HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.372 of 2002 (M/S) {Old No.2153 of 1998} Lal Singh S/o Sri Ram Kala Singh R/o 238 Pachimi Amber Talab Roorkee, District Haridwar … Petitioner Versus Presiding Officer, Labour Court U.P. Meerut & others …. Respondents AND Writ Petition No.357 of 2002 (M/S) {Old No.8990 of 1998} U.P. State Electricity Board Through its Superintending Engineer Electricity Distribution Circle 26, Civil Lines, Roorkee, ….. Petitioner Versus Lal Singh S/o late Sri Ram Kala Singh & others …. Respondents Dated:- 09th November, 2011 Hon’ble Tarun Agarwala, J. Heard Mr. N. S. Negi, the learned counsel for the petitioner Electricity Board, Mr. M. C. Pant, the learned counsel for the workman Lal Singh and Mr. Manish Arora, the learned counsel for the Municipal Board. The petitioner has challenged the validity and legality of the award dated 25.04.1997 passed by the Labour Court, Meerut directing reinstatement of the workman with continuity of service and with backwages from the date of the reference. The facts leading to the filing of the writ petition is, that the workman Lal Singh was appointed as a Gangman on 14th September, 1964 by the Nagar Palika Parishad, Roorkee respondent no.2, previously known as the Municipal Board, Roorkee. At some stage, the workman was working in the Electricity Department of the Municipal Board and was transferred to the Jal department of the Municipal Board. The workman instead of reporting in the Jal department absconded and did not report for duty, as a result of which, the Municipal Board took disciplinary action against the workman. Initially, the workman was suspended and, thereafter, disciplinary proceedings were initiated and, upon the charges being proved against him, the Municipal Board, by an order dated 23rd June 1970, terminated his services. It transpires that the workman, being aggrieved by the order of the termination, filed an appeal before the State Government, which was rejected in the year 1973 and, thereafter, the -2- workman filed a writ petition before the Allahabad High Court which was disposed of by an order of 15th July, 1977 directing the workman to file a claim application, if so advised, before the Public Service Tribunal. It transpires that the workman filed a claim application before the Tribunal, which was dismissed by an order of 01st July, 1981 holding that the Tribunal had no jurisdiction to entertain such an application and that the remedy available to the workman was under the provisions of the Industrial Disputes Act. Accordingly, the workman filed a conciliation application under the U.P. Industrial Disputes Act before the Conciliation Officer in the year 1981. It transpires that the Conciliation Officer consigned the matter to the record holding that no industrial dispute existed. The workman, being aggrieved, represented the matter before the State Government and, eventually, the State Government, by an order dated 09th March 1994, referred the dispute to the Labour Court, Meerut for adjudication. The terms of the reference is somewhat like this, “whether the employer was justified in terminating the services of the workman w.e.f. 23rd June 1970, if not to what relief is the workman entitled to?” Before the Labour Court, the Municipal Board filed its written statement indicating that the workman was transferred to the Jal department and since he refused to report for work and went on unauthorized leave, the workman was initially suspended and, thereafter, an enquiry was held in which the charges were proved and, accordingly, the services of the workman was terminated on 23rd June, 1970. The petitioner, namely, the U.P. State Electricity Board also filed the written statement contending that the Electricity Department of the Municipal Board was taken over by means of an Ordinance No.37/1975 w.e.f. 01.01.1976. As per the Ordinance, the Electricity Board took over the liabilities and services of those employees, who were on the rolls on the midnight of 31st December, 1975. The Board further submitted that the list of employees, which was supplied by the Municipal Board, did not contain the name of the workman and, accordingly when the Electricity Department was taken over by the Board on 01st January, 1976, it took the services of those employees, who were on the rolls which did not include the name of the workman. The Board, consequently, submitted that the lis was between the Municipal Board and the workman and that the Board was neither the employer nor was liable to pay any wages or to reinstate him. The workman, on the other hand, filed his written statement contending violation of the principles of natural justice alleging that no proper enquiry was held nor any opportunity of hearing was provided to the workman while passing the order of termination. From a perusal of the award, the court finds that neither the petitioner nor the Municipal Board filed any rejoinder affidavit to the written statement filed by the workman. Similarly, the court finds that the workman had also not filed any rejoinder -3- affidavit to the written statement filed by the Electricity Board and the Municipal Board. Consequently, the averments made by the Electricity Board, Municipal Board and the workman in the written statement remained unrebutted. On the basis of the pleadings and the documents brought on record, the Labour Court gave an award dated 25th April, 1997 directing reinstatement with continuity of service and backwages w.e.f. the date of reference, i.e. 19th March, 1994. The Labour Court held that there was no delay on the part of the workman in raising the reference after 20 years. The Labour Court found that the workman was pursuing his remedy before a wrong forum and for that reason, he could not be penalized. The Labour Court further found that since the written statement of the workman was not rebutted, the contents of the written statement stands admitted under sub-clause (9) of Rule 12 of the U.P. Industrial Disputes Rules and, on that basis, came to the conclusion that the enquiry made against the workman was in violation of the principles of natural justice and accordingly quashed the enquiry proceedings and further held that the termination of the workman was not in accordance with the principles of natural justice. The labour court further found that since the petitioner had taken over the Electricity Department of the Municipal Board, it was liable to reinstate the workman with continuity of service and further directed the Electricity Board to pay wages from the date of the reference. The Electricity Board, being aggrieved by the said award, has filed the present writ petition, which was admitted and an interim order was passed directing the petitioner to pay the wages in terms of Section 17-B of the Industrial Disputes Act. It has also been stated at the Bar that during the pendency of the writ petition, the workman died in the year 2004 and that his heirs have been substituted in the present writ petition. Not only the Electricity Board, but the workman also filed a writ petition questioning the award of the Labour Court to the extent that the Labour Court committed an error in directing payment of wages from the date of the reference. The contention of the workman in this regard, is that once an order of reinstatement has been passed, wages should be paid to him from the date of his alleged termination i.e. from 23rd June, 1970 and that the labour court committed an error in awarding wages from 09th March, 1994. Having heard the learned counsel for the parties at some length, the court finds that the labour court has relied upon sub-clause (9) of Rule 12 of the U.P. Industrial Disputes Rules in giving a finding that the enquiry conducted by the Municipal Board was in violation of the principles of natural justice since these averments made by the workman in paragraph 46 to 51 of the written statement had not been rebutted. The presumption under Rule 12 (9) of the Rules can only be drawn by the labour court when the written statement of the workman remains unrebutted, but where the parties -4- have filed their pleadings, such presumption cannot be drawn by the labour court. In the instant case, the written statement of the workman has not been rebutted, but the employers had filed their written statement in which their stand has been given. Such stand taken by the employers in their written statement have not been considered by the labour court. Further, the stand taken by the employers in their written statement have also not been rebutted by the workman since no rejoinder has been filed. Consequently, the court is of the opinion that Rule 12 (9) of the Rules is not applicable in the instant case. For facility, the said provision is quoted hereunder:- “12. Proceedings before the Labour Court or Tribunal. (1)…………. (9) If the affidavit accompanying the written statement of the union or the workmen is not rebutted by the employers, the Labour Court or the Tribunal, as the case may be, shall presume the contents of the affidavit to be true and make an award accepting the facts stated in the written statement.” From a perusal of the aforesaid provision, it is clear that the labour court can presume the contents of the affidavit to be true where the written statement has not been rebutted by the employers, but, this presumption can only be drawn when the employers are not filing the written statement or are not appearing before the labour court or are not rebutting the written statement of the workman. In the instant case, the written statements were filed by the employers, which was also not rebutted by the workman. Consequently, it was the onerous duty of the labour court to sift the evidence on record and then give a finding. The Labour Court committed an error in holding that since the contents of the written statement made by the workman has not been rebutted, the said contents are deemed to be proved. In the light of the aforesaid, the finding that the enquiry initiated by the Municipal Board is vitiated on account of the principles of natural justice cannot be sustained and is quashed. Further, the court finds that the direction to reinstate the workman by the Electricity Board was patently erroneous. In this regard, the court finds that the licence to supply electricity by the Municipal Board was revoked under the Indian Electricity Act, 1916 and by means of an amendment, Section 6A, as inserted in the Act, is extracted hereunder:- “6A. Revocation of licences and acquisition of undertaking. – (1) In this section ‘appointed day’ means in relation to licencees other than local authorities, December 1, 1975 and in relation to local authorities being licencees, such date as may be specified by the State Government by -5- notification in that behalf, and different dates may be specified for different such undertakings. (2) Notwithstanding anything contained in Sections 4, 4-A, 5 & 6, the licence of every undertakings, unless revoked before the commencement of the Indian Electricity (Uttar Pradesh Second Amendment) Ordinance, 1975 shall stand revoked with effect from the appointed day. (3) On revocation of the licence under sub-section (2), the following provisions shall have effect, namely:- (a) ………….. (b) …………. (c) ………... (g) the following provisions shall govern the working in the undertaking immediately before the appointed day:- (i) Every person who has been immediately before the appointment day in the employment of the licensee shall become on and from the appointed day an employee of the Board on the same terms and conditions and with the same rights as to pension, gratuity and other matters as would have been admissible to him if the undertaking had not been transferred to and vested in the Board and continue to do so unless and until his employment under the Board is terminated or until his remuneration or other terms and conditions of employment are duly altered by the Board.” A perusal of the aforesaid provision makes it apparently clear that the liability of the Board was from the date when it took over the Electricity Department, which was from 01.01.1976. The licence of the Municipal Board was revoked on 31.12.1975, the services of the workman was terminated in the year 1970, i.e., much prior to the revocation of the licence. Consequently, the question of taking over the services of the workman does not arise. The learned counsel for the workman has placed reliance upon Section 5 of the U.P. Industrial Disputes read with Rule 28 of the Rules which stipulates that the award would be binding on the employer, his heirs, successors of assigns in respect of the establishment. The law is clear on this aspect and there is clear provision that the heirs, successors of assigns of the employees would be liable under the award, but, this provision is not applicable for the reason that the Municipal Board is still in existence. Only the department was taken over by the Electricity Board alongwith the employees who were working in this department on 01.01.1976. The word ‘establishment’ as contemplated in Rule 28 of the Rules does not mean a department of the -6- establishment. The word ‘establishment” means the complete establishment. At the time when the award was given by the labour court, the establishment, namely, the Municipal Board who was the employer of the workman was in existence and, therefore, the liability, if any, was upon that employer, namely, the Municipal Board. The reinstatement, if any, could only be directed against the Municipal Board and not against the Electricity Board since the Electricity Board was not the successor of the Municipal Board. The Labour Court has consequently committed an error in directing the Electricity Board to reinstate the workman. There is another aspect of the matter. Once a direction of reinstatement is given, the transfer order issued by the Municipal Board transferring the workman from the electricity board to the Jal department of the Municipal Board stands revived. Consequently, the workman could only be reinstated in the Municipal Board and transferred to the Jal department pursuant to the transfer order. The question of the workman joining the electricity department which was taken over by the Electricity Board does not arise. In the light of the aforesaid, the court is of the opinion that the award cannot be sustained. In so far as the writ petition of the workman is concerned, the court is of the opinion that on the principles of “no work no pay”, the workman is not entitled for backwages from the date of termination till the date of the reference. The employer cannot be saddled with this liability when there is nothing to indicate that the employer was at fault or was responsible for the delay. The Supreme Court in the case of G.M., Haryana Roadways Vs. Pawan Kumar SCC 2005 (12) 459 has held that the labour court could not mechanically pass an order for backwages merely because there has been a direction of reinstatement. The Supreme Court held that other facts, such as, adhoc appointment, short-term appointment, whether the workman was a daily wager or whether he was temporary, whether he was in a position to get another employment during the pendency of the writ petition, are such factors which are required to be considered. In the light of the aforesaid, the court finds that there is nothing to indicate that the workman could not seek employment during the interim period. Further, the workman is himself to be blamed for filing the claim application a wrong forum and, for this, the employers cannot be faulted. The court is of the opinion that the direction of the lower court refusing to grant backwages was justified in the facts and circumstances of the case. In view of the aforesaid, the award of the Labour Court cannot be sustained and is quashed. The court is of the opinion that the matter has to be remanded to the Labour Court to decide the matter afresh, but, is not doing so since the court finds that the matter is almost forty years old, and the workman has died. Consequently, the matter must attain finality. The court is of the opinion that substantial justice should be done between the parties at this stage itself. Since the court -7- has already found that the workman remained an employee of the Municipal Board, the liability, if any, will fall upon the Municipal Board. The workman had died and his heirs are claiming backwages and other pensionary benefits. No useful purpose would be served in either remitting the matter to the labour court to decide the matter of termination afresh. Considering the entire circumstances of the cases, coupled with the fact that 40 long years have gone by, the court hereby directs that the award of the labour court in so far as it directs reinstatement cannot be sustained and is quashed. The workman was an employee of the Municipal Board and looking into this aspect, the court is of the opinion that the Municipal Board should pay a lumpsum to the heirs of the workman which is computed at Rs.50,000/-. The court accordingly directs the Municipal Board to pay Rs.50,000/- to the heirs of the workman within 60 days from today. In so far as the writ petition of the workman is concerned, the same is dismissed for the reasons stated aforesaid. The writ petition of the Electricity Board is allowed accordingly. (Tarun Agarwala, J.) Dated 09.11.2011 LSR