Ramesh vs Hyderabad Karnataka Education Society and Others

L. Narayana Swamy, J.—The petitioner-workman has filed this petition seeking to quash the award of the Labour Court in Ref. No. 45/2011 directing the employer to reinstate without continuity of service and without backwages.

It is submission of the petitioner that the Labour Court has committed an error in not ordering the continuity of service and back-wages. Though it has been proved by the material evidence that he has been appointed by the first respondent and working in PPP Centre of the second respondent and the first respondent has declared the probationary period as satisfactory, which shows his appointment was terminated not with regard to Government scheme, these materials have not been considered by the Labour Court. He referred appointment order at Annexure-B and declaration of probationary at Annexure-C. The evidence of W.W. 1 is available in the petition at paragraph 21, 22, 23 in which it has been referred persons along with the petitioner have been appointed pursuant to their original appointment in the year 1997. The non-continuation made on 05.10.2007 has been challenged before the Labour Court. The Labour Court directed reinstatement but denied the back wages and continuity of service. Therefore, the learned counsel prays for quashing the Labour Court order in respect thereof and direct the first respondent to provide continuity of service with back-wages.

Learned counsel for the first respondent submitted to dismiss this petition. The Labour Court should have dismissed the claim petition primarily on the ground of delay since the claim petition was not filed within six months as provided under the Industrial Disputes Act. He was continued or terminated on 05.10.2007 whereas he had approached the Labour Court on 07.05.2011. Hence, the award of the Labour Court is an error in law and also on jurisdiction. The appointment of the petitioner along with others by the Government of India called PPT center and the salary was paid by the Government of India. Since the scheme itself has been lapsed the petitioner is discontinuity. Notwithstanding the fact, he had approached the Labour Court whereby he was reinstated as in case of others.

Learned counsel for the petitioner referred the judgment of the Supreme Court in (2009) 2 Supreme Court Cases (L&S) 134 in similar circumstances Supreme Court declared to grant of full back wages and continuity of service.

I have heard both sides.

The important question to examine is as to whether the petitioner was appointed by the first respondent independently without reference to any scheme floated to the Government of India. Secondly who paid the salary during the service period of the petitioner. The nature of appointment, whether it is independently made by the first respondent or appointment was pursuant to the Government of India scheme which could be decided on the basis of the fact that who has paid the salary.

It is clear from the appointment order dated 29.01.1997 in the preamble that post of Cyto technician has been sanctioned by the Govt. of India to the A category Post Partum Programme Centre, M.R. Medical College, Gulbarga, to conduct P.A.P. Smear Test facilities under the programme and same was filled temporarily by granting consolidate salary for Rs. 1270/- per month. The provisions of salary and allowances has been made in the grant-in-aid being allotted to the P.P.P. Centre, M.R.M.C.G., for the post of Cyto-Technician. In the order of declaration of probationary dated 07.07.1999 in which probationary of the petitioner has been declared without referring to any programme or scheme floated by the Government of India. Annexure-B appointment order refers the scheme floated by the Government of India. However, without referring the same probationary has been declared. It is not disputed by the petitioner that the appointment was made by the Government of India during his tenure working for respondent No. 2. Mere fact that respondent No. 1 appointed the petitioner for respondent No. 2 does not decide the right of the petitioner. The person who pays the salary would decide nature of appointment. Here the respondents have not stated whether Government of India sanctioned a scheme called P.P.P. (Post Partum Programme) and the said scheme was applicable throughout India as well as the second respondent also. It is to be insisted that tenure of appointment is depending upon the lapse of the scheme. This is to be fortified by W.W. 1 who is in his evidence deposed that appointment made pursuant to the scheme and salary was made pursuant to the scheme. This evidence without reference to the Annexures-B and C appointment order probationary period declaration. When these two are examined it clarifies the fact that the petitioner has been appointed by the first respondent pursuant to the scheme of Government of India.

The submission of the petitioner that during the pendency of the dispute he was reinstated. The reinstatement was made notwithstanding the pendency of the dispute before the Labour Court. The first respondent would have definitely waited till the decision of the dispute before the Labour Court. However, the petitioner has been considered afresh without referring the dispute pending which itself shows that the appointment of the petitioner which includes reinstatement is without reference to the original appointment order on 11.09.1996. The award of the Labour Court is sound and proper hence, does not call for interference. The petition is dismissed.