Divisional Logging Manager vs Presiding Officer and Another <BR>The Divisional Logging Manager, U.P. Forest Corporation Vs The Dy. Labour Commissioner and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties.

First Writ Petition

This writ petition is directed against award dated 18.1.2001 passed by Presiding Officer, Labour Court, U.P., Varanasi in adjudication case No. 13 of 1998. The matter which was referred to the Labour court was as to whether the action of Petitioner employer terminating the services of its workman-Respondent No. 2-Bheem Singh (Field Assistant) with effect from 31.7.1992 was just valid or not? The dispute was raised after five years in the form of C.P. Case No. 11 of 1997. The case of the workman was that he had worked as field assistant from 2.5.1989 to 31.7.1992 without any break and his services were terminated orally without payment of any retrenchment compensation and that after his termination some new employees were also engaged and in this manner provision of Section 6-N, 6-E and 6Q of U.P. Industrial Disputes Act were violated. The case of the employer was that for collecting the tendu leaves the work load is mainly increased since the second week of May till the end of June hence during this period additional hands are engaged and Respondent No. 2 was also similarly engaged and that after abolition of post of Field assistant the workman on his request was engaged as chowkidar on daily wage basis however he himself left the job. It was further contended that since after 31.12.1988 there was ban on appointment in the forest corporation hence thereafter no new persons except persons belonging to Scheduled caste and Scheduled tribe were engaged on daily wages.

According to the certificate filed by the workman himself he had worked till 31.7.1991. The certificate was issued on 18.3.1993. Workman also filed some affidavit of Principal of a college showing that on 8.8.1991 he participated as volleyball player in the games on behalf of Forest Corporation. Respondent No. 2 also stated that in March, 1992 he participated as member of the Volleyball team of the forest corporation in some sports meet. Workman also examined one Harindar Singh claiming that he was Captain of the Volleyball team. In respect of plea of delay raised by the employer, Labour court held that during this period workman was assured that he would be given employment. However, absolutely no application in that regard was shown to have been given by the workman.

When the workman himself filed experience certificate showing that he had worked till 31.7.1991, he could not assert that he had worked for one more year i.e. till 31.7.1992. If in-fact workman had worked until 31.7.1992, he would not have accepted the certificate showing his working till 31.7.1991. Even if it is assumed that the workman had worked until 31.7.1991 still when he asked for certificate of working in the year 1993 it clearly meant that he had abandoned the job otherwise instead of asking for certificate of his experience for his past services he would have asked for employment. In any case the dispute was raised quite late.

The Supreme Court in several authorities some of which are mentioned below has held that if the only defect in the termination order is non payment of retrenchment compensation as required by Section 25F of Industrial Dispute Act (or Section 6 N of U.P.I.D. Act) then it is not always necessary to direct reinstatement with full back wages and that in such situation more often than not proper relief may be to award consolidated damages/compensation particularly when the employer is Government or Governmental agency and relevant rules have not been followed before appointment.

- Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U.P. and Others,

- Haryana State Electronics Development Corporation Ltd. Vs. Mamni,

- Sita Ram and Others Vs. Moti Lal Nehru Farmers Training Institute,

- Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another,

In Senior Superintendent, Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and Ors. AIR 2010 SC 2140 it has been held that if daily wagers had worked for 2 or 3 years and their services were terminated without payment of retrenchment compensation then consolidated damages should be awarded to them (Rs. 40,000/- to each of the workman was awarded in the said case). It has also been held that daily wager does not hold a post and can not be equated with permanent employee. This view has been reiterated in Incharge Officer v. Shankar Shetty 2010 (9) JT 262.

In this case on 9.3.2011 when the arguments were heard the following order was passed:

9.3.2011

Heard learned Counsel for the parties. Learned Counsel for the workman-Respondent has placed on record photostate of the certificate dated 18.03.1993 which according to him was filed before the Labour Court. Another document is list of the names of players in the Petitioner''s concern in which against the item Volleyball, name of the workman-Respondent is mentioned as one of the players. Sri V.K. Singh, learned Counsel appearing for the Petitioner states that under interim order passed in writ petition No. 30043 of 2002, Petitioner deposited an amount of Rs. 3.9 lacs. According to the said order workman was entitled to withdrew 25% amount without furnishing security and 75% by furnishing security. Learned Counsel for the workman stated that 75% amount has not yet been withdrawn. Learned Counsel for both the parties stated before starting the argument that connected writ petition i.e. writ petition No. 30043 of 2002 would also stand disposed of with the final judgment passed in this writ petition. Accordingly, file of the said writ petition has also been summoned from the office and arguments in that writ petition have also been heard judgment reserved.

Even otherwise the Supreme Court in Haryana Urban Development Authority Vs. Om Pal, has held that even if the employer is not at fault still some consolidated amount may be directed to be paid to the workman. Accordingly, it is held that the amount of about Rs. 1 lac paid to the Respondent No. 2 under interim order is sufficient compensation/damages. Writ petition is accordingly allowed. Impugned award is set aside and substituted by a direction of payment of about Rs. 1 lac which has already been paid to the Respondent No. 2. No further amount need be paid to Respondent No. 2. The rest of the amount shall at once be returned to the Petitioner by the Deputy Labour Commissioner, Pipri, Sonebhadra.

Second Writ petition:

This writ petition is directed against recovery proceedings initiated by the workman for enforcement of the award challenged through first writ petition. It is directed against recovery certificate dated 24.6.2002 issued by Deputy Labour Commissioner, Mirzapur Chetra Pipri Sonebhadra in R.D. Case No. 1 of 2002.

In view of the judgment in first writ petition, second writ petition is disposed of with the direction that apart from about Rs. 1 lac (the 1/4th of deposited amount of Rs. 3.9 lacs) which has been withdrawn by the workman Respondent Bheem Singh, the rest of the amount shall be returned to the Petitioner by Deputy Labour Commissioner, Mirzapur region, Pipri, Sonebhadra.