HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 2 Case :- WRIT - C No. - 6108 of 2004 Petitioner :- State Of U.P. Thru' Executive Engineer And Another Respondent :- Raj Karan And Another Counsel for Petitioner :- S.C. Counsel for Respondent :- S.K. Srivsatava,Amit Yadav,Anil Yadav,S.C.,S.K. Chaubey,Shyam Narain,Sudhanshu Narain Hon'ble Suneet Kumar,J.
The petitioner/employer is assailing the award dated 05 March 2003 published on 15 October 2003 in Adjudication Case No. 528 of 1992 passed by Labour Court, Gorakhpur. State Government on 27 August 1992 referred the following dispute:
"Whether the termination of service of the workman Shri Raj Karan by its employer w.e.f. 01.12.1991 is legal and justified? If not, the relief workman is entitled to get?"
The case of the respondent/workman is that he was engaged as Beldar by the Irrigation Department of the State since 1980, worked for more than 240 days in a calander year but without notice or retrenchment compensation, was terminated by the employer on 01 December 1991.
The petitioner in their objection/written statement denied the allegations contenting that the respondent/workman was engaged on dailywage basis for intermittent period on availability of work and funds. The respondent never worked for more than 240 days in a year. The Labour Court held that the workman had put in 240 days in a year, the provisions of 6N of the U.P. Industrial Disputes Act, 1947 was not complied, accordingly ordered reinstatement of the respondent/workman with 50% backwages with continuity of service.
Contention of learned counsel for the petitioner is that it is admitted that the respondent/workman was a dailywager, was engaged intermittently, accordingly the Labour Court erred in awarding reinstatement with 50% backwages, further the Irrigation Department not being an 'industry' within the meaning of the Act, the Labour Court would have no jurisdiction.
The Labour Court upon considering the muster roll, extracts of the muster roll register, the statement of witness (EW-1), the seniority list furnished by the workman concluded that the workman worked for more than 240 days. Admittedly, the provisions of the Act were not followed, retrenchment compensation or salary in lieu of notice was not paid to the workman, therefore, in my opinion there is no perversity in the finding recorded by the Labour Court that the workman was removed without complying the provision of law.
This Court in State of U.P. Versus Presiding Officer, Industrial Tribunal (V), Meerut and another1, held Irrigation Department to be an industry within the meaning of the Act which was followed subsequently in State of U.P. State Versus Labour Court, Dehradun and another2, I am, therefore not inclined to take a different view.
The only question for determination is as to whether the Labour Court erred in directing reinstatement of the workman with 50% backwages.
The Supreme Court in Deepali Gundu Surwase Versus Kranti Junior Adhyapak and others3, considered cases on the subject of reinstatement and culled out the propositions to be followed while considering the cases where reinstatement with continuity of service and back wages can be ordered:
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed onlesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited4.
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal5 (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
The Supreme Court in B.S.N.L. Versus Bhurumal6, held that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, the Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. (para 34 & 35) "34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka Versus Umadevi (3). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35.We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."
The Supreme Court in U.P. Power Corporation Ltd. Versus Bijli Mazdoor Sangh7, applied the principles of the Constitution Bench judgment in State of Karnataka Versus Umadevi (3)8 by observing that the question as regards the effect of the industrial adjudicators' powers was not directly in issue in Umadevi case. But the foundation logic in Umadevi case is based on Article 14 of the Constitution of India. Though the industrial adjudicator can vary the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularization, the same cannot be viewed differently. Therefore, the Court held that since the workman never worked as a pump operator, but was engaged as daily wage basis, who did not possess the requisite qualification. Looked at from any angle, the direction for regularization, as given, could not have been given in view of what has been stated in Umadevi case.
Supreme Court in Maharashtra SRTC Versus Casteribe Rajya Parivahan Karmchari Sanghatana9, held that Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established.
The legal position is enshrined in paragraph 41 which reads as follows:-
"41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the courts."
Supreme Court in Hari Nandan Prasad Versus Food Corporation of India10, upon considering the aforementioned judgments as to whether the principles enshrined in Umadevi (3) case is applicable observed as follows:-
"34. A close scrutiny of the two cases, thus, would reveal that the law laid down in those cases is not contradictory to each other. In U.P. Power Corporation, this Court has recognized the powers of the Labour Court and at the same time emphasized that the Labour Court is to keep in mind that there should not be any direction of regularization if this offends the provisions of Article 14 of the Constitution, on which judgment in Umadevi is primarily founded. On the other hand, in Bhonde case, the Court has recognized the principle that having regard to statutory powers conferred upon the Labour Court/Industrial Court to grant certain reliefs to the workmen, which includes the relief of giving the status of permanency to the contract employees, such statutory power does not get denuded by the judgment in Umadevi's case. It is clear from the reading of this judgment that such a power is to be exercised when the employer has indulged in unfair labour practice by not filling up the permanent post even when available and continuing to workers on temporary/daily wage basis and taking the same work from them and making them some purpose which were performed by the regular workers but paying them much less wages. It is only when a particular practice is found to be unfair labour practice as enumerated in Schedule IV of MRTP and PULP Act and it necessitates giving direction under Section 30 of the said Act, that the Court would give such a direction."
The Court in Hari Nandan Prasad case (supra) observed that keeping in mind that industrial disputes are settled by industrial adjudicator on principles of fair play and justice concluded as follows:-
"39. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Art. 14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art. 14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art. 14, rather than violating this constitutional provision.
40. The aforesaid examples are only illustrative. It would depend on the facts of each case as to whether order of regularization is necessitated to advance justice or it has to be denied if giving of such a direction infringes upon the employer's rights"
A three-Judge Bench of the Supreme Court in Haryana Roadways Versus Rudhan Singh11, considered the question whether back wages should be awarded to the workman in each and every case of illegal retrenchment.
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily- wage employment though it may be for 240 days in a calendar year."
The Supreme Court in Bhuvnesh Kumar Dwivedi Versus Hindalco Industries Ltd.12, on the facts of that case, the Court held that the workman was subjected to victimization, therefore, the award passed by the Labour Court reinstating with backwages was justified. The judgment and order of the High Court granting compensation was reversed.
Applying the law on the facts of the present case, the workman in the written statement had clearly stated that he was engaged in 1980 as Beldar against permanent vacancy, had continuously worked till 1 December 1991. Thereupon, service was terminated by the employer without complying the terms contemplated under Section 6-N of the Act. It was further pleaded that the juniors to the respondent-workman are continuing, despite there being work, respondent was removed on the directions of the higher officials, the workman was not gainfully employed after removal, is prepared to render any service under the petitioner department.
In support, petitioner filed the seniority list, document dated 15 September 1990 regarding payment of bonus for 1987-88. Seniority list would show that the daily wagers employed until 1989 have continued in service. Therefore, the undisputed facts that emerges is that the respondent was appointed in 1980, the employer was taking regular work from the respondent, it is not the case of the petitioner that they did not require the service of dailywage employees on regular basis, persons junior to the respondent were continued in service. The respondent was removed from service unceremoniously by the employer without any valid or cogent reason despite the workman having put in eleven years of service. The conduct of the petitioner-employer tantamounts to unfair labour practice as provided under the VIth schedule to the Industrial Disputes Act, by employing the workmen as temporaries and to continue them for such years with the object of depriving them of the status and privileges of permanent workmen.
In the result, the writ petition fails and is accordingly dismissed.
No order as to costs.
Order Date :- 01.09.2015 kkm