U.P. Rajya Krishi Utpadan Mandi ... vs Manoj Shanker And Another
2022 Latest Caselaw 9898 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 38
 
Case :- WRIT - C No. - 66914 of 2015
 
Petitioner :- U.P. Rajya Krishi Utpadan Mandi Parishad
 
Respondent :- Manoj Shanker And Another
 
Counsel for Petitioner :- Satish Mandhyan,Archit Mandhyan
 
Counsel for Respondent :- Rajesh Kumar Yadav,Ashish Nigam,S.C.,Shashi Prakash Rai
 

 
Hon'ble Saumitra Dayal Singh,J.

1. Heard Sri Archit Mandhyan, learned counsel for the petitioner and Sri Sandeep Agarwal, learned counsel for the respondent-workman.

2. Present petition has been filed by the employer against the award of the Labour Court, Bareilly dated 20.03.2015 in Adjudication Case No. 13 of 1999. By that award, the Labour Court has granted relief of reinstatement with 50% back wages to the respondent-workman. Under interim order granted by this Court dated 14.12.2015, the respondent-workman was reinstated. He worked for 7 years till he attained the age of superannuation. However, the award of payment of back wages has remained stayed. Upon initial query made, it has been stated at the Bar, the respondent-workman was never regularized upon his reinstatement pursuant to interim order granted by this Court.

3. Undisputedly, the above award reference are quoted below :

"Kya Sewayojakon dwara apne shramik Shri Manoj Shankar putra Swargiya Mathura Prasad ki sewaein dinank 9.11.1993 se samapt kiya jana uchit tatha/athva vaidhanik hai ? yadi nahin, to sambandhit shramik kya hitlabh wa anutosh pane ki adhikari hai env anya kis vivran sahit ?

4. Undisputedly, before the Labour Court, in his written statement, the respondent-workman admitted to grant of engagement as muster roll employee on 9.10.1989. He further claimed, against the application made in August 1991, he was appointed as a work charge employee on 10.08.1991. In that status, if any, he was posted at Mechanical Handling Unit at Budaun under order dated 16.07.1993. On 14.10.1993, an explanation was called from him alleging his unauthorized absence from work. Thereafter, on 7.11.1993, a memo was issued to him requiring him to furnish his explanation within three days. While the respondent-workman claims to have furnished his reply on 10.11.1993, his services were dispensed with effect from 9.11.1993. During his evidence, the respondent-workman admitted to engagement on muster roll and not against any vacancy. He remained ambivalent as to his status. At the same time, it was specifically admitted by him that no appointment letter came to be issued to him, at any point.

5. On its part, the petitioner claimed that the respondent-workman had performed worked on work exigency basis only. It also sought to support the allegation of unauthorized leave taken by the respondent-workman. Lastly, it was contended that the work at the Mechanical Handling Unit came to an end. It led to the disengagement of the respondent-workman. These facts were sought to be proven through oral evidence led by the petitioner.

6. In such circumstances, the Labour Court has reasoned that the respondent-workman was engaged as a muster roll employee and later as a work charge employee. He worked at the petitioner's establishment from 9.10.1989 to 7.11.1993 i.e. for a period little over four years. As to the disengagement, the Labour Court found that the rules of natural justice had been violated. No domestic enquiry was conducted. The disengagement was stigmatic. It could not have been made except upon a proper domestic enquiry. In such facts, the Labour Court found that the respondent-workman was a workman as defined under the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the "Act"). Since the petitioner had chosen to disengage the respondent-workman before expiry of time to submit reply to the show cause notice issued to him dated 7.11.1993 and since that proceeding was concluded without observing rules of natural justice and without confronting the respondent-workman with the charge levelled against him, in a fair and proper domestic enquiry proceedings, his disengagement was found to be unfair and illegal. The plea set up by the petitioner of lack of work was also disbelieved. Thus, according to the Labour Court, the disengagement was made by way of punishment awarded which was contrary to law. Accordingly, the Labour Court granted relief of reinstatement with 50% back wages.

7. In face of the undisputed fact that the respondent-workman had been engaged in October, 1989 and he remained engaged till November 1993 first in his capacity as a muster roll employee and then as a work charge employee, it does merit consideration whether his services had been dispensed with occasioned by lack of work or other circumstance. Here the conduct of the petitioner itself is telling. At the initial stage culminating in the memo dated 7.11.1993 and at the subsequent stage by filing written statement, the petitioner clearly indicated that it had dismissed the respondent from service occasioned by his availing unauthorized leave. It is only later that plea was set up of lack of work. That appears to be an afterthought. At the relevant time, the petitioner appeared to have proceeded against the respondent occasioned by allegation of unauthorized leave. That allegation was levelled by means of communication dated 7.11.1993 whereby an explanation was called from the respondent. Having granted three days' time to submit that reply, it never became open to the petitioner to discharge the workman before expiry of that time period. To that extent, the findings recorded by the Labour Court may not warrant any interference. Irrespective of the status of the respondent-workman, the rule of fairness once adopted must reach their logical end. The petitioner having issued the notice on 7.11.1993 and having granted three days' time to the respondent-workman, it ought to have waited for the reply and thereafter passed the order or instituted proper enquiry. Having adopted that course, it was not open to the petitioner to reach ex parte conclusion dehors the disciplinary enquiry proceedings on the pretext that the respondent was a muster roll or a work charge employee.

8. It would have been another thing if the services of the respondent had been dispensed with occasioned by lack of work availability. In that case, the discharge from engagement would not have been preceded by the memo dated 7.11.1993. In absence of that case existing, the finding of the Labour Court of unfair treatment meted out to the respondent is just and proper.

9. Having recorded that finding, it may not have permitted the Labour Court to grant relief of reinstatement with 50% back wages. The finding that was recorded by the Labour Court was as to the procedural irregularity committed by the petitioner in discharging the respondent from service. However, that had no impact on the status of the respondent-workman. For relief of reinstatement to be granted, there must pre exist status of permanent or regular employee. The relationship of master and servant must be seen firmly established.

10. Here, the own case of the respondent has, from the beginning, been of engagement as a muster roll employee and later on work charge basis. During cross-examination, the respondent clearly admitted, there was no vacancy advertised and there was no appointment letter issued to him at any point in time. That admission is conclusive of the lack of status of permanent employee enjoyed by the respondent prior to his disengagement made on 9.11.1993.

11. Once that status was lacking, the only course that may have remained open to the respondent may have been to establish work done for more than 240 days in one calendar year preceding his disengagement. Besides making his self serving statement of having worked for more than 240 days, the respondent did not lead any evidence and did not bring on record any material as may have inspired confidence with the Labour Court of having worked for any number of days in any particular month or period as may have allowed the Labour Court to reach a finding of work done for more than 240 day. No documentary or oral evidence was led to either establish number of days worked in any month or of payment received etc. The finding recorded by the Labour Court, is equally bald.

12. Merely because the respondent-workman pleaded to have worked for the period during October, 1989 to November, 1993, it did not lead to automatic conclusion of work done for 240 days. It would be over simplistic to adopt that approach especially in the context of employment granted by local bodies such as the present petitioner.

13. It is not in dispute that the petitioner could have granted employment generally and also to the particular petitioner only against the rules governing such recruitment/engagement. Therefore, even if it were to be found that the respondent-workman had worked for 240 days, it would not lead to reinstatement dehors the recruitment rules and policies that governed grant of permanent employment by the petitioner. Thus a similar situation had arisen in the case of the present petitioner in Writ-C No. 9346 of 2004 (Krishi Utpadan Mandi Samiti and another Vs. Presiding Officer, Labour Court (I), U.P., Kanpur and another) decided on 2.7.2009. Taking note and considering an earlier decision of the learned Single Judge in Secretary, Krishi Mandi Utapadan Samity Vs. Presiding Officer, Labour Court, Agra & others, 2008 (116) FLR 852, the learned Single Judge distinguished the same by applying the consisting ratio of the decision of the Supreme Court in Haryana SEDC Vs. Mamni, AIR 2006 SC 2427 and Haryana Urban Development Authority v. Om Pal reported in AIR 2008 SC 475 and Sita Ram v. Moti Lal Nehru Farmers Training Institute reported in AIR 2008 SC 1955.

14. Upon considering the law laid down in the various decisions, the learned Single Judge observed as under :

"19. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefor, were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job etc. should weigh with the court for determination of such an issue.

The Court enquired from the learned counsel for the respondent as to whether any procedure was followed before appointing him or not. The categorical reply of learned counsel for the respondent workman was that absolutely no procedure was followed. The main ground taken by learned counsel for respondent workman is that Section 2 (oo)(bb) of Industrial Disputes Act, 1947 does not apply in U.P. and that in case retrenchment compensation is not paid as required by Section 6-N of U.P.I.D. Act equivalent to Section 25-F of I.D. Act, then the only relief, which shall be granted is that of reinstatement. It is correct that Section 2(oo)(bb) of Industrial Disputes Act does not apply in U.P.

In view of the above quoted portions of the three authorities of the Supreme Court, I am unable to agree with the view of the Hon'ble Single Judge taken in Secretary, K.U.M. Samiti Vs. P.O. Labour Court, Agra to the effect that reinstatement shall invariably be ordered in case retrenchment compensation is not paid, even if the appointment is against the relevant Rules.

In my opinion, even the Supreme Court authority of Nagarmahapalika (supra) has wrongly been distinguished in the said authority.

Learned counsel for the workman respondent in the end argued that if I do not agree with the aforesaid authority of the Secretary, K.U.M. Samiti, then I shall refer the same to a larger Bench. However, as my judgment is based on four Supreme Court authorities, three of which have not been discussed in the said authority, hence I do not consider it appropriate or necessary to make reference to the larger Bench.

Learned counsel for the workman respondent states that the amount of Rs.50,000/- directed to be paid as compensation through order dated 21.04.2009 has not yet been paid. However, learned counsel for Mandi Samiti states that the amount has been paid through cheque. Photo copy of the cheque has been placed on record.

Accordingly, writ petition is allowed and impugned award is set aside. In case the amount of Rs.50,000/- as directed by judgment and order dated 21.04.2009 has already been paid to the workman, then that shall be treated to be the consolidated damages/ compensation in lieu of reinstatement. However, if the said amount has not yet been paid, then the Mandi Samiti shall be liable to pay Rs.60,000/- to the workman respondent No.2. This amount shall be paid through draft drawn in favour of workman respondent payable at Kanpur and the draft shall be handed over to Sri A.K. Gupta, learned counsel for the workman respondent in this writ petition within one month failing which 2% per month interest shall be payable thereupon since after one month till actual payment."

15. A similar position existed in the case of State of U.P. and another Vs. Presiding Officer and others passed in Writ-C No. 5476 of 2013. Thus, I had the occasion to deal with a similar issue in the context of irregular engagement granted by Kanpur Medical College. It was observed :

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

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

In Jagbir Singh v. Haryana State Agriculture Marketing Board , 2009 (15) SCC 327, in a case where the workman had worked from 01.09.1995 to 18.07.1996 as a daily wager, the Supreme Court granted compensation of Rs.50,000/- to the workman in lieu of reinstatement with back wages.

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

Recently, the Supreme Court in the case of The General Secretary, Coal Washeries Workers Union Dhanbad Vs. Employers in relation to the Management of Dugda Washery of M/s BCCL, 2016 SCC Online SC 987 stated:-

"5. Considering the arguments of both sides, in our opinion, the Division Bench was right in observing that, in the facts of the present case, an order of reinstatement must be eschewed, being inequitable. The workmen, however, must be compensated in lieu of reinstatement. Applying the principle underlying the decisions of this Court in Ruby General Insurance Co. Ltd. V. P.P. Chopra and the recent case of Delhi International Airport (P) Ltd. v. Union of India, in our considered opinion, interest of justice would be met by enhancing the amount of compensation in lieu of reinstatement/absorption and regularisation quantified at Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) to each workman. For, the workmen have already received wages from October 2004 to January 2012 in terms of the order under Section 17(B) of the Industrial Disputes Act, 1947 without any work assigned to them. The respondent paid minimum wages to the concerned workmen during the relevant period as the workmen were not able to produce any document in support of their last drawn wages.

6. This lump sum compensation amount of Rs. 1,50,000/- to each workmen would be in full and final settlement of all the claims of the concerned workmen and substitute the order passed by the Tribunal to that extent, without any further enquiry as to whether the concerned workmen was gainfully employed during the relevant period or not.

16. Thus, the relief of reinstatement of 50% back wages granted by the petitioner to the respondent-workman was not founded on any good principle. Accordingly, it may not be sustained.

17. Accordingly, the writ petition is partly allowed.

18. In view of the re-engagement granted to the respondent-workman under an interim order of this Court and since he worked up to attaining the age of superannuation, no further observation is required to be made with respect to the same. As to the back wages, it is seen that prior to his disengagement, the respondent-workman had worked for four years. Further, he worked for about 7 years upon the present petition being filed. He has superannuated.

19. Accordingly, keeping in mind the fact that the respondent always worked for the petitioner, let lump sum compensation of Rs. 2,00,000/- be paid out to the respondent-workman within a period of one month from today. Such amount may be deposited with the Labour Court to be disbursed to the respondent-workman. In the event of the failure of making that deposit, same shall attract interest at the rate of 8% from today till the date of payment.

Order Date :- 11.8.2022/SA