Full Judgment
Tarun Agarwala, J.
1. The impleadment application is allowed. Necessary correction shall be carried out by the petitioner during the course of the day.
2. Heard Shri Vijay Sinha, learned Counsel for the petitioner and Shri Siddhartha, the learned Counsel for the respondents.
3. The petitioner has filed the present writ petition challenging the validity and legality of the award directing reinstatement of the workers with continuity of service and with 20% of the back wages.
4. It transpires that the workers were engaged on Muster Roll on daily wage basis for the purpose of construction, pursuant to a project. The project came to an end upon the completion of the requisite construction work and consequently the services of the daily wage workers were dispensed with by the petitioner. The workers, being aggrieved by the dispensation of their services, raised an industrial dispute which was referred for adjudication before the labour court.
5. Before the labour court, the only point urged was that the workers had completed more than 240 days of service in a calendar year and had worked continuously and therefore, the workers were entitled for retrenchment compensation, as provided under Section 6N of the U.P. Industrial Disputes Act, which in the present case, was not done. Since no retrenchment compensation was paid, it was submitted that the dispensation of service, being in violation of the provision of Section 6N, was illegal, and therefore, the workers were liable to be reinstated with continuity of service and with 20% of back wages. The stand of the workers was accepted by the labour court who gave a categorical finding of fact that the workers had worked for more than 240 days, and consequently, directed their reinstatement with 20% of back wages. The petitioner, being aggrieved by the said award, has filed the present writ petition.
6. At the time when the writ petition was presented and entertained, an interim order was passed directing the petitioner to reinstate the workers and pay them wages as and when it falls due. The back wages was stayed. It has been stated at the Bar that the interim order, has been implemented and that respondent Nos. 3 to 33 had been reinstated. However, the predecessor of respondent Nos. 34 to 43 were not reinstated since they had already died after the filing of the writ petition.
7. Having heard the learned Counsel for the parties at some length, this Court is of the opinion that the award of the labour court directing reinstatement of the workers was not correct. The mere fact that retrenchment compensation was not paid, does not mean that the workers are liable to be reinstated. The labour court is required to see the nature of the work which the workers were performing. The labour court is also required to see whether the work performed was of a continuing nature or not. The labour court was also required to see whether the work which they were performing in the project had come to an end or not, and further, the labour court was required to look and give a finding as to whether there was still a requirement of work even after the completion of the project. All these things have been given a go-bye and no finding has been given on these aspects of the matter. The labour court has directed reinstatement on the strength of a finding that the retrenchment compensation had not been paid since the workers had completed more than 240 days in a calendar year and that the dispensation of the service was illegal because there was a violation of the provision of Section 6N of the U.P. Industrial Disputes Act.
8. In my view, even though there is a violation of Section 6N of the Act, the reinstatement is not automatic. The Court is required to see whether there was work available in the department or not.
9. In Nagar Mahapalika v. State of U.P. and Ors. : 2006 (5) SCC 127 : 2006 (7) AWC 6799 (SC), the Supreme Court held that reinstatement should not be granted as a matter of course especially where the work had been completed. The said judgment is squarely applicable in the present case.
10. In the present case, a categorical stand has been taken by the petitioner that the services of the workers were dispensed with upon completion of the project. There is no finding to the effect that the work was available even after the completion of the project. Consequently, in my opinion, the labour court was not justified in directing instatement. The labour court would have been obliged to direct the petitioner to pay retrenchment compensation plus such other damages to compensate the loss of livelihood against the dispensation of their services.
11. In the light of the aforesaid, this Court would have been obliged to set aside the award but is not inclined to do so since the Court finds that pursuant to an interim order, the workers in question have been reinstated on the posts in which they were working earlier, i.e., on Muster Roll. More than 5 years have elapsed and the workers are still working. This Court is of the opinion that dispensing their services at this stage would not be justified, especially when there is no whisper that they are not performing the work which have been given to them by the Management.
12. In the light of the aforesaid, the Court further, finds that the award of back wages has been passed by the labour court mechanically and without giving a finding as to whether the workers were gainfully employed or not during the intervening period.
13. In the light of the aforesaid, this Court partly allows the petition to the effect that the reinstatement of the workers will not be disturbed, but the workers would not be entitled for any back wages. In so far as those workers who have died, the heirs of the deceased may move an appropriate application for appointment on compassionate ground subject to relevant rules prevailing with the petitioner, and if such an application is filed, the same would be considered and decided appropriately by the petitioner in accordance with law. The award of the labour court is modified accordingly.