Supreme Court - Daily Orders
State Of U.P. vs Om Pal Singh on 15 September, 2015
Author: Kurian Joseph
Bench: Kurian Joseph, Amitava Roy
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5772 OF 2008
STATE OF U.P. APPELLANT(S)
VERSUS
OM PAL SINGH RESPONDENT(S)
WITH
CIVIL APPEAL NO. 5773/2008
J U D G M E N T
KURIAN JOSEPH, J.
CIVIL APPEAL NO.5772 OF 2008 The State has come in appeal aggrieved by the judgment of the High Court of Uttaranchal at Nainital in Writ Petition No.982 of 2002. Originally, the writ petition was filed before the High Court of Judicature at Allahabad as Writ Petition No.995 of 1991. The appellant challenged the award passed by the Industrial Signature Not Verified Tribunal, Meerut, U.P. The first respondent workman Digitally signed by Vinod Kumar Date: 2015.09.19 13:53:23 IST pursued the remedy before the Tribunal against the Reason: alleged illegal termination of his services with effect 2 from 23.03.1988. The Labour Court found that the practice of intermittent breaks followed by the appellant amounted to unfair labour practice and that the employees junior to the first respondent were still working in the department. The award was passed for reinstatement with back wages. The High Court in the impugned order endorsed the view taken by the Labour Court, having also analysed the evidence appreciated by the Labour Court and dismissed the writ petition by judgment dated 23.09.2005.
This Court had stayed the payment of back wages at the time of notice. The learned senior counsel appearing for the State contends that the first respondent workman was engaged for a specific period and for a specific project. The project work having been completed, there was no occasion for continuing the first respondent and, therefore, it is not a case of termination. We are afraid the contention raised by the learned senior counsel cannot be appreciated. The factual matrix as available from the award of the Labour Court reads as follows:
“So far as the main issue is concerned the dispute is regarding the termination of services of workman on 23.3.1988. Workman has 3 clearly stated in the written submission that he had worked continuously from the period 11.2.1987 to 23.3.1988, therefore the service period becomes more than one year. The service period had been extended for 5 times for 60days each and 2 times for 30 days each. 1St appointment letter is for 11.2.87 and 11.4.87, second appointment letter is for 12.4.87 to 11.6.87, 3rd appointment letter is for 12.6.87 to 1.8.87, 4th appointment letter is for 24.8.87 to 23.9.87, 5th appointment letter is for 15.10.87 to 14.12.87, 6th appointment letter is for 21.12.87 to 20.2.88, 7th appointment letter is for 24.2.88 to 23.3.88.
WW-1 in statement had clearly stated that the work for which he has been employed is of continuous nature and therefore the workman has worked continuously from 11.2.87 to 23.3.88. Therefore the appointment in parts for 2/1 months is unfair labour practice. Management in the cross examination of EW 1 had clearly stated that it is correct that from 11.2.87 to 23.3.88 and thereafter also regarding filing, salary, bill dairy, Dispute etc. The earlier arrangement of the employment had been discontinued with respect to the workman, which is absolutely invalid and illegal. WW-1 had stated clearly that the employees junior to him are still working with the Dept. and the same had been admitted by the management in the cross examination. Attendance register calling on from the management had not been submitted and it was informed that register could not be 4 traced. In this position the whole statement on oath of the EW-1 will have to be admitted that he had worked continuously. In addition to that workman had shown in para I same gap in the service period which is in total 42 days. Even if the above period is excluded from the service period the total work days is still continuing and junior employees are still working then the work termination of workman will be involved retrenchment and in the same rules regarding retrenchment were not followed. Therefore it is invalid and illegal. Workman had stated that he is unemployed since the date of termination of service.
In this view of the matter, the contention that the engagement of the first respondent was for only a particular project cannot be appreciated at all. We therefore do not find any ground to interfere with the well-reasoned award passed by the Industrial Tribunal and as endorsed by the High Court. However, we do not find it proper in the facts of the case to sustain the award of back wages in the facts of the present case. Therefore, the award is modified only to the extent that the first respondent shall not be entitled for the back wages for the period he was not actually in service and for all other purposes his services shall be treated as continuous.
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The appeal is disposed of accordingly. No costs.
CIVIL APPEAL NO. 5773/2008 The State has come in appeal against the judgment dated 13.07.2006 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No.15060 of 2001. The matter pertains to the alleged illegal termination of the first respondent. The Labour Court, U.P. Kanpur Nagar by award dated 20.12.2000 having analysed the evidence available on record found that the termination of the first respondent with effect from 08.04.1998 was in violation of Section 4-K of the U.P. Industrial Dispute Act, 1947 and awarded reinstatement with full back wages. On facts, we find that it is a case where the first respondent had been in continuous service with effect from 27.11.1995 till the date of his termination in the year 1998. The Labour Court has found that the retrenchment of the first respondent despite availability of work was wholly unjustified and illegal. The High Court having regard to the factual matrix decided not to interfere with the award except 6 for the back wages, which was limited to 50%.
In the facts and circumstances of the case as revealed from the records, we are not inclined to take a different view than what was taken by the High Court in modifying the order on back wages and sustaining the award in all other respects. As rightly held by the High Court, it is a case of unjust denial of work.
Therefore, the appeal is dismissed. However, we make it clear that in case the first respondent has been paid any amounts either pursuant to the interim order or based on Section 17B of the Industrial Disputes Act, 1947 the same shall be duly adjusted from the amount payable to the first respondent in terms of the impugned judgment of the High Court.
No costs.
.......................J. [KURIAN JOSEPH] .......................J. [AMITAVA ROY] September 15, 2015 New Delhi.
7 ITEM NO.104 COURT NO.11 SECTION XV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 5772/2008 STATE OF U.P. Appellant(s) VERSUS OM PAL SINGH Respondent(s) (with office report) WITH C.A. No. 5773/2008
(With Interim Relief and Office Report) Date : 15/09/2015 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE AMITAVA ROY For Appellant(s) Mr. S.R. Singh, Sr. Adv.
Mr. Ardhendumauli Kumar Prasad,Adv. Mr. Kunal Verma, Adv.
For Respondent(s) Mr. Anurag Dubey, Adv.
Ms. Anu Sawhney, Adv.
Mr. M. Dubey, Adv.
Ms. Meenakshi Panikar, Adv.
Mr. Rakesh K. Sharma,Adv.
Mr. S. R. Setia,Adv.
UPON hearing the counsel the Court made the following O R D E R C.A. No.5772 of 2008 is disposed of while the C.A. No.5773 of 2008 is dismissed in terms of the signed order.
(Ashok Raj Singh) (Tapan Kumar Chakraborty)
Court Master Court Master
(Signed Order is placed in the file)