Allahabad High Court
State Of U.P. Thru Executive Engineer ... vs Brahma Dev Tripathi And Another on 6 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2441
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 18 Case :- WRIT - C No. - 6109 of 2004 Petitioner :- State of U.P. Thru Executive Engineer And Another Respondent :- Brahma Dev Tripathi And Another Counsel for Petitioner :- S.C. Counsel for Respondent :- S.C.,Anil Yadav,Shyam Narain,Sudhanshu Narain Hon'ble J.J. Munir,J.
1. This writ petition is directed against an award made by the Presiding Officer, Labour Court, U.P., Gorakhpur, dated 05.03.2003 in Adjudication Case No. 532 of 1992 and published on 08.09.2003. The aforesaid award is hereinafter referred to as the ''impugned award'. By the impugned award, the Labour Court, on reference of an industrial dispute between the petitioners, hereinafter referred to as the ''employers' and respondent no. 1, Brahma Dev Tripathi, hereinafter referred to as the ''workman', have held termination of services of the workman with effect from 01.09.1991 to be illegal and unjustified. It has further been awarded that the workman would be entitled to reinstatement with continuity in service. About the period during which the workman remained out of employment and the date of the impugned award, the workman has been held entitled to 50% backwages. Costs of Rs. 300/- have also been awarded to the workman.
2. The case of the workman briefly put is that he was engaged as a Beldar in the year 1979, by the employers in their Tubewell Construction Division. He worked as such regularly and without break, putting in 240 days of service during successive calendar years. His services were terminated with effect from 01.09.1991, without notice or payment of wages in lieu of notice and also without payment of any retrenchment compensation. He urged, therefore, that his termination from service by the employers is illegal and improper. He is entitled to re-engagement with backwages.
3. At the instance of the workman, the Deputy Labour Commissioner, Gorakhpur, vide his memo dated 31.08.1992 made the following reference under Section 4-K of the U.P. Industrial Disputes Act, 1947 (for short the ''Act') for adjudication to the Labour Court (translated into English from Hindi vernacular):-
"Whether the act of the employers in terminating the services of their workman, Sri Brahma Dev Tripathi S/o Radhey Shyam Tripathi, Beldar with effect from 01.09.1991 is justified, and/or lawful? If not, to what relief/compensation the workman is entitled, and in what terms?"
4. Records from the lower Court, in this case, were summoned that have been perused with the assistance of learned counsel.
5. Post reference the case was registered before the Labour Court as Adjudication Case No. 532 of 1992 and notice was issued to the parties. The workman filed his written statement, dated 17.03.1993 supported by an affidavit of the said date. A written statement was filed on behalf of the employers (also supported by an affidavit of a supervisor in their establishment) dated 29.09.1993. A rejoinder statement was filed on behalf of the workman (supported by an affidavit of his own) dated 18.01.1994. A rejoinder statement in answer to the written statement filed by the workman (supported by an affidavit of a supervisor in their establishment) dated 19.09.1997 was filed. These make for all the pleadings that the parties filed before the Labour Court. In order to establish his case, the workman filed the best evidence available with him, secondary of course, in order to establish his case of being in engagement of the employers as their workman for the claimed period of time, and for the specified number of days, during each calendar year. In all, five documents (all photostat copies) were filed through a list dated 26.11.1997, bearing paper no. 15/B-(ii). A summary of these documents is as follows:
(I) A photostat copy of an application made after disengagement by the workman (along with some others similarly situate) demanding that the workman be re-engaged.
(II) A photostat copy of registered postal receipts regarding dispatch of the application above mentioned to the employers.
(III) A photostat copy (in three leaves) of a bonus payment bill drawn by the employers dated 04.09.1990, whereby a lump sum bonus for three years (1986-87, 1987-88 and 1988-89) was paid to the workman.
(IV) A photostat copy of a seniority list of daily wage workmen drawn up by the office of the Executive Engineer, Drainage Division-II, Basti, bearing memo no. 123/Drain. (kha), Basti-II.
(V) A list of workmen in current employment (at the time of submission of the documents) engaged after the workman but still retained in service, the list being signed by one Vijay Raj Singh, an Executive Engineer with the employers.
6. On 26.11.1997, an application was made to the Labour Court with a prayer that the documents mentioned therein, numbering three, be summoned from the employers. Against each of the documents indicated in a schedule at the foot of the application, on the right side, the purpose of summoning the relative documents is indicated. The first document sought to be summoned is the one a copy of which has been mentioned at serial no. 3 of the list of documents filed by the petitioner, that is to say, the bonus bill dated 14.09.1990. In addition, all muster rolls have been sought relating to the period of time, claimed by the workman to be the engagement period. A further document sought to be summoned is mentioned at serial no. 4 of the list dated 26.11.1997, that is the seniority list of employees, part of the letter of the Executive Engineer, Drainage Division-II, Basti dated 13.05.1991. The last document mentioned at the serial no. 5 in the application dated 26.11.1997 is one that carries the seniority list of workmen, signed by one Vijay Raj Singh,an Executive Engineer with the employers.
7. A perusal of the application dated 26.11.1997 would show that there is an order passed by the Presiding Officer, issuing notice to the employers. The order is endorsed on the face of the application and does not bear a date. Presumably, it was passed on the same date when the application was made. An objection to the said application was filed by the employers on 24.05.1999 enclosing therewith xerox copies of the muster roll for the year 1990, that is to say, the year preceding the one when the services of the workman were terminated. It is said in this objection dated 24.05.1999 that so far as the documents mentioned at serial nos. 1, 2 and 3 of the application dated 26.11.1997 are concerned, the said documents are not available in the office of the employers and are also not within their knowledge or information. It is, however, said that muster roll is necessary to demonstrate the number of days in the year that the workman has discharged his duties, and, therefore, a photostat copy of the muster roll for one year is being enclosed with the objection. A copy of the said objection dated 24.05.1999 is on record as paper no. 21-D. A photostat copies of the enclosed muster roll are also on record. At this stage, it must be remarked that this Court has gone through the original records and finds that the photostat copies of the muster roll filed, relates to the year 1990. It is there from the month of January to December, 1990, except for the months of February and March. There is no explanation about the missing muster roll for these two months. It must also be noticed here that on the face of the objections dated 24.05.1999, there is an order dated 01.11.2001 passed by the Presiding Officer that reads thus (part of the order that is in Hindi translated into English):
"Seen. This does not carry the summoned documents and this is not required at this stage.
Signed illegible 1.11.2001"
8. So much for the documentary evidence led on both sides. The workman has examined himself as a witness in support of his case on 01.11.2001 and has been cross-examined by the employers. The said deposition is on record. Likewise, on behalf of the employers, one Vindhyachal Prasad, a Junior Engineer posted with Devkali Pump Canal Division-II, Ghazipur, has testified as EW-1 on 03.05.2002. He has been cross-examined by the workman. The said deposition is also on record. On these pleadings and evidence, the Labour Court proceeded to hear and determine the adjudication case which led to the reference being answered by means of the impugned award, in favour of the workman, in terms already set out hereinabove.
9. Aggrieved, the present writ petition has been filed.
10. Heard Sri Shriprakash Singh, learned Standing Counsel appearing on behalf of the petitioners-employers and Sri Sudhanshu Narain, learned counsel appearing for the respondent-workman.
11. Learned counsel for the petitioner has argued that a specific plea has been taken before the Labour Court that the employers do not fall within the definition of ''Industry' as envisaged under the Act. As such, the Labour Court has no jurisdiction to decide the reference. It is urged on the basis of pleadings in paragraph nos. 12 and 13 of the writ petition that this plea about the Act being not applicable has not been considered. A perusal of the written statement filed on behalf of the employer and also the rejoinder statement does not show that the aforesaid plea was raised before the Labour Court. It appears to have been raised for the first time before this Court, which has been disputed by the workman. The workman has submitted that the department of Irrigation, Drainage and Tubewell Division are an Industry earning heavy profit from their activities. It has been submitted on behalf of the workman that the Act is squarely applicable. In writ petition No. 6108 of 2004 State of U.P. through Executive Engineer vs. Raj Karan and another decided on 01.09.2015, this question was raised before this Court on behalf of the petitioner, in the case of a similarly circumstanced workman. The workman employed with the Irrigation Department of the State, claimed illegal termination from service in breach of the provisions of the Act. This Court, relying on the authorities in State of U.P. vs. Presiding Officer, Industrial Tribunal (V), Meerut and another1 and State of U.P vs. Labour Court, Dehradun and another2, held the Department of Irrigation to be an industry within the meaning of the Act.
12. Sri Shriprakash Singh, learned Standing Counsel appearing on behalf of the employers has emphasized that the principal basis in times contemporaneous, when this reference was decided by the Labour Court to hold or readily assume the Irrigation Department to be an industry is the decision of the Constitution bench of the Supreme Court in Banglore Water Supply Sewerage Board vs. A. Rajappa3. He emphasized that now the correctness of their Lordships decision in Banglore Water Supply Sewerage Board (Supra), which is a Constitution Bench decision of five Judges has been referred for reconsideration to a larger Bench vide an order made in State of U.P. vs. Jai Bir Singh4. It is urged that in the the order of reference, where correctness of the principles laid down governing the definition of an industry have been doubted by their Lordships, relates to the Department of Irrigation, State of U.P. Learned counsel for the petitioner, therefore, submits that the matter may be adjourned, awaiting decision by the larger Bench of their Lordships.
13. Learned counsel for the workman, Sri Sudhanshu Narain points out that so far as there are no prospects of an early decision by the larger Bench of their Lordships of the Supreme Court, as the record of proceedings would show. He has urged that by a subsequent order dated 17.11.2016, judgment was reserved in the case by a seven Judge Bench of their Lordships, but on 02.01.2017 an order was passed referring the matter to a Bench of nine Judges. It is urged by learned counsel for the workman that there is no prospect of an early judgment by the nine Judge Bench of their Lordships in State of U.P. vs. Jai Beer Singh (Supra). It is not for this Court to speculate about the time when their Lordships would decide the issue, referred to the larger Bench of nine Judges. What this Court is concerned about is how the present cause ought to be decided. To the understanding of this Court, the law in Banglore Water Supply Sewerage Board (Supra) still holds the field and is the law so long it is not overruled by a decision of their Lordships, sitting in a Bench of larger strength. This issue was determined by their Lordships in R.M. Yellatti vs. Assistant Executive Engineer5, where the plea to adjourn decision pending outcome of the reference to the larger Bench in State of U.P. vs Jai Bir Singh (Supra) was declined in the following words:-
"11.At the outset, we may mention that we are not inclined to adjourn the matter sine die pending the decision of the larger Bench as urged on behalf of the management, particularly in view of the fact that there is nothing on record to indicate that the management had argued the point in question. As stated above, the Labour Court had ruled that the "irrigation department" was an "industry" in terms of Section 2(j) of the 1947 Act. Against the award of the Labour Court, the department had filed its writ petition in which the ground was taken as a plea to the effect that the irrigation department was not an industry in terms of Section 2(j) of the said Act. However, there is nothing in the decision of the learned Single Judge as well as in the impugned judgment to show as to whether the management had argued on this aspect of the case and, therefore, we are not inclined to await the decision of the larger Bench following the referral order in Jai Bir Singh [(2005) 5 SCC 1 : 2005 SCC (L&S) 642] . Even in the counter-affidavit filed before this Court, no such plea has been taken."
14. The plea was raised before the learned Single Judge of this Court in State of U.P. through Executive Engineer, Nichali Ganga Nahar, Phoolpur, Kanpur vs. the Labour Court(II), U.P. Kanpur and another in Writ Petition No. 35086 of 1998, decided on 21.02.2013. In the said decision, the prayer to adjourn pending decision by the larger Bench of their Lordships was also declined, holding thus:
"The Supreme Court in R.M.Yellatti vs. Assistant Executive Engineer vs. Assistant Executive Engineer, 2006(1) SCC 106 was faced with the same dilemma wherein it was contended before the Supreme Court that the matter should be adjourned since the judgment of the Supreme Court in Bangalore Water Supply was referred to a Larger Bench by a referral order, dated 5.5.2005 in State of U.P. vs. Jaibir Singh, 2005 (5)SCC 1. The Supreme Court declined to adjourn the matter sine die, in view of the fact that there was nothing on record to indicate that the Management had argued the point in question. Taking clue from the Supreme Court itself, the Court finds, that there is nothing on record indicating that the petitioner is not an "industry". Merely by alleging that the petitioner is not an "industry" does not take them outside the realm of the U.P. Industrial Disputes Act. The dominant nature test as illustrated in Bangalore Water Supply case (supra) has not been followed. Consequently, the Court is of the opinion, that the matter cannot be adjourned sine die."
15. In the present case also there is nothing pleaded before the Labour Court to show that the employers are not an industry. There is no case set up to that effect much less seriously, or evidence offered to establish the same. No doubt, a ground has been raised before this Court and it has been argued by Sri Shriprakash Singh that the employers are not an industry, but there is nothing seriously said to establish the fact that what the employers do is a sovereign function and that the workman was employed in aid of a sovereign function of the State. On this state of the pleaded case and evidence, this Court does not consider it appropriate to adjourn the matter as suggested by Sri Shriprakash Singh, learned Standing Counsel for the petitioner. In adopting this course, this Court is in respectful agreement with the decision in State of U.P. through Executive Engineer, Nichli Ganga Nahar (supra).
16. Turning to the issue whether the workman has been wrongly awarded relief/reinstatement with backwages, the case of the petitioner is based on a plea that he was retained on daily wage basis against a permanent vacancy, and that the employers terminated his services illegally, in an unauthorized manner, with effect from 01.09.1991. It has been specifically pleaded by the workman that during the entire period of his engagement, he has rendered continuous service with no break whatsoever. It has also been pleaded that the workman's services have been terminated without prior notice or payment of wages in lieu of notice or any retrenchment compensation. It has further been specifically pleaded by the workman that his services have not been terminated in consequence of any disciplinary proceedings, or any charge of misconduct. The further specific case is that workman has, prior to the termination of his services, completed 240 days and more of service in the preceding year, and in the each calendar year, that he has been in the service of the employer. The submission of learned counsel for the petitioner, on the basis of said case is that the employers have committed a clear violation of Section 6N of the Act. The employers rebutting the workman's case have pleaded in their written statement that the workman's services have not been terminated and he has never worked continuously. It is urged that it is wrong to say that the workman has been retrenched. The fact that the workman's services have not been dispensed with, in consequence of any disciplinary proceedings on a charge has not been denied. It has been averred, in particular, in paragraph no. 10 of the written statement that the petitioner was a daily-wager borne on the muster roll and that he did not work continuously. He was engaged from time to time, according to exigencies. The Labour Court on the basis of the evidence available has recorded the following finding relating to the issue whether the workman did work for 240 days in a calendar year, and about the nature of his engagement, as well as the legality of his termination from service (in Hindi vernacular):-
6& oknh dh vksj ls vfHkys[k lsok;kstdksa ls ryc fd;s x;s Fks ftuesa ls dqN vfHkys[k izLrqr fd;s x;s gSA MCywMCyw@1 Jfed czgenso f=ikBh dks ijhf{kr fd;k x;kA lsok;kstd dh vksj ls eLVj jksy dh Nk;k izfr;ka nkf[ky dh xbZ gS vkSj lsok;kstd lk{kh foa/;kpy izlkn] voj vfHk;Urk dks ijhf{kr fd;k x;kA mUgksus ;n~;fi vius lk{; esa dgk gS fd oknh dks vko';drkuqlkj j[kk tkrk Fkk fdUrq izfrijh{k.k esa mudk /;ku lsok;kstd ds fyf[kr C;ku dh vksj fnykrs gq;s iwNs tkus ij mUgksus dgk fd mlesa tks ;g fy[kk gS fd oknh us dHkh Hkh ,d o"kZ esa 240 fnu ls vf/kd dk;Z ugh fd;k gS] xyr gSA mUgksus ;g Hkh dgk fd og 89 ls 91 rd Mªsust [k.M&2 cLrh esa FksA oknh dks esjs dk;Zdky esa dHkh cSBdh ugha dh xbZA oknh dks cksul feyk gSA cksul mldks feyrk gS tks ,d o"kZ es 240 fnu ls vf/kd dke dj ysrk gSA bl izdkj ;g eku fy;k x;k gS fd oknh us ,d o"kZ esa 240 fnu ls vf/kd dk;Z dj fy;k FkkA 7& izkFkZuk i= 27@Mh lsok;kstd izfrfuf/k }kjk lk{kh dks gksLVkby ?kksf"kr djus gsrq izkFkZuk i= fn;k x;k tks fujLr dj fn;k x;k fdUrq lsok;kstd dks vfrfjDr lk{; nsus dk volj fn;k x;kA mUgksus dksbZ vfrfjDr lk{; izLrqr ugh fd;kA bl lk{kh bZMCyw@1 ls foHkkxh; izfrfuf/k us dksbZ ftjg ugh dh ftlls mls gksLVkby n'kkZ;k tk ldsA vU;Fkk Hkh ;g U;k;ky; ds foosd ij jgrk gS fd ;fn lk{kh gksLVkby gks x;k rks mlds lk{; ij fopkj fd;k tk; ;k ughaA esjs fopkj ls lk{kh ds dFku vkSj izfrijh{k.k dks ns[krs gq, ;g dgh ls ugha yxrk fd mDr lk{kh gksLVkby gks x;k gSA mlds egRoiw.kZ lk{; dks Lohdkj u djuk vuqfpr gksxkA 8& ;g Bhd gS 240 fnu dh rkjrE; lsok ,d o"kZ esa fl) djus Hkkj oknh ij Fkk fdUrq oknh ;g fl) djus esa lQy jgk gSA bZMCyw@1 ds lk{; ls ;gh fu"d"kZ fudyrk gS fd oknh us ,d o"kZ esa 240 fnu ls vf/kd dh lsok iw.kZ dj yh FkhA Jfed }kjk nkf[ky 15@ch¼2½ ds isij la0 4@2 ofj"Brk lwph gS ftlesa oknh Jfed dk uke Øekad 7 ij gS vkSj mldh fu;qfDr dk o"kZ 1979 n'kkZ;k x;k gSA bldk ewy lsok;kstdksa ls ryc fd;k x;k Fkk ijUrq mls nkf[ky ugha fd;k x;kA 9& eLVj jksy dh Nk;k izfr;ka tks nkf[ky dh xbZ gS mlesa tuojh o uoEcj 91 ds eLVj jksy dh Nk;k izfr;ak ugha nkf[ky dh xbZA 'ks"k leLr eLVj jksy nkf[ky fd;s x;s gSA 10& Lohd`r :i ls Jfed dks dksbZ uksfVl ;k uksfVl ds cnys osru rFkk NaVuh izfrdj ugha fn;k x;kA bl izdkj /kkjk 6,u ;w0ih0 vkSV~;ksfed fookn vf/kfu;e 1947 ds izkfo/kkuksa dk vuqikyu ugha fd;k x;kA bl dkj.k oknh dks lsok ls oafpr fd;k tkuk vuqfpr ,oa voS/kkfud gSA
17. This Court has also looked into the evidence on record and found that there is on record, documentary evidence regarding payment of bonus to the workman for three consecutive years, that is to say, 1986-87, 1987-88 and 1988-89. The employers have not produced the original of the documents that have been filed by the workman. They have not said in their objection to the application, seeking to summon the original, that the documents are got up, or challenged the veracity of those documents. All that they have said is that these documents are not traceable. The Labour Court has, therefore, not at all erred in looking into documents, filed by the workman as secondary evidence, going by the best evidence rule. There is also this fact that the employers have filed photostat copies of the muster roll, and not the original for the year 1990. They have not filed the muster roll of any earlier period of time.
18. In objection dated 24.05.1999, along with which muster roll for the year 1990 has been filed, it has not been said that no muster roll relating to the workman, for an earlier period of time is available. It is just said that the employers are filing photostat copies of the muster roll, for one year, in order to show the number of days during the year preceding his termination that the workman has been engaged. The muster roll has been filed for ten months of the year 1990; it is filed for each month of the year, except for months of February and March, 1990. The total number of working days during ten months in the muster roll that has been filed aggregate a figure of 198 days. It is not the employers' case that during the year 1990, the workman did not turn up during the months of February and March, or that he was not engaged during those months. There is absolutely no explanation why muster roll for the two months of February and March, 1990 has not been filed. Therefore, the Labour Court has rightly drawn an adverse inference against the employer that the workman has worked for those two months also, and that would make for 240 days in the year, preceding his termination from service. It is also not disputed by the employers that the workman was not paid bonus or that his seniority, regarding which the workman has produced a seniority list is a bogus document. On the foot of these facts and evidence the Labour Court has drawn a plausible inference that the workman has been engaged for 240 days, during preceding calendar year, when his services were terminated and further that the workman has rendered services from 1979, continuously until 01.09.1991. Admittedly, no notice in accordance with Section 6 N of the Act has been served upon the workman in writing, indicating the reasons for retrenchment or the workman has been paid for the period of notice in lieu and/or paid any retrenchment compensation, in accordance with the provisions of Section 6 N of the Act.
19. At this Stage, notice must be taken of the submission made very forcibly by Sri Shriprakash Singh, learned Standing Counsel to the effect that even if termination from service is bad in law on account of a wholesome violation of Section 6 N of the Act, relief of reinstatement and that too with 50% backwages, ought not have been granted by the Labour Court, as a matter of course. It is urged that the Labour Court has not noticed any special circumstances, why relief of reinstatement has been granted, even if termination of services has been found to be fowl of the provisions of Section 6N of the Act, inasmuch as, in the case of a daily wager reinstatement ought not to be normally granted. He submits that in case of daily wage engagement of a few years, even if termination of services is found to be illegal and in violation of Section 6N of the Act, a lump sum compensation appropriately assessed, would serve as good remedy.
20. The aforesaid submission of the learned counsel for the petitioner has been disputed by Sri Sudhanshu Narain, learned counsel for the workman, who says that relief of reinstatement has been granted bearing in mind the long and continuous engagement of the workman as a daily-wager, which in this case is a period of 11 years and more. He submits that it is not a case where the workman has been engaged for a short period of 2-3 years to take care of some exigency, but one where long engagement of the workman on daily wages shows that he was employed to do work referable to a permanent post, though he was not appointed to any post. He submits that this course of long engagement clearly shows a case of unfair labour practice.
21. Learned counsel for the employer relied upon a decision of this Court in State of U.P. and another Vs. Hind Majdoor Sabha and others6. He has drawn attention of this Court to paragraphs nos. 7, 8, and 21 of the report, which read thus:
"7. For the purpose of granting relief the relevant aspects which have to be considered are the nature of employment/engagement of workman concerned, the manner in which he was engaged, his right to hold the post, right to continue in service, the wages to which he is entitled etc. If a person is a permanently employed and has been terminated/retrenched without following the procedure prescribed under Section 6-N of the Act, in such a case since the workman has a right to the post and right to continue, relief of reinstatement may be justified. But there also various other aspects, namely, whether industrial establishment is continuing, whether the post on which the incumbent was working, is continuing or not and similar other relevant factors. In a case of casual or daily wage employee, even in ordinary circumstances, he neither has any right to hold the post nor to continue in service. A daily wage employee commences his service in morning and it comes to an end in evening. The very next day he has no right unless the employer choses to engage him. It is for this reason, law contemplate that a workman in order to attract Section 6-N of the Act need not work throughout the year but it would be sufficient if he has worked for 240 days in a year.
8. Existence of post, the manner in which one was engaged, whether engagement was consistent with some statutory provisions prescribing mode of recruitment and selection etc. are other relevant factors which have to be considered while granting relief. These aspects have been referred to and pointed out in a catena of decisions, some of which I may refer hereat.
21. In the facts and circumstances of the case since the workman was engaged on daily wage basis only for a short period of four years and was disengaged on 01.09.1992 and also considering the fact that his initial recruitment was not in accordance with procedure prescribed in law consistent with Article 16 of the Constitution, in my view, the relief of reinstatement and back wages to the extent of 50% ought not to have been granted. The workman may be granted a lumpsum compensation which is equivalent to six months' wages and would be calculated on the basis of payment last made to workman at the time of his termination..........."
22. He has further relied on a decision of the Supreme Court in Vice-Chancellor, Lucknow University, Lucknow, Uttar Pradesh Vs. Akhilesh Kumar Khare and another7. He has invited the attention of the Court to what their Lordships have held regarding the right of reinstatement of a daily-wager, even if his services were terminated in violation of the statutory mandate of Section 25-F of the Industrial Disputes Act, 1947 (equivalent of Section 6N of the Act). In Vice-Chancellor, Lucknow University, Lucknow (Supra), it has been held:
"18.In considering the violation of Section 25-F of the Industrial Disputes Act, 1947 inIncharge Officer v. Shankar Shetty [(2010) 9 SCC 126 : (2010) 2 SCC (L&S) 733] and after referring to the various decisions, this Court held that the relief by way of back wages is not automatic and compensation instead of reinstatement has been held to meet the ends of justice and it reads as under: (SCC pp. 127-28, paras 2-4) "2. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short ''the ID Act')? The course of the decisions of this Court in recent years has been uniform on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board [(2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] , delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] , Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353 : (2007) 2 SCC (L&S) 813] , State of M.P. v. Lalit Kumar Verma [(2007) 1 SCC 575 : (2007) 1 SCC (L&S) 405] , M.P. Admn. v. Tribhuban [(2007) 9 SCC 748 : (2008) 1 SCC (L&S) 264] , Sita Ram v. Moti Lal Nehru Farmers Training Institute [(2008) 5 SCC 75 :(2008) 2 SCC (L&S)71], JaipurDevelopmentAuthority v. Ramsahai [(2006) 11 SCC 684 : (2007) 1 SCC (L&S) 518] , GDA v. Ashok Kumar [(2008) 4 SCC 261 : (2008) 1 SCC (L&S) 1016] and Mahboob Deepak v. Nagar Panchayat, Gajraula [(2008) 1 SCC 575 : (2008) 1 SCC (L&S) 239] and stated as follows: (Jagbir Singh case [(2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] , SCC pp. 330 & 335, paras 7 & 14) ''7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.'
4.Jagbir Singh[(2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] has been applied very recently inTelegraph Deptt. v. Santosh Kumar Seal[(2010) 6 SCC 773 : (2010) 2 SCC (L&S) 309] , wherein this Court stated: (SCC p. 777, para 11) ''11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.'"
19. In the light of the above discussion, the impugned judgment [Lucknow Universityv.Manoj Misra, 2009 SCC OnLine All 2079] of the High Court is modified and keeping in view the fact that the respondents are facing hardship on account of pending litigation for more than two decades and the fact that some of the respondents are overaged and thus have lost the opportunity to get a job elsewhere, interest of justice would be met by directing the appellant University to pay compensation of rupees four lakhs to each of the respondents. By order dated 11-7-2011, this Court directed the appellant to comply with the requirements of Section 17-B of the Industrial Disputes Act, 1947 and it is stated that the same is being complied with. The appellant University is directed to pay the respondents rupees four lakhs each within four months from the date of receipt of this judgment. The payment of rupees four lakhs shall be in addition to wages paid under Section 17-B of the Industrial Disputes Act, 1947."
23. In order to buttress his submission, learned Counsel for the employer has placed reliance upon a recent decision of the Supreme Court in District Development Officer and another Vs. Satish Kantilal Amreliya8. It has been held in District Development Officer and another (Supra) thus:
12. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, the findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in the civil court and the other in the Labour Court in challenging his termination order and seeking regularisation in service, which resulted in passing the two conflicting orders -- one in the respondent's favour (Labour Court) and the other against him (civil court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two-and-half years approximately and coupled with the fact that 25 years have since passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in BSNL v. Bhurumal [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals.
13. It is apposite to reproduce what this Court has held in BSNL [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35) "33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come, first go viz. while retrenching such a worker daily-wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."
14. We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Section 25-G of the Act. In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered and further the averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed by this Court in para 35 of BSNL case [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] due to finding of Section 25-G of the Act recorded against the appellant. In other words, there are reasons to take out the case from exceptional cases contained in para 35 because we find that the appellant did not resort to any kind of unfair practice while terminating the services of the respondent.
15. In view of the foregoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of reinstatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in BSNL case [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] .
16. Having regard to the totality of the facts taken note of supra, we consider it just and reasonable to award a total sum of Rs 2,50,000 (Rs two lakhs fifty thousand) to the respondent in lieu of his right to claim reinstatement and back wages in full and final satisfaction of this dispute."
24. Learned counsel for the workman Sri Sudhanshu Narain, on the other hand, has placed reliance upon a decision of the Supreme Court in Devinder Singh Vs. Municipal Council, Sanaur9, where the argument that had prevailed with the High Court to set aside the award of the Labour Court directing reinstatement of the workman, was that the employment of the workman with the respondent Municipal Council from 01.08.1994 to 19.09.1996 was engagement on contractual basis and that it was an appointment made contrary to the recruitment rules. The High Court had taken view that it would be violative of Articles 14 and 15 of the Constitution, and, that it would not be in public interest to sustain the award of reinstatement after a long lapse of time. Learned counsel for the workman has relied on paragraph nos. 10, 12, 13, 14, 19, 20, 27 and 28 of the report in Devinder Singh (supra), where it is held thus:-
10. The definition of the term "retrenchment" is quite comprehensive. It covers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill health also do not fall within the ambit of retrenchment.
12. Section 2(s) contains an exhaustive definition of the term "workman". The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term "workman".
13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
14. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of "workman".
19. InAnoop Sharma v. Public Health Division [(2010) 5 SCC 497 : (2010) 2 SCC (L&S) 63] the Court considered the effect of violation of Section 25-F, referred to various precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in Sections 25-F(a) and (b) should ordinarily result in his reinstatement.
20. We may now advert to the impugned order. A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of time. In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477] , Sawarn Singh v.State of Punjab [(1976) 2 SCC 868] , PGI of Medical Education & Research v. Raj Kumar[(2001) 2 SCC 54 : 2001 SCC (L&S) 365] , Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] and Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] .
27. It is true that the engagement of the appellant was not preceded by an advertisement and consideration of the competing claims of other eligible persons but that exercise could not be undertaken by the respondent because of the ban imposed by the State Government. It is surprising that the Division Bench of the High Court did not notice this important facet of the employment of the appellant and decided the writ petition by assuming that his appointment/engagement was contrary to the recruitment rules and Articles 14 and 16 of the Constitution. We may also add that failure of the Director, Local Self-Government, Punjab to convey his approval to the resolution of the respondent could not be made a ground for bringing an end to the engagement of the appellant and that too without complying with the mandate of Sections 25-F(a) and (b).
28. The other reason given by the High Court is equally untenable. The appellant could hardly be blamed for the delay, if any, in the adjudication of the dispute by the Labour Court or the writ petition filed by the respondent. The delay of four to five years in the adjudication of disputes by the Labour Court/Industrial Tribunal is a normal phenomena. If what the High Court has done is held to be justified, gross illegalities committed by the employer in terminating the services of workman will acquire legitimacy in majority of cases. Therefore, we have no hesitation to disapprove the approach adopted by the High Court in dealing with the appellant's case.
25. Further, reliance has been placed by the learned counsel for the workman on a decision of their Lordships of the Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak and others10, where attention of this Court has been drawn to paragraph no. 33 of the report, holding thus:
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed onlesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-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.
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal5 (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
26. This Court has given a thoughtful consideration to the matter. It appears that the law, with regard to the reinstatement of a dailywager employed with the State or a State instrumentality, has become an instance of overlap between principles of service law and labour law in those spheres of state activity that have come to be regarded as ''industry' in the aftermath of the decision in Bangalore Water Supply Sewerage Board (supra). While, service law frowns upon employment under the State through any means otherwise than open public recruitment, or in a manner other than that the relevant service rules envisage, Industrial Law has no such ambitions. Difficulties, therefore, arise where engagement of a workman is made by a Government Department on dailywage basis and continued long enough to entitle him to the protection of Industrial Laws.
27. The aforesaid question fell for consideration of their Lordships of the Supreme Court in U.P. Power Corpration Ltd. vs. Bijli Mazdor Sangh11, where the jurisdiction of Labour Court to administer the Industrial Laws was considered vis-à-vis the constitutional commitment of the State to uphold the rule of equality envisaged under Article 14, which particularly applies to services under the State. In that context, it was held in U.P. Power Corporation Ltd. (supra) thus:-
6. It is true as contended by learned counsel for the respondent that the question as regards the effect of the industrial adjudicators' powers was not directly in issue in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . But the foundational logic in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] is based on Article 14 of the Constitution of India. Though the industrial adjudicator can vary the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularisation, the same cannot be viewed differently.
7. The plea of learned counsel for the respondent that at the time the High Court decided the matter, decision in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] was not rendered is really of no consequence. There cannot be a case for regularisation without there being employee-employer relationship. As noted above the concept of regularisation is clearly linked with Article 14 of the Constitution. However, if in a case the fact situation is covered by what is stated in para 45 of Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] the industrial adjudicator can modify the relief, but that does not dilute the observations made by this Court in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] about the regularisation.
28. The subject received more comprehensive treatment by their Lordships of Supreme Court in Maharashtra State Road Transport Corporation Vs. Casteribe Rajya Parivahan Karmchari Sanghatana12, where the question was, whether the Constitution Bench decision of the Supreme court in State of Karanataka Vs. Uma Devi13 would detract from the rights of a workman under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971. It was held thus by their Lordships in Maharashtra State Road Transport Corporation (supra):-
30. The question that arises for consideration is: have the provisions of the MRTU and PULP Act been denuded of the statutory status by the Constitution Bench decision in Umadevi (3)[(2006) 4 SCC 1 : 2006 SCC (L&S) 753] ? In our judgment, it is not.
31. The purpose and object of the MRTU and PULP Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedules II, III and IV. The MRTU and PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the court be necessary to effectuate the policy of the Act.
32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
33. The provisions of the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi (3)[(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . Unfair labour practice on the part of the employer in engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
34. It is true that Dharwad Distt. PWD Literate Daily Wages Employees' Assn. [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902] arising out of industrial adjudication has been considered in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] leaves no manner of doubt that what this Court was concerned in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognised by the rules or procedure and yet orders of their regularisation and conferring them status of permanency have been passed.
35. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established.
(Emphasis by Court)
29. It must be remarked here that though the present case does not relates to a claim for regularization in service, that question assumes some relevance in context of the fact that if just for the violation of the rule under Section 6N of the Act, a daily-wager is to be reinstated in service, it may be nothing more that reinstatement for sake of it. This is so because the employer may dispense with the services of the workman, again immediately upon reinstatement, after following the procedure prescribed under Section 6N of the Act. It is in this context that the most workable principles have been laid down by their Lordships on the subject in B.S.N.L. Vs. Bhurumal14 which have been quoted with approval in District Development Officer (supra). One of the exceptions to the rule that does not favour reinstatement of a daily-wage worker is the one referred in paragraph 35 of the report in B.S.N.L. vs. Bhurumal (supra). It has been said there that a daily-wager, whose termination is found to be illegal, would be entitled to reinstatement, if it was as a measure of unfair labour practice, or in violation of the principle of the last come first go, that is to say, a case where juniors to the retrenched workman are retained. There is also reference to a contingency, where the juniors to the retrenched workman may have been regularized under some policy of the employer, whereas the workman's engagement has been terminated. It has been held that in such circumstances, reinstatement should be ordered as a rule and denial only in exceptional circumstances for reasons recorded.
30. Here, the workman has taken a specific plea in his written statement that he was employed on a regular basis against a permanent vacancy in the year 1979. Assuming that there is no proof about a regular selection and appointment on record, the workman's case that he was retained against a permanent vacancy has not been dispelled by any evidence on behalf of the employer. Rather, in the cross-examination of the employer's witness, Vindhyachal Prasad, an Executive Engineer, it has been admitted that the stand of the employers in the written statement that the workman had never worked for more than 240 days in a calendar year, was incorrect. The employer's witness has further admitted that he was posted with the Drainage Division-II, Basti from the year 1989 to 1991. During the said period of time, the workman never absented from duty. It is also admitted that workman was paid bonus and that this bonus was paid to those workmen, who put in more than 240 days in a calendar year. There is evidence on record about a seniority list, where the workman is at serial No. 9 and also documentary evidence about payment of bonus to the workman for the years 1986-87, 1987-88 and 1988-89. On the basis of this evidence, the Labour Court has drawn an inference that the workman has been in continuous employment with the employer for a period as long as 11 years and more. It does appear that this long period of retention in service lends credence to the workman's case that he was engaged against a permanent vacancy; it is quite another matter that he was not selected or appointed to it, in accordance with law. There is also a further plea by the workman specifically pleaded in paragraph No. 13 of written statement that juniors to him have been retained in service, and many of these juniors have been appointed later on, violating the principle of first come last go. In his evidence, the workman has specifically said in the cross-examination that one Gyan Das is working in his stead. He has said in his examination-in-chief that his name was at serial No. 7 of the seniority list, but juniors to him have been retained in service. It has also been said in his examination-in-chief that the workman at serial No. 8 of the divisional seniority list which does not carry his name, is continuing in service. It has also been asserted that before raising this industrial disputes, he demanded re-engagement from the employer. This evidence of the workman remains unrebutted on record.
31. Under the circumstances, the conclusions drawn by the Labour Court in favour of reinstatement of the workman, seems to accord with the law. It must also be remarked here that the decision to reinstate in accordance with principles generally accepted, laid down in BSNL vs. Bhurumal (supra) clearly appear to obtain in the present case. It is particularly so on account of fact that the workman was engaged against a permanent vacancy, the fact that he was permitted to continue in regular service for as long a period as 11 years and more, and, the fact that juniors to him have been retained in service, whereas the workman's services were terminated in violation of Section 6N of the Act. It would be worthy to note also that in the decision of this Court rendered in State of U.P. Vs. Hind Mazdoor Sabha (supra), the workman had worked for a period of four years. Likewise, in the decision of their Lordships of the Supreme Court in Vice-Chancellor, Lucknow University Lucknow vs. Akhilesh Kumar Khare (supra), the workman had worked for about one and a half years and not against any sanctioned post, and likewise, in the decision in District Development Officer Vs. Sateeh Kantilal Amerilya (supra), the workman concerned had broken engagements of a short duration in two spells, one being 5 months 15 days, and the other, 1 year and 9 months. Thus, the decision in those cases by their Lordships of the Supreme Court or by this Court would not come to rescue of the employer, in the facts that obtain here.
32. In view of the facts indicated above, this Court does not find any good ground to interfere with the impugned award passed by the Labour Court.
33. Accordingly, the writ petition fails and is hereby dismissed.
34. The interim order dated 16.02.2004 stands vacated. Costs easy.
Order Date :- 06.11.2019 Deepak