# State of U.P. & Ors v. Raj Karan & Anr

- **Citation:** (2015) 3 ILRA 1215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-01
- **Case number:** Writ-C No. 6108 of 2004
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-raj-karan-anr-43376
- **Pages:** 7

## Headnote

S.K. Srivastava, Amit Yadav, Anil Yadav,
S.C.,
S.K.
Chaubey,
Shyam
Narain,
Sudhanshu Narain
U.P. Industrial Dispute Act-1947-Section-6N- Retirement of Daily wagers-working for
last 11 years-retaining juniors-termination
without retrenchment compensation-or one
month salary in lieu thereof-held-illegaldirection of reinstatement with 50% back
wages-proper-warrant no interference by
Writ Court.
Held: Para-18
The
respondent
was
removed
from
service
unceremoniously
by
the
employer without any valid or cogent
reason despite the workman having put
in eleven years of service. The conduct of
the petitioner-employer tantamounts to
unfair labour practice as provided under
the VIth schedule to the Industrial
Disputes Act, by employing the workmen
as temporaries and to continue them for
such years with the object of depriving
them of the status and privileges of
permanent workmen.
Case Law discussed:
1990 (83) FLR 497; [2000 (86) FLR 649];
[2013 (139) FLR 541]; (1979) 2 SCC 80;
(2007) 2 SCC 433; (2014) 7 SCC 177; (2007) 5
SCC 755; (2006) 4 SCC 1; (2009) 8 SCC 556;
(2014) 7 SCC 190; [2005] 5 SCC 591; (2014)
11 SCC 85.

## Text

3 All] State of U.P. & Ors. Vs. Raj Karan & Anr.
1215
orders
of
tribunal
is
not
correct.
Accordingly, the petitioner is permitted to
convert this petition into that under
Article 226 of the Constitution, as it was
originally drafted.
9.
The office is directed to treat the
petition, as one under Article 226 and to
place it before the appropriate court hearing
such matters, after registering as a petition
under Article 226 of the Constitution, if
possible as fresh case on 29.9.2015.
10. This order be placed before the
Stamp Reporter, for its guidance in
matters coming to it for reporting.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2015
BEFORE
THE HON'BLE SUNEET KUMAR , J.
Writ-C No. 6108 of 2004
State of U.P. & Ors.
 ...Petitioners
Versus
Raj Karan & Anr.
...Respondents
Counsel for the Petitioner:
S.C.
Counsel for the Respondents:
S.K. Srivastava, Amit Yadav, Anil Yadav,
S.C.,
S.K.
Chaubey,
Shyam
Narain,
Sudhanshu Narain
U.P. Industrial Dispute Act-1947-Section-6N- Retirement of Daily wagers-working for
last 11 years-retaining juniors-termination
without retrenchment compensation-or one
month salary in lieu thereof-held-illegaldirection of reinstatement with 50% back
wages-proper-warrant no interference by
Writ Court.
Held: Para-18
The
respondent
was
removed
from
service
unceremoniously
by
the
employer without any valid or cogent
reason despite the workman having put
in eleven years of service. The conduct of
the petitioner-employer tantamounts to
unfair labour practice as provided under
the VIth schedule to the Industrial
Disputes Act, by employing the workmen
as temporaries and to continue them for
such years with the object of depriving
them of the status and privileges of
permanent workmen.
Case Law discussed:
1990 (83) FLR 497; [2000 (86) FLR 649];
[2013 (139) FLR 541]; (1979) 2 SCC 80;
(2007) 2 SCC 433; (2014) 7 SCC 177; (2007) 5
SCC 755; (2006) 4 SCC 1; (2009) 8 SCC 556;
(2014) 7 SCC 190; [2005] 5 SCC 591; (2014)
11 SCC 85.
(Delivered by Hon'ble Suneet Kumar, J.)
1. The petitioner/employer is assailing
the award dated 05 March 2003 published on
15 October 2003 in Adjudication Case No.
528 of 1992 passed by Labour Court,
Gorakhpur. State Government on 27 August
1992 referred the following dispute:
"Whether the termination of service
of the workman Shri Raj Karan by its
employer w.e.f. 01.12.1991 is legal and
justified? If not, the relief workman is
entitled to get?"
2. The case of the respondent/workman
is that he was engaged as Beldar by the
Irrigation Department of the State since 1980,
worked for more than 240 days in a calander
year but without notice or retrenchment
compensation,
was
terminated
by
the
employer on 01 December 1991.
3. The petitioner in their objection/written
statement denied the allegations contenting that
the respondent/workman was engaged on
1216
 INDIAN LAW REPORTS ALLAHABAD SERIES
dailywage basis for intermittent period on
availability of work and funds. The
respondent never worked for more than 240
days in a year. The Labour Court held that
the workman had put in 240 days in a year,
the provisions of 6N of the U.P. Industrial
Disputes Act, 1947 was not complied,
accordingly ordered reinstatement of the
respondent/workman with 50% backwages
with continuity of service.
4.
Contention of learned counsel for
the petitioner is that it is admitted that the
respondent/workman was a dailywager, was
engaged intermittently, accordingly the
Labour
Court
erred
in
awarding
reinstatement with 50% backwages, further
the Irrigation Department not being an
'industry' within the meaning of the Act, the
Labour Court would have no jurisdiction.
5.

The
Labour
Court
upon
considering the muster roll, extracts of the
muster roll register, the statement of
witness
(EW-1),
the
seniority
list
furnished by the workman concluded that
the workman worked for more than 240
days. Admittedly, the provisions of the
Act were not followed, retrenchment
compensation or salary in lieu of notice
was not paid to the workman, therefore, in
my opinion there is no perversity in the
finding recorded by the Labour Court that
the workman was removed without
complying the provision of law.
6. This Court in State of U.P. Versus
Presiding Officer, Industrial Tribunal (V),
Meerut and another1, held Irrigation
Department to be an industry within the
meaning of the Act which was followed
subsequently in State of U.P. State Versus
Labour Court, Dehradun and another2, I
am, therefore not inclined to take a
different view.
7. The only question for determination
is as to whether the Labour Court erred in
directing reinstatement of the workman
with 50% backwages.
8. The Supreme Court in Deepali
Gundu Surwase Versus Kranti Junior
Adhyapak and others3, considered cases
on the subject of reinstatement and culled
out the propositions to be followed while
considering the cases where reinstatement
with continuity of service and back wages
can be ordered:
"33. The propositions which can be
culled out from the aforementioned
judgments are:
i) In cases of wrongful termination of
service, reinstatement with continuity of
service and back wages is the normal rule.
ii) The aforesaid rule is subject to the
rider that while deciding the issue of back
wages, the adjudicating authority or the
Court may take into consideration the
length
of
service
of
the
employee/workman,
the
nature
of
misconduct, if any, found proved against
the employee/workman, the financial
condition of the employer and similar
other factors.
iii) Ordinarily, an employee or
workman whose services are terminated
and who is desirous of getting back wages
is required to either plead or at least make
a statement before the adjudicating
authority or the Court of first instance that
he/she was not gainfully employed or was
employed onlesser wages. If the employer
wants to avoid payment of full back
wages, then it has to plead and also lead
cogent evidence to prove that the
employee/workman
was
gainfully
employed and was getting wages equal to
the wages he/she was drawing prior to the
termination of service. This is so because
3 All] State of U.P. & Ors. Vs. Raj Karan & Anr.
1217
it is settled law that the burden of proof of
the existence of a particular fact lies on
the person who makes a positive
averments about its existence. It is always
easier to prove a positive fact than to
prove a negative fact. Therefore, once the
employee
shows
that
he
was
not
employed, the onus lies on the employer
to specifically plead and prove that the
employee was gainfully employed and
was getting the same or substantially
similar emoluments.
iv) The cases in which the Labour
Court/Industrial Tribunal exercises power
under Section 11-A of the Industrial
Disputes Act, 1947 and finds that even
though the enquiry held against the
employee/workman is consistent with the
rules of natural justice and / or certified
standing orders, if any, but holds that the
punishment was disproportionate to the
misconduct found proved, then it will
have the discretion not to award full back
wages.
However,
if
the
Labour
Court/Industrial Tribunal finds that the
employee or workman is not at all guilty
of any misconduct or that the employer
had foisted a false charge, then there will
be ample justification for award of full
back wages.
v) The cases in which the competent
Court or Tribunal finds that the employer
has acted in gross violation of the
statutory provisions and/or the principles
of natural justice or is guilty of
victimizing the employee or workman,
then the concerned Court or Tribunal will
be fully justified in directing payment of
full back wages. In such cases, the
superior Courts should not exercise power
under Article 226
or 136 of the
Constitution and interfere with the award
passed by the Labour Court, etc., merely
because there is a possibility of forming a
different opinion on the entitlement of the
employee/workman to get full back wages
or the employer's obligation to pay the
same. The Courts must always be kept in
view that in the cases of wrongful / illegal
termination of service, the wrongdoer is
the
employer
and
sufferer
is
the
employee/workman and there is no
justification to give premium to the
employer of his wrongdoings by relieving
him of the burden to pay to the
employee/workman his dues in the form
of full back wages.
vi) In a number of cases, the superior
Courts have interfered with the award of
the primary adjudicatory authority on the
premise that finalization of litigation has
taken long time ignoring that in majority
of cases the parties are not responsible for
such delays. Lack of infrastructure and
manpower is the principal cause for delay
in the disposal of cases. For this the
litigants cannot be blamed or penalised. It
would amount to grave injustice to an
employee or workman if he is denied
back wages simply because there is long
lapse of time between the termination of
his service and finality given to the order
of reinstatement. The Courts should bear
in mind that in most of these cases, the
employer is in an advantageous position
vis-à-vis the employee or workman. He
can avail the services of best legal brain
for prolonging the agony of the sufferer,
i.e., the employee or workman, who can
ill afford the luxury of spending money
on a lawyer with certain amount of fame.
Therefore, in such cases it would be
prudent to adopt the course suggested in
Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works
Private Limited4.
vii) The observation made in J.K.
Synthetics Ltd. v. K.P. Agrawal5 (supra)
that
on
reinstatement
the
employee/workman
cannot
claim
1218
 INDIAN LAW REPORTS ALLAHABAD SERIES
continuity of service as of right is
contrary to the ratio of the judgments of
three
Judge
Benches
referred
to
hereinabove and cannot be treated as good
law. This part of the judgment is also
against the very concept of reinstatement
of an employee/workman."
9. The Supreme Court in B.S.N.L.
Versus Bhurumal6, held 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
malafide
and/or by way of victimization, 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 procedural
defect, namely in violation of Section 25F of the Industrial Disputes Act, the Court
is consistent in taking the view 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. (para 34 & 35)
"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 regularization (See:
State of Karnataka Versus Umadevi (3).
Thus when he cannot claim regularization
and he has no right to continue even as a
daily wage 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 it was
resorted to as unfair labour practice or in
violation of the principle of last come first
go viz. while retrenching such a worker
daily wage juniors to him were retained.
There may also be a situation that persons
junior to him wee regularized under some
policy but the concerned
workman
terminated. In such circumstances, the
terminated worker should not be denied
reinstatement unless there are some other
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."
10. The Supreme Court in U.P.
Power Corporation Ltd. Versus Bijli
Mazdoor Sangh7, applied the principles
of the Constitution Bench judgment in
State of Karnataka Versus Umadevi (3)8
by observing that the question as regards
the effect of the industrial adjudicators'
3 All] State of U.P. & Ors. Vs. Raj Karan & Anr.
1219
powers was not directly in issue in
Umadevi case. But the foundation logic in
Umadevi case is based on Article 14 of
the Constitution of India. Though the
industrial adjudicator can vary the terms
of the contract of the employment, it
cannot do something which is violative of
Article 14. If the case is one which is
covered by the concept of regularization,
the same cannot be viewed differently.
Therefore, the Court held that since the
workman never worked as a pump
operator, but was engaged as daily wage
basis, who did not possess the requisite
qualification. Looked at from any angle,
the direction for regularization, as given,
could not have been given in view of what
has been stated in Umadevi case.
11. Supreme Court in Maharashtra
SRTC Versus Casteribe Rajya Parivahan
Karmchari
Sanghatana9,
held
that
Umadevi 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
Schedule IV where the posts on which
they have been working exist. Umadevi
cannot be held to have overridden the
powers of the Industrial and Labour
Courts in passing appropriate order under
Section 30 of the MRTU and PULP Act,
once unfair labour practice on the part of
the employer under Item 6 of Schedule IV
is established.
12. The legal position is enshrined in
paragraph 41 which reads as follows:-
"41. Thus, there is no doubt that
creation of posts is not within the domain
of judicial functions which obviously
pertains to the executive. It is also true
that the status of permanency cannot be
granted by the Court where no such posts
exist and that executive functions and
powers with regard to the creation of
posts cannot be arrogated by the courts."
13. Supreme Court in Hari Nandan
Prasad Versus Food Corporation of
India10,
upon
considering
the
aforementioned judgments as to whether
the principles enshrined in Umadevi (3)
case is applicable observed as follows:-
"34. A close scrutiny of the two
cases, thus, would reveal that the law laid
down in those cases is not contradictory
to each other. In U.P. Power Corporation,
this Court has recognized the powers of
the Labour Court and at the same time
emphasized that the Labour Court is to
keep in mind that there should not be any
direction of regularization if this offends
the provisions of Article 14 of the
Constitution, on which judgment in
Umadevi is primarily founded. On the
other hand, in Bhonde case, the Court has
recognized the principle that having
regard to statutory powers conferred upon
the Labour Court/Industrial Court to grant
certain reliefs to the workmen, which
includes the relief of giving the status of
permanency to the contract employees,
such statutory power does not get
denuded by the judgment in Umadevi's
case. It is clear from the reading of this
judgment that such a power is to be
exercised
when
the
employer
has
indulged in unfair labour practice by not
filling up the permanent post even when
available and continuing to workers on
temporary/daily wage basis and taking the
same work from them and making them
some purpose which were performed by
the regular workers but paying them much
1220
 INDIAN LAW REPORTS ALLAHABAD SERIES
less wages. It is only when a particular
practice is found to be unfair labour
practice as enumerated in Schedule IV of
MRTP and PULP Act and it necessitates
giving direction under Section 30 of the
said Act, that the Court would give such a
direction."
14. The Court in Hari Nandan Prasad
case (supra) observed that keeping in mind
that industrial disputes are settled by
industrial adjudicator on principles of fair
play and justice concluded as follows:-
"39. On harmonious reading of the two
judgments discussed in detail above, we are
of the opinion that when there are posts
available, in the absence of any unfair labour
practice the Labour Court would not give
direction for regularization only because a
worker has continued as daily wage
worker/adhoc/temporary worker for number
of years. Further, if there are no posts
available, such a direction for regularization
would be impermissible. In the aforesaid
circumstances
giving
of
direction
to
regularize such a person, only on the basis of
number of years put in by such a worker as
daily wager etc. may amount to backdoor
entry into the service which is an anathema
to Art. 14 of the Constitution. Further, such a
direction would not be given when the
concerned worker does not meet the
eligibility requirement of the post in question
as per the Recruitment Rules. However,
wherever it is found that similarly situated
workmen are regularized by the employer
itself under some scheme or otherwise and
the workmen in question who have
approached Industrial/Labour Court are at
par with them, direction of regularization in
such cases may be legally justified,
otherwise, non-regularization of the left over
workers itself would amount to invidious
discrimination qua them in such cases and
would be violative of Art. 14 of the
Constitution. Thus, the Industrial adjudicator
would be achieving the equality by upholding
Art. 14, rather than violating this constitutional
provision.
40. The aforesaid examples are only
illustrative. It would depend on the facts
of each case as to whether order of
regularization is necessitated to advance
justice or it has to be denied if giving of
such a direction infringes upon the
employer's rights"
15. A three-Judge Bench of the
Supreme Court in Haryana Roadways
Versus Rudhan Singh11, considered the
question whether back wages should be
awarded to the workman in each and
every case of illegal retrenchment.
"8. There is no rule of thumb that in
every case where the Industrial Tribunal
gives a finding that the termination of service
was in violation of Section 25-F of the Act,
entire back wages should be awarded. A host
of factors like the manner and method of
selection and appointment i.e. whether after
proper advertisement of the vacancy or
inviting applications from the employment
exchange, nature of appointment, namely,
whether ad hoc, short term, daily wage,
temporary or permanent in character, any
special qualification required for the job and
the like should be weighed and balanced in
taking a decision regarding award of back
wages. One of the important factors, which
has to be taken into consideration, is the
length of service, which the workman had
rendered with the employer. If the workman
has rendered a considerable period of service
and his services are wrongfully terminated,
he may be awarded full or partial back wages
keeping in view the fact that at his age and
the qualification possessed by him he may
3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr.
1221
not be in a position to get
another
employment. However, where the total
length of service rendered by a workman is
very small, the award of back wages for the
complete period i.e. from the date of
termination till the date of the award, which
our experience shows is often quite large,
would be wholly inappropriate. Another
important factor, which requires to be taken
into
consideration
is
the
nature
of
employment. A regular service of permanent
character cannot be compared to short or
intermittent daily- wage employment though
it may be for 240 days in a calendar year."
16.
The Supreme Court in Bhuvnesh
Kumar Dwivedi Versus Hindalco Industries
Ltd.12, on the facts of that case, the Court
held that the workman was subjected to
victimization, therefore, the award passed by
the Labour Court reinstating with backwages
was justified. The judgment and order of the
High Court granting compensation was
reversed.
17. Applying the law on the facts of
the present case, the workman in the
written statement had clearly stated that he
was engaged in 1980 as Beldar against
permanent vacancy, had continuously
worked till 1 December 1991. Thereupon,
service was terminated by the employer
without complying the terms contemplated
under Section 6-N of the Act. It was
further pleaded that the juniors to the
respondent-workman
are
continuing,
despite there being work, respondent was
removed on the directions of the higher
officials, the workman was not gainfully
employed after removal, is prepared to
render any service under the petitioner
department.
18. In support, petitioner filed the
seniority
list,
document
dated
15
September 1990 regarding payment of
bonus for 1987-88. Seniority list would
show that the daily wagers employed until
1989 have continued in service. Therefore,
the undisputed facts that emerges is that the
respondent was appointed in 1980, the
employer was taking regular work from the
respondent, it is not the case of the
petitioner that they did not require the
service of dailywage employees on regular
basis, persons junior to the respondent were
continued in service. The respondent was
removed from service unceremoniously by
the employer without any valid or cogent
reason despite the workman having put in
eleven years of service. The conduct of the
petitioner-employer tantamounts to unfair
labour practice as provided under the VIth
schedule to the Industrial Disputes Act, by
employing the workmen as temporaries and
to continue them for such years with the
object of depriving them of the status and
privileges of permanent workmen.
19. In the result, the writ petition
fails and is accordingly dismissed.
20. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.10.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Misc. Bench No. 7716 of 2015
Zila Panchayat Balrampur
 ...Petitioner
Versus
Commissioner Devi Patan Division & Anr.
...Respondents
Counsel for the Petitioner:
Mohd. Aslam Khan, Atul Kumar Singh,
Ripu Daman Shahi