Allahabad High Court
Deputy Project Manager U.P.State ... vs Udai Narain Tiwari And Anr. on 9 October, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:65006
Court No. - 8
Case :- WRIT - C No. - 1000818 of 2006
Petitioner :- Deputy Project Manager U.P.State Bridge Corp.Ltd. And Anr.
Respondent :- Udai Narain Tiwari And Anr.
Counsel for Petitioner :- Shishir Jain,Nishant Shukla,Ram Ratan
Counsel for Respondent :- C.Sc..,Dinesh Kumar Tripathi,Manoj Kumar Mishra,S.C.Sitapuri
Hon'ble Pankaj Bhatia,J.
1. Heard Sri Ram Prakash Gupta, learned counsel for the petitioners, Sri D.K. Tripathi, learned counsel for the respondent and perused the material brought on record.
2. The present writ petition has been filed challenging the award passed by the Labour Court on 20.09.2004, whereby after analyzing the evidence on record including the oral evidence, the Labour Court was of the view that the petitioner had worked for more than 240 days in a year from 1989 to September 1996 and was retrenched without following the mandate of Section 6-N, 6-P and 6-Q of the U.P. Industrial Disputes Act, 1947.
3. The counsel for the petitioners argues that the award passed by the Labour Court is bad in law as no evidence has been recorded that the petitioner as a workmen has been in continuous service for not less than one year and thus the finding that there was violation of Section 6 N is bad in law. He further argues that the onus of establishing that the relationship of a workmen and employer lies upon the workmen in the light law laid down in the case of Range Forest Officer Versus S.T. Hadimanim 2002 (1) SCR 1080. In view of the said, the submission of the counsel for the petitioner is that the award passed by the Labour Court is bad in law and deserves to be quashed.
4. The Counsel for the respondent on the other hand argues that not only did the petitioner established his relationship, he has also produces the documents which were exhibited as Ext. 7, Ext. 8, Ext. 12 and Ext. 13 in support of his contention that the petitioner was employed as a workmen, he argues that all these exhibits were duly examined by the Labour Court and based upon the said exhibits which were not controverted or discredited, the award has been passed. He further argues that the finding of fact recorded by he Labour Court is that petitioner had worked for more than 240 days in a calendar year and was in employment of the respondents for the period 1989 to September 1996. He further argues that it is well settled that the proceedings under Article 226 can go into the error of decision making and cannot be treated as an appeal against the award.
5. Upon hearing the counsel for the parties, and on perusal of the award which is impugned in the present petition, it becomes clear that the petitioner had challenged his retrenchment on the ground that despite the petitioner having worked for more than six years, his services were terminated without following the mandate of 6-N, 6-P and 6-Q of the U.P. Industrial Disputes Act. In support of his contention, the workmen had produced the documents in the form of letters written certifying that the petitioner was working with the respondent corporation. As the petitioner being workmen was not in control of any other documents which were possessed by the employer. The employer on the other hand had taken a stand that the documents relied upon by the workmen and exhibited were forged documents in terms of the statement given by one Mr. M.Z. Ansari, however, the Labour Court noticed that the said Mr. M.Z. Ansari was not even adduced as a witness on behalf of the management. It was further recorded that another witness D.W. 1, adduced by the management had in fact identified the signature of Mr. M.Z. Ansari on one of the letters, which was exhibited as Exhibit No. 10. After appreciating the evidence in the light of documentary and oral evidence and after noticing that the management had failed to adduce the evidence of the person, whose signature was denied by the management, the Labour Court was of the view that the workmen had worked with the respondents for the period 1989 upto September 1996 and his services were terminated without following the mandate of Section 6-N, 6-P and 6-Q of the U.P. Industrial Disputes Act.
6. Coming to the submission of the counsel for the petitioner that the petitioner had not worked as a workmen for a continuous period of not less than one year referred to under Section 6-N, deserves to be rejected on the ground that a specific and clear finding was recorded by the Labour Court in favour of the workmen of having worked from the year 1989 up to year 1996. As regards the submission of the counsel for the petitioner based upon the judgment of the Supreme Court in the case of Range Forest Officer Vs. S.T. Hadimani (Supra), wherein the Supreme Court has expressed that once the claim of the workmen is denied by the employer, the burden of establishing that the workmen had worked for 240 days in a year preceding his termination, had to be discharged by the workmen. There should be no quarrel to the said position of law as explained by the Supreme Court. In the present case, the workmen had duly discharged his burden by producing the documents, which were exhibited. It is equally well settled that the exercise of power under Article 226 cannot be equated as an appellate power and the same is confined to the errors in the decision making process. No such error is evident from the award impugned in the present petition, thus the present writ petition deserves to be dismissed and is accordingly dismissed. The benefits to which the petitioner is entitled by virtue of award shall be paid to the petitioner including all the accrued benefits, however, the amount paid to the workmen under Section 17 B, during the pendency of the present writ petition shall be deducted.
7. The submission of the counsel for the respondent that the award of 25% back wages should be amended and and at least 50% back wages should be awarded, needs to be repelled as admittedly workmen had not worked during this period and further there is no challenge to the award by the workmen before this Court.
Order Date :- 9.10.2023
Arun
