JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and perused the record.
2. This petition has been filed for quashing the impugned award dated 31.10.1984 passed by the Labour Court, Allahabad in Adjudication Case No. 34 of 1982.
3. The workman claimed that he was illegally terminated from service on 9.12.1980. He raised an industrial dispute with regard to validity and correctness of the termination of his services. A reference was made by the State Government as to whether the termination of the services of the workman w.e.f 9.12.80 was legal and justified, if not to what reliefs/benefits is the employee entitled to.
4. On receipt of summons the parties filed their written statements before the labour Court. The workman claimed in the written statement that he carne in service on 1.6.1976 as Pump Attendant on muster roll and thereafter he was appointed as Work charge cm, loyee w.e.f. 1.6.1977.He further claimed that as he was the acting member of the trade union and on account of his trade union activities the officers became annoyed. The annoyance of the superiors culminated in termination of his services. The action is, as he has been shown as Pump Attendant-cum-Chowkidar though he was only Pump Attendant and that his order of termination is illegal as it has been passed without holding any enquiry and payment of retrenchment compensation etc. to the workman as provided under Section 6-N of the U.P. Industrial Disputes Act, 1947.
5. The employers in their written statements averred that there were many charges of misconducts and indiscipline on the workman. The villagers complained against him as he was always working carelessly. The workman used to beat the staff and threatened them. The workman was also sent to police lock up in Police Chowki, Charwa on 16.7.1980, hence, keeping in view overall circumstances he was termination from service. Subsequently the workman apologized and was reinstated in service on 4.9.1980 as Pump Attendant. It is stated that the: workman again started his activities of marpit and negligence in duty. An explanation was called for from him, which was not given by the workman, hence his services were again terminated w.e.f. 9.12.80.
6. It is submitted by the Counsel for the petitioner that the allegation that his service were terminated due to his trade union activities is false and no trade union of which the workman claims to be the member is registered or recognized by the petitioners. It is vehemently urged that the services of the workman have not been terminated due to any malafide but were terminated on account of the misconduct and indiscipline after holding fair and proper domestic enquiry.
7. Sri Raj Kumar Rai, Junior Engineer gave his evidence on behalf of the employer who stated that the workman was given duty on 5.12.80 from 4.00 p.m. to 12.00 p.m. but did not attend his duty as such Sri Raj Kumar performed the work of Pump Attendant on that date, and an endorsement in this regard was also made by him in log book when the workman came on the next day on 6.12.1980 between 6.00 a.m. to 7.00 a.m. he hurled abuses on Sri Raj Kumar after seeing the endorsement on the log book and threatened to kill him regarding which a report was sent by Sri Raj Kumar Rai to the Executive Engineer which was approved and exhibited A-6 to the writ petition.
8. Sri Raj Kumar Rai has stated that the workman had worked for 3 years and that no notice or retrenchment compensation was given to the workman at the time of his termination from service as his services had been terminated for misconduct. It is urged by the Counsel for the petitioner that apart from the above facts the impugned award is also based on conjectures and surmises as the workman has received all his wages uptill the date of termination of his services i.e. 9.12.80 and that the services of the workman were terminated on 9.12.80 and he had received the wages till that date but the Labour Court without adverting to the evidence wrongly directed that respondent No. 2 was paid his wages up to 31.11.80.
9. The Counsel for the the workman relying upon the evidence of the workman before the Labour Court wherein he has stated that neither any enquiry was held nor any opportunity of hearing had been afforded to him as such the termination of his services is illegal for non compliance of mandatory provisions of Section 6N of the U.P. Industrial Disputes Act 1947.
10 From the pleadings and the records the Labour Court has concluded that the termination of the services of the workman was in violation of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947 The Labour Court has also held that the services of the I workman were not terminated as a measure of punishment as it appears from perusal of Ex.W-9 letter of termination of services of the workman that the services of Ravi Narain Singh work charge Pump Attendant-cum-Chowkidar were terminated with immediate effect directing him to handover his charge to Sri Lala Prasad Pump Attendant-cum-Chowkidar and obtain "No Dues Certificate" from the Junior Engineer.
11. The Labour Court has further held that from the aforesaid order of termination it is evident that no reason has been shown for termination of the services of the workman and as there is no evidence that his services were terminated as a measure of punishment on a complaint made by Sri Raj Kumar Rai, Junior Engineer. The Labour Court also held that from the documents it is established that the workman was appointed as Pump Attendant-cum-Chowikdar and that the order of his termination dated 9.12.80 is neither justified nor legal and granted him relief of reinstatement on the post of Pump Attendant-cum-Chowkidar as well as for payment of wages for the period from the date of termination of his services to the date of the award.
12. Aggrieved by the impugned order dated 31.10.1984 the petitioners have filed the present writ petition in which the following interim order was passed on 18.4.1985:-
Issue notice.
I direct that until further orders, the respondents shall not take steps to implement the award dated 31.10.1984 provided the petitioner deposits a urn of Rs. 7000/- (Rs. Seven thousand) with respondent No. 1 within a period of one month from today's date. The amount so deposited may be paid over to respondent No. 2 without demanding any security from him.
Sd IIiegible (B.N. Sapru) J.
13. The petition has been filed on the ground that U.P. Jal Nigam is not an Industry.Respondent No. 2 was engaged temporarily on daily wages in connection with execution of a 'specific scheme'. One of the arguments is also that the workman was not appointed against a permanent post of Pump Attendant-cum-Chowkidar as such the Labour Court has erred in law in directing the reinstatement of the workman in service and that the findings given by the Labour Court are illegal, without jurisdiction and perverse.
14. From perusal of the record it is apparent that his services was purely temporary. He was engaged in a scheme and his services under which were liable to be terminated at any time without any notice but his services were not terminated as a measure of punishment. Since the workman had worked for more than 3 years, he was entitled to retrenchment compensation in accordance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947, as his services had not been terminated as a measure of punishment. However, since the workman was a daily wage employee and was not working against any post much less a permanent the Labour Court has therefore, committed an illegality in reinstating the workman with continuity of service. The workman has already been paid Rs. 7000/- in terms of the interim order dated 18,4.1985 passed by this Court. In the circumstances, the workman could not have been granted the relief of continuity of service and reinstatement on a non-existent post being engaged on daily wages in a scheme Even a daily wager who has completed more than 240 days of continuous service is entitled to retrenchment compensation if his services have not been terminated as a measure of punishment. Sri K.P. Agarwal at this stage submits that in the circumstances the workman may be granted relief by upholding the award for 50% of the back wages as awarded by the Labour Court. There is no certainty of continuous engagement of daily wager in future. He may or may not be engaged by the employer depending upon the period of scheme, requirement of work etc. Ends of substantial justice would be met if direction is given for payment of retrenchment compensation to the workman with interest at the rate of 10% per annum on the amount, which was not paid to him at the time of termination of his services. In the circumstance, the award is modified io this extent that instead of reinstatement the workman shall be paid 50% of the back wages with 10% interest and R 7000A already paid to him. It has been held by the Hon'ble Supreme Court that in every case reinstatement with full back wage and continuity of service should not be passed and that the facts and circumstance of each case has to be considered.
15. For the reasons stated above, the petition is partly allowed. No order as to costs.