Heard Shri Amit Singh Bhadoriya, learned counsel for the petitioner as well as learned Standing Counsel and Shri Shiv Kumar Yadav, learned counsel for the opposite party no. 3.
The present writ petition arises out of the Award dated 11.8.1987 passed by the Presiding Officer, Labour Court, Faizabad, published on 9.1.1998 whereby the Labour Court allowed the claim of Ram Raj [opposite party no.3] and held the order of termination to be bad in law and also directed for reinstatement of opposite party no.3 in service with 5% back wages and Rs. 250/- as cost of the case.
Brief facts giving rise to the present dispute are that allegedly Ram Raj [opposite party no.3] was working as Muster Roll Workman under the Employer Executive Engineer, Electricity Distribution Division-I, Faizabad i.e. Petitioner No. 2 where it is said that he worked for more than 03 years and without any prior notice as well as compensation he had been removed from service on 31.10.1973. Aggrieved by the aforesaid act of the petitioners, he approached the labour Court in the year 1989. The Labour Court, vide its order dated 11.08.1997, passed in Adjudication Case No. 148 of 1992, held the act of employer illegal and passed the Award as mentioned above.
Being dissatisfied with the aforesaid Award dated 11.8.1997, the U.P. State Electricity Board has filed the instant writ petition inter-alia on the ground that the court below wrongly held that the opposite party no.3 had worked under the petitioners although there is no evidence on record giving such finding and hence the Award based on such finding is illegal and arbitrary. Further, there is no finding that the opposite party no.3 had worked for one year continuously hence the court below cannot held that Section 6(N) should have been complied with and for want of such finding the learned labour court has wrongly assumed that the opposite party no.3 has been retrenched.
Learned counsel for petitioners has also questioned the sustainability of the Award passed by the Labour Court alleging that the issue in hand was referred to the Labour Court on 26.09.92 with a reference:
"Whether it is proper and legal to remove/deprive the workman Shri Ramraj son of Shri ShriRam on 31.10.1973 from work by the employers? If not then for which compensation or benefit, the concerned workman is entitled?"
Whereupon the Labour Court has allowed the claim of private respodent on the basis of conjectures and surmises without there being any cogent evidence regarding appointment of private respodent on 31.10.1970 and subsequent termination on 31.10.1973. Further, there was no witness to prove the working of said private respondent during the period 31.10.1970 to 31.10.1973 under the petitioners in Faizabad.
On the contrary, learned Counsel for the opposite party no.3 while defending the Award submitted that he was working as a Muster Roll Workman and he had been removed from service on 31.10.1973, without any prior notice and compensation. Even after his removal from service, new workmen were appointed as well as services of contract labours were also taken but O.P. No.3 had never been given opportunity to work, therefore, Section 6H, 6P, 6Q of U.P. Industrial Dispute Act have been infringed. In support of his version, O.P. No.3 had filed an order issued by Sub-Divisional Officer, Rural Electricity Distribution Division, Akbarpur dated 01.11.1973 and an affidavit of co-workman Sarju Prasad. According to the affidavit of Co-workman Sarju Prasad, he was earlier working as Daily wager with him and from 01.11.73 Sarju Prasad was regularized and further from 01.04.1976 he had been declared permanent. In his oral evidence, the contesting respondent had deposed before the Labour Court that on 01.01.1970, he had started working under the employers at Power House Sohawan as Muster Roll Employee which was under Rural Electricity Division, Faizabad where he continued to work there upto 31.10.1973, when he was retrenched without giving any prior notice or compensation. It had also been alleged by him before the Labour Court that other co-workmen had been retained and regularized,namely Ram Dayal, Om Prakash etc. but he had not been reinstated. Even the employers had appointed some new workers too but did not reinstate him.
Learned counsel for contesting respondent has further averred that after considering the submissions made by the workman as well as employer, Learned Labour Court had resolved that according to the Order dated 01.11.1973 issued by Sub-Divisional Officer of Rural Electrification Sub-Division, Akbarpur, workman Ramraj, Sarju Prasad etc. had been declared as permanent employee alongwith other employees and they had been directed to take over charge at the office of Executive Engineer, Rural Electrification Division but according to O.P. No.3 he had never been served with the said order. The employers have denied the said letter and alleged that Executive Engineer was not empowered to pass such an order but learned Labour Court had resolved that from its contents it transpires that the order dated 31.10.1973 issued by Executive Engineer had been forwarded to concerned workmen and they had been instructed to report at the office of Executive Engineer, Rural Electrification Division and further a copy of this letter had also been forwarded to Executive Engineer with regards to his letter dated 31.10.1973.
Learned Counsel for O.P. No.3 has further asserted that considering all these facts, the Labour Court found it proved that letter of S.D.O. dated 01.11.1973 is not fake rather it was issued according to the directions of Executive Engineer. In addition to it, workman-Om Prakash had deposed on affidavit regarding his being made permanent w.e.f. 01.11.1973 and being regularized w.e.f. 01.04.1976 and these facts have not been controverted by the employer. In the letter dated 01.11.1973 of S.D.O., name of workman Om Prakash is mentioned therefore, from perusal of all the evidences, the Labour Court found it proved that the Employer- Executive Engineer had ordered to appoint workmen Ramraj, Sarju Prasad, Om Prakash etc. on regular posts and accordingly workman Om Prakash had been appointed on regular post but other workmen had not been communicated with the said order.
A perusal of the record reveals that initially this court vide an interim order dated 17.9.1999 stayed the implementation of the impugned Award but later on vide dated 15.5.2007 this Court directed the petitioner to comply provisions of Section 17-B of the Industrial Disputes Act. The contesting respondent has filed an application for dismissal of the writ petition supported within an affidavit stating therein that in compliance of the order dated dated a sum of Rs. 14,736/- only had been paid through Cheque whereas a sum of Rs. 1,30,999.68/- was due against the petitioners as would be established from the letter dated 6.1.1999 written by the Regional Deputy Labour Commissioner, Faizabad to the Executive Engineer, Electrical Distribution Division. In these circumstances, the order dated 15.5.2007 has not been complied wherein it was provided that in case provisions contained in Section 17-B of the Industrial Dispautes Act are not complied with retrospective effect and the benefit of the statutory provision is not given, then the interim order passed in this case shall be deemed to be vacated. Later on, petitioner was paid honorarium in the year 2008,2009 and 2010, receipts whereof have been annexed by the contesting respondents alogwith the Affidavit filed in September, 2011.
It may be pointed out that during the course of arguments, learned Counsel for the petitioners relying upon the judgments rendered in Bharat Sanchar Nigam Limited vs. Man Singh; (2012) 1 SCCC 558, Uttar Pradesh State Electricity Board vs. Laxmi Kant Gupta; (2009) 16 SCC 562 and Assistant Engineer Rajesthan Development Corporation vs. Gitam Singh(2013) 5 SCC 136 contended that the order of reinstatement passed by the Labour Court is not justified as in the aforesaid cases it has been held that in case of wrongful termination of a daily wager, who had worked for a short period, the award of reinstatement cannot be said to be proper relief and as such the impugned Award passed by the Labour Court cannot be sustained and is liable to be set-aside.
I have gone through the aforesaid decisions, which have been relied upon by the petitioner's Counsel the Apex Court has held that in industrial disputes, reinstatement with back wages could not be said to be justified and instead monetary compensation would serve the ends of justice. Even in the case of Bharat Sanchar Nigam Limited vs. Bhurumal ; (2014) 7 SCC 177, which has been relied upon by the private respondent the Apex Court in paragrph 34 held as under:-
"Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."
Applying the aforsaid principles, I would like to discuss the present. A perusal of the record reveals and as per own saying of the private respondent no. 3 that he had worked only for three years when his services were dispensed with on 31.10.1973. Thus the termination took place more than 40 years ago. The Award was passed in favour of the private respondent on 11.8.1997 however, the same was stayed by this Court vide order dated 17.9.1999. Later on, vide order dated 15.5.2007, this Court directed for compliance of provisins of Section 17-B of the Industrial Disputes Act, and in compliance thereof a sum of Rs. 14736/- was paid towards wages from 17.9.1999 to 31.7.2007 in the year 20007. Thereafter meager amount was paid in the year 2008,2009,2010. However, the fact remains that there is no direct evidence for working of the private respondent no.3. As averred above, the contesting respondent would be near about 60 years of age and was allegedly removed in the year 1973 and since then more than 40 long years have elapsed and as such, in my opinion, ends of justice would be met by granting compensation in lieu of reinstatement.
In view of the above, the writ petition is allowed in part. The impugned Award dated 11.8.1997 said to be published on 9.1.1998 is modified by awarding compensation of Rs. Two lacs, which shall be paid to private respondent no.3 within two months failing which the respondent shall be entitled to interest at the rate of 12% per annum from the date of judgment.
Date: 29 April, 2016 MH/-