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PRABHARI ADHIKARI, M/S PASHUDHAN AVAM KRISHI SODH versus P.O., LABOUR COURT & OTHERS

High Court of Judicature at Allahabad

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Prabhari Adhikari, M/S Pashudhan Avam Krishi Sodh v. P.O., Labour Court & Others - WRIT - C No. 9274 of 2001 [2006] RD-AH 2841 (7 February 2006)

 

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

Court No.26

Civil Misc.Writ Petition No.9274 of 2001

   Prabhari Adhikari, M/s Pashudhan Avam Krishi Sodh

Versus

Presiding Officer, Labour Court, U.P. Agra and others

*************

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the award-dated 14.2.2000 published on 1.12.2000 (Annexure 2 to the writ petition) passed by the respondent No.1 in Miscellaneous Case No.196 of 1998.

The petitioner has approached this Court stating therein that University runs various schemes from the permission of the Collector at various places.  The respondent No.4 was engaged from time to time as a daily rated worker with the University  as and when required and was being paid salary in accordance with the sanction given by the University.  No appointment letter was ever issued regarding the engagement of the respondent No.4.  The respondent No.4 approached the State Government and the State Government has referred the matter to the respondent No.1 regarding the legality and validity of the action taken by the petitioner against the respondent No.4 for his deprivation of work. An award has been given by the respondent No.1 on 14.2.2000 by which a relief of reinstatement as well as full back wages have been awarded.  Aggrieved by the aforesaid award, the petitioner has approached this Court.

The contention raised on behalf of the petitioner is that the respondent No.4 was engaged from time to time when required.  The work is only casual and seasonal and the same is not regular, therefore, no relief can be granted to the respondent No.4.  The petitioner is not the employer of the respondent No.4 and the award given is wholly illegal, without jurisdiction and is not sustainable in law.  The nature of appointment of the respondent No.4 does not come under the definition of the workmen, therefore, no industrial dispute was maintainable and the Labour Court has clearly erred in law in awarding the relief to the respondent No.4.  As regards, the back wages, the submission of the petitioner is that now in view of the well settled principle of law by the Apex Court, it has clearly been held that the workmen is not entitled to back wages unless and until determination of entitlement of the question of back wages has to be pleaded and a prove thereof has to be placed before the Court and a finding to that effect has to be recorded on the basis of the pleading and prove, in case the back wages is being awarded.  There is no straightjacket formula to award the back wages if the relief of reinstatement is granted.

Sri Prakash Padia, Advocate, who is appearing for the petitioner has submitted that there is no pleading by the respondent No.4 (Workmen) that he was not financially or gainfully employed anywhere during the period of termination till the date of award.  In absence of the aforesaid pleading no back wages can be awarded.  

The reliance has been placed upon a judgment in Kendriya Vidyalaya Sangathan and another Vs. S.C.Sharma reported in  2005 Supreme Court Cases (Labour and Service) 270 and reliance has been placed upon Para 16 of the said judgment.  The same is being reproduced below:-  

"16. Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was a natural consequence.  That part of the High Court order is set aside.  When the question of determining of entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed.  The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim.  In the instant case, the respondent had neither pleaded nor placed any material in that regard."  

On the other hand, the counsel for the respondents has submitted that as the Labour Court has recorded a finding that the petitioner is entitled for reinstatement, as such, has awarded the back wages and it was fully proved  before the Labour Court that the respondent No.4 has worked from 1.2.1991 till 18.7.1993 continuously and on 19.7.1993, the services of the petitioner have been dispensed with.  It has further been submitted on behalf of the respondents that in the written statement the employer themselves has admitted this fact that the petitioner has worked from July 1991 to July 1993 continuously and he has completed 240 days in one calendar year, as such, he is entitled for reinstatement and in consonance of reinstatement the Court below has awarded the back wages.  

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

From the written statement filed on behalf of the petitioner, it clearly appears that the respondent No.4 workmen has worked from 1.2.1991 till 18.7.1993 and has completed 240 days in one calendar year.  It has not been pleaded by the petitioner that the proper procedure while terminating the services of the respondent No.4 has been followed, as such, the Labour Court has awarded the relief of reinstatement.  Now in view of the judgment in Rajasthan State Road Transport Corporation Vs. Bhithnath reported in (2005) 2 Supreme Court Cases, 367, the Apex Court has held that there is a very limited scope of the judicial review with the finding of fact recorded by the Labour Court.  The Labour Court being a last Court of fact, if a finding has been recorded on the basis of appreciation on evidence on record, there should not be any interference.

As regards the contention raised on behalf of the petitioner regarding payment of back wages now the Apex Court is constantly holding that in case the relief of reinstatement has been awarded there is no straightjacket formula to award the back wages.  Regarding award of the back wages there must be a pleading and a finding to this effect has to be recorded by the Court and the burden is upon the workmen that he was not gainfully employed anywhere.  If that burden has been discharged the employer will be given an opportunity to rebut the claim of the employee.  The view has been reiterated in Hindustan Motor Limited Vs. Tapan Kumar Battacharya reported in (2002) 6 Supreme Court Cases, 41, Indian Railway Construction Company Limited Vs. Ajai Kumar reported in (2003) 4 Supreme Court Cases, 579,  P.G.I of Medical Education and Research Vs. Raj Kumar reported in (2001) 2 Supreme Court Cases, 54 and M.P.State Electricity Board Vs. Jarina Bee reported in (2003) 6 Supreme Court Cases, 141.

In view of the aforesaid fact as the Labour Court has not recorded any finding and there was no pleading by the respondent No.4 (Workman) that he was not financially or gainfully employed anywhere during this period, as such, in my opinion, the respondent No.1 was not justified in awarding the back wages to the respondent workmen.

In view of the aforesaid fact, the award-dated 14.2.2000 published on 1.12.2000 (Annexure 2 to the writ petition) is modified to the extent that the respondent No.4 workmen will not be entitled for any back wages.

The writ petition is partly allowed.  There shall be no order as to costs.

1.2.2006

SKD  


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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