Uttarakhand High Court
Mr. Rajendra Dobhal vs Presiding Officer Labour Court ... on 8 November, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
WPMS No. 1846 of 2014
Vice Chancellor, Govind Ballabh Pant University of Agriculture
and Technology
..................Petitioner
Mr. Rajendra Dobhal, Senior Advocate assisted
by Mr. Lokendra Dobhal for the petitioner
-versus-
Presiding Officer Labour Court Kashipur, Dist. Udham Singh
Nagar and another
.........Respondents
Mr. Vijay Bhatt, Advocate for the respondents
Sri S.K.Mishra, J.
Judgment
08.11.2021
1. In this writ petition, filed under Article 226 read with
Article 227 of the Constitution of India, the Govind
Ballabh Pant University of Agriculture and Technology,
(herein after referred to as the management for
brevity) has assailed the award passed by the learned
Presiding Judge, Labour Court, Kashipur, Udham Singh
Nagar allowing the application filed by the respondent
no. 2 Adjudication Dispute No. 40 of 2008.
2. Facts of the case are as follows:-
i. The respondent no. 2 was engaged as a Generator
Operator on 01.02.2003 with the Management. He
worked for three years. Thereafter, the
Management entered into an agreement with an
outsourcing agency and the respondent no. 2 was
orally directed to work through the said agency.
ii. As per written instructions given by the agency on
several occasions he continued till 02.09.2005. On
02.09.2005, the contract of the outsourcing
agency came to an end and the respondent no. 2
was asked not to report to duty but no order of
termination was passed. Respondent no. 2 moved
to the Government and the Government i.e.
Deputy Labour Commissioner, Kumaon Regioin,
Haldwani made a reference under the Industrial
Dispute Act, 1947 and thereafter, the proceedings
were drawn up under Section 6N of the Act.
iii. The learned Judge Presiding Labour Court came to
a definite conclusion that there has been a
violation of the condition precedent to
retrenchment of respondent no. 2, as provided
under Section 6N of the aforesaid Act, therefore,
the Presiding Officer, Labour Court directed for
reinstatement of the respondent no. 2 along with
compensation of Rs. 50,000/-.
3. The learned counsel for the petitioner in essence raises
two issues. He would argue that the respondent no. 2
was not in the direct employment of the Management
and therefore, the provisions of the Industrial Dispute
Act and especially Section 6N of the Act will not be
applicable.
4. He would further argue that there is no material on
record to indicate that respondent no. 2 had actually
worked for 240 days in a year. Further, it is submitted
on behalf of the Management that in similar cases, the
Coordinate Bench of this Court though the conclusion
that violation of Section 6N of the Act did not pass any
award for reinstatement of the employees rather found
out via media of giving compensation, in view of the
fact that the workman worked only a few months/years
and the dispute relates to about 15 to 20 years ago.
5. First of all, in order to consider whether the respondent
no. 2 was an employee of the Management, this court
is of the opinion that the discussion taken up by the
learned Judge Presiding, Labour Court, Kashipur reveals
that respondent no. 2 was engaged on 01.02.2003, on
temporary basis to operate the generator and in April,
he was asked to work under a service provider. Service
provider contract came to an end on 02.02.2005 and
respondent no. 2 was also not allowed to work
thereafter. It was held by the Labour Court that the
respondent no. 2 was working directly under the
Management and was not an outsourced employee, so
that contention of the learned counsel for the petitioner
is not tenable, and therefore, not accepted.
6. The second contention is that he had not worked for
240 days. This is a factual aspect of the case. Though,
the learned Presiding Judge has not specifically given a
finding that actually, respondent no. 2 had worked for
240 days preceding his retrenchment, it is apparent
from the tenor of the judgment and also the various
facts described in the judgment impugned that he
worked for the statutory period and he discharged his
duty as a Generator Operator from 01st April 2003 to
2nd September 2005. So that contention also of the
counsel appearing for the management is not tenable.
7. However, the third contention that the respondent no. 2
had only worked for 2 years 7 months giving direction
for reinstatement as a generator operator will create
un-surmountable hardships to the Management as well
as to the other employees, who have been engaged
after his termination to the execute of the work
concerned requires consideration. It is also argued that
since he has not worked for so many years for the
Management, the Management should not suffer
because a lot of public money is invested in such
institution for imparting formal as well as vocational
education.
8. In that view of the matter, keeping in view the recent
trend of judgments, this Court comes to the conclusion
that a sum of Rs. 7,50,000/- should be paid to the
respondent no. 2 by the Management - petitioner for
violation of the Section 6(N) of the UP Industrial
Dispute Act, 1947, as has already been adopted by the
Legislative Assembly of the Uttarakhand State. A sum
of Rs. 7,50,000/- to be paid to the respondent no. 2 by
the petitioner within 3 months, failing which it will have
a penal simple interest @ 12% per annum from the
date 28.08.2006 i.e. the date of the reference made by
the Deputy Labour Commissioner to the Labour Court,
Kashipur till the actual payment. Accordingly, the award
is modified to the extent mentioned above and the writ
petition is allowed in part. There will be no order as to
costs.
9. Urgent certified copy of this order be granted on proper
application.
(S.K.Mishra)
Judge
A/-
