State of U.P. and Another v. Presiding Officer Labour Court and Another

Court No. - 33 Case :- WRIT - C No. - 16383 of 2014 Petitioner :- State Of U.P. And Another Respondent :- Presiding Officer Labour Court And Another Counsel for Petitioner :- Ms. Suman Sirohi Counsel for Respondent :- Shyam Narain,Anup Kumar Srivastava,Gopal Narain,S.C.,Sudhanshu Narain,Vivekanand Yadav Hon'ble Chandra Kumar Rai,J.

¶1Heard Mr. Prabhakar Tripthi, learned counsel for the petitioners and Mr. Sudhanshu Narain, learned counsel for respondent no.2.

¶2Brief facts of the case are that respondent no.2 was appointed in the petitioner-department in October 1984 and he worked up to 17.9.1992. Respondent no.2 was not permitted to work since 18.9.1992. In the year 1993, conciliation proceedings were initiated and failed accordingly State Government has referred the diputed to Labour Court vide order dated 18.8.1994 in exercise of its power under Section 4K of the U.P. Industrial Dispute Act, 1947 hereinafter referred to as Act of 1947. Respondent no.1 registered the aforementioned reference as adjudication case No. 269 of 1994 and notices were issued to the petitioners as well as the respondent no.2. In the aforementioned adjudication No. 269 of 1994, petitioners and respondent no.2 filed their written statement and adduced evidence in support of their cases. The Labour Court vide impugned award dated 28.1.2013 as published on 24.4.2013 reinstated the respondent no.2 with full backwages. Hence this writ petition for the following relief:- " Issue a writ, in the nature of certiorari and get the award dated

28.1.2013 published on 24.4.2013, passed by respondent no.1 and consequential recovery proceedings initiated under Section 6-H

(1) of U.P. Industrial Dispute Act, before Deputy Labour Commissioner, Gorakhpur quashed."

¶3This Court entertained the matter vide order dated

14.3.2014 and granted conditional interim order staying the award with condition that petitioners shall deposit Rs. 1,00,000/- before respondent no.1 and 50% of the deposited amount was ordered to be released in favour of respondent no.2.

¶4In pursuance of the interim order dated 14.3.2014, parties have exchanged their affidavits.

¶5Learned Standing Counsel for the petitioner submitted that impugned order has been passed in illegal and arbitrary manner. He further submitted that Labour Court has erred law in directing the reinstatement of the workman with full backwages. He further submitted that awarding the full backwages to respondent no.2 is not according to the ratio of law laid down by this Court from time to time. He submitted that Hon'ble Apex Court has held in several cases that mere violation of Section 6-N of the Act of 1947 will not entitle the workman for reinstatement in service. He further placed reliance upon the judgement reported in 2001 (3) SC 326 State of U.P. Vs. Pratam Singh Narsinh Parmar. He submitted that impugned award passed by Labour Court is liable to be set aside.

¶6On the other hand, learned counsel for respondent no.2 submitted that respondent no.2 was engaged in October 1984 and he worked up to 17.9.1992. He further submitted that respondent no.2 was not permitted to work since

18.9.1992. He further submitted that respondent no.2 has rightly been reinstated under the impugned order with full backwages which is correct exercise of jurisdiction by the Labour Court. He further submitted that similar controversy has already been adjudicated by this Court and the writ petition filed by State has been dismissed on merit. He placed the judgement of this Court passed in Writ C No. 58895 of 2012 State of U.P. Vs. Mahendra as well as in Writ C No. 33432 of 2012 Abhimanyu and Others Vs. The Principal Secrtary and Others in order to demonstrate that no interference is required in the matter against the impugned order.

¶7I have considered the argument advanced by learned counsel for the parties and perused the records.

¶8There is no dispute about the fact that the labour Court under impugned award dated 28.1.2013 as published on

24.4.2013 has reinstated respondent no.2 in service with full back wages and other service benefits.

¶9In order to appreciate the controversy involved in the matter, perusal of the relevant portion of the impugned award of labour Court will be necessary, which is as under: "

समकपपठठसपनअधधकठरप,

शमनयठयठलय,

उतरपददश, गगरखपपर। उपसससतत

शपसपखवपरधससहरठनठपपठठसपनअधधकठरप

अभभभनररयभववठदससखयठ269/94

शपभपमयठदवपपतशपलठललयठदवगठमझझवठपग०बबतठलपपरधजलठददवररयठबनठम1-रदनज अधधकठरप,

सठमठधजकवठभनकक, रदपपर,

गगरपबठजठरददवररयठ2-

पभठगपयभनददशक,

सठमठधजकवठभनकक,

वनभवभठग,

ददवररयठकदमधयउतपनऔदगभगकभववठदकदसमबनधममत उपसससभतत

सदवठयगजककककओरसद:

कगईनहप।

शभमकककओरसद:

शपएम०कद०धससहअधधककतपभतभनधध।

उदगग:

सठमठधजकवठभनकक।

जनपद: ददवररयठ अभभभनररय

भदनठसकतजनवरप28, 2013 उपशमठयपक, उ०प०,

गगरखपपरकदत,

गगरखपपरकदपतसस०10818-23/जप०आर०सप०पप०

भदनठसक18-8-94

दठरठउपरगकपककठरककदमधयउतपनऔदगभगकभववठदकदनयठय-

भनररयनहदतपससदभभदशइसनयठयठलयकगससदभभरतभकयठगयठ।पककठरककदमधयउतपन

औदगभगकभववठदकठभववररभनमनपकठरहबत-

औदगभगकभववठदकठभववरर

कयठसदवठयगजककदठरठअपनदशभमकशपभपमयठदवपपतशपलठललयठदवमठलप/

वठचरकग

भदनठसक18-9-92

सदकठयरसदपकसक/

वसभचतभकयठजठनठउभचततसठ/

असवठवबधठभनकहब(यभद नहह,

तगकमरचठरपभकसभहतलठभ/

कभतपलभतरकदपठनदकठअधधकठरपहबएवसअनयभकसभववरर सभहत)"

शभमकनदअपनदधलधखतकसनममकहठभकउसनदअकटलबर1984

सदभदनठसक17-9-92 तक

मठलपकदपदपरभनयगधजतहगकरलगठतठर240

भदनककसदवठपतयदकवररममककहब।भदनठसक 18-9-92

कगउसदकठयरसदपकसक/

वसभचतकरभदयठगयठ।उसकदकठयरएवसआचररकद पभतकू ल कभी कोई तुभटया आरोप नही रहा। उसके दारा भकया राने वाला माली का कायर आर भी भवदमान ह।ै कायर से पथृ क/वभं चत करते समय उससे कभनष शभमको को काम पर रबनाये रखा गया और बाद मे नई भनयभु कया ं भी की गयी। सेवा से हटाने के समय या पूव मे उसे कोई नोभटस, नोभटस के बदले वेतन तथा छटनी पभतकर पाप नही कराया गया। ेपभतषान म वररषता सूची बनाये राने का पाभवधान है रबभक कोई वररषता सूची पकाभशत नही की गयी। उसका माह रुलाई, अगसत व धसतमबर माह के 17 भदन का वेतन रोक धलया गया धरसका भुगतान उसे आर तक नही भकया गया ह।ै वादी शभमक ने यह बात े शपथपूवरक भदये गये बयान मे कही ह।ै उससे सेवायोरक पभतभनधध ने धररह भी की ह।ै वादी दारा शपथपूवरक भदये गये बयान के खणडन मे सेवायोरको की ओर से कोई पलेखीय साकय पसतुत नही भकया गया है और मौधखक साकय से भी खणडन नही भकया गया ह।ै र रउपरोक के अभतररक शभमक ने अनुभव पमाण पत पदश डबलू० 1 व पदश डबलू० 3 दाधखल रभकया ह।ै पदश डबलू० 1 पर वन-र+क भवकास +ेत बतै ालपुर के हसता+र से भद.

31.12.86 भतधथ अंभकत को रारी भकया गया ह।ै पदशर डबलू० 2 वादी शी भीम यादव दारा झझवा धरला देवररया सा०वा० वन पभाग देवररया के रदपुर +ेत के अनतगरत दभै नक वेतन भोगी माली/वाचर के पद पर कायर करने का माहवारी कायर का भववरण ह ै धरस पर वन राधर० अधधकारी रदपुर राधर० सामाधरक वाभनकी वनपभाग देवररया की मोहर एवं हसता+र ह।ै पदशर डबलू० 1 व डबलू० 2 के खणडन म े कोई पले ेखीय या मौधखक साकय सेवायोरक की ओर से पसतुत नही भकया गया है अतः पदशर डबलू० 1 मे दशारयी गयी परसा भडवाई मे वृ+ारोपण म े 1984 मे दभै नक पाररशभमक वृ+ारोपण माली के रप मे 1-10-86 से 31-12-86 तक कायर त होने एवं पदशर डबलू० 2 दारा माहवार कायर भदवसो के आधार पर 240 भदन से अधधक भनरनतर कायर करना धसद होता ह ै कयोभक सेवायोरको ने उक कायर अवधध का खणडन भकसी पकार के साकय से नही भकया ह।ै ऐसे भी कोई पलेख पसतुत नही भकये गये ह ै भक शभमक के भवरद कायर एव ं आचरण की भशकायत के कारण कोई रांच आभद हहई हो। पयारप अवसर भदये राने के बाद भी कोई साकय सेवायोरको ने पसतुत नही भकया ह।ै वादी शभमक दारा अकटूबर 1984 से 17-9-92 तक लगातार भनरनतर सेवा करने से उसके दारा 240 भदनो से अधधक भदनो की सेवा पूरी करना धसद होता ह।ै कायर से पृथक/वंभचत करते समय वादी शभमक को नोभटस या नोभटस के बदले वेतन या छटनी पभतकर मुआवरा का भुगतान न करने के आधार पर उ०प० औदोभगक भववाद अधधभनयम 1947 की धारा 6-एन० के पाभवधानो का उलंघन सेवायोरको दारा भकया राना धसद होता ह।ै इसी पकार वादी की सेवा से पृथक/वंभचत करने के समय कभनष शभमको को काम पर बनाये रखने की बात का खणडन सेवायोरको दारा न भकये राने से उ०प० औदोभगक भववाद अधधभनयम 1947 की धारा 6-पी के पाभवधानो का उलंघन भकया राना धसद होता ह।ै वादी को कायर से पृथक/वभं चत भकये राने के बाद नये शभमको की भनयभक पभतवादी दाराु भकये राने का भकसी पकार से खणडन न भकये राने से भी उ०प० औदोभगक भववाद अधधभनयम 1947 के भनयम 6-कय के पाभवधानो का उलंघन भकया राना धसद होता ह।ै ू अतः उपरोक के आधार पर वादी शभमक शी भीम यादव पुत शी लालू यादव माली/वाचर को भदनांक 18-9-1992 से कायर से पृथक/वभं चत भकया राना उभचत तथा अथवा वैधाभनक नही ह।ै वादी शी भीम यादव अपनी पुरानी सेवा की तारतमयता के साथ सेवा म े बहाल भकय े राने ेका अधधकारी ह।ै सेवायोरक वादी को बठै की अवधध के बकाया देयो का भी भुगतान कर। वादी का माह रुलाई, अगसत व धसतमबर 92 माह के 17 भदन के रोके गये वेतन के भुगतान

कदससबसधममसदवठयगजकदठरठकगईपलदखपययठमगधखकसठकयपसतपतनहहभकयठगयठ।

सदवठयगजकइसबठतकठखणडनकरनदममअसफलरहदहहअततसदवठयगजककगआददभशत

भकयठजठतठहबभकसदवठयगजकवठदपकठमठहजपलठई,

अगसतवमठहधसतमबर92 कद17 भदन

कदरगकदगयदवदतनकठभपभपगतठनकरम।

ह०अपठनपय

28.1.13

भदनठसकजनवरप28, 2013 (

सपखवपरधससहरठनठ) पपठठसपनअधधकठरप

शमनयठयठलय, उ०प०, गगरखपपर"

¶10Perusal of finding of fact recorded by labour Court by which respondent no.2 was reinstated in service do not require any interference in exercise of jurisdiction under Article 226 of the Constitution of India.

¶11So far as the grant of full back wages is concerned, the perusal of the case law on the point of back wages will be relevant for consideration, which are as under: "1.AIR 1979 SC 75 (M/s. Hindustan Tin Works Pvt. Ltd., v/s The Employees of M/s. Hindustan Tin Works Pvt. Ltd. And others )

¶2[2010 (124) FLR 700] Harjinder Singh v/s Punjab State Warehousing Corporation

¶3[2013 (139) FLR 541] Deepali Gundu Surwase v/s Kranti Junior Adhyapak and others

¶4[2014 (142) FLR 20] Bhuvanesh Kumar Dwivedi v/s M/s. Hindalco Industries Ltd.

¶5[2015 (145) FLR 184] Mackinon Mackenzie & Company Ltd. v/s Mackinnon Employees Union

6.[2019 LawSuit(SC) 1506] Jayantibhai Raojibhai Patel v/s Municipal Council, Narkhed & Ors.

¶7[2022 (175) FLR 544] Armed Forces Ex Officers Multi Services Co-Operative Society Ltd. v/s Rashtriya Mazdoor Sangh (Intuc)"

¶12Hon'ble Apex Court in Deepali Gundu Surwase (supra) has laid down the principle for grant of back wages. Paragraph nos.33 to 38 will be relevant for perusal, which are as under: "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 on lesser 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 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-a-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 Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim 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."

¶34Reverting to the case in hand, we find that the managements decision to terminate the appellants service was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.

¶35The learned Single Judge agreed with the Tribunal that the action taken by the management to terminate the appellants service was per se illegal but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non-employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No.8404/2006, but also Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employed elsewhere.

¶36In view of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice.

¶37In the result, the appeal is allowed, the impugned order is set aside and the order passed by the Tribunal is restored. The management shall pay full back wages to the appellant within four months from the date of receipt of copy of this order failing which it shall have to pay interest at the rate of 9% per annum from the date of the appellant?s suspension till the date of actual reinstatement.

¶38It is also made clear that in the event of non-compliance of this order, the management shall make itself liable to be punished under he Contempt of Courts Act, 1971"

¶13Hon'ble Apex Court in another case of Allahabad Bank and Others Vs. Avtar Bhusan Bhartiya in Special Leave Petition (Civil) No. 9096 of 2019 vide judgement dated

22.4.2022 has ordered for payment of 50% of the back wages considering the earlier case law including Deepali Gundu Surwase (Supra). Paragraph Nos. 36, 37 and 38 of the judgement rendered in Allahabad Bank (Supra) will be relevant which are as under:- "36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded.

¶37As we have pointed out at the beginning, the total period of service rendered by the Officer-employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer-employee is also liable to be dismissed.

¶38Accordingly, both the Special Leave Petitions are dismissed, no costs."

¶14In the instant matter, the labour Court has found that dismissal of respondent no.2 from service is illegal accordingly ordered for reinstatement with full backwages but considering the entire fact and circumstances of the case, the grant of 50% of the back wages to respondent no.2 appears to be just and proper in the place of full back wages.

¶15It is also material that pendency of the instant writ petition before this Court since 2014 will not deprive the respondent no.2 for reinstatement in service because Labour Court has passed the impugned award on 28.1.2013 for reinstatement of respondent no.2.

¶16Considering the entire facts and circumstances as well as the ratio of law laid down by Hon'ble Apex Court in Deepali Gundu Surwase (Supra) and Allahabad Bank and Others (Supra), the instant petition is allowed in part. The impugned award dated 28.1.2013 as published on

24.4.2013 passed by respondent no.1/ Presiding Officer, Labour Court U.P. Gorakhpur in Adjudication case No. 269 of 1994 is modified to the extent that respondent no.2 / workman shall be entitled to 50% of his back wages in place of full back wages. The reinstatement part and other consequential service benefit as awarded under the award dated 28.1.2023 as published on 24.4.2013 is hereby maintained. Petitioners/ corporation is directed to release the arrears of back wages as directed above to respondent no.2 within period of three months from today adjusting the amount which has already been paid under the interim order of this Court. The Labour Court is also directed to reinstate the respondent no.2 in service as well as release the deposited amount along with accrued interest in favour of respondent no.2 within period of three weeks from the date of production of certified copy of this order before him which shall be adjusted in final amount payable under the impugned award to the respondent no.2.

¶17No order as to cost. Order Date :- 25.9.2024 Vandana Y. High Court of Judicature at Allahabad