Allahabad High Court
State Of U.P. & Others vs Kamlesh Kumar Tripathi & Others on 31 October, 2012
Author: Devendra Pratap Singh
Bench: Devendra Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 1 A.F.R. Case :- WRIT - C No. - 41969 of 2010 Petitioner :- State Of U.P. & Others Respondent :- Kamlesh Kumar Tripathi & Others Petitioner Counsel :- Shekhar Kumar, S.C. Respondent Counsel :- S.C.,Mustqeen Ahmad,P.K.Pandey Hon'ble Devendra Pratap Singh,J.
1. Heard learned counsel for the petitioners and perused the record.
2. However, none appears for the respondents even in the revised list though the names of Sri Mustqeem Ahmad and Sri. P.K. Pandey are shown in the cause list.
3. Since there is a direction from Hon'ble the Apex Court dated 30.7.2012 for disposing off the writ petition itself expeditiously the Court is proceeding to dispose off the writ petition under the Rules of the Court.
4. Brief facts are that the respondent workman was engaged as a daily wager driver in the petitioner establishment from 1.4.1992 and he continuously worked for 240 days in each year but he was disengaged w.e.f. 30.5.1998 without any notice or compensation when he raised a demand for regularization. He approached the Conciliation Officer in 2007 but upon a failure report the State Government referred it as an industrial dispute to the Industrial Tribunal, Allahabad which registered it as Adjudication Case No. 64 of 2007. The petitioners contested the claim inter alia stating that it was a stale dispute and ought not to have been referred. It further alleged that the workman was only a daily wager who was engaged whenever need arose and there is no post of driver sanctioned in the establishment and he was never engaged in accordance to the rules and was gainfully employed and therefore, was not entitled to any relief.
5. After the parties led their evidence, the Labour Court found that the workman had worked continuously from 1992 to May, 1998 completing 240 days in each year but he was illegally removed against the statutory provisions without any notice or compensation or hearing and therefore, was entitled to reinstatement with continuity of service. However, the workman was made entitled to wages only from the date of publication of the award. It further issued a direction to the petitioner to get a driver's post sanctioned from the State Government.
6. After hearing the parties, a learned Single Judge of this Court passed an interim order on 10.8.2011 directing the petitioners to pay Rs. 10,000/- within a month to the workman and further directing it to reinstate him subject to further orders of this Court and in the meantime get a driver's post sanctioned from the State Government for appointment of the workman within a period of three months. This interim order was subjected to appeal before the Apex Court and the appeal was disposed off vide order dated 30.7.2012 staying the operation of the interim order of this Court and a further direction that the High Court may dispose off the writ petition itself, expeditiously.
7. It is urged that the reference was highly belated and no explanation for the delay having been given, stale dispute ought not to have been referred.
8. It is no doubt true that though the workman was disengaged in May, 1998 he approached the Conciliation Officer only in 2007 but there is no limitation within which an aggrieved workman is bound to espouse his cause before the Conciliation Officer. The Authorities after considering the nature of the case set up by the workman have entertained it after condoning the delay. Merely because a delay of about nine years has been condoned, this court while sitting under Article 226 would be very slow to interfere unless the action prejudices the case of the establishment. It is evident from the record that the delay did not in any way hamper the petitioner to contest the case before the Tribunal and in fact it also filed documents in support of his case. It is not their case that they were handicapped in contesting the case due to delay as records were weeded out. Thus, on these facts, the Court is not inclined to exercise its extraordinary jurisdiction to quash the award on this ground.
9. It is then urged that the Tribunal has illegally held that the respondents have admitted that the workman had continuously worked for 240 days. It is trite to say that the burden of proving continuous working of 240 days in the preceding 12 calendar months is heavy upon the workman, but it is also correct to say that each case has to be examined on its own facts. The workman had filed several documents to show that he worked continuously and the establishment also filed at least 13 documents in support of its case. However, the issue was clinched before the Tribunal when the management's witness admitted that the workman was continuously working from 1992 to 1998 and the Jeep which he was driving was continuously in usage. Relying upon these facts the Tribunal has recorded a finding that the workman had worked for 240 days continuously. This finding is based on evidence available on the record and it has not been shown to be perverse. Accordingly, this argument also cannot be accepted.
10. It is lastly urged that since the workman was appointed only on daily wage, dehors the service rules, reinstatement could not have been granted or directions issued for sanction of a post especially after about 14 years of alleged termination and at best, the workman was entitled to lump sum compensation.
11. Earlier the trend of the decisions of the Apex Court and this Court was that where there is violation of Section 6N of the U.P. Industrial Disputes Act, the Court was entitled to ipso facto grant reinstatement with continuity of service. However, the said trend has undergone vast changes. The Apex Court in the case of U.P. State Brassware Corporation Ltd. Vs. Uday Narain Pandey [AIR 2006 SC 586] has held that in every case of reinstatement, entire back wages ought not to be awarded and even if the termination is in violation of Section 6N of the Act, the Court or the Tribunal ought to mould the relief and it granted 25% back wages in lieu of back wages and reinstatement. In Jaipur Development Authority Vs. Ram Sahai [2006 (11) SCC 684] it found that after long delay the relief of reinstatement was not justified and it replaced the relief by award of lump sum compensation. In U.P. State Road Transport Corporation Vs. Man Singh [2006 (7) SCC 752] it considered that the incumbent was never appointed in accordance to the rules and therefore, after lapse of considerable period he was not entitled to reinstatement but award of compensation. Similarly, in Mahboob Deepak Vs. Nagar Panchayat, Gajraula [2008 (1) SCC 575] it found that the incumbent was engaged dehors the rules which was in violation of Articles 14 and 16 of the Constitution and thus was a nullity but in view of the fact that he had worked for sometime, it granted lump sum compensation instead of reinstatement. Lastly, in the case of Senior Superintendent Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Ors. [2010 (4) SCALE 333] it reiterated that in the case of daily wager the appropriate relief is lump sum compensation.
12. Coming back to the facts of the present case, it is to be noted that the engagement of the workman was on daily wage basis and not in accordance with the Service Rules. It is also apparent that he raised the dispute with regard to his termination, nine years after it and the award was published in August 2009 and he had worked for only about six years. Considering the ratio laid down in the aforesaid cases, the workman is entitled only to payment of lump sum compensation in lieu of reinstatement and back wages.
13. Accordingly, the writ petition partly succeeds and is allowed and the relief of reinstatement is set aside. However, the workman shall be entitled to payment of lump sum compensation to the tune of Rs.60,000/- (Rs.10,000/- for each completed year), which should be deposited with the Labour Court within a period of six weeks and the same shall be released in favour of the workman without furnishing any security.
14. In the circumstances of the case, no order as to costs.
Order Date :- 31.10.2012 AK