JUDGMENT Sunil Ambwani, J.
1. Heard Shri Narendra Mohan learned counsel for the workmen petitioners, in Writ Petition Nos. 30707/94 and 30531/94 and for the same workmen as respondents in connected Writ Petitions; and Shri Ranjit Saxena, learned counsel of the U.P. State Electricity Board, for petitioner in Writ Petition Nos. 12642/95 and 12643/95 and for respondents in the connected Writ Petitions.
2. Briefly stated the facts giving rise to these writ petitions are that the workmen Shri Saheb Lal Kureel and Ratan Lal Kureel, raised industrial disputes, which were referred by the State Government under Section 4(K) of the U.P. Industrial Disputes Act, 1947 (in short, the Act), to the Labour Court I at Kanpur, to decide whether the termination of services of Shri Saheb Lal Kureel and Shri Ratal Lal Kureel, the skilled workmen by the U.P. State Electricity Board on 1.6.78 was proper and valid and if not, the benefits/compensation, which they are entitled to receive and the date and other particulars.
3. The workmen in their written statement stated that they were engaged in the establishment as skilled workmen on 18.1.77 at the rate of Rs. 200 per month. They regularly worked upto 31.5.78. They had participated in the agitation for regularisation of daily wages employees' on which the employer was annoyed with them. The employer terminated their services on 1.6.78 without giving any notice or retrenchment compensation.
4. The U.P. State Electricity Board issued an order on 1.10.80 to regularise all the daily rated employees according to their seniority. The order was not followed and thus all muster-roll employees, who had completed 240 days of service in a year gave notice to the establishment for their regularisation. In a Notification issued by the Board 524 posts were declared to be vacant for regularisation. The workmen concerned with the dispute could be re-employed, however, instead of giving employment to those, whose services were illegally terminated, the persons from outside were employed. The employees preferred representations on 3.6.78, 3.9,78, 17.3.79 and 5.2.88 etc., but no action was taken.
5. The Labour Court I, Kanpur sent summons to the Executive Engineer, Electricity, 400 KV, Sub-station, Panki, Kanpur. These notices dated 25.6.1991 were refused to be accepted and were returned with the endorsement of refusal. The Labour Court found that the summons were correctly addressed and that full address of the employer namely Executive Engineer, Electricity, 400 KV, Sub-station, Panki, Kanpur was given and then proceeded to decide the matter ex-parte.
6. The workmen produced the documentary evidence and examined themselves to prove their case. The documents included the order of the Board dated 1.10.80, which was proved by them. By this letter the Board had decided that all those employees, who have been retrenched by Board's order dated 3.7.79, shall be considered for re-employment in the vacancies arising in the circle, in accordance with their seniority, suitability and character.
7. A press note issued by the Board, tiled on record had declared that all those work charge employees and daily wages employees, who were drawing a minimum of Rs. 2/- per day and those, who have worked on the maintenance sites for more than 3 years shall be regularised. This advertisement included the skilled employees including cable jointer, store keeper lineman SVA9. turbine driver, helper, fitter and lohar.
8. The Board's order dated 25.2.81 provided that those muster roll employees who have completed 240 days in a year will be considered for employment in the vacancies before making any fresh recruitment. These documents and statement of the workmen recorded by the Labour Court established that they were a muster roll employee and entitled to the benefit of the orders of the Board. They were working on the post covered by the advertisement. They had not completed three years of service and were entitled to the benefit of orders of the Board dated 25.2.81. The workmen established that they had completed 240 days of service in a year working at Panki Power Station.
9. The Labour Court held that retrenchment was illegal as it was made without giving retrenchment compensation and notice. By the award dated 31.8.92 in Adjudication Case No. 149/91 (in respect of Shri Saheb Lal Kureel) and the award dated 27.8.92 in Adjudication Case No. 148/91 (in respect of Ratan Lal Kureel) the Labour Court made the workmen entitled to compensation of 45 days wages at the rate of Rs. 200 per month along with allowances and for re-employment on any vacancy, which may arise, after the date of the award, at Panki Power Station. The Labour Court did not give the benefit of reinstatement and back wages.
10. The workmen in their writ petitions have challenged the Award to the extent that the petitioners may be directed to be absorbed in the services from the date of their retrenchment, with back wages and other benefits. The U.P. State Electricity Board has prayed for quashing the entire award.
11. Shri Ranjit Saxena appearing for the Board submits that the Labour Court committed gross error of law in proceeding to decide the dispute ex-parte. The notices were wrongly addressed and that even if they were refuse the procedure under Rule 11 of the U.P. Industrial Disputes Rules, 1957 provided for service in accordance with the provisions of Code of Civil Procedure, which requires under Order V, for pasting the notices on the gate of the addressee was required to be followed. He further submits that there was delay of 11 years in raising the industrial dispute. By this time there was no dispute left to be referred and considered by the Labour Court which has not considered the matter of delay and proceeded to decide as if there was a pending dispute between the parties.
12. On merits Shri Saxena submits that the workmen were seized to work on account of a decision taken by the Board and that there were no vacancies for their absorption. He submits that even if it was found that the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 were not complied with, the Labour Court could only award retrenchment compensation. According to him the later portion of the award namely the direction for re-employment in case of any vacancy according to seniority, could not be given. He has relied upon the judgments in North West Karnataka R.T. Corporation. v. Abdul Salam 2002 (II) LLJ 297, Assistant Executive Engineer v. Sri Shivlinga FLR 2002 (92) 601 and U.P. State Electricity Board and Ors. v. P.O. Labour Court, Kanpur Ors. 1998 (78) FLR 511.
13. In support of his submissions with regard to delay in raising industrial disputes Shri Saxena has relied upon the judgments in Municipal Corporation Faridabad v. Sri Niwas 2004 (4) AWC 2847 Chief Engineer (Construction) v. Keshava Rao (D) by Lrs. 2005 (3) JT 451, Range Forest Officer v. S.T. Hadimani and Essan Deinki v. Rajiv Kumar 2002 (95) FLR (SC) 949. He further submits that the initial burden of proving that the workmen had worked for 240 days is on the claimant.
14. Shri Narendra Mohan Learned Counsel appearing for the workmen submits that the summons were correctly addressed and were sent in accordance with Rule 10 of the U.P. Industrial Dispute Rules, 1957. The employer deliberately refused to accept the summons on false pretext and thus service was correctly presumed by the Labour Court to be sufficient. The workmen had filed documents to prove that they had worked for more than 240 days in a year and were illegally retrenched. The Labour Court committed gross error of law in failing to award reinstatement with back wages. The workmen had been all along requesting for reinstatement and had made several representations. The Board had issued orders for reemployment of retrenched workmen in accordance with their seniority. Insted of giving employment to the petitioner- workmen, fresh hands were employed. The dispute was all along pending and was agitated by the workmen from 1979, to the date of reference of the industrial dispute to the Labour Court. He submits that in such cases when termination is declared to be illegal and violative of Section 6-N of the U.P. Industrial Disputes Act, the Labour Court should have directed reinstatement, unless there was any pleading of closure of establishment or no confidence against the workmen. He has prayed for reinstatement with back wages and has relied upon judgment of this Court in U.P. Rajya Khand Evam Avasyak Vastu Nigam Ltd., Agra and Anr. v. Labour Court, Agra and Anr. 2004 (101) FLR 873 and Naresh v. Presiding Officer, Labour Court, Dehradun and Anr. 2004 (102) FLR 1008 in support of his submissions that where a retrenchment is violative, of the conditions of Section 6-N of the Act, the workmen should be reinstated. The Court, however, may in the facts and circumstances, make orders with regard to the back wages on the principles settled by the Supreme Court.
15. The U.P. Industrial Disputes Rules, 1957, provides for the procedure to be followed by the Labour Court in deciding a industrial disputes. Rule 10 and 11 give the procedure for issuance of service of summons or notice. Rule 11, relevant for the purposes of this Court is reported as below:
Service of summons or notice:
Any notice, summons, process or order issued by a Board, Labour Court, Tribunal or Arbitrator may be served either by personal delivery or by registered post or in any other manner prescribed in this behalf in the Code of Civil Procedure, 1908 (Act V of 1908).
16. The records the proceedings were summoned from the Labour Court. A perusal of the records shows that reference Nos. 148/91 and 149/91 were received on 10.6.91 and registered on 18.6.91. On the same day Shri Mathura Prasad, the Presiding Officer directed issuance of summons to the parties. On 1.8.91 the workmen were present.
17. The record of the Labour Court, further shows that a letter (Paper No. 6/D), was received by Addl. Labour Commissioner, Kanpur from Shri N.S. Verma, Executive Engineer, Electricity, 400 KV, Sub-Station, UPSEB, Panki, Kanpur, referring to the order No. 1785/89/KR (Branch Secretary) dated 10.6.91 by which the reference was sent to Labour Court-I, Kanpur for adjudication. The Executive Engineer informed the Addl. Labour Commissioner, Kanpur that the dispute was raised after 10 years and was barred by time, the matter was dropped by the letter of the Addl. Commissioner dated 16.3.91 and was again revived for unknown reasons. The Executive Engineer requested to drop the proceedings.
18. On 24.8.91 the workman was present and was required to file written statement by the next date. On 19.9.91 the Labour Court directed the summons to be sent to the employer. On 11.10.91 it was found that the employer has refused to accept the summons. The registered post envelope (document No. 10/D) bears an endorsement dated 25.9.91 that 'since the division has not been written, the summons were refused' (English translation) and, thereafter, the matter proceeded ex-parte. In adjudication case No. 149/91 similar orders were passed.
19. The rules are made to secure justice. Where the summons were refused the process server under the Rule 17 and 18 of Order V, CPC was required to affix a copy of summons on the outer door or some other conspicuous part of the house in which the defendant/employer resides or carries on business, with a report that he has affixed the copy, with the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. In the present case this procedure was not followed. The summons as such could not be deemed to be served, strictly in accordance with Rule 17 of the Order V CPC and it was so held in the case reported in Sushil Kumar Sabbarwal v. Gurpreet Singh 2002 (5) SC 377.
20. However, I find in the present case that the employer was aware to the reference made to the Labour Court. The letter dated 17.7.91 (paper No. 6/D) written by N.S. Verma, the Executive Engineer to the Addl. Labour Commissioner, U.P., clearly establishes this fact. The employer as such was fully aware of the reference and thereafter, refused to accept the summons on the pretext that the name of division was not written such u refusal was not bonafide. In the circumstances, I find that even if the summons were not pasted on the door or walls of office of the Sub-Station, the irregularity, will not vitiate the finding of service of summons and actual knowledge of references to the Labour Court I, Kanpur.
21. Both the workmen in their statement clearly stated that they were employed as skilled workmen at Electricity 400 KV, Sub-Station, U.P.S.E.B.. Panki, Kanpur. Shri Saheb Lal Kurecl, the workman of Adjudication Case No. 149/91 and Shri Ratan Lal Kureel, in Adjudication Case No. 148/91, stated on (7.4.92) that they were engaged under the Executive Engineer, 400 KVA, Sub-section UPSEB, Panki, Kanpur on 18.1.79 and 1.5.78 respectively and worked upto 31.5.78 and 20.8.79. They were paid Rs. 200/- and Rs. 210/- respectively and were carrying out the work of maintenance. They were retrenched on 1.6.78 and 21.8.79 without giving any notice or retrenchment compensation whereas their juniors were made regular. They gave applications and raised issues through their Union.
22. The Board had entered into an agreement with the workmen and issued an order on 1.10.80 to re-employ the retrenched employees according to their seniority. The settlement with the workmen and the notice of the Union dated 11.3.90 was exhibited as Exhibit Nos. D/2 and D/5 respectively. The letter of the Union dated 25.2.81 was also filed on record.
23. In the year 1988-89 some posts fell vacant and in the year 1989 the Board had declared 524 vacancies, to be filled up from retrenched employees, who had worked for more than 240 days. The demand of the workmen and the findings of the Labour Court clearly established that the workmen had agitated issues of their reinstatement. There was a large scale agitation on which the Board had entered into a settlement with the workmen on 1.10.80. The matter with regard to the reinstatement of retrenched workmen, was continuously agitated by the Union. The Board has declared 524 vacancies on 4.9.89 to be filled in from the retrenched muster roll employees, who had completed more than 240 days of service, according to their seniority. The workmen through their Union were therefore represented and the matter remained pending between employer and the workmen upto the year 1990. When these workmen could not get the reinstatement, they requested for adjudication and, thereafter, the matter was referred to the Labour Court. In the circumstances, it cannot be said that the delay was not properly explained or there was no live dispute to be considered and decided by the Labour Court on the date of reference.
24. I find that instead of applying the settled principles of Labour laws and the consequences of not following the conditions precedent to retrenchment, provided under Section 6-N of the Act, the Labour Court only enforced the policy letters of the Board to re-employ the retrenched worker. The workmen in this case were not engaged in any seasonal, casual or intermittent work. They are 'skilled workmen' and were engaged for maintenance work, which does not come to end, unless the plant is closed. There is no such pleading in the writ petition that there were no vacancies, after the workmen were retrenched, for their absorption.
25. The stand taken by the Board in paragraph 11 of the writ petition that the notice was wrongly addressed to Panki Thermal Power Station, is not correct. They have not disputed the facts stated in the award of the Labour Court. The writ petitions by the Board have been casually drafted and apparently with the misplaced confidence that the ex-parte award shall be set aside by the Court.
26. The Board has not denied that the workmen had agitated for their retrenchment and that they have been continuously agitating the matter by making representations as well as taking up the matter through the Union. The Board has also not denied that it had notified the 524 vacancies on 4.9.89 to be filled up from the retrenched muster roll employees, who had completed 240 days of service in a year in accordance with their seniority. The Board has also not denied that fresh hands were taken in violation of its policy to the preference to the retrenched employees.
27. The Board filed applications for setting aside the ex-parte award, on the ground that they were not served with the summons. These applications were filed in December, 1994 and were rightly dismissed by the Labour Court on the ground that the employer has refused to accept summons and that the applications were filed much after 30 days of the receipt of the award.
28. In the circumstances, I find that the Labour Court instead of following the settled principles of Labour law for reinstatement where the retrenchment is found to be violation of Section 6-N of the Act, gave relief in accordance with the notification of the Board to give preference to retrenched employees in accordance with their seniority. Once it was held that the retrenchment was violative of Section 6-N of the Act, the Labour Court should have directed reinstatement, unless there was any such circumstance on record, which may have disentitled the workmen from such relief.
29. Consequently, the writ petition Nos. 12642/95 and 12643/95 filed by the Board are dismissed and the writ petition Nos. 30707/94 and 30531/94 filed by the workmen are allowed to the extent that the workmen shall also be entitled to reinstatement.
30. The workmen, however, shall not be entitled to back wages as they have not worked for this period and will only be entitled to compensation quantified at Rs. 35,000/- each, both for wrongful termination of their service and costs of the proceedings.