# (2013) 1 ILRA 414

- **Citation:** (2013) 1 ILRA 414
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-18
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2013-1-ilra-414-42520
- **Pages:** 6

## Headnote

Constitution of India, Art.-226- Labor
Court award-petitioner/workman found
working
on
temporary
capacity
as
electrician-working more than 240 dayscontinuous working without break for 9
years-in lieu of reinstatement-given lumsum amount of Rs. three lacs-held-not
proper-where
working
for
9
years
accepted no evidence about closure of
project-not an easy task to get reappointment
in
another
industryreinstatement with back wager of 20%
from
retrenchment
to
the
date
of
reinstatement-would
be
proper-award
modified accordingly.

Held: Para-26

Considering the aforesaid facts and in
order to settle the matter once and for
all, instead of remitting the matter to the
labour court, the Court is of the opinion
that the petitioner is entitled for 20 per
cent of the back wages from the date of
the order of the termination till the date
of the award. From the date of the
award, till he is reinstated, the petitioner
is not entitled for any back wages on the
principle of "no work no pay".

Case Law discussed:
AIR 2006 Supreme Court 586; 2006(11) SCC
684; 2006(7) SCC 752; 2008(1) SCC 575;
2011(3) U.P.L.B.E.C. 2568; 2005(5) SCC 591;
2009 LIC 415; 2005(2) SCC 363; W.P. No.
8749
of
2002
1 All Santram Singh Vs.Workshop Manager and another
415

## Text

414 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the only option is to fill up the post by way
of direct recruitment. The very provision of
50% promotion quota clearly entails that the
post which is left vacant, has to be filled up
by way of direct recruitment. Thus on both
counts the Committee of Management will
have the power to fill up the post by way of
direct recruitment.

11. So far as qualifications are
concerned, the post of the Head Clerk or
even otherwise of a Class III employee is
the same as provided for, in the government
run secondary institutions. The management
will therefore, have to take in to account the
said qualification for the purpose of filling
up of the post of the Head Clerk in a
peculiar situation that has cropped up in the
present case. The management can also take
into account the fact that a candidate
available who has put in more than five
years of service in any other institution may
apply for direct recruitment. In such a
situation, it is open for the Committee of
management to apply the said principle also
for the purpose of recruiting a Head Clerk in
a privately managed educational institution
under the U.P. Intermediate Education Act,
1921 in addition to the other statutory
qualifications as are prescribed for such a
post in government run institutions.

12. Accordingly the committee of
management, respondent no. 4, herein,
shall be at liberty to proceed to take steps
for filling up of the post in the light of the
observations made hereinabove.

13. The writ petition is disposed of.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.
Civil Misc. Writ Petition No. 33860 Of 2009

Santram Singh

...Petitioner
Versus
Workshop Manager and another

 ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders

Counsel for the Respondents:
S.C.
Sri Ritvik Upadhyay
Sri V.K. Upadhyay

Constitution of India, Art.-226- Labor
Court award-petitioner/workman found
working
on
temporary
capacity
as
electrician-working more than 240 dayscontinuous working without break for 9
years-in lieu of reinstatement-given lumsum amount of Rs. three lacs-held-not
proper-where
working
for
9
years
accepted no evidence about closure of
project-not an easy task to get reappointment
in
another
industryreinstatement with back wager of 20%
from
retrenchment
to
the
date
of
reinstatement-would
be
proper-award
modified accordingly.

Held: Para-26

Considering the aforesaid facts and in
order to settle the matter once and for
all, instead of remitting the matter to the
labour court, the Court is of the opinion
that the petitioner is entitled for 20 per
cent of the back wages from the date of
the order of the termination till the date
of the award. From the date of the
award, till he is reinstated, the petitioner
is not entitled for any back wages on the
principle of "no work no pay".

Case Law discussed:
AIR 2006 Supreme Court 586; 2006(11) SCC
684; 2006(7) SCC 752; 2008(1) SCC 575;
2011(3) U.P.L.B.E.C. 2568; 2005(5) SCC 591;
2009 LIC 415; 2005(2) SCC 363; W.P. No.
8749
of
2002
1 All Santram Singh Vs.Workshop Manager and another
415
(Delivered by Hon'ble Tarun Agarwala, J)

1. The workman being aggrieved by
the award of the labour court has filed the
present writ petition. The facts leading to
the filing of the writ petition is that the
petitioner was appointed as an Electrician
in the year 1989 and, since then, has been
working without any break in service. The
services of the petitioner was dispensed
with on 13th August, 1998 without giving
any notice and without assigning any
reason. The petitioner, being aggrieved by
the termination of his services, raised an
industrial dispute, which was referred to
the labour court. The reference was
"whether the employers were justified in
terminating the service of the workman
w.e.f. 13th August, 1998 ? If not, to what
relief was the workman entitled to."

2. Upon the exchange of pleadings,
the labour court held that the workman
had worked for more than 240 days in a
calender year and had worked for almost
9 years, and consequently, the employer
was not justified in terminating the
services
of
the
petitioner
without
assigning any reason. The labour court
also found that the provision of Section 6N of the U.P. Industrial Disputes Act was
not complied with. The labour court also
found that the petitioner was entitled to be
given
a
notice
and
retrenchment
compensation as provided under Section
6-N of the U.P. Industrial Disputes Act.
The labour court, however, instead of
reinstating the petitioner in service
moulded the relief and paid compensation
amounting to Rs. 3 lacs. The workman,
being aggrieved by this portion of this
award, namely, payment of compensation
in lieu of reinstatement, has filed the
present writ petition.

3. Heard Sri A.D. Saunders, the
learned counsel for the petitioner and Sri
Ritvik Upadhyay, the learned counsel for
the employers.

4. The contention of the petitioner
is, that having worked for almost 9 years
continuously without any break in service
and, in the absence of any misdemeanour
of his part, the petitioner was entitled for
reinstatement
in
service
and
that
compensation in lieu of reinstatement was
not justified in the present facts and
circumstances of the case.

5. On the other hand, the learned
counsel for the employer vehemently
contended that the award of the labour
court was perfectly correct and that the
workman was not a regular employee and
that he was working as a temporary
employee,
and
consequently,
the
petitioner was not entitled to be reinstated
as a matter of right. The learned counsel
submitted that in the given circumstances,
compensation in lieu of reinstatement was
the appropriate relief given to the
workman. It was also urged that the
workman did not allege before the labour
court that he was not gainfully employed
and
therefore
the
question
of
reinstatement in the service does not arise.
The learned counsel further contended
that in similar circumstances, the labour
court directed reinstatement of service of
some other workers in the construction
department of the employer, against
which, the employer filed a writ petition,
which was partly allowed and instead of
reinstatement, the Court modified the
award by giving compensation in lieu of
reinstatement.
The
learned
counsel
submitted that in the light of the aforesaid
decisions of this Court, the award of the
labour court awarding compensation in
416 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
lieu of reinstatement was perfectly
justified.

6. When an order of termination is
set aside by a labour court, the normal
rule is reinstatement in the service of the
employer.
In
exceptional
cases,
reinstatement in service can be denied for
valid reasons, otherwise the normal rule is
reinstatement in service. This trend of
reinstatement in service continued for
several decades, but recently, the trend
has been changed and a departure has
been made through various judgements of
the Supreme Court. Before elucidating on
the subject, reinstatement with back
wages and reinstatement without any back
wages needs to be clarified.

7. In U.P. State Brassware
Corporation Ltd. Vs. Uday Narain
Pandey AIR 2006 Supreme Court 586,
the Supreme Court held that in every case
of reinstatement, the entire back wages
ought not to be awarded even if there has
been a violation of the provision of 6-N of
the U.P. Industrial Disputes Act.

8.

In
Jaipur
Development
Authority Vs. Ram Sahai 2006 (11)
SCC 684, the Supreme Court held that
where the dispute was raised belatedly
and there was a long delay in making the
reference, the relief of reinstatement was
not justified and in such circumstances,
lumpsum compensation should have been
awarded.

9. In U.P.S.R.T.C. Vs. Man Singh
2006 (7) SCC 752, the Supreme Court
held that where the workman was not
appointed in accordance with the Rules
and the dispute was raised after a long
lapse of time, in such circumstances, the
relief of reinstatement was not justified
and that compensation was the adequate
remedy in lieu of reinstatement.

10. In Mehboob Deepak Vs. Nagar
Panchayat Gajraula and another 2008
(1) SCC 575, the Supreme Court held that
a daily wager who may have worked for
more than 240 days in a calender year and
their services were terminated in violation
of the provisions of Section 6-N of the
U.P. Industrial Disputes Act was not
entitled for reinstatement in service as he
does not hold a right on that post, and
consequently, a daily wager was only
entitled for compensation.

11. Similar view was held by this
Court in State of U.P. and another Vs.
Hind Mazdoor Sabha and others 2011
(3) U.P.L.B.E.C. 2568.

12. On the other hand, with regard to
the back wages, the Supreme Court held
that where the termination was held to be
illegal, the labour court was justified in
reinstating the workman, but was not
justified in granting full back wages. In
General Manager, Haryana Roadways
Vs. Rudhan Singh 2005 (5) SCC 591,
the Supreme Court held that the order for
backwages
should
not
be
passed
mechanically. There are other factors,
which are required to be considered
before
granting
backwages,
namely,
length of service whether it was an ad hoc
appointment or a permanent appointment,
whether the workman was working on
daily wage, temporary or permanent or
whether he was in a position to get
another employment during the pendency
of the dispute.

13. Similar view was again
reiterated in Kanpur Electric Supply Co.
Ltd. Vs. Shamin Mirza 2009 LIC 415.
1 All Santram Singh Vs.Workshop Manager and another
417

14.

In
Kendriya
Vidyalay
Sangathan
and
Another
Vs.
S.C.Sharma 2005 (2) SCC 363, the
Supreme Court held that the workman
was not entitled to back wages as a matter
of right and that the employee had to
show that he was not gainfully employed
and that the initial burden was upon him.

15. In the light of the aforesaid, the
Court finds that the petitioner was
appointed as a temporary employee, but
had worked continuously for 9 years.
There is an order passed by the
Controlling Authority under the payment
of Gratuity Act awarding gratuity to the
petitioner on the ground that he had
worked 240 days in a calender year for 9
continuous years and consequently was
entitled for gratuity. This order has
become final interse between the parties.

16. The appointment of a daily
wager is a different and distinct from an
appointment
on
a temporary
basis.
Appointment on a daily wages is on
account of exigencies of work whereas a
person appointed on a temporary basis
means that there is requirement for work
and is not appointed on a day to day basis,
but the appointment is for a considerable
period of time.

17. In the instant case, the Court
finds from the written statement of the
employers that the petitioner was engaged
in the Electricity Department for various
projects and according to the employers
upon the completion of the project, the
work comes to an end. The nature of work
specified by the employer indicates the
temporary nature of work. However, the
Court finds that this temporary nature of
work continued unabated for 9 long years
and the petitioner continued to remain a
temporary
workman.
The
petitioner
alleges that when he came into the zone of
regularization, the employers passed an
order of termination of the services of the
workman. The Court further finds that
there is nothing to indicate that the
construction
work,
in
which,
the
petitioner was engaged had come to an
end and that the petitioner's services was
no longer required thereafter.

18. In the light of the aforesaid, the
contention of the employer that the
petitioner was only a temporary employee
and was therefore not entitled for
reinstatement in services does not hold
good especially when no evidence has
been brought on record to justify the
termination of the workman. There is also
no evidence to prove that the project, in
which, the petitioner was employed had
come to an end or that there was no
further requirement of work. The Court
further finds that the petitioner having
worked for more than 240 days in a
calendar year and having worked 9 years
was entitled for reinstatement in service.
The labour court has misinterpreted the
judgments cited and has erred in granting
compensation in lieu of reinstatement.
The Supreme Court has denied the relief
of reinstatement in those cases, where the
dispute
was
belatedly
referred
for
adjudication or where the workman was a
dailywager. In the instant case, the
petitioner was not a dailywager, but was a
temporarily employed. The Court does
not
find
that
there
has
been
an
unreasonable delay in raising the dispute.

19. Employment in an industry is
not an easy task and in these modern
times,
when
there
is
a
huge
unemployment, it is difficult for a
418 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
workman to get reemployment, especially
when a workman has worked for some
length of time and seeks employment at a
later stage in another industry. A question
is normally asked by a new employer,
whether the workman had worked at at
another place earlier and when it comes to
the knowledge of the new employer that
the services of the workman was
terminated earlier for whatever reasons, a
shadow of doubt creeps in the mind of the
employer
with
regard
to
his
reemployment. Consequently considering
this aspect, reinstatement in service is the
normal
rule.
Once
the
order
of
termination is found to be illegal and is
set aside, unless a departure is made for
strong reasons, reinstatement in service
should be granted.

20. The Court is of the opinion that
this is not a case whether a departure can
be
made
denying
the
petitioner
reinstatement in service and giving
compensation in lieu thereof.

21. In Writ petition No. 8784 of
2002 M/s Hindalco Industries Ltd. Vs.
Sri Bhuvnesh Kumar Dwivedi and
Another, the Court considered the factum
of resignation of the workman and even
though he had worked for almost 8 years
held that in the given circumstances was
only entitled for compensation instead of
compensation. The High Court, accordingly
modified the award of the labour court
granting compensation of Rs. One lac
instead of reinstatement in service. In Writ
petition no. 8749 of 2002, M/s Hindalco
Industries Ltd. Vs. Surendra Pratap
Singh and Anothers decided on 04th July,
2011, the Court considered the factum that
the workman was appointed for limited
period of time and in view of the provision
of Section 2 (oo)(bb) of the Industrial
Disputes Act, the Court was of the opinion
that the workman was entitled for payment
of compensation in lieu of reinstatement.

22. The aforesaid decisions cited by
the learned counsel for the petitioner, in the
opinion of the Court, is distinguishable.

23. In the light of the aforesaid, the
Court is of the opinion that the award of
the labour court directing payment of
compensation of Rs. 3 lacs in lieu of
reinstatement
was
not
correct,
and
consequently, to that extent, the award of
the labour court can not be sustained and
is modified to the extent that the workman
petitioner would be reinstated in service.

24. In so far as, the back wages are
concerned, the Court finds that the
petitioner has pleaded before this Court as
well as before the labour court that he has
not been gainfully employed from the
date of his termination of his services.

25. In the light of the aforesaid and
in view of the decision of the Supreme
Court,
in
the
case
of
Kendriya
Sangathan (Supra), the petitioner has
discharged the initial burden and the onus
was upon the employer to prove that he
was gainfully employed.

26. Considering the aforesaid facts
and in order to settle the matter once and
for all, instead of remitting the matter to
the labour court, the Court is of the
opinion that the petitioner is entitled for
20 per cent of the back wages from the
date of the order of the termination till the
date of the award. From the date of the
award, till he is reinstated, the petitioner
is not entitled for any back wages on the
principle
of
"no
work
no
pay".
1 All Lakhan Lal Gupta Vs. State of U.P. and others
419

27. In view of the aforesaid, the
award of the labour court is modified, the
Court further directs the employer to
reinstate the workman within four weeks
from today, from which date, the
petitioner would be entitled for wages.

28. The writ petition is allowed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 39495 Of 1998

Lakhan Lal Gupta
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Hariom Khare

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226- Recovery
of excess amount-on ground of wrong
fixation-after
four
years
from
the
retirement-without disclosing any reasonwithout affording opportunity of hearingno allegation of misrepresentation against
petitioner- a class 4th employee-heldimpugned order wholly arbitrary illegalquashed.

Held: Para-14 & 23

14-It
is
trite
law
that
if
any
administrative or qusi judicial order
which entails civil consequences, then
the person is entitled for opportunity
before any such order is passed. Having
regard to evidence on record, it can be
safely
held
that
there
is
complete
violation of principles of natural justice
in the present case, and on this ground
alone,
the
impugned
order
is
unsustainable.

23- That order is also vitiated for another
reason; The petitioner is retired Class-IV
employee, the impugned order has been
passed after four years of his retirement.
It may be that due to inadvertent
mistake by authority concerned, he was
granted higher pay scale.

Case Law discussed:
(1991)1 SCC 588; AIR 1978 SC 851; (1969) 2
SCC 262; AIR 1981 SC 818; (2011)2 SCC 258;
2010(9)SCC
496;
2010
(9)SCC
486;
2003(11)SCC 519; AIR 1990 SC 1984; (2012)8
SCC 417; (2009)3 SCC 475; 1995 Supp. (1)
SCC 18; [1994] 2 SCC 521; [1996] 4 SCC 416;
[1997] 6 SCC 139; (2006) 11 SCC 709; [2006]
11 SCC 492; [2006] 8 SCC 647; [2000] 10 SCC
99

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. By way of this petition, a ClassIV employee who retired from his service
way back in 1998, is seeking to impugn
an order for recovery of excess amount
paid to him.

2. A few facts may be set out, which
would be relevant for considering the
issue which arise in present case are:

3. The petitioner was initially
appointed as Class-IV employee on
31.12.1962 in Horticulture Department. It
is stated that his service record was
excellent. After completing 12 years of
service, petitioner was granted selection
grade on 01.05.1984 and after 16 years,
he was sanctioned higher pay scale of Rs.
775- 1025 on 01.05.1990. A copy of the
order dated 14.06.1990 is Annexure-1 to
the writ petition.