Heard Shri Vijay Ratan Agrawal, learned senior counsel assisted by Shri Piyush Bhargava, learned counsel for the employer and Shri K.P.Agarwal, learned senior counsel assisted by Miss Pooja Srivastava, learned counsel for the workmen. First writ petition has been filed by the employer and the second writ petition by eight concerned workmen. Learned counsel for both the parties stated that as the second writ petition by the workmen is for implementation of the award which has been challenged by the employer in the first writ petition hence after decision on the first writ petition, second writ petition will automatically become infructuous.
The first writ petition by the employer is directed against award dated 1.2.2007 given by Presiding Officer, Labour Court (U.P.), Allahabad in eleven adjudication cases numbered as adjudication case nos. 17 of 2000 to 26 of 2000 and adjudication case no.69 of 1999.
The workmen had complained that their services had wrongly been terminated on the following dates:-
Sl.No Name of the workman Date of termination
1. Banwari Lal (Respondent no.3) 13.11.1997
2. Ramanand (Respondent no.4) 1.10.1997
3. Mohan Singh (Respondent no.5) 29.4.1999
4. Rajendra Prasad Sen (Respondent no.6) 20.1.1998
5. Ramesh Kumar Yadav(Respondent no.7) 13.11.1997
6. Surya Prakash Yadav (Respondent no.8) 6.1.1998
7. Shrerram Patel (Respondent no.9) 22.9.1997
8. Arvind Kumar Patel (Respondent no.10) 22.11.1997 Through the impugned award three more adjudication cases were decided i.e. adjudication case no. 20 of 2000 in respect of workman Chotey Lal Yadav, adjudication case no.22 of 2000 in respect of workman Mohammad Sayden Hasnain and adjudication case no.23 of 2000 in respect of workman Ram Shringar. These workmen have neither been impleaded as respondents in the first writ petition nor petitioners in the second writ petition. The adjudication case in respect of workman Banwari Lal was made the leading case. Earlier the award was given on 9.8.2002 through which the employer was directed to pay compensation to the workmen instead of reinstatement. The said award was challenged by both the parties through four writ petitions the leading one being writ petition no.19855 of 2003 - Banwari Lal and others vs. Presiding Officer, Labour Court, U.P., Allahabad and another. The writ petitions were allowed on 10.6.2005 and the matter was remanded to the Labour court. After remand the award was given which is challenged through this writ petition. The relevant portion of earlier judgment of this court dated 10.6.2005 is quoted below:
"From the pleadings of the parties and the award it is apparently clear that the workmen have not completed 240 days service in the previous calendar year. Therefore, the applicability of Section 6-N in the facts of the present case does not arises nor the counsel for the workmen has made any attempt to establish the right of the workmen on the ground of violation of Section 6-N before this Court.
So far as the issue of adoption of unfair labour practice by the employers is concerned, if entire case set up by the workmen is accepted, it would only mean that the employers had a requirement of certain number of employees in respect of permanent nature of work and instead of continuing the same set of employees, regularly the employers decided to take work on rotational basis from amongst the petitioners.
Thus the issue, which should have been considered by the Labour Court. In the facts of the case, was as to how many workmen were actually required to discharge the work, which was permanent in nature, against which the petitioners were appointed on rotational basis. The Labour Court was also required to decide as to which of the employees were appointed at the first instance as workman for performing the permanent work in as much as it is only against such wormen who were appointed first that the allegations of unfair labour practice, having been adopted by the employers, could have been sustained and the relief granted. The aforesaid observation has been made in the back ground that if some of the petitioner were appointed after the earlier appointees were illegally refused work, the appointments of subsequent employees itself become illegal.
From the award of the Labour Court it is apparently clear that the Labour Court has not appreciated the aforesaid aspect of the matter and has failed to record any finding in respect of the issue. Consequently, it cannot be said in the facts of the case that in respect of all the workmen the management has adopted an unfair labour practice so as to entitle them the relief of reinstatement under the Industrial Disputes Act. This Court cannot loose sight of the fact that if the employers have adopted an unfair labour practice, it would render the entire actions of the employers as illegal in as much as unfair labour practice vitiates all the actions of the employers. Reference AIR 1996 S.C. 132 (Para-7).
It is needless to point out that the issue, as to whether the employers adopted unfair labour practice, must be determined by the Labour Cort on the evidence to be lead and on material being brought on record to establish as to whether appointment to the workmen on rotational basis was bona fide or not."
In the earlier award dated 9.8.2002 damages of different amounts were awarded to different workmen ranging from Rs.5,000/- to Rs.10,000/-.
It has been asserted by learned counsel for the employer and admitted by learned counsel for the workmen that after remand of the matter by this court on earlier occasion, workmen did not adduce any fresh evidence. In the writ petition by the employer through order dated 1.11.1007 it was held that there was no case for grant of interim relief. Through order dated 16.12.2008 it was directed that the matter should come up for hearing in the second week of February, 2009 and until then the employer shall implement the award by giving the respondent-workmen engagement on daily basis.
The main arguments of learned counsel for the employer are as follows:-
(1) In the earlier remand order this High Court permitted the parties to adduce additional evidence, however, workmen did not adduce any additional evidence hence Labour court could not record findings contrary to the findings earlier recorded by it.
(2) The question as to whether the employer had indulged in unfair labour practice was not referred to the Labour court.
(3) Even if it is assumed that employer had indulged in unfair labour practice still on that ground reinstatement could not be directed.
(4) That the workmen concerned were employed as and when occasion arose due to heavy demand on the basis of more than scheduled contracts obtained by the employer.
The main arguments of learned counsel for the workmen are that firstly the action of employer falls within the definition of unfair labour practice and secondly, if it is proved that employer was indulging in unfair labour practice then it is self evident that the termination orders which are result of unfair labour practice will have to be set aside.
In the impugned award it is mentioned that one workman was for the first time employed in January 1981, two in 1982, one in 1985, one in 1987, one in 1990, one in 1994 and one in 1996. It is also mentioned in the impugned award that the work was being rotated among the 11 workmen only whose cases were before the labour court. Ultimately, labour court directed reinstatement but without backwages.
The Supreme Court in Biecco Lawrit Ltd Vs. State of West Bengal. A.I.R. 2010 S.C.142 has held in para 24 that after remand by the High Court, the Industrial Tribunal can not reverse its own decision (earlier taken) on the same evidence. The precise sentence is as follows:
"The tribunal also erred in reversing its own decision on the same evidence for which we fail to see as to how the same forum can appreciate the same evidence differently"
Section 6-R of U.P.I.D. Act provides that except for settlement of Industrial Dispute or right of a workman under minimum wages Act, rights and liabilities of employers and workmen in so far as they relate to retrenchment shall be determined in accordance with the provisions of Section 6-J to 6-Q. Section 6-R is quoted below:
Effect of laws inconsistent with Sections 6-J to 6-Q - (1) The provision from Sections 6-J to 6-Q shall have effect notwithstanding anything inconsistent therewith contained in any other law (including Standing Orders) made under the Industrial Employment (Standing Orders) Act, 1946:
Provided that nothing contained in this Act shall have effect to derogate from any right which a workman has under the Minimum Wages Act, 1948, or any notification or order issued thereunder or any award for the time being in operation or any contract with the employer.
(2) For the removal of doubts, it is hereby declared that nothing contained in Sections 6-J to 6-R shall be deemed to affect the provision of any other law for the time being in force so far as that law provides for the settlement of industrial dispute, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of Sections 6-J to 6-Q.
Accordingly, even if it is assumed that engagement of the workman for short periods even against permanent requirement was unfair labour practice still setting aside retrenchment and direction for reinstatement was not warranted as violation of none of the provisions of Sections 6-J to 6-R of U.P. I.D. Act was either alleged or involved.
Now the trend of the Supreme Court authorities is that even if some essential provisions of I.D. Act or U.P. I.D. Act particularly Section 25-F of the former or Section 6-N of the latter are violated still in suitable cases instead of reinstatement, reasonable damages may be awarded to the workman concerned vide AIR 2006 SUPREME COURT 2113 "Nagar Mahapalika v. State of U. P."
AIR 2006 SUPREME COURT 2427 "Haryana State Electronics Devpt Corpn v. Mamni"
AIR 2008 SUPREME COURT 1955 "Sita Ram v. Moti Lal Nehru Farmers Training Institute"
AIR 2009 SUPREME COURT 3004 "Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another"
AIR 2010 Supreme Court 2140 Senior Superintendent, Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and others.
Incharge Officer Vs. Shankar Shetty 2010(9) JT 262.
The Supreme Court in U.P. State Brass Ware Corporation Vs. Udai Narain Pandey, A.I.R. 2006 Supreme Court 586 has held that equity and justice demand that the workman must be given what is due in equity and not what is due in law.
Learned counsel for the workman has cited some authorities on unfair labour practice. One is reported in M.P. Text Book Corporation Vs. KK Pancholi ,1998(80) FLR 54 holding that engaging employees for 89 days successively with intermittent breaks is an act of unfair labour practice. The other authority is reported in M/s Handloom Intensive Development Corporation Vs. Zaheeruddin Ansari 1993(66) FLR 382 holding that appointment may have been labelled as an ad hoc, however, if work was otherwise permanent, appointment would be deemed to last throughout the year. The next is reported in L.H. Sugar Factories and Oil Mill Vs. The State of U.P. and others 1961 FLR 421 holding that if the action of the management promoting the employees is discriminatory and amounts to victimisation then it can be set aside. The last authority cited is of Supreme Court reported in Hindalco Industires Ltd. Vs. Association of Engineering Workers reported in 2008(117) FLR 891 holding that the action of the company treating the employees of the canteen as contract workmen was unfair labour practice and company could be directed to absorb and make the canteen employees as permanent employees of the Company.
Learned counsel for the employer has argued that the employer is a company manufacturing transformers and switch gears and it has got about 1000 permanent workmen, however, few workmen were engaged on casual basis when the work pressure increased but for a short while. Learned counsel has further argued that engaging casual workers is not unfair labour practice and in this regard has cited a Supreme Court authority reported in Firestone Tyre and Rubber Co. Ltd.Vs. Workmen 1981(43) FLR 258. In the said authority it has also been held that labour court can not travel beyond reference.
Unfair labour practices are provided under Chapter V-C of Industrial Dispute Act. Section 25-T prohibits unfair labour practice and Section 25-U makes that punishable. Chapter 5-C contains only these two sections which has been inserted by Act 46 of 1982 w.e.f. 21.08.1984. Learned counsel for the employer has also cited an authority of Bombay High Court reported in Bajaj Auto Ltd Vs. R.B. Savant and others, 2000(84) FLR 524 . In this authority it has been held that several employees need not be of a permanent nature and the employment can be casual badli or temporary and none such employment by itself is an unfair labour practice. In this authority it has also been held that some employers keep even 25% additional work force at their back and call to be instantly employed in the place of a permanent employee who remains absent or who goes in long or short leave. The next authority cited by the employer is reported in English Electric Company Ltd. Vs. I.T. Madras, 1986(1) LLJ 141 holding that possibility of casual workman not being given work is implicit in the casual nature of his employment.
At present the position in our country is that there is not sufficient work for all the persons seeking employment. In such a situation too much insistence on continuing each and every workman/employee even if he is employed for a short while may be ideal but is not pragmatic. In the face of large scale unemployment rotating some jobs at short intervals among different people may be a better option than to confine the jobs to few for a very long time.
Comparative success of Mahatama Gandhi National Rural Employment Guarantee Act (MNREGA) demonstrates the utility of this approach.
In fact the demand of the workman was that they must be given permanent work by the employer. The workmen were engaged casually for the first time in 1981,1982,1985,1987,1990,1994 and 1996.
Accordingly, the workers had raised the dispute quite late which itself is now fatal vide "Assistant Engineer, C.A.D., Kota v. Dhan Kunwar" AIR 2006 SUPREME COURT 2670, "Chief Engineer, Ranjit Sagar Dam v. Sham Lal" AIR 2006 SUPREME COURT 2682 and "State of Maharastra v. Dattatraya Digambar Birajdar AIR 2007 SUPREME COURT 3056."
Learned counsel for employer stated (on the date on which arguments were heard) that all the 9 workmen were being paid about Rs.6000/- per month under impugned award and without any work each workman had been paid about Rs.60,000/- total about Rs.5 lacs.
Accordingly first writ petition filed by the employer is allowed. Impugned award directing reinstatement is set aside and substituted by the direction to the employer to pay reasonable damages/compensation to each workmen. The amount which has till date been paid to each workmen under the impugned award shall be treated to be a reasonable compensation.
Accordingly, no workmen is either entitled to anything more nor liable to return any amount out of the amount which has been paid to him under the impugned award.
Consequently, second writ petition by the workers is dismissed as infructuous.
Order Date :- 8.3.2011 vkg