Uttarakhand High Court
Shiv Kumar Singh vs The Prescribed Authority And ... on 18 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 12016 of 1996
Shiv Kumar Singh ...Petitioner
Vs.
The Prescribed Authority and others ...Respondents
Advocates : Mr. Ashish Joshi, Advocate, for the petitioner
Mr. Suyash Pant, Standing Counsel, for the State
Mr. Subhash Upadhyay, Advocate, for the private respndents
Hon'ble Sharad Kumar Sharma, J.
The petitioner is a workman. He had sought a reference for
adjudication of an Industrial Disputes under Section 4K of the
U.P. Industrial Disputes Act, by raising his claim before the
learned labour Court, as against the order of termination of his
services dated 14.08.1989, by preferring the same on 24.10.1990.
The said reference, which was sought for adjudication by the
petitioner, was numbered as an Adjudication Case No. 171 of
1991, which has been decided by the learned Labour Court by
answering the question, referred to against the
petitioner/workman, by the impugned award dated 30.06.1995,
which is presently under challenge in the present Writ Petition.
2. A very short question, which has been attempted to be
established before this Court by the learned counsel for the
petitioner is that the reference of adjudication, as had been made
by the State vide its Govt. Order No. 2513(HI/36) dated
27.08.1990, which was formulated to the following effect:-
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3. It was from the pretext that the order of termination of
services of the petitioner as a salesman, was bad because of the
non-compliance of the provisions contained under Section 6N, of
the Industrial Disputes Act, as there was no prior notice ever
given to him or the salary in lieu thereof prior to the dispensation
of his services w.e.f. 14.08.1989, was tendered by the employer
respondent on the petitioner workman.
4. The argument of the learned counsel for the petitioner is
from the perspective that, the so-called observations, which has
been made in the impugned award, which is under challenge
before this Court, where it has been observed and a finding has
been recorded, that the employer did issued a notice under
Section 6N of the Industrial Disputes Act to the petitioner
workman, on 15.07.1989, and in lieu thereof, the receipt of Rs.
1566/- dated 22.10.1989, which was also placed on record by
way of evidence, hence, the learned labour Court has observed
that the receipt dated 22.10.1989, of accepting the money, as
referred therein would amount to be a substantial rather a
complete compliance of notice, as it has been contemplated under
Section 6N of the Industrial Disputes Act, which was issued to
the petitioner. This fact is being attempted to be disputed by the
learned petitioner's counsel, on the ground that, the amount
remitted to the petitioner in pursuance to the notice dated
15.07.1989, and its receipt dated 22.10.1989, may not be treated
to be in strict compliance of the provisions contained under
Section 6N of the Industrial Disputes Act.
5. His submission is that, the remittance of an amount, due to
be paid in consonance to the notice which was issued or
contemplated under Section 6N of the Industrial Disputes Act,
cannot be a post-facto, to the act of dispensation of services and,
he further submits that the amount which was paid, along with
the notice dated 15.07.1989, the receipt of which was placed on
record being that of 22.10.1989, he tried to draw a distinction
from the view point that it was not an amount, which was due to
be paid as a wages, contemplated under Section 6N of the
Industrial Disputes Act. But the finding, which has been
otherwise recorded by the learned labour Court is, in fact, to the
effect that the notice under Section 6N of the Industrial Disputes
Act was issued to the petitioner on 15.07.1989, and the receipt on
record dated 22.10.1989, was in strict compliance of the
provisions contained under Section 6N of the Act, and hence the
dispensation of services of the petitioner w.e.f. 14.08.1989,
cannot be faulted off, on the pretext, that the same was defective
due to non-compliance of the notice under Section 6N of the
Industrial Disputes Act.
6. The distinction in the argument, which has been attempted
to be raised by the learned counsel for the petitioner, pertaining to
the effect of the notice, has been refuted by the learned counsel
for the respondent Mr. Subhash Upadhyay, on the ground that
this distinction about the effect of post-facto receipt of the
amount, by the petitioner vide the receipt dated 22.10.1989, or
the argument that the amount remitted by the notice dated
15.07.1989, was not in lieu of wages which was due to be paid
under Section 6N of the Act, in fact, is not a pleading, which has
been ever raised by him in his principal reference proceedings,
sought for nor in the written statement and hence, at this stage, in
a writ jurisdiction and that too, after two decades of litigation
after the institution of the writ petition, he cannot be permitted to
take that stand contrary and outside the ambit and scope of the
pleadings, which has been raised by the petitioner, in order to
carve out a new case altogether at this stage.
7. This Court is in agreement with the brevity of argument,
which has been extended by the learned counsel for the
respondent, that in a writ stage, Article 227 of the Constitution of
India, where the Court is exercising its extraordinary supervisory
jurisdiction, over the judgment and award of the subordinate
Courts, the Court cannot carve out a third case, which was not
even pleaded, proved or established by way of evidence before
the Court below itself, in order to create a distinction with regard
to the impact of the adjudication, which has been made by the
learned labour Court, while interpreting the impact of Section 6N
of the U.P. Industrial Disputes Act.
8. Since there happens to be specific finding, which has been
recorded by the learned labour Court, that the principles
contained under Section 6N of the Industrial Disputes Act, has
been complied with and that fact itself also stood established by
the placement of the receipt on record of receipt of money in lieu
of 30 days services, which has been contemplated under Section
6N, the impugned Labour Court's award, does not suffer from
any apparent error, which calls for any interference,
consequently, the writ petition lacks merits and the same is
accordingly dismissed.
(Sharad Kumar Sharma, J.)
18.03.2021
Mahinder/
