JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. These are the five writ petitions challenging the award of the labour court in which common question of law and facts are involved hence are being decided by a common judgment in Civil Misc. Writ Petition No. 53647 of 2000.
3. The Kanpur Electricity Supply Administration was constituted under the U.P. Transfer of K.E.S.A. Zone Electricity District Undertaking Scheme, 2000. It is incorporated under the Companies Act, 1956 and is hereinafter called K.E.S.A. The respondents workmen raised an industrial dispute on 10.12.1991, regarding termination of their services from dates mentioned in order of reference. The State made reference of the dispute to Industrial Tribunal-IIIrd, U. P. Kanpur, where it was registered as Adjudication Case No. 305 of 1991. The dispute referred is as under :
"Kya sevayojkon dwara sanlagn parishishtha mey ankit 28 chhatnishuda coolie shramikon ko punah seva mey na liya jana anuchit avam avaidhanik hai? Yadi hai, to sambandhit shramik kya hitlabh/ upsham paney ke adhikari hain, kis tithi sey tatha kis anya vivran sahit?"
4. The case of the workmen was that the employer has contravened the provisions of Sections 6Q and 6B of the Industrial Disputes Act, 1947, read with Rules 42 and 43 of the U.P. Industrial Disputes Rules, 1957. The contention of the workmen concerned is that they were employed in the petitioner concern on different dates. The details of their working given by them are as under :
5. The first question is whether termination of dally wagers and casual employees is retrenchment. There are service rules and employment is given according to rules in this establishment. There is no evidence that the persons named above were recruited according to rules. The dates of employment as given by them show that they were employed for short periods.
6. The case set up by the petitioner employer before the Industrial Tribunal was that the respondents workmen were engaged for short periods for one or two months for casual work and they had not been engaged against any permanent work 15-20 years back and the provisions of Sections 6N and 6Q of the U. P. Industrial Disputes Act, 1947 read with Rules 42 and 43 of the U. P. Industrial Disputes Rules, 1957, are not attracted.
7. It appears that there was strike by the employees of K.E.S.A. and the respondents workmen were engaged to meet the contingency of work. U. P. State Electricity Board vide its O. M. No. 34-M.P.I. (O.S.)/S.E.B.-88-100 (2) N.O. 78 dated 13.1.1988 sanctioned filling of 350 posts of Coolies (including the resultant vacant posts of Coolies, etc. which may fall vacant due to promotion from amongst lower categories of staff against the posts of Lineman and Meter Reader, etc.) as a special case in relaxation of ban imposed vide B.O. No. 4840-N.G. (1)/S.E.B.-213A/65 dated 19.9.1978. This relaxation was subject to the condition that the vacant post of Coolies shall be filled within the sanctioned strength from amongst muster roll/retrenched muster roll employees who have continuously worked for more than 240 days in K.E.S.A. and locally available, suitable and having previous experience of the job in which they are to be employed were also considered.
8. The counsel for the petitioner submits that the respondent workmen were only daily wagers employed in Riverside Power House and not retrenched employees and were not eligible to be considered for selections held in the years 1988-89 and 1989-90 for various posts merely on the ground that they had worked for few days 15 to 20 years back. He further submits that vacancies of Coolies in K.E.S.A. are filled by a duly constituted Selection Committee on the basis of test and interview. It is further submitted that in the absence of suitable candidates from amongst the retrenched employees, the management was within its right to employ fresh hands. Since the concerned workmen were not retrenched employees, they could not be considered for appointment.
9. Dispute for employment has been raised admittedly after 10 to 20 years of termination. As stated earlier in U.P.S.E.B. 350 workmen were employed in the years 1988-89 and 1989-90. The Reverside Power House was closed on 1.7.1991. It is submitted by the counsel for the respondent workmen that out of these 350 posts, 115 workers were new and junior hence, not giving employment to the old workers is illegal and the workmen concerned in this case ought to have been employed with effect from the dates of employment of 115 new workers with all consequential benefits
10. In W. P. No. 26419 of 1998 workman Ranjit Prasad claimed to have worked for 13 days from 8.12.1978 to 20.12.1978 and raised the dispute after 18 years.
11. In W. P. No. 32277 of 1998 workman Sharafat All claimed to have worked during 21.6.1966 to 20.12.1966, 29.8.1967 to 29.2.1968 and 3.9.1968 to 30.6.1969. His working has been denied by the Board. Labour court although did not direct absorption but directed payment of salary to the workman.
12. Civil Misc. Writ Petition No. 6835 of 2001 has been filed by Sri Habib Khan against the award of the labour court. He had worked as Coolie during the period 1.5.1981 to 23.7.1981, 6.1.1982 to 5.2.1982 and lastly July, 1982 to August, 1982. The labour court has rejected the claim of the petitioners on the basis of judgment of Hon'ble Supreme Court rendered in case of Himanshu Kumar Vidyarathi v. State of Bihar. It also rejected the review application filed by the concerned workmen on 21.8.2000.
13. It appears from the record that in August, 1998 there was flood in which all the documents relating to employees of Riverside Power House were washed-out and as such, the employer's witnesses could not prove whether any notice was sent to the workmen or not before employing 115 workers.
14. The issues for consideration before this Court are :
(1) Whether after a lapse of 10 to 20 years the daily rated workmen are entitled to raise an industrial dispute?
(2) Whether any adverse inference can be drawn against employer for not producing notices when the record of the Board was not available due to flood or an employer is supposed to keep the record of casual and daily rated workers for 15-20 years?
(3) Whether Section 6Q of the U. P. Industrial Disputes Act is applicable to casual and daily wagers?
15. The respondent workmen claim that they worked in the petitioner concern as daily wager Coolies as per the details given above. It is not disputed by the petitioner that some fresh hands were employed in 1989-90. The petitioners did not produce any evidence as to whether the respondents workmen were called for re-employment or not. No seniority list has been filed by the employer since the records are said to have been washed-out in the flood.
16. It is submitted by the counsel for the respondent workmen that the employer has not compiled with provisions of Section 6Q of the U. P. Industrial Disputes Act as it was obligatory on the part of the employer to call old workers before filling up vacancies. The employer was under a legal obligation to give notice to the old daily wagers and offer employment to them as the rules do not make any distinction between casual, dally wagers, temporary or permanent employees. Rules 40 and 48 of the U. P. Industrial Disputes Rules, 1957, are similar to Rules 77 and 78 of Central Rules. Rule 77 creates an obligation on the part of the employer to prepare a list of all workmen in a particular category from which retrenchment is contemplated. Rule 78 provides that at least ten days before the date on which vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and intimation by registered post to every one of all the retrenched workmen eligible to be considered.
17. Admittedly, the workmen did not raise any dispute regarding their termination of services at any point of time for about 10-20 years. It is also not disputed that record was washed-out in flood. Otherwise also, it is not possible to keep record of casual and daily wagers for such long time. When large number of such employees are employed every year, even under the Factories Act record is to be kept for 3 years.
18. The counsel for the respondents has laid much emphasis on the evidence of Sri O.P. Mishra, Senior Personnel Officer and Sri Murari Lal Sharma who in his statement before the labour court stated that no notice or information was sent to the respondents with regard to 350 posts before the recruitment was done in the years 1988-89 and 1989-90. He further submits that oral and documentary evidence was produced before the labour court showing that the respondents workmen are the retrenched employees. He filed some printed certificates in proforma, showing the dates of working which have been appended as Annexures-C.A.-1 to 15 to the writ petition. One of the these proformas/certificates is as under as specimen :
"Kanpur Electricity Supply Administration (U. P. STATE ELECTRICITY BOARD) Telegrams : 'BIJLIGHAR' Telephone : 60542 and 60543 Electricity House, Kanpur Ref. No. T.S.C.-1153 P. 1.6.200......
Sri Ashok Kumar s/o Jai Karan worked in this Administration as a daily rated coolie in a temporary capacity on a pay of Rs. 7.15 + 1.15 = 8.30 plus usual Dear Food Allowance for the following period :
From 6.1.1982 ................ to 5.7.1982.
Sd./Illegible 27.9.2002 Seal"
19. These certificates do show that the workmen concerned had worked as daily wager for few days and that the workman was engaged as casual employees for a short period as was contended by the employer.
20. The counsel for the respondent relying upon the case of Central Bank of India v. S. Satyam (infra) has submitted that the concerned workmen were entitled to be re-employed before making recruitment which was not done by the K.E.S.A. in compliance of Section 6Q of the Act read with Rule 43 of the U. P. Industrial Disputes Rules, 1957.
21. He has further relied upon the case of British India Corporation v. Labour Court and Ors., 1978 (36) FLR 427, Reliance has also been placed by the counsel for the respondents on the case of Civil Misc. Writ Petition No, 9128 of 1988, Ram Bilas v. State of U. P. and Ors., decided on 4th September, 1989, by the Lucknow Bench of this Court in which question pertaining to retrenchment and re-employment has been considered and it has been held in that case that after retrenchment of persons who were employed earlier if no offer is made to such retrenched persons they are entitled for employment seniority increments and promotions etc.
22. In the case of Central Bank of India v. S. Satyam and Ors., 1993 (3) AWC 1685 (SC) : AIR 1993 SC 2526, it has been held thus :
"The next provision is Section 25H which is couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25F. It does not require curtailment of the ordinary meaning of the word 'retrenchment' used therein. The provision for re-employment of retrenched workmen merely gives preference to a retrenched workman in the matter of re-employment over the persons. It is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman."
23. The counsel for the petitioners has placed reliance on the judgment of Apex Court in Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors., 1997 (4) SCC 391, in which it has been held that :
"When the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded. The petitioners were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment therefore, cannot be stretched to such an extent as to cover these employees. Since the petitioners are only daily wage employees and have no right to the posts, their disengagement is not arbitrary."
24. The contention of petitioner that it is not possible to maintain record of casual or daily wagers for several years has force particularly when large number of daily wagers are employed by an establishment. It is submitted that even under the Factories Act record of employees is to be maintained for 3 years and as the record of Riverside Power House had been washed away, the employer would not send notice to every worker who had left services 10-15 years back. The said establishment had been closed in 1991. The dispute was raised after many years of closure. It can therefore, take notice that it was not possible to comply with Rules 42 and 43 of the U. P. Industrial Disputes Rules.
25. Thus, for the purpose of Section 25H equal to Section 6Q in U. P. it is not necessary that the person claiming re-employment must have rendered 240 days service in a period of one year but must have been in service earlier and he has to be given notice before employing new hand. It is duty of employer to consider the cases of such retrenched employees, i.e., who have been terminated. But the position in this case is different. The record of daily wagers was not available but it is clear that old workers had notice of new recruitment. It is on record that question was negotiated with union of workers and procedure for recruitment was agreed with union. More than 200 old workers were employed according to agreement who reported for selection and fitness. There is no allegation of any mala fide in selection. It is not the case of workers that they were offered themselves before Selection Committee. It is also to be kept in mind that Riverside Power House where they were employed was subsequently closed down considering all these aspects, in my opinion non-compliance of Section 6Q of the Act and Rule 43 of the U. P. Industrial Disputes Rules cannot be taken to be of much consequence.
26. The labour court has directed by the impugned award that the respondents be taken in service immediately and paid wages from date of award. This direction is not proper. The condition of new recruitment was that old workers would be screened and interviewed and those who are found suitable for the work on which they were employed earlier will be employed. The respondents have therefore, to undergo same exercise. The petitioner will therefore, screen the respondents and if they are found suitable for the job which they were performing at the time of their termination, they will be re-employed. This exercise will be completed within 2 months from the date of this judgment. The award of the labour court impugned in this case is modified accordingly.
27. With the aforesaid directions, the writ petition is disposed of accordingly.
28. No order as to cost.