IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 30TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL NO.4269 OF 2012 (L-TER) BETWEEN:
1. THE DEPUTY CONSERVATOR OF FORESTS MADIKERI DIVISION MADIKERI KODAGU DISTRICT-571 201.
2. THE STATE OF KARNATAKA FOREST DEPARTMENT M S BUILDING BENGALURU-01.
(BY SRI. KIRAN KUMAR, HCGP) AND:
SRI M P RAVINDRA SON OF M PUTTANNA MELCHEMBU VILLAGE BALAMBI POST, MADIKERI TALUK KODAGU DISTRICT-571 201.
….APPELLANTS ….RESPONDENT (BY SRI. VIGHNESHWAR S SHASTRI, ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.35271 OF 2011 DATED 12.12.2011.
THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 12.12.2011, passed by the learned Single Judge in Writ Petition No.35271 of 2011, whereby the writ petition was allowed and petitioners were directed to engage the respondent as a daily wager and to pay him wages until his termination, the petitioners have filed this writ appeal.
Parties are referred to as they are arrayed in the writ petition.
2. Brief facts of the case are that the respondent was appointed as watcher in the office of the Range Forest Officer, Sampanje Range, Koyandu, Sampaje, Madikeri Taluk, Kodagu District by the petitioners on 01.06.1993. The respondent was illegally terminated from service on 01.06.2002. The respondent contended that he was in continuous service from 01.06.1993 to 01.06.2002 and while terminating the service, no notice of wages in lieu thereof was paid by the petitioner-management. No departmental enquiry was conducted. The respondent had worked for more than 240 days of continuous service, hence, the termination is violative of the principles of Industrial Disputes Act, 1947 (for short ‘I.D.Act’). The petitioners violated the Government Order and Circulars dated 13.10.1992 and 06.01.1999 instructing the concerned officer not to retrench any daily wage employees appointed after 01.07.1984. After his illegal termination, the petitioners through union requested the petitioners to take him back to duty, but it was of no avail. The termination of the respondent is unfair labour practice and it is illegal and arbitrary. The respondent approached the labour Court, Mysore under Section 10(4A) of the I.D.Act challenging the termination of his service is illegal and sought for reinstatement with back wages.
3. The petitioners filed objection to the petition filed by the respondent. The petitioners admit that respondent was employed as Forest Watcher from 01.06.1993 to 01.06.2002 on daily wages. It is further contended that respondent stopped coming to work from the end of December 1996 on his own accord and there is no intimation as to why he had not come to duty. It is further contended that daily wage workers are taken to work as per the needs of the work and they are not appointed against any sanctioned post and prayed to dismiss the petition.
4. The Labour Court on the basis of the pleadings, framed following issues.
i) Whether I Party proves that there is relationship between employer and employee?
ii) Whether I Party proves that he worked continuously for 240 days in the preceding year?
iii) Whether I Party proves that he has been illegally terminated on 1-6-2002?
iv) Whether II Party proves that termination of 1st Party during conciliation proceedings is proper?
v) What order and relief I Party is entitled to?
5. Respondent examined himself as WW.1 and got marked Exs.W1 to W16. The petitioners examined one N.T.Vijayakumar, Assistant Conservator of Forests as MW1 and got marked Exs.M1 to M43.
6. The labour Court after considering the pleadings, oral and documentary evidence held that, respondent has proved that there is relationship between employer and employee. It is further held that respondent has worked continuously for 240 days in the preceding year. It is further held that respondent has proved that he has been illegally terminated on 01.06.2002. It is further held that the petitioners have failed to prove that termination of the respondent during conciliation proceedings is proper and finally allowed the petition filed by the respondent and directed the petitioners to reinstate the respondent in service to the post of Forest Watcher. It is further observed that the reinstatement of the respondent shall not be considered as his regularization and it is always open to the petitioners to retrench him for bonafide reasons after complying with the mandatory provisions of Section 25-F of the I.D.Act. Further, the petitioners shall pay to the respondent 50% back wages from the date of removal, i.e., 01.06.2002 till the date of his reinstatement. The back wages shall be computed on the basis of the last pay drawn by the respondent. Further, the respondent is not entitled for consequential benefits and continuity of service.
7. The petitioners aggrieved by the order passed by the labour Court in I.D.No.58 of 2007 dated 05.08.2010 filed Writ Petition No.35271 of 2011. The learned single Judge was pleased to allow the writ petition filed by the petitioners and further directed the petitioners to continue to engage the respondent as a daily wager, pay him his wages until terminated, strictly in accordance with law.
8. The petitioners aggrieved by the order passed in Writ Petition No.35271 of 2011 filed this appeal.
9. Heard the arguments of the learned counsels and perused the records.
10. It is not in dispute that the petitioners appointed the respondent on daily wage basis and he has worked continuously for more than 240 days in the preceding year and the respondent has worked continuously for more than 8 years from 01.06.1993 to 01.06.2002. Further, the petitioners were paying the wages to the respondent. The petitioners have clearly admitted in the objection filed before the labour Court regarding the respondent being appointed as Forest Watcher on daily wages. The respondent has proved the relationship of employer and employee in between the petitioners and respondent. When an employee had put in service for more than 240 days in each year for several years whether his services can be put to an end without following the procedure prescribed under Section 25-F of the I.D.Act. If there has been violation thereof such an employee will have to be reinstated in his original service on the same terms and conditions in which he was working earlier. In the present case, at the cost of repetition, the respondent has worked for more than 8 years in the petitioners department and the petitioners cannot throw the respondent without following the procedure prescribed under Section 25-F of the I.D.Act. Thus, there is violation of Section 25-F of I.D.Act.
11. The labour Court after considering the material on record has rightly passed an order directing the petitioners to reinstate the respondent into service to the post of Forest Watcher and further observed that, it is open for the petitioners to retrench the respondent after complying Section 25-F of the I.D.Act. The learned single Judge after re-appreciating the material on record quashed the order passed by the labour Court. But the learned single Judge has observed in para 4 of the impugned order, which reads as under.
“A daily wager can at best go back as a daily wager alone and not against a substantive post of a forest watcher. In that view of the matter, it is needless to state that the petitioner-Forest department, is directed to continue to engage the respondent as a daily wager, pay him his wages until terminated, strictly in accordance with law.”
12. When the respondent has worked for more than 240 days, the petitioners have to follow the procedure prescribed under Section 25-F of the I.D.Act. The petitioners have violated the provisions of Section 25-F of the I.D.Act. The learned single Judge was justified in directing the petitioners to continue to engage the respondent as a daily wager, pay him his wages until terminated, strictly in accordance with law. We do not find any ground to interfere with the impugned order. Hence, we proceed to pass the following:
ORDER The writ appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE MBS