Heard Sri Vivek Ratan, learned counsel for the petitioner and Sri Sudhansu Narain, learned counsel appearing for respondent no.2.
Present petition has been filed challenging the award dated 15.3.2000 passed by the labour court, Agra in Adjudication case no.82 of 2000. The award was published on 14.11.2000 under Section 6 of the U.P. Industrial Disputes Act (hereinafter referred as the 'Act'). The reference was made under Section 4-K of the Act in C.P. case no. 334 of 1998 dated 9.2.1999 is as follows:-
Whether the termination of services of Technician workman Pravin Kumar Sharma son of Sri Nirmal Kumar Sharma with effect from 22.4.1997 is valid and legal? if not, to what relief the workman is entitled to and with what other details, if any.
The labour court answered the reference in favour of the workman respondent no. 2 and directed the petitioner employer to reinstate the respondent no. 2 with back wages and all consequential benefits. Back wages were directed to be calculated at the rate of minimum wages prescribed for the workman.
The present petition was heard for admission on 15.1.2001. While granting time for filing counter affidavit to the learned counsel appearing on behalf of the respondent no.2, the direction was given to permit the respondent no. 2 to join his duties immediately and if he does so, he was held entitled for payment of current salary at the rate which he was getting at the time when his services were terminated.
Further operation of impugned award dated 15.3.2000 published on 14.11.2000 was stayed provided the petitioner employer deposits the entire amount of back wages payable to respondent no. 2 within 60 days from the date of the order. The amount to be deposited by the petitioner was directed to be invested in fixed term deposit in a nationalized bank initially for a period of one year for the benefit of respondent no.2. However, the deposits have been made subject to result of the writ petition. It was further directed that in the event of failure of deposit to be made by the petitioner the interim order shall automatically vacated and the award shall become executable at once.
The case of the petitioner set up is that respondent no. 2 workman was employed as a Helper with effect from 1.7.1987 and he was promoted to the post of Technician on which post he worked till he retired and resigned from the services of the petitioner with effect from 15.3.1996. The respondent no. 2 left the services on his own and was paid the entire dues/wages upto the date till he worked and he was given bonus and gratuity. The amount towards full and final settlement of the dues of the workman was paid vide cheque no.02112287 dated 31.3.1996 The said amount was encashed and debited to the account of respondent no.2.
The workman filed Misc. case no. 99 of 1997 under Section 33-C(2) of the Act before the labour court, Agra claiming wages for the period from 1.4.1996 to 22.4.1997 as well as retrenchment compensation bonus etc. The claim of the workman was that he has not been paid wages since March, 1996 and on demand made by him the employer had illegally terminated his services with effect from 1.10.1997. By means of application moved under Section 33-C (2) the amount of Rs.69,050.12 was claimed towards wages, payment in lieu of notice, retrenchment compensation, bonus for the year 1994-95, 1995-96 and 1996-97 alongwith 12% interest till disposal of the matter. The claim of the workman was rejected by the labour court vide order dated 26.3.1999 on the grounds that though the workman in his application had submitted that he worked till 30.9.1997 however in the oral evidence he had stated that he worked till 22.4.1997 and the services were terminated with effect from that date and further since the dispute regarding his termination pending before the Labour Commissioner was to be adjudicated by an award and there was no basis for computation of payment demanded by the workman. The workman aggrieved by the order dated 26.3.1999 filed review which was rejected by the order dated 14.3.2000. In the meantime, the conciliation failed and the dispute was referred by the State Government to the labour court vide order dated 9.12.1999.
Before the labour court, the workman and petitioner employer filed their written statements. The contention of the petitioner regarding illegal termination of services was disputed by the employer in their written statement on the ground that he had never worked after 15.3.1996 and the payment of wages etc. till 15.3.1996 has been made towards full and final settlement vide cheque no. 021887 drawn on Bank of Baroda.
Disputing the said submission, the employer workman in paragraph 4 of the rejoinder statement submitted that no payment had ever been received by him. He worked till 22.4.1997 and his services had been illegally terminated with effect from 22.4.1997. The rejoinder statement filed by the employer is the reiteration of submissions made in the written statement.
Learned counsel for the petitioner submits that the award was passed by the labour court in favour of the workman on the sole ground that the workman had recorded his statement to substantiate the assertions made in the rejoinder statement and proved the relevant documents whereas the employer did not adduce any evidence despite opportunity given to them as such the statement of the workman remained undisputed and therefore the same was accepted as such. The labour court had recorded that the statement of the workman that his services were terminated with effect from 22.4.1997 when he made a demand for bonus and minimum wages is worthy of acceptance as his assertions remained unrebutted on account of non-production of any evidence on the part of the employer. In view thereof, without recording any further reason, the labour court directed for reinstatement with back wages and other service benefits.
Further contention of the learned counsel for the petitioner is that 7.3.2000 was the date fixed for evidence of the workman. The workman did not give his evidence on the said date and accordingly the labour court fixed 13.3.2000 for hearing. In view of the fact that the workman did not give his evidence on 7.3.2000, the petitioner also did not give his evidence. The labour court proceeded and heard the matter on 13.3.2000 on the basis of documents on record and reserved the award.
Further submission of the learned counsel for the petitioner is that there is interpolation in the order sheet dated 7.3.2000 and the word 'Nahin' was scored out. The statement of the workman was never recorded before the labour court in the presence of the petitioner. The statement of workman alleged to have been recorded on 7.3.2000 existing in the record of the labour court is a typed copy and the same was added later on in connivance with the staff of the labour court.
This apart, the labour court without recording any reason and without giving any finding has held that the services of the workman was wrongly terminated on demand raised by the workman. The only finding recorded by the labour court i.e. services of the workman were terminated on 22.4.1997 on account of demand raised by the workman for bonus and wages, is based on surmises and conjunctures and is against the material evidence on record.
Refuting the submissions of learned counsel for the petitioner, learned counsel for the respondent workman submits that no payment was made to the workman as alleged by the employer towards full and final settlement of his wages etc. The workman had never received any cheque nor he resigned as alleged by the petitioner. He further submits that the workman had never been paid his wages from 1.4.1996 to 22.4.1997 and further his services were wrongly terminated with effect from 22.4.1997 without following the provisions of Section 6-N of the Act. There is no interpolation in the order sheet of the labour court dated 7.3.2000. The corrections made in the order sheet dated 7.3.2000 was of the same date and the Presiding Officer, labour court put his initials. The statement of the workman was recorded and got typed on 7.3.2000 itself. The allegations made in the writ petition to this effect are incorrect. The personal allegation made against the Presiding Officer of the labour court cannot be looked into in view of the fact that he had not been impleaded personally. He further submits that all these allegations of collusive acts made in the writ petition are after-thought. The petitioner did not give any evidence inspite of repeated opportunity given to them. The assertions of the learned counsel for the petitioner that on 7.3.2000, as no evidence was given by the workman, the labour court fixed 13.3.2000 for hearing of the case is incorrect from bare perusal of the order sheet annexed with the writ petition. According to the workman, 13.3.2000 was the date fixed for evidence of the employer and no evidence was given by the employer on that date and as such hearing proceeded and the award was reserved.
He further submits that even if, it is accepted for the sake of arguments that the workman did not give any evidence, there was nothing to stop the petitioner employer from giving their evidence. They themselves chose not to give any evidence on 13.3.2000 which was the date fixed for their evidence. Infact the employers had to support their case by producing their evidence. They cannot say that as the workman never gave any evidence so they did not give their evidence. This defence of learned counsel for the petitioner cannot be accepted at all. The labour court had rightly accepted the case of the workman in absence of any evidence to rebut the assertions made by the workman. The burden was upon the employer to prove that the workman had abandoned his services and there was no termination at all. Having failed to discharge their burden, the petitioner employer is trying to level baseless allegations upon the workman, the Presiding Officer and staff of the labour court. The learned counsel placed reliance upon the judgment reported in 2004 (103) FLR 102 (M/s NICKS (INdia) Tools vs. Ram Surat and another to substantiate the same.
He further submits that despite interim order dated 15.1.2001 passed by this Court, he was not allowed to join the duties. Thus the interim order automatically vacated on account of non-compliance of the conditions mentioned therein and as such an application under Section 6-H(1) of the Act was moved before the labour court.
The Deputy Labour Commissioner, Agra after hearing the parties, by the order dated 2.5.2001 directed for recovery of the wages from the petitioner holding that as the deposits have not been made by the employer within a period of 60 days, the interim order stands vacated and became ineffective. Challenging the order dated 2.5.2001 passed by the Deputy Labour Commissioner, Agra the petitioner filed a writ petition no. 26606 of 2001 before this Court on the ground that no opportunity was provided to them. The writ petition was heard and disposed of vide order dated 24.7.2001 and the Regional Deputy Labour Commissioner, Agra was directed to decide the case by a reasoned order after giving opportunity of hearing to both the parties. The proceedings for recovery had been stayed till the decision. After remand, the application under Section 6-H (1) moved by the respondent no. 2 was rejected vide order dated 1.6.2004 and it was observed therein that the workman had made a proposal dated 7.6.2001 that in case a lump sum amount is paid to him, he would end all the dispute as he did not want to work in the establishment. In view of the proposal made by the workman, the employer offered an amount of Rs.25000/- which was not accepted by him as such the reconciliation between the workman and the employer had failed.
An application dated 7.7.2004 was moved by the workman that the Deputy Labour Commissioner in the order dated 1.6.2004 had wrongly recorded that some proposal was made by the workman. Infact, the employers did not comply with the conditions mentioned in the interim order dated 15.1.2001 passed by this Court. The deposits made by the employer were not made correctly in as much as incorrect computation was made. The employer was under obligation to deposit the back wages at the rate of minimum wages admissible to the workman on 22.4.1997 whereas the deposits were made by them according to their own calculations which was incorrect. The application of the workman dated 7.7.2004 was also rejected by the order dated 5.4.2005 passed by the Regional Deputy Labour Commissioner, Agra on the ground that there is dispute with regard to quantum of wages between the workman and the employer and no computation can be made in the proceedings under Section 6-H (1) of the Act, therefore the application of the employer dated 7.7.2004 was disposed of with observations that he may get the computation done from any competent labour court.
While summing up, the submissions of the learned counsel for the workman is that it is a clear case of retrenchment and the employers have failed to produce any evidence in support of their allegations that the workman had himself abandoned the job. This apart, they have not complied with the interim order dated 15.1.2001 passed by this Court and the workman was not allowed to join and work, the writ petition deserves to be dismissed on this ground alone.
In rejoinder the learned counsel for the petitioner drawn attention of the Court to the supplementary rejoinder affidavit filed by them in order to submit that several letters were sent to the workman to come and join but he did not turn up despite receipt of the letters. He further submits that on 18.10.2006, this Court had passed an order and permitted time to the petitioner to comply with the order dated 15.1.2001 and permit the workman to join service latest by 6.11.2006. In compliance of order dated 18.10.2006 passed by this Court, a communication dated 27.10.2006 was sent to the petitioner calling upon him to join the establishment. However, the respondent no. 2 workman did not turn up to resume his duty as he was not interest in working in the establishment.
In reply to the said assertions of learned counsel for the petitioner, learned counsel for the respondent no.2 drawn attention of the Court to the application dated 6.11.2006 moved by the respondent No. 2 workman to the Director of the establishment. It was informed that he was allowed to join duty on 6.11.2006 at 11:45 A.M. but was not allotted any work and oral direction was given to sit near the gate of the establishment till 5:30 P.M. He remained seated therein. When he tried to give the letter, the workman was asked to leave the place as such the letter was sent through registered post.
Learned counsel for the respondent no.2 further submits that the alleged signatures on the acknowledgment annexed with the supplementary rejoinder affidavit in 'English' of the workman respondent no. 2 are forged. The workman does not sign in 'English'.
It may be noted that by the order dated 23.10.2007, this Court had directed to call for the original record of the labour court which was placed alongwith the file and was produced by the learned Standing Counsel when the hearing in the case commenced.
Having heard learned counsel for the parties, perused the record and the original record of the labour court produced in the Court, the first point which is to be answered by this Court as to whether there was interpolation in the order sheet as alleged by the learned counsel for the petitioner. I have carefully perused the order sheet in original and the statement of the respondent no. 2 on record.
From perusal of the order sheet of the labour court it is evident that on 7.3.2000, there is cutting and word 'nahin' has been scored out. The order sheet dated 7.3.2000 further indicates that 13.3.2000 was the date fixed for evidence of the employer. In so far as the corrections made in the order sheet dated 7.3.2000, it is apparent that the Presiding Officer had put his initials over the cutting and, therefore, the contention of the learned counsel for the petitioner that merely because there was some cutting in the order sheet it amounts to interpolation cannot be accepted in absence of anything else on record. In so far as the order dated 13.3.2000, it has been clearly recorded that the employer did not give their evidence and as such the hearing proceeded and the award was reserved after hearing learned counsel for both the parties. The contention of the learned counsel for the petitioner that as no evidence was given by the respondent no. 2 on 7.3.2000 and 13.3.2000 was the date fixed for hearing is incorrect from bare perusal of the order sheet. Further, it may be noted that on 13.3.2000 both the parties were present and the hearing was concluded. Admittedly, no evidence was adduced by the employer despite opportunity given to them. His contention that the submission of the workman was added later on is not worthy of acceptance. From perusal of the record of the labour court I am of the view that there is no interpolation as the cutting made by the officer had his initials. The opportunity was given to produce evidence to both the parties and the hearing was proceeded in presence of both the parties. In case, the employer had any reservation about the hearing having been proceeded on 13.3.2000, they could have submitted their objections before the labour court rather the submission of the petitioner in the writ petition is that as no evidence was adduced by the workman, they did not give any evidence. This submission of the petitioner shows that the petitioner themselves chose not to give any evidence before the labour court.
Now, the main question which arises for consideration is whether the award passed by the labour court requires interference. In this regard, from the facts brought on record it is clear that the fact that the workman was in permanent service of the petitioner till 15.3.1996 is not in dispute. He was a permanent employee who was employed as Helper with effect from 1.7.1987 and was promoted to the post of Technician in due course of time. Only ground taken by the petitioner for challenge is that the workman had abandoned the job and his services were never terminated. It is settled principle of law that the burden of proving that workman had voluntarily left the service falls upon the petitioner employer. Admittedly, no evidence was led by the petitioner employer to substantiate their plea that the respondent no.2 workman had abandoned his job. The plea taken by the petitioner employer that the payment towards full and final settlement of the workman due till 15.3.1996 has been made through cheque dated 31.3.1996 was categorically denied by the workman in his written statement as also rejoinder filed before the labour court. In this regard also, no evidence was laid by the employer before the labour court. The bank statement and the counterfoil of the alleged cheque dated 31.3.1996 has been annexed alongwith the writ petition as annexure 2. The same cannot be looked into by this Court. These documents ought to have been placed before the labour court by the petitioner so that the statement of facts could have been examined by it. This Court under Article 226 of the Constitution of India cannot examine the disputed questions of facts and therefore, contention of the petitioner that the respondent no. 2 employee had abandoned and payment was made to him towards full and final settlement of his dues cannot be accepted in view of the observations made above. This apart, there is nothing on record to suggest that the alleged amount is sufficient as full and final settlement towards dues of the workman. There was specific denial on the part of the workman of the said fact which remained unrebutted. The contention that the evidence was not led by the employer for the reason that the workman did not adduce any evidence is reckless and ridiculous and shows carelessness on the part of the employer in contesting the matter.
Learned counsel for the petitioner while elaborating his arguments submitted that even if no evidence was led, the award passed by the labour court cannot be sustained for the reason that the labour court was under obligation to consider as to whether any relief at all could be granted in favour of the workman. He placed reliance upon judgment of the Apex Court in Krishi Utpadan Mandi Samiti vs. Pahal Singh reported in 2007(113) FLR 818. The facts of the said case is totally different in as much as in the case of Krishi Utpadan( supra) the dispute was raised by the workman after 18 years and he was in employment for a short period. The question was also as to whether he was in continuous service within the meaning of Section 2( g) of the Act and whether the employer did not comply with the requirement of Section 6-N of the Act; whereas in the instant case, no such issue had arisen for adjudication for the reason that there was no dispute as the workman was a permanent employee and was granted promotion. He was in continuous employment of the petitioner till 15.3.1996 (as per the case of the employer) whereas as per the case of the workman he was in service till 22.4.1997. The workman also approached the competent authority for payment of his wages under Section 33-C(2) of the Act and raised the industrial dispute in the year 1997 itself. There was no delay on the part of the workman and only question for adjudication was as to whether he had abandoned the job or the employer had terminated his services.
As already discussed above, the question of facts were to be decided by the labour court on the basis of evidence led by both the parties. The burden was upon the employer, he failed to discharge the same as no evidence was led and therefore the labour court had no option but to accept version of respondent no.2 workman. In view thereof, findings recorded by the labour court that the services of respondent no. 2 workman were illegally terminated with effect from 22.4.1997 without complying with the provision of Section 6-N of the Act cannot be faulted and requires no interference by this Court. The award passed by the labour court dated 15.3.2000 is hereby upheld.
Now the question remains as to what relief can be granted to the respondent no.2 workman at this stage in view of subsequent developments which have been brought on record.
As indicated above, when the writ petition was presented before this Court, an interim order dated 15.1.2001 was granted directing the petitioner to reinstate the respondent no. 2 and pay his current salary. The respondent no. 2 workman moved application under Section 6-H(1) of the Act for recovery of entire back wages before the Regional Deputy Labour Commissioner who in its order dated 2.5.2001 had recorded that the employer had deposited the amount of Rs.64,150/- towards back wages at the rate of Rs.1500/- from 22.4.1997 till 15.11.2000 i.e. the date of publication of the award. The contention of respondent no. 2 employee was that the amount was not sufficient as the employer was required to deposit the back wages at the rate of minimum wages to which he was entitled as per the award within 60 days from the date of its order dated 15.1.2001.
In the proceedings under Section 6-H(1) of the Act, the recovery certificate was issued. However, the said order was recalled on 1.6.2004. In the application dated 7.7.2004 filed by the workman, only prayer made was for recall of the order dated 1.6.2004 and for issuance of the recovery certificate. It may be noted that the workman did not join the establishment. The cross allegations are that the employer did not allow him to join. The petitioner employer says that inspite of repeated reminders to the workman he did not turn up. Despite the said fact, in none of the application filed before the competent authority under Section 6-H(1) of the Act for execution of award the workman had never pleaded that he was not allowed to join the establishment. An order dated 18.10.2006 was passed by this Court permitting the workman to join latest by 6.11.2006. According to the employer the workman was communicated with the order dated 27.10.2006 to come and join. However, he did not turn up. On the other hand, the case of the workman in supplementary counter affidavit is that the communication was never received by him, rather he was allowed to join on 6.11.2006 but no work was allotted to him. As such, he submitted an application dated 6.11.2006 to the Directors of the establishment with the request to allow him to work, the application was sent by the registered post. The employers have denied receipt of the application.
From the analysis of all these facts, it is clear that the workman had worked in the establishment till 22.4.1997 when he was terminated. He did not work thereafter despite the interim order granted by this Court. Whether he was permitted to join or not or he himself did not turn up is the question of fact which cannot be decided by this Court. More so, for the reason that in the proceedings under Section 6-H(1) of the Act, the workman did not make any complaint nor made any prayer to allow him to join. He did not challenge the two orders before any court of law rather he succumbed to the same.
Now since there is no dispute that the petitioner was a permanent employee of the establishment and worked at least upto the date admitted by both the parties, his services could not have been terminated in the manner as was done by the employer. It is, therefore, directed that the petitioner shall reinstate the respondent no. 2 within a period of six weeks from the date a certified copy of this order is produced before it. The respondent no. 2 shall be entitled to back wages as per the award and in pursuance of the interim order dated 15.1.2001 passed by this Court.
However the respondent no. 2 shall not be entitled to wages after 15.1.2001 till the date of his actual reinstatement as he did not work during the aforesaid period despite the interim order granted by this Court. As discussed above, the respondent no. 2 did not make any effort for getting into service and blamed the petitioner for not allowing him to join. Having perused the orders passed by the Regional Deputy Labour Commissioner under Section 6-H(1), it is clear that respondent no. 2 was at fault in not making any effort to join the establishment.
Having not worked in the establishment he is not entitled to the back wages after the interim order dated 15.1.200 on the principles of 'No work no Pay'. It is trite that award of back wages does not follow automatically in pursuance of setting aside the order of retrenchment in violation of provisions of the Act.
It is further directed that in case, the respondent no. 2 workman joins the establishment he shall be entitled for continuity of service with all consequential benefits apart from back wages for the aforesaid period and shall be paid current salary at the rate as admissible to his post of Technician.
The writ petition is dismissed.
Order Date :- 29.11.2012 P.P.