State Of U.P. Thru' Executive ... vs Presiding Officer, Labour Court ...
2017 Latest Caselaw 642 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 58
 
Case :- WRIT - C No. - 20248 of 2014
 
Petitioner :- State Of U.P. Thru' Executive Engineer
 
Respondent :- Presiding Officer, Labour Court And Another
 
Counsel for Petitioner :- Ms. Suman Sirohi
 
Counsel for Respondent :- S.C.,Girish Kumar Gupta,R.J. Singh,Standing Counsel
 

 
Hon'ble Saumitra Dayal Singh,J.

This writ petition has been filed by the employer against the award of the Labour Court, Varanasi in Adjudication Case No. 147 of 2002 dated 30.1.2012 by which the respondent workman has been directed to be reinstated together with payment of 20,000/- towards compensation in lieu of back-wages.

It is the case of the petitioner that the respondent had worked in the Irrigation Department as 'Beldar' from 1988 onward. At any rate he claimed to have worked continuously from 1.3.1991 to 30.11.1991 during which period the said respondent further claimed to have worked for 275 days. Thereafter, he claimed to have been wrongly terminated w.e.f. 1.12.1991. While it appears that the Irrigation Department had got prepared a list of workman who were similarly placed as the respondents for consideration of their claims for regularization, it is a fact that the respondent was not regularized nor his engagement was continued beyond 1.12.1991.

It is in this background after ten years a conciliation proceeding is said to have been initiated in 2001 and, thereafter, a reference was made to the Labour Court, Varanasi in 2002 which has given rise to the award impugned in the present writ petition.

The reference so made reads as under:-

"क्या सेवायोजकों द्वारा अपने श्रमिक श्री अवधेश रॉय पुत्र श्री राम नरेश औय पद बेलदार की सेवाएं दिनांक ०१.१२.१९९१ से समाप्त किया जाना उचित तथा/अथवा वैधानिक है यदि नहीं तो विवादित श्रमिक क्या हितलाभ/छतिपूर्ति पाने का अधिकारी है एवं किन अन्य विवरणों सहित"

Before the Labour Court, parties filed their written statements and also led evidence. While respondent workman led evidence in the shape of various lists, disclosing on one hand his enagement for a period of 275 days from 1.3.1991 to 30.11.1991, he also produced other documentary evidence to indicate similarly situated persons, some of whom were claimed to be a junior to the said respondent, had been continued to be engaged after 1.12.1991, till as late as 1997 and even thereafter.

On the other hand, the case of the petitioner before the Labour Court was that the respondent was only a muster roll employee engaged on the basis of the exigency of work and that he had been paid his wages for the period of his engagement but that did not create any right in favour of the respondent to be continued or to be regularized in service. Those claims, according to the petitioner would be determined by exigency of work, the Services Rules etc.

The Labour Court upon consideration of the pleadings and evidence reached the conclusion that the respondents had worked for a period of more than 240 day in the 12 calender months immediately preceding his date of termination, being 1.12.1991. Based this solitary finding, the Labour Court granted the relief of reinstatement to the respondent workman.

Heard Sri A.K. Upadhyay, learned Standing Counsel for the petitioner and Sri Aman Dev Singh, learned counsel for the respondent no.2.

While Sri A.K. Upadhyay would submit the reference was made belatedly and the claim so raised was stale, Sri Singh on the other hand would argue that the respondent workman had been continuously pursuing the matter with the authority and that till as late as 1997, according to the petitioner's own document, his claim for regularization was pending consideration at that time. Thereafter, it is stated that the services of the respondent workman were not restored or revived. Therefore, conciliation was initiated at his instance, in the year 2001.

Second, Sri Upadhyay would contend, merely because the respondent had worked for more than 240 days, it cannot be said that he is entitled to reinstatement irrespective of his status being of a muster roll employee and further irrespective of the fact that he has been found to have worked for a short period of ten months only and remained dis-engaged since then and that engagement of respondent workman was based an exigency of work.

He would also contend that the muster roll employee does not have a right to be reinstated and that at the most he could have been entitled for grant of compensation. In this regard he relies on State of Karnataka and another Vs. Ravi Kumar reported in 2009 13 SCC 746 to contend, long delay in seeking reference of the dispute has rendered the reference State and it should have been rejected by the Labour Court. In that case reference was sought after fourteen years; Haryana State Cooperation Land Development Bank Vs. Neelam reported in 2005 (5) SCC 91 where the Supreme Court held delay of seven years in approaching the Labour Court to be relevant factor to refuse relief of reinstatement; Bharat Sanchar Nigam Ltd. Vs. Bhurumal reported in 2014 (7) SCC 177 wherein it has been held relief of reinstatement with full back-wages, when termination is found to be illegal is not to be granted mechanically in all cases. In case of termination of a delay wage worker, made in violation of Section 25F of the Industrial Disputes Act, 1947 it was held reinstatement with back-wages was not automatic and instead workman should be given monetary compensation; Surendra Kumar Lal Vs. State of U.P. and others, Writ petition No. 29378 of 2009 decided on 5.2.2015, wherein it has been held:-

"The issue then to be considered is whether even if it is assumed that the petitioner has worked for 240 days, would he be entitled to regularization/absorption? The answer obviously has to be in the negative. A Muster Roll employee is not appointed to a post. In fact, it is not even an 'appointment' in the strict sense of the term. The plea of having worked for 240 days and consequently becoming entitled to regularization cannot even be countenanced as working for 240 days has no relevance to a plea of regularization/absorption.

In this connection one may stand reminded of what the Hon'ble Supreme Court held in Post Master General, Kolkata And Others Versus Tutu Das (Dutta); (2007) 5 SCC 317:

"16. The short order which was the subject matter of decision of this Court in Debika Guha (supra) also stood overruled in Umadevi (supra). We may at this stage also notice that the concept of 240 days to be the cut off mark for the purpose of regularisation of services came up for consideration of this Court in Madhyamik Siksha Parishad, U.P. v Anil Kumar Mishra and Others etc. [AIR 1994 SC 1638], wherein it was clearly laid down that the completion of 240 days of continuous service in a year would be attracted only in a case where retrenchment has been effected without complying with the provisions contained in Section 25F of the Industrial Disputes Act , but would not be relevant for regularisation of service."

Insofar as the issue of regularization is concerned, the law now stands authoritatively laid down in State of Karnatka Vs. Uma Devi (3), (2006) 4 SCC 1. Following the dictum laid down in Uma Devi's (supra), the Apex Court in Nand Kumar Vs. State of Bihar And Others, (2014) 5 SCC 300 has reiterated the legal position as follows:

"25. We have consciously noted the aforesaid decisions of this Court. The principle as has been laid down in Umadevi (3) has also been applied in relation to the persons who were working on daily wages. According to us, the daily wagers are not appointees in the strict sense of the term "appointment". They do not hold a post. The scheme of alternative appointment framed for regular employees of abolished organisation cannot, therefore, confer a similar entitlement on the daily wagers of abolished organisation to such alternative employment. (See Avas Vikas Sansthan v. Engineers Assn.) Their relevance in the context of appointment arose by reason of the concept of regularization as a source of appointment. After Umadevi (3), their position continued to be that of daily wagers. Appointment on daily-wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a government concern are not equivalent to that of a government servant and his claim to permanency has to be adjudged differently."

Lastly the plea of discrimination as raised by the counsel for the petitioner may be noticed. This plea has been faintly urged in pargraph 27 of the writ petition. However, the averments made therein are bereft of all material particulars. It is therefore not liable to be countenanced.

Be that as it may, the Apex Court considering a similar plea in Post Master General, Kolkata And Others (supra) was pleased to observe as under:-

"12. What was considered to be permissible at a given point of time keeping in view the decisions of this Court which had then been operating in the field, does no longer hold good. Indisputably the situation has completely changed in view of a large number of decisions rendered by this Court in last 15 years or so. It was felt that no appointment should be made contrary to the statutory provisions governing recruitment or the rules framed in that behalf under a statute or the proviso appended to Article 309 of the Constitution of India.

13. Equality clause contained in Article 14 and 16 of the Constitution of India must be given primacy. No policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes.

18. There are two distinctive features in the present case, which are:-

(i) Equality is a positive concept. Therefore, it cannot be invoked where any illegality has been committed or where no legal right is established.

(ii) According to the appellant the respondent having completed 240 days, does not fulfil the requisite criteria. A disputed question of fact has been raised. The High Court did not come to a positive finding that she had worked for more than 240 days in a year.

19. Even otherwise this Court is bound by the Constitution Bench decision. Attention of the High Court unfortunately was not drawn to a large number of recent decisions which had been rendered by this Court."

Accordingly, and in view of the above, there is no merit in this writ petition and it is accordingly dismissed. "

Also, he would submit that in the case of muster roll employee claiming regularization, the matter would be governed by statutory rules and procedure and non-compliance, if any, on that ground would have to be specifically set up by way of a demand by the workman, leading to conciliation proceedings which would be reflected in the consequential reference that may be made thereafter. This has not been done in the instant case. The question referred for adjudication is confined to examine whether the dis-engagement of the respondent, described as termination, is illegal. Thus, he would submit the claim of regularization, if any, would fall outside the scope of present reference and award.

On this issue, Sri Singh is unable to dispute the fact of respondent being only a muster roll employee but then he would contend that similarly situated persons have been treated differently and some such similar persons have been reinstated (as he would contend) or had been continued to be engaged. Therefore, he would submit, the respondent was also entitled to be treated similarly.

He would also submit that upon the award being passed, the same was not implemented by the petitioner and, therefore, the respondent had approached this Court for enforcement of the award whereupon he was directed to approach the statutory authority under Section 6H(1) of the U.P. Industrial Disputes Act, 1948. In the 6H(1) proceedings, a show cause notice is also stated to have been issued to the petitioner to comply with the award of reinstatement, yet no reinstatement was made. Therefore, Sri Singh would therefore, submit that the respondent is entitled to be reinstated.

It is undisputed that the respondent was only a muster roll employee and the terms of reference, as extracted above clearly indicate that the scope of the same was to examine whether the alleged termination of the respondent w.e.f. 1.12.1991 was valid. It did not include within those terms the claim of the respondent to be regularized. In fact the award of the Labour Court does not adjudicate the claim of regularization of the respondent workman. In fact the question fell outside the scope of reference and it cannot be examined in these proceedings.

Then, it is to be seen whether the claim made by the workman was time barred or state as to be rejected in entirety. Here, I find, while the reference was made eleven years after the alleged termination, it was the employer who had held out an hope to the workman, all the while to consider his claim for regularization. However, the delay was a relevant factor which should have been considered by the Labour Court before granting relief of reinstatement as held in the cases of Haryana State Cooperation Land Development Bank Vs. Neelam (supra) & BSNL Vs. Bhurumal (supra).

Also, the Supreme Court in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota Vs, Madan Lal reported in (2013) 14 SCC 543, after considering the law of the subject, held, though Limitation Act is not applicable to such cases, yet delay is raising the dispute in an important circumstance, Labour Court must consider before it exercises discretion irrespective of whether or not such objection has been raised by the other side.

Thus, I find the Labour Court, in the instant case exercised it's discretion and has granted the relief or reinstatement, overlooking the delay of eleven years in making the reference. The Labour Court has not considered this important circumstance while granting the relief of reinstatement. The award of the Labour Court to that extent, therefore, suffers from non-application of mind and is unsustainable.

Then, looking at the claim of the petitioner as made before the Labour Court, one finds that the workman was only a muster roll employee who had worked for a brief period between March 1991 to November 1991, in excess of 240 days. However that could not entitle the workman to relief of reinstatement. In this regard, besides the delay, the opinion of the Supreme Court expressed in Haryana State Cooperation Land Development Bank (supra) and BSNL Vs. Bhurumal (supra) is clearly against grant of reinstatement as an automatic relief in case of termination of a daily wage employee.

Further in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Versus Mohan Lal reported in (2013) 14 SCC 543 in similar circumstances, a muster roll employee in a government establishment who had been found to have worked for 286 days in one twelve calendar month period prior to his dis-engagement, and in whose case the industrial dispute was raised after six years, was found not entitled to reinstatement but compensation in lieu thereof, Rs. One lac only. The discussion made in paragraph 7 to 19 of that judgment that relevant to the issue at hand is quoted below:-

(7.) In Nagar Mahapalika v. State of U.P. and Ors. [JT 2006 (5) SC 318:2006,(5) SCC 127], it was held by this Court that non compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 (this provision is broadly pari materia with Section 25-F), although, leads to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the workman, the same would not mean that such relief is to be granted automatically or as a matter of course. It was emphasised that the Labour Court must take into consideration the relevant facts for exercise of its discretion in granting the relief.

(8.) The same Bench that decided Nagar Mahapalika (supra) in Municipal Council, Sujanpur v. Surinder Kumar [JT 2006 (11) SC 226 : 2006 (5) SCC 173], reiterated the above legal position. That was a case where the Labour Court had granted reinstatement in service with full back wages to the workman as statutory provisions were not followed. The award was not interfered with by the High Court. However, this Court granted monetary compensation in lieu of reinstatement.

(9.) In Haryana State Electronics Development Corporation Ltd. v. Mamni [JT 2006 (11) SC 232:2006 (9) SCC 434] following Nagar Mahapalika (supra), this Court held that the reinstatement granted to the workman because there was violation of Section 25F, was not justified and modified the order of reinstatement by directing that the workman shall be compensated by payment of a sum of Rs.25,000/- instead of the order of the reinstatement.

(10.) In Uttaranchal Forest Development Corporation v. M.C. Joshi [2007 (9) SCC 353], this Court was concerned with the situation which was very similar to the present case. The workman in that case was employed as a daily wager by the Uttaranchal Forest Development Corporation on 01.08.1989. His services were terminated on 24.11.1991 in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. He had completed 240 days of continuous work in a period of twelve months preceding the order of termination. The workman approached the Conciliation Officer on or about 02.09.1996, i.e., after a period of about five years. The Labour Court granted to the workman, M.C.Joshi, relief of reinstatement with 50% back wages. In the writ petition filed by the Corporation, the direction of reinstatement was maintained but back wages were reduced from 50% to 25%. This Court substituted the award of reinstatement by compensation for a sum of Rs.75,000/-.

(11.) In Ghaziabad Development Authority and Anr. v. Ashok Kumar and Anr. [JT 2008 (2) SC 494 : 2008 (4) SCC 261], this Court was concerned with the question as to whether the Labour Court was justified in awarding relief of reinstatement in favour of the workman who had worked as daily wager for two years. His termination was held to be violative of U.P. Industrial Disputes Act. This Court held that the Labour Court should not have directed reinstatement of the workman in service and substituted the order of reinstatement by awarding compensation of Rs.50,000/-

(12.) In Telecom District Manager v. Keshab Deb [JT 2008 (7) SC 257 : 2008 (8) SCC 402], the termination of the workman who was a daily wager, was held illegal on diverse grounds including violation of the provisions of Section 25-F. This Court held that even in a case where order of termination was illegal, automatic direction for reinstatement with full back wages was not contemplated. The Court substituted the order of reinstatement by an award of compensation of Rs.1,50,000/-.

(13.) In Jagbir Singh v. Haryana State Agriculture Marketing Board [JT 2009 (9) SC 396 : 2009 (15) SCC 327], the Court '(2007) 9 SCC 352 speaking through one of us (R.M. Lodha, J.) in a case where the workman had worked from 01.09.1995 to 18.07.1996 as a daily wager granted compensation of Rs.50,000/- to the workman in lieu of reinstatement with back wages.

(14.) It is not necessary to refer to subsequent three decisions of this Court, namely, Uttar Pradesh State Electricity Board v. Laxmi Kant Gupta [JT 2009 (10) SC 534 : 2009 (16) SCC 562], Bharat Sanchar Nigam Limited v. Man Singh [2012 (1) SCC 558] and Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal and Ors. [JT 2010 (6) SC 248 : 2010 (6) SCC 773], where the view has been taken in line with the cases discussed above. As a matter of fact in Santosh Kumar Seal (supra), this Court awarded compensation of Rs.40,000/-to each of the workmen who were illegally retrenched as they were engaged as daily wagers about 25 years back and worked hardly for two or three years. It was held that the relief of reinstatement cannot be said to be justified and instead granted monetary compensation.

(15.) Recently in the case of Assistant Engineer, Rajasthan Development Corporation and Anr. v. Gitam Singh [JT 2013 (2) SC 231 : 2013 (5) SCC 136], this Court speaking through one of us (R.M. Lodha, J.) on consideration of the most of the cases cited above reiterated the principle regarding exercise of judicial discretion by the Labour Court in a matter where the termination of the workman is held to be illegal being in violation of Section 25-F in these words : "The Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial

(16.) Mr. Badri Prasad Singh, learned counsel for the workman, however, vehemently contended, which was also the contention of the workman before the Division Bench, that plea regarding delay was not raised before the Labour Court and, therefore, the delay in raising the industrial dispute should not come in the way of the workman in grant of relief of reinstatement. He relied upon Ajaib Singh (supra). In that case, the services of the workman, Ajaib Singh were terminated on 16.07.1974. Ajaib Singh issued the notice of demand on 18.12.1981. No plea regarding delay was taken by the employer before the Labour Court. The Labour Court directed the employer to reinstate Ajaib Singh with full back wages. The award was challenged before the High Court. The Single Judge held that Ajaib Singh was disentitled to relief of reinstatement as he slept over the matter for 7 years and confronted the management at a belated stage when it might have been difficult for the management to prove the guilt of the workman. The judgment of the Single Judge was upheld by the Division Bench. The judgment of the Division Bench was challenged by the workman before this Court. The Court was persuaded by the grievance of the workman that in the absence of any plea on behalf of the employer and any evidence regarding delay, the workman could not be deprived of the benefits under the I.D. Act merely on the technicalities of law. However, the Court was of the opinion that on account of the admitted delay, the Labour Court ought to have appropriately moulded the relief by denying some part of the back wages.

(17.) Ajaib Singh (supra), in our view, cannot be read as laying down an absolute proposition of law that where plea of delay is not raised by the employer, the delay in raising the industrial dispute by the workman pales into insignificance and the Labour Court will be unjustified in taking this circumstance into consideration for moulding the relief. On the contrary, in Ajaib Singh (supra), the Court said that on account of admitted delay, the Labour Court ought to have appropriately moulded the relief though this Court moulded the relief by denying the workman some part of the back wages.

(18.) In a subsequent decision in Balbir Singh (supra), this Court observed that Ajaib Singh (supra) was confined to the facts and circumstances of that case. It is true that in Balbir Singh (supra), the plea of delay was raised before the Industrial Tribunal but we would emphasize the passage from Balbir Singh (supra) where it was said: "Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts and circumstances of the case. No doubt the discretion is to be exercised judicially".

(19.) We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the I.D. Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Gitam Singh (supra) that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed. "

Thereafter, the Supreme Court held as below:-

"19... The legal position laid down by this Court in Gitam Singh that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed."

The Supreme Court then modified the award and granted relief of compensation Rs. 1,00,000/-.

Thus, applying the above principle to the facts of this case, I find the Labour Court has granted the relief of reinstatement to the workman admittedly a muster roll employee who had worked for only ten months in a government department without keeping in view and without recording any finding on all relevant factors including the mode and manner of his appointment; nature of his employment being a muster roll employee; his length of service (which admittedly was about ten months); delay in raising the industrial dispute and; the technical ground to set aside the termination. Therefore, the award cannot be sustained being contrary to the rule laid down by the Supreme Court in Rajasthan State Agriculture Marketing Board Vs. Mohan Lal (Supra).

Also, in Himanshu Kumar Vidyarthi and others Vs. State of Bihar reported in 1997 (4) SCC 391, the Supreme Court had further held the concept of industry has to be excluded in case of a department of Government where appointments are regulated by statutory rules. In that case disengagement of drivers and peons engaged against exigency of work contrary to statutory Rules was held not to amount to 'retrenchment under Section 25F of Industrial Disputes Act.

The aforesaid judgment of the Supreme Court has been followed by our Court in Mohd Umar Vs. Executive Engineer, Nagar Palika Parishad reported in 2004 (1) UPLBEC 174 wherein, vide para 13 it was held as below:-

13. In Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others, 1997(4) SCC 391, it has been held by the Apex Court that 'Every department of regulated by the statutory rules, the concept of industry to that extent stands excluded. The petitioners were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment, therefore, cannot be stretched to such an extent as to cover these employees. Since the petitioners are only daily wage employees and have no right to their posts, their disengagement is not arbitrary."

Thus, the award of reinstatement of the respondent, a muster roll employee is contrary to law as it has been made upon a belated reference and the Labour Court has exercised it's discretion to grant relief of reinstatement without first applying its mind to all relevant factors as laid down by the Supreme Court in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota (supra) including

(i) mode and manner of appointment;

(ii) nature of employment;

(iii) length of service;

(iv) Ground on which termination was being set aside,

(v) delay in making the reference.

The labour Court ought to have considered the case of the respondent workman on all of above factors and could have granted relief of reinstatement only after recording appropriate findings on those factors.

Had the Labour Court considered the case on the aforesaid parameters, as it was indeed obliged to, then, on admitted facts as discussed above, relief of reinstatement could not have been granted to the respondent. Only relief to which the respondent was entitled to was of compensation. It being an undisputed case that the respondent workman had worked for more than 240 days in the twelve calender months immediately preceeding his dis-engagement, the Labour Court ought to have considered the claim for compensation in that light.

In view of the time already consumed and human existence being itself short coupled with the ageing litigation pending before the Labour Court generally, no useful purpose may be served in sending back the matter to the Labour Court for quantification of compensation.

Accordingly, in view of similar compensation award being awarded by the Supreme Court in various cases the award of the Labour Court is modified and it is provided, in lieu of reinstatement awarded, the respondent is entitled only to compensation which in the facts and circumstances of the case would be proper to quantify at Rs. 1,00,000/- in addition to the amount of Rs. 20,000/- already paid to him under the award of the Labour Court.

Subject to payment of Rs. 1,00,000/- to the respondent workman by the petitioner by 31.8.2017, the award of the Labour Court would stand modified as above. In the event of non-payment of the aforesaid amount within time so granted, the respondent workman would further be entitled to interest @ 8% from today till the date of payment.

Also, leaving it open to the respondent to claim relief of regularization in accordance with the Rules and procedures governing the same and without prejudice to that claim and further leaving all options open to the respondent, to pursue the same in such manner as he may be deem fit, the present petition is allowed in part, as indicated above.

The writ petition is accordingly, allowed in part.

No order as to costs.

Order Date :- 15.5.2017

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