Case: State Of U.P Vs. Charan Singh

void ab initio in law for non-compliance of the mandatory provisions under Section 6-N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tube-well Operator and thereby, attributing the fault on the respondent for non reporting to the post offered to him, which is once again unjustified on the part of the employer.21. Thus, the principle “no work no pay” as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons. 22. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors (1985)3 SCC 545) ., wherein this Court has held thus: “32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Bakse y that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. “Life”, as observed by Field, J. in Mun n v. Illinoi s means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P.” (emphasis laid down by this Court) 23. Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997.24. In so far as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. We have heard both the parties. On the basis of the aforesaid rival legal contentions urged on behalf of the parties and the evidence on record, we have come to the conclusion that the High Court has rightly held that the State is liable to pay the entire amount due to the workman for the period 24.2.1997 to 31.1.2005, as the State has kept the workman out of job for many years arbitrarily and unreasonably despite the Award of reinstatement of the respondent on an equivalent post which was passed by the Industrial Tribunal. Thus, not reporting for the duty of fisherman offered to him by the appellant cannot be said to be unjustified on the part of the respondent.Further, it is a well established fact that the respondent-workman has continuously worked for 240 days in a calendar year and the Industrial Tribunal has rightly recorded the finding of fact on the basis of pleadings and evidence on record holding that the work which was being done by the respondent-workman still continues to exist in the establishment of the appellant, which fact has been admitted by the respondent as well as the witnesses of the employer before the Industrial Tribunal. Further, Shri. R.B.Mathur has clearly deposed before the Industrial Tribunal that the work of Tube-well Operator has now been taken over by other workmen, such asand that some Tube-well Operators were appointed on other posts as well. Thus, in view of the statements made above by him, it is amply clear that the required conditions under the provisions of Sections 6-N and 6-W of the Act were not complied with by the appellant and the only contention of the appellant-department is that onesalary was paid to the workman concerned treating him to be a temporary employee. This contention of the learned AAG on behalf of the appellant, however, is not sustainable in law and the same has rendered the order of termination of the services of the respondent-workman illegal and therefore, both the courts below have rightly set aside the same and passed an Award of reinstatement and back wages, respectively. However, not awarding back wages to the respondent by the Industrial Tribunal and awarding of the same by the High Court for the period between 24.2.1997 to 31.1.2005 only, has been done without assigning any cogent reason even though he is gainfully employed and lawfully entitled for the same from the date of termination from his services, i.e. 22.08.1975, which cannot be said to be valid in law. Therefore, the judgment and Award passed by the courts below with regard to his reinstatement on a post equivalent to the post of Tube-well Operator and denial of payment of back wages from the date of his termination, i.e. 22.08.1975 is wholly untenable in law as the same is contrary to the well established principles of law and the same is required to be modified by awarding back wages.14. The learned AAG has further contended that the termination of the services of the workman was made in view of the Government order dated 30.07.1975, by which the post of the Tube-well Operator was abolished and the termination letter was served on the respondent-workman as he was a temporary employee. However, these reasons were not stated in his termination letter dated 22.08.1975 by the appellant and instead, it was mentioned that his services were no longer required which tantamount to retrenchment of the respondent as defined under Section 2(s) of the Act. Thus, the contention of the appellant cannot be accepted by us in this regard, in view of the untenable reason stated in the letter of termination of the services of the respondent-workman. Further, the Government order dated 30.07.1975, clearly stated that in place of Tube-well Operator, the post of Nalkoop Mechanic, class IV employee, was being created that would carry out the work of the Tube-well Operator. Hence, the post of the Tube-well Operator was not abolished but only the name of the post was changed, as rightly held by the Industrial Tribunal.15. Therefore, in view of the above stated facts and also on a perusal of the reasons given by the Industrial Tribunal in its Award on the contentious point, the contention urged on behalf of the appellant that the termination of the services of the workman was done in accordance with above mentioned Government order cannot be accepted by us as the same is erroneous in law. The fact that the persons junior to him as well as his contemporaries are still working for the appellant-department, shows that the termination of the services of the respondent has been done in an unreasonable and unfair manner.16. Now, coming to the question of the entitlement of back wages to the respondent workman, the same is answered in the positive, in view of the fact that the workman had refused to accept the new job as fisherman which was offered to him pursuant to the Award passed by the Industrial Tribunal on the ground that the said post is not equivalent to the post of the Tube-well Operator. Even though the appellant had agreed to comply with the terms of the Award dated 24.02.1997 passed by the Industrial Tribunal and had offered reinstatement to him, it is well within the right of the workman to refuse the new job offered to him and the same cannot be said to be unjustified or erroneous on the part of the respondent-workman.17. In the present case, there has been an absence of cogent evidence adduced on record by the appellant to justify the termination of the services of the respondent-workman, who has been aggrieved by the non-awarding of back wages from the date of termination till the date of passing the Award by the Industrial Tribunal. There is no justification for the Industrial Tribunal to deny the back wages for the said period without assigning any cogent and valid reasons. Therefore, the denial of back wages to the respondent even though the Industrial Tribunal has recorded its finding on the contentious question no.1 in the affirmative in his favour and in the absence of evidence of gainful employment of the respondent during the relevant period, amounts to arbitrary exercise of power by the Industrial Tribunal for no fault of the respondent and the same is contrary to law as laid down by this Court in a catena of cases. Hence, it is a fit case for this Court to exercise its power under Order XLI Rule 33 of the Civil Procedure Code, 1908, to award back wages to the respondent, even though the respondent has not filed a separate writ petition questioning that portion of the Award wherein no back wages were awarded to him by the Courts below for the relevant period.Thus, in view of the cases referred to supra, there was absolutely no justification on the part of the Industrial Tribunal to deny back wages to the respondent even when it is found that the order of termination is void ab initio in law for non-compliance of the mandatory provisions under Section 6-N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tube-well Operator and thereby, attributing the fault on the respondent for non reporting to the post offered to him, which is once again unjustified on the part of the employer.21. Thus, the principleas observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons.Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997.24. In so far as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order.