Chief Justice's Court
Case :- WRIT - C No. - 209 of 1999 Petitioner :- M/S Bundel Khand Industries Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.N.Tripathi Counsel for Respondent :- C.S.C.,S.N. Dubey
Hon'ble Govind Mathur,Chief Justice
None present for the petitioner.
This petition for writ is preferred to question correctness of the award dated 4th May, 1998 passed by the Labour Court, Agra in Award Dispute No.153 of 1990.
Facts of the case are that the appropriate government by a notification dated 16th March, 1990 referred an industrial dispute in terms that "whether the termination of the services of Sri Suresh Pathak, S/o Baij Nath Pathak, a skilled workman, with effect from 10th April, 1989 by his employer is just and/or valid? If not then for what relief and other consequential benefits is he entitled?".
As per the statement of claim preferred by the respondent-workman, he entered in service of the employer w.e.f. 1st October, 1980 and he was declared as a semi skilled workman on 13th March, 1982. He was further declared as a permanent employee by the employer. On 10th April, 1989 some dispute arose between the employer and other workmen about payment of wages. An agreement arrived between the parties on 13th April, 1989 and after some industrial unrest the industry resumed normal working on 14th April, 1989. Despite the agreement between the parties, the respondent-workman was not taken on duties, therefore, he raised an industrial dispute.
While contesting the claim made by the respondent-workman, the case of the employer-petitioner was that the workman left the service at his own on 10th April, 1989 and as such there was no termination from service by way of retrenchment. It was also stated that as per the agreement arrived between the parties on 14th May, 1989, the continuation of the workman was by way of fresh employment w.e.f. 15th May, 1989 and, therefore, the respondent-workman cannot be treated in continuous service of the employer.
Learned Labour Court after examining all aspect of the matter arrived at the conclusion that the services rendered by a workman cannot be treated as abandoned by any agreement. The Labour Court further held that the services earlier rendered are required to be taken into consideration while determining the "continuous service". Accordingly, a direction was given for reinstatement of the workman in service with 50% of back wages and continuity in the term of service. Being aggrieved by the same, this petition for writ is preferred with following grounds:-
"(i) Because it is admitted on record that respondent no.3 after his termination dated 10.4.1989 had joined the services on 14.5.1989 and worked upto 2.11.1990. The termination of services due to closure on 3.11.1990 were neither challenged nor wherein dispute, hence the Labour court committed an illegality apparent on face of record in directing reinstatement with 50% back wages w.e.f. 10.4.1989.
(ii) Because admittedly the termination dated 10.4.1989 was covered by the settlement which was binding on respondent no.3 and the petitioner, in pursuance of which he had joined his service on 15.5.1989 afresh and their existed no industrial dispute regarding termination w.e.f. 10.4.1989.
(iii) Because the settlement under the Industrial Disputes Act is very sacrocent and has greatous sanctity even an award and judgment of courts and had based respondent no.3 was entitled to wages from 10.4.1989 to 14.5.1989.
(iv) Because admittedly be principles of retrenchment are not applicable in termination of services due to closure of place of work of an employee. The subsequent termination of service w.e.f. 3.11.1990 due to closure was not in reference before the court and the Labour Court has committed an illegality in granting relief of reinstatement and wages for the period after the closure i.e. 3.11.1990 and afterward."
While issuing notice to the respondents, in this petition for writ vide order dated 7th January, 1999 an interim order was passed in following terms:-
"In the meantime, the enforcement of the impugned award shall remain stayed provided-
(1) the back wages to the extent of 50 per cent payable under the award are deposited with the concerned Labour court within two months from today,
(2) a sum equal to wages payable to the workman from the date of the award till the last preceding month is paid to the respondent workman within two months from today, and,
(3) wages at the rate admissible under Section 17-B of the Industrial Disputes Act, 1947 for the succeeding month shall be paid to the respondent-workman, month by month, till further orders of this Court.
The back wages so deposited in terms of this order, shall be invested in some Nationalized Bank by the Labour Court under an interest earning term deposit scheme."
On examination of the agreement taken into consideration in this petition for writ, I do not find any reason to interfere with the award impugned. The issue as to whether the period of earlier services rendered by the workman could have been ignored by while computing continuous service under an agreement deserves consideration.
It is well settled that by an agreement, service conditions may be settled but a work already undertaken cannot be notified. Under the concept of "continuous service", there is no effect of fresh appointment or abandonment of earlier service. If a workman has worked with an employer continuously in a preceding 12 months from the date of his retrenchment then that is required to be taken into consideration for determining the continuous service, irrespective of any other eventuality.
In the case in hand, admittedly, the workman was in "continuous service" since October, 1980, as such, even if it is assumed that some condition was there in the agreement about fresh employment, then that shall be having no adverse effect so far as determination of "continuous service" rendered by the workman is concerned. The respondent-workman being in "continuous service" was having a protection under Section 6N of the U.P. Industrial Disputes Act, 1947 and any violation thereof made the retrenchment void. The Labour Court hence, rightly arrived at the conclusion that the retrenchment of the workman w.e.f. 10th April, 1989 was not valid and, therefore, rightly allowed reinstatement in service with back wages. No interference with the impugned award as such is warranted.
The writ petition is dismissed. The petitioner is entitled to the benefits awarded under the award impugned. The amount deposited with the Nationalized Bank be released with interest in favour of the respondent-workman at earliest.
However, the employer-petitioner while reinstating respondent-workman in service could not be liable to make payment of back wages from the date of the award to the date of reinstatement.
Order Date :- 23.1.2019 Bhaskar (Govind Mathur, C.J.)