# SUDARSHAN RAJPOOT v. U.P. STATE ROAD TRANSPORT CORPORATION · (Civil Appeal Nos.10353-10354 of 2014)

- **Citation:** [2014] 13 S.C.R. 957
- **Court:** Supreme Court of India
- **Decided:** 2014-11-18
- **Case number:** Civil Appeal Nos.10353-10354 of 2014
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sudarshan-rajpoot-v-u-p-state-road-transport-corporation-civil-appeal-nos-10353-29661
- **Pages:** 28

## Headnote

[2014] 13 S.C.R. 957
SUDARSHAN RAJPOOT
v.
U.P. STATE ROAD TRANSPORT CORPORATION
· (Civil Appeal Nos.10353-10354 of 2014)
A
NOVEMBER 18, 2014
B
. [V. GOPALA GOWDAAND C. NAGAPPAN, JJ.]
Labour Laws:
Uttar Pradesh Industrial Disputes Act, 1947 - ss. 2(s),
6-N, 6-R and 6-Q -Appellant-workman employed as driver
with the respondent-Corporation - While on duty, due to C
technical fault in the vehicle, the vehicle met with an accident
- Workman also sustained grievous injuries - Name of the
workman struck-off from the rolls of post of driver and removed
from the services - Industrial dispute raised - Labour court
held that termination of services of the workman was contrary D
to law and directed his reinstatement without break in service
with all consequential reliefs-High Court set aside the award
of reinstatement and consequential reliefs and held that the
workmen was only entitled to consolidated compensation
calculated from the date of his engagement till the date of E
his disengagement - On appeal, held: The workman was
engaged on permanent basis- In view of Schedule V, entry
10 of central Industrial Disputes Act, the Corporation is
prohibited from engaging the workman as a casual or
temporary workman on permanent basis - The workman had F
rendered service more than 240 days in a calendar year until
his termination- Thus his engagement on contractual basis
is statutorily prohibited - The same amounts to unfair labour
practice u/s. 2(ra) and is punishable u/s. 25U of the central
Act - The termination order amounts to retrenchment- NonG
compliance of the statutory provisions u/ss. 6-N, 6-R and 6Q has rendered the termination order void ab inito in law -
The labour court was justified in passing award of
reinstatement with consequential benefits- The High Court
957
H
958
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A erroneously set aside the award by interfering with findings
of fact in exercise of its supervisory jurisdiction u/Arts 226
and 227 of the Constitution - The injuries sustained by the
workman are employment injuries suffered during the course
of employment - Therefore, the Corporation is ·statutorily
B obliged u/s. 47 of Persons with Disabilities Act, 1995 to
provide alternate equivalent job to the workman- Industrial
Disputes Act, 1947 - ss. 2(ra), 25T, and 25U, Schedule \/,
Entry No. 10 -
The Persons with Disabilities (Equal
Opportunities, Protection of Rights, and Full Participation)
c Act, 1995 - s. 47 - Constitution of India, 1950 -Arts. 226
and 227.
Allowing the appeals, the Court
HELD: 1.1 The respondent-Corporation has neither
produced documentary evidence nor showed before the
D Labour Court that the appellant-workman was appointed
on contract basis. The fact that he deposited Rs.20001towa rds security amount with the respondentCorporation indicates that he was working as a Driver
on a permanent basis. In view of the Schedule V, entry
E No.10 of the Industrial Disputes Act, 1947 the respondentCorporation is prohibited from engaging the appellantworkman as a badli, casual or temporary workman to
work on permanent basis. The fact that he had been
continuously working for more than 3 years and he had
F rendered more than 240 days of service as the driver in
a calendar year until his termination order and yet he
being engaged on a contractual basis in the respondentCorporation is statutorily prohibited. The same amounts
to an unfair labour practice as defined uls. 2(ra) rlw. s.
G 25T, which action of the Corporation is punishable uls.
25U of the Industrial Disputes Act. At the time of
termination his juniors were working on permanent
basis. Therefore, the same is another added fact to
accept the plea of the appellant-workman by the Labour
H Court that he was appointed as a permanent workman
f-
SUDARSHAN RAJPOOT v. U.P. STATE ROAD
959
TRANSPORT CORPORATION
in the respondent-Corporation as a driver. [Paras 16 and A
17][970·B-E][971-E-F]
1.2 The employer-EW1 admitted that the appellantworkman was appointed on permanent basis

## Text

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[2014] 13 S.C.R. 957
SUDARSHAN RAJPOOT
v.
U.P. STATE ROAD TRANSPORT CORPORATION
· (Civil Appeal Nos.10353-10354 of 2014)
A
NOVEMBER 18, 2014
B
. [V. GOPALA GOWDAAND C. NAGAPPAN, JJ.]
Labour Laws:
Uttar Pradesh Industrial Disputes Act, 1947 - ss. 2(s),
6-N, 6-R and 6-Q -Appellant-workman employed as driver
with the respondent-Corporation - While on duty, due to C
technical fault in the vehicle, the vehicle met with an accident
- Workman also sustained grievous injuries - Name of the
workman struck-off from the rolls of post of driver and removed
from the services - Industrial dispute raised - Labour court
held that termination of services of the workman was contrary D
to law and directed his reinstatement without break in service
with all consequential reliefs-High Court set aside the award
of reinstatement and consequential reliefs and held that the
workmen was only entitled to consolidated compensation
calculated from the date of his engagement till the date of E
his disengagement - On appeal, held: The workman was
engaged on permanent basis- In view of Schedule V, entry
10 of central Industrial Disputes Act, the Corporation is
prohibited from engaging the workman as a casual or
temporary workman on permanent basis - The workman had F
rendered service more than 240 days in a calendar year until
his termination- Thus his engagement on contractual basis
is statutorily prohibited - The same amounts to unfair labour
practice u/s. 2(ra) and is punishable u/s. 25U of the central
Act - The termination order amounts to retrenchment- NonG
compliance of the statutory provisions u/ss. 6-N, 6-R and 6Q has rendered the termination order void ab inito in law -
The labour court was justified in passing award of
reinstatement with consequential benefits- The High Court
957
H
958
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A erroneously set aside the award by interfering with findings
of fact in exercise of its supervisory jurisdiction u/Arts 226
and 227 of the Constitution - The injuries sustained by the
workman are employment injuries suffered during the course
of employment - Therefore, the Corporation is ·statutorily
B obliged u/s. 47 of Persons with Disabilities Act, 1995 to
provide alternate equivalent job to the workman- Industrial
Disputes Act, 1947 - ss. 2(ra), 25T, and 25U, Schedule \/,
Entry No. 10 -
The Persons with Disabilities (Equal
Opportunities, Protection of Rights, and Full Participation)
c Act, 1995 - s. 47 - Constitution of India, 1950 -Arts. 226
and 227.
Allowing the appeals, the Court
HELD: 1.1 The respondent-Corporation has neither
produced documentary evidence nor showed before the
D Labour Court that the appellant-workman was appointed
on contract basis. The fact that he deposited Rs.20001towa rds security amount with the respondentCorporation indicates that he was working as a Driver
on a permanent basis. In view of the Schedule V, entry
E No.10 of the Industrial Disputes Act, 1947 the respondentCorporation is prohibited from engaging the appellantworkman as a badli, casual or temporary workman to
work on permanent basis. The fact that he had been
continuously working for more than 3 years and he had
F rendered more than 240 days of service as the driver in
a calendar year until his termination order and yet he
being engaged on a contractual basis in the respondentCorporation is statutorily prohibited. The same amounts
to an unfair labour practice as defined uls. 2(ra) rlw. s.
G 25T, which action of the Corporation is punishable uls.
25U of the Industrial Disputes Act. At the time of
termination his juniors were working on permanent
basis. Therefore, the same is another added fact to
accept the plea of the appellant-workman by the Labour
H Court that he was appointed as a permanent workman
f-
SUDARSHAN RAJPOOT v. U.P. STATE ROAD
959
TRANSPORT CORPORATION
in the respondent-Corporation as a driver. [Paras 16 and A
17][970·B-E][971-E-F]
1.2 The employer-EW1 admitted that the appellantworkman was appointed on permanent basis in the post
of driver. The finding of fact was recorded by the Labour
Court accepting the evidence of EW-1 that the appellantB
workman has worked continuously from 11.3.1997 to
29.07.2000 in the respondent-Corporation. Therefore, the
Labour Court has rightly come to conclusion and held
that the appellant-workman has rendered more than 240
days continuous service from the date of his C
appointment till the date of passing the termination order.
[Para 18][972-A-C]
1.3 The words mentioned as "contractual driver"
in the termination order to strike off the name of the
workman from the contract employees roll, does not D
automatically prove that he has worked as the driver on
contract basi.s in the respondent-Corporation.
[Para 19][972-D-E]
1.4 The finding of fact recorded by the Labour Court
in its award, on proper appreciation of undisputed facts E
and evidence on record, has been rightly held that the
termination order amounts to retrenchment and noncompliance of the statutory provisions under Sections
6-N, 6-R and 6-Q of the U.P. Industrial Disputes Act has
rendered the order of termination void ab initio in law. F
Therefore, the Labour Court was justified in passing the
award of reinstatement after setting aside the order of
termination and awarded consequential benefits such
as back-wages from the date of termination, till the date
of reinstatement and further direction to pay future salary . G
to the appellant-workman. [Para 20][972-E-G]
1.5 In the order of termination, it is alleged that on
account of negligent driving of the bus by appellantworkman, the accident of the vehicle happened, the said H
960
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A allegation was neither proved in the inquiry required to
be conducted nor producing evidence before the
Labour Court by the respondent-Corporation. Therefore,
the High Court has failed to examine the above vital
aspec:ts of the case, and erroneously interfered with the
B award passed by the Labour Court in exercise of its
extraordinary and supervisory jurisdiction under Articles
226 &. 227 of the Constitution of India. This exercise of
power is contrary to the law. [Para 21][972-H; 973-A·B]
1-farjinder Singh v. Punjab State Warehousing
C
Corporation (2010) 3 SCC 192 : 201 O (1)
SCR 591 - relied on.
1.6 The reliance placed upon the decision of this
Court on *Uma Devi case by the High Court to reverse
the finding of fact recorded in the award in favour of the
D workman in answering the points of dispute in the
negative, is not tenable in law. *Uma Devi case does not
denude the Industrial and Labour Courts of their
statutory power to order permanency of the workers who
have been victims of unfair labour practice on the part
E of the employer. [Para 22][97 4-C·D]
F
G
H
Maharashtra State Road Transport Corpn. &Anr.
v. Casteribe Rajya Parivahan Karmchari
Sanghata (2009) 8 SCC 556; Hari Nandan
Prasad & Anr. v. Employer llR to Management of
Food Corporation of India & Anr. (2014) 7 SCC
190: 2014 (2) SCR 955; U.P. Power Corporation
v. Bijli Mazdoor Sang (2007) 2 SCC 755 - relied
on.
•secretary, State of Karnataka & Ors. v. Uma Devi
& Ors. (2006) 4 SCC 1 : 2006 (3) SCR 953 - held
i1r1applicable.
UC v. D.J. Bahadur(1981) 1SCC315: 1981 (1)
SCR 1083 - referred to.
·
SUDARSHAN RAJPOOTv. U.P. STATE ROAD
961
TRANSPORT CORPORATION
1.7 Under Section 2(z) of the U.P. Industrial Disputes A
Act, "workman;' whether daily wage, casual and
temporary workman or permanent workmen, all are
workmen for the purpose of the Act. There is no
classification of workmen such as permanent, temporary
or casual. The classification of workmen either in the B
Recruitment Rules & Regulations or under the Model
Standing Orders framed by the State Government under
the Industrial Employment (Standing Orders) Act, 1946,
are applicable to the Respondent-Corporation in the
absence of service regulations framed by it. c
[Para 27][979-F-H]
1.8 It has been proved that the appellant-workman
sustained injuries in the accident that occurred on
account of the mechanical defect of the vehicle involved
in the accident. The plea taken by the respondentD
Corporation that the order of termination was passed
against the appellant-workman as the accident occurred
on account of negligent driving of the vehicle by the
appellant-workman, is not proved by the respondentCorporation in order to justify the same. [Para 28] E
[980-D-E]
Punjab Land Development and Reclamation
Corporation Ltd., Chandigarh v.Presiding Officer,
Labour Court, Chandigarh 1990 (3) SCR 111 -
followed.
F
Chief Conservator of Forests and Anr. v.
Jagannath Maruti Kondhare & Ors (1996) 2 SCC
293: 1995 (6) Suppl. SCR 259; New Maneck
Chowk Spg. & Wvg. Co. Ltd. v. Textile Labour
Assn. AIR 1961 SC 867 : 1961 SCR 1; Delhi
G
Cloth & General Mills Ltd v. Shambhu Nath
Mukherjee & Ors. (1977) 4 SCC 415 : 1978
(1) SCR 591; L. Robert D'souza v. Executive
Engineer, Southern Railway & Anr (1982)1 SCC
645 : 1982 (3) SCR 251 - relied on.
H
962
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A
State Electronics Development Corporation Ltd.
v. Mamni (2006) 9 SCC 434 : 2006 (1) Suppl.
SCR 638 - referred to.
2. Denial of back wages to an employee, who has
suffered due to an illegal act of the employer would
B amount to indirectly punishing the concerned employee
and rewarding the employer by relieving him of the
obligation to pay back wages including the emoluments.
Therefore, the appellant-workman should be paid full
back-wages
by the respondent-Corporation.
C [Para 29)[981~G-H; 982-A-B]
Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D. Ed) and Ors. (2013)
10 SCC 324: 2013 (9) SCR 1 ·relied on.
0
3. Having regard to the finding of fact recorded by
the Workmen's Compensation Commissioner while
determining the claim under the Workmen's
Compensation Act, the appellant-workman sustained
grievous injuries to his legs which is an employment
injury suffered during the course of employment in the
E respondent-Corporation.Therefore, the respondentCorporation is statutorily obliged u/s. 47 of the The
Persons with Disabilities (Equal Opportunities,
Protection of Rights, and Full Participation) Act, 1995 to
provide alternate equivalent job to the appellantF workman in place of the post of the driver.[Para 30]
G
H
[982H8-C; 983-F-G]
Bhagwan Dass & Anr v. Punjab State Electricity
Board (2008) 1 SCC 579: 2008 (1) SCR 32
relied on.
Case law reference:
2006 (1) Suppl. SCR 638
referred to Para 9
1995 (6) Suppl. SCR 259
relied on
Para 16
2010 (1) SCR 591
relied on
Para 21
SUDARSHAN RAJPOOT v. U.P. STATE ROAD
963
TRANSPORT CORPORATION
(2009) 8 sec 556
relied on
Para 22
A
2006 (3) SCR 953
held inapplicable Para 22
2014 (2) SCR 955
relied on
Para 24
(2001) 2 sec 755
relied on
Para 24
1981 (1) SCR 1083
referred to
Para 24
B
1961 SCR 1
relied on
Para 24
1978 (1) SCR 591
relied on
Para 26
1982 (3) SCR 251
relied on
Para 26
1990(3) SCR 111
followed
Para 26
c
2013 (9) SCR 1
relied on
Para 29
2008 (1) SCR 32
relied on
Para 30
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
10353-10354 of 2014.
From the Judgment and Order dated 05-03-2008 and D
03-08-2010 of the High Court of Judicature at Allahabad in
Civil Misc. Writ Petition No. 21553(C) of 2005 and in Civil
Misc. Review Application No .. 93051 of 2008 in Civil Misc.
Writ Petition No. 21553(C) of 2005.
Sudhir Kulshreshtha, Adv. for the Appellant.
E
Pradeep Misra, Daleep Kumar Dhayani, Suraj Singh,
Advs. for the Respondent.
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. Leave granted.
F
2. These civil appeals are directed against the impugned
judgment and orders dated 5.3.2008 and 3.8.2010 passed in
Civil Misc. Writ Petition No. 21553(C) of 2005 and Civil Misc.
Review Application No. 93051 of 2008 by the High Court of
Judicature atAllahabad. Vide order dated 05.03.2008 the High G
Court allowed the writ petition filed by the respondent- U.P.
State Road Transport Corporation (in short 'the respondentCorporation') and quashed the award dated 31.05.2004
passed by the Labour Court and held that the appellantH
964
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A workman would be entitled to consolidated damages/
compensation equivalent to the retrenchment compensation
calculated from the date of his engagement till the date of his
disengagement. The Review Application of the Corporation
B
c
was rejected.
3. Brief facts in nutshell are stated hereunder for the
purpose of appreciating rival legal contentions with a view to
find out as to whether the impugned judgment is required to
be interfered with or not by this Court in exercise of its appellate
jurisdiction.
4. On 11.03.1997 the appellant-workman Sudarshan
Rajpoot was appointed to the post of Driver at Azad Nagar
Depot, Kanpur, in the respondent-Corporation. On 07.06.1999
the appellant-workman was driving a vehicle bearing No.UAN
8582 on the Deora to Kanpur route, when all of a sudden the
D steering became free due to the iron ball of the tyre being
damaged and he lost control over the vehicle. As a result of
which the vehicle met with an accident and the appellantworkman broke both his legs. He was admitted in Lucknow
Medical College and his treatment continued till 09.08.2000.
E On 10.8.2000, he presented himself for duty with a fitness
certificate, when he was told orally that his name was struck
off from the rolls of post of driver and has been removed from
the services of the Corporation. No order of termination from
his services was served upon the appellant-workman on that
F day. It is the case of the appellant-workman that he had worked
for more than 240 days continuously in a calendar year from
the date of his appointment till the date of his termination from
the services of the resppndent-Corporation.
5. The appellant-workman raised an industrial dispute
G before the Conciliation Officer questioning the correctness of
the order of termination dated 29.07.2000 under the provisions
of the U.P. Industrial Disputes Act, 1947 (for short "the U.P.l.D,
Acf').
H
SUDARSHAN RAJPOOT v. U.P. STATE ROAD
965
TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]
The State Government of Uttar Pradesh, which is the
A
appropriate State Government under the U.P.l.D.Actto make
an order of reference to either the Labour Court or Industrial
Court for adjudication of the industrial dispute between the
workman and their employer, exercised its statutory powers
under Section 4-K of the U.P.1.DAct and referred the dispute B
to the Labour Court vide its order No. 483-85 KR (Branch
Secretary) CP493/2000 dated 9.4.2001 to adjudicate the
following point of dispute whether the termination of services
of the appellant-workman by the respondent-Corporation vide
order dated 29. 7.2000 is proper and valid? If not then whether c
the concerned appellant-workman is entitled to receive interest/
compensation?
6. The said order of reference was registered as·
Industrial Dispute No.52 of 2001 by the Labour Court. The
Labour Court has adjudicated the dispute, after affording an
D
opportunity to the parties and rejected the plea of the
respondent-Corporation that the appellant-workman was
working on contract basis. Further, the LabourCourt adverted
to an undisputed fact that the order of termination was not
preceded by any departmental inquiry required to be conducted
E
by the Corporation. It was also noted by the Labour Court that
no evidence on record was adduced before it to prove the
allegation made in the order of termination that the accident
occurred on account of the negligence on the part of the
appellant-workman.
F
· 7. The Labour Court has held that the workman had
worked for more than 240 days in a calendar year and that he
was removed from his post on 29.07.2000 by the Corporation
without any valid reasons. In the order of termination, it has
been specifically stated that his name was struck off from the G
contract roll. The finding of fact recorded by the Labour Court
on appreciation of the pleadings and evidence on record was
that the termination of the services of the appellant-workman
was contrary to law and accordingly set aside the same &
H
966
SUPREME COURT REPORTS
[2014) 13 S.C.R.
A passed an Award. The Corporation was directed to reinstate
the appellant-workman without any break in service in the post
of driver and pay all his dues, salary etc. from the date of
termination of his services and also further directed to the
Corporation to continue to pay in future also.
B
8. The said award was challenged by the respondentCorporation before the High Court questioning the correctness
of the findings of fact inter a/ia, contending the finding recorded
by the Labour Court in its Award that the appellant-workman
was a permanent employee of the Respondent-Corporation
c without there being any evidence on record and therefore, the
same is erroneous in law. Reliance was placed on the decision
of this Cou1t in the case of Secretary, State of Karnataka &
-Ors. v. Uma Devi & Ors. 1 in the matter of appointment of the
appellant-workman as he was appointed on temporary/
D contractual basis.
9. The High Court has set aside award of reinstatement
and consequential reliefs granted by the Labour Court in its
Award after referring to the decisions of this Court in the cases
of Haryana State Electronics Development Corporation
E Ltd. v. Mamni 2• The High Court held that the appellantworkman was entitled to consolidated damages/compensation •
equivalent to the retrenchment compensation calculated from
the date of the workmen's engagement till the date of his
disengagement.
F
10. The correctness of the impugned Judgment and order
of the High Court is questioned by the appellant-workman
before this Court by raising various questions of law and urging
various grounds in support of the same and prayed for
G
restoration of the award passed by the Labour Court.
11. The legal questions raised in this appeal are that the
High Court has failed to consider Section 6R of the U.P.l.D.
Act, where the effects of la·ws inconsistent with Sections 6J to -
6Q are dealt with. Sections 6N and 6Q (which are equivalent
H
1 (2006) 4 sec 1
2 (2006) g sec 434
-
~
SUDARSHAN RAJPOOTv. U.P. STATE ROAD
. 967
TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]
to Sections 25F and 25H of the Industrial Disputes Act, 1947r A
have an overriding effect on all laws, as such non-compliance
of mandatory provisions of Sections 6N and 60 rendered the
order of termination passed against the appellant void ab initio
in law. The conditions precedent as laid down under Section
6-N of the U. P. I. D. Act for retrenchment of workmen have not B
been complied with though the appellant-workman has put in
continuous service of more than 240 days in a calendar year
from the date of appointment till the date of his termination
passed by the Respondent-Corporation. Non-consideration
of this important legal aspect of the case by the High Court c
while setting aside the finding of facts recorded by the Labour
Court in its Award that the order of the respondent-Corporation
terminating the services of the appellant-workmar.i & noncompliance of mandatory provision of Section 6-N of the U.P.l.D.
Act, rendered the order of termination void ab initio in law.
D
12. It has been contended by the learned counsel for the
appellant-workman that the High Court has erred in placing
reliance upon the decision of this Court in Uma Devi case
(supra), which was distinguished in as much as the said case
is not applicable to the case on hand for the reason that the E
appellant-workman is a "workman" as defined under Section
2(z) of the U.P.1.D. Act and the respondent is the Statutory
Corporation which is an undertaking of the State Government
and therefore, it is an instrumentality of the State Government,
it will come within the definition of "Industry" as defined under · F
Section 2(k) of the U.P.1.D. Act. Therefore, the said provisions
of the U. P. I. D. Act are applicable to the appellant-workman as
he is a "workman" as defined under Section 2(z) of the U.P.l.D.
Act and Section 2(s) of the l.D. Act, 1947.
13. Further, it is contended that the High Court has failed G
to consider the ''.Unfair Labour Practice" as defined under
Section 2(ra) of the l.D. Act, 1947 read with Sections 25T and
25U and V Schedule of the I. D. Act. Para 10 of the V Schedule
of the l.D. Act prohibits the employer to employ workmen as
H
968
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A badlis, casuals or temporaries and to con:inue them as such
for years in the Corporation, with the object of depriving them
of the status and privileges of permanent workmen is
prohibited. It is further contended that the respondentCorporation is liable for penal action under the provisions of
B Section 25U of the 1.0. Act. In support of the above contention,
reliance was placed on 3 Judge Bench decision of this Court
in the case of Chief Conservator of Forests and Anr. v.
Jagannath Maruti Kondhare & Ors3•
14. On the other hand, the learned counsel appearing on
C behalf of the respondent-Corporation sought to justify the
correctness of the finding and reasons recorded by the High
Court in the impugned judgment. Alternatively, it is contended
that even.if the order of termination is bad in law, the workman
who. is working on the contract basis is not entitled for
0
reinstatement with full back-wages as per the view taken by
this Court in several decisions. Therefore, the learned counsel
for the respondent-Corporation submits that the impugned
judgment and order need not be interfered with by this Court
E
F
G
in exerclse of its appellate jurisdiction.
15. With reference to the above said rival legal
contentions the following substantial questions would arise for
our consideration:
i. Whether the High Court is justified in
passing the
impugned judgment, order and reversing the award
passed by the Labour Court?
ii. Whether the order of termination passed against the
.appellant-workman amounts -to retrenchment as
defined underSection.2(s)ofthe U.P.l.D.Act, 1947?
iii. Whether non-compliance of the statutory provisions
.
.
.
under Sections 6-N and 6-Q of the U.P.l.D. Act which
. are analogous with 25-F and 25-H respectively of the
1.0. Act, 1947 renders the order of termination void ab
inifio in law?
H '(1996) 2 sec 293
SUDARSHAN RAJPOOT v. U.P. STATE ROAD
TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]
iv. What relief the appellant-workman is entitled to?
16. To answer the above substantial questions of law it
is necessary for this Court to extract the order of termination
passed by the Assistant Regional Manager of the Corporation,
which reads thus:
"OFFICE OF ASSISTANT REGIONAL
MANAGER,
U.P. TRANSPORT CORPORATION, AZAD
NAGARDEPOT
969
A
B
Letter No.ARM/ A. Ngr/Bus Accident 0582/2000/3591
C
dated 29.7.2000
OFFICE ORDER
On 7 .6.1999 vehicle bearing No. 8582 which had met
an accident which was being driven on 7.6.1999 by Shri
Sudharshan Raj put contractual driver and conductor Shri D
Kamta Prasad on Deoria to Kanpur route and accident
occurred on the way at 1 :30 a.m. in the night at village
Palhari, Barabanki near Police Station Safdarganj and
due to negligent driving of the driver, department suffered
heavy loss.
E
Hence in order to meet departmental loss, forfeiting
security of driver Shri Sudharsan Raj put, I pass the order
to struck off his name from the contract roll with an
immediate effect. His name be struck off from contract F
roll.
Sd/(lllegible)
(Sad Sayed)
Assistant Regional Manager,
Azad Nagar, Depot" G
(emphasis laid by this Court)
In the aforesaid order of termination it is specially
mentioned that the appellant-workman was appointed as a
driver on contractual basis. It has been further stated that the H
970
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[2014] 13 S.C.R.
A
accident occurred on 07.06.1999 due to the negligent driving
of the appellant-workman resulting in heavy loss to the
department of the respondent-Corporation. In order to meet
the departmental loss, security amount of driver was forfeited
and Assistant Regional Manager had struck off the name of
B the appellant-workman from the contract employees roll with
immediate effect. The respondent-Corporation has neither
produced documentary evidence nor showed before the
Labour Court that the appellant-workman was appointed on
contract ba8is. The fact that he deposited Rs.2000/- towards
c security amount with the respondent-Corporation indicates that
he was working as the Driver on a permanent basis. In view of
the Schedule V, entry No. 10 of the l.D. Act, 194 7 the
respondent-Corporation is prohibited from engaging the
appellant-workman as a badli, casual or temporary workman
o to work on permanent basis. The fact that he had been
continuously working for more than 3 years and he had
rendered more than 240 days of service as the driver in a
calendar year until his termination order and yet he being
engaged on a contractual basis in the respondent-Corporation
E is statutorily prohibited. The same amounts to an unfair labour
practice as defined under Section 2(ra) read with Section 25T,
which action of the Corporation is punishable under Section
25U of the 1.0. Act. This legal position is settled by this Court
in Chief Conservator of Forest case (supra) wherein it was
F
held as under:-
"22 ..... ln our opinion, it would be permissible on facts of
a particular case to draw the inference mentioned in the
second part of the item, if badlis, casuals or temporaries
are continued as such for years. We further state that the
G
present was such a case in as much as from the materials
on record we are satisfied that the 25 workmen who went
to Industrial Court of Pune (and 15 to Industrial Court,
Ahmednagar) had been kept as casuals for long years
with the primary object of depriving them the status of
H
permanent employees in as much as giving of this status
SUDARSHAN RAJPOOTv. U.P. STATE ROAD
971
TRANSPORT CORPORATION [V. GO PALA GOWDA, J.]
would have required the employer to pay the workmen A
at a rate higher than the one fixed under the Minimum
Wages Act. We can think of no other possible object as,
it may be remembered that the Pachgaon Rarwati
Scheme was intended to cater to the recreational and
educational aspirations also of the populace, which are
B
not ephemeral objects, but par excellence permanent.
We would say the same about environment-pollutioncare work of Ahmednagar, whose need is on increase
because of increase in pollution. Permanency is thus writ
large on the face of both the types of work. If, even in c
such projects, persons are kept in jobs on casual basis
for years the object manifests itself; no scrutiny is required.
We, therefore, answer the second question also against
the appellants."
17. In the absence of the documentary evidence to justify D
the plea taken by the Respondent-Corporation that the
appellant-workman was a contract employee in the order of
termination it remained as a plea and not a proven fact of
assertion. Therefore, the appellant-workman is considered to
be permanent workman. Further, the appellant-workman has E
clearly stated in his affidavit before the High Court that at the
time of termination his juniors were working on permanent
basis. Therefore, the same is another added fact to accept
the contention of the appellant-workman by the Labour Court
that he was appointed as a permanent workman in the F
respondent-Corporation as a driver.
18. The reference of the industrial dispute to the Labour
Court regarding the justification of the order of termination
passed against the appellant-workman was made by the State
Government in exercise of its statutory power under the U.P.l.D. G
Act. The burden to justify the same lies on the respondentCorporation, the same has not been discharged by producing
cogent evidence on record before the Labour Court. Therefore,
the finding of fact recorded by the Labour Court while answering
H
972
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A the point of dispute referred to it by placing reliance upon the
evidence of the employer-EW1 wherein he admitted that the
appellant~workman was appointed on permanent basis in the
post of driver at Azad Nagar Depot of the respondentCorporation. The finding of fact was recorded by the Labour
B Court accepting the evidence of EW 1 that the appellantworkman has worked continuously from 11.3.1997 to
29.07.2000 in the respondent-Corporation. Therefore, the
Labour Court has rightly come to conclusion and held that the
appellant-workman has rendered more than 240 days
c continuous seNice from the date qf his appointment till the date
of passing the termination order.
19. It is the case of retrenchment as the termination of
the appellant from his seNices is otherwise for misconduct, in
view of the admitted fact mentioned in the order of termination
D that his name was struck off from the contract roll. Merely
because the words mentioned as "contractual driver" in the
termination order dated 29. 7 .2000 to strike off his name from
the contract employees roll does not automatically prove that
he has worked as the driver on contract basis in the
E respondent-Corporation.
20. The finding.of fact recorded by the Labour Court in
its award on proper appreciation of undisputed facts and
evidence on record, has been rightly held that the termination
order amounts to retrenchment and non compliance of the
F statutory provisions under Sections 6-N, 6-R and 6-Q of the
U.P.l.D.Act has rendered the order of termination void ab initio
in law. Therefore, the Labour Court was justified in passing
the award of reinstatement after setting aside the order of
termination and awarded consequential benefits and such as
G back-wages from the date of termination till date of
reinstatement and further direction to pay future salary to the
appellant-workman.
21. In the order of termination, it is alleged that on account
of negligent driving of the bus by appellant-workman the
H accident of the vehicle happened, the said allegation was
SUDARSHAN RAJPOOT v. U.P. STATE ROAD
973
TRANSPORT CORPORATION [V. GO PALA GOWDA, J.]
neither proved in the inquiry required to be conducted nor A
producing evidence before the Labour Court by the
respondent-Corporation. Therefore, the High Court has failed
to examine the above vital aspects of the case on hand and
erroneously interfered with the award passed by the Labour
Court in exercise of its extraordinary and supervisory B
jurisdiction under Articles 226 & 227 of the Constitution of India.
This exercise of power is contrary to the law laid down by this
Court in the case of Harjinder Singh v. Punjab State
Warehousing Corporation4, wherein this Court held thus:-
"17. Before concluding, we consider it necessary to C
observe that while exercising jurisdiction under Articles
226 and/or 227 of the Constitution in matters like the
present one, the High Courts are duty bound to keep in
mind that the Industrial Disputes Act and other similar
legislative instruments are social welfare legislations and D
the same are required to be interpreted keeping in view
the goals set out in the preamble of the Constitution and
the provisions contained in Part IV thereof in general and
Articles 38, 39(a) to (e ), 43 and 43A in particular, which
mandate that the State should secure a social order for
E
the promotion of welfare of the people, ensure equality
between men and women and equitable distribution of
material resources of the community to sub-serve the
common good and also ensure that tl"'1e workers get their
dues. More than 41 years ago, Gajendragadkar, J, opined
F
that "the concept of social and economic justice is a living
concept of revolutionary import; it gives sustenance to
the rule of law and meaning and significance to the ideal
of welfare State" - State of Mysore v. Workers of Gold
Mines AIR 1958 SC 923."
G
Therefore, we have to hold that the High Court has
erroneously exercised its supervisory jurisdiction under Articles
226 & 227 of the Constitution of India, in interfering with the
4 (201 O) 3 sec 192
H
974
SUPREME COURT REPORTS
[2014] 13 S.C.R.
•
A findings offact recorded in the award by the Labour Court and
setting aside the same and in lieu of the s9me it awarded
retrenchment compensation from the date of appointment till
the date of disengagement. The impugned Judgment and order
passed by the High Court is not only erroneous but suffers
B from error in law as it has failed to follow the principles laid
down by this Court in the above case. Therefore, the same is
liable to be set aside.
22. Further, the reliance placed upon the decision of this
Court on Uma Devi (supra) case by the High Court to reverse
C 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
State, Road Transport Corpn. & Anr. v. Casteribe Rajya
Parivahan Karmchari Sanghatan5, wherein, this Court after
D 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
E 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 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 MRTU and
F PULP Act, once unfair labour practice on the part of the
employer under Item 6 of the Schedule IV is established.
23. 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
G 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
H
~&S'M gsE<;;wrt.
SUDARSHAN RAJPOOT v. U.P. STATE ROAD
975
TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]
24. This Court in the later judgment in the case of Hari A
Nandan Prasad & Anr. v. Employer llR to Management of
Food Corporation of India & Ant. 6, after adverting to the law
laid down in U.P. Power Corporation v. Bijli Mazdoor Sangh7
and Maharashtra State Road Transport Corpn. & Anr.
(supra) wherein Uma Devi's case is adverted to in both the
B
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.
C
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. It was held at para 32
in the Hari Nanda Prasad case (supra) as under:-
"32. However, the Court in Maharashrtra SRTC case D
also found that the factual position was different in the
case before it. Here the post of cleaners in the
establishment were in existence. Further, there was a
finding of fact recorded that the Corporation had indulged
in unfair labour practice by engaging these workers on
E
temporary/casual/daily-wage basis and paying them
paltry amount even when they were discharging duties
of eight hours a day and performing the same duties as
that of regular employees."
Further, Hari Nandan Prasad & Anr. (supra) referred
F
at para 36, the case of LIC v. D.J. Bahadur8 in which the
relevant para 22 of LIC (supra) case extracted as under:-
"36 ...... "22. The Industrial Disputes Act is a benign
measure which seeks to pre-empt industrial tensions,
provide the mechanics of dispute resolutions and set up G
the necessary infrastructure, so that the energies of the
partners in production may not be dissipated in .
a (2014) 7 sec 190
1 (2007) 2 sec 755
H
8 (1981) 1 SCC315
976
SUPREME COURT REPORTS
[2014) 13 S.C.R.
A
counterproductive bcittles and the assurance of industrial
justice may create a climate of goodwill."
In order to achieve the aforesaid objectives, the Labour
Courts/Industrial Tribunals are given wide powers not only
to enforce the rights but even to create new rights, with
B
the underlying objective to achieve social justice. Way
back in the year 1950 i.e. immediately after the enactment
of Industrial Disputes Act, in one of its first and celebrated
judgment in the case of Bharat Bank Ltd. V. Employees
of Bharat Bank Ltd.[1950) LLJ 921,948-49 (SC) this
C
aspect was highlighted by the Court observing as under:
D
E
"61 ....... ln settling the disputes between the employers
and the workmen, the function of the tribunal is not
confined to administration of justice in accordance with
law. It can confer rights and privileges on either party
which it considers reasonable and proper, though they
may not be within the terms of any existing agreement. It
has not merely to interpret or give effect to the contractual
rights and obligations of the parties. It can create new
rights and obligations between them Which it considers
essential for keeping industrial peace."
And again at para 37, observing that the aforesaid
sweeping power conferred upon the Tribunal is not unbridled
and is circumscribed by this Court in New Maneck Chowk
Spg. & Wvg. Co. Ltd. v. Textile Labour Assn. 9, the relevant
F para 6 of which is extracted as under:-
G
"37 .... "6 . ... This, however, does not mean that an
Industrial Court can do anything and everything when
dealing with an industrial dispute. This power is
conditioned by the subject-matter with which it is dealing
and also by the existing industrial law and it would not be
open to it while dealing with a particular matter before it
to overlook the industrial law relating to that matter as
laid down by the legislature or by this Court."
H
9 AIR 1961SC867
SUDARSHAN RAJPOOTv. U.P. STATE ROAD
977
TRANSPORT CORPORATION [V. GOPALAGOWDA, J.]
38. It is, thus, this fine balancing which is required to be A
achieved while adjudicating a particular dispute, keeping
in mind that the industrial disputes are settled by
industrial adjudication on principle of fair play and justice."
25. In view of the aforesaid statement of law laid down
by this Court after adverting to the powers of the Industrial B
Tribunal and the Labour Court as interpreted by this Court in
the earlier decisions referred to supra, the said principle is
aptly applicable to the fact situation of the case on hand, for
the reason that the Labour Court recorded a finding of fact in
favour of the workman that the termination of services of the C
appellant herein is not legal and valid and further reaffirmed
the said finding and also clearly held that the plea taken in the
order of termination that he was appointed on contract basis
as a driver is not proved by producing cogent evidence. Further,
we hold that even if the plea of the employer is accepted, D
extracting work though of permanent nature continuously for
more than three years, the alleged employment on contract
basis is wholly impermissible. Therefore, we have held that it
amounts to an unfair labour practice as defined under 2(ra) of
the 1.0. Act, 1947 read with Sections 25Twhich is prohibited
E
under Section 25U,ChapterVC of the LO.Act, 1947. We have
to hold that the judgment of the High Court in reversing the
award is not legal and the same is set aside by us.
26. Further, the conditions precedent to the retrenchment
of workmen under Section 6-N of the U.P.l.D.Act have not been F
satisfied before terminating the services of the appellantworkman in the case on hand. Section 6-N of the U.P.l.D. Act
states as follows:
"6-N.