Writ Petition No. 11756 of 2017 · The High Court
Case Details
- 1 - NC: 2025:KHC:16439 WP No. 11756 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE B M SHYAM PRASAD WRIT PETITION NO.11756 OF 2017 (L-TER) BETWEEN: SRI. H. S. RAMESH S/O SIDDEGOWDA AGED ABOUT 50 YEARS NO.34, HUYILALU VILLAGE, NAGAWALA POST, YELWALA HOBLI, MYSURU - 571 130. …PETITIONER (BY SRI. GOVINDARAJ K., ADVOCATE) AND: M/S. THE DECORATIVE LAMINATES (INDIA) PRIVATE LIMITED REGD. OFFICE NO.67 YELWAL ROAD BELAVADI MYSURU - 570 019 BY ITS DIRECTOR. …RESPONDENT (BY SRI. SOMASHEKAR, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 16.02.2017 PASSED BY INDUSTRIAL TRIBUNAL, MYSORE IN SERIAL APPLICATION NO.1/2016 AS PER ANNEXURE - E. Digitally signed by VANAMALA N Location: High Court of Karnataka - 2 - NC: 2025:KHC:16439 WP No. 11756 of 2017 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD ORAL ORDER The petitioner [a workman with the respondent] is aggrieved by the order dated 16.02.2017 in Serial Application No.1/2016 [Annexure-E] on the file of the Industrial Tribunal, Mysuru [for short, 'the Tribunal]'. The Tribunal's impugned order in rejecting the petitioner’s Memo dated 03.02.2017 reporting settlement and seeking closure of the proceedings under Section 33(2)(b) of the Industrial Disputes Act, 1947 [for short, 'the ID Act'] has reasoned thus: "xxxxxxxxx Perused the order sheet of Assistant Labour Commissioner and Conciliation Officer, wherein nothing is agreed by the parties regarding settlement of this case. The said order sheet discloses that the management has agreed to take back the respondent to work as other workers should not suffer. It - 3 - NC: 2025:KHC:16439 WP No. 11756 of 2017 does not disclose anything in respect of action in this case. Moreover, management has contended that order of dismissal is not revoked by them, as such the Application cannot be dismissed since it is ready to prove the case by adducing evidence. Hence, Memo filed by the respondent does not survive. Hence, I pass the following: Sri K.Govindaraj, the learned counsel for the petitioner, submits that the respondent has issued the Order dated 02.04.2016 [Annexure-A] dismissing the petitioner, who was working as an Operator, from service enclosing two cheques for a sum of Rs.12,996/- and Rs.15,533/- informing the petitioner that an application under Section 33(2)(b) of the ID Act is filed with the Tribunal. 2. It is undisputed that the concerned Trade Union has filed an application with the Assistant Labour Commissioner and the Conciliation Officer, Mysuru for commencement of conciliation proceedings which is registered by the concerned - 4 - NC: 2025:KHC:16439 WP No. 11756 of 2017 officer resulting in issuance of a notice, and that thereupon the conciliation proceedings are conducted. These proceedings are because the workmen with the respondent have gone on strike between 04.04.2016 and 12.04.2016 and for half day on 15.04.2016. The following is seen from the order dated 15.04.2016 in the conciliation proceedings. [a] The petitioner has tendered an apology with a request for reinstatement, and the representative of the respondent has represented that the petitioner will be reinstated subject to the condition that all the workmen adhere to the respondent’s regulations. [b] The workmen have also agreed to the same with they assuring the respondent's representative that they will continue to discharge the duties efficiently. - 5 - NC: 2025:KHC:16439 WP No. 11756 of 2017 [c] The respondent has agreed to reinstate the petitioner on 18.04.2016 while stating that this decision is because of the workman/other workmen's assurance to follow the requisite discipline. The Conciliation Officer, while recording these terms and observing that both the workmen and the respondent's representative have accepted these terms, has recorded in categorical terms that the dispute is closed amicably. The respondent has also accordingly reinstated the petitioner on 18.04.2016. 3. It is after these conciliation proceedings and the petitioner’s reinstatement with effect from 18.04.2016 that he has filed a memo which is opposed by the respondent. The respondent, in opposing this Memo, has asserted that it has reinstated the petitioner because it was brought under pressure with the workmen going on strike and that it has not agreed to withdraw or revoke the - 6 - NC: 2025:KHC:16439 WP No. 11756 of 2017 dismissal order dated 02.04.2016. The Labour Court's reasoning, as aforesaid, is in the light of these circumstances. This Court, on 17.07.2017, has stayed further proceedings in Serial Application No.1/2016, and the petitioner has continued in service [as now stated] as a Casual Labour. 4. Sri K.Govindraj, relying upon the terms of the settlement, asserts that this settlement is an amicable resolution of the entire dispute viz., the petitioner's dismissal and with this, there will be no occasion for continuance of the serial application and as such, memo is filed. The learned counsel contends that the Labour Court could not have rejected the memo only because the respondent found it convenient to take the stand that the Conciliating Officer did not record withdrawal or revocation of the dismissal order dated 02.04.2016, and that the Labour Court should have examined the effect of the settlement. - 7 - NC: 2025:KHC:16439 WP No. 11756 of 2017 5. In rebuttal, Sri Somashekar, the learned counsel for the respondent, submits that the conciliation proceedings were because the workmen had gone on strike between 04.04.2016 and 12.04.2016 and there were also on strike as of 15.04.2016; that the settlement was only to reinstate the petitioner as a Casual Labour subject to the decision in the pending Serial Application No.1/2016. When queried, the learned counsel states that the petitioner has continued as a Casual Worker with the respondent from the date he was reinstated on daily wage basis, and even if this Court must interfere, it must be only to permit the petitioner to continue as a Casual Labour on daily wage basis. 6. These rival submissions are considered, and this Court opines that the outcome in the writ petition must turn on whether the settlement in the conciliation proceedings on 15.04.2016 was only to take back the petitioner on work as a Casual Worker - 8 - NC: 2025:KHC:16439 WP No. 11756 of 2017 on daily wage basis or for reinstatement, and if the answer to the question is in favour of the petitioner, the orders that have to be to ensure that the petitioner's interests are not prejudiced. 7. This Court must firstly observe that the terms of the settlement do not show that the respondent had agreed to take back the petitioner on contract subject to payment of daily wages and not to reinstate him; secondly if indeed the settlement was that the petitioner would only be taken back on contract, it should have been spelt out, and it is not. When this is not clearly spelt out, the respondent cannot take advantage of the fact that the Conciliation Officer has not recorded that the dismissal order dated 02.04.2016 is revoked; thirdly, the respondent has extracted a bargain not just from the petitioner but also the entire workmen to work effectively and in strict discipline while accepting that - 9 - NC: 2025:KHC:16439 WP No. 11756 of 2017 the settlement is a closure of the dispute with amicable resolution. 8. The dispute, because the Trade Union has begun the conciliation proceedings asking for such proceedings with a request for his reinstatement, can only relate to the petitioner's dismissal from service and not to as is now being projected in relation to the other workmen going on strike to support the petitioner. Therefore, this Court opines that the Labour Court's order rejecting the Memo and posting the matter further is overlooking these material aspects and cannot be sustained. The proceedings before the Labour Court must as such be closed. 9. On the question of the petitioner’s entitlement, this Court must opine that the petitioner must be reinstated as an Operator and he must also be admitted to continuity of service and consequential benefits from the date of his - 10 - NC: 2025:KHC:16439 WP No. 11756 of 2017 reinstatement, which is dated 18.04.2016, till the date of this order. The next question would be: whether he must be paid the salary accordingly during this period. 10. The respondent has filed Statement of objections on 14.10.2020 in these writ proceedings specifically contending that the petitioner is permitted to work as a Casual Labour on daily wages consequent to the conciliation proceedings on 15.04.2016. The records do not bear that the petitioner has applied for orders in the light of this defence. These must be the material circumstances, and in this Court's view these throw some light on the petitioner accepting a certain position subject to the outcome in this writ petition. 11. This would also be a material circumstance to ensure that the petitioner's interest is not prejudiced is addressed in a just and - 11 - NC: 2025:KHC:16439 WP No. 11756 of 2017 reasonable manner, but without an unjustified benefit. In the peculiarities of this case, this Court is of the view that the respondent must pay to the petitioner 25% of the difference amount [the difference being the amount that he would have been paid if he was continued as an Operator in terms of the conciliation proceedings dated 15.04.2016 and till date]. In the light of the afore, the following:
Decision
ORDER [A] The petition is allowed and the Tribunal's order dated 16.02.2017 [Annexure-E] in Serial Application No.1/2016 is quashed declaring that the petitioner shall be treated as reinstated with effect from 18.04.2016 as is agreed in such proceedings and admitted to all consequential benefits including continuity in service. [B] The respondent, for the period between 18.04.2016 and to this date, shall pay 25% of the difference between the amount that he - 12 - NC: 2025:KHC:16439 WP No. 11756 of 2017 would have been entitled as an Operator and the amount which is actually paid to him [C] The petitioner is reserved with liberty to file a certified copy of this order with a representation within four [4] weeks from the date of receipt of a certified copy of this order directing the respondent to pay the petitioner the amount as would be required in terms of this Court's direction as stated above. Sd/- (B M SHYAM PRASAD) JUDGE SA List No.: 1 Sl No.: 48