Court No. - 2
Case :- WRIT - C No.50327 of 2000 Petitioner :- Executive Officer Nagar Palika Parishad,Saharanpur Respondent :- Presiding Officer Labour Court & Another Counsel for Petitioner :- R.K.Awasthi,C.K.Parekh,Mahima Maurya Counsel for Respondent :- C.S.C,Adarsh Bhushan,M.K. Mishra,R.K.Mishra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This is a petition of the year 2000 pending for admission.
2. Without admitting the petition, the matter can be taken for final disposal.
3. I have heard Sri C.K. Parekh for the petitioner.
4. None of the private Counsel for respondents have appeared before this Court.
5. State Counsel states that they have no instructions in the matter as it is a dispute of Nagar Palika Parishad, Saharanpur, and now the same has been converted into Nagar Nigam.
6. The brief facts giving rise to the litigation between the Nagar Palika and the respondents and as narrated in the petition in the appended documents show that a reference was made to the Labour Court as they want an industrial dispute which has arisen between the Nagar Palika and one of its employee, which was registered as adjudication case no.304 of 1999. The parties are referred to a petitioner namely the Executive Officer of Nagar palika Parishad, Saharanpur and the respondents herein (workman). The respondent filed written statement stating that he was in permanent job and his services were of pump operator. An application for medical leave w.e.f. 27.11.1997 to 7.12.1997 and 30.11.1998 was given by him. No information was given to the workman as to what had happened to his leave and when he want to join his duties along with fitness certificate on 1.12.1998. He was illegally retrenched and was not permitted to join the duties. All allegations in the claim petition were denied by the respondents. The petitioner took objection to the jurisdiction of the Labour Court. The petitioner alleged that the respondent – workman had shifted his residence to Yamuna Nagar, Haryana from Saharanpur which was against the term of employment. He was gainfully employed and was himself abandoned the job. It is alleged that respondents were running a grossery shop. Rejoinder- affidavit came to be filed by the respondents. Petitioner also filed its further reply and maintained that it was a case of abandonment of job and the retrenchment or termination was not affected.
7. In the year 2000, more particularly on 14.6.2000 the Labour Court held in favour of the workman and directed reinstatement with full back wages. The order of the Labour Court was challenged in writ petition and has been stayed by this Court on 22.11.2000 and respondent no.2 has been out of service because of the stay. The factual data will also not permit me to certify that the judgment of Labour Court is not perverse. The perversity has crept in as reinstatement is granted even from the day and the day when he absented himself. He himself stated that he may be considered to be on leave for a period of about 2 years without any remuneration. In what circumstances he was and he had abandoned such an important post of pump operator with Nagar Palika was never mentioned. The Labour Court has shown over sympathy in reinstating him.
8. It is submitted that it was the consistent case of the petitioner – employer that the respondent -workman had abandoned by unauthorisedly abstaining from his duty without proper sanction of leave and in addition to this, the respondent – workman was gainfully employed and was running a shop of Kairana at Haryana. Thus, the dispensation of service was automatic, although no written order of termination had even been passed by the petitioner. The services had never been terminated, hence the reference was bad.
9. It is submitted that the petitioner has also filed documentary evidence including letter dated 16.2.1999 given to the respondent – workman at his Haryana address asking him to join duty within 3 days and letter dated 20.1.1999 informing the workman that he had abandoned his job was gainfully employed at Haryana where he running a shop of Kairana.
10. It is submitted that Deputy Labour Commissioner, Saharanpur, had no jurisdiction or authority to U.P. Industrial Disputes Act, 1947, could not have been invoked. Without even going to this factual data, the petition can be decided.
11. The Labour Court by the impugned award without considering the evidence on record and without adverting to the specific plea of the petitioner regarding abandonment and respondent workman being gainfully employed has answered the reference in favour of the workman by reinstating him with full back wages and all consequential benefits.
12. The petitioner submits that as the petitioners had, at no point of time, retrenched or terminated the services of the respondent – workman, the reference itself was bad as the respondent – workman had not been able to file order dated 1.12.1998 alleged to be an order of termination. As a matter of fact, no such order of termination dated 1.12.1998 exists in the service book or on the record of the case.
13. The Labour Court has committed grievous error in law in not adverting to the specific case of the petitioner that it was a case of abandonment and the workman being gainfully employed at Haryana. A perusal of the notice would indicate that Haryana address of the respondent – workman had been shown where the respondent – workman was permanently residing and, as such, an adverse inference should have been drawn against the workman that he was gainfully employed at Haryana, merely because the notices were sent under U.P.C. Could not be a ground to disbelieve their contents.
14. A clinching fact would emerge which should have been a finding of fact by the Labour Court but it has merely brushed aside this clinching piece of evidence namely that all the medical certificates whereby doctor, who was at Yamuna Nagar then itself showed that the respondent – workman was staying at Yamuna Nagar, Haryana and was nowhere at Saharanpur. There is an error which has been committed by the Labour Court in holding that termination was bad as it was without any disciplinary proceedings. It forgot to visualize that the services of respondents were not terminated but he had abandoned his services. Even if the said fact is there consequential benefit would never have been awarded if for a period beyond the period which the respondent claims to be absent. The facts go to show that the respondents did not prove that he was retrenched or terminated rather the respondent himself had abandoned his job and did not report for his duties on such a serious post and, therefore, the Labour Court could not have invoked Section 6-N of the U.P. Industrial Disputes Act, 1947. Once it was replied that he was never retrenched, no reference could have been made. The reference itself was bad in the eye of law. The Labour Court should have drawn an adverse inference as all the addresses were of Haryana and not of Saharanpur. The respondent nowhere proved that he was not gainful employee, this burden is on the employee to prove that he was not gainfully employed. The petitioner has, by cogent evidence, shown that he was not interested in the job. The Labour Court has further erred in holding that this is a case of disciplinary proceedings culminated into termination. The award is bad as full back wages could not have been ordered to the workman, who was gainful employee, who was part-time mechanic and, therefore, the award is quashed and set aside. The employee has even absented himself before this Court and has not proved that he was not gainfully employed. The factual scenario goes to show that he was gainfully employed. The medical Certificates are also showing that he was at other place than the one where he should have been. This categorically shows that the judgment of Labour Court is against the tenets of labour jurisprudence. The perversity is crept into the judgment which calls for interference by this Court.
15. The writ petition is allowed. The impugned award dated 14.6.2000 published on 30.9.2000 is hereby quashed.
Order Date :- 31.7.2018 Irshad