Allahabad High Court
State Of U.P. And Another vs Komal Yadav @ Ram Komal And Another on 21 December, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 18 Case :- WRIT - C No. - 58897 of 2012 Petitioner :- State Of U.P. And Another Respondent :- Komal Yadav @ Ram Komal And Another Counsel for Petitioner :- Anoop Kumar Srivastava Counsel for Respondent :- Chandra Bhan Gupta, S.C., Shyam Narain, Sudhanshu Narain Hon'ble Ajit Kumar,J.
Heard Sri Amit Manohar, learned Additional Chief Standing Counsel assisted by Sri R.M. Vishwakarma, learned Standing Counsel for the petitioners and Sri Sudhanshu Narain, learned Advocate appearing for the respondent No.1.
The petitioner no.1 is a Forest Department of the Government of Uttar Pradesh and petitioner no.2 is the Forest Range Officer of the Sohagibarwa Range (Shivpur), Maharajganj. The petitioners are aggrieved against the award passed by the Industrial Tribunal dated 04.11.2011 directing for reinstatement of respondent- workman namely Komal Yadav @ Ram Komal (herein after referred to as 'workman') with backwages alongwith interest at the rate of 9%.
Three-fold argument has been advanced before the Court:-
(A) The reference was highly barred by time as having been made after almost a decade of the alleged retrenchment dated 09.08.1991 of the workman;
(B) The department being a Forest Department and having no history of unfair labour practice, could not have been directed to reinstate the workman and the one time compensation should have been ordered instead; and (C) The Tribunal was not justified in directing for payment of backwages alongwith interest at the rate of 9% without assigning any special reason so as to direct for payment of interest.
The petitioner department has argued that instead of reinstatement, it could have been directed for payment of compensation only. He has relied upon the judgment in the case of State of Uttarakhand & anr vs. Raj Kumar; 2019 (14) SCC 353.
Per contra, it is argued by the learned counsel appearing for the respondent-workman, Mr. Sudhanshu Narain that mere delay in making reference by the State Government would by itself not be a ground to reject the reference as barred by time, inasmuch as, the petitioner was pursuing the matter with the department that was already busy in absorption of certain daily rated workers employed within a cut off date, inasmuch as, matter was already engaging attention of conciliation officer and even in the year 2000 he had reiterated his claim with the department. It is argued that if State has taken time in making a reference, the time taken was in his control so he should not be penalised for the same. He submits that neither the petitioner, nor the State Government can be said to be in any manner responsible for any delay and latches. In support of his argument, learned Advocate has relied upon a judgment of the Supreme Court in the case of Chief Engineer, Ranjeet Sagar Dam & another vs. Sham Lal 2006 (9) SCC 124.
Counsel for the contesting respondent-workman has secondly argued that the department has a history of hiring labour and firing them at its sweet will and this is the reason why for many decades the department is faced with a large number of litigations before the High Court wherein ultimately directions were issued to consider the absorption of such daily wage workers/casual workers. He submits that still a number of petitions are pending where directions have been issued for payment of minimum wages to such daily rated workers who could not have been absorbed in the regular cadre. In support of his above argument, the respondent-workman has relied upon an order of High Court in the case of State of Uttar Pradesh & others vs. Ram Swarup & another 2003 (99) FLR 665 and State of Uttar Pradesh & others vs. Shri Prahalad & others passed in Civil Misc. Writ Petition No.28491 of 2006. Counsel for the respondent-workman has also argued that if the workman had worked for 240 days, he deserved to be reinstated but he had been fired. Such an act on the part of the department would certainly be in violation of Sections 6N, 6P and 6Q of the Industrial Disputes Act, 197 (in short 'the Act of 1947') and, therefore, such a workman would deserve reinstatement.
The third argument advanced by the learned counsel for the contesting respondent-workman is that once the termination of the workman was found to be an illegal retrenchment, the workman became entitle to not only reinstatement but also backwages. He submits that the Tribunal has been reasonable enough in giving only 50% of the backwages with interest and, therefore, the award passed by the Tribunal cannot be faulted with in the given facts and circumstances of the case of the department in particular. In support of his argument, learned Advocate has relied upon the judgement of the Supreme Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak; 2013 (139) FLR 541. He has also been relied upon by the judgment of a co-ordinate bench of this Court in the case of Standard Chartered Bank vs. Presiding Officer, Central Government Industrial Tribunal & others; 2014 LawSuit (All) 3872. He has also relied upon a judgment of the Supreme Court in the case of Allahabad Bank & others vs. Avtar Bhushan Bhartiya rendered in Special Leave Petition No.32554 of 2018 on 22.04.2022 by which the 50% backwages order passed by the High Court was upheld.
Counsel for the respondent-workman has further placed a judgment in the case of Abhimanyu & others vs. The Principal Secretary State of UP & anr of the same forest department passed in where reinstatement with 50% of the backwages was upheld by the High Court being similarly circumstanced with such two other workers of the same department decided on 28.02.2018. The special leave petition filed against the said judgment being Special Leave Petition (Civil) Diary No.5426 of 2020, was also dismissed.
Before dealing with the rival submissions made on behalf of the respective parties, it becomes imperative to refer to the facts of the case in a nutshell.
The respondent-workman claimed before the Tribunal to have been engaged as a gate-man in the month of February, 1987 initially, in the Nichlaul Range of the Forest Department of the then district of Gorakhpur (now District Maharajganj). Later on, he was transferred to Sohagibarwa Unit which was earlier part of the Nichlaul Range but later on became an independent range and the petitioner discharged his duties at the barrier in the capacity of a gate-man. It was claimed that certain officials were got annoyed with him as he demanded the prescribed payscale and upon his insistence, he was suddenly fired on 09.08.1991 orally by the officials of the department and, therefore, he was never permitted to work. So, the respondent-workman claimed to have worked with the department of forest as a gate-man upon a barrier in the forest range from February, 1987 to August, 1991 i.e. more than 4 years regularly without even a break of single day.
The department, on the contrary, denied the claim of the respondent that he was hired and then fired. There was no record traceable with the department, inasmuch as, the reference having been made after more than 12 years of his alleged retrenchment from employment, the industrial dispute deserved to be rejected. It was pleaded before the Tribunal that the department had its own selection committee and whenever the vacancy arose, its due publication was made and a person was employed through prescribed selection process. The department also took the plea before the Tribunal that the settled law was that there would be no back door entry in the employment as had been held by the Supreme Court in number of decisions and, thus, the department submitted that the respondent-workman did not deserve any relief.
The respondent-workman filed a number of documents like demand letter dated 06.04.2000 raised by him, the registry receipts signed by him, the certificate of working, the transfer order, the register containing entry of the vehicles that were checked at the barrier and the copies of the attendance register maintained since April, 1991. The workman deposed before the Tribunal that he was appointed on 02.02.1987 and that he worked at Nichlaul Range since April, 1987. When he was transferred to Sohagibarwa Range, he used to check the vehicle. He deposed that the work used to be done in three shifts and was permitted to work only till 08.08.1991 i.e. a day before he was orally fired by the officials of the department on 09.08.1991. He claimed that he was not given any employment letter and he was engaged for Rs.299/- per month and later on it was raised to Rs.750/- per month and that amount he was getting at the time he was fired from the department. One Jairam Yadav also entered into witness-box on behalf of the workman. This gentlemen was working as Nikasi Munshi (Niryat Muharrir) who later on retired. He deposed that Komal Yadav had worked with him and that Komal Yadav was engaged at Nichlaul Range in February, 1987. He also deposed that the duty of the gate-man at the barrier was to lift the barrier when the vehicle came to carry out checking and then down the barrier after vehicle was given passage. He further deposed that later on he (workman) was transferred to Sohagibarwa Range where he worked till August, 1991 i.e. till the date when the workman was fired. He deposed that the duty used to be done in shifts and Komal Yadav used to perform 12 hours duty in a shift. He deposed that he was not taking any attendance of Komal Yadav and it was an official of the department who used to take attendance.
From the petitioner-department's side, One Vijaykant Pandey was produced before the Tribunal as a witness who was working in the Forest Department as Forest Ranger. He deposed that there was a World Bank Scheme to plant trees on the roadside, on the station of the railways in the Gram Samaj road and other public places and since there was more workload with the department, so in order to meet the requirement and utilise the fund given by the World Bank, that engagement used to be done for plantation work. With the end of the plantation work, the services of the labourer would come to an end and no labourer was employed on a permanent basis. They were engaged on daily wage basis and since the project of the world bank came to an end in 1991. He deposed that he was posted in Shivpur Range on the post of Forest Officer since the year 2005 and during the relevant period 1987 to 1991, he was working in Ballia range. He admitted documents of list of daily rated workers of the range to have been prepared by the department but refused to recognise the respondent-workman. He admitted that since he was not working in the range in question, he could say nothing about the respondent-workman.
The Tribunal having appreciated the documentary evidence brought on record and the depositions made by the witnesses of the parties, the register which showed subsequent engagement of two daily wage workers namely Rajaram and Gaffar etc., came to conclude that the depositions made by the workman and his witnesses could not be rebutted by the departmental witness, inasmuch as, the documents revealed that the respondent-workman worked as daily rated employee for 240 days with the department and the officials of the department fired him without giving him any notice in advance. The Tribunal concluded that the respondent having worked for more than 240 days, as was reflected from the depositions made and that could not be rebutted by the departmental witness, so the inevitable conclusion was that the respondent-workman was wholly illegally retrenched. The Tribunal concluded that if the workman was working in some project of the World Bank, he ought to have been posted on one place to do some plantation work but the evidence demonstrated otherwise as the workman worked at some barrier in one place and then transferred to some other place within the forest range. The Tribunal, therefore, held that the retrenchment of the workman was illegal in violation of Section 6-N, 6-P and 6-Q of the Act of 1947 and he having worked for more than 240 days definitely deserved notice before termination from service. Thus, the oral termination of the respondent-workman was held null and void and workman was directed to be reinstated in service. Since, the respondent-workman worked for 240 days and retrenchment was held illegal as null and void in compliance of the statutory provisions of the industrial laws, he was held entitled to backwages also to the extent of 50%. The Tribunal also directed for payment of interest.
Having heard the learned counsel for the respective parties, their submissions raised across the bar and perusing the award of the Tribunal, two issues needed to be addressed:-
(i) Whether the reference was highly belated one and deserved rejection?; and
(ii) Whether payment of backwages with interest is justifiable.
The contention advanced by the learned counsel appearing for the petitioner-department that such a delayed reference ought to have been rejected. In my considered view, merely because there was delay in making reference would not by itself be a ground to reject the reference. In the case of Chief Engineer Ranjeet Sagar Dam (supra), the Supreme Court has held that no universal formula can be laid down to refuse the reference on the ground of delay as there was no time limit prescribed for the Government to exercise power of making reference. The Court was of the view that there must be some rational basis upon which the power should be exercised after lapse of such a period which otherwise could be said to be sufficient enough to hold the parties seeking for reference, guilty of delay and latches. While it is true that such a stale case cannot be opened taking recourse to the powers of the State Government to make a reference but this will all depend upon the facts of the case. Vide paragraphs 9 & 10, the Court held thus:
9. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case.
10. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. vs. K.P. Madhavankutty and Ors. (2000 (2) SCC 455) it was noted at paragraph 6 as follows:
"6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex-facie bad and incompetent."
A workman working in a government department if retiring from his services, he cannot be in a bargaining position. A poor daily rated worker is fired suddenly in one fine morning can only lament for his sorry tale for the treatment given to him. Matter if remained pending with Conciliation Officer and State took its own time in making reference, the workman concerned should not be denied adjudication only for delay, more especially in the circumstances when no time limit is prescribed for making reference. In my equitable jurisdiction under Article 226, I do not intend to interfere with the award on this ground and hence argument raised by the petitioner is rejected.
Coming to the second aspect that the Tribunal ought not to have directed for reinstatement with backwages and interest and should have ordered for payment of one-time compensation as the department does not have any history of unfair labour practice, I find the present case is of the Forest Department and it is an open secret that in the department of forest, there is a practice of engaging people for the forest work on a daily wage basis. Thousands of daily wagers/casual labours have sought regularisation by moving to this Court through writ petitions under Article 226 of the Constitution and still number of writ petitions are pending for absorption. The case of State of Uttarakhand vs. Raj Kumar (supra) relates to department of Bharat Sanchar Nigam Ltd. whereas the petitioner's case is of the forest department where the history has been to hire casual labourers or daily rated workers on a regular basis and then illegally fire them. A series of reference has been made in respect of various such workers where reinstatement has been ordered with 50% backwages and, therefore, in my considered view, the judgment cited by the learned Additional Chief Standing Counsel, Mr. Amit Manohar is distinguishable on the facts of the case and is of no help to him. The case of Abhiumnayu and others (supra) , State of UP & ors vs. Ram Swarup & anr (supra) and State of UP & ors vs. Shri Prahalad & ors (supra) are all related to forest department. So, the history is otherwise what has been argued by the learned counsel appearing for the department. As a matter of fact, department failed to produce any officer as witness who might have worked either at Nichlaul Range or Sohagibarwa Unit now range. The departmental witness referred to some plantation scheme of World Bank in which daily rated workers used to be engaged but failed to even state that respondent-workman was engaged there. He admitted list of workers of the concerned range but said he did not know the workman so he would not say anything. It is quite obvious that if an officer had never worked in the concerned range during relevant period, he would not be knowing any thing about engagement of daily rated workers there. This officer admitted to be working at Ballia at relevant time and so he should not have been produced. The department virtually failed to rebut the claim set up and their claim led by the respondent-workman. On a pointed query being made, learned Additional Chief Sanding Counsel could neither dispute the documentary evidence led, nor could dispute that the workman's witness who supported the working of the workman at the barrier of the range, was not employee of the department. The learned Additional Chief Standing Counsel also could not dispute history of litigation by such workers with the forest department as cited by learned counsel for the respondent-workman. Thus, I do not find any such flaw like manifest error of law and flaw in the award of the Industrial Tribunal directing for reinstatement of the workman in the department.
As far as the payment of backwages is concerned, in all these cases, 50% of the backwages has been directed and the matter relates to the forest department. In the case of Abhiumnayu and others (supra) also, 50% of the backwages was ordered against which SLP was dismissed, may be on the ground of delay only but on the legal proposition relating to the backwages, I find that in the case of Allahabad Bank & ors (supra), the this High Court had directed for payment of 50% of backwages upon reinstatement of officer/employee of the bank. The SLP was filed before the Supreme Court. The Supreme Court in the said case, referred to a number of judgements and then justified payment of 50% of the backwages as an act of striking balance between the department and its employee. In the said case, the officer-employee was found to be out of employment for an illegal and wrongful act of the department in terminating his services.
Elaborating the principle for payment of backwages in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and ors.; 2013 (10) SCC 324, vide paragraph 33, the Court has held 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 on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-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).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
(emphasis added) Relying upon the above judgment, the Supreme Court in the case of Jeetubha Khansangji Jadeja vs. Kutchh District Panchayat decided on 23.09.2022, vide paragraph 12 has held thus:
"12. In a more recent decision, Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Others,3 this court highlighted the need to adopt a restitutionary approach, when a court has to consider whether to reinstate an employee and if so, the extent to which backwages is to be ordered. The court observed:
"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 employee concerned, 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. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.""
Applying the above principle where neither the department could dispute the working of the petitioner with it, nor could produce any witness to dispute the testimony of a fellow workman who had deposed in his favour, the approach of the department was rightly held to be unlawful in firing the workman suddenly on one fine morning. I, therefore, do not find any unreasonableness or perversity in the order of the Labour Court directly for payment of backwages.
So also I find here to be case where a poor Class-IV employee, say a daily wage worker/casual employee, working at a barrier in the forest range concerned nearly for about four years without any complaint regarding his work and conduct and yet he was fired for demanding regular pay. This approach of a government department cannot be approved of absolutely. Government is a model employer. I find that in a number of judgments not only the workmen have been directed to be reinstated in the department of forest with backwages but a number of petitions is before this Court where the daily rated workers, those who were to absorbed in service, have been directed to be paid for minimum of the pay scale.
The findings having been returned that the respondent-workman was out of employment ever since he was fired from the department and had no gainful employment and nothing shown in rebuttal, the labour Court could not be said to have faulted in issuing direction for backwages. Under the circumstances, direction for 50% of the backwages cannot be said to be totally irrational so as to warrant interference in exercise of power under Article 226 of the Constitution of India. However, I do not find any special reason to be assigned for payment of interest upon the backwages by the Tribunal under its award.
Therefore, the interest part of the award dated 04.11.2011 is held to be unsustainable.
In view of the above, while I decline to interfere with the award dated 04.11.2011 passed by the Industrial Tribunal directing for reinstatement of the respondent-workman with backwages, I set aside the award in so far as it directs for payment of interest upon the back wages.
The cost part of the award is also not interfered with.
Thus, writ petition stands partly allowed as above with no order as to cost.
Order Date :- 21.12.2022 P Kesari