Allahabad High Court
U.P Power Corp Ltd Thru Managing ... vs Presiding Officer Labour Court ... on 3 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 164
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Judgment reserved on : 04.09.2019 Judgment Delivered on : 03.02.2020 Case :- MISC. SINGLE No. - 26230 of 2016 Petitioner:-U.P Power Corp Ltd Thru Managing Director Lko & Ors Respondent:-Presiding Officer Labour Court Faizabad & Anr Counsel for Petitioner :- Mata Prasad Yadav Counsel for Respondent :- C.S.C,Ishwar Dutt Shukla, Mohd. Mustafizul Haq, Santosh Kumar Mehrotra Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard learned counsel for the parties and perused the record.
2. This petition has been filed by the petitioners challenging the Award dated 13.07.2016 passed by the opposite party no.1 in Adjudication Case No.90 of 2001 (U.P. Power Corporation Limited Vs. Rakesh Singh).
3. The petitioners represented by Shri Ajay Kumar Yadav, holding brief of Shri Mata Prasad Yadav, have submitted that the opposite party no.2, Rakesh Singh, was engaged as Muster Roll Daily Wage Employee with effect from 10.05.1987 and continued upto 28.04.1990 on which date he abandoned the services and there was no order of termination passed. After ten years, the opposite party no.2 raised an Industrial dispute. The petitioners submitted before the Conciliation Officer that no proceedings can be initiated after a lapse of ten years. The Conciliation failed and thereafter, a Reference was made by the Government to the opposite party no.1 as to whether the termination of the opposite party no.2 on 28.04.1990 was justified and if not justified, then to what relief the opposite party no.2 was entitled to? Notice was issued to the petitioners and they filed a written statement wherein they again stated that opposite party no.2 had raised the Industrial dispute in the year 2010, although he alleges to have been terminated without notice and retrenchment compensation on 28.04.1990. The petitioners also denied the claim of the workman that he was paid his wages for three years and issued an Experience Certificate by the Junior Engineer concerned. It was the case of the petitioners that the opposite party no.2 could not have been engaged as the Department had stopped engaging Muster Roll employees since 01.07.1979.
4. It has been submitted by the learned counsel for the petitioners that the opposite party no.1 arbitrarily has allowed the claim raised by the opposite party no.2 only on the basis of Experience Certificate issued by the Junior Engineer. The Executive Engineer was the appointing Authority and had been declared as the Competent Officer to issue such Experience Certificate. No records relating to the work done by the opposite party no.2 were available in the office of the petitioners and the opposite party no.1 on their failure to produce record had drawn adverse inference against the petitioners.
5. After arguing at some length on the merits of the Award and the observations made by the opposite party no.1 that despite an application made by the opposite party no.2 for summoning of records, the Corporation had failed to do the same, the learned counsel for the petitioners has fairly limited his arguments only to the question of delay in entertaining the claim petition by the opposite party no.1.
6. It has been submitted that the opposite party no.2 allegedly worked only for three years in between 1987-1990 and he raised an Industrial dispute only in the year 2000, when there was no subsisting dispute between the parties. No reference could have been made by the Government on the delayed application of the opposite party no.2. Yet the claim petition was entertained and orders were passed for reinstatement of the opposite party no.2 with continuity in service and seniority and other consequential benefits arising therefrom. Back wages however, were limited to 20% by the opposite party no.1.
7. Learned counsel for the petitioners has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Assistant Engineer, Rajasthan Development Corporation and Another Vs. Gitam Singh reported in (2013) 5 SCC 136 to state that the delay defeats the claim made by the workmen. This Court has been led through several paragraphs of the judgment in Gitam Singh (Supra) to say that even if the services of a workman are terminated in violation of the provision of Section 6-N of the U.P. Industrial Disputes Act (In Pari Materia with Section 25-F of the Central Industrial Dispute Act), the grant of relief of reinstatement and full back wages and continuity of service in favour of retrenched workmen would not automatically follow, as a matter of course. The Supreme Court has in most of the cases modified the Award of reinstatement and granted monetary compensation to the workman instead.
8. In Uttranchal Forest Development Corporation Vs. M.C. Joshi reported in (2007) 9 SCC 353, the Supreme Court was concerned with a daily wager who worked in the Corporation from 01.08.1989 to 24.11.1991, and whose services were held to be terminated in violation of Section 6-N of the U.P. Act. The Labour Court had directed the reinstatement of the workmen with 50% back wages from the date the Industrial dispute was raised. While setting aside the order of reinstatement and back wages, the Supreme Court had Awarded compensation of Rs.75,000/- to the workmen keeping in view the nature of service rendered by him, the period of service as also the fact that the Industrial dispute was raised after six years.
9. Similarly, in the case of Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another reported in (2008) 1 SCC 575, the Supreme Court had observed that an order of retrenchment passed in violation of Section 6-N of the U.P. Industrial Dispute Act may be set aside, but an order of reinstatement should not however, be automatically passed. The Court observed in Paragraphs 11 & 12 of the report as follows:-
The High Court, on the other hand, did not consider the effect of non- compliance of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947. Appellant was entitled to compensation notice and notice pay. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. (Madhya Pradesh Administration V. Tribhuban reported in 2007 (5) SCALE 397.)"
10. The Supreme Court observed further in the said judgment that in Devinder Singh Vs. Municipal Council, Sanaur, reported in (2011) 6 SCC 584 and Harijinder Singh Vs. Punjab State Warehousing Corporation reported in (2010) 3 SCC 192, cited before it by the learned counsel, the Court was not dealing with a daily wage worker. It had come on record that the workmen so engaged, had worked for more than 240 days in a Calendar year preceding the termination of their services, without termination being made in accordance with the provisions of Section 25-F of the Central Act.
11. It observed in Paragraph 29 of the report that both Devinder Singh (Supra) and Harjinder Singh (Supra) do not lay down the general proposition that in all cases of wrongful termination reinstatement must follow. The Supreme Court clarified that in those cases the judicial discretion exercised by the Labour Court was disturbed by the High Court on a wrong assumptions that initial employment of the employee was illegal.
12. The Supreme Court observed further in Paragraph 29 of the report in Gitam Singh that it had in a long line of cases held that the award of reinstatement cannot be said to be proper relief, rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court had to keep in view of relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination had been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute. The Court had distinguished repeatedly between a daily wager who does not hold a post and a permanent employee and held that where the daily wager had merely worked for more than 240 days in a year, the relief of reinstatement should not be given and monetary compensation would meet the ends of justice.
13. The opposite party no.2 is represented by Ms. Priyam Mehrotra, holding brief of Shri S.K. Mehrotra. She has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Ajaib Singh Vs. Sirhind Co-operative Marketing-Cum-Processing Service Society Ltd. And Another reported in 1999 (6) SCC 82, and also on Employers, In Relation to The Management of Sudamdih Colliery of M/s Bharat Coking Coal Ltd. Vs. Their Workmen by Rashtriya Colliery Mazdoor Sangh Reported in [2006 (108) FLR 740] and judgments of Co-ordinate Benches of this Court rendered in Ram Lakhan Singh Vs. Presiding Officer, Labour Court, U.P. Varanasi & Others reported in 1999 (2) UPLBEC 1226, Union of India and Others Vs. Sri Ram Misra and Another reported in 2008 (26) LCD 1504. .
14. Learned counsel for the petitioners in rejoinder has placed reliance upon the judgment rendered by a Co-ordinate Bench of this Court on 19.04.2018 in Writ Petition No.675 (M/S) 2017.
15. This Court having heard the submissions made by the learned counsel for the parties, has gone through the Award rendered by the opposite party no.1.
16. It was the case of the opposite party no.2 that he had been engaged as Daily Wage Muster Roll Employee in Electricity Distribution Division, Gonda, at its sub Station Colonelganj, by one Shri Prakash Sharma, Junior Engineer, and he had been paid his wages on Muster Roll by the Junior Engineer concerned upto 29.04.1990 but was discontinued thereafter without any retrenchment compensation and in violation of Section 6-N of the Act whereas his Juniors Sarvshri Brahmanand, Shivraj and other workmen continued to remain in service thereafter on Muster Roll. New workers on Muster Roll were also engaged, therefore, there was a violation of Section 6-P and Section 6-Q also.
17. When the petitioners made several representations to his Employers and they were not paying any heed, he approached the Conciliation Officer in the year 2000 and on Conciliation proceedings having failed, the Reference has been made by the Government to the opposite party no.1.
18. The Employers had submitted before the Labour Court that since 01.02.1979 there was a ban on engaging daily wagers, therefore, there could not be any engagement of any daily wager like the opposite party no.2, and therefore there could not be any question of dis-engagement as alleged on 28.04.1990. It was also stated that sometimes daily wagers were indeed engaged but their engagement was on daily basis and on completion of work, they automatically were disengaged, no termination orders were passed. It was also stated by the Employers before the opposite party no.1 that a Junior Engineer was not competent to engage the petitioner as Daily wager and he could not have issued any Experience Certificate to him.
19. The workman in rejoinder had stated that he was given his wages on Voucher Form No.28 and was issued an Experience Certificate by the Junior Engineer, Shri Prakash Sharma, and that he had worked for more than 240 days in the preceding twelve months to his termination and that the Attendance Register and the Payment Register be summoned which is available in the office of the Executive Engineer.
20. His application for summoning the record was resisted by the Employer even though an order was passed by the Labour Court for summoning the same. It was alleged by the Employer that since the records were quite old, they had been weeded out. The Employer, however, did not produce any evidence even after it being summoned by the Labour Court, to show that such records had indeed be weeded out.
21. The opposite party no.1 has drawn the adverse inference on this ground saying that in all Government Departments including the Corporation which is a Government Company, a Register is maintained mentioning the records that have been weeded out. No such Register was produced to substantiate their claim that due to passage of time the old records had been weeded out.
22. The opposite party no.1 has also referred to statement of Employer's witness no.1 Shri Prakash Chandra Gangwal, Executive Engineer, Electricity Distribution Division, Gonda, who stated on Oath that there was no engagement on Muster Roll Employee after 01.02.1979, but on cross-examination it was admitted by him that he had been working as an Executive Engineer in the Division concerned only since 26.07.2008. The workers at the Sub-Station at Colonelganj, were supervised by the Junior Engineer and that he had not seen the record maintained at Sub-station at Colonelganj, with regard to the working of daily wagers.
23. The opposite party no.1 after considering the evidence recorded a finding that Board had issued an order on 25.02.1981 directing that Muster Roll Daily Wager may be engaged to do the work which was earlier being performed by the Contract Labourers, and that the Executive Engineer was designated as Competent Officer to issue Experience Certificate only in November, 1990, by the Board. The Experience Certificate issued to the opposite party no.2 was dated 30.04.1990. Having came to a definite conclusion on the basis of evidence produced by the opposite party no.2, that he had been engaged as Daily Wage Muster Roll Employee and worked for more than 240 days in the preceding year, the Labour Court found his termination to have been done without paying him retrenchment compensation.
24. With regard to the delay in initiating the Industrial dispute, the opposite party no.1 relied upon the Ajaib Singh (Supra) and also a judgment rendered by the Supreme Court in 2006 (108) FLR 740. This Court finds that the citations mentioned by the opposite party no.1 in the Award impugned for example 2006 (108) FLR 740 is non-existent, there may have been typographical error in recording the same.
25. Having found the termination of the opposite party no.2 to be in Violation of Section 6-N of the Act. The opposite party no.1 directed for reinstatement of the opposite party no.2 with effect from 30.04.1990 as Muster Roll Coolie and observed that since the opposite party no.2 had initiated the conciliation proceedings only on 03.01.2000, he may be given only 20% of the back wages with effect from 03.01.2000, till the date of his reinstatement. However, he was entitled to continuity in service and seniority and all benefits that have been given by the employers to similarly placed daily wage Muster Roll Employee in the meantime.
26. This Court shall now consider the judgments cited by the learned counsel for the opposite party no.2 namely Ajaib Singh Vs. Sirhind Co-operative Marketing-Cum-Processing Service Society Ltd. (Supra). In the said judgment the Hon'ble Supreme Court has observed, on the basis of the history of Labour Legislation including the Statement of Objects and reasons of the Industrial Dispute Act, 1947, that Article 137 of the Limitation Act had not been specifically made applicable to the proceedings under the Industrial Disputes Act or to seeking a reference of Industrial Dispute to the Labour Court. It observed that the Legislature had intended to protect workmen against victimization and exploitation by the employer and to ensure termination of industrial disputes in a peaceful manner. The object of the Act, therefore, is to give succour to weaker sections of the society which is a pre-requisite for a welfare State.
27. The Supreme Court referred to judgment rendered earlier by it where it had been observed that the provisions of the Limitation Act applied only to proceedings in Courts and not to Appeals or applications before the bodies other than Courts, such as a quasi-judicial Tribunal, or Executive Authorities, notwithstanding the fact that such bodies or authorities may be vested within certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure.
28. The Supreme Court observed that in Jai Bhagwan V. Management of the Ambala Central Co-operative Bank Ltd. reported in AIR 1984 SC 286, the Supreme Court had declined to set aside the order of reinstatement of the workman who was found to be wrongly terminated, but having regard to the fact that he had raised the Industrial dispute after a considerable delay without doing anything in the meanwhile, he was not awarded back wages. The grant of half back wages from the date of termination of service until the date of the order and full back wages from that date till his reinstatement was found in the circumstances to meet the ends of justice.
29. In H.M.T. Ltd. V. Labour Court, Ernakulam, reported in 1994 Lab LR 720 (SC), the Supreme Court observed in respect of claim of full back wages that where there was a delay of 14 years in invoking the jurisdiction of the Labour Court, grant of 60% of back wages upon reinstatement of the workman would meet the ends of justice. It was moreover, observed in Paragraph 10 of the judgment rendered in Ajaib Singh (Supra) that the plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or the Board, dealing with the case can appropriately mould the relief by declining to grant wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. In some cases, the Court may grant compensation instead of part of back wages.
30. Referring to a Full Bench decision of the Punjab and Haryana High Court in Ram Chander Morya V. State of Haryana High Court reported in (1999) 1 SCT 141, which was cited by the respondent counsel in Ajaib Singh (Supra), the Supreme Court observed that :-
"We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 37-C of the Act to be adjudicated. It is not the function of the Court to prescribe the limitation where the Legislature in its wisdom had thought it fit not to prescribe any period. The courts admittedly interpret law and do not make laws, Personal views of the Judges presiding the Court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left over by the Legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the Courts/Boards and Tribunal under the Act".
31. The Supreme Court further observed that in the facts of the case in Ajaib Singh (Supra), the Tribunal ought to have moulded the relief and held that instead of the order of full back wages to be paid it should have given only part of the back wages for the unexplained delay in approaching the Labour Court.
32. Similar observations have been made by the Hon'ble Supreme Court Employers, In Relation to The Management of Sudamdih Colliery of M/s Bharat Coking Coal Ltd. (Supra). The Supreme Court considered the judgments rendered by it in Nedungadi Bank Ltd. V. K.P. Madhavankutty reported in 2000 (84) FLR 673 (SC) in Paragraph 7 of the report, Paragraph 7 in Sudamdih Colliery (Supra) is being quoted hereinbelow:-
"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 lapse of about seven years of 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 industrial dispute was ex facie bad and incompetent."
33. In the two Co-ordinate Bench decisions of this Court cited by the learned counsel for the respondent more or less the same settled position in law has been reiterated with regard to delay on the part of the workman in approaching the Labour Court and raising a dispute.
34. This Court has also found in Jasmer Singh Vs. State of Haryana reported in 2015 (4) SCC 458, The Supreme Court has relied upon in Ajaib Singh Vs. Sirhind Cooperative (Supra) and reiterated that any limitation as prescribed under the Limitation Act would not apply in case an Industrial dispute is raised by a workman. No Reference to a Labour Court can be generally questioned on the ground of delay alone. In Raghuveer Singh Vs. General Manager, Haryana State Roadways Corporation, Ajaib Singh (Supra) has again been relied upon to hold that the question of limitation would not apply, although the Labour Court may have the discretion to mould the relief in case the workman approaches the Court with delay.
35. Having perused the Award impugned, this Court finds that the opposite party no.1 has more or less stuck to the settled position in law while granting relief to the workman. It is found that there was 10 years delay in starting conciliation proceedings and therefore, 20% of the back wages have been granted to the workman from the date the application for conciliation proceedings was filed by the workman till the date of order for reinstatement. No back wages have been granted for the ten years the workman remained out of employment with effect from 1992 to the year 2000. Moreover, the workman concerned has been given reinstatement only as Muster Roll Coolie, the original post on which he was working and he has been given service benefits that were similar to employees working on Muster Roll in the same Establishment. The workman was found entitled to continuity in service and seniority also.
36. The Labour Court having exercised its discretion judiciously in giving relief to the workman, this Court finds no good ground to show interference in such discretion being judiciously exercised.
37. This Court has also perused the order-sheet. When the writ petition was initially admitted by this Court on 03.11.2016, the impugned Award had been stayed on the condition that the opposite party no.2 shall be reinstated in service by the petitioner. It has not been disputed by the opposite party no.2 that he has not been reinstated in service on the basis of such conditional interim order.
38. This writ petition is, therefore, dismissed. No order as to costs.
Order Date :- 3rd February, 2020
PAL (Justice Sangeeta Chandra)