Superintending Engineer, P.W.D. ... vs Prescribed Authority, Labour ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 17
 

 
Case :- MISC. SINGLE No. - 1713 of 2013
 

 
Petitioner :- Superintending Engineer, P.W.D. Pratapgarh Circle & Another
 
Respondent :- Prescribed Authority, Labour Court, U.P. Allahabad & Another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C.,S.P. Somvanshi
 
Hon'ble Irshad Ali,J. 

Heard learned counsel for the petitioners.

Learned Chief Standing Counsel has accepted notice on behalf of the respondent No.1.

Sri S.P. Somvanshi, learned counsel has accepted notice on behalf of the respondent No.2.

Brief facts of the case is that respondent no.2, Sri Mahendra Prajapati, has initially been appointed to work has labourer (Majdoor) since the year 1988 in district Pratapgarh and continued to work in the exigencies of the work available in the department and was paid wages per day on muster-roll. Case of the petitioners is that the certain enclosures in regard to the working are not genuine and are forged documents and were not substantiated from the official record. The engagement of the petitioners was in respect of construction of road from Utraula-Faizabad to Allahabad. The work of the construction of road was subsequently transferred to the World Bank Project at Allahabad in the year 1990. The claim of the opposite party no.2 is that he continued to work from April, 1998 to February 1999 under the Executive Engineer, Provincial Division, Pratapgarh. He raised industrial dispute that Public Works Department is an industry under the provisions of the Industrial Disputes Act, 1947, who has engaged the petitioner as daily-wager on the basis of availability of work and funds and filed claim under the provisions of Section 6-N of the Industrial Disputes Act, 1947 claiming that he is a retrenched employee of the Public Works Department of the State of U.P. The matter was referred to the prescribed authority for consideration of claim of the respondent no.2, who has decided the issue raised by the petitioner by the impugned award passed on 04.11.2010 (Annexure-1 to the writ petition), whereby it has been decided that respondent no.2 holding that his disengagement w.e.f 01.01.1999 is unsustainable and illegal with the direction to reinstate the opposite party no.2 with continuity in service. The impugned judgment and award passed by the respondent no.1 is under challenge before this Court.

Assailing the judgment and award dated 04.11.2010, learned Additional Chief Standing Counsel submits that the impugned award has been passed in an arbitrary and illegal manner including the settled principles of law laid down by the Hon'ble Supreme Court, wherein it has been held that the State and its Departments, who are involved in the functioning of the Public Welfare of the State, which is a statutory mandate under the directive principles of the State policy cannot be said to be an industry under the Industrial Disputes Act, 1947. He further submitted that the prescribed authority has failed to appreciate that the respondent no.2, who was engaged as daily labourer has been paid remuneration in terms of the provisions contained in paragraphs 429 to 433 (Volume-VI) of the Financial Hand-Book, therefore, his submission is that the engagement of the respondent no.2 was on the basis of exigency of the work and availability of funds against a particular project which would not vest any right to such daily labourers claiming benefit of provisions of U.P Industrial Disputes Act. His next submission is that the law laid down by the Hon'ble Supreme Court in the case of Himanshu Kumar Vidyarthi, wherein it has been held that every department of the Government cannot be treated to be an industry and particularly when the appointments are regulated by statutory rule the concept of an industry to that extent stands executed. Next submission is that the opposite party no.2 upon engagement on daily-wage basis, therefore, disengagement from service cannot be constituted as retrenchment under the provisions of Industrial Disputes Act. The respondent no.2 was a daily labourer having no right to the post, therefore, his disengagement is neither arbitrary nor he was entitled for the benefit of Section 6-N of the Industrial Disputes Act 1947.

Rebutting the submission advanced by learned counsel for the petitioner, learned counsel appearing on behalf of respondent no.2, Sri S.P. Somvanshi, submits that engagement of the respondent no.2 on the post of mate in Public Works Department, Pratapgarh, was made in the year 1988 and he continued to work till the year 1990, thereafter, the respondent no.2 along with other persons were assigned work under the World Bank Project in the construction of road from Faizabad to Allahabad and on completion of their work, they were transferred to their parental departments. The next submission of learned counsel for the respondent no.2 is that the respondent no.2 without following the procedure prescribed under Section 6-N of the U.P. Industrial Disputes Act, 1947 was disengaged from the work. He further submitted that the oral order of termination of services of the petitioner was challenged before this Court in a writ petition, which was finally disposed of with the direction to approach the proper forum and thereafter the petitioners raised the industrial dispute which was registered and numbered as Case No.13 to 15 of 2008. The cases filed by other similarly situated daily-wagers were connected which was decided on 28.6.2010 and the award passed on 04.11.2010. The submission of learned counsel for the respondent no.2 is that the judgment and award passed by the prescribed authority does not suffer from any infirmity or illegality, therefore, the writ petition challenging the same is misconceived and is liable to be dismissed.

After the judgment and award passed by this Court, the respondent no.2 due to non-compliance of the order, filed a Writ Petition No.1997(S/S) of 2013, Ram Nihor Yadav and another vs. State of U.P and others with the prayer for issuance of direction to the competent authority to comply the award and reinstate the petitioner with continuity along with other consequential benefits. Vide order dated 27.4.2016, this Court passed an interim order directing the department to reinstate the petitioners and to pay salary to the respondent no.2 within a month. The order passed by this Court is being quoted below :-

"Heard learned counsel for the parties.

As the award dated 28.06.2010 has been challenged by the petitioners in both the writ petitions, therefore, the same are being taken up together.

There is an award of Labour Court dated 28.06.2010 in favour of the petitioners declaring their termination from service as being in violation of Section 6(n) of the U.P. Industrial Disputes Act and ordering reinstatement in service.

The senior officer of the Public Works Department had written for compliance of the award but this was not done.

In normal course the petitioners would be at liberty to avail the remedy before the Industrial Disputes Tribunal for enforcement of the award under the Labour Law but considering the fact that they were low paid employees who have been struggling for their rights since 1999 when they raised the dispute and even after the award having been passed in their favour on 28.06.2010 till date the same has not been complied with, albeit, the department has filed a fresh writ petition bearing No. 1715 (MS) of 2013 after a period of three years challenging the same award, prima-facie, the least which was required to be done by the opposite parties was to reinstate the petitioners in compliance of the award, without prejudice to their rights in pending writ petition, so that sanctity of the award and process of law be maintained.

Let it be done within a period of one month from the date a certified copy of this order is produced before the competent authority. The petitioner shall be paid wages as per law but arrears thereof shall not be paid till final decision is taken in the matter.

As one of the writ petitions i.e. Writ Petition No. 1715 (MS) of 2013 relates to Miscellaneous Single matter, the record of this writ petition be placed before the Hon'ble Senior Judge of this Court for nomination of a Bench to hear both the petitions together.

List the case on 30.05.2016 as first case of the day."

He next submitted that similarly situated persons filed a writ petition before this Court challenging the oral order of termination before this Court in a writ petition which was allowed and the order passed by this Court has been affirmed by the Hon'ble Supreme Court of India. Therefore, present writ petition being based on irrelevant grounds is not sustainable in law.

After having heard learned counsel for the parties and perused the material on record. On perusal of impugned judgment and award it is recorded that the respondent no.2 submitted nine documents issued by the respondents which certifies the continuity of the respondent no.2 of 240 days in a calendar year. The documents relied upon by the prescribed authority in passing the order has been filed before this Court as Annexure-CA-4 to the counter affidavit. The judgment and award passed by the Labour Court has not been denied in the writ petition and in paragraph 28 of the writ petition a letter dated 06.01.2012 has been brought on record and on its perusal it is evident that the same does not relate to the respondent no.2, therefore, the finding recorded on the basis of documents which are on record and has been filed along with the counter affidavit cannot be termed to be in-genuine. The reliance placed by learned counsel for the petitioner that the prescribed authority cannot pass order of reinstatement of the employee and placed reliance upon a judgment of Hon'ble Supreme Court in the case of Assistant Engineer, Rajasthan Development Cooperation and another (2013) 5 Supreme Court Cases 136. Paragraphs 22, 23, 24, 25, 26, 27 and 29 of the said judgment are being quoted below :-

"22. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.

23. We shall now consider two decisions of this Court in Harjinder Singh2 and Devinder Singh3 upon which heavy reliance has been placed by the learned counsel for the respondent.

24. In Harjinder Singh2 , this Court did interfere with the order of the High Court which awarded compensation to the workman by modifying the award of reinstatement passed by the Labour Court. However, on close scrutiny of facts it transpires that that was a case where a workman was initially employed by Punjab State Warehousing Corporation as work-charge motor mate but after few months he was appointed as work munshi in the regular pay-scale for three months. His service was extended from time to time and later on by one month's notice given by the Managing Director of the Corporation his service was brought to end on 05.07.1988. The workman challenged the implementation of the notice in a writ petition and by an interim order the High Court stayed the implementation of that notice but later on the writ petition was withdrawn with liberty to the workman to avail his remedy under the ID Act. After two months, the Managing Director of the Corporation issued notice dated 26.11.1992 for retrenchment of the workman along with few others by giving them one month's pay and allowances in lieu of notice as per the requirement of Section 25-F(a) of the ID Act. On industrial dispute being raised, the Labour Court found that there was compliance of Section 25-F but it was found that the termination was violative of Section 25-G of the ID Act and, accordingly, Labour Court passed an award for reinstatement of the workman with 50 per cent back wages. The Single Judge of that High Court did not approve the award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh2 are quite distinct. That was not a case of a daily- rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh2 turned on its own facts and is not applicable to the facts of the present case at all.

25. In Devinder Singh3 , the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution.

26. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh3 , the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F.

27. In our view, Harjinder Singh2 and Devinder Singh3 do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. 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 the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.

29. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000/- by the appellant to the respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the respondent within six weeks from today failing which the same will carry interest @ 9 per cent per annum."

On perusal of the ratio decided in the judgment referred herein-above, the facts of the case was that the workman was engaged as daily-wager on 01.03.1991 and continued to work only for 08 months, therefore, the Hon'ble Supreme Court founds the case to be not fit for reinstatement in service with continuity. Here in the present case, the respondent no.2 continued from the year 1988 to 1998, therefore, the ratio of the judgment relied upon by the learned counsel for the petitioner is distinguishable and does not apply to the present facts and circumstances of the case. Learned counsel for the petitioners further placed reliance upon another judgment of the Supreme Court in the case of J. Yashoda vs. K. Shobha Rani reported in (2007) 5 Supreme Court Cases 730 and placed reliance on paragraphs 8, 9 and 10, which are being quoted below :-

"8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.

9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows:

"7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."

10. The admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of Section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case clause (a) of Section 65 has not been satisfied. Therefore, the High Court's order does not suffer from any infirmity to warrant interference."

In the said judgment, the Hon'ble Supreme Court has laid down that the rule which is the most universal in regard to the fact that the best evidence the nature of the case will admit shall be produced only means that, so long as the higher superior evidence is within the possession of a person or may be reached by a person, that person shall give no inferior proof in relation to it. Essentially, secondary evidence is evidence which may be given in the absence of that better evidence which law requires to be given, when a proper explanation of its evidence is given. Meaning thereby secondary evidence as a general rule is admissible only in the absence of primary evidence. In order to enable a party to produce secondary evidence it is necessary for the party to proof existence and execution of the original document. However, if the original itself is found to be inadmissible through failure of the party each files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Herein above, present case on the basis of record, a finding has been recorded by the prescribed authority that the working of the petitioner has been filed proved on perusal of the records available before the prescribed authority, therefore, the submission of learned counsel for the petitioner is that he pleaded that the documents were forged and were not present on record of the department, therefore, the same was not admissible under Sections 63 and 65 of the Indian Evidence Act. In this regard, it is recorded that mere statement of fact that the documents are forged is not sufficient to establish that the documents are forged. The petitioner would have been produced material evidence to establish that the documents produce by the respondent no.2 are not genuine and are procured document. In the present case, the petitioner has yet no point of time produced any material to establish that the documents which have been brought on record have not been issued under the signature of the authorities of the department nor on the basis of report of the Forensic Department. It has ever been established that on the documents filed by the respondent no.2 has been filed under the forged signature of the officer and the officer has never been issued the document produced by the respondent no.2, therefore, the ratio of the judgment relied upon by the learned counsel for the petitioner is not applicable to the present facts and circumstances of the case. He further relied upon a judgment of the Hon'ble Supreme Court in the case of Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department reported in (2008) 7 Supreme Court Cases 169 and his submission is that respondent no.2 filed objections on different forum which cannot be termed to be bona fide and the case was ought to have been dismissed on the ground of latches in approaching the competent court of law after the lapse of so many years. The judgment relied upon by the learned counsel for the petitioner the Hon'ble Supreme Court has taken notice of the provisions of Arbitration and Conciliation Act as well as Application of Limitation Act, 1963 in the proceeding wherein in paragraphs 21 and 22 has held as under :-

"21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:

(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;

(2) The prior proceeding had been prosecuted with due diligence and in good faith;

(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;

(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;

(5) Both the proceedings are in a court.

22.The policy of the Section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded."

Therefore, the ratio of the judgment relied upon by the learned counsel for the petitioners is actually helped the respondent no.2 due to initiation of proceeding under long jurisdiction which has been held to be executed in counting the limitation. Therefore, the judgment relied upon has no help to the petitioners.

In rebuttal, learned counsel for the respondent no.2 relied upon the judgment of the Hon'ble Supreme Court in the case of Jasmer Singh vs. State of Haryana and another reported in 2015 (33) L.C.D 588 and submitted that in case of termination of services if the notice has not been issued nor retrenchment compensation has been paid the workman if found to have worked for more than 240 days in a calendar year, the termination whether it is oral or in writing is void ab-initio, therefore, he is entitled for the back wages with reinstatement in service. He relied upon paragraphs 4, 11 and 12 of the aforesaid judgment, which are being quoted below :-

"4. The appellant-workman was working as daily paid worker in the office of Sub Divisional Officer/Engineer, Provincial Division No. 3, PWD B & R Karnal since 1.1.1993 and remained in service upto December, 1993. He had completed more than 240 days of continuous service in one calendar year. His services were terminated on 31.12.1993 without complying with the mandatory provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). The respondent- management neither issued notice nor notice pay nor retrenchment compensation was given to him. The principle of 'last come first go' was not followed as provided under Section 25G of the Act and the persons who were juniors to him in service were retained. Therefore, he has raised an industrial dispute under the provisions of the Act before the Conciliation Officer requesting for setting aside the order of termination as the same is void ab initio in law and sought an order for reinstatement with back wages and other consequential benefits. As the workman's demand made in his Notice dated 27.11.1996 was not complied with, the Conciliation Officer submitted a failure report to the State Government of Haryana. The State Government of Haryana in exercise of its statutory power under Section 10(1)(c) of the Act referred the industrial dispute to the Industrial Tribunal-cum- Labour Court for adjudication as per the points of dispute. The same was registered as Case Reference No. 205 of 1997 for adjudication of the dispute.

11. Eventually, the Industrial Tribunal-cum-Labour Court has rightly set aside the order of termination passed against the workman and awarded reinstatement in his job with continuity of service and full back wages to him.

12. The said Award is challenged by the respondent-employer in Civil Writ Petition No. 9532 of 2001 urging untenable contentions. In the said writ petition, the High Court exercised its jurisdiction contrary to the judgment of this Court in the case of Syed Yakoob v. K.S. Radhakrishnan & Ors.[3] and also the judgment, which was referred to in the case of Harjinder Singh v. Punjab State Warehousing Corporation[4]. The learned counsel for the appellant has aptly placed reliance upon another judgment of Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat (Haryana)[5] in support of her legal submissions that both the learned Single Judge and the Division Bench of the High Court have erred in exercising their supervisory power under Article 227 of the Constitution of India in setting aside the finding of fact recorded on the facts based on the pleadings and evidence on record.

Further in the case of Harjinder Singh v. Punjab State Warehousing Corporation (supra), wherein this Court opined on the exercise of power by the High Court under Article 227 of the Constitution of India as under:-

"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that:- "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."

He further placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Raj Kumar Dixit vs. M/s Vijay Kumar Gauri Shanker reported in 2015 (4) ESC 638 SC wherein the question of in violation of Section 6-N has been considered and upon found entitlement of reinstatement with full back wages direction was issued by giving relief of reinstatement with 5% back-wages. The reliance has been placed on paragraphs 7, 8, 15, 16 and 20, which are quoted below :-

"7. The Labour Court on the basis of the pleadings of the parties and in accordance with the claim and written statements of the appellant and the respondent and on re-appreciation of the evidence on record adjudicated the existing industrial dispute between the parties and recorded its finding on the points of dispute referred to it in favour of the appellant which are extracted in the narration of the facts and based on the evidence and circumstances of the case, it held that the appellant was under the employment of the respondent-firm and terminating him from his services by the respondent-firm is in contravention to the provisions of Section 6N and other provisions of the Act which is improper and illegal. The Labour Court directed the respondent-firm to reinstate him in the said post and pay him 50% back wages from the date of termination till the date of passing of the Award.

8. The correctness of the said Award was challenged by the respondent- establishment before the High Court by filing writ petition urging various legal grounds. The High Court, based on the findings and reasons recorded on the points of dispute, held that the termination order passed against the appellant-workman is not legal. The High Court in exercise of its judicial review power under Article 227 of the Constitution of India modified the Award passed by the Labour Court, holding that the workman has neither stated anything with regard to his gainful employment nor any averments were made by him in this regard during the aforesaid period. Therefore, awarding 50% back wages in favour of the workman by the Labour Court in its Award is held to be not justified and the High Court modified the Award by awarding Rs.2 lakhs compensation in lieu of reinstatement with 50% back wages as awarded by the Labour Court.

15. Awarding compensation to an amount of Rs. 2 lakhs to the workman by the High Court in lieu of reinstatement of the appellant-workman along with 50% back wages is once again contrary to the well settled principles of law as has been laid down by this Court in a catena of cases, particularly, the case of Punjab Land Development and Reclamation Corporation. Ltd. v. Presiding Officer, Labour Court,[1] wherein the Constitution Bench held that the order of termination simpliciter has to be held bad in law for non- compliance of the mandatory requirements provided under the Act and further held that the order of termination will be rendered void-ab-initio in law and therefore, the workman is entitled for all benefits for which he is legally entitled to in law.

16. The High Court has exceeded in its jurisdiction in setting aside the Award passed by the Labour Court in awarding reinstatement of the appellant- workman in his post along with 50% back wages which is erroneous in law as the High Court has not noticed the fact that the appropriate Government has referred the dispute to the Labour Court for its adjudication on the points of dispute referred to it. Since, there was non-compliance of the mandatory requirements as provided under the provisions of the Act by the respondent- firm at the time of passing an order of termination against the appellant- workman, therefore, the same has been held to be bad in law and as such it should have awarded full back wages to the workman from the date of termination till the date of passing the Award unless the employer proves that the workman was gainfully employed during the aforesaid period which fact is neither pleaded nor proved before the Labour Court.

20. The High Court has erred in its decision, both on facts and in law in setting aside the order of reinstatement with 50% back wages to the workman. It is the workman who was aggrieved with regard to the non- awarding of 50% back wages and this aspect of the matter has not been considered by the High Court while interfering with the Award of the Labour Court and awarding compensation in lieu of the reinstatement and back wages. Therefore, the appeal must succeed in this case. The High Court in awarding compensation to the workman has erroneously held that the order of reinstatement passed in favour of the appellant-workman is illegal and void ab initio in law without assigning valid and cogent reasons and therefore, the same is liable to be set aside as there has been a miscarriage of justice. The grounds urged by the appellant in this case are well founded and we accordingly pass the following order:

I. The Appeal is allowed. The impugned judgment and order passed by the High Court of Judicature at Allahabad in Writ Petition No. 19573 of 2010 dated 02.07.2014 is hereby set aside and the Award passed by the Labour Court in awarding reinstatement with 50% back wages from the date of termination till the date of passing the Award by the Labour Court is restored.

II. We further direct the respondent-firm to pay full back wages to the workman from the date of passing of the Award by the Labour Court till the date of his reinstatement in service. The order shall be complied with by the respondent-firm within six weeks from the date of receipt of copy of this order. "

The ratio of the aforesaid two judgments relied upon by the learned counsel appearing on behalf of respondent no.2 are fully applicable to the present case.

The respondent no.2 was engaged on 01.04.1988 as mate in the Public Works Department, Pratapgarh and continued to discharge his duties till the month of June, 1998 along with other similarly situated employees engaged in the department, therefore, his services would not have been disengaged without following the procedure prescribed under Section 6-N of the U.P. Industrial Disputes Act 1947. The Labour Court on the basis of material on record upon its examination found that the respondent no.2 has worked in the department for more than 240 days in a calendar year, therefore, has recorded categorical findings that due to non-compliance of the provisions of Section 6-N of the U.P. Industrial Disputes Act 1947, the disengagement of the petitioner from service is void ab initio, therefore, direction to reinstate the respondent no.2 in service does not vitiate in law, therefore, the Court decline to interfere in the judgment and award passed by the respondent no.1.

Upon consideration of the submissions advanced by learned counsel for the parties and the judgments relied upon, no interference is called for. The writ petition lacks merit and is hereby dismissed.

Order Date :- 17.5.2018

m.a.