Allahabad High Court
State Of U.P. vs Presiding Officer Industrial ... on 3 March, 2011
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgement reserved on 08.12.2010)
(Judgement delivered on 03.03.2011)
Court No. - 30
Case :- WRIT - C No. - 17812 of 1996
Petitioner :- State Of U.P.
Respondent :- Presiding Officer Industrial Tribunal U.P. & Another
Petitioner Counsel :- K.M. Sahai
Respondent Counsel :- C.S.C.,Y.K. Sinha
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties.
In this case arguments were heard and judgment was reserved on 08.12.2010. The said order is quoted below:
"Heard learned counsel for the parties.
Judgment reserved. Learned counsel for both the parties state that the workman-respondent had been reinstated on 2.6.2001 and following amount has been realised by him as back wages;
Rs.2.65 lacs and odd in March 2001
Rs.1.25 lacs and odd in March 2001
Both the parties further state that contesting respondent has been reinstated as daily wager on 2.6.2001. Learned standing counsel states that apart from the above amount State had to pay 10% recovery charges also. Compliance report is stated to have been filed by learned standing counsel appearing for the petitioner. Duplicate copy has been supplied."
This writ petition by employer is directed against award dated 13.11.1995 given by Presiding Officer, Industrial Tribunal (V), U.P. Meerut in Adjudication Case No.113 of 1991. 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.2, Karan Singh w.e.f. 16.06.1988 was just and valid or not. The case of workman respondent No.2 was that he was appointed on 01.07.1982, that he demanded his regularisation hence his services were orally terminated w.e.f. 16.06.1988, and that since 01.07.1982 till 15.06.1988 he had worked continuously and that neither any enquiry was held nor retrenchment compensation as required by Section 6-N of U.P. Industrial Disputes Act was paid to him. The petitioner employer before the labour court asserted that the workman was working as beldar since 1983 on daily wages basis, that the workman was "quarrelsome person and was used to remaining absent but still he was being tolerated and his service was not terminated." (as mentioned in the award) It was further contended by the petitioner employer that the workman himself stopped coming to work. The Tribunal held that it was admitted by the employer that the workman was working as Chaukidar as Sri J.K. Sharma, Assistant Engineer of the petitioner admitted in cross-examination that respondent No.2 was working as Chaukidar. The labour court held that the allegation that workman himself stopped coming was not correct and the concerned officer of the employer orally asked him not to come at work w.e.f. 16.06.1988. Ultimately, it was held that the termination of the workman was not valid and he was entitled to reinstatement with back wages.
Regarding gainful employment after termination of service, labour court held that the workman stated that he was not employed anywhere and after termination of service, he made all efforts to secure a job but of no avail. It has further been stated in the award that the witness of the employer did not say that workman concerned was gainfully employed. The workman respondent No.2 did not state that how he was meeting his expenses. Regarding gainful employment after termination employer cannot adduce any evidence. Non-employment for gain is to be proved by the workman himself.
In this writ petition no stay order was granted, however workman himself filed Writ Petition No.341 of 2000 for enforcement of the award and thereafter realised Rs.4 lacs in March, 2001 pursuant to the final order dated 05.01.2000 passed in the said writ petition.
As the workman had worked for five or six years before oral termination of his services, hence I do not consider it appropriate to interfere in the direction of reinstatement given by the labour court. If the workman had worked only for two or three years then the question of awarding consolidated damages could be considered. Moreover, workman has been reinstated on 02.06.2001 and is working since then. However I do not find any justification for directing payment of full back wages. Order of grant of back wages is not to follow automatically on setting aside termination of service. In this regard reference may be made to Reetu Marbles v. Prabhakant Shukla, AIR 2010 SC 397.
Accordingly, writ petition is allowed in part. Impugned award in respect of reinstatement is maintained, however in respect of back wages it is modified and it is directed that 50% back wages should be paid to the workman. The workman has realised Rs.4 lacs as back wages 50% back wages i.e. Rs.2 lacs must be adjusted from his future salary @ 25% of monthly salary every month.
Order Date :- 03.03.2011
NLY
