Executive Engineer, U.P. State Electricity Board (Now U.P. Power Corporation Ltd.), Electricity Distribution Division vs Sri Ram Kumar Shukla and Labour Court (IV)

Janardan Sahai, J.—This petition has been filed against the award of the Labour Court reinstating the respondent No. 1 as a Jeep Driver of

the petitioner U.P. Power Corporation with full back wages. The question which was referred for adjudication to the labour court is whether the

termination of the services of the 1st respondent on 19.7.90 was justified and legal and If not to what relief he is entitled to. Before the Labour

Court written statements were filed by the employee petitioner and the workman respondent. The workman''s case was that he was employed as a

Jeep Driver on 13.8.89 and his services were terminated w.e.f. 19.9.90 by an oral order. According to the workman he had put in continuous

service for more than 240 days and the termination of his service is illegal as it was in breach of the provisions of Section 6N of the U.P. Industrial

Disputes Act inasmuch as neither notice nor pay in lieu thereof was given to him nor retrenchment compensation. A written statement was filed by

the petitioner in which it was denied that the respondent was ever appointed or had worked However the petitioner did not adduce any oral

evidence Oral evidence was adduced by the respondent No. 1. The respondent No. 1 also filed documentary evidence in proof of the fact that he

was employed with the petitioner. Respondent No. 1 filed copy of the order in misc. case No. 19/1995 in which his wages for the period 10.2.90

to 19.5.90 @ Rs. 35/- per day had been computed. He has also filed exhibit W3 to exhibit W61 which are receipt of payment and vouchers, Ex,

W2 is a certificate showing that the computed amount was recovered. The Labour Court relied upon these papers and the oral evidence of the

workman respondent and found that the case of the petitioner that the respondent was not in their employment was not proved and it believed the

case of the workman that he was so employed. The finding of the labour court is that in absence of any evidence adduced on behalf of the

employer the case of the respondent which was supported by evidence was reliable. The award of the Labour Court has been challenged by the

petitioner in this writ petition.

I have heard Sri S.C. Srivastava counsel for the petitioner and Sri A.K. Tewari counsel for respondent No. 2. It was submitted by counsel for

the petitioner that there is no finding or evidence that the workman respondent was in employment and had worked. Copy of the statement of the

workman respondent who was examined as WW-1 has been annexed with the writ petition. He stated that he has worked for more than 240 days

and that he was engaged from 13.8.89 @ Rs. 35/- per day and his services were terminated w.e.f. 19.9.90 and that he was not given any notice

nor any retrenchment compensation. He has filed along with the counter affidavit a large number of vouchers relating to the payment made to him at

the rate of Rs. 25/- per day relating to different dates between August, 1989 to July, 1990. These vouchers indicate that the respondent No. 2 was

working during this period and the case of the petitioner that he had not worked is not true. It is pertinent to state that the workman was not cross

examined by the employer and therefore the statement given by the workman was unrebutted. No oral or documentary evidence was adduced by

the petitioner. The case of the petitioner that the respondent No. 2 was never employed has been found to be false. In the circumstances the

findings recorded by the Labour Court that the case of the workman was proved does not suffer from any illegality.

The petitioner''s counsel did not dispute the fact that no notice or pay in lieu thereof or retrenchment compensation was paid to the respondent

No. 2. The provisions of Section 6N of the U.P. Industrial Disputes Act were not followed. Counsel for the petitioner relied upon the decision of

the apex court in H.U.D.A. Vs. Jagmal Singh, That was a case of Panjab & Haryana. It is not clear from the judgment whether that was a case

under the provisions of Industrial Disputes Act, 1947. The definition ot retrenchment u/s 2(oo)(bb) of the Central Act is quite different from the

definition of retrenchment u/s 2s of the U.P. Industrial Disputes Act. and definition of continuous service u/s 25B of the Central Act is different

from the definition of Section 2(g) of the U.P. Act. In Gammon India Limited Vs. Niranjan Dass, it has been held that retrenchment without

compliance of Section 25F of the Industrial Disputes Act is null and void. In Secretary, Krishi Utpadan Mandi Samity v. Presiding Officer, Labour

Court, Agra and Ors. writ petition No. 50405 of 2007 decided on 16.11.07 the consequence of non compliance of the provisions of Section 6N

of the U.P. Industrial Disputes Act and the relief to be granted was considered in the context of a daily wager and it was held that the relief is a

indiscretionary one and reinstatement cannot be granted as a matter of course and such relief may not be granted where the industry is dead or

there has been inordinate delay on the part of the workman in filing the claim and the position of the employer has changed or when the workman

has been in gainful employment and the ends of justice would be met by giving him lump sum compensation. Such cases would be those where the

workman has already got suitable alternative employment In these circumstances it may be just to give him lump sum compensation in lieu of

reinstatement. However it the workman has taken up some job which though not suitable has been taken up as a stop gap arrangement to make

both ends meet the ends of justice may not be met by giving him lump sum compensation. In Surendra Kumar Verma and Others Vs. Central

Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, , the apex court observed that there may be circumstances where

reinstatement with full back wages may not be granted. They were such cases where industry might have closed down or might be on severe

financial doldrums or where the workman may have better or other employment elsewhere. In R.M. Yellatti Vs. The Assistant Executive Engineer,

the employee was a daily wager whose services were terminated without following Section 25F. The apex court held in the facts that he was

entitled to reinstatement with 50% back wages. The period of service rendered in that case was longer. In General Manager, Haryana Roadways

Vs. Rudhan Singh, it was held that one of the important factors to be taken into consideration for considering the quantum of back wages to be

awarded is the length of service put in before the termination and the nature of the services whether regular or on daily wages has also to be

considered. In this case the workman had put in a very short period of service before his services (sic) terminated. In the circumstances the interest

of justice would be met by his reinstatement with 25 percent back wages. Accordingly the writ petition is partly allowed. The award of the labour

court is modified. The petitioner shall reinstate the respondent No. 2 but the respondent No. 2 will be entitled to back wages of 25% only.