U.P. State Electricity Board and ors. Vs. Presiding Officer, Labour Court and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/514647
SubjectLabour and Industrial
CourtUttaranchal High Court
Decided OnJul-25-2005
Judge Rajesh Tandon, J.
Reported in[2005(107)FLR399]
AppellantU.P. State Electricity Board and ors.
RespondentPresiding Officer, Labour Court and anr.
Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - from the evidence on record it is evident that so far as the termination of the workman is concerned the same has set aside and he had been reinstated on his original post of routine grade clerk and thereafter he continued to enjoy on the said post as routine grade clerk.rajesh tandon, j.1. present writ petition has been filed for the issue of a writ of certiorari quashing the award dated 2nd july, 1986 passed by the labour court.briefly stated the government of uttar pradesh referred a dispute under section 4-k of the u.p. industrial dispute act. the term of reference was as under:whether the termination of sri basant lal gaur son of sri ram bharose lal sharma, routine grade clerk (on daily wages) from 27.7.1978 by the employer was valid and legal if not, whether the workman is entitled to any reliefthe worrkman in his written statement has alleged that he has worked as a routine grade clerk from 9th september, 1977 to 26th july, 1978 and his services were terminated by an oral order on 27.7.1978. he had worked for 240 days and his termination was illegal on account of the fact that no retrenchment compensation or notice or one month's pay in lieu of notice was given to him.2. the petitioner filed written statement on 13.8.1984, stating therein that the workman was engaged on muster roll with effect from 9.9.1977 and neither continuously worked in the division nor worked for 240 days in a calendar year. on the basis of the telegram of the superintending engineer dated 27.7.1978 the workman's services were dispensed with and no notice or one month's pay in lieu of notice was required to be given to the workman. in paragraph 4 of the written statement it was admitted that the services of basant lal gaur were dispensed with from 27.7.1978. in fact the petitioner admitted the assertion of the workman made in paragraph no. 1 of the written statement that the workman was engaged as routine grade clerk and he had worked in revenue section and his services were terminated w.e.f. 27.7.1978.'3. before the labour court workman basant lal was examined as d.w. j who has deposed that he was employed as routine grade clerk on 9.9.1977 and. from 27.7.1978 he was not permitted to work and since he was not given any notice before termination of his services, therefore, he has raised industrial dispute. in the cross-examination also nothing was; put before the workman concerned. on the record there is office memorandum dated 2.10.1977 showing that sri basant lai is muster roll employee and his name has been put at serial no. 8.4. there is another office memorandum dated 12,1985 and according to the petitioner-respondent no. 2 was employed as a kuli. he has produced appointment of kuli also as will appear from the appointment letter of kuli itself that there is endorsement that the petitioner was appointed as a kuli. since in the present case there is a dispute with regard to retrenchment of the petitioner from 27.7.1978 as will appear from the adjudication case no. 69 of 1984, therefore, there was no pleading before the labour court with regard to the appointment as a kuli and any appointment which was given to the respondent after 27.7.1978, is not relevant in the present adjudication case. the dispute is confined to the termination order dated 27.7.1978 alone and any document for the appointment of the kuli has no relevance in the present case. the labour court vide award dated 11.7.1984 directed for reinstatement of the workman-respondent and also directed for the payment of full back wages. the writ petition was filed before allahabad high court. on 28,10.1986 following order was passed:until further' order operation of the award shall remain suspended up to 19.12.1986 unless modified or withdrawn earlier provided the petitioner deposits the entire amount payable to respondent no. 2 from 27.7.1978 to 31.1.1985 with the period of two months from today with the respondent no. 1. the amount so deposited shall not be paid over until further order.5. this order was further modified on 23.3.1087 and the following order was passed:heard the learned counsel for the parties. the order dated 28.10.1986 and the award dated 24.12.1985 are modified to the extent that the name of the petitioner shall be restored to the roles of routine grade clerk and he shall be offered appointment arid when vacancy arises on that post. in case if such appointment is not offered the respondent no; 2 would be entitled to draw salary in the scale of routine grade clerk. however, the payment of arrears of wages under the award shall remain stayed.6. as will appeal from the aforesaid order that the workman was directed to be reinstated to the post of routine grade clerk. it was also directed that he shall be offered appointment as and when the vacancy arises and in case he was not offered appointment, he shall be entitled to draw salary in the pay scale of routine grade clerk. in compliance of the order dated 23.3.1985 the workman was offered appointment on the post of routine grade clerk and the counsel for the petitioner has submitted that he has qualified the same on 19.3.1992.7. thus in view of the order dated 23.3.1985, the only dispute which remains to be adjudicated as to whether the workman is entitled for the salary of routine grade clerk. in case of regular appointment, he shall be entitled to draw the sum in accordance to his appointment. from the evidence on record it is evident that so far as the termination of the workman is concerned the same has set aside and he had been reinstated on his original post of routine grade clerk and thereafter he continued to enjoy on the said post as routine grade clerk. he will be entitled to draw his salary in pursuance of the order passed by the labour court till his regular appointment. the award of the labour court shows that the court has considered that the workman was employed on 9.9.1977 and his services were terminated on 27.7.1978 without complying the provisions of the act. the restriction for appointment on daily wages was imposed on 17.1.1979 and as such there was no valid reason to terminate the services of the petitioner and the termination order had been passed without complying the provisions of section 6-n of the u.p. industrial dispute act.8. the labour court has also come to the conclusion that the workman had completed 240 days. the labour court has also referred the chart of work done by the workman filed by the employer which is as under:september, 1977 22 daysoctober 26 daysnovember 21 daysdecember 20 daysjanuary, 1978 27 daysfebruary 24 daysmarch 27 daysapril 26 daysmay 30 daysjune 30 daysjuly 26 days_____________total 284 days-------------9. the above chart shows that the workman had done work for 284 days and thus his services were terminated by the petitioners without complying the provisions of section 6-n of u.p. industrial disputes act.10. so far as the back wages are concerned admittedly for a short period workman concerned was employed as a kuli. he was appointed as a kuli on 5.2.1985 and he had worked for 10 months. thus while calculating the back wages this period shall not be considered.in view of the above observations, the respondent no. 2 is entitled to get back wages after excluding the period during which he remained employed as kuli. the rest of the findings of labour court are confirmed. the amount of back wags, if deposited in the labour court be paid to the workman concerned.accordingly, the writ petition is partly allowed. no order as to costs.
Judgment:

Rajesh Tandon, J.

1. Present writ petition has been filed for the issue of a writ of certiorari quashing the award dated 2nd July, 1986 passed by the Labour Court.

Briefly stated the Government of Uttar Pradesh referred a dispute under Section 4-K of the U.P. Industrial Dispute Act. The term of reference was as under:

Whether the termination of Sri Basant Lal Gaur son of Sri Ram Bharose Lal Sharma, Routine Grade Clerk (on daily wages) from 27.7.1978 by the employer was valid and legal If not, whether the workman is entitled to any relief

The worrkman in his written statement has alleged that he has worked as a Routine Grade Clerk from 9th September, 1977 to 26th July, 1978 and his services were terminated by an oral order on 27.7.1978. He had worked for 240 days and his termination was illegal on account of the fact that no retrenchment compensation or notice or one month's pay in lieu of notice was given to him.

2. The petitioner filed written statement on 13.8.1984, stating therein that the workman was engaged on muster roll with effect from 9.9.1977 and neither continuously worked in the Division nor worked for 240 days in a calendar year. On the basis of the telegram of the Superintending Engineer dated 27.7.1978 the workman's services were dispensed with and no notice or one month's pay in lieu of notice was required to be given to the workman. In paragraph 4 of the written statement it was admitted that the services of Basant Lal Gaur were dispensed with from 27.7.1978. In fact the petitioner admitted the assertion of the workman made in paragraph No. 1 of the written statement that the workman was engaged as routine grade clerk and he had worked in revenue section and his services were terminated w.e.f. 27.7.1978.'

3. Before the Labour Court workman Basant Lal was examined as D.W. J who has deposed that he was employed as Routine Grade Clerk on 9.9.1977 and. from 27.7.1978 he was not permitted to work and since he was not given any notice before termination of his services, therefore, he has raised industrial dispute. In the cross-examination also nothing was; put before the workman concerned. On the record there is Office Memorandum dated 2.10.1977 showing that Sri Basant Lai is muster roll employee and his name has been put at serial No. 8.

4. There is another Office Memorandum dated 12,1985 and according to the petitioner-respondent No. 2 was employed as a Kuli. He has produced appointment of Kuli also as will appear from the appointment letter of Kuli itself that there is endorsement that the petitioner was appointed as a Kuli. Since in the present case there is a dispute with regard to retrenchment of the petitioner from 27.7.1978 as will appear from the Adjudication Case No. 69 of 1984, therefore, there was no pleading before the Labour Court with regard to the appointment as a Kuli and any appointment which was given to the respondent after 27.7.1978, is not relevant in the present adjudication case. The dispute is confined to the termination order dated 27.7.1978 alone and any document for the appointment of the Kuli has no relevance in the present case. The Labour Court vide award dated 11.7.1984 directed for reinstatement of the workman-respondent and also directed for the payment of full back wages. The writ petition was filed before Allahabad High Court. On 28,10.1986 following order was passed:

Until further' order operation of the award shall remain suspended up to 19.12.1986 unless modified or withdrawn earlier provided the petitioner deposits the entire amount payable to respondent No. 2 from 27.7.1978 to 31.1.1985 with the period of two months from today with the respondent No. 1. The amount so deposited shall not be paid over until further order.

5. This order was further modified on 23.3.1087 and the following order was passed:

Heard the learned Counsel for the parties. The order dated 28.10.1986 and the award dated 24.12.1985 are modified to the extent that the name of the petitioner shall be restored to the roles of routine grade clerk and he shall be offered appointment arid when vacancy arises on that post. In case if such appointment is not offered the respondent No; 2 would be entitled to draw salary in the scale of routine grade clerk. However, the payment of arrears of wages under the Award shall remain stayed.

6. As will appeal from the aforesaid order that the workman was directed to be reinstated to the post of routine grade clerk. It was also directed that he shall be offered appointment as and when the vacancy arises and in case he was not offered appointment, he shall be entitled to draw salary in the pay scale of routine grade clerk. In compliance of the order dated 23.3.1985 the workman was offered appointment on the post of routine grade clerk and the Counsel for the petitioner has submitted that he has qualified the same on 19.3.1992.

7. Thus in view of the order dated 23.3.1985, the only dispute which remains to be adjudicated as to whether the workman is entitled for the salary of routine grade clerk. In case of regular appointment, he shall be entitled to draw the sum in accordance to his appointment. From the evidence on record it is evident that so far as the termination of the workman is concerned the same has set aside and he had been reinstated on his original post of routine grade clerk and thereafter he continued to enjoy on the said post as routine grade clerk. He will be entitled to draw his salary in pursuance of the order passed by the Labour Court till his regular appointment. The award of the Labour Court shows that the Court has considered that the workman was employed on 9.9.1977 and his services were terminated on 27.7.1978 without complying the provisions of the Act. The restriction for appointment on daily wages was imposed on 17.1.1979 and as such there was no valid reason to terminate the services of the petitioner and the termination order had been passed without complying the provisions of Section 6-N of the U.P. Industrial Dispute Act.

8. The Labour Court has also come to the conclusion that the workman had completed 240 days. The Labour Court has also referred the chart of work done by the workman filed by the employer which is as under:

September, 1977 22 daysOctober 26 daysNovember 21 daysDecember 20 daysJanuary, 1978 27 daysFebruary 24 daysMarch 27 daysApril 26 daysMay 30 daysJune 30 daysJuly 26 days_____________Total 284 days-------------

9. The above chart shows that the workman had done work for 284 days and thus his services were terminated by the petitioners without complying the provisions of Section 6-N of U.P. Industrial Disputes Act.

10. So far as the back wages are concerned admittedly for a short period workman concerned was employed as a Kuli. He was appointed as a Kuli on 5.2.1985 and he had worked for 10 months. Thus while calculating the back wages this period shall not be considered.

In view of the above observations, the respondent No. 2 is entitled to get back wages after excluding the period during which he remained employed as Kuli. The rest of the findings of Labour Court are confirmed. The amount of back wags, if deposited in the Labour Court be paid to the workman concerned.

Accordingly, the writ petition is partly allowed. No order as to costs.