North West Karnataka Road Transport Corporation vs Shrikant Lakshamappa Illigar and Others

R.S. Chauhan, J.—The petitioner, N.W.K.R.T.C. has challenged the legality of the award dated 21.09.2010 passed by the Additional Labour Court, Hubli, whereby the learned Labour Court has allowed the reference made under Section 10(1(C) of the Industrial Disputes Act, 1947, (''the Act'' for short), and has set aside the punishment order dated 03.04.2002. The learned Labour Court has also directed that the respondent-workman should not only be reinstated, but he should also be paid 50% of backwages from the date of dismissal i.e. from 3.4.2002 till the date of his death on 22.05.2010, with continuity of service and other service benefits.

Briefly the facts of the case are that the respondent-workman was appointed as driver with the N.W.K.R.T.C. He continued to work till his dismissal order dated 3.4.2002 was passed. According to the petitioner-Corporation, the respondent-workman was absent unauthorisedly from 29.04.2001 till 17.11.2001. Thus, he was absent for five months, and nineteen days. On 11.10.2001, he was issued a show cause notice with regard to his unauthorised absentism. An Enquiry Officer was appointed. According to the petitioner-Corporation the petitioner admitted the charge of absentism. Therefore, a second show cause notice was issued. Subsequently, on 3.4.2002, he was removed from the service by the Corporation. Since the respondent-workman was aggrieved by the order of removal, he raise an Industrial dispute. On 12.11.2008, a reference was made by the Government of Karnataka under Section 10(1)(C) of the Act. After hearing both the parties, the learned Tribunal passed the award as mentioned above. Hence, this petition before this Court.

Smt. Sunitha P. Kalasoor, the learned Counsel for the petitioner, has raised the following contentions before this Court-

"Firstly, that the industrial dispute was not even maintainable as the respondent-workman was working merely as "a trainee". Therefore, he does not qualify as "a workman" under the definition contained in the Act. According to her, although this contention was raised by the petitioner, the learned Labour Court has ignored this contention. Secondly, that there was inordinate delay of six years in making the reference. Therefore, the reference should have been dismissed on this ground alone. Hence, the impugned award deserves to be interfered with."

On the other hand, Mr. Madhukeshwar A Deshpande, the learned Counsel for the respondent, has pleaded that the respondent-workman was appointed as driver in 1992. He was not dismissed till 2002 i.e. after a lapse of ten years. Obviously, the respondent workman could not continue to be "a trainee" for a decade. Moreover, the issue whether the respondent-workman was "a trainee" or a regularly appointed driver, thus "a workmen", is a question of fact. The said contention was not raised by the petitioner-Corporation as it has not been reflected in the impugned award. Therefore, the plea that the respondent-workman was merely a trainee, the question of fact cannot be raised for the first time before this Court. Secondly, in case the petitioner-Corporation were aggrieved by the fact that the reference was a delayed one, it could have filed a writ petition at the time when the reference was made. But it has failed to do so. Therefore, the said issue cannot be raised by the petitioner-Corporation after the award has been passed in favour of the respondent-workman. Moreover, the Labour Court is clothed with the jurisdiction to decide the reference only after a reference has been made. Relying on the case of Karan Singh Vs. Executive Engineer Haryana State Marketing Board, , and on the case of Raghubir Singh Vs. General Manager,Haryana Roadways, , the learned Counsel has pleaded that merely because the reference is a delayed one, it is not a valid ground for dismissing the reference. Hence, the learned Counsel for the respondent has supported the award.

Heard the learned Counsel for the parties and perused the impugned award.

A bare perusal of the impugned award clearly reveals, that in para-4 of the award the learned Labour Court has noted the contentions raised by the petitioner-Corporation. But there is no indication that the petitioner-Corporation had raised the issue with regard to the status of the respondent-workman; there is no indication that the petitioner had claimed that the respondent-workman was merely "a trainee". Hence, he did not fall within the definition of ''workman'' as contained in the Act. Therefore, the dispute being raised by the respondent-workman does not fall within the ambit of the Act. Since the said contention has not been recorded by the learned Labour Court, it cannot be held that the said contention was, indeed, raised before the Labour Court.

Moreover, it is difficult to believe that a person appointed in 1992 would continue to be "a trainee" till 2002 i.e. for a period often years. A person who is appointed as a ''trainee'' is generally appointed as a ''trainee'' for one or two years, but it is, indeed, unheard of that a person continues to be a "trainee" for ten long years. Therefore, the contention raised by the learned Counsel for the petitioner seems to be a misplaced one.

Moreover, since the status of the respondent-workman is a question of fact, a disputed question of fact cannot be raised for the first time before this Court. Therefore, the contention is unacceptable.

Both in the case of Karan Singh (supra)and in the case of Raghubir Singh (supra), the Apex Court has opined, that no limitation period has been prescribed for making a reference by the Government to the Labour Court. Therefore, the reference cannot be dismissed merely on the ground of limitation. Moreover, in the case of Karan Singh (supra) the Hon''ble Supreme Court has opined that in case the employer were of the opinion that the reference is a delayed one, it was free to challenge the reference by filing a writ petition. However, in the present case the petitioner has not challenged the reference by filing a writ petition. Therefore, it is too late in the day for the petitioner-Corporation to plead that the reference should have been dismissed only on the ground of delay.

Most importantly, the learned Labour Court begets the jurisdiction to decide the reference only when the reference is made and not prior thereto. Therefore, the Labour Court certainly would not be justified in dismissing the reference only on the ground of delay. Therefore, even the second contention raised by the learned Counsel is unsustainable.

For the reasons stated above, this court does not find any perversity or illegality in the impugned award. This petition being devoid of any merit is hereby dismissed.