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KRISHI UTPADAN MANDI SAMITY, MANGALORE A v.

PAHALSINGH

APRIL 10, 2007

(S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

~ Judgment/Order:

Reasoned order-Award passed by Labour Court-Upheld in writ c petition, by High Court with modification in quantum of back wages without giving reasons-On appeal, held: High Court while exercising power under Arts.226 and 227 has to apply its mind to contentions raised hy parties and give reasoned order-High Court's order is not reasoned one and is set aside-Constitution of India, 1950-Arts.226 and 227.

UP. Industrial Disputes Act, 194?: D

--~ s.2(g)-Terinination of workman~Before Labour Court, workman required to prove that his termination was illegal-Merely because he filed affidavit and employer did not file rejoinder affidavit thereto, would not imply that award in favour of workman automatically follows-Labour Laws- E Industrial Disputes Act, 1947.

Industrial dispute raised by workman after l 8 years-Labour Court ordered reinstate"!ent with full back wages-Correctness of-Held, incorrect-Delay defeats equity--Delay/laches.

Respondent-Workman appointed on a temporary basis was terminated F .r

from seniices in 1974. He raised industrial dispute in 1992. The Labour Court directed reinstatement with full wages. While directing so, Labour Court held that the employen have not controverted the written statement (affidavit) of workman by filing the rejoinder alongwith affidavit and the far.ts regarding termination of services pleaded by the workman were also not c; ontroverted G by employers either in arguments or in evidence. Appellant preferred writ petition wherey the High Court modified the award directipg reinstatement

- -"" with 50% back wages. Hence the present appeal.

Allowing the appeal, the Court

1085 H

A HELD: 1. The judgment of the High Court is not a reasoned one. Why the Award was upheld with modification in quantum of back wages has not been stated. [Para 6) (1088-D]

2.1. The High Court while exercising its jurisdiction under Articles 226 and 227 of the Constitution of India upon issuance of a rule nisi is B expected to apply its mind to the contentions raised by the parties and arrive at findings thereupon. The Labour Court also committed the same error.

[Para 7 & 8) (1088-E)

2.2. The Labour Court, thus, also did not advert itself to the questions C which were required to be gone into. The workman in the said proceedings was required to show that the termination was illegal. Only because it filed an affidavit and the respondent did not file any rejoinder affidavit thereto, the same by itself would not mean that an Award would automatically follow.

(Para 10) [1089-B)

D 2.3. The Labour Court was also under an obligation to consider as to whether any relief, if at all could be granted in favour of the workman in view of the fact that the industrial dispute had been raised after 18 years. It is now well-settled principle of law that "delay defeats equity". It was obligatory on the part of the Labour Court to consider that the respondent was in E employment for very short period. It had also not arrived at a finding that the respondent was in continuous service within the meaning of s.2(g) of the U.P.

Industrial Disputes Act or for that matter in terminating the services of the respondent, the appellant did not comply with the requirements of law particularly Section 6-N thereof. In absence of such a finding, the High Court should have interfered with the Award. [Paras 11] (1089-C-D] F

3. The Labour Court exercises its wide jurisdiction under Section 1 lA of the Industrial Disputes Act, but such jurisdiction must be exercised judiciously. A relief of re-instatement with all back wages is not to be given without considering the relevant factors therefore, only because it would be lawful to do so. In this case, even the basic requirements for grant of any G relief had not been found by the Labour Court. {Para 13) (1089-FJ

Assistant Engineer, C.A.D., Kola v. Dhan Kunwar, AIR [2006] SC 2670 and Uttranchal Forest Development Corporation v. M C. Joshi, [2007] 3 SCALE 545, relied on.

H Haryana State Co-operative Land Development Bank v. Nee/am, [2005]

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KRISHI UTPADAN MANDI SAMITY, MANGALORE v. PAHAL SINGH [S.B. SINHA, J.] 1087

5 SCC 91 and U. P. State Electricity Board v. Rajesh Kumar, (2003) 12 SCC A 548, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1871 of2007.

From the Judgment and Order dated 23.09.2003 of the High Court of Uttranchal at Nainital in Civil Misc. Writ Petition No. 3112 (MIS) of2001 (Old B No. 5878of1997).

R. Santhan Krishnan, K. Radha Rani, P. Vijaya Kumar, Praveen Kumar Pandey, D. Mahesh Babu, T. Mahipal and Pradeep Mishra for the Appellant.

P.S. Narasimah (for M/s. P.S.N. & Co.), Rajesh, Anurag Tomar, Sudha C Gupta and T. Anamika for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Respondent herein was appointed as Kamgar on or about 1.1.1970.

He was allegedly appointed in excess of the sanctioned strength. The post was also not :ipproved by the Director of the Mandi Samiti. Indisputably, he was not appointed in terms of the procedures laid down in U.P. Krishi Utpadan Mandi (Amendment and Validation) Act, 1970 (Act) or the regulations framed thereunder. He was again appointed on a temporary basis without approval E of the Director as a Clerk Typist on 30. 9 .1972. One of the terms of the offer of appointment issued in his favour was that his services could be tenninated at any time upon giving one month's notice or pay in lieu thereof. The Authority was informed that several such appointments have been made in excess of the staff and that too without following the provisions of the Act F and rules and regulations therein and also without obtaining the approval of the Director. It was directed that the services of the persons concerned be tenninated, by a letter dated 10.01.1974; pursuant to or in furtherance whereof, the services of six employees including the respondent herein was terminated on 21.1.1974. One month's notice allegedly was given therefor. It is stated that the relevant provisions of the U.P. Industrial Disputes Act were also complied G with in relation thereto.

3. Respondent herein raised an industrial dispute on 2.5.1992. The State of Uttar Pradesh referred the following dispute for adjudication by the Labour Court, Meerut.

"Whether action of employers in terminating the services of their workman Sh. Paha! Singh, S/o Sh. Amrit Singh is ilfogal or invalid? If yes, then. to what relief/compensation the concerned workman is entitled? And with what other details?"

4. The parties before the Labour Court submitted their'respective written B statements. Respondent adduced evidence. The Labour Court by an Award

dated 24. l 0. l 996 holding that the termination of the services of the respondent was illegal, directed him to be re-instated in service with continuity of service and awarded back wages for the entire period.

5. The said Award came to be questioned by the appellant herein in a C Writ Petition filed before the High Court of Judicature at Allahabad. By reason of the impugned Judgment, the High Court modified the Award directing reinstatement of the respondent with 50% of back wages.

6. At the outset, we may notice that the judgment of the High Court is D not a reasoned one. Why the Award was upheld with modification in the quantum of back wages has not been stated. ·

7. The High Court while exercising its jurisdiction under Articles 226 and 227 of the Constitution of India upon issuance of a rule nisi is expected to apply its mind to the contentions raised by the parties and arrive at E findings thereupon.

error.

K We may notice that the learned Labour Court also committed the sarile

9. It, in its Award merely stated:-

"The workman has filed written statement with an affidavit which has not been controverted by the employers by filing rejoinder on affidavit., Therefore, in these circumstances the written statement of workman is Iiabl~ to be accepted according to Rule 12(9) of U.P. Industrial Dispute Rule 1957. It has been clearly provided under Rule 12(9) of U.P. Ind.ustrial Disputes Rules 1957 that if the workman files his written statement alongwith an affidavit, then the employers have to file their rejoinder with the affidavit. If the employers.do not file their rejoinder alongwith affidavit, then considering the facts oOhe written statement filed with affidavit as correct, award will be made in favour of workman.

KRISHI UTPADANMANDI SAMITY, MANGALOREv. PAHALSINGH [S.B. SINHA, J.)l 089

In the present case employers have not controverted the written A statement (affidavit) of workman by filing the rejoinder alongwith affidavit and the facts regarding termination of services pleaded by the workman were also not controverted by employers either in arguments or in evidence. In these circumstances the order terminating the services of workman will be held illegal and invalid."

10. The Labour Court, thus, also did not advert itself to the questions which were required to be gone into. The workman in the said proceedings was required to show that the termination was illegal. Only because it filed an affidavit and the respondent did not file any rejoinder affidavit thereto, the same by itself would not mean that an Award would automatically follow.

11. The Labour Court was also under an obligation to consider as to whether any relief, if at all could be granted in favour of the workman in view of the fact that the industrial dispute had been raised after 18 years. It was obligatory on the part of the Labour Court to consider that the respondent

was in employment for very short period. It had also not arrived at a finding D that the respondent was in continuous service within the meaning of Section 2(g) of the U.P. Industrial Disputes Act or for that matter in terminating the services of the respondent, the appellant did not comply with the requirements oflaw particularly Section 6-N thereof. In absence of such a finding, the High Court in our opinion should have interfered with the Award.

12. It is now well-settled principle of law that "delay defeats equity".

13. The Labour Court exercises its wide jurisdiction under Section l lA of the Industrial Disputes Act, but such jurisdiction must be exercised judiciously. A relief of re-instatement with all back wages is not to be given ,.; without considering the relevant factors therefor, only because it would be F lawful to do so. As noticed hereinbefore, in this case, even the basic requirements for grant of any relief had not been found by the Labour Court.

14. In Haryana State Co-operative Land Development Bank v. Nee/am, [2005] 5 SCC 91 this Court opined:-

"18. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties.

The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean

that irrespective of his conduct a workman would automatically be H

entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio. The respondent herin did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and has been continuing therein from 10-8-1988. In her replication filed before the Presiding Officer of the Labour Court while traversing the plea raised by the appellant herein that she is gainfully employed in HUDA with effect from 10-8-1988 and her services had been regularised therein, it was averred:

"6. The applicant workman had already given replication to the ALC-cum-Conciliation Officer, stating therein that she was engaged by HUDA from 10-8-1988 as clerk-cum-typist cm daily-wage basis.

The applicant workman has the right to come to the service of the management and she is interested to join them."

19. She, therefore, did not deny or dispute that she had been-regularly employed or her services had been regularised. She merely exercised her right to join the service of the appellant."

15. Yet again in U.P. State Electricity Boardv. Rajesh Kumar, [2003) 12 SCC 548, this Court held that although a period of limitation is prescribed for .

E making a reference, but facts and circumstances of each case is required to be considered in dealing with stale claims.

16. Recently in Assistant Engineer, C.A.D., Kata v. Dhan Kunwar, AIR

(2006) SC 2670, it was held;

"6. It may be noted that so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case."

17. See also Uttranchal Forest Development Corporation v. MC. Joshi,

(2007) 3 SCALE 545.

18. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The Appeal is allowed.

19. However, in the facts and circumstances of this case, there shall be no order as to costs.

H D.G.

Appeal allowed.