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ALLAHABAD HIGH COURT
BEFORE : SURYA PRAKASH KESARWANI, J.
STATE OF U.P. AND ANOTHER ....Petitioners
Versus
RAJ KUMAR AND OTHERS .....Respondents
(Civil Misc. Writ Petition No. 24678 of 2011, decided on 21st March, 2014)
(B) Daily wager—Reinstatement—Engaged on temporary basis—Entitlement of—Findings recorded by respondent No. 2 that the petitioner worked continuously for 240 days found to be without evidence—The respondent No. 2 assumed the continuous service of 240 days by the respondent No. 1 merely on the ground that the petitioner had not proved his document by oral evidence—Hence, the findings recorded by the Court below that the respondent No. 1 continuously worked for 240 days or more perverse and deserve to be set aside. [Paras 28 to 30]
(C) Reinstatement—Daily wager—Engaged temporarily on muster roll—Terminated—Entitlement of reinstatement with back wages—The principle of grant of reinstatement with full back wages, when termination found to be illegal, cannot applied—If on adjudication afresh, the respondent No. 1 found to be in continuous service in terms of the provisions of Section 6-N read with Section 2(g) of the U.P. Act and his termination was in breach of the provisions of Section 6-N then looking into the fact that he worked merely from 26.12.1992 to 25.9.1993 and then from 21.2.1995 to 20.8.1995, the reinstatement with full or partial back wages would be unjustified—In such an event grant of appropriate monetory compensation would meet the end of justice. [Paras 50 and 51]
Hon’ble Surya Prakash Kesarwani, J.—Heard Sri R.K.Pandey, learned Standing Counsel for the petitioners and Sri K.M.Asthana, learned counsel for the respondents.
2. In this writ petition, the State of U.P. (petitioners) have challenged the award dated 29.9.2000 passed in adjudication case No. 174/1999 and published on 23.1.2001, the order dated 1.10.2007 rejecting the recall application and the order dated 7.5.2009 rejecting another recall application, all passed by the Labour Court (2) U.P. Kanpur as well as recovery certificate dated 24.1.2011 and the citation dated 18.3.2011.
3. Briefly stated the facts of the present case are that the respondent No. 1 raised a labour dispute. Thereupon a reference was made to the Labour Court No. (3), Kanpur on 18.6.1997, which was transferred to Labour Court No. (2), Kanpur on 18.3.1999. The reference was made as under :
“D;k lsok;kstdksa }kjk Jfed Jh jkt dqekj iq= Jh fnyk'kk jke eLVj jksy deZpkjh ¿esVÀ dks fn0 21-8-95 ls dk;Z ls i~Fkd fd;k tkuk mfpr ,oa oS/kkfud gS ;fn ugha rks D;k fgrykHk {kfriwfrZ ikus dk vf/kdkjh gS fdl frfFk ,oa vU; fdl fooj.k ds lkFk\ß
4. According to the petitioners, the respondent No. 1 was engaged on daily wage basis as per sanction obtained for the period from 26.3.1993 to 25.9.1993, 20.2.1994 to 11.2.1994, 16.8.1994 to 15.9.1994, 17.9.1994 to 15.10.1994, 21.2.1995 to 20.4.1995 and 21.6.1995 to 20.8.1995. After 20.8.1995, the respondent No. 1 was not engaged as there was no work. The respondent No. 1 was not engaged continuously in a year for 240 days or more. The petitioners filed six documents in support of their stand. However, when the matter was transferred from Labour Court No. (3) to Labour Court No. (2), Kanpur, neither any intimation/notice in this regard was given to them nor the petitioners had any knowledge in respect thereof and as such they could not appear and the impugned award was passed ex parte. When the fact of passing of the award came to the knowledge of the petitioners, they moved a recall application under Rule 16(2) of the U.P. Industrial Disputes Rules, 1957, which was rejected by the respondent No. 3 on 1.10.2007 by the following order:
“No response for the O.P. The workman is represented The prayer for review is rejected.”
5. Since the petitioners were not having knowledge of the rejection of their application by the aforesaid order and as such, a recall application was moved on 27.5.2009 supported by an affidavit but it was rejected at the time of presentation itself on 27.5.2009 by the following orders :
“Heard and rejected.”
6. Thereafter, the recovery certificate was issued, followed by a citation issued by the Tehsildar. Aggrieved with the aforesaid award as well as the order dated 1.10.2007 and 27.5.2009, the petitioners have filed the present writ petition.
7. According to respondent No. 1, he was engaged on daily wage basis on muster roll by the petitioner No. 2 from 26.12.1992 to 25.9.1993, during which period he continuously worked on a wage of Rs. 26/- per day. Subsequently, he was engaged from 21.2.1995 to 20.8.1995 on a wage of Rs. 36/- per day. On 21.8.1995, the petitioner No. 2 disengaged him. Against this action the respondent No. 1 moved application before the petitioner No. 2 on 3.4.1996 and 13.8.1996. The petitioner No. 2 paid the wages on 19.6.1996 for the period from 21.6.1995 to 20.8.1995 but did not continue the respondent No. 1 in service. Aggrieved with this, the respondent No. 1 raised industrial dispute and the afore noted reference was made to the Labour Court No. (3), Kanpur, which was subsequently transferred to Labour Court No. (2), Kanpur who passed the impugned award dated 29.9.2000 published on 23.1.2001 to reinstate the respondent No. 1 in uninterrupted service from 21.8.1995 and to pay the entire wages and benefits.
Submissions on behalf of petitioners
8. Sri R.K.Pandey submits as under :
(I) Respondent No. 1 was engaged as a daily wager after due sanction in the need of extra hands to meet
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