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Karnataka High Court · body

2015 DIGILAW 249 (KAR)

Vasudev v. Mahadevi

2015-03-05

B.S.PATIL

body2015
ORDER 1. Petitioner is a Students Information & Guidance Bureau. It was operating at Belgaum. Respondent herein was taken as a Class IV employee. According to the respondent, she was working as a clerk/typist at the time when the petitioner refused to continue her in work. Her grievance before the Labour court was that in the month of May, 1995 she applied for maternity leave, but the Management granted only 4 days leave. After 1½ month from the date of delivery, she went to the office on 20.07.1995 for reporting to duty, but the Management did not allow her to work and asked explanation for her absence. According to her, her services were orally terminated without accepting the information given by her that she had delivered a child and therefore, was compelled to take leave. 2. The case of the Management was that the employee had never worked in their establishment on full time basis; the activity of the Management did not fall within the definition of ‘industry’, there was no relationship of employer and employee between the Management and the claimant. They also urged that respondent employee did not apply for maternity leave at any time and that there was no refusal of employment to her. 3. The Labour Court framed necessary issues as to whether the claimant was a workman within the meaning of Section 2S of the Industrial Disputes Act and whether her services were terminated with effect from 20.07.1995 illegally and also regarding her entitlement for the relief sought. 4. Claimant examined herself. The Management examined two witnesses in support of its case. On consideration of the evidence on record, the Labourt Court by referring to several judgments of various High Courts and the Supreme Court has come to the conclusion that the claimant was indeed in service in the establishment of the petitioner and that the Management had indeed issued a Character Certificate during March, 1996 as per Ex.W4. It was found that she was paid `500/per month, later it was enhanced to `850/per month as admitted by the witness of the Management. Thus, the Labour Court found that relationship of employer and employee has been established. As regards the status of the petitioner as an ‘industry’, the Labour Court has rightly held by referring to the decision of the Apex Court in the case of BANGALORE WATER SUPPLY AND SEWERAGE BOARD Vs. Thus, the Labour Court found that relationship of employer and employee has been established. As regards the status of the petitioner as an ‘industry’, the Labour Court has rightly held by referring to the decision of the Apex Court in the case of BANGALORE WATER SUPPLY AND SEWERAGE BOARD Vs. A.RAJAPPA & OTHERS – AIR 1978 SC 548 that the activities of the Management fell within the definition of the term ‘industry’. The Labour Court has appreciated the evidence on record to come to the conclusion that the respondent – employee was indeed denied work and therefore, there was oral termination of the employee from her duty. 5. Evidence was placed by the Management regarding gainful employment of the workman in a telephone booth and in that regard M.W.2 was examined. Even the witness examined in this regard only spoke to the employment of the claimant between 1995 and 1996. The Labour Court did not attach much importance to the said document and has come to the conclusion that there was no material to show that the claimant was gainfully employed from the date of termination till the date of award passed by the Labour Court. Therefore, it persuaded itself to direct reinstatement with full backwages and continuity of service. 6. Though served, respondent has remained absent and there is no representation for her. I have heard the learned counsel for the petitioner and perused the entire materials on record. 7. It was strenuously contended by the learned counsel for the petitioner that petitioner was not a profit making organization. It was established for the purpose of extending help to the students without any profit motive. He further points out that the respondent was gainfully employed and indeed M.W.2 has deposed to this effect before the Labour Court. 8. On perusal of the impugned award passed by the Labour Court, I find that the Labour Court has indeed discussed the evidence on record including the effect of various documents produced. It has come to the right conclusion that petitioner – establishment was an industry and there was relationship of employer and employee between the petitioner and the respondent. However, while granting the relief, Labour Court has awarded full backwages with effect from January, 1997 when claim petition was filed till reinstatement. It has come to the right conclusion that petitioner – establishment was an industry and there was relationship of employer and employee between the petitioner and the respondent. However, while granting the relief, Labour Court has awarded full backwages with effect from January, 1997 when claim petition was filed till reinstatement. This Court has passed an interim order of stay of reinstatement subject to compliance with Section 17B of the Act. The respondent has not come forward with any grievance that provisions of Section 17B were not complied with or that she has been otherwise not gainfully employed. 9. It is submitted by the counsel for the petitioner that demand draft sent to the address of the respondent towards last drawn wages have been returned. In such circumstances, having regard to the long gap between the date of termination and the date of award as also the date on which this petition is disposed of, I am of the view that ends of justice would be met, if the award of the Labour Court is modified holding that the respondent – employee would be entitled to 50% backwages, instead of full backwages awarded. 10. In the result, this petition is disposed of modifying the award passed by the Labour Court to the extent that the respondent is entitled for 50% backwages. The award of the Labour Court setting aside termination of the employee is confirmed. Award of reinstatement is left undisturbed. Petitioner is directed to pay the backwages and call upon the respondent to resume her duties within 60 days from today.