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Ashok Kumar Pandey v. The Presiding Officer And Ors. - WRIT - C No. 24826 of 1993 [2004] RD-AH 1006 (4 October 2004)


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Court No.51

Civil Misc. Writ Petition No.24826 of 1993

Ashok Kumar Pandey Vs. The Presiding Officer, Labour

Court, I, Kanpur and another


Hon'ble V.C. Misra, J.

Heard Sri R.K. Ojha learned counsel for the petitioner, learned standing counsel for the respondent no.1 and Sri Shiv Nath Singh learned counsel for the respondent no.2.

2. This writ petition has been filed challenging the impugned award dated 6.2.1993, anexure-1 to the writ petition passed by the labour Court (I), U.P., Kanpur in adjudication Case no.51 of 1991.

3. The facts of the case in brief are that the petitioner was appointed in the Bank of respondent no.1 as daily-wage employee on the post of clerk on 1.4.1983 and his services were illegally and wrongly terminated by the respondent no.2 with effect from 1.7.1985 without assigning any cause or reason. The job on which the petitioner was appointed was of regular and permanent nature. It has also been stated in the writ petition that he had worked for 3 consecutive years, i.e., 1983, 1984 and 1985 with sincerity and honesty and there had been no complaint whatsoever against him regarding his work and performance. The petitioner was not allowed to continue to work since he had demanded ''equal pay for equal work' at par with other employees, working on regular and permanent basis with the respondent-bank but instead he was paid only Rs.15/- per day. It was on account of the said complaints made to the senior officer, that the petitioner was restrained from performing his duties and his services were terminated with effect from 1.7.1985 due to vindictive attitude of the respondent no.2. It has also been stated that on Sri Ashok Kumar Misra, who was junior to the petitioner, was allowed to continue and is still continuing in service of the respondent no.2.

4. The petitioner raised an industrial dispute and the matter was referred to the labour Court-respondent no.1 and adjudication case No.51 of 1991 was registered. The pleadings were exchanged between the parties and evidence was adduced. During proceedings before the labour Court, the petitioner demanded the attendance register for the years 1983, 1984 and 1985 to be produced which would disclose the number of days, the petitioner had worked as he had claimed that he had asked for more than 240 days in a calendar year. The respondent no.2 did not produce the attendance register of the years 1983 and 1984 but only produced the register for the period April 1985 to June 1985 without assigning any reason whatsoever. The petitioner have submitted during the arguments before the labour Court that in absence of the production of the attendance register for the period 1983 and 1984 and the remaining period of 1985 adverse inference may be drawn to the effect that he had worked for more than 240 days in one calendar year.

5. After hearing the parties, the respondent no.1 came to the conclusion that the petitioner had been given work by the respondent no.2 only during the period 1983, 1984 and from April to June 1985 and the petitioner-workman had not completed 240 days in one calendar year and, therefore, he was not entitled to the benefits available in terms of the provisions of Section 6-Q of the U.P. Industrial Disputes Act, 1947 regarding re-employment of the retrenched workman and finally held that the workman had not been wrongly and illegally terminated from service and he was not entitled to any relief.

6. It is pertinent to mention here that no counter affidavit has been filed by the respondent no.2 inspite of time being granted on several dates by this Court. It is settled law as laid down in catena of decisions including A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. page 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709,   that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct drawing the presumption in favour of the petitioner in terms of Section 114 Illustration (G) of the Evidence Act. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the writ petition to be correct and true.

7. Sri Shiv Nath Nath Singh Yadav, learned counsel for the respondents has submitted that the labour Court after examining all the relevant material on record had arrived at a just conclusion and there was no illegality in the award, and he had nothing else to submit on law point. He has also submitted that the petitioner was duty bound to file the documentary evidence before this Court under the proceedings under Article 226 of the Constitution of India before this Court that he had worked for more than 240 days in a calendar year.

8. I have looked into the record of the case and find that the labour Court has committed manifest error of law and procedure in not drawing adverse inference against the respondent no.2 that the petitioner had worked for more than 240 days in one calendar year, since it had failed to produce the attendance register for the period 1983, 1984 and the remaining period of 1985 along with the pay-bills before the Court as demanded by it on the request of the petitioner-workman. The labour Court has passed the award arbitrarily on the basis of surmises and conjectures.

9. In view of the above said facts and circumstances of the case and observations made hereinabove, the impugned award dated 6.2.1993, annexure-1 to the writ petition, is quashed. The petitioner shall be treated to be in continuous service and shall be paid salary regularly in accordance with law as and when it becomes due, the petitioner shall be paid 50% back-wages. The writ petition is allowed. No order as to costs.

October 4, 2004



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