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2009 Supreme(All) 1641
[2010(3) ADJ 110]
ALLAHABAD HIGH COURT
BEFORE : RAKESH TIWARI, J.
STATE OF U.P. ....Petitioner
Versus
PRESIDING OFFICER/LABOUR COURT, RAMPUR AND OTHERS ....Respondents
(Civil Misc. Writ Petition Nos. 14232, 8458 of 2001,
decided on 21st April, 2009)
Counsel :
Sandeep Mukherjee, D.N. Mishra, S.C. for the Petitioner; P.C. Singh, B.N. Singh, Mahendra Bahadur Singh for the Respondents.
Headnote:(A) Termination—Workman—Daily-wager—Labour Court set aside termination order, directing reinstatement as regular employee in service, but without back wages—Petition against, by State of U.P.—Workman proved certificate of span of work—But, employer neither produced any witness in support of his case, nor cross-examined workman—Hence, their rights to produce evidence was forfeited by Labour Court, and ex parte award/order was passed against them—In writ petition, High Court set aside ex parte award and remanded matter, and on remand, subsequent impugned award made by Labour Court, was challenged in writ petitions—There was no question of limitation involved for recall of any ex parte order in this petition—And, that workman has failed to prove his continuous service of 240 days in 12 calender months in instant case—Therefore, impugned award of Labour Court quashed and set aside. [U.P. Industrial Disputes Act, 1947—Sections 6-A, 2-A and 6-N]. [Paras 10, 14, 17 to 20, 34 and 40]
(B) Termination—Workman—Relief claimed by Workman for quashing part of award of labour Court by which labour Court denied back wages to him—And sought relief for direction to employer to pay entire arrears of salary as well as reinstatement—Neither employer, nor workman have pleaded any gainful employment, therefore, there is no question of discharge of burden of proof by employer before Tribunal as regards further evidence in the case—Workman has not pleaded that his juniors have been retained in service—He has neither pleaded that termination of his service was illegal for violation of principles of “first come, last go”, nor has pleaded—Workman has also not pleaded violation of Section 6-P read with Section 2(z) of U.P. I.D. Act of 1947—Actual number of days petitioner actually worked in establishment, was not proved—There was only bald averments in his W.S. that he had worked for more than 240 days of continuous service—He also did not move any application for summoning muster roll—Workman was engaged as a daily-wager on need basis from time to time, he cannot be granted relief of reinstatement as a regular employee—Workman himself claims to be a daily wager, Labour Court could not have reinstated him in service as a regular employee by impugned award as regularisation of service was to be governed by relevant rules—Therefore, workman failed to prove that he has actually worked 240 days, and termination of his service was in violation of Section 6-N of U.P. I.D. Act of 1947, not entitled to reinstatement in service—As regards regularisation, it was for Department to look into matter and to pass appropriate orders in accordance with law. [U.P. Industrial Disputes Act, 1947—Sections 6-N, 6-A, 2-A]. [Paras 43, 50, 55, 59, 62, 64 to 68, 70 to 75, 78, 79 to 85]
Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record.
2. By the impugned award dated 23.4.199 the Labour Court has set aside the termination of services of the workman a daily wager w.e.f. 1.9.1989 directing his reinstatement as regular employee of the establishment in service but without back wages.
3. Writ Petition No. 14232 of 2001 has been filed by the State of U.P. through Executive Engineer challenging the validity and correctness of the award dated 23.4.1999 by Presiding Officer, Labour Court Rampur in adjudication case No. 127 of 1991. The award was enforced by publication on the notice Board of the Court on 25.7.1999 and became operative after expiry of 30 days thereafter in accordance with the provisions of contained in Section 6-A of the U.P. Industrial Disputes Act 1947 (hereinafter referred to as ‘U.P. I.D. Act 1947’).
4. Writ Petition No. 8458 of 2001 has been filed by the workman challenging the part of same award dated 23.4.1999 impugned in Writ Petition No. 14232 of 2001 aforesaid. As the impugned award challenged in both the writ petitions is the same, they are being heard and are being decided by this common judgment as connected writs.
5. The facts of the case are that petitioner is Executive Engineer in Irrigation Division Moradabad, hereinafter referred to as the employer and the contesting respondent Sri Sarwan Kumar, is hereinafter referred to as the workman.
6. The workman was engaged as Labourer w.e.f. 1.1.1988 on daily wages in the Civil Construction Works of the Irrigation department of the Government at Moradabad. He claimed that he continuously worked since the date of his engagement till 31.8.1989 but was not allowed to work thereafter by petitioner w.e.f. 1.9.1989 without compliance of mandatory provisions of Section 6-N of U.P. I.D. Act, 1947 and compelled by his alleged illegal termination the workman raised an industrial dispute under Section 2-A of the U.P.I.D. Act, 1947. On conciliation proceeding having failed, the following dispute regarding termination of services was referred by State Government vide G.O. No. 275/B.C.P. 011/90 dated 6.5.1991 for workman adjudication by Labour Court, Rampur :
ÞD;k lsok;kstdksa }kjk Jh Jo.k dqekj iq= Jh fdkksjh flag lEcfU/kr Jfed dh lsok,a fnukad 1-9-1989 ls lekIr fd;k tkuk mfpr rFkk vFkok oS/kkfud gS ;fn ugha rks Jfed fdl fgr ykHk 7 vuqrks"k dks ikus dk vf/kdkjh gS rFkk vU; fdu fooj.kksa lfgrAÞ
7. The reference aforesaid was registered as Adjudication case No. 127 of 1991 in Labour Court, Rampur and on receipt of notices, written statement of demand was filed by the workman. Rejoinder was also filed by the workman to the written statement of the employer before the Labour Court.
8. The employer in its written statement averred that the reference order is bad in law as they are officers in Irrigation department of the State Government which is not an industry to which Industrial Disputes Act applies; that respondent was appointed as Beldar on daily wage basis and did not work continuously for 240 days on or against a permanent post as claimed by the workman. It was also averred that his engagement during the period 31.8.1988 to 1.9.1989 was afresh every time and that he was engaged from time to time on need basis according to exigency of work as such the Provisions of Section 6-N of the U.P. I.D. Act, 1947 did not apply. A chart showing that the workman concerned had actually worked intermittently for 163 days in the establishment of the petitioner during the aforesaid span of his engagement was also appended with the written statement of the employer before the Labour Court.
9. The written statement of the employer and chart of Muster Rolls showing extract of actual number of working days of the workman in petitioner’s establishment during his period of engagement is as under :
“1. That the reference to this learned Court is illegal and has been made without any basis.
2. That the opposite parties are merely the officers of
