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2014 DIGILAW 405 (UTT)

ANUSHANDHAN ADHIKARI v. PRAMOD KUMAR

2014-09-22

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J Both the writ petitions are interconnected involving identical questions of fact and law, therefore, with the consent of learned counsel for the parties, both the writ petitions are heard together and being disposed of by this common judgment. 2. To decide the controversy, facts of WPMS No. 1397 of 2012 are taken up consideration. 3. Present petition is filed assailing the award dated 15.12.2011 passed by Labour Court, Haridwar, Uttarakhand. 4. Brief facts of the present case, inter alia, are that on the request of workman, a reference was made to the Labour Court to the effect as to whether termination of workman is illegal. If yes, what relief the workman is entitled for. It was stated by the workman before the Labour Court that he was employed as Beldar on daily wage basis with effect from 03.10.1988 to 03.06.1992 and by an oral order, he was discontinued with effect from 04.06.1992. 5. Petitioner/Department, in paragraph 7 of the writ petition, has stated that workman had, in fact, worked only for 85 days in the year 1989, 72 days in the year 1990, 24 days in the year 1991 and 23 days in the year 1992, therefore, it cannot be said that workman had completed 240 days in 12 calendar months, as required in the U.P. Industrial Disputes Act. 6. Mr. A.S. Rawat, Addl. Advocate General for State of Uttarakhand, appearing for Department/petitioner, does not dispute that in view of judgment passed by Hon’ble Apex Court in the case of Bangalore Water Supply and Sewarage Board Vs. A. Rajappa’s case, Irrigation Department would fall within the definition of ‘Industry’. He, however, submits that since workman had not completed 240 days in a year or 12 calendar months, award ought not to have been passed in favour of the workman. He further contends that in view of judgments passed by Hon’ble Apex Court in the case of Bharat Sanchar Nigam Limited Vs. Bhurumal reported in 2014 (7) SCC 177 and Harinandan Prasad and another Vs. Employer i/r to Management Food Corporation of India and another reported in 2014 (7) SCC 190 , alternatively, instead of reinstatement, Labour Court ought to have awarded one time compensation. 7. Undisputedly, muster roll was summoned from the Employer/Department vide order dated 22.05.2009 to find out as to how many days workman had worked with the Department. Employer i/r to Management Food Corporation of India and another reported in 2014 (7) SCC 190 , alternatively, instead of reinstatement, Labour Court ought to have awarded one time compensation. 7. Undisputedly, muster roll was summoned from the Employer/Department vide order dated 22.05.2009 to find out as to how many days workman had worked with the Department. However, despite clear cut order dated 22.05.2009, Department failed to produce copy of the muster roll, therefore, Labour Court has rightly drawn the adverse inference against the Employer/petitioner. 8. In the present case, workman has specifically stated, on oath, that he had worked continuously for 240 days in a calendar year or 12 calendar months. To controvert the statement of workman, Employer could have produced muster roll to demonstrate that workman, in fact, did not work continuously for 240 days in a calendar year or 12 calendar months and had worked only for few days, as narrated in paragraph 7 of the writ petition. 9. There seems to be no rebuttal to the statement made by workman in the Labour Court. Therefore, I do not find any reason to take contrary view to the view taken by Labour Court that workman had worked continuously for 240 days in 12 calendar months. 10. Hon’ble Apex Court in the case of BSNL and Harinandan (supra) has held that if workman, working as casual labour, daily wager or temporary employee, has been illegally retrenched or terminated, in violation of provisions of the Industrial Disputes Act, then instead of reinstatement, one time compensation would be appropriate relief. 11. In view of the above, since respondent/workman was working as Beldar on daily wage basis and had not worked with the Department right till 1992, therefore, as per dictum of Hon’ble Apex Court, instead of reinstatement, workman/respondent is entitled for compensation of ‘ 3,00,000/-. 12. Consequently, both the petitions, thus, stand disposed of with the direction that instead of reinstatement and backwages, as directed by Labour Court, workmen/respondents, herein, shall be paid one time compensation of ‘ 3,00,000/-. Compensation shall be paid within 90 days from today, failing which workmen shall also be paid interest @ 12% per annum from today till the date actual payment is made. 13. CLMA No. 11354 of 2012 also stands disposed of accordingly. 14. Let copy of this judgment be placed in the connected petition.