State Of U.P.Through Ececutive ... vs The Presiding Officer Labour ...
2019 Latest Caselaw 5417 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 
Court No. - 18
 
Case :- WRIT - C No. - 28477 of 2001
 
Petitioner :- State Of U.P. Through Executive Engg. I.C.Division-3
 
Respondent :- The Presiding Officer Labour Court And Another
 
Counsel for Petitioner :- S.C.
 
Counsel for Respondent :- C.S.C.,S.N.Dubey
 

 
Hon'ble J.J. Munir,J.

1. This writ petition has been filed by the State of U.P. through the Executive Engineer, Irrigation Construction Division-III, Jhansi challenging an award of the Labour Court-IV, U.P., Gorakhpur dated 22.03.2001, passed in Adjudication Case No. 77 of 2000, directing respondent no. 2, Har Govind, a contract labourer with the petitioner-Employer to be reinstated in service with continuity in service but without back wages. The aforesaid award dated 22.03.2001 is hereinafter referred to as the ''impugned award'; the petitioner is hereinafter referred to as the ''Employer' and respondent no. 2, Har Govind S/o Parasu Ram, is hereinafter referred to as the ''Workman'.

2. Heard Sri S.P. Singh, learned Standing Counsel appearing on behalf of the Employer and Sri S.N. Dubey, learned counsel appearing for the workman.

3. A counter affidavit on behalf of the workman dated 04.11.2001 has been filed, to which the employer-State have filed a rejoinder affidavit on 16.04.2002. This petition was admitted to hearing on 03.08.2001 and pleadings have been exchanged, with all parties represented. The case was heard in a single hearing on 03.04.2019 and judgment was reserved.

4. The workman as would appear from facts was retained as a casual hand on contract basis, initially vide order no. 509 dated 29.03.1982, with effect from 01.04.1982 for a period of three months. He was again engaged from 21.05.1982 to 30.06.1982. He was further engaged for a period of three months, till his services were dispensed with on 05.10.1982. At this stage, the workman raised an industrial dispute that was referred by G.O. dated 01.11.2000 for adjudication to the Labour Court in the following terms:

"Whether dispensation of services of Hargovind S/o Parsu Ram Jha Pad Patraul with effect from 05.10.1982 is illegal and improper? If Yes, to what relief the concerned workman is entitled and from what date and in what terms?"

5. The submission of learned counsel for the employer is that the Labour Court found for a fact that the workman has not completed 240 days continuous service in one year, and, therefore, even if the dispensation of his services be regarded as retrenchment, the workman is not entitled to protection of Section 6-N of the U.P. Industrial Disputes Act (for short ''the Act'). It is submitted that for this reason the workman is not entitled to reinstatement that has been erroneously awarded by the Labour Court. It is, in addition, submitted that the dispute was raised after a lapse of seven years and during this period of time, the entire administrative employment set up of the petitioner's establishment have undergone a change. The workman was engaged as a Seenchpal, which is a post that during all this period of time, has been transferred to the Panchayatraj Department. Thus, the post on which the workman was engaged and worked is no longer a post available in the Irrigation Department. It is also urged that the Irrigation Department are not an industry, and, therefore, no industrial dispute could have been raised. It is in the last submitted that the Labour Court has gone wrong fundamentally because the workman was appointed/engaged for a fixed term-a short period of time that was auto-terminus. It is urged that, therefore, the petitioner's case that juniorS to him have been employed or retained in service after him, in violation of Section 6-Q of the Act, is completely misplaced. There could be no junior to a workman who is appointed for a fixed term. He does not hold any recorded seniority as Sri S.P. Singh, learned Standing Counsel would put it. It is submitted by him that this aspect has been completely ignored by the Labour Court while holding the workman's disengagement from service to be in breach of Section 6-Q read with Section 2 (s) of the Act.

6. On the other hand, Sri S.N. Dubey, learned counsel appearing for the workman has strongly supported the impugned award, and, submitted that disengagement of the workman has been rightly held by the Labour Court to be retrenchment within the meaning of Section 2(s) of the Act. He also submits that since the juniors to the workman have been engaged after the workman's services were dispensed with, without the workman being given any opportunity in the prescribed manner to take up employment, before fresh hands were engaged, there is a clear violation of Section 6-Q of the Act. He submits that that in the event, opportunity had been given to the workman to offer himself for re-employment before engaging fresh hands, the workman would have taken it. He submits that the conduct of the employer clearly constitutes unfair labour practice, inasmuch as the employer have indulged in the practice of hiring workmen and throwing them out after some time, to be replaced by fresh hands despite the fact that the work available with them is of a permanent nature. He submits that the impugned award passed by the Labour Court is legally sound and substantially just, which does not call for any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution.

7. The issue whether the workman's disengagement means termination from service is best answered by a reference to the definition of word 'retrenchment' occurring in Section 2 (s) of the Act. It reads as under:

2(s) 'Retrenchment' means the termination by the employer of the service of a workman or any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-

(i) voluntary retirement of the workmen; or

(ii) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf;

8. Clearly, the services of the workman have not been terminated in consequence of any disciplinary action or by way of voluntary retirement or retirement on reaching the age of superannuation in terms of a contract carrying such stipulations. The definition of the word retrenchment under the Act is residual and exclusive; whatever has not been expressly excluded from the definition of retrenchment, would constitute retrenchment in whichever way the termination of services of a workman is brought about. There are some judicially acknowledged exceptions, as the one in case of closure of an establishment, but that certainly is not the case here. The exception carved out in case of closure is to be found in Hariprasad Shivshankar Shukla and another vs. A.D. Divelkar and others1 followed in H.P. Minerals & Industrial and others.2

9. It is, thus, evident that dispensation of services of the workman by whatever name called by the employer, would constitute retrenchment within the meaning of the Act as rightly held by the Tribunal. It is true that the workman has not worked for 240 days continuously in a year, and therefore, would not be entitled to the protection of Section 6-N of the Act. The Labour Court has not opined that the workman's retrenchment is one made in breach of Section 6-N of the Act. Rather, that proposition has been negatived expressly, as the impugned award would show.

10. What the Labour Court has found on the basis of evidence is that post dispensation of services of the workman, other persons juniors to the workman have been engaged by the employer, with their names that have figured in evidence as M/s Hari Charan, Ram Kripal, Ram Sewak Ram and some others, without serving a notice upon the workman in the manner prescribed or otherwise giving him an opportunity to offer himself for re-employment, which entitles him to reinstatement in service. This Court may note that the cause of action in case of a right based upon Section 6-Q is not against retrenchment per se, unlike Section 6-N of the Act. It is a dormant right which inheres in every retrenched workman that springs back to life, as soon as a workman junior to him, or a fresh hand is engaged by the employer, without first giving such retrenched workman an opportunity to offer himself for re-employment. In this context, a decision of this Court in District Cooperative Bank Ltd vs. Badri Ram and others3 may be referred to where S.N. Srivastava, J. in paragraph nos. 7, 8 and 9 of the report has held thus:

7. The workman has a statutory right of re-appointment. As in the present case, employer proposes, to take retrenched employee in employment. The opposite party who was a retrenched employee is entitled to get preference over other junior persons. This statutory right vests in the favour of the opposite party.

8. Now taking into consideration Section 2A as well as Section 6Q of the U. P. Industrial Disputes Act, it is clear that any dispute or difference between workman and his employer connected with or arising out of such retrenchment shall be deemed to be an industrial dispute. I refer two words from Section 2A of U. P. Industrial Disputes Act (where employer-retrenches) any dispute or difference between that workman and his employer "connected with" or "arising, out" - of such retrenchment shall be deemed to be an industrial dispute.

9. Admittedly, the right to get re-appointment flows from the retrenchment and, therefore, the re-appointment is connected with or arises out of retrenchment. From the close scrutiny of Section 2A read with Section 6Q of the U. P. Industrial Disputes Act, the only conclusion which could be arrived at is that the dispute of re-appointment which is connected with or arising out of retrenchment is the industrial dispute raised by individual.

11. The contention of Sri S.P. Singh, learned Standing Counsel appearing for the employer that there can be no concept of seniority in case of a workman engaged for a fixed period of time, in the opinion of this Court completely out of place in the context of the Act; in fact, it is completely misplaced in the context of the Labour Law. This is so, as a workman is no less a workman merely because he is engaged for a short period of time. Workmen may be engaged on various terms of employment, described through novel expressions to annihilate their rights under the Act, but the definition of a workman under Section 2(z) of the Act, takes care of all that which reads thus:

2(z) 'workman' means any person(including apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to any Army Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a maagerial nature.

12. A reading of the said definition does not spare any manner of doubt that to qualify for a workman under the Act, no determinate number of years of service or a particular number of days of engagement must be proved as one of the pre-conditions. The requirement of completing 240 days of continuous service in a year is extended to a workman the protective umbrella of Section 6-N of the Act. The non-fulfillment of this requirement does not deprive a workman of other rights, that may be traceable to other statutory provisions of the said Act. This is precisely the case here, where the workman's rights are claimed not against illegal retrenchment but for the enforcement of his right to re-employment in the contingency of re-employment of other men, junior to him. To answer, Sri S.P. Singh's submission regarding the issue of seniority being irrelevant to a workman's right appointed for a fixed term, it may be pointed out that seniority in the context of a workman is to be understood under the scheme of the Act, and not in the sense, it is understood in service law, where appointment against a post and lien on it, appear to be the pre-requisites of claiming seniority. Here, seniority would mean an earlier engagement in the concerned establishment of one workman vis-a-vis the other, and may be the total number of working days put in.

13. It is in the context of all this, that the Labour Court has found the workman entitled to be reinstated by virtue of his rights flowing from Section 6-Q of Act, once juniors to him have been re-engaged as per particulars mentioned in the impugned award; it is not a case where his retrenchment per se has been declared to be illegal.

14. Before parting with the matter, there is a very important aspect relating to the equities arising in this case. This petition was admitted to hearing on 03.08.2001, when the following order was made:

Admit.

Sri S.N. Dubey, learned counsel has appeared and accepted notice on behalf of respondent no. 2. He prays for and is allowed four weeks time to file counter. Rejoinder-affidavit, if any may be filed within a week thereafter. List after the expiry of the aforesaid period.

In the meanwhile, the operation of the impugned award shall remain stayed proved the petitioner reinstates the workman as daily wager and pays current wages.

15. By the aforesaid order, the workman was granted reinstatement as a daily wager on payment of current wages as a condition precedent to the employer enjoying the stay order. It is admitted to the employer in his rejoinder affidavit vide paragraph no. 4 that in compliance with the interim order dated 03.08.2001, the workman has joined his duties on 16.03.2002 and there is no dispute between the parties that ever since he is working with the employer. The workman was about 42 years old way back in the year 2001. He would thus now be on the verge of superannuation or would have already superannuated.

16. Considering the aforesaid facts apart from the legal position detailed above, this Court finds that in equity too, this Court ought not to interfere with the impugned award at this distance of time in the exercise of its jurisdiction under Article 226 of the Constitution.

17. In the result, this petition fails and is dismissed. Costs easy.

Order Date :- 01.07.2019

Deepak