M/S Minerva Diesel Engines Pvt. ... vs P.O., Labour Court, Agra & Another
2012 Latest Caselaw 5780 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							       Reserved on 23.5.2012
 
							       Delivered on 29.11.2012
 

 
Case :- WRIT - C No. - 1281 of 2001
 

 
Petitioner :- M/S Minerva Diesel Engines Pvt. Ltd.
 
Respondent :- P.O., Labour Court, Agra & Another
 
Petitioner Counsel :- Mayank Agarwal,Seema Agarwal,V.R.Agrawal,Vivek Ratan
 
Respondent Counsel :- C.S.C.,Avinash Swaroop,Shyam Narain,Sudhanshu Narain
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri Vivek Ratan, learned counsel for the petitioner and Sri Sudhansu Narain, learned counsel appearing for respondent no.2.

Present petition has been filed challenging the award dated 15.3.2000 passed by the labour court, Agra in Adjudication  case no.82 of 2000. The award was published on 14.11.2000 under Section 6 of the U.P. Industrial Disputes Act (hereinafter referred as the 'Act'). The reference was made under Section 4-K of the Act in C.P. case no. 334  of 1998 dated 9.2.1999 is as follows:-

Whether the termination of services of Technician workman Pravin Kumar Sharma son of Sri Nirmal  Kumar Sharma  with effect from 22.4.1997 is valid and legal? if not, to what relief the workman is entitled to and  with what other details, if any.

The labour court  answered the  reference in favour of the workman respondent no. 2  and directed the petitioner employer to reinstate the respondent no. 2  with  back wages and all consequential benefits. Back wages were directed to be calculated at the  rate of minimum wages prescribed for the workman.

The present petition was heard  for admission on 15.1.2001. While granting time for filing counter affidavit to the learned counsel  appearing on behalf of the respondent no.2, the direction was given to permit the respondent no. 2  to join his duties immediately and if he  does so, he was held entitled for  payment of current salary at the rate which he  was getting at the time  when  his services were terminated.

Further operation of impugned award dated 15.3.2000 published on 14.11.2000 was  stayed provided  the petitioner employer deposits the entire amount of back wages payable to respondent no. 2 within 60 days from the date of the order.  The  amount to be deposited by the petitioner was directed to be invested in fixed term deposit in a nationalized bank initially for a period of one year  for the benefit of respondent no.2. However, the deposits have been made subject  to result of the writ petition.  It was further directed that  in the event of failure of deposit  to be made by the petitioner  the interim order shall automatically vacated and the award shall become executable at once.

The case of the petitioner set up is  that respondent no. 2 workman was employed  as a Helper  with effect from 1.7.1987 and he was promoted to the post of Technician  on which post he worked till  he retired and resigned from the  services of the  petitioner  with effect  from 15.3.1996. The respondent no. 2 left the services on his own  and was  paid the entire dues/wages upto the  date  till he worked and he was given bonus and gratuity.  The amount towards full and final settlement of the dues of the workman was paid vide cheque no.02112287 dated 31.3.1996 The said amount was encashed and debited to the  account of respondent no.2.

The workman filed Misc. case no. 99 of 1997 under Section 33-C(2) of the Act before the labour court, Agra claiming wages for the period from 1.4.1996 to 22.4.1997 as well as retrenchment  compensation bonus  etc.  The claim of the workman was that he has not been paid wages since March, 1996 and on demand made by him the employer  had illegally terminated his  services   with effect from 1.10.1997. By means of application moved under  Section 33-C (2) the amount of Rs.69,050.12 was claimed towards wages, payment in lieu of notice, retrenchment  compensation, bonus for the year 1994-95, 1995-96 and 1996-97 alongwith 12%  interest till disposal of the matter.  The claim of the workman was rejected by the labour court vide order dated 26.3.1999 on the grounds that though the workman in his application had  submitted that he worked till 30.9.1997 however  in the oral evidence he had stated that he worked till 22.4.1997 and the services were terminated with effect from  that date and further since the dispute regarding his termination pending before the  Labour Commissioner was to be adjudicated  by an award and there was no basis for computation of payment demanded by the workman. The workman aggrieved by the order dated 26.3.1999 filed review  which was rejected by the order dated 14.3.2000.  In the meantime, the  conciliation failed and the dispute was referred by the  State Government  to the  labour court  vide order dated 9.12.1999.

Before the labour court, the workman and petitioner employer filed their written statements. The contention of the petitioner regarding illegal termination of services was disputed by the employer in their written statement on the ground that he had never worked after 15.3.1996 and the payment of  wages etc. till 15.3.1996 has been made towards full and final settlement vide cheque no. 021887 drawn on Bank of  Baroda.

Disputing the said submission, the employer workman in  paragraph 4 of the rejoinder statement submitted that  no payment  had ever been received by him.  He worked till 22.4.1997 and his services had been illegally terminated with  effect from 22.4.1997. The rejoinder statement filed by the employer is the reiteration of submissions made in the written statement.   

Learned counsel for the petitioner submits that the award was passed by the labour court in favour of the workman on the sole ground that the workman had recorded his statement to substantiate the assertions made in the rejoinder statement  and proved the relevant documents whereas the employer did not adduce any evidence despite opportunity given to them as such the statement of  the workman remained undisputed and therefore the  same was accepted as  such.  The labour court had recorded that the  statement of the workman  that his services  were terminated with effect from 22.4.1997 when he made a demand  for bonus and minimum wages  is worthy of acceptance as his assertions remained unrebutted on account of non-production of any evidence on the part of the employer.  In view thereof, without recording any further reason, the labour court directed for reinstatement with back wages and other  service benefits.

Further contention of the learned counsel for the petitioner is that 7.3.2000 was the date fixed for evidence of the workman.  The workman did not give his evidence on the said date and  accordingly the labour court fixed 13.3.2000 for hearing.  In view of the fact that the workman did not give his evidence  on 7.3.2000, the petitioner also did not give his evidence. The  labour court proceeded and heard the matter on 13.3.2000 on the  basis of documents on  record and reserved the award.  

Further submission of the learned counsel for the petitioner is that there is interpolation in the order sheet dated 7.3.2000 and the  word 'Nahin' was scored out. The statement of the  workman  was never recorded before the labour court in the presence of the petitioner.  The  statement of  workman  alleged to have been recorded on 7.3.2000 existing in the record of the  labour court  is a typed copy and the same was added later on in connivance with the staff of the labour court. 

This apart, the labour court without recording any reason and without giving  any finding  has held that the services of  the workman was wrongly terminated on demand raised by the workman.  The only finding recorded by the labour court i.e. services of the workman were terminated on 22.4.1997 on account of  demand raised by the workman for  bonus and wages, is  based on surmises and conjunctures and is against the material evidence on record.

Refuting the submissions of learned counsel for the petitioner, learned counsel for the respondent workman submits that no payment was made to the workman  as alleged by the employer towards full and final  settlement of his wages etc.  The workman had never received any cheque nor he resigned as alleged by the petitioner.  He further submits that the workman  had never been paid his wages from 1.4.1996 to 22.4.1997 and further his services were wrongly terminated with effect from 22.4.1997 without following the provisions of Section 6-N of the  Act.  There is no interpolation in the order sheet of the labour court dated 7.3.2000.  The corrections made in the order sheet dated 7.3.2000 was of the same date and  the Presiding Officer, labour court  put his initials.  The  statement of the workman was recorded and got typed on 7.3.2000 itself.  The allegations made in the writ petition to this effect are incorrect.  The personal  allegation made against the Presiding Officer  of the labour court cannot be looked into  in view of the fact that he had  not been impleaded personally.   He further submits that  all these allegations of collusive acts  made in the writ petition are  after-thought. The petitioner did not give any evidence inspite of repeated  opportunity given to them. The assertions of the learned counsel for the petitioner  that on 7.3.2000, as no evidence was given by the workman, the labour court fixed 13.3.2000 for hearing of the case is incorrect  from bare perusal of the order sheet annexed with the writ petition.  According to  the workman, 13.3.2000 was the date fixed for evidence of the employer and no evidence was given by the employer on that date and as such  hearing proceeded and the award was reserved. 

He further  submits that even if, it is accepted for the sake of  arguments that the workman did not give any evidence,  there was nothing to stop  the petitioner employer from giving their evidence. They themselves chose  not to give  any evidence on 13.3.2000 which was the date fixed for their evidence.  Infact the employers had  to support their  case by producing their evidence.  They cannot say that  as the workman never gave any  evidence so they did not give their evidence.  This defence of learned counsel for the petitioner cannot be accepted at all.  The labour court had rightly accepted  the case of the workman in absence of any evidence to rebut the assertions made by the workman.  The burden  was upon the employer to prove that the workman had  abandoned  his services and there was no termination at all.  Having failed to discharge their burden, the petitioner  employer is trying to level baseless allegations upon the workman, the Presiding  Officer and staff of the labour court.  The learned counsel placed reliance upon the judgment reported in 2004 (103) FLR 102 (M/s NICKS (INdia) Tools vs. Ram Surat and another to substantiate the same.

He further submits that despite interim order dated 15.1.2001 passed by this Court, he was not allowed to join the duties. Thus the  interim order automatically  vacated on account of non-compliance  of the conditions mentioned therein and as such an application under Section 6-H(1) of the  Act was moved before the labour court.

The Deputy Labour Commissioner, Agra after hearing the parties, by the order dated 2.5.2001 directed  for recovery of the wages from  the petitioner holding  that  as the  deposits have not been made by the employer within a period of 60 days, the interim order  stands vacated and became ineffective. Challenging the order dated 2.5.2001 passed by the  Deputy Labour  Commissioner, Agra the petitioner filed a writ petition no. 26606 of  2001 before this  Court on the  ground that no opportunity  was provided to them. The writ petition was heard and disposed of vide order dated 24.7.2001 and the  Regional  Deputy  Labour  Commissioner, Agra  was directed to decide the case  by  a reasoned order after giving opportunity of hearing to both the parties. The proceedings for recovery  had been stayed till the decision. After remand, the application under  Section 6-H (1) moved by the respondent no. 2 was rejected vide order dated 1.6.2004 and it was observed therein that the workman had made a proposal  dated 7.6.2001 that in case  a lump sum  amount is paid to him, he  would end  all the dispute as he did not want to work in the establishment. In view of the proposal made by the workman, the employer  offered an amount of Rs.25000/- which was not accepted by him as such the reconciliation between the workman and the employer had failed. 

An application dated 7.7.2004 was moved by the workman that the Deputy Labour Commissioner in the order dated 1.6.2004 had wrongly recorded that  some proposal was made by the workman. Infact, the employers did not comply with the conditions mentioned in the interim order  dated 15.1.2001 passed by this Court. The deposits made by the employer were not  made correctly in as much as incorrect computation was made. The employer was under  obligation to deposit the back wages at the  rate of minimum wages admissible to the workman on 22.4.1997 whereas the deposits were made by them according to their own calculations which was incorrect.  The application of the workman dated 7.7.2004 was also rejected by the order dated 5.4.2005 passed by the Regional Deputy Labour  Commissioner, Agra on the ground that there is dispute with regard to  quantum of  wages between the workman and the employer and no  computation can be made in the proceedings under  Section 6-H (1) of the Act, therefore the application of the  employer dated 7.7.2004 was disposed of with observations that he may get the computation done from any competent labour court.

While summing up, the submissions of the learned counsel for the workman is that it is a clear case of retrenchment and the employers have  failed to produce  any evidence in support of their allegations  that the workman had himself abandoned  the job.  This apart, they  have not complied with the interim order dated 15.1.2001 passed by this  Court and the workman was not allowed to join and work, the writ petition deserves to be dismissed on this  ground  alone.

In rejoinder the learned counsel for the petitioner  drawn  attention of the Court to the  supplementary rejoinder affidavit filed by them in order to submit that  several letters were sent to the workman  to  come and join  but he did not  turn up  despite receipt of the letters.  He further  submits that on 18.10.2006, this Court had passed an order  and permitted time to the petitioner to  comply with the order dated 15.1.2001 and permit the workman to join service latest by 6.11.2006. In compliance of order dated 18.10.2006 passed by this  Court, a communication dated 27.10.2006 was sent to the petitioner calling upon him to join the establishment.  However, the respondent  no. 2 workman  did not turn up to resume his duty as he was not interest in working in the establishment.

In reply to the said assertions of learned counsel for the petitioner, learned counsel for the respondent no.2 drawn  attention of the Court  to the application dated 6.11.2006 moved by the respondent No. 2  workman to the  Director  of the establishment. It was informed that  he was  allowed to join  duty on 6.11.2006 at 11:45 A.M. but was not allotted any work and oral direction was given to sit  near the gate of the establishment till 5:30 P.M. He remained seated therein.  When he tried to give  the letter, the  workman was asked to leave the place as such the letter  was sent through registered post.

Learned counsel for the respondent no.2 further submits that the alleged signatures on the  acknowledgment annexed with the supplementary rejoinder affidavit in 'English' of the workman respondent no. 2  are   forged.  The workman  does not sign in 'English'. 

It may be noted that by the order dated 23.10.2007, this  Court  had directed  to call for the original record  of the labour court which  was placed  alongwith the  file and was produced by the learned Standing  Counsel  when the hearing in the case commenced. 

Having heard learned counsel for the parties, perused the  record  and the original record of the labour court produced in the Court, the first point which is to be answered  by this  Court as to whether there was interpolation in the order sheet as alleged by the learned counsel for the petitioner.  I have carefully perused the  order sheet  in original and the statement of the respondent no. 2 on record.

From perusal of the order sheet  of the labour court it is evident that on 7.3.2000, there is cutting and word 'nahin' has been scored out. The order sheet  dated 7.3.2000 further indicates that 13.3.2000 was the date fixed for evidence of the  employer.  In so far  as the corrections made in the order sheet dated 7.3.2000, it is apparent that the  Presiding  Officer had put his initials  over the cutting and, therefore, the  contention of the learned counsel for the petitioner that merely because there was  some cutting  in the order sheet it amounts to interpolation cannot be accepted in absence of anything else on record. In so far as the order dated 13.3.2000, it has been clearly recorded that the employer did not  give their evidence and as such the hearing proceeded and the award was reserved after hearing learned counsel for both the parties.  The contention of the learned counsel for the petitioner  that as no evidence was given by the respondent no. 2  on 7.3.2000 and 13.3.2000 was the date fixed for hearing is incorrect  from bare perusal of the order sheet.  Further, it may be noted  that on 13.3.2000  both the parties  were present and the  hearing was concluded.  Admittedly, no evidence was adduced  by the  employer despite  opportunity given to them.  His contention that  the  submission of the  workman was added  later on is not worthy  of  acceptance.   From  perusal of the  record of the  labour  court  I am  of the  view that there is no interpolation as the cutting made by the   officer had his initials. The opportunity was given to produce evidence  to both the parties and the hearing  was proceeded in presence of both  the parties. In case, the employer had any reservation about the hearing having been proceeded on 13.3.2000, they  could have submitted their objections before the labour court rather the submission of the petitioner in the writ petition is that as no evidence was adduced by the workman, they did not give any evidence.  This submission of the petitioner  shows that  the petitioner  themselves  chose not to give any evidence before the labour court.

Now, the main question which arises for consideration  is whether the award passed by the labour court  requires interference. In this regard, from the facts brought on record it is clear that the fact that the workman was in permanent service of the petitioner till 15.3.1996 is not in dispute.  He was  a permanent employee  who was employed as Helper with effect from 1.7.1987 and was promoted to the post of Technician in due course of time. Only ground taken by the petitioner for challenge is that the workman had abandoned the job and his services were never terminated. It is settled principle of law that the burden of proving  that workman had voluntarily left the service  falls upon the petitioner employer.  Admittedly, no evidence was led by the petitioner employer to substantiate their plea that the respondent no.2 workman had abandoned his job. The plea taken by the petitioner employer that the  payment towards full and final settlement  of the workman due till  15.3.1996 has been made  through  cheque dated 31.3.1996 was categorically denied by the workman in his written statement as also rejoinder filed before the labour court.  In this  regard also, no evidence was laid by the employer before the labour court. The bank statement  and the counterfoil of the alleged cheque  dated 31.3.1996 has been annexed alongwith the writ petition as annexure 2. The  same cannot be looked into by this  Court. These documents ought to have been placed before the labour court by the petitioner  so that  the statement of facts  could have been examined by it. This Court under Article 226 of the  Constitution of India cannot examine the disputed questions of facts and therefore,  contention of the petitioner that the respondent no. 2  employee had abandoned and   payment  was made to  him towards full and final settlement  of his dues cannot be accepted in view of the  observations made above.  This apart, there is nothing on record to suggest that the alleged amount is sufficient  as full and final settlement towards dues of the workman.  There was specific denial on the part of the workman of the said fact which remained unrebutted.  The contention  that the evidence  was not led by the employer for the reason that the workman  did not adduce any evidence is reckless and ridiculous and shows carelessness on the part of the employer in contesting the matter.

Learned counsel for the petitioner while elaborating his arguments submitted that even if no evidence was led, the award passed by the labour court cannot be sustained for the reason that the labour court was under obligation to consider as to whether any relief  at all could be granted in favour of the workman.  He placed reliance upon judgment of the  Apex Court in  Krishi Utpadan Mandi Samiti vs. Pahal Singh reported in 2007(113) FLR 818. The facts of the said case is totally different  in as much as in the case of  Krishi Utpadan( supra) the dispute was raised by the workman after 18 years and he was in employment for a short period.  The question was also as to whether he was in continuous service within the meaning of Section 2( g) of the  Act and whether the employer did not comply with  the  requirement of Section 6-N of the  Act; whereas  in the instant case, no such issue had arisen for adjudication for the reason that there was  no dispute as the workman was a permanent employee and was granted  promotion. He was in continuous employment of the petitioner till 15.3.1996 (as per  the case of the  employer) whereas  as per the case of the workman  he was in service till 22.4.1997.  The workman also approached the competent authority for payment of his  wages under  Section 33-C(2) of the Act and raised the industrial dispute in the year 1997 itself.   There was no delay on the part of the workman and only question for adjudication was as to whether he had abandoned the job or the employer had terminated his services.

As already discussed above, the question of facts were to be decided by the labour court on the basis of evidence led by both the parties. The burden was upon the employer, he failed to discharge the same as no evidence was led and therefore the labour court had no option but to accept version of respondent no.2 workman. In view thereof, findings recorded by the labour court that the services of respondent no. 2 workman were illegally terminated with effect from 22.4.1997 without complying with the provision of Section 6-N of the Act cannot be faulted and requires no interference by this Court. The award passed by the labour court dated 15.3.2000 is hereby upheld.

Now the question remains as to what relief can be granted to the respondent no.2 workman at this stage in view of subsequent developments which have been brought on record.

As indicated above, when the writ petition was presented before this Court, an interim order dated 15.1.2001 was granted directing the petitioner to reinstate the respondent no. 2 and pay his current salary. The respondent no. 2 workman moved application under Section 6-H(1) of the Act for recovery of entire back wages before the Regional Deputy Labour Commissioner who in its order dated 2.5.2001 had recorded that the employer had deposited the amount of Rs.64,150/- towards back wages at the rate of Rs.1500/- from 22.4.1997 till 15.11.2000 i.e. the date of publication of the award. The contention of respondent no. 2 employee was that the amount was not sufficient as the employer was required to deposit the back wages at the rate of minimum wages to which he was entitled as per the award within 60 days from the date of its order dated 15.1.2001.

In the proceedings under Section 6-H(1) of the Act, the recovery certificate was issued. However, the said order was recalled on 1.6.2004. In the application dated 7.7.2004 filed by the workman, only prayer made was for recall of the order dated 1.6.2004 and for issuance of the recovery certificate. It may be noted that the workman did not join the establishment. The cross allegations are that the employer did not allow him to join. The petitioner employer says that inspite of repeated reminders to the workman he did not turn up. Despite the said fact, in none of the application filed before the competent authority under Section 6-H(1) of the Act for execution of award the workman had never pleaded that he was not allowed to join the establishment. An order dated 18.10.2006 was passed by this Court permitting the workman to join latest by 6.11.2006. According to the employer the workman was communicated with the order dated 27.10.2006 to come and join. However, he did not turn up. On the other hand, the case of the workman in supplementary counter affidavit is that the communication was never received by him, rather he was allowed to join on 6.11.2006 but no work was allotted to him. As such, he submitted an application dated 6.11.2006 to the Directors of the establishment with the request to allow him to work, the application was sent by the registered post. The employers have denied receipt of the application.

From the analysis of all these facts, it is clear that the workman had worked in the establishment till 22.4.1997 when he was terminated. He did not work thereafter despite the interim order granted by this Court. Whether he was permitted to join or not or he himself did not turn up is the question of fact which cannot be decided by this Court. More so, for the reason that in the proceedings under Section 6-H(1) of the Act, the workman did not make any complaint nor made any prayer to allow him to join. He did not challenge the two orders before any court of law rather he succumbed to the same.

Now since there is no dispute that the petitioner was a permanent employee of the establishment and worked at least upto the date admitted by both the parties, his services could not have been terminated in the manner as was done by the employer. It is, therefore, directed that the petitioner shall reinstate the respondent no. 2 within a period of six weeks from the date a certified copy of this order is produced before it. The respondent no. 2 shall be entitled to back wages as per the award and in pursuance of the interim order dated 15.1.2001 passed by this Court.

However the respondent no. 2 shall not be entitled to wages after 15.1.2001 till the date of his actual reinstatement as he did not work during the aforesaid period despite the interim order granted by this Court. As discussed above, the respondent no. 2 did not make any effort for getting into service and blamed the petitioner for not allowing him to join. Having perused the orders passed by the Regional Deputy Labour Commissioner under Section 6-H(1), it is clear that respondent no. 2 was at fault in not making any effort to join the establishment.

Having not worked in the establishment he is not entitled to the back wages after the interim order dated 15.1.200 on the principles of 'No work no Pay'. It is trite that award of back wages does not follow automatically in pursuance of setting aside the order of retrenchment in violation of provisions of the Act.

It is further directed that in case, the respondent no. 2 workman joins the establishment he shall be entitled for continuity of service with all consequential benefits apart from back wages for the aforesaid period and shall be paid current salary at the rate as admissible to his post of Technician.

The writ petition is dismissed.

Order Date :- 29.11.2012

P.P.