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Monday, January 12, 2015

Whether the appellant-workman would be entitled to consolidated damages/compensation equivalent to the retrenchment compensation calculated from the date of his engagement till the date of his disengagement. = CIVIL APPEAL NOS. 10353-10354 OF 2014 (Arising out of SLP(C) NOS. 31173-31174 OF 2010) SUDARSHAN RAJPOOT …APPELLANT Vs. U.P. STATE ROAD TRANSPORT CORPORATION …RESPONDENT




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                   CIVIL APPEAL NOS. 10353-10354  OF 2014
              (Arising out of SLP(C) NOS. 31173-31174 OF 2010)

SUDARSHAN RAJPOOT                            …APPELLANT

                                     Vs.

U.P. STATE ROAD TRANSPORT CORPORATION …RESPONDENT



                               J U D G M E N T



V.GOPALA GOWDA, J.

Leave granted.

2. These civil appeals  are  directed  against  the  impugned  judgment  and
orders dated 5.3.2008 and 3.8.2010 passed in Civil Misc. Writ  Petition  No.
21553(C) of 2005 and Civil Misc. Review Application No.  93051  of  2008  by
the High Court of Judicature at Allahabad. Vide order dated  05.03.2008  the
High Court allowed the writ petition filed by  the  respondent-  U.P.  State
Road Transport  Corporation  (in  short  ‘the  respondent-Corporation’)  and
quashed the award dated 31.05.2004 passed by the Labour Court and held  that
the    appellant-workman    would    be     entitled     to     consolidated
damages/compensation equivalent to the retrenchment compensation  calculated
from the date of his engagement till the  date  of  his  disengagement.  The
Review Application of the Corporation was rejected.
3. Brief  facts  in  nutshell  are  stated  hereunder  for  the  purpose  of
appreciating rival legal contentions with a view to find out as  to  whether
the impugned judgment is required to be  interfered  with  or  not  by  this
Court in exercise of its appellate jurisdiction.
4. On 11.03.1997 the appellant-workman Sudarshan Rajpoot  was  appointed  to
the post  of  Driver  at  Azad  Nagar  Depot,  Kanpur,  in  the  respondent-
Corporation. On 07.06.1999  the  appellant-workman  was  driving  a  vehicle
bearing No.UAN 8582 on the Deora to Kanpur route, when all of a  sudden  the
steering became free due to the iron ball of the tyre being damaged  and  he
lost control over the vehicle. As a result of which the vehicle met with  an
accident and the appellant-workman broke both his legs. He was  admitted  in
Lucknow Medical College and his  treatment  continued  till  09.08.2000.  On
10.8.2000, he presented himself for duty with a  fitness  certificate,  when
he was told orally that his name was struck off from the rolls  of  post  of
driver and has been removed from the services of the Corporation.  No  order
of termination from his services was served upon  the  appellant-workman  on
that day. It is the case of the appellant-workman that  he  had  worked  for
more than 240 days continuously in a calendar year  from  the  date  of  his
appointment till the date of  his  termination  from  the  services  of  the
respondent-Corporation.
5.  The  appellant-workman  raised  an   industrial   dispute   before   the
Conciliation  Officer  questioning  the  correctness   of   the   order   of
termination dated 29.07.2000 under the provisions  of  the  U.P.  Industrial
Disputes Act, 1947 (for short “the U.P.I.D, Act”).
    The State Government of Uttar Pradesh, which is  the  appropriate  State
Government under the U.P.I.D. Act to make an order of  reference  to  either
the Labour Court or Industrial Court  for  adjudication  of  the  industrial
dispute between the workman and  their  employer,  exercised  its  statutory
powers under Section 4-K of the U.P.I.D Act and referred the dispute to  the
Labour Court vide its order No.  483-85  KR  (Branch  Secretary)  CP493/2000
dated 9.4.2001 to adjudicate the following  point  of  dispute  whether  the
termination  of  services  of  the  appellant-workman  by  the   respondent-
Corporation vide order dated 29.7.2000 is proper  and  valid?  If  not  then
whether   the   concerned   appellant-workman   is   entitled   to   receive
interest/compensation?
6. The said order of reference was registered as  Industrial  Dispute  No.52
of 2001 by the Labour Court. The Labour Court has adjudicated  the  dispute,
after affording an opportunity to the parties and rejected the plea  of  the
respondent-Corporation that the appellant-workman was  working  on  contract
basis. Further, the Labour Court adverted to an  undisputed  fact  that  the
order of termination was not preceded by any departmental  inquiry  required
to be conducted by the Corporation. It was also noted by  the  Labour  Court
that no evidence on record was adduced before it  to  prove  the  allegation
made in the order of termination that the accident occurred  on  account  of
the negligence on the part of the appellant-workman.
7. The Labour Court has held that the workman had worked for more  than  240
days in a calendar year and that he was removed from his post on  29.07.2000
by the Corporation without any valid reasons. In the order  of  termination,
it has been specifically stated that  his  name  was  struck  off  from  the
contract roll.  The  finding  of  fact  recorded  by  the  Labour  Court  on
appreciation  of  the  pleadings  and  evidence  on  record  was  that   the
termination of the services of the appellant-workman  was  contrary  to  law
and accordingly set aside the same & passed an Award.  The  Corporation  was
directed to reinstate the appellant-workman without any break in service  in
the post of driver and pay all his  dues,  salary  etc.  from  the  date  of
termination of his services and also further directed to the Corporation  to
continue to pay in future also.
8. The said award was challenged by the  respondent-Corporation  before  the
High Court questioning the correctness of the findings of fact  inter  alia,
contending the finding recorded by the Labour Court in its  Award  that  the
appellant-workman was a permanent  employee  of  the  Respondent-Corporation
without there being any evidence  on  record  and  therefore,  the  same  is
erroneous in law. Reliance was placed on the decision of this Court  in  the
case of Secretary, State of Karnataka & Ors. v. Uma Devi &  Ors.[1]  in  the
matter of appointment of  the  appellant-workman  as  he  was  appointed  on
temporary/contractual basis.
9. The High Court has set aside award  of  reinstatement  and  consequential
reliefs granted by the Labour Court in its  Award  after  referring  to  the
decisions  of  this  Court  in  the  cases  of  Haryana  State   Electronics
Development Corporation Ltd. v. Mamni[2].  The  High  Court  held  that  the
appellant-workman  was   entitled   to   consolidated   damages/compensation
equivalent to the retrenchment compensation calculated from the date of  the
workmen’s engagement till the date of his disengagement.
10. The correctness of the impugned Judgment and order of the High Court  is
questioned by the appellant-workman before this  Court  by  raising  various
questions of law and urging various grounds  in  support  of  the  same  and
prayed for restoration of the award passed by the Labour Court.
11. The legal questions raised in this appeal are that the  High  Court  has
failed to consider Section 6R of the U.P.I.D.  Act,  where  the  effects  of
laws inconsistent with Sections 6J to 6Q are dealt with. Sections 6N and  6Q
(which are equivalent to Sections 25F and 25H  of  the  Industrial  Disputes
Act, 1947) have an overriding effect on all laws, as such non-compliance  of
mandatory  provisions  of  Sections  6N  and  6Q  rendered  the   order   of
termination passed  against  the  appellant  void  ab  initio  in  law.  The
conditions precedent as laid down under Section 6-N of the U.P.I.D. Act  for
retrenchment of workmen have not been complied with  though  the  appellant-
workman has put in continuous service of more than 240 days  in  a  calendar
year from the date of appointment till the date of  his  termination  passed
by the Respondent-Corporation. Non-consideration  of  this  important  legal
aspect of the case by the High Court while  setting  aside  the  finding  of
facts recorded by the Labour Court in  its  Award  that  the  order  of  the
respondent-Corporation terminating the services of the  appellant-workman  &
non-compliance of mandatory provision of Section 6-N of  the  U.P.I.D.  Act,
rendered the order of termination void ab initio in law.
12. It has been contended by the learned counsel for  the  appellant-workman
that the High Court has erred in placing reliance upon the decision of  this
Court in Uma Devi case (supra), which was distinguished in as  much  as  the
said case is not applicable to the case on hand  for  the  reason  that  the
appellant-workman is a “workman”  as  defined  under  Section  2(z)  of  the
U.P.I.D. Act and the respondent is the Statutory  Corporation  which  is  an
undertaking of the State Government and therefore, it is an  instrumentality
of the State Government, it will come within the  definition  of  “Industry”
as defined under Section 2(k) of  the  U.P.I.D.  Act.  Therefore,  the  said
provisions of the U.P.I.D. Act are applicable to  the  appellant-workman  as
he is a “workman” as defined under Section 2(z)  of  the  U.P.I.D.  Act  and
Section 2(s) of the I.D. Act, 1947.
13. Further, it is contended that the High Court has failed to consider  the
“Unfair Labour Practice” as defined under Section 2(ra)  of  the  I.D.  Act,
1947 read with Sections 25T and 25U and V Schedule of the  I.D.  Act.   Para
10 of the V Schedule of the  I.D.  Act  prohibits  the  employer  to  employ
workmen as badlis, casuals or temporaries and to continue them as  such  for
years in the Corporation, with the object of depriving them  of  the  status
and privileges of permanent workmen is prohibited. It is  further  contended
that the  respondent-Corporation  is  liable  for  penal  action  under  the
provisions of Section  25U  of  the  I.D.  Act.  In  support  of  the  above
contention, reliance was placed on 3 Judge Bench decision of this  Court  in
the case of Chief Conservator  of  Forests  and  Anr.  v.  Jagannath  Maruti
Kondhare & Ors[3].
14. On the other hand, the  learned  counsel  appearing  on  behalf  of  the
respondent-Corporation sought to justify the correctness of the finding  and
reasons recorded by the High Court in the impugned judgment.  Alternatively,
it is contended that even if the order of termination is  bad  in  law,  the
workman  who  is  working  on  the  contract  basis  is  not  entitled   for
reinstatement with full back-wages as per the view taken by  this  Court  in
several decisions.  Therefore,  the  learned  counsel  for  the  respondent-
Corporation submits that  the  impugned  judgment  and  order  need  not  be
interfered with by this Court in exercise of its appellate jurisdiction.
15. With reference to the above said rival legal contentions  the  following
substantial questions would arise for our consideration:
Whether the High Court is justified  in    passing  the  impugned  judgment,
order and reversing the award passed by the Labour Court?
Whether the  order  of  termination  passed  against  the  appellant-workman
amounts to retrenchment as defined under Section 2(s) of the  U.P.I.D.  Act,
1947?
Whether non-compliance of the statutory provisions under Sections 6-N and 6-
Q of the U.P.I.D. Act which are analogous with 25-F  and  25-H  respectively
of the I.D. Act,1947 renders the order of  termination  void  ab  initio  in
law?
What relief the appellant-workman is  entitled to?

16. To answer the above substantial questions of law  it  is  necessary  for
this Court to extract the order  of  termination  passed  by  the  Assistant
Regional Manager of the Corporation, which reads thus:

                   “ OFFICE OF ASSISTANT REGIONAL MANAGER,
                U.P. TRANSPORT CORPORATION, AZAD NAGAR DEPOT

Letter No.ARM/A.Ngr/Bus Accident 0582/2000/3591 dated 29.7.2000

                                OFFICE ORDER

On 7.6.1999 vehicle bearing No. 8582 which had met  an  accident  which  was
being driven on 7.6.1999 by Shri Sudharshan Rajput  contractual  driver  and
conductor Shri Kamta Prasad on Deoria to Kanpur route and accident  occurred
on the way at 1:30 a.m. in the night  at  village  Palhari,  Barabanki  near
Police Station Safdarganj and  due  to  negligent  driving  of  the  driver,
department  suffered heavy loss.

Hence in order to meet departmental  loss,  forfeiting  security  of  driver
Shri Sudharsan Rajput, I pass the order to struck  off  his  name  from  the
contract roll with  an  immediate  effect.  His  name  be  struck  off  from
contract roll.

                                                              Sd/(Illegible)
                                                                 (Sad Sayed)
                                                 Assistant Regional Manager,
                                                          Azad Nagar, Depot”
                                               (emphasis laid by this Court)
In the aforesaid order of termination it is  specially  mentioned  that  the
appellant-workman was appointed as a driver on  contractual  basis.  It  has
been further stated that the accident occurred  on  07.06.1999  due  to  the
negligent driving of the appellant-workman resulting in heavy  loss  to  the
department of the respondent-Corporation. In order to meet the  departmental
loss, security  amount  of  driver  was  forfeited  and  Assistant  Regional
Manager had struck off the name of the appellant-workman from  the  contract
employees  roll  with  immediate  effect.  The  respondent-Corporation   has
neither produced documentary evidence nor showed  before  the  Labour  Court
that the appellant-workman was appointed on contract basis.  The  fact  that
he  deposited  Rs.2000/-  towards  security  amount  with  the   respondent-
Corporation indicates that he was working  as  the  Driver  on  a  permanent
basis. In view of the Schedule V, entry No. 10  of  the  I.D.  Act,1947  the
respondent-Corporation is prohibited from engaging the appellant-workman  as
a badli, casual or temporary workman to work on permanent  basis.  The  fact
that he had been continuously working for more  than  3  years  and  he  had
rendered more than 240 days of service as the  driver  in  a  calendar  year
until his termination order and yet he being engaged on a contractual  basis
in the respondent-Corporation is statutorily prohibited.  The  same  amounts
to an unfair labour practice  as  defined  under  Section  2(ra)  read  with
Section 25T, which action of the Corporation  is  punishable  under  Section
25U of the I.D. Act. This legal position is settled by this Court  in  Chief
Conservator of Forest case (supra) wherein it was held as under:-
“22..... In our opinion, it would be permissible on facts  of  a  particular
case to draw the inference mentioned in the second  part  of  the  item,  if
badlis, casuals or temporaries are continued as such for years.  We  further
state that the present was such a case in as much as from the  materials  on
record we are satisfied that the 25 workmen who went to Industrial Court  of
Pune (and 15 to Industrial Court, Ahmednagar) had been kept as  casuals  for
long years  with  the  primary  object  of  depriving  them  the  status  of
permanent employees in as much as giving of this status would have  required
the employer to pay the workmen at a rate higher than the  one  fixed  under
the Minimum Wages Act. We can think of no other possible object as,  it  may
be remembered that the Pachgaon Rarwati Scheme was intended to cater to  the
recreational and educational aspirations also of  the  populace,  which  are
not ephemeral objects, but par excellence permanent. We would say  the  same
about environment-pollution-care  work  of  Ahmednagar,  whose  need  is  on
increase because of increase in pollution. Permanency is thus writ large  on
the face of both the types of work. If, even in such projects,  persons  are
kept in jobs on casual basis for  years  the  object  manifests  itself;  no
scrutiny is  required.  We,  therefore,  answer  the  second  question  also
against the appellants.”

17. In the absence of the documentary evidence to justify the plea taken  by
the  Respondent-Corporation  that  the  appellant-workman  was  a   contract
employee in the order of termination it remained as a plea and not a  proven
fact of assertion. Therefore, the  appellant-workman  is  considered  to  be
permanent workman. Further, the appellant-workman has clearly stated in  his
affidavit before the High Court that at the time of termination his  juniors
were working on permanent basis. Therefore, the same is another  added  fact
to accept the contention of the appellant-workman by the Labour  Court  that
he was appointed as a permanent workman in the respondent-Corporation  as  a
driver.
18. The reference of the industrial dispute to the  Labour  Court  regarding
the justification of the order of termination passed against the  appellant-
workman was made by the State Government in exercise of its statutory  power
under the U.P.I.D. Act.   The  burden  to  justify  the  same  lies  on  the
respondent-Corporation, the  same  has  not  been  discharged  by  producing
cogent evidence on record before the Labour Court.  Therefore,  the  finding
of fact recorded by the Labour Court while answering the  point  of  dispute
referred to it by placing reliance upon the  evidence  of  the  employer-EW1
wherein he admitted that the appellant-workman was  appointed  on  permanent
basis in the  post  of  driver  at  Azad  Nagar  Depot  of  the  respondent-
Corporation. The finding of fact was recorded by the Labour Court  accepting
the evidence of EW 1 that  the  appellant-workman  has  worked  continuously
from 11.3.1997 to 29.07.2000 in the respondent-Corporation.  Therefore,  the
Labour Court has rightly come to conclusion and  held  that  the  appellant-
workman has rendered more than 240 days continuous service from the date  of
his appointment till the date of passing the termination order.
19. It is the case of retrenchment as the termination of the appellant  from
his services is otherwise for misconduct,  in  view  of  the  admitted  fact
mentioned in the order of termination that his name was struck off from  the
contract roll. Merely because the words mentioned  as  “contractual  driver”
in the termination order dated 29.7.2000 to strike off  his  name  from  the
contract employees roll does not automatically prove that he has  worked  as
the driver on contract basis in the respondent-Corporation.
20. The finding of fact recorded by the Labour Court in its award on  proper
appreciation of undisputed facts and evidence on record,  has  been  rightly
held that the termination order amounts to retrenchment and  non  compliance
of the statutory provisions under Sections 6-N, 6-R and 6-Q of the  U.P.I.D.
Act has rendered the order of termination void ab initio in law.  Therefore,
the Labour Court was justified in passing the award of  reinstatement  after
setting aside the order of termination and  awarded  consequential  benefits
and  such  as  back-wages  from  the  date  of  termination  till  date   of
reinstatement and further direction to pay future salary to  the  appellant-
workman.
21. In the order of termination, it is alleged that on account of  negligent
driving of  the  bus  by  appellant-workman  the  accident  of  the  vehicle
happened, the said allegation was neither proved in the inquiry required  to
be  conducted  nor  producing  evidence  before  the  Labour  Court  by  the
respondent-Corporation. Therefore, the High Court has failed to examine  the
above vital aspects of the case on hand and erroneously interfered with  the
award passed by the Labour  Court  in  exercise  of  its  extraordinary  and
supervisory jurisdiction under Articles 226 & 227  of  the  Constitution  of
India. This exercise of power is contrary to  the  law  laid  down  by  this
Court  in  the  case  of  Harjinder  Singh  v.  Punjab   State   Warehousing
Corporation[4], wherein this Court held thus:-
“17. Before concluding, we consider  it  necessary  to  observe  that  while
exercising jurisdiction under Articles 226 and/or 227  of  the  Constitution
in matters like the present one, the High Courts are duty bound to  keep  in
mind  that  the  Industrial  Disputes  Act  and  other  similar  legislative
instruments are social welfare legislations and the same are required to  be
interpreted keeping in view the  goals  set  out  in  the  preamble  of  the
Constitution and the provisions contained in Part IV thereof in general  and
Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that  the
State should secure a social order for  the  promotion  of  welfare  of  the
people, ensure equality between men and women and equitable distribution  of
material resources of the community to sub-serve the common  good  and  also
ensure  that  the  workers  get  their  dues.  More  than  41   years   ago,
Gajendragadkar, J, opined that "the concept of social and  economic  justice
is a living concept of revolutionary import;  it  gives  sustenance  to  the
rule of law and meaning and significance to  the  ideal  of  welfare  State"
- State of Mysore v. Workers of Gold Mines AIR 1958 SC 923.”

Therefore, we have to hold that the High  Court  has  erroneously  exercised
its supervisory jurisdiction under Articles 226 & 227  of  the  Constitution
of India, in interfering with the findings of fact recorded in the award  by
the Labour Court and setting aside the same and  in  lieu  of  the  same  it
awarded retrenchment compensation from the  date  of  appointment  till  the
date of disengagement. The impugned Judgment and order passed  by  the  High
Court is not only erroneous but suffers from error in law as it  has  failed
to follow the principles  laid  down  by  this  Court  in  the  above  case.
Therefore, the same is liable to be set aside.

22. Further, the reliance placed upon the decision  of  this  Court  on  Uma
Devi (supra) case by the High Court to reverse the finding of fact  recorded
in the award in favour of the workman in answering the points of dispute  in
the negative, is not tenable in law in view of the judgment  of  this  Court
in Maharashtra State  Road  Transport  Corpn.  &  Anr.  v.  Casteribe  Rajya
Parivahan Karmchari Sanghatan[5], wherein, this  Court  after  adverting  to
Uma Devi’s case (supra) at para 36, has held that the  said  case  does  not
denude the Industrial and Labour  Courts  of  their  statutory  power  under
Section 30 read  with  Section  32  of  the  MRTU  and  PULP  Act  to  order
permanency of the workers who have been victims of  unfair  labour  practice
on the part of the employer under Item 6 of the Schedule IV where the  posts
on which they have been working exist.  Further, this Court  held  that  Uma
Devi’s case cannot be held to have overridden the powers of  Industrial  and
Labour Courts in passing appropriate order under Section 30 of the MRTU  and
PULP Act, once unfair labour practice on the  part  of  the  employer  under
Item 6 of the Schedule IV is established.
23. We are of the opinion that the view  taken  in  Maharashtra  State  Road
Transport Corpn. & Anr.(supra) at para 36 after distinguishing   Uma  Devi’s
case is the plausible view. Therefore, we have to hold that the  finding  of
the High Court in setting aside the finding of fact recorded by  the  Labour
Court in its award by applying Uma Devi case (supra) is wholly untenable  in
law. Therefore, the same is set aside by this Court.

24. This Court in the later judgment in the case of  Hari  Nandan  Prasad  &
Anr. v. Employer I/R to Management of Food Corporation of India  &  Anr.[6],
after adverting to the law laid down in  U.P.  Power  Corporation  v.  Bijli
Mazdoor Sangh[7]   and  Maharashtra  State  Road  Transport  Corpn.  &  Anr.
(supra) wherein Uma Devi’s case is adverted to in both the cases, held  that
on a harmonious reading of the two judgments,  even  when  there  are  posts
available, in the absence of any unfair labour  practice  the  Labour  Court
cannot  give  direction  for  regularisation  only  because  a  worker   has
continued as daily-wage worker/ad hoc/temporary worker for number of  years.
 Further, such a direction cannot be given when the  worker  concerned  does
not meet the eligibility requirement of the post  in  question  as  per  the
recruitment rules. It was held at para 32 in  the  Hari  Nanda  Prasad  case
(supra) as under:-
“32. However, the Court in  Maharashrtra  SRTC  case  also  found  that  the
factual position was different in the case  before  it.  Here  the  post  of
cleaners in the establishment  were  in  existence.  Further,  there  was  a
finding of fact recorded that the Corporation had indulged in unfair  labour
practice by engaging these workers on temporary/casual/daily-wage basis  and
paying them paltry amount even when they were discharging  duties  of  eight
hours a day and performing the same duties as that of regular employees.”

Further, Hari Nandan Prasad & Anr. (supra) referred  at  para 36,  the  case
of LIC v. D.J. Bahadur[8] in which the relevant para 22 of LIC (supra)  case
extracted as under :-


“36……“22. The Industrial Disputes Act is a benign  measure  which  seeks  to
pre-empt industrial tensions, provide the mechanics of  dispute  resolutions
and set up the  necessary  infrastructure,  so  that  the  energies  of  the
partners in production may not be dissipated  in  counterproductive  battles
and the assurance of industrial justice may create a climate of goodwill.”

In order to achieve the aforesaid objectives, the  Labour  Courts/Industrial
Tribunals are given wide powers not only to enforce the rights but  even  to
create new rights, with the underlying objective to achieve social  justice.
Way  back  in  the  year  1950  i.e.  immediately  after  the  enactment  of
Industrial Disputes Act, in one of its first and celebrated judgment in  the
case of Bharat Bank Ltd. V. Employees of Bharat Bank Ltd.[1950] LLJ 921,948-
49 (SC) this aspect was highlighted by the Court observing as under:
“61.......In settling the disputes between the employers  and  the  workmen,
the function of the tribunal is not confined to  administration  of  justice
in accordance with law. It can confer rights and privileges on either  party
which it considers reasonable and proper, though they may not be within  the
terms of any existing agreement. It has not  merely  to  interpret  or  give
effect to the contractual rights and obligations  of  the  parties.  It  can
create new rights and obligations between them which it considers  essential
for keeping industrial peace.”





And again at para 37, observing that the aforesaid sweeping power  conferred
upon the Tribunal is not unbridled and is circumscribed  by  this  Court  in
New Maneck Chowk Spg. & Wvg.  Co.  Ltd.  v.  Textile  Labour  Assn.[9],  the
relevant para 6 of which is extracted as under :-


“37….“6. … This, however, does not mean that  an  Industrial  Court  can  do
anything and everything when dealing with an industrial dispute. This  power
is conditioned by the subject-matter with which it is dealing  and  also  by
the existing industrial law and it would not be open  to  it  while  dealing
with a particular matter before it to overlook the industrial  law  relating
to that matter as laid down by the legislature or by this Court.”

38. It is, thus, this fine balancing which is required to be achieved  while
adjudicating a particular dispute,  keeping  in  mind  that  the  industrial
disputes are settled by industrial adjudication on principle  of  fair  play
and justice.”




25. In view of the aforesaid statement of law laid down by this Court  after
adverting to the powers of the Industrial Tribunal and the Labour  Court  as
interpreted by this Court in the earlier decisions referred  to  supra,  the
said principle is aptly applicable to the fact  situation  of  the  case  on
hand, for the reason that the Labour Court recorded a  finding  of  fact  in
favour of the workman that the termination  of  services  of  the  appellant
herein is not legal and valid and further reaffirmed the  said  finding  and
also clearly held that the plea taken in the order of  termination  that  he
was appointed on contract basis as a  driver  is  not  proved  by  producing
cogent evidence. Further, we hold that even if the plea of the  employer  is
accepted, extracting work though of permanent nature continuously  for  more
than three years,  the  alleged  employment  on  contract  basis  is  wholly
impermissible. Therefore, we have held that it amounts to an  unfair  labour
practice as defined under 2(ra) of the I.D. Act,  1947  read  with  Sections
25T which is prohibited under Section 25U,  Chapter  VC  of  the  I.D.  Act,
1947. We have to hold that the judgment of the High Court in  reversing  the
award is not legal and the same is set aside by us.

26. Further, the conditions precedent to the retrenchment of  workmen  under
Section 6-N of the U.P.I.D. Act have not been satisfied  before  terminating
the services of the appellant-workman in the case on hand.  Section  6-N  of
the U.P.I.D. Act states as follows:
“6-N. Conditions precedent to retrenchment of workman.- No workman  employed
in any industry who has been in continuous service for  not  less  than  one
year under an employer shall be retrenched by that employer until,-
The workman has been given one month’s  notice  in  writing  indicating  the
reasons for retrenchment and  the  period  of  notice  has  expired  or  the
workman has been paid in lieu of such notice wages for  the  period  of  the
notice;
Provided that no such notice shall  be  necessary  if  the  retrenchment  is
under an agreement which specifies a date for the  termination  of  service;
the workman has been paid, at the time of retrenchment,  compensation  which
shall be equivalent to fifteen days’ average pay for  every  completed  year
of service or any part thereof in excess of six months; and  Notice  in  the
prescribed manner is served on the State Government.”

Thus, non-compliance with the mandatory provisions under Section 6-N of  the
U.P.I.D. Act rendered the retrenchment of the  workman  void  ab  initio  in
law. This position of law is well settled by  this  Court  in  the  case  of
Delhi Cloth & General Mills Ltd v. Shambhu Nath Mukherjee  &  Ors[10]  which
states as under:-

“On the face of it, the order striking off the name of the workman from  the
rolls on August 24,  1965,  is  clearly  erroneous.  No  order,  even  under
section 27(c) of the Standing Orders, could have (1) [1957]  SCR  335.  been
passed on that date. The clause in the Standing Orders reads as follows :-

"If any workman absents for more than eight consecutive  days  his  services
shall be terminated and shall be treated having  left  the  service  without
notice".

The workman last attended work on 14th  August,  1965.  15th  August  was  a
public holiday. He was, therefore,  absent  from  work  only  from  16th  of
August. So even under the Standing Orders the workman  was  not  absent  for
"more than eight consecutive days" on  24th  August,  1965.  The  order  is,
therefore, clearly untenable even on the basis of the  Standing  Orders.  It
is not necessary to express  any  opinion  in  this  appeal  whether  "eight
consecutive days" in the Standing  Orders  mean  eight  consecutive  working
days. Striking of the name of the workman from the rolls by  the  management
is termination of his service. Such termination of service  is  retrenchment
within the meaning of section 2(00) of the Act. There  is  nothing  to  show
that the provisions of section 25F (a) and (b) were  complied  with  by  the
management in this case. The  provisions  of  section  25F(a),  the  proviso
apart, and (b) are mandatory and any order of retrenchment, in violation  of
'these two peremptory conditions precedent, is invalid.”


                                               (emphasis laid by this Court)

This position of law was also reiterated in L. Robert D'souza  v.  Executive
Engineer, Southern Railway & Anr[11] and approved by the Constitution  Bench
of this Court in Punjab Land Development And Reclamation  Corporation  Ltd.,
Chandigarh (supra). Therefore, the Labour Court has rightly  set  aside  the
order of termination by the respondent-Corporation  while  adjudicating  the
point of dispute which has been referred to it by the State Government,  the
same is perfectly legal and valid and therefore  it  should  not  have  been
interfered  with  by  the  High  Court  in  exercise  of   its   Supervisory
Jurisdiction.

27. Under Section 2(z) of the U.P.I.D. Act, “workman”  whether  daily  wage,
casual and temporary workman or permanent workmen, all are workmen  for  the
purpose of the U.P.I.D. Act. There is no classification of workmen  such  as
permanent, temporary or casual under the U.P.I.D.  Act.  The  classification
of workmen either in the Recruitment Rules & Regulations or under the  Model
Standing  Orders  framed  by  the  State  Government  under  the  Industrial
Employment (Standing Orders) Act, 1946, are applicable  to  the  Respondent-
Corporation in the absence of service regulations framed by the  respondent-
Corporation.
28. Further, the alleged misconduct of negligent driving of the  vehicle  by
the appellant-workman on the date of the accident, the argument advanced  by
the  respondent-Corporation  is  falsified  by  documents  produced  by  the
workman in CA-1 and CA-2 of the counter  affidavit  filed  before  the  High
Court wherein it is specifically pleaded by the  appellant-workman  that  he
got severe injuries in the accident due to mechanical defect of the  vehicle
which is admitted by the  Assistant  Regional  Manager  of  the  respondent-
Corporation. Annexures CA-1 and CA-2  and  the  Commissioner  for  Workmen’s
Compensation  under  the  Employees  Compensation  Act,  1923,  treated  the
appellant-workman  to  be  a  workman  under  the  provisions  of  Employees
Compensation Act, 1923 and passed an order on  8.1.2000  in  favour  of  the
appellant-workman. The said order became final and  was  not  challenged  by
the respondent-Corporation. This clearly proves the fact that the appellant-
workman sustained injuries in the accident that occurred on account  of  the
mechanical defect of the vehicle involved in the accident.  The  plea  taken
by the respondent-Corporation that  the  order  of  termination  was  passed
against the  appellant-workman  as  the  accident  occurred  on  account  of
negligent driving of the vehicle by the appellant-workman is not  proved  by
the respondent-Corporation in order to justify the same. This aspect of  the
matter has not been discussed either by the Labour  Court  or  by  the  High
Court.
29. Further, it is important for us to examine another aspect  of  the  case
on  hand  with  respect  to  reinstatement,   back-wages   and   the   other
consequential benefits to be awarded in favour of the appellant-workman.  In
the case of Deepali Gundu Surwase  v. Kranti Junior  Adhyapak  Mahavidyalaya
(D. Ed) and Ors.[12] ,  after referring to three Judge Bench Judgments  with
regard to the principle to  be  followed  by  the  Labour  Courts/Industrial
Tribunals to award back-wages  if  order  of  termination/dismissal  is  set
aside, law has been laid down in this regard by this Court as under:-
“17. The very idea of restoring an employee to the position  which  he  held
before dismissal or removal or  termination  of  service  implies  that  the
employee will be put in the same position in which he would  have  been  but
for the illegal action taken by the  employer.  The  injury  suffered  by  a
person, who is dismissed or removed or is otherwise terminated from  service
cannot easily be measured in terms of money. With the passing  of  an  order
which has the effect of severing the  employer  employee  relationship,  the
latter's source of income gets dried up. Not only  the  concerned  employee,
but his entire family suffers grave adversities. They are  deprived  of  the
source of sustenance. The children are deprived of nutritious food  and  all
opportunities of education and advancement in life.  At  times,  the  family
has  to  borrow  from  the  relatives  and  other  acquaintance   to   avoid
starvation. These sufferings continue till the competent adjudicatory  forum
decides  on  the  legality  of  the  action  taken  by  the  employer.   The
reinstatement of such an employee, which is preceded by  a  finding  of  the
competent judicial/quasi judicial body or Court that  the  action  taken  by
the  employer  is ultra  vires the  relevant  statutory  provisions  or  the
principles of natural justice, entitles the  employee  to  claim  full  back
wages. If the employer wants to deny back wages to the employee  or  contest
his entitlement to get consequential benefits, then it  is  for  him/her  to
specifically  plead  and  prove  that  during  the  intervening  period  the
employee was gainfully employed and was getting the same emoluments.  Denial
of back wages to an employee, who has suffered due to an illegal act of  the
employer would amount to indirectly punishing  the  concerned  employee  and
rewarding the employer by relieving him of the obligation to pay back  wages
including the emoluments.

Therefore, keeping in mind the principles laid down by  this  Court  in  the
above case, we are of the opinion that the appellant-workman should be  paid
full back-wages by the respondent-Corporation.

30. Since the order of termination  is  set  aside,  having  regard  to  the
finding of fact recorded by the Workmen’s  Compensation  Commissioner  while
determining the claim under the Workmen’s Compensation Act,  the  appellant-
workman sustained grievous injuries to  his  legs  which  is  an  employment
injury  suffered  during  the  course  of  employment  in  the   respondent-
Corporation. In the matter of the rights and protection  of  the  appellant-
workman we refer to the decision of this Court in the case of  Bhagwan  Dass
& Anr v. Punjab State Electricity Board[13]:-

“4. Here ….It may further be noted that the import of Section 47 of the  Act
was considered by this court in Kunal Singh vs. Union of India &  Anr. [2003
(4) SCC 524] and in paragraph 9 of the decision it was observed and held  as
follows :


Chapter VI of the  Act  deals  with  employment  relating  to  persons  with
disabilities, who are yet to secure employment. Section 47, which  falls  in
Chapter VIII, deals  with  an  employee,  who  is  already  in  service  and
acquires a disability during his service. It must  be  borne  in  mind  that
Section 2 of the  Act  has  given  distinct  and  different  definitions  of
disability and person with disability. It is well settled that in  the  same
enactment if two distinct definitions are given defining a  word/expression,
they must be understood accordingly in terms of the definition. It  must  be
remembered that a person does not acquire or suffer  disability  by  choice.
An employee, who acquires disability during his service,  is  sought  to  be
protected  under  Section  47  of  the  Act  specifically.  Such   employee,
acquiring disability, if not protected, would not only suffer  himself,  but
possibly all those who depend on him would also suffer. The very  frame  and
contents of Section 47 clearly indicate its mandatory  nature.  The  section
further provides that if an  employee  after  acquiring  disability  is  not
suitable for the post he was holding, could be shifted to  some  other  post
with the same pay scale and service benefits;  if  it  is  not  possible  to
adjust the employee against any post he will  be  kept  on  a  supernumerary
post  until  a  suitable  post  is  available  or  he  attains  the  age  of
superannuation, whichever is earlier. Added to this no  promotion  shall  be
denied to a person merely on the ground of  his  disability  as  is  evident
from sub-section (2) of Section 47. Section 47 contains  a  clear  directive
that the employee shall not dispense with or reduce in rank an employee  who
acquires a disability during the service. In construing  a  provision  of  a
social beneficial enactment that too dealing with disabled persons  intended
to  give  them  equal  opportunities,  protection   of   rights   and   full
participation, the view that advances the object of the Act and  serves  its
purpose must be  preferred  to  the  one  which  obstructs  the  object  and
paralyses the purpose of the Act.  Language  of  Section  47  is  plain  and
certain casting statutory obligation on the employer to protect an  employee
acquiring disability during service.”


Therefore, the respondent-Corporation is statutorily obliged  under  Section
47 of The Persons with  Disabilities  (Equal  Opportunities,  Protection  of
Rights and Full Participation) Act, 1995  to  provide  alternate  equivalent
job to the appellant-workman in place of the post of driver.  Therefore,  we
direct accordingly.

31. In the result, the impugned Judgment  and  orders  are  set  aside.  The
appeals are allowed. The respondent-Corporation  is  directed  to  reinstate
the appellant-workman with 50% back-wages from the date of termination  till
the date of the Award of the Labour Court and further award 100%  back-wages
from the date of Award of the Labour Court till the  date  of  reinstatement
with all consequential reliefs and other  monetary  benefits  including  the
continuity of service in an alternative equal job with  the  same  pay-scale
as that of a driver. It is needless to state that the  back-wages  shall  be
calculated as per the provisions of pay scales revised to the  employees  of
 the respondent-Corporation from time
to time. The respondent-Corporation is further directed to comply  with  the
order within 4 weeks from the date of receipt of the copy of this  Judgment.
There shall be no order as to costs.



                                                ……………………………………………………………………J.
                        [V.GOPALA GOWDA]


                                                ……………………………………………………………………J.
                        [C. NAGAPPAN]


New Delhi,                                     November 18, 2014
-----------------------
[1]    (2006) 4 SCC 1
[2]     (2006) 9 SCC 434
[3]    (1996) 2 SCC 293
[4]    (2010) 3 SCC 192
[5]     (2009) 8 SCC 556
[6]     (2014) 7 SCC 190
[7]    (2007) 2 SCC 755
[8]    (1981) 1 SCC 315
[9]    AIR 1961 SC 867
[10]   (1977) 4 SCC 415
[11]     (1982)1 SCC  645
[12]   (2013) 10 SCC 324
[13]   (2008) 1 SCC 579

-----------------------
|REPORTABLE   |





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