Dismissed

State of U.P. and Another v. Presiding Officer Labour Court and Another

Allahabad HC15 Nov 2018WRIC/790/2017

Case brief

AI extract

What is this about?

This judgment dismissed a writ petition filed by the State challenging a Labour Court award. The court held that a four-year delay by the workman in approaching the court for reinstatement and back wages was not fatal, as the employer failed to prove non-service and withheld relevant evidence. The court denied interference with the award.

What did the court decide?

Writ petition dismissed; Labour Court award upholding reinstatement and 50% back wages maintained.

State of U.P. and Another Vs Presiding… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 36 Case :- WRIT - C No. - 790 of 2017 Petitioner :- State Of U.P. And Another Respondent :- Presiding Officer, Labour Court And Another Counsel for Petitioner :- Anoop Kumar Srivastava Counsel for Respondent :- Sanjay Kumar Mishra

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard learned Standing Counsel for the petitioners and Sri Satyendra Pandey, learned Advocate appearing on behalf of respondent no. 2.

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The present writ petition is directed against the Labour Court award dated 8.12.2015 (published on 7.6.2016) passed in Adjudication Case No. 28 of 2003.

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The reference made to the Labour Court reads as under:-

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ÞD;k lsok;kstdksa }kjk vius deZpkjh Jh jkekJ; ;kno iq= Jh jke csykl dks fnukad 01-01-98 ls dk;Z ls i`Fkd@oafpr@}kjk lsok,a lekIr fd;k tkuk mfpr rFkk@ vFkok oS/kkfud gS\ ;fn ugha rks deZpkjh fdl fgrykHk@ {kfriwfrZ dks ikus dk vf/kdkjh gS ,oa vU; fdl fooj.k lfgr\ß

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The claim of the respondent workman before the Labour Court was that he was engaged in the year 1985 on the post of 'Mali' in the establishment which is known as Social Forestry Department in Hata Range, Kushinagar. He worked as such till 31.12.1997. He was getting Rs. 900/- per month towards wages at that point of time. The employers did not pay wages from January, 1997 till December, 1997 and when he demanded the accumulated wages, being annoyed with the fact his services were orally terminated w.e.f. 1.1.1998. A categorical statement had been made by the workman that juniors to him had been kept in service and fresh appointments have also been made but no opportunity whatsoever had been granted to the workman to work on the post of 'Mali'.

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The respondent took a stand before the Labour Court that the concerned workman was engaged in a scheme floated by the World

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Bank on daily wage basis and soon after the conclusion of the scheme, his services had automatically been terminated.

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Further it was contended that the Social Forestry Department is not an “industry” within the meaning of Section 2(k) of U.P. Industrial Disputes Act, 1947 and as such, the Labour Court had no jurisdiction.

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The statement of the workman that he had worked in the establishment from the year 1985 till 31.12.1997 was denied with the assertion in the written statement that the workman did not work for a single day.

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The Labour Court has recorded a categorical finding based on the documentary evidences on record which were filed by the workman with the list 17-B(2). The letter given to the workman in R.T.I. Act that he worked in the establishment from August, 1985 to November, 1993 was taken into consideration. A certified copy of the seniority list of daily wage employee working in Social Forestry Department, Hata Range, Kushinagar was also brought on record. In the seniority list, at serial no. 43, the name of the workman was found and it was also noted therein that he was appointed in the month of August, 1985 and had been disengaged in the month of October, 1993. The stand taken by the respondent, therefore, was found incorrect.

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This apart, the Labour Court has recorded a categorical finding that a case under Payment of Wages Act was filed by the workman in the year 1998 for the wages between January, 1997 to December, 1997. The said case was registered as Case No. 24 of 1998 and was decided in favour of the workman on 25.1.2000. It has further recorded that despite directions given to the employers, they did not file relevant documents such as salary register and muster roll of the daily wage employees, who had worked in the establishment of the Social Forestry Department. The Labour Court, therefore, proceeded to draw adverse inference against the employer to hold that the

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workman was denied employment without following the provisions relating to retrenchment. The violation of Sections 6N, 6P and 6Q on the part of the employer was recorded by the Labour Court to grant award of reinstatement with 50% of back wages.

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Challenging this award, the submission of learned counsel for the petitioner is that as per own case of the workman, he was disengaged w.e.f. 1.1.1998. Though he filed application before the Payment of Wages Authority for drawing his wages between January, 1997 till December, 1997 but he did not raise any industrial dispute for a period of 4 years. The delay on the part of the workman would be fatal in awarding reinstatement that too when adjudication was made after a period of 17 years.

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Reliance is placed upon the judgments of the Apex Court in M/s. Shalimar Works Limited vs. Their Workmen reported in AIR 1959 Supreme Court 1217 and Bharat Sanchar Nigam Limited vs. Bhurumal reported in 2014 (7) Supreme Court Cases 177 .

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Learned counsel for the respondent had relied upon the judgment of the Apex court in Chief Conservator of Forests and another vs. Jagannath Maruti Kondhare and others reported in (1996) 2 Supreme Court Cases 293 to submit that the law laid down in the aforesaid case of the Social Forestry Department being an industry is holding the field. Reference made by the five Judges Bench in State of Uttar Pradesh vs. Jai Bir Singh reported in 2005 (5) SCC 1 would not dilute the aforesaid view. Even in case, the reference is answered against the respondent, it would have no bearing on the disputes which had already been adjudicated.

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Having considered the submissions of learned counsel for the parties and perused the record, on the question of delay in making reference, it is noteworthy that the Apex Court in General Manager, Haryana Roadways vs. Rudhan Singh reported in (2005) 5 SCC 591 , has held that normally, a reference should not be made after lapse of a long period. A labour dispute should be resolved

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expeditiously as it causes prejudice both to the workman and also to the employer. It is not possible for the employer to retain all the documents for a long period and then to produce evidence, whether oral or documentary, after years. Further it has been held in Prabhakar vs. Joint Director, Sericulture Department and another reported in (2015) 15 SCC 1 that no limitation has been provided under the Industrial Disputes Act and as such, every delay in approaching the Industrial Court would not be fatal. The question as to whether the delay on the part of the workman would be fatal in granting relief of reinstatement and back wages varies from the facts of the case and it has to be decided in the circumstances of the individual case.

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Relevant para '28' is quoted as under:-

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" 28. The aforesaid case law depicts the following:

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28.1 . The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.

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28.2. The words "at any time" used in Section 10 would support that there is no period of limitation in making an order of reference.

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28.3. At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused.

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28.4 . Whether dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard-and-fast rule regarding the time for making the order of reference."

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In the instant case, the workman had approached the Payment

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of Wages Authority in the year 1998 to draw his wages and the said matter was contested by the employers and the orders were passed by the Prescribed Authority in the years 2000 and 2001, which had attained finality. The industrial dispute was raised in the year 2001 by filing a conciliation application. The reference made vide order dated 7.9.2002 has been answered on 8.12.2015, and the award was published on 7.6.2016. This award has been challenged in the present petition filed in the month of December, 2016. It is not a case where it could be said that since the workman had raised dispute with delay, therefore, record of his employment would have been

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destroyed or misplaced.

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The Labour Court has recorded a categorical finding that the workman was denied employment without assigning any reason. The employer took a false stand before the Labour Court in making a statement in the written statement filed by it that the workman was not engaged at any point of time. No record such as the salary register and the muster roll was produced before the Labour Court to establish, otherwise.

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On the other hand, the workman had produced documents to establish that he had worked in the establishment for a sufficient period of time.

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For the aforesaid, in the facts and circumstances of the instant case, this Court is of the considered view that the delay of 4 years in approaching the Industrial Court on the part of the workman would not be fatal, inasmuch as, the workman was approaching the respondent establishment for getting employment. At no point of time, written letter of disengagement has been given to him.

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Further, as the employer did not come out with the clean hand and had withheld the relevant evidences required to be filed before the Labour Court, the award passed by the Labour Court granting relief of reinstatement with 50% back wages, warrants no interference.

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The present writ petition is dismissed .

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Order Date :- 15.11.2018 Brijesh

State of U.P. and Another v. Presiding Officer Labour Court and Another

Case brief

What is this about?

What did the court decide?

State of U.P. and Another v. Presiding Officer Labour Court and Another

Case brief

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