IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1013 of 2002 (M/S) (Old No. 2027 of 1997) [ 1. Bata India Limited through its Personal Manager Retail Shop E-27 / B-1 Expansion New Delhi. 2. Bata Shoe Store Naya Bazar, Haldwani. ...…………. Petitioners Versus 1. State of U.P. through Secretary, Ministry of Labour Vidhan Bhawan (Lucknow). 2. Presiding Officer Labour Court, U.P. (Haldwani). 3. Yogesh Chandra Loshani S/o Kheema Nand Loshali R/o Phatta Bhagan, P.O. Arjanpur, Haldwani, District Nainital. ...………… Respondents Mr. R.S. Sammal and Mr. Prem Kaushal, Advocates for the petitioners. Mr. Anil Kumar Joshi, Advocate for respondent No. 3. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioners have challenged the award dated 14th of September 1995, passed by Labour Court, Haldwani, in Industrial Dispute Case No. 32 of 1992, whereby respondent No. 3 Yogesh Chandra Loshali has 2 been directed to be reinstated in service with full back wages. 2) Heard learned counsel for the parties and perused the record. 3) Brief facts of the case, as narrated in the writ petition, are that petitioner No. 1 Bata India Limited is a company registered under Company’s Act 1950, with its Head Office at Kolkatta, and it has various retail shops at different places. Respondent No. 3 was engaged as temporary hand on daily wages in the year 1986, at the petitioner’s retail shop – ‘Bata Shoe Store, Naya Bazar, Haldwani’, by the then Manager of said shop. As per the policy of the petitioner company permanent employment can be given to a person only after he succeeds in a trade test. The respondent No. 3 appeared for the test for the post of shop assistant on 20th of June 1991, but could not qualify the same. Apprehending that his services would come to an end, according to the petitioners, respondent No. 3 Yogesh Chandra Loshali got himself employed with M/s Tandon Shoe Store. He raised an industrial dispute alleging his termination from service as illegal, which was referred to Labour Court, Haldwani, and registered as Adjudication Case No. 32 of 1992. On receiving notices, the petitioners and respondent No. 3 filed their written statements before the Labour Court, and they led their evidence. The Labour Court vide award dated 3 14th of September 1995, held the termination of respondent No. 3 by the employer as illegal, and directed that he be reinstated in service with full back wages. Hence, the employer (petitioner) has challenged said order before this Court before this Court on the ground that the Labour Court has erred in law in giving the finding that respondent No. 3 was not in gainful employment against evidence on record. It is further alleged by the petitioners that from the record it was clear that respondent No. 3 had already been gainfully employed with ‘Tandon Shoe Store’. Lastly, it is stated in the petition that no provisions of the U.P. Industrial Disputes Act, 1947, were violated in not making respondent No. 3 permanent in service. 4) On behalf of respondent No. 3, a counter affidavit has been filed in which it has been stated that there is no illegality in the impugned award passed by the Labour Court. However, it is admitted that respondent No. 3 could not pass the examination of salesmanship, held by the petitioners. In parawise reply it has been stated by contesting respondent No. 3 that even after he could not qualify the test, the petitioners took work from him for ten months. It is further stated that the termination of respondent No. 3 was illegal and against the rules. 5) In the rejoinder affidavit filed on behalf of the petitioners it is stated that after the impugned award 4 was passed the petitioner was offered job reinstating him in Bata Shoe Store, Sahajanpur, but he did not accept it. 6) Admittedly, the respondent No. 3 Yogesh Chandra Loshali was employed in Bata Shoe Store, Naya Bazar, Haldwani, by the Manager of the petitioner No. 1 – Bata India Limited, temporarily. Petitioners’ case is that Respondent No. 3 was engaged on daily wages by the local Manager and has no right of continuance in the shop. It is further pleaded by the petitioners that the respondent No. 3 (Yogesh Chandra Loshali) was required to qualify a test before he is permanently employed. It is not disputed to respondent No. 3 that he failed to qualify the test held by the petitioners. In the circumstances, this Court has to examine as to what provision of law has been violated by the employer (petitioners) in terminating the services of respondent No. 3. Section 6-N of the U.P. Industrial Disputes Act, 1947, reads as under: “6-N. Conditions precedent to retrenchment of workmen. –No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until– (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has 5 expired or the workman has been paid in lieu of such notice wages for the period of the notice: Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay for every completed year of service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the State Government.” [[[ In Para 3 of the written statement filed before the Labour Court (a copy of which is Annexure-2 to the writ petition) the employee (respondent No. 3) has pleaded that termination of his services on 04.04.1991, was in violation of provisions contained in Section 6-N of the U.P. Industrial Disputes Act, 1947. From the affidavits and counter affidavits filed on behalf of the parties and also from the impugned award it is clear that respondent No. 3 was engaged in the year 1986, and his services stood terminated from 4th of April 1991, which means the respondent No. 3 had already put in more than four years of service. Though, the respondent No. 3 was daily wager, but because of his continuance in service for more than one year, provisions contained in 6 Section 6-N of the U.P. Industrial Disputes Act got attracted (Rattan Singh Vs. Union of India and another; (1997) 11 Supreme Court Cases 396, relied). It is nobody’s case that provision of Section 6-N relating payment of 15 days salary for every year for which the employee worked, was paid by or on behalf of the petitioners’ to the respondent No. 3. That being so, the termination of respondent No. 3 was violative of Section 6-N of the aforesaid Act. To that extent the impugned award passed by the Labour Court does not suffer from any illegality. 7) However, the direction to pay back wages to respondent No. 3 made by the Labour Court appears to be erroneous in law. It was a specific plea of the petitioners (employer) before the Labour Court that after respondent No. 3 left work in the petitioners’ retail shop (Bata Shoe Store, Naya Bazar, Haldwani), he started working in ‘Tandon Shoe Store’. The respondent No. 3 in his reply to said allegation has not specifically denied the fact, and it has been stated that the respondent No. 3 used to go to the shop of ‘Tandon Shoe Store’ because of acquaintance there and used to sit there. It appears that after termination of service, the respondent No. 3 got himself gainfully employed as pleaded and proved by the petitioners, and he was not entitled to the back wages. Apart from this, it is relevant to mention here that after the impugned award was passed by the Labour Court in the year 1995, the 7 petitioners offered job to respondent No. 3 reinstating him in service in Bata Shoe Store at Sahajanpur, but he did not accept it. Copies of the letters relating thereto are annexed with the rejoinder affidavit to this writ petition. In the above circumstances, this Court is of the view that though the termination of the respondent No. 3 is rightly held to be illegal by the Labour Court, the respondent No. 3 was not entitled to back wages. 8) For the reasons as discussed above, this petition is allowed partly. The impugned award dated 14th of September 1995, passed in Industrial Dispute Case No. 32 of 1992, is quashed to the extent it directs the petitioners to pay the back wages to the workman. However, as to the illegality of the termination of service of respondent No. 3 and direction to reinstate the workman, is not interfered with. The amount deposited by the employer (petitioners) before the Labour Court towards back wages may be withdrawn by the petitioners. Accordingly, the petition stands disposed of. No order as to costs. (Prafulla C. Pant, J.) Dt. August 20, 2009. H. Negi