# Madhyanchal Vidyut Vitaran Nigam Ltd v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 343
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Writ C No. 32520 of 2016
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhyanchal-vidyut-vitaran-nigam-ltd-v-state-of-u-p-ors-50205
- **Pages:** 13

## Headnote

Civil Law - U.P. Industrial Disputes Act,
1947- Impugned award passed-reinSt.d the
Opposite party-a workman-Labour Court not
considered
the
documents
filed
by
the
Department- mere finding that oral termination
was not according to law would not ipso facto
lead to a conclusion that the workman should
be reinSt.d with back wages-and continuity in
service-a consolidated and lump sum amount of
compensation could have served the purpose-as
the age of respondent was 53 years- as of now
he
must
have
attained
the
age
of
superannuation- not just for reinSt.ment after
attaining age of superannuation -relief of
reinSt.ment with continuity in service and
backwages is denied-Rs. 2,00,00/- as lumpsum
compensation granted.

Writ allowed in part. (E-9)

List of Cases cited:

## Text

_Characters 0–39,919 of 41,171. This is a partial read: ask again with offset=39919 for what follows._

5 All. Madhyanchal Vidyut Vitaran Nigam Ltd. Vs. State of U.P. & Ors.
343
(2023) 5 ILRA 343
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ C No. 32520 of 2016

Madhyanchal Vidyut Vitaran Nigam Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Tripathi, Sri Devesh
Tripathi

Counsel for the Respondents:
C.S.C., Sri Goptal Narain

Civil Law - U.P. Industrial Disputes Act,
1947- Impugned award passed-reinSt.d the
Opposite party-a workman-Labour Court not
considered
the
documents
filed
by
the
Department- mere finding that oral termination
was not according to law would not ipso facto
lead to a conclusion that the workman should
be reinSt.d with back wages-and continuity in
service-a consolidated and lump sum amount of
compensation could have served the purpose-as
the age of respondent was 53 years- as of now
he
must
have
attained
the
age
of
superannuation- not just for reinSt.ment after
attaining age of superannuation -relief of
reinSt.ment with continuity in service and
backwages is denied-Rs. 2,00,00/- as lumpsum
compensation granted.

Writ allowed in part. (E-9)

List of Cases cited:

1. Deputy Executive Engineer Vs Kuberbhai
Kanjibhai, (2019) 4 SCC 307,

2. St. of Uttarakhand Vs Raj Kumar, 2019 SCC
OnLine SC 16,

3. Assistant Engineer, Rajasthan Development
Corporation & anr. Vs Gitam Singh (2013) 5 SCC
136,

4. Range Forest Officer Vs S.T. Hadimani
alongwith St. of Kar. & anr. Vs S.T. Hadimani
(2002) 3 SCC 25

5. St. of U.P. & anr. Vs Chhunna Lal & anr.
reported in 2019 SCC OnLine All 4262

6. St. of Karn. Vs Uma Devi reported in (2006) 4
SCC 1

7. Civil Misc. Writ Petition No.1110 of 1986 (U.P.
St. Electricity Board & anr. Vs P.O. Labour Court,
Gorakhpur & Anr.);

8. Gammon India Limited Vs Niranjan Dass
(1984) 1SCC 509;

9. Management of M/s Willcox Buck Well India
Ltd. v. Jagannath & ors. AIR 1974 Supreme
Court 1166;

10. Bhagwati Prasad Vs Chandramaul reported
in AIR 1966 Supreme Court 735;

11. Ram Sarup Gupta (dead) by L.Rs v. Bishun
Narain Inter College & ors. reported in AIR 1987
Supreme Court 1242;

12. Surendra Kumar Verma & ors. v. Central
Government
Industrial
Tribunal-cum-Labour
Court, New Delhi & anr. (1980) 4 SCC 443;

13. Sudarshan Rajpoot Vs Uttar Pradesh St.
Road Transport Corporation ,(2015) 2 SCC 317;

14. Punjab Land Development & Reclamation
Corp. Ltd. Chandigarh Vs Presiding Officer,
Labour Court, Chandigarh & ors. Divisional
Controller, Maharashtra St. Road Transport
Corporation,
Amravati
Vs
Chandrashekhar
Maribhau Deshmukh & anr. , (1990) 3 SCC
682;

15. U.P. Drugs & Pharmaceuticals Co. Ltd. v.
Ramanuj Yadav & ors. (2003) 8 SCC 334;

16. Devinder Singh Vs Municipal Council, Sanaur
(2011) 6 SCC 584;
344 INDIAN LAW REPORTS ALLAHABAD SERIES
17. R.M. Yellatti Vs Assistant Executive Engineer
(2006) 1 SCC 106.

18. BSNL Vs Bhurumal reported in (2014) 7 SCC
177

19. Assistant Engineer, Rajasthan St. Agriculture
Marketing Board, Sub-Division, Kota Vs Mohan
Lal ,(2013) 14 SCC 543

20. Nagar Mahapalika Vs St. of U.P. &
ors.,(2006) 5 SCC 127

21. Municipal Council, Sujanpur Vs Surinder
Kumar (2006) 5 SCC 173

22. Haryana St. Electronics Development Corp.
Ltd. Vs Mamni (2006) 9 SCC 434

23. Uttaranchal Forest Development Corp. Vs
M.C. Joshi (2007) 9 SCC 353

24. Ghaziabad Development Authority & anr. Vs
Ashok Kumar & anr. reported in (2008) 4 SCC
261

25. Telecom District Manager Vs Keshab Deb,
(2008) 8 SCC 402

26. Jagbir Singh Vs Haryana St. Agriculture
Marketing Board (2009) 15 SCC 327

27. Uttar Pradesh St. Electricity Board Vs Laxmi
Kant Gupta ,(2009) 16 SCC 562,

28. Bharat Sanchar Nigam Limited Vs Man Singh
,(2012) 1 SCC 558

29. Senior Superintendent Telegraph (Traffic),
Bhopal Vs Santosh Kumar Seal & ors., reported
in (2010) 6 SCC 773

30. Sita Ram Vs Moti Lal Nehru Farmers Training
Institute, AIR 2008 SC 1955

31. Incharge Officer Vs Shankar Shetty reported
in JT 2010(9) SC 262.

32. Hari Nandan Prasad Vs Food Corporation of
India: (2014) 7 SCC 190,

33. U.P. Power Corpn. Ltd. Vs Bijli Mazdoor
Sangh, (2007) 5 SCC 755
(Delivered by Hon'ble Kshitij Shailendra, J.)

1. This writ petition has been filed by
Madhyanchal Vidyut Vitaran Nigam Ltd.
challenging the impugned award dated
19.10.2015 published on 30.01.2016 passed
by the respondent No.2-Presiding Officer,
Labour Court, Firozabad with a further
prayer to issue a writ in the nature of
Mandamus commanding the respondent
no.3 not to enforce the aforesaid award.

2. The facts of the case are that
petitioner (hereinafter referred to 'as
MVVNL') is a company incorporated under
the Companies Act-1956 engaged in the
business of distribution of electricity within
specified areas under the license granted to
it
by
U.P.
Electricity
Regulatory
Commission in exercise of powers under
the Electricity Act-2003. The writ petition
contains various pleadings with regard to
status of the petitioner-Company, however,
since the writ petition arises out of an
award passed under the provisions of U.P.
Industrial Disputes Act-1947 (hereinafter
referred to as 'the Act-1947'), it is not
necessary to enter into details of such
aspects which may not be relevant for the
purposes of deciding the controversy.
However, emphasis of the petitioner in the
writ petition is that the U.P. Power
Corporation Ltd. has framed U.P. Rajya
Vidyut Parishad Parichalkiya Karmchari
Varg Seva Viniymawali-1995 (hereinafter
referred
to
the
'Regulations-1995')
governing the services of its employees and
workers.

3. The respondent no.4-Workman
raised a dispute regarding termination of
his services w.e.f. 21.03.2006 and pursuant
to a reference made, a case was registered
5 All. Madhyanchal Vidyut Vitaran Nigam Ltd. Vs. State of U.P. & Ors.
345
as Adjudication Case No.42 of 2007.
Thereafter, the case was transferred to the
Labour Court, Firozabad wherein it was
registered as Adjudication Case No.46 of
2015. The case of the workman is that he
was appointed on the post of Sub Station
Operator on 11.07.1986 on a temporary
basis as a daily wager and he had worked in
the
Establishment
upto
20.03.2006,
whereafter,
his
services
were
orally
terminated on 21.03.2006. He contends that
oral termination of his services was
contrary to law and, therefore, he was
entitled to be reinstated on the post with
continuity in past services alongwith
arrears of salary,

4. On the other hand, the case of the
petitioner-Department is that the workman
was never appointed and he had never
worked on any post. Relying upon the
aforesaid Regulations of 1995, it is
contended by the Department that all
appointments in the Organisation were
made by issuing letters of appointment by
the Competent Authorities; that no letter of
appointment was ever issued to the
respondent; the respondent never joined the
Department; the posts are filled up holding
rigorous selection process; the respondent
tried
to
secure
employment
in
the
Organization by hook and crook; the
respondent did not fall within the definition
of workman; there was no relationship of
employer-employee
in
between
the
Department and the respondent since the
respondent was not an employee/workman
in the Organisation, no question of
termination of his services arose; no salary
was ever paid to the respondent; there was
a ban imposed on appointment since 1979
from appointing employees on Muster Roll
& temporary basis and that there was no
post of Sub Station Operator.

5. The petitioner-Department also filed
a rejoinder before Labour Court stating that
respondent no.4 was never appointed as a
daily
wager;
that
Electriciy
Urban
Division-III Bareilly was created on
01.04.1991 and that respondent no.4 had
never worked in the Division, therefore,
question of completion of 240 days did not
arise. On behalf of the Department Shri
G.K. Saxena, Retired Junior Engineer, Sri
Pramod, Trainee Junior Engineer, filed
affidavit on 17.01.2008 & Shri S.K.
Saxena, employed in Division-III filed an
affidavit on 09.01.2008. In the affidavit,
Shri G.K. Saxena stated that he was
employed
as
Junior
Engineer
from
20.09.1994 to 30.01.2006, Shri Pramod
stated on oath that he was employed from
07.03.2005 to January 2006 and Shri S.K.
Saxena, Executive Engineer, stated that he
was
employed
from
28.06.2003
to
22.06.2007 in Vidyut Nagariya Vitaran
Khand-III, Madhyanchal Vidyut Vitaran
Nigam Ltd. Bareilly. During the period of
employment, neither any work was taken
from respondent No.4 nor was any payment
of
salary/wages
made
to
him.
The
Department also filed various documents
such as Notification dated 09.08.1995,
letter dated 03.07.1979, Notification dated
13.06.1992, office letter dated 08.11.1990
etc. to demonstrate that the alleged
appointment claimed by the workman was
not permissible as not only the Department
was created much much subsequent in
point of time but also such alleged
appointment was contrary to law.

6. The workman examined himself
and in his statement dated 14.12.2011, he
stated that he was appointed as a daily
wager on the post of Sub Station Operator
and during the period of strike, he
continued to work. He referred to various
346 INDIAN LAW REPORTS ALLAHABAD SERIES
documents
to
establish
that
certain
certificates were issued regarding his
working and also attendance register on
which his signatures were there. He also
stated that after termination of his services,
he was unemployed and used to get work
from contractors from time to time. The
workman was cross-examined by the
Department and stated about intermittent
payments made to him by the Officials of
the Department.

7. Insofar as the Officials of the
Department are concerned, they were
cross-examined by the workman, however,
during the cross-examination, consistent
stand of the Officials was that the workman
was never paid any salary etc. by any of the
Officials; that the workman was never
appointed as daily wager; that any
appointment is made only after following
due selection process; that no one was
employed on Muster Roll or daily wage
basis in the concerned Sub Station. These
Officials also denied their signatures on the
documents which were relied upon by the
respondent-workman. The Department laid
much emphasis on an Office Memorandum
No.1989-C/SEB-I-10A/79
dated
03.07.1979 issued by the U.P. State
Electricity Board Shakti Bhawan 14, Ashok
Marg, Lucknow by laying much emphasis
on the following portion of the said
Memorandum:-

"Board had issued orders vide
B.O. No.147-G/SEB-I-10A/1979 that no
engagement on Muster Roll or Daily rated
basis
in
the
categories
of
Coolies
/Mazdoors/Beldars/Chowkidars/Skilled
Coollies/
SSOs/
Linemen/
Electrician/
Dutymen/ Wiremen/ Meter Readers etc.
would hence forth be made for the
operation and maintenance of generation,
transmission and distribution works from
the date of receipt of these orders on
February 1, 1979, whichever is earlier. "

8. Further reliance was placed on
another
Office
Memorandum
dated
11.06.1990 which reads as follows:-

"पररर्द िे अपिे आदेश सुं० 1989-जी/एसईवी/-
1-10ए/79 स्द० 3 जुलाई, 1979 द्वारा स्दिाुंक 1-8-79 से
मस्टररोल या दैनिक वेति पर कुली/मजदूरी/एस०एस०ओ०
आनद नकसी भी पद पर रखिे तथा कायय लेिे पर रोक लगा दी
थी।

इसके उपरान्ि भी इस कायाषलय के सुंज्ञाि में
आया है स्क कुछ लोग गलि िरीके से स्वभाग के अुंवर
अस्भयन्िाओुं/ सहायक अस्भयन्िा भी से मथटर रोल पर कायष
सुंबुंधी प्रमाण पत्र प्राप्त कर रहे हैं ििा न्यायालयों में ऐसे प्रमाण
पत्रों के आधार पर स्ववाद लगा रहे हैं। यह भी िथ्य प्रकाश में
आया है नक कुछ नवभागीय अवर अनभयन्ता भी इस प्रकार
के जाली प्रमाण पत्रों के निगयत कर रहे हैं। पूवष में भी इस
कायाषलय के पत्राुंक 42-मुिेअब/ स्द० 10.1.90 द्वारा क्षेत्र के
समथि अस्धकाररयों के ऐसे प्रकरणों की प्रािस्मकिा के आधार
पर जाुंच कर दोर्ी अवर अस्भयन्िाओुं/ अस्धकाररयों के स्वरूद्ध
कायषवाही हेिु स्लखा गया िा। अिः यह थपष्ट स्कया जािा है स्क
पररर्द िीस्ि के अन्िगषि सेवा सुंबुंधी स्कसी भी प्रकरण पर
अस्धशासी अस्भयन्िा थिर से िीस्ि के स्कसी भी अस्धकारी/
कमषचारी की नकसी भी प्रकार के प्रमाण पत्र निगयत करिे का
अनिकार िहीं है।

अिः अवर अस्भयन्िा/ सहायक अस्भयन्िा
उपरोक्त प्रकार के ििा सेवा सुंबुंधी अन्य स्कसी भी प्रकार के
प्रमाण पत्र स्िगषि करिे के अस्धकारी िहीं है और यस्द उिके द्वारा
इस सुंबुंध में अभी िक कोई प्रमाण पत्र स्िगषि स्कये गये है िो
उन्हे जाली प्रमाण पत्रों की श्रेणी में रखकर अवैि मािा
जाये। यह भी अपेक्षा की जािी है स्क उिके समथि अस्धशासी
अस्भयुंिा, अस्धक्षण अस्भयन्िा इस सुंबुंध में अपिे अधीिथि
खुंडो/ मुंडलों के सुंदभष में व्यस्क्तगि रूस्च लेकर जाुंच कर वाुंस्छि
स्वभागीय कायषवाही आरम्भ करिे ििा पररर्द को इस प्रकार से
हो रही स्वत्तीय हास्ि को रोकिे के स्लए सभी सुंभव प्रयास
करेंगे।"
5 All. Madhyanchal Vidyut Vitaran Nigam Ltd. Vs. State of U.P. & Ors.
347

9. Placing reliance upon aforesaid,
it was contended that the entire story
cooked up by the workman regarding his
appointment
was
contrary
to
the
Departmental Circulars and, therefore,
the question framed in the adjudication
case be decided against the workman.

10. The matter was referred to the
Labour Court to answer the Reference as
to whether termination of services of the
respondent w.e.f. 21.03.2006 from the
post of Sub Station Operator was
appropriate and/or lawful, if not, what
benefit/relief the workman is entitled to.

11. The Labour Court, by impugned
award dated 19.10.2015 arrived at a
conclusion that the documents filed by
the workman could not be disputed and,
therefore, termination of his services
was contrary to the provisions of the
Act-1947, particularly, Section 6-N of
the Act and, therefore, the workman was
directed to be reinstated with continuity
in his past services, 40 % salary for the
unserved period and full salary w.e.f the
date of award. Cost of Rs.1500/- was
also awarded.

12. The contention of learned counsel
for the petitioner is to the effect that since
appointments in the Department are made
after holding rigorous selection process as
per the Service Regulations (referred to
hereinabove), the respondent no.4 could not
claim any relief as no letter of appointment
was ever issued to him, he was neither
appointed nor paid any remuneration and
that since the Department itself was created
in the year 1991 there was no question of
appointing the respondent in the year 1986.
It was also argued that even if the
contention of the workman was accepted,
his status was, even as per his own case,
that of a "daily wager" which did not fall
within the definition and parameters of
"workman" and, therefore, the award is
illegal. It was further argued that even by
looking to the evidence led by the
workman, following is the position with
regard to his working; particularly as per
document
W-19
which
is
alleged
Attendance Register.

Exbt. Date
Period
of
Employment
No
proof
of
employment
8
26.07.86
11.07.86
to
22.07.86
23.07.86
to
09.11.87 (for one
year)

12.07.88
 10.11.87
to
02.12.87

03.12.87
to
05.02.92 (for 4
years 3 months)
6

06.02.92
to
29.02.92
01.03.92
to
14.07.05 (for 13
years)
service
break
1

15.07.05
to
04.09.05

Finding of conti.
Employment
11.7.86
to
20.3.06. perverse
2

05.09.05
to
16.11.05
Documents
are
forged
yet
it
appears that he
hardly
worked
15.07.05
to
20.03.06
(8
months
only).
Without
completing
240
days 6-N does not
apply.
Not
entitled to any
relief.

3

17.11.05
to
20.01.06
4

21.01.06
to
20.03.06
348 INDIAN LAW REPORTS ALLAHABAD SERIES

13. In the light of the aforesaid facts, it
was argued that the award directing
reinstatement with continuity in past
services alongwith arrears of salary is
thoroughly unsustainable and the findings
recorded by the Labour Court are perverse.
In support of his submissions, learned
counsel for the petitioner has placed
reliance upon judgments of Supreme Court
in the cases of Deputy Executive Engineer
v. Kuberbhai Kanjibhai reported in (2019)
4 SCC 307, State of Uttarakhand v. Raj
Kumar reported in 2019 SCC OnLine SC
16,
Assistant
Engineer,
Rajasthan
Development Corporation & Anr. v. Gitam
Singh reported in (2013) 5 SCC 136,
Range Forest Officer v. S.T. Hadimani
alongwith State of Kartnataka & Anr. v.
S.T. Hadimani reported in (2002) 3 SCC
25 and State of U.P. & Anr. v. Chhunna
Lal & Anr. reported in 2019 SCC OnLine
All 4262.

14. A counter affidavit has been filed
by respondent no.4 and the stand taken
therein is that the Department did not
produce any evidence contrary to the case
of the workman; that the contention of the
Department regarding Service Regulations
etc. or the case of State of Karnataka v.
Uma Devi reported in (2006) 4 SCC 1 was
unconcerned and unconcerned with the
disputes arising out of Act-1947. The
defense taken is that Labour Court has
rightly passed award on the basis of
material placed before it and, therefore, it
does not call for any interference. It is
further
pleaded
that
since
the
oral
termination was made in violation of the
provisions of Act-1947, there was no
illegality in awarding reinstatement with
backwages and past continuity in service.
In support of this submissions, learned
counsel for the respondent no.4 has placed
reliance upon following Authorities:-

(a). Civil Misc. Writ Petition
No.1110 of 1986 (U.P. State Electricity
Board & Anr. v. P.O. Labour Court,
Gorakhpur & Anr.);

(b). Gammon India Limited v.
Niranjan Dass reported in (1984) 1 SCC
509;

(c). Management of M/s. Willcox
Buck Well India Ltd. v. Jagannath & Ors.
reported in AIR 1974 Supreme Court
1166;

(d).
Bhagwati
Prasad
v.
Chandramaul reported in AIR 1966
Supreme Court 735;

(e). Ram Sarup Gupta (dead) by
L.Rs v. Bishun Narain Inter College &
Ors. reported in AIR 1987 Supreme Court
1242;

(f). Surendra Kumar Verma &
Ors. v. Central Government Industrial
Tribunal-cum-Labour Court, New Delhi
& Anr. reported in (1980) 4 SCC 443;

(g). Sudarshan Rajpoot v. Uttar
Pradesh State Road Tranport Corporation
reported in (2015) 2 SCC 317;

(h). Punjab Land Development
&
Reclamation
Corporation
Ltd.
Chandigarh v. Presiding Officer, Labour
Court, Chandigarh & Ors. alongwith
Divisional Controller, Maharashtra State
Road Transport Corporation, Amravati v.
Chandrashekhar Maribhau Deshmukh &
Anr. reported in (1990) 3 SCC 682;

(I).
U.P.
Drugs
&
Pharmaceuticals Co. Ltd. v. Ramanuj
5 All. Madhyanchal Vidyut Vitaran Nigam Ltd. Vs. State of U.P. & Ors.
349
Yadav & Ors. reported in (2003) 8 SCC
334;

(j). Devinder Singh v. Municipal
Council, Sanaur reported in (2011) 6 SCC
584;

(k). R.M. Yellatti v. Assistant
Executive Engineer reported in (2006) 1
SCC 106.

15. Now discussing the legal position
as referred to in the Authorities cited by the
petitioner-Department, the Supreme Court
in Deputy Executive Engineer (supra) has
held that, in case, the respondent worked as
"daily wager" hardly for few years,
reinstatement could not be an automatic
consequence. The Supreme Court relied
upon its judgement in the case of BSNL v.
Bhurumal reported in (2014) 7 SCC 177
with specific reference to paragraphs 33, 34
and 35 which are reproduced as under:-

"33. It is clear from the reading
of the aforesaid judgments that the ordinary
principle of grant of reinstatement with full
back wages, when the termination is found
to be illegal is not applied mechanically in
all cases. While that may be a position
where services of a regular/permanent
workman are terminated illegally and/or
mala fide and/or by way of victimisation,
unfair labour practice, etc. However, when
it comes to the case of termination of a
daily-wage
worker
and
where
the
termination is found illegal because of a
procedural defect, namely, in violation of
Section 25-F of the Industrial Disputes Act,
this Court is consistent in taking the view
that in such cases reinstatement with back
wages is not automatic and instead the
workman
should
be
given
monetary
compensation which will meet the ends of
justice. Rationale for shifting in this
direction is obvious.

34. The reasons for denying the relief
of reinstatement in such cases are obvious.
It is trite law that when the termination is
found to be illegal because of non- payment
of retrenchment compensation and notice
pay as mandatorily required under Section
25-F of the Industrial Disputes Act, even
after reinstatement, it is always open to the
management to terminate the services of
that
employee
by
paying
him
the
retrenchment compensation. Since such a
workman was working on daily-wage basis
and even after he is reinstated, he has no
right to seek regularisation [See State of
Karnataka v.Umadevi (2006) 4 SCC 1].
Thus when he cannot claim regularisation
and he has no right to continue even as a
dailywage worker, no useful purpose is
going to be served in reinstating such a
workman and he can be given monetary
compensation by the Court itself inasmuch
as if he is terminated again after
reinstatement, he would receive monetary
compensation
only
in
the
form
of
retrenchment compensation and notice
pay. In such a situation, giving the relief of
reinstatement, that too after a long gap,
would not serve any purpose.

35. We would, however, like to add a
caveat here. There may be cases where
termination of a daily-wage worker is
found to be illegal on the ground that it was
resorted to as unfair labour practice or in
violation of the principle of last-come-firstgo viz. while retrenching such a worker
daily wage juniors to him were retained.
There may also be a situation that persons
junior to him were regularised under some
policy
but
the
workman
concerned
terminated. In such circumstances, the
terminated worker should not be denied
reinstatement unless there are some other
350 INDIAN LAW REPORTS ALLAHABAD SERIES
weighty reasons for adopting the course of
grant
of
compensation
instead
of
reinstatement. In such cases, reinstatement
should be the rule and only in exceptional
cases for the reasons stated to be in
writing, such a relief can be denied."

16. The Supreme Court took similar
view in the case of State of Uttarkhand
(supra) by placing reliance upon the same
judgement of BSNL v. Bhurumal (supra).
In
the
case
of
Assistant
Engineer,
Rajasthan Development Corporation &
Anr. (supra), the Apex Court, after placing
reliance upon various Authorities on the
subject directed award of compensation of
Rs.50,000/- as sufficient to meet the ends
of justice in the light of the fact that daily
wager has worked for a very short period.
Learned counsel for the petitioner has laid
much emphasis on the judgement of
Supreme Court in the case of Range Forest
Officer (supra) and argued that mere filing
of an affidavit by the workman cannot be
regarded as sufficient evidence for any
court or tribunal to come to the conclusion
that he had worked for 240 days in a year.
In 'paragraph 3' of the said judgment, the
Supreme Court observed that no proof of
receipt of salary or wages for 240 days or
order
or
record
of
appointment
or
engagement for this period was produced
by the workman and on this ground, the
award was interfered with. The Supreme
Court in the case of State of U.P. & Anr. v.
Chunna
Lal
&
Anr.
(supra)
after
discussing the issue of reinstatement with
backwages, allowed the writ petition filed
by the State observing that the workman
had failed to discharge the burden to prove
his case of 240 days by leading cogent
evidence and award was found to be
unsustainable and was, accordingly, set
aside.

17. Further in the case of Assistant
Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division, Kota
Versus Mohan Lal reported in (2013) 14
SCC 543 in similar circumstances, a muster
roll
employee
in
a
government
establishment who had been found to have
worked for 286 days in twelve calendar
months period prior to his dis-engagement,
and in whose case the industrial dispute
was raised after six years, was found not
entitled to reinstatement but compensation
in lieu thereof, Rs. One lac only.

18. In Nagar Mahapalika vs. State of
U.P. and Ors. reported in (2006) 5 SCC
127, it was held by Supreme Court that non
compliance with the provisions of Section
6-N of the U.P. Industrial Disputes Act,
1947 (this provision is broadly pari materia
with Section 25-F), although, leads to the
grant of a relief of reinstatement with full
back wages and continuity of service in
favour of the workman, the same would not
mean that such relief is to be granted
automatically or as a matter of course. It
was emphasised that the Labour Court must
take into consideration the relevant facts
for exercise of its discretion in granting the
relief.

19. Supreme Court in Municipal
Council, Sujanpur vs. Surinder Kumar
reported in (2006) 5 SCC 173, reiterated
the above legal position. That was a case
where the Labour Court had granted
reinstatement in service with full back
wages to the workman as statutory
provisions were not followed. The award
was not interfered with by the High
Court.
However,
the
Court
granted
monetary
compensation
in
lieu
of
reinstatement.
5 All. Madhyanchal Vidyut Vitaran Nigam Ltd. Vs. State of U.P. & Ors.
351

20. In Haryana State Electronics
Development Corporation Ltd. v. Mamni
reported in (2006) 9 SCC 434 following
Nagar Mahapalika (supra), Supreme Court
held that the reinstatement granted to the
workman because there was violation of
Section 25F, was not justified and modified
the order of reinstatement by directing that
the workman shall be compensated by
payment of a sum of Rs.25,000/- instead of
the order of the reinstatement.

21. In Uttaranchal Forest Development
Corporation v. M.C. Joshi reported in (2007) 9
SCC 353, the services were terminated on
24.11.1991 in contravention of the provisions of
Section 6-N of the U.P. Industrial Disputes Act.
He had completed 240 days of continuous work
in a period of twelve months preceding the
order of termination. The workman approached
the Conciliation Officer on or about 02.09.1996,
i.e., after a period of about five years. The
Labour Court granted to the workman,
M.C.Joshi, relief of reinstatement with 50%
back wages. In the writ petition filed by the
Corporation, the direction of reinstatement was
maintained but back wages were reduced from
50% to 25%. The Supreme Court substituted
the award of reinstatement by compensation for
a sum of Rs.75,000/-.

22. In Ghaziabad Development Authority
and Another v. Ashok Kumar and Another
reported in (2008) 4 SCC 261, the Apex Court
was concerned with the question as to whether
the Labour Court was justified in awarding
relief of reinstatement in favour of the workman
who had worked as daily wager for two years.
His termination was held to be violative of U.P.
Industrial Disputes Act. The Supreme Court
held that the Labour Court should not have
directed reinstatement of the workman in
service
and
substituted
the
order
of
reinstatement by awarding compensation of
Rs.50,000/-

23. In Telecom District Manager v.
Keshab Deb, reported in (2008) 8 SCC 402,
the termination of the workman who was a
daily wager, was held illegal on diverse grounds
including violation of the provisions of Section
25-F. Supreme Court held that even in a case
where order of termination was illegal,
automatic direction for reinstatement with full
back wages was not contemplated. The Court
substituted the order of reinstatement by an
award of compensation of Rs.1,50,000/-.

24. In Jagbir Singh v. Haryana State
Agriculture Marketing Board reported in
(2009) 15 SCC 327, the workman had worked
from 01.09.1995 to 18.07.1996 as a daily wager
and was granted compensation of Rs.50,000/- in
lieu of reinstatement with back wages.

25. It is also necessary to refer to
subsequent three decisions of Supreme Court,
namely, Uttar Pradesh State Electricity Board
vs. Laxmi Kant Gupta reported in (2009) 16
SCC 562, Bharat Sanchar Nigam Limited vs.
Man Singh reported in (2012) 1 SCC 558 and
Senior Superintendent Telegraph (Traffic),
Bhopal vs. Santosh Kumar Seal and Others,
reported in (2010) 6 SCC 773, where the view
has been taken in line with the cases discussed
above. As a matter of fact in Santosh Kumar
Seal (supra), Apex Court awarded compensation
of Rs.40,000/-to each of the workmen who were
illegally retrenched as they were engaged as
daily wagers about 25 years back and worked
hardly for two or three years. It was held that the
relief of reinstatement cannot be said to be
justified
and
instead
granted
monetary
compensation.
352 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Further, The Supreme Court in
several authorities some of which are
mentioned below has held that if the only
defect in the termination order is non
payment of retrenchment compensation as
required by Section 25 F of Industrial
Dispute Act (or Section 6 N of U.P.I.D.
Act) then it is not always necessary to
direct reinstatement with full back wages
and that in such situation more often than
not proper relief may be to award
consolidated
damages/compensation
particularly
when
the
employer
is
Government or Governmental agency and
relevant rules have not been followed
before appointment.

- Nagar Mahapalika v. State of
U.P., AIR 2006 SC 2113

- Haryana State Electronics
Devpt Corpn v. Mamni, AIR 2006 SC 2427

- Sita Ram v. Moti Lal Nehru
Farmers Training Institute, AIR 2008 SC
1955

- Jagbir Singh Vs. Haryana
State Agriculture Marketing Board and
another, AIR 2009 SC 3004.

27.
In
Senior
Superintendent,
Telegraph (Traffic) Bhopal Vs. Santosh
Kumar Seal and others, reported in AIR
2010 SC 2140, it has been held that if daily
wagers had worked for 2 or 3 years and
their services were terminated without
payment of retrenchment compensation
then consolidated damages should be
awarded to them (Rs.40,000/- to each of the
workmen was awarded in the said case). It
has also been held that daily wager does
not hold a post and can not be equated with
permanent employee. This view has been
reiterated in Incharge Officer Vs. Shankar
Shetty reported in JT 2010(9) SC 262.

28. Now dealing with the Authorities
cited by the learned counsel for the
respondent-workman, the Supreme Court,
in the case of Surendra Kumar Verma
(supra), held that in case termination was
contrary to the provisions of Industrial
Law, reinstatement with backwages should
be ordered. In Sudarshan Rajpoot (supra),
the Apex Court held in paragraphs 23, 24
and 25 as follows:-

"23. Further, the reliance placed
upon the decision of this Court on Uma
Devi (supra) case by the High Court to
reverse the finding of fact recorded in the
award in favour of the workman in
answering the points of dispute in the
negative, is not tenable in law in view of
the judgment of this Court in Maharashtra
SRTC v. Casteribe Rajya Parivahan
Karmchari Sanghatana, (2009) 8 SCC
556, wherein, this Court after adverting to
Uma Devi's case (supra) at para 36, has
held that the said case

"does not denude the Industrial
and Labour Courts of their statutory power
under Section 30 read with Section 32 of
the MRTU and PULP Act to order
permanency of the workers who have been
victims of unfair labour practice on the
part of the employer under Item 6 of the
Schedule IV where the posts on which they
have been working exist."

Further, this Court held that

"36.....Uma Devi's case cannot
be held to have overridden the powers of
Industrial and Labour Courts in passing
appropriate order under Section 30 of the
5 All. Madhyanchal Vidyut Vitaran Nigam Ltd. Vs. State of U.P. & Ors.
353
MRTU and PULP Act, once unfair labour
practice on the part of the employer under
Item 6 of the Schedule IV is established."

24. We are of the opinion that the
view taken in Maharashtra State Road
Transport Corpn. & Anr.(supra) at para 36
after distinguishing Uma Devi's case is the
plausible view. Therefore, we have to hold
that the finding of the High Court in setting
aside the finding of fact recorded by the
Labour Court in its award by applying
Uma Devi case (supra) is wholly untenable
in law. Therefore, the same is set aside by
this Court.

25. This Court in the later
judgment in the case of Hari Nandan
Prasad v. Food Corporation of India:
(2014) 7 SCC 190, after adverting to the
law laid down in U.P. Power Corpn. Ltd. v.
Bijli Mazdoor Sangh (2007) 5 SCC 755
and Maharashtra State Road Transport
Corpn. & Anr. (supra) wherein Uma Devi's
case is adverted to in both the cases, held
that on a harmonious reading of the two
judgments, even when there are posts
available, in the absence of any unfair
labour practice the Labour Court cannot
give direction for regularisation only
because a worker has continued as dailywage worker/ad hoc/temporary worker for
number of years. Further, such a direction
cannot
be
given
when
the
worker
concerned does not meet the eligibility
requirement of the post in question as per
the recruitment rules."

29. By relying on the aforesaid
Authority, the submission of learned
counsel
for
the
respondent
is
that
whatsoever arguments were advanced by
the petitioner-Department regarding alleged
appointment in violation of the Service
Regulations and/or number of judgements
passed by the Supreme Court in the case of
State of Karnataka v. Uma Devi (supra),
are liable to be discarded as the case of
Uma Devi (supra) cannot be held to have
over-ridden the powers of the Industrial and
Labour Courts in passing appropriate
award.

30. The jugdment of Punjab Land
Development & Reclamation Corporation
Ltd. Chandigarh (supra) was on the point
of
elasticity
of
the
definition
of
retrenchment and it was held that
whatever words are used in the Statute, the
same have to be given their literal meaning
and any other interpretation would not be
according to law. The Apex Court in the
case of U.P. Drugs & Pharmaceuticals Co.
Ltd. (supra) held that after the workman
had worked for more than 240 days in
earlier years and even though during the
year of his retrenchment, he had not
worked for 240 days, he would be deemed
to be in continuous service and his
retrenchment would be violative of the
provisions of Industrial Law. The Supreme
Court's decision in the case of Devinder
Singh (supra) is on the point that even
daily wager cannot be discriminated while
considering their case under the Industrial
Law as the definition of workman means
any person including an apprentice
employed in any industry to do any
manual, un-skilled, skilled, technical,
operational, clerical or supervisory work
for hire or reward, whether the terms of
employment be expressed or implied and
includes any such person who has been
dismissed, discharged or retrenched in
connection with, or as a consequence of
the dispute. The Supreme Court held that
source of employment, the method of
recruitment, the terms and conditions of
employment/contract
of
service,
the
354 INDIAN LAW REPORTS ALLAHABAD SERIES
quantum of wages/pay and the mode of
payment are not at all relevant for deciding
as to whether or not a person is a workman
under the Act.

31.
In
R.M.
Yellati
(supra)
in
'paragraph 17', the Supreme Court held
that it is a burden upon employer to lead
evidence
regarding
services
of
the
workman as the workman can only call
upon the employer to produce before the
Court, nominal muster roll for the given
period, the letter of appointment or
terimination, if any, the wage register,
attendance register etc. Other judgments of
U.P. State Electricity Board & Anr.,
(supra), Gammon India Limited (supra)
and Management of M/s. Willcox Buck
Well India Ltd. (supra) are also on the
point that when termination is found to be
contrary to the provisions of Industrial Act,
relief of reinstatement of the workman with
continuity in services and backwages is just
and proper.

32.
Learned
counsel
for
the
respondent-workman has also vehemently
argued that the case of the petitioner is
contrary to the stand taken before the
Labour Court. It is argued that the
Department had alleged in the written
statement that the workman had never
worked prior to 21.03.2006 on any post,
however, the case was argued, as if, a daily
wager who had worked for certain period
of time, could not be reinstated with
backwages and continuity in service. It was
also argued that relief should be founded on
pleadings led by the parties and whenever
the question about lack of pleading is
raised, the Court should find out whether in
substance, the parties knew the case and the
issue upon which they went to trial. The
decisions of Supreme Court of Ram Sarup
Gupta (dead) by L.R.s (supra) and
Bhagwati Prasad (supra) are on the point
of pleadings and evidence of parties.

33. I have heard learned counsel for
the parties and perused the record. I find
that award of the Labour Court is based
upon the fact that the workman had
produced certain documents establishing
his work in the Organization and, in the
opinion
of
the
Labour
Court
the
Department could not rebut the same.
Certain certificates as well as attendance
register were considered by the Labour
Court to arrive at a conclusion that the
workman had been employed and worked
in the Organization. However, I find that
the Labour Court has not considered the
documents filed by the Department, i.e. to
say that mode and manner of appointing
persons, the ban put on appointments in
1979,
subsequent
creation
of
the
Department in 1991, affidavits filed by the
Officers stating that they had never taken
any work from the workman nor was any
payment made by them to the workman nor
did the Labour Court consider the crossexamination of the Officials whereby
signatures
on
the
Certificates
were
specifically denied by them. The Labour
Court further failed to appreciate that for
making an award for reinstatement and
backwages with continuity in services,
mere finding that oral termination was not
according to law would not ipso facto lead
to a conclusion that the workman should be
reinstated with backwages and continuity in
service. Neither there is any finding to the
effect that the workman was not gainfully
employed after 2006 nor did the Labour
Court examine the period for which the
workman allegedly rendered his services.
In fact, the award is simply based upon
5 All. Dr. Haider Ali Vs. Akhilesh Kumar Singh & Ors.
355
alleged non-rebuttal by the Department as
against the case set up by the workman,
although I find that the Department by
"tooth and nail" opposed the claim of the
workman by leading cogent evidence, both
oral and documentary, but the same has not
been given due consideration by the Labour
Court.

34. The question of gainful/nongainful
employment/engagement
is
considered
in
his
statement
dated
14.12.2011
wherein
the
respondentworkman took contradictory stand that is to
say that, on one hand, he stated that after
termination of his services, he was
unemployed, on the other hand, in the same
line, he stated that whenever he got work
from the contractors, he used to perform
the same and, therefore, it is not a case
where
workman
was
thoroughly
unemployed and, hence, on this score, the
relief of reinstatement with backwages or
continuity
in
service
would
not
be
appropriate.

35. In the facts and circumstances of
the case, a consolidated and lump sum
amount of compensation could have served
the purpose to console the respondent,
inasmuch as, in the counter affidavit filed
in the year 2016, the age of the respondent
no.4 was described as 53 years and,
therefore, as of now, he must have attained
the age of superannuation and in view of
the same, it would not be just and proper
for this Court to direct for reinstatement as
reinstatement after attaining the age of
superannuation would not be in accordance
with law. For this reason also, impugned
award requires modification in terms of
granting just and proper compensation.

36. In view of the above facts and
considering
the
ratio
of
aforesaid
authorities cited at the Bar, the writ petition
is allowed in-part.