IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 23 RD DAY OF NOVEMBER, 2015

BEFORE

THE HON’BLE MRS JUSTICE S SUJATHA

Writ Petition No. 31323/2015 (L-RES)

BETWEEN:

DINAKOOLI NOWKARARA SANGHA REPRESENTED BY ITS GENERAL SECRETARY ARCHAEOLOGICAL AND ANCIENT MONUMENTS DIRECTORATE KAMALAPUR, HOSPET TALUK -583 101.

….PETITIONER

(BY SRI K B NARAYANA SWAMY ADV.)

AND:

1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF CULTURE AND INFORMATION NO.1, GROUND FLOOR VIKASA SOUDHA BANGALORE-560 001

2. THE DEPARTMENT OF ARCHEOLOGY AND MUSEUMS REPRESENTED BY ITS DIRECTOR GOVERNMENT OF KARNATAKA 2

PALACE COMPLEX MYSORE-570 001

3. THE DEPUTY DIRECTOR ( DIVISION) DIRECTORATE OF ARCHEOLOGY AND MUSEUMS KAMALAPUR HAMPI, HOSPET TALUK BELLARY DISTRICT-583 101

4. THE COMMISSIONER THE DEPARTMENT OF ARCHEOLOGY AND MUSEUMS GOVERNMENT OF KARNATAKA PALACE COMPLEX MYSORE-570 001

….RESPONDENTS

(BY SRI T S MAHANTHESH AGA.)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF PRAYING TO QUASH THE COMMUNICATION DATED 31.03.2015 ISSUED BY THE R-4 VIDE ANNX-K AND OR TO PASS SUCH OTHER ORDERS AS DEEMED FIT IN THE CIRCUMSTANCES OF THE CASE. ISSUE A WRIT OF MANDAMUS TO THE RESPONDENTS TO PAY THE ACCRUED SALARY/WAGES (MINIMUM WAGES) FROM THE DATE OF AWARD I.E. 01.11.1999 TILL THE ACTUAL DATE OF REINSTATEMENT I.E. MAY 2012 ALONG WITH 12% INTEREST. DIRECT THE RESPONDENTS TO EXTEND THE MEDICAL BENEFITS AND PREPARE A SENIORITY LIST AS ORDERED BY THE LABOUR COURT IN I.D.NO.3/1990 DATED 31.08.1999 VIDE ANNX-A.

THIS PETITION COMING ON FOR PRELIMINARY HEARING, IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

Heard learned counsel for the parties.

2. Facts in brief :

Industrial dispute in respect of charter of demands placed by the petitioner/union was referred for adjudication before the Industrial Tribunal, Hubli, simultaneously another dispute came to be registered by the same industrial Tribunal on the second reference made by the Government of Karnataka. The Industrial

Tribunal, Hubli passed an award on both the references separately on 31.8.1999 in favour of the petitioner.

These awards were challenged by the respondents before this Court in two Writ Petitions. Both the writ petitions came to be dismissed by order dated 28.2.2006.

Respondents unsuccessfully challenged the orders passed in Writ Petitions before the Division Bench of this

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Court against which respondents preferred SLPs before the Apex Court and the SLPs were dismissed on

14.2.2011 confirming the orders passed by this Court as well as the award passed by the Labour Court. Though the SLPs were dismissed on 14.2.2011, the respondents reinstated 76 workmen out of 106 workmen on minimum wages in the month of May 2012. A legal notice was issued by the petitioner on 6.1.2014 calling upon the respondents to pay the wages from the date of award i.e., 1.11.1999 till the date of reinstatement i.e.,

May 2012 besides claiming medical allowances and to maintain seniority list of the workmen. The respondents having not responded to the notice, petitioner approached this Court in W.P.No.32198/2014 and this

Court disposed of the writ petition directing the petitioner to make representation to the respondents and directed the respondents to consider the same and pass appropriate orders in accordance with law. In

5 compliance with the orders passed by this Court, petitioner made a representation for payment of wages and for medical allowances and further to maintain the seniority list of the workmen. The respondent after considering the representations made by the petitioner, rejected the claim of the petitioner and issued the communication dated 31.3.2015 denying the relief sought by the petitioner which is impugned in this writ petition.

3. Learned counsel appearing for the petitioner contended that the award passed by the Industrial

Tribunal, Hubli in I.D.No.3/90 and I.D.No.503/91 directing the respondent to provide work to the workmen to whom the work was denied and further directing to stop contract system and maintain seniority list and also to provide medical services to the workmen and their family members is confirmed by the Hon’ble Supreme

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Court vide order dated 14.2.2011. In such view of the matter, it is incumbent on the respondent to pay the wages for the period from the date of publication of the award till the date of actual reinstatement i.e., from

1.11.1999 to May 2012. Despite the representation made, the respondent has rejected the claim on the ground that the Karnataka Government Servants

Seniority Rules, 1997 is not applicable to the daily wagers and further, the respondent is not liable to make any payment of wages from 1.11.1999 to May 2012 since no daily workers have worked during that period and more particularly, the Tribunal nor this Court has awarded any backwages to the workmen. It is contended that the respondent has totally misconceived the award passed by the Tribunal. It is pointed out that the petitioner is not claiming any backwages as interpreted by the respondent, it is only the wages which they are entitled to from the date of passing of the award till the

7 date of reinstatement. The inaction on the part of the respondent in not reinstating the workmen in compliance of the award was for the reason of challenging the award unsuccessfully, would not absolve the respondent from the payment of the wages which the workmen are entitled to from the date of the passing of the award. It is totally misconstrued by the respondent that the workmen are claiming the backwages though the backwages are not awarded either by the Tribunal or by this Court. It is further contended that the award being confirmed by this Court and further by the Apex

Court, it was the responsibility of the respondent to reinstate the workmen in full letter and spirit of the award. Rejecting the claim on flimsy grounds, would cause great hardship to the workmen who were made to suffer in the litigation process up to the Supreme Court for no fault of theirs. Accordingly, he seeks for setting

8 aside the communication at Annexure ‘K’ and to allow the writ petition.

4. On the other hand, learned Government

Advocate appearing for the respondent contended that the award passed by the Industrial Tribunal was challenged by the respondent before this Court and further before the Apex Court and the Apex Court though has dismissed the appeal confirming the orders passed by this Court as well as the Industrial Tribunal, it is held that the question of law raised is/are left open.

Further, it is contended by the learned counsel that daily wage employees are not entitled for any seniority list or medical services as awarded by the Tribunal in view of the provisions of Karnataka Civil Servants Rules such as Karnataka Government Servants (Seniority Rules),

1957 and Karnataka Government Servants (Medical

Attendants) Rules, 1963. Learned counsel has placed

9 reliance on the Karnataka Daily Wage Employees Welfare

Rules, 2013 to contend that a daily wage employee in such circumstances shall not be entitled for any promotion during his remaining service. Accordingly, he seeks for dismissal of the writ [petition supporting the impugned order at Annexure – K.

5. Considering the rival submissions made at the bar, it is noticed that the awards were passed by the

Industrial Tribunal, Hubli on 31.8.1999. This was challenged by the respondents before this Court in Writ

Petitions being confirmed in Writ Appeals and in SLPs filed before the Apex Court. Thus, the respondent has challenged the awards unsuccessfully and thereafter, has reinstated the workmen in May 2012 in compliance with the award passed on 31.8.1999, published on

01.11.1999 Thus, it is the case of the workmen that they

10 are entitled to the wages from the date of publication of the award till the date of reinstatement.

6. The Apex Court in the case of M L Bose and

Company (Private) Ltd., Calcutta vs its employees reported in AIR 1961 SC 107 has held that, “after the award became operative, the workmen were entitled to reinstatement by the appellant, but the appellant obtained an order for stay from this Court unconditionally. In such a case we do not see any reason for depriving the workmen of their full wages from the date the award became operative to the date of their reinstatement”.

7. In the case of APSRTC vs B Vikram Reddy reported in (2003)11 SCC 570, the Apex Court has held that the Corporation having not taken any steps for execution of the award and not reinstated the appellant

11 into service as directed by the Labour Court, the award being not challenged by the corporation and in the absence of any material on record to show as to why the corporation cannot implement the award, it has held that the workman is justified in getting the full wages from the date of publication of the award till reinstatement is effected.

8. In view of the Judicial pronouncements made by the Apex Court, it could be held that the respondent having unsuccessfully challenged the award passed in the Industrial Tribunal on 31.8.1999 published on

01.11.1999 is bound by the terms of the award which is confirmed by the Apex Court. The award categorically directs the respondent to provide work to the workmen besides maintaining seniority list and providing medical service to the workmen and their family members. In such view of the matter, for the delay or inaction on the

12 part of the respondent in not reinstating the workmen immediately in compliance with the award passed by the

Tribunal, the workmen cannot be deprived of their full wages which they were legally entitled to i.e., from the date the award became operative to the date of reinstatement. No cause is shown or explanation is offered by the respondent for not reinstating the workmen immediately within 30 days from the date of publication of the award. Challenging the award before the higher Courts would not be a reason to deny the benefits flowing from the award unless there is any modification of the award by the higher Courts. The award having been confirmed by the Apex Court, the respondent cannot take a ground that the seniority is not applicable to the daily wage employees, Karnataka

Daily Wage Employees Rules, 2013 on which reliance is placed by the respondent has come into effect from the date of their publication in the Official Gazette

13 i.e., 22.2.2014. These rules cannot be applied retrospectively to the facts of the present case. Even denying the benefit of the award on the ground that the seniority in the cadre cannot be made applicable to the daily wage workmen in view of the Karnataka Civil

Services Rules, is also not worthy of acceptance in view of the award being confirmed by the Apex Court.

9. It is unfortunate that the respondent is giving evasive reply to the representation on the issue of providing medical services to the workmen and their family members, on the premise of taking, a policy decision at the Government level since the Karnataka

Government Servants (Medical Attendants) Rules, 1963 is not applicable to the workmen. It is the total disregard to the orders passed by this Court as well as the Apex Court. It is the bounden responsibility of the respondent to provide

14 medical services to workmen who are working in hazardous condition in Archeological department. In the circumstances, rejecting the claim of the workmen, necessarily calls for interference by this Court.

Accordingly, Annexure – K is set-aside. Writ petition is allowed. The respondent is directed to pay minimum wages to the workmen as per Annexure “G” to the Writ

Petition from November 1999 to May 2012 besides providing medical services and is also directed to maintain the seniority list of the workmen as directed by the Tribunal as expeditiously as possible.

Sd/- JUDGE

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