Union Of India vs Presiding Officer And Another
2013 Latest Caselaw 4441 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
				Court No.2
 

 
Civil Misc. Writ Petition No.23608 of 1997
 

 
Union of India and others		 ........     Petitioner
 
Vs.
 
Presiding Officer and others		........ 	     Respondents
 

 
******************
 

 
Hon'ble Tarun Agarwala,J.

Heard Sri Manoj Kumar, the learned counsel for the petitioner and Sri R.K.S. Chauhan, the learned counsel for the workman-respondent and the learned Standing Counsel.

The present writ petition has been filed by the petitioner against an award of the Industrial Tribunal. The terms of the reference order was "Whether the employers were justified in terminating the services of the workman with effect from 1st April, 1988? If not to what relief is the workman entitled."

The Industrial Tribunal after considering the material evidence on record found that the workman had worked for more than 240 days in a calendar year. The Tribunal also found that retrenchment notice as provided under Section 25F of the Industrial Disputes Act had not been complied with and accordingly, on this ground, the Tribunal gave an award holding that the termination of the services of the workman was illegal and accordingly, directed reinstatement with continuity of service with full back wages.

Against the said award, the petitioner preferred Writ Petition No.21515 of 1991, which was dismissed as withdrawn by an order dated 21st September, 1994. In paragraph 13 of the writ petition it was contended that the writ petition was dismissed on the ground that the Court was of the opinion that the award of the Tribunal should be challenged by the petitioner before the Central Administrative Tribunal. Accordingly, a claim application was filed, which remained pending but subsequently, in view of the decisions of the Supreme Court, the petitioner withdrew the writ petition and filed the present writ petition, which was entertained and a complete interim order was passed staying the effect and operation of the award passed by the Labour Court. As a result of the interim order, the workman has not been reinstated nor has been paid any money in terms of the award.

A preliminary objection was raised that the second writ petition was not maintainable, since no liberty was granted to the petitioner at the time when the writ petition was dismissed as withdrawn in the year 1994.

Having considered the submission of the learned counsel for the petitioner as stated in paragraph 13 of the writ petition, the Court is of the opinion that sufficient valid reasons has been given for filing the second writ petition, which the Court accepts and accordingly overrules the objection and hold that the second writ petition is maintainable in the circumstances narrated in the writ petition.

Having heard the learned counsel for the petitioner, the Court finds that the contention of the petitioner that the workman had not worked for more than 240 days in a calender year cannot be accepted. The Tribunal has based its finding on the material evidence brought on record and has given its findings on the basis of the certificates and other documents brought on record. The Court finds that the petitioner had only taken an objection to the effect that the record of certain months were not available and, therefore, denied the contention of the workman that he had worked in the establishment during that period. Such objection cannot be accepted by this Court as a valid ground for rejecting the finding of the Tribunal on the question of 240 days. The Court is of the opinion that the finding of the Tribunal is based on findings of fact, which is neither perverse nor the Court is inclined to interfere in such matters.

The learned counsel for the petitioner made a submission that the workman had worked in different establishment of the petitioners' organization at Mainpuri, Orai, Etawah and Banda and had not worked for more than 240 days in a calender year in any of these organization and, consequently, the concept of 240 days cannot be taken into consideration by joining the number of working days of all the establishments in the petitioners' organization.

In support of his contention, the petitioner has relied upon a decision of the Supreme Court in Haryana State Co-operative Supply Marketing Federation Ltd. Vs. Sanjay, 2009 (3) CCC 289N (SC) wherein the Supreme Court had held that the offices of the co-operative supply at two different places were two distinct and separate establishments and cannot be treated as one establishment for the purpose of reckoning continuing of service within the meaning of Section 25F read with Section 25B of the Industrial Disputes Act.

Having heard the learned counsel for the petitioner on this issue, the Court has perused the said judgment and finds that the above reasoning given by the Supreme Court was based on the ground that the workman was engaged on a contract basis by two separate authorities under two different contracts and in this regard distinguished the purpose of continuity of service as contemplated under Section 25F of the said Act. This judgment is totally distinguishable and is not applicable in the instant case. No doubt the workman had worked at different places of the petitioners' organization in Mainpuri, Etawah, Orai and Banda but the record reveals that the workman was transferred from one place to another and that he worked in continuity without any break. Consequently, the Court is of the opinion that the said judgment is distinguishable and is not applicable to the present facts.

The Court finds that the petitioner was engaged as a Labourer and was employed for the first time in the year 1983 and in this fashion worked of and on till 1st April, 1988 and since then the workman has not worked. After the award, the workman has not worked and eventually there was an interim order staying the award completely. The award is of the year 1991, we are in the year 2013 and, consequently, on account of passage of time the Court is not inclined to direct reinstatement of the service especially when the petitioners' services was engaged on daily basis as a labourer. Reinstatement with continuity of service and with full back wages should not be granted mechanically on the ground of violation of Section 25F read with Section 25B of the Industrial Disputes Act. The Supreme Court in a catena of decisions, namely, G.M. Haryana Roadways Vs. Rudhan Singh, 2005 (5) SCC 591 and Kanpur Electrict Supply Com. Ltd. Vs. Shamim Mirza, 2009 LIC 415 had held that the Labour Court is required to consider something more than mere violation of these provisions and are required to consider the kind of employment whether the employment was on a daily basis or was on a permanent basis and was also required to see the length of service, which are relevant factors for the purpose of reinstatement with continuity of service and with back wages.

In the light of these case laws, the Court is of the opinion that even though there has been a violation of Section 25F of the said Act, the petitioner was not entitled for reinstatement with back wages and was only entitled for compensation. Considering the length of service that the workman has put in, the Court is of the opinion that compensation amounting to Rs.50,000/- should be awarded.

In the light of the aforesaid, the writ petition is partly allowed. The award of the Labour Court is modified to the extent that instead of reinstatement with back wages. The workman would be paid a sum of Rs.50,000/- within four weeks from today.

Date:23.7.2013

Bhaskar

(Tarun Agarwala, J.)