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STATE OF U.P. versus PRESIDING OFFICER,L.C., UP GORAKHPUR & ANOTHER

High Court of Judicature at Allahabad

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State Of U.P. v. Presiding Officer,L.C., Up Gorakhpur & Another - WRIT - C No. 41384 of 1999 [2005] RD-AH 7803 (19 December 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.26

Civil Misc.Writ Petition No.41384 of 1999

    State of U.P. through Divisional Forest Officer(South) Gorakhpur

    Versus

   The Presiding Officer, Labour Court, U.P. Gorakhpur and another

Hon.Shishir Kumar, J.

By means of the present writ petition the petitioner has approached this Court for quashing the award dated 16.11.1998 passed by the respondent No.1 (Annexure 1 to the writ petition).

The case of the petitioner was that the respondents have worked for short period as daily wager in the Forest Department.  When there was work they were being kept according to their seniority. It has also been submitted that after 1991 nobody has worked.  The respondents have raised a dispute before the Labour Court and when the notices were received, an objection was filed but the Labour Court without considering the objection on behalf of the petitioner has passed an award in favour of the workman for reinstatement and awarding full back wages.

It has been submitted on behalf of the petitioner that the respondents-workmen were not regular employee in the Forest Department on a sanction post. They were engaged as daily wager as and when necessity was there.  It has further been pleaded that an objection too was submitted before the Labour Court that Forest Department is not an industry, as such, the application before the Labour Court itself is not maintainable but the Labour Court without considering all the aspects of the matter has given an award vide its order dated 16.11.1998 and directed for reinstatement as well as full back wages.

It has been submitted on behalf of the petitioner that now the Labour Court cannot award a relief of reinstatement unless and until it has been proved that the appointment of the workman was on a clear post and there is a vacancy.  As the objection filed on behalf of the petitioner has not been considered and the Labour Court without considering the objection of the petitioner and without recording any reasons has given an award in favour of workman.  That is not permissible. Aggrieved by the aforesaid order, the present writ petition has been filed.

The writ petition was entertained and a time for filing counter affidavit was granted. The counter affidavit has been filed.

On behalf of the respondents workman it has been submitted that the Labour Court after considering the evidence on record has passed an order in favour of the workman. It has been further submitted on behalf of the respondents that one Rakesh Chaudhary Forest Officer was produced before the Labour Court and has given a statement that these persons were working up to 1991 except Shrawan and Virendra, as such, it has been submitted on behalf of the respondents that the factum of engagement in employment was accepted by the petitioner. Therefore, it cannot be said that there was no relationship of employee and employer between the parties. As after the objection, the petitioner in spite of the notice has not appeared before the Labour Court, therefore the Labour Court has left with no option except to pass the award on merits.  It is incorrect to state that objection of the petitioner was not considered. It cannot be said to be an ex-parte award.  It has also been argued on behalf of the respondents that there is no pleading by the petitioner in the writ petition that the award is an exparte, if that was so, an application should have been filed before the Labour Court.  Not doing so, and without any pleading in the writ petition, it cannot be presumed that the award of the Labour Court is an exparte award.

Reliance has been placed upon a judgment of this Court in Writ Petition No.27683 of 2001 The State of U.P. Vs. Ram Lal and another and has submitted that the contention of the petitioner regarding that Forest Department is not an industry has been considered and has been rejected and this Court while considering the submission on behalf of the parties has awarded 50% back wages.

I have heard Sri Piyush Shukla for the petitioner and Sri Santosh Kumar Srivastava, who appeared for the respondents and have perused the record.

From the record it is clear that the notices were issued to the petitioner and he filed an objection. It appears that after filing an objection no representative on behalf of the state has appeared before the Labour Court. It is also clear from the pleading of the writ petition that there is no pleading to the effect that award of the Labour Court is an exparte award, therefore, it cannot be presumed that the award of the Labour Court has been passed without affording an opportunity to the petitioner.  From the perusal the award it is clear that statements of one Rakesh Chaudhary who was a Forest Officer has been considered as he has stated in his statement that except Shrawan and Virendra other eight persons have left before 1991.  Meaning thereby that the petitioner admits the employment of the respondents during certain periods.  It is to be regarding the nature of employment as the petitioner states that he was being kept on daily wager when there is work. But the workman filed an affidavit before the Labour Court that they have been engaged during 1985-86 and from 1.1.1990 they have not been permitted to work and the services have been dispensed with without following the proper procedure as provided under the Industrial Disputes Act.  It is also to be noted that the objection of the petitioner shall only to the effect regarding maintainability of the dispute before the Labour Court.  The Court has also perused the objection. In paras 1 and 2 of the said objection the factum of engagement has been admitted.  Only the main objection raised on behalf of the petitioner was regarding maintainability of the dispute before the Labour Court.

As regards the contention raised on behalf of the petitioner is that the respondent No.1 is not entitled for back wages in view of the judgment in view of the judgment of the Apex Court  in Hindustan Motor Ltd. Vs. Tapan Kumar Bhattacharya  reported in 2002(6) SCC Page 41. it is well settled that in a routine manner the Labour Court should not grant the back wages unless and until it is settled  by  documentary proof that the workman concerned was not elsewhere employed financially during the period of termination till the date of award.  It is obligatory on the part of the Labour Court to record a specific finding on the basis of the documentary evidence.  Not doing so, the Labour Court has got no jurisdiction to grant the back wages in toto.

But as regards the reinstatement of the workman is concerned, the Labour Court has found that the proper procedure as provided under the Industrial Disputes Act has not been followed while terminating the services of the workman respondent. In a recent judgment of the Apex Court in Management of Madurantakam Corporation Sugar Mills Ltd. Vs. S.Vishwanathan, reported in 2005 Supreme Court Cases (Labour & Service) 372 it has been held that reconsideration of finding of the Labour Court, normally as the Labour Court or the Industrial Tribunal, as the case may be, is the final Court of facts in these types of disputes,  the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India cannot reconsider the finding of fact unless and until it is established that the finding of fact is perverse or if the same is not based on legal evidence and the finding has to be recorded with reasons why the same is being reconsidered a finding of fact recorded by the Labour Court.  In the absence of any such defect in the order of the Labour Court the writ Court will not enter into the realm of factual disputes and finding given thereon.    

In view of the aforesaid fact as the finding recorded by the Labour Court cannot be said to be perverse and against the evidence on record but so far the back wages are concerned, as it has been held that there is no finding on the basis of the documentary proof regarding the awarding the back wages to the workman.

In view of the aforesaid fact, the writ petition is partly allowed to the extent that the award of the Labour Court dated 16.11.1998 is modified to the extent that the respondents workman will not be entitled for any back wages.

The writ petition is disposed of according. There shall be no order as to costs.

19.12.2005

SKD              


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