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2009 DIGILAW 221 (ALL)

GYANANDERA DUTT TRIVEDI v. LABOUR COURT U P

2009-01-22

BALA KRISHNA NARAYANA

body2009
B. K. NARAYANA, J. ( 1 ) HEARD learned counsel for the parties. ( 2 ) THE instant writ petition has been filed by the petitioner under Article 226 of the constitution of India for quashing part of the award dated June 8, 1984 passed by the presiding Officer, Labour Court, Lucknow in adjudication Case No. 118/1982 whereby the relief of reinstatement was denied to the petitioner as well as the order of termination/retrenchment dated July 19, 1979. ( 3 ) BRIEF facts of the case as stated in the writ petition are that the opposite party No. 2-U. P. Rajya Khad Evam Avashyak Vastu Nigam was established for supply of essential commodities and goods for mass consumption to the general public and for the purposes of distribution of the essential commodities. To achieve this object, number of Janta Stores were established by the opposite party No. 2 all over the State of Uttar Pradesh and the petitioner was appointed as a salesman in one of the Janta stores at Lucknow on October 15, 1975. By an order dated July 19, 1979, copy whereof has been filed as Annexure No. 1 to the writ petition, the services of the petitioner were terminated by the opposite party No. 2 mentioning therein that the petitioners services were purely of temporarily nature and they were dispensed with immediate effect as his services were no longer required. ( 4 ) IT is not in dispute that the opposite party no. 2 is an Industrial Establishment and the status of the petitioner is that of a workman and hence, the service conditions of the petitioner are governed by model standing orders as well as the provisions of the U. P. Industrial Disputes act, hereinafter referred to as the Act". ( 5 ) LEARNED counsel for the petitioner submitted that the impugned order of termination/retrenchment dated July 19, 1979 is an absolutely illegal order inasmuch as the opposite party No. 2 while terminating the services of the petitioner did not give any retrenchment compensation, hence at the behest of the petitioner a reference was made by the state Government before the Labour Court, U. P. , Lucknow which was numbered as adjudication Case No. 118/1982. The presiding Officer of the Labour Court after examining the material on record came to the conclusion that the provisions of Section 6-N of the Act are applicable to the case of the petitioner and since the said provisions are mandatory in nature and admittedly no compensation was awarded to the petitioner by the opposite party No. 2, the order of, retrenchment/termination is void ab initio. The labour Court further found that the order of termination/ retrenchment of the petitioner was bad in law and could not be upheld as no compensation was directed to be paid to the petitioner. However, the Labour Court instead of reinstating the petitioner directed that the petitioner shall be paid Rs. 3,000/- as compensation which is equivalent to one year salary of the petitioner and in view of the aforesaid finding, the Adjudication Case No. 118/1982 was decided by the Labour Court by the Award dated June 8, 1984. The present writ petition was allowed by a judgment and order dated November 24, 2003, which was challenged by the opposite party No. 2 before the Apex Court in Civil Appeal No. 441/2007 arising out of S. L. P. (C) No. 11150/2005. The civil Appeal No. 441/2007 was allowed by honble Supreme Court by its judgment dated february 2, 2007 on the ground that the writ petition was decided by the High Court without hearing the learned counsel for the Corporation and the matter was remanded back to the High court for expeditious disposal. Learned counsel for the petitioner submitted that the Presiding officer of the Labour Court has approached the whole matter in an extremely casual manner without applying his mind to the fact that the order of the opposite party No. 2 terminating the services of the petitioner was void ab initio on account of the failure of the opposite party no. 2 to comply with the mandatory requirement of Section 6-N of the Act while terminating/ retrenching the services of the petitioner and which could not be validated by subsequent grant of compensation by the opposite party No. 2 to the petitioner. 2 to comply with the mandatory requirement of Section 6-N of the Act while terminating/ retrenching the services of the petitioner and which could not be validated by subsequent grant of compensation by the opposite party No. 2 to the petitioner. ( 6 ) LEARNED counsel for the petitioner next submitted that the established law is that if a workman has rendered the requisite period of service under Section 6-N of the Act, termination of his services for whatever reasons shall amount to retrenchment unless it falls within the excepted categories which is not the case here and since there is no dispute that the petitioner had rendered the requisite period of service with the opposite party No. 2, the termination order cannot be sustained as no retrenchment compensation was paid to the petitioner by the opposite party No. 2 while terminating his services. In support of his submission, learned counsel ,for the petitioner has relied upon an unreported judgment of this court dated September 4, 1998 given in Writ petition No. 3739/1984 which is in respect of another employee -Hira Lal of the same establishment whose services were also terminated without awarding any retrenchment compensation and the order of termination was upheld by the Labour Court subject to the opposite party No. 2 paying retrenchment compensation to the retrenched employee. This honble Court allowed the writ petition of Hira lal setting aside the order of his termination as well as award of the Labour Court. ( 7 ) SRI A. R. Masoodi, learned counsel appearing for the opposite party No. 2 has argued that the impugned orders do not suffer from any infirmity meriting interference by this court in exercise of its power under Article 226 of the Constitution of India. Sri Masoodi vehemently argued that the order of termination stood validated with the direction issued by the labour Court for payment of retrenchment benefit to the petitioner. ( 8 ) I have carefully considered the submissions made by the learned counsel for the parties and perused the record. The provisions of Section 6-N of the Act are para materia with the provision of Section 25-F of the Industrial Disputes Act, 1947. The various decisions rendered with reference to section 25-F shall be applicable to the present case which is governed by Section 6-N of the act also. The provisions of Section 6-N of the Act are para materia with the provision of Section 25-F of the Industrial Disputes Act, 1947. The various decisions rendered with reference to section 25-F shall be applicable to the present case which is governed by Section 6-N of the act also. In Mohan Lal v. Management of bharat Electronics Ltd. , AIR 1981 SC 1253 : (1981) 3 SCC 225 :1981 -II-LLJ-70; it was held that termination simpliciter of services of a temporary workman not falling within the excepted or excluded categories mentioned in section 2 (oo) would amount to retrenchment and if immediately preceding the date of termination of service, such workman actually worked for not less than 240 days within a period of 12 months under the employer, he will be deemed to be in continuous service for one year and therefore would be entitled to retrenchment compensation under Section 25-F. The termination of service of a workman without complying with the provisions of section 25-F (6-N) would render the order of termination void ab initio entitling him to a declaration for continuation in service with full back wages, A reference was also made to L. Robert D Souza v. Executive Engineer, southern Railway and Another, AIR 1982 SC 854 : (1982) 1 SCC 645 : 1982-I-LLJ-330; Raj kumar College, Karmachari Union v. Principal, Rajkumar College, Raipur and another, (1987) 55 FLR 93 ; Makhan Singh v. Narainpura Co-operative Agricultural Service society Ltd. and Another, AIR 1987 SC 1892 : (1987) 3 SCC 571 : 1987-II-LLJ-533, Lallan roi v. Presiding Officer Labour Court, gorakhpur and Another 1995-I-LLJ-361 (All)and the decision of the Apex Court in Uptron india Ltd. v. Shammi Bhan and Another AIR 1998 SC 1681 : (1998) 6 SCC 538 : (1998) 3 mlj 76 : 1998-I-LLJ-1165. ( 9 ) IN the case of State of U. P. v. Putti Lal and Another, 2003-IV-LLJ (Suppl)-820 (All-NOC) this Court held that the termination of services of a workman, who has worked for more than 240 days in the preceding/calendar year, without complying with the provisions of section 6-N of the U. P. Industrial Disputes Act is illegal and unjustified. ( 10 ) THIS Court again/held in the case of state of U. P. v. Presiding Officer/labour court, U. P. , Gorakhpur and Another (2007) 3 uplbec 2756 that non-observance of Section 6-N of the Act prior to retrenchment renders the retrenchment totally unsustainable at law. ( 11 ) THE unreported judgment of this Court dated September 4, 1998 given in Writ Petition no. 3739/1984, Hira Lal v. Labour Court, U. P. , Lucknow and Another, relied upon by the petitioner applies with full force to the facts and circumstances of the present case. ( 12 ) ON the strength of the above decisions the learned counsel for the petitioner urged that the impugned order of termination of the services of the petitioner was illegal and void ab initio as it was against the mandatory provisions of Section 6-N of the Act and that the Presiding officer of the Labour Court was not justified in awarding the amount of compensation even though he had recorded a clear finding that the termination order was bad in law on account of non-compliance of the provisions of Section 6-N of the Act. The learned counsel vehemently argued that the compensation is to be paid at the time of retrenchment and not subsequently. In support of his contention he placed reliance on the decision State Bank of India v. N. Sundra money AIR 1976 SC 1111 : (1976) 1 SCC 822 : 1976-I-LLJ-478 in which it has been held that retrenchment compensation must be paid at the time of retrenchment. ( 13 ) SRI Masoodi, learned counsel appearing for the opposite party No. 2 has failed to cite any decision to the contrary which may give strength to his submissions. After considering the entire case law cited on behalf of the petitioner, I am of the view that the impugned order of termination of service of the petitioner dated July 19,1979 is nothing/but an attempt to camouflage the order of retrenchment. The order of termination simpliciter in nature is virtually an order of retrenchment. A workman cannot be retrenched, unless the requirements as mentioned in Section 6-N of the Act are complied with. The order of termination simpliciter in nature is virtually an order of retrenchment. A workman cannot be retrenched, unless the requirements as mentioned in Section 6-N of the Act are complied with. Admittedly no compensation was paid to the petitioner at the time of his retrenchment i. e. termination of his service although at the time, the services of the petitioner were terminated, the petitioner had admittedly worked continuously for more than four years in the Establishment. The Presiding officer of the Labour Court also found the order of termination to be illegal and yet he made an order for payment of compensation in lieu of termination. The course adopted by the presiding Officer of the Labour Court cannot be justified. It did not fall within his domain or jurisdiction to pass an order for payment of compensation in lieu of the retrenchment of the petitioner. In view of the decisions referred to above, the petitioner is entitled to reinstatement in service. ( 14 ) FOR the reasons given hereinabove, the writ petition succeeds and is allowed. The impugned award dated June 8, 1984 passed by the Presiding Officer, Labour Court, Lucknow in Adjudication Case No. 118/1982 as well as the order of termination dated July 19,1979 are hereby quashed. ( 15 ) SRI Masoodi, learned counsel for the opposite party No. 2 has argued that since the corporation has been wound up, it is not possible to reinstate the petitioner in service. ( 16 ) LEARNED counsel for the petitioner submitted that in case the petitioner cannot be reinstated, the opposite party No. 2 be directed to pay a reasonable amount to the petitioner as compensation. ( 17 ) IN view of the fact that the Corporation has been closed and it is not possible to reinstate the petitioner in service, it is provided that the opposite party No. 2 shall pay an amount of rs. 50,000/- as compensation to the petitioner within a period of three months from today in lieu of reinstating him in service. ( 18 ) AS regards the question of payment of back wages is concerned, the same shall be considered and decided by the opposite party no. 50,000/- as compensation to the petitioner within a period of three months from today in lieu of reinstating him in service. ( 18 ) AS regards the question of payment of back wages is concerned, the same shall be considered and decided by the opposite party no. 2 if the petitioner satisfies the opposite party No. 2 that he has remained out of employment throughout the period from the date on which his services were terminated and has not engaged himself in some gainful employment at all, appropriate order for payment of back wages or proportionate wages payable to the petitioner shall be passed by the opposite party No. 2 within a period of one month from the date of production of certified copy of this order. .