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Judgment
Sibghat Ullah Khan, J.—Heard Sri V.K. Singh, learned senior Counsel, assisted by Sri S. Shekhar, learned Counsel for the petitioner in each writ petition and Sri S.P. Giri and H.C. Dwivedi, learned Counsel for the workmen respondents in the writ petitions.
Respondent No. 2 in each writ petition was engaged as Scaler on daily wage basis. Their duties were to weigh the woods and help in its selling etc. Each workman was engaged in Muzaffarnagar Logging Division of petitioner U.P. Forest Corporation. According to the petitioner after amendment of Wild Life Protection Act, 1972, a large area of forest in U.P. was declared as national park and sanctuary and felling of the trees was banned and entry into the said area was completely banned which resulted in drastic reduction in the quantum of work-load of the petitioner, which was almost 50%. Accordingly, the corporation decided to disengage the daily labours/daily wagers. In anticipation of such move 427 workers filed Writ Petition No. 4209 of 1998 at Lucknow Bench of the this Court which was decided on 12.7.1994 giving liberty to the petitioner to retrench D.L. workers after following the procedure laid down in section 6-N of U.P. Industrial Disputes Act. Thereafter hundreds of employees were retrenched in 1995 including the respondents in these writ petitions. According to the petitioner retrenchment compensation as required by section 6-N of U.P.I.D. Act was paid to each workman. The retrenched workmen including the nine workmen who are respondents in these writ petitions raised industrial disputes. Matters were referred to the Labour Court (II) U.P. Meerut. Adjudication Cases Numbers 32, 35 and 36, all of 1996 concerning Yadram, Dharm Pal and Giriraj Singh workman respondent No. 2 in the third, sixth and seventh writ petition respectively were decided on 30.10.1998 holding that their retrenchment w.e.f. 31.5.1995 was neither just nor legal. Accordingly reinstatement with full back wages was directed. In the award it was noted that each workman in his oral statement had stated that at the time of accepting the retrenchment compensation they raised their objections.
Adjudication Cases Nos. 30,31, 33,34 & 37, all of 1996 concerning Kamal Singh, Virendra Singh son of Chhet Ram Singh, Rajendra Singh, Virendra Singh son of Dal Chand and Ram Kumar, workman respondent No. 2 in the second, fourth, fifth, first and eighth writ petition respectively were also decided by the same Presiding Officer of Labour Court (II), U.P., Meerut on 30.10.1998 in the same manner with the said directions. Adjudication Case No. 78 of 1997 concerning Bageshwar Prasad Sharma, workman respondent No. 2 in the 9th writ petition was decided on 15.3.2002 by Presiding Officer (I), U.P. Meerut in the same manner with the same directions.
Services were terminated through orders passed on different dates in March, 1995, however the retrenchment in case of each workman was to be effective from 31.3.1995.
The workman respondent No. 2 in the first writ petition is Virendra Singh son of Dal Chand. The workman respondent No. 2 in the second writ petition is Kamal Singh. The workman respondent No. 2 in the third writ petition is Yad Ram. The workman respondent No. 2 in the fourth writ petition is Virendra Singh son of Chhet Ram Singh. The workman respondent No. 2 in the fifth writ petition is Rajendra Singh. The workman respondent No. 2 in the sixth writ petition is Dharm Pal. The workman respondent No. 2 in the seventh writ petition is Giri Raj. The workman respondent No. 2 in the eighth writ petition is Ram Kumar. The workman respondent No. 2 in the ninth writ petition is Bageshwar Prasad Sharma.
In each writ petition conditional stay order was granted directing deposit of 50% back wages and compliance of section 17-B of Industrial Disputes Act (Central). On the date on which arguments were heard in these petitions, learned Counsel for the petitioner stated that each workman respondent No. 2 in each writ petition was getting Rs. 1756/- per month under interim order passed by this Court in these writ petitions without any work.
The faint argument raised by the learned Counsel for the workman that provisions of section 6-N of U.P.I.D. Act were not complied with is not at all tenable. Each workman was paid the retrenchment compensation. The mere fact that at the time of accepting the compensation some protest was made does not mitigate against full compliance of provisions of section 6-N of U.P.I.D. Act
The main point to be decided in these writ petitions and argued by learned Counsel for both the parties is as to whether provisions of sections 6(p) and 6(q) of U.P.I.D. Act were complied with or not? sections 6(p) and 6(q) of U.P.I.D. Act are quoted below:
6-P. Procedure for retrenchment.--Where any workman in an industrial establishment who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
6-Q Re-employment of retrenched workmen:--Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen to offer themselves for reemployment, and the retrenched workmen who offer themselves for reemployment shall have preference over other persons.
There is no dispute that due to amendment in the Wild Life Protection Act, a large forest area was declared as national park and sanctuary and complete ban on felling of green trees was imposed hence, the work-load of the petitioner was drastically reduced. It is seen common sense that in such situation workers are to be retrenched. Even otherwise provisions of section 6-N having been complied with completely, retrenchment cannot be questioned unless it is shown that it was arbitrary in the sense that juniors were retained. If due to reduction in work-load retrenchment is to be made then obviously the principle of "last come first go'' will have to be followed.
There is no dispute that some D.L. scalers junior to workmen respondents in these writ petitions were retained. It was on the basis of this fact that the Labour Court directed reinstatement with full back wages. However the argument of learned Counsel for the petitioner in this regard is that those workmen who were similarly situate as respondents in these writ petitions and who were retained in spite of being junior were members of schedule caste, schedule tribe, O.B.C. or disabled. Preferential treatment to such persons is not only permitted but in certain situation also mandated by the Constitution of India. Accordingly, if it was so done, no fault can be found with the petitioner, which is a government corporation and each and every provision of Constitution is required to be followed by it not only in letter but in spirit also.
Moreover if a large number of employees are retrenched and few juniors are retained then on that basis all the retrenched employees cannot be directed to be reinstated. By maximum only as many employees seniority wise as have been retained may be directed to be reinstated. Suppose hundred employees are retrenched and five employees who are junior to all the hundred retrenched employees are retained, then only five senior most retrenched employees may be directed to be reinstated. The reason being that in case the principle "last come first go'' had been followed then the five junior retained employees should have been terminated and at their place five senior most employees among the retrenched employees should have been retained.
In each and every case, same instances of retained junior employees were given before the Labour Court, whose names are Shailendra Kumar, Shekhar Chand, Suresh Chand, Sundar Lal and Manohar Singh.
The labour Court placed great reliance upon the statement of Meghraj Singh who was witness of the petitioner to the effect that whenever additional scalers were required in a region/ section they were called from other regions. From this statement it cannot be inferred that there was permanent necessity of further scalers. In any case no employer can be compelled to retain more than required number of workmen unless termination order suffers from violation of some provisions of Industrial Disputes Act. Adjustment of workers from different units depending upon temporary increase of work-load in a particular unit is not prohibited.
Accordingly, impugned awards being utterly erroneous in law are set aside. All the writ petitions are allowed. However whatever amount has been paid under interim orders passed in these writ petitions to the workmen shall not be refundable and shall be treated to be due compensation/ damages if it is assumed that there was some slight irregularity in the termination (even though I have not found any irregularity in the termination order).