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2023 Supreme(Kar) 212
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SURAJ GOVINDARAJ, J.
Karnataka State Road Transport Corporation & Ors. - Petitioners
Versus
S. Gangaiah, S/o. Sanjeevaiah & Ors. - Respondents
Writ Petition No.16250 of 2018 (L-KSRTC) c/w Writ Petition No.14466 of 2021 (L-KSRTC)
Decided On : 19-04-2023
For the Petitioner: Smt. Renuka H.R.
For the Respondent: Sri. Shekar L.
Point of Law: An Employee who is dismissed or removed from service but is reinstated on appeal or revision is entitled to count his former service for leave.
Headnote:
Industrial Disputes Act, 1947 - Section 33C(2) - Order of dismissal - Reinstate workman into services - Not entitled for encashment of leave - Seeking writ direction or order quashing order in Application passed by Principal – Reinstatement of a workman by setting aside order of dismissal would amount to an order of dismissal never having been passed - Para 20.
Finding of the Court: Labour Court in a proceeding under Section 33C(2) of Industrial Disputes Act has come to a conclusion that whenever there is a reinstatement with continuity of service, workman will be entitled to benefit of earned leave - Reinstatement of a workman by setting aside order of dismissal would amount to an order of dismissal never having been passed - If this is taken into consideration, former service would include service from date of reinstatement and before not service from date of dismissal and before - Apex Court in Narasagoud’s case held that there was a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that employee would be entitled to all the consequential benefits and came to a conclusion that during period of unauthorized absence, increment notionally earned could not be considered - Applying said decision here, if absence was otherwise then that attributed to workman, then consequential benefits would include all benefits including increment, earned leave, encashment of earned leave, etc., since it is on account of employer that employee has been prevented from working.
Result: W.P. dismissed.
ORDER :
1. The petitioner – KSRTC in W.P.No.16250/2018 is before this Court seeking for the following reliefs :
(a) A Writ in the nature of Certiorari or any other appropriate writ, direction or order quashing the order dated 19.6.2017 in Application No.3/2014 passed by the Principal Labour Court, Bangalore (Annexure H)
(b) Such other writ, direction or Order that this Hon'ble Court deem just and expedient in the circumstances of the case.
2. The petitioner-workman in W.P.No.14466/ 2021 is before this Court seeking for the following reliefs :
I. Issue a writ of Order in the nature of writ of certiorari quashing the impugned Endorsement No. A RAA SA/KAE KA/LA PA/SAMANYA/5146/18/19 dated 22.3.2019 passed by the first Respondent as contained under Annexure-A and impugned endorsement bearing No. KA RAA SA/BA KE V/SEBANDI/NIRVAKA/52/2019-20 dated 22.5.2019 passed by the second Respondent as contained under Annexure-B;
II. Issue a writ or order in the nature of writ of Mandamus directing the Respondents to pay the leave encashment benefit for the dismissal period on attaining the age of superannuation. Further directed the Respondents to pay the simple interest on the difference leave encashment amount from the date of superannuation till the date of payment;
III. Issue any appropriate writ, order, orders or directions as this Hon'ble Court may deems fit to grant by considering the facts and circumstances of the case and an order as to costs to meet the ends of justice.
3. The workman was appointed as a conductor and his services were confirmed in the year 1977. He having been subjected to disciplinary enquiry and charges being established, he came to be dismissed from service vide order dated 14.01.1991, which came to be challenged in I.D.No.34/1991. The Labour Court allowed the claim by directing the Corporation to reinstate the workman into services with continuity of service, consequential benefits and without backwages vide order dated 07.01.1993. The said award came to be implemented by the Corporation. The workman was accorded leave benefits for a period of 82 days from 14.01.1991 to 07.01.1993 with a condition that he can avail the leave but not entitled for the encashment of the said leave.
4. The workman in the meanwhile retired from service on 31.07.2012. As per leave rules, he having been found to be entitled for encashment of leave for a period of 240 days and by the circular, the same was enhanced to 300 days. He was accorded leave encashment benefit for another 6 days in terms of new circular and totally, he was paid leave encashment benefit for 246 days.
5. The workman filed an application No.3/2014 before the Labour Court, Bangalore claiming a sum of Rs.1,09,210/-towards the difference in leave encashment benefits.
6. The Karnataka State Road Transport Corporation (for short, ‘RTC’) filed its objections and evidence was recorded. The Labour Court allowed the claim and directed the Corporation to pay a sum of Rs.1,09,210/- with interest @ 12% p.a. from the date of retirement till the date of payment vide its order dated 19.06.2017 at Annexure-H. It is this order which is challenged by the RTC contending that the workman not having worked during the said period would not be entitled for encashment of leave but only entitled for availment of leave and the order passed by the Labour Court directing for payment of encashment of leave is bad in law. The workman is also before this Court seeking for the aforesaid reliefs.
7. Subsequent to the order of the Labour Court, the RTC has issued an endorsement on 22.03.2019 and 22.05.2019 wherein the RTC has rejected the claim of the workman for leave encashment during the period of dismissal. It is the said endorsement which is challenged by the workman in WP 14466/2021. The issue in both the matters are one and the same inasmuch as they relate to leave encashment.
8. Ms. H.R. Renuka, learned counsel for RTC would submit that :
8.1. The earned leave is a privilege which can be earned by a work
