Case: State Of U.P Vs. Charan Singh

2. The factual matrix and the rival legal contentions urged on behalf of the parties are briefly stated hereunder with a view to find out whether the impugned judgment and order of the High Court warrants interference by this Court in exercise of its appellate jurisdiction.3. The respondent was appointed as a temporary Tube-well Operator w.e.f. 06.03.1974 by the Assistant Director of Fisheries Department, Meerut (U.P). His services were terminated vide letter dated 22.08.1975 stating thereby that he was a temporary employee and that his services were no longer required by the Department. He was given onewages in lieu of the notice. On 01.05.1976, the respondent filed a petition before the Conciliation Officer, Meerut, stating therein that theemployment has been wrongfully terminated by the appellant as he is a permanent employee of the Fisheries Department and the provisions under Section 6-N of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as, which are mandatory in nature, have not been complied with and as such, the termination of the services of the respondent by the appellant is illegal. The matter was transferred from the Conciliation Officer to the Labour Commissioner, Kanpur for adjudication. The respondent made several representations before various high offices and courts including this Court wherein, the same was forwarded to the Secretary, U.P. State Legal Aid and Advisory Board on 09.09.1986 to take necessary action in this regard, which instead directed the respondent to contact the Sabhapati, District Judge, District Law Assistance and Consultant, Civil Court premises, Meerut for consultation.4. Thereafter, the respondent moved an application before the State Government for the reference of the industrial dispute under the provisions of Section 4-K of the Act and the State Government vide notification no.14499-502 MRIR OP 395/91, dated 24.10.1992 referred the dispute to the Industrial Tribunal, Meerut, thereby framing the following questions for itsWhether the services of the workman has been illegally terminated, andii. Whether there is any violation of Section 6-N of theThe Industrial Tribunal after considering the evidence on record and the rival legal contentions of both the parties has answered the questions referred to it, in favour of the respondent, stating thereby that the termination of the services of the workman was illegal and was liable to be set aside. The Industrial Tribunal directed the appellant to reinstate the respondent on any post equivalent to the post of Tube-well Operator. The Industrial Tribunal passed an Award for the reinstatement of the workman w.e.f. 24.02.1997. However, the workman was not granted any back wages.6. In Pursuance of the Award passed by the Industrial Tribunal, the appellant offered a letter of appointment to the respondent workman vide its order dated 03.05.1999 to the post of fisherman in the pay-scale of 2610-60-3150-65-3400/-. However, the respondent workman did not join his duties to the said post even after repeated reminders from the appellant. The appellant thereafter, filed a Misc. Writ Petition before the High Court contending that the respondent workman has been reinstated on the post ofwhich they claimed was equivalent to the post of Tube-well Operator. Since the respondent workman did not respond to several letters of the appellant which was calling him back for work, he is not entitled to any wages for the period 24.02.1997 to 31.01.2005 on the principleThe High Court however, rejected the contention of the appellant and held that the State Government had kept the workman out of job for many years and therefore, the State Government is liable to pay the entire amount due to the workman for the above mentioned period.7. Aggrieved by the said impugned judgment and order, the present appeal is filed by the appellant with a prayer to set aside the same and requested this Court to pass such order as this Court may deem fit and proper in the facts and circumstances of the case by urging various facts and legal contentions.

Reasoning:
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.