Dugdh Utpadak Sahkari Sangh Ltd. vs Presiding Officer, Labour Court and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties on the application seeking extension of time for compliance of order dated 18.01.2007 as well as on the merit of the writ petition.

This writ petition is directed against award dated 04.04.1997 given by Presiding Officer, Labour Court, Varanasi in Adjudication Case No. 316 of 1989. The matter which was referred to the labour court was as to whether the action of the Petitioner employer terminating the services of its workman Mallu Prasad, Respondent No. 3 in this writ petition w.e.f. 01.06.1987 was just and valid or not. The case of Respondent No. 3 was that he was appointed by the Petitioner on 07.02.1986 as dairy man and he worked continuously on the said post till 30.05.1987, hence he had completed 240 days in a calender year but no retrenchment compensation as required by Section 6-N of U.P. Industrial Disputes Act was paid to him before his termination/ retrenchment. The case of the Petitioner employer was that supply of milk normally increases from September to March hence during this period temporary employees or daily wagers were employed and Petitioner was also employed in same capacity from 24.02.1987 to 23.05.1987. The appointment letter was produced by the Petitioner showing that the Respondent workman was appointed from 24.02.1987 to 23.05.1987 @ Rs. 16.60 per day. Some documents were summoned from the employer pertaining to the year 1986 & 1987 which it produced.

There was no substantial dispute regarding date of termination (either 23rd or 30th May, 1987). The dispute was regarding date of appointment which according to the workman was 07.02.1986 while according to the employer it was 24.02.1987. However the labour court on perusal of some vouchers held that the workman Respondent had been paid some amount in February, 1986, thereafter in March, 1986, thereafter in April, 1986 and that it was also shown that on 4th, 11th and 18th March, 1986 which were holidays, workman Respondent No. 1 had worked and had been paid wages and that workman was also paid for May, 1986, and that through Voucher No. 492, dated 09.07.1986 payment of June, 1986 was also made. It is also mentioned in the impugned award that payment register of daily wagers was also summoned and produced by the employer which showed that Respondent No. 3 had continuously worked from 07.02.1986 till 28.02.1987. Accordingly, reinstatement with full back wages was directed.

By reading the judgment of the labour court, it is quite clear that workman Respondent was appointed as daily wager.

In this case, through order dated 27.01.1998 execution of the impugned award was stayed till the filing of the counter affidavit. Thereafter, the following order was passed on 26.11.2002:

Admit.

Issue notice.

No notice need be sent to Respondent No. 3 since he is represented and filed Counter Affidavit.

Learned Counsel for the Petitioner has drawn notice of this Court to the para 12 of the Rejoinder Affidavit and submitted that Petitioner is prepared to reinstate the concerned employee/Respondent No. 3. In view of the matter Petitioner be reinstated forthwith and paid his salary month by month in future. Petitioner shall also deposit half of the amount under award in question with the concerned Labour Court within two months from today and the same will be allowed to be withdrawn by the Respondent No. 3 subject to furnishing adequate security (other than cash or bank guarantee).

Considering the nature of the case writ petition shall be listed for final hearing immediately after two months.

In pursuance of order dated 26.11.2002 Respondent workman was reinstated, however 50% back wages have not yet been deposited. Respondent workman filed an application for review/ modification of the said order on 24.01.2003. On 18.01.2007, an order was passed directing the listing of the modification application and directing the Petitioner to make compliance of order dated 26.11.2002 regarding deposit of 50% back wages failing which certain authorities were directed to appear in person to show cause. Petitioner filed an application dated 09.02.2007 along with affidavit of manager of Petitioner stating therein that due to acute financial crisis (total liability of the Petitioner being about Rs. 181 lacs) back wages could not be deposited. Thereafter on 16.11.2010 a supplementary affidavit bearing date 25.05.2007 was filed by the Petitioner stating therein that 50% back wages from 01.06.1987 to 21.10.1997 amounting to Rs. 27050/-had been deposited by it on 28.04.2007 before Respondent No. 1.

Learned Counsel for the Petitioner has firstly argued that in view of Supreme Court authority reported in Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner and Others, labour court has got no jurisdiction to entertain the dispute in between cooperative societies and their employees in U.P. Learned Counsel has further argued that as the workman Respondent was a daily wager, hence by maximum some compensation could be awarded to him and for this proposition learned Counsel has cited the following authorities:

Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U.P. and Others,

Branch Manager M.P. State Agro Industries Development Corporation Ltd. v. S.C. Pandey 2006 (109) FLR 204

Haryana State Electronics Development Corporation Ltd. Vs. Mamni, .

Learned Counsel has further cited a judgment of the Supreme Court reported in Sahkari Ganna Vikas Samiti and Ors. v. Madan Mohan Tiwari and Anr. Civil Appeal No. 7385 of 2005 decided on 05.12.2005 in Civil Appeal No. 7385 of 2005.

In the said authority, it has been held that unless it is shown that the workman was not engaged in some gainful employment, back wages cannot be awarded and for the said proposition reliance has also been placed reliance upon General Manager Haryana Roadways v. Rajendra Singh 2005 (5) SCC 599.

In the instant case as workman Respondent has been reinstated according to the statement given by learned Counsel for the Petitioner as contained in the order dated 26.11.2002, hence I do not consider it appropriate to decide as to whether the order of reinstatement given through the impugned award is correct or not.

However, there was absolutely no question of directing payment of any back wages by the labour court. Firstly, workman Respondent had not shown that he was not employed for gain meanwhile. Secondly, the order of reinstatement has also been maintained on the concession of the learned Counsel for the Petitioner as contained in the order dated 26.11.2002 otherwise in view of the above arguments of learned Counsel for the Petitioner, the same also could not have been maintained.

Writ petition is accordingly allowed in part. Impugned award is set aside in respect of payment of back wages but is maintained in respect of reinstatement.

As direction for payment of back wages given by the impugned award has been set aside, hence the deposited amount must be returned to the Petitioner or if the said amount has been withdrawn by the workman then the same shall be adjusted from his future salary @ 25% of monthly salary per month.