IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.39614/2018 (L-RES) BETWEEN BEML LIMITED BELAVADI POST, MYSURU-570 018, REP. BY ITS ASSISTANT MANAGER (HR), SHRI. K. P. VENKATESH BABU.
... PETITIONER (BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI K S BHEEMAIAH, ADVOCATE) AND 1. BEML CANTEEN KARMIKARA SANGHA (R) NO.LIG-86, GROUP 1, KHB COLONY, HOOTAGALLY, BELAWADI POST, MYSURU-570 018, REP. BY ITS GENERAL SECRETARY.
2. THE DEPUTY CHIEF LABOUR COMMISSIONER (C) BANGALORE-560003.
... RESPONDENTS (BY SRI SUBBA RAO, SENIOR ADVOCATE FOR SRI V S NAIK, ADVOCATE FOR R1 SRI GURURAJ YADRAVI, CGC FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED PASSED BY THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL) I.E.R-2 DATED 20.07.2018, WHICH IS ANNEXURE-G, AND SUBSEQUENT CORRIGENDUM'S DATED 10.08.2018 AND 14.08.2018 RESPECTIVELY, WHICH ARE AT ANNEXURE-G1 AND G2 RESPECTIVELY AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner-company which is Central Government Public Sector Undertaking is before this Court calling in question the order dated 20.07.2018, which is passed by the Deputy Chief Labour Commissioner, Bengaluru and subsequent Corrigendums dated 10.08.2018 and 14.08.2018.
2. A brief background is required to understand the question raised in this writ petition and the facts required for decision making. The petitioner-company which is an establishment situated at Mysuru had contracted out the canteen for running the same from time to time. However, different contractors have been running the canteen for several years. It is contention of the petitioner that it has no control or supervision over the labourer engaged by the contractors in the canteen. During the year 1996, one Mysore Division General Labour Association, claiming to be a registered trade Union and espousing the cause of the contract labours working in the canteen, raised an Industrial Dispute and the same was referred to Labour Court at Mysuru in I.D.No.107/2001. The Industrial Tribunal, Mysuru vide its order dated 22.04.2003, passed an award holding that the workmen of the canteen are permanent workmen of the company and they are entitled for wage benefits and other allowances including leave, overtime and welfare benefits on par with the permanent employees doing unskilled work from the date of order of reference. It was further held that the workmen in the canteen are entitled for 50% of arrears of difference in the salaries etc., from the date of order of reference till the date of award.
3. The petitioner herein challenged the award in W.P.No.35453/2003 (L-RES), before this Court. This Court, by order dated 16.04.2010, partly allowed the petition, setting aside the declaration of the Tribunal that the workmen engaged in the canteen are permanent workmen of the petitioner establishment. Insofar as the other aspect of the award, this Court upheld the award of the Tribunal while modifying the entitlement of arrears from 50% to 40%. When the petitioner-company took up the matter before the Division Bench in W.A.No.1980/2010, the respondent-Union also preferred an appeal before the Division Bench in W.A.No.2179/2010. The Division Bench, by a common judgment dated 12.03.2015, held that “the workmen of BEML Canteen at Mysuru are entitled for equal wages on par with the permanent unskilled workers of BEML, considering the hardship that would be caused to BEML, we reduce the arrears of difference in salaries and emoluments to the workmen to 35%.” The SLP preferred by the petitioner- company herein was dismissed by the Hon’ble Supreme Court on 10.08.2015.
4. Thereafter, it is contended by the petitioner-company that it has complied with the award in terms of the order passed by the Division Bench. In that regard, a communication was made to the Union on 31.12.2015, stating that the petitioner-company has complied with the award and direction in terms of the order passed by the Division Bench in W.A.No.1980/2010 c/w W.A.No.2179/2010.
5. The workmen represented by the Union once again approached this Court in W.P.No.36848/2016, questioning the communication dated 31.12.2015. In the meanwhile, an application dated 08.02.2018 was made by the Union to the Chief Labour Commissioner, complaining of non-compliance of award and therefore sought permission to prosecute the petitioner-company under section 34 of the Industrial Disputes Act, 1947. On 22.03.2018, W.P.No.36848/2016 was disposed of declining to interfere in the matter, while granting liberty to the respondent-Union to approach the contempt Court, if the Union was aggrieved that the direction passed by this Court and the direction passed by the Division Bench were not complied with. Accordingly, the respondent- Union filed a contempt petition in CCC No.1340/2018. The contempt Court, held that the contempt petition is not intended to determine any further status that the employees are claiming on the basis of the orders passed by this Court. The monetary reliefs and other consequential benefits which the workers claim that they are entitled to have to be sought for before the appropriate forum i.e., by filing the proceeding under Section 33(C) of the Act. Granting such liberty to the Union, to file an application under Section 33(C) of the Act, the contempt proceedings were dropped on 16.01.2019. This writ petition was filed on 04.09.2018, before the orders were passed by the contempt Court.
6. Learned Senior Counsel Sri. Ashok Haranahalli, appearing for the petitioner-company has taken this Court through the award and orders passed by the Tribunal, this Court, the Division Bench and the order of the Hon’ble Supreme Court. The learned Senior Counsel contends that the impugned order cannot be sustained since the Union had already approached this Court by filing writ petition in W.P.No.36848/2016, calling in question the communication dated 31.12.2015, whereby the petitioner-company had substantiated that the award and the direction passed by this Court has been complied with. Moreover, it is contended that the respondent-Union could not have taken recourse to two proceedings, one questioning the communication dated 31.12.2015, before this Court, and making an application seeking permission to prosecute under Section 34 of the Act without bringing to the notice of the Chief Labour Commissioner, that the Union has already approached this Court questioning the communication. The learned Senior Counsel further submits that there is a clear direction by this Court that it cannot interfer under the circumstances and liberty was granted to the respondent-Union to approach the contempt Court. Further, the contempt Court has clearly held that it is satisfied that the accused has paid salaries to the workman in accordance with the direction issued by this Court. It was further pointed out that the contempt Court also held that if the workmen or complainants are not satisfied or have got any grievance with regard to payment or if there is any arrears of amount or benefits to be granted to the workmen, liberty is reserved to them to seek the same in accordance with law and particularly having regard to Section 33(C) of the Act. The learned Senior Counsel therefore contends that the remedy that was available for respondent- Union was to make an application under Section 33(C) of the Act and not make an application seeking permission to prosecute the petitioner-company.
7. Per contra, the learned Senior Counsel Sri. K.Subba Rao, appearing for the respondent-Union submits that there is no bar in law to prosecute two remedies, one under Section 33(C) of the Act and another which is a penal consequence, under Section 34 of the Act. In this regard, the learned Senior Counsel places reliance on a judgment of a Division Bench of this Court, in the case of F.K.Menzlin Vs. B.P.Premakumar, reported in LAWS (KAR) 1990 4 2. The learned Senior Counsel submits that the Division Bench has held that when the sanction discloses that the Sanctioning Authority has considered the document placed before it, and the documents so placed give all the necessary facts constituting the offence of criminal misconduct, the sanction accorded requires to be upheld that it is in accordance with law and the Sanctioning Authority has accorded sanction after application of mind. The learned Senior Counsel further submits that the observation of the contempt Court that it is satisfied that the accused has paid the salaries to the workmen in accordance with the direction issued by this Court, can only be an observation, however, it is for the competent authority to decide on going through the evidence as to whether the management has satisfied the award. The learned Senior Counsel further submits that the impugned order has been passed after application of mind, based on the documents and information produced before the Deputy Chief Labour Commissioner. The learned Senior Counsel further submits that the permission is only an authorization and the petitioner-company will have full opportunity to raise all the grounds including the contention that the permission to prosecute was not based on cogent evidence or reasoning. Therefore, it is contended that not fault could be found in the impugned order.
8. Heard the learned Senior Counsels on both the sides and perused the writ papers.
9. What is noticeable is that when the communication dated 31.12.2015, was issued by the petitioner-company stating that it has complied with the direction issued by this Court, the Union has questioned the same before this Court. When the proceedings were pending before this Court, the respondent-Union has made an application seeking permission to prosecute petitioner-Company. The Deputy Chief Labour Commissioner, no doubt has mentioned in the impugned order that Writ Petition No.36848/2016, has been preferred by the respondent-Union, as seen at paragraph No.4 of the impugned order but has misunderstood that W.P.No.36848/2016 was filed seeking direction arising out of the judgment rendered by the Honb’le Division Bench, in W.A.No.2179/2010. The Deputy Chief Labour Commissioner has not noticed that the communication dated 31.12.2015, issued by the petitioner-company claiming that it has fulfilled the award and direction, was indeed questioned in W.P.No.36848/2016. In other words, the very same question as to whether the petitioner-company has in fact complied with the award and direction issued by this Court and the Division Bench was under consideration before this Court in W.P.No.36848/2016.
10. In the considered opinion of this Court, the Deputy Chief Labour Commissioner, failed to notice that the question regarding compliance of the award and direction was infact awaiting consideration at the hands of this Court. In that view of the matter, the authority could not have proceeded to hold that there is non-compliance of the award and direction issued by the Division Bench of this Court. Moreover, subsequent to the passing of the impugned order, the Division Bench in the contempt petition, on considering the submissions of the rival parties has come to a conclusion that if the workmen are dissatisfied, they need to approach the competent authority under Section 33(C) of the Act.
11. Further more, as rightly pointed out by the learned Senior Counsel representing the petitioner-company, Section 34 of the Act provides that cognizance of any offence punishable under the Act or of the abetment of any such offence can be taken on the basis of a complaint. However, the penalty for breach of an award, as provided under Section 29 of the Act, could be taken only when, it is found beyond doubt that there is breach of an award. As noticed above, the question as to whether the petitioner-company has complied with the award or not, is yet to be determined. That is the reason why this Court and the Division Bench granted liberty to the respondent-Union to approach the competent authority by making a appropriate application under Section 33(C) of the Act, where such question could be determined and decided by the Labour Court after going through the evidence that is required to be placed before the Labour Court.
12. In the light of the above, this Court is of the considered opinion that the impugned order has been passed contrary to the direction issued by this Court and the Contempt Court and the question as to whether the petitioner-company has complied with the award and direction issued by this Court, is required to be determined by the competent authority after perusing the evidence in this regard. Therefore, the impugned order dated 20.07.2018, which is passed by the Deputy Chief Labour Commissioner, Bengaluru and subsequent Corrigendums dated 10.08.2018 and 14.08.2018, deserve to be set-aside and are accordingly quashed and set-aside.
The writ petition is accordingly, allowed. No order as to cost.
SD/- JUDGE DL