The North West Karnataka Road Vs. Ganesh Nagappa Madiwal - Court Judgment

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1. : R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE11H DAY OF SEPTEMBER, 2015 BEFORE THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY WRIT PETITION No.65521/2009 C/w WRIT PETITION No.65534/2009 (L-KSRTC) In Writ Petition No.65521/2009 Between The North West Karnataka Road Transport Corporation, Hubli Division, Hubli, By its Divisional Controller, Represented by its Chief Law Officer Smt. Prema Banavi. (By Shri.J S Shetty, Advocate) And Shri Ganesh Nagappa Madiwal Age Major, R/o Devarabole, Post: Lukkeri, Taluka Kumta, District:Uttara Kannada. (By Shri. Sathish M S, Advocate) ... Petitioner ... Respondent This petition is filed under Articles 226 and 227 of the Constitution of India, 1950, praying to quash the order dated 1/10/2008 passed by the Presiding Principle Labour Court, Hubli, :

2. : passed in Reference No.48/04 the copy of which has been produced at Annexure-A and etc., In Writ Petition No.65534/2009 Between: North West Karnataka Road Transport Corporation, Haveri Division, Haveri, By its Divisional Controller, Represented by its Chief Law Officer, Smt, Prema Banavi. (By Shri J.S.Shetty, Advocate) And: Shri Basapa K Badiger, Age Major, R/o Plot No.109, Murargi Nagar, Arjun Vihar Main Road, Hubli. (By Shri S.K.Hegde, Advocate) … Petitioner … Respondent This petition is filed under Articles 226 and 227 of the Constitution of India, 1950, praying to issue a writ of certiorari or any other writ direction in the nature of writ to quash the order dated 02/04/2009 passed by the Presiding Officer, Principal Labour Court, at Hubli, in KID No.18/05 the copy of which has been produced at Annexure-A and etc., These petitions coming on for hearing, this day, the Court made the following: :

3. : ORDER

Heard the learned counsel for the petitioners and the learned counsel for the respondents.

2. The petitioner is common in these petitions. These two petitions are considered and disposed of together, having regard to the similar facts and circumstances.

3. The petitioner is North West Karnataka Road Transport Corporation in Writ Petition No.65521/2009. The respondent was a trainee driver and in this regard, a letter was issued to him on 11.11.2000. There were nine terms and conditions subject to which the respondent had to undergo training and it was also made clear that he does not get any right of an employee and his training may be terminated, if, there is any violation of the terms and conditions mentioned in the selection letter. It transpires that the respondent had remained unauthorisedly absent from 04.02.2001 and this was reported by the Depot Manager to the Divisional Controller on 04.08.2001. In the meanwhile, a call letter dated 09.06.2001 was sent to the respondent by a registered :

4. : post which was duly received by the respondent. As the respondent did not report for training, a reminder was issued on 14.08.2001 against registered post and the Depot Manager had again requested by his letter dated 08.09.2001 to take action against the respondent, as his unauthorised absence was upsetting the schedule of the Organisation. On the basis of the report from the Depot Manager, a show cause notice dated 01.10.2001 was issued to the respondent, to show cause as to why his name should not be removed from the selection list. An Articles of Charge dated 18.10.2001 was also followed. Thereafter, an enquiry was conducted on 19.11.2001 wherein the respondent had participated and he had pleaded opportunity of explaining his conduct. Though, he had produced Medical Certificates to plead that he was ill during the relevant period and on that basis a lenient view was taken and he was warned that, if, he repeated the said mistake, he would be summarily removed from the select list.

4. The respondent it transpires had remained absent again without permission from 20.12.2001 onwards. It was in this regard that his name was struck off from the select list by an order :

5. : dated 20.07.2002. The respondent had preferred an appeal against the termination of training. The Managing Director who was the appellate authority had confirmed the order of removal. The respondent had raised an Industrial Dispute and the matter was referred to the Industrial Tribunal. It was contested by the petitioner-Corporation. However, the Labour Court held that the removal of the name of the respondent from the select list was bad in law and held that he was to be reinstated without any backwages. It is that, which is under challenge in the above petition.

5. In Writ Petition No.65534/2009, the respondent was engaged as a Trainee Conductor and without any intimation, he had remained absent from work from 14.06.2003. This had resulted in serious dislocation of the schedule of the Corporation and the Depot Manager by his report dated 18.07.2003, 01.10.2003, 15.02.2004 and 12.06.2004 had reported his continuous unauthorised absence. It is for the first time on 18.07.2003, that the respondent had submitted a letter seeking to report for duty. He was allowed to report for duty in spite of :

6. : which he had not reported for duty and again remained absent and there were efforts made to call upon him to return to work by sending letters to his residential address, which were returned unserved. Therefore, Articles of Charge had been issued to the respondent as regards his unauthorised absence. The respondent by reply dated 09.09.2004 interalia had claimed that he was not well during the relevant period and sought to be pardoned. However, the Corporation had appointed an Enquiry Officer. An enquiry having been conducted, a report was submitted that all the charges levelled against the respondent were proved. On the basis of the findings, the Disciplinary Authority had removed him from the select list with effect from 24.12.2004. Being aggrieved by this action, the respondent had raised an Industrial Dispute and the matter was ultimately referred to the Labour Court. Though the matter was contested by the petitioner-Corporation, the Labour Court had held that the removal of the respondent from the select list was bad in law and directed his reinstatement without any backwages. But, however, held that the respondent would suffer punishment of withholding of two increments with cumulative :

7. : effect. It is that, which is under challenge in the second of the writ petitions.

6. The learned counsel for the Corporation would submit that in both these cases, the Labour Court was in error in proceeding to consider the case of the respondents, in the respective petitions when the very reference was not maintainable, in view of the fact that, the respondents could not be considered as ‘employees’ of the petitioner-Corporation. This was evident from the letter issued naming them as ‘trainees’ and they are not subject to the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971, (hereinafter referred to as ‘the Regulations 1971, for brevity) or the Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations, 1982 (hereinafter referred to as ‘the Regulations 1982, for brevity). In effect, the Regulations 1982, actually laid down under Regulation No.12 that if a candidate undergoes training and after completion of his training, he may be appointed on probation. Till such time, the relationship of ‘master and servant’ does not arise and he is merely a trainee and hence, the enquiry conducted by the :

8. : Corporation as regards the unauthorised absence of the respective trainees was in keeping with the principles of natural justice and giving the respective trainees an opportunity of explaining as to their unauthorised absence. That cannot be construed as creating a relationship of ‘master and servant’ in the eye of law. The limited privity of contract is only to name them as trainees and thereby giving them license to enter the premises of the petitioner- Corporation and to perform duties during the training period. The relationship that is created between the petitioner-Corporation and the respective respondents is restricted to the terms and conditions as spelt out in the letter issued to them indicating that they are nominated as trainees and nothing more. In this regard, he would draw attention to the terms and conditions and would state that before removing the respondents from the select list, the respondents have been given full opportunity to explain their conduct. The Corporation was yet generous enough to give the respondents a further opportunity of conducting themselves with discipline. The respondents having been removed from the select list cannot be questioned even on the ground of violation of :

9. : principles of natural justice and hence, would submit that the petitions be allowed.

7. Shri S.K.Hegde, the learned counsel for the respondent in the second of these petitions, would however canvass an argument that the contention as to there being no employer and employee relationship is illusory, in that, the respondent had discharged the regular duties of a conductor even during his training period and his services had been regularised as a Conductor for all purposes except that his designation was termed as a trainee. This was misleading and proper interpretation of the relationship would be to state that the respondent was a workman with the Corporation and a ‘Corporation Servant’ as defined under the Regulations 1971 and hence, the summary removal of the respondents’ name from the select list without any further enquiry does amount to violation of regulations and an earlier enquiry conducted could not be held sufficient to remove them from service without any further enquiry for the second time and therefore, would seek to urge that the Labour Court was certainly justified in setting aside the order of removal and directing his reinstatement without any :

10. : backwages. The respondents have not even challenged that part of the award and therefore, there is no injustice caused in the respondents being reinstated.

8. In the light of the above contentions, it has to be noticed that the issue as to whether a trainee with the petitioner- Corporation could be treated as ‘Corporation Servant’ as defined under the Regulations, is no longer a res integra as a division bench of this Court in Writ Appeal No.100369/2014 by its judgment dated 18.08.2014 has addressed this issue and has held that a ‘trainee conductor’ in the select list, is not ipso facto entitled to appointment to a vacant post of Conductor. In other words, though, a trainee Conductor may be shown in the select list, is not a ‘Corporation Servant’ entitled to an order of appointment to a vacant post of conductor and in the absence of an order of appointment, a trainee conductor would not fall within the definition of the term ‘Corporation Servant’ under the Regulations, 1971, and hence, such a person would not be entitled to relief under the Industrial Disputes Act, 1947 and therefore, had affirmed the view taken by the learned Single Judge to the said :

11. : effect. Similarly, yet another division bench in Writ Appeal No.100383/2014 by its judgement dated 15.10.2014 has approved the view taken in Writ Appeal No.100369/20214 aforesaid and has reiterated the same view.

9. In that view of the matter, the present petitions are allowed. The impugned award in the respective petitions stands quashed. Sd/- JUDGE Jm/-