Karnatka State Road Transport Corporation, Sirsi Division, Sirsi vs Hanna Baig and Another

The employer KSRTC, in this writ petition under Articles 226 and 227 of the Constitution, seeks quashing of the award of the Additional Labour Court, Hubli, dated 16-2-1995, at Annexure-A.

By order dated 8-7-1976 at Annexure-B, the petitioner KSRTC appointed the first respondent as Driver in the scale of Rs. 95-250 on probation for two years from 29-6-1976. On 23-6-1978, as at Annexure-C, before the completion of the said probation period of two years, first respondent was discharged from service on the ground of unsuitability. It was only on 4-10-1988, taking advantage of Section 10(4-A) of the Industrial Disputes Act, 1947 (''Act'' for short) that the first respondent raised an industrial dispute with regard to the said termination of his services by filing an application before the Additional Labour Court, Hubli. The Labour Court, by the impugned award, set aside the order of termination and directed reinstatement of the first respondent in service with the benefit of continuity of service and other consequential benefits, but with full back wages, only from the date he filed an application u/s 10(4-A), namely 4-10-1988, till his reinstatement. One of the grounds on which the Labour Court based the said award was that admittedly, there had been no compliance with Section 25-F of the Act.

In Management of Karnataka State Road Transport Corporation, Bangalore Vs. M. Boraiah and Another, , the Supreme Court was dealing with a case, the facts of which are similar to the present one. KSRTC had terminated the services of some of the employees during the initial period of probation, and some others during the extended period, on the ground of unsatisfactory service. An industrial dispute was raised in that regard. The same was referred to the Labour Court for adjudication u/s 10 of the Act. It was contended before the Labour Court on behalf of KSRTC that Section 25F had no application. The Labour Court overruled this stand of the employer and passed an award holding the order of discharge as invalid. KSRTC challenged the said award but without success, before the learned Single Judge, as also before the Division Bench of this Court. It was held by this Court that the order of discharge amounted to ''retrenchment'' as defined u/s 2(oo) of the Act, and that the discharge orders were therefore bad for non-compliance with Section 25F of the Act. The matter then reached the Supreme Court in appeal by the KSRTC by Special Leave. The admitted position therein was that the employees were probationers at the time of discharge from service, and there was no dispute that, as a condition precedent, requirement of Section 25-F had not been complied with. If the discharge of the employees would amount to retrenchment, then, the learned Counsel for the appellant KSRTC before the Supreme Court did not dispute that the order of discharge would be bad for non-compliance with Section 25-F of the Act. The only question for consideration in the said appeal, as posed in by the Supreme Court in para 3 of the judgment, therefore, was - whether discharge of the employees from service amounted to retrenchment. It was urged on behalf of the KSRTC that the employees were probationers and the order of discharge was on account of unsatisfactory service, and that, since the order of discharge had been based upon unsatisfactory service during the period of probation; such termination of services was not retrenchment. In the light of this contention made on behalf of the employer KSRTC, the Supreme Court proceeded to consider the definition of ''retrenchment'' u/s 2(oo) of the Act and referred to the decisions of the Supreme Court including the decision of the Constitution Bench in Hariprasad Shivshankar Shukla v A.D. Divekar and the other decisions in Hindustan Steel Ltd. Vs. The Presiding Officer, Labour Court, Orissa and Others, , Santosh Gupta Vs. State Bank of Patiala, ; The Indian Hume Pipe Co. Ltd. Vs. The Workmen and Another, ; Mohan Lal Vs. Management of Bharat Electronics Ltd., ; L. Robert D''Souza v Executive Engineer, Southern Railways and Another and The State Bank of India Vs. Shri N. Sundara Money, . It was then that the Supreme Court concluded thus:

"Once the conclusion is reached that retrenchment as defined in Section 2(oo) of the Industrial Disputes Act covers every case of termination of service except those which have been embodied in the definition, discharge from employment or termination of service of a probationer would also amount to retrenchment. Admittedly, the requirement of Section 25-F of the Disputes Act had not been complied with in these cases. Counsel for the appellant did not very appropriately dispute before us that the necessary consequence of non-compliance of Section 25-F of the Disputes Act in a case where it applied, made the order of termination void. The High Court, in our opinion, has, therefore, rightly come to the conclusion that in these cases, the order of retrenchment was bad and consequently, it upheld the award of the Labour Court which set aside those orders and gave appropriate relief.

It is contended on behalf of KSRTC that, at the time this decision was rendered by the Supreme Court, sub-clause (bb) of clause (oo) of Section 2 of the Act had not yet been introduced, and that, now that the said sub-clause (bb) is a part of the statute, it would make a difference, because, the said clause (bb) inter alia permitted discharge of probationer within the probation period on the ground of unsuitability because of specific term in the appointment order itself in this regard. Whether or not this contention is valid does not arise for consideration in this case. It is for this reason sub-clause (bb) was introduced by Act 49 of 1984 with effect from 18-8-1984, while the order of discharge is dated 23-6-1978. At the time the said order of discharge was passed, this clause was not there. The decision of the Supreme Court referred to above would squarely apply to the facts of this case.

There is, therefore, no infirmity in the award. Even awarding of back wages is from the date of workman''s application u/s 10(4-A) of the Act before the Labour Court. Writ petition is dismissed.