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STATE OF U.P. THRU' SUPERINTENDENT versus SECY./DY. LABOUR COMMISSIONER & ORS.

High Court of Judicature at Allahabad

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State Of U.P. Thru' Superintendent v. Secy./Dy. Labour Commissioner & Ors. - WRIT - C No. 41315 of 2003 [2006] RD-AH 6812 (28 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 41315 OF 2003

State of U.P.

Versus

Secretary/Deputy Labour Commissioner,

Azamgarh & others.

-----

HON. SHISHIR KUMAR, J.

This writ petition has been filed for quashing the award-dated 7.6.2001, which was published on 19.9.2001. Further prayer is to set aside the order-dated 5.2.2002 passed by respondent no.1 by which the application of the petitioner for setting aside the order-dated 7.6.2001 has been dismissed. Further prayer made in the writ petition is that the respondents be restrained from realizing the amount from the petitioner in pursuance of the Citation dated 5.2.2002.

The case of the petitioner is that the award-dated 7.6.2001 is exparte. As such as soon as the petitioner came to know regarding the aforesaid exparte award, made an application for setting aside the said award. From the record it is clear that the award dated 7.6.2001 was published on 19.9.2001 and the application for recalling of the award dated 7.6.2001has been filed by the petitioner on 30.10.2001, therefore, the application filed by the State was not maintainable in view of the judgment of the Apex Court reported in 2005 S.C.C. (L & S) 65, Sangam Tape Co. Vs. Hans Raj, in which the Apex Court has Cleary held that if it is alleged by any aggrieved party that the award is an exparte award and if an application for setting aside the award is filed, that has to be filed before the expiry of 30 days from the date of publication of award. If the application is filed subsequently that is after 30 days from the date of publication, the application is not maintainable and the Labour Court becomes functous officio to entertain the said application. In view of the aforesaid fact the application has rightly been rejected by the Labour Court.

Now as the award has been challenged by the petitioner, therefore, the same has to be judged on its own merit.

The respondent was given an appointment in the year 1987on daily wages and was permitted to continue up to 11.8.1987 but after 1987, the respondent was not permitted to work. He raised a claim petition before the U.P. Public Services Tribunal, which was dismissed on 9.3.95 on the ground that as the appointment of the petitioner was on daily wages as such he was not holder of civil post; therefore, the claim petition is not maintainable. The respondent workman filed Writ Petition No. 26829 of 1996 before this Court and by order dated 21.8.1996, this Court has dismissed the writ petition on the ground that the petitioner has an alternative remedy to approach the Labour Court. Then the respondent-workman approached the Labour Court and has submitted that he was given appointment on daily wages and was permitted to continue up to 11.8.1987 and he has completed 240 days and the services have been terminated without following any procedure, which is provided under the Industrial Disputes Act. The Labour Court considered the submissions as well as issued notice to the employer. The service was sufficient. In spite of the notice the petitioner has not filed any written statement before the Labour Court neither they have appeared, therefore, the contention raised on behalf of the respondent-workman on the basis of the document was believed and a finding has been arrived that the respondent-workman has completed 240 days service in one calendar year and before terminating the service the provisions of Section 6-N has not been followed, therefore, the retrenchment of the workman is illegal. The Labour Court vide its order dated 7.6.2001 has given an award in favour of respondent-workman of reinstatement with continuity of service as well as passed an order that he will be entitled for back wages from the date of application before the Labour Court.

The application has been filed for setting aside the said award by the petitioner. It has been stated that they have no knowledge regarding the proceeding and they came to know regarding the award-dated 7.6.2001 only on 24.1.2001. The award has been passed without giving an opportunity to the petitioner. From the application it is clear that the specific date regarding receipt of the knowledge of the award-dated 7.6.2001 has not been mentioned. Though a specific finding of fact has been recorded by the Labour Court that the notices were issued to the petitioner and it has been served but in spite of service of notice, the petitioner has not filed any document or affidavit before the Labour Court. In para 3 of the said affidavit it has clearly been stated that they had knowledge regarding the proceeding pending before the Labour Court and a specific averment has been made that 22.1.2001 was fixed for filing the written statement by the petitioner but the reasons have not been disclosed as to why the said written statement has not been filed or as to why they have not appeared subsequently in case they were precluded of any ground to appear on 22.1.2001. The explanation given cannot be believed as if the counsel who was engaged, his wife was operated and she was in hospital as to why another advocate was not engaged by the petitioner to contest the proceeding.

In view of the fact that the explanation given by the petitioner before the Labour Court was not satisfactory and no reason has been given in the affidavit filed before the Labour Court that under what circumstances they have not appeared before the Labour Court as such the Labour Court has rejected the application

After hearing counsel for the parties, I have perused the record. The Labour Court has clearly recorded a finding that the respondent-workman has completed 240 days and while terminating the services the provisions of 6-N of the Act has not been followed. As such the retrenchment is bad.

It is well settled now that the Labour Court is the last court of fact and the finding recorded by the Labour Court should not be interfered unless and until it is established that it is against the law and it is against the evidence.

In view of the aforesaid fact, the writ petition is devoid of merit and is hereby dismissed. No order as to costs.

28.3.2006

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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