State of U.P. vs Presiding Officer and Others

Sibghat Ullah Khan, J.—Heard Sri S.P. Mishra, learned standing counsel for the Petitioner State and Sri R.S. Yadav, learned Counsel for the workman Respondent No. 2.

This writ petition is directed against award dated 31.05.1999 given by Presiding Officer, Labour Court (IV), Kaptur in Adjudication Case No. 2 of 1998. The matter which was referred to the labour court was as to whether the action of the employer Petitioner (State of U.P. through Executive Engineer, Lift Irrigation Division-2, Kanpur) terminating the services of its workman Respondent No. 2, Devendra Singh, beldar w.e.f. 05.05.1992 was just and valid or not. The dispute was raised in the year 1997 (C.P. 251 of 1997). The reference was made on 10.01.1998. The case of the workman was that he was appointed on permanent post of beldar on 01.11.1987. The case of the employer was that the workman was engaged off and on according to the need and after 1991 he had not worked with them as the establishment on which he was working as daily wager was transferred to another unit.

The labour court held that the transfer of Umarhat Pump Nahar Minor to Laghu Dal Khand Nahar on 02.01.1991 was immaterial as both the units were functioning under Chief Engineer, Lift Irrigation Department. Muster-roll from 1981 to 1992 was summoned but could not be produced by the employer. The labour court held that even though the Petitioner was a daily wager but as he had completed 240 days of work, hence he should have been paid retrenchment compensation which was not done. The labour court also held that as the dispute was raised after 5 years of termination, hence the workman was guilty of latches. Order of reinstatement was passed by the labour court but no back wages were awarded and only an amount of Rs. 2000/- was directed to be paid in lieu thereof. Through interim order dated 08.12.1999, operation of the impugned award was stayed unconditionally.

Labour court did not record the finding that services were terminated on 05.05.1992. The workman did not deny that since 02.01.1991, the unit had been transferred. The workman did not say as to whether he was also transferred to new unit and whether he worked there or not. However, the employer was also not justified in raising the technical plea of transfer of previous establishment to new unit as both units were under supervisory control of the same Chief Engineer. Workman took the plea that he was a permanent employee which he could not prove.

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 25 F 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 AIR 2010 SC 2140 Senior Superintendent, Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and Ors. 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 JT 2010 (9) 262.

Accordingly, I am of the opinion that the award of reinstatement cannot be sustained but workman Respondent is entitled to reasonable compensation/damages, which are quantified at Rs. 1 lac.

Writ petition is therefore allowed. Impugned award is set aside and substituted by a direction to the Petitioner employer to pay damages/compensation of Rs. 1 lac/- to Respondent No. 2. within three months through draft or deposit the same within the same period before the labour court for immediate payment to the Respondent No. 2 failing which 1.5% per month interest shall be payable thereupon since after three months till actual payment/deposit/realisation.