Allahabad High Court
Cambridge School vs State Of U.P. And Others on 16 April, 2013
Author: Tarun Agarwala
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 1 Civil Misc. Writ Petition No. 47166 of 2012 Cambridge School Vs. State of U.P. & Others Connected with- Civil Misc. Writ Petition No. 47166 of 2012 Cambridge School Vs. State of U.P. & Others ****** Hon'ble Tarun Agarwala,J.
The workman was employed as a Security Guard during the construction of the building in the petitioner's school. It is alleged that the workman services was terminated on 1.10.1995 and, being aggrieved by this order of termination, the workman raised an industrial dispute, which was referred to the Labour Court for adjudication. The Labour Court, after considering the entire material, gave an award directing reinstatement of the workman with continuity of service and with 50% back wages. The Labour Court held that the workman had worked for more than 240 days in a calendar year and was also employed in a permanent capacity and that the employers had violated the provisions of Section 6-N of the U.P. Industrial Disputes Act (hereinafter referred to as ''the Act'). The petitioner, being aggrieved by the said award, filed a writ petition in the year 2007 through its Society. Subsequently, a preliminary objection was taken that the Society was not a party before the Labour Court and that only the School was a party and that the school had not filed the writ petition. On this basis, the writ petition was dismissed by a judgment dated 10.5.2012 leaving it open to the school to challenge the veracity of the award. The school has now filed the present writ petition.
A preliminary objection was raised by the learned counsel for the workman, namely, that the award was passed on 9.1.2007 whereas the writ petition was filed on 12.9.2012 and consequently, there was a delay of more than 5 years and that the writ petition was liable to be dismissed on the ground of laches.
Having heard the learned counsel for the parties, on the preliminary objection, the Court is of the opinion, that the delay in filing the writ petition has been suitably explained. The award was filed by the Society, which is managing the school, and upon the dismissal of the writ petition filed by the Society, with liberty to file afresh, the present writ petition was filed by the School. In the opinion of the Court, there is no delay in filing the writ petition. The delay has been explained sufficiently by the petitioner. The preliminary objection is overruled.
Before the Labour Court the workman submitted that he was employed as a Security Guard in a permanent capacity in 1994, and that, in September 1995 the school authorities asked him to do his duty through a security agency. The workman contended that he refused to do the work through the security agency and, on this basis, the employers did not allow him to work w.e.f. 1.10.1995. In support of his stand, the workman in his evidence has clearly held that he was appointed as a Security Guard not for the purpose of the construction of the building but was appointed at the time when the children were already coming to the school for education. On the question as to whether he was employed in a permanent capacity, the workman contended that he was appointed pursuant to an advertisement made in a newspaper, but, such advertisement was not produced before the Labour Court nor any proof was filed by the workman to indicate the permanent nature of his work.
On the otherhand, the stand taken by the petitioner is, that the workman was appointed as a Security Guard on a daily rate basis for the construction of the building, and that, the workman went on unauthorized leave and never reported back for work. The petitioner has categorically stated that they had never terminated his services and that the workman left the service on his own accord.
The Labour Court, after considering the material evidence on record, found that the workman had continuously worked for more than one year without any break in service, namely, that the workman had worked for more than 240 days in a calendar year. The Labour Court further found that the employers did not pay retrenchment compensation as required under Section 6-N of the Act and consequently found that the order of termination was invalid on account of the violation of the provision of Section 6-N of the Act. The Labour Court disbelieved the contention of the petitioner, namely, that the workman had left the services on his accord and believed the stand of the workman, namely, that he was forced to work through a contractor, which he refused to do so and accordingly, the employer did not allow him to perform his duty as a Security Guard. The Labour Court curiously held that since the workman was being paid the wages at the beginning of the month, which was being deposited in his bank account, it would necessarily mean and imply that the workman was working in a permanent capacity. The Labour Court while holding that the workman was working in a permanent capacity took a view that if the workman was working on a daily rated basis, he would have been paid on a daily rated basis at the end of the day and not a consolidated pay at the beginning of the month. The Labour Court while giving this finding also placed the burden upon the employer to the extent that the burden was upon the employer to prove that the workman was working on a daily rated basis, which the employer had failed to discharge. On these findings the Labour Court directed reinstatement with 50% back wages.
Having heard Sri Anurag Khanna, the learned counsel for the petitioner and Ms. Bushra Maryam, the learned counsel for the respondents, the Court is unable to appreciate the findings given by the Labour Court. In the opinion of the Court, the findings are not based on proper appreciation of evidence, but, are based on surmises and conjectures. It is settled law that the burden to prove a fact is upon the person who files the case. Once the plaintiff or the claimant proves his case, the onus shift to the other side. In the instant case, the workman categorical case was that he was appointed as a Security Guard on a permanent basis. In support of his submission he deposed that the employer had issued an advertisement and based on that advertisement he was appointed, but, neither the appointment letter was placed nor the advertisement. The Court is of the opinion, that the workman failed to discharge the burden that was upon him to prove that he was appointed in a permanent capacity. This burden was never discharged and the Court is of the opinion that the burden remained with the workman. The finding of the Labour Court, that the burden was upon the employer to prove that he was engaged on a daily basis, is patently erroneous. On the other hand, the employer's stand was that he was employed on a daily rated basis. The mere fact that the payment was made at the end of the month or at the beginning of the next month and the workman was paid a consolidated amount does not mean nor can it lead to an inference that the workman was engaged in a permanent capacity. Payment of wages whether paid on a day to day basis or on a week to week basis or on a monthly basis is a mode of convenience both for the employers and for the employee. The mere fact that payment is made at the beginning of the month for the entire previous month does not mean that the workman is working in a permanent capacity. The Court finds that the finding of the Labour Court on this aspect is based on surmises and conjectures and is not based on any appreciation of evidence nor any such evidence has come on record.
In the light of the aforesaid it is clear that the workman was appointed on a daily rated basis. The employers chose to get the work of security done through a security agency. The workman was asked to work through a security agency, which he refused and consequently he was not allowed to do any further work. The action of the employers in not allowing the workman to work amounts to retrenchment. The action of the employers in not paying retrenchment compensation in accordance with the provisions of Section 6-N of the Act makes the order of discharge or retrenchment illegal.
The Court further finds that the work of security is being done through a security agency. This fact has amply being proved by the workman himself. Further, the Court finds that the workman was engaged on a daily rated basis and that the workman had not been able to prove that he was engaged on a permanent basis. The Supreme Court in the recent past has held that where the termination of a service of a workman is in violation of the provisions of Section 6-N of the Act, it does not mean automatic reinstatement. There are other factors, which are required to be considered before reinstating a workman.
In General Manager, Haryana Roadways vs. Rudhan Singh, 2005(5)SCC 591, the Supreme Court held that an order for back wages should not be passed mechanically and that other factors, namely, adhoc appointment, short term appointment, daily wage, temporary or permanent appointment, length of service was required to be considered. Similarly view was held by the Supreme Court in Kendriya Vidyalaya Sangathan vs. S.C.Verma, 2005(2)SCC 363. A further departure was made by the Supreme Court in Mahboob Deepak vs. Nagar Panchayat, Gajraula, 2008(1)SCC 575, wherein the Supreme Court held that a daily wager whose services were terminated inspite of having worked for more than 240 days in a calendar year and who was not paid retrenchment compensation in accordance with Section 6-N of the Act was not entitled for reinstatement in service and was only entitled for compensation. Similar view was held by the Supreme Court in U.P. State Road Transport Corporation vs. Man Singh, 2006(7)SCC 752. Again the Supreme Court in Bharat Sanchar Nigam Ltd. vs. Man Singh, 2012(1)SCC 558 has reiterated the same, namely, that the workers engaged as daily wager and who had worked for more than 240 days the relief of reinstatement was not justified.
In the light of the aforesaid, the Court is of the opinion that the Labour Court was not justified in directing reinstatement of a daily wager, especially in the light of the fact, that the work of security is now being carried out by a security agency in the petitioner's school.
In view of the discussions made aforesaid, the writ petition is partly allowed. The award of the Labour Court in so far as it directs reinstatement is set-aside. The workman would only be entitled for compensation.
The Court finds that 50% of the back wages has already been deposited by the petitioner before the Labour Court amounting to Rs.97,521/-. The Court is of the opinion, that substantial justice would be served if 50% of the back wages would be treated as compensation payable under Section 6-N of the Act in lieu of reinstatement. The Court further finds from the pleadings that the employers had directed the workman to work through the security agency, which the workman had refused.
Considering the aforesaid fact, coupled with the fact that more than 18 years have now elapsed, from the date of the alleged termination, the Court hereby directs, that in the event, the workman applies for working as a security guard in the petitioner's school and moves an appropriate application for that purpose, the petitioner would forward the said application to the security agency to consider the case of the workman for engagement as a security guard subject to necessary qualifications, which is required for the purpose of engagement as a security guard. Such direction given by the Court will not create any right of re-employment in the petitioner's concern nor will it give any right to the workman to get employment from the security agency. This direction is being issued on humanitarian grounds.
Order Date :- 16.4.2013 AKJ (Tarun Agarwala,J.)