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Antim Kumar v. Allahabad Jal Sansthan & Others - SPECIAL APPEAL No. 565 of 1999  RD-AH 5052 (3 March 2006)
Court No. 34
Special Appeal No. 565 of 1998
Allahabad Jal Sansthan, Allahabad & Ors,.
Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.
This Special Appeal has been filed against the judgment and order dated 11th May, 1999 of a learned Judge of this Court by which the writ petition filed by the Allahabad Jal Sansthan, for quashing the recovery certificate dated 31st July, 1997 which has been issued under Section 6-H (1) of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act') has been allowed.
The services of respondent no. 5 were terminated w.e.f. 4th January, 1991. The State Government made a reference to the Industrial Tribunal-I Allahabad, for adjudication as to whether the employers were justified in terminating the services of respondent no. 5 w.e.f. 4th January, 1991 and if not, then to what reliefs the workman was entitled to. The award was made by the Industrial Tribunal on 28th August, 1995 and the operative part is as follows:-
"In view of what has been observed and discussed above, I arrive at the conclusion that the workman concerned is entitled to the reliefs sought. He is reinstated with continuity of service, with full back wages and all other benefits which he would have received had his services not been illegally terminated with effect from 4.1.91. The award is accordingly passed in favour of the workman and against the employer/opposite party. The employer/opposite party is directed to comply with these direction within 30 days from the date of production of a copy of this award before him by the workman after its publication."
Pursuant to the award respondent no. 5 was engaged as a daily wager from 6th April, 1996. Respondent no. 5, however, moved an application under Section 6-H (2) of the Act in which notices were issued and objections were filed. Section 6-H (2) of the Act provides that where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money then the amount at which such benefit should be computed shall be determined by the Labour Court and the amount so determined can be recovered as provided for under Section 6-H (1) of the Act. It appears that even during the pendency of the aforesaid application, respondent no. 5 moved an application purportedly under Section 6-H (1) of the Act for payment of the amount under the award and on the basis of this application, the recovery certificate dated 31st July, 1997 was issued by the Deputy Labour Commissioner, Allahabad for recovery of a sum of Rs. 1,48,845.55/- from the Jal Sansthan. The application filed by the Jal Sansthan for recall of the order was also rejected on 17th December, 1997.
The learned Judge has noticed that while the Jal Sansthan thought that the reinstatement pursuant to the award of the Tribunal was to be on daily wage basis, the workman thought that he had been reinstated as a permanent Clerk and the recovery certificate had been issued by assuming that the workman had been entitled to regular pay-scale as a permanent Clerk. The learned Judge held that when the termination of the workman is illegal, he would be reinstated to the post, which he had occupied, but for the illegal termination. In such circumstances, the learned Judge quashed the recovery certificate but left it open to the workman to take appropriate legal proceedings seeking permanent absorption or regularization.
The question that arises for our consideration is whether the recovery certificate could have been issued under the provisions of Section 6-H (1) of the Act.
Sri Ashok Khare learned Senior Counsel for the appellant submitted that the said application had been filed for recovery of the amount due under the award of the Tribunal and so it was clearly maintainable.
Sri R.M. Saggi learned counsel appearing for the Allahabad Jal Sansthan, however, submitted that the Special Appeal is not maintainable and in any view of the matter the application under Section 6-H (1) of the Act was not maintainable and, therefore, the recovery certificate could not have been issued.
We have carefully considered the submissions advanced by the learned counsel for the parties.
The Tribunal by its award dated 28th August, 1995 held that the termination w.e.f. 4th January, 1991 was not legal and, therefore, the workman was entitled to be reinstated with continuity of service, with full back wages and all other benefits which he would have received had his services not been illegally terminated. There is no direction to treat the workman as a permanent workman. Sri Ashok Khare learned Senior Counsel for the appellant, however, placed reliance on certain portions of the award and contended that the appellant was held to be a regular employee on the post of Clerk.
In our considered opinion, the operative part of the award does not give such a direction and indeed such a direction could also not have been given as the Reference to the Tribunal was limited to the termination order dated 4th January, 1991 and was not regarding the status of the workman. The application under Section 6-H (1) of the Act was, therefore, clearly not maintainable as it could not have been filed for payment under the Award. The learned Judge has left it open to the appellant to take appropriate legal proceedings for seeking permanent absorption or regularization as the case may be. Such a direction is clearly justified.
We clarify that we have decided this Special Appeal without examining the contention of the respondents that this Special Appeal is not maintainable.
The Special Appeal is, accordingly, dismissed as being devoid of any merit.
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