# State of U.P. & Ors v. Shri Brahma Dev Tripathi & Anr

- **Citation:** (2020) 1 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-06
- **Case number:** Writ C No. 6109 of 2004
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-shri-brahma-dev-tripathi-anr-45309
- **Pages:** 21

## Headnote

Industrial Dispute Act, 1947 - Workman
were engaged as Beldar-worked regularly
and without break-240 days of service
during successive calendar year-service
terminated without notice or payment of
wages in lieu of notice-without payment
of
retrenchment
compensationtermination illegal-in violation of section
6 N-entitled to re-engagement with back
wages-no infirmity in order of Labour
Court.

Writ Petition dismissed. (E-9)

Cases cited: -

## Text

_Characters 0–39,951 of 71,785. This is a partial read: ask again with offset=39951 for what follows._

1 All. Upper Ganges Sugar & Industries Ltd. Bijnor Vs. State of U.P. & Ors.
999
उपकृत है, न की अन्याय को क़ानूनी रूप देने
का
बलए।
(ईशा
भट्टाचारजी
बनाम
रघुनाथपुर नािर अकादमी; (2013) 12
एस सी सी 649: पैरा : 21 (21.1))

(iv). उपरोक्त बववेचना के आधार
पर यह न्यायालय इस बनष्कर्ष पर पहुाँचता है बक
आक्षेबपत आदेश बदनाोंक 29.12.2016 में गुण
दोर् पर कोई बवबधक त्रुबट नहीों है। अतः
आक्षेबपत आदेश न्याय सोंगत है।

(v).
अतः
यालचका
संख्या
5712/2017 भी बििीन िोने के कारण
लनरस्त
की
जाती
िै।

11. यालचका सं 58295/2016 तथा
यालचका सं 5712/2017 बििीन िोने के
कारण लनरस्त की जाती िै। व्यय पर कोई
आदेश पाररत निीं लकया जा रिा िै।
----------
(2020)1ILR999

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ C No. 6109 of 2004

State of U.P. & Ors. ...Petitioners
Versus
Shri Brahma Dev Tripathi & Anr.
 ...Respondents

Counsel for the Petitioners:
S.C.

Counsel for the Respondents:
S.C. Sri Anil Yadav, Sri Shyam Narain, Sri
Sudhanshu Narain

Industrial Dispute Act, 1947 - Workman
were engaged as Beldar-worked regularly
and without break-240 days of service
during successive calendar year-service
terminated without notice or payment of
wages in lieu of notice-without payment
of
retrenchment
compensationtermination illegal-in violation of section
6 N-entitled to re-engagement with back
wages-no infirmity in order of Labour
Court.

Writ Petition dismissed. (E-9)

Cases cited: -

1. State of U.P. through Executive Engineer vs. Raj
Karan and another -writ petition No. 6108 of 2004

2. State of U.P. vs. Presiding Officer, Industrial
Tribunal (V), Meerut and another, 1990 (83)
FLR 497
3. State of U.P vs. Labour Court, Dehradun and
another, [2000(86) FLR 649]

4. Banglore Water Supply Sewerage Board vs.
A. Rajappa, AIR 1978 SC 548

5. State of U.P. vs. Jai Bir Singh, 2005 (5) SCC 1

6.
R.M.
Yellatti
vs.
Assistant
Executive
Engineer,2006(1) SCC 106

7. State of U.P. through Executive Engineer,
Nichali Ganga Nahar, Phoolpur, Kanpur vs. the
Labour Court (II) U.P. Kanpur and another in
Writ Petition No. 35086 of 1998

8. State of U.P. and another Vs. Hind Majdoor
Sabha and others, (2011) 3 UPLBEC 2568

9.
ViceChancellor,
Lucknow
University,
Lucknow, Uttar Pradesh Vs. Akhilesh Kumar
Khare and another, (2016) 1 SCC 521

10. District Development Officer and another
Vs. Satish Kantilal Amreliya, 2018(12) SCC 298

11. Devinder Singh Vs. Municipal Council,
Sanaur, (2011) 6 SCC 584

12. Deepali Gundu Surwase Vs. Kranti Junior
Adhyapak and others, 2013(139) FLR 541

13. U.P. Power Corpration Ltd. vs. Bijli Mazdor
Sangh, (2007) 5 SCC 755
1000 INDIAN LAW REPORTS ALLAHABAD SERIES

14.
Maharashtra
State
Road
Transport
Corporation Vs. Casteribe Rajya Parivahan
Karmchari Sanghatana, 2009 (8) SCC 556

15. State of Karanataka Vs. Uma Devi, (3)
2006(4) SCC 1

16. B.S.N.L. Vs. Bhurumal, 2014 (7) SCC 177

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an award made by the Presiding
Officer, Labour Court, U.P., Gorakhpur,
dated 05.03.2003 in Adjudication Case
No. 532 of 1992 and published on
08.09.2003.
The
aforesaid
award
is
hereinafter referred to as the ''impugned
award'. By the impugned award, the
Labour Court, on reference of an industrial
dispute between the petitioners, hereinafter
referred to as the ''employers' and
respondent no. 1, Brahma Dev Tripathi,
hereinafter referred to as the ''workman',
have held termination of services of the
workman with effect from 01.09.1991 to
be illegal and unjustified. It has further
been awarded that the workman would be
entitled to reinstatement with continuity in
service. About the period during which the
workman remained out of employment
and the date of the impugned award, the
workman has been held entitled to 50%
backwages. Costs of Rs. 300/- have also
been awarded to the workman.

2. The case of the workman briefly
put is that he was engaged as a Beldar in
the year 1979, by the employers in their
Tubewell
Construction
Division.
He
worked as such regularly and without
break, putting in 240 days of service
during successive calendar years. His
services were terminated with effect from
01.09.1991, without notice or payment of
wages in lieu of notice and also without
payment
of
any
retrenchment
compensation. He urged, therefore, that his
termination from service by the employers
is illegal and improper. He is entitled to reengagement with backwages.

3. At the instance of the workman,
the
Deputy
Labour
Commissioner,
Gorakhpur,
vide
his
memo
dated
31.08.1992 made the following reference
under Section 4-K of the U.P. Industrial
Disputes Act, 1947 (for short the ''Act') for
adjudication
to
the
Labour
Court
(translated
into
English
from
Hindi
vernacular):-

"Whether
the
act
of
the
employers in terminating the services of
their workman, Sri Brahma Dev Tripathi
S/o Radhey Shyam Tripathi, Beldar with
effect from 01.09.1991 is justified, and/or
lawful? If not, to what relief/compensation
the workman is entitled, and in what
terms?"

4. Records from the lower Court, in
this case, were summoned that have been
perused with the assistance of learned
counsel.

5. Post reference the case was
registered before the Labour Court as
Adjudication Case No. 532 of 1992 and
notice was issued to the parties. The
workman filed his written statement, dated
17.03.1993 supported by an affidavit of
the said date. A written statement was filed
on behalf of the employers (also supported
by an affidavit of a supervisor in their
establishment)
dated
29.09.1993.
A
rejoinder statement was filed on behalf of
the workman (supported by an affidavit of
his own) dated 18.01.1994. A rejoinder
statement in answer to the written
statement filed by the workman (supported
1 All. State of U.P. & Ors. Vs. Shri Brahma Dev Tripathi & Anr.
1001
by an affidavit of a supervisor in their
establishment) dated 19.09.1997 was filed.
These make for all the pleadings that the
parties filed before the Labour Court. In
order to establish his case, the workman
filed the best evidence available with him,
secondary of course, in order to establish
his case of being in engagement of the
employers as their workman for the
claimed period of time, and for the
specified number of days, during each
calendar year. In all, five documents (all
photostat copies) were filed through a list
dated 26.11.1997, bearing paper no. 15/B-
(ii). A summary of these documents is as
follows:

(I) A photostat copy of an
application made after disengagement by
the workman (along with some others
similarly situate) demanding that the
workman be re-engaged.

(II)
A
photostat
copy
of
registered
postal
receipts
regarding
dispatch
of
the
application
above
mentioned to the employers.

(III) A photostat copy (in three
leaves) of a bonus payment bill drawn by
the employers dated 04.09.1990, whereby
a lump sum bonus for three years (198687, 1987-88 and 1988-89) was paid to the
workman.

(IV) A photostat copy of a
seniority list of daily wage workmen
drawn up by the office of the Executive
Engineer, Drainage Division-II, Basti,
bearing memo no. 123/Drain. (kha), BastiII.

(V) A list of workmen in current
employment (at the time of submission of
the
documents)
engaged
after
the
workman but still retained in service, the
list being signed by one Vijay Raj Singh,
an Executive Engineer with the employers.

6. On 26.11.1997, an application was
made to the Labour Court with a prayer
that the documents mentioned therein,
numbering three, be summoned from the
employers. Against each of the documents
indicated in a schedule at the foot of the
application, on the right side, the purpose
of summoning the relative documents is
indicated. The first document sought to be
summoned is the one a copy of which has
been mentioned at serial no. 3 of the list of
documents filed by the petitioner, that is to
say, the bonus bill dated 14.09.1990. In
addition, all muster rolls have been sought
relating to the period of time, claimed by
the workman to be the engagement period.
A
further
document
sought
to
be
summoned is mentioned at serial no. 4 of
the list dated 26.11.1997, that is the
seniority list of employees, part of the
letter of the Executive Engineer, Drainage
Division-II, Basti dated 13.05.1991. The
last document mentioned at the serial no. 5
in the application dated 26.11.1997 is one
that carries the seniority list of workmen,
signed by one Vijay Raj Singh,an
Executive Engineer with the employers.

7. A perusal of the application dated
26.11.1997 would show that there is an
order passed by the Presiding Officer,
issuing notice to the employers. The order
is endorsed on the face of the application
and does not bear a date. Presumably, it
was passed on the same date when the
application was made. An objection to the
said
application
was
filed
by
the
employers
on
24.05.1999
enclosing
therewith xerox copies of the muster roll
for the year 1990, that is to say, the year
preceding the one when the services of the
workman were terminated. It is said in this
objection dated 24.05.1999 that so far as
the documents mentioned at serial nos. 1,
2 and 3 of the application dated
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
26.11.1997
are
concerned,
the
said
documents are not available in the office
of the employers and are also not within
their knowledge or information. It is,
however, said that muster roll is necessary
to demonstrate the number of days in the
year that the workman has discharged his
duties, and, therefore, a photostat copy of
the muster roll for one year is being
enclosed with the objection. A copy of the
said objection dated 24.05.1999 is on
record as paper no. 21-D. A photostat
copies of the enclosed muster roll are also
on record. At this stage, it must be
remarked that this Court has gone through
the original records and finds that the
photostat copies of the muster roll filed,
relates to the year 1990. It is there from the
month of January to December, 1990,
except for the months of February and
March. There is no explanation about the
missing muster roll for these two months.
It must also be noticed here that on the
face of the objections dated 24.05.1999,
there is an order dated 01.11.2001 passed
by the Presiding Officer that reads thus
(part of the order that is in Hindi translated
into English):

"Seen. This does not carry the
summoned documents and this is not
required at this stage.
Signed
illegible
1.11.2001"

8. So much for the documentary
evidence led on both sides. The workman
has examined himself as a witness in
support of his case on 01.11.2001 and has
been cross-examined by the employers.
The said deposition is on record. Likewise,
on
behalf
of
the
employers,
one
Vindhyachal Prasad, a Junior Engineer
posted with Devkali Pump Canal DivisionII, Ghazipur, has testified as EW-1 on
03.05.2002. He has been cross-examined
by the workman. The said deposition is
also on record. On these pleadings and
evidence, the Labour Court proceeded to
hear and determine the adjudication case
which led to the reference being answered
by means of the impugned award, in
favour of the workman, in terms already
set out hereinabove.

9. Aggrieved, the present writ petition
has been filed.

10. Heard Sri Shriprakash Singh,
learned Standing Counsel appearing on
behalf of the petitioners-employers and Sri
Sudhanshu
Narain,
learned
counsel
appearing for the respondent-workman.

11. Learned counsel for the petitioner
has argued that a specific plea has been taken
before the Labour Court that the employers
do not fall within the definition of ''Industry'
as envisaged under the Act. As such, the
Labour Court has no jurisdiction to decide the
reference. It is urged on the basis of pleadings
in paragraph nos. 12 and 13 of the writ
petition that this plea about the Act being not
applicable has not been considered. A perusal
of the written statement filed on behalf of the
employer and also the rejoinder statement
does not show that the aforesaid plea was
raised before the Labour Court. It appears to
have been raised for the first time before this
Court, which has been disputed by the
workman. The workman has submitted that
the department of Irrigation, Drainage and
Tubewell Division are an Industry earning
heavy profit from their activities. It has been
submitted on behalf of the workman that the
Act is squarely applicable. In writ petition No.
6108 of 2004 State of U.P. through
Executive Engineer vs. Raj Karan and
another decided on 01.09.2015, this question
1 All. State of U.P. & Ors. Vs. Shri Brahma Dev Tripathi & Anr.
1003
was raised before this Court on behalf of the
petitioner, in the case of a similarly
circumstanced workman. The workman
employed with the Irrigation Department of
the State, claimed illegal termination from
service in breach of the provisions of the Act.
This Court, relying on the authorities in State
of U.P. vs. Presiding Officer, Industrial
Tribunal (V), Meerut and another and
State of U.P vs. Labour Court, Dehradun
and another, held the Department of
Irrigation to be an industry within the
meaning of the Act.

12. Sri Shriprakash Singh, learned
Standing Counsel appearing on behalf of
the employers has emphasized that the
principal basis in times contemporaneous,
when this reference was decided by the
Labour Court to hold or readily assume the
Irrigation Department to be an industry is
the decision of the Constitution bench of
the Supreme Court in Banglore Water
Supply Sewerage Board vs. A. Rajappa.
He emphasized that now the correctness of
their Lordships decision in Banglore
Water Supply Sewerage Board (Supra),
which is a Constitution Bench decision of
five
Judges
has
been
referred
for
reconsideration to a larger Bench vide an
order made in State of U.P. vs. Jai Bir
Singh. It is urged that in the the order of
reference,
where
correctness
of
the
principles
laid
down
governing
the
definition of an industry have been
doubted by their Lordships, relates to the
Department of Irrigation, State of U.P.
Learned
counsel
for
the
petitioner,
therefore, submits that the matter may be
adjourned, awaiting decision by the larger
Bench of their Lordships.

13.

Learned
counsel
for
the
workman, Sri Sudhanshu Narain points out
that so far as there are no prospects of an
early decision by the larger Bench of their
Lordships of the Supreme Court, as the
record of proceedings would show. He has
urged that by a subsequent order dated
17.11.2016, judgment was reserved in the
case by a seven Judge Bench of their
Lordships, but on 02.01.2017 an order was
passed referring the matter to a Bench of
nine Judges. It is urged by learned counsel
for the workman that there is no prospect
of an early judgment by the nine Judge
Bench of their Lordships in State of U.P.
vs. Jai Beer Singh (Supra). It is not for
this Court to speculate about the time
when their Lordships would decide the
issue, referred to the larger Bench of nine
Judges. What this Court is concerned
about is how the present cause ought to be
decided. To the understanding of this
Court, the law in Banglore Water Supply
Sewerage Board (Supra) still holds the
field and is the law so long it is not
overruled by a decision of their Lordships,
sitting in a Bench of larger strength. This
issue was determined by their Lordships in
R.M. Yellatti vs. Assistant Executive
Engineer, where the plea to adjourn
decision pending outcome of the reference
to the larger Bench in State of U.P. vs Jai
Bir Singh (Supra) was declined in the
following words:-

"11.At the outset, we may
mention that we are not inclined to adjourn
the matter sine die pending the decision of
the larger Bench as urged on behalf of the
management, particularly in view of the
fact that there is nothing on record to
indicate that the management had argued
the point in question. As stated above, the
Labour Court had ruled that the "irrigation
department" was an "industry" in terms of
Section 2(j) of the 1947 Act. Against the
award of the Labour Court, the department
had filed its writ petition in which the
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
ground was taken as a plea to the effect
that the irrigation department was not an
industry in terms of Section 2(j) of the said
Act. However, there is nothing in the
decision of the learned Single Judge as
well as in the impugned judgment to show
as to whether the management had argued
on this aspect of the case and, therefore,
we are not inclined to await the decision of
the larger Bench following the referral
order in Jai Bir Singh [(2005) 5 SCC 1 :
2005 SCC (L&S) 642] . Even in the
counter-affidavit filed before this Court,
no such plea has been taken."

14. The plea was raised before the
learned Single Judge of this Court in State
of U.P. through Executive Engineer,
Nichali
Ganga
Nahar,
Phoolpur,
Kanpur vs. the Labour Court(II), U.P.
Kanpur and another in Writ Petition
No.
35086
of
1998,
decided
on
21.02.2013. In the said decision, the prayer
to adjourn pending decision by the larger
Bench of their Lordships was also
declined, holding thus:

"The
Supreme
Court
in
R.M.Yellatti
vs.
Assistant
Executive
Engineer vs. Assistant Executive Engineer,
2006(1) SCC 106 was faced with the same
dilemma wherein it was contended before
the Supreme Court that the matter should
be adjourned since the judgment of the
Supreme Court in Bangalore Water Supply
was referred to a Larger Bench by a
referral order, dated 5.5.2005 in State of
U.P. vs. Jaibir Singh, 2005 (5)SCC 1. The
Supreme Court declined to adjourn the
matter sine die, in view of the fact that
there was nothing on record to indicate
that the Management had argued the point
in question. Taking clue from the Supreme
Court itself, the Court finds, that there is
nothing on record indicating that the
petitioner is not an "industry". Merely by
alleging that the petitioner is not an
"industry" does not take them outside the
realm of the U.P. Industrial Disputes Act.
The dominant nature test as illustrated in
Bangalore Water Supply case (supra) has
not been followed. Consequently, the
Court is of the opinion, that the matter
cannot be adjourned sine die."

15. In the present case also there is
nothing pleaded before the Labour Court
to show that the employers are not an
industry. There is no case set up to that
effect much less seriously, or evidence
offered to establish the same. No doubt, a
ground has been raised before this Court
and it has been argued by Sri Shriprakash
Singh that the employers are not an
industry, but there is nothing seriously said
to establish the fact that what the
employers do is a sovereign function and
that the workman was employed in aid of a
sovereign function of the State. On this
state of the pleaded case and evidence, this
Court does not consider it appropriate to
adjourn the matter as suggested by Sri
Shriprakash
Singh,
learned
Standing
Counsel for the petitioner. In adopting this
course,
this
Court
is
in
respectful
agreement with the decision in State of
U.P. through Executive Engineer, Nichli
Ganga Nahar (supra).

16. Turning to the issue whether the
workman has been wrongly awarded
relief/reinstatement with backwages, the
case of the petitioner is based on a plea
that he was retained on daily wage basis
against a permanent vacancy, and that the
employers
terminated
his
services
illegally, in an unauthorized manner, with
effect from 01.09.1991. It has been
specifically pleaded by the workman that
during the entire period of his engagement,
1 All. State of U.P. & Ors. Vs. Shri Brahma Dev Tripathi & Anr.
1005
he has rendered continuous service with no
break whatsoever. It has also been pleaded
that the workman's services have been
terminated without prior notice or payment
of wages in lieu of notice or any
retrenchment compensation. It has further
been specifically pleaded by the workman
that his services have not been terminated
in
consequence
of
any
disciplinary
proceedings, or any charge of misconduct.
The further specific case is that workman
has, prior to the termination of his
services, completed 240 days and more of
service in the preceding year, and in the
each calendar year, that he has been in the
service of the employer. The submission
of learned counsel for the petitioner, on the
basis of said case is that the employers have
committed a clear violation of Section 6N of
the Act. The employers rebutting the
workman's case have pleaded in their written
statement that the workman's services have not
been terminated and he has never worked
continuously. It is urged that it is wrong to say
that the workman has been retrenched. The
fact that the workman's services have not been
dispensed with, in consequence of any
disciplinary proceedings on a charge has not
been denied. It has been averred, in particular,
in paragraph no. 10 of the written statement
that the petitioner was a daily-wager borne on
the muster roll and that he did not work
continuously. He was engaged from time to
time, according to exigencies. The Labour
Court on the basis of the evidence available
has recorded the following finding relating to
the issue whether the workman did work for
240 days in a calendar year, and about the
nature of his engagement, as well as the
legality of his termination from service (in
Hindi vernacular):-

6& oknh dh vksj ls vfHkys[k lsok;kstdksa
ls ryc fd;s x;s Fks ftuesa ls dqN vfHkys[k izLrqr
fd;s x;s gSA MCywMCyw@1 Jfed czgenso f=ikBh dks
ijhf{kr fd;k x;kA lsok;kstd dh vksj ls eLVj jksy
dh Nk;k izfr;ka nkf[ky dh xbZ gS vkSj lsok;kstd
lk{kh foa/;kpy izlkn] voj vfHk;Urk dks ijhf{kr
fd;k x;kA mUgksus ;n~;fi vius lk{; esa dgk gS fd
oknh dks vko';drkuqlkj j[kk tkrk Fkk fdUrq
izfrijh{k.k esa mudk /;ku lsok;kstd ds fyf[kr
C;ku dh vksj fnykrs gq;s iwNs tkus ij mUgksus dgk
fd mlesa tks ;g fy[kk gS fd oknh us dHkh Hkh ,d
o"kZ esa 240 fnu ls vf/kd dk;Z ugh fd;k gS] xyr
gSA mUgksus ;g Hkh dgk fd og 89 ls 91 rd Masust
[k.M&2 cLrh esa FksA oknh dks esjs dk;Zdky esa dHkh
cSBdh ugha dh xbZA oknh dks cksul feyk gSA cksul
mldks feyrk gS tks ,d o"kZ es 240 fnu ls vf/kd
dke dj ysrk gSA bl izdkj ;g eku fy;k x;k gS
fd oknh us ,d o"kZ esa 240 fnu ls vf/kd dk;Z dj
fy;k FkkA

7& izkFkZuk i= 27@Mh lsok;kstd
izfrfuf/k }kjk lk{kh dks gksLVkby ?kksf"kr djus gsrq
izkFkZuk i= fn;k x;k tks fujLr dj fn;k x;k fdUrq
lsok;kstd dks vfrfjDr lk{; nsus dk volj fn;k
x;kA mUgksus dksbZ vfrfjDr lk{; izLrqr ugh fd;kA
bl lk{kh bZMCyw@1 ls foHkkxh; izfrfuf/k us dksbZ
ftjg ugh dh ftlls mls gksLVkby n'kkZ;k tk ldsA
vU;Fkk Hkh ;g U;k;ky; ds foosd ij jgrk gS fd
;fn lk{kh gksLVkby gks x;k rks mlds lk{; ij
fopkj fd;k tk; ;k ughaA esjs fopkj ls lk{kh ds
dFku vkSj izfrijh{k.k dks ns[krs gq, ;g dgh ls ugha
yxrk fd mDr lk{kh gksLVkby gks x;k gSA mlds
egRoiw.kZ lk{; dks Lohdkj u djuk vuqfpr gksxkA

8& ;g Bhd gS 240 fnu dh rkjrE;
lsok ,d o"kZ esa fl) djus Hkkj oknh ij Fkk fdUrq
oknh ;g fl) djus esa lQy jgk gSA bZMCyw@1 ds
lk{; ls ;gh fu"d"kZ fudyrk gS fd oknh us ,d o"kZ
esa 240 fnu ls vf/kd dh lsok iw.kZ dj yh FkhA
Jfed }kjk nkf[ky 15@ch1⁄421⁄2 ds isij la0 4@2
ofj"Brk lwph gS ftlesa oknh Jfed dk uke Øekad 7
ij gS vkSj mldh fu;qfDr dk o"kZ 1979 n'kkZ;k x;k
gSA bldk ewy lsok;kstdksa ls ryc fd;k x;k Fkk
ijUrq mls nkf[ky ugha fd;k x;kA

9& eLVj jksy dh Nk;k izfr;ka tks
nkf[ky dh xbZ gS mlesa tuojh o uoEcj 91 ds
eLVj jksy dh Nk;k izfr;ak ugha nkf[ky dh xbZA 'ks"k
leLr eLVj jksy nkf[ky fd;s x;s gSA

10& Lohd`r :i ls Jfed dks dksbZ
uksfVl ;k uksfVl ds cnys osru rFkk NaVuh izfrdj
ugha fn;k x;kA bl izdkj /kkjk 6,u ;w0ih0
vkSV~;ksfed fookn vf/kfu;e 1947 ds izkfo/kkuksa dk
vuqikyu ugha fd;k x;kA bl dkj.k oknh dks lsok
ls oafpr fd;k tkuk vuqfpr ,oa voS/kkfud gSA
1006 INDIAN LAW REPORTS ALLAHABAD SERIES

17. This Court has also looked into
the evidence on record and found that
there is on record, documentary evidence
regarding payment of bonus to the
workman for three consecutive years, that
is to say, 1986-87, 1987-88 and 1988-89.
The employers have not produced the
original of the documents that have been
filed by the workman. They have not said
in their objection to the application,
seeking to summon the original, that the
documents are got up, or challenged the
veracity of those documents. All that they
have said is that these documents are not
traceable. The Labour Court has, therefore,
not at all erred in looking into documents,
filed by the workman as secondary
evidence, going by the best evidence rule.
There is also this fact that the employers
have filed photostat copies of the muster
roll, and not the original for the year 1990.
They have not filed the muster roll of any
earlier period of time.

18. In objection dated 24.05.1999,
along with which muster roll for the year
1990 has been filed, it has not been said
that no muster roll relating to the
workman, for an earlier period of time is
available. It is just said that the employers
are filing photostat copies of the muster
roll, for one year, in order to show the
number of days during the year preceding
his termination that the workman has been
engaged. The muster roll has been filed for
ten months of the year 1990; it is filed for
each month of the year, except for months
of February and March, 1990. The total
number of working days during ten
months in the muster roll that has been
filed aggregate a figure of 198 days. It is
not the employers' case that during the
year 1990, the workman did not turn up
during the months of February and March,
or that he was not engaged during those
months. There is absolutely no explanation
why muster roll for the two months of
February and March, 1990 has not been
filed. Therefore, the Labour Court has
rightly drawn an adverse inference against
the employer that the workman has
worked for those two months also, and that
would make for 240 days in the year,
preceding his termination from service. It
is also not disputed by the employers that
the workman was not paid bonus or that
his
seniority,
regarding
which
the
workman has produced a seniority list is a
bogus document. On the foot of these facts
and evidence the Labour Court has drawn
a plausible inference that the workman has
been engaged for 240 days, during
preceding calendar year, when his services
were terminated and further that the
workman has rendered services from 1979,
continuously
until
01.09.1991.
Admittedly, no notice in accordance with
Section 6 N of the Act has been served
upon the workman in writing, indicating
the reasons for retrenchment or the
workman has been paid for the period of
notice in lieu and/or paid any retrenchment
compensation, in accordance with the
provisions of Section 6 N of the Act.

19. At this Stage, notice must be
taken of the submission made very
forcibly by Sri Shriprakash Singh, learned
Standing Counsel to the effect that even if
termination from service is bad in law on
account of a wholesome violation of
Section 6 N of the Act, relief of
reinstatement and that too with 50%
backwages, ought not have been granted
by the Labour Court, as a matter of course.
It is urged that the Labour Court has not
noticed any special circumstances, why
relief of reinstatement has been granted,
even if termination of services has been
1 All. State of U.P. & Ors. Vs. Shri Brahma Dev Tripathi & Anr.
1007
found to be fowl of the provisions of
Section 6N of the Act, inasmuch as, in the
case of a daily wager reinstatement ought
not to be normally granted. He submits
that in case of daily wage engagement of a
few years, even if termination of services
is found to be illegal and in violation of
Section 6N of the Act, a lump sum
compensation
appropriately
assessed,
would serve as good remedy.

20. The aforesaid submission of the
learned counsel for the petitioner has been
disputed by Sri Sudhanshu Narain, learned
counsel for the workman, who says that
relief of reinstatement has been granted
bearing in mind the long and continuous
engagement of the workman as a dailywager, which in this case is a period of 11
years and more. He submits that it is not a
case where the workman has been engaged
for a short period of 2-3 years to take care
of some exigency, but one where long
engagement of the workman on daily
wages shows that he was employed to do
work referable to a permanent post, though
he was not appointed to any post. He
submits
that
this
course
of
long
engagement clearly shows a case of unfair
labour practice.

21. Learned counsel for the employer
relied upon a decision of this Court in
State of U.P. and another Vs. Hind
Majdoor Sabha and others. He has
drawn attention of this Court to paragraphs
nos. 7, 8, and 21 of the report, which read
thus:

"7. For the purpose of granting
relief the relevant aspects which have to be
considered
are
the
nature
of
employment/engagement
of
workman
concerned, the manner in which he was
engaged, his right to hold the post, right to
continue in service, the wages to which he
is entitled etc. If a person is a permanently
employed
and
has
been
terminated/retrenched without following
the procedure prescribed under Section 6N of the Act, in such a case since the
workman has a right to the post and right
to continue, relief of reinstatement may be
justified. But there also various other
aspects,
namely,
whether
industrial
establishment is continuing, whether the
post on which the incumbent was working,
is continuing or not and similar other
relevant factors. In a case of casual or
daily wage employee, even in ordinary
circumstances, he neither has any right to
hold the post nor to continue in service. A
daily wage employee commences his
service in morning and it comes to an end
in evening. The very next day he has no
right unless the employer choses to engage
him. It is for this reason, law contemplate
that a workman in order to attract Section
6-N of the Act need not work throughout
the year but it would be sufficient if he has
worked for 240 days in a year.

8. Existence of post, the manner
in which one was engaged, whether
engagement was consistent with some
statutory provisions prescribing mode of
recruitment and selection etc. are other
relevant
factors
which
have
to
be
considered while granting relief. These
aspects have been referred to and pointed
out in a catena of decisions, some of which
I may refer hereat.

21.
In
the
facts
and
circumstances of the case since the
workman was engaged on daily wage basis
only for a short period of four years and
was disengaged on 01.09.1992 and also
considering the fact that his initial
recruitment was not in accordance with
procedure prescribed in law consistent
with Article 16 of the Constitution, in my
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
view, the relief of reinstatement and back
wages to the extent of 50% ought not to
have been granted. The workman may be
granted a lumpsum compensation which is
equivalent to six months' wages and would
be calculated on the basis of payment last
made to workman at the time of his
termination..........."

22. He has further relied on a
decision of the Supreme Court in ViceChancellor,
Lucknow
University,
Lucknow, Uttar Pradesh Vs. Akhilesh
Kumar Khare and another. He has
invited the attention of the Court to what
their Lordships have held regarding the
right of reinstatement of a daily-wager,
even if his services were terminated in
violation of the statutory mandate of
Section 25-F of the Industrial Disputes
Act, 1947 (equivalent of Section 6N of the
Act).
In
Vice-Chancellor,
Lucknow
University, Lucknow (Supra), it has been
held:

"18.In considering the violation
of Section 25-F of the Industrial Disputes
Act, 1947 inIncharge Officer v. Shankar
Shetty [(2010) 9 SCC 126 : (2010) 2 SCC
(L&S) 733] and after referring to the
various decisions, this Court held that the
relief by way of back wages is not
automatic and compensation instead of
reinstatement has been held to meet the
ends of justice and it reads as under: (SCC
pp. 127-28, paras 2-4)

"2.
Should
an
order
of
reinstatement automatically follow in a
case where the engagement of a daily
wager has been brought to end in violation
of Section 25-F of the Industrial Disputes
Act, 1947 (for short ''the ID Act')? The
course of the decisions of this Court in
recent years has been uniform on the
above question.

3. In Jagbir Singh v. Haryana
State Agriculture Mktg. Board [(2009) 15
SCC 327 : (2010) 1 SCC (L&S) 545] ,
delivering the judgment of this Court, one
of us (R.M. Lodha, J.) noticed some of the
recent decisions of this Court, namely,
U.P. State Brassware Corpn. Ltd. v. Uday
Narain Pandey [(2006) 1 SCC 479 : 2006
SCC (L&S) 250] , Uttaranchal Forest
Development Corpn. v. M.C. Joshi [(2007)
9 SCC 353 : (2007) 2 SCC (L&S) 813] ,
State of M.P. v. Lalit Kumar Verma
[(2007) 1 SCC 575 : (2007) 1 SCC (L&S)
405] , M.P. Admn. v. Tribhuban [(2007) 9
SCC 748 : (2008) 1 SCC (L&S) 264] , Sita
Ram v. Moti Lal Nehru Farmers Training
Institute [(2008) 5 SCC 75 :(2008) 2 SCC
(L&S)71], JaipurDevelopmentAuthority v.
Ramsahai [(2006) 11 SCC 684 : (2007) 1
SCC (L&S) 518] , GDA v. Ashok Kumar
[(2008) 4 SCC 261 : (2008) 1 SCC (L&S)
1016] and Mahboob Deepak v. Nagar
Panchayat, Gajraula [(2008) 1 SCC 575 :
(2008) 1 SCC (L&S) 239] and stated as
follows: (Jagbir Singh case [(2009) 15
SCC 327 : (2010) 1 SCC (L&S) 545] ,
SCC pp. 330 & 335, paras 7 & 14)

''7. It is true that the earlier view
of this Court articulated in many decisions
reflected the legal position that if the
termination of an employee was found to
be illegal, the relief of reinstatement with
full back wages would ordinarily follow.
However, in recent past, there has been a
shift in the legal position and in a long line
of cases, this Court has consistently taken
the
view
that
relief
by
way
of
reinstatement with back wages is not
automatic
and
may
be
wholly
inappropriate in a given fact situation even
though the termination of an employee is
in
contravention
of
the
prescribed
procedure.
Compensation
instead
of
reinstatement has been held to meet the
ends of justice.
1 All. State of U.P. & Ors. Vs. Shri Brahma Dev Tripathi & Anr.
1009

14. It would be, thus, seen that by a
catena of decisions in recent time, this Court
has clearly laid down that an order of
retrenchment passed in violation of Section 25F although may be set aside but an award of
reinstatement
should
not,
however,
be
automatically
passed.
The
award
of
reinstatement with full back wages in a case
where the workman has completed 240 days
of work in a year preceding the date of
termination, particularly, daily wagers has not
been found to be proper by this Court and
instead compensation has been awarded. This
Court has distinguished between a daily wager
who does not hold a post and a permanent
employee.'

4.Jagbir Singh[(2009) 15 SCC
327 : (2010) 1 SCC (L&S) 545] has been
applied very recently inTelegraph Deptt. v.
Santosh Kumar Seal[(2010) 6 SCC 773 :
(2010) 2 SCC (L&S) 309] , wherein this
Court stated: (SCC p. 777, para 11)

''11. In view of the aforesaid
legal position and the fact that the
workmen were engaged as daily wagers
about 25 years back and they worked
hardly for 2 or 3 years, relief of
reinstatement and back wages to them
cannot be said to be justified and instead
monetary compensation would subserve
the ends of justice.'"

19. In the light of the above
discussion,
the
impugned
judgment
[Lucknow University v. Manoj Misra,
2009 SCC OnLine All 2079] of the High
Court is modified and keeping in view the
fact that the respondents are facing
hardship on account of pending litigation
for more than two decades and the fact that
some of the respondents are overaged and
thus have lost the opportunity to get a job
elsewhere, interest of justice would be met
by directing the appellant University to
pay compensation of rupees four lakhs to
each of the respondents. By order dated
11-7-2011,
this
Court
directed
the
appellant to comply with the requirements
of Section 17-B of the Industrial Disputes
Act, 1947 and it is stated that the same is
being complied with. The appellant
University
is
directed
to
pay
the
respondents rupees four lakhs each within
four months from the date of receipt of this
judgment. The payment of rupees four
lakhs shall be in addition to wages paid
under Section 17-B of the Industrial
Disputes Act, 1947."

23. In order to buttress his
submission, learned Counsel for the
employer has placed reliance upon a recent
decision of the Supreme Court in District
Development Officer and another Vs.
Satish Kantilal Amreliya. It has been
held in District Development Officer and
another (Supra) thus:

12. Having gone through the
entire record of the case and further
keeping in view the nature of factual
controversy, the findings of the Labour
Court, the manner in which the respondent
fought this litigation on two fronts
simultaneously, namely, one in the civil
court and the other in the Labour Court in
challenging his termination order and
seeking regularisation in service, which
resulted in passing the two conflicting
orders -- one in the respondent's favour
(Labour Court) and the other against him
(civil court) and lastly, it being an
admitted fact that the respondent was a
daily wager during his short tenure, which
lasted
hardly
two-and-half
years
approximately and coupled with the fact
that 25 years have since passed from the
date of his alleged termination, we are of
the considered opinion that the law laid
down by this Court in BSNL v. Bhurumal
[BSNL v. Bhurumal, (2014) 7 SCC 177 :
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
(2014) 2 SCC (L&S) 373] would aptly
apply to the facts of this case and we
prefer to apply the same for disposal of
these appeals.

13. It is apposite to reproduce
what this Court has held in BSNL [BSNL v.
Bhurumal, (2014) 7 SCC 177 : (2014) 2
SCC (L&S) 373] : (SCC p. 189, paras 3335)

"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 (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC
1 : 2006 SCC (L&S) 753] ]. Thus when he
cannot claim regularisation 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.