Allahabad High Court
Jagran Prakashan Ltd. vs State Of U.P. & Others on 3 March, 2011
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgement reserved on 07.12.2010)
(Judgement delivered on 03.03.2011)
Court No. - 30
Case :- WRIT - C No. - 19902 of 1998
Petitioner :- Jagran Prakashan Ltd.
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Rakesh Tiwari
Respondent Counsel :- C.S.C.
Hon'ble Sibghat Ullah Khan,J.
In spite of sufficient service no one appeared on behalf workman respondent No.3, Ram Raj, hence only the arguments of learned counsel for employer petitioner were heard.
This writ petition is directed against award dated 29.04.1997 given by Presiding Officer, Labour Court (III), Kaptur in Adjudication Case No.124 of 1995. The matter which was referred to the labour court was as to whether the action of petitioner employer terminating the services of its workman respondent No.3, who was peon/salesman w.e.f. 02.04.1994, was just and valid or not?
The workman contended that he was employed in 1976, and that his services were orally terminated w.e.f. 29.04.1994 on the false allegation that he had not deposited the amount received by him from the hawkers. The further case of the workman was that when he protested that the complaint was false, he was forced to resign on the threat that otherwise police would be called and he would be sent to jail on the allegation of theft, hence workman was forced to sign the resignation and ante date that by one day, i.e. 01.04.1994. The workman further stated that on 04.04.1994, he sent a letter that his forced resignation bearing date 01.04.1994 should not be accepted. The letter dated 04.04.1994 was sent through registered post which was received by the petitioner on 06.04.1994. However on 08.04.1994, the employer intimated that resignation had been accepted earlier and its information had also been sent to the workman through letter dated 02.04.1994.
The case of the employer was that the workman was employed in April, 1978 on the post of peon and the workman voluntarily gave his resignation on 01.04.1994. Employer also contended that since 28.03.1994, the workman was absent without any information.
The labour court held that the workman could withdraw the resignation before its acceptance. Labour Court further held that the management could not prove that the letter accepting the resignation was in-fact sent by the management and was received by the workman. The labour court further held that the reply to workman's letter sent through registered post by him on 04.04.1994 was given by the management through registered post, hence the allegation that earlier acceptance letter had been sent through UPC was not believable. Labour Court also opined that the resignation appeared to be forced. Ultimately termination of service w.e.f. 02.04.1994 was held illegal and reinstatement with 50% back wages was directed.
In this writ petition on 29.05.1998, an interim order was passed staying the operation of the impugned award provided that respondent No.3 was reinstated and paid full wages as provided under Section 17-B of the I.D. Act. Payment of back wages was stayed. A supplementary affidavit sworn on 28.11.2010 has been filed by the petitioner in this writ petition. In the said affidavit, it has been stated that pursuant to the interim order passed in this writ petition, petitioner reinstated respondent No.3, however on administrative ground he was transferred from Kanpur to Meerut Unit on 14.06.2005. It has further been stated that in respect of transfer to Meerut respondent No.3 filed complaint before Additional Labour Commissioner on 29.06.2005. The respondent No.3 contended that first employer must file application under Section 6-F of U.P.I.D. Act. The said section is quoted below:
"6-F. Special provision for adjudication as to whether the conditions of service, etc. changed during the pendency of proceedings.-- Where an employer contravenes the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal, any workman aggrieved by such contravention may make a complaint in writing in the prescribed manner, to the Labour Court or Tribunal as the case may be, and on receipt of such complaint that Labour Court or Tribunal as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with this Act and shall submit its award to the State Government and the provisions of this Act shall apply accordingly."
In my opinion, the said section is not applicable when the matter is pending in the form of a writ petition in the High Court.
It has further been stated in Para-5 of the supplementary affidavit that application filed by the workman was registered as Misc. Case No.2 of 2006 and the proceedings are pending. Copies of the application by the workman and reply by the employer have been annexed along with the supplementary affidavit. It has further been stated that respondent No.3 is absenting from duty. It is also stated in Para-8 of the supplementary affidavit that as respondent No.3 is continuously absenting hence he is not entitled to any salary.
As far as the direction for reinstatement given in the impugned award is concerned, I do not find any such error in the said finding which may warrant interference in exercise of writ jurisdiction. However the direction for payment of 50% back wages was not warranted. There is absolutely no discussion or finding in the impugned award that after termination of service respondent No.3 was not engaged for gain. In pursuance of interim order passed in this writ petition workman had been reinstated. What would be the position after June, 2005 when workman was transferred to Meerut and refused to comply with the said order and he was not being paid salary since then need not be decided in this judgment as it is not the subject matter of this writ petition.
Accordingly, writ petition is allowed in part. Direction for reinstatement given through the impugned award is affirmed. Direction for payment of 50% back wages is set aside. Dispute after June, 2005 between the parties may be decided through a fresh case if it is initiated by any of the parties.
Writ petition is accordingly allowed in part as above.
Order Date :- 03.03.2011
NLY
