Allahabad High Court
M/S Bureau Chief Rastriya Sahara And ... vs Labour Commissioner U.P. And 2 Others on 3 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 13.03.2023 Delivered on 03.04.2023 Court No. - 52 Case :- WRIT - C No. - 23241 of 2016 Petitioner :- M/S Bureau Chief Rastriya Sahara And Another Respondent :- Labour Commissioner U.P. And 2 Others Counsel for Petitioner :- Shakti Swarup Nigam Counsel for Respondent :- C.S.C.,Janmed Kumar with Case :- WRIT - C No. - 23786 of 2016 Petitioner :- M/S Bureau Chief Rastriya Sahara And Another Respondent :- Labour Commissioner And 2 Others Counsel for Petitioner :- Shakti Swarup Nigam Counsel for Respondent :- C.S.C.,Janmed Kumar with Case :- WRIT - C No. - 22872 of 2016 Petitioner :- M/S Jagran Prakashan Ltd. Respondent :- Presiding Officer Industrial Tribunal And Another Counsel for Petitioner :- Chandra Bhan Gupta Counsel for Respondent :- C.S.C.,Ajay Rajendra with Case :- WRIT - C No. - 27687 of 2016 Petitioner :- Umesh Kumar Respondent :- The Presiding Officer Industrial Tribunal And Another Counsel for Petitioner :- Ajay Rajendra Counsel for Respondent :- C.S.C.,Chandra Bhan Gupta Hon'ble Kshitij Shailendra,J.
1. All these writ petitions cover certain factual and legal aspects which are common in all the matters. Therefore, while deciding these writ petitions by a common judgment, individual cases shall also be dealt with.
2. For the purposes of deciding these matters, Writ-C No.23241 of 2016 is being treated as the leading one.
3. Heard Shri Shakti Swarup Nigam, learned Senior Advocate assisted by Shri Karshit Nigam, learned counsel for the petitioners and Shri Janmed Kumar, learned counsel for respondent workman in Writ-C No.23241 of 2016 and Writ-C No.23786 of 2016; Shri Chandra Bhan Gupta, learned counsel for the petitioner and Shri Ajay Rajendra, learned counsel for respondent workman in Writ-C No.22872 of 2016; and Shri Ajay Rajendra, learned counsel for the petitioner and Shri Chandra Bhan Gupta, learned counsel for respondents in Writ-C No.27687 of 2016.
Writ-C No.23241 of 2016(M/S Bureau Chief Rastriya Sahara And Another Vs. Labour Commissioner U.P. And 2 Others)
4. This writ petition has been filed challenging the award dated 09.11.2015 passed by the Labour Court (I), U.P. Kanpur in Adjudication Case No.275 of 1999, M/s Bureau Chief Rastriya Sahara Vs. Munraj Singh. The award was published on 15.03.2016. Another relief has been claimed for quashing of the order dated 15.09.2014 whereby the Labour Commissioner, U.P., Kanpur had, in purported exercise of powers conferred by Section 6(4) of U.P. Industrial Disputes Act, 1947 (for short U.P. Act), remitted the matter to the Presiding Officer of the Labour Court (I), U.P., Kanpur for reconsideration.
5. The facts of the case, as per the pleadings contained in the writ petition, are that the petitioners are engaged in the business of publication and distribution of newspaper under the name and style of ''Rashtriya Sahara' and for the purpose of distribution of newspapers they incorporated regulations known as ''Audit Bureau of Circulation' under which they appointed M/s. Rastriya News Agency and M/s. Awathi News Agency as news agents for distribution of news papers on commission basis; the respondent no 2 was appointed as hawker on commission basis for distribution of newspapers by the petitioners. After incorporation of regulations known as 'Audit Bureau of Circulation', after June 1996, the respondent no. 2 joined M/s. Rastriya News Agency and M/s. Awathi News Agency for distribution of news paper; the Deputy Labour Commissioner in exercise of powers under Section 4K of the U.P. Industrial Disputes Act, 1947, vide its order dated 27.01.2000 referred the matter of alleged termination to respondent no. 1. The contesting respondent set up his claim that he was appointed as Salesman w.e.f. 01.06.1992 on consolidated salary of Rs. 950/- but since the payment was less than minimum wages, a demand was raised that was not considered by the petitioners and in violation of Section 6N of the U.P. Industrial Disputes Act, 1947, his services were terminated and as such the respondent no. 2 prayed for reinstatement.
6. The petitioners filed written statement inter-alia on the ground that the contesting respondent was a hawker on commission basis upto June, 1996 and, thereafter, there remained no relationship between them and as such in absence of employer and employee relationship there can arise no question of termination of service in year 1998, as after June, 1996 he joined M/s. Rashtriya News Agency and M/s. Awathi News Agency and after enforcement of Regulations of 'Audit Bureau of Circulation'. It was also stated that contesting respondent was not given any appointment letter nor applied for and also there exists no post of Salesman.
7. The contesting respondent filed his rejoinder affidavit; the petitioner also filed rejoinder statement and again reiterated the facts that contesting respondent was appointed as Hawker and as such at no point of time there was any relationship of employer and employee. It was also stated that provisions of Section 6N will not be applicable as there remained no master and servant relationship.
8. In support of his case, the respondent no. 2 examined himself; in support of their case the petitioners examined Shri Ajai Tripathi and Shri Manoj Dubey; and the petitioners filed salary register to prove that there existed no relationship of employer and employee. It was also stated that no appointment letter was ever issued nor was any Provident Fund deduction or Employees State Insurance Contribution ever made. Since the contesting respondent was working on commission basis as hawker, as such no salary was ever paid to him; and without considering the material on record and ignoring the material facts and evidence, the respondent no.1 treated the contesting respondent as workman employed as Salesman and granted reinstatement with entire back wages.
9. It is contended that challenging the award dated 24.12.2007 published on 01.04.2008, the petitioners filed Civil Misc. Writ Petition No.25780 of 2008 before this Court, which was allowed by judgment and order dated 18.07.2011. Relevant portion of the said judgment is extracted herein below:-
"After having very carefully examined the submissions made by the learned counsel for the parties and perused the impugned award as well as the other materials brought on record, I find that there is force in the submissions made by learned counsel for the petitioners and the same are liable to be accepted. The respondent no. 2 moved the State Govt. under section 4K of the U.P. Act claiming himself to be working as salesman in the petitioners' establishment challenging the termination of his employment by the petitioners vide order dated 01.10.1998 on the ground that the same infringed the provisions of section 6N of the U.P. Act.
From perusal of the the written statement filed by the petitioners before the respondent no. 1 it transpires that the petitioners had challenged the jurisdiction of the respondent no. 1 to entertain and decide the adjudication case in view of section 3 of the Act 45 of 1955 which stipulates that the central government alone is competent to refer a dispute between the employers and the employees of a establishment to which the provisions of the Act 45 of 1955 apply and that to, to a tribunal constituted under the central Act. From the perusal of the written statement filed by the petitioners before the respondent no. 2 it appears that before the respondent no. 1 the petitioners had taken a specific plea that the respondent no. 2 was employed in their establishment as a hawker and not as a salesman. In support of their contention they had filed voluminous evidence which has been compositely annexed as annexure no. 2 to the writ petition.
I have very carefully gone through the impugned award and I do not find therein any adjudication by the respondent no. 1 on the preliminary objection raised before him by the petitioners regarding his lack of jurisdiction to entertain and decide the adjudication case on account of the reference made to him by the State Govt. under Section 4K of the U.P.Act being without jurisdiction in view of section 3 of the Act 45 of 1955 on account of respondent no. 2 being employed as a hawker in the petitioners' establishment. There is also no consideration in the impugned award of the evidence filed by the petitioners before the respondent no. 1 in support of their claim that the respondent no. 2 was employed in their establishment as a hawker and not as a salesman as alleged by him. This omission on the part of the respondent no. 2 has further vitiated the impugned award.
For the aforesaid reasons, I am of the view that the impugned award cannot be sustained and is liable to be set aside. The writ petition accordingly succeeds and is allowed. The award dated 24.12.2007 passed by the respondent no. 1 is hereby set aside and the matter is remitted back to the respondent no. 1 for passing a fresh award in the matter after considering the objections raised by the petitioners in their written statement and the evidence adduced by the parties in support of their respective claims, in accordance with law. Necessary exercise in this regard shall be completed by the respondent no. 1 within a period of six months from the date of production of certified copy of this order."
10. It is also contended that contesting respondent filed an application for amendment for reference before respondent no. 2 and the State Government sent a reference under Section 4k of U.P. Industrial Disputes Act, 1947 whereas the case is covered under the "The Working Journalist and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions Act, 1955 (45 of 1955"), as such the reference could be sent under Section 10(1C) of the Industrial Disputes Act, 1947.
11. The petitioners filed objections and stated that the establishment of petitioner is covered under "The Working Journalist and another Newspaper Employees (Conditions of Service and Miscellaneous Provisions Act, 1955 (45 of 1955") as such reference can be made under Section 3(1) of the Act, 1955 by the Central Government and they had raised their preliminary objection before Labour Court but Award dated 24.12.2007 was passed without deciding the preliminary objection, as such this Court remanded the matter to decide the preliminary issue; the Labour Commissioner, U.P. (respondent no.1) vide its order dated 13.03.2013 decided the application of contesting respondent and held that the contesting respondent is non working journalist as such dispute between the parties is covered under Section 4k of U.P. Industrial Disputes Act, 1947.
12. In pursuance of the order of this Court passed in Writ-C No.25780 of 2008, a fresh award was passed on 12.07.2012 which was sent to the State Government for publication but for some reason, the award was not published. Pleadings to this effect are contained in paragraph 21 of the writ petition which states that by the award dated 12.07.2012, the Labour Court had rejected the claim of the workman and dismissed the adjudication case as not maintainable. However, copy of such award dated 12.07.2012 has not been brought on record by either of the parties in support of their pleadings.
13. The reference in this case was made to the Labour Court, Rampur for adjudication of the industrial dispute in the following terms:-
"क्या सेवायोजकों द्वारा श्रमिक श्री मुनराज सिंह पुत्र श्री महेश सिंह सेल्समैन, को दिनांक 1.10.98 से कार्य से पृथक / वंचित किया जाना उचित एवं वैधानिक है ? यदि नहीं, तो संबंधित श्रमिक हितलाभ/क्षतिपूर्ति पाने का अधिकारी है ? किस तिथि एवं अन्य किस विवरण के साथ?"
14. The Labour Commissioner, U.P., Kanpur by order impugned dated 15.09.2014 sent back/remitted the matter, in purported exercise of powers conferred under Section 6(4) of U.P. Act, before the respondent no.2 for the purpose of reconsideration.
15. Pursuant to the order impugned dated 15.09.2014, the Labour Court, by impugned award dated 09.11.2015, has found that termination of services of the workman with effect from 01.10.1998 is not according to law and, therefore, he is entitled for reinstatement with continuity in service along with 50% of back-wages. The award was published as per the provisions of the Act on 15.03.2016.
Contention of petitioners
16. Sri S.S. Nigam, learned Senior Counsel for the petitioner, while arguing the matter at length, has placed reliance upon the provisions of Sections 2(c), 2(dd) and 3 of the Working Journalists and Other Newspaper Employees (Condition of Service) and Misc. Provisions Act, 1955 (Act No.45 of 1955) (hereinafter referred to as the Act of 1955) and has submitted that in view of the said provisions, the respondent no.3 cannot be treated as an employee in the petitioner establishment and, even if he is treated to be a workman as per the provisions of U.P. Industrial Disputes Act, 1947 (U.P. Act) or the Industrial Disputes Act, 1947 (Central Act), it was the Central Government which was competent to make reference to the labour court and not the State Government. He has referred to the definition clause contained in Sections 2(c), 2(dd) and the provisions of Section 3 regarding applicability of the Central Act in relation to the employees who are covered by the Act of 1955. For a ready reference, Sections 2(c), 2(dd) and 3 of the Act of 1955 are being quoted herein below:-
"2. (c) "newspaper employee" means any working journalist, and includes any other person employed to do any work in, or in relation to, any newspaper establishment;
(dd) "non-journalist newspaper employee" means a person employed to do any work in, or in relation to, any newspaper establishment, but does not include any such person who-
(i) is a working journalist, or
(ii) is employed mainly in a managerial or administrative capacity, or
(iii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature;]
3. Act 14 of 1947 to apply to working journalists.―(1) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall, subject to the modification specified in sub-section (2), apply to, or in relation to, working journalists as they apply to, or in relation to, workmen within the meaning of that Act.
(2) Section 25F of the aforesaid Act, in its application to working journalists, shall be construed as if in clause (a) thereof, for the period of notice referred to therein in relation to the retrenchment of a workman, the following periods of notice in relation to the retrenchment of a working journalist had been substituted, namely:-
(a) six months, in the case of an editor, and
(b) three months, in the case of any other working journalist."
17. Sri Nigam has further submitted that the Labour Commissioner, Kanpur had no authority, power or competence to remit/refer the matter for reconsideration/review to the Labour Court. In support of his submission, he has placed reliance upon the judgment of this court in the case Hindustan Aeronautics Ltd., Transport Aircraft Division, Chakeri, Kanpur Vs. State of U.P. and others: 2021 (168) FLR 338 and has specially referred to paragraph 18 of the said judgment, which is reproduced herein below:-
"18) A perusal of the impugned order shows that the Labour Commissioner, U.P., Kanpur has held a judicial order of the Labour Court to be flawed. He has sent back the matter to the Labour Court to decide the reference on merits. The Labour Commissioner has decided that the reference is competent. He has done so on the basis of an opinion of the District Government Counsel, Kanpur Nagar. The Labour Commissioner is not a Court. He exercises the powers of the State Government to make a reference that is not a judicial power of any kind. All that he can exercise is an administrative or executive power conferred on the Government. Now, if there were a delegation in his favour under Section 39, assuming that he had the necessary delegation, the delegation of powers under Section 39 of the Central Act made by the Central Government is to exercise the administrative power of making a reference to the competent Court. It is in no way a judicial authority of supervision over the Labour Court, conferred on the Commissioner. In case, any party was aggrieved by the order dated 17.09.2019 passed by the Presiding Officer, Labour Court (3), U.P., Kanpur in Adjudication Case No. 115 of 2010, it was open to that party to approach this Court under Article 226 or 227 of the Constitution, for those are the only remedies that are open, apart from Article 136 of the Constitution, to challenge a judicial determination of the Labour Court, be it an order or an award. There is no principle known to law which permits an administrative review of judicial action. The law envisages judicial review of administrative action, and in some cases, legislative action also. But there is no concept known to law that permits an administrative review. Judicial orders can be undone by invoking the appellate, revisional or supervisory procedures by approaching a higher judicial forum. It cannot be done by an executive or administrative action. The impugned order is also bad, for another reason. It has proceeded substantially, if not entirely, on the opinion of the District Government Counsel. Even if an opinion were sought by the Labour Commissioner, who is presumably a layman (as opposed to a legally trained mind) ought not have referred to the legal opinion received by him. In fact, he should not have acted on any legal opinion at all. This is so because an order founded on legal opinion is not one where the Authority making the order, has done an independent application of mind. Rather, he has gone by the opinion of another, may be a legal expert. This in itself would vitiate the impugned order. In any view of the matter, this Court is of clear opinion that the impugned order undoing a judicial order by an administrative determination is ultra vires and without jurisdiction. Though, Mr. Diptiman Singh sought to justify the order dated 17.07.2019 passed by the Presiding Officer, Labour Court (3), U.P., Kanpur in Adjudication Case No. 115 of 2010, this Court is not minded to examine that question in the absence of a challenge to the order dated 17.07.2019 by a party who is aggrieved. It is also made clear that if any party, including the fourth respondent, is aggrieved by the order dated 17.07.2019, it would be open to them to challenge the said order through competent proceedings, as advised."
18. Sri Nigam further submits that once the Labour Court had passed an award, which was not challenged before this Court, the Labour Commissioner had no jurisdiction to remit/refer the matter for reconsideration by the Labour Court as it would amount to administrative review of a judicial order which this Court, in the case of Hindustan Aeronautics Ltd. (supra), has deprecated. He further submits that even if the order of the Labour Commissioner dated 15.09.2014 is treated to be within jurisdiction, the power of making reference to the Labour Court could be exercised only when one or more of the contingencies mentioned under Section 6(4) of the U.P. Act were satisfied which, according to Sri Nigam, did not exist in the facts and circumstances of the present case. He has emphatically pressed upon the provisions of Section 6(4) of U.P. Act, which are reproduced herein below:-
"6(4) Before publication of an award of a Labour Court or Tribunal under sub-section (3), if the State Government if of the opinion that,-
(a) the adjudicating authority has unreasonably refused permission to any party to adduce evidence; or
(b) any party was prevented by any other sufficient cause from adducing evidence; or
(c) new and important material fact or evidence has come to notice, which after the exercise of due diligence, was not within the knowledge of, or could not be produced by, the party at the time when the award was made; or
(d) the award is likely to disturb the industrial peace; or
(e) the award is likely to affect prejudicially the national or State economy; or
(f) the award is likely to interfere with the principles of social justice; or
(g) the award has left undetermined any of the matters referred for adjudication, or where it determines any matter not referred for adjudication and such matter cannot be separated without affecting the determination of the matters referred; or
(h) the award is so indefinite as to be incapable of being enforced; or
(i) illegality of the award is apparent upon the face of it, it may, after giving the parties reasonable opportunity of being heard, for reasons to be recorded, remit the award for reconsideration of the adjudicating authority, and that authority shall, after reconsideration, submit its award to the State Government, and the State Government shall publish the award in the manner provided in sub-section (3).]"
19. Sri Nigam has further placed reliance upon a judgment of Division Bench of Orissa High Court in the case of Pratap Chandra Mohanty Vs. General Manager, United News of India and another: 1991(2) OLR 326. Pragraphs 11 and 12 of the said judgment are being extracted herein below:-
"11. We have duly considered the aforesaid submission of Shri Mohanty and, according to us, it would be difficult to say that the benefit of the Industrial Disputes Act would not be available to newspaper employees other than working journalists even if they be workmen within the meaning of that Act. As to Section 3(1) of the Working Journalists Act, we would say that the provision in that section making the Industrial Disputes Act applicable to working journalists cannot be taken to be that the said Act would not apply to other newspaper employees. Section 3(1) might have been enacted to make it abundantly clear that the Industrial Disputes Act would apply to working journalists even if they may not satisfy the definition of 'workman' as given in the Industrial Disputes Act. It is worth poinhng out in this connection that a working journalist as defined in Section 2(f) of the Working Journalists Act may not be a 'workman' if the definition of that expression as given in the Industrial Disputes Act were to apply to him. The legislature, however, wanted the benefits of the Industrial Disputes Act to be made available to working journalists and it is perhaps because of this that Section 3(1) was inserted in the Act. This apart, reference to Section 3(1) shows that certain modifications were made in the provisions of the Industrial Disputes Act in their application to working journalists. We do nor think if we would be justified in denying the benefits of a statute as important as the Industrial Disputes Act to other categories of newspaper employees, if otherwise they be workmen within the meaning of that Act, because of what has been provided in Section 3(1) of the Working Journalists Act. 12. As to the application of the two specific Acts to newspaper employees because of what has been provided in Secs, 14 and 15 of the Working Journalists Act, we would say that these two sections were enacted to make the two Acts in question applicable to newspaper establishments because de hors these provisions, those Acts might not have applied to such establishments. The legislature, however, wanted to give the benefit of those Acts to all newspaper employees. It may be pointed out that Secs. 14 and 15 have referred to the application of the two Acts in question to "every newspaper establishment" and not to "newspaper employees". Of course, by making these two Acts applicable to all newspaper establishments, the benefits of the same were conferred on all newspaper employees. This does not mean that the legislature wanted to rob the newspaper employees of the benefits of other Acts. According to us, no such conclusion can be drawn on the basis of what has been provided in Secs. 14 and 15 of the Working Journalists Act."
20. Apart from the aforesaid, Sri Nigam has argued that the respondent no.3 was merely working as a Hawker for effecting distribution of newspapers and he was neither an employee nor a workman in the petitioners' establishment. He submits that voluminous evidence was led on behalf of the petitioners before the Labour Court to demonstrate that in none of the registers containing particulars and description of the workmen/employees, the name of the respondent no.3 found place. He has referred to various annexures to the writ petition to demonstrate that the respondent no.3 was never enrolled for the purposes of insurance which aspect is applicable for all the employees/workmen of petitioner-establishment. He submits that the respondent no.3 never led any evidence before the Labour Court to establish that any appointment letter was issued to him at any point in time. He also submits that no evidence was led by the respondent no.3 even to demonstrate that he worked continuously from 1992 to 1998 and therefore, in absence of evidence, the award of the Labour Court on merits is unsustainable. He further submits that in evidence only an identity card was filed by the respondent no.3 which was marked as Exhibit- W-3, containing the description of the respondent no.3 as ''Salesman' and that such identity card could be issued to any hawker or anyone for the purposes of facilitating any task in the organization but in no circumstance such an identity card could be a cogent evidence to establish workmanship or an employment so as to justify passing of an award for reinstatement and back-wages.
21. Sri Nigam has also placed reliance upon the judgment of the Apex Court in the case of Madhya Bharat Gramin Bank Vs. Panchamlal Yadav: 2021 (171) FLR 8 and has contended that merely because there is some violation on the part of the employer which, in the present case, is not there according to Sri Nigam, reinstatement with back-wages is not automatic and relief depends upon the facts of every case.
Contention of respondent
22. Per contra, Sri Janmed Kumar, learned counsel for the respondent no.3, while referring to the counter affidavit filed by the said respondent, submits that the Labour Court has rightly passed the award by treating the services of the respondent no.3 as a ''salesman'. He submits that since salary of Rs.950/- per month was being paid by the petitioners to the respondent no.3 which was much less as per the provisions of Minimum Wages Act, the respondent no.3 agitated his claim for enhancing wages before the petitioners which ultimately resulted into termination of his services with effect from 01.10.1998 and the Labour Court, by considering the material placed before it, has rightly directed reinstatement with back-wages. He submits that pursuant to the award, the respondent no.3 has been reinstated but he is being paid only a sum of Rs.1,200/- per month and not the regular pay scale which is applicable for other workmen.
23. Rejoinder affidavit has been filed on behalf of the petitioner reiterating the version contained in the writ petition.
24. Since all the aforesaid writ petitions were heard together, in one of the matters reliance was placed on behalf of the respondent-workman on a judgment of this Court in the case of M/s Jagran Prakashan Ltd. and another Vs. Presiding Officer, Labour Court, U.P., Allahabad and others: 2020 (167) FLR 412), with special reference to paragraph 38 thereof, which is quoted herein below:-
"38. The workman in this case is, therefore, a workman, both under the Central Act and the State Act as he satisfies the definition of a workman under both the statutes, independent of the provisions of the Working Journalists Act. The employers here being not an industry carried on by or under the authority of the Central Government or one who fall under any of the specified categories or named establishment, authorities or bodies, mentioned under Section 2(a)(i) of the Central Act, the Appropriate Government would be the State Government in accordance of the provisions of Section 2(a) (ii) of the Act, last mentioned. Accordingly, reference of the dispute under Section 4-K of the State Act is valid and competent. Since the reference under Section 4-K of the State Act is competent, the further question, "Whether the Labour Court/ Industrial Tribunal constituted under the Central Act alone is competent to answer a reference in relation to the workman?" is not required to be answered."
25. Before proceeding to deal with submissions made, the interim order dated 19.05.2016 passed in the present writ petition is being referred to, whereby the operation of the impugned award dated 09.11.2015 was stayed subject to the condition that the petitioners deposit entire back-wages as awarded to the respondent no.3 and reinstate him in the same position as he was working at the time when his services were terminated.
26. Having heard the learned counsel for the parties, this Court proceeds to analyse the arguments advanced at the bar in the light of the statutory provisions contained under the Act of 1955, U.P. Act 1947 as well as Central Act, 1947.
Analysis of rival contentions
27. In so far as the definition of "newspaper employee" as contained in Section 2(c) as well as definition of "non journalist newspaper employee" as contained in Section 2(dd) of the Act, 1955 is concerned, this Court in view of the Division Bench judgment of Orissa High Court in the case of Pratap Chandra Mohanty (supra), as referred to and relied upon by this Court in its judgment in the case of Jagran Prakashan (supra) and in light of Section 3 of the Central Act, 1947, has extended the provisions of the Act of 1955 to the working of the respondent no.3 holding that he would fall in the inclusion clause contained under Section 2(c) which is apparent from the words "and includes any other person employed to do any work in, or in relation to, any newspaper establishment".
28. The other contention of Sri Nigam with reference to Section 3 that it was only the Central Government which was competent to make a reference in the matter, this Court finds that by virtue of Section 2(a) (ii) of the Central Act, 1947, it was the State Government which was fully competent to make a reference and Section 3 of the Act 1955 does not in any manner restrict power of the State Government to make a reference inasmuch as the power to make a reference by the State Government is implicit in the Central Act 1955 itself and keeping in view of the nature of the petitioner establishment, this Court finds that Section 2(a) (ii) of the Central Act, 1947 fully clothed to the State Government with power to make a reference to the Labour Court. The said provision is reproduced herein below:-
"2(a)(ii) in relation to any other industrial dispute, including the State public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the State Government, the State Government:
29. In so for as Shri Nigam's contention with regard to the impugned order dated 15.09.2014 is concerned, the argument is that the Labour Commissioner had no power under the Act to make a reference to the Labour Court after the Labour Court had passed an award and such a remittance for reconsideration is in teeth of the provisions of Section 6(4) of the U.P. Act. He has placed strong reliance upon the judgment of this Court in Hindustan Aeronautics Ltd. (supra) and submits that this Court has already held that such a recourse is impermissible under the eyes of law.
30. This Court has carefully examined the judgment of this Court in the case of Hindustan Aeronautics Ltd. (supra) and finds that facts of the present case are different from the facts of the case of Hindustan Aeronautics Ltd. (supra). In the case of Hindustan Aeronautics Ltd. (supra), the Labour Commissioner had sought an opinion from the District Government Counsel (Civil), Kanpur after passing of the award and the said DGC submitted his opinion on 17.03.2020 advising the Labour Commissioner that adjudication case could be heard by a court constituted under the U.P. Industrial Disputes Act, 1947 and merely on the basis of such opinion, the Commissioner denounced the award and remitted the matter to the Labour Court for reconsideration. This Court, under such facts, found the action of the Labour Commissioner as unjustified. Further, the provisions of Section 6(4) of the U.P. Act were not considered in the judgment of Hindustan Aeronautics Ltd. (supra) nor were the delegated powers conferred by Section 11-A of the U.P. Act, 1947 touched, which reads as follows:-
"[11-A. Delegation of powers.-The State Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions if any, as may be specified, in the direction, be exercisable also by such officer or authority subordinate to the State Government as may be specified in the notification.] NOTES Delegation of power-Power of State Government.- It was held that the State Government is empowered under Section 11-A to delegate any power under the Act to any subordinate authority."
31. The judgment of Hindustan Aeronautics Ltd. (supra) touches the provisions of Section 39 of the Central Act and states that the delegated power could be exercised only for the purpose of making a reference but could not be exercised to examine the validity of an award passed by the Labour Court as the same would tantamount to administrative interference in a judicial adjudication.
32. Meeting all the aforesaid arguments of Sri S.S. Nigam, this Court finds that the power of Labour Commissioner to remit the award passed by the Labour Court for reconsideration by the said court itself, is contained under Section 6(4) of the U.P. Act, 1947 in the light of delegation made by the State Government in exercise of power under Section 11-A of the said Act. It has neither been pleaded nor argued nor has anything been placed on record that the State Government has not delegated its powers upon the Labour Commissioner by issuing any notification. Therefore, this Court cannot assume that there is no delegation made by the State Government in favour of the Labour Commissioner to exercise powers under Section 6(4) of the Act.
33. In so far as the contention of Sri Nigam with regard to existence/non existence of any of the contingencies enumerated under Section 6(4) of the U.P. Act so as to remit the award for reconsideration, Section 6(4)(i) is worth consideration. Though, in the present case, clauses (a) to (h) of Section 6(4) of U.P. Act, 1947 do not at all stand attracted, that is to say that in exercise of power of remittance, the conditions laid down in the said clauses are non-existent, this Court finds that such power of remittance can be exercised in case "illegality of the award is apparent upon the face of it", as per clause (i) of sub-section (4) of Section 6 of U.P. Act, 1947. For a ready reference, Section 6(4)(i) is reproduced herein below:-
"6(4)(i) illegality of the award is apparent upon the face of it, it may, after giving the parties reasonable opportunity of being heard, for reasons to be recorded, remit the award for reconsideration of the adjudicating authority, and that authority shall, after reconsideration, submit its award to the State Government, and the State Government shall publish the award in the manner provided in sub-section (3).]"
34. In the present case, it has been pleaded in paragraph no.21 of the writ petition that pursuant to the remand order passed by this Court in Writ-C No.25780 of 2008, a fresh award was passed by the Labour Court rejecting the claim of the respondent no.3 on 12.07.2012, however, on misc. application moved by the respondent no.3, the matter was reopened at the level of Labour Commissioner. As indicated above, the award dated 12.07.2012 has not been placed on record of the present case. However, when this Court examines the validity of the impugned order dated 15.09.2014 it finds that it does not contain any specific reason as to under which clause of sub-section (4) of Section 6 of U.P. Act, 1947 the case in hand fell. Even assuming that due to some narration regarding applicability of Act 1955 in the impugned order dated 15.09.2014, the Labour Commissioner was persuaded to remit the matter for reconsideration to the Labour Court, the case may fall under clause (i) of sub-section (4) of Section 6 and it may be a case where "illegality of the award was apparent upon the face of it", which, in fact, is not the finding/observation in the impugned order dated 15.09.2014.
35. Going to the extent of assuming that there was some illegality in the award dated 12.07.2012 which might have been apparent upon its very face so as to attract clause (i) of sub-section (4) of Section 6 of U.P. Act, 1947, there is nothing in the impugned order dated 15.09.2014 which could be said to be compliance of the specific provision of making remittance inasmuch as it is clearly provided after clause (i) ...... it may, after giving the parties reasonable opportunity of being heard, for reasons to be recorded, remit the award for reconsideration of the adjudicating authority, and that authority shall, after reconsideration, submit its award to the State Government, and the State Government shall publish the award in the manner provided in sub-section (3).
36. There is no reference made in the order impugned dated 15.09.2014 that any opportunity of hearing was provided to the parties before remitting the matter to the Labour Court. Therefore, remittance made by the Labour Commissioner under the order impugned dated 15.09.2014 is found to be in teeth of specific provisions of Section 6(4) of U.P. Act.
37. In so far as the view taken by the learned Single Judge in the case of Hindustan Aeronautics Ltd. (supra) that delegated power cannot be exercised for remittance for the purpose of reconsideration, this Court finds that the said power is available under Section 6(4) of U.P. Act itself which provision did not fall for consideration of this Court in the case of Hindustan Aeronautics Ltd. (supra). Therefore the submission of Shri Nigam to the extent that the Labour Commissioner has no power to remit the award, is not acceptable, but in the facts of this case, exercise of such power is found to be contrary to law, as elaborately discussed hereinabove.
38. Sri Nigam has also argued that if the impugned order dated 15.09.2014 is held to be unsustainable, the award of the Labour Court which is consequential in nature shall also stand nullified. He alternatively submits that the Labour Court has not taken into consideration the specific case of the petitioners that the respondent no.3 utterly failed to lead any evidence establishing his workmanship/employment in the petitioner establishment, except one identity card which, for the purpose of making an award, cannot be treated as cogent evidence, particularly, in view of the voluminous documentary evidence led by the petitioners demonstrating no mention of the name of the respondent no.3 in the entire record which is maintained for all the workmen/employees. Further there is no evidence worth the name that the respondent no.3 completed 240 days of continuous service in one calender year preceding termination of his services.
Conclusion
39. This Court has examined the matter in its entirety and finds that the order impugned dated 15.09.2014 not only being bereft of any cogent reasoning, suffers from violation of statutory mandate contained under Section 6(4) of U.P. Act, 1947. Therefore, the consequential award itself becomes bad. Apart from this, as against the voluminous evidence led by the petitioner, no evidence worth consideration was led by the respondent no.3 which could hold him an employee/workman in the petitioner establishment.
40. Considering the facts and circumstances of the case and the nature of the interim order dated 19.05.2016 whereby the petitioners were directed to deposit entire back-wages before the Labour Court and also the fact that the alleged services of the respondent no.3, as a hawker, were terminated in the year 1998; the award was passed in the year 2015 and the interim order was passed in the year 2016, whereafter the respondent no.3 has been allowed to work and was paid wages, this Court agrees with the contention of Sri Nigam that the order impugned dated 15.09.2014 as well as award dated 09.11.2015 is unsustainable for the reasons stated hereinabove.
41. The writ petition succeeds and is allowed. The impugned order dated 15.09.2014 passed by the Additional Labour Commissioner, U.P., Kanpur (respondent no.1) remitting the matter to the Labour Court as well as consequential impugned award dated 09.11.2015, published on 15.03.2016, passed by the Presiding Officer, Labour Court (First), U.P., Kanpur (respondent no.2) in Adjudication Case No.275 of 1999 (Bureau Chief, Rastriya Sahara Vs. Munraj) are hereby quashed.
42. It is for the petitioners to take or not to take work from the respondent no.3 as a hawker in future. However, in so far as the relief of reinstatement or 50% back-wages granted under the impugned award is concerned, the same is hereby refused and annulled. The amount deposited by the petitioners pursuant to interim order granted in this writ petition shall be refunded to the petitioners within two months.
Writ-C No.23786 of 2016(M/S Bureau Chief Rastriya Sahara And Another Vs. Labour Commissioner And 2 Others)
43. The facts of the present case are exactly the same as to the facts of Writ-C No.23241 of 2016. The only change which this Court finds is that this writ petition is regarding a different workman who had agitated his claim exactly on the same lines and on the same facts and, ultimately, the adjudication case was registered as Case No.34 of 2000 (Bureau Chief, Rastriya Sahara Vs. Ravindra Kumar Mishra). The reasonings recorded in the award as well as order of remittance dated 15.09.2014, are exactly the same. Nature of claim and defence put by the parties is also the same. Exactly identical arguments were advanced on behalf of both the parties in this writ petition also. Therefore repetition of facts or law would unnecessarily make this judgment further bulky.
44. For all the aforesaid reasons, this writ petition also succeeds and is allowed. The impugned order dated 15.09.2014 passed by the Additional Labour Commissioner, U.P., Kanpur (respondent no.1) remitting the matter to the Labour Court as well as consequential impugned award dated 09.11.2015, published on 15.03.2016, passed by the Presiding Officer, Labour Court (First), U.P., Kanpur (respondent no.2) in Adjudication Case No.34 of 2000 (Bureau Chief, Rastriya Sahara Vs. Ravindra Kumar Mishra) are hereby quashed.
45. It is for the petitioners to take or not to take work from the respondent no.3 as a hawker in future. However, in so far as the relief of reinstatement or 50% back-wages granted under the impugned award, the same is hereby set aside and annulled. The amount deposited by the petitioners pursuant to interim order passed in this writ petition shall be refunded to the petitioners within two months.
Writ-C No.22872 of 2016(M/S Jagran Prakashan Ltd. Vs. Presiding Officer Industrial Tribunal And Another)
46. This writ petition has been filed by M/s Jagran Prakashan Ltd., Meerut through its Manager challenging the impugned award dated 20.07.2015, published on 02.01.2016, passed by Presiding Officer, Industrial Tribunal (5), Meerut (respondent no.1) in Adjudication No.18 of 2002.
47. The facts of the present case, as per the pleadings contained in the writ petition, are that the petitioner is a newspaper company and publishes newspapers in the name of ''Dainik Jagran' from various places including District Meerut.
48. It is pleaded by the petitioner that the respondent no.2 (Umesh Kumar) was never engaged by the petitioner establishment at any point of time and no relation of the employer and employee ever existed between the petitioner and the respondent no.2 and in fact one Muley Ram Singh, who was the relative of respondent no.2, was working in the petitioner establishment and the respondent no.2 used to come from time to time at the petitioner establishment to meet his said relative. It is stated that on 11.08.2001 the respondent no.2 came to meet Muley Ram Singh and without knowledge of the watchman, he entered into the premises of the establishment and took away certain papers of the petitioner establishment with some ulterior motive, which incident was reported by the establishment on 18.08.2001 to the police station concerned and a first information report concerning the same was registered as Case Crime No.334 of 2001, under Section 380 IPC at Police Station Civil Lines, Meerut. It is further stated that the respondent no.2 took away production report, register and other papers from the petitioner establishment and it appears that he prepared some documents in relation to his employment to get undue benefit stating that his services were illegally terminated with effect from 09.08.2001. It is further stated that the respondent no. 2 filed an application before the Deputy Labour Commissioner under section 2-A of the U.P. Industrial Disputes Act, 1947 and prayed that the matter may be referred to the Conciliation board and, on the said application, the Conciliation Officer, Meerut instead of constituting Conciliation board proceeded with the case for settlement and issued notice to the petitioner. It is further stated that there is no provision under the U.P. Industrial Disputes Act, 1947 and Rules framed thereunder that before constitution of the Conciliating board, the conciliation proceeding may be proceeded, however, without following the procedure as prescribed under the U.P. Industrial Disputes Act, 1947 in respect of Conciliation Bard; the State Government referred the matter to the Presiding Officer, Industrial Tribunal, respondent no. 1 for adjudication of the following alleged dispute where Adjudication Case No. 18 of 2002 was registered:
"क्या सेवायोजकों द्वारा अपने कर्मचारी श्री उमेश कुमार पुत्र भूडिया सिंह की सेवाएं दिनांक 09-08-2001 से समाप्त किया जाना उचित एवं वैधानिक है? यदि नही, तो संबंधित श्रमिक किस हितलाभ / अनुतोष के पाने का अधिकारी है और् अन्य किस विवरण के साथ ? "
49. Pursuant to the notice issued in the aforesaid case, the petitioner and the respondent no.2 filed respective replies before the Tribunal and whereas the contention of the respondent no.2 was to the effect that he was working in the petitioner establishment since 1996, his services were illegally terminated by an oral direction with effect from 09.08.2001, on the other hand, the defence of the petitioner establishment was that there never existed any relationship of employer and employee and that the respondent no.2 had never worked in the establishment, rather he manufactured some documents by committing theft in the organisation. Further defence of the petitioner was that there is no documentary evidence to establish that the petitioner was ever appointed in the organisation nor his name finds mention in relation to any scheme which is applicable for workmen. It is further contended by the petitioner in defence before the Tribunal that the order of reference was bad in law as the case was instituted under the provisions of Industrial Disputes Act, 1947 (Central Act), whereas the reference had been made under the provisions of U.P. Industrial Disputes Act, 1947 (State Act).
50. After holding proceedings where pleadings and affidavits were exchanged, the documentary evidence was filed and the witnesses were also examined and cross examined, the Presiding Officer (respondent no.1), by impugned award the dated 20.07.2015, held that before terminating the services of the respondent no.2, no notice was served upon him by the petitioner establishment and, therefore, the termination was bad and, consequently, the respondent no.2 was awarded one month's salary and compensation equivalent to 15 days' salary of every working year along with Rs.20,000/- as additional compensation and Rs.5,000/- as the cost of litigation.
51. A counter affidavit has been filed by the respondent no.2 stating that initially the respondent no.2 was appointed as Junior Clerk on 02.09.1996 in the establishment of petitioner. The respondent no. 2 used to bring news items from the editorial department and endorsed the same into register in his handwriting. Besides above, the respondent no. 2 also endorsed the day to day work done by the computer operators in the register under his handwriting. The said work is of permanent nature. The aforesaid register is lying with the employers. Further, the State Government has full jurisdiction and is competent to refer the matter for adjudication and, as such, the reference order was correctly made. Moreover, if the employers were aggrieved with the reference order, they ought to have challenged the same by means of writ petition immediately at that time when the reference was made on 4.06.2002.
52. It is further pleaded in the counter affidavit that the respondent no.2, with regard to proof of his working with the employer w.e.f. 2-9-1996 to 2-8-2001 and payment of wages by the employers for said period, filed one application dated 22-11-2003 paper no. 13-D supported by affidavit, paper no. 14-A, for producing the requisite documents from the employers before the court namely, (a) Production Register/Report w.e.f. 2-9-1996 to 2-8-2001, (b) Overtime detail and payment register w.e.f. 2-9-1996 to 2-8-2001 alongwith ledger of said period and overtime slip, (c) Leave Register alongwith Leave Application wef 2-9-1996 to 2-8-2001 and (d) Payment of Wages Register w.e.f. 2-9-1996 to 2-8-2001.
53. Further defence in the counter affidavit is that the employers did not produce the best evidence in this case. Shri Rajendra Kumar Supervisor of the petitioner took work from the respondent no.2 and granted leave etc. to him, but Shri Rajendra Kumar Supervisor was not produced by the employers for the examination although he was in service. Likewise, another employee Muley Ram was also not produced by the employers for examination, whereas the employers have taken the name of Muley Ram and setup their false case concerning him. Thus, the employers deliberately did not produce their best evidence and withheld it. In case the employers produced Shri Rajendra Kumar and Shri Muley Ram, the said witnesses would have spoken the truth which might have gone against the case set up by the employers.
54. The petitioner has filed a rejoinder affidavit reiterating the version contained in the writ petition.
55. I have heard Sri Chandra Bhan Gupta, learned counsel for the petitioner, Sri Ajay Rajendra, learned counsel for the respondent no.2 and the learned Standing Counsel for respondent no.1.
56. This matter was heard along with Writ-C Nos.23241 of 2016 and 23786 of 2016 which were argued by S.S. Nigam, learned Senior Counsel and the arguments in relation to the validity of reference in the light of various provisions of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, Industrial Disputes Act, 1947 (Central Act) as well U.P. Industrial Disputes Act, 1947 (U.P. Act) were advanced.
57. When the present writ petition was argued, Sri Chandra Bhan Gupta, learned counsel for the petitioner, submitted that in the present case also, the reference was bad in the eyes of law and he adopts all the arguments advanced by Sri S.S. Nigam, learned Senior Counsel with regard to validity of reference as well as applicability of the provisions of Act, 1955, Central Act, 1947 as well as U.P. Act, 1947.
58. Now, I proceed to consider the rival submissions made at the bar on the merits of the case.
Rival contentions and their analysis
59. A perusal of the record reveals that both the parties in support of their respective claims and defence submitted various documents. Whereas the respondent no.2 filed 19 documents along with list 8-B2, the petitioner filed two documents along with list 12-B1. It was contended by the petitioner before the Tribunal that the documents filed by the respondent no.2 did not relate to his employment and since he had taken away the documents from the petitioner establishment concerning which FIR was also registered, he cannot get any advantage out of manufactured documents.
60. On the other hand, the contention of the respondent no.2 was to the effect that the theory of alleged theft has been falsely narrated and no action was taken by the police authorities pursuant to false FIR lodged against him.
61. This Court finds that on behalf of the petitioner, one Rajesh Kumar Bhardwaj was produced as a witness who made his statement and was also cross examined. In his cross examination, Sri Bhardwaj stated as follows:-
"मेरी नियुक्ति वरिष्ठ लिपिक के पद पर हुई थी और अब मेरा प्रोमोशन होकर मैं वर्ष 2005 के कार्मिक अधिकारी के पद पर कार्य कर रहा हूँ, कर्मचारियों के अभिलेखों के रख-रखाव का विभाग बना हुआ है, जिसका नाम कार्मिक विभाग है। कार्मिक विभाग में मेरे सहित तीन कर्मचारी कार्य करते हैं। इस विभाग में कर्मचारियों के उपस्थिति रजिस्टर, वेतन भुगतान रजिस्टर व व्यक्तिगत पत्रावलियों का रख-रखाव किया जाता है। अवकाश प्रार्थना पत्र फार्म संख्या-14 में तैयार किये जाते हैं। कर्मचारी जो अवकाश प्रार्थना पत्र देते हैं, उनकी पत्रावली भी रखी जाती है। पांच वर्ष की अवधि बीत जाने पर उन अभिलेखों को विनिष्ठ (बीड) कर दिया जाता है। जो अभिलेख विनिष्ठ किये जाते है, उनका कोई रजिस्टर अलग से नहीं रखा जाता है। नष्ट होने वाले कागजात की सूची भी तैयार नहीं की जाती है। मेरे अनुसार महत्वपूर्ण कागजात में कर्मचारियों की व्यक्तिगत पत्रावलियां व वेतन भुगतान संबंधी रजिस्टर तथा उपस्थिति रजिस्टर आते हैं। वेतन भुगतान से संबंधित ई०एस०आई० तथा पी०एस० संबंधी कागजात भी महत्वपूर्ण होते हैं। ओवर टाईम से संबंधित कागजात पांच वर्ष तक रखे जाते हैं। मुझे यह जानकारी नहीं है कि संबंधित श्रमिक उमेश कुमार ने अपने सेवा संबंधी विवाद किस सन् में उठाया था। संबंधित कार्मिक विभाग से कोई रजिस्टर अथवा अन्य कागजात उठाकर नहीं ले गया। कर्मचारियों की उपस्थिति और वेतन भुगतान रजिस्टर करीब 15 वर्ष के हमारे कार्यालय में रखे हुए है। मैं उत्पादन विभाग का कार्य नहीं देखता, लेकिन उत्पादन विभाग में जो कर्मचारी कार्य करते हैं,उनके अभिलेख जो कार्मिक विभाग से संबंधित है। हमारे द्वारा तैयार किये जाते हैं। मैं नहीं बता सकता कि उत्पादन विभाग में कौन-कौन से अभिलेख रखे जाते हैं। यदि कोई कर्मचारी अवकाश लेना चाहता है, तो वह संबंधित विभाग के इन्चार्ज से अवकाश प्रार्थना पत्र अग्रसारितर हमारे विभाग में देता है। अवकाश प्रार्थना पत्र पर कार्मिक विभाग की टिप्पणी अंकित की जाती है और उसके पश्चात पत्र की पत्रावलियां अलग से हमारे विभाग में तैयार की जाती है। वर्ष 2000-2001 में उत्पादन विभाग के इन्चार्ज श्री राजेन्द्र कुमार थे। मैं देखकर राजेन्द्र कुमार के हस्ताक्षर पहचान सकता हूँ। सूची 8-बी(2) का कागज सं०-6 देखकर साक्षी ने कहा कि मुझे नही लगता कि इस कागज पर श्री राजेन्द्र कुमार और श्री सुरेश चन्द शर्मा के हस्ताक्षर हो। सूची 8-बी(2) का कागज संख्या-1 दैनिक जागरण, मेरठ के फार्म पर तैयार किया गया है, लेकिन मैं देखकर यह नहीं बता सकता कि हस्ताक्षर अधिकारी के सामने किसके हस्ताक्षर है। इसी प्रकार सूची 8-बी(2) का कागज सं०-3,8,9,10,11,12 व 13 भी दैनिक जागरण के फार्मेट पर तैयार किये गये अवकाश प्रार्थना पत्र है, लेकिन इस पर अधिकारी के हस्ताक्षर के कॉलम में किसके हस्ताक्षर है, मैं नहीं बता सकता। अवकाश प्रार्थना पत्र के फार्मेट दैनिक जागरण कार्यालय के स्टोर विभाग में रखे रहते हैं। वहां से कोई भी कर्मचारी ले सकता है। जिस विभाग में मूले राम कार्य करता है, उस विभाग से मिला हुआ ही स्टोर विभाग है। दोनों विभाग दो मंजिला पर है। वर्ष 2000-2001 में दैनिक जागरण, मेरठ का कार्यालय दिनांक 140-डी, साकेत, मेरठ में था। जो बाहरी व्यक्ति कार्यालय में आते हैं, उनका इन्द्राज गेट पर ही एक रजिस्टर में किया जाता है। स्वयं कहा कि कई बार सिक्योरिटी वाले कर्मचारी लापरवाही भी करते हैं और कुछ लोगों को बिना इन्द्राज करे भी अन्दर घुसा लेते हैं। गेट पर जो रजिस्टर रख रहता है, उसमें आगन्तुक का नाम दिनांक व समय तथा आने का उद्देश्य आदि इन्द्राज किये जाते हैं। हो सकता है कि उमेश कुमार का इन्द्राज गेट पर रखे गये पंजिकाओं में आगन्तुक के रूप में हो। गेट का रजिस्टर सिक्योरिटी विभाग में रखे जाते हैं। मैं नहीं कह सकता कि वर्ष 2000-2001 के गेट रजिस्टर अब सिक्योरिटी विभाग में है या नहीं। जब आगन्तुक कार्यालय में आते-जाते है, तो गेट पर तलाशी नहीं ली जाती, बल्कि केवल इन्द्राज ही किया जाता है। मुझे यह जानकारी नहीं है कि आगन्तुक का सामान गेट पर रख लिया जाता है अथवा नहीं। यह बात मेरी जानकारी में नहीं है कि जिस दिन की चोरी उमेश कुमार द्वारा करना बताता हूँ, उस दिन मूले राम से कोई स्पष्टीकरण इस आशय का मांगा गया था या नहीं कि उसका परिचित व्यक्ति उत्पादन विभाग से अभिलेख उठाकर ले गया है। मेरे विभाग में मूले राम का विभाग 5-7 कदम दूर था। उत्पादन विभाग के हॉल में स्थित है, जिसमें 10-12 कर्मचारी कार्य करते थे, सर्कुलेशन विभाग में वर्ष 2000 में करीब 10-12 कर्मचारी कार्य करते थे। संबंधित श्रमिक महीने में एक -दो बार मूले राम से मिलने आता था और उससे मिलकर चला जाता था। मैं यह नहीं बता सकता कि मैंने पहली बार उमेश कुमार को किस सन् में और किस महीने में मूले राम के पास आते हुए देखा था। मैं यह भी नहीं बता सकता कि मैंने अन्तिम बार उमेश कुमार को कार्यालय में आते हुए कब देखा था। जागरण प्रकाशन लि० में जितने भी कर्मचारी सेवारत है, उन सब की उपस्थिति मुख्य गेट पर ही सिक्योरिटी गार्ड के समक्ष दर्ज हो जाती है। मुख्य गेट पर प्रत्येक विभाग के अनुसार उपस्थिति शीट रखी रहती है, जिसमें प्रत्येक कर्मचारी अपना हस्ताक्षर करता है और उसके बाद अपने विभाग में ड्युटी पर चला जाता है। उपस्थिति शीट के आधार पर ही कार्मिक विभाग में उपस्थिति रजिस्टर तैयार किया जाता है, जिसमें केवल "ए" और "पी" लिखकर उपस्थिति और अनुपस्थिति दर्शाई जाती है, उसी रजिस्टर में अवकाश और साप्ताहिक अवकाश इन्द्राज कार्मिक विभाग द्वारा किया जाता है। वर्ष 1996 के बाद की उपस्थिति शीट संभवतः इस केस में दाखिल नहीं की गई है। उपस्थिति शीट में जिन कर्मचारियों के नाम लिखे हैं और जिन्होने अपने हस्ताक्षर किये हैं, वे जागरण प्रकाशन लि० के कर्मचारी होते हैं। कोई बाहरी व्यक्ति उपस्थिति शीट पर हस्ताक्षर नहीं बना सकता, जो कर्मचारी गेट पर रखी हुई उपस्थिति शीट पर हस्ताक्षर करतेे है, उन सभी के नाम कार्मिक विभाग में तैयार किये गये उपस्थिति रजिस्टर में कर्मचारी का पद भी लिख जाता है। कागज संख्या 6-ए० (सेवायोजक का लिखित कथन) देखकर साक्षी ने कहा कि इस पर श्री शरद टण्डन के हस्ताक्षर है, जो फैक्ट्री मैनेजर थे। सुरेश चन्द शर्मा भी फैक्ट्री मैनेजर थे, मैं उनके हस्ताक्षर भी पहचानता हूँ। यह कहना गलत है कि मैं सेवायोजकों के दबाव में सही बात नहीं बता रहा हूँ। यह कहना गलत है कि संबंधित श्रमिक उमेश कुमार ने दिनांक 02-9-1996 से लगातार सेवा समाप्ति तक जागरण प्रकाशन लि० की सेवा में रहा हो। यह कहना भी गलत है कि मैंने सेवायोजक के निर्देश और दबाव के कारण संबंधित श्रमिक का नाम कार्मिक विभाग के उपस्थिति रजिस्टर में न लिखा हो।"
62. As against the said oral evidence, the respondent no.2 produced himself as DW-1, one Hari Shanker as DW-2 and one Ravindra Kumar as DW-3.
63. DW-1 (respondent no.2) clearly stated that he was appointed on the post of junior clerk on 02.09.1996 but he was not issued any appointment letter and the petitioner used to take work from him for bringing newspaper from Editorial Section, submitting the same to the composite section, thereafter making entries in the production register after such composition, making further entries of main heading and length of the particular news items and, then, forwarding the same to other employees. He states that his duty was from 7.00 pm to 3.00 am; that he used to work for about 300 days in every 12 months; that when he fell ill on 02.08.2001, he remained under treatment of Dr. Sudarshan Kumar Verma till 08.08.2001 concerning which medical certificate issued by the said doctor was also submitted in the petitioner establishment but when he went to the petitioner establishment on 09.08.2001 with fitness certificate, the petitioner refused to take him on duty, whereafter, he proceeded with legal remedies through notices etc. In his cross examination, DW-1 Umesh Kumar (respondent no.2) further stated as follows:-
"मैं० जागरण की नौकरी में दिनांक 02-9-1996 को आया था। प्रार्थना पत्र कोई नहीं दिया, केवल हाई स्कूल का प्रमाण पत्र दिया था। मेरी नौकरी श्री अजय मिश्रा जी ने लगाई थी। नियुक्ति के समय मैं श्री राजेन्द्र कुमार को नहीं जानता था। नियुक्ति के बाद श्री राजेन्द्र शुक्ला जी के सुपररविजन में काम करने के लिए श्री मूले राम नागर ने कहा था। मुलेराम नागर प्रोडक्शन क्लर्क के पद पर कार्य करते थे। ये बात नियुक्ति के एक डेढ़ महीने के बाद की है, उससे पहले मैं प्रोडक्शन विभाग से मौडम लाकर प्रोडक्शन विभाग में देता था। राजेन्द्र कुमार जी के सुपरविजन के अंदर में काम करने का कोई लिखित आदेश नहीं था। छुट्टी का मूल प्रार्थना पत्र टाईम आफिस के बाक्स में डाल दिया जाता है। उसकी प्राप्ति लेने का प्रश्न ही नहीं उठता था। जागरहण में नौकरी करने से मैं श्री मूले राम नागर को जानता था। नौकरी में आने से पहले मैं उनसे मिलने कभी नहीं आया था, जो प्रलेख मैंने दाखिल किए हैं, वो कंपनी में जमा है। मेरे ज्ञान में मेरे ऊपर फौजदारी का कोई मुकदमा नहीं चल रहा है। मेरी जानकारी में ऐसा नहीं है कि कंपनी ने मेरे खिलाफ कंपनी का रिकार्ड चुरा ले जाने की रिपोर्ट लिखाई हो। मुझे फौजदारी का कोई सम्मन नहीं मिला और मैं कभी न्यायालय में उपस्थित नहीं हुआ। मैंने अपने सेवाकाल में ऐसी आपत्ति नहीं उठाई कि मुझे लिखित में जागरण में काम करने के लिए दिया जाए।
श्री मूले राम नागर और राजेन्द्र कुमार अब भी जागरण प्रकाशन में कार्यरत है। मैं ड्युटी पर जाता था, तो हाजिरी लगती थी। मैं हाजिरी शीट पर हस्ताक्षर करता था। जिस शीट पर मै हस्ताक्षर करता था, उस पर चार नाम थे,उस पर राजपाल का नाम था और दो के नाम ध्यान नहीं। तनख्वाह उस शीट पर नहीं मिलती थी। तनख्वाह श्री सरदार सुरेन्द्र सिंह जी अपने शीट पर बुलाकर एक शीट पर दस्तखत कराकर देते थे, उसे जो रकम देते थे, वह लिखी जाती थी व मैंने उस शीट की कापी कभी नहीं मांगी। मेरे सामने किसी अन्य कर्मचारी ने भी उस शीट की कापी नहीं मांगी। मूले राम नागर जी मेरे बहनोई के भाई है। उनका नाम उस शीट पर नहीं था। उसका नाम किस रजिस्टर पर होता था, मुझे नहीं पता। जो कर्मचारी जागरण में काम करते थे। उनकी हाजिरी फार्म नं०-12 में लगती थी। मूले राम नागर परमानेंट कर्मचारी थे, उनकी हाजिरी कहां लगती थी। मुझे नहीं पता, जो प्रार्थना पत्र राजेन्द्र कुमार के हस्ताक्षर कराकर छुट्टी के लिए कराए थे, वो छपे-छपाए फार्म थे। छुट्टी का प्रार्थना पत्र राजेन्द्र कुमार जी शाम को हस्ताक्षर करके हमें देते थे और कह देते थे कि उसको कल डाल देना, तब मैं उसे घर ले जाकर फोटो कापी करा लेता थे और उसके बाद मैं संबंधित बक्से में डाल देता था। यही बात ओवर टाईम स्लिप के बारे में है। प्रार्थना पत्रों में तारीख भी डालते थे। मुझे छुट्टी सैंक्शन होने के बाद सूचना नहीं मिलती थी। हम तो प्रार्थना पत्र देकर छुट्टी कर लेते थे। दिनांक 12.02.2000 को मैंने टैक्सी से जाने के लिए प्रार्थना पत्र दिया था, उससे पहले कोई प्रार्थना पत्र नहीं दिया ता। जब मैं कभी टैक्सी से जाता था, तो किराए देता था। इस प्रार्थना पत्र पर राजेन्द्र कुमार "के भी हस्ताक्षर हैं और उस पर तारीख भी पड़ी है। ओम प्रकाश सांगवाल को मैंने कई बार टैक्सी पर जाने के लिए पैसे दिए। ये परमिशन रात को ड्युटी से वापस जाते समय हुई थी। ढाई से तीन बजे तक की बात है। यह गलत है कि यह प्रार्थना पत्र मैने राजेन्द्र कुमार के कहने से दिया हो। मेरे प्रार्थना पत्र पर संस्तुति करने से पूर्व राजेन्दर कुमार जी ने तुरंत ही अपनी संस्तुति मेरे सामने लिख दी थी। टैक्सी में जाने की परमिशन के लिए मैंने प्रार्थना पत्र अपने हाथ से लिखकर दिया था। मैं अपने हस्ताक्षर सामान्यताः अंग्रेजी में करता हूँ। प्ररदर्श डब्लू-11 पर मेरे हस्ताक्षर नहीं है पर प्रार्थना पत्र मेरे लेख में है। इस पर हस्ताक्षर न करने का कोई कारण नही है। सूची 8-बी(2) का पेपर नं०-7 प्रोडक्शन रिपोर्ट की छाया प्रति है, जो फरवरी 2000 की है। यह मेरे द्वारा बनाई गई है और इस पर मेरे हस्ताक्षर है। इस पर प्रतिष्ठान का नाम नहीं लिखा और न ही अधिकारी के हस्ताक्षर है। इस पर प्रोडक्शन में प्रतिदिन के हस्ताक्षर है। यह प्रोडक्शन कम्प्यूटर से निकाली जाती थी, फिर इसमें भरी जाती थी। कार्य प्रोडक्शन रजिस्टर में चढ़ता था। उस से मैं विवरण तैयार करता था। इस विवरण की मूल आफिस के कार्यालय में जमा कर दी थी। इसकी कोई रसीद नहीं है, जो तारीख इस विवरण की फोटो प्रति पर पड़ी है, उसी तारीख को आफिस में जमा कर देते थे। ये राजेन्द्र कुमार जी को मूल दे दी जाती थी। मुझे याद नहीं है कि मुझे छुट्टियों का वेतन मिला था अथवा नहीं। साल भर में कितनी छुट्टी बनती थी, मुझे नहीं पता। सैंक्शशन तभी होती थी, जब छुट्टी ड्यू होती थी। ड्यू नहीं होती थी, तो तनख्वाह कट जाती थी। प्रतिष्ठन में ई०एस०आई० स्कीम लगती है। मुझे नहीं पता मेरे वेतन से नहीं कटती थी। उक्त सूची का पेपर नं०-15 यह छुट्टी का प्रार्थना पत्र हैं, इस पर राजेन्द्र कुमार के हस्ताक्षर नहीं है। ये फार्म पर भी नहीं है। बीमारी के प्रार्थना पत्र पर राजेन्द्र जी हस्ताक्षर करते थे यह नहीं पता। मैंने अपना प्रार्थना पत्र अपने दोस्त से भिजवाया था। मैने प्रार्थना पत्र के साथ डाक्टरी का प्रमाण पत्र नहीं लगाया था। असल प्रमाण पत्र प्रार्थना पत्र के साथ भेज दिया था। प्रमाण पत्र फोटो प्रति मैं अपने पास नहीं रखता था। प्रोडक्शन विवरण की फोटो कापी के अतिरिक्त मैं अऩ्य कोई रिकार्ड मैंटेन नहीं करता था। प्रदर्श डब्लू०-6 फिटनेस प्रमाण पत्र की फोटो प्रति है। इसी में चिकित्सा प्रमाण पत्र भी सम्मिलित है। इस पर मेरे कोई हस्ताक्षर नहीं है। फिर कहा इस पर मेरे हस्ताक्षर है। यह बात गलत है कि दवाई के पर्चे अलग डाक्टर के हैं और फिटनेस के अलग डाक्टर के है, जो प्रलेख मेरे नौकरी के संबंध में मेरे पास हैं, मैंने दाखिल कर दिया है अन्य कोई और सबूत मेरे पास नहीं है। यह गलत है कि मैं जागरण प्रकाशन के नियोजन में कभी नहीं रहा और मेरे ऊपर अभिलेख चुराने का मुकदमा मेरे ज्ञान में चल रहा है।"
64. The other witnesses, namely, Hari Shanker and Ravindra Kumar (respectively DW-1 and DW-3) also supported the stand taken by DW-1 Umesh Kumar (respondent no.2). In so far as the documentary evidence is concerned, it has come on record as well as in the impugned award that the respondent no.2 filed six applications regarding medical leave, as papers no.3, 8, 9, 10, 11 and 13, certificates of overtime being paper nos.1 and 12, production report being paper nos.2, 4 and 5 as Exhibit W-7, W-8 and W-9 and another document paper no.6 (Exhibit W-11) whereby the respondent no.2, after completing his duty at 3.00 am, had sought permission from the manager for going through taxi which permission was accorded by the manager on 12.02.2000. With regard to the documentary evidence produced by the petitioner establishment, it has come in the award that only attendance register of August, 2001 and earned leave register of the year 1999 was produced by the petitioner mentioning and arguing that there is no entry of the name of the respondent no.2 in the said registers which reflects that he was not a workman in the establishment.
65. Sri Chandra Bhan Gupta, learned counsel for the petitioner, apart from adopting the arguments of Sri S.S. Nigam regarding the provisions of aforesaid Acts of 1955 and 1947, submits that even otherwise on merits, there was no evidence worth the name to establish employer and employee relationship between the petitioner the respondent no.2 and that the Tribunal wrongly arrived at a conclusion that the respondent no.2 had been engaged by the petitioner and that he had worked for more than 240 days in one year preceding termination of his services.
66. On the other hand, Sri Ajay Rajendra, learned counsel for the respondent no.2, has vehemently argued that in so far as the validity of reference is concerned, it has already been held by this Court in paragraph 38 of the judgment in the case of Jagran Prakashan (supra) as follows:-
"38. The workman in this case is, therefore, a workman, both under the Central Act and the State Act as he satisfies the definition of a workman under both the statutes, independent of the provisions of the Working Journalists Act. The employers here being not an industry carried on by or under the authority of the Central Government or one who fall under any of the specified categories or named establishment, authorities or bodies, mentioned under Section 2(a)(i) of the Central Act, the Appropriate Government would be the State Government in accordance of the provisions of Section 2(a) (ii) of the Act, last mentioned. Accordingly, reference of the dispute under Section 4-K of the State Act is valid and competent. Since the reference under Section 4-K of the State Act is competent, the further question, "Whether the Labour Court/ Industrial Tribunal constituted under the Central Act alone is competent to answer a reference in relation to the workman?" is not required to be answered."
67. Sri Ajay Rajendra further submits that voluminous documentary evidence was led by the workman before the Tribunal which was sufficiently proved through oral evidence establishing that the respondent no.2 was appointed as Junior Clerk in the year 1996, he worked continuously and his services were wrongly terminated without ensuring compliance of provisions of Section 6-N of U.P. Industrial Disputes Act, 1947. Sri Rajendra has referred to the documents on record as well as findings recorded in the award.
68. So far as the argument of Sri Chandra Bhan Gupta regarding validity of reference, this Court finds that the order of reference has neither been annexed along with the present writ petition, nor has it been challenged by making any prayer whatsoever. Further, it appears from perusal of the impugned award that during the course of arguments before the Tribunal, contention against the validity of reference was advanced, however the Tribunal, by examining the provisions of law and referring to various decisions, held that reference under the provisions of U.P. Act was valid. This Court, while discussing validity of reference made in the aforesaid writ petitions argued by Sri S.S. Nigam, has held that appropriate Government to make a reference to the Labour Court was State Government. No further deliberation is required on the said issue, particularly when, the reference order is not under challenge nor has it been annexed.
69. In so far as the contention of Sri Gupta to the effect that no evidence was led by the respondent no.2 establishing his workmanship in the petitioner establishment since 1996 onwards or otherwise, this Court finds that the argument has no substance and is contrary to the material on record. The Court has already noticed that the Tribunal has taken into consideration voluminous evidence produced by the respondent no.2 establishing his employment in the petitioner establishment and all the three witnesses produced by the workman established the same. No discrepancy is found either in oral testimony or in documentary evidence filed on behalf of the workman.
70. As regards the contention of Shri Gupta that the respondent no.2 had stolen away certain documents from the petitioner establishment and manufactured the same for establishing his employment, there is nothing on record as to what happened in pursuance of the FIR registered against the respondent no.2 nor has anything been argued to establish that the respondent no.2 was found guilty by any court of competent jurisdiction regarding commission of alleged theft.
71. The Tribunal also recorded a finding that the allegation of commission of theft did not stand established on record. Even otherwise, in so far as the allegation of manufacturing documents by the respondent no.2 is concerned, the Tribunal has rightly arrived at a conclusion by perusing the oral testimony of Sri Rajesh Kumar Bhardwaj that it was not stated by him that the documents had been fraudulently manufactured, rather by perusing the signature on the said documents, only this much was stated that it did not appear that the documents were signed by the officers Rajendra Kumar and Suresh Sharma. The Tribunal has rightly recorded that the witness produced by the petitioner did not specifically deny the signatures nor did he say that the signatures were not of any officers of the petitioner establishment.
72. Regarding the contention that the respondent no.2's relative Muley Ram Singh was working in the petitioner establishment and the respondent no.2 did not work in the establishment but he used to come to meet Muley Ram Singh, the Tribunal has rightly drawn adverse inference against the petitioner establishment on the ground that Muley Ram Singh was not produced as a witness by the petitioner side. Apart from him, adverse inference was rightly drawn for non production of Ajay Mishra who was an employee having made the signatures and Rajendra Kumar, the taxi driver.
73. Section 114 of the Indian Evidence Act, 1872 contains the provisions where a court may presume existence of certain facts. For a ready reference, Section 114 of the Evidence Act, with special reference to illustration (g), is reproduced below:-
"114 Court may presume existence of certain facts.-- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume--
(a) ..........
(b) ..........
(c) ..........
(d) ..........
(e) ..........
(f) ..........
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) ..........
(i) ..........
74. A perusal of Illustration (g) of Section 114 clearly shows that if the evidence which could be and is not produced, adverse inference can be drawn against the defaulting party presuming that the evidence, if produced, would be unfavourable to the person who withholds it. The said provision would apply to these proceedings by virtue of Section 5-C(3) of the U.P. Industrial Disputes Act, 1947.
Conclusion
75. In the present case, not only documentary evidence but also oral evidence produced by the petitioner side was thoroughly lacking as against the voluminous documentary and oral evidence produced by the workman and it is a clear case where on the issue of engagement of the workman in the petitioner establishment, adverse inference should be drawn and has rightly been drawn by the Tribunal against the petitioner establishment.
76. In the facts and circumstances of the present case, this Court finds that oral termination of services of the respondent no.2 was in teeth of provisions of Section 6-N of U.P. Industrial Disputes Act, which reads as follows:-
"6N. Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until, -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice;
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the State Government.]"
77. In so far as the award is concerned, reinstatement has not been ordered, rather compensation as described in the initial portion of this judgment has been awarded. I do not find any factual or legal error committed by the Tribunal in deciding the adjudication case and making the award in so far as findings on unlawful termination are concerned. However, the validity of award, to the extent it does not direct reinstatement of workman or award of back wages, shall be examined while dealing with Writ-C No.27687 of 2016, filed by workman Umesh Kumar, as both the employer and the workman have challenged the same award by their respective writ petitions clubbed together. The findings recorded in the impugned award regarding services of respondent no.2 and wrongful termination thereof are pure findings of fact and do not call for any interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition fails and is accordingly dismissed.
Writ-C No.27687 of 2016(Umesh Kumar Vs. The Presiding Officer Industrial Tribunal And Another)
78. This writ petition has been filed by the workman Umesh Kumar challenging the impugned award dated 20.07.2015, published on 02.01.2016, passed by Presiding Officer, Industrial Tribunal (5), Meerut (respondent no.1) in Adjudication No.18 of 2002.
79. Heard Sri Ajay Rajendra, learned counsel for the petitioner and Sri Chandra Bhan Gupta, learned counsel for the respondent no.2.
80. The validity of award on factual and legal grounds in so far as services of the workman and their wrongful termination, has been thoroughly discussed while writing judgment in Writ-C No.22872 of 2016. However, the Court proceeds to consider as to what relief the workman is entitled to and as to whether the award to that extent is good or bad.
Rival contentions and their analysis
81. In the present case, the contention of Sri Ajay Rajendra, learned counsel for the workman is to the effect that once the Tribunal had arrived at a conclusion that termination of services of workman was illegal, direction for reinstatement of the workman with continuity in service and back-wages should have been issued and, therefore, to this extent, the award is illegal.
82. Contrarily, Sri Chandra Bhan Gupta, learned counsel for the respondent no.2 submits that since award is illegal in toto for the reasons stated in Writ-C No.22872 of 2016, this writ petition deserves to be dismissed.
83. I have heard learned counsel for the parties and perused the record.
84. The impugned award has already been held to be lawful while deciding Writ-C No.22872 of 2016 to the extent indicated above. In so far as the sole point pressed by Sri Ajay Rajendra regarding non reinstatement of the petitioner in services with continuity in services and payment of back-wages, law in this regard is well settled to the effect that reinstatement is not an automatic consequence in every case and it depends on the facts and circumstances of individual cases under which the Tribunal as well as the High Court is under discretionary power to direct or not to direct reinstatement or to award compensation in lieu thereof.
85. In this regard, the Apex Court in the case of M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd and others: AIR 1979 SC 75, in paragraph 9, has held that "it is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived deprived workman of his earnings. Thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore. a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz ., to resist the workman's demand for revision of wages. the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed(l with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it the were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamldar Mandal, and a Division Bench of the Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court, Lucknow & ors., have taken this view and we are of the opinion that the view taken therein is correct."
86. The Supreme Court in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation: 2010 (124) FLR 700 has held as follows:-
"A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the corporation that termination of the appellant's service falls within the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of corporation was contrary to Section 25G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs.87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family."
87. Further, the Supreme Court, in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak and others: 2013 (139) FLR 541 elaborately discussed the very idea of restoring an employee to the position which he held before dismissal or removal or termination of his services and, in paragraph 17, the Supreme Court held that the very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
88. In the same report, with regard to award of back-wages, it was held that payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. The Supreme Court further elaborately laid down various propositions, in paragraph 33 of its report stating that in case of wrongful termination of service, reinstatement with continuity of service and back-wages is the normal rule.
89. Reference of another decision of the Supreme Court in the case of Bhuvanesh Kumar Dwivedi Vs. M/s Hindalco Industries Ltd: 2014 (142) FLR 20 is also worth mention in which, while referring to the judgment in the case of Deepali Gundu Surwase (supra) the Apex Court has held that 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-à-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)....."
90. After discussing on the issue of reinstatement vis-a-vis back-wages, the Apex Court in the case of Mackinnon Mackenzie & Company Ltd. Vs. Mackinnon Employees' Union: 2015 (145) FLR 184, in paragraph 43, has held as follows:-
"43. Further, with regard to reinstatement of the concerned workmen and back- wages to be paid to them, the learned senior counsel on behalf of the workmen has rightly placed reliance upon the case of Anoop Sharma v. Executive Engineer 2010 (125) FLR 629 (SC), wherein it was held that since termination of employment is in breach or violation of the mandatory provisions of Chapter V-A or V-B of the I.D. Act is void ab initio in law and ineffective and suffers from nullity, in the eyes of law and in the absence of very strong and compelling circumstances in favour of the employer, the Court must grant a declaration that the termination was non est and therefore the employees should continue in service with full back wages and award all the consequential benefits. Further, with respect to payment of back wages and consequential benefits, reliance was rightly placed on the decisions of this Court in the cases of Deepali Gundu Surwase v. Adhyapak Mahavidyala (2013) 10 SCC 324 and Bhuvnesh Kumar Dwivedi v. Hindalco 2014 (142) FLR 20 (SC). This Court opined thus in the case of Deepali Gundu Surwase (supra):
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
91. In a very recent decision in the case of Armed Forces Ex Officers Multi Services Co-operative Society Ltd. Vs. Rashtriya Mazdoor Sangh (INTUC): 2022 (175) FLR 544, the Supreme Court rejected the contention of the employer to the effect that the Tribunal was not justified in directing continuity of service. In paragraph 16 it was held as under:-
"16. The further submission of the Appellant that the Tribunal is not justified in directing continuity of service, as in the case of retrenchment followed by re- employment, the workmen are not entitled to continuity of service needs to be answered. Even here, there is no quarrel with the principle of law that re- employment of retrenched workmen does not entitle them to claim continuity of service as held in Cement Corpn. of India Ltd. v. Presiding Officer Industrial Tribunal-cum-Labour Court and Anr., as well as the Maruti Udyog Ltd v. Ram Lal and Ors. However, the principle laid down in these judgments will only apply to cases where the retrenchment is bona fide. The Tribunal has held that the retrenchment of all the drivers followed by an offer of re-employment on new terms and conditions is not bona fide. Once the orders of retrenchment are set aside, the workmen will naturally be entitled to continuity of service with order of back wages as determined by a Tribunal or a Court of law."
92. The aforesaid view has been reiterated by the Supreme Court very recently in its judgment dated 23.09.2022 passed in Civil Appeal No.6890 of 2022 (Arising out of Special Leave Petition (Civil) No.8393 of 2022) Jeetubha Khansangji Jadeja Vs. Kutchh District Panchayat.
Conclusion
93. Following the law laid down in the aforesaid authorities and having considered the material on record, this Court is of the considered view that once the Tribunal found termination of the services of the petitioner as contrary to the provisions of law, relief only in the form of compensation etc would be unjust and the Labour Court should have directed reinstatement of the petitioner in service with full or 50% back-wages. The Court does not find any cogent reasoning in the order of the Labour Court in so far as the denial of relief of reinstatement or back-wages is concerned.
94. In view of the above, the writ petition succeeds and is allowed. The impugned award dated 20.07.2015, published on 02.01.2016, passed by the Presiding Officer, Labour Court (5), U.P., Meerut (respondent no.1) in Adjudication Case No.18 of 2002 (M/s Jagran Prakashan Ltd. Vs. Umesh Kumar) is hereby modified and it is directed that the petitioner (Umesh Kumar) shall be forthwith reinstated in his services. He shall also be entitled for back-wages to the extent of 50% from the date of his termination. All other consequential benefits of service are also awarded in favour of the petitioner (Umesh Kumar) which shall be released in accordance with law by the respondent-establishment without any delay.
95. Since the amount under the award was directed to be deposited under the interim order dared 20.05.2016 passed in Writ-C No.22872 of 2016 with a further direction that it shall be invested in a fixed deposit with a nationalized bank, it is hereby directed that on moving of an application by the workman (Umesh Kumar) before the Tribunal below, the Tribunal and the concerned bank shall facilitate release of the amount deposited in the nationalized bank through proper course to the petitioner (workman) not later than two months from the date a certified copy of this order is produced along with appropriate application. The said amount shall be adjusted towards financial benefits conferred upon the petitioner (workman) under this judgment.
End Result Writ-C No.23241 of 2016 (M/s Bureau Chief Rastriya Sahara and another Vs. Labour Commissioner U.P. and 2 others) is allowed; Writ-C No.23786 of 2016 (M/s Bureau Chief Rastriya Sahara and another Vs. Labour Commissioner and 2 others) is allowed; Writ-C No.22872 of 2016 (M/S Jagran Prakashan Ltd. Vs. Presiding Officer, Industrial Tribunal and another) is dismissed; and Writ-C No.27687 of 2016 (Umesh Kumar Vs. The Presiding Officer, Industrial Tribunal and another) is allowed.
Order Date :- 3.4.2023 AKShukla/-