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STATE OF U.P. THROUGH EXE. ENGINEER, IRRIGATION DIVISION

High Court of Judicature at Allahabad

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State Of U.P. Through Exe. Engineer, Irrigation Division-Ii\ v. Presiding Officer, Labour Court U.P. Gorakhpur & Another - WRIT - C No. 17592 of 2001 [2007] RD-AH 9282 (15 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

AFR

Judgement Reserved on 4.5.2007

Judgement Delivered on 15.5.2007

Civil Misc. Writ Petition No. 17592 of 2001

State of U.P through the Executive Engineer Irrigation Division-II Deoria  Versus  Presiding Officer, Labour Court  U.P. Gorakhpur and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

This writ petition is directed against award dated 6.3.2000 given by Presiding Officer, Labour Court U.P. Gorakhpur in Adjudication case No. 340 of 1990. The matter which was referred to the Labour Court was as to whether the action of the employer petitioner terminating the services of its workman Faridan respondent No.2 with effect from 2.3.1989 was proper and legal or not. Labour Court held that termination order was in violation of section 6-N of U.P. Industrial Disputes Act  (U.P.I.D Act) as no retrenchment compensation was paid. Ultimately reinstatement with full back wages was directed by the Labour Court.

The case of the workman was that he was appointed in the petitioner's concern in 1983 on the post of Beldar and worked on the said post uninterruptedly till March 1999. It was also contended by the workman that after his removal new appointments of Rameshwar Giri and Suresh etc. were made. The case of the employer was that respondent No.2 did not work for 240 days and he was occasionally employed according to the exigency of the work. Labour Court in its short award discussed various authorities cited by both the parties and held that even a daily wager is entitled to the benefit of section 6-N of U.P.I.D Act. Even though the Labour Court in its award mentioned that the workman stated that Ram Sevak was appointed after his termination, however, in para 7 of its award Labour Court held the termination to be illegal only on the ground of violation of section 6-N of U.P.I.D Act.

Services were terminated through notice dated 2.3.1989, copy of which is annexure 3 to the writ petition. It was also filed before the Labour Court . In the said notice, it was mentioned that canals were being closed with effect from 28.2.1989, hence, the employees apart from regular beldar should be disengaged. Respondent No.2 the workman appeared as witness before the Labour Court. In his cross examination he stated that he had no evidence to prove that Suresh Munnar and Ram Savek were his juniors. He further stated that he had no evidence that Ram Sevak had been engaged after his retrenchment.

The Labour Court mainly placed reliance upon the judgment of Supreme Court reported in Sumishta Dubey Vs. City Board, Etawah 1999 LIC 1125. Recently the Supreme Court in the following cases has held that even though daily wagers and muster roll employees are also entitled to benefit of section 6-N of U.P.I.D Act (equivalent to Section 25-F of Industrial Disputes Act) still it is not proper to direct reinstatement with full back wages, in case of violation of said provision; and in suitable circumstances the proper remedy would be to award consolidated damages/ Compensation.

1.Branch Manager M.P. State Agro Industries Development Corporation Vs. S.C.Pandey 2006(2) SCALE 619.

2.Nagar Maha Palika Vs. State of U.P AIR 2006 SC 2113

3.Haryana SEDC Vs. Mamni AIR 2006 SC 2427.

If in different government departments due to exigency of work workers are engaged on daily wage basis then they do not have any right of regularisation even if they have worked for several years vide Constitution Bench authority of Supreme Court reported in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. AIR 2006 SC 1806. Even though such employees are entitled to retrenchment compensation still order directing reinstatement on the ground of non payment of retrenchment compensation will be unwarranted burden on State Exchequer. Public money may be utilised for more essential public purpose. More often than not unscrupulous officers of public organisations terminate the services of daily wager/ muster roll employees without complying with the provisions of section 6-N of U.P.I.D Act. In several such cases retrenchment compensation is not paid in order to benefit the retrenched employees so that they may claim reinstatement with full back wages for violation of section 6-N. It will not be in the public interest to fasten the financial burden upon the public undertaking on the basis of incompetence and unscrupulous action of the officers of the said undertakings. In view of these facts, in the above authorities Supreme Court has evolved the formula of payment of consolidated damages/compensation to the retrenched employees instead of reinstating them with full back wages in case services have been terminated without complying with the provisions of section 6-N of U.P.I.D Act (equivalent to section 25-F of I.D Act). In case of Government Departments, Public Undertakings, Local Bodies and Governmental Agencies, it is essential to see as to whether initially appointment was made in accordance with relevant orders, rules and regulations or not.

In the first of the aforesaid Supreme Court cases, matter related to employees of State Agro Industries Development Corporation. In the said case consolidated damages of Rs.10000/- were awarded. In the second case matter related to an employee of Nagar Maha Palika of U.P. In the said case damages of Rs.30000/- were awarded. In the third case matter related to State Electronics Development Corporation. In the said case damages of Rs.25000/- were awarded. In the authorities of Nagar Maha Palika and Haryana SEDC reliance was placed upon U.P. State Brass ware Corporation Vs. U.N.Pandey AIR 2006 SC 586 wherein it was held that just like Civil Court, Labour court can also mould the relief.

Learned counsel for the respondent No.2 has cited the authorities of R.M.Yallati Vs. Asst. Executive Engineer AIR 2006 SC 355, M.E. Corporation Employees Union Vs. M.E. Corporation 2006 (6) SCC 310 and State of Haryana Vs. Dilbag Singh 2006 (111) FLR 919 and judgment of the Supreme Court dated 15.9.2006 in S.L.P No. 4752 of 2004 M/s Krishi Utpadan Mandi Samiti Agra Vs. Vimal Kumar Sharma. In R.M Yallati's case the main thing which was decided was that if workman had produced some documentary evidence then the burden shifted upon the employer to disprove the case of the employee. In the other authorities the principle of awarding consolidated damages/ compensation for violation of provisions of section 6-N of U.P.I.D Act (equivalent to section 25-F of the I.D Act) has not been discussed.

Accordingly, I am of the opinion that the impugned award directing automatic reinstatement with full back wages merely for non-observance of section 6-N of U.P.I.D Act is erroneous in law and is liable to be substituted by a direction for payment of consolidated damages / compensation. As held by the Supreme Court in the above authority of U.P. State Brassware Corporation it is very unlikely that respondent No.2 for last 18 years must not be working for gain anywhere else.

In this writ petition, an ad interim order was passed staying the operation of the impugned award subject to the compliance of provisions of section 17-B of I.D Act by the petitioner employer. In compliance of the said direction an amount of Rs.15000/- has been paid to the workman respondent No.2 by the petitioner employer.

Accordingly, impugned award is set-aside and it is directed that instead of reinstatement with full back wages petitioner shall pay to the workman respondent No.2 an amount of Rs.50000/- in addition to any amount which may have been paid by it under impugned award and interim order of this court. The aforesaid amount of Rs.50000/- shall be paid within three months failing which 1% per month interest shall be payable on the said amount since after three months till actual payment.

Accordingly writ petition is disposed of.

Office is directed to supply copy of this order free of cost to Sri S.P.Misra learned standing counsel with in a week.

Dated:15.5.2007/Waqar


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