State Of Uttarakhand And Another vs Shekhar Chandra Tiwari

Sharad Kumar Sharma, J

The present writ petition has been preferred by the State, challenging the award dated 21.03.2012, as passed by the Presiding Officer, Labour Court, Kashipur, District Udham Singh Nagar in Adjudication Case No. 140 of 2008, Shekhar Chandra Tiwari v. Divisional Forest Officer, Champawat Forest Division, Champawat. The said award, which was later published in official gazette on 11.05.2012, the same has been put to challenge by the State.

A reference was made by the State Government for adjudication of the dispute by the Government Order No. 3482-87, reference - CP36/2006 dated 30.05.2007, wherein referring a dispute for adjudication to the following effect:-

"क्या सेवायोजकों द्वारा अपने श्रमिक श्री शेखर चन्द्र तीवारी पुत्र श्री डी0एन0 तिवारी की सेवाएं दिनांक 11.2.2003 से समाप्त किया जाना उचित/तथा अथवा वैधानिक है? यदि नहीं, तो सम्बन्धित श्रमिक क्या हितलाभ पाने का अधिकारी है, तथा अन्य किस विवरण सहित?"

The reference thus made was seeking an adjudication on the issues as to whether the act of employer/petitioner of dispensing the services of the respondent workman w.e.f. 11.02.2003 was just and proper? And if not, what benefit the workman was entitled to?

The learned counsel for the petitioner has raised two major questions:-

(1) That the reference itself would be bad because the Forest Department, which is represented through Divisional Forest Officer, will not constitute as to be an industry and will not fall to be within the definition of an industry as defined under the Industrial Disputes Act, 1947. Hence, the reference was bad. As far as the said issue is concerned, now it is no more res integra and it has been consistently settled in catena of judgements that as far as the forest department is concerned, that has to be treated as to be an industry for the purposes of bringing its workmen within the ambit of the provisions contained under the U.P. Industrial Disputes Act.

(2) The second question, which has been raised by the learned counsel for the petitioner is to the effect that the workman has voluntarily absented himself from the services and in those eventualities, the employer had no option except to dispense with the services of the workman.

In answer to the said argument extended by the learned counsel for the petitioner, this Court felt it to be necessary to go into the written statement as preferred by the petitioner employer before the Labour Court, and particularly, the reference could be made to the written statement as submitted by the employer on 22.02.2010. All the grounds agitated therein, in fact, if it is scrutinized in its precision, it does not reflect that only such ground as addressed above was ever taken by the petitioner as to be an issue of consideration before the Labour Court and hence in view of the pronouncements of the Hon'ble Apex Court that once an award is put to challenge before the writ Courts under Article 227 of the Constitution of India, it does not entail a re-scrutinization or re-appreciation of the evidence and the fact on record. Only a prima facie case has to be gone into by the writ Courts because the writ Court cannot substitute its finding or the conclusions derived by the Labour Court in arriving to its conclusion on appreciating evidence and by rendering the award while answering reference made by the State.

Since both the issues as raised above are the issues which stand already settled firstly, that the Forest Department has already been held to be an industry, it calls for no answer as of now and secondly, the plea raised herein that there had been a voluntarily absenteeism on part of the workman since it was not a ground raised, nor it was solicited to be decided by the Labour Court, an appreciation of evidence, this Court finds that it is the issue which cannot be ventured into for the first time in a writ jurisdiction, because it entails appreciation of rival evidence, after opportunities to both the parties, consequently, the writ petition lacks merits and the same is accordingly dismissed.