1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE17H DAY OF FEBRUARY, 2020 PRESENT THE HON’BLE MR.JUSTICE G.NARENDAR AND THE HON’BLE MR.JUSTICE M.NAGAPRASANNA WRIT APPEAL NO.200108/2016 (S-REG) Between: Chikkappa S/o Ramalingappa Masali Aged about 54 years Occ: Literate Assistant R/o In the office of the Assistant Executive Engineer Krishna Bhagya Jala Nigam Ltd. Sub-Division No.1 Mattihal-586 210 Tq. B.Bagewadi District: Vijayapur … Appellant (By Sri S. D.Sagari, Advocate) And:
1. The Chief Secretary Amended & deleted Krishna Bhagya Jala Nigam Ltd. as per order dated 1st Floor, K.R.Circle 04.01.2018 Bengaluru-1 2. The Chief Engineer Managing Director K.B.J.N.L., Almatti 2 Tq. B.Bagewadi District: Vijayapur-586201 3. The Chief Engineer K.B.J.N.L., I.B.C. Sub-Division No.21 Kembhavi District: Yadgiri 4. The Assistant Executive Engineer M.L.I. Sub Division No.1 Mattihal Tq. B.Bagewadi District: Vijayapur-586 201 … Respondents (By Sri Sanjay M.Joshi, Advocate for R2 to R4; R1 is deleted v/o dated 04.01.2018) This Writ Appeal is filed under section 4 of the Karnataka High Court Act praying to allow this appeal and set aside the order dated 12.02.2016 made in W.P.No.81636/2011 (S-REG) whereby quashing the orders of the respondents endorsement in File No.Ja Sam. E:
38. Se Ee Si:2011 28.04.2011 as per Annexure-F’. This appeal coming on for hearing this day, Nagaprasanna J., delivered the following: JUDGMENT
Aggrieved by the order passed in Writ Petition No.81636/2011 dated 12.02.2016 whereby the 3 learned Single Judge dismissed the writ petition pertaining to the claim of regularization of the services of the petitioner, the writ petitioner has preferred the instant appeal.
2. For the sake of convenience, the parties will be referred as per their nomenclature in the writ petition.
3. Brief facts of the case are as follows: The petitioner joined the services of respondent Karnataka Bhagya Jala Nigam Limited (hereinafter referred to as the ‘KBJNL’ for short) as a daily wage employee in the year 1979 and was terminated on 23.02.1982. On failure of conciliation, the appropriate government referred the matter to the Industrial Tribunal under section 10 of the Industrial Disputes Act, 1947. 4
4. The reference was answered in favour of the petitioner and the order of termination was set aside for want of compliance of section 25F of the Industrial Disputes Act, 1947 directing reinstatement with backwages and continuity of service.
5. This was challenged by the 2nd respondent- KBJNL before this Court in a writ petition, which was allowed and the award of the Labour Court was set aside. The learned Single Judge while allowing the writ petition came to conclude that the writ petitioner had not proved that he had worked continuously for 240 days immediately prior to his termination for invoking section 25F of the Industrial Disputes Act. It was further held that the writ petitioner had raised the dispute in the year 1999 whereas his termination was in the year 1982 and there was gross delay in raising the dispute. An appeal was filed before the Division Bench of this Court, which observed that since there 5 was a delay of 16 years in raising the dispute for which no explanation was forthcoming, the order in the writ petition was confirmed.
6. The petitioner challenged both the orders before the Hon’ble Apex Court in Civil Appeal No.1881/2005. This came to be disposed of on 03.04.2006 directing the respondent KBJNL to reinstate the petitioner back as a daily wage employee after the petitioner gave an undertaking before the Hon’ble Apex Court that he would not claim any backwages or interest and would be satisfied if he would be restored to the nominal muster roll after which the petitioner was taken back to the service.
7. After reinstatement, the petitioner began to stake a claim for regularization of his service on the ground that he had completed the requisite number of years of service and that the Hon’ble Apex Court had so directed to consider his case for regularization. 6 Representations were made to the 2nd respondent KBJNL. When they were not considered, the petitioner again approached this Court in writ Petition No.82201/2010 (S-RES) seeking for a writ in the nature of mandamus to consider his representation favourably. This Court by its order dated 15.09.2010 disposed off the writ petition directing consideration of the representation given by the petitioner expeditiously. Subsequent to the orders passed by this Court, the claim of the petitioner was turned down by issuance of endorsement dated 28.04.2011. This was challenged by the petitioner in writ petition No.81636/2011(S-REG) which was dismissed by an order dated 12.02.2016 against which the petitioner has preferred the instant writ appeal.
8. Heard the learned counsel for the petitioner Sri S.D.Sagari, and Sri Sanjay M.Joshi, counsel for the 2nd respondent KBJNL. 7
9. The learned counsel for the petitioner contends that the Labour Court had directed reinstatement into service with backwages and that the award of the Labour Court gets restored by the Apex Court directing reinstatement of the petitioner and would be entitled to be considered for regularization.
10. Per contra, learned counsel for 2nd respondent KBJNL would contend that the petitioner has given up his rights before the Apex Court and the Apex Court directed reinstatement only as a daily wage employee and restored his name in the nominal muster roll that would not give any right to the petitioner for consideration of his case for regularization. 8
11. We have given our anxious consideration to the submissions made by the parties at lis and have perused the entire papers before us.
12. The undisputed facts are that the petitioner joined the services of the KBJNL as a daily wage employee and was terminated on 23.02.1982, the petitioner herein raised the dispute initially before the Conciliation Officer, which ended in failure of conciliation. After which the dispute was referred by the appropriate government to the hands of Industrial Tribunal/Labour Court under Section 10 of the Industrial Disputes Act, 1947, the reference was answered in favour of the petitioner and the Labour Court directed reinstatement with backwages and all other incidental benefits.
13. That was challenged by the 2nd respondent KBJNL before this Court and the writ petition was allowed and the order of the Labour Court was set 9 aside. It transpires that the Division Bench of this Court also dismissed the appeal filed by the petitioner. Both the learned Single Judge and the Division Bench were of the opinion that delay in raising the industrial dispute was fatal. Apart from the fact that the petitioner had not proved that he had worked for 240 days prior to his termination.
14. The petitioner challenged both the orders passed by the learned Single Judge and the Division bench before the Apex Court in Civil Appeal No.1881/2005.
15. The Apex Court disposed off the appeal by its order dated 03.04.2006 which reads as follows: “When the Special leave petition came up before us on 28.10.2005, counsel for the appellant stated before us that he will give up his claim for backwages and interest and he will be satisfied if the appellant is restored to 10 the muster roll, i.e., on the same position as was occupied by him on the date of his termination. Having heard counsel for the parties we are satisfied that the High Court in its writ jurisdiction should not have set aside the Award of the Labour Court. We accordingly set aside the impugned judgment and order of the High Court. However, in the peculiar facts and circumstances of this case, we direct that the appellant shall be reinstated in service as a daily wage employee. The appellant has given up his claim for backwages and interest which shall not be paid to him. After restoration of the name of the appellant on the muster roll, the appellant shall enjoy the same rights and privileges as are available to the muster roll employees, and the respondent shall treat him accordingly. We wish to observe that we have not laid down any principle of law in this case since we have granted relief to 11 the appellant in the peculiar facts and circumstances of the case.
16. Perusal of the order of the Apex Court would indicate two unequivocal facts. Firstly, the petitioner gave up all other claims before the Apex Court and restricted his claim only to reinstatement into service as a daily wage employee and a direction was accordingly issued by the Apex Court to restore the name of the petitioner on the nominal muster roll of the respondent and it was declared that the petitioner would be entitled to same rights and privileges as available to the muster roll employees. The second fact is that there is no direction by the Apex Court with regard to any consideration of the period between the date of termination till the date of reinstatement. Thus, it is clear that no right of the petitioner stood crystallized insofar as his other claims were concerned. 12
17. The Water Resources Department under which the 2nd respondent KBJNL comes drew up the proceedings for consideration of reinstatement of the petitioner and ultimately he was reinstated on 13.08.2007. After his reinstatement, the petitioner gave a representation that he had worked from 1979 to 1982 and with the direction of the Apex Court his service ought to be regularized when the representation was not considered a mandamus was issued by this Court for consideration of the representation on 15.09.2010. On consideration, an endorsement was issued on 28.04.2011 holding that the Apex Court had given a direction to reappoint the petitioner as a daily wager and there was no direction to consider continuity of service or regularization. This endorsement dated 28.04.2011 was challenged before this Court in writ petition No.81636/2011 wherein the learned Single Judge quoting the order passed by the Apex Court ordered thus:
13. “3. Petitioner was undisputedly reinstated into he services pursuant to the order passed by the Hon’ble Apex Court. Thereafter, petitioner has submitted a representation dated 04.11.2019-Annexure-C seeking for regularization of his services. On account of non-consideration of such representation, petitioner filed writ petition before this Court in W.P.No.82201/2010 and a direction came to be issued to consider the representation of petitioner by order dated 15.09.2010- Annexure-E. Accordingly, said representation came to be considered by the respondent- authorities and it has been held that direction which came to be issued by the Hon’ble Apex Court is to reinstate the petitioner without any backwages and it has been held therein that petitioner would be entitled to same rights and privileges as is available to the muster roll employees. Accordingly, endorsement came to be issued on 28.04.2011-Annexure-F. Since there has been no direction issued by the Hon’ble Apex Court for regularizing the services of petitioner, request of the petitioner 14 as made in Annexure-C dated 04.11.2009, respondent-authorities have not regularized his services and there cannot be any fault found with the exercise undertaken by the respondent-authorities. In that view of the matter, there is no merit in the petition. Accordingly, writ petition is dismissed.
18. The learned Single Judge in the afore- extracted order has held that there was no order of the Apex Court to regularize the service or had granted continuity of service. It was only an order of restoration of the petitioner to his original position as a daily wage employee.
19. The Apex Court had in categorical terms held that petitioner has to be reinstated into service as a daily wage employee and his name to be restored in the nominal muster roll. Beyond this, there was no other direction and this direction came about only after the petitioner gave up all other claims before the 15 Apex Court. There can be no other way to interpret the order of the Apex Court, as it is unequivocal. Thus, the petitioner cannot claim that his case for regularization has to be considered in the light of the directions issued by the Apex Court.
20. The learned counsel for the petitioner would contend that if not regularization, his case be considered under the Karnataka Daily Wage Employees Welfare Act, 2012 (hereinafter referred to as the ‘Welfare Act’ for short). This submission of the counsel merits consideration.
21. The Welfare Act was an Act promulgated by the Government to provide welfare to the daily wage employees working for more than 10 years in various establishments to give them minimum security of tenure, better wages and certain social security, on termination from long public service and for other 16 matters connected therewith or incidental thereto. Sections 3 and 4 of the Welfare Act reads thus: “3. Continuation of Daily Wage Employees.- (1) Subject to provisions of this Act, the daily wage employees in the establishments whose names are notified by the Government under this Act, shall be continued on daily wage basis till they complete the age of sixty years. Provided that no daily wage employee shall be continued unless he possessed the qualification prescribed for the post on the date of his initial engagement on daily wage basis; xxxxxxx 4. Pay, leave and terminal benefits of daily wage employees continued in service.- (1) Notwithstanding anything contained in the Karnataka State 17 Civil Services Act, 1978 (Karnataka Act 14 of 1990), the Karnataka Civil Services Rules or any other rules governing the conditions of service of Government servants made or deemed to have been made under the said Act. The pay of a daily wage employee shall be the minimum of the time scale of pay of the post in which he is continued in service. He shall also be paid admissible Dearness Allowance and House Rent Allowance as may be determined by the Government, by order, from time to time. A daily wage employee shall be entitled for all General Holidays, Casual Leave of fifteen days and Earned Leave of thirty days per year. A daily wage employee may be given an increase in his pay at such interval of time as may be 18 determined by the Government, by order. (2) The daily wage employee shall be entitled for such terminal benefits or ex-gratia, on his discontinuance after attaining the age of Sixty years, as may be determined and notified by the Government from time to time.
22. The facts obtaining in the case on hand, if considered vis-à-vis the Welfare Act, the petitioner would get some benefit with regard to his pay, leave and other terminal benefits as a daily wage employee, in the light of the fact that he had worked as a daily wage employee from 1979 to 1982 and subsequently pursuant to the order of the Apex Court from 2005 till date. In all, the petitioner is in service close to 20 years as a daily wager and it is not in dispute that he continues to work with the 2nd respondent even as on date. 19
23. Thus, the service rendered by the petitioner as indicated herein above, should be brought in the Welfare Act and all the benefits that flow from the provisions of the Welfare Act is to be given to the petitioner.
24. The order of the learned Single Judge warrants interference only to this extent that the case of the petitioner be considered under the Welfare Act in terms of the provisions extracted herein above.
25. Therefore, we pass the following: ORDER
i) Writ appeal is partly allowed. ii) The order of the learned Single Judge is modified with a direction to respondents to consider the case of the petitioner under the Welfare Act and determine his benefits under Section 4 of the Welfare Act and grant him all consequential benefits that 20 would flow from such determination of the service under the Welfare Act. iii) This exercise shall be done by the 2nd respondent KBJNL within three months from the date of receipt of copy of this order. iv) There shall be no order as to costs. Sd/- JUDGE Sd/- JUDGE VNR