Judgment:
Anjani Kumar, J.
1. This writ petition, under Article 226 of the Constitution of India, by the petitioner challenges the order dated 30th October 1982 and the Award in Adjudication Case No. 147 of 1981 passed by Labour Court, Allahabad which is published on 20th July 1983 and annexed as Annexure-11 to the writ petition.
2. The following dispute was referred to the Labour Court for adjudication.
'KYA SEVAYOJAKON DWARA APNE SHRAMIK JAWAHAR LAL, PUTRA SHRI BABAI SURVEYER KI DINANK 15/2/81 SE SEVAYEN SAMAPTA KIYA JANA UCHIT TATHA/ATHVA VAIDHANIK HAI/YADI NAHIN, TO SMBANDHIT SHRAMIK KYA LABH/ANUTOSH (RELIEF) PANE KA ADHIKARI HAI TATHA ANYA KIS VIVRAN SAHIT?'
3. The respective cases of the employer and employee are that the respondent-workman, Jawahar Lal, was employed on 3rd October 1977 as Survey Boy with the employer. His services have been terminated without any notice or retrenchment compensation with effect from 15th February 1981. The workman, therefore, raised the dispute which has been referred to the Labour Court, Allahabad and the Labour Court, Allahabad by Award in question has answered the reference in favour of the workman. Before the Labour Court, after exchange of pleadings, the employers have raised preliminary objection to the effect whether the order of reference is bad in law and gives no jurisdiction to the Labour Court to adjudicate upon the same in view of Section 4-A and 4-B read with Schedule 1 of U.P. Industrial Dispute Act (hereinafter referred to as the Act). The Labour Court, by its order dated 30th October 1982, has decided the preliminary issued against the employer and held that the Labour Court has jurisdiction to answer reference made to it under the provisions of the Act. In the prayer of the writ petition though it is prayed that the order dated 30th October 1982 may also be quashed but during the course of arguments no arguments were advanced, therefore, the challenge of the employers confines only to the Award. In reply to the demand of the workman before the Labour Court the employers have set up the case that workman concerned was employed on daily wages for casual survey work and when the survey work was completed the employers offered him alternative employment through contractor but the workman concerned has refused. Therefore on 14th February 1981 the workman concerned was given a month's notice and was offered a month's salary in lieu of notice and retrenchment compensation which he refused to accept. Therefore, the workman concerned is not entitled for any relief. On the other hand as stated above the workman has set up the case that he was employed with effect from 3rd October 1977 and his services were arbitrarily terminated with effect from 15th February 1981. While terminating the services of the workman no notice pay nor any retrenchment compensation has been paid to him. It is further asserted by the workman that from 3rd October 1977 the workman has continuously worked with the employers till the date of termination. Thus he has completed 240 days in each calendar year. His services were terminated because he demanded regular employment and regular pay scale. On the pleadings of the parties and evidence on the record the Labour Court arrived at the finding that the workman concerned has worked for more than 240 days in calendar year till the date of retrenchment and further the employer has not given any retrenchment compensation and provision of Section 6-N of the Act has not been complied with. The Labour Court, therefore, direct reinstatement of the workman concerned with continuity of service and full back wages.
4. This Court by order dated 22nd August 1983 passed the following interim order:--
'Until further orders, the operation of the award passed in Adjudication Case No. 147 of 1981, published on 20.7.1983 shall remain stayed.'
5. This interim order was modified after hearing learned counsel for the parties by this Court on 1st March 1985. The modified interim order runs as under:--
'Heard counsel for the parties.
I direct that until further orders, the respondents shall not take steps from enforcing the award dated 28.5.1982 (Annexure 11 to the writ petition), provided the petitioner deposits with the Labour Court, Allahabad the entire salary due to respondent No. 1 for the period 6.12.1983 up to 30.4.1985 by 15.5.1985. The said salary shall be calculated on the basis of the last pay drawn by respondent No. 1 while he was in service. The petitioner should further go on paying the monthly salary of the workman for each month subsequent to the month of April 1985 by the 7th of the following month.
In case of default this order shall stand vacated. The workman concerned shall be allowed to withdraw the amount so deposited by the petitioner under this order without furnishing any security.
1.3.1985.'
6. It appears pursuant to the aforesaid modified order the employer has deposited the amount as contemplated by the order dated 1st March 1985 as there is no complaint that the employer has not complied with the order dated 1st March 1985.
7. Learned counsel for the petitioner-employer submitted that the workman concerned was employed as casual Survey Boy and he was not a regular employee. The workman concerned was employed on daily wages. The employer further contended that when the job of survey was over the employers offered the workman concerned an alternative employment through contractor which the workman concerned denied, therefore, the employers terminated the services of the workman concerned by offering him salary for one month in lieu of notice and retrenchment compensation which the workman has refused to accept. The employers further submitted that on workman's refusing to accept the notice pay and compensation the letter was sent to his address which he refused to accept. In these circumstances the contention of the workman that the employers have not complied with the provisions of Section 6-N is not correct. The employers have relied upon a decision of a learned Single Judge of this Court between employer and other workman reported in 2003 (98) FLR 1211, National Thermal Power Corporation Ltd. v. State of U.P. and Ors. wherein learned Single Judge, on the facts of that case, has arrived at a conclusion which is reproduced below:-
'3. Learned counsel for the petitioner urged that the finding of the Labour Court in holding that requirement of 6-N was not complied is perverse and against the evidence on record. The Labour Court has taken note of two documents E.1, E.2 in Para 8 of the award and in Para 9 it has held that it has not been proved that any compensation or notice pay was offered to the workman. Both the documents are on record. E.1 (Annexure 3) is a offer letter dated 15.6.1981 evidencing that a months pay and 15 days compensation, totaling Rs. 675/- was offered to the workman. On this letter there is an endorsement of M.V. Ahmad, supervisor, and of another official of the corporation to the effect that the workman after reading the letter, refused to accept either the letter or the money. This letter has been proved before the Labour Court by the said official. E.2 (Annexure 3-A) is another letter addressed to his native village mentioning about E.1 and mentioning his aforesaid refusal and asking him to take Rs. 675/- from the Account Sections after showing the letter. This document has also been proved that it was sent by registered post but was returned with the endorsement of refusal. This entire transaction has been proved by the witness M.V. Ahmad before the Labour Court. The Labour Court has not discussed this crucial evidence while recording the aforesaid finding in a most cursory manner. However, the counsel for the workman contends that such an offer was not compliance of section 6-N and actual payment should have been made. She has relied upon the decision of the Apex Court rendered in the case of Sain Steel Products v. Naipal Singh and Ors., in my view, the ratio of Sain Steels is not applicable to this case. In Sain Steel case (supra) the management had merely said that whatever was due could be collected from the office, it is in these circumstances it held that the offer was not in substantial compliance of law. She has then relied upon another decision of the Supreme Court in National Iron and Steel Co. Ltd. v. State of West Bengal. In this case the workman was asked to collect his compensation and notice pay later, the Apex Court in these circumstances held that the offer was not substantial compliance of the section. In the present case the total amount was mentioned including the monthly pay etc. The workman did not dispute the amount which was offered, he blandly forgot whether the offer was made. The management is not expected to thrust the money in his pocket. Recently, the Supreme Court has, in the case of Promod Jha v. State of Bihar, held that such a tender, as in the present case, was substantial compliance of the section. The Labour Court has completely lost sight of these crucial evidence in recording the aforesaid perverse finding. In my view there was sufficient evidence on the record to hold that the provisions of 6-N were complied.'
8. Learned Single Judge further held is paragraphs 4 and 5 as under:-
'4. There is another aspect of the case. It was the consistent case of the petitioner that the workman was offered alternative employment on the same wages, but he refused. When confronted during his cross-examination, the workman did not deny that any alternative appointment on same wages was offered, but said that he does not remember about the offer. Even during recording of the statement of M.V. Ahmad before the Court, his deposition was deferred on the ground of this offer of alternative employment when he said that the Corporation was still prepared to give him alternative employment. This fact is evident from the order-sheet of 1st and 2nd March, 1983 which is on record of the petition.
5. Considering both these factors, it appears that the workman was not interested in working but was only interested to some how extract money from the petitioner without working. This second aspect was also very crucial to come to just decision, but the Labour Court, for whatever reasons, has glossed over it.'
9. In the present case the Labour Court has disbelieved the offer of the notice pay and compensation as there is no evidence. After going through the evidence of employers and the workman that two documents have been proved by the witness produced before the Labour Court which is Ext. E-2 and E-3 but it has not been proved either by producing the Supervisor Sri T.N. Gupta who is said to be the scribe of the documents or any other witness that the workman has refused to accept the notice pay or the compensation offered to him. It is also not proved as stated in the Ext. E-3 by producing Sri T.N. Gupta or any other witness that the aforesaid amount was offered before him which the workman refused to accept and thereafter letter was sent by post. There is absolutely no evidence either oral or documentary to demonstrate that after the alleged refusal by workman the letter was sent by post. On the contrary there is evidence on oath by the workman that he was not offered any notice pay or compensation. It is also denied by the workman an oath before the Labour Court that he has been offered any alternative job. The Employers' witness E.W.1, Sri M.V. Ahmad, has only proved the writing of Sri T.N. Gupta on Ext. E-3 and he has not stated that the said notice pay or money was offered to the workman when he refused or that on the refusal by workman as alleged this letter was sent by post. In these circumstances the Labour Court has arrived at a finding that the version of the workman is more reliable and therefore the Labour Court recorded a finding that the notice pay and compensation has never been paid to the workman. The Labour Court has further recorded a finding that since the workman has completed more than 240 days continuous service in one calendar year, therefore, it was incumbent upon the employer to comply with the provisions of Section 6-N of the Act which admittedly had not been complied with. Therefore, the workman was entitled for reinstatement with continuity in service with full back wages.
10. Learned counsel appearing for workman has placed reliance on the decision reported in AIR 1976 SC 1111, State Bank of India v. N. Sundra Money, and another case reported in 2001 SCC (L & S) 106, State of U.P. and Anr. v. Rajendra Singh Butola and Anr., wherein the Apex Court has ruled that since the provision of Section 6-N has not been complied with the workman is entitled for reinstatement with continuity of service with full back wages. In these circumstances and in view of what has been stated above I do not find any force in this writ petition which deserves to be dismissed.
11. Lastly it is submitted by learned counsel for the employer that admittedly the workman had not worked since after the date of termination therefore the view of the Labour Court that workman is entitled for full back wages deserves to be quashed. Learned counsel for the employer relied upon the decision of the Apex Court reported in (2002) 6 SCC 41, Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Anr., wherein the Apex Court has granted only 50% of the wages. Normally this Court would have accepted the ratio of the case of Hindustan Motors but as is apparent from the evidence on the record that the workman concerned was getting only Rs. 6/- per day, I do not find any reason to interfere with the direction of the Labour Court in awarding full back wages to the workman concerned.
12. In the result this writ petition is dismissed.