State of U.P. vs Presiding Officer,Labour Court,and Another

Rakesh Tiwari, J.—Heard the Counsel for the parties and perused the record.

This writ petition has been filed by the State of U.P. challenging the award dated 2741998 passed by the labour Court Dehradun in Adjudication Case No. 54 of 1988. The award was enforced by publication on the notice board on 9121998.

The facts of the case are that the following reference was made under Section 4K of the Industrial Disputes Act to the labour Court for adjudication on the following issue :

�KYA SEWAYOJKO DWARA APNE SHRAMIK SRI RAJ KUMAR PUTRA SRI AMAR SINGH KI SEWAE DINANK 1891992 SE SAMAPT KIYA JANA UCHITTACHA/ATHWA VAIDHANIK HAI, YADI NAHI, TO SAMBANDHIT SHRAMIK KYA HITLABH/ANUTOSH RELIEF PANE KA ADHIKARI HAI TATHA ANYA KIS VIVRAN WA TITHI SAHIT.�

The case of the petitioner before the labour Court was that Respondent No. 2/workman was engaged on 3121991 to work as peon in the department of the Executive Engineer, Minor Irrigation Division, Saharanpur for a period of 85 days. He was again engaged upto 1791992 thereafter.

The case of Respondent No. 2/workman is that he worked continuously without any break on the post of permanent nature, which is still in existence, but he was refused to work with effect from 1891992 without any reason. Neither chargesheet was given nor notice and no compliance of the provisions of Section 6N of the Industrial Disputes Act, 1947 was made before terminating his services.

The labour Court by the impugned award held that Respondent No. 2 was in continuous service since 3rd December, 1991 till 17 91992 and was restrained from work without compliance of the provisions of Section 6N of the Act.

It is submitted by the Standing Counsel on behalf of the petitioner that the award is an arbitrary, criptic and non speaking and that no reasonable opportunity had been given to the petitioner to controvert the allegations alleged by the workman despite repeated requests. The Standing Counsel has drawn the attention of the Court to an application dated 2341998 by which Sri Ramesh Kumar draftman appearing on behalf of the department is alleged to have been denied opportunity to file written statement as he was not in a position to file written statement before the labour Court on the date fixed. He further submitted that the award has been passed in a mechanical manner without appreciating the problems of the department. Lastly, it has been submitted that there is no sanctioned post in the department, casual employees have been appointed only on exigency of service as and when required and therefore, the workman cannot be given regular appointment.

The Counsel for the respondent submits that the workman had actually worked for 240 days in one calendar year and as such his services were terminated in violation of Section 6N of the U.P. Industrial Disputes Act. He was entitled for reinstatement in service with full back wages, which is the normal relief in such case, as settled by the Hon''ble Supreme Court in catena of cases. He further submits that inspite of sufficient opportunity granted by the labour Court, no written statement was filed by the department.

From perusal of the award, it appears that the employer did not submit the written statement before the labour Court inspite of several opportunities having been granted. The workman had submitted his written statement on 2331998 on affidavit, but no written statement was filed by the employer on that date. On an application time was granted and 1541998 was fixed for filing the written statement by the employer. On 1541998 time was again sought by the department. On the request of the employer the case was adjourned to 2341998. On this date again an application was filed by the employer for time to file written statement. Sri Ramesh Kumar Draftman on this date informed the Court that the concerned person dealing with the case of the department fell ill on 2241998 and as such written statement could not be prepared.

The labour Court interpreted this to mean that the concerned person was in the office upto 2141998 and he could have prepared the written statement and signed the same on 2341998. The labour Court, therefore, proceeded under Rule 12 (9) of the U.P. Industrial Disputes Rule, 1947, which provides that

�If the statement accompanied by the affidavit of the Union or the workman is not repudiated by the employer, the labour Court shall presume the contents of the affidavit to be true and make an award accepting the case stated in the written statement.�

From the perusal of the record, it is apparent that the employer did not file written statement inspite of the sufficient opportunity being granted to them by the labour Court and their contention that sufficient opportunity was not granted to them by the labour Court, is incorrect. At the time of admission, this Court had passed an interim order by which the impugned award was stayed directing the petitioner to comply with the provisions of Section 17B of the U.P. Industrial Disputes Act, 1947 and to deposit 25% of the back wages under the award before Respondent No. 1 within a month. Upon deposit of the aforesaid amount, it was to be paid to Respondent No. 2 without furnishing any security and in case of default either in making the deposit or complying with the provisions of Section 17B of the Act, the interim order shall stand vacated.

From the Applications No. 18497 of 2002 and 49836 of 2002 filed on behalf of the workman, it appears that the workman was not reinstated. Standing Counsel states that he is not in a position to inform the Court whether in pursuance of the interim order of this Court 25% back wages have been deposited or not. No illegality or infirmity in the award could be pointed out. The labour Court had proceeded under Section 12 (9) of the Rules after giving sufficient opportunity, hence the contention of the petitioner that sufficient opportunity was not granted, is not tenable.

Admittedly, the workman was engaged on daily wages initially for a specified period of 85 days. This period is to be excluded from total number of days he has actually worked as daily wager. The calculation of 240 days by the labour Court taking the period between the date of appointment and the date of alleged termination, is not correct. The Apex Court in AIR 1981 Supreme Court 1253, Mohan Lal v. The Management of M/s. Bharat Electronics Ltd., has held that

�Before a workman can complain of retrenchment being not in consonance with Section 25F he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. Section 25B is the dictionary clause for the expression `continuous service''.�

(Para 10)

�Both on principle and on precedent it must be held that Section 25B (2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant/date i.e. the date of retrenchment. If he has he would be deemed to be in continuous service for a period of one year for the purpose of Section 25B and Chapter VA.� (Para 14)

If the number of working days actually worked by the respondent are calculated in accordance with the observations of the Apex Court in the case of Mohan Lal (supra), his engagement could not be for more than 240 days.

For these reasons the labour Court has committed an illegality in calculating the number of working days for the purpose of Section 6N of the U.P. Industrial Disputes Act, 1947. Even if the employers had not filed their written statement, the labour Court was under bounded duty to have applied judicial mind while proceeding under Rule 12 of the U.P. Industrial Disputes Rules, 1947. The labour Court can proceed exparte under the aforesaid Rules, but has to apply the law correctly to the facts stated in the pleadings by any party should not be taken as gospel truth, hence while proceeding exparte the labour Court must be slow and extra cautions in dealing with the case.

The respondent/workman was a daily wager and this Court vide interim order dated 1471999 had directed payment of 25%wages to be paid to the workman.

For the reasons stated above, the workman has not stated anywhere in the affidavit that he was not gainfully employed as required under Section 17B of the U.P. Industrial Disputes Act, 1947. Substantial justice would be done between the parties, if the petitioners are directed to pay 25% of wages from the date of termination to the date of award.

The writ petition is partly allowed. The impugned award of the labour Court is modified to the aforesaid extent for payment of back wages and it is further provided that if there is work, the respondent/workman may be engaged on daily wage, if he applies within a period of two months from today.