IN THE HIGH COURT OF KARNATAKA AT BANGALORE
OATEO THIS THE 23"} DAY OF AUGUST, 2010
BEFORE
THE HON'Bt.E MR. JUSTICE A.N. VENUGOPALA GO\iQO.A_
WRIT PETITION NO.24583/2005 (t--KsRT;c)T
BETWEEN:
The Divisionat Controlter,
K.S.R.T.C.,
Mysore Division (City) V _
Bannimantap Extension,
Mysore, by its Chief Law Officer."~._ ' _ "
. .;;P.ETITIONER
(By Sri N.K.Rarraesh, _ '4 V
Sri Madaraje tirs,
Aged 38 years, ' "
S/O. Puttaraj.,Urs, ~_
Mooggarui KOppa|,u,"
v She'ttyha{ti post, "Mia.E.ay«a!Ii Taiuk,
:Ma,ntdya"'!',)'&istrit;t.
...RESPONDENT
{at-.._Sri'”i};”:–:._i~i’éi’i<, Adv.)
Tiiis writ petition is iiieci under Artictes 225 and 227
the _Constitution of India praying to set aside the
A i,,V»ir*npi,i'gne'd award at Annexure – A dated 17"' January 2005
passezti by the Labour Court, Mysore in I.I.D No.12/2001.
This petition coming on for hearing this day, the
T "COL: rt made the folfowing.
QRQER
Respondent/workman white manning a bus bearing
registration No.KA~O9-F-1899 on 28.07.1988
to have caused an accident by dashing head’~§on.:a.ij’a’instTj
another bus bearing registration i\io”.”KA-O¢_1″.;F–§8¥ii._aVnd7.as’g
a result, 14 passengers wereVinjurA1ed_ 8besides’V_d.amage–..s’~to”.
the vehicles invotved in the ac’ci_d’ent. ‘iii.e ‘w.oi_*i__<man" was a V
trainee driver. He was ~st.oppeid"' s"romVV"'service_"i3yV-an order
dated 05.09.1998. A sh8o§»:,'ca'u.sé.Vnoticé,s:iau-c 29.10.1998
was issued seekin;g:-_hisi,exbia.na.tion'_:asito why his services
should noti"'wf:t'i;i_,'which a reply was
subrnitted._ 'The workman's name was
removedéf'r.orn,th'e_ 'fist»–o'f"..»,.trainee drivers on 19.12.2000.
Theqivtorkman "raised a: dispute under Section 10 (4-A) of
indutjstriiait.Disputes Act, 1947, before the Labour Court at
iV!yso_re.'"7"_~fE7_he.;'"oetitioner filed objections to the claim
8 _ statement 'of; the workman contending that the workman
Lwas,i'esVp"onsibEe for the accident and in view of the enquiry
conducted and the outcome, the order of termination is
8 "justified. Labour Court raised the issues. Workman
'ex,
deposed as WW–1 and exhibits W~1 to W~7 were marked.
For the petitioner/management, MW-1 depos_edVsi'-..4'_:and
through him, exhibits M–I to 54-5 were
appreciation of the evidence on record, Ia-tJo*ur1]co'uirt'~has "= it
passed the award directing reinstatementof.wo.rlt-man'-li._i_n'to_A
service to the same post whic'n…_he as of
termination and to pay baclc_vvages_s fro'r'n.:i_the Vidate of
termination till the of a;;ct.;ua-l_'s'rei~n_statement, also
entitling the wori<mans_.to.:'_a*l.l co'n.s'e"guéntial benefits.
M a nageme nt the said awa rd.
2;.’ iiii ieagrned advocate appearing
for the’petitioner’conten_:d*ed..–that, the respondent being a
trainee driv’er,s_”oiigVhttow’have driven the vehicle carefully
‘J’~..anci[_fivigiillantiy a’nd’*”since the accident has occurred on
g_’_aCco’unt’-ofirashs.and negligent driving of the vehicle by
hir1’l__’,:”iti’iegproceedings held against him being lawful, his
”._name was rightly removed from the list of trainee drivers,
“:lf”i.*.ritsh'”which the labour court ought not to have interfered
and the impugned order is perverse and illegal, calling for
V4
interference. Atternativeiy, learned counsel contendedthat
the award of 100% backwages from the _datfe..l_l’~ovf
termination till the date of reinstatement is
Eliegai.
3. Sri V.S.i\Eaii<, learned advocate appear%n'g=.4.'fer"«
the respondent, on the otherhand conterici"edVéV'"th'at,' the
management had arb.itrarEly_«"a'n'¢i terrninvated the
service of the any material
evidence with;'~'re:gaZ'i*d It was a
case of no enquiry authority or
beforeiithe"i.a:i?vQKiVi53:r§Vfjoujrttiandixhénzce the labour court is
justifiedkin is no material on record to
corneto thlé~vconcEusio=n treat the accident was due to rash
"V"«..yand:'i1eggiigent d'riv'in*g" of the vehicle by the first party.
i_»_.L"ea_rne'ci'-cou"rise'i:contended that, the workman though was
ancillwiiriilirig to discharge his duty, was prevented by
'*._the maniagenient from discharge of duties and hence the
court is justified in directing reinstatement and
awarding of backwages with consequential benefits.
'V
I
4. On the contentions urged and the record of the
writ petition, the following two questions aréseffor
consideration:-
1. Whether on the facts and circumsi’ances;w.
the labour court was justifiedin interfering’ * ‘
with the order of termfnatioIe2._ ‘dated
19.12.2000 refusing employment tn”the – ‘
workman from 20.
2. Whether the awardi5g«..af.packwages and
consequentiai benefits ‘by the Iabou’r*co”urt
is justified? _
Rg-g;;§§;!;iQr:N9._;M_1w: V
5. u}fol’rmén has atéposeaans ww-1. Exhibits
W–1 The workman was
prosecuted .by causing of the alleged
accident. In’dispu.teVdly*,_3tt’:*e prosecution has failed and the
has been=-acquitted of the offences punishable
337 8: 338 I.P.C. For the management,
Trvaff’i’c.:_7: Inspector of Hunsur has deposed.
“V.,’Undispuitedly, MW–1 was not present when the accident
“:3f”¢ccu”rred. The accident being an alleged head-on collusion
between two vehicles belonging to the corporation, the
V.
best witness who could have deposed with regard to the
rash and negligent driving of the vehicle by the workman
was the driver who was manning the vehicle Vbeariing
registration No.KA–O1–F–6341. For the reasons
to the petitioner/management, the said
been examined. MW–1 evident?
manner in which the accidentoccurred is of nobasvsistancei.
The documents produced areilrnere ‘reports some
authorities. It is in court has
rightly held that,_without_V_thAeVre’V__Vbegingsanfiljvglevidence before
the Disciplinaryfiguthoriity of occurrence
of accid__ent,~ gtiie’:’rep–orts, which were disputed by
the worl<hrn-an, could not have terminated
theggsgervice of "th.e':worl:<:man. It has further observed that
ViAneitVher_aany%:'sketch nor the panchanarna of the piace of
1"a.cc'id_en't' Thais produced either before the Discipiinary
A:ithorit.y:'or'before the Labour Court. Even now also, no
V. .i,.:'rnat_erial"' produced to show that the accident was on
'account of rash and negligent driving of the bus by the
"workman. Since it is a case of no evidence, the labour
V/..
court was justified in setting aside the order of termination
and directing reinstatement of the workman into service.
Rg-gggggign Ng.g:
6. The concept of awarding
iabour court/tribunal white directing…4reir1’st’a’tenfi»en’t.’_’_has_
undergone a big change. It is now wgeiiiv settiedf:
awarding of backwages is’._n”a.t automatic, o:sf””-natiiral
consequence of reinstat_ementA.i..Thp’e._aw.arding’ ofggbgatkwages
depends upon the facts’ _c_:iVi}.cun5’stf_a.n’ces of each case
and not to be grant_ed n1’echanic’aiE.liy.._x it
._ HARYANA ROADWAYS vs.
RUDHAN“SI_’NiGvH}*regiortedat 2oo5 (5) sec 591, it has
beengihfieiid as foiiows: V:
A ‘ 2 , is no rule of thumb that in every case where
.vI1’ii’IVIAft.iér1il’ia1 Tribunal gives a finding that the
terrnination of service was in violation of Section 25–F
of” the Act, entire back wages shouid be awarded. A
host of factors like the manner and method of selection
fffand appointment i.e. whether after proper
advertisement of the vacancy or inviting applications
from the ernpioyrnent exchange, nature of
‘ix
appointment, namely, whether ad hoc, short term.
daily wage, temporary or permanent in characteitany
special qualification required for the job and”
should be weighed and balanced in .
regarding award of back wages. One of.”
factors, which has to be taken into conside”1’atiori,«’is””.
the length of service, which
with the employer. If i’he«–…wor1’ce_1a11 Va
considerable period of seryice and~.h’i’s–VserVices are
wrongfully tenninated, lie’ awarded: full or
partial back wages”1iee.pingi’g–ir}. fact that at his
age and the._qualifi_c.ation him he may not
be in a po5:’-iition getanother’-ernployment. However,
where “th_e itctalv =5′(p)1′:f_/ service rendered by a
award of back wages for
the coinp’l’et_e_V:peri:id’«i_,e_. from the date of termination
tillthe date which our experience shows
is often quite 1’arge_,5 would be wholly inappropriate.
‘1’\notherV’imp:ortant factor, which requires to be taken
consideration is the nature of employment. A
3 .,:service of permanent character cannot be
i. to short or intermittent daily~wage
employment though it may be for 240 days in a
calendar year”.
The burden of placing the proof to award
….backwages initiatty lies on the emptoyee to show that he
‘9/
,.a
was not gainfully employed. If he places evidence in___that
regard, the empioyer can lead rebuttal evidenc(–:i;~._::’~4.fl_”liie
claim statement fiied by the employee does
pleading with regard to non–empl.oyrnen_t;””‘”Inf;yliew.of’
Section 106 of Evidence Act, a plealis ifeq.dired_’to:’be:”raise’di_:
by the workman. In the absence of lptea, be
evidence and even otherwisellf’creditale.l*prVoof,_? is not
forthcoming.
9. in; award on issue
Nos.2 & 3 of the record i.e.,
pleadingMandiv5.eywi:ciet1c:ei.Q”0″lihe””iavbour court by merely
makiryd-_3 reported at ILR 2003
Kar 3961 hast’ held AAt–hat=,”: workman is entitled to 100%
A. Labotirwcvourt has not noticed the catena of
by the Apex Court subsequent to the
de:.__isionv_oiifiiihich it has placed reiiance and thus has
‘<._comm~itte.d material error insofar the finding on entitlement
workman to 100% backwages.
‘ix
30
10. The workman being a trainee driver, after his
name has been removed from the list may not ha*v*e,”-kept
quite till he was reinstated into service.
petitioner/management. He must have4woi”l{ed”
elsewhere. Keeping in view if_”th”e ‘=._n~a_t’ure
employment/driving and si’n:<_:_e-~._theA"~work_ma'nA~~.i._'had 5the
opportunity to work as drive::r:froi'n_vthe.'d*at:eAAofvV5removal
of his name from f:}ra.in'eVe:.,dri,ver till he was
reinstated, the i4nco__me the relevant
period on of al-tern,aVt§f:hiemplloyhoent being a
relevant …. been taken into
conside.rationAi,b'y.the 'court. It is in this context,
there to'hVavéi,bee'n.'i'specific pleading regarding the
workhnali. not "being gainfully employed and also credible
the pleading. Since the findings with
lureglaafd of backwages is the one rendered
with'out"–.'sti'pp'ort of any material, the same is perverse and
.,,VViiiiega| and hence calls for interference i.e., with regard to
it awarding of 100% backwages.
I1
11. The management has reinstated the workman
pursuant to the interim order dated 24.11.2005 passedhy
this court. The workman continues to
employment of the petitioner. Taking the*’said’~..
also into consideration and the fact th-at_}*ernov.a’i—ofname.2
Mfrom the fist of trainee driver’ was ilit-:.gai,. in
would meet the ends of justice to 2′ suljstjantvigate the
backwages payabie atV2SR%_a:s agai.nst».i’1.UD°/o.
In the res:–.ilt.—_:pet.iti’o[nstands ailowed in part.
The awardElfthe__:§iabo’ur’:cou:t impuged herein to
the’ extent l’of”d.i.i1je_cti’rig”‘ rei~nVs’taterne’nt’ with continuity of
service and ‘conseql3’e’ri~ti’avi«..V_:benefits remain undisturbed.
However. payrnen’t of”,-bac_ll<walges shalt be 25% as against
3V'1'00°/c':r–.5Wa*rdedg.by the"*'i'a'b'our court. The impugned award
Vst_and._s" imaeiifiedi actprdingiy.
"No o__r'der«-as to costs.
2 nae