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STATE OF U.P. versus PRESIDING OFFICER, LABOUR COURT (IV) & ANOTHER

High Court of Judicature at Allahabad

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State Of U.P. v. Presiding Officer, Labour Court (Iv) & Another - WRIT - C No. 9821 of 1998 [2007] RD-AH 8719 (8 May 2007)

 

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

RESERVED

CIVIL MISC. WRIT PETITION NO. 9821 OF 1998.

State of U.P.                                                                                            ...Petitioner.

Versus

Presiding Officer, Labour Court (IV),

U.P., Kanpur and another                                                                 ....Respondents.

..........................

Hon'ble Anjani Kumar, J.

Petitioner by means of this writ petition under Article 226 of the Constitution of India has challenged the award dated 23.9.1996 passed by the Labour Court, IV, U.P., Kanpur in Adjudication Case No. 102 of 1995. The State Government by the order dated 27th March, 1995 has referred the following dispute under Section 4-K of U.P. Industrial disputes Act, 1947 ( in short 'the Act').

"Whether the termination of the services of Sri Ashok Kumar Soni by the employers with effect from 20.12.1993 is justified or legal? If not, concerned workman is entitled to what benefit/relief ?"

Before the labour Court the parties have exchanged the pleadings. The case set up by the workman in his written statement is that the workman concerned was working since 1991 with the employer-petitioner on the post of Work Supervisor on daily wages and since then he is continuously working. That the appointment of the workman was with the approval of the higher authorities and the workman was performing all the duties as and when assigned to him. He was supervising the labourers under the control of the Junior Engineer and used to maintain the records. That there was no complaint regarding work and conduct of the workman and he was paid Rs. 540/- per month on daily wages. It was only when the workman concerned requested the employer to regularize his services, he was asked to cease from work with effect from 20th December, 1993.

The case set up by the employer was that the workman was engaged on a project known as Shahjad Nadi for construction of repet and Mausra Khurd Check-dam and he is being paid wages on daily basis. It is incorrect to say he has been continuously working. It is also incorrect that the workman has been issued any letter of appointment. The employer had given the details of the work done by the workman since 1st December, 1991 till 20th December, 1993. It is also alleged by the employer that the workman is paid wages only for the days when he worked. The project, for which he was engaged, is now complete and department has no concerned with the aforesaid project. He was not engaged on regular basis and it is therefore, said that in fact after the completion of the project his services shall come to an end as there was no work. He was engaged on muster roll basis. It is also stated that the cession of the employment of the workman does not contravene any of the provisions of law and further he is not entitled for regularization as prayed for.

Both the parties adduced their evidence in favour of the their respective case and labour court after considering the material available on record arrived at the conclusion that the cession of the employment of the workman with effect from 20th December, 1993 attracts the provisions of Section 6-N of the Act and further found that the argument advanced on behalf of the employer that the cession if any, is covered by the provisions of Section 2 (o)(1) (bb) of the Act and it is not covered by the exceptions of the retrenchment it amount to retrenchment. The labour court also recorded categorical finding that since he had worked for more than 240 days in preceding calendar year, therefore cession amounts to retrenchment. Thus, the labour court found that the termination/cession of the services of the workman is contrary to the provisions of law therefore, workman is entitled to reinstatement with full back wages. The labour court directed the employer to consider the case of the workman for regularization in view of the judgement dated 8th March, 1995 passed by this Court in writ petition No. 770 (S/S) 1995 and further to pay Rs. 10,000/- as compensation for the period during which the workman was ceased to work. The labour court further directed the employer to pay Rs. 200/- to the workman as cost of the suit.

Learned counsel for the petitioner has argued that in view of the law laid down by the Apex Court in the case of State Bank of Bikaner & Jaipur Versus Om Prakash Sharma reported in JT 2006 (11) SC 286 it is not open to the labour court to go beyond the terms and conditions of the reference, so far as the regularization is concerned.

I have given my considered thoughts to the argument advanced and I find that it cannot be said that the labour court has traveled beyond the terms of reference. A perusal of the reference clearly demonstrates that the reference is that whether the termination of the services of Ashok Kumar Soni by the employer is justified or legal ? If not, then to what relief workman is entitled for ?

The discussion undergone by the labour court is squarely covered by the award given by the labour court in view of the discussions above, this argument deserves to be rejected. So far as the next argument raised on behalf of the petitioner-employer that no order for regularization of daily wagers can be passed under the Act, is concerned, counsel for the petitioner relied upon the decision of this Court reported in 2003 (4) AWC 2836; Etawah Kshetriya Gramin Bank Versus Presiding Officer, Central government industrial Tribunal-cum-Labour Court, Kanpur and another and decision of the Apex Court reported in JT 1996 (1) SC 214; State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal Pradesh, Shimlalant Versus Ashwani Kumar and others and decision reported in JT 1996 (1) SC 220; State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal Pradesh, Shimlalant Versus Nodha Ram and others. This argument is not applicable to the facts and circumstances of the case. A perusal of the award demonstrates that the labour court has only directed for considering the case of the workman for regularization therefore, this argument is also rejected.

Learned counsel for the petitioner further submitted that it is well settled that the daily wager has no right for regularization and direction to the contrary given by the labour court in the impugned award for reinstatement with full back wages, is contrary to the law declared by this Court and Apex Court.

In view of the discussion above, I come to the conclusion that in view of the provisions of Section 6-N of the Act the labour Court has only declared the cession of the workman retrenchment and the retrenchment having effected without complying with the conditions precedent, is held illegal.

In view of the settled legal position, this argument is also rejected. So far as the reinstatement with full back wages is concerned, neither there is any material nor argument that during the pendency of the reference before the labour Court and the writ petition before this Court, the workman was gainfully employed anywhere.

In this view of the matter, the award of the reinstatement with full back wages, to me it appears cannot be questioned except on the quantum of back wages. Learned counsel for the petitioner relied upon a decision of the Apex Court in the case of Hindustan Motors Limited Versus Tapan Kumar Bhattacharya and another reported in (2002 )6 SCC 41.

In view of the aforesaid decision the award of the labour court is modified to the extent that the workman will be entitled to half of the wages with effect from the date of termination of services till the date of award and thereafter full wages.

In this view of the matter, this writ petition is dismissed except for above modification.

Dated: 8.5.2007

HR


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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