JUDGMENT Arun Tandon, J.
1. This petition is being taken today with the consent of the parties for final hearing.
2. The Committee of Management Meerut Collegiate Association, Meerut through its Manager has filed the present writ petition against the award of the labour court dated 28th September, 1985 passed in Adjudication Case No. 1985 as also against the recovery proceedings initiated against the petitioner in pursuance of the aforesaid award, being recovery certificate dated 15th September, 1989 and demand notice dated 18th December, 1989.
3. Heard Sri P.K. Jain, appearing on behalf of the petitioner and Sri Vivek Chaudhary appearing on behalf of the respondent No. 5 and learned standing counsel appearing on behalf of respondent Nos. 1 to 4.
4. Respondent No. 5 Sri Bhagwan Singh was appointed as Peon by the Principal of the institution on 23rd August, 1978 (copy of the appointment letter has been filed as Annexure-1 to the writ petition). The said letter issued by the Principal of the institution mentions the facts that the appointment of the petitioner has been made in place of Hari Shanker Lab Assistant in the Chemistry Department. It is also mentioned in the said letter that the respondent No. 5 is being appointed on probation w.e.f. 23rd August, 1978. Respondent No. 5 continued in the employment of the institution under the aforesaid order of appointment and was also paid his salary by the management through its own resources. The services of the respondent were put to an end vide order dated 22nd May, 1984. Feeling aggrieved by the aforesaid order of termination of services, the workman raised an industrial dispute which was referred to under Section 4K of the U.P. Industrial Disputes Act to the labour court, Meerut and was registered as Adjudication Case No. 202 of 1985.
5. The Presiding Officer by the award dated 22nd September, 1985 held that the termination of the services of the petitioner amounted to the retrenchment and since mandatory requirement of Section 6N had not been complied with, the workman is entitled to reinstatement with full back wages. The aforesaid award of the labour court was ex parte award so the employer-petitioner filed an application for setting aside the aforesaid ex parte award on 27th September, 1986 along with an application under Section 5 for condoning the delay in filing the restoration application. The writ petition is silent about the fate of the aforesaid restoration application. However, from the counter-affidavit filed by respondent No. 5 it is apparently clear that the application for setting aside the ex parte award was rejected by the Presiding Officer by means of the order dated 22nd December, 1987.
6. The aforesaid order of the labour court dated 22nd December, 1987 has not been challenged before this Court and has become final between the parties. It is, therefore, not necessary to this Court to go into the issue as to whether the Labour Court was justified in proceeding ex parte against the petitioner or not. The only issue which remains for consideration in the present proceeding is as to whether the order dated 22nd December, 1987 was justified or not on merits.
7. It is contended on behalf of the petitioner that the appointment of respondent No. 5 (Bhagwandin) itself was illegal inasmuch as the appointment was made by the Principal of the institution subject to the approval of the Director of Education (Higher), as required by the Statutes 21.04 of the First Statute of Meerut University, and since the Director by means of his order dated 13th December, 1983 (referred to in paragraph 2 of the writ petition) refused to accord approval, the services of the workman were rightly terminated. It is further contended that the labour court has not recorded any reason in support of the award passed in favour of the workman and the award is liable to be set aside and the matter deserves to be remanded for the aforesaid reasons. Lastly it has been contended that the State Universities Act provide complete procedure for redressal of the grievances of employees including the power conferred upon the Chancellor under Section 68 of the State Universities Act to correct all decisions of the authorities, including the management of the institution, passed under the State Universities Act and Statutes framed thereunder.
8. Reliance has been placed upon the judgment of the Hon'ble Supreme Court in Bombay Telephone Canteen Employees' Association v. Union of India, 1998 (1) AWC 2.5 (SC) (NOC) : AIR 1997 SC 2187 ; R.C. Tiwari v. M.P. State Co-operative Marketing Federation, AIR 1997 SC 2652 and Ghazipur Zila Sahkari Sangh v. Industrial Tribunal. 2003 (4) AWC 2647.
9. On behalf of the respondent No. 5, it has been stated that the appointment of respondent No. 5 was not made against any sanctioned post referable to Section 60A of the State Universities Act. Respondent No. 5 was not appointed against any such vacancy nor he was paid salary from the aid provided by the State Government. It is further stated that since the appointment of the petitioner was not made against any post created by the Director of Higher Education so the provisions of the State Universities Act and the First Statute did not apply in respect of the appointment against a post, the responsibility of the payment of salary whereof is not upon the State Government. It has been stated that it is always open to the management of the affiliated college to offer appointment irrespective of the sanctioned post of staff for maintaining the institution provided the management takes the responsibility to make payment from its own resources.
10. Reliance has been placed upon the Division Bench judgment of this Court reported in 1989 (2) UPLBEC 617, specifically paragraph 19 as also upon the Division Bench judgment of this Court in 1989 UPLBEC 667. paragraphs 6 and 7. It is further stated that since the petitioner deliberately did not participate in the proceedings before the Labour Court in spite of the notice. They cannot be permitted to challenge the findings recorded by the Labour Court, on the basis of material which is being brought on record before this Court for the first time. It has also been stated that the judgment relied upon by the petitioner with regard to the jurisdiction of the Presiding Officer, labour court, being barred, have no application in the facts of the present case inasmuch as the petitioner is not seeking employment or any other benefit under the provisions of the State Universities Act or the First Statutes framed thereunder. Lastly it has been contended that the conduct of petitioner disentitled him to any relief under Article 226 of the Constitution of India as he has deliberately not disclosed that his application for setting aside ex parte order has been rejected by the labour court in the year, 1987 and on the contrary in ground 7 and 8 of the writ petition effort was made to suggest before this Court that the said application is still pending consideration. Further the petitioner has been offered repeated opportunities and was duly informed of the award as well as rejection of his ex parte application as early as in the year, 1988 when proceeding under Section 33-C(2) were initiated, it was only in the year, 1990 the petitioner has approached this Court.
11. In the present writ petition an interim order was passed by this Court on 2nd April, 1999, whereby only recovery proceedings were stayed. The petitioner, as such, was required under law to carry out the award of the labour court and to reinstate the petitioner.
12. The aforesaid writ petition was dismissed in default on 16th August, 2002. Thereafter, a recall application supported with an affidavit was filed on behalf of the petitioner. In the affidavit a letter dated 3rd June. 2003 issued by the Principal of the institution requiring the workman to report for duties and to join immediately, has been enclosed. In pursuance thereof the workman admittedly submitted his joining on 23rd June, 2003, which has been accepted. It is further clear that in respect of the salary of the period, during which the workman was not reinstated despite the award of the labour court, a recovery certificate to the tune of Rs. 5,67,902.90 p. was issued against the employer. In order to avoid the recovery, the petitioners have deposited a sum of Rs. 1.70,870.87 p.
13. The first contention raised on behalf of the petitioner to the effect that the jurisdiction of the labour court was barred in view of the provisions of the State Universities Act, which was a complete code providing for adequate remedy to the employees like the respondent No. 5, specifically with reference to the judgment relied upon by the counsel for the petitioner mentioned above cannot be accepted.
14. It is the case of the petitioner that the workman was not appointed against any sanctioned post nor he was paid salary from the State funds. It is the case of the workman that he was appointed by the institution for its own need with specific understanding that the liability to make payment of salary would be of the management itself.
15. The Division Bench of this Court, in the case of Asfaq Ahmad Ansari, 1989 (2) UPLBEC 617, in para 19 has specifically held as follows :
"If considered necessary for excellence of education and for any other reason it was open to the particular institution to maintain the staff and pay its salary from its own resources."
16. Thus, in view of the aforesaid Division Bench decision it cannot be disputed that management of every affiliated college has a right to engage employee in excess of sanctioned staff provided always that in such fact situation the liability to make payment of salary would be of the management from its own resources. In respect of such appointments the State Universities Act as well as the First Statute of the University have no application nor the terms and other conditions of appointment of such an employee can be regulated under the State Universities Act or the First Statute of the University concerned. Since the State Universities Act itself is not applicable in respect of appointment made by the management in excess of sanctioned post with a clear understanding that the salary shall be paid by the management itself, it cannot be said that the State Universities Act provides a complete code for redressal of the grievances for such an employee and the jurisdiction of the Labour Court would be barred in such of the cases. The judgments referred to by the counsel for the petitioner are totally distinguishable on facts and have no application.
17. The contention of the counsel for the petitioner that the award of the Labour Court contains no reason, is also not legally sustainable. In the award, which is enclosed as Annexure-2 to the writ petition, the labour court has recorded categorical finding that the workman has worked more than 5 years continuously. There is no averment in the writ petition to dispute the aforesaid fact. It has also not been disputed that the educational institution answers the description of industry within the meaning of the U.P. Industrial Disputes Act as laid down by the Hon'ble Supreme Court in the judgment in AIR 1998 SC 1700. The labour court has further specifically recorded that the workman had not been paid retrenchment compensation nor one month notice has been given nor salary in lieu thereof before terminating the services of respondent No. 5. The termination, as such, by way of retrenchment is void for non-compliance of the mandatory requirements of Section 6N.
18. The Hon'ble Supreme Court, in the judgment in AIR 1981 SC 1253, has held that non-compliance of provisions of Section 6N is fatal and an order passed in violation thereof would be null and void.
19. Once an order is declared null and void it has no existence in the eye of law and consequently the award of the labour court was justified.
20. As already pointed out above, the grievance of the petitioner that the aforesaid proceedings were taken ex parte cannot be gone into the present proceedings inasmuch as the application to set aside the ex parte award was rejected by the labour court by means of the order dated 22nd December, 1987. The said order has not been challenged in the present proceeding nor any effort has been made to dispute the correctness otherwise on the facts and findings referred therein.
21. The contention of the petitioner that the workman was appointed without following the procedure prescribed and as such the appointment was illegal and further since the Director of Education refused to accord approval as contemplated under the Statute 24.04 no illegality or infirmity can be attributed to the termination order passed by the Principal of the Institution. The said contention raised on behalf of the petitioner does not require consideration inasmuch as no such pleadings were raised by the employer before the labour court. Award of Tribunal cannot be challenged before the High Court on the facts which were not pleaded before the Tribunal. However, even otherwise contention raised on behalf of the petitioner cannot be accepted inasmuch as Statute 24.04 contemplates a situation where the order of approval or disapproval has not been passed within the statutory period of two months, from the receipt of the proposal it is to be deemed in the eyes of law that the authority has approved the appointment. The petition is completely silent as on which date papers were submitted for approval before the Director of Education and after how long the said proposal was disapproved. In absence of material facts being brought on record, it cannot be said that the termination of the service of the workman was justified for the reason as asserted by the petitioner. The said objection is also liable to be rejected on the findings which have been recorded hereinabove to the effect that the provisions of the State Universities Act itself are not applicable.
22. The legal position with regard to the ouster jurisdiction of labour court/Industrial Tribunal has been explained by the Hon'ble Supreme Court in the judgment in AIR 1970 SC 245, wherein it has been held that the jurisdiction of the Industrial Tribunal would be barred, if the dispute in question can be completely adjudicated by the statutory authority. However, if the dispute, as such, cannot be examined by the statutory authority or is not covered by the Statute, the Industrial Tribunal will have jurisdiction to adjudicate upon the same. Thus, in the facts of the case it has to be seen as to whether the dispute raised by the workman could have been adjudicated by the authorities under the State Universities Act or not.
23. In the light of the findings, which have been recorded hereinabove, since the workman has not claimed any appointment, protection or right under the State Universities Act or under the First Statute of the University framed thereunder, the labour court had jurisdiction to entertain the dispute as well as to adjudicate the same on merits.
24. However, the Court cannot lose sight of the fact that the workman has not worked in the institution since his removal on 22nd May, 1994 up to 23rd June, 2003, on the principles of no work no pay it would not be fair to ask the management to pay full salary to the workman for the period he has not worked in the institution. In the facts of the case it would be appropriate if workman is paid half of his back wages for the period 22nd May, 1994 to 23rd June, 2003. The amount already deposited by the institution in pursuance of the recovery proceedings shall be adjusted against the aforesaid back wages and shall be paid to the workman by the recovery officer within two weeks from the date of a certified copy of this order is produced before him.
25. As a result thereof the further recovery proceeding against the petitioner-institution stands quashed provided the petitioner pays the balance amount of the half of wages within further period of three months to the workman concerned. In case of non-compliance of the order of this Court referred above, the recovery proceedings against the employer shall continue.
26. With the above observations, petition is dismissed.