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2016 DIGILAW 2869 (ALL)

State of U. P. v. Presiding Officer, Labour Court

2016-08-20

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Ashwani Kumar Mishra, J. This petition is directed against an award passed by the Presiding Officer, Labour Court, U.P. Jhansi in Adj. Case No. 12 of 2014. By the award, Labour Court has held the termination of services of respondent-workman to be in violation of Section 6-N of the U.P. Industrial Disputes Act and it has allowed relief of reinstatement alongwith back wages to the respondent-workman. A reference has been made to the labour court as to whether termination of services of respondent-workman w.e.f. 10.6.2013 is valid or not? and to what relief is the workman entitled in law. 2. According to the respondent-workman he was engaged as a jeep driver in the office of the Executive Engineer, Betwa Canal Division-II, Orai District Jalaun, and he continued to work from 1.11.1993 to 30.5.2013 whereafter, his services have been terminated without complying with the provisions of Section 6-N of the U.P. Industrial Disputes Act. The claim of the respondent-workman was resisted by the petitioner-employer on the ground that the respondent-workman was never appointed by the petitioner-employer and infact his engagement was through a contractor and in such circumstances, no employee employer relationship ever came into existence. It was also pointed out that neither appointment letter has been issued to the respondent-workman nor it has been brought on record. 3. On the basis of the aforesaid pleadings, evidence has been led by the parties before the Labour Court and ultimately, the Labour Court has found that the workman had continuously working for a period of nearly 20 years and his services had been terminated illegally. With regard to the claim of the petitioner-employer that engagement of workman was through a contractor and he was never appointed directly by the petitioner-employer and a finding has been returned that no evidence or material has been placed before the Labour Court to prove that the engagement of respondent-workman was through a contractor. 4. Sri Anoop Kumar Srivastava, who appears for the petitioner employer submits that in the peculiar facts and circumstances of the case, no adverse inference could have been drawn against the respondent-workman on account of failure on the part of petitioner-employer to adduce evidence to demonstrate that workman was engaged through contractor in view of the principles of law as laid down by the Hon'ble Supreme in Bhav Nagar Municipal Corporation and others.Vs. Jadeja Govubha Chhanubha and another, (2014) 16 SCC, 130. Jadeja Govubha Chhanubha and another, (2014) 16 SCC, 130. It has also been stated that even otherwise, the irrigation department is not the industry in view of the judgment of the Apex Court in Executive Engineer ( State of Karnataka) Vs. K. Somasetty and others, (1997) 5 SCC, 434. 5. Learned counsel for the petitioner further submits that the grant of relief of back wages, in the peculiar facts and circumstances of the present case, is arbitrary. Learned counsel for the respondent-workman, on the other hand, has supported the finding returned by the Labour Court as the respondent-workman has already been victimised and harassed sufficiently by the petitioner-employer inasmuch as even minimum wages have been denied to him for the last 20 years and since the employer has failed to produce any document to show that the workman was engaged through a contractor, no interference in the matter, is required. 6. I have heard learned counsel for the parties and have perused the relevant records. 7. From the materials, which have been produced before the Court, it is apparent that the working of respondent-workman on daily wage basis from 1.11.1993to 30.5.2013 is not denied. The only defence set up by the petitioner-employer is that the engagement of the respondent-workman was through a contractor. No material or evidence has been led by the employer before the Labour Court to prove such defence of the petitioner-employer. In the absence of any document or material filed before the Labour Court, the finding returned by the labour court that the engagement of the respondent-workman through a contractor has not been established, cannot be said to be perverse or erroneous. The principle laid down by the Hon'ble Supreme Court in Bhav Nagar Municipal Corporation (supra) has no applicability in the facts and circumstances of the present case, inasmuch as the case in hand does not relate to drawing of any adverse inference rather in the facts of the present case it is the failure on the part of the petitioner-employer to substantiate its defence which has led to the passing of the award. 8. Although judgment of the Hon'ble Supreme Court in Bangalore Water Supply Vs. Ra. Rajappa and others 1978 (2) SCC,213 has been referred for consideration before the Larger Bench but so long as the reference is not answered, the interpretation of law, presently holding the field, will have to be followed. 8. Although judgment of the Hon'ble Supreme Court in Bangalore Water Supply Vs. Ra. Rajappa and others 1978 (2) SCC,213 has been referred for consideration before the Larger Bench but so long as the reference is not answered, the interpretation of law, presently holding the field, will have to be followed. An industrial dispute, in respect of irrigation department of State of Maharashtra was examined in State of Maharashtra Vs. Sarv Shramik Sangh, 2013 (16) SCC page16. The challenge made by the State that the irrigation department as well as activities of irrigation department could not be considered as an 'industry' has been rejected. In view of it, petitioner's challenge to the award on the ground that it is not an industry, cannot be sustained. 9. In the peculiar facts and circumstances of the case, where respondent-workman has been allowed to continue for a period of 20 years and has been terminated from service without payment of any retrenchment compensation. The finding of violation Section 6-N of the Act, on part of the petitioner-employer, is clearly made out. The relief of reinstatement alongwith back wages is the natural consequence. 10. Hon'ble Supreme Court in State of U.P. VS. Charan Singh, 2015 (3) SCC, 150 has been pleased to hold that where a finding of non compliance of Section 6-N of the Act is returned and the engagement of the respondent-workman is, otherwise, not found to be though contractor, the grant of relief of reinstatement cannot be said to be illegal. 11. In view of what has been brought on record, no case for interference is made out. Writ fails and is dismissed.