2021 Supreme(All) 401

IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Vijay Shankar Tripathi - Appellant
Versus
State of U.P. and Others - Respondent
WRIT -A No. 38695 of 2015
Decided On : 14-06-2021

Point of law: Labour Law - Regulations made under statute laying down terms and conditions of service of employees, including grant of retirement benefits, have force of law. Regulations validly made under statutory powers are binding and effective as enactment of competent legislature.

Headnote:

Uttar Pradesh Industrial Disputes Act, 1947 - Section 4-K ,6-N,6-P - Petitioner was appointed as a Clerk on daily-wages on 10.11.1980 with the Kanpur Electric Supply Administration a part of the establishment of the late U.P. State Electricity Board. The erstwhile U.P. State Electricity Board was wound up and reconstituted into three companies, one of these being the U.P. Power Corporation Limited - KESA, upon dissolution of Board and its part reconstitution into the UPPCL, was reconstituted as the Kanpur Electric Supply Company Limited During the KESA days, the petitioner was granted extension as a daily-wage clerk from time to time. There are two extension order annexed to the writ petition collectively as Annexure no.2. But, all that does not appear to be very material, considering the fact that the petitioner's tenure and terms of employment as well as dispensation of services at a certain point of time by the KESA has already been through the process of industrial adjudication, culminating in an award of the Labour Court, details whereof would be mentioned later - dispute involved in this writ petition is a sequel to an award passed by the Presiding Officer Labour Court (IV), U.P., Kanpur in Adjudication Case no.3 of 1988 between the predecessors of the Company that is to say, M/s. Kanpur Electric Supply Administration, who were the employers and the petitioner, their workman. The award became final between parties, in course of proceedings, the details whereof would be mentioned later in this judgment. -Whether the act of the employers terminating the services of their workman, Vijay Shankar Tripathi, a daily-wage clerk w. is proper and/or lawful? If not, to what benefit/relief is the workman concerned entitled and in what terms?

Finding of the court: Petitioner was not a temporary employee or one serving on a fixed tenure. He was held to be a regular and permanent employee of the former KESA, going by the long period of his retention in service. It was on that basis that the petitioner's termination was found to be bad under Sections 6-N and 6-P of the Act of 1947. The award cannot be held to have found the petitioner to be a daily-wager or a fixed term employee. Be it right or wrong, the said award has become final. The sole reason why back-wages were not awarded to the petitioner in terms of a pay scale, after finding him to be not a temporary employer or a fixed term appointee, is the fact that the reference before Labour Court was about the validity of the termination and not the wage entitlement of the petitioner - In fact, Labour Court held that retaining the petitioner for such a long period of time, with periodical extensions in service, despite regular work being available, and juniors being retained in service, was unfair labour practice - e letter of absorption/adjustment issued by the Company to the petitioner reserves the petitioner's right to receive both pension and gratuity. It is, thus, not a case, where the petitioner is pleading or asserting a contractual right that conflicts with a statute, a statutory rule or a non-statutory regulation, governing post retiral benefits, admissible to employees of the Company - He is asserting his rights under a concluded award of Labour Court to the extent, it has been modified and mutually adjusted between parties through the terms of a contract incorporated in the settlement agreement - petitioner has been placed in the pay scale of in more than one of the paragraphs. The petitioner has also been held entitled to seniority and promotion, subject, of course, to passing a typing test - Therefore, the petitioner's description in the settlement agreement and the letter of appointment as a daily rated clerk is no more than a misnomer or a mis-description, that arises as a result of the Company's malice or a poor understanding of the law. In no case, it would derogate from the rights of the petitioner or his status as a regular and permanent clerk, placed in a certain pay scale, mentioned in the settlement agreement as well as his appointment order.

Result: Writ petition allowed