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CASE NO.: Appeal (civil) 1808-1810  of 1998

PETITIONER: KARNATAKA POWER TRANSMISSION CORPORATION LTD.  & ANR.

       Vs.

RESPONDENT: THE AMALGAMATED ELECTRICITY CO. LTD.  & ORS.

DATE OF JUDGMENT:       15/12/2000

BENCH: K.G.Balakrishna, S.R.Babu

JUDGMENT:

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     K.G.  BALAKRISHNAN, J.

     Decision  of the Karnataka High Court is challenged in these  appeals.   The  first   respondent,  the  Amalgamated Electricity   Company  Ltd.,  was   engaged  in  supply   of electricity  in Belgaum city.  In the year 1971, there arose some  labour dispute.  According to the workmen the  Company declared  a  lockout,  whereas the management of  the  first respondent  Company  contended that some of the workers  had resorted to strike and refused to come for work.  By the end December,    1971,    the    management    of   the    first respondent-Company  started  the  business   with  about  65 workmen and the other workers were not allowed to join duty. The  first  respondent-Company contended that these  workers were  offered  employment,  but they refused to  join  duty. Disputes  relating  to  these issues were  referred  to  the Industrial  Tribunal and in I.D.  No.  11/71, the Industrial Tribunal, Bangalore, passed an award on 17.2.1978 and it was held  that  there  was  no lockout  declared  by  the  first respondent-Company.   Meanwhile, on 18.12.1974, pursuant  to the  Karnataka  Electricity Undertaking  (Acquisition)  Act, 1974,  the  management of the first respondent,  Amalgamated Electricity  Company  Ltd., was taken over by the  Karnataka Electricity  Board whereby all the assets and liabilities of the  Amalagamated Electricity Company Ltd.  vested with  the Karnataka  Electricity Board.  According to the workmen,  29 employees  offered  themselves  to work with  the  Karnataka Electricity  Board, but they were not allowed to work.   The appellant, Karnataka Electricity Board, contended that these workers  could  not be allowed to join duty in view  of  the then  pending Industrial Dispute.  After the passing of  the award  in I.D.  No.  11/71, the workmen again made a  demand that  they  must be permitted to join duty in the  Karnataka Electricity Board.  However, the workmen were not allowed to join  duty and in view of the demand made by the workers,  a

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fresh Reference was made as to whether the management of M/s Amalgamated  Electricity  Company  Ltd.,   Belgaum  and  the Karnataka  Electricity  Board,  were justified  in  refusing employment to the 29 workmen named therein, with effect from 25.3.1971.   The  Industrial  Tribunal at Hubli  passed  its award  on  6.3.1991.  It held that except one  worker,  K.S. Shinde,  who was in gainful employment elsewhere, all  other workers  were entitled to reinstatement and 50% of the  back wages from 7.10.1978 till their reinstatement.

     The  award  of the Industrial Tribunal was  challenged before  the High Court and the learned Single Judge  refused to interfere with the award.  In an appeal filed against the judgment  of  the learned Single Judge, the  Division  Bench also  refused  to  interfere with the award  passed  by  the Tribunal.  Hence these appeals.

     We  heard  the  learned  counsel  for  the  appellant, Karnataka  Electrcity  Board  and also the counsel  for  the first respondent-Company.  Learned counsel for the appellant contended  that  in view of the earlier  Reference,  namely, I.D.  11/71, the second Reference was wholly unnecessary and as it was on the same subject matter, the general principles of  res judicata would apply.  Therefore, he contended  that the  award passed in I.D.  32/86 is not enforceable in  law. The   29  workers  were  admittedly   the  workers  of   the Amalgamated  Electricity Company Ltd., which was engaged  in the  supply of electricity in Belgaum.  The counsel for  the appellant  contended  that there was an illegal  strike  and despite the offer made by the appellant, the workers refused to  join duty.  The learned counsel for the workmen, on  the other  hand, contended that there was an illegal lockout and in  spite  of  the fact that these workers were  willing  to work, they were denied employment from 25.3.1971 onwards.

     In  the Reference under I.D.  No.  11/71, the  dispute was  whether  there  was  a  lockout or  not  by  the  first respondent-Company  and  it  was  held  that  there  was  no lock-out  as  alleged by the workmen.  It may be noted  that the  workmen were not allowed to work right from  25.3.1971. Some  of  the workers were transferred and some of them  are alleged to have been dismissed from service.  Therefore, the dispute  continued,  and in the Second Reference,  i.e.   in I.D.   32/86, the question for consideration was whether the Amalgamated      Electricity       Company       or      its successor-in-interest,  Karnataka  Electricity   Board,  was justified in refusing employment to the workmen.

     We  do  not think that the subsequent Reference  under I.D.   32/86  had anything to do with the earlier  Reference made  as I.D.  11/71.  The second Reference was warranted in view  of  the  stand taken by  the  Amalgamated  Electricity Company  and  the  Karnataka Electricity  Board  that  these workmen  were  not entitled to join duty.  Therefore, we  do not  think that the principles of res judicata have got  any application in the instant case.

     It  was  further contended that there was a  delay  of several  years  in raising the dispute and,  therefore,  the Tribunal should not have directed reinstatement of all these workers.   It  was  also  contended  that  at  the  time  of

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acquisition  and  taking  over  of  the  management  of  the Amalgamated  Electricity Company, these workmen were not the workers   of  the  Amalgamated   Electricity  Company   and, therefore,  the  Karnataka  Electricity Board has  no  legal obligation to reinstate them in service.

     It  is true that these workmen were not working in the Amalgamated  Company at the time when the management of  the Company  was taken over on 18.12.1974 as they were illegally denied  employment.   Nevertheless, the Company was  legally bound to reinstate these workers as early as from 25.3.1971. The  award  of the Tribunal shows that they  were  illegally denied  employment  with  effect from 25.3.1971.   When  the Karnataka  Electricity Board took-over the management of the Amalgamated   Electricity   Company,   these  workers   made themselves  available for work, but they were not allowed to join  duty  by the Karnataka Electricity Board.  The  entire assets  and  liabilities  of   the  Amalgamated  Electricity Company  were taken over by the Karnataka Electricity Board. Even  as  per Section 25 FF of the Industrial Disputes  Act, 1947, where the ownership or management of an undertaking is transferrred,  whether by agreement or by operation of  law, from  the employer in relation to that undertaking to a  new employer,  every workman who has been in continuous  service for  not less than one year in that undertaking  immediately before  such  transfer  shall  be  entitled  to  notice  and compensation  in accordance with the proivisions of  Section 25  F  thereof.   These  workers  were  not  paid  any  such compensation  as per Section 25 F.  Their services should be deemed  to have been not interrupted by such transfer.   Had the  Amalgamated Electricity Company Ltd.  been  functioning in  Belgaum, the said Company would have been legally  bound to  engage  these workers as their workmen by virtue of  the award  passed  by the Tribunal.  The  Karnataka  Electricity Board  being the successor-in-interest is bound to reinstate these workers as per the award passed by the Tribunal.

     In  the instant case, the workmen sought reference  of the  dispute  long  after  it  arose  between  the  parties. Therefore,   the  appellant   Karnataka  Electricity   Board contended that the workers should not be allowed back-wages. It was also pointed out that this Court in similar cases had even awarded back wages only upto 25%.  In the instant case, the  back wages have been directed to be paid from 7.10.1978 till  the date of reinstatement.  Many of the employees have now crossed the age of superannuation and only few remain to be reinstated.  Having regard to the facts and circumstances of  the  case, payment of 40% of back wages would  meet  the ends  of  justice.   We are told that out of 29  workers,  8 persons  have  died.  One K.S.  Shinde, S.  No.  28  in  the Statement   showing   the  service    particulars   of   the respondent-workmen,  was in gainful employment and held  not entitled to get the back wages.

     Having regard to these facts, we direct the appellant, Karnataka  Electricity Board to reinstate M.Y.  Lohar (S.No. 8);   P.P.   Karadi (S.No.  10);  K.S.  Khade  (S.No.   14); K.B.   Chavan  (S.No.  18);  Prakash J.  Naik  (S.No.   19); P.P.   Patil (S.  NO.  20);  B.S.  Tamhankar (S.No.  21) and Pratap P.  Jamadar (S.No.  22) in service within a period of one  month.  In the case of P.  F.  Gawali (S.No.  23 )  the claim  for  reinstatement  is not pressed.   The  appellant, Karnataka  Electricity  Board is also directed to give  back

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wages  to  these employes at the rate of 40% from  7.10.1978 till their reinstatement.

     Out of the 29 workers have either retired or died.  We direct  that  legal representatives of the deceased  workers are  entitled to get back wages till the respective dates of death of the deceased workers.  The workmen who have reitred shall  be entitled to get back wages from 7.10.1978 till the notional date of their retirement.

     The appeals are dismissed accordingly with no order as to costs.