Allahabad High Court
State Of U.P. vs Putti Lal And Anr. on 11 October, 2002
Equivalent citations: 2003(3)AWC2213, [2003(96)FLR252], (2003)1UPLBEC494
Author: Anjani Kumar
Bench: Anjani Kumar
JUDGMENT Anjani Kumar, J.
1. After hearing learned counsel appearing on behalf of learned counsel for the parties this writ petition was dismissed by me on 11th October, 2002, for the reasons to be recorded later on. Now here are the reasons for dismissing the aforesaid writ petition.
2. By means of present writ petition under Article 226 of the Constitution of India petitioner-employer challenges the award of the Labour Court (2), U. P. Kanpur, dated 18th November, 1997, passed in Adjudication Case No. 151 of 1993, Annexure-1 to the writ petition. The State Government vide its order dated 21st July, 1993, referred the following dispute for adjudication before the labour court.
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3. After receipt of the reference, the labour court issued notices to the parties and parties have exchanged their pleadings and adduced evidence before the labour court. The case set up by the respondent-workman before the labour court was that the workman concerned was working as Chaukidar with the petitioner-employer with effect from 1983 till 15.9.1992 and his services were illegally terminated on 16.9.1992 and while terminating the services of the workman concerned, the employer have not complied with the provisions of Section 6N of the U. P. Industrial Disputes Act. 1947, hereinafter referred to as the 'Act', which is related with regard to the retrenchment. The workman further stated that he is covered by the definition of 'workman' and the employer is covered by the definition of 'industry', therefore it was incumbent on the part of the employer to comply with the provision of Section 6N of the Act while terminating the services of the workman. It was therefore, prayed by the workman that the action of terminating the services of the workman be declared null and void and he may be reinstated with continuity of service and full back wages.
4. The petitioner-employer have taken a stand before the labour court that the workman concerned was casual worker and he was engaged as and when the work was available for him. It is further stated that the workman has never worked for more than 240 days as a regular employee, therefore, with regard to the termination of the workman concerned, the provisions of retrenchment are not attracted and employer was not under obligation to comply with the provision of Section 6N of the Act, therefore, the workman concerned is not entitled for any relief and reference be answered in the aforesaid terms. It is also stated that the establishment of the employer is a part of the forest department with the social forester and, therefore, is not covered by the definition of industry.
5. Both the employer as well as the employee have adduced the evidence in support of their respective cases. The employer has miserably failed to demonstrate that the workman has not worked for more than 240 days in the preceding calendar year and, therefore, the assertion of the employer that the workman has not completed more than 240 days of working is not correct. The labour court in arriving at the aforesaid conclusion has recorded the evidence of the workman as well as the employer and thereafter recorded findings that the employer have not complied with the provision of Section 6N of the Act before terminating the services of the workman concerned. Thus, the labour court has arrived at the conclusion that the workman is entitled for the reinstatement after declaration that the termination of his services were illegal and unjustified and he is entitled for reinstatement with continuity of service and full back wages.
6. Learned counsel for the petitioner-employer has relied upon an interim order of this Court dated 18th November, 1998 and also an interim order passed by Hon'ble Supreme Court in Civil Appeal No. 3634 of 1998. He has also relied upon a decision in State of Gujarat and Ors. v. Pritamsingh Narainsinh Parmar, JT 2001 (3) SC 326, wherein the Apex Court has held :
"If a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not. It would be for the person concerned, who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes "an industry". Ordinarily, a department of the Government cannot be held to be an industry and rather it is a part of the sovereign function."
In my opinion, the facts of the present case are different than the facts of the case, which has been relied upon by learned counsel for the petitioner-employer and thus the decision of the Hon'ble Supreme Court will not apply to the facts of the present case.
7. The admitted case is that the social forestry is an establishment within the forest department of the State of U. P. and the said establishment is squarely covered within the definition of industry. This fact has not been denied by the employer and they have only said that since it is an establishment of the forest department, therefore, it is not an industry, which fact was not found to be correct and I see no reason to differ with the same. In this view of the matter, this Court under Article 226 of the Constitution of India refused to exercise its extraordinary power for quashing the impugned award, which does not suffer from any error of law, much less any manifest error of law. Learned counsel for the petitioner-employer lastly submitted that admittedly the workman has not worked from 16.9.1992 till the date of the award, therefore, relying upon the principles of no work no pay, the labour court has erred in granting full back wages to the workman concerned. With regard to the back wages, the award of the labour court is modified to the extent that the workman concerned will be entitled only for fifty per cent of the wages from 16.9.1992 till the date of the award and from the date of award, the workman will be entitled for full wages.
8. In view of what has been stated above, the writ petition is dismissed except the modification to the extent referred to above. The interim order/orders, if any stands vacated. However, the parties shall bear their own costs.