JUDGMENT Ravi, S. Dhawan, J.
1. The Elgin Mills Company, Limited (Mill No. 1), Kanpur, today under the management of National Textiles Corporation, has filed the present writ petition challenging the award of the Labour Court (II), U.P Kanpur, in the matter relating to Adjudication Case No. 123 of 1974. The award is dated 28th August, 1976. This is Annexure '14' to the writ petition. Ahmad AH, the workman, was discharging his duties as a winder, shift A at the Winding Department. His services were terminated on 24th November, 1972. The last appointment letter given to him was dated 24th May, 1972, on these facts there is no issue.
2. His services were terminated on 24th November, 1972 six months after the last appointment made. The termination of Ahmad Ali's services with effect from 24th November, 1972 became a subject matter of an industrial dispute between the concern, Elgin Mills No. 1 and its workman, Ahmad Ah. Three matters were referred to the Labour Court for adjudication. The first was whether the services of Ahmad Ali had been illegally terminated. The second, whether Ahmad Ali should be made permanent on the post of a Winder. The third was an issue challenging the jurisdiction of the Labour Court, to the effect, that the matter was beyond adjudication by a reference, to a Labour Court and this issue- apparently was framed at the instance of the employer.
3. This Court has heard learned counsel for the petitioner and learned counsel for the workman, and has perused the record of the writ petition.
4. This petition has come up for hearing almost after 16 years since the award was given. It was pending at the High Court for about 15 years. Unfortunately, while this petition was pending, Ahmad Ali died in 1981. It appears that the employer raised in issue whether the person who claimed herself as his widow and heir, may not be so. The Labour Court was required to go into this issue during the pendency of this writ petition. A finding has been returned by the Labour Court that Smt. Badrunnisha and her three children are the rightful claimants to the benefits under the award. The order of the Labour Court is dated 20th November, 1991.
5. This only shows, that during the pendency of the writ petition the employer (Messrs Elgin Mills Company Limited) left no stone unturned, given a chance, to frustrate the award. The writ petition, clearly, is only on the question whether the award of the Labour Court suffers from an error, so that it may be corrected by a writ of certiorari. The petition was filed by the employer. If the High Court declines to interfere in the writ petition, then notwithstanding that a workman may die during the pendency of the petitioner does not mean that an award has either been frustrated or is incapable of being put into execution. The Labour Court, upon a workman's death, in any case is obliged to reach the benefits of the award to the heirs of a deceased workman. Thus, let no employer be under a mistake that the effectiveness of an award ends with the workman's death. On the contrary, in such a situation it will be an obligation of a Labour Court to reach the benefits of the award to the rightful heir and next-of-kin, as far as possible without delay.
6. After perusing the record of the writ petition the Court notices as aspect not noticed in the narrative of the writ petition. In the writ petition the facts only mention that an appointment letter was given to Ah-mad Ali, the workman, on 24.5.1972 and that his services were terminated on 24.11.1972 on the ground that what was offered to him was a temporary job and he worked in a temporary capacity. After the period of employment as mentioned in the appointment letter was over, his services were understood to be terminated. The adjudication case record is entirely different from what is contended in the writ petition. Ahmad Ali was employed by this Company in 1962 and not 1972, as a winder. Ahmad Ali mentioned in his written statement before the Labour Court that he was first employed by the concern on 9.1.1962. This fact is mentioned in paragraph 1 of the written statement and noticed in paragraph '4' of the award. Except for a bare denial nothing further has been elaborated by the employer on this aspect. On the other hand, the employer's witness, Ram Swaroop Gupta, E.W.2, in his cross-examination accepts that Ahmad Ali had worked even prior to his last appointment. He further accepts that Ahmad Ali had worked since 1962, though it may not be in continuity. Thus, on one aspect, then there is no issue, that Ahmad Ali was first given employment as a winder in 1962. This aspect was not mentioned in the writ petition and in these circumstances it was not a fair statement of facts in a writ petition which was invoking the discretionary remedy of the High Court under Article 226 of the Constitution of India. The High Court does expect that the controversies in a case must be brought out in pleadings, fairly without clouding or hiding them. Thus, this means that the aspect of Ahmad Ali's employment w.e.f. 24.5.1972, as claimed by the employer, is not to be seen in isolation.
7. A perusal of the record, the evidence before the Labour Court and the impugned award itself, reveals that Ahmad Ali was given intermittent employment on a job of a winder. The question, thus, now is not whether the employment which was last given to him was of a temporary nature. What nature and that the employer may have made a temporary appointment on it. If the job of a winder was such that it lasted throughout the year, was not casual and temporary, the fact that Ahmad Ali received a temporary employment on it was unfair labour practice.
8. Then the Labour Court notices that those who came after Ahmad Ali continued to be in service. This statement of fact could not be dislodged by the employer. In these circumstances, the only aspect which now remains to be considered by this Court is whether the employer discriminated between Ahmad Ali and others who were retained in employment, but the employment of Ahmad AM was terminated.
9. The employer failed to prove that a winder's job was a temporary job. In these circumstances, in effect, the employer was guilty of unfair Labour practice on two counts: First, whereas the job of a winder was a permanent one, Ahmad Ali was given temporary employment with breaks in between. Secondly, those who came after Ahmad Ali were retained but Ahmad Ali saw himself out of the employment on 24.11.1972. Ahmad Ali was illegally retrenched and his services were unfairly terminated.
10. A last argument made with much vehemence by learned counsel for the employer needs to be noticed as there is emphasis before the Court that it should. It is submitted that the reference before the Labour Court is bad as an individual dispute cannot be referred for adjudication under Section 4-K of the U.P. Industrial Disputes Act 1947. The submission is misconceived and, further unfair in the context of today. It is misconceived, because as old as the case before this Court, is the writ petition was filed 15 years ago. Learned counsel has overlooked the record which clearly bears out that the cause of the workman, in effect, was espoused by the union known as Textiles Shramik Union, 100/319, Kandhi Mohal, Kanpur. The submission is against the record. Secondly, even if an irregularity had been committed by the State Government by referring an individual dispute under Section 4-K of the U.P. Industrial Disputes Act, 1947, when a provision in the nature of Section 2-A (Industrial Disputes Act 1947) was not available, this Court will not permit an industrial dispute raised by a workman to fail on his technicality. When a matter is being decided by this Court on an award which was given 16 years ago in favour of a workman and further on a petition which has been pending since long, substantial justice will be done by the High Court and an employer will not be permitted to defeat the rights of a workman, who has an award in his favour on a technicality. This Court cannot forget the broad basis for invoking a writ of certiorari, in such matters, when rules of equity guide the Court, to the effect, that it is not every irregularity which must be interfered with by the High Court, regard being had to the circumstances of this case, in a petition under Article 226 of the Constitution of India.
11. This was an ill-advised petition. The Court notices that when Ahmad Ali was giving his testimony before the Labour Court in 1976, he was 26 years old. He dies in 1981, implying thereby that he was about 31 years of age at that time. If he was alive today he would have been 42 years old. The benefits which would have accrued to Ahmad Ali were denied to him as he died during the pendency of a writ petition and a stay order in the writ petition stayed the operation of the award. The benefits under the award will now be available to his wife and his three children.
12. The award of the Labour Court is affirmed. One direction in the award in the relief clause shall stand amended, in favour of the workman. The Labour Court has ordered that Ahmad Ali is entitled to become permanent on the post of a winder as from the date of the award. This direction in the award is not compatible with facts now not disputed. This date shall stand changed to 24.5.1972, being the date of the appointment letter, which is the employer's document.
13. The benefits as will accrue under the award shall be computed by the Labour Court with 12% simple interest upto the date when the benefits under the award are available to the heirs of Ahmad Ali.
14. A certified copy of this order shall be sent by the learned Standing Counsel, otherwise present in Court, Mr. N.P. Singh, Advocate, to the Presiding Officer, Labour Court (II), Kanpur, so that the benefits under the award are now not denied or delayed to the heirs of Ahmad Ali. The benefits shall be computed within one month from the date of receipt of certified copy being laid before the Labour Court by the heirs of the workman, Ahmad Ali.
The petition is dismissed with costs.
Petition dismissed.