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1987 DIGILAW 78 (KAR)

KARNATAKA STATE TOURISM DEVELOPMENT CORPORATION v. T. NARAYANA BHAT

1987-03-17

M.P.CHANDRAKANTARAJ

body1987
CHANDRAKANTHARAJ J. ,, J. ( 1 ) THIS matter coming up for orders has been taken up for final disposal by consent of counsel for parties. ( 2 ) THE petitioner is the Karnataka State tourism Development Corporation. It is aggrieved by the order of the Labour court, Bangalore, in Ref. No. 40 of 1985. By the ssid order dated 21st July 1986 the Reference has been answered in favour of the workman. In arriving at that conclusion, the Labour Court has relied upon the ruling of the Supreme court in the case of Govindaraju, ('lr 1986 Karnataka 1746) where the question of removal of the name of the appellant before the Supreme Court from the list of Badlis fell for consideration. Such removal was without an opportunity to the workman even to make a representation, muchless, face an enquiry on specific charges. ( 3 ) THE second party-employer-management of the Corporation corntended before the Labour Court as it has done in this Court, that the service condiiions governing the employees of the Karnataka state Tourism Davelopment Corporation provides for probation for a period of two years and therefore discharge of the workman in question was in accordance with the stipulation in the contract of employment and therefore fell into the exempted category under Section 2 (oo) (bb) of the Industrial Disputes Act. In support of that proposition two decisions of this Court rendered by two learned judges of this court have been relied upon. In case of C M. Jitendra Kumar v management of Bharat Earth Movers limited, this Court did hold that the service clause enabled the employer to terminate the services of a probationer for unsatisfactory performance would not attract the rigour of Section 25f of the industrial Disputes Act (hereinafter referred so as the 'act' ). It was reiterated in thfi case of Shankariah v K S. R. T. C. (See 1985 Labour and Industrial Cases 1833 and 1986 (1) LLJ 95 ). Having regard to the pronouncement of the Supreme Court in cases decided subsequently and on the proper analysis of the language of clause (bb) of Section 2 (oo) with utmost respect I should disagree with the rulings of this court cited above and declare that they do not lav down the correct law. Having regard to the pronouncement of the Supreme Court in cases decided subsequently and on the proper analysis of the language of clause (bb) of Section 2 (oo) with utmost respect I should disagree with the rulings of this court cited above and declare that they do not lav down the correct law. In Govindaraju's case, the Supreme court observed that the High Court had held that the Appellant's contract for employment contained a stipulation that his service were to be tarminated at anvtime and the termination did not amount to retrenchment in view of the exception to Section 2 (oo) of the Act to be found in clause (bb) of that Subsection. ( 4 ) THE Supreme Court also observed that the validity of Section 2 (oo) (bb) was also not challenged before the Supreme court. It further obsaived if the view of the High Court was accepted, it would enable unscrupulous employe' to provide a stipulation in the contract of service for terminating the employment of the employees to avoid the rigour of Section 25f of the Act resulting in the conferment of arbitrary powers on the employers which would be distructive of the protection granted by the Act to the employees. However, after making those observations the Supreme Court proceeded to give relief to the workman on the ground that Regulation 10 (5) was in violation of the guarantee of equality and equal protection under law under articles 14 and 16 of the Constitution of india. But the important thing is the observations made by the Supreme court. They are not mere obiter but it is with reference to the finding recorded by this Court and therefore that observation which I have extracted above is binding on this Court in terms of Article 141 of the Constitution of India. ( 5 ) IN that view of the matter, the labour Court had no choice, but to fall in line with the observations of the supreme Court and repel the contention advanced for the Employer-Management of the Karnataka State Tourism Development corporation. ( 5 ) IN that view of the matter, the labour Court had no choice, but to fall in line with the observations of the supreme Court and repel the contention advanced for the Employer-Management of the Karnataka State Tourism Development corporation. Even otherwise a careful analysis of the language of (bb), which is as follows:" (BB) termination of the service of of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein ; or (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "speaks of a contract between the employer and the workman, which may provide for tha termination by efflux of time, for which, the employee has been employed or other term or stipulation provided in such contract for termination. In otherwords, both the clauses deal with the same contract or envisages the relationship of employer and employee being governed by the terms of the specific contract between the two and cannot be construed as relating to relationship established by common regulations between the employer and employees, employer and workman within the meaning of that expression in the industrial Disputes Act. If it is so understood then the observations of the Supreme court have greater and more forceful meaning. The whole of the rigour of Section 25f may be overcome by every employer, provided any service regulations or standing orders, and provision for a long period of probation, during which, such probationary employee may be removed from service by discharge simplicitor notwithstanding the fact that there is section 25f operating in favour of employees who have put in more than one year continuous service. ( 6 ) THE construction which leads to rendering an important provision of the statute redundant should be avoided. Therefore, I am satisfied that the decision of the Labour Court, which is now impugned in this petition is not open to attack on the ground that is has contravened the law established by this Court in the aforementioned decisions. The petition is, therefore, rejected. --- *** --- .