Uttarakhand High Court
Sunil Kumar vs Presiding Officer on 24 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 27 (MS) of 2012
Sunil Kumar. .................Petitioner.
-Versus-
Presiding Officer
and another. .........Respondents.
Present:
Shri M.C. Pant, Advocate for the petitioner.
Shri Suyash Pant, Standing Counsel for the State of Uttarakhand.
Shri Pankaj Miglani, Advocate for respondent no. 2.
Sri S.K.Mishra, J.
Date of Hearing and Judgment: 24.11.2021
1. Heard Shri M.C. Pant, Advocate for the petitioner, Shri
Suyash Pant, Standing Counsel for the State of Uttarakhand and
Shri Pankaj Miglani, Advocate for the respondent no. 2.
2. Petitioner, in this case being a workman, has prayed for
issuance of writ of Certiorari quashing the impugned award
dated 07.09.2001 passed by Presiding Officer, Labour Court,
Dehradun in Adjudication Case No. 14 of 2000 and further to
quash the termination order dated 31.03.1999 (Annexure No. 2)
and to issue a writ of Mandamus to reinstate the petitioner with
all consequential benefits and back wages.
3. The facts of the case are narrated, date-wise, as follows:
On 02.12.1996 - The petitioner was initially appointed, on
probation, as Assistant to the Carpenter by respondent no.
2.
On 01.10.1998 - The period of probation was extended till
31.03.1999 by the respondent no. 2.
On 17.03.1997 - The petitioner made complaint to SSP, DLC
and DM.
On 31.11.1998 - All the Class IV employee working with
respondent no. 2 raised their seven points' demand before
DLC, Dehradun.
On 20.01.1999 - The Presiding Officer, Labour Court
deprived the petitioner from the benefit of 5th Pay
Commission.
On 31.03.1999 - Services of the petitioner were terminated.
On 17.01.2000 - Reference was made.
On 07.09.2001 - Impugned award was passed by Labour
Court in Adjudication Case No. 14 of 2000.
4. The workman, in his claim statement dated 05.07.2000, has
specifically raised a ground that he had completed 240 days'
continuous service and hence, his service cannot be terminated
without complying with the mandatory provisions of Section 6-N
of the Uttar Pradesh Industrial Disputes Act, 1947. The parties led
their evidence both oral and documentary and finally, the
impugned award was passed on 07.09.2001 dismissing the claim
of the workman on the ground that he was on probation and was
a termination simplicitor, hence, the respondent no. 2, herein, has
not committed any illegality in terminating the services of the
petitioner.
5. It may be appropriate to note here that the Labour
Commissioner, Dehradun has referred the industrial dispute to
the Labour Court for determining the following terms of
reference:
"D;k lsok;kstdksa }kjk vius deZpkjh Jh lquhy dqekj iq= Jh Nsnhyky]
lgk;d dkjisUVj dks lsok;sa fnukad 31-03-1999 ls lekIr fd;k tkuk
[email protected]/kkfud gS ;fn gk¡ rks oknh Jfed D;k [email protected]'k ikus dk
vf/kdkjh gS ,oa vU; fdl fooj.k ds lkFk^^
The aforesaid reference is translated in English by this
Court, which reads as follows:
"Whether the termination of the workman - Sunil Kumar,
son of Chedi Lal, Assistant to Carpenter by Management on
31.03.1999 was illegal and unconstitutional. If yes, to what relief
workman is entitled for."
6. Learned counsel for the respondent no. 2 has drawn
attention of this Court to the additional affidavit filed by
respondent no. 2 in pursuance of the direction given by this
Court on 27.10.2021. It is apparent from the affidavit filed by the
respondent no. 2 that followed no specific procedure in assessing
that petitioner was not competent to discharge his duties and his
services were terminated only on the ground that the Carpenter,
with whom he was attached, made certain complaints regarding
his conduct. It is also apparent from the affidavit that no fresh
appointment has been made to the post of Assistant to the
Carpenter, however, another Class IV employee has been
attached to the Carpenter to assist him in his work.
7. It is not disputed in this case that the petitioner had worked
as Assistant to the Carpenter for 2 years 3 months and 29 days i.e.
from 02.12.1996 to 31.03.1999. Thus, in such a situation, the
provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947
shall be applicable in this case.
8. Learned counsel for the petitioner has brought to the notice
of this Court, the judgment rendered by the Coordinate Bench of
this Court in Writ Petition No. 1427 of 2017 (Uttarakhand Jal
Sansthan and another Vs. Presiding Officer, Labour Court and
another) decided on 05.10.2021 wherein the learned Single Judge
took into consideration the definition of "workman" as defined in
Section 2 (z) of the U.P. Industrial Disputes Act, 1947 and came to
the conclusion that a person appointed on probation is also a
workman and is entitled to the protection available to the
workman. The learned Single Judge has also relied upon the
judgment of Hon'ble Allahabad High Court in the case of Micro
Abrasives (India) Ltd., Dhampur, District Bijnore Vs. Dhanvir
Singh and another reported in 2001 UPLBEC 669 and came to
the conclusion that the said Act is applicable to such disputes
arising in the State of Uttarakhand.
9. It is also apparent from the records that though the
workman has raised a specific plea about non-compliance of
Section 6-N of the Uttar Pradesh Industrial Disputes Act, 1947,
there are no findings by the learned Presiding Officer, Labour
Court on this score and he directed himself to decide whether a
probationer should be allowed to continue or not? It is not
disputed in this case that in the present retrenchment, the
requirements as envisaged in Section 6-N of the Uttar Pradesh
Industrial Disputes Act, 1947, has not been complied with. Hence,
the termination simplicitor, as has been termed by the learned
Presiding Officer, Labour Court, Dehradun is illegal, on the face
of the record. However, instead of passing an order of
reinstatement, this Court is of the opinion that since more than 22
years are elapsed from the date of illegal termination of the
workman and there will a heavy financial burden on the
Management, coupled with the fact that some employees may
have to be removed from services and in consonance with the
present trend of the judgments passed by the Hon'ble Supreme
Court in similar cases, a compensation of Rs. 4,00,000/- should be
paid to the petitioner in lieu of order of reinstatement. Thus, on
ultimate analysis, the writ petition is allowed. The award passed
by the learned Presiding Officer, Labour Court, Dehradun dated
07.09.2001 is hereby quashed.
10. It is further held that the termination order issued by
respondent no. 2 i.e. Principal of St. Josephs Academy, Rajpur
Road, Dehradun is illegal and violative of Section 6-N of the Uttar
Pradesh Industrial Disputes Act, 1947 and therefore, the
petitioner is entitled for compensation. Respondent no. 2 is
directed to pay a sum of Rs. 4,00,000/- as compensation to the
petitioner within a period of two months hence, failing which it
shall carry a penal interest @ 8% per annum from the date of
termination i.e. 31.03.1999 till the actual payment of
compensation.
11. There shall be no order as to costs. Urgent certified copy of
this order be supplied to the learned counsel for the parties, as
per Rules.
(S.K.Mishra)
Judge
SKS
