Om Prakash Yadav vs The State Of U.P.Through Secy. ...
2019 Latest Caselaw 3474 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 25
 
Case :- MISC. SINGLE No. - 5543 of 2009
 
Petitioner :- Om Prakash Yadav
 
Respondent :- The State Of U.P.Through Secy. Labour Deptt. Lko.
 
Counsel for Petitioner :- Suresh Chandra Mishra
 
Counsel for Respondent :- C.S.C,Aditya Pandey,N.C.Mehrotra,Seema Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Oral

1. Heard the learned counsel for the petitioner.

2. The petitioner challenges the Award dated 24.8.2006 passed by the opposite party no. 2 in Adjudication Case No. 92 of 2000 arising out of Reference dated 11.9.2000.

3. It has been submitted by the learned counsel for the petitioner that the petitioner was initially engaged as a muster roll employee w.e.f. 1.4.1995 and he continued to work continuously with artificial breaks upto 1.12.1997 on which date his services were dispensed with without paying his retrenchment compensation as per Section 6(N) of the U.P. Industrial Disputes Act.

4. It has been submitted that several workmen who were similarly situated also approached the Government and Reference was made in regard to such six workmen by the Government on various dates, which were in the same language and related to the issue whether such workmen had been illegally terminated by the employer and the relief if any to which they were entitled. All such References led to Adjudication Case Nos. 99 of 2000, 100 of 2000, 56 of 2000 and 91 of 2000 being clubbed with Reference No. 92 of 2000 and the same were decided by the opposite party no. 2 by Award dated 24.8.2006 published on various dates thereafter.

5. It has been submitted that the petitioner filed a recall application which was also rejected on 28.7.2009 as not maintainable.

6. Learned counsel for the petitioner has pointed out from the Award impugned that it has not been disputed by the employer that the petitioner was engaged on 1.4.1995 and continued to work upto 1.12.1997 on which date his services were dispensed with orally only because the project in which he was working stood completed. It was not disputed by the employer that some workmen on the same project were engaged elsewhere in a different project after the completion of the project in which they were initially engaged. It has also not been disputed by the employer before the opposite party no. 2 that similarly situated 2207 workmen were also terminated in a similar manner.

7. However, the employer relied upon the judgment rendered by this Court in Writ Petition No. 2136 (S/S) of 1999 dated 11.8.2000 and similar judgments which led to the Supreme Court finally deciding the issue in State of U.P. Vs. Neeraj Awasthi, reported in 2006 (1) SCC 667.

8. It has been submitted by the learned counsel for the petitioner that though the Hon'ble Supreme Court set aside the direction for reinstatement and regularisation of such workmen, their right accruing on violation of Section 6(N) of the Industrial Disputes Act was not adjudicated upon at all.

9. It has been submitted by the learned counsel for the petitioner that retrenchment compensation in terms of Section 6(N) of the U.P. Industrial Disputes Act, 1947 ought to have been given in case the workmen services were no longer required for any reason whatsoever.

10. Learned Labour Court however fell into the error of considering the judgment rendered in the case of State of U.P. Vs. Neeraj Awasthi and holding that workmen were not entitled to regularisation even if they had worked for 240 days in the twelve preceding calender months.

11. Learned counsel for the petitioner has pointed out a judgment rendered by a Coordinate Bench of this Court in Secretary, Krishi Utpadan Mandi Samiti Vs. Presiding Officer, Labour Court & others reported in 2008 (116) FLR 852.

12. This Court being seized with a similar matter had observed in paragraph 7 that Section 6(N) provides that no workman to whom the Section applies shall be retrenched unless one month's notice or pay in lieu thereof, and retrenchment compensation is paid to him. The proviso to clause (a) of Section 6(N) dispensed with the requirement to give notice where the agreement entered into between the employer and the workman specifies a date for the termination of service, but did not exempt the employer from payment of the retrenchment compensation. Even in fixed term appointments, no action of retrenchment can be resorted to under the U.P. Act, without payment of retrenchment compensation.

13. The consequence of a retrenchment without payment of compensation was considered by a three Judge Bench of the Apex Court in Gammon India Vs. Niranjan Das 1984 (48) FLR 310 where it was held that such termination of service was void. However, the question as to what relief a workman is entitled to depended upon several factors to be considered by the Labour Court including the length of service rendered and the nature of engagement.

14. This Court has put a specific query to Sri N.C. Mehrotra, learned counsel for the opposite party nos. 3 & 4 whether retrenchment compensation was paid to the petitioner, his services having been dispensed with orally after termination of project as alleged.

15. It is the not the case of the employer that retrenchment compensation was paid. It is also not the case of the employer that the workman did not work for 240 days in the twelve preceding calender months.

16. It is the case of the employer that the relief of regularisation as prayed for by the workman could not have been granted by the labour Court in the teeth of the judgement rendered by the Hon'ble Supreme Court in the case of State of U.P. Vs. Neeraj Awasthi.

17. Learned counsel for the respondent nos. 3 & 4 has pointed out from the pleadings on record that even before this Court in this writ petition, the petitioner has placed reliance upon a judgment rendered in a bunch of writ petitions, the leading case of of which was Writ Petition No. 1346 of 1999 (Mukesh Kumar Vs. U.P. Krishi Utpadan Mandi Samiti) decided by a Coordinate Bench on 11.8.2000.

18. In the litigation ensuing after the said judgment which had went upto the Hon'ble Supreme Court, the Hon'ble Supreme Court in the case of Neeraj Awasthi (supra) observed that even if a workman had rendered more than 240 days of service in the twelve preceding calender months before his termination, it would not entitle him to reinstatement or regularisation.

19. This Court having considered the arguments made by the learned counsel for the petitioner and the learned counsel for the respondent nos. 3 & 4, has carefully perused the Award impugned. It is apparent from the Reference made by the Government dated 11.9.2000 with respect to the petitioner that the issue that was framed, was whether the termination of service of workman - Om Prakash Yadav son of Mahadev Yadav on 1.12.1997 was legal and if not to what relief he was entitled to.

20. Under the U.P. Industrial Disputes Act, Section 6(N) refers to retrenchment compensation being payable to such workmen whose services were dispensed with if the service rendered by them is 240 days or more in the preceding year.

21. The Coordinate Bench of this Court in the judgment rendered in Secretary, Krishi Utpadan Mandi Samiti Vs. Presiding Officer, Labour Court & others 2008 (116) FLR 852 has considered the observations made by the Hon'ble Supreme Court in detail and has observed the U.P. Industrial Disputes Act confers certain benefits upon such workmen which benefits accrued to them in case of non compliance of Section 6(N) or Section 6(P) or Section 6(Q) of the said Act.

22. In Nagar Mahapalika Vs. State of U.P. 2006 (5) SCC 127, the Supreme Court observed "an appointment made in violation of the provisions of the Adhiniyam is void. The same however although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purposes of determination of the question whether the termination of the workmen from the services is legal or not, but the same should have to be considered to be an important factor in the matter of grant of relief". The validity of the appointment is therefore not a precondition for the applicability of Section 6(N).

23. The workman may have during the course of argument before the opposite party no. 2 relied upon several case law relating to regularisation in case of wrongful termination, but the opposite party no. 2 was duty bound only to decide the case within the four corners as laid down in the Reference. The Industrial Tribunal is not supposed to travel beyond the terms of the Reference order and make observations with regard to entitlement to regularisation or otherwise of a workman.

24. This Court having perused the Award finds that the learned Trial Court has referred to Manager, Reserve Bank of India Vs. S. Mani 2005 (5) SCC 100, which of course was a judgment arising out of an Industrial Dispute and had observed that statutory provisions as framed under the Act, the Rules and Regulations, bound the Market Committee as well as the learned labour Court, in so far as the relief claimed of regularisation was concerned. However, from the perusal of the Award rendered by the opposite party no. 2, this Court finds that several judgments have been referred to in the Award impugned that relate to the relief of regularisation on setting aside of wrongful termination if any.

25. The Labour Court has observed that the petitioner or any other workmen could not produce any written order of appointment nor could they produce any order passed by any competent Authority engaging them. They were engaged on muster roll in Jaunpur and thereafter were attached for sometime at Lucknow. The workmen are unaware of the project on which they were so engaged, therefore it could not be said that their engagement was valid and in pursuance of the provisions given in the Rules and Regulations. The emphasis of the Labour Court was on the manner of engagement of the workman which emphasis is totally misconceived, the Labour Court was only enjoined by the Reference to look into the manner of termination and whether it was illegal and in violation of U.P. Industrial Disputes Act, 1947.

26. Therefore, the Award dated 24.8.2006 becomes vitiated and liable to be set aside.

27. The termination order dated 1.12.1997 also cannot be upheld as it is in violation of Section 6(N) of the Act. In so far as the relief claimed by the workman is concerned, the relief of reinstatement and regularisation cannot be granted as a matter of course.

28. The Supreme Court in Assistant Engineer, Rajasthan Development Corporation & another Vs. Gitam Singh 2013 (5) SCC 136 has reviewed earlier judgments on the issue of relief of reinstatement and regularisation in case retrenchment is found to have been vitiated on violation of Section 6(N) of the Act.

29. After referring to RBI Vs. S. Mani 2005 (5) SCC 100, it observed that the Supreme Court in earlier judgments although had directed reinstatement even if the workmen were daily wagers, no proposition of law was laid down in such judgments. No principle having universal application for grant of relief by the Tribunals had also been settled. It observed that grant of relief must depend on the facts situation obtaining in a particular case. "The Industrial Adjudicator cannot be held to be bound to grant some relief only because it will be lawful to do so".

30. The Supreme Court has referred to later judgments on the issue including Uttaranchal Forest Development Corporation Vs. M.C. Joshi 2007 (9) SCC 353 which related to the U.P. Act. The Labour Court had directed the reinstatement of the workman with 50% back wages from the date the industrial dispute was raised. Setting aside the order of reinstatement and back wages, the Supreme Court had awarded compensation of a sum of Rs. 75,000/- in favour of workman keeping in view the nature and period of service rendered by the workman and the fact that the industrial dispute was raised after six years.

31. It has been observed by the Supreme Court in several judgments that the Tribunals are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment, viz whether the appointment had been made in accordance with statutory Rules so far as a public sector undertaking is concerned, etc. should be taken into consideration. The Court has distinguished between a daily wager who does not hold a post and a permanent employee.

32. It has been observed that where the length of the engagement as daily wager has not been long, the Award of reinstatement should not follow and compensation should be directed to be paid.

33. Looking to the facts of the petitioner's engagement for a period of more than two years on a project and also to the fact which has not been denied by the Mandi Parishad that similarly situated workmen and even juniors were continued to be engaged in other projects after completion of the project in which they were initially engaged, this Court directs payment of compensation of Rs. 2,00,000/- to the petitioner along with retrenchment compensation and also one month's pay in lieu of notice. All such payments shall be made by the opposite party nos. 3 & 4 within a period of three months from the date a certified copy of this order is produced before the Authority concerned.

34. The Award dated 24.8.2006 having been set aside by this Court, the writ petition stands partly allowed.

Order Date :- 25.4.2019

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