1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 716 of 2001(M/S) National Small Industries Kashipur ………… Petitioner Versus The Labour Court Haldwani and another ………… Respondents Hon’ble Tarun Agarwala, J. Heard Mr. Sharad Sharma, the learned Senior Advocate assisted by Mr. Kovid Bhatt, the learned counsel for the petitioner and Mr. Yogesh Pandey, the learned counsel for the respondent no.2. The petitioner has challenged the validity and legality of the award passed by the Labour Court. The petitioner contended that the respondent no.2 was engaged as a trainee from 16th September, 1988 for a period of one year and upon the expiry of the period, his employment came to an end. On the other hand, the respondent no.2 contended that he was employed w.e.f. 16.9.1988 and that his services was arbitrarily terminated on 15.9.1989 without payment of retrenchment compensation or giving one month’s notice in lieu of pay. The Labour Court, after considering the material evidence brought on the record found that the respondent no.2 was not appointed as an apprentice under the Apprentice Act 1961 nor the apprentice form was ever filled up by the employee, i.e. respondent no.2. The Labour Court also found that the petitioner was in continuous service for one year and, consequently was entitled for retrenchment compensation under Section 6-N of the Industrial Disputes Act. Since the retrenchment compensation had not been paid, the termination of respondent no.2 was illegal and, consequently, 2 directed reinstatement of the workman with continuity of service and with full backwages. The petitioner, being aggrieved by the said award, has filed the present writ petition. At that time, when the writ petition was entertained, an interim order was passed staying the award subject to the condition that the petitioner would reinstate the workman. It is alleged that inspite of the interim order, the petitioner did not reinstate the respondent no.2 and an application to that effect was moved by the workman, which remained pending. The learned Senior Advocate for the petitioner submitted that the respondent no.2 was employed as a Commercial Trainee, therefore, he was not a workman as defined under Section 2 (z) of the Industrial Disputes Act. Further, the petitioner is a central organization and, consequently, it was only the Central Government, which could have referred a dispute for adjudication and that the State Government had no power to issue a reference. The learned counsel submitted that specific averments were made in paragraph no.4 of the written statement, inspite of which, the Labour Court neither framed the said issue as a preliminary issue nor has given any finding while deciding the matter. Having heard the learned counsel for the parties, this court is of the opinion that the said plea as to whether the State Government had the power to make such reference in relation to an organization which was under the control of the Central Government, cannot be allowed to be urged at this stage. It has not been averred in paragraph no.15 of the writ petition that the point raised in paragraph no.4 of the written statement was in fact urged and argued before the Labour Court and that the Labour Court did not decide this issue. In fact, the averments made in paragraph no.15 of the writ 3 petition has been sworn on legal advice. Consequently, such stand cannot be accepted or taken into consideration by this court at this stage of the proceedings. The submission of the learned Senior Counsel for the petitioner on this issue is, consequently, rejected. With regard to the issue of trainee, the court has given a specific finding that respondent no.2 was not a trainee as contemplated under the Apprentice Act and this being a finding of fact, the status of the respondent no.2 is that of a workman as defined under Section 2 (z) of the U. P. Industrial Disputes Act. Once he becomes a workman and having worked for more than 240 days in a calendar year, he was entitled for retrenchment compensation. Admittedly, the retrenchment compensation was not paid and consequently, the service of the workman respondent no.2 could not have been dispensed with without complying with the provision of Section 6-N of the Industrial Disputes Act. The mere fact that retrenchment compensation was not paid does not mean that the petitioner would be automatically reinstated in service. Something more is required to be found out by the Labour Court, namely, as to what was the status of the workman, whether he was employed in a permanent capacity or in temporary capacity or on daily wages. The status of the workman gives a bearing with regard to his reinstatement. Nothing has come on record with regard to the status of the workman, except that he was appointed as a trainee and a trainee does not derive a status of a permanent employee. The alleged termination is of the year 1989. More than 20 years have elapsed and till date the respondent no.2 has not been reinstated. This court is of the opinion that reinstatement of the workman at this stage is not feasible. Even otherwise, the mere fact that retrenchment compensation was not paid will not entitle automatic reinstatement. At best, the respondent no.2 would be entitled 4 for retrenchment compensation as per the provision of 6- N of the U. P. Industrial Disputes Act but would not be entitled for reinstatement in service. At this stage, the court would have remanded the matter back to the Labour Court for computation of the retrenchment compensation to be paid by the employer to the workman. Since the matter is of the year 1989, this court is of the opinion that it would not be worthwhile to remit the matter to the Labour Court for this purpose and it would be appropriate that the court itself quantifies the compensation. Considering the facts and circumstances that has been brought on record, this court is of the opinion that substantial justice would be served, if respondent no.2 is given compensation including cost at Rs. 25,000/-. Consequently, the writ petition is allowed. The impugned award is set aside and in lieu thereof the petitioner would pay a sum of Rs. 25,000/- towards cost and compensation to respondent no.2 within four weeks from the date of the production of a certified copy of this order. (Tarun Agarwala, J.) Dated: 9.6.2010 Nishant