ORDER
Kumar Rajaratnam, J.
1. This Writ Petition is directed against the award passed by the Additional Industrial Tribunal, Bangalore, in AID No. 14/1984 dated 6th day of April, 1994. By the Judgment and award the Tribunal in a reference made by the State Government under Section 10(1)(d) of the I.D. Act allowed the reference and the order of the removal of the petitioner dated 31.10.1994 was set aside. However, the Tribunal ordered the petitioner to be reinstated in service without backwages and without continuity of service. The petitioner-workman being aggrieved by the award in denying continuity of service and backwages, has preferred this writ petition.
2. The facts very briefly are as follows :
The petitioner joined service in a Private Transport Co., known as M/s Janatha Tourist and at the relevant time the petitioner was working as traffic Controller, in the Janatha Tourist. The Government of Karnataka issued an Ordinance wherein, those workmen who were employed in the Janatha Tourist were absorbed as workmen in the same capacity in the Karnataka State Road Transport Corporation who are the first and second respondents in this Writ Petition. The Ordinance was latter replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976.
Section 19(3) of the Act reads as follows :
“Every person who is a workman within the meaning of the Industrial Disputes Act, 1947 (Central Act 14 of 1947), and has been immediately before the commencement of this Act exclusively employed in connection with the acquired property, shall, on and from the notified date become an employee of the corporation on the same terms and conditions applicable to the employees holding corresponding posts in the corporation. Any person not willing to become such an employee of the corporation shall be entitled to retrenchment compensation as provided in the Industrial Disputes Act:
Provided that the number of workmen that shall become employees of the corporation under this sub-section shall not exceed the following scale, the junior most being excluded:
Scale per vehicle
1. Drivers 1.5
2. Supervision staff and Managers 0.1
3. Ministerial and Secretariat Staff 0.1
4. Technical Staff including Foremen 2.75
Provided further that in the case of such persons to whom labour laws for the time being in force apply, no such termination or alteration of remuneration, terms or conditions of service shall be made except in accordance with such laws.”
By virtue of the power under Section 19(3) of the Act, the petitioner’s name had been sent to the Karnataka State Road Transport Corporation (hereinafter referred to as the management). The management issued an appointment letter, which is place before me as Annexure ‘A’. The petitioner accepted the appointment and the petitioner was appointed as Traffic Controller in the management State Road Transport Corporation, by the appointment letter dated 2nd of May 1977. He was issued a Regular Order of Appointment dated 31st of May 1977. In pursuance of the order of appointment, the petitioner was working as Traffic Controller in the Mangalore Depot of the Hassan Division of the management Corporation.
3. While he was working as a Traffic Controller he was visited with an article of charge dated 3rd of December 1979. It was alleged that he was not exclusively employed in Janatha Tourist prior to the take over, but gained appointment illegally on false representation. The petitioner submitted his explanation denying the allegations levelled against him. The explanation not being satisfactory, an enquiry was conducted by the Divisional Statistical Officer, Hassan Division of the management Corporation. He gave a finding that the petitioner was not guilty of the charges that were levelled against him. Curiously, the Divisional Controller, order a de novo enquiry and another Enquiry Officer was appointed, namely, the Law Officer, Hassan. The second enquiry also held that the petitioner was not guilty of the charges levelled against him. The Divisional Controller rejected the findings of the enquiry reports and removed the petitioner from service with effect from 31st of October 1980, Aggrieved by the order of removal, the petitioner preferred an appeal.
4. Since no relief was granted to the petitioner, the petitioner challenged the order of removal in Writ Petition No. 25089/1982. This Court by means of an order dated 25th of November 1982, directed the petitioner to raise an Industrial Dispute by preferring an application to the State Government under Section 10 of the I.D. Act. The petitioner, in obedience to the High Court’s order moved the State of Karnataka seeking a reference. Ultimately the State Government referred the matter. The dispute was taken on the file of the Additional Industrial Tribunal, Bangalore in I.D.No. 14/1984. One of the issues before the Tribunal was whether the Tribunal had jurisdiction to adjudicate upon the dispute as there was an alternative remedy under Section. 19(4) of the Act. The Industrial Tribunal, Bangalore, without recording any evidence rejected the reference stating that under Section 19(4) of the Act, if any question arises as to whether any person referred to in Section 19(3) was exclusively employed in connection with the acquired property immediately before the notified date, it shall be decided by the authorised officer and an appeal shall lie to the State Government against such decision within such time as may be prescribed. It is thus clear according to the Tribunal that any dispute in such cases has to be decided by an authorised officer and not by this Tribunal. It is in these circumstances, the Industrial Tribunal rejected the reference without dealing with the matter on merits. According to the petitioner, he was driven from pillar to post seeking justice. The petitioner was obliged to challenge the order of the Industrial Tribunal, rejecting the reference in W.P.No. 11817/87 on the file of this Court. The Writ Petition was allowed. Consequently, the Industrial Tribunal restored the reference to its original file.
5. The matter was taken up for evidence. No oral evidence was let in on behalf of the management Corporation. Petitioner had examined himself as WW-1. After the evidence and after hearing the parties, the Tribunal held that none of the charges levelled against the petitioner was proved. The Tribunal also held that the termination was not justified. The Tribunal went on to hold that the petitioner is only entitled to reinstatement as a Traffic Controller but without back-wages and without continuity of service. Aggrieved by the award, the petitioner workman has preferred this Writ Petition.
6. Learned Counsel for the petitioner Mr. K. Subba Rao, submitted that the view taken by the Industrial Tribunal, holding that the petitioner is not exclusively employed in connection with the acquired property, immediately before the notified date, is perverse and without any basis. It is not in dispute that the petitioner was working in the JANATHA TOURIST since 1971 and was absorbed by the management-corporation as a Traffic Controller in the year 1977 by virtue of Section 19(3) of the Act. A reading of Section 19(3) of the Act makes two conditions clear. (1) That every person who is to be employed by the management-Corporation must be a workman within the meaning of the Industrial Disputes Act; and (2) he must have been before the commencement of this Ordinance exclusively employed with the acquired property. Mr. Subba Rao, learned Counsel for the petitioner submitted that what is held against the petitioner is that the petitioner was a casual employee in the acquired property and, therefore, the petitioner was not in the exclusive employment of the Janatha Tourist. He submits that on reading of Section 19(3) of the Act would make it clear that the petitioner came within the meaning of the word ‘workman’ under the Industrial Disputes Act and that he was exclusively employed by the Janatha Tourist at the time of the acquisition. He submits that no iota of evidence has been let in to show that the petitioner was not a workman within the meaning of the Industrial Disputes Act and was not exclusively employed by the Janatha Tourist.
7. There could be no dispute in this case that the petitioner was a workman within the meaning of the Industrial Disputes Act and was undoubtedly exclusively employed by Janatha Tourist prior to the acquisition. I have perused the evidence of the workman and there is not even a suggestion in the cross examination by the management-corporation that the petitioner was not exclusively employed by the Janatha Tourist. A perusal of Annexure ‘A’ which is the offer of appointment signed by the Deputy General Manager (ADM) of the management-corporation reference shows that it is made to the petitioner as an employee of Janatha Tourist and who has been interviewed by the Committee. Pursuant to the offer of appointment, the petitioner was actually assigned duties as Traffic Controller with effect from 31st of May 1977. This argument that the petitioner was not exclusively employed by the Janatha Tourist was never put into play before the Tribunal on behalf of the management-corporation. This could not have been so also for the simple reason that no suggestion was made to the petitioner that he was not in the exclusive employment. No records were also produced by the management to show that he was not in the exclusive employment. It is the case of the management that the petitioner was employed as a casual employee of the Janatha Tourist. That by itself cannot oust the jurisdiction of the Industrial Disputes Act. It is not in dispute that the petitioner worked as a casual employee in the Janatha Tourist continuously without break for a number of years. In these circumstances it cannot be said that the workman was not in the exclusive employment of the Janatha Tourist. I, therefore, hold that the petitioner is both a workman within the meaning of the Act and also was in the exclusive employment in connection with the acquired property.
8. In these circumstances, there is no iota of evidence that the petitioner has misrepresented or mislead the management-corporation. He has frankly and honestly stated that he was in the casual employment for number of years in the Janatha Tourist before its acquisition.
9. Mr. S.V. Jagannath, the learned Counsel for the management-corporation vehemently submitted that by the admission of the workman that he was a casual employee it has to be inferred that he was not in the exclusive employment of the acquired property. In other words, it is his submission that a casual worker cannot be a workman within the meaning of the Industrial Disputes Act could never be in the exclusive employment of the acquired property. This submission has to be rejected outright. A casual employee is undoubtedly a workman if he puts in continuous service of 240 days in a year and subject to the conditions stipulated under Section 2(S) of the Industrial Disputes Act and any retrenchment without complying with Section 25-F would be illegal. A reading of Section 2(s) read with Section 25-F makes it clear that the termination of the petitioner was illegal and contrary to law. Having held that the termination order is contrary to law, I have given my anxious consideration as to the relief that has to be granted to the petitioner. Elaborate arguments were submitted both by the learned Counsel for the petitioner and the learned Counsel for the management- corporation. Mr. K. Subba Rao, learned Counsel for the petitioner submitted that in this particular case, the management- corporation has done everything possible to prevent the petitioner from getting the relief. He submitted that two enquiries were held against him. Both the enquiry officers held that the misconduct was not proved. No notice was served on him. Suo motu the Disciplinary Authority differed with the findings of the enquiry officers and dismissed the petitioner from service by an order dated 31 st of October, 1980. Petitioner was also forced to move the Court for the relief in W.P.No. 25089/1982. It is only by going to Court, the petitioner was able to raise an Industrial Dispute under Section 10 of the Act. Again when he went before the Industrial Tribunal, the management obstructed the petitioner from getting relief by taking a stand that there was an alternative relief for the petitioner under Section 19(4) of the Act. In these circumstances the Tribunal rejected the reference on a preliminary issue without going on to the merits of the case. Once again, the petitioner was forced to move to this Court challenging the order of the Tribunal. This was the second round of litigation. This Court in W.P.No. 11817/87 allowed the Writ Petition filed by the petitioner and imposed a cost of Rs. 1,000/- against the management-corporation and directed the Tribunal, to take up the matter on merits. After exhaustive enquiry and evidence according to the learned Counsel for the petitioner, the Tribunal found that the charge against the petitioner was not proved. However, the Tribunal on erroneous reasoning denied him full relief. In these circumstances, learned Counsel for the petitioner Mr. K. Subba Rao, submits that the petitioner is entitled to not only continuity of service but also full backwages. According to the learned Counsel for the petitioner this is a classic case where the management has not only spent time on vexatious litigation but also the petitioner was driven from pillar to post seeking justice.
10. Mr. S.V. Jagannath, learned Counsel for the management-corporation submitted that the petitioner at best would only be entitled to continuity of service without backwages. He submitted that the petitioner was dismissed from service on the 31st of October 1980 and if the management-corporation is directed to reinstate the petitioner with back-wages, it would be of enormous burden on the management corporation. He also submitted that the corporation is non-profit making organisation and it should not be fastened with the liability of paying backwages.
11. The Supreme Court , Hindustan Tin Works v. Its Employees
in the matter of Hindustan Tin Works v. Its Employees, has held in paragraph 9, as follows:
“9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law’s proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full backwages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmen’s demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the UP. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal (1971) 1 Lab LJ 508 and a Division Bench of the Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd v. Labour Court, Lucknow, (1971) 1 Lab LJ 327 have taken this view and we are of the opinion that the view taken therein is correct.”
12. There can be no dispute in this case that the petitioner would be entitled to not only continuity of service but also substantial portion of backwages. Taking all the facts and the circumstances of the cases, and to putt an end to the litigation once for all, I feel that proper relief would be that the petitioner is entitled to not only continuity of service but also 50% of the backwages from the date of removal from service till the date of reinstatement. Accordingly, the award is modified as follows.
13. The Writ Petition is allowed. The order of removal is set aside. The management is directed to reinstate the workman with continuity of service as Traffic Controller in KSRTC, Hassan Division, Hassan with 50% of backwages from the date of removal till the date of reinstatement Two months time granted to implement the order from the date of receipt of this order.
No order as to costs.