Allahabad High Court
State Of U.P. Thru' Director, Printing ... vs Uma Pati Pandey & Others on 21 January, 2014
Author: Rajes Kumar
Bench: Rajes Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD COURT NO.33 CIVIL MISC WRIT PETITION NO.75620 of 2010 State of U.P. Thru' Director, Printing And Stationery, Alld. ....Petitioner Vs. Uma Pati Pandey & Others. ....Respondents ************ Hon'ble Rajes Kumar,J.
Heard Ms. Suman Sirohi, learned counsel for the petitioner and Sri Sanjeev Singh, learned counsel appearing on behalf of the respondent nos.1 to 23.
By means of the present writ petition, the petitioner has challenged the order dated 12.05.2010 passed by Presiding Officer, Industrial Tribunal-I, U.P., Allahabad.
Brief facts of the case are that the respondent nos.1 to 23 were working as daily wagers with the petitioner. They have been engaged between 1985 to 1989. Their services have been dispensed with by oral order on 31.12.1998. From the record, it appears that respondent nos.1 to 23 raised industrial disputes in the year 2006 and the reference has been made in the year 2007, which have been registered as case no.20 of 2007 to 42 of 2007. Before the Industrial Tribunal the case of the respondents was that they have worked as daily wagers for more than 240 days in preceding calendar year and they have been retrenched without any reason and without giving any notice in violation of Section 6-N and Section 6-P of Industrial Disputes Act, 1947 (hereinafter referred to as the "Act"). It was also the claim of the respondent nos.1 to 23 that the services of juniors have been regularized and for no reason they have been retrenched. Tribunal has allowed the reference and has held that the respondents have been terminated illegally and, accordingly oral termination order dated 31.12.1998 have been set aside and they have been reinstated in the service with full back wages, which is impugned in the present writ petition.
Learned Standing Counsel submitted that in each case, the petitioner has filed reply giving complete details of the employment in each calendar year in para 3 of the written statement. The complete details of each respondent is annexed as annexure-12 to the writ petition. In the reply filed by the respondents, the said details have not been disputed and only vague assertions have been made that they have worked for more than 240 days. She submitted that the Presiding Officer has not recorded any finding that the respondents have worked for more than 240 days in preceding calendar year and, therefore, the respondents were not entitled for any notice as required under Section 6-N of the Act before the termination of their service. She further submitted that it is wrong to say that junior daily wagers have been retained and the seniors have been retrenched. Before the Tribunal, it was stated that only those workmen, who have been appointed by adopting the proper procedure against the vacancy, have been regularized and without any basis it has been observed by the Presiding Officer that the junior daily wagers have been engaged and the respondents/workmen have been ignored. She submitted that workmen are not entitled for any relief, inasmuch as they raised the industrial dispute after the lapse of eight years. The burden lies upon the workmen to prove that they have worked for more than 240 days in preceding calendar year. Reliance has been placed on the decision of the Apex Court in the case of Chief Engineer, Ranjit Sagar Dam And Another Vs. Sham Lal, reported in 2006 SCC (L&S), 1617. She further submitted that since the respondents have raised the industrial dispute after eight years, they are not entitled for any relief. Though there is no violation of Sections 6-N and 6-P of the Act, still if there was any violation, even then the order of reinstatement is wholly unjustified. The respondents/workmen are only entitled for the compensation. Reliance has been placed on the recent decision of the Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh, reported in (2013) 5 SCC, 136, the decision of the Apex Court in the case of B.S.N.L. Vs. Bhurumal, reported in (2013) (15) Scale, 131.
Sri Sanjeev Singh, learned counsel appearing on behalf of the respondent nos.1 to 23 relied upon the judgement of Presiding Officer and submitted that the respondents have been retrenched for no reason. They have worked for more than 240 days in preceding calender year and, therefore, their removal without following proper procedure under Section 6-N of the Act was not justified and Tribunal has rightly reinstated them in the services. He further submitted that in a recent decision in the Writ Petition No.4537 of 2012, State of U.P. Thru' Director, Printing And Stationery Vs. Gulrej Ahmad and another, decided on 05.02.2013, this Court has dismissed the writ petition and confirmed the order of the Presiding Officer reinstating the services of the workmen for the violation of Section 6-N of the Act.
I have considered the rival submissions and perused the record.
In my view the order of the Tribunal is not sustainable. In the claim petition, there is no dispute that the workmen have been engaged as daily wagers. In their claim petition, they have only stated that they have worked for more than 240 days in preceding calendar year without giving any details. In the written statement filed by the petitioner in para 3, the days in each calendar year on which the respondents have worked, have been given. The averments made in para 3 have not been disputed in para 1 of the reply filed by the respondents. They only reiterated that they have worked for more than 240 days in preceding calendar year.
It is settled principle of law that burden lies upon the workmen to establish that they have worked for more than 240 days in preceding calender year. Reliance is placed on the decision of the Apex Court in the case of Chief Engineer, Ranjit Sagar Dam And Another Vs. Sham Lal (Supra).
In the present case the workmen have failed to prove that they have worked for more than 240 days in preceding calendar year. Tribunal has also not recorded any finding in this regard that the respondents have worked for more than 240 days in preceding calendar year. Therefore, there is no violation of Section 6-N of the Act. The respondents also failed to prove that those workman, who were juniors and engaged as daily wagers subsequent to them, have been retained and regularized and they have been ignored and their services have been dispensed with. On such allegation, it was explained by the petitioner that in fact the services of only those persons have been regularized, who have been appointed after following the proper procedure against the vacant post and the service of none of the daily wagers have been regularized. Tribunal has also recorded the vague finding in this regard without giving details of any specific case. Therefore, the finding of the Tribunal in this regard is not sustainable. In this view of the matter, I find that there is no violation of Section 6-P of the Act.
Admittedly, the respondents have raised the industrial dispute in the year 2006, after eight years and the reference has been made in the year 2007. Apex Court in the case of Chief Engineer, Ranjit Sagar Dam And Another Vs. Sham Lal (Supra) has held that where the industrial dispute has not been raised within a reasonable time and after considerably period from the date of the retrenchment, the workmen are not entitled for relief of reinstatement.
In the case of Telecom District Manager, Vs. Keshab Deb, reported in (2008) 8 SCC, 402, the Court emphasized that automatic direction for reinstatement of the workman with full back wages is not contemplated. He was at best entitled to one months' pay in lieu of one month's notice and wages of 15 days of each completed year of service as envisaged under Section 25-F of the Industrial Disputes Act. He could not have been directed to be regularized in service or granted /given a temporary status. Such a scheme has been held to be unconstitutional by the Apex Court in A. Umarani Vs. Registrar, Coop. Societies, reported in (2004) 7 SCC, 112 and Secy., State of Karnataka Vs. Umadevi, reported in (2006) 4 SCC, 1.
In the case of Nagar Mahapalika Vs. State of U.P. And Ors, reported in (2006) 5 SCC, 127, it was held by this Court that non compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 (this provision is broadly pari materia with Section 25-F), although, leads to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the workman, the same would not mean that such relief is to be granted automatically or as a matter of course. It was emphasised that the Labour Court must take into consideration the relevant facts for exercise of its discretion in granting the relief.
The same Bench that decided Nagar Mahapalika (Supra)in Municipal Council, Sujanpur Vs. Surinder Kumar, reported in (2006) 5 SCC, 173, reiterated the above legal position. That was a case where the Labour Court had granted reinstatement in service with full back wages to the workman as statutory provisions were not followed. The award was not interfered with by the High Court. However, this Court granted monetary compensation in lieu of reinstatement.
In the case of Haryana State Electronics Development Corporation Ltd. Vs. Mamni, reported in (2006) 9 SCC, 434 following Nagar Mahapalika (Supra), the Apex Court held that the reinstatement granted to the workman because there was violation of Section 25-F, was not justified and modified the order of reinstatement by directing that the workman shall be compensated by payment of a sum of Rs.25,000/- instead of the order of the reinstatement.
In the case of Uttaranchal Forest Development Corporation Vs. M.C.Joshi, reported in (2007) 9 SCC, 353, the Apex Court was concerned with the situation which was very similar to the present case. The workman in that case was employed as a daily wager by the Uttaranchal Forest Development Corporation on 01.08.1989. His services were terminated on 24.11.1991 in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. He had completed 240 days of continuous work in a period of twelve months preceding the order of termination. The workman approached the Conciliation Officer on or about 02.09.1996, i.e., after a period of about five years. The Labour Court granted to the workman, M.C. Joshi, relief of reinstatement with 50% back wages. In the writ petition filed by the Corporation, the direction of reinstatement was maintained but back wages were reduced from 50% to 25%. This Court substituted the award of reinstatement by compensation for a sum of Rs.75,000/-*.
In the case of BSNL vs. Man Singh, reported in (2012) 1 SCC, 558, the Apex Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right.
In the case of Incharge Officer & Anr. Vs. Shankar Sheety, reported in (2010) 9 SCC, 126, it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 2- 3 years and where the termination had taken place many years ago, the recent trend is to grant compensation in lieu of reinstatement.
In the case of Jagbir Singh Vs. Haryana State Agriculture Mktg. Board, reported in (2009) 15 SCC, 327, the Apex Court noticed some of decisions of the Apex Court, namely, U.P.State Brassware Corpn. Ltd Vs. Uday Narain Pandey, reported in (2006) 1 SCC, 479, Uttaranchal Forest Development Corpn. Vs. M.C.Joshi, reported in (2007) 9 SCC, 353, State of M.P. Vs. Lalit Kumar Verma, reported in (2007) 1 SCC, 575, M.P.Admn Vs. Tribhunban, reported in (2007) 9 SCC, 748, Sita Ram v. Moti Lal Nehru Farmers Training Institute, reported in (2008) 5 SCC, 75, Jaipur Development Authority v. Ramsahai, reported in (2006) 11 SCC, 684, GDA v. Ashok Kumar, reported (2008) 4 SCC, 261 and Mahboob Deepak v. Nagar Panchyat, Gajraula, reported in (2008) 1 SCC, 575 stated as follows:
"It is true that the earlier view of this Court articulated in many decision reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
Jagbir Singh has been applied in Telegraph Deptt. Vs. Santosh Kumar Seal, reported in (2010) 6 SCC, 773, wherein the Apex Court stated: (SCC p.777, para 11) "In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice."
In the case of B.S.N.L. Vs. Bhurumal (Supra), referring the aforesaid decisions, the following has been held:
"It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious."
We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. While retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."
In the case of Assistant Engineer, Rjasthan State Agriculture Marketing Board, Sub-Division, Kota vs. Mohan Lal, reported in 2013 (5) AWC, 5156 SC, the Apex Court taking into the aforesaid decisions has held as follows:
"We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the I.D. Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by the Apex Court in the case of Gitam Singh (13) that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed."
So far as decision of the learned Single Judge in Writ Petition No.4537 of 2012, State of U.P. Thru' Director, Printing And Stationery Vs. Gulrej Ahmad and another (Supra) is concerned, in the said case the workmen worked for more then thirteen years without any break in service and was arbitrarily removed from service in violation of Section 6-N of the Act. The facts of that case is clearly distinguishable.
In view of the facts and circumstances, the writ petition is allowed. The impugned order dated 12.05.2010 is set aside.
Dt.21.01.2014.
R./