THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1160 of 2010. Mussoorie Dehradun Development Authority, through its Secretary, 12, Pritam Road, Dehradun. … Petitioner. Vs. 1. Shri Rameshwar S/O Shri Ganga Ram, 157, LIG, M.D.D.A. Colony, Dehradun. 2. Presiding Officer, Labour Court, Dehradun. …Respondents. Mr. D.S.Patni, Advocate, learned counsel for the petitioner. Mr. Atul Bahuguna, Advocate, learned counsel for the respondent no. 1. Date July 21, 2010. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. Mr. Atul Bahuguna, Advocate, files his power on behalf of the respondent no. 1. The same is taken on record. By means of this writ petition, the petitioner has sought the following relief:- A. To issue a writ, order or direction in the nature of certiorari quashing the Award dated 18-11-2009 (Annexure-1 to the writ petition) passed by respondent no.2/Labour Court, Dehradun. B. To issue a writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the award dated 18-11-2009 (Annexure-1 to the petition) passed by the respondent no. 2. C. To issue a writ, order or direction of suitable nature in favour of the petitioner and against the respondents as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. D. To award the cost of the writ petition in favour of the petitioner. 2 Brief facts giving rise to the present writ petition, according to the petitioner are that the impugned award dated 18-11- 2009 is an ex parte award, which was sent to the petitioner vide communication dated 1-2-2010, passed in Adjudication Case No. 70 of 2003 Rameshwar Vs. Vice Chairman, M.D.D.A. Copy of the award has been annexed as Annexure-1 to the writ petition. The main ground of challenge raised in paragraph nos.4 and 5 of this writ petition is that the respondent no. 1 was working as a daily wager de hors the Rules with the petitioner. He was called to work as and when necessity arose for additional hands. He was not employed under any Service Rules of the Authority. On completion of the work his services came to an end on 3-7-1995 and the respondent no. 1 was never re-engaged in any work by the petitioner. According to the petitioner, an application under Section 2-A of the U.P. Industrial Disputes Act (for short the Act) was moved belatedly after seven years before the Deputy Labour Commissioner Garhwal Region. An application for condonation of delay was also moved by the workman. The petitioner filed objection against the application for condonation of delay. It appears that the State Government found that an industrial dispute “Whether the termination of services of Sri Rameshwar son of Sri Ganga Ram daily wage workman by the employer w.e.f. 3-7-95 is legal and proper? If not, to what relief the workman is entitled with its details?” exists between the parties, therefore, the dispute was referred by the State Government under Section 4K of the Act for adjudication to Labour Court Dehradun by order dated 20-2-2003. Before the Labour Court, written statement has been filed by the petitioner. The respondent no.2 ordered to proceed ex parte against the petitioner vide order dated 8-5-2008. Against that order, the petitioner moved a restoration application on 22-10-2008, which was dismissed by order dated 24-3-2009. The Labour Court fixed the case for ex parte evidence of the respondent no. 1. 3 The grievance of the petitioner is that the impugned award has been passed without giving opportunity of hearing to the petitioner to adduce its evidence and to cross-examine the respondent no.1. The impugned award was passed without complying the provisions of the Act. The petitioner itself has filed copy of entire order-sheet of the Adjudication Case No. 70 of 2003 before the Labour Court along with the memo of writ petition as Annexure-6. By a perusal of the order-sheet, it reveals that on 20-2-2003, the case was registered before the Labour Court and the notices were issued for filing written statements by the parties fixing 9-4-2003 in the case. On 9-4-2003, date was fixed 22-5-2003 for written statement. On 22-5-2003, the written statement was filed by the respondent no.1. The Labour Court fixed 8-7-2003 for filing written statement by the employer. The case was taken up on 14-8-2003. Parties were present and time was again granted for filing written statement by the petitioner fixing 23-9-2003. On 23-9-2003, written statement was filed by the petitioner and the case was fixed for 3-11-2003 for replica. On 8-9-2005, reply was filed on behalf of the workman. On 2-12-2005, the workman filed documents in support of his claim. The employer sought adjournment. Time was granted to file reply/document in rebuttal fixing 23-2-2006. Again on that date, the petitioner sought adjournment and time was granted to file reply/document fixing 16-5-2006. On 16-5-2006, none was present on behalf of the petitioner. The right of the petitioner to file documents was closed and the case was fixed for 8-9-2006 for evidence of the respondent no.1. On 8-9-2006, restoration application which was moved on behalf of the petitioner was allowed on payment of cost of Rs. 50/- and the petitioner was granted further time to file documents fixing 2-1-2007. On 30-4-2007, the petitioner was absent and the Labour court observed that no documents were filed on behalf of the employer in the case and the petitioner was absent, therefore, the right of filing document of the employer is closed. The case was fixed for evidence of workman on 4-9-2007. The order-sheet of the case also reveals that the petitioner 4 remained absent in the case on a number of dates fixed till 8-5-2008, when order to proceed ex parte against the petitioner was passed fixing 26-9-2008 for ex parte evidence. On 22-10-2008 that on behalf of the petitioner, a restoration application was moved. The respondent no.1 filed objection against the restoration application. The learned Labour Court after hearing the parties rejected the restoration application on the ground that the application was not filed within time and no plausible explanation for delay was given. Even no affidavit was filed in support thereof. The restoration application moved by the petitioner was rejected by a speaking order. A plain reading of the entire order-sheet of the case before the Labour Court goes to show that the petitioner was given ample opportunity before closing its right to file documentary evidence. The petitioner itself had been defaulter time and again before the Labour Court. In the circumstances of the case, the Labour Court was fully justified to proceed ex-parte against the petitioner. A perusal of the impugned award shows that the Labour Court framed as many as four points for determination in the case as under:- 1. Whether the workman had worked under the employment of the employer for 240 days? 2. Whether the services of the workman were terminated in illegal manner? 3. Whether the claim of the workman is barred by time? If so its effect? 4. To what relief the workman is entitled? The learned Labour Court while deciding point no.1 has observed that in the written statement filed by the employer-O.P., there is no mention of the period the workman had worked under its employment. It has not been disposed as to when the workman was taken on employment and when he left the work. On the basis of the copy of attendance register maintained by the employer, the Labour 5 Court observed that it is established that the workman remained on work for 297 days, therefore, the learned Labour Court has held that the workman had worked for more than 240 days in a calendar year during the year August 1994 and May 1995 and the workman is entitled to the benefit of Section 6-N of the U.P. Industrial Disputes Act 1947. On Point No. 2, the learned Labour court has found that without complying the provisions of Section 6-N of the Act, the services workman could not have been dispensed with by the employer. Before the Labour Court, the workman deposed on oath that the principle of “first come last go” was also not adhered to by the employer and the workmen who were taken on employment by the petitioner much after the engagement of the respondent no.1 are still in work. On these grounds, the Labour Court has held that the termination of services of the workman is illegal. On point no. 3 regarding delay in raising the industrial dispute, the Labour Court has held that the matter of delay loses its importance after the State Government has referred the dispute for adjudication by the Labour Court under Section 4K of the Act. The learned Labour Court however observed that as the dispute was raised belatedly by the workman, in such case the workman would not be entitled to backwages. Ultimately, the learned Labour Court has held that the workman was entitled to reinstatement in service but without any back-wages. Learned counsel for the petitioner-M.D.D.A. has contended that the workman was not engaged on any sanctioned post and that the workman had worked for only 31 days and his appointment was not in accordance with the Rules, therefore, the learned Labour Court should not have passed the award in favour of the respondent no.1. In support of his contention, learned counsel has placed reliance in paragraph no. 19 of the case of Ghaziabad Development Authority and another Vs. Ashok Kumar and another 6 [(2008) 4 SCC, Page 261], wherein the Apex Court has observed as under:- “19. A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said constitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to be kept in mind by the Labour Court before passing an award of reinstatement.” The ratio of the judgment cannot be disputed. Before the Apex Court it was not in dispute that the sanction of the State Government was necessary for creation of posts. In that case, the Apex Court has awarded compensation to the workman instead of his reinstatement in service. Before the Labour Court it was not the case of the petitioner that sanction of State Government was necessary to create the post on which the workman was to be engaged. In the instant case, the workman was not engaged de hors the Rules. Moreover, it was proved before the Labour Court that the workman had worked for more than 240 days in a calendar year. The Labour Court has also given a categorical finding that the workmen, who were engaged subsequent to the appointment of the respondent no.1 and are junior to him, are still in the employment of the petitioner. The case- law relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. So far as the contention of the learned counsel for the petitioner that the workman had worked only for 31 days and in no case 240 days is concerned, the plea raised in the written statement by the petitioner falls to be ground on the face of the copy of the attendance register/muster roll produced by the respondent no.1 before the Labour Court. The learned Labour Court on the basis of evidence adduced by the workman has recorded a finding of fact that the workman had worked for more than 240 days in a calendar year. Moreover, the petitioner has not even filed any supporting evidence before this Court to substantiate that the respondent no. 1 had worked 7 for only 31 days. It is thus clear that the Labour Court has passed the award on the basis of appraisal of evidence led before it. The respondent no. 1 was also not awarded back-wages by the Labour Court on account of delay in raising the industrial dispute. In view of the discussion above, I am of the view that the impugned award does not call for interference by this Court in writ jurisdiction, therefore, writ petition lacks merit and is liable to be dismissed outright at the threshold. The writ petition is dismissed in limine. (B.S.Verma,J.) RCP