1

IN THE HIGH COURT OF GULBARGA BENCH

DATED THIS THE 23 RD DAY OF JANUARY, 2014

BEFORE

THE HON’BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR

WRIT PETITION NO.84093/2009 (L-TER)

BETWEEN:

Rajashekarayya S/o Marutayya Hiremath Age: about 41 years, Occ:Nil R/o Araladinni, Post: Yelagur, Tq. , Dist: . …Petitioner (By Sri R.B. Anneppanavar, Advocate)

AND:

1. The Assistant Executive Engineer, UKP Sub-Division No.2, Alamatti Alamatti, Dist:Bijapur.

2. The Managing Director, Krishna Bhagya Jala Nigam Ltd., Regd. Office PWD Office, Annex III floor, K.R.Circle, Bangalore-1. 2

3. The Secretary to Department of Irrigation, Govt. of Karnataka M.S. Building, Bangalore-1.

... Respondents (Sri Sanjay M. Joshi, Advocate for R2 R1 & R3 are served)

This Writ Petition is filed under Articles 226 & 227 of the Constitution of , praying to quash the impugned order dated 30.03.2007 in Ref.No.111/1999 produced as Annexure-A issued by the Labour Court, Bijapur and etc.

This Writ Petition coming on for Preliminary hearing in ‘B’ Group this day, the Court made the following:

ORDER

The award of the Labour Court, Bijapur in

Reference No.111/1999 dated 30.03.2007 is called in question in this writ petition. By the impugned award, the Labour Court has rejected the reference not only on the ground of delay and laches but also on merits.

2. The case of the petitioner is that he was working as Work Inspector on daily wage basis (Nominal Muster 3

Roll Basis) since 21.03.1982 to 20.11.1983 till his termination from service; the petitioner’s services were terminated without following the due procedure as contemplated under Section 25-F of the Industrial

Disputes Act, 1947 (for short the ‘Act’) though the petitioner has completed 240 days of continuous service within one year prior to termination.

3. Sri R.B. Anneppanavar, learned Advocate for the petitioner submitted that the Labour Court is not justified in dismissing the reference on the ground of delay and laches inasmuch as the material on record is sufficient to prove that the petitioner has worked for

240 days continuously within one year prior to his termination with respondent; the Labour Court atleast ought to have awarded compensation under the facts and circumstances of the case. 4

Sri Sanjay M Joshi, learned Advocate appearing on behalf of the respondent has opposed the writ petition.

4. Both the learned Advocates have taken the Court through the material on record and submitted their arguments.

5. According to the petitioner he worked as daily wage employee from 21.03.1982 to 20.11.1983.

According to him he has completed B.Com degree in the year 1986. He did not choose to raise the dispute prior to 1998. Per contra, the petitioner initiated conciliation proceeding in the year 1998 only. Which means the petitioner has approached the Court/authority after 15 years from the date of his alleged termination from service. Absolutely no valid reasons are forthcoming for such a long delay in raising the dispute. In this context,

Sri Sanjay M Joshi is justified in arguing that stale 5

matter may not be rejuvenated after the lapse of 15 years, more particularly, when the Labour Court has refused to entertain the reference.

6. According to the petitioner he has worked for 240 days continuously prior to the date of his termination and that the management has suppressed the material inasmuch as it has not produced any material before the Labour Court. Such suppression of materials by the management should have adverse impact on the case of the management. In other words, the petitioner’s counsel submits that adverse inference needs to be drawn against the management since it has not produced documents before the Court.

Such a submission, in the normal course, would have been entertained if the petitioner were to approach the Labour Court in a reasonable period. As per PWD manual (Appendix-II Sl.No.272), the Nominal Muster 6

Roll shall be preserved for five years. Thereafter, the

Nominal Muster Rule may be destroyed. Here is a case wherein the petitioner has not approached the Labour

Court within a reasonable time. On the other hand, he chose to remain silent for 15 years. Only after destruction of the documentary material by the management the petitioner has approached the Labour

Court with a contention that he has worked for more than 240 days during the aforementioned period. It is the specific contention of the respondent that the petitioner was never employed by the respondent and has never worked. In cases where there is a serious dispute or doubt as to the employee-employer relationship and the records of the employer becoming relevant, the long delay would come in the way of maintenance of the same. Under such circumstances, to make them available to the Labour Court or

Industrial Tribunal to adjudicate the dispute 7

appropriately would be impossible. The situation of that nature would render the claim stale. This is exactly the situation arising in the present case.

Similar is the view taken by the Apex Court in the case of Assistant Executive Engineer, Karnataka Vs.

Shivalinga (2003 SCC (L & S) 87) . Except the oral evidence of the claimant and his witness (WW-2) no other material is forthcoming. WW-2 was stated to be a co-employee. He was retired at the time of his deposition. According to WW-2, there were nine Section

Officers during the relevant time and 25 to 40 daily wage workmen worked under each supervisor. He is unable to remember as to under whose supervision the petitioner worked. Such a vague evidence rendered by

WW-2 is rightly disbelieved by the Labour Court.

7. Moreover, at one point of time the workman has admitted that he was a regular student of B.Com course 8

during the year 1983-1986. If it is so, he would not have worked as daily wager for 1½ years in the year

1983-1986. However, at the subsequent stage of deposition he has come out with a new stand that he studied as an external candidate in the year 1983.

Such change of stand by the workman while in the witness box is rightly not appreciated by the Labour

Court. Be that as it may, since the impugned award passed by the Labour Court is just and proper under the facts and circumstances of the case and for the reasons mentioned supra, no interference is called for.

Petition fails and the same stands dismissed .

Sd/- JUDGE swk