IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 28th DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION NO.32344/2017(L-RES) BETWEEN :
The Zonal Manager Bank of India 11, K.G.Road Bengaluru-560 009.
(By Smt.Sahana B.V., Advocate) AND :
M.H.Shankarappa Major S/o Hanumaiah Opposite to Gopalayya Building 1 Cross, Hosamane, Shimoga-577 201.
(By Sri V.S.Naik, Advocate) … Petitioner … Respondent This Writ Petition is filed under Article 226 of the Constitution of India praying to quash the award dated 21.12.2016 in C.R.No.31/2006 passed by the Central Government Industrial Tribunal-Cum-Labour Court, Bangalore (Annexure-A).
This Writ Petition coming on for preliminary hearing this day, the Court made the following:-
O R D E R The petitioner, the Bank of India, has challenged the legality of the award dated 21.12.2016, passed by the Central Government Industrial Tribunal-cum-Labour Court, whereby the learned Tribunal has answered the reference in favour of the workman Mr. M.H.Shankarappa, and has directed the Bank to provide employment as a regular sub-staff to the respondent- workman. The learned Tribunal has also directed that his appointment shall be treated as a fresh appointment, and he is not entitled to get any other benefit.
2. Briefly the facts of the case are that Mr. Shankarappa was appointed as a sub-staff on 20.4.1992, on a vacant post after following due procedure of selection. From 1992-2001, he continued to work for the Bank. However, on 8.3.2001, his services were terminated, but without giving any reason. After considering the request made by him, he was re-instated into service on 20.8.2002. However, a year later, on 1.8.2003, his services were again terminated for the second time. On 30.8.2004, the Bank entered into a settlement with the respondent-workman before the Assistant Labour Commissioner (Central) Hubli, with an understanding that the respondent-workman would be provided temporary work at the Shimoga Branch, upto 280 days in a year. Moreover, whenever vacancy arises, the respondent-workman would be considered against the said vacancy. Further, according to the said settlement, the Bank paid a bonus of Rs.10,400/- to the respondent-workman for the services rendered by him from 1992 to 2004. But after having re-employed him in 2004, his services were again terminated which resulted in the raising of an industrial dispute. The reference was made to the learned Labour Court as under:-
The workman, Sh.M.H.Shankarappa has been appointed as a Sub-Staff on 20.04.1992 at Bank of India, Shimoga in the vacant post of Sub-staff, after the due process of employment through the employment exchange. Since, from the date of appointment, he has worked for nearly ten years. During the period of his service the II party has extracted, all kinds of sub staff work, from the I Party- workman. The II Party has suddenly denied the work to the I Party-workman from 08.03.2001, without quoting any reason. The I Party-workman has suffered a lot, due to the unilateral action of the II Party. Considering the request of the I Party- workman, the II Party has reinstated into the service, the I Party-workman again from 20.08.2002. In spite of sincere work of the I Party-workman, the II Party again terminated the service of the I Party-workman from 01.08.2003, without any notice or reason. On 30.08.2002, the II Party has entered into a settlement with the I Party before the Assistant Labour Commissioner (Central) Hubli. The II Party has signed the above settlement with an understanding that, the I Party-workman will be given temporary work at the Shimoga branch upto 280 days in a year and the I Party-workman will be filled in the vacancy of sub staff that exists in the State of Karnataka. Also, the II Party has paid to the I party-workman, a Bonus of Rs.10,400/- on 02.12.2004 for the service rendered from 1992 to 2004, after filing complaint with the Labour Enforcement Officer (Central). The II Party has adopted the unfair labour practice by employing the I Party-workman continuously for more than 10 years as temporary workman, so as to deny him, the benefits of permanent workman. Hence, the I Party-workman has requested to direct the II Party, to reinstate the service of I Party-workman, with full back wages, and ancillary benefits with costs.”
3. In order to buttress his case, the respondent-workman examined himself as witness, and submitted twenty-six documents. In order to support their case, the petitioner had also examined a witness, and submitted two documents. After going through the oral and documentary evidence, by award dated 21.12.2016, the learned Tribunal had directed the petitioner as aforementioned. Hence, the petition before this Court.
4. Ms. Sahana B. V., the learned counsel for the petitioner, has pleaded that since the respondent-workman was temporarily employed by the Bank, the Bank cannot be saddled, and directed to regularly appoint him as its employee.
Secondly, relying upon the case of Secretary, State of Karnataka & others Vs. Umadevi & others, [AIR 2006 SC 1806], the learned counsel has pleaded that the Bank cannot be forced to employ the respondent.
5. On the other hand, Mr. V. S. Naik, the learned counsel for the respondent-workman, submits that the Bank had appointed the respondent-workman against a vacancy, that, too, after following due process of employment, although the Bank claimed that he was a temporary employee. The respondent-workman worked for the Bank from 1992 to 2004, for a period of twelve years. According to Mr.Mohan Kumar (M.W.1), the witness examined on behalf of the Management, vacancy continued to exist during the tenure of the respondent’s service. Moreover, repeatedly the Bank Managers had recommended the regularization of the respondent-workman inter alia on the ground that he was honest, and hardworking. But despite the recommendation made, and in spite of the existence of a vacancy, the respondent was continued as a temporary employee. Therefore, the Bank has clearly indulged in unfair labour practice. Relying on the case of Chief General Manager, RBI Vs. Presiding Officer & another, [ILR 2000 Karnataka 4356], the learned counsel has pleaded that when a workman continues to be employed as a casual labour even though vacancy arises, it amounts to unfair labour practice. Moreover, the petitioner, being a model employer, cannot be permitted to indulge in unfair labour practice. For, such exploitation of labour violates Article 23 of the Constitution of India. Therefore, the learned Labour Court was justified in directing the petitioner to provide employment to the respondent-workman on regular basis. Thus, the learned counsel has supported the impugned award.
6. Heard the learned Counsel for the parties and perused the impugned award.
7. The very Preamble of the Constitution of India declares India to be a socialist, democratic and republic. Moreover, the Preamble of the Constitution of India also declares that there shall be socio-economic justice. Keeping in mind the dreams of the Constitution, the Founding Fathers framed the Directive Principles of the State policy, and framed Articles 39(d), 39(e), 42, 43, 43A, 47 in Part IV of the Constitution of India. All these Articles are in favour of the labour class of the country. Since the labour class comes from the poorest of the poor sections of society, the Founding Fathers thought it imperative that the interest of the faceless and voiceless should be protected by the Constitution itself. It is in this light that Article 23 of the Constitution of India was enacted which prohibits exploitation of labour. After all, one of the functions of the law is to protect the weak against the strong. Therefore, the workman not only has a fundamental right of life, of dignity, under Article 21 of the Constitution, but also has a fundamental right under Article 23 of the Constitution to be protected from severe exploitation.
8. It is in the light of the constitutional provisions that the labour laws in the country have been framed. The sole object of the labour laws is also to protect the multitude labourer. It is in this view that the Labour Laws clearly define ‘unfair labour practice’ and prohibit an employer in indulging in unfair labour practice.
9. Needless to say, one of the most unfair labour practice would be to keep an employee on a temporary basis for years, when clear vacancy continued to exist in the organization. For, to keep an employee on a temporary basis is to deprive him of the benefits which he would have received as a regular employee. Therefore, in catena of the cases both the Hon’ble Supreme Court, as well as this Court, have held that an employee should not be kept as a temporary employee when there is a clear vacancy. If it is done, it amounts to unfair labour practice.
10. Section 2 (ra) of the Industrial Disputes Act, 1947, defines the words “Unfair labour practice” as meaning any of the practices specified in the Fifth Schedule of the Act. According to Item 10, List I of the Fifth Schedule attached to the Act, the practice of employing a workman as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen would tantamount to unfair labour practice.
11. In the case of Regional Manager, SBI v. Mahatma Mishra [ (2006) 13 SCC 727] the Hon’ble Supreme Court has clearly opined that “when an employee is appointed temporarily for successive fixed tenures with artificial breaks in between so as to deny the employee the right to claim permanent appointment, such an action would tantamount to unfair labour practice. It is the continuity of service of a workman for a period of years with intentional and artificial breaks which is frowned upon by the Courts. To continue a workman over long period of years on a temporary basis is to deny them the benefits which a regular workman is entitled to. Thus, it tantamount to ruthless exploitation of its labour. Therefore, it tantamount to unfair labour practice”.
12. In the case of Durgapur Casual Workers Union and Others v. Food Corporation of India and Others [ (2015) 5 SCC 786] the Hon’ble Supreme Court has observed as under:-
12. The industrial establishment or undertaking as defined in the Act not only includes the State public undertakings, the subsidiary companies set up by the principal undertaking and autonomous bodies owned or control by the State Government or Central Government but also the private industries and undertakings. The Industrial Disputes Act is applicable to all the industries as defined under the Act, whether the government undertaking or private industry. If any unfair labour practice is committed by any industrial establishment, whether the government undertaking or private undertaking, pursuant to reference made by the appropriate Government the Labour Court/Tribunal will decide the question of unfair labour practice.
13. In the matter of appointment in the services of the “State”, including a public establishment or undertaking, Articles 14 and 16 of the Constitution of India are attracted. However, Articles 14 and 16 of the Constitution of India are not attracted in the matter of appointment in a private establishment or undertaking.
14. An undertaking of the Government, which comes within the meaning of industry or its establishment, cannot justify its illegal action including unfair labour practice nor can ask for different treatment on the ground that public undertaking is guided by Articles 14 and 16 of the Constitution of India and the private industries are not guided by Articles 14 and 16 of the Constitution of India.
13. Even in the case of ONGC Ltd. v. Petroleum Coal Labour Union & others, [AIR 2015 SC 2210], the Hon’ble Supreme Court has emphasized that Public Sector Undertakings are the instrumentalities of the State under Article 12 of the Constitution of India. Therefore, they cannot act arbitrarily, unfairly, unjustly, or unreasonably. Being model employers, they must act in accordance with the mandate of Article 14, 16, 19, and 21 of the Constitution of India.
14. Admittedly, clear vacancy did exist when the respondent-workman was employed on a temporary basis. According to the admission made by Mr. Mohan Kumar (MW1), the vacancy continued from 1992 till 2004. But the respondent was intentionally kept as temporary employee. Therefore, the petitioner has indulged in unfair labour practice.
15. Although though the learned counsel for the petitioner has relied upon the case of Umadevi (supra), but in the case of Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana [ (2009) 8 SCC 556] and in the case of Durgapur Casual Workers Union (supra) the Hon’ble Supreme Court is of the opinion that the case of Umadevi (supra) does not denude the Industrial and Labour Court of the statutory powers to order regularisation of workers who are victims of unfair labour practice and part of the employer. Similar view has also been expressed in the case of Ajaypal Singh v. Haryana Warehousing Corporation [13 (2015) 6 SCC 321]. In the said case, the Apex Court has observed as under:-
20. The provisions of the Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees.
Therefore, the case of Umadevi (supra) does not come to he rescue of the petitioner.
16. The petitioner cannot be permitted to indulge in unfair practice on one hand, and once it is held to be a wrongful act, the Bank cannot be permitted to take its stand that an employee cannot be forced upon it. Once the Bank has admitted, as in the present case, that vacancy existed, and once the Bank has admitted that the respondent-workman was found to be honest, sincere, and hardworking person, then the learned Tribunal was justified in directing the Bank to regularize the service of the respondent-workman.
17. For the reasons stated above, this Court does not find any merit in the present writ petition. It is, hereby, dismissed.
Sd/- JUDGE *ck/-