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Rishi Kumar Katiyar v. Labour Court And Another - WRIT - C No. 43617 of 1999  RD-AH 9261 (15 May 2007)
(Judgment reserved on 24.04.2007)
(Judgment delivered on 07.05.2007)
Civil Misc. Writ Petition No.43617 of 1999
Rishi Kumar Katiyar Vs. Labour Court, Vth, U.P., Kanpur and another
Hon'ble S.U. Khan, J.
Heard learned counsel for the parties.
This writ petition is directed against award dated 02.07.1998 given by Presiding Officer, Labour Court (Vth), U.P. Kanpur in adjudication case No.55 of 1995. The matter, which was referred to the Labour Court, was as to whether the action of the employer-Vice Chancellor, Chandrashekhar Azad Krishi and Prodyogiki, University, Kanpur, respondent No.2 terminating the services of its employee-petitioner w.e.f. 07.11.1988 was valid or not. The dispute itself was raised by the petitioner after four years (in the impugned order, year of C.P. case is mentioned as 829/1992).
The case of the workman was that he was working since 07.09.1987 as daily wager on Rs.12/- per day and he had worked continuously till 07.11.1988, however, without any reason, on 08.11.1988, the employer retrenched him. It was also stated that his appointment was to continue until 31.12.1988. The Labour Court held that workman-petitioner failed to prove that he had worked for 240 days in a calendar year. Labour Court ultimately held that petitioner was not entitled to any relief.
Labour Court took an extremely technical view of the matter. It is mentioned in the award that workman himself stated that he had worked till 07.11.1988 and his services were terminated from 08.11.1988, while in the reference, it was mentioned that services were terminated on 07.11.1988. It is correct that jurisdiction of the Labour Court depends upon the terms of the reference. However, incidental things may very well be seen by the Labour Court. Reference cannot be refused to be decided merely on the ground that there is slight variation in the date of termination.
Labour Court, however, held that petitioner could not prove that he worked continuously from 04.09.1987 to 07.11.1988 or 08.11.1988. It was also mentioned that employer had not produced the relevant records, hence workman was directed to prove the documents filed by him through secondary evidence, which he failed to do. The Supreme Court in AIR 2006 SC 355 "R. M. Yellatti v. Assistant Executive Engineer" has held that if the workman has filed some documents then the burden shifts upon the employer to dispute the version of the employee.
Annexure-1 to the writ petition is written statement of the petitioner-workman filed before the Labour Court. In Paragraph-2 of the written statement, it was categorically stated that he worked from 07.09.1987 till 07.11.1988 continuously without any break. Annexure-2 to the writ petition is the written statement of the employer. In Paragraph-2 of the said written statement, it was stated that the petitioner was employed as daily wager and was paid as such. Thereafter, it was stated that petitioner himself stopped coming for work. In the said written statement, the assertion of the workman that he continuously worked from 07.09.1987 till 07.11.1988 was not denied. In view of this, it was proved that the petitioner worked continuously from 07.09.1987 till 07.11.1988 and in this manner he completed 240 days in a calendar year. Accordingly, impugned award is quite illegal and liable to be set aside.
However, it was not denied by the petitioner rather it was his own case that he was employed on daily wage basis. The Supreme Court in the following authorities has held that provisions of Section 6-N of U.P. Industrial Disputes Act (equivalent to Section 25-F of Industrial Disputes Act) are also applicable on daily wagers and work-charged employees. However, in the same authorities, it has further been held that in case of retrenchment of daily wagers or work-charged employee without complying with the provisions of Section 6-N of U.P.I.D. Act or 25-F of I.D. Act, it is not always necessary to direct reinstatement with full back wages. In such scenario, award of consolidated damages/compensation is proper relief.
(1) Nagar Mahapalika (now Municipal Corpn.) v. State of U.P. and Ors, AIR 2006 SC 2113
(2) "Haryana State Electronics Devpt Corpn v. Mamni", AIR 2006 SC 2427
Moreover, in the instant case, the dispute was raised by the petitioner after four years. The Supreme Court in U. P. S. R. T. C. Ltd. v. Sarada Prasad Misra, AIR 2006 SC 2466, Manager (now Regional Director), R. B. I. v. Gopinath Sharm, AIR 2006 SC 2614, Assistant Engineer, C.A.D., Kota v. Dhan Kunwar, AIR 2006 SC 2670 and Chief Engineer, Ranjit Sagar Dam v. Sham Lal, AIR 2006 SC 2682 has held that seven or more years delay in raising the industrial dispute is fatal.
Accordingly, I am of the opinion that even though the award of the Labour Court refusing to grant any relief to petitioner is illegal, however, petitioner is not entitled to reinstatement with full back wages.
Accordingly, writ petition is allowed. Impugned award is set aside.
It is held that petitioner's termination was illegal for non-compliance of Section 6-N of U.P. I.D. Act. Petitioner is entitled to consolidated damages/compensation of Rs.15,000/-. Respondent No.2 is directed to pay the said amount to the petitioner within three months failing which 1% per month interest shall be payable upon the said amount since after three months till actual payment.
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