The award dated 20.04.2000 attained finality as none of the parties challenged the said award. The respondent No.2 filed an application under Section 6H(1) of the U.P. Industrial Disputes Act for the payment of his regular salary inter alia on the ground that as his termination was declared illegal and as such he will be deemed to continue in service, therefore, he is entitled for the full wages from 30th September, 2000. He has further stated in his application that minimum salary of a worker is Rs. 2550/- and as such his arrears of salary for 35 months that comes to Rs.89,250/-. He is entitled for the same. A copy of the application made by respondent no.2 is Annexure 2 to the Writ Petition. The Labour Court on the said application issued a notice dated 9th February, 2004 to the petitioner thereafter on 2102.2004 another notice under Section 14A of Act 1947 was issued to the petitioner by the Deputy Labour Commissioner, Saharanpur wherein it was mentioned that respondent No.2 has alleged that in spite of the fact that two vacancies occurred in the past but he was not appointed against those vacancies.
The petitioner has submitted the reply in response to the earlier notice wherein the petitioner had taken the stand that there are only 42 sanctioned posts against which 92 Class IV employees are working, thereafter, and as such it was not possible to regularise/appoint the respondent No.2 in absence of the vacancy in sanctioned posts. It appears that the Deputy Labour Commissioner was not satisfied with the reply of the petitioner, therefore, he issued an order dated 28.04.2005 for the compliance of the award.
The petitioner aggrieved by the said notices dated 21.12.2004 and 28.04.2005 has approached this Court by means of present petition.
I have heard learned Standing Counsel and Sri Sharad Kumar Pandey learned counsel for the respondent No.2. The learned Standing Counsel has submitted that the respondent No.2 was casual employee who did not work after 1996. In the award dated 20.04.2000 there is no positive direction for reinstatement of the respondent No.2. There was only conditional direction that if any vacancy occurs the respondent No.2 shall be considered first and in lieu of the backwages a compensation of Rs. 5,000/- was awarded. The petitioner has complied with the said direction and the respondent No.2 has been paid the said compensation. He further submitted that there were only 42 sanctioned posts of Class IV employee and 92 persons are still working and there is no post available on which the respondent No.2 can be adjusted. This fact has been totally ignored by the Deputy Labour Commissioner in the proceeding under Section 6H(1) and notices have been issued under Section 6H(1). He has further urged that the department cannot regularise the respondent No.2 de hors of the rule. The law laid down by the Supreme Court in Uma Devi case does not permit the department to regularise his service in absence of positive direction of the Labour Court.
The respondent No.2, indisputably, worked for more than 240 days. The finding of Labour Court that there is violation of Section 6N of U.P. Industrial Disputes Act by the employee, does not suffer any infirmity. The learned counsel for the petitioner has failed to satisfy that any notice or compensation was given to respondent No.2 in terms of Section 6N of the State Act.
In a series of decisions the Supreme Court and this court have held that provisions of Section 25F(a) and (b) (which is similar to Section 6N of that State Act) are mandatory. Hence, its violation renders the removal/termination inoperative. The relevant part of the judgment of Supreme Court in Devinder Singh V. Municipal Council, Sanaur, (2011) 6 SCC 584 is extracted below;
"18. This Court has repeatedly held that the provisions contained in Sections 25-F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative. State of Bombay v. Hospital Mazdoor Sabha, Bombay Union of Journalists v. State of Bombay, SBI v. N. Sundara Money, Santosh Gupta v. State Bank of Patiala, Mohan Lal v. Bharat Electronics Ltd, L. Robert D'Souza v. Southern Railway, Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, Gammon India Ltd. v. Niranjan Dass, Gurmail Singh v. State of Punjab and Pramod Jha v. State of Bihar".
In view of the well settle law, the finding of the Labour Court regarding violation of Section 6N does not suffer any infirmity.
Coming to the question that what relief can be granted to respondent No.2 and whether he was entitled for his wages for all the period when he was out of employment. To my understanding, earlier the view of the Supreme Court was that in case termination is found to be illegal the reinstatement with full backwages was automatic. However recent trend is otherwise. Before passing the order of reinstatement with backwages several factors have to be considered, such as nature of employment, availability of post, the period during which employee/workman was out of employment, and financial position of employer etc. In case of retrenchment workman can be compensated in terms of monetary benefits in lieu of reinstatement. The Supreme Court in case of Senior Superintendent Telegraph (traffic), Bhopal V. Santosh Kumar Seal, (2010) 6 SCC 773, at page 776 observed as under;
" 9. In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula.).
10. In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Mktg. Board, the aforesaid decisions were noticed and it was stated: (SCC pp. 330 & 335, paras 7 & 14).
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
More importantly the Supreme Court has occasioned to deal with similar facts in a case of Ghaziabad Development Authority v. Ashok Kumar, (2008) 4 SCC 261, at page 264. The said case also arose from this State and in respect of violation of Section 6N of U.P. Industrial Disputes Act. Following discussion and conclusion are apt and relevant for the case in hand.
" 18. The first respondent was admittedly appointed on a daily wage of Rs 17 per day. He worked for a bit more than two years. It has not been disputed before us that sanction of the State of U.P. was necessary for creation of posts. The contention of the appellant before the Labour Court that the post was not sanctioned after 31-3-1990 by the State was not denied or disputed. If there did not exist any post, in our opinion, the Labour Court should not have directed reinstatement of the first respondent in service.
19.A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said constitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to be kept in mind by the Labour Court before passing an award of reinstatement.
20.Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service.
21.We are, therefore, of the opinion that the appellant should be directed to pay compensation to the first respondent in stead and in place of the relief of reinstatement in service.
22.Keeping in view the fact that the respondent worked for about six years as also the amount of daily wages which he had been getting, we are of the opinion that the interest of justice would be subserved if the appellant is directed to pay a sum of Rs 50,000 to the first respondent. The said sum should be paid to the respondent within eight weeks from date, failing which the same shall carry interest at the rate of 12% per annum."
Bearing in the mind the principles aforesaid and the law on the subject when I proceed to consider the facts of present case, I find that respondent No.2 is out of employment from 1992 (according to respondent No.2 from 1995), after such a long time order of reinstatement would be improper. Petitioner has pleaded that against 42 sanctioned posts 95 persons are working. The respondent No.2 has not given the details of the vacancies except general statement that there are vacancies. In the absence of the details and supporting documents there is no reason to disbelieve the stand of the petitioner/department.
Regard being had to the fact that the tribunal did not pass any order for reinstatement. In absence of any such positive direction by the tribunal the application under Section 6H(1), in my view, was not maintainable and the application itself was misconceived. This Court on 20th July, 2005 has stayed the execution of the award and consequential proceeding. Remitting back the matter to decide the application under Section 6H(1) will be futile exercise and and will prolong the sufferings of respondent No.2.
In my view, the interest of justice would be best served if respondent No.2 is awarded a sum of Rs. 75,000/- as compensation in lieu of his backwages and other dues .
The petitioner, the Executive Engineer, Nalkoop Division, Saharanpur is directed to pay the said sum to the respondent No.2 within two months from the date of presentation of certified copy of this order. In case the payment is not made in the said period, the same shall carry interest at the rate of 10% per annum. The award dated 21.04.2004 is modified to the said extent and notice/order dated 28.04.2005 is set aside.
The parties shall bear their own costs.