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2019 DIGILAW 1924 (KAR)

BILAL EDUCATION SOCIETY v. ABDUL SATTAR MIYAN

2019-08-30

N.K.SUDHINDRARAO, S.SUJATHA

body2019
JUDGMENT S. Sujatha, J. - This intra court appeal is directed against the order passed by the learned Single Judge in Writ Petition No.205964/2016 (L-REF) dated 30.06.2017 whereby the petition filed by the appellants herein has been dismissed with costs of Rs.25,000/- to be paid to the respondent/workman within a period of two weeks. 2. The appellants had filed the writ petition challenging the order of the Labour Court dated 25.08.2016 in reference No.21/2014 whereby the appellants were directed to reinstate the respondent/ workman into service within four weeks from the date of enforcement of the award without backwages, with continuity of service with the last pay drawn, without costs. During the pendency of the writ petition proceedings despite providing sufficient opportunities to the appellants to comply with the provisions of Section 17 B of Industrial Dispute Act, 1947 ( the Act for short) the same was not complied with. In view of the same, the learned Single Judge has observed in paragraph Nos.4 to 6 thus: 4. The attitude of the petitioners towards this Court is condemnable. Despite repeated accommodation extended by this Court, to secure instructions, it is apparent that the petitioners are bent upon stone walling the efforts of the respondent. From the above act, the only inference that this Court can draw is that the petitioners have omitted to comply with the said statutory provisions of Section 17-B of the Act. In that view, this Court has no other option but to consider the prayer of the respondent. 5. It is settled law that the employer, is mandated to pay the wages as specified under the provisions of Section 17-B of the Act pending disposal of the proceeding before the higher forum. In the instant case despite providing several opportunities to the petitioners, as observed supra, the petitioners have not thought it fit to act fairly and thereby comply with the directions issued by this Court and the Court is constrained to adversely infer against the petitioners. 6. In view of the above conduct of the petitioners detailed above, it is apparent that the petitioners want to use payment of wages as a tool to suppress the workman. Such conduct and attitude which is in conflict with the provisions of law, cannot be appreciated by this Court and tantamounts to unfair labour practice and victimisation. 6. In view of the above conduct of the petitioners detailed above, it is apparent that the petitioners want to use payment of wages as a tool to suppress the workman. Such conduct and attitude which is in conflict with the provisions of law, cannot be appreciated by this Court and tantamounts to unfair labour practice and victimisation. The present writ petition is being used as a tool to abuse the process of this Court and thereby coerce the workman to come to terms. 3. With aforesaid observations, the writ petition has been dismissed. 4. Learned counsel for the appellants would submit that the respondent/workman would not come within the ambit of workman as defined under Section 2 (s) of the Act. 5. In view of the provisions of the Karnataka Education Act, 1983, the respondent is required to file an appeal before the Education Appellate Tribunal. The Labour Court grossly erred in entertaining the reference moved under section 10 (1)(c) of the Act granting reliefs as prayed. 6. Learned counsel would submit that the respondent had voluntarily resigned from service and material evidence placed on record, more particularly Ex.M2, Resignation Letter has not been properly appreciated by the Labour Court while deciding the matter. Learned Single Judge ought to have considered this aspect while disposing of the writ petition. There being no finding on the aspect whether respondent is a workman under the provisions of the Act, proceeded to dismiss the writ petition for want of compliance of Section 17-B of the Act. Hence, seeks for interference of this Court. 7. Learned counsel Sri P.Vilaskumar appearing for respondent would submit that the respondent was working as SDA in the appellant s institution. The nature of work of the respondent being not a teacher has to be construed as the non-teaching staff which certainly comes within the ambit of workman as defined under the provisions of the Act, in terms of section 2 (s) of the Act. 8. The nature of work of the respondent being not a teacher has to be construed as the non-teaching staff which certainly comes within the ambit of workman as defined under the provisions of the Act, in terms of section 2 (s) of the Act. 8. In view of the declaration by the Hon’ble Apex Court, in the case of Miss A.Sundarambal vs. Government of Goa, Daman and Diu and Others in Civil Appeal No.1776 (NL) of 1984 decided on 27.07.1988, that School is an industry within the meaning of clause (j) of section 2 of the Act ; the proceedings initiated by the respondent under the provisions of the Act, before the Labour Court cannot be held to be unjustifiable. It is submitted that the mandatory requirement of compliance of Section 17-B of the Act has not been followed. The learned Single Judge was right in dismissing the writ petition and the same requires to be confirmed by this Court. 9. We have heard the arguments advanced by the learned counsel for the parties and perused the material available on record. 10. The main crux of the dispute inasmuch as the maintainability of the dispute before the Labour Court under the provisions of the Act, is no more res integra in view of the decision of this Court in the case of Ramesh Revansiddappa Mullur vs. Basaveshwara Vidya Vardhaka Sangh in Writ Appeal No.2476/2001 decided on 08.10.2004 whereby the Division Bench referring to the judgment of the Hon’ble Apex Court in Miss A. Sundarambal case stated supra, has held that though technician is working in the school, he has to be construed as a workman as per the provisions of Act, 1947. 11. The Division Bench has held that the school being an industry and the dispute is an industrial dispute within the meaning of clause (k) of Section 2; it is trite that such person can avail legal remedies before the industrial Court by instituting an industrial dispute. 12. 11. The Division Bench has held that the school being an industry and the dispute is an industrial dispute within the meaning of clause (k) of Section 2; it is trite that such person can avail legal remedies before the industrial Court by instituting an industrial dispute. 12. Section 2 (s) of the Act reads thus: Sec.2 (s) Workman means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person.. (i) who is subject to the Air Force Act, 1950, (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or who, being employed in a supervisory capacity, draws wages exceeding (ten thousand rupees) per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. 13. In the light of Section 2 (s) as well as the judgments referred to above and the arguments of the learned counsel for the appellants that no industrial dispute raised by the respondent (non-teaching staff) is maintainable is wholly fallacious and cannot be countenanced. 14. As regards other contentions raised by the learned counsel for the appellants in response to Ex.M2 resignation letter, it is categorically held by the Labour Court that no original resignation letter was made available before the Labour Court, Ex.M2 being attested xerox copy, no credential value can be given to the said document. The same is not being made good by the appellants either before the Labour Court or before this Court. The contentions of the learned counsel for the appellants on this aspect also falls to ground. 15. The same is not being made good by the appellants either before the Labour Court or before this Court. The contentions of the learned counsel for the appellants on this aspect also falls to ground. 15. As regards delay and the other contentions in respect of requirement of following the mandatory provisions of section 17-B also does not hold good in view of our finding that the respondent is a workman under the provisions of Section 2 (s) of the Act and the dispute raised is an industrial dispute which has been rightly considered by the Labour Court. It was mandatory on the part of the appellants to comply with the statutory requirement of Section 17-B as observed by the learned Single Judge. Despite providing sufficient opportunities, the same has not been complied with. Hence, we do not find any jurisdictional error or irregularity in the order of the learned Single Judge and accordingly the writ appeal stands dismissed. 16. The compliance of the order of the learned Single Judge as well as Labour Court shall be made within four weeks from the date of the receipt of the certified copy of the order. 17. In view of disposal of the appeal, I.A.No.1/2018 stands dismissed.