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2008 DIGILAW 1187 (ALL)

Ram Swaroop v. Presiding Officer, Labour Court I, Kanpur

2008-06-30

RAKESH TIWARI

body2008
JUDGMENT RAKESH TIWARI, J. Heard Sri A.K. Dave, Counsel for the petitioner and standing counsel representing respondent Nos. 1 and 2. Since Court at the outset is not satisfied for the reasons given hereinafter and is dismissing the writ petition, notices need not be issued to respondents No.3, 4, 5 and 6. It is claimed by the petitioner that he was engaged as daily wager under Assistant Engineer, II Sub-Division, Irrigation Division, Lalitpur that he had worked for more than 240 days in each of the calender year from the year 1980 to 1985 and that his services were illegally and wrongly terminated by an oral order with effect from May 26, 1999 and was not allowed to discharge his duties. 2. The petitioner raised an industrial 1 dispute with regard to his alleged illegal termination before Deputy Labour Commissioner, Jhansi. On conciliation proceedings having failed, the matter was referred by the Deputy Labour Commissioner vide order dated May 1, 2002 to the Presiding Officer. Labour Court, V.P. Kanpur where it was registered as Misc. Case No. 95 of 2002, The reference before the Labour Court was. Vernacular matter omitted" Case of the workman before the Labour Court was that he was appointed as Beldar against a vacant and substantive post under Assistant Engineer, II Sub-Division, Irrigation Division, Lalitpur and was thereafter transferred to Superintending Engineer, Rajghat Nirman Khand, Lalitpur in the year 1986. It appears that workman had also moved an application for summoning the muster roll from the employer which were produced by them in the Court. 3. After appreciating the oral and documentary evidence as well as considering pleadings of the parties, the Labour Court by its award dated July 7, 2006 which was enforced by publication on notice board on August 3, 2006, held that the workman had not given any proof regarding his actual and continuous working under the employers upto May 25, 1993 claimed by him. The Labour Court also relied upon statement of the workman that he had not been issued any appointment letter in support of his claim that he was appointed against a permanent vacancy on November 1, 1980. 4. The Labour Court by the aforesaid award further held that industrial dispute was raised at the behest of the workman and therefore burden of proof lays on him to prove his case which was not discharged by him. 4. The Labour Court by the aforesaid award further held that industrial dispute was raised at the behest of the workman and therefore burden of proof lays on him to prove his case which was not discharged by him. On perusal of the records summoned by the workman, the Labour Court recorded a categorical finding on basis of the muster rolls produced before the Court that he had actually worked only for 61 days as daily wager/muster roll employee and had failed to prove that he was appointed against a permanent post. 5. The Labour Court also recorded a finding that it was duty of the workman to prove that he had worked for 240 days in each of the years upto his alleged illegal termination and since he had not worked for 240 days of continuous service in each of the calender year, as such the provisions of Section 6-N, 6-P and 6-Q of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) are not applicable and that disengagement of the daily wager by the employer in these facts and circumstances is not against the law, hence termination of his service was legal and justified. 6. After the award was published, the workman moved an application dated September 13,2006 under Section 6(6) of U.P. Industrial Disputes Act, 1947. Notices were issued to the parties by the Labour Court on the aforesaid application. It appears that the petitioner also appended a certificate dated January 12, 1986 said to have been issued by the Assistant Engineer, II Irrigation Division, Lalitpur to the effect that workman had worked continuously for 240 days. According to the workman, from this document it is apparent that he has been wrongly retired and as such the award submitted by the Labour Court required reconsideration. 7. The employers disputed the aforesaid certificate and stated that it has been submitted after publication of the award and is a farzi support of his claim that he was appointed against a permanent vacancy on November 1, 1980, document that the workman ought to have submitted the said certificate along with application prior to submission of the award by the Labour Court to the State Government. 8. 8. Contention of the counsel for petitioner is that the workman should not be penalized for fault of his counsel and that the Labour Court has committed an illegality in rejecting the application filed on his behalf under Section: 6(6) of the Act. 9. While rejecting application of the workman, the Labour Court has considered not only pleadings but also case laws submitted by . the petitioner and has taken into consideration• the fact that the documents submitted by the petitioner were disputed and observed as under: "Vernacular matter omitted. " 10. The Labour Court was of the considered view that there was no clerical or arithmetical mistakes in the award or any error arising therein from any accidental slip or commission and as such the application of the petitioner under Section 6(6) of the Act was not maintainable, rather he in the garb of that application, wanted review of the order. The Labour Court has also held that after, enforcement of the award the Labour Court• cannot make any change in the award. 11. I have given thoughtful consideration to the arguments advanced by the counsel for petitioner. 12. To appreciate the order of the Labour Court provisions of Sections 6 and 6-A of the V.P. Industrial Disputes Act, 1947 are quoted below. Sections 6(3), (4), (5) and 6-A of the Act provide as under: "6(3). Subject to the provisions of sub-section (4), every arbitration award and the award of a Labour Court or Tribunal, shall, within a period of thirty days from the date of its receipt by the State Government be published in such manner as the State Government thinks fit. 6(4). Before publication of an award of a Labour Court or Tribunal under sub-section (3), if the State Government is of the opinion that: (a) the adjudicating authority has unreasonably refused permission to any party to adduce evidence; or (b) any part was prevented by any other sufficient cause from adducing evidence: or (c) new and important material fact or evidence has come to notice, which after the exercise of due diligence was not within the knowledge of or could not be produced by, the party at the time when the award was made; or (d) the award is likely to disturb the industrial peace; or . (e) the award is likely to affect prejudicially the national or State economic or (f) the award is likely to interfere with the principles of social justice; or (g) the award has left undetermined any of the matters referred for adjudication or where it determines any matter not referred for adjudication and such matter cannot be separated without affecting the determination of the matters referred; or (h) the award is so indefinite as to be incapable of being enforced; or (i) illegality of the award is apparent upon the face of it, it may, after giving the parties reasonable opportunity of being heard, for reasons to be recorded, remit the award for reconsideration of the adjudicating authority, and that authority shall, after reconsideration, submit its award to the State Government, and the State Government shall publish the award in the matter provided in sub-section (3). (5) Subject to the provisions of Section 6-A, an award published under sub-section (3) shall be final and shall not be called in question in any Court in any manner whatsoever. 6-A. Commencement of the award-(JJ An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 6." 13. A perusal of the aforesaid provisions brings out the fact that any application under Section 6(6) of the Act can only be moved for correction of any clerical or arithmetical mistakes in the award or errors arising therein from any accidental slip or omission which is required to be essentially correct the award. It is also settled law that Labour Court has no power to review. Admittedly, muster rolls were summoned by the workman and therefore he could have shown that he had worked continuously for more than 240 days in each of the years and not for 61 days. He had this opportunity at the stage of evidence before the Labour Court. 14. The argument of the workman before this Court that he had no opportunity to see those documents, cannot be given credence as the documents were produced by the employer in Court on the application of the workman himself and he had to admit or deny those documents and prove those documents. 15. It is not the case of the petitioner that he has not been given opportunity of evidence by the Labour Court. 15. It is not the case of the petitioner that he has not been given opportunity of evidence by the Labour Court. Moreover, the certificate dated January 12, 1986 was in his possession and which is now being relied upon by the petitioner, could have been submitted by the workman before the Labour Court and the same could have been proved before it by oral evidence. 16. After publication of the award, this document/certificate cannot be proved by the workman as Labour Court cannot take any evidence oral or documentary after 30 days of the publication of the award which has commenced under Section 6-A of the D.P. Act. Admittedly the award was enforced by publication on August 3, 2006 and application dated September 13,2006 was moved after 30 days of the publication of award, hence the document/certificate dated January 12, 1986 could neither be proved after 30 days of the publication of the award as no evidence could be taken by the Labour Court having become fuscous officio, hence the Labour Court has rightly rejected application of the petitioner under Section 6(6) of the Act. 17. The writ petition has no force and is accordingly dismissed. No order as to costs.