State of U.P. vs The Presiding Officer, Industrial Tribunal No. 1 and Paras Nath

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

This writ petition has been filed for quashing the award dated 28.7.95 passed by the Industrial Tribunal (I), U.P. Allahabad in Adjudication Case No. 211 of 1993, Paras Nath v. State of U.P. and Anr.

The case of the employers is that the workman concerned was engaged as daily wager on a temporary post but he was not discharging his duties sincerely and remained absent from his duties since 20.5.1993 without any application or information. Thereafter a medical certificate was furnished by the workman concerned for the period 20.5.93 to 28.5.93 and they had not terminated the services of the workman concerned.

It appears that the workman concerned raised an industrial dispute before the Deputy Labour Commissioner, Allahabad who referred following matter of dispute to the Industrial Tribunal (I), U.P. Allahabad where it was registered as Adjudication Case No. 211 of 1993.

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The case of the workman before the Labour Court was that he was appointed as Electrician Fitter and thereafter worked till 19.5.93; that he had fallen ill from 20.5.93 to 28.5.93 and remained under treatment of a medical practitioner. Thereafter reported for duty along with fitness certificate and moved an application before the authorities concerned on 29.5.93 but was not permitted to work, hence he alleged illegal termination of his services without any notice or retrenchment compensation in lieu thereof.

The Labour Court by the impugned award has held that the termination of services of the workman was in violation of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947; further noticing that though the representative of the employers, opposite party, cross-examined the workman concerned but for the reasons best known to him, he did not put even a single question to the workman in respect of his illness and refusal to work inspite of submission of medical certificate in his examination-in-chief. The statement of the workman being uncontroverted, the Court below believed the version of the workman concerned and held that-

The statement of the workman concerned couplod with the above documents proves the case of the workman concerned in its entirety. The pleas taken by the employeis, opposite parties, in their objection filed before the Conciliation Officer in the above C.P. case are inconsistent with and contradictory to those taken by them in their written statement and rejoinder filed in the Tribunal on several points. The learned representative for the employers, opposite parties, has conceded to all this in the course of his arguments. All this indicates nothing but falsehood in the case get up by the employers, opposite parties particularly in the absence of documents from their side This has also been conceded to by their learned representative in the course of his argument.

In the result, the workman concerned, Sri Paras Nath, is held entitled to reinstatement with continuity of service, full back wages and all other benefits which he would have got if his service had not been illegally terminated The award is accordingly passed in favour of the workman and against the employees, opposite parties. The employers, opposite parties, are directed to comply with these directions within the period of 30 days from the date of production of a copy of this award before them after the date of its publication.

There shall, however, be no order as to costs.

At the time of admission the Court passed the interim order on 13.2.95.

Issue notice.

Meanwhile operation of the impugned award dated 28th July, 1995 shall remain stayed so far as payment of back wages are concerned. However, respondent No. 2 shall be allowed to work on his post from March, 1996 and shall be paid regular salary. In case of default, this interim order shall stand automatically vacated.

It is admitted in counter affidavit filed on behalf of the workman by Sri Shyam Narain, Advocate that the workman had been reinstated in service by the employer in compliance of the foresaid interim order of this Court dated 13.2.96 but it appears that thereafter the workman did not report for duty nor his whereabouts came to be known.

The Standing Counsel has also filed a supplementary counter affidavit on behalf of his wife Smt. Malti Devi interalia that in pursuance to the interim order of this Court aforesaid, the workman concerned was reinstated in service by the petitioner land he started discharging his duties and was paid his salary regularly but since 27.6.97 the workman has disappeared from his house and since then his whereabouts are not traceable and he has not even reported for duty to the petitioner and that she he has lodged FIR at police station Colonelganj, Allahabad in this regard and has also informed the petitioners.

Considering the circumstances of the case and the fact that the petitioners have been kind enough to give fresh employment to his wife, hence Sri Shyam Narain, Advocate states that now only the question that remains before this Court is regarding back wages.

The award has already been complied with by the employers and that they have also given service to the wife of the workman concerned thereafter. In so far as back wages is concerned, it is admitted by the parties that the workman concerned was a daily wage employee. He has not shown that he was not gainfully employed during the pendency of dispute. In recent judgment, the Apex Court has held that the daily wager is not entitled to any back wages or continuity of service. The Hon''ble Supreme Court in the case of Kendriya Vidyalaya Sanqhathan and Anr. v. S.C. Sharma 2005 LLR 275 has held that-

For entitlement of back wages on reinstatement of an employee, the initial burden lies upon the employee that he was not gainfully employed and thereafter the employer can rebut the same.

When the employee as directed to be reinstated in service with back wages by the Tribunal and High Court he will not be entitled to back wages since he has neither pleaded nor placed any material that he was not gainfully employed.

Hence, the award in so far as reinstatement in service with continuity of service is concerned, appears to be bad in law. However, in the peculiar facts and circumstances of the case and that the workman has been reinstated in service and after his disappearance his wife has been granted fresh appointment, this question does not appear to be very material at this stage.

For all the reasons stated above, the writ petition is allowed. The impugned award is quashed in so far as direction of payment of full back wages is concerned.

No order as to costs.