Partly allowed

Vice Chancellor, Govind Ballabh Pant University of Agriculture and Technology v. Presiding Officer Labour Court Kashipur, District-Udham Singh Nagar

Uttarakhand HC8 Nov 2021WPMS/1846/2014

Case brief

AI extract

What is this about?

The High Court of Uttarakhand appealed the Labour Court award against a university management holding a generation operator entitled to reinstatement. The court held the worker was a direct employee and modified the award to compensation instead of reinstatement.

What did the court decide?

Award modified; respondent to receive Rs. 7,50,000 compensation plus 12% per annum interest; writ petition allowed in part.

Vice Chancellor, Govind Ballabh Pant University of… — Property and Title | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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WPMS No. 1846 of 2014

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Vice Chancellor, Govind Ballabh Pant University of Agriculture and Technology

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..................Petitioner

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Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Lokendra Dobhal for the petitioner

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-versus-

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Presiding Officer Labour Court Kashipur, Dist. Udham Singh Nagar and another

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……...Respondents Mr. Vijay Bhatt, Advocate for the respondents

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Sri S.K.Mishra, J.

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Judgment 08.11.2021

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In this writ petition, filed under Article 226 read with Article 227 of the Constitution of India, the Govind Ballabh Pant University of Agriculture and Technology, (herein after referred to as the management for brevity) has assailed the award passed by the learned Presiding Judge, Labour Court, Kashipur, Udham Singh Nagar allowing the application filed by the respondent no. 2 Adjudication Dispute No. 40 of 2008.

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Facts of the case are as follows:-

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i. The respondent no. 2 was engaged as a Generator Operator on 01.02.2003 with the Management. He worked for three years. Thereafter, the Management entered into an agreement with an

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outsourcing agency and the respondent no. 2 was orally directed to work through the said agency.

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ii. As per written instructions given by the agency on several occasions he continued till 02.09.2005. On 02.09.2005, the contract of the outsourcing agency came to an end and the respondent no. 2 was asked not to report to duty but no order of termination was passed. Respondent no. 2 moved to the Government and the Government i.e. Deputy Labour Commissioner, Kumaon Regioin, Haldwani made a reference under the Industrial Dispute Act, 1947 and thereafter, the proceedings were drawn up under Section 6N of the Act.

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iii. The learned Judge Presiding Labour Court came to a definite conclusion that there has been a violation of the condition precedent to retrenchment of respondent no. 2, as provided under Section 6N of the aforesaid Act, therefore, the Presiding Officer, Labour Court directed for reinstatement of the respondent no. 2 along with compensation of Rs. 50,000/-.

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The learned counsel for the petitioner in essence raises two issues. He would argue that the respondent no. 2 was not in the direct employment of the Management and therefore, the provisions of the Industrial Dispute Act and especially Section 6N of the Act will not be applicable.

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He would further argue that there is no material on record to indicate that respondent no. 2 had actually worked for 240 days in a year. Further, it is submitted on behalf of the Management that in similar cases, the Coordinate Bench of this Court though the conclusion that violation of Section 6N of the Act did not pass any award for reinstatement of the employees rather found out via media of giving compensation, in view of the fact that the workman worked only a few months/years and the dispute relates to about 15 to 20 years ago.

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First of all, in order to consider whether the respondent no. 2 was an employee of the Management, this court is of the opinion that the discussion taken up by the learned Judge Presiding, Labour Court, Kashipur reveals that respondent no. 2 was engaged on 01.02.2003, on temporary basis to operate the generator and in April, he was asked to work under a service provider. Service provider contract came to an end on 02.02.2005 and respondent no. 2 was also not allowed to work thereafter. It was held by the Labour Court that the respondent no. 2 was working directly under the Management and was not an outsourced employee, so that contention of the learned counsel for the petitioner is not tenable, and therefore, not accepted.

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The second contention is that he had not worked for 240 days. This is a factual aspect of the case. Though, the learned Presiding Judge has not specifically given a finding that actually, respondent no. 2 had worked for 240 days preceding his retrenchment, it is apparent from the tenor of the judgment and also the various facts described in the judgment impugned that he

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worked for the statutory period and he discharged his duty as a Generator Operator from 01^st April 2003 to 2^nd September 2005. So that contention also of the counsel appearing for the management is not tenable.

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However, the third contention that the respondent no. 2 had only worked for 2 years 7 months giving direction for reinstatement as a generator operator will create un-surmountable hardships to the Management as well as to the other employees, who have been engaged after his termination to the execute of the work concerned requires consideration. It is also argued that since he has not worked for so many years for the Management, the Management should not suffer because a lot of public money is invested in such institution for imparting formal as well as vocational education.

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In that view of the matter, keeping in view the recent trend of judgments, this Court comes to the conclusion that a sum of Rs. 7,50,000/- should be paid to the respondent no. 2 by the Management - petitioner for violation of the Section 6(N) of the UP Industrial Dispute Act, 1947, as has already been adopted by the Legislative Assembly of the Uttarakhand State. A sum of Rs. 7,50,000/- to be paid to the respondent no. 2 by the petitioner within 3 months, failing which it will have a penal simple interest @ 12% per annum from the date 28.08.2006 i.e. the date of the reference made by the Deputy Labour Commissioner to the Labour Court, Kashipur till the actual payment. Accordingly, the award is modified to the extent mentioned above and the writ

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petition is allowed in part. There will be no order as to costs.

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