Madhyanchal Vidyut Vitaran Nigam ... vs State Of U.P. And 3 Others
2023 Latest Caselaw 15756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:106409
 
A.F.R.
 
							   Reserved on 13.04.2023.
 
Delivered on 19.05.2023.
 

 
Court No. - 52
 

 
Case :- WRIT - C No. - 32520 of 2016
 

 
Petitioner :- Madhyanchal Vidyut Vitaran Nigam Ltd.
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Sunil Kumar Tripathi
 
Counsel for Respondent :- C.S.C., ,Gopal Narain
 

 
Hon'ble Kshitij Shailendra,J.

1. This writ petition has been filed by Madhyanchal Vidyut Vitaran Nigam Ltd. challenging the impugned award dated 19.10.2015 published on 30.01.2016 passed by the respondent No.2-Presiding Officer, Labour Court, Firozabad with a further prayer to issue a writ in the nature of Mandamus commanding the respondent no.3 not to enforce the aforesaid award.

2. The facts of the case are that petitioner (hereinafter referred to 'as MVVNL') is a company incorporated under the Companies Act-1956 engaged in the business of distribution of electricity within specified areas under the license granted to it by U.P. Electricity Regulatory Commission in exercise of powers under the Electricity Act-2003. The writ petition contains various pleadings with regard to status of the petitioner-Company, however, since the writ petition arises out of an award passed under the provisions of U.P. Industrial Disputes Act-1947 (hereinafter referred to as 'the Act-1947'), it is not necessary to enter into details of such aspects which may not be relevant for the purposes of deciding the controversy. However, emphasis of the petitioner in the writ petition is that the U.P. Power Corporation Ltd. has framed U.P. Rajya Vidyut Parishad Parichalkiya Karmchari Varg Seva Viniymawali-1995 (hereinafter referred to the 'Regulations-1995') governing the services of its employees and workers.

3. The respondent no.4-Workman raised a dispute regarding termination of his services w.e.f. 21.03.2006 and pursuant to a reference made, a case was registered as Adjudication Case No.42 of 2007. Thereafter, the case was transferred to the Labour Court, Firozabad wherein it was registered as Adjudication Case No.46 of 2015. The case of the workman is that he was appointed on the post of Sub Station Operator on 11.07.1986 on a temporary basis as a daily wager and he had worked in the Establishment upto 20.03.2006, whereafter, his services were orally terminated on 21.03.2006. He contends that oral termination of his services was contrary to law and, therefore, he was entitled to be reinstated on the post with continuity in past services alongwith arrears of salary, increments and bonus etc. w.e.f. 21.03.2006 upto the date of reinstatement.

4. On the other hand, the case of the petitioner-Department is that the workman was never appointed and he had never worked on any post. Relying upon the aforesaid Regulations of 1995, it is contended by the Department that all appointments in the Organisation were made by issuing letters of appointment by the Competent Authorities; that no letter of appointment was ever issued to the respondent; the respondent never joined the Department; the posts are filled up holding rigorous selection process; the respondent tried to secure employment in the Organization by hook and crook; the respondent did not fall within the definition of workman; there was no relationship of employer-employee in between the Department and the respondent since the respondent was not an employee/workman in the Organisation, no question of termination of his services arose; no salary was ever paid to the respondent; there was a ban imposed on appointment since 1979 from appointing employees on Muster Roll & temporary basis and that there was no post of Sub Station Operator.

5. The petitioner-Department also filed a rejoinder before Labour Court stating that respondent no.4 was never appointed as a daily wager; that Electriciy Urban Division-III Bareilly was created on 01.04.1991 and that respondent no.4 had never worked in the Division, therefore, question of completion of 240 days did not arise. On behalf of the Department Shri G.K. Saxena, Retired Junior Engineer, Sri Pramod, Trainee Junior Engineer, filed affidavit on 17.01.2008 & Shri S.K. Saxena, employed in Division-III filed an affidavit on 09.01.2008. In the affidavit, Shri G.K. Saxena stated that he was employed as Junior Engineer from 20.09.1994 to 30.01.2006, Shri Pramod stated on oath that he was employed from 07.03.2005 to January 2006 and Shri S.K. Saxena, Executive Engineer, stated that he was employed from 28.06.2003 to 22.06.2007 in Vidyut Nagariya Vitaran Khand-III, Madhyanchal Vidyut Vitaran Nigam Ltd. Bareilly. During the period of employment, neither any work was taken from respondent No.4 nor was any payment of salary/wages made to him. The Department also filed various documents such as Notification dated 09.08.1995, letter dated 03.07.1979, Notification dated 13.06.1992, office letter dated 08.11.1990 etc. to demonstrate that the alleged appointment claimed by the workman was not permissible as not only the Department was created much much subsequent in point of time but also such alleged appointment was contrary to law.

6. The workman examined himself and in his statement dated 14.12.2011, he stated that he was appointed as a daily wager on the post of Sub Station Operator and during the period of strike, he continued to work. He referred to various documents to establish that certain certificates were issued regarding his working and also attendance register on which his signatures were there. He also stated that after termination of his services, he was unemployed and used to get work from contractors from time to time. The workman was cross-examined by the Department and stated about intermittent payments made to him by the Officials of the Department.

7. Insofar as the Officials of the Department are concerned, they were cross-examined by the workman, however, during the cross-examination, consistent stand of the Officials was that the workman was never paid any salary etc. by any of the Officials; that the workman was never appointed as daily wager; that any appointment is made only after following due selection process; that no one was employed on Muster Roll or daily wage basis in the concerned Sub Station. These Officials also denied their signatures on the documents which were relied upon by the respondent-workman. The Department laid much emphasis on an Office Memorandum No.1989-C/SEB-I-10A/79 dated 03.07.1979 issued by the U.P. State Electricity Board Shakti Bhawan 14, Ashok Marg, Lucknow by laying much emphasis on the following portion of the said Memorandum:-

"Board had issued orders vide B.O. No.147-G/SEB-I-10A/1979 that no engagement on Muster Roll or Daily rated basis in the categories of Coolies /Mazdoors/Beldars/Chowkidars/Skilled Coollies/ SSOs/ Linemen/ Electrician/ Dutymen/ Wiremen/ Meter Readers etc. would hence forth be made for the operation and maintenance of generation, transmission and distribution works from the date of receipt of these orders on February 1, 1979, whichever is earlier. "

8. Further reliance was placed on another Office Memorandum dated 11.06.1990 which reads as follows:-

"परिषद ने अपने आदेश सं० 1989-जी/एसईवी/-1-10ए/79 दि० 3 जुलाई, 1979 द्वारा दिनांक 1-8-79 से मस्टररोल या दैनिक वेतन पर कुली/मजदूरी/एस०एस०ओ० आदि किसी भी पद पर रखने तथा कार्य लेने पर रोक लगा दी थी।

इसके उपरान्त भी इस कार्यालय के संज्ञान में आया है कि कुछ लोग गलत तरीके से विभाग के अंवर अभियन्ताओं/ सहायक अभियन्ता भी से मस्टर रोल पर कार्य संबंधी प्रमाण पत्र प्राप्त कर रहे हैं तथा न्यायालयों में ऐसे प्रमाण पत्रों के आधार पर विवाद लगा रहे हैं। यह भी तथ्य प्रकाश में आया है कि कुछ विभागीय अवर अभियन्ता भी इस प्रकार के जाली प्रमाण पत्रों के निर्गत कर रहे हैं। पूर्व में भी इस कार्यालय के पत्रांक 42-मुथेअब/ दि० 10.1.90 द्वारा क्षेत्र के समस्त अधिकारियों के ऐसे प्रकरणों की प्राथमिकता के आधार पर जांच कर दोषी अवर अभियन्ताओं/ अधिकारियों के विरूद्ध कार्यवाही हेतु लिखा गया था। अतः यह स्पष्ट किया जाता है कि परिषद नीति के अन्तर्गत सेवा संबंधी किसी भी प्रकरण पर अधिशासी अभियन्ता स्तर से नीति के किसी भी अधिकारी/ कर्मचारी की किसी भी प्रकार के प्रमाण पत्र निर्गत करने का अधिकार नहीं है।

अतः अवर अभियन्ता/ सहायक अभियन्ता उपरोक्त प्रकार के तथा सेवा संबंधी अन्य किसी भी प्रकार के प्रमाण पत्र निर्गत करने के अधिकारी नहीं है और यदि उनके द्वारा इस संबंध में अभी तक कोई प्रमाण पत्र निर्गत किये गये है तो उन्हे जाली प्रमाण पत्रों की श्रेणी में रखकर अवैध माना जाये। यह भी अपेक्षा की जाती है कि उनके समस्त अधिशासी अभियंता, अधिक्षण अभियन्ता इस संबंध में अपने अधीनस्थ खंडो/ मंडलों के संदर्भ में व्यक्तिगत रूचि लेकर जांच कर वांछित विभागीय कार्यवाही आरम्भ करने तथा परिषद को इस प्रकार से हो रही वित्तीय हानि को रोकने के लिए सभी संभव प्रयास करेंगे।"

9. Placing reliance upon aforesaid, it was contended that the entire story cooked up by the workman regarding his appointment was contrary to the Departmental Circulars and, therefore, the question framed in the adjudication case be decided against the workman.

10. The matter was referred to the Labour Court to answer the Reference as to whether termination of services of the respondent w.e.f. 21.03.2006 from the post of Sub Station Operator was appropriate and/or lawful, if not, what benefit/relief the workman is entitled to.

11. The Labour Court, by impugned award dated 19.10.2015 arrived at a conclusion that the documents filed by the workman could not be disputed and, therefore, termination of his services was contrary to the provisions of the Act-1947, particularly, Section 6-N of the Act and, therefore, the workman was directed to be reinstated with continuity in his past services, 40 % salary for the unserved period and full salary w.e.f the date of award. Cost of Rs.1500/- was also awarded.

12. The contention of learned counsel for the petitioner is to the effect that since appointments in the Department are made after holding rigorous selection process as per the Service Regulations (referred to hereinabove), the respondent no.4 could not claim any relief as no letter of appointment was ever issued to him, he was neither appointed nor paid any remuneration and that since the Department itself was created in the year 1991 there was no question of appointing the respondent in the year 1986. It was also argued that even if the contention of the workman was accepted, his status was, even as per his own case, that of a "daily wager" which did not fall within the definition and parameters of "workman" and, therefore, the award is illegal. It was further argued that even by looking to the evidence led by the workman, following is the position with regard to his working; particularly as per document W-19 which is alleged Attendance Register.

Exbt.

 
    Date
 
Period of Employment
 
No proof of    employment
 

 
26.07.86
 
11.07.86 to 22.07.86
 
23.07.86 to 09.11.87 (for one year)
 

 
12.07.88
 
10.11.87 to 02.12.87
 
03.12.87 to 05.02.92 (for 4 years 3 months)
 

 

 
06.02.92 to 29.02.92
 
01.03.92 to 14.07.05 (for 13 years) service break
 

 

 
15.07.05 to 04.09.05
 
Finding of conti. Employment 11.7.86 to 20.3.06. perverse
 

 

 
05.09.05 to 16.11.05
 

 
Documents are forged yet it appears that he hardly worked 15.07.05 to 20.03.06 (8 months only). Without completing 240 days 6-N does not apply. Not entitled to any relief.
 

 

 

 
17.11.05 to 20.01.06
 

 

 

 
21.01.06 to 20.03.06
 

 

 

 

13. In the light of the aforesaid facts, it was argued that the award directing reinstatement with continuity in past services alongwith arrears of salary is thoroughly unsustainable and the findings recorded by the Labour Court are perverse. In support of his submissions, learned counsel for the petitioner has placed reliance upon judgments of Supreme Court in the cases of Deputy Executive Engineer v. Kuberbhai Kanjibhai reported in (2019) 4 SCC 307, State of Uttarakhand v. Raj Kumar reported in 2019 SCC OnLine SC 16, Assistant Engineer, Rajasthan Development Corporation & Anr. v. Gitam Singh reported in (2013) 5 SCC 136, Range Forest Officer v. S.T. Hadimani alongwith State of Kartnataka & Anr. v. S.T. Hadimani reported in (2002) 3 SCC 25 and State of U.P. & Anr. v. Chhunna Lal & Anr. reported in 2019 SCC OnLine All 4262.

14. A counter affidavit has been filed by respondent no.4 and the stand taken therein is that the Department did not produce any evidence contrary to the case of the workman; that the contention of the Department regarding Service Regulations etc. or the case of State of Karnataka v. Uma Devi reported in (2006) 4 SCC 1 was unconcerned and unconcerned with the disputes arising out of Act-1947. The defense taken is that Labour Court has rightly passed award on the basis of material placed before it and, therefore, it does not call for any interference. It is further pleaded that since the oral termination was made in violation of the provisions of Act-1947, there was no illegality in awarding reinstatement with backwages and past continuity in service. In support of this submissions, learned counsel for the respondent no.4 has placed reliance upon following Authorities:-

(a). Civil Misc. Writ Petition No.1110 of 1986 (U.P. State Electricity Board & Anr. v. P.O. Labour Court, Gorakhpur & Anr.);

(b). Gammon India Limited v. Niranjan Dass reported in (1984) 1 SCC 509;

(c). Management of M/s. Willcox Buck Well India Ltd. v. Jagannath & Ors. reported in AIR 1974 Supreme Court 1166;

(d). Bhagwati Prasad v. Chandramaul reported in AIR 1966 Supreme Court 735;

(e). Ram Sarup Gupta (dead) by L.Rs v. Bishun Narain Inter College & Ors. reported in AIR 1987 Supreme Court 1242;

(f). Surendra Kumar Verma & Ors. v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi & Anr. reported in (1980) 4 SCC 443;

(g). Sudarshan Rajpoot v. Uttar Pradesh State Road Tranport Corporation reported in (2015) 2 SCC 317;

(h). Punjab Land Development & Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour Court, Chandigarh & Ors. alongwith Divisional Controller, Maharashtra State Road Transport Corporation, Amravati v. Chandrashekhar Maribhau Deshmukh & Anr. reported in (1990) 3 SCC 682;

(I). U.P. Drugs & Pharmaceuticals Co. Ltd. v. Ramanuj Yadav & Ors. reported in (2003) 8 SCC 334;

(j). Devinder Singh v. Municipal Council, Sanaur reported in (2011) 6 SCC 584;

(k). R.M. Yellatti v. Assistant Executive Engineer reported in (2006) 1 SCC 106.

15. Now discussing the legal position as referred to in the Authorities cited by the petitioner-Department, the Supreme Court in Deputy Executive Engineer (supra) has held that, in case, the respondent worked as "daily wager" hardly for few years, reinstatement could not be an automatic consequence. The Supreme Court relied upon its judgement in the case of BSNL v. Bhurumal reported in (2014) 7 SCC 177 with specific reference to paragraphs 33, 34 and 35 which are reproduced as under:-

"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 (2006) 4 SCC 1]. Thus when he cannot claim regularisation and he has no right to continue even as a daily­wage 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."

16. The Supreme Court took similar view in the case of State of Uttarkhand (supra) by placing reliance upon the same judgement of BSNL v. Bhurumal (supra). In the case of Assistant Engineer, Rajasthan Development Corporation & Anr. (supra), the Apex Court, after placing reliance upon various Authorities on the subject directed award of compensation of Rs.50,000/- as sufficient to meet the ends of justice in the light of the fact that daily wager has worked for a very short period. Learned counsel for the petitioner has laid much emphasis on the judgement of Supreme Court in the case of Range Forest Officer (supra) and argued that mere filing of an affidavit by the workman cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that he had worked for 240 days in a year. In 'paragraph 3' of the said judgment, the Supreme Court observed that 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 and on this ground, the award was interfered with. The Supreme Court in the case of State of U.P. & Anr. v. Chunna Lal & Anr. (supra) after discussing the issue of reinstatement with backwages, allowed the writ petition filed by the State observing that the workman had failed to discharge the burden to prove his case of 240 days by leading cogent evidence and award was found to be unsustainable and was, accordingly, set aside.

17. 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 twelve calendar months 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.

18. 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.

19. 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.

20. 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.

21. 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/-.

22. 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/-

23. 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/-.

24. 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.

25. 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.

26. 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.

27. 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.

28. Now dealing with the Authorities cited by the learned counsel for the respondent-workman, the Supreme Court, in the case of Surendra Kumar Verma (supra), held that in case termination was contrary to the provisions of Industrial Law, reinstatement with backwages should be ordered. In Sudarshan Rajpoot (supra), the Apex Court held in paragraphs 23, 24 and 25 as follows:-

"23. Further, the reliance placed upon the decision of this Court on Uma Devi (supra) case by the High Court to reverse the finding of fact recorded in the award in favour of the workman in answering the points of dispute in the negative, is not tenable in law in view of the judgment of this Court in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556, wherein, this Court after adverting to Uma Devi's case (supra) at para 36, has held that the said case

"does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of the Schedule IV where the posts on which they have been working exist."

Further, this Court held that

"36.....Uma Devi's case cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of the Schedule IV is established."

24. We are of the opinion that the view taken in Maharashtra State Road Transport Corpn. & Anr.(supra) at para 36 after distinguishing Uma Devi's case is the plausible view. Therefore, we have to hold that the finding of the High Court in setting aside the finding of fact recorded by the Labour Court in its award by applying Uma Devi case (supra) is wholly untenable in law. Therefore, the same is set aside by this Court.

25. This Court in the later judgment in the case of Hari Nandan Prasad v. Food Corporation of India: (2014) 7 SCC 190, after adverting to the law laid down in U.P. Power Corpn. Ltd. v. Bijli Mazdoor Sangh (2007) 5 SCC 755 and Maharashtra State Road Transport Corpn. & Anr. (supra) wherein Uma Devi's case is adverted to in both the cases, held that on a harmonious reading of the two judgments, even when there are posts available, in the absence of any unfair labour practice the Labour Court cannot give direction for regularisation only because a worker has continued as daily-wage worker/ad hoc/temporary worker for number of years. Further, such a direction cannot be given when the worker concerned does not meet the eligibility requirement of the post in question as per the recruitment rules."

29. By relying on the aforesaid Authority, the submission of learned counsel for the respondent is that whatsoever arguments were advanced by the petitioner-Department regarding alleged appointment in violation of the Service Regulations and/or number of judgements passed by the Supreme Court in the case of State of Karnataka v. Uma Devi (supra), are liable to be discarded as the case of Uma Devi (supra) cannot be held to have over-ridden the powers of the Industrial and Labour Courts in passing appropriate award.

30. The jugdment of Punjab Land Development & Reclamation Corporation Ltd. Chandigarh (supra) was on the point of elasticity of the definition of retrenchment and it was held that whatever words are used in the Statute, the same have to be given their literal meaning and any other interpretation would not be according to law. The Apex Court in the case of U.P. Drugs & Pharmaceuticals Co. Ltd. (supra) held that after the workman had worked for more than 240 days in earlier years and even though during the year of his retrenchment, he had not worked for 240 days, he would be deemed to be in continuous service and his retrenchment would be violative of the provisions of Industrial Law. The Supreme Court's decision in the case of Devinder Singh (supra) is on the point that even daily wager cannot be discriminated while considering their case under the Industrial Law as the definition of workman means any person including an apprentice employed in any industry to do any manual, un-skilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied and includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of the dispute. The Supreme Court held that source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding as to whether or not a person is a workman under the Act.

31. In R.M. Yellati (supra) in 'paragraph 17', the Supreme Court held that it is a burden upon employer to lead evidence regarding services of the workman as the workman can only call upon the employer to produce before the Court, nominal muster roll for the given period, the letter of appointment or terimination, if any, the wage register, attendance register etc. Other judgments of U.P. State Electricity Board & Anr., (supra), Gammon India Limited (supra) and Management of M/s. Willcox Buck Well India Ltd. (supra) are also on the point that when termination is found to be contrary to the provisions of Industrial Act, relief of reinstatement of the workman with continuity in services and backwages is just and proper.

32. Learned counsel for the respondent-workman has also vehemently argued that the case of the petitioner is contrary to the stand taken before the Labour Court. It is argued that the Department had alleged in the written statement that the workman had never worked prior to 21.03.2006 on any post, however, the case was argued, as if, a daily wager who had worked for certain period of time, could not be reinstated with backwages and continuity in service. It was also argued that relief should be founded on pleadings led by the parties and whenever the question about lack of pleading is raised, the Court should find out whether in substance, the parties knew the case and the issue upon which they went to trial. The decisions of Supreme Court of Ram Sarup Gupta (dead) by L.R.s (supra) and Bhagwati Prasad (supra) are on the point of pleadings and evidence of parties.

33. I have heard learned counsel for the parties and perused the record. I find that award of the Labour Court is based upon the fact that the workman had produced certain documents establishing his work in the Organization and, in the opinion of the Labour Court the Department could not rebut the same. Certain certificates as well as attendance register were considered by the Labour Court to arrive at a conclusion that the workman had been employed and worked in the Organization. However, I find that the Labour Court has not considered the documents filed by the Department, i.e. to say that mode and manner of appointing persons, the ban put on appointments in 1979, subsequent creation of the Department in 1991, affidavits filed by the Officers stating that they had never taken any work from the workman nor was any payment made by them to the workman nor did the Labour Court consider the cross-examination of the Officials whereby signatures on the Certificates were specifically denied by them. The Labour Court further failed to appreciate that for making an award for reinstatement and backwages with continuity in services, mere finding that oral termination was not according to law would not ipso facto lead to a conclusion that the workman should be reinstated with backwages and continuity in service. Neither there is any finding to the effect that the workman was not gainfully employed after 2006 nor did the Labour Court examine the period for which the workman allegedly rendered his services. In fact, the award is simply based upon alleged non-rebuttal by the Department as against the case set up by the workman, although I find that the Department by "tooth and nail" opposed the claim of the workman by leading cogent evidence, both oral and documentary, but the same has not been given due consideration by the Labour Court.

34. The question of gainful/non-gainful employment/engagement is considered in his statement dated 14.12.2011 wherein the respondent-workman took contradictory stand that is to say that, on one hand, he stated that after termination of his services, he was unemployed, on the other hand, in the same line, he stated that whenever he got work from the contractors, he used to perform the same and, therefore, it is not a case where workman was thoroughly unemployed and, hence, on this score, the relief of reinstatement with backwages or continuity in service would not be appropriate.

35. 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, inasmuch as, in the counter affidavit filed in the year 2016, the age of the respondent no.4 was described as 53 years and, therefore, as of now, he must have attained the age of superannuation and in view of the same, it would not be just and proper for this Court to direct for reinstatement as reinstatement after attaining the age of superannuation would not be in accordance with law. For this reason also, impugned award requires modification in terms of granting just and proper compensation.

36. In view of the above facts and considering the ratio of aforesaid authorities cited at the Bar, the writ petition is allowed in-part. The impugned judgment and award dated 19.10.2015 published on 30.01.2016 passed by the respondent No.2-Presiding Officer, Labour Court, Firozabad is hereby modified and relief of reinstatement with continuity in service and backwages is hereby denied. However, in totality of the facts and circumstances of the case, award of Rs. 2,00,000/- as lumpsum compensation to the workman would meet the ends of justice.

37. Accordingly, a Writ of Mandamus is issued to the petitioner to make payment of sum of Rs.2,00,000/- to the respondent no.4-workman within a period of one month from the date of production of certified copy of this order before the petitioner, failing which, it would be open for the respondent No.4-workman to get the award executed in accordance with law, and, in case, such execution proceedings are instituted, the same shall be concluded within a period of three months, thereafter.

Order Date:-19.05.2023

Jyotsana

(Kshitij Shailendra, J.)