Allahabad High Court
U.P. Power Corporation Limited Through ... vs Presiding Officer, Labour Court And ... on 25 April, 2005
Equivalent citations: 2005(3)AWC2889
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard Shri Ranjit Saxena, the counsel for the petitioners and Shri Shyam Narain, the counsel for the respondents and perused the record.
2. This writ petition is directed against the impugned award of the Labour Court dated 3.6.2000 passed in Adjudication Case No. 430 of 1994.
3. The case of respondent No. 2 workman is that initially he was appointed as Daily wager in 1976. Thereafter he was again engaged with effect from 1.11.88 to 31.12.90 us Muster Roll employee on the post of Line Man in the U.P. Power Corporation Limited. His services were terminated on 1.1.1991 on the ground that the work was not available for him.
4. Aggrieved by the termination, the respondent workman raised an industrial dispute before the Regional Conciliation Officer which was registered as C.P. Case No. 89 of 1994 . On Conciliation proceedings having failed, the State Government referred the following matter of dispute to the Labour Court, U.P. Gorakhpur vide reference order dated 1.11.94 where it was registered as Adjudication Case No. 430 of 1994.
^^D;k lsok;kstdksa n~okjk vius Jfed Jh lqnkek izlkn iq= Jh jke Vgy eLVj jksy Jfed dh lsok,a fnukad 1-1-91 ls lekIr fd;k tkuk mfpr rFkk @ vFkok oS/kkfud gS A ;fn gkW rks Jfed fdl fgrykHk {kfriwfrZ ikus dk vf/kdkjh gS ,oa vU; fdl fooj.k lfgr A**
5. On receipt of summons the parties filed their respective written statements as well as rejoinder statements.
6. The case of the workman before the Labour Court was that he was appointed in 1987 as Muster Roll employee in the Corporation and had been working continuously there up to 31.12.1990 without any break and when he joined his duties on 1.1.1991 he was not given work and his services were terminated. During the fore said period he had completed 240 days of continuous service and while terminating the services of the workman provisions of 6-N of the Industrial Disputes Act, 1947 were not complied with.
7. The case of the employers before the Labour Court was that Muster Roll employee is engaged in the Corporation on need basis and the services of the workman were terminated as there was no work left for the workman.
8. The Labour Court after appreciation of oral and documentary evidence has given a finding of fact that the termination of the workman was illegal and the case of the employers had no merit and directed the reinstatement of the respondent workman with continuity of service and full back wages.
9. Sri Ranjit Saxena, the counsel for the petitioner has vehemently urged that the Labour Court has not given a finding of fact that the workman had worked continuously 240 days in the petitioner's establishment and there was no basis before the Labour Court for arriving at the conclusion that how the workman had completed 240 days during the preceding year of 12 calendar months from the date of termination of his services.
10. Sri Shyam Narain, the counsel appearing for the respondent workman has placed reliance on paragraph 5 of the rejoinder statement filed by the employers before the Labour Court where it has been admitted that the workman had completed 240 days of continuous service in the year preceding to the date of termination of service, as such the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 are not applicable. Paragraph 5 of the rejoinder statement is as under:-
^^;g fd iSjk 5 ekU; ugha gS D;ksafd Jfed dsoy o"kZ 1998 esa gh 240 fnu ls vf/kd dk;Z fd;k gS 'ks"k o"kksZ esa ugh rFkk budh lsok jsxqyj ugha gksrh blfy, bls m-iz- vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk 6-,u- dk mYya?ku ugha dgk tk ldrk A**
11. It appears from perusal of the impugned award that the workman had given his evidence on 8.10.90 before the Labour Court. On that date, no one had appeared on behalf of the employers nor the workman had been cross-examined by the employers on subsequent dates. The employers continued to remain absent till the date of filing of the rejoinder statement i.e. 2.12.98 and they did not participate in any of the proceedings before the Labour Court. The Labour Court has given a categorical finding of fact on the basis of pleadings and evidence in paragraph 10 of the judgment that the respondent workman was a Muster Roll employee working in the petitioner's establishment from January, 1988 to December, 1998 and had completed 240 days of continuous service. Relying upon 1999 Lab.I.C. 1125, Samishta Dube v. City Board, Etawah and Anr. it was held that the termination of the workman was illegal and in violation of provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947.
12. Sri Ranjit Saxena, the counsel appearing for the petitioner has placed reliance on JT 2002(2) SC-238, The Range Forest Officer v. S.T. Hadimani and submits that the burden of proof is on the workman to prove that he had rendered continuous service of 240 days in a year preceding to his termination. He has further relied upon the case of Manager, R.B.I., Bangalore v. S. Mani and Ors., JT 2005(3) SC-248. In that case, the respondents were ticca mazdoors and their services were terminated in pursuance of a criminal case in which they were acquitted. The Apex Court in that case held that the services of ticca mazdoors being not permanent nature can be dispensed with subject to compliance of the statutory or contractual requirements, if any. Judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding upon the employer. None of the respondents having taken an oath to state that they had worked for 240 days and there being no document in support of the plea that they had rendered 240 days of service, appellant employer cannot be said to have admitted that the respondents had worked for more than 240 days.
13. The facts of Manager, R.B.I. Bangalore's case are clearly distinguishable to the facts of the instant case. The employers have admitted in para 5 of their rejoinder statement that the workman had completed 240 days of continuous service . It is also apparent from the record that they had not given any evidence in support of their case that the workman had not worked 240 days in any of the other preceding years. The workman has discharged the burden of proof by giving evidence before the Labour Court that he had continuously worked in the petitioner's establishment and had completed 240 days.
14. In U.P. Drugs & Pharmaceuticals Co.Ltd. v. Ramanuj Yadav and Ors., 2003 LLR-1097 the Apex Court has held that the termination of the workmen having not worked for 240 days in the preceding year but having worked for the earlier years will amount to illegal retrenchment and for non-payment of retrenchment compensation, they will be entitled to reinstatement since the U.P. Industrial Disputes Act does not provide 'preceding' 12 months.
15. In Mohan Lal v. The Management of Bharat Electronics, Ltd., AIR 1981 Supreme Court-1253 it has been held that an employee must work for 240 days in any of the preceding 12 months from the date of his termination of service. Law is well settled that it is not necessary for the workman to complete 240 days in the preceding year and since the respondent workman had completed 240 days in the earlier years preceding to 12 months on the date of termination, hence he was deemed to be in a continuous service and his termination in violation of Section 6-N of the U.P. I.D. Act was illegal. In the instant case, the workman has completed 240 days of continuous service in the earlier years. The employers had also not cross-examined the statement of the workman given before the Labour Court, rather they have admitted that he had worked 240 days.
16. No other point was argued before me.
17. For the reasons stated above, it is not a case for interference under Article 226 of the Constitution of India.
18. The writ petition is dismissed. No order as to costs.