._Appefai*also came to
be dismissed holding the requisition
sent to the contract.or or the agreement
entered _ and the public
undertr£akingfAwere_not produ_ced_*bef0re the Labour Court.
5.”A_fter remand respondent was impleaded as
a party as per directions of the learned Judge in the
petitionlilllf Subsequent to the remand of the
i’–~ma;ttyer;fl:’thefrriyatter came to be disposed of afresh on
2£i.”9__.2Q08 blyfdismissing the reference. The Labour Court
opined-tliat the alleged workman was not able to prove that
C’ his service conditions and wages are similar to that of
regular workman and it also opined that the appellant being
public sector company, should not have engaged services of
casual contract workmen as its regular worlimen.
Accordingly it held that the respondent~workrnan_h
entitled for any reliefs as claimed in the reference; v Z” if
6. Aggrieved by the same, this wriytlpetitioln
came to be filed by respondent_No. lfseeking quuaslhing of.’the”= cg
order dt.24.9.2008 in referencel”l*lo;83/
7. The learned isinglefl his “border dated
9.4.2010 held that fhearing it was
noticed that the”1o_f:ier ;’of reference l’f1rsd§{lto the Tribunal by
the Gcryernrnent, not<suit_ably'made. In other words, the
point of'referer1<:.elwas"notvappropI'iately made and opined
that _the order of '1'e.i'ere'nce..shou1d be as under:
_"Wheth'erf the petitioner was employee
lithe contractor engaged by the
1nan'_age'rnent by the BEL or not an employee
u,.__r1der""BEL".
According to the learned single Judge, without
. understanding the context and consequences, reference was
“”n1ade on some other point. Therefore, it is for the 3″‘
respondent (Department of Labour) to understand the
application of Writ petitioner and make reference in the
above terms. Aggrieved by this order, the present””is
filed.
9. It is not in dispute that public
sector undertaking of the Governlinenltfoff
respondent raised a disputef._fwhether’ of-if
BEL, its contractor and Weifare Association
was justified in Murthy, the
respondent, contract basis
at Stores sjf ifeiiér the workman is
entit1e:dA’to’–. 4′ V
1{)’.’F’rorrVv1 Vthea it is seen that subsequent to
rerna:nd,i’.at the first instance, the second respondent said to
, jthet VA..co’ntractor of the appeiianvmanagement was
the Labour Court. After filing the counter
stat”eme.nt,’vparties led further evidence and by the order
dt..2_4.9V§2t)08 the reference came to be rejected. The 2nd
if “respondent came to be impieaded in the reference for the
first time by the writ petitioner only after the remand order of
the learned single Judge in the 2115 writ petition.
11. During the pendency of the writ V’
9343/2009 several appellations xi-ei?e'”penc;ing;<a}hi.c:ii: we
follows:
(i} Misc. W. No.i15’afi/Q9 orayirigyj’:o””~–e’1’ariij} the’
order dated 16i;6.?L.l000″”i…andllA’issue further
direction to issue
an
(ii) praying to condone the
”” of ld’ays<'l in filing the recalling
(iii}ll'i.._4_VlMjsc. 142490/09 praying to recall the
0 Vv 307.2009 and restore the writ
'«.VA:Vlp–etition to its original position: and
'A W. No.12-491/09 praying to amend the
" petition.
applications came to be disposed of by order
__i:it.1ES.12.2009. Aggrieved by the order dated 15.12.2009 in
./I
Misc. W.l2490/2009 allowing the recalling of thehorder
dated 30.17.2009 and other orders, writ appeals cavme~..to.._be
filed in WA. l\l’os.327«328/2010. Those app¢a1:;é{“wé1§;§
dismissed. Subsequently, the writ petition was it
12. According to the appellalntfsl*c_ounsel_;_t.tl1ouglil.’th:ey_g
sought time for filing the statement” of the’
amended petition, the”liearned”lludgegdisposed oi the writ
petition on 9.4.2010, has?’resulted:pingprejudice to the
appellant~managementi.AW appellants, the
learned _ng–{_ framed the point of
reference» thle’-:r3td'”respondent to make such
reference tvhegsjaine”is:”uns’ustainable. It was contended
that only’ government has power to frame
point of ‘referen’ce.and_this was totally ignored by the learned
~ single.rVA_J1.1dge’;. __ Therefore, the learned Single Judge was
. the point of reference. According to the
app’ella~nt’s”.Vcounsel, the appellant being a Central Public
Uiidertaking, under the principles of the Industrial Disputes
[the Central Government is the appropriate Government
“and by Virtue of Notification dt.3.’/”.98 under section 39 of
the l.D Act, delegates power to the State Government.
However, under Notification dt.5.5.2008, the_4vV.LCe<ntral
Government has rescinded the Notification.§dt.3l.'?j;*~i9$r8_:' _
Therefore, the State Government has no ju1ris'd'ie:t;.on"»to'– refer"=
the point of dispute for adjudicati'on::"to..:'the_l.abou'IV:C_ourt,.
With these arguments, the}? 'sought'-._fo1' gse'i.tirigv.asid_e
orders of the learned Single
13. As against feioviinsel for the first
respondent ‘wrjrking under the
appellant thy; ‘ contractor. According
to hiI1’1.”‘thE. of éourt is virtually incorrect
and co_ntraryv brought on record. The
documenltaglikelll ” and the fact that the first
respondent coyered under PF’ would indicate that he
‘ wasgemployrffilv under the first respondent.
perusal of the entire records, we note that the
point’ Zdispute was referred for adjudication to the Labour
Court by order dt.19.6.1995. We are in 2010. At no point of
time, correctness of the point of reference came to be
IO
questioned by the first respondent in writ petition
No.9343/2009. On earlier occasion. the Labo1,1rl_l’-.Ci’§c~urt
passed an award dt.l4.ll.2000 rejecting the _
even in Writ Petition No.17477/ questioiiiifigthe ~ordVe’r’~.
of the Labour Court, no such content-iori; was.take’n’*-up=:.by
the first respondent. In the-..__abse’nc_el’ of rai’sihg_v_.of
contention by the first respolr’iden_t’ the learned
Single Judge was justiifieiri the responsibility of
framing the points for A, .
15. of MAHABIR JUTE
MILLS 3i§:ORt§1’iii?U*ill…Xfé~.SHIBBON LAL SAXENA
AND 3375(2) LLJ 326. In this case,
apart scope of principles of natural
ju_stice,lA’their’i had an occasion to consider the
‘ ;quesij.ori.ywhether the High Court can give a direction to the
‘-G.overnn1fent”to make a reference. In the said case, they were
coricernedfiwith section 4-K of the U.P. Industrial Disputes
it , “Act, which conferred powers on the Government to refer any
hiridustrial dispute if it is of opinion that such a dispute exists
or that any matter is connected with, or related to, the
/
l l
dispute. Under the provisions of Industrial Disputes Act,
only the appropriate Government has power to frame. of
reference and send the point of dispute for –‘-:’-}_C5′ _
appropriate Labour Court or the Triiqunal. uabsience ..
the first respondent right from 1:9495;_-till:’t.od.ayl
objection to the framing of<poi_nt olf".1jeferen-.:ev';' le_arnedjl*.
Single Judge was not justiiie:d.ll.v:in. 'the; point of
reference and directin;_:5.4,._..':the*l_fiGover:nrrieiit I to the said
point of reference. Ifirert. the impugned
order of the legal infirmity,
all that it the Government to re–
consider Government how to act
and “s;tatl*;:’tory discretion and what should
be the
point ._of’refere-nee. In other words. the High Court
‘- ca1inot”ico1’h..pel the”‘Government to exercise its discretion in a
V’ lpartieu:1a,r”man_i.1er. Even otherwise, perusal of the orders of
the learried, ‘Single Judge does not even indicate how the
point ofreference already referred by the Government would
vnotl”A.cover all the controversies between the parties. In the
/
absence of any such discussion, there was no justification
for the learned Single Judge to take upon himself the
responsibility of framing question of reference
sole jurisdiction of the appropriate Governni_ent–{ _
matter of fact, the appellants have also ra;se:1.41fa.,¢o–:§tent:’¢n–. S
that it being a Central Publie Llnpdertaliingl
appropriate Government beingthe C’e_nt’ral Geoifernmenlig;
issued Notification dt.3.7.98ll”‘ ~tt1~1.’:ier “of the
industrial Disputes ~._powersl’tolvthe State
Government and the same’ 5.5.2008. The
learned Single effect of Withdrawal
of Central Government
delegg.lgting Government under section
39 of act as well.
16. For t3:e___reasons mentioned above, we are of the
‘ ;opir1ion”.that’vt__he appeal deserves to be allowed and the
it before a learned Single Judge for disposal
of the Writ’ petition on merits afresh.
Accordingly, the writ appeal is allowed. The mafpter be
placed before a learned Single Judge for disposal
petition on merits afresh.
JUDGE
Kvs.