Union of India and Another vs Mohd. Israr and Another

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties. This writ petition is directed against the award dated 25.11.1997 given by Presiding Officer C.G.I.T. cum-Labour Court, Kanpur in Industrial Dispute No. 14 of 1995. The matter which was referred to the Labour Court was as to whether action of petitioner employer terminating the services of its workman-respondent No. 1 w.e.f. 20.9.1987 was just and valid or not The Labour Court held that termination was bad as juniors had been retained. Accordingly, it directed reinstatement with back wages from the date of reference. Dispute was raised in 1993 and reference was made on 13.1,1995. Through interim order dated 7.7.1995 operation of the impugned award was stayed only in so far as it directed payment of backwages. The case of the workman was that "he was engaged as casual labour in Electrification department of the opposite party Central Rly Jhansi Division on 25.2.1985. In between 19.6.1986 and 18.10.1986 he had completed more than 120 days hence he had acquired temporary status. Instead of conferring temporary status upon the concerned workman opposite party illegally removed him from service on 20.9.1987 in breach of provisions of section 25-G of I.D. Act as junior to him were retained in service" (para 2 of the impugned award).

The petitioner contended and the Industrial Tribunal accepted the said contention that in order to acquire temporary status a workman had to complete 180 days, however, admittedly the workman concerned had not completed 180 days. Petitioner, further contended that workman was engaged on a project for a fixed period and the project had come to an end. The Industrial Tribunal did not believe the version of the witness of petitioner-employer to the effect that the workman concerned had been engaged on a particular project on the ground that particulars of the project were not given and muster roll record were not filed. In the last paragraph (para 7) of its award Industrial Tribunal held that the workman had completed more than 120 days hence he had acquired temporary status and according to the case of the workman, when he was removed from service Raju and Ayub Ansari were retained in service who were junior to him and as there was no rebuttal of the said evidence hence termination was bad for violation of section 25-G of the Industrial Disputes Act. As the workman had not completed 240 days hence provision of section 25-P of the Act were not attracted. As the workman had not completed 180 days hence he could not be conferred the temporary status as per Railway Rules. As far as retention of juniors is concerned the dispute had been raised quite late hence records might not have been available. Similarly records of the muster roll might not be available after so much time.

As far as section 25-G is concerned firstly it states that ordinarily junior most workman must be retrenched. The said section is not absolute in its application. Secondly, if a relief is to be granted u/s 25-G then it can not be indefinite it shall be confined only until the workmen junior to the workman concerned are retrenched. Thirdly, the workman did not give the date of first engagement of the two persons i.e. Raju and Ayub Ansari. Last but not the least it was not possible for petitioner to produce the records after about 10 years. The workman should have approached the Labour Court promptly, if he wanted to place reliance upon the documents of the employer. The workman did not even request for a direction to the employer to produce the record.

Even otherwise the Supreme Court in the following authorities has held that seven or more years delay in raising the dispute is fatal;

" Assistant Engineer, C.A.D., Kota Vs. Dhan Kunwar,

" Chief Engineer, Ranjit Sagar Dam and Another Vs. Sham Lal,

" State of Maharashtra Vs. Dattatraya Digamber Birajdar,

Learned Counsel for the petitioner has cited the authority in Ram Kumar and Others Vs. Union of India (UOI) and Others, . which support his case.

Learned Counsel for the workman-respondent has cited the authority of this Court in Regional Manager U.P.S.R.T.C., Moradabad Vs. State of U.P. and Others, = Regional Manager U.P.S.R.T.C., Moradabad Vs. State of U.P. and Others, . which has got no relevance with the controversy involved in this case. Accordingly, writ petition is allowed and the impugned award being utterly illegal and without jurisdiction is set aside. However, the wages/salary paid'' to the workman respondent No, 1 pursuant to the impugned award and the interim order passed in this petition shall not be refundable.