Chief Justice's Court
Case :- WRIT - C No. - 44690 of 1999 Petitioner :- State Of U.P.
Respondent :- Presiding Officer And Another Counsel for Petitioner :- S.C.
Counsel for Respondent :- C.S.C.,S.N. Dubey
Hon'ble Govind Mathur,Chief Justice
While answering a reference made to it, the Industrial Tribunal (3) Uttar Pradesh Kanpur, held that the termination of workman, Sri Shiv Prasad, S/o Sri Raghu Nandan, with effect from 09th March, 1991, by his employer, was not legal and justified. Accordingly, direction was given for his reinstatement in service with all continuity and back-wages with other consequential benefits. The petitioner- employer while giving challenge to the award impugned, dated 31st May, 1999, urged that the Industrial Tribunal failed to appreciate that the Department of Irrigation is not an industry, as defined under Section 2 (k) of the Uttar Pradesh Industrial Disputes Act, 1947. On 5th November, 1999 when the matter came up before Court for admission purposes, the Court passed an order in following terms:-
"Admit. Issue notice.
Counter affidavit may be filed within six weeks. Rejoinder affidavit, if any, may be filed within 3 weeks of receipt of the counter affidavit.
Prima facie present case raises an important legal question in view of conflicting decisions e.g. 1908 (57) FLR 176 (2 JJ) S.C. (Desh Raj Vs. State of Punjab) dated 20.4.1988. And 1997 (76) FLR 851 (2 JJ) S.C. dated 2.5.1997 (The Executive Engineer Vs. K. Soma Setty). And also in view of my agreement with F.B. AIR 1977 All 1 that later decision to be followed and disagreement with the judgement of another Learned Single Judge-reported in 1999 (83) FLR 497- State of U.P. Vs. P.O. Industrial Tribunal, matters require to be heard.
Present writ petition raises important question of law arising daily in several cases filed before this Court.
The Hon. The Chief Justice may consider for fixing an early date for final hearing of this writ petition alongwith other pending identical writ petitions.
Normally this court would have, while staying the operation of the award, allowed proceedings to be continued in consonance with section 17 (B) U.P. Industrial Disputes Act. In the instant case, award, is given relying upon the case of 1978 (36) FLR 266 (SC) Banglore Water Supply Case) which has already been referred by Supreme Court to larger bench-vide judgment reported in AIR 1998 (III) SC. 2801 Case of (Coir Board Equakulam). Later decision of Supreme Court reported in 1997 (76) FLR 851 (Executive Engineer Vs. Soma Setty) held Department of Irrigation is not industry is in jeopardy and the award in question itself is liable to be declared nullity. Therefore, I direct that operation of the impugned award dated 31.5.99 (Annexure 1 to the writ petition) shall remain stayed and further respondents are restrained from taking proceedings under section 17 (B) Industrial Disputes Act during the pendency of the petition."
It is submitted by learned counsel appearing on behalf of the employer that beside the argument noticed in the order dated 5th November, 1999, the award impugned is bad in eye of law on the count that the workman was not in continuous service, as defined under Section 2 (g) of the Uttar Pradesh Industrial Disputes Act, 1947.
On going through the entire record of the case and after hearing learned counsels appearing on behalf of the parties, I do not find any merit in the argument advanced. In Des Raj Vs. State of Punjab, reported in FLR 88 (57) 176, after taking into consideration functions of the department held that the Department of Irrigation in the State of Punjab is an industry as defined under Section 2(j) of the Industrial Disputes Act, 1947. The functions and operations of the Department of Irrigation in the State of Uttar Pradesh are not different than the functions and operation of the Department of Irrigation in the State of Punjab. In light of that, I am having no hesitation in arriving at the conclusion that the Department of Irrigation in the State of Uttar Pradesh is an industry. So far as the other argument with regard to completion of continuous service is concerned, suffice to state that the workman entered in service of the employer in the year 1988 and then he remained therein without any interruption up till 09th March, 1991.
The workman, as such, is in continuous service of the employer and this aspect has been taken into consideration by the Industrial Tribunal. In detail, the finding arrived by the Tribunal is also a finding of fact that does not require any interference in supervisory jurisdiction of this Court.
The only issue, in opinion of the Court, deserves consideration is the relief granted to the petitioner. The workman admittedly remained in service of the employer for about three years. The dispute was raised by him may be in the years 1998, after a lapse of about seven years from the date of retrenchment. In the period interregnum, the workman must have served some employer to sustain his livelihood. He is also now in his advanced age and, therefore, it would not be appropriate to direct the employer now to reinstate him in service. Hence, the relief relating reinstatement can be suitably modified by awarding adequate compensation.
Looking to the fact that the employee is out of employment from last about 28 years, it would be appropriate to award a compensation of Rs. 6,00,000/- in lieu of the total back-wages and reinstatement in service. Accordingly, the writ petition is disposed of by modifying the award to the extent of the grant of compensation in a tune of Rs. 6,00,000/-, instead of the relief granted relating to reinstatement in service with back-wages. The compensation awarded is required to be paid to the workman within a period of three months from today.
Order Date :- 23.1.2019 Rameez .
(Govind Mathur, C.J.)