State of U.P. vs The Presiding Officer/Labour Court and Omkar

Rakesh Tiwari, J.—Heard standing counsel for the petitioner, Sri R.D. Yadav appearing for workman respondent No. 2 and perused the record. Presiding Officer, labour court, U.P., Bareilly has been arrayed as pro forma respondent No. 1.

The State Government on being satisfied that an industrial dispute exists made the following reference to the labour court, U.P., Bareilly where it was registered as adjudication case No. 190 of 1992:

D;k lsok;kstdksa }kjk fooknxzLr Jfed Jh vksedkj iq= Jh cuokjh yky VkbZfiLV dh lsok;sa fnukad 3-9-91 ls lekIr fd;k tkuk mfpr ,oa oS/kkfud gS A ;fn ugh] rks og fdl ykHk @ {kfriwfrZ ikus dk vf/kdkjh gS ,oa fdl vU; fooj.k lfgr\\

On receipt of summons, the workman filed his written statement and rejoinder statement was filed by the employers. The workman filed five documents on 20.7.1995 in support of his case and the parties also led oral evidence before the labour court.

By the impugned award dated 29.11.1999, the labour court has directed the petitioner employers to reinstate workman on the post of typist held by him before termination of his services but did not award any back wages. The aforesaid award was published on 16.4.2000 and has been enforced after thirty days of its publication as provided u/s 6-A of U.P. Industrial Disputes Act 1947 ( hereinafter referred to as the Act).

The impugned award is assailed on the ground that appointing authority of class 111 employee is the Superintending Engineer, there is no post of typist in the department on which the workman claims to have been appointed; that a class III employee is also required to have knowledge of typing in the department, hence the impugned award directing reinstatement of the workman against a post of typist is totally illegal and without jurisdiction; that petitioner -irrigation department is a department of State of U.P. to which Government service rules apply, as such jurisdiction of the labour court is excluded to the aforesaid extent and that award is bad otherwise also on the face of it, facts and law.

It is urged that the labour court has recorded a finding without any basis as the workman who claims to be an employee of the department, had not completed 240 days of continuous service in a year of 12 calender months as required u/s 6-N of the Act, hence the award of the lower court is perverse for this reason also.

Counsel for the workman-respondent No. 2 has submitted that the labour court after hearing the parties came to the conclusion that five documents filed by the workman dated 29.6.1991, 29.7.1991,27.6.1991, 27.8.1991 and 23.8.1991 were typed by him as they and have been attested by the employers. Similarly the index and office memorandums filed before the labour court also establish that the workman had worked in the petitioner establishment as his initials have been found having typed the letter. The counsel for the workman has relied upon following extract of the impugned award in this regard:

bu lHkh vfHkys[kks ,oa i=koyh ij miyC/k ekSf[kd lk{; ls ;g ckr esjh jk; esa esjh iwjh rjg ls fl) ik;h tkrh gS fd lacaf/kr Jfed vksedkj us 20-8-88 ls 2-9-91 rd yxkrkj lsok;kstd ds ;gka crkSj VkbfiLV dk;Z fd;k Fkk vkSj bl vof/k dk osru mls ckmpj ij izkIr Hkh djk;k x;k Fkk Jfed ds ekSf[kd lk{; dk leZFku Jfed }kjk fd;s x;s bUVsUVl @ vkifRr eseksjsUMe rFkk foHkkx }kjk 5 nkf[ky fd;s x;s vfHkys[kks dh lR;izfr ls rFkk Vkbi jkbVj dh ejEer ds fy, tks izkFkZuk i= lacaf/kr Jfed }kjk fn;k x;k Fkk ls iw.kZr;k fl) ik;h tkrh gS pwWafd 20-8-88 ls 2-9-91 dh dk;Z vof/k izR;sd o"kZ esa 240 fnu ls cgqr vf/kd gS A blfy, mldk dk;Z fn0 3-9-91 ls lekIr fd;k tkuk oS/kkfud @ mfpr ugh dgk tk ldrk A blfy, lacaf/kr Jfed dks mlds VkbfiLV @ DydZ ds dk;Z ij iqu% LFkkfir djuk U;k; mfpr gksxk fdUrq fn- 3-9-91 esa iqu% LFkkfir fd;s tkus dh frfFk rd dk dksbZ osru ;k vuqrks"k ikus dk vf/kdkjh ugh gksxk D;ksfd og vLFkkbZ deZpkjh Fkk ,oa g0@& mldh g0@& fyf[kr esa izkij lsysD''ku ds i''pkr fu;qfDr vf/kdkjh }kjk izkiyhZ fu;qfDr ugh dh xbZ Fkh rFkk esjh jk; esa 2-9-91 ds ckn vc rd dh vo''; gh fdlh u fdlh xSu iquhZ bEiyk;esUV esa yxk jgk gksxkA

After hearing counsel for the parties and on perusal of the record as well as law, I am of the opinion that it is undisputed fact that a clerk is also required to have knowledge of typing. The workman concerned has nowhere filed his appointment letter showing that he was appointed on the post of typist, therefore, it cannot be said that he was appointed by the department in accordance with recruitment Rules on the post of typist. May be that he knew typing work and had typed some documents but that will not make him a person duly appointed on a substantive post in accordance with law for the reason there is no post of typist in the department.

it further appears that labour court has considered the span of work of the workman during the period 20.8.1988 to 2.9.1991 and has held that in each of the calender year he had completed more than 240 days. It was required to be proved by documentary evidence for it to come to conclusion that in each of three years from 20.8.1988 to 2.9.1991, the workman had actually worked for 240 days of continuous service as defined in Section 2(g) of the Act.

It appears the labour court has inadvertently come to the conclusion that number of days during the aforesaid period i.e. 20.8.88 to 2.9.1991 is much more than 240 days though what the labour court was required to see is whether he had actually worked for 240 days in each of the years of 12 calender months as provided in Section 6-N read with Section 2(g) of the Act but as there being no documentary evidence for coming to this factual conclusion, as such the finding in this regard by the labour court are without basis and perverse.

Admittedly the workman was a temporary employee, hence he could not have been reinstated on a post which was not existing without recording a finding that there was a vacant and sanctioned post of typist in the department. It also appears that labour court has found that appointment of the workman was not proper.

12.The burden of proof to show that he had worked for more than 240 days in the preceding 12 months from the date of his termination, is upon the workman as has been held by the Apex Court in Sitaram and Ors. v. Motilal Nehru Farmers Training Institute 2008 (2) ESC 198, wherein in paragraph 12 and 13 the Apex Court has held as under:

Although at one point of time, the burden of proof used to be placed on the employer, in view of catena of recent decisions, it must be held that the burden of proof is on the workman to show that he has completed 240 days in a year.

We are, however, not oblivious of the distinction between the provisions of the Industrial Disputes Act, 1947 and U.P. Industrial Disputes Act, 1947 inasmuch as whereas in the former, the workman has to prove that he has worked for more than 240 days in the preceding 12 months of the date of his termination, there is no such requirement in the case of latter.

Considering the fact that there was no evidence before the labour court to come to the conclusion that the workman had actually and in fact worked for 240 days of continuous service in each year of 12 calender months and that there was any vacant sanctioned post of typist in the department, evidence before the labour court was insufficient and inadequate to come to this conclusion. Therefore, the order of the labour court is perverse. Reliance in this regard may be placed on Syed Yakoob Vs. K.S. Radhakrishnan and Others, wherein it has been held in paragraph No. 7 as follows:

...In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.

A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court.

For all the reasons stated above and on consideration of law, I am of the opinion that findings recorded in the impugned award of the labour court are perverse and it suffers from errors apparent on the face of record and law, hence is liable to be quashed.

Accordingly, this petition is allowed and the impugned award dated 29.11.1999 in adjudication case No. 190 of 1992 appended as annexure-8 to the writ petition is quashed. The matter is remanded to the labour court concerned for deciding it afresh in the light of observations made above.