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Judgment
B.S. Patil, J.—1. Writ Petition No. 67468/2011 and Writ Petition No. 68374/2011 arise out of the award dated 26th April 2011 passed by the Additional Labour Court, Hubli, thereby allowing the claim petition filed by the workman under Section 10(4-A) of the Industrial Disputes (Karnataka Amendment, 1988) Act, 1947 issuing certain directions to the management including for reinstatement with continuity of service but without backwages.
The management-Hubli Electricity Supply Company, Hubli (for short ''HESCOM'') has filed W.P. No. 67468/2011 challenging the award passed by the Labour Court directing reinstatement of the employee. The respondent-employee has filed W.P. No. 68374/2011 challenging the denial of backwages. Writ Petition No. 64491/2012 has been filed by the management challenging the order dated 31st March 2012 passed in Application No. 59/2011 under Section 33(c)(2) of the Industrial Disputes Act, 1947, whereby the applicant-employee is held entitled to Rs. 1,98,749/- towards arrears of wages from 26.04.2011 till 31.10.2011.
The workman-Narayan Khobani Kagankar @ Kallappa Monappa Patil raised the dispute by filing the claim petition under Section 10(4-A) of the Industrial Disputes Act, as amended by the Karnataka Amendment, contending inter alia that by an oral order dated 02.11.2007, the Management of HESCOM refused him work though he had continuously worked for nearly 28 years. He sought for setting aside the said oral order and for a direction for reinstatement with full backwages, continuity of service and all other consequential benefits.
It was the case of the workman that he was appointed as an Assistant Lineman on 19.11.1979 under the erstwhile KEB, Belgaum Division, and was made permanent with effect from March, 1983. According to him, he was known by two names i.e., Narayan Khobani Kagankar @ Kallappa Monappa Patil. He applied to the management seeking correction of his name to be recorded only as Kallappa Monappa Patil. According to him, he filed an affidavit during April, 1983 before the management requesting for such correction. The said correction was not done. Hence, he went on making representations supported by affidavits. It is his case that he applied for change of his name and got it published in the Gazette of India dated 11.01.1997. Thereafter, he again applied to the Executive Engineer (Elecl.) O & M Division, KEB, Belgaum, for necessary action. As nothing was done, the workman again applied on 05.01.2001 to the 2nd respondent-Executive Engineer requesting him to effect changes in the name. Certain queries were raised by the Executive Engineer vide his letter dated 23rd February 2001. The workman replied enclosing certain documents. Thereafter, there was no correspondence. However, on 31.10.2007, the Vigilance Inspector of HESCOM came to the residence of the workman and took certain signatures and thereafter the workman was refused work and was asked not to report for duty. This made the workman to get a legal notice dated 26.11.2007 issued to the management calling upon them to take him to duty and assign work. When the same was not acceded to, he approached the Labour Court contending inter alia that the action of the respondent-management tantamounted to retrenchment.
The management resisted the claim contending inter alia that there was no employer and employee relationship between the management and the applicant, who was known as Kallappa Monappa Patil. They also contended that Narayan Khobani Kagankar and Kallappa Monappa Patil were two different persons.
Based on the respective contentions taken, the Labour Court recorded the evidence of both sides. The workman got himself examined as W.W. 1 apart from examining three witnesses as W.Ws. 2 to 4. He got marked Exs. W. 1 to W. 15. The management examined its Accounts Officer as M.W. 1 and got marked Exs. M. 1 to M. 22. On appreciation of evidence on record, the Labour Court has come to the conclusion that the say of the workman that his name was wrongly entered in the service record as Narayan Khobani Kagankar instead of Kallappa Monappa Patil was highly probable. In support of this finding, it is found that since his childhood Kallappa Monappa Patil was brought up by Khobani Kagankar, who had a son by name Narayan. Monappa; father of Kallappa Patil, married another woman when Kallappa was a child of tender age; the child was brought up by Khobani Kagankar; when the recruitment to the KEB took place during 1979 for the posts of linemen, though Kallappa Monappa Patil was selected, his name was wrongly furnished as that of the natural son of Khobani Kagankar and that was how in the service records, the name of the son of Khobani Kagankar was mentioned instead of mentioning it as Kallappa Monappa Patil.
Indeed, during 1983 itself, the workman filed an affidavit before the management as per Ex. W. 1 with a request to rectify the mistake in the service record. This affidavit was signed by M.W. 4-Sri Ramayya Peddanna Pujari. Even this witness has deposed before the Labour Court that he had signed the affidavit for having identified the workman with regard to the change of his name and that the said affidavit had been forwarded to Divisional Office for correction of the name of the workman. Indeed, the workman had got affidavit of his father and himself filed as per Exs. W. 13 and 14. It was thus amply proved before the Labour Court that there was no impersonation and that there was no fraud or misrepresentation on the part of the workman in obtaining the appointment by furnishing wrong name. It is further amply clear from the findings recorded by the Labour Court that though an affidavit had been filed in the year 1983 by the workman requesting for correction of the name in the service record, no action was taken till the year 2007 and it was only during 2007, the management thought of refusing employment to the workman that too by issuing oral direction without holding any enquiry and without ascertaining the truth. Therefore, the Labour Court has rightly come to the conclusion that action of the management in orally refusing work and terminating the service of the employee on the ground that he had furnished wrong name and that there was impersonation was untenable.
If really, there was such a misrepresentation or impersonation on the part of the employee, the management could not have kept quite for nearly 28 years. The workman has continuously worked for 28 years. The service book was opened by the management and the workman was paid wages and other benefits. The management never disputed this aspect. Even W.W. 3-Narayan Khobani Kagankar, who is the natural son of Khobani Kagankar, has deposed before the Labour Court that he never applied for recruitment as an assistant lineman and never joined as assistant lineman. This demonstrated, as rightly held by the Labour Court, that there was no such impersonation on the part of Kallappa Monappa Patil - the workman. More than anything, the management could not have terminated the services of the employee-workman on the ground that he had impersonated one Narayan Khobani Kagankar without holding an enquiry. If only an enquiry had been held the truth would have emerged as back as in the year 1983. In such circumstances, as the findings recorded by the Labour Court are based on evidence on record both oral and documentary it is not open for this Court to interfere with such findings of fact and to disturb the award passed.
The award passed directing reinstatement and also to correct the name of the workman in the service records cannot be found fault with. The workman was out of duty from 2007 till the date of the award i.e., 26th April 2011.
The Labour Court has rightly disallowed the backwages as the workman has not rendered any service during this period and as the mess was created by the workman himself in not correctly furnishing his name and in continuing to serve at least till 1983 without seeking correction of his name in the service record. He cannot take advantage of his own mistake and claim backwages for the period during which he has not worked. It cannot be forgotten that HESCOM is a State Government undertaking and the authorities have refused work to him under the bona fide impression that there was discrepancy with regard to the name of the petitioner as entered in the service record and as claimed by the workman himself. Therefore, I do not find any illegality in the award passed by the Labour Court in denying the backwages. Insofar as other directions regarding reinstatement and continuity of service, correction of name etc. are concerned, I do not find any illegality. Hence, both the writ petitions i.e., W.P. No. 68374/2011 filed by the workman and W.P. No. 67468/2011 filed by the management challenging the award passed by the Labour Court deserve to be dismissed and are dismissed.
Insofar as W.P. No. 64491/2012 is concerned, the management has challenged the order passed by the Labour Court under Section 33(c)(2) of the Industrial Disputes Act directing the management to pay arrears of wages from 26.04.2011 till 31.10.2011 pursuant to the award passed by the Labour Court. No exception can be found to the direction issued by the Labour Court as it is in conformity with the award passed by the Labour Court. As the award passed is upheld, the computation made with regard to wages payable from the date of the award cannot be found fault with. Hence, this writ petition fails and the same is dismissed. Accordingly, all the writ petitions are dismissed.