IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT APPEAL NO.65/2019 & WRIT APPEAL NOS.329-330/2019 (L-RES) BETWEEN:
SHIVAKUMARA V S/O LATE VENKATASHAMAPPA AGED ABOUT 51 YEARS R/O NO.513, CAR STREET BEHIND VENKATARAMAN SWAMY TEMPLE DODDABALLAPURA TOWN BANGALORE RURAL DISTRICT-561 203 ... APPELLANT (BY SHRI. P.H. VIRUPAKSHAIAH, ADVOCATE) AND:
1. THE DIRECTOR (FINANCE) BANGALORE ELECTRICITY COMPANY LTD., NO.201, 2ND FLOOR, BLOCK-II CORPORATE OFFICE, K.R.CIRCLE BANGALORE-560 001 2. THE MANAGING DIRECTOR BANGALORE ELECTRICITY COMPANY LTD., CORPORATE OFFICE, K.R.CIRCLE BANGALORE-560 001 3. THE GENERAL MANAGER (ADMIN AND HUMAN RESOURCES) BANGALORE ELECTRICITY COMPANY LTD., CORPORATE OFFICE, K.R.CIRCLE BANGALORE-560 001 ... RESPONDENTS THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 5/12/2018 PASSED BY THE HON'BLE SINGLE JUDGE AND DISMISS WP NO.50339/2018 AND WP NOS.53603- 604/2018 [L-RES] FILED BY THE RESPONDENTS HEREIN CONFIRMING THE AWARD DATED 1/9/2018 PASSED IN I.D. NO. 31/2016 BY THE PRINCIPAL LABOUR COURT, BENGALURU.
THESE WRIT APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT The appellant who was the respondent in the writ petition filed by the respondents herein before the learned Single Judge has taken an exception to the order dated 5th December 2018 passed by the learned Single Judge. By the said order, the learned Single Judge proceeded to set- aside the judgment and award dated 1st September 2018 passed by the Principal Labour Court, Bangalore in an Industrial Dispute raised by the appellant under Section 10 of the Industrial Disputes Act, 1947 (for short “the Act”).
2. According to the case of the appellant, he was appointed by the second respondent/the Managing Director of Bangalore Electricity Company Limited (for short ‘the said Company’) as a Co-ordinator. The contract of the appellant was being extended from time to time till 31st of August 2016. He was discharging duty as the personal secretary to the Director (Finance) in the said company. According to him, the Management of the said company issued SMS on 13th June 2016 informing the appellant to handover charge of his post to one Mrs.Padmavathi and not to attend duty. What is important to be noted is, on the basis of the said SMS, Writ petition No.35897/2016 was filed by the appellant in this Court. The first prayer therein was for seeking a writ of mandamus directing the first respondent in the said writ petition [the Director(Finance) of the said Company] to continue his employment as Personal Secretary. In the said writ petition, a specific contention was raised that the appellant has been replaced by the fourth respondent in the said writ petition.
3. Writ petition No.35897/2016 was dismissed by this Court by order dated 7th September 2016. This Court held that the appellant was appointed in a post, which was not a sanctioned post and the appellant had no right to continue as Personal Secretary to the Director (Finance). In fact this Court held that there was no material placed on record to show that the appellant who was temporarily employed was sought to be replaced by another temporary employee.
4. The appellant in support of the Industrial dispute raised by him filed Memorandum of dispute under Section 10 (4-A) of the Act. It is specifically pleaded in paragraph No.6 thereof that by SMS dated 13th June 2016, it was informed by the second party Management to handover charge of his post to another person. What is pertinent to note is that in the Memorandum of dispute filed by the appellant before the Labour Court, the fact that the aforesaid writ petition was filed by the appellant and that the same was dismissed, was suppressed. This fact was pointed out in the counter statement filed by the second party Management before the Labour Court.
5. Now coming to the impugned judgment and order of the learned Single Judge, he held that by filing a writ petition, the appellant had fought the case of his termination on merits and suffered order of rejection. The learned Single Judge observed that this Court in writ petition specifically upheld the termination of the employment of the appellant and therefore, the findings in the writ petition which have attained finality will operate as res judicata. In paragraph No.10, the learned Single Judge observed that the relief claimed by the petitioner before this Court in the earlier writ petition and the relief sought in the Industrial dispute were in substance the same and the reasoning adopted by the Labour Court in the Award setting-aside oral termination and directing reinstatement of the appellant runs repugnant to the findings recorded by this Court.
6. The learned counsel appearing for the appellant submitted that principles of res judicata will have no application inasmuch as the parties to the earlier writ petition as well as parties to the Industrial Dispute were different. He submitted that the relief was sought in the writ petition against the Director(Finance) of the said Company and before the Labour Court, the relief was essentially sought against the Managing Director of the said Company who was the appointing authority. He further submitted that the issues raised before the Labour Court were not raised in the writ petition. He pointed out that it was contended before the Labour Court that the appellant had completed over 240 days of work with the Management. He placed reliance on various decisions such as Dharam Bir Singh Vs. Mansi Sahakari Avas Samiti Ltd., and others1 and V.Rajeshwari (Smt) Vs. T.C.Saravanabava2 7. We have carefully considered the submissions, we have perused the copy of the writ petition No.35897/2016 and we have also carefully perused the statement of claim filed by the appellant before the Labour Court. In the writ petition, the contention raised is that the Director(Finance) by SMS dated 13th June 2016 called upon the appellant to handover charge to another person and informed him not to report to duty. In paragraph No.6 of the memorandum filed before the Labour Court, a specific averment has been made that second party Management intimated to the appellant on 13th June 2016 through SMS informing the first party workman to handover his charge to one Mrs.Padmavathi without any reasons. Paragraph No.7 contains a submission that thus the Management directed the appellant to discontinue his services, which is against 1 (2005)11 SCC 481 2 (2004)1 SCC 551 law. The allegation made in the earlier writ petition was precisely the same. In fact in the earlier writ petition, he specifically sought for continuation of his services as Personal Secretary to the Director(Finance) of the said Company.
8. The finding of this Court in earlier writ petition which has attained finality is that the appointment of the appellant was made purely on temporary basis and that also was not in a sanctioned post. Thus, this Court held that the appellant was disentitled to continue in the post held by him. The challenge in substance before this Court was based on SMS sent on 13th June 2016 calling upon him to handover charge to another person. The specific plea in the Memorandum of dispute filed before the Labour Court by the appellant was that through the said SMS, the Management decided to discontinue his employment. After having suffered the judgment and order dated 7th September 2016 which completely negatives the stand of the appellant, invoking jurisdiction of the Labour Court under the Industrial Disputes Act, 1947 was itself an abuse of the process of law. As noted in the Memorandum of dispute, there was a complete suppression of the fact of filing of the earlier writ petition and the outcome thereof.
9. In any event, the appellant was bound by the finding recorded by this Court in the order dated 7th September 2016 in his own writ petition. Apart from this, a copy of Work Award dated 14th February 2012 issued by the said company to M/s. KEONICS, a Government of Karnataka Enterprise, annexed to the present appeal shows that the work of appointing a Co-ordinator for implementation of R-APDRP was entrusted to M/s.KEONICS for initial period of one year which was renewable for a further period of one year. M/s.KEONICS was permitted to charge a specific amount for providing one co-ordinator to the said company. Thus, the employment of the appellant was on contract basis which was provided by M/s.KEONICS.
The said Work Award specifically records that the appointment of Co-ordinator was required for implementation of R-APDRP project. It is pertinent to note that in the order dated 7th September 2016 passed by this Court in the writ petition filed by the appellant, a specific finding was recorded that the post of co-ordinator was no longer in existence as R-APDRP scheme had expired.
10. Therefore, we find absolutely no error in the view taken by the learned Single Judge, when he interfered with the award passed by the Labour Court. There is no merit in the appeals. Hence, the appeals are dismissed.
There is no order as to costs.
Sd/- CHIEF JUSTICE SPS Sd/- JUDGE