Pramendra Kumar Singh vs Presiding Officer, Industrial ...
2023 Latest Caselaw 12677 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 

 
Case :- WRIT - C No. - 13787 of 2023
 

 
Petitioner :- Pramendra Kumar Singh
 
Respondent :- Presiding Officer, Industrial Tribunal (6) And Another
 
Counsel for Petitioner :- Ganesh Datt Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri G. D. Mishra, learned counsel for the petitioner as well as learned Standing counsel on behalf of the respondents.

2. By means of the present writ petition the petitioner has challenged the award passed by Presiding Officer, Industrial Tribunal (6), Gorakhpur, U.P. (hereinafter after referred to as the Tribunal) whereby the claim of the petitioner has been rejected by means of the award dated 11.4.2022. The said award has also been published on 19.7.2022.

3. It has been submitted by learned counsel for the petitioner that the petitioner was appointed on daily wage basis in 1998 on the post of Office Assistant in Social Forestry Department of the State of U.P. i.e. respondent No.2. He had stated that he continuously worked till 25.10.2017 when his services were terminated. He stated that his services were liable to be regularized and in this regard he has filed a writ petition before this Court bearing writ A No.16304 of 2016 and the respondents out of vengeance had terminated his services illegally and arbitrarily. It is also submitted that the petitioner has continuously completed 240 days in one calendar year and prayed that the order of termination may be set aside.

4. Though the respondents participated in the conciliation proceedings but despite notice no appearance was put in by the employer before the Tribunal. The Tribunal proceeded ex-parte against the respondent No.2 and it recorded satisfaction with regard to existence of employer-employee relationship between the petitioner and respondent No.2. recording the fact that the petitioner had worked since 1998 till 24.10.2017 regularly and had completed 240 days in a calendar year and his retrenchment was held to be illegal and arbitrary. While allowing the claim of the petitioner instead of reinstatement compensation of an amount of Rs.1,20,000/- along with further compensation of Rs.5000/- was granted to him. This was done as the Tribunal had stated that there was no evidence adduced before it to show that there was vacancy existing on which the petitioner could be reinstated and only on this count the Tribunal proceeded to grant compensation instead of reinstatement.

5. Learned counsel for the petitioner has assailed that portion of the award dated 11.4.2022 where his prayer for reinstatement has been rejected on the ground that he has not been able to prove whether there is existing any vacancy with the respondents on which his services can be reinstated. In support of his contentions learned counsel for the petitioner has placed reliance on the provisions contained under Section 6 N of the U.P. Industrial Tribunal Act, 1947 which reads as under:-

"6-N. Conditions precedent to retrenchment of workmen.?No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until?

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice : Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months, and

(c) notice in the prescribed manner is served on the State Government."

6. It is submitted on behalf of the petitioner that once the retrenchment of the petitioner has been held to be illegal then it was incumbent upon the Tribunal to have passed an order for reinstatement. It is further submitted that it is only where the matter relates to laying off of an employee that provision has been made for compensation in terms of Section 6 K of U.P. Industrial Disputes Act. To resolve the controversy involved in the matter, learned counsel for the petitioner has relied upon the judgment in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others; (2013) 10 SCC 324, the relevant portion of which is quoted as under:

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

7. In the present case, there is no such circumstances which has been brought to the knowledge of the Court where the services of the petitioner cannot be reinstated except for the fact that he has not been able to show that there was a vacancy with the respondents. This Court is of the considered view that the tribunal has misdirected itself by refusing to grant reinstatement in the facts of the present case.

8. After allowing the claim of the workman the benefit of reinstatement has not been given only on the ground that no averments has been made by the petitioner with regard to the fact as to whether any vacancy was existing with the respondent-employer. The relief of reinstatement could have been denied only when specific case was made out by the employer before the Tribunal that either the project was over or there was no vacancy on which the employee can be reinstated. In the present case, the employer did not put in appearance and hence, the entire burden to prove the fact could not have been placed upon the employee. In absence of any material in this regard there was no reason for the Tribunal to have denied the relief as sought for by the employee in this regard.

9. Considering the findings recorded herein-above by this Court as well as the submissions made by respective parties, the award dated 11.4.2022 as well as the notification published on 19.7.2022 are hereby set aside. The writ petition is allowed.

10. The respondents are directed to reinstate the petitioner in service with all consequential benefits. In case, the petitioner has received the amount of compensation as directed by the Tribunal the same may be adjusted towards the back-wages to which the petitioner is entitled and in case he has received any excess amount he is duty bound to return the same.

Order Date :- 25.4.2023 (Alok Mathur, J.)

RKM.