Allahabad High Court
Nagar Nigam Ghaziabad vs Presiding Officer Labour Court Ii ... on 1 March, 2019
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved/AFR
Case :- WRIT - C No. - 13627 of 2012
Petitioner :- Nagar Nigam Ghaziabad
Respondent :- Presiding Officer Labour Court Ii And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C.S.C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 13381 of 2012
Petitioner :- Nagar Nigam Ghaziabad
Respondent :- Presiding Officer Labour Court Ii And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C.S.C.,Akshat Sinha,Y.K. Sinha
With
Case :- WRIT - C No. - 14491 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Anr
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Y.K. Sinha
With
Case :- WRIT - C No. - 14495 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14490 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Anr
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Y.K. Sinha
With
Case :- WRIT - C No. - 14492 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 13384 of 2012
Petitioner :- Nagar Nigam Ghaziabad
Respondent :- Presiding Officer Labour Court Ii And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C.S.C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14467 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14469 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Anr
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Y.K. Sinha
With
Case :- WRIT - C No. - 14471 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Anr
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14476 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14478 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14480 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Y.K. Sinha
With
Case :- WRIT - C No. - 14482 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Y.K. Sinha
With
Case :- WRIT - C No. - 14483 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14485 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14486 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Anr
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14487 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Anr
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Y.K. Sinha
With
Case :- WRIT - C No. - 14488 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Others
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
With
Case :- WRIT - C No. - 14474 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Anr
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Y.K. Sinha
With
Case :- WRIT - C No. - 14473 of 2012
Petitioner :- Nagar Nigam Ghaziabad Thru Its Municipal Commissioner
Respondent :- Presiding Officer Labour Courtii U.P. Ghaziabad And Anr
Counsel for Petitioner :- S.M. Shukla
Counsel for Respondent :- C. S. C.,Devendra Kumar Mishra,Pratik J. Nagar,Y.K. Sinha
And
Case :- WRIT - C No. - 12631 of 2012
Petitioner :- Bhule Ram And Others
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Y.K. Sinha
Counsel for Respondent :- C.S.C.,S.M. Shukla
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri S.M. Shukla, learned counsel for the petitioners and Shri Prateek J. Nagar, learned counsel appearing for the respondent-workmen in all the aforesaid writ petitions, except Writ-C No. 12631 of 2012 (Bhule Ram & Ors. Vs. State of U.P. & Ors.), which was filed through learned counsel Shri Akshat Sinha. Shri Sinha has appeared and made a statement, he does not have instructions in the matter. No other counsel has appeared to press that writ petition.
2. The petitioner in all these writ petitions (except Writ-C No. 12631 of 2012), is the Nagar Nigam, Ghaziabad while the private respondents are the workmen who claim to have been employed by the petitioner-management on the post of Gardener. In Writ-C No. 12631 of 2012 (Bhule Ram & Ors. Vs. State of U.P. & Ors.), the workmen are petitioners while the Nagar Nigam, Ghaziabad is the respondent. For convenience, the Nagar Nigam, Ghaziabad is hereinafter referred to as the 'petitioner-management' while the workmen are hereinafter referred to as the 'respondent-workmen'.
3. The reference made in each of the aforesaid cases was similar, being whether the services of the respondent-workmen as Gardener had been validly terminated by the petitioner-management. These references were made under the provision of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'), to the Labour Court, Ghaziabad. Individual awards made in each adjudication case have been challenged in the aforesaid writ petitions. The Labour Court has made all but one award in favour of the respondent-workmen and granted them relief of reinstatement with 30% back wages. At the same time Adjudication Case Nos. 269, 270, 272, 273, 274, 276, 277, 278, 279, 280, 281, 282, 283, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 299, 300, 302, 304, 305, 306, 307, 309, 310, 312, 317 of 2006; 47 of 2007; 49, 50 of 2008; 28 and 29 of 2009 pertaining to 41 workmen were decided against those workmen. It has given rise to Writ-C No. 12631 of 2012 (Bhule Ram & Ors. Vs. State of U.P. & Ors.).
4. Since the facts involved in each of the aforesaid writ petitions are similar and also the issues dealt with by the Labour Court, giving rise to the present writ petitions are also identical, all the writ petitions are being decided by this common order. However, for the sake of convenience, the facts of Writ-C No. 13627 of 2012, Nagar Nigam, Ghaziabad Vs. Presiding Officer, Labour Court (II) & Ors., are being noted here, treating that petition to be the lead case.
5. Three respondent-workmen Gautam Singh, Yatendra and Mool Chand claim, they had been engaged as Gardeners by the petitioner-management on 01.12.1998 and that they worked on that post continuously till their alleged oral termination on 15.07.2005.
6. An earlier reference was made at the instance of the respondent-workmen (including the above named three workmen), arising from C.B. Case No. 6 of 2004 claiming the relief of regularization. While that reference was pending, the respondent-workmen further alleged, they were terminated from service. This gave rise to the second set of reference from which the present writ petition has arisen.
7. Before the Labour Court, the respondent-workmen filed their written statement, categorically stating - at the time of their engagement, they had not been given any appointment letter despite demand made for the same. They further alleged (i) non-payment of minimum wages and (ii) denial of weekly off days and other holidays, leading to the earlier conciliation proceedings.
8. As to the present reference, they further stated, their termination was in violation of Section 6-E of the Act, since their services had been terminated during pendency of the earlier proceedings. With respect to claim of continuous service, for the purpose of Section 2(g) of the Act, only this much was pleaded, the respondent-workmen had been working continuously for seven years, till their termination on 16.07.2005.
9. The petitioner-management filed its written statement, wherein, at the outset, it was claimed that the petitioner-management was Nagar Nigam, Ghaziabad, established and governed under the Uttar Pradesh Municipal Corporations Act, 1959 having its own service rules and that it was bound by the directions issued by the State Government from time to time. On the strength of such pleadings, a preliminary objection was raised as to competence of the reference made to the Labour Court. According to the petitioner-management, the dispute, if any, had to be raised before the Uttar Pradesh Public Services Tribunal.
10. On merits, it was stated, the respondent-workmen were temporary employees who had never been regularized in service. It was further denied that the respondent-workmen ever worked for more than 240 days in one calender year. Therefore, they had not rendered continuous service as may entitle them to any relief. It was also specifically pleaded in para 9 of the written statement that in view of the legal bar created by the State Government against fresh recruitment/appointment by the petitioner-management, it could not have appointed the respondent-workmen on any post. As to their status and work done, a further case was set up that the respondent-workmen had been engaged on contract basis only, from time to time.
11. On such pleadings, evidence was led by the parties. While the respondent-workmen led documentary evidence in the shape of List 9B(2) containing 12 documents, the petitioner-management submitted two lists, being Paper No. 13B(1) and 12B(1) containing one document each. Also, some oral evidence was led by both sides. While the workmen was examined as DW-1, one Jogendra Singh was examined on behalf of the petitioner-management.
12. Upon such pleadings and evidence, the matter was heard by the Labour Court. It resulted in various identical awards giving rise to the present writ petition. The Labour Court negatived the preliminary objection raised by the petitioner-management as to the non-maintainability of the reference proceedings and held, it was an 'industry', as defined. Accordingly, the reference was found to be maintainable as the work description and status of the respondent-workmen was clearly that of a workman for the purpose of the Act.
13. As to the nature of engagement and status of the respondent-workmen, the Labour Court found, no letter of appointment had ever been issued to any of the respondent-workmen. However, upon consideration of the evidence led by the respondent-workmen in the shape of documentary evidence - regarding their engagement as also internal communications between the authorities/officers of the petitioner-management clearly specifying that the respondent-workmen had been engaged by the petitioner-management and since the latter failed to produce any documentary evidence of contractual engagement or muster roll and other details despite specific order passed by the Labour Court, an adverse inference was drawn and it was concluded, the respondent-workmen had worked under the petitioner-management and not under any contractor. On such reasoning, the Labour Court reached a conclusion of continuous service having been rendered by the respondent-workmen. After reaching such findings, the Labour Court concluded violation of Section 6N of the Act. Accordingly, it granted the relief of reinstatement with 30% back wages.
14. In Writ-C No. 12631 of 2012, the facts are identical to those noted above. However, the Labour Court reached a different conclusion in that case that the respondent-workmen had not been appointed on any post and that they had been working under a contractor. Therefore, according to the Labour Court, the fact that the respondent-workmen may have satisfied the test of continuous service, would make no difference. Accordingly, that reference had been decided against the respondent-workmen.
15. Learned counsel for the petitioner-management submits, in the first place, it is not an 'industry' under the Act. Then, in the facts found by the Labour Court, it could never be said that the respondent-workmen had been appointed on any substantive or permanent post. In any case, no appointment had been granted to them by the petitioner-management, at any point of time. In this regard, the respondent-workmen neither produced any documentary evidence to establish grant of appointment to them and no evidence was led to establish that fact.
16. Then, it is undisputed, the status of the petitioner-management is that of a municipal corporation under the Uttar Pradesh Municipal Corporations Act, 1959. Therefore, the petitioner-management was bound by the statutory provisions of the aforesaid Act. Referring to Section 107 and 111 of the aforesaid Act, it has been submitted, the posts of Gardener at the Nagar Nigam, Ghaziabad may be filled only in accordance with the provisions of that Act. No such procedure was ever adopted nor it was found by the Labour Court that such procedure was adopted to engage any of the respondent-workmen. Referring to Government Order No. 249/नौ-1-19-48 मिस/91 dated 06.12.1991, it has been asserted, the State Government had placed a complete ban on fresh recruitments on all municipal corporations in the State and had further provided, any appointment that may be made on daily wage or work charge basis, be provided for, from own source of the Municipal Corporation.
17. It has been then submitted, acting in compliance of the aforesaid Government Order, the Horticulture Department of the petitioner-management had, vide its Resolution No. 366 (10) dated 16.10.2000, resolved to engage 200 Gardeners, on contract basis. Copy of the Government Order dated 06.12.1991 and the resolution of the petitioner-management dated 16.10.2000 have also been annexed with the supplementary affidavit filed to the writ petition. In this regard, reference has also been made to the specific pleadings made to the written statement filed before the Labour Court. Thus, it has been submitted, it is clearly established that the respondent-workmen were not appointed on any substantive or permanent basis, by following any rule or method of recruitment and that they were engaged purely on daily wage basis.
18. It has been next submitted, there is no evidence of any of the respondent-workmen having worked for more than 240 days in any calendar year. Therefore, the finding of the Labour Court that they had rendered continuous service over a long period of time, is perverse. With respect to the documentary evidence led by respondent-workmen, it has been submitted, the same only establishes that they had been engaged from time to time, as and when the need arose.
Also, reliance has been placed on the following decisions:
(i) Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408.
(ii) Zila Panchayat Mathura and Anr. Vs. The Dy. Labour Commissioner, Agra and Ors., (2011) 9 ADJ 55.
(iii) Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Anr., (2009) 15 SCC 327.
(iv) Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and Ors., (2010) 6 SCC 773.
19. Responding to the above, Shri Prateek J. Nagar, learned counsel for the respondent-workmen, submitted, there is no substance in the preliminary objection raised by the petitioner-management, inasmuch as it is too late in the day to contest the status of the petitioner-management as that of an 'industry' under the Act. Relying on the decision of the Supreme Court in Parmanand Vs. Nagar Palika, Dehradun & Ors., (2003) 9 SCC 290, it was submitted, that question is no longer res integra.
20. On merits, it has been submitted, the respondent-workmen had been directly engaged by the petitioner-management. By way of unfair labour practice, the appointment letters were withheld by the petitioner-management. However, the documentary and oral evidence adduced by the respondent-workmen clearly established, they had rendered continuous service on the post of Gardener and that they were regular/permanent employees. He has also submitted, the petitioner-management has acted in a wholly unfair manner, inasmuch as the respondent-workmen had first deprived the latter of their legal entitlement of timely payment of minimum wages, weekly off days and leave. When they raised such issues which were pending before the Conciliation Board and later in a reference with respect to their claim for regularization in service, the petitioner-management orally terminated their services, in gross violation of Section 6E of the Act.
21. Then, it has been submitted, in any case, sufficient and direct evidence was led by the respondent-workmen of having rendered service over a long duration of time. The petitioner-management was rightly visited with an adverse inference drawn by the Labour Court in that regard, as the latter failed to adduce before the Labour Court evidence, either to establish the existence of contractual engagement or to deny the length of their service. Neither the contract as alleged nor the muster roll, attendance register etc. were produced by the petitioner-management. Those documents being in the possession of the petitioner-management, non-production of the same clearly justified the adverse inference drawn by the Labour Court. As to the relief of reinstatement granted by the Labour Court, it has been submitted, the Labour Court has not erred in granting that relief. Reliance has been placed on the decisions of the Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D Ed) and Ors., (2013) 10 SCC 324 and; Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), (2010) 3 SCC 637. Reliance has also been placed on the decisions of the learned Single Judges of this Court in Secretary, Krishi Utpadan Mandi Samiti Vs. Presiding Officer, Labour Court, [2008 (2) ADJ 256; General Manager, Chitrakoot Dham Mandal Jal Sansthan Vs. Presiding Officer, Labour Court (I), [2010 (1) ADJ 420 and; Nagar Nigam Firozabad Vs. Shri Shivkant Dubey & Anr., Writ-C No. 56005 of 2014, decided on 23.11.2016.
22. Having heard learned counsel for the parties and having perused the record, the reference made and the award that has arisen thereupon, do not suffer from any defect of jurisdiction. The petitioner-management being a municipal corporation is clearly an industry for the purpose of the Act. The Supreme Court in Parmanand Vs. Nagar Palika & Ors. (supra) has clearly held as below:
5. ...This aspect need not detain us long for the purpose for which municipality or its activities when brought within the purview of the Constitution was entirely different and such inclusion does not take it out of the definition of industry for the activities carried on by that institution is an industry. This Court held in Corpn. of the City of Nagpur v. Employees, AIR 1960 SC 675:(1960) 2 SCR 942 the activity of Municipal Corporation carried on in any of the departments except those dealing with assessment and levy of house tax, assessment and levy of octroi, removal of encroachment and removal and pulling down of dilapidated houses, prevention and control of food adulteration and maintenance of cattle pounds, to fall within the definition of "industry" as arising under the Industrial Disputes Act. This decision was reiterated in Bangalore Water Supply and Sewage Board v. A. Rajappa, (1978) 2 SCC 213:1978 SCC (L&S) 215. It is further explained by this Court in Samishta Dube v. City Board, Etawah, (1999) 3 SCC 14:1999 SCC (L&S) 592 with reference to municipalities in the State of U.P. In that view of the matter we do not think inclusion of the municipalities in the Constitution by itself would dilute the effect of the decisions referred to by us. Hence we do not think the High court is justified in holding that Nagar Palika is not an industry for the purpose of the Act."
23. Coming to the merits of the claim made by the respondent-workmen, it is seen, though similar references were made on behalf of numerous workmen on the same post of Gardener, not a single appointment letter was produced by any of the respondent-workmen. Then, it is also on record, in pursuance of the earlier dispute that is claimed to have arisen between the parties, a reference was made on 17.07.2006 to the effect whether 95 workmen (including some respondent-workmen) were entitled to be regularised in service, they being daily wage workers. While that reference was made on 17.07.2006 arising from C.B. No. 6 of 2004, before the Conciliation Board, the present impugned award has arisen from another reference order dated 17.07.2006.
24. In such admitted facts, it clearly appears to be a case of improvement made to the pleadings as the matter has progressed. In the counter affidavit filed by the respondent-workmen, it has been specifically admitted that the respondent-workmen namely, Gautam Singh, Yatendra and Mool Chand and other similarly situated (96 in all) had earlier raised the industrial dispute through C.B. No. 6 of 2004, that gave rise to the following reference order dated 17.07.2006 :
"औद्योगिक विवाद का विवरण
क्या सेवायोजकों द्वारा संलग्न परिशिष्ट में अंकित 95 श्रमिकों को उत्तर प्रदेश रेगुलराइजेशन ऑफ़ डेली वेजेस अपॉइंटमेंट्स ऑन ग्रुप डी पोस्ट्स रूल्स में दी गयी व्यवस्था के अनुसार नियमित न किया जाना उचित तथा / अथवा वैधानिक है ? यदि नहीं तो सम्बंधित श्रमिक क्या हितलाभ / उपशम पाने का अधिकारी है किस तिथि से व किन विवरणों?"
25. Admittedly, while the aforesaid conciliation proceedings were pending, the respondent-workmen had been terminated which resulted in the following reference being made, giving rise to the present petitions:
"क्या सेवायोजकों द्वारा अपने श्रमिक श्री गौतम सिंह पुत्र श्री राम सिंह पदनाम माली की सेवाएं दिनांक 16.07.2005 से समाप्त करना तथा / अथवा वैधानिक है ? यदि नहीं तो सम्बंधित श्रमिक किस हितलाभ / अनुतोष / क्षतिपूर्ति पाने का अधिकारी है तथा अन्य किस विवरण सहित"
26. Therefore, the claim made by the respondent-workmen that they had been appointed on substantive or permanent post as Gardeners by the petitioner-management, is wholly unbelievable. In fact, it clearly appears to be a false plea. Even the Labour Court does not appear to have believed the same.
27. As to the further claim set up by the respondent-workmen that they had rendered continuous service and fulfilled the test of Section 2(g) of the Act, it is seen, the respondent-workmen did not plead and they did not specify the period or the number of days for which they may have worked in any calendar year. The written statement filed by them before the Labour Court was silent as to that. No plea was set up in that written statement claiming continuous service in terms of Section 2(g) of the Act. The only claim raised was of illegal termination from service, in violation of Section 6E of the Act.
28. As to the evidence led, again no length of service rendered was ever specified, proven or established before the Labour Court, by any of the respondent-workmen. More crucially, the Labour Court has not rendered any finding on that issue by specification of the number of days and period constituting the continuous service rendered by any of the respondent-workmen. The Labour Court appears to have proceeded on a general assumption made in that regard. The approach of the Labour Court is therefore found to be lacking in view of the decision of the Supreme Court in Range Forest Officer Vs. S.T. Hadimani, (2002) 3 SCC 25, wherein it was held:
"3. ...In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today."
29. Examined from that perspective, the Labour Court has completely failed to record a clear-cut finding in that regard, though, at the same time, the conduct of the petitioner-management may not have been condoned.
30. Thus, in the entirety of the facts and circumstances of the case, though the respondent-workmen were unable to establish either any appointment made on a substantive/permanent basis by following any regular mode of recruitment, at the same time, the petitioner-management had not been successful in establishing, their engagement on contract basis. Also, apparently they had been working for a considerable time. Consequently, the status of the respondent-workmen remained that of a temporary employee engaged on a daily wage basis. However, the respondent-workmen did not plead and they did not establish and also the Labour Court did not accord any cogent reasoning or finding of length of continuous service rendered by the respondent-workmen, inasmuch as despite drawing adverse inference, it did not record any finding as to which of the respondent-workmen rendered service for more than 240 days in any calendar year and for what exact period.
31. In such state of the findings of fact, the relief granted by the Labour Court may now be tested. This Court in Writ - C No. - 6945 of 2015 (Ghanshyam Dubey Vs. Presiding Officer Labour Court & Anr.) decided today has had the occasion to consider a similar issue in the context of claim of reinstatement being made against a government department. It has been observed as under:
"12. The Supreme Court in Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. (supra) held that a term 'temporary employee' refers to a general category comprising several sub-categories of employees namely, casual employees, daily wage employees and ad-hoc employees, etc. Further, a daily wage or casual worker being a temporary employee had no right to any post or to be continued in service. Engagement of such an employee did not amount to appointment to a post in the real sense of the term. That was stated to be the distinction between the temporary employee and the permanent employee. Also, it was stated, while a permanent employee had a right to a post, a temporary employee had no such right. Also, it was noted, while a permanent employee would have a right to continue in service till attaining the age of superannuation (unless dismissed or removed in the meanwhile), a temporary employee did not have an age of superannuation as he did not have any right to a post at all. On such reasoning, it was concluded, no direction may be passed in the case of a temporary employee whereby he may claim continuance till attaining the age of superannuation.
13. Similar view was taken by the Supreme Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Anr. (supra) wherein amongst others, the Supreme Court considered the earlier decisions including Mahboob Deepak Vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575 wherein with respect to termination of service of employees, who had completed more than 240 days in one calendar year, it was held, the relief of reinstatement may not be granted without consideration of factors such as whether by making appointment, statutory rules, if any, had been complied; the period for which the workman may have worked; whether there existed any vacancy and; whether the workman had been gainfully employed since his termination. Having considered such law, the Supreme Court then held that the relief of reinstatement may not be proper to be granted in case of disengagement of a daily wage employee who may have worked for more than 240 days in one calendar year.
14. Similar view was then taken by the Supreme Court in other decisions including Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and Ors. (supra) and Assistant Engineer, Rajasthan Development Corporation and Anr. Vs. Gitam Singh, (2013) 5 SCC 136. Paragraph no. 22 of the said judgement reads as:
"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 the 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." (emphasis supplied)
15. Similar view has been taken by the writ court in Zila Panchayat Mathura and Anr. Vs. The Dy. Labour Commissioner, Agra and Ors. (supra).
16. As to the decision in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D Ed) and Ors. (supra), it is noted that the Supreme Court again did not lay down as a proposition of law that in case of disengagement of a daily wage employee, a relief of reinstatement must be granted. Various considerations as have been spelled out in that judgement itself are required to be taken note of before the relief of reinstatement and full back-wages may be granted. It was also found that no objection had been raised by the employer that the engagement of the workman was contrary to statutory rules, etc.
17. It may be noted that in neither of the aforesaid case, the employer was a department of the State Government. Though, in the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) (supra), the employer was the Haryana State Agricultural Marketing Board. However, on the face of it, the status of the employee/workman in that case was not that of a government employee. Also, the nature of the employer in that case was not that of a government department. Then, in Jagbir Singh Vs. Haryana State Agriculture Marketting Board and Anr. (supra), the matter pertained to the same employer namely Haryana State Agricultural Marketing Board. In that case, the Supreme Court categorically held that a daily wage employee may not be granted relief of reinstatement.
18. That apart, applying the principles laid down by the Supreme Court in Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. (supra), clearly a daily wage employee cannot claim entitlement to any post. His engagement begins and end with the day on which he is engaged. He has neither a lien nor a right to continue or be called for work on the next date. Consequently, he is also not entitled to any scale of pay, etc. His engagement also does not involve appointment to a post.
19. That being the essential principle, it further cannot be lost sight of that the respondent is a department of a Government of Uttar Pradesh which cannot make recruitment or appointments, except in accordance with the Rules that govern the same. Clearly, the petitioner failed to discharge the burden cast on him to establish that he had been appointed to any particular post, in accordance with law.
20. That apart, in view of the principle laid down in Assistant Engineer, Rajasthan Development Corporation and Anr. Vs. Gitam Singh (supra), as has been extracted above, it is seen that the petitioner had only been able to establish that he had worked as a daily wage employee for different periods of time. Thus, the petitioner had been successful to establish that he had worked for more than 240 days in one calender year in 1999, 2000 and 2003. The said finding of fact recorded by the Labour Court has not been assailed or shown to be perverse. Thus, the petitioner having been found to have worked for substantial period of time only during three years, with a gap of two years in between (2001 and 2002), the relief of reinstatement was rightly denied.
21. Also, in the case of Bharat Sanchar Nigam Limited Vs. Bhurumal, (2014) 7 SCC 177, the Supreme Court after considering the entire gamut of law on this aspect crystallized it's conclusions in the following words:
"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."
32. So far as the decision of the learned Single Judge in Secretary, Krishi Utpadan Mandi Samiti, Aligarh Vs. Presiding Officer, Labour Court (supra) and another learned Single Judge decision in General Manager, Chitrakoot Dham Mandal Jal Sansthan Vs. Presiding Officer, Labour Court (supra) are concerned, they may not be applicable in view of the facts noted above, especially the fact that the respondent-workmen did not establish and the Labour Court did not return any finding of their having worked for more than 240 days in one calendar year and of their having worked in such capacity for a long duration of time. A distinguishing feature also arises on account of the fact that the respondent-workmen, in the present case, had sought a parallel reference seeking relief of regularization. They could not then be granted the relief of reinstatement overlooking the fact that neither any reference was made alleging unfair labour practice by the petitioner-management, by completely overlooking the plea/defence set up by the petitioner-management on the basis of ban imposed by the State Government against the recruitment on permanent posts.
33. As for the decision of another learned Single Judge in Nagar Nigam, Firozabad Vs. Shri Shivkant Dube & Anr. (supra), wherein note has been taken by the learned Single Judge of the ban imposed by the State Government on making fresh recruitment. In the facts of the present case, where, at the instance of the respondent-workmen themselves, a reference regarding regularization was pending, in absence of any pleading or evidence being led by the respondent-workman to firmly establish continuous service within the meaning of Section 2(g) of the Act over a long period of time, it is difficult to apply the ratio of the aforesaid judgment to the facts of the present case.
34. Thus, in the first place, reinstatement was not an automatic or necessary consequence of the termination being found invalid. Specifically, with reference to daily wage employees such as the respondent-workmen, even if they are assumed to have been engaged for more than 240 days in one calendar year and the length of their engagement may also be long, yet, the Labour Court should have acted with circumspection and restraint in granting the relief of reinstatement. Then, as noted above, a daily wage employee, to begin with, does not have the status of a permanent employee. To grant the relief of reinstatement to him would end up in improving his status though he may not have been entitled to continuance of service, leave alone till his attaining the age of superannuation. However, he would, upon reinstatement, be granted that benefit, indirectly. Also, a logical consequence of such relief being granted would also be of entitlement to pay-scale and other benefits. Such a relief may not have been granted in absence of any reference as to unfair labour practice committed by the petitioner-management and in the face of an earlier reference seeking regularisation, being pending. Therefore, the Labour Court, which is a Court of referred jurisdiction, could have granted relief to a daily wage employee commensurate to his status (as a temporary employee).
35. Also, keeping in mind the peculiar facts of the present case where the Government Order had clearly restrained the petitioner-management from making any fresh appointments and in view of the statutory scheme of the Uttar Pradesh Municipal Corporations Act, 1959 being applicable to the petitioner-management, it was further improper to grant the relief of reinstatement with 30% back wages.
36. Whatever be the perceived illegality or unfair conduct of the petitioner-management, the Labour Court did not have plenary jurisdiction to set right every wrong alleged to have been committed by the petitioner-management. Being a Court of referred jurisdiction, it had to act within the boundaries of the reference made to it.
37. It has also come on record, pursuant to the aforesaid award and the interim order of this Court, the respondent-workmen have been re-engaged, though on daily wage basis only. Accordingly, the awards of the Labour Court are modified to the following extent:- in lieu of award of reinstatement with payment of part back wages, the petitioner-management shall call back on work the respondent-workmen as daily wage employees subject to work being available. They may be paid the wages equal to the minimum in the scale applicable to permanent Gardeners engaged by the petitioner-management. Also, each of the respondent-workmen would remain entitled to be considered for regularisation in service, if that relief becomes open at any point of time and the fact that they may have been disengaged during pendency of the reference may not stand in their way in considering such claim.
38. Insofar as Writ - C No. 12631 of 2012 (Bhule Ram & Ors. Vs. State of U.P. & Ors.) is concerned, in view of the discussions made above, the finding recorded by the Labour Court rejecting the reference at the instance of the respondent-workmen also cannot be accepted. In view of the discussions made above, all those petitioners in that writ petition would also be entitled to the same relief as has been provided to the respondent-workmen in the writ petitions filed by the petitioner-management. Thus, these persons would also be entitled to be re-engaged as Gardeners on daily wage basis on wages equal to the minimum in the scale applicable to permanent Gardeners engaged by the petitioner-management, from a date of their re-engagement.
39. In the above regard, the petitioner-management shall draw up a list of all respondent-workmen, i.e. both, workmen who are impleaded in the writ petitions filed by the petitioner-management or as petitioners in Writ-C No. 12631 of 2012, in order of their seniority, determined on the basis of the date of their first engagement made by the petitioner-management, as disclosed in the written statements filed by each of them in the adjudication proceedings giving rise to these writ petitions. Besides those who may be continuing to work under the awards made in their favour, others may be called for work, in order of their seniority position in such list.
40. The seniority may be determined with the person engaged earliest being placed first on that list and the person engaged last being placed lowest. In case of more than one person having been engaged on the same date, their inter-se seniority may be fixed by giving older in age, the higher position. No fresh person may be engaged till the entire list is exhausted. Such list may be drawn and filed before the Deputy Labour Commissioner, Ghaziabad (to whom an application under Section 6H(1) of the Act would otherwise lie if the impugned award were to be executed), within a period of three weeks from today, supported by an affidavit of competent authority of the petitioner-management.
41. If, however, any of the respondent-workman may not agree to work despite the decision in the present writ petitions, they shall be treated to have been disengaged accordingly and such respondent-workmen be paid Rs. 50,000/- by way of lump-sum compensation, in lieu of relief of revival of their engagement.
42. The writ petitions are accordingly partly allowed.
March 1, 2019
AHA/Abhilash/S Chaurasia
