By this writ petition, the petitioner is challenging the award of the Labour Court dated 5.5.1998 passed in adjudication proceedings No. 26 of 1990.
The brief facts of the case are that the respondent No. 2 raised an industrial dispute with regard to termination of his services w.e.f. 1.1.1989. The matter was referred to the Labourt Court. The case of the respondent No. 2 before the Labour Court was that he was engaged as a supervisor in the petitioner-department from 1.2.1979 and he worked as such till 31.12.1988 and w.e.f. 1.1.1989 his services were dispensed with.
His contention is that while terminating his services, he was not paid retrenchment compensation and the department being an 'Industry' and the respondent No. 2 having completed more than 240 days of continuous service in 12 calendar months preceding the date of termination, he was entitled for retrenchment compensation and for reinstatement in service. An objection was raised that the Labour Court has no jurisdiction to entertain the matter.
It was further contended by the petitioner-department that the petitioner has been engaged purely as a casual labourer in the Flood Works Division, Deoria. The work being not of a permanent nature, his services were dispensed with w.e.f. 1.1.1989 when the work came to an end.
So far as the contention of respondent No. 2, that the persons junior to him engaged have continued to work, is concerned, it was stated by the petitioner-department that those persons were engaged as and when work was required and in any case, the claim petition was filed before the Labour Court by the respondent No. 2 in 1990 and therefore, the same was barred by time.
I have heard Sri Mata Prasad, learned Additional Chief Standing Counsel and Sri S.C. Srivastava, both appearing for respondent No. 2.
The contention of the learned Standing Counsel is that the work in the Flood Works Division is of an intermittent nature and the work is taken from casual labourer and when the work is over, their services are discontinued. His contention is that the engagement of the petitioner was also for a particular period and particular work. The respondent No. 2 was never engaged against any sanctioned or approved post but he was simply a casual dailywage labourer engaged as per necessity of work and such engagement is only from time to time and as per requirement.
On the contrary, the submission of Sri S.C. Srivastava, learned counsel appearing for the respondent No. 2 is that the respondent No. 2 was engaged as Supervisor on 1.2.1979 and he worked as such up to 31.12.1989 and thereafter w.e.f. 1.1.1989, his services were dispensed with. No retrenchment compensation was paid to the respondent No. 2 and therefore, his termination was illegal and in violation of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947.
From a perusal of the award, it is amply demonstrated that the respondent No. 2 had worked from at least 31.12.1986 up to 3.2.1988. This finding of the Labour Court is based upon photocopies of the muster roll produced in evidence by the petitioner-Department itself and after perusing the same, the Labour Court has recorded a clear finding that the respondent No. 2 has completed more than 240 days of continuous service in the preceding calendar year.
On behalf of the petitioner one Sri Samar Nath Majumdar appeared before the Labour court and he testified with regard to the muster roll filed as Exh.-1. However, the said muster roll was only upto the period of February, 1988 and when a specific question was put to him in the course of proceedings as to why the muster roll of June, 1986, March, 1987, and May, 1988 had not been produced; he had no answer. In any view of the matter, even if, it is assumed that the muster roll of June, 1986, March, 1987 and May 1988 were not produced, this much is undisputed by the silence of the petitioner that from April 1987 up to April 1988, the respondent No. 2 had worked in the Flood Works Division, Deoria and he had completed 240 days of continuous service.
In view of these findings, it is thus, clear that the respondent No. 2 is entitled for retrenchment compensation. However, so far as the question of reinstatement is concerned, the respondent No. 2 himself could not dispute that the work against which he was engaged was of intermittent nature and that he was only a casual labourer, therefore, no direction could have been given to reinstate him in service. The respondent No. 2 had not been appointed against any sanctioned post as per the findings of the Labour Court. He was only engaged as Supervisor in the Flood Works Division and his name appeared in the muster roll. It is only casual labourers whose names are maintained in the muster roll and not that of a permanent employees. Therefore, no direction could have been given by the Labour Court for reinstatement of the respondent No. 2.
At the time of admission, on 10.5.1999, this Court had been pleased to pass the following order:
"In the meantime, the enforcement of the impugned award shall remain stayed provided -
(1) The back wages to the extent of 50 per cent payable under the award are deposited with the concerned Labour Court within two months from today;
(2) a sum equal to wages payable to the workman from the date of the award till the last preceding month is paid to the respondent workman within two months from today; and (3) wages at the rate admissible under Section 17-B of the Industrial Disputes Act, 1947 for the succeeding months shall be paid to the respondent-workman, month by month basis, till further orders of this Court (See Dena Bank Vs. Kirti Kumar T. Patel (A.I.R. 1998 SC - 511).
The back wages so deposited, in terms of this order, shall be invested in some Nationalized Bank by the concerned Labour Court under an interest earning term deposit scheme initially for a period of one year, subject to further renewal. This deposit shall be subject to the ultimate decision of this petition.
In the event of default in complying with any of the aforementioned conditions, the present stay order shall automatically come to an end and award in question shall become enforceable and recovery proceedings, if any, shall revive."
It is not disputed by the learned counsel for the respondent No. 2 that these amounts have been paid to the said respondent and therefore, in the circumstances that being adequate compensation, the petitioner-Department cannot be burdened with payment of month to month wages to the respondent No. 2.
The learned Standing Counsel has relied upon the following decisions of the Supreme Court.
In the case reported in (2008) 1 Supreme Court Cases 575, Mahboob Deepak V. Nagar Panchayat, Gajraula And Another, the Supreme Court held as follows: (relevant paras 8, 9 and 12)
8. The respondent is a local authority. The terms and conditions of employment of the employees are governed by a statute and statutory rules. No appointment can be made by a local authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules as also the constitutional scheme of equality as contained in Articles 14 and 16 of the Constitution of India would be a nullity.
9. Due to some exigency or work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in absence of any statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would not mean that his services were liable to be regularised.
12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. (See M.P. Admn. v. Tribhuban)"
In another case reported in (2010) 9 Supreme Court Cases 126, Incharge Officer And Another v. Shankar Shetty, the Court has held as follows: (relevant para 7):
"7. We think that if the principles stted in Jagbir Singh and the decisions of this Court referred to therein are kept in mind, it will be found that the High Court erred in granting relief of reinstatement to the respondent. The respondent was engaged as a daily wager in 1978 and his engagement continued for about 7 years intermittently up to 6.9.1985 i.e. about 25 years back. In a case such as the present one, it appears to us that relief of reinstatement cannot be justified and instead monetary compensation would meet the ends of justice. In our considered opinion, the compensation of Rs. 1,00,000/- (Rupees one lakh) in lieu of reinstatement shall be appropriate, just and equitable. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9% per annum."
In view of the fact situation of this case and the legal position settled by the Supreme Court, I am of the view that the amount which has already been paid to the respondent No. 2 is adequate compensation and nothing further is required to be paid to him. In the light of the reasons stated above, the writ petition is partly allowed.
There shall be no orders as to costs.
Order Date :- 14.8.2012 Arun K. Singh