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2012 DIGILAW 4 (UTT)

STATE OF UTTARAKHAND v. HUKUM SINGH

2012-01-02

TARUN AGARWALA

body2012
Judgment Heard Sri Sudhir Kumar, the learned Brief Holder for the State/petitioners and Sri Pankaj Miglani, the learned counsel for the workman/opposite party. 2. The present writ petition assails the validity and legality of the award passed by the Labour Court, Haridwar in Adjudication Case No. 438 of 2009. It transpires that the workman worked from 3rd January, 1992 to 31st December, 1992 as a daily wager. After 12 years, the workman raised an industrial dispute, which was declined. The workman filed Writ Petition No. 256 (M/S) of 2005, which was allowed by a judgment dated 30th November, 2005. The High Court held that the Assistant Labour Commissioner was not justified in declining to refer the dispute and accordingly, directed the Assistant Labour Commissioner to refer the matter for adjudication before the Labour Court or Industrial Tribunal. Pursuant to the judgment of the High Court, the State Government, in exercise of the powers under Section 4-K of the Uttar Pradesh Industrial Disputes Act, referred the following dispute, namely, “whether the employer was justified in terminating the services of the workman? If not, to what relief is the workman entitled to?” 3. The Labour Court, after considering the material evidence on record, came to the conclusion that the workman had worked for more than 240 days in a calendar year and that retrenchment compensation was not paid as required under Section 6-N of the Uttar Pradesh Industrial Disputes Act. On this conclusive evidence, the Labour Court directed reinstatement of the workman but without any back wages. The employer, being aggrieved by the said award, has filed the present writ petition. 4. Sri Sudhir Kumar, the learned Brief Holder for the State has assailed the validity of the award on two counts, namely, that the workman was required to work for a minimum of one calendar year, which, in the present case, had not been done. The leamed counsel submitted that admittedly, the workman was appointed on muster roll on 3rd January, 1992 and that his services was terminated on 31st December, 1992 and consequently, one year had not been completed. The leamed counsel submitted that admittedly, the workman was appointed on muster roll on 3rd January, 1992 and that his services was terminated on 31st December, 1992 and consequently, one year had not been completed. The learned counsel submitted that the condition precedent to retrenchment and payment of compensation is provided under Section 6-N of the Uttar Pradesh Industrial Disputes Act, which requires that no workman employed in any industry who had been in continuous service for not less than one year under an employer shall be retrenched by that employer. The submission on this aspect is not correct in view of the provision of Section 2(g) of the Uttar Pradesh Industrial Disputes Act, which defines ‘continuous service’ to mean that a workman, who during a period of twelve calendar months had actually worked for not less than 240 days, shall be deemed to have completed one year of continuous service, that is to say, if a workman works for more than 240 days uninterruptedly without any break in service from the date of the appointment to the date of his alleged termination during a period of twelve calendar months, he would be deemed to have worked for one year of continuous service. In the light of the aforesaid, the submission of the learned counsel that the workman has not completed one year of continuous service is patently erroneous. 5. The learned counsel for the petitioners next submitted that admittedly, the workman was engaged on muster roll. Assuming that the provision of Section 6-N had not been complied with, it would not necessarily mean automatic reinstatement in service for violation of the provision of Section 6-N, namely, that a muster roll who has not been given retrenchment compensation automatically was not entitled for reinstatement. In support of his submission, the learned counsel placed reliance upon the decisions of the Supreme Court in Uttaranchal Forest Development Corporation vs. M.C. Joshi, (2007) 9 SCC 353, Madhya Pradesh Administration vs. Tribhuvan, (2007) 9 SCC 748, Mahboob Deepak vs. Nagar Panchayat, Gajraula and another, (2008) 1 SCC 575 and Chief Engineer (Construction) vs. Keshava (Dead) by LRs, (2005) 11 SCC 229, wherein the Supreme Court held that for reinstatement, certain factors are required to be taken into consideration, namely, (1) whether in making the appointment, statutory rules, if any, have been complied with? (2) the period the workman had worked? (2) the period the workman had worked? (3) whether there existed any vacancy? And (4) whether he obtained any other employment on the date of the termination or passing of the award? 6. In the present case, none of the facts are available on record. The Supreme Court in all the aforesaid decisions has held that a muster roll who had been appointed through backdoor measures was not entitled for reinstatement automatically and that the Labour Court was required to consider other factors. 7. No doubt, the principle evolved by the Supreme Court has to be considered, but the Court is of the opinion that the employer cannot take advantage of this decision for the simple reason that specific pleading in this regard is required to be taken. The specific plea is that the workman was appointed on muster roll without any authority of law and that the workman was appointed on muster roll without there being a sanctioned vacancy. In the absence of all these pleadings, it is not open to the petitioners to allege that merely because the workman was appointed on muster roll, he was only entitled for the retrenchment compensation but was not entitled for the reinstatement. In this regard, the Supreme Court in Anoop Sharma vs. Executive Engineer, Public Health Division-I, Panipat, (2010) 5 SCC 497, held that the employer was required to lead tangible evidence and was required to raise pleadings with regard to the legality of the initial appointment of the workman for justifying that the reinstatement was not valid in law. Since such plea was not raised in the present case, this Court is of the opinion that it was no longer open to the employer to raise such plea at this stage. 8. In the light of the aforesaid, the Court does not find any error in the impugned award. The writ petition fails and is dismissed.