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State Of U.P. Through Exec. Engg. Irrigation Dept. v. Labour Court-II & Another - WRIT - C No. 18633 of 1996 [2004] RD-AH 1374 (9 November 2004)


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Court No. 51

Civil Misc. Writ Petition No. 18633 of 1996

State of U.P.                                  .......          Petitioner


Labour Court (2) U.P. & another  -----------                        Respondents.

Hon. V.C. Misra, J.

. Heard Sri R. K. Awasthi, learned counsel for the petitioner and Sri R. K.  Pandey, learned Counsel for respondent no. 2- workman.

1. This writ petition has been filed for quashing the award dated 6.6.1995 (Annexure No. 2 to the writ petition) passed by the labour Court-II, U.P. Ghaziabad- respondent no. 1 entitling respondent no. 2-workman to be reinstated with continuity of service along with back wages.

2. The facts of the case in brief are that the respondent no. 2 was employed on the post of Chaukidar on daily wage basis w.e.f. 1.1.1990 under the Assistant Engineer-II Bulandshahr in Upper Ganga Canal Modernization Division and worked continuously from 1.1.1990 to 31.12.1990.  Since respondent no. 2-workman was not allowed to work from 1.1.1991, he moved conciliation proceedings and in consequence of which the State Government made a reference to the labour court under the provisions of U.P. Industrial Disputes Act, 1947 for adjudication. The labour court registered the case as adjudication case no. 273 of 1993 and issued summons to the petitioner as well as respondent no. 2 -workman.  The summons were issued to the petitioner on 4.11.1994 but neither summons were served on the petitioner nor the same were returned to the labour court.  Again summons were sent through registered post to the petitioner which returned with the remark from the petitioner that respondent no. 2-workman was never employed with it and he had never worked under their unit. The labour court having no other option proceeded with the case ex parte under the provisions of Rule 16(1) of the U.P. Industrial Disputes Rules, 1957 (hereafter referred to as "the Rules, 1957"and decide the case on the basis of the statement and the affidavit filed by the workman presuming the contents of the affidavit to be true in terms of the provisions of Rule 9 of the Rules, 1957 and passed the impugned award dated 6.6.1995 (Annexure No. 2 to the writ petition) in favour of the respondent no. 2-workman accepting the facts stated in the written statement. By the impugned award dated 6.6.1995 the labour court directed the petitioner-employer to reinstate the workman- respondent no. 2 with continuity in service w.e.f. 1.1.1991 within  a period of one month and pay the full back wages.

3. Being aggrieved the State of U.P. through the Executive Engineer, Irrigation Department, Bulandshahr has filed the present writ petition.

4 Learned counsel for the respondent no. 2-workman has conceded that during the proceedings before the labour court the workman had at no stage stated that he had not been gainfully employed else where during the period after his alleged termination from service.

5. I have looked into the record of the case and find that after thorough examination and critical scrutiny of the pleadings and the material on record and the relevant evidence submitted by the workman, the labour court - respondent No. 1 on the basis of findings of fact has arrived at a well reasoned award dated 6.6.1995 except while awarding full back wages to the respondent no. 2-workman it has not given reasons much less cogent reasons and thereby failed to properly exercise its judicial discretion. More so, since there was not even a whisper on the part of the workman during the proceedings before the labour court, that he was not gainfully employed else where during the period of his termination from the service. As per the decisions of the Apex Court in the cases of M.P. State Electricity Board Vs. Smt. Jarina Bee (JT 2003 (5) S.C. 542) P.G.I. of M.E. and Research, Chandigarh Vs. Raj Kumar etc. (JT 2001 (1) S.C. 336) Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and another (2002) 6 SCC 41), Indian Railway Construction Co. Ltd. Vs. Ajay Kumar (JT 2003 (2) S.C. 295), that in case no such averments have been made by the workman that he was not gainfully employed else where during the period of termination of his services, he would not be entitled to back wages as of normal consequence.

6.  Under the said circumstances the award-dated 6.6.1995 (Annexure No. 2 to the writ petition) is modified to the extent that the workman- respondent no. 2 shall not be entitled to any back wages. The petitioner has not been able to demonstrate before this Court that the findings of fact recorded in the impugned award suffers from any illegality, perversity or error apparent on the face of the record.  More so, the said findings of fact arrived at by the respondent no. 1 on the basis of which the impugned award has been passed being based on relevant material on record are not open to challenge before this Court while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India.

7. In view of the above said facts and circumstances of the case, and in pursuance of the impugned award dated 6.6.1995 (Annexure No. 2 to the writ petition) passed by the labour court, the petitioner shall reinstate the respondent no. 2- workman in service and pay his salary regularly month to month, to which he is entitled to, under law.

With these observations, the writ petition is dismissed. No order as to costs.

November 9, 2004

W.P. 18633 / 96



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