Disposed

Ravindra Nath Tiwari v. State of U.P. Thru Secry. and 2 Others

Allahabad HC28 Aug 2018WRIC/54571/2013

Case brief

AI extract

What is this about?

This High Court discharge a writ petition regarding a former workman's reinstatement and backwages after his termination order was disapproved by the Industrial Tribunal. The Court set aside the Labour Court's order rejecting the recovery application, directing a fresh decision under Section 6H(2) recognizing the employment continuity.

What did the court decide?

The impugned order dated 27.11.2009 setting aside and the writ petition disposed of; Directions to Labour Court for fresh decision.

Ravindra Nath Tiwari Vs State of U.P. Thru… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 36

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Case :- WRIT - C No. - 54571 of 2013

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Petitioner :- Ravindra Nath Tiwari Respondent :- State Of U.P. Thru' Secry. And 2 Others Counsel for Petitioner :- Ashwani Mishra,Mool Chandra Mishra,Subhash Chandra Tiwari Counsel for Respondent :- C.S.C.,Ritvik Upadhyaya

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Hon'ble Mrs. Sunita Agarwal,J.

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The contents of the amendment application and that of the counter affidavit in contravention thereof have been perused.

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The amendment application is allowed. The amendments be treated as part of the writ petition.

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Heard learned counsel for the parties.

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The present writ petition has been filed on 22.9.2013 originally with the prayer for mandamus commanding the respondent no. 2 to reinstate the petitioner and pay him entire wages w.e.f. 1.3.1993 with interest in pursuance of the award passed by the Industrial Tribunal and further with the prayer for computation of the entire wages and to recover the same from the respondent no. 2 by undertaking coercive measure.

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The relevant facts as placed by the learned counsel for the petitioner is that the respondent no. 2 proposed to pass a dismissal order dated 1.3.1993 and for approval thereof, it moved an application before the Industrial Tribunal (1), Allahabad under Section 6-E(2) of the Uttar Pradesh Industrial Disputes Act, 1947 (in short “the Act, 1947”) which was registered as Misc. Case No. 6 of 1993. The said application was rejected vide order dated 3.2.1997 passed by the Industrial Tribunal/Labour Court. The review application filed by the respondent no. 2 was also rejected vide order dated 16.9.1997.

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It appears that the workers union of respondent no. 2 namely M/s Hindalco Industry Limited had raised an industrial dispute regarding entitlement of certain benefits to its members on which the appropriate Government made the reference to the Tribunal. During pendency of

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the said matter before the Tribunal, a charge sheet was issued to the petitioner workman on 9.7.1992 on the allegations of misbehaviuor and causing injuries to his superior officer. The workman filed a reply to the charge sheet. Not satisfied with the reply, the respondent no. 2 proceeded with the enquiry and after conclusion thereof, the enquiry report was served on the workman whereupon he filed objection.

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The disciplinary authority passed the order of dismissal from service on 1.3.1993 against the workman. Since the industrial dispute raised by the Union was pending before the Tribunal, the respondent no. 2/employer moved an application for approval of the dismissal order invoking jurisdiction of the Tribunal under Section 6-E(2)(b) of the Act, 1947.

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Vide order dated 4.4.1996, the Tribunal held that the enquiry conducted against the workman was held in accordance with law and it was fair and proper. But vide order dated 3^rd February, 1997, the application for approval of termination order dated 1.3.1993 was rejected on the ground that one month's wages was not paid to the workman as required under the proviso to Section 6-E of the Act, 1947.

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The order dated 3.2.1997 passed by the Tribunal in rejecting the application seeking approval of the termination order as also the order dated 16.9.1997 passed on the review application were challenged in Civil Misc. Writ Petition No. 32886 of 1997 (Hindalco Industries Ltd. P.O. Renukoot, District Sonebhadra vs. Presiding Officer, Industrial Tribunal-I, Allahabad and others) which was decided vide judgment and order dated 4.4.2003. While dismissing the said writ petition, this Court had refused to interfere in the conclusion drawn by the Tribunal for rejection of the application for approval of the termination order noticing that the finding of fact that one month wages were not tendered nor was paid to the workman, required no interference.

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The judgment and order dated 4.4.2003, admittedly has attained finality.

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The submission in the counter affidavit filed in the present petition

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is that the review application dated 30.4.2003 has been filed by respondent no. 2 in the aforesaid writ petition which is pending consideration. Admittedly in the said review application, no notice has been issued till date. Pendency of the review application, therefore, would be of no consequence.

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Admittedly, at no point of time after rejection of the application for approval of the termination order dated 1.3.1993, the disciplinary authority had proceeded to pass a fresh order of termination considering the enquiry report dated 17.2.1993.

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There is no dispute about the fact that the services of the petitioner has not been terminated by any order passed by the disciplinary authority after 1.3.1993. In the said eventuality, it was not open for the respondent no. 2 to restrain the petitioner from working as Badli worker in the industrial establishment of respondent no. 2.

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Further it is not the case of the respondent no. 2 that the petitioner was retrenched from service or he did not present himself before the competent authority for being employed after the aforesaid writ petition was dismissed on 4.4.2003.

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The next submission of learned counsel for the respondent no. 2 that the petitioner did not present papers for establishing that he was not gainfully employed elsewhere. The averments in the counter affidavit have been placed to assert that the reinstatement with backwages is not automatic and would not be granted merely as a result of the order passed by the Tribunal disapproving the termination order.

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It is further sought to be submitted that the petitioner herein has approached this Court after a long lapse of time, in the year 2013 and, therefore, the writ petition may not be entertained.

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Considering the said submissions, it is noteworthy that the petitioner has approached the labour Court under Section 6H(1) of the Act, 1947 by moving an application in the year 2003, which was registered as Misc. Case No. RD 2 of 2003, for recovery of backwages

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on the ground that he was not allowed to continue. The said application has been rejected vide order dated 17.6.2004 with the observation therein that since no amount was due to the petitioner under the award or settlement and, as such, the provisions of Section 6H(1) could not be invoked. It was, however, kept open for the petitioner to approach the labour Court under Section 6H(2) seeking payment of his dues.

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A fresh application under Section 6H(2) of the Act was moved by the petitioner in the year 2004 seeking recovery against the respondent no. 2. The said case was registered as Misc. Case No. 8 of 2006.

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By the order dated 27.11.2009, the labour Court has rejected the said application on the ground that the petitioner ought to have raised an industrial dispute before the Deputy Labour Commissioner for making reference to the labour Court for adjudication regarding termination of services of the petitioner. As no such dispute has been raised, it is not possible for the Deputy Labour Commissioner to compute the backwages and make payment. Moreover, in the order dated 3.2.1997 passed by the Industrial Tribunal, there was no direction to make payment of backwages.

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By means of the amendment, the validity of the orders of rejection of the application under Sections 6H(1) and 6H(2) moved by the petitioner passed on 17.6.2004 and 27.11.2009 has been challenged.

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Submission of learned counsel for the petitioner is that no termination order has been passed pursuant to the enquiry report dated 17.2.1993. The result of the order of rejection of the application for according approval of the termination order dated 1.3.1993 would be that the petitioner was entitled to continue in service. At no point of time, the service of the petitioner had been terminated by the competent disciplinary authority after 3.2.1997 nor the petitioner had been retrenched from service in accordance with Section 6-N of the Act, 1947. As such, there was no occasion for the petitioner to raise an industrial dispute. The petitioner has approached the respondent for allowing him to work. But when no action was taken, he filed the instant

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writ petition. The act of the respondent in restraining the petitioner from working has been admitted in the counter affidavit filed before this Court. They cannot be allowed to take benefit of their own wrong. The respondent no. 2 had indulged in unfair labour practices by the action of restraining a workman from working in the establishment.

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These submissions of learned counsel for the petitioner could not be refuted by the respondent no. 2 by placing any material on record. In any case, it was not open for the respondent to restrain the petitioner from working on the basis of the termination order dated 1.3.1993 which was admittedly not approved by the competent authority. The order of rejection of application of the respondent no. 2 for approval of the termination order passed by the Tribunal has been challenged in the writ petition filed in the year 1997 which has been dismissed.

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It is stated in paragraph '16' of the counter affidavit that in Writ Petition No. 32886 of 1997, initially an interim order dated 30.9.1997 was passed whereby the effect and operation of the order dated 3.2.1997 was stayed. But the said interim order dated 30.9.1997 is not on record.

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However, considering the submissions in paragraph '16' of the counter affidavit filed by respondent no. 2, it may be noted that even if operation of the order dated 3.2.1997 for rejection of approval of termination order dated 1.3.1993 was stayed by this Court, the same would not amount to revival of the termination order itself.

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Resultantly, it cannot be said that the services of the petitioner would stand automatically terminated with the interim order passed on 30.9.1997. Moreover, the said writ petition was dismissed vide judgment and order dated 4.4.2003. Neither during the pendency of the writ petition nor after dismissal thereof, the respondent no. 2 allowed to the petitioner to work.

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The assertion made in the counter affidavit that the allegations against the petitioner were of grave misconduct in assaulting his superior officer, therefore, is not proved as no order has been passed

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by the disciplinary authority for accepting the enquiry report dated 17.2.1993.

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Now the Court has left with the submission of the learned counsel for the respondent no. 2 that the petitioner is not entitled for any payment towards backwages as admittedly he has not worked since after 1.3.1993, on the principles of 'no work no pay'. Even otherwise, in absence of any proof that the petitioner was not gainfully employed elsewhere during the period of non-working in the respondent establishment, he is not entitled for any money towards wages or any other emoluments.

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Testing this submission, relevant is to note that specific stand has been taken in the instant writ petition by the petitioner that he was approaching the respondent no. 2 for reinstatement for a longtime. The statement in paragraphs '7' and '8' of the writ petition are that the petitioner is a poor person and is facing great hardship for maintaining his livelihood. Hence in this crunch situation he was constrained to file the present writ petition seeking mandamus commanding the respondent no. 2 to reinstate him in service as the termination order dated 1.3.1993 has not been approved and that he was not reinstated despite repeated requests. He is not getting wages since the year 1993 and as such is not in a position to provide education to his children.

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The said statements in paragraphs '7' and '8' of the writ petition are denied in paragraphs '28' and '29' of the counter affidavit. Only this much is stated therein that the decision of the Tribunal in not approving the termination order cannot be taken as automatic entitlement of the petitioner for reinstatement and backwages.

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The respondent no. 2 cannot be allowed to take benefit of its own wrong. The Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Others reported in (2013) 10 SCC 324 has laid down the legal proposition in paragraph '38' of the judgment in this regard. It is held therein that in case of wrongful termination of service, reinstatement with continuity of service and back-wages is the normal rule. However, the adjudicating authority

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or the Court may take into consideration other relevant factors such as length of service of the employee, nature of misconduct, if any, found proved against him, the financial condition of the employer etc. If the employer wants to avoid payment of full back wages then it has to plead and also give evidence to prove that the employee was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of his/her service. The same principle has been reiterated in Fisheries Department, State of Uttar Pradesh v. Charan Singh reported in (2015) 8 SCC 150 , wherein it has been held that the principle of "No Work No Pay" does not have any significance to the factual situation of a case of illegal termination by the employer. It was found in the said case that the workman had rendered considerable length of service and his services were wrongly terminated.

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In view of the above legal position, this Court reaches at an irresistible conclusion that the respondent no. 2 had illegally restrained the petitioner from working in the establishment.

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The petitioner was, therefore, constrained to file this writ petition in the year 2013 with the prayer for mandamus, which was entertained and counter affidavit was called. The petitioner cannot now be relegated to approach the labour Court for the present dispute after such a long time that too after affidavits have been exchanged between the parties.

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Further, the labour Court has simply rejected the application under under Section 6H(2) moved by the petitioner in the year 2006 seeking payment of his dues as not maintainable on the ground that the petitioner was required to raise an industrial dispute.

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The order dated 27.11.2009 passed by the Prescribed Authority, Labour Court, U.P., Allahabad is, therefore, set aside .

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The Presiding Officer, Labour Court, U.P., Allahabad is directed to take a fresh decision on the application under Section 6H(2) of the Act keeping in view of the above observations that the petitioner's services

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had never been terminated by the competent authority nor he had been retrenched at any point of time in accordance with the provisions of Section 6N of the Act, 1947.

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The fact that the petitioner had attained the age of superannuation on 30.11.2017 shall also be taken into consideration while computing the payments due to him.

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A fresh reasoned and speaking order on the application under Section 6H(2) of the Industrial Disputes Act shall be passed by the Prescribed Authority, in accordance with law, expeditiously, preferably, within a period of two months from the date of submission of certified copy of this order.

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Subject to the above observations and directions, the writ petition is disposed of.

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Order Date :- 28.8.2018 Brijesh

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(Sunita Agarwal, J.)

Ravindra Nath Tiwari v. State of U.P. Thru Secry. and 2 Others

Case brief

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Ravindra Nath Tiwari v. State of U.P. Thru Secry. and 2 Others

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