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Allahabad High Court · body

2023 DIGILAW 699 (ALL)

State of U. P. v. Presiding Officer

2023-03-15

UMESH CHANDRA SHARMA

body2023
JUDGMENT Umesh Chandra Sharma, J. Heard Shri Arvind Kumar Mishra, learned Standing Counsel for the petitioner-State and perused the record. 2. Service of summons was presumed to be sufficient upon opposite party no. 2 on 26.09.2022 as the same had not returned back. 3. None appeared for opposite party no. 2. Hence the petition is decided on merit. 4. By this writ petition the State has challenged the order passed by opposite party no. 1 (the Presiding Officer, Labour Court, Allahabad), in favour of respondent no. 2 (Dinesh Chandra Rai), by which the labour court allowed the application of respondent no. 2 moved under Section 33 (C) (2) of the Industrial Disputes Act, 1947, for payment of his salary for the months of March and April, 1990 and of 01st and 02nd May, 1990. 5. In brief, the facts of the case are that respondent no. 2 - Dinesh Chandra Rai, Junior Engineer, Irrigation Department-II, 1, Rampriya Road, Allahabad, moved an application that he was appointed as Junior Engineer on 28.03.198. On 03.05.1990, he was transferred to Irrigation Division, (Construction Division-Ist) District Lalitpur and thereafter he was transferred under the control of Executive Engineer, Irrigation Department-II, Allahabad - defendant no. 2, Allahabad on 06.06.1992. He has not been provided his salary for the months of March and April, 1990 and for the dates 01st and 02nd May, 1990, he had been provided salary amounting to Rs.,2800/- for the month of Fab. 1990. 6. According to him, the said department is liable to pay Rs.5,788 with interest. 7. A notice was issued to the employer on 20.05.1998, which was served upon him on 27.05.1998 and thereafter several applications were moved in this regard and lastly the Superintendent Engineer, Irrigation Department-II, Allahabad objected that he was not the proper party. Since he joined in Allahabad, no salary is in arrear and the applicant does not come under the definition of 'workman'. Since, the employer has not filed any written statement, therefore they were deprived of filing the same. Later on they filed the written statement on 16.10.1998, which was not accepted and the proceeding was concluded ex-parte. The learned trial court was of the view that it is an undisputed fact that a Junior Engineer is covered under the definition of 'workmen'. Later on they filed the written statement on 16.10.1998, which was not accepted and the proceeding was concluded ex-parte. The learned trial court was of the view that it is an undisputed fact that a Junior Engineer is covered under the definition of 'workmen'. The trial court concluded that the arguments of employer that the arrears relates / pertains to the Irrigation Department 01st Lalitpur, therefore, he is not responsible for the payment of the salary for the period when the applicant was serving in Lalitpur is not the correct law. 8. Learned labour court concluded that since the workers has joined under him on transfer, therefore employer-opposite party no. 2 was also responsible for the payment of the arrears of salary of the workmen. The learned labour court allowed the application and directed to pay Rs.5,788/- with an amount of Rs.1,000/- as damages within a month. In case of non-compliance of the order, it was also directed to pay the aforesaid amount with twelve per cent annual interest to the workman after the expiry of one month. 9. Being aggrieved the State has challenged the judgment and order by this writ petition. 10. In brief, in the writ petition, the State has taken plea that the department does not come under the purview of an 'industry', hence, the labour court had no jurisdiction to decide the claim of the respondent no. 2 and also that he was absented from his duty. For the concerned period he was granted leave without pay. The post of junior engineer false under the purview of Utter Pradesh Public Services Commission and it does not fall under the purview of 'workman'. The proceedings under Section 33 (C) (2) of the Industrial Disputes Act, 1947 read with Section 6 and X (2) of the Act are the proceedings of execution in nature and without any order or award of any court, the labour court has no jurisdiction to pass such order. The claim of respondent no. 2 was already considered and decided by the competent authority and he has also been paid his entire wages for which he was entitled and he has also received the said money through voucher form no. 28 by his signature. The respondent no. The claim of respondent no. 2 was already considered and decided by the competent authority and he has also been paid his entire wages for which he was entitled and he has also received the said money through voucher form no. 28 by his signature. The respondent no. 2 was working in the office of Executive Engineer Evam Niyozan Jal Sansthan Department, Civil Lines, Jhansi on 01st March, 1990 and 02nd March, 1990 and he was absent on the said dates and the order has been passed for 'leave without pay' by the competent authority and his entire claim has been settled even then by concealing these facts the respondent no. 2 has filed the application under Section 33 (C) and (2). The respondent no. 1 has placed reliance on the averments of the application and the impugned order. The case set up by the petitioner was not considered at all and the respondent no. 1 by misconstruing and misreading the document and facts has passed the impugned order, therefore the writ petition be allowed and the impugned order be quashed. 11. During the course of arguments learned counsel for the opposite party no. 2 did not appear in-spite of service of notices, hence heard Sri Jitendra Narain Rai, Additional C.S.C, for the petitioner and the order is passed on merit. 12. So far as the question regarding the inclusion of post of junior engineer as 'workman' under the definition of the Industrial Dispute Act, 1957 is concerned, in following the judicial precedents:- (1). State of U.P. & Anr. v. Pawan Kumar & Anr. W.P. (M/S) No. 1129 of 2012 dated 01.12.2016, Uttrakhand High Court. (2) Des Raj & Ors. v. State of Punjab & Ors. 1988 (2) SCC 537 , (3) Banglore Waster Supply Sewerage Board v. A. Rajappa A.I.R 1978 S.C 548. 13. It has been held that the irrigation department is an industry, therefore, the employees of the irrigation department are covered under the definition of "Workman", therefore on the basis of above citation, it is concluded that a junior engineer is the workman under Sections 6 and 2 (Z) of the Industrial Disputes Act, 1947. 14. 13. It has been held that the irrigation department is an industry, therefore, the employees of the irrigation department are covered under the definition of "Workman", therefore on the basis of above citation, it is concluded that a junior engineer is the workman under Sections 6 and 2 (Z) of the Industrial Disputes Act, 1947. 14. So far as the arrears of salary for the month of March and April, 1990 and for the days of 01st and 02nd May, 1990 is concerned, in this regard the petitioner had barely pleaded that its written statement was not accepted by the labour court. After transfer, no salary is in arrears and this fact has not been mentioned. This fact has also not been mentioned that the plaintiff - opposite party no. 2 was granted 'leave without pay' for the aforesaid period, though in this writ petition, the petitioner has annexed a copy of an order dated 08th March, 1991 as Annexure No. 4 that since 05th March, to 30th April, 1990 the opposite party no. 2 was absent from his service and he was treated to be absent and for that period 'leave without pay' was granted by the Executive Engineer. This fact was not brought into the knowledge of the labour court and this fact has also not been considered by the labour court. Further, the petitioner has filed the paper (Annexure No. 5) to this writ petition, which discloses that an amount of Rs.1,615.10/- was paid to opposite party no. 2 for the period of March, 1990 to April, 1990. This fact was also not brought in the knowledge of the labour court. This fact and evidence has also not been considered by the labour court. 15. On the basis of above this Court, is of the view that until the order regarding the sanction of 'leave without pay' is converted into earned leave or any other leave an employee cannot get his salary for the period for which he was granted 'leave without pay'. The impugned order appears to be non-speaking, sketchy and ex-parte. The labour court has not considered the facts that the 'workman' was granted 'leave without pay' for the period for which he cannot get salary until it is converted into the 'paid leave'. 16. In-spite of service upon him, the respondent no. The impugned order appears to be non-speaking, sketchy and ex-parte. The labour court has not considered the facts that the 'workman' was granted 'leave without pay' for the period for which he cannot get salary until it is converted into the 'paid leave'. 16. In-spite of service upon him, the respondent no. 2 has not filed counter affidavit to controvert the allegations and the questions raised from the side of the petitioner, hence the petition is liable to be allowed. ORDER 17. This writ petition is allowed and the impugned order dated 03.05.2000 passed by the Labour Court, Allahabad in Misc. Case No. 24 of 1997 - Deepak Chandra Rai v. The Executive Engineer and another is hereby quashed. 18. The labour court is directed to permit the petitioner to file the written statement along with the aforesaid documents. After affording an opportunity of hearing and production of documents and the evidence to the petitioner, the learned labour court shall decide the matter within a period of six months.