Heard learned counsel for the parties.
In this case I tried to persuade the parties to enter into compromise. Initially parties agreed, afterwards respondent no.2 had a change of mind. In this regard orders passed by me on 18.01.11 and 03.03.2011 are quoted below:
"18.1.2011 On the persuasion of the court learned counsel for both the parties agreed for settlement of dispute amicably. The suggestion of the court was made on the principles of Section 89 C.P.C. The agreement is that the employer within one month will give permanent appointment to the workman petitioner and thereupon the workman-petitioner will not claim any back wages under the impugned award. Let the appointment be made positively within one month.
List on 22.2.2011 for passing formal order of final disposal of the writ petition.
Office is directed to supply a copy of this order free of cost to Shri V.B.Mishra, learned counsel for employer-respondent no.2 within three days."
"3.3.2011 Heard learned counsel for the parties.
Shri V.B. Mishra, learned counsel for the Jal Nigam states that the authorities have communicated to him that compromise is not possible.
Learned counsel for the workman has argued that 46 workmen were exactly similarly situated and the list is given on page Nos. 43-44 of the writ petition and all other 45 workmen were directed to be reinstated with full back wages however the same Presiding Officer of the labour court decided the matter against the petitioner.
Shri B.N. Singh, learned counsel for the petitioner workman further states that High Court modified the awards given in favour of those 45 workers and instead of full back wages only 50% back wages were directed to be paid. Some judgments have been placed on rercord. Copies of the same shall also be supplied to Shri V.B. Mishra, learned counsel the respondents.
Learned counsel for the petitioner further states that Special Leave Petitions filed before the Supreme Court were dismissed.
Shri V.B. Mishra, learned counsel for the respondents has placed on record copy of few judgements in support of his contentions.
Judgement is reserved."
Services of the petitioner were terminated on 15.06.1991. The case of the employer respondent no.2 Executive Engineer VI Construction Division U.P. Jal Nigam Varanasi is that similar orders passed in June 1991 all the surplus staff which had been engaged after particular date of 1989 including the petitioner was retrenched. Petitioner was Pump Attendant. Against termination order dated 15.06.1991 writ petition was filed in the High Court in which initially stay order was granted but afterwards it was dismissed on the ground of alternative remedy of approaching the labour court. Thereafter industrial dispute was raised by the petitioner and matter was referred to the labour court to decide as to whether the action of employer respondent no.2 terminating the services of petitioner w.e.f. 30.09.1993 was just and valid or not. On 30.09.1993 the services had again been terminated after dismissal of the earlier writ petition.
The matter was registered before Presiding Officer labour court U.P. Varanasi in the form of adjudication case no.97 of 1995. The case was decided against the workman petitioner through award dated 20.02.1991. In the award it was mentioned that on 15.06.1991 petitioner was given notice and offered the compensation which he refused to accept. It has also been mentioned in the award that in his cross examination workman admitted that a notice was being got received by him but he refused. On this ground the labour court held that even though the workman had completed 240 days in a year but provisions of Section 6-N of U.P. Industrial Dispute Act had been complied with.
Learned counsel for the workman petitioner has cited some judgments of this Court. One is reported in writ petition no.3719 of 1998 decided on 07.07.2003. The other is in writ petition no.36209 of 1998 decided on the same date. In one case services were terminated on 15.6.1991 and in the other case on 20.06.1991 by the same employer (workmen were different). In both these cases it was held that the labour court had recorded the finding that provisions of Section 6-N of U.P. I.D. Act had not been complied with. In writ petition no.36209 of 1998 it is mentioned that "it is also not in dispute that the employer have not complied with the provisions of Section 6-N of U.P.I.D. Act." Following the judgment in writ petition no.3719 of 1998 another Hon. Judge of this court through order dated 07.03.2005 dismissed the writ petition no.44005 of 1997 which had also been filed by the employer (respondent no.3 in the instant writ petition). In the said judgment it has also been mentioned that the judgment dated 07.07.2003 passed in writ petition no.3719 of 1998 was subjected to S.L.P also which was dismissed by the Supreme Court. The said judgment was followed by another Hon. Judge in writ petition no.1787 of 1998 decided on 03.11.2004 and in writ petition no. 1786 of 1998 decided on the same date. In writ petition no.36859 of 1997 also judgment of writ petition no.3719 of 1998 was followed. In all these cases writ petitions were disposed of and the awards of reinstatement with full back wages were modified and substituted by the direction of reinstatement with 50% back wages.
However, from the perusal of the judgments of aforesaid writ petitions it is not clear as to whether in those cases notice of termination had been given or not offering retrenchment compensation which was refused by the workmen concerned. However, in the instant case there is specific findings that notice was given, retrenchment compensation was offered but it was refused by the workman.
Alongwith writ petition as Annexures 7,8,9 and 10, copies of awards given by the same Presiding Officer in respect of other employees (of the same employer) i.e. Ganesh Prasad Pandey, Mohan Ram, Shyam Narain and Arvind Kumar Singh have been filed. In the first award it is mentioned that termination was of 10.06.1991 but retrenchment compensation was offered/paid on 28.11.1991 hence it was meaningless. In the second award it is mentioned that no evidence was filed regrading giving of notice or payment of compensation. Similar was position in the third award. In the 4th award it is mentioned that services were terminated on 10.06.1991, however, according to the evidence of employer's witness himself notice was sent through registered post on 19.09.1991 and money order was sent on 24.06.1991.
Accordingly, it can not be said that case of the petitioner was exactly similar as the cases of other workman.
However, as all the workmen were terminated on the same ground in the same month, hence, similar defence must have been taken in all the cases. It appears that in other cases workmen did not admit that on the day of termination notice was sought to be served upon them. However, in the instant case petitioner admitted the said fact. In the instant case workmen himself produced the letter dated 15.06.1991 which had been sent to him through registered post. It appears that in other cases notices were not filed by the workman. In the instant case also employer had not filed any notice.
Looking to the entire facts and circumstances, I am of the opinion that the requirement of law and justice will best be served by directing reinstatement but without any back wages. Let the petitioner be reinstated forthwith and be paid salary as is being paid to others. Impugned award is accordingly modified.
Writ petition is allowed in part.
Date: 09.05.2011 vkg