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2016 DIGILAW 783 (UTT)

State of U. P. v. Sher Singh

2016-10-28

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition is instituted against the award dated 18.04.2011, rendered by the Presiding Officer/Labour Court, Haridwar, in Adjudication Case No.112 of 2009 (Old Adjudication Case No.54 of 2007). 2. “Key facts”, necessary for adjudication of this petition are that respondent-Sher Singh has raised an industrial dispute. Respondent was employed by the petitioners. He was retrenched from his services. He raised an industrial dispute. He filed C.P. Application dated 26.07.2004, before the Conciliation Officer/Assistant Labour Commissioner, Haridwar stating therein that he has worked for 240 days preceding his retrenchment. Respondent was not served any notice under Section 6-N of the U.P. Industrial Disputes Act, 1947. Petitioners filed an objection to the C.P. Application. The Conciliation Officer rejected the objections filed by the department and referred the matter to the Labour Court, Dehradun. Thereafter, the matter was referred to the Labour Court, Haridwar. The case was re-numbered as Adjudication Case No.112 of 2009. The workman filed a claim petition wherein written statements were filed by the department. Learned Labour Court allowed the petition. The termination of the workman was declared illegal. The Labour Court held that the respondent is entitled to get the service related benefits after the date of his termination, and he was treated in service throughout. However, workman was denied back wages from the date of his termination till the date of the award. 3. Learned counsel appearing on behalf of the petitioners has vehemently argued that workman has not worked for 240 days in a 12 calendar months. She has further contended that workman has left the job. 4. Learned counsel for the workman has supported the impugned award dated 18.04.2011. 5. I have heard learned counsel for the parties and gone through the impugned award very carefully. 6. The workman has appeared as W.W.-1. He testified that he was engaged as a Sweeper w.e.f. 04.02.1990 till 30.06.1992. He was given an artificial break. The workman has also prayed for supply of Muster Rolls. Muster Rolls were not brought on record by the department. 7. E.W-1 who appeared on behalf of the department and has not denied the factum that the workman had worked in the department on the days of which no copy of Muster Rolls was placed on record. It was also brought on record that the other documents i.e., copy of Muster Rolls could be in possession of Division-4. 7. E.W-1 who appeared on behalf of the department and has not denied the factum that the workman had worked in the department on the days of which no copy of Muster Rolls was placed on record. It was also brought on record that the other documents i.e., copy of Muster Rolls could be in possession of Division-4. E.W.-1 has written several letters for supply of these Muster Rolls, however, the employer of Division-4 has not cooperated. It is under these circumstances, Muster Rolls for the months of December 1991, April 1992, July 1992, August, September and October 1992 could not be filed before the court. 8. It is settled law that the Sundays and paid holidays are taken into consideration while calculating 240 days. Moreover, in this case, the employer/department has failed to place on record Muster-Rolls evidence. The Labour Court has rightly drawn adverse inference against the employer. The workman has conclusively proved that he has worked for 240 days in a calendar year. The retrenchment of a workman is in defiance of Section 6-N of the U.P. Industrial Disputes Act, 1947. 9. Learned Labour Court has correctly taken into account the months of December 1991, April 1992, July 1992, August, September and October 1992, while calculating 240 days in twelve calendar months, 18 Sundays have also to be added. The department has not followed the Rule 42 of the Rules of 1957 (which is now applicable in the State of Uttarakhand). 10. Learned counsel for the petitioners has also argued that there is inordinate delay for which no reasons have been assigned. However, the fact of the matter is that the department has not challenged the reference made by the Labour Commissioner, thus the department is estopped from raking up this issue. Moreover, the delay can be seen at the stage of moulding the relief. 11. Accordingly, there is no merit in the petition and the same is hereby dismissed.