Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2642 (ALL)

U. P. S. R. T. C. v. Bahori Lal

2017-11-15

SANGEETA CHANDRA

body2017
JUDGMENT : Sangeeta Chandra, J. Heard Sri SK Mishra, learned counsel for the petitioner for Uttar Pradesh State Road Transport Corporation (in short "the Corporation") and Sri Onkar Nath, learned counsel for the respondents. 2. This writ petition has been filed by the Corporation challenging the order dated 22.06.2012 passed in Misc. Case No. 70 of 2003 by the Presiding Officer, Begumpur, District Agra with a further prayer for issuance of mandamus directing the respondents not to enforce the award dated 22.06.2012. 3. The Corporation seeks to challenge the order dated 22.06.2012 on the ground that initially respondent No. 1 was engaged as a driver in Aligarh Region of the Corporation and on the reports of misconduct, two charge sheets were issued against him on 19.12.1995 and 10.02.1996 respectively. After full fledged departmental enquiry in which the charges of misconduct were proved, respondent No. 1 was removed from service vide order dated 14.06.1996. Respondent No. 1 raised an industrial dispute numbered as Adjudication No. 6 of 1997 and the Labour Court by means of award dated 17.03.1999, set aside the order of dismissal dated 14.06.1996 and directed reinstatement of respondent No. 1 with continuity in service and 75 % back wages. 4. It is the case of petitioner Corporation that respondent No. 1 did not report for duty in pursuance of the award dated 17.03.1999 for a long time and, therefore, the Corporation sent a notice to him on 06.09.2001 to resume his duties. Respondent No. 1 thereafter submitted his joining report in the office only on 11.09.2001. 5. In the meantime Respondent No. 1 had filed an application under section 6(H) (1) of the U.P. Industrial Dispute Act claiming 75 % back wages including bonus, leave encashment etc., amounting to Rs. 1,59,403/-. The said application was allowed and in pursuance thereof, respondent No. 1 was also paid Rs. 1,59,403/- on 10.10.2000 by the Corporation. 6. Respondent No. 1 again filed an application and claimed a total sum of Rs. 3,86,125/- by means of an application under section 33(C)(2) of the Central Act. 7. A copy of the application moved by respondent No. 1 registered as Misc. Case No. 70 of 2003 has been filed by the petitioner as annexure 1 to the petition. 8. 6. Respondent No. 1 again filed an application and claimed a total sum of Rs. 3,86,125/- by means of an application under section 33(C)(2) of the Central Act. 7. A copy of the application moved by respondent No. 1 registered as Misc. Case No. 70 of 2003 has been filed by the petitioner as annexure 1 to the petition. 8. From a perusal of the said application filed under section 33(C)(2) of the Central Act, it appears that respondent No. 1 did not file any documentary evidence with regard to having ever prayed the Corporation to let him join in pursuance to the award dated 17.03.1999 and a vague averment has been made in paragraph 5 of the said application that respondent No. 1 repeatedly wrote to the Corporation to allow him to join in pursuance of the aforesaid award. In the application dated 30.08.2003, Rs. 1,59,403/- has been admitted to have been paid by the Corporation but it is alleged that the Corporation has been paying him salary in an arbitrary manner. Since he has not been able to determine the said dues which was to be claimed by him from the Corporation, it has been prayed that the Labour Court should calculate the amount on its own and then deduct, whatever has been received by him from the Corporation and pass appropriate orders for payment along with 18 % interest thereon. There is no prayer in the application dated 13.08.2003 with regard to making payment of wages/salary for the period, when respondent No. 1 was allegedly not allowed to join the Corporation in pursuance of the award dated 17.03.1999 i.e. up to 11.09.2001, when he was allowed to join. 9. In the chart filed along with the application before the Labour Court, the dues which have been mentioned are relating to four periods i.e., one period relating to suspension of respondent No. 1 from 01.02.1996 to 30.06.1996. The other period of unemployment due to the dismissal order dated 14.06.1996 up to the date of award dated 17.03.1999, and the third period relates to the wages from the date of award till the date of joining i.e., wages w.e.f 18.03.1999 to 10.09.2001; and the fourth period has been mentioned w.e.f 11.09.2001 up to 31.12.2006. 10. The other period of unemployment due to the dismissal order dated 14.06.1996 up to the date of award dated 17.03.1999, and the third period relates to the wages from the date of award till the date of joining i.e., wages w.e.f 18.03.1999 to 10.09.2001; and the fourth period has been mentioned w.e.f 11.09.2001 up to 31.12.2006. 10. The dues of the third period i.e. the period w.e.f. 18.03.1999 to 10.09.2001 has been calculated in the chart, asking the dues admissible as Rs. 2,07,276/-, the amount due for all four periods is also calculated as the grand total of Rs. 3,80,075/- as dues admissible under the award dated 17.03.1999. 11. It has been argued by the learned counsel for the petitioner that once the respondent had moved an application under section 6(H) (1) of the U.P. Industrial Dispute Act and the dues were given to him admittedly of Rs. 1,59,403/- on 10.10.2000, then the second application under Section 33(2) of Central Act for additional dues was not maintainable. 12. He has also shown from the award passed by the Labour Court, filed as Annexure-4 to the writ petition, that the Labour Court has found that the miscellaneous dues as claimed by respondent No. 1, as mentioned in the chart annexed of Rs. 3,80,075/-, were not properly proved to be admissible, and therefore the Labour Court had expressed its viability to give a clear finding thereof. 3,80,075/-, were not properly proved to be admissible, and therefore the Labour Court had expressed its viability to give a clear finding thereof. The learned counsel for the petitioner has read out paragraph 5 of the award, which is as follows: ^^mi;qZDr ds lEcU/k esa i{kksa dks lquk x;kA nkok izkfFkZuh i=] fyf[kr mrj] izR;qrj lk{; ,oa vfHkys[kksa dk voyksdu fd;k x;kA oknh Jfed ds }kjk nkok izkFkZuk&i= ,oa lk{; esa Lohdkj fd;k x;k gS fd mls fnuakd 01-02-1996 ls fnuakd 13-07-1996 rd ds fuyEcu Hkrk] fnuakd 14-07-1996 ls fnuakd 31-07-1999 rd ds osru dh 75 izfr'kr /kujkf'k] cksul] losru vodk'k ds udnhdj.k vkfn ds en esa ns; /kujkf'k :0 1]59]403 m0iz0 vkS|ksfxd fookn vf/kfu;e] 1947 dh /kkjk 6,p 1 ds vUrxZr olwy gksdj vns'k fnuakd 10-10-2000 }kjk izkIr gks x;h gSA izfroknh }kjk nkf[ky fooj.k ,oa lsok iqfLrdk ds voyksdu ls Li"V gS fd oknh Jfed dk o"kZ 1996 ls iqujhf{kr osrueku esa osru Hkh fu/kkZfjr dj ns; /kujkf'k dk Hkqxrku fd;k x;k gSA oknh Jfed ds }kjk izLrqr okn ds rgr iqu% fnuakd 01-02-1996 ls fnuakd 31-12-2002 dh vof/k ds osru vUrj ds en esa ns; /kujkf'k :0 3]08]025 laxf.kr djus dh izkFkZuk dh x;h fdUrq oknh Jfed ds }kjk okn esa lquokbZ ds nkSjku izLrqr lk{; ,oa fooj.k ds ifjizs{; eas ;g Li"V ugha fd;k tk ldk fd mls mDr /kujkf'k fdl vk/kkj ij ns; gS\ oknh Jfed ds }kjk nkf[ky nkok izkFkZuk&i= ds lkFk layXu fooj.k esa ekaxh x;h /kujkf'k dh ns;rk dks] lk{; esa ,oa fookn esa lquokbZ ds nkSjku rF;kRed <ax ls Li"V ugha fd;k tk ldkA vr% mDr /kujkf'k :0 3]08]025 laxf.kr djus dk dksbZ vkSfpR;@vk/kkj ugha gSA** 13. I am of the considered opinion that after making these observations, it was not open for the Presiding Officer (Labour Court) to further give the wages for the period when the respondent No. 1 was allegedly not allowed to join despite alleged efforts being made by him to join the Corporation, in pursuance of the aforesaid award. 14. Sri SK Mishra has also read out the oral statement and cross-examination of respondent No. 1 and has pointed out that there was no material before the Presiding Officer to come to a conclusion that any effort was made by respondent No. 1 to join the Corporation, in pursuance of the award dated 17.03.1999. 14. Sri SK Mishra has also read out the oral statement and cross-examination of respondent No. 1 and has pointed out that there was no material before the Presiding Officer to come to a conclusion that any effort was made by respondent No. 1 to join the Corporation, in pursuance of the award dated 17.03.1999. It is not known as to how the Presiding Officer came to the conclusion that respondent No. 1 had made applications dated 11.08.1999 and 23.11.2000 to allow him to join the Corporation as in the oral statement and cross-examination of respondent No. 1 himself, he has admitted that there was no substantive evidence with him. In case he had any evidence of filing such applications, he should have filed it along with the application under section 33 (C)(2) of the Act and should have made a specific prayer to that effect in the said application. 15. Even in the counter affidavit to this writ petition, in paragraphs 12 and 14, respondent No. 1 has admitted that there is no substantive evidence of his ever making any effort to join the Corporation in pursuance to the award dated 17.03.1999. 16. Nevertheless, the Presiding Officer has strangely come to the conclusion that respondent No. 1 tried to join the Corporation and the petitioner prevented him from joining till 11.09.2001 and, therefore, denied the fruits of the award dated 17.03.1999 arbitrarily. 17. The learned counsel for the respondent No. 1, Shri Onkar Nath, has tried to argue on the basis of the observations made in the order impugned that the respondent No. 1 did make efforts by filing applications on 11.08.1999 and 23.11.2000 before Corporation for allowing him to join, but he was deliberately not allowed to join till 11.09.2001, and he has also relied upon the presumption drawn by the Labour Court to the effect that if an employee has an award in his favour, then, it is natural for him to make all efforts to resume his duties with his employer at the earliest. 18. However, the counsel for the respondent No. 1 could not show from documentary evidence attached with the Application under Section 33-C 2 that any such effort as mentioned in the order impugned was ever made by the respondent No. 1. 18. However, the counsel for the respondent No. 1 could not show from documentary evidence attached with the Application under Section 33-C 2 that any such effort as mentioned in the order impugned was ever made by the respondent No. 1. Although a counter affidavit has been filed by the respondent No. 1, even in the said counter affidavit there is an admission that there is no substantive evidence that the respondent No. 1 tried to join the Corporation in pursuance of the award dated 17.03.1999 at the earliest and he was prevented from resuming his duty by the Corporation arbitrarily, and therefore, he was entitled to salary for the period when he was prevented from joining his duty. 19. I have perused copies of all evidence that was filed before the Labour Court. In the Application under Section 33-C 2, no dates have been mentioned as to when prayer was made by the respondent No. 1 to resume his duties. There is a specific case of the Corporation that the respondent No. 1 himself did not report for work and as a result of which notice was sent to him on 06.09.2011 to resume his duties. It was only that the respondent No. 1 thought it fit to report for work on 11.09.2001. In the oral statement (also filed along with the writ petition) there is no mention of any date by the respondent No. 1 when he made any written Application or Representation for being allowed to join. In the cross-examination also, there is no mention of any date. It is not known as to how in the order impugned the Labour Court has come to the conclusion that the respondent No. 1 made an Application on 11.08.1999 and 23.11.2000 to the Corporation for allowing him to resume duties. 20. Having considered the arguments made by the counsel for petitioner and the respondent No. 1 and having gone through the order impugned dated 22.06.2012, I am of the considered opinion that the said order has been made by the respondent No. 2 without any basis. There was no documentary evidence filed by the respondent No. 1 to prove his case that the Corporation deliberately did not allow him to join and resume work. There was no documentary evidence filed by the respondent No. 1 to prove his case that the Corporation deliberately did not allow him to join and resume work. Also, even in the oral statement of the respondent No. 1 which can be treated only as a self-serving statement, there is no specific pleading of the dates when the respondent No. 1 went to join work and was not allowed to resume duties. 21. The order impugned is, therefore, set aside. 22. The Writ petition is allowed. No order as to costs.