The Joint Director Agriculture ... vs Sri Chhote Lal
2023 Latest Caselaw 11671 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 03.04.2023
 
Delivered on 19.04.2023
 

 

 
Court No. - 52
 

 
Case :- WRIT - C No. - 18666 of 2017
 

 
Petitioner :- The Joint Director Agriculture Extension And 2 Others
 
Respondent :- Sri Chhote Lal
 
Counsel for Petitioner :- Vivek Shandilya, C.S.C.
 
Counsel for Respondent :- Rudra Pratap Singh, Anil Kumar Yadav, Sudhanshu Narain
 

 
Hon'ble Kshitij Shailendra,J.

The Challenge

1. The Joint Director Agriculture (Extension), Gorakhpur Division, Gorakhpur, Project Officer (Agriculture) under the District Agriculture Officer, District Basti and the Block Development Officer, Farinda, District Maharajganj, as co-petitioners, have filed the present writ petition challenging the impugned award dated 30.11.2015, published on 28.03.2016, passed by the Presiding Officer, Labour Court, Gorakhpur in Adjudication Case No.75 of 1999.

Writ Petition

2. As per the pleadings contained in the writ petition, the respondent Chhote Lal (hereinafter referred to as the "workman") was temporarily engaged in the year 1986-87 under the Rice Scheme as an internal arrangement as Kamdar/Chowkidar and when the Rice Scheme was abolished, the continuity of 96 Kaamdars/Chowkidars was cancelled by the Government Order dated 17.10.1987 and, thereafter, the services of the workman were terminated after giving him a notice dated 01.08.1988. Thereafter, under the order dated 11.05.1999 passed by the Deputy Labour Commissioner, Gorakhpur, an industrial dispute was referred to the Labour Court, U.P., Gorakhpur to examine the question as to whether the termination of the workman was proper or legal with effect from 01.09.1988 and, if not, what relief/compensation the workman was entitled to. It is further pleaded that before the Labour Court, the parties made their submissions and led evidence. The case of the petitioners was that the workman had obtained his appointment by committing fraud and when the said fraud had come to the knowledge of the petitioners, the services of the respondent-workman were terminated. It is further pleaded that after abolition of Rice Scheme, there was no vacancy and, therefore, the workman had no right of reinstatement. It is further pleaded that the dispute was raised after a long period of 10-11 years from the date of termination and that the respondent had been paid salary upto 31.08.1988 which includes the salary of one month from the date of notice dated 01.08.1988. Further case of the petitioners before the Labour Court was, as also pleaded in the writ petition, that the Agricultural Department is a Government Department and not an ''Industry' and therefore the Labour Court had erred in treating the dispute as covered by the provisions of U.P. Industrial Disputes Act and, hence, the award is illegal.

3. In sum and substance, the case of the petitioners is to the effect that the engagement of the respondent-workman as a labour was under a temporary arrangement for the purposes of working under the Rice Scheme which did not remain operative after 1987 and, therefore, consequential termination of the services of the respondent workman was not illegal.

4. The Labour Court, by the impugned award dated 30.11.2015, has directed reinstatement of the respondent-workman on his post with continuity in past services along with 25% back-wages with effect from 01.09.1988.

Counter Affidavit

5. A counter affidavit has been filed on behalf of the respondent-workman stating that the Agricultural Department falls within the definition of ''Industry' and the services of the respondent-workman were neither temporary nor dependent upon the Rice Scheme. Reliance has been placed upon various annexures which also form part of the writ petition to explain the nature of the services rendered by the respondent-workman.

Rejoinder Affidavit

6. A rejoinder affidavit has been filed by the petitioners substantially reiterating the version contained in the writ petition. It has also been mentioned that pursuant to the interim order dated 22.05.2017 passed by this Court in the present writ petition, an amount of Rs.5,00,000/- was deposited in the account of Labour Court, Gorakhpur through R.T.J.S. vide Treasury Token No. 331769925, dated 07.09.2017 and Voucher No.14, dated 08.09.2017.

Interim order passed in this case

7. This Court while entertaining the present writ petition passed following interim order dated 22.05.2017:-

"This writ petition has been filed against the award of the Labour Court, Gorakhpur dated 30.11.2015 by which the said Labour Court has answered the reference in favour of the respondent-workman and granted all relief of his reinstatement with 25% back wages.

Learned counsel for the petitioners submit that the respondent-workman had worked briefly for a period of two years on the post of Kamdar under Rice Scheme and that he had been terminated on 01.08.1988. The workman sought a reference belatedly in the year 1999 which has been answered in his favour by the impugned award that was published on 28.03.2016. He would therefore submit that the relief of reinstatement in such a case could not be granted to the respondent-workman as the reference has been made after a delay of eleven years and also because admittedly the respondent-workman has remained out of work for almost 29 years. Therefore, he would submit the only claim that could have been considered by the Labour Court was of compensation in lieu of reinstatement and back wages. However, the Labour Court has granted the relief of reinstatement with 25% back wages without even recording the finding that the respondent-workman had not been gainfully employed during the pendency of the dispute.

Sri Sudhanshu Narain, learned counsel for the respondent workman on the other hand would contend that the respondent is entitled to reinstatement with 25% back wages.

Matter requires consideration.

Sri Sudhanshu Narain, learned counsel for the respondent workman prays for and is granted four weeks' time to file counter affidavit. Petitioner will have two weeks' thereafter to file rejoinder affidavit.

List on 08.08.2017. In the meanwhile it is provided subject to deposit of Rs. 5,00,000/- before the Labour Court, Gorakhpur within a period of six weeks from today the implementation of the award shall be remain stayed. Of the amount so deposited, Rs. 2,00,000/- shall be paid out to the respondent workman without any security and the balance amount shall be invested in an interest bearing term deposit account of a Nationalized Bank and shall abide by the final order passed by this Court."

A later stage during course of proceedings

8. Later on, in the year 2019, arguments were advanced for modification of the interim order praying release of remaining amount of Rs.3,00,000/- as the amount of Rs.2,00,000/- directed under the interim order dated 22.05.2017, was admittedly paid to the respondent-workman but remaining amount was lying deposited. However, this Court, keeping in view that the matter is ripe for hearing on merits, made the interim order absolute by order dated 24.05.2019.

9. I have heard Sri Dhananjai Singh, learned Standing Counsel for the petitioner and Sri Anil Kumar Yadav, learned counsel for the sole respondent.

Contentions raised by petitioner side

10. Learned Standing Counsel for the petitioners has mainly raised following arguments:-

(i) Agricultural Department of the Government does not fall within the definition of ''Industry' and, therefore, the impugned award under the provisions of U.P. Industrial Disputes Act, 1947 is unsustainable;

(ii) The respondent workman was temporarily engaged under the Rice Scheme of the Government which was abolished in the year 1987 and, thereafter, no requirement to keep the respondent in service remained and, consequently, the termination of his services is not illegal; and

(iii) The industrial dispute, even otherwise, was raised at a very belated stage of 10-11 years and, therefore, the direction for reinstatement with 25% back-wages along with continuity of past service is not according to law.

(i) Analysis of first contention

11. In so far as the first contention is concerned, the submission is that the Agricultural Department being a Government Department, the matter could not be adjudicated upon by the Labour Court.

12. Meeting this argument, the learned counsel for the respondent-workman has vehemently argued that the issue as to which establishment would fall within the definition and meaning of ''Industry' has been explained time and again by the Supreme Court and keeping in view the settled proposition of law, even the Agricultural Department of the U.P. Government shall fall within the definition of ''Industry' and, hence, there is no illegality in the impugned award on this scope.

13. In support of his submission, learned counsel for the respondent-workman has placed reliance upon the judgment of this Court in the case of State of U.P. through Secretary Irrigation Vs. Mohd Rais reported in 2021 (169) FLR 520, with special reference to paragraphs 5, 7, 8, 9, 10 and11.

"5. Learned counsel appearing on behalf of opposite party no.1 refuting the submission advanced by learned counsel for petitioner has in turn placed reliance upon judgment rendered by Hon'ble the Supreme Court in the case of Des Raj vs. State of Punjab & Ors. reported in AIR 1988 Supreme Court 1182 to submit that a Government Department such as the Irrigation Department has already been held to come within the purview of term 'Industry' but the subsequent judgment rendered in the case of K. Soma Setty (supra) has been passed without noticing the aforesaid two judgments, which should therefore prevail. Learned counsel has also relied upon judgment rendered by Hon'ble the Supreme Court in the case of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation reported in AIR 1986 Supreme Court 458 to submit that for the purposes of calculation of 240 days of service, weekends and other gazetted holidays are required to be taken into account. Learned counsel has also relied upon a Full Bench Decision of this Court rendered in Ganga Saran vs. Civil Judge, Hapur reported in AIR 1991 Allahabad 114 to submit that in case of a conflict between judgments of Hon'ble Supreme Court consisting of equal authorities, the concerned High Court must follow judgment which appears to lay down the law elaborately and accurately irrespective of time line. Learned counsel also placed reliance on a Single Judge judgment rendered by High Court of Bombay in Executive Engineer, Yavantmal Medium Project Division & Anrs. vs. Anant S/o Yadao Murate & Another reported in 1997 ILLJ 91 wherein after considering the contradictory judgments of Hon'ble Supreme Court regarding Irrigation Department being an 'Industry' has followed the judgment rendered in the case of Des Raj (supra).

...........

7. As has been indicated hereinabove, the Hon'ble Supreme Court in the case of Des Raj (supra) has held that an Irrigation Department of particular Government to be an Industry in terms of the Act of 1947. The said judgment has taken into account various other judgments rendered by Hon'ble the Supreme Court particularly a Constitution Bench judgment rendered in Bangalore Water Supply and Sewerage Board vs. A. Rajappa, reported in (1978)2 SCC 213. On the contrary, the subsequent judgment rendered by Hon'ble Supreme Court in case of K. Soma Setty (supra) has not adverted to the aforesaid judgments of Des Raj (supra) and Bangalore Water Supply and Sewerage Board (supra).

8. Upon perusal of Judgment rendered in the case of Desh Raj (supra) as compared to judgment rendered in the case of K. Soma Setty (supra), it is apparent that in the case of Desh Raj (supra) Irrigation Department has been held to come within the definition of Industry whereas judgment of K. Soma Setty holds otherwise. As such, there is clear conflict in the two judgments which are of Coordinate Bench.

9. The proposition of law required to be followed in conflicting judgments rendered by Hon'ble the Supreme Court by Benches of Coordinate strength has been discussed in the Full Bench of this Court in Ganga Saran (supra). The Full Bench after considering the relevant aspect has held as follows:

" 7. One line of decision is that if there is a conflict in two Supreme Court decisions, the decision which is later in point of time would be binding on the High Courts. The second line of decisions is that in case there is a conflict between the judgments of Supreme Court consisting of equal authorities, incidence of time is not a relevant factor and the High Court must follow the judgment which appears it to lay down law elaborately and accurately.

8. Similar situation arose before a Full Bench of Punjab and Haryana High Court in the case of M/s Indo Swiss Time Limited, Dundahera, vs. Umrao, AIR 1981 Punj & Har 213. What the Full Bench in the said case held is extracted below (at pp. 219-220 of AIR) :

Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and therefore, of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortutious circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot be binding on the courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of coequal Benches of the Superior Court are earlier later is a consideration which appears to me as hardly relevant."

This decision was followed by the Bombay High Court in the case of Special Land Acquisition Officer vs. Municipal Corporation, AIR 1988 Bombay 9. The majority of Judges in the Full Bench held that if there was a conflict between the two decisions of equal benches which cannot possibly reconcile, the courts must follow the judgment which appear to them to state the law accurately and elaborately. We are in respectful agreement with the view expressed by the Full Bench of Punjab & Haryana High Court in the case of M/s Indo Swiss Time Limited v. Umrao, (AIR 1981 Punj & Har 213) (Supra) especially when the Supreme Court while deciding Qamaruddin's case (1990 All WC 308) (Supra) did not notice the U.P. amendment to S.115, C.P.C. and earlier decision of the Supreme Court."

10. The aforesaid aspect has also been dealt with by a learned Single Judge of the High Court of Bombay in which judgment rendered by Hon'ble the Supreme Court in the case of Des Raj (supra) has been followed:

"13. On considering all the concepts of industry and after reviewing the various tests which need not be repeated, as the tests were laid down in Bangalore Water Supply case (supra). The concept of sovereign and regal function was explained in Chief Conservator of Forests (supra). The Apex Court in para 13 specifically rejected an argument that welfare activities partake sovereign functions on the ground that if such a view was taken it would be eroding the view taken by it in Bangalore Water Supply's case. While observing that welfare activities partake sovereign functions the Apex Court did not notice this in Sub-Divisional Inspector of Post, Vaikam and Other (supra). Therefore, considering the various precedents of the Apex Court itself it is clear that the law declared by the Apex Court is that welfare activities do not necessarily partake sovereign functions. In Executive Engineer, State of Karnataka the reliance was placed on the judgment in the case of Union of India v. Jai Narain Singh (supra). In Union of India v. Jai Narain Singh, the Apex Court has merely noted that the Central Ground Water Board is not an Industry. It is not possible to discern from that judgment as to what were the reasons for the Apex Court to so hold. The other judgment relied on is that of State of Himachal Pradesh v. Suresh Kumar Varma & Anr. (supra). On a perusal of the fact and the law laid down it does not seem that the issue as to whether a particular department was an industry or not was in issue. What was in issue was whether the work charged employees who perform duty of transitory nature were appointed to posts and their appointments were on daily wage basis in an appointment to a post. The Apex Court therein noted that such appointments were not appointments to the posts and, therefore, no directions could have been given to re-engage them in any work or appoint them against existing vacancies. Thus the two judgments relied upon by the Apex Court to arrive at the conclusion arrived at in Executive Engineer, State of Karnataka (supra), nowhere have laid down the tests to hold as to why Irrigation Department is to be excluded from the definition of industry. As pointed out earlier, even the case of Sub Divisional Inspector of Post, Vaikam and Others was considered by the Apex Court in Physical Research Laboratory and explained the same in paragraph 10 of the judgment. After that, it proceeded to apply the tests as laid down in Bangalore Water Supply. In the case of Des Raj v. State of Punjab (supra) the Apex Court had considered the tests laid down in various earlier judgments of the Apex Court itself, culminating in the judgment in Bangalore Water Supply (supra) and thereafter had arrived at a conclusion that the Irrigation Department falls within the definition of Industry within the meaning of Section 2(j) of the I.D. Act. I am, therefore, of the considered opinion that the view laid down in Des Raj's case is the better in point of law and hence it is the view in Des Raj's case which will have to be followed. Once it is so held and as I have already set out earlier the work of the Irrigation Department of the State of Punjab and the material placed before this Court including the written submissions filed on behalf of the petitioners show that the projects undertaken by the irrigation department of the State of Maharashtra is discharging the same or similar functions as the Irrigation Department of the State of Punjab. It, therefore, follows that the projects of the Irrigation Department or work connected with that of the State of Maharashtra, on the same tests as applied by the Apex Court in Des Raj's case would fall within the definition of an industry for the purpose of Section 2(j) of the I.D. Act."

11. Upon applicability of said factors to the present case, it is clear that the judgment rendered by Hon'ble the Supreme Court in Des Raj (supra) has elaborately dealt with the question as to whether Irrigation Department of the Government would come within the definition of Industry or not. After considering the Constitution Bench Judgment of Hon'ble Supreme Court rendered in Bangalore Water Supply and Sewerage Board (supra), the Hon'ble Supreme Court has reached a definite conclusion that Irrigation Department of the Government would come within the definition of Industry."

14. He has further placed reliance upon the judgment of Supreme Court dated 03.08.2021 in the case of The State of Uttar Pradesh and others Vs. Uttam Singh, reported in AIR 2021 Supreme Court 3909, with reference to paragraphs 10 and 11, which are quoted herein below:-

"10. We have also taken note of the fact that during his 13 long years of employment and before that having battled the appellants for the period of 6 years to get his dues, the father of the respondent was also transferred from one department to the other, normally an aspect which would be associated with a person who had a regular employment. The most significant aspect is that had the father of the respondent not been considered a regular appointee, there would be no occasion for the Department to volunteer his services to the State Election Commission to perform election duties, which could have been done only by a Government employee, as is specified under Section 159 of the Representation of the People Act, 1950 ("Staff of certain authorities to be made available for election work").

11. The present case is thus one which is peculiar in its given factual scenario which we have discussed above and thus for all practical purposes, it is a case of an appointment against a regular vacancy. The respondent's father was treated as a regular employee by the aforesaid conduct of the appellants even though he was labelled as a Part Time tubewell operator."

15. He has further placed reliance upon the judgment of this Court in the case of Chairman, Town Area & another Vs. State of U.P. and others, reported in 2013 (11) ADJ 197, with special reference to paragraph 14, which is quoted herein below:-

"14. The submission of learned counsel for the petitioner that in respect of true meaning and import of the expression 'Industry' defined under Industrial Disputes Act, the correctness of decision of Apex Court rendered in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa & others, AIR 1978 S.C. 548 has been doubted by Apex Court in Coir Board, Ernakulam, Cochin and Another Vs. Indira Devi P.S. and others, (1998) 3 S.C.C. 259 and further in case of State of U.P. Vs. Jai Bir Singh (2005) 5 S.C.C. Page 1 and decision of the Apex Court rendered in Bangalore Water Supply case has been referred to the larger Bench, also does not make any difference for the reason that the learned counsel for the petitioner could not point out the final decision rendered by larger Constitution Bench of the Apex Court in respect of the aforesaid references, therefore, I have no hesitation to hold that earlier view taken by the Apex Court is still good law and cannot be held to be detracted by Apex Court itself by now. Accordingly, no different opinion can be given by this court in this regard."

16. While explaining the ratio laid down in the aforesaid authorities, learned counsel for the respondent-workman has referred to an order dated 20.08.1987 forming part of annexure no.4 to the writ petition whereby the respondent-workman was transferred from Basti to Goraknpur with a recital in the transfer order that the services would be governed by the same Rules which were applicable for Class-IV employees. Further reliance has been placed upon the documents of joining at the transferred place and also to the appointment order dated 20.05.1987 whereby the respondent was directed to be appointed though in the temporary capacity in the pay scale of 315-6-35/Da Ro-6-363-7-384-8-400 Da. Re10-9-440 with a clear recital that admissible allowances shall also be payable to the respondent-workman. He has also placed reliance upon the letter dated 14.07.1988 sent by the Project Officer (Agriculture), Basti to the Joint Director Agriculture (Extension), Gorakhpur Division, Gorakhpur whereby factum of absorption of the respondent-workman was admitted to the petitioners themselves. He has also referred to the relieving letter dated 10.09.1987 forming part of counter affidavit whereby the respondent-workman was relieved from Basti to Gorakhpur and also various other documents to establish that the respondent workman was always treated as a regular employee/ workman in the petitioner department.

17. The submission of the learned counsel for the respondent-workman, therefore, is that once the Supreme Court as well as this Court has already held in the aforesaid authorities that Irrigation Department and also the departments of the like nature depending upon the services rendered by the said departments, shall be covered by definition of ''Industry' and, further, once the respondent was treated as an employee in the petitioners establishment, no error can be pointed out in adjudication of the dispute by the Labour Court and the provisions of U.P. Industrial Disputes Act, 1947 were fully applicable.

18. I find substance in the arguments advanced by the learned counsel for the respondent-workman as in the case of Des Raj v. State of Punjab (supra) the Apex Court had considered the tests laid down in various earlier judgments of the Apex Court itself, culminating in the judgment in Bangalore Water Supply (supra) and thereafter had arrived at a conclusion that the Irrigation Department falls within the definition of Industry within the meaning of Section 2(j) of the I.D. Act. It was held that the view taken down in Des Raj's case was the better in point of law and hence it is the view in Des Raj's case which was directed to be followed. Once it was so held and also that the work of the Irrigation Department of the State of Punjab and the material placed before the Surpeme Court including the written submissions filed on behalf of the concerned petitioners that the irrigation department of the State of Maharashtra was discharging the same or similar functions as the Irrigation Department of the State of Punjab, it was held that the projects of the Irrigation Department or work connected with that of the State of Maharashtra, on the same tests as applied by the Apex Court in Des Raj's case would fall within the definition of an industry for the purpose of Section 2(j) of the I.D. Act.

19. In view of the above, the first contention of the petitioners that the Agricultural Department of the U.P. does not fall within the definition of ''Industry' does not have any merit and is accordingly rejected.

(ii) Analysis of second contention

20. In so far as the second contention to the effect that the respondent was temporarily engaged under the Rice Scheme which was abolished in the year 1987 under the Government Order dated 17.10.1987 and, therefore, the direction of the Labour Court to reinstate the respondent workman with continuity in service along with 25% back-wages is unsustainable, this Court finds from the above noted discussion of various documents relating to the services of the respondent that it cannot be treated that merely because the Rice Scheme was abolished, the respondent would loose his status as that of ''a workman'. The reason is that the Agricultural Department may deploy any labour to serve any purpose of the department and even if it is accepted that the respondent was working under the Rice Scheme of the Government, merely because the Scheme was over, it would not mean that keeping in view the nature of the services of the respondent, he would cease to be a workman, particularly when he was appointed under a pay scale and was transferred from one place to the other and was also held entitled to get various allowances under the orders of the petitioners-department itself.

21. In view of the above, the notice of termination dated 01.08.1988 whereby the respondent workman was informed that there was no necessity of his service any more, is found to be unsustainable. Hence, the second point raised by the petitioners that the respondent would not be treated as a retrenched workman, does not have any merit and is accordingly rejected.

(iii) Analysis of third contention

22. In so far as the third contention of the petitioners to the effect that the industrial dispute was raised after a belated stage of 10-11 years in the year 1999 whereas the services of the respondent workman were terminated in the year 1988 and therefore relief of reinstatement with continuity in past service along with 25% back-wages is not according to law, this Court proceeds to examine this aspect of the matter in the light of law laid down by this Court and Supreme Court governing the issue.

23. There is no dispute about the fact that the petitioner worked from 1987 to 1988 and his services for any reason whatsoever, were terminated in August-September, 1988 and the dispute was agitated after 11 years.

24. Learned Standing Counsel for the petitioners has argued that the Labour Court, in the impugned award, has not recorded any finding that the respondent workman was not gainfully employed during the aforesaid period of 11 years and, therefore, direction for reinstatement with other relief, is contrary to law.

25. Per contra, learned counsel for the respondent workman submits that once the termination was illegal, the award of the Labour Court is perfectly in accordance with law.

26. Before arriving at a conclusion in this regard, it is necessary to refer to certain authorities of the Supreme Court on the issue as to when reinstatement with other consequential reliefs can be ordered by a Labour Court in such circumstances.

27. In State of Karnataka and another Vs. Ravi Kumar reported in 2009 13 SCC 746, long delay in seeking reference of the dispute rendered the reference stale and Supreme Court held that it should have been rejected by the Labour Court. In that case reference was sought after fourteen years.

28. In Haryana State Cooperation Land Development Bank Vs. Neelam reported in 2005 (5) SCC 91, the Supreme Court held delay of seven years in approaching the Labour Court to be relevant factor to refuse relief of reinstatement.

29. In Bharat Sanchar Nigam Ltd. Vs. Bhurumal reported in 2014 (7) SCC 177, it has been held that relief of reinstatement with full back-wages, when termination is found to be illegal is not to be granted mechanically in all cases. In case of termination of a daily wage worker, made in violation of Section 25F of the Industrial Disputes Act, 1947 it was held reinstatement with back-wages was not automatic and instead workman should be given monetary compensation.

30. The Supreme Court in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota Vs, Madan Lal reported in (2013) 14 SCC 543, after considering the law on the subject, held that though Limitation Act is not applicable to such cases, yet delay in raising the dispute is an important circumstance and Labour Court must consider before it exercises discretion irrespective of objection has or has not been raised by the other side.

31. Further in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Versus Mohan Lal reported in (2013) 14 SCC 543 in similar circumstances, a muster roll employee in a government establishment who had been found to have worked for 286 days in one twelve calendar month period prior to his dis-engagement, and in whose case the industrial dispute was raised after six years, was found not entitled to reinstatement but compensation in lieu thereof, Rs. One lac only.

32. In Nagar Mahapalika vs. State of U.P. and Ors. reported in 2006,(5) SCC 127, it was held by Supreme Court that non compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 (this provision is broadly pari materia with Section 25-F), although, leads to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the workman, the same would not mean that such relief is to be granted automatically or as a matter of course. It was emphasised that the Labour Court must take into consideration the relevant facts for exercise of its discretion in granting the relief.

33. Supreme Court in Municipal Council, Sujanpur vs. Surinder Kumar reported in 2006 (5) SCC 173, reiterated the above legal position. That was a case where the Labour Court had granted reinstatement in service with full back wages to the workman as statutory provisions were not followed. The award was not interfered with by the High Court. However, the Court granted monetary compensation in lieu of reinstatement.

34. In Haryana State Electronics Development Corporation Ltd. v. Mamni reported in 2006 (9) SCC 434 following Nagar Mahapalika (supra), Supreme Court held that the reinstatement granted to the workman because there was violation of Section 25F, was not justified and modified the order of reinstatement by directing that the workman shall be compensated by payment of a sum of Rs.25,000/- instead of the order of the reinstatement.

35. In Uttaranchal Forest Development Corporation v. M.C. Joshi reported in 2007 (9) SCC 353, the services were terminated on 24.11.1991 in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. He had completed 240 days of continuous work in a period of twelve months preceding the order of termination. The workman approached the Conciliation Officer on or about 02.09.1996, i.e., after a period of about five years. The Labour Court granted to the workman, M.C.Joshi, relief of reinstatement with 50% back wages. In the writ petition filed by the Corporation, the direction of reinstatement was maintained but back wages were reduced from 50% to 25%. The Supreme Court substituted the award of reinstatement by compensation for a sum of Rs.75,000/-.

36. In Ghaziabad Development Authority and Another v. Ashok Kumar and Another reported in 2008 (4) SCC 261], the Apex 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 Supreme 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/-

37. In Telecom District Manager v. Keshab Deb, reported in 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. Supreme Court held that 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/-.

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

39. It is also necessary to refer to subsequent three decisions of Supreme Court, namely, Uttar Pradesh State Electricity Board vs. Laxmi Kant Gupta reported in 2009 (16) SCC 562, Bharat Sanchar Nigam Limited vs. Man Singh reported in 2012 (1) SCC 558 and Senior Superintendent Telegraph (Traffic), Bhopal vs. Santosh Kumar Seal and Others, reported in 2010 (6) SCC 773, where the view has been taken in line with the cases discussed above. As a matter of fact in Santosh Kumar Seal (supra), Apex 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.

40. In the case of Assistant Engineer, Rajasthan Development Corporation and Anr. v. Gitam Singh reported in 2013 (5) SCC 136], Supreme Court on consideration of the most of the cases cited above reiterated the principle regarding exercise of judicial discretion by the Labour Court in a matter where the termination of the workman is held to be illegal being in violation of Section 25-F by holding that the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial.

41. The aforesaid authorities have been considered by this Court in its judgment in the case of State of U.P. Vs. Presiding Officer, Labour Court and another reported in 2017 (7) ADJ 393.

42. Further, The Supreme Court in several authorities some of which are mentioned below has held that if the only defect in the termination order is non payment of retrenchment compensation as required by Section 25 F of Industrial Dispute Act (or Section 6 N of U.P.I.D. Act) then it is not always necessary to direct reinstatement with full back wages and that in such situation more often than not proper relief may be to award consolidated damages/compensation particularly when the employer is Government or Governmental agency and relevant rules have not been followed before appointment.

- Nagar Mahapalika v. State of U.P., AIR 2006 SC 2113

- Haryana State Electronics Devpt Corpn v. Mamni, AIR 2006 SC 2427

- Sita Ram v. Moti Lal Nehru Farmers Training Institute, AIR 2008 SC 1955

- Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another, AIR 2009 SC 3004

43. In Senior Superintendent, Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and others, reported in AIR 2010 SC 2140, it has been held that if daily wagers had worked for 2 or 3 years and their services were terminated without payment of retrenchment compensation then consolidated damages should be awarded to them (Rs.40,000/- to each of the workmen was awarded in the said case). It has also been held that daily wager does not hold a post and can not be equated with permanent employee. This view has been reiterated in Incharge Officer Vs. Shankar Shetty reported in JT 2010(9) SC 262.

44. The aforesaid authorities have been considered by this Court in its judgment reported in 2011 (4) ADJ, 199: Divisional Engineer, Telecom, Jhansi Vs. Presiding Officer and another.

Conclusion

45. Keeping in view the law laid down in the aforesaid authorities as well as the undisputed factual position that reference was made at a very belated stage of 10-11 years after the termination and there being no finding by the Labour Court in the impugned award as to whether the respondent was or was not gainfully employed during the intervening period or thereafter, I find that the reinstatement with 25% back-wages along with continuity in past service was not justified.

46. However, in the facts and circumstances of the case, a consolidated and lump sum amount of compensation could have served the purpose to console the respondent whose services were terminated, not only in the light of the documents but also considering his service book which describe the nature of his appointment with all other aspects associated with it.

47. In view of the above and also considering the nature of the interim order dated 25.05.2017 passed in the present petition, in pursuance whereof a sum of Rs.5,00,000/- was deposited by the petitioners out of which a sum of Rs.2,00,000/- has admittedly been released in favour of the respondent, the writ petition is partly allowed.

48. The impugned award dated 30.11.2015, published on 28.03.2016, passed by the Presiding Officer, Labour Court, Gorakhpur in Adjudication Case No.75 of 1999 is hereby quashed in part and is modified directing payment of compensation to the respondent workman which this Court assess to be Rs.5,00,000/-. Since under the interim order, a sum of Rs. 2,00,000/- (rupees two lac only) has already been released in favour of the workman and the remaining sum of Rs. 3,00,000/- was invested with a nationalized bank in an interest bearing deposit account, it is directed that the aforesaid sum of Rs.3,00,000/- along with accrued interest upto the date shall be released in favour of the respondent-workman within a period of two months from the date a certified copy of this order is produced before the Labour Court along with appropriate application. The Labour Court shall ensure that the bank concerned shall facilitate release of the said amount along with the interest accrued upto date in favour of the respondent-workman without any hindrance.

Order Date :-19.4.2023

AKShukla/-(Sazia)