Allahabad High Court
State Of U.P. Thru.The Executive ... vs Presiding Officer,Industrial ... on 20 August, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:130058 Reserved on-15.07.2024 Delivered on 20.08.2024 Court No. - 33 Case :- WRIT - C No. - 3917 of 2018 Petitioner :- State Of U.P. Thru.The Executive Engineer,Irrigation Div. Respondent :- Presiding Officer,Industrial Tribunal-6 And Another Counsel for Petitioner :- C.S.C. Counsel for Respondent :- Bhupesh Kumar Singh,Sudhanshu Narain Hon'ble Chandra Kumar Rai,J.
1.Heard Mr. Prabhakar Tripathi, learned Standing Counsel for the petitioner/ State and Mr. Sudhanshu Narain, learned counsel for the respondent No.2.
2. Brief facts of the case are that respondent No.2 has filed his claim before Deputy Labour Commissioner, Gorakhpur stating that he had worked as beldar from 01.01.1975 to 15.10.1979 in the Gandak Nahar Nirman Khand, First Kaptanjganj, Deoria and his service was terminated on 16.10.1979 by the employer. An objection dated 23.10.2002 was filed on behalf of department stating that respondent No.2 had never worked in the department on muster roll and the instant claim has been raised after about 24 years from the date of alleged termination. Deputy Labour Commissioner referred the dispute to the Industrial Tribunal-6 Gorakhpur vide reference order dated 25.11.2003 which is registered as adjudication case No.245 of 2003 Respondent No.2 filed his written statement dated 28.05.2009 stating the termination of petitioner's service is illegal due to non compliance of the provisions contained under Section 6N, 6P and 6Q of The U.P. Industrial Dispute Act, 1947. Department has also filed his written statement dated 15.04.2010 stating that respondent No.2 had never worked in the department hence there was no occasion for termination/ retrenchment of the services of respondent No.2. It was also stated in the written statement that forged claim has been raised by respondent No.2 after about 24 years from the date of alleged termination which can not be entertained. Industrial Tribunal-6, Gorakhpur vide award dated 24.01.2017 ordered for payment of Rs.75,000/- as damages to the respondent No.2 and 25% of back wages from the date of reference order dated 25.11.2013 till the date of publication of award, the relief of reinstatement of respondent No.2 was refused as respondent No.2 was about to attain the age of superannuation. Hence this writ petition on behalf of State for following relief:
"(i) issue a writ, order or direction in the nature of certiorari calling for records and quashing the impugned award dated 24.01.2017 published on 22.01.2017 published on 22.05.2017 passed by the Prescribed Officer, Industrial Tribunal-6, Gorakhpur in Adjudication Case No.245/2003(Jai Prakash Mall vs Assistant Engineer, Gandak Nahar Nirman Khand Ist Kaptanganj, Deoria and others (Annexure No.7 to the writ petition);
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents not to adopt any coercive measure against the petitioner pursuant to impugned award dated 24.01.2017 published on 22.05.2017 passed by the Presiding Officer IndustrialTribunal-6 Gorakhpur in Adjudication Case No.245/2003 (Jai Prakash Mall vs. Assistant Engineer, Gandak Nahar Nirman Khand Ist Kaptanjanj, Deoria and others (Annexure No.7 to the writ petition) during the pendency of above noted writ petition."
3. This Court entertained the matter on 30.01.2018 and stayed the operation of impugned award dated 24.01.2017 as published on 22.05.2017.
4. Mr. Prabhakar Tripathi, learned Standing Counsel for the petitioner/State submitted that respondent No.2 had never worked in the department therefore there was no question for retrenchment/termination of the service of respondent No.2. He further submitted that respondent No.2 has filed a forged claim after 24 years with prayer that his services has been illegally terminated with effect from 16.10.1979. He further submitted that there was no relation of employer and employee between department and respondent No.2 as such provisions of The U.P. Industrial Dispute Act, 1947 are not applicable in the matter. He further submitted that Gandak Nahar Nirman Khand-I Kaptanganj, Deoria is a department of state Government and is not an industry as such the impugned order is illegal. He further submitted that daily wager shall remain daily wager unless and until he is recruited in accordance with law. He placed reliance upon the judgment of Hon'ble Apex Court reported in 2004 (8) SCC 161 Rajasthan State Ganganagar S. Mills Ltd Vs.State of Rajasthan and another in support of his argument. He further placed another judgment of Hon'ble Apex Court dated 26.03.1997 passed in S.L.P. (C) No.7957 of 1996 Himansu Kumar Vidyarthi and others vs. State of Bihar and others in order to demonstrate that every department of the government cannot be treated to be industry when the appointments are regulated by the statutory rules.
5. Mr. Sudhanshu Narain, learned counsel for respondent No.2 submitted that respondent No.2 was appointed on the post of Beldar on 01.01.1975 in the Gandak Nahar Nirman Khand-I, Kaptanganj, Deoria and worked continuously up to 15.10.1979. He further submitted that services of respondent No.2 was terminated on 16.10.179 without following the provisions of U.P.Industrial Dispute Act, 1947. He further submitted that work which was performed by the respondent No.2 was of permanent nature. He further submitted that at the time of termination of service of respondent No.2 the junior to the respondent No.2 were retained in service and new appointment were also made. He further submitted that one Ramdhari Singh Menth was preparing muster roll at the relevant point of time and Assistant Engineer was preparing the wages of the workman including the respondent No.2 at the relevant point of time. He submitted that the industrial dispute initiated by respondent No2 was rightly referred for adjudication vide reference order dated 25.11.2003. He submitted that respondent No.2 adduced oral and documentary evidences in support of his case in adjudication Case No.245/2003 but proper evidence in rebuttal was filed by the department. He submitted that industrial tribunal has rightly passed the award in the facts and circumstances of the case which requires no interference by this Court. He further submitted that controversy as to whether department is industry or not, reference made in 2003 in respect to termination made in 1979 is proper or not and claim of daily wager/muster roll employees can be adjudicated or not has already been settled by Hon'ble Apex Court as well as by this Court, as such there is no illegality in the impugned award. He placed reliance upon following judgment of Hon'ble Apex Court as well as of this Court in support of his argument:
Whether reference order is bad due to delay in making reference:
(i) 2001 (6) Supreme Court cases 222 Sapan Kumar Pandit vs. U.P. State Electricity Board and others.
(ii) 2005 (12) SCC 141 Shahaji vs. Executive Engineer PWD Judgment of Hon'ble Apex Court in the case of daily wagers:
(i) Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana): (2010) 3 SCC 637;
(ii) Devinder Singh Vs. Municipal Council, Sanaur: (2011) 6 SCC 584;
(iii) State of U.P. Vs. Charan Singh: 2015 LawSuit (SC) 302;
(iv) Jasmer Singh Vs. State of Haryana and another: (2015) 4 SCC 458;
(v) R.M. Yellatti Vs. Assistant Executive Engineer: (2006) 1 SCC 106;
(vi) Harjinder Singh Vs. Punjab State Warehousing Corporation: (2010) 3 SCC 192;
(vii) State of U.P. Vs. Amar Nath Yadav: 2014 Law Suit (SC) 32;
(viii) Director of Horticulture and another Vs. H.A. Kumar: 2013 (138) FLR 1089 (SC);
(ix) Gauri Shanker Vs. State of Rajasthan: 2015 Law Suit (SC) 357;
(x) Deep Chandra Vs. State of U.P.: (2001) 10 SCC 606;
Judgment of this Court on the point of reinstatement by labour court in respect to daily wagers:
(i) Writ-C No.38375 of 2016State of U.P. and three others vs. Presiding Officer Labour Court and another dated 20.08.2016 (ii) Writ-C No.6108 of 2004 State of U.P. through Executive Engineer and another vs Raj Karan and another dated 01.09.2015.
(iii) 2002 (93) FLR 1084 Rajya Krishi Utpadan Mandi Parishad vs Prescribed Authority
(iv) 2020 (165) FLR 246 State of U.P.and others vs Brahmadev Tripathi and others(v) Writ-C No.3192 of 2017 State of U.P. and three others vs the Labour Court and another dated 08.05.2023 Judgment of Hon'ble Apex Court on the point of back wages
(i) 2013 (139) FLR 541 (SC) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak and others
(ii) Allahabad Bank and others vs. Avtar Bhushan Bhartiya in special Leave Petition (Civil) No.32554 of 2018 dated 22.04.2022
6. I have considered the argument advanced by learned counsel for the parties and perused the record.
7. There is no dispute about the fact that dispute raised by respondent No.2 was referred vide reference order dated 25.11.2003 and industrial tribunal vide impugned award dated 24.01.2017 as published on 22.05.2017 has ordered for Rs. 75,000/- as damages and 25% of back wages from the date of reference order till the date of publication of award.
8. The point of determination which are involved in the writ petition are as follows:-
(i) whether the reference order is bad due to delay in making reference?
(ii) whether irrigation department is industry or not?
(iii) whether respondent No.2 is a daily wager/muster roll employee of the department and termination of his service is illegal?
(iv) Whether respondent No.2 will be entitled to any relief?
9. In order to consider the first point of determination No.(i) as to whether the reference order is bad due to delay in making reference, the perusal of Section 4-K & Section-10 of the U.P. Industrial Dispute Act, 1947 will be relevant which is as under:
"4K. Reference of disputes to Labour Court or Tribunal.
Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication.Provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred workmen, the State Government may, if it so thinks fit, make the reference to a Labour Court.
"Section-10 - Power to require production of books, etc. Where any person is required by order to make any statement or furnish any information to any authority, that authority may be order with a view to verifying the statement made or the information furnished by such person, further require him to produce any books, accounts or other documents relating thereto which may be in his possession or under his control."
The perusal of paragraph Nos. 14 and 15 of the judgment rendered in Sapan Kumar Pandit (supra) will be relevant for perusal which are as under:
"14. It is useful to refer to a three Judge Bench decision of this Court as it related to the scope of the very same provision i.e. Section 4K of the U.P. Act. In M/s. Western Indian Watch Co. Ltd vs. The Western India Watch Co. Workers Union MANU/ SC/ 0375/ 1970 MANU/ SC/ 0375/ 1970: (1970 I ILLJ 256SC: (1970) IILLJ 256SC learned Judges made the following observations:
therefore, the expression 'at any time', though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can 'at any time', i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression at any time' thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to being or to be completed. As already stated, the expression 'at any time' in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjourned or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence."
15. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under Section 4K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication cold be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination."
The perusal of paragraph Nos. 6 and 7 of the judgment rendered in Shahaji (supra) will be also relevant for perusal which are as under:
"6. We have heard counsel for the parties and we have also been taken through the Judgment of this Court reported in Ajaib Singh v. Sirhind Co-op. MANU/ SC/ 0254/ 1999 MANU/ SC/ 0254/ 1999 : (1999) ILLJ 1260 S Nedungadi Bank Ltd. v. K.P. Madhavankutty MANU/ SC/ 0049/ 2000 MANU/ SC/ 0049/ 2000:
(2000) ILLJ 561 SC and Sapan Kumar Pandit v. U.P. Electricity Board MANU/ SC/ 0376/ 2001 MANU/ SC/ 0376/ 2001 :
(2001) IILLJ 788 SC. Having gone through the Judgments we have no doubt that the Judgment of this Court in Ajaib Singh's case lays down the law correctly. In the instant case there was no ground of delay urged by the Management. Moreover, even if there was delay in making the reference to Labour Court, if it came to the conclusion that he termination was illegal, it could have suitably moulded the relief to be granted to the workman in view of the delay. In such cases the award of back wages may either be not permitted, or curtailed. In Nedungadi Bank's Case what was challenged before the High Court was the Order making the reference. That was not a case where the Labour Court refused to entertain the dispute on the ground of delay. Having regard to the clear position in law we are left with no option but to allow the is Appeal and set aside the Judgment and Order of the High Court.
7. This Appeal is accordingly allowed and impugned Judgment and Order of the High Court is set aside. The Labour Court will now proceed with the reference and dispose it of in accordance with law as expeditiously as possible. It was submitted before us on behalf of the Respondent that he has not filed any written statement before the Labour Court and therefore he should be permitted to do so as also to lead evidence. We wish to pass no order on this aspect of the matter, but it is open to the parties to make appropriate prayer before the Labour Court which shall be disposed of by it in accordance with law."
Considering the provisions of Section 4-K and 10 of U.P. Industrial Dispute Act, 1947 as well as ratio of law laid down by Hon'ble Apex Court in Sapan Kumar Pandit (supra) and Shahaji (Supra) the order dated 25.11.2003 by which the reference was made to Industrial Tribunal in respect to termination order dated 16.10.1979 is in accordance with the provisions of U.P. Industrial Dispute Act, 1947. The point of determination No.(i) is answered accordingly in favour of respondent No- 2 that there is no illegality in the reference order dated 25.11.2003.
10. In order to consider the point of determination No.(ii) as to whether the irrigation department is industry or not, the perusal of ratio of law laid down by Hon'ble Apex Court as well as this Court will be relevant which are under:
i)[1978 SCR (3) 207] The Bangalore Water Supply & Sewerage Board etc. v/s A. Rajappa and others etc.
ii) [1988 (57) FLR 176] Des Raj and others v/s State of Punjab and others
iii) (Civil Misc. Writ Petition No. 35086 of 1998) State of U.P., through Executive Engineer, Nichali Ganga Nahar, Phoolpur, Kanpur v/s The Labour Court (II), U.P. Kanpur and another
iv) [2023 (178) FLR 220] State of U.P. Through Executive Engineer, Tubewell Division-I, Bareilly v/s Presiding Officer, Labour Court, U.P., Bareilly and another
v) [2023 (178) FLR 204] State of U.P. Through Principal Secretary, Irrigation, Lucknow and others v/s Labour Court, Gorakhpur, U.P. and another
vi) [2024 (181) FLR 239] Eng.-In-Chief Irrigation Dept., Lucknow and others v/s Shiv Nath In view of the aforementioned ratio of law laid down by Hon'ble Apex Court as well as this Court to the effect that irrigation department is industry within the meaning of U.P. Industrial dispute Act 1947, the point of determination No.ii is decided holding that irrigation department is industry in view of the provisions contained under U.P. Industrial Dispute Act, 1947.
11. In order to decide the point of determination No.(iii) as to whether the respondent No.2 is a daily wager/muster roll employee of the department and termination of the service of respondent No.2 is illegal, the finding of fact recorded by industrial tribunal will be relevant for perusal which is as under:
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?????????? ??????? ?? ???? ?? ??? ?? ???????? ?? ??????? ??? ?? ?????? ???????? ???? ?????? ???????? ?????????? ??? ?? ???????? ???? ???240 ????? ?? ???? ??????? ???? ????? ?? ?? ?? ????? ???? ??????? ?????? ???????? ????? ???????-1947 ?? ????-6(??) ?? ??????????? ?? ???? ???????? ?? ???? ?? ??? ???? ???? ????? ?? ????? ???? ???? ?? ??????????? ?? ???? ???? ???? ????? ?? ???? ?? ???????? ?????? ? ???? ???? ???????? ??? ??? ?????? ?? ??? 16.10.79 ?? ????? ?? ???? ???? ???? ?????? ??? ???????? ??? ????? ???????? ??? ?????? ?????? ?? ??? ?? ???? ?? ?????? ??????? ??? ???? ????????? ??? ?? ????? ??, ??? ??????????? ??? ??????? ?????? ?? ???????? ?????? ???? ??? ???????????? ???? ???? ????????? ???? ???? ???? ?????? ?? ???? ????? ?? ???????? ???? ?? ????? ??? ???????? ?????? ??????? ??? 75,000/- ?? ??????????? ?? ?????? ????? ??? ?? ???? ????? ???? ?? ??????? ????? ?? ???? ??? ?????? ?? ?????? ?? ?? ?? ????? ??? ???? ????? ?? ?? ????? ?????? ?? ???? ????? ???? ?? ???? ??? ??? ???? ????? ???????? ???? ?? ????? ??? ?????? ?? ???? ?? ????? ????? ???? ???? ????????? ???? ??? ?????? ?????? ???? ???? ????? ?? ??????? ?? ?? ?????? ????????? ?? ??????? ?????????? ????? ???? ???? ?? ???? 25.11.2003 ?? ?????? ?? ??????? ???? ?? ?? ???????? ?? 25% ???????? ?? ?????? ???????? ???????? ?? ??????? ???? ?? ??????? ??? ?????? ?? ??? ???????? ?? ???? ??? 25.11.03 ?? ?????? ??????? ???? ?? ?? ???? ??? ????? ??? ??????? ????? ???????? ?????? ?? ??????? ??? ?? ?????? ?? ?????
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The perusal of finding of fact recorded by industrial tribunal as quoted above fully demonstrate that respondent No.2 has completed 240 days in a calendar year as such termination of service without compliance of the provision contained under Section 6(N) of the U.P. Industrial Dispute Act, 1947 is illegal. The point of determination No.iii is accordingly decided holding that respondent No.2 has completed 240 days in the calendar year as such termination of Service of respondent NO.2 is against the provisions contained under Section 6-N of the U.P. Industrial Dispute Act, 1947
12. In order to Consider the point of determination No.(iv) as to what relief can be granted to respondent No.2, the perusal of paragraph No-33 of Deepali Gundu Surwase (supra) will be necessary which is as under:
"33. The propositions which can be called out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis--vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
The perusal of another judgment of Hon'ble Apex Court in the case of Allahabad Bank (supra) in which earlier case of Hon'ble Apex Court in Deepali Gundu Surwase (supra) was considered will be relevant which is as under:
36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded.
37. As we have pointed out at the beginning, the total period of service rendered by the Officer-employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer-employee is also liable to be dismissed.
38. Accordingly, both the Special Leave Petitions are dismissed, no costs."
In the instant matter the respondent No.2 was at verge of retirement at the time of passing award as such the industrial tribunal has rightly passed the award for damages of Rs.75,000/- and 25% wages from the date of making reference of dispute upto the date of publication of award which is just and proper exercise of jurisdiction by the tribunal. The point of determination No.(iv) is answered accordingly that respondent No.2 has been rightly awarded 25% wages from the date of reference upto date of publication of passing award as well for payment of as Rs.75,000/- as damages to respondent No-2 in the place of reinstatement in service.
13. Considering the entire facts and circumstances of the case, no interference is required against the impugned award.
14. The writ petition is dismissed and petitioner/department is directed to release the awarded amount in favour of respondent No.2 within period of three months from today otherwise interest at the rate of 6% per annum will be charged against the petitioner/department for delayed-payment of awarded amount to respondent No.2.
15. No order as to costs.
Order Date :- 20.8.2024/PS*