Uttarakhand Forest Development Corporation & others vs Jaman Singh

MANOJ K. TIWARI, J. (ORAL)

This petition, under Article 227 of the Constitution of India, has been filed by the employer i.e., Uttarakhand Forest Development Corporation (from

hereinafter referred to as “Corporationâ€) against the award dated 15.05.2015 rendered by Presiding Officer, Industrial Tribunal-cum-Labour

Court, Haldwani (from hereinafter referred to as “Labour Courtâ€​) in Adjudication Case No. 23 of 2007.

During pendency of this petition, sole respondent â€" Jaman Singh died and his legal heirs were permitted to be brought on record vide order dated

05.12.2016 passed by this Court. Since necessary amendment has not been carried out in the array of parties in the writ petition, therefore,

petitioner’s counsel is directed to file amended memo of parties in the Registry during the course of the day. With the consent of the parties, the

matter is being heard and decided at the admission stage itself.

Respondent raised an industrial dispute contending that his services have been orally terminated w.e.f. 01.07.1993. Upon failure of conciliation

proceedings, the dispute was referred for adjudication to the Labour Court, Haldwani by Deputy Labour Commissioner Kumaon, Haldwani vide order

dated 08.11.2006. English translation of reference order issued in respect of respondent â€" Jaman Singh is as follows:-

“Whether termination of services of the workman â€" Jaman Singh by the employer w.e.f. 01.07.1993 is legal and justified? If not, then what

relief/compensation the workman is entitled to and with which other particulars?â€​

The said reference was registered as Adjudication Case No. 23 of 2007. Parties filed their written statements before learned Labour Court. The

workman in his written statement stated that he was engaged as Cook in the Corporation w.e.f. 01.10.1983 and he served in the said capacity

continuously upto 30.06.1993. He further stated that at the time of his termination, he was serving at Pipal Parao (West) Bhakra and his attendance

was regularly recorded in the attendance register. He contended that he was given benefits like uniform, bonus etc. by the employer. He further

stated that his services were orally terminated w.e.f. 01.07.1993, without assigning any reason, and his writ petition against termination was dismissed

by this Court on the ground of alternative remedy.

Employer (petitioner herein) in his written statement stated that workman had not worked continuously with him and he was engaged from time to

time, as per availability of work and his wages were accordingly paid to him and the workman has not worked for 240 days in any calendar year.

Employer further contended that respondent was not in his employment on or about 01.07.1993. It was further stated that workman has voluntarily

abstained from work and his services were never terminated. It was further contended that Corporation is a Government organization, therefore,

provisions of Industrial Disputes Act are not attracted to the present case. Lastly the issue of limitation was also raised in the written statement, by the

employer.

Sri Pramod Kumar Bhatt â€" Divisional Forest Development Manager was examined as Management witness, who was appointed much after

termination of service of the respondent. Learned Labour Court considered the statement made by Mr. Pramod Kumar Bhatt (MW1), where he had

stated that petitioner written statement was prepared on the basis of record. Learned Labour Court thus directed petitioner to produce the attendance

register and salary register of the concerned range, where respondent had served between October, 1983 to 30th June, 1993. However, petitioner did

not produce the concerned registers before the Labour Court. Learned Labour Court has thereafter considered that petitioner was aware about the

writ petition filed by the respondent against his termination and petitioner was also aware about the adjudication case pending before Labour Court,

therefore, Labour Court has doubted the stand taken by the petitioner that entire record has been weeded out/destroyed. Thus, adverse inference was

drawn against the petitioner and it was held by learned Labour Court that respondent had served as a daily wage employee in the petitioner’s

corporation for ten years and his services were terminated, without following the provision of Section 6N of the U.P. Industrial Disputes Act,

therefore, his termination is unjust and illegal.

Learned Labour Court upon considering the entire material on record decided the reference in favour of the workman (respondent herein) vide

award dated 15.05.2015. It was held that termination of services of the workman w.e.f. 01.07.1993 is unjust and illegal. However, on the question of

relief, it was held that instead of reinstatement, Rs.3.00 lacs be paid to the workman as compensation in view of the fact that he was a daily wager.

The award given by learned Labour Court is challenged by the employer, on the following grounds:-

(i) No documentary evidence was filed by the respondent to prove that he was employed with the petitioner, yet learned Labour Court erroneously

held him to be an employee of the petitioner.

(ii) In the absence of any order of termination, learned Labour Court erred in recording a finding that Section 6N of U.P. Industrial Disputes Act was

violated.

(iii) There is no evidence that respondent had worked for 240 days in a calendar year, however, this aspect was completely overlooked by the Labour

Court.

(iv) There was much delay in referring the dispute to the Labour Court, therefore, the dispute is barred by limitation and the Labour Court erred in

adjudicating the same.

(v) Uttarakhand Forest Development Corporation is a Government organization, therefore, it is not an “industryâ€, as defined under Industrial

Disputes Act.

The first submission made on behalf of the petitioner is without any substance. In para 3 and 4 of his written statement petitioner admitted that

respondent was engaged by him, although, it was denied that he worked for 240 days in a calendar year.

Learned Labour Court has considered and discussed the question of absence of termination order in great detail. Labour Court has considered the

deposition made by respondent workman that his services were orally terminated by Sri P.P. Lohani, Logging Manager of the Corporation and has

held that since no question was put to the respondent during cross-examination, on this vital aspect of the matter nor any witness was produced by the

petitioner on this aspect, therefore, learned Labour Court has recorded finding in favour of the respondent.

The third submission of the petitioner that respondent had not worked for 240 days in a calendar year, is also without any substance. Petitioner had

admitted that respondent was employed by him from time to time. According to the petitioner, for such appointment, on day to day basis, wages were

also paid to the respondent. Since no appointment order is issued to a person engaged on daily wages and Sri Pramod Kumar Bhatt (MW1) had stated

on oath that petitioner’s written statement was prepared on the basis of record, therefore, learned Labour Court called upon the petitioner to

produce the record. Petitioner did not produce the record, therefore, an adverse inference was drawn and finding was recorded that respondent had

worked for more than 240 days in a calendar year.

It is settled position in law that in exercise of power under Article 227 of the Constitution, this Court cannot act as an appellate court, therefore,

cannot review or reassess the evidence upon which the inferior court or tribunal has passed an order assailed before it, as held by Hon’ble

Supreme Court in the case of Raj Kumar Bhatia Vs Subhash Chander Bhatia reported in 2018 (2) SCC 87.

As far as submission regarding delay in making reference to learned Labour Court, is concerned, it has come on record that the workman had

challenged his termination w.e.f. 01.07.1993 by filing a writ petition, under Article 226 of the Constitution, which was ultimately dismissed by this

Court vide order dated 14.12.2004 by holding that petitioner being a workman can approach the Labour Court. Thereafter, petitioner raised industrial

dispute, which was sent for conciliation and upon submission of failure report, the dispute was referred for adjudication to the Labour Court. Thus, the

dispute remained alive and it cannot be said that a stale claim was referred for adjudication.

Hon’ble Supreme Court in the case of Ajaib Singh Vs Sirhind Cooperative Marketing-cum-Processing Service Society Limited & another

reported in (1999) 6 SCC 82 has considered and discussed the question of delay in making reference of an industrial dispute with reference to aims

and objects of Industrial Disputes Act.

The view taken in the case of Ajaib Singh (supra) has been reiterated by Hon’ble Supreme Court in the case of Raghubir Singh Vs General

Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301. Para 20 and 21 of the said judgment are extracted below:-

“20. Further, the Labour Court on an erroneous assumption of law framed the additional issue regarding the limitation in raising the dispute and its

reference by the State Government to the Labour Court. Thus, the Labour Court has ignored the legal principles laid down by this Court in the cases

referred to supra. The award passed by the Labour Court was accepted erroneously by both the learned Single Judge and the Division Bench of the

High Court by dismissing the civil writ petition & the letters patent appeal without examining the case in its proper perspective, keeping in view the

power of the State Government under Section 10(1)(c) and the object and intendment of the Act. Not adjudicating the existing industrial dispute on

merits between the parties referred to it may lead to disruption of industrial peace and harmony, which is the foremost important aspect in industrial

jurisprudence as the same would affect the public interest at large.

The Labour Court has failed to exercise its statutory power coupled with duty by not going into the merits of the case and adjudicating the points

of dispute referred to it while answering the additional Issue 2 framed by it regarding limitation. Therefore, it is a fit case for us to exercise the

jurisdiction of this Court for the reason of non-adjudication of dispute on merits between the parties with regard to the justifiability of the order of

dismissal passed by respondent.â€​

Similar view has been expressed by Hon’ble Supreme Court in the case of Jasmer Singh Vs State of Haryana & another reported in (2015) 4

SCC 458. Para 14 and 15 of the judgment are extracted below:-

“14. On Issue 3, after adverting to the case of State of Punjab v. Kali Dass, wherein the High Court has observed that the workman cannot be

allowed to approach the Labour Court after 3 years of termination of his services, upon which reliance placed by the respondent employer with

reference to the said plea, the Labour Court has rightly placed reliance upon the judgment of this Court in Ajaib Singh v. Sirhind Coop. Marketing-

cum-Processing Service Society Ltd. in which it is observed by this Court that there is no period of limitation to the proceedings in the Act.

Accordingly, Issue 3 is answered against the respondent management. The relevant paragraph from Ajaib Singh's case is extracted hereinbelow:

“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the

Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required

to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be

generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or Board,

dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding

his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full

back wagesâ€​.â€​

For the aforesaid reasons, challenge thrown to the award given by Labour Court on the ground of delay, is unsustainable.

Last submission of the petitioner is that Uttarakhand Forest Development Corporation, being a Government organization, cannot be termed as an

‘industry’. It is settled by catena of judgments that only sovereign functions of the State are not amenable to the jurisdiction of Labour Court

and they alone are excluded from the definition of ‘industry’. Hon’ble Surpeme Court in the case of Banglore Water Supply & Sewerage

Board, etc. Vs A. Rajjapa & others reported in (1978) 2 SCC 213 has interpreted the expression “industryâ€. In view of that definition, the

contention of the petitioner that it is not an “Industryâ€​ cannot be accepted.

Even otherwise also, Uttarakhand Forest Development Corporation is a commercial entity, which is engaged in the business of felling trees and

selling them as timber, fuel wood etc. in open market. This aspect has been dealt with by Hon’ble Supreme Court in the case of Uttaranchal

Forest Development Corporation & another Vs Jabar Singh & others reported in (2006) 12 SCC 112.

Learned Labour Court, upon considering the entire material on record, answered the reference in favour of workman/respondent and held his

termination w.e.f. 1.07.1993 to be unjust and illegal. Learned Labour Court on the question of relief held that in view of judgment rendered by

Hon’ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. Vs Man Singh reported in 2012 (132) FLR 500, respondent is not entitled for

the relief of reinstatement, however, in view of long services rendered by him, compensation amounting to Rs.3.00 lakh, was directed to be paid to

him.

Since learned Labour Court arrived at a conclusion that services of the workman was terminated illegally, therefore, ordinarily, the workman

would be entitled to reinstatement, with or without back wages. Since workman had served as daily wager for nearly a decade, therefore, Labour

Court ordered for payment of compensation, in lieu of reinstatement, which is in consonance with the law declared by Hon’ble Supreme Court.

For the aforesaid reasons, I do not find any reason to interfere with the impugned award. Consequently, writ petition fails and is hereby dismissed.

Since the workman has died during pendency of the writ petition, therefore, petitioner is directed to pay the amount of compensation to his legal

representatives (in equal share) within one month from the date of production of certified copy of this order.