Allahabad High Court
U.P. Small Industries Corporation ... vs The Presiding Officer, Labour Court (I) ... on 6 May, 2005
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. These are three connected writ petitions.
3. Writ Petition No. 1116 of 1999 has been filed challenging the validity and correctness of the impugned award dated 30.10.1997, enforced by publication on the notice board of the Labour Court on 19.5.1998. The relief sought in this writ petition is for quashing of the impugned award passed by the Labour Court (I), U.P., Kanpur in Adjudication Case No. 65/96 and for a direction in the nature of mandamus directing the respondents not to compel the petitioners to implement the aforesaid award. This Court passed an interim order dated 13.1.1999 in this writ petition as under:-
"Heard Sri P.S. Baghel, learned counsel for the petitioners and Sri S.N. Dubey, appearing on behalf of respondent No. 2.
Let a counter affidavit be filed within six weeks on behalf of respondent No. 2.
In the meantime the operation of the impugned award dated 23.10.1997, a copy of which is Annexure-1 to this writ petition, shall remain stayed provided: -
1. the back wages to the extent of 50 per cent payable under the award are deposited with the concerned labour court within two months from today;
2. a sum equal to wages payable to the workman from the date of the award till the last preceding month is paid to the respondent-workman within two months from today; and
3. wages at the rate admissible under Section 17B of the Industrial Disputes Act, 1947 for the succeeding months shall be paid to the respondent-workman, month by month basis, till further orders of this Court.
The back wages so deposited, in terms of this order, shall be invested in some Nationalized Bank by the Labour Court under an interest earning term deposit scheme.
In the event of default in complying with any of the aforementioned conditions, the present stay order shall automatically come to an end.
Sd/- O.P. Garg, J.
13.1.99"
4. Writ Petition No. 6347 of 2000 has been filed for quashing the order dated 22.12.1999 passed by the Labour Court (IV), U.P., Kanpur in Misc. Case No. 245/99 for payment of wages and arrears on the basis of equal pay for equal work ' in pursuance of the interim order dated 7.4.2000 of this Court which reads as under: -
"Learned Standing Counsel has accepted notice for respondent nos. 1, 2 and 4 and Mr. S.N. Dubey appeared for respondent No. 3 workman. Respondents may file counter affidavit within a period of four weeks, as prayed for. Rejoinder-affidavit, if any, may be filed within one week thereafter. List the petition for admission in the week commencing 17th July, 2000.
As it appears from the content ions of the petitioners that they have allowed the respondent No. 3 workman to join his duties upon reinstatement, operation of the impugned order dated 22.12.99 at Annexure 3 to the writ petition will remain stayed provided the petitioners pay to respondent No. 3 month by month wages at the full rate if the petitioners have allowed the respondent No. 3 to join the duties.
Sd/- Aloke Chakrabarti, J.
7.4.2000"
5. Writ Petition No. 14903 of 2001 has been filed for quashing the impugned order dated 15.2.2001 passed by the Labour Court (IV), U.P., Kanpur in Misc. Case No. 395/2000 under Section 33C(2) of he Industrial Disputes Act, 1947 for computation of the wages in pursuance of the impugned order dated 13.1.1999. This Court passed an interim order on 25.4.2001 as under: -
"Notice on behalf of respondent No. 3 has been accepted by Sri S.N. Dubey, Advocate. He is granted one month's time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter.
The operation of the impugned order dated 15.2.2001 shall, remain stayed provided the petitioner deposits the amount payable to respondent No. 3 in pursuance of the order dated 7.4.2000. It is made clear that the petitioner shall deposit the amount as arrears of salary for the period 7.4.2000 till the period April 2001 within one month from today at the full rate and for future months shall deposit the amount by 7th of each month before respondent No. 1.
Respondent No. 3 shall be entitled to withdraw the said amount without furnishing any security.
Sd/- Sudhir Narain, J.
25.4.2001"
Facts of the case:
6. Petitioner No. 1 is a Government Company within the meaning of Section 617 of the Companies Act. Respondent No. 2 was engaged on daily wages basis as Class IV employee at the rate of Rs. 15/- per day against leave vacancy of Suresh Kumar, a Chowkidar. His initial engagement was for the period 5.12.1988 to 20.12.1988 vide alleged order dated 23.12.1988. The employers, allege that the period of engagement of the workman was extended from 21.12.1988 to 27.2.1989, but was not extended thereafter whereas the workman alleged that he continuously worked upto 31.12.1994.
7. Aggrieved by his disengagement the workman-respondent No. 2 raised an industrial dispute alleging illegal termination of his services. The conciliation proceedings between the parties failed, as such the matter was referred by the State Government to the Labour Court (1), U.P., Kanpur where it was registered as Adjudication Case No. 65 of 1996.
8. The Labour Court by the impugned award dated 23.10.1997 found the termination of services of the workman to be illegal and unjustified and directed reinstatement of the respondent-workman with half back wages and other consequential benefits. The award was published and put on the notice board of the Labour Court on 19.5.1988 aggrieved by which the petitioners had filed a writ petition No. 1116 of 1999 as stated above. In the other two petitions the petitioners have challenged the orders passed by the Labour Court under Section 33C(2) due to compliance of the award and interim orders passed by this Court in the aforesaid writ petitions. Hence all the writ petitions have been connected and are being decided by the judgment in Writ Petition No. 1116 of 1999.
Petitioners' Submissions:
9. The contention of the counsel for the petitioners is that the petitioner-Corporation filed its written statement before the Labour Court, inter alia, stating that the workman had not actually worked for 240 days in any calendar year during the aforesaid period preceding the date of his termination nor he has any right of appointment as his engagement was always for a fixed term from time to time in leave vacancy. He was not appointed against any substantive or sanctioned post. His engagement was purely on daily wages and was not extended after 27.2.1989. The counsel for the petitioner then submits that the respondent workman was a daily wager and does not have any right to the post. He has placed reliance on the following decisions:-
1. 1997 (76) FLR 237 Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors.
2. 2004 (101) FLR 1005 para 15 U.P. Power Corporation v. Presiding Officer.
3. 1991 (1) S.C.C. 691 State of U.P. v. Kaushal Kishore Shukla
10. The counsel for the petitioners then placing reliance on the evidence on oath given by the workman before the Labour Court (Annexure S.A. 2 to the Supplementary Affidavit) submits that in his cross-examination the workman had stated that from 14.12.1991 to 25.12.1994, he was not paid any wages for more than three years and that he had neither moved any application for payment of wages before the Labour Court nor made any complaint before any Labour Authorities in this regard. He had further stated that his father was working in the same department.
11. It is urged that from the aforesaid admissions it cannot be believed that a person would work for more than three years without any wages and without taking recourse to law. The claim of the workman was therefore palpably false and the Labour Court committed an error on the face of the record in ignoring these material admissions made by the workman and as such the finding of the Labour Court in regard to the continuance of the workman is perverse. The Labour Court has failed to consider that the appointment of respondent No. 2 was not against any sanctioned post and while engaging respondent No. 2 the rules for recruitment were not followed which is contrary to the law laid down by the. Hon'ble Supreme Court in (1992) 4 S.C.C. 99, Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors.
12. He has placed the case of State of Himachal Pradesh v. Jasmer Singh, 1996 (11) S.C.C. 77 which has been followed by the Hon'ble Supreme Court in 2003 (6) S.C.C. 123, State of Haryana v. Tilak Kumar Raj, and 2002 (2) U.P.L.B.E.C. 1680 State Bank of India v. N.R. Ganesh Babu wherein it has been laid down that the daily wager is not entitled to get the pay of regular employee. Reliance has also been placed upon a Division Bench decision of this Court rendered in State of U.P. v. Brijendra Malviya, 2004 (4) ESC 2062, wherein it has been held that the daily wager is not entitled for regular pay scale and it is submitted that the Labour Court has also failed to consider that the burden of proof was on the workman to establish that he had worked for more than 240 days preceding his termination and was entitled to regularization or equal pay for equal work. In the instant case respondent No. 2 has not adduced any evidence, as such the findings given by the Labour Court are illegal, perverse and liable to be quashed.
It is further submitted that the Hon'ble Supreme Court in 2000 (84) F.L.R. 322 Asha Lakhandari v. State of West Bengal following the decision in A.I.R. 1997 (1) S.C. 1628 Ashwini Kumar and Ors. v. State of Bihar and Ors. has laid down four conditions for regularization (1) Clear vacancy (2) appointment by competent authority against sanctioned post and budgetary sanction according to Rule (3) continued without any artificial break, and (4) service otherwise required. It is submitted in the instant case that none of the four conditions are fulfilled and as such the direction of the Labour Court that the workman is entitled for all other benefits is illegal.
13. In Paragraph 11 of the case of Achutanand Baidya v. Prafullya Kumar Gayen and Ors., 1997 (5) S.C.C. 76, it is laid down that "If the evidence on record on a question of fact is not at all taken into consideration and without reference to such evidence the finding of fact is arrived at by the inferior court or tribunal, such finding must be held to be perverse and lacking any factual basis in such circumstances in exercise of power under Article 227 of the Constitution, the High Court will be competent to quash such perverse finding of fact."
Respondent's Submissions:
14. Counsel for the respondents submits that the case of the workman was that he was engaged as Chowkidar against a permanent nature of job with effect from 5.12.1988 and he continued upto 31.12.1994, but his services had been illegally terminated by the respondents without complying with the mandatory provisions of Section 6N and 6P of the U.P. Industrial Disputes Act, 1947. It is submitted that the Labour Court had directed for local inspection of the record and on the basis of that order, joint inspection report was submitted. The Labour Court came to the conclusion from the joint inspection report of the parties that the workman has continuously worked from 5.12.1988 to 31.12.1994. The Labour Court found that the termination of services of the workman by the employers were illegal and unjustified. A direction was issued by the Labour Court for reinstatement of the workman in service immediately and payment of 50% wages from the date of termination of services, i.e., 1.1.1995 within one month of the enforcement of the award and cost of Rs. 2,00/- on the employers. Aggrieved the petitioner-employer filed a Civil Misc. Writ Petition No. 1116 of 1999 in this Court challenging the award passed by the Labour Court. This Court by order dated 13.1.1999 passed the conditional stay order dated 13.1.1999 quoted above in the body of this judgment.
15. The contention of the counsel for the respondents is that the order dated 13.1.1999 passed by this Court was not complied with and though the petitioners reinstated the workman in service by order dated 11.3.1999 he was not paid salary as directed by the interim order. The workman therefore filed an application under Section 33C(2) of the Industrial Disputes Act which was registered as Misc. Case No. 245/99, The application was allowed by the Labour Court by order dated 22.12.1999 computing a sum of Rs. 72,270.55 due to the workman. The petitioners then filed Civil Misc. Writ Petition No. 6347 of 2000 challenging the order dated 22.12.1999 passed by the Labour Court vide interim order dated 7.4.2000. The order dated 22.12.1999 was stayed by the High Court provided the petitioners paid to the workman wages at the full rates month by month if the petitioners have allowed the workman to join his duties.
16. It is further submitted that the petitioners again did not comply with the interim order dated 7.4.2000 passed by this Court in Writ Petition No. 6347 of 2000. The workman thereafter compelled to move again an application under Section 33C(2) of the Industrial Disputes Act (Central), which was registered as Misc. Case No. 395/2000. The Labour Court allowed the claim of the workman again amounting to Rs. 60,732/- by order dated 15.2.2001. The petitioner then challenged the order dated 15.12.2001 in Writ Petition No. 14903 of 2001 challenging the order passed by the Labour Court. This Court by order dated 25.4.2001 passed a conditional ad-interim stay order provided the petitioners deposit the amount payable to respondent No. 3-workman in pursuance of the order dated 7.4.2000 with further direction that the arrears of amount from 7.4.2000 to April, 2001 shall be deposited within one month and further directed to pay future salary by 7th of each month and allowing respondent No. 3 to withdraw the said amount. The petitioners did not comply with this order also.
17. The counsel for the respondents has then contended that a daily wager is entitled to protection of Section 6N of the U.P. Industrial Disputes Act, 1947 and has placed reliance on the following decisions showing that a daily wager is also entitled for protection under Section 6N of the Industrial Disputes Act.
1. 2000 (84) F.L.R. 896, State of UP. v. Rajendra Singh Butola
2. 1996 (74) F.L.R. 2600, U.P.S.H.B. v. P.O., Labour Court, Gorakhpur
3. 2005 (104) F.L.R. 1229, Management of Madurantakam Co-operative Sugar Mills Ltd. v. S. Viswanathan
18. In rebuttal it was re-asserted by the counsel for the petitioners that interim orders passed by the Court on 7.4.2000 and 25.4.2001 in Writ Petition Nos. 6347 of 2000 and 14903 of 2001 respectively were duly complied with by the petitioners. It is submitted that both the impugned orders dated 22.12.1999 and 15.2.2001 passed in Misc. Case No. 245/99 and 395/2000 respectively are liable to be set aside as the orders were beyond the scope of Section 33C(2) because respondent No. 2 being a daily wager. It is urged that the workman was not entitled to regular pay scale and other allowances which have been granted by the Labour Court vide impugned orders which are in the teeth of the judgment of the Hon'ble Supreme Court in the case of Jasmer Singh (Supra).
Conclusions:
19. Having heard the rival contentions of the counsel for the parties and on perusal of records and findings of facts recorded by the Labour court, I am of the view that the contention of the counsel for the petitioners that the workman was engaged for a fixed term only from 5.10.1988 to 31.3.1992 and was never engaged thereafter is not correct. In para 1 of the rejoinder statement filed by the petitioners as Annexure II to the supplementary counter affidavit in Civil Misc. Writ Petition No. 14903 of 2001 it is admitted by the employers that the workman had worked upto 31.3.1992. In paras 6 and 7 of Writ Petition No. 1116 of 1999 also the petitioners have admitted that the workman has worked upto 16.11.199.2. The argument of the counsel for the petitioners is also falsified from the joint inspection report filed by the parties before the Labour Court after verification of records of the petitioner-company from which it was evident that the workman had worked at least upto 31.12.1994. As regards actual working of 240 days by the workman, the Labour Court has given a finding of fact in para 10 of the award that the workman had worked from 5.12.1988 to 31.12.1994 continuously. The argument that according to the workman he has not been paid his wages after 16.12.1991 and therefore it can be said that he has not worked after 16.12.1991 is misconceived. The petitioners as stated above it is evident from the admissions as well as from the joint inspection report that the workman had worked beyond 16.11.1992, i.e., upto 31.12.1994. The Labour Court has also given a finding of fact in para 10 of the award that the witness of the employers has stated on oath that he had no knowledge that the workman had been engaged as a helper of his father. The father of the workman was a peon and it was not his duty to make entries in the register, hence the conclusion arrived at by the Labour Court cannot be faulted with."
20. It is not in dispute that a daily wager has no right to a post, neither it is the contention of the counsel for the respondents that the workman is entitled to a post. It is his stand that Having continuously worked for more than 240 days in a year he is entitled to the benefit/protection of Section 6N of the U.P. Industrial Disputes Act, 1947. It is evident from the record that during the inspection it had been found that the workman had continuously worked from 5.12.1988 to 31.12.1994. The apex court in State of U.P. v. Rajendra Singh Butola (supra) has held that where a daily wager has worked for years together and his services were dispensed with without following the procedure provided under Section 6N of the U.P. Industrial Disputes Act, the order of termination is liable to be set aside and reinstatement with 50% back wages was allowed. In the aforesaid decision of the apex court It was held that "though the appellants contended that the workman was a daily wager and therefore, the provision of Section 6-N of the U.P. Industrial Disputes Act, 1947 did not apply there is no escape from the conclusion that the workman had worked for four years as clearly established and if he was to be terminated due to any exigencies of service, the procedure for retrenchment was not complied with, the order of reinstatement granted by the Labour Court could not be found fault with."
21. In the instant case also the workman worked for years together and the Labour Court has awarded him only 50% back wages with continuity of service and other benefits. This direction of the Labour Court in the award is in consonance with the apex court decision rendered in State of U.P. v. Rajendra Singh Butola (supra) . It has been laid down that the burden of proof would be required only if the pleading is there. In the apex court decision rendered in Management of Madurantakam Co-operative Sugar Mills Ltd. v. S. Viswanathan, 2005 (104) F.L.R. 1229 it has been held that the Labour Court is final court of findings of fact. Since there was material evidence regarding continuous working of the workman before the Labour Court, the High Court in exercise of powers under Article 226 of the Constitution would not go into the questions of facts decided on the basis of evidence and the conclusion arrived at by the Labour Court. The question of burden of proof would only come up when there are pleadings in this regard and not otherwise. Suffice it to say that after it was proved beyond doubt from the joint inspection report of the records of the petitioners that the workman had continuously discharged work from 5.12.1988 to 31.12.1994. The petitioners have no case that, the workman had not actually worked 240 days. The judgment of apex court in U.P.S.E.B. v. P.O., Labour Court, Gorakhpur, 1996 (74) F.L.R. 2600 squarely covers the arguments of the petitioners. It is also clear from the interim order that the High Court had passed interim order to pay full wages to the workman month by month as the petitioners had permitted him to join his duties. Since the workman had worked after reinstatement in pursuance of the award, he is entitled to wages at par with other daily wage employees in terms of the orders of the High Court dated 7.4.2000 in Writ Petition No. 6347 of 2000. Admittedly the workman was not appointed against any post though he continued from 5.12.1988 to 31.12.1994, i.e., for about six years. There is no pleading of the petitioners that there was no sanctioned post. He could not have worked against a leave vacancy for such a long period as admittedly Suresh Kumar, Chowkidar, had joined his post after he returned from leave. The petitioners have not denied to have taken work from the respondent-workman like regular sanctioned post. What is stated by them is that the workman was not issued an appointment letter for working against a sanctioned post. This implies that even without issuing appointment letter the petitioners were taking work of permanent nature from the respondent-workman as if he was appointed against a sanctioned post.
22. In State of Haryana and Anr. v. Tilak Raj and Ors. (Supra) , it is not the case of the employers that the workman was not discharging the duties of a regular employee. He has not sought parity in employment and as such the case of State of Haryana v. Jasmer Singh, (1996) 11 S.C.C. 77, would not apply to the instant case. This case was regarding parity in employment/regularization of a daily rated workman on the principle of "Equal pay for equal work". It was not so in the instant writ petitions, hence this case does not apply to the fact its in the instant writ petitions. The Labour Court on the basis of evidence found that the workman has an existing right to wages given to a regular employee. The case of Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors. (Supra) relied upon by the counsel for the petitioners also does not apply to the instant cases. In this case of Himanshu Kumar Vidyarthi and Ors. the workmen were not found entitled to retrenchment compensation under Section 6N of the Industrial Disputes Act while in the instant case the workman was found entitled to retrenchment compensation. In the other case of U.P. Power Corporation Ltd. v. P.O. Labour Court, Allahabad (Supra) relied upon by the counsel for the petitioners direction of creation of post was given by the Labour Court which is not the case here in the instant writ petitions and therefore the decision rendered in U.P. Power Corporation Ltd. v. P.O. Labour Court, Allahabad (supra) relied upon by the counsel for the petitioners does not apply to the instant cases. Similarly in the decision rendered in the State of U.P. v. Kaushal Kishore Shukla, (1991) 1 S.C.C. 691, relied upon by the counsel for the petitioners, the workman was appointed on ad hoc basis and the facts are clearly distinguishable. This case also does not apply to the instant writ petitions. The other case relied upon by the counsel for the petitioners is Delhi Development Horticulture Employees" Union v. Delhi Administration, Delhi and Ors., (1992 4 S.C.C. 99. In the instant writ petitions as in the Delhi Development Horticulture Employees" Union the Labour Court has not directed for regularization of services whereas in the present case the Labour Court has directed for regularization of services of the workman. In the case of State Bank of India v. M.R. Ganesh Babu and Ors., (2002) 2 U.P.L.B.E.C. 1680 relied upon by the counsel for the petitioners, the matter was with regard to "Equal pay for equal work" which is not the case here in the instant writ petitions. The instant writ petitions relate to termination of services of the workman. Again in other case of Asha Lakhandri v. State of West Bengal, 2000 (84) F.L.R. 322, the petitioner had sought for absorption while in the instant case the workman has made no such prayer. Therefore, these decisions cited by the counsel for the petitioners are of no help to them and they are clearly distinguishable from the present case on facts and on law.
23. The finding of fact recorded by the Labour Court are not perverse or illegal. The case law cited by the petitioners is clearly distinguishable and does not apply to the fact of the present case. It has not been shown by the counsel for the petitioners that there is any illegality or perversity in the impugned award passed in Adjudication Case No. 65/96 or in the orders passed by the Labour Court in Miscellaneous Case No. 245/99 and 395/2000 under Section 33C(2) of the Industrial Disputes Act impugned in Writ Petition Nos. 1116 of 1999, 6347 of 2000 and 14903 of 2001.
24. Since the workman is a daily wager he has no right to the post. His services can be terminated by the employers any time in accordance with law but being a daily wager and having worked continuously for more than 240 days in a year preceding the date of illegal termination of his services he is also entitled to the benefits of retrenchment compensation etc. to which the workman who has completed 240 days is entitled.
25. For the reasons stated above Writ Petition Nos. 1116 of 1999, 6347 of 2000 and 14903 of 2001 are dismissed. The interim orders are vacated. No order as to costs.