U.P. State Electricity Board and Others vs Presiding Officer, Industrial Tribunal II and Another

P.K. Mukherjee, J.—The present writ petition is listed for admission today. However, with the consent of learned Counsel for both the parties, in Is being disposed of finally.

The facts of the case, in brief, are that a reference, u/s 4-K of the U.P. Industrial Disputes Act (hereinafter referred to as ''the Act'') was made by State of U.P. for adjudication by Industrial Tribunal. The reference was made in respect of two employees, namely, S//Sri Ishtiaq Hussain, Accountant and R.C. Saxena, Clerk-Grade-A. They were employees of ex-licence company namely Electricity Supply Company Limited, Shaojahanpur, which was taken over by U.P. State Electricity Board with effect from 1st December, 1975. The aforesaid employees opted the terms and conditions of service of the erstwhile Company and did not opt those of the Board. They retired from service in 1983. After retirement, these workmen claimed that their dependents are entitled to be absorbed In U.P. State Electricity Board as per terms and conditions laid down by Kashi Nath Pandey Award.

Sri Tarun Agarwal, learned Counsel for the Petitioner-Board vehemently attacked the impugned award and submitted that once the Tribunal held that Kashinath Pandey Award dated 16-12-1967 was operative for one year only from the date of its publication, which was published on 16-12-1967 it went beyond jurisdiction in directing the Board to employ the dependents of the aforesaid two workmen. Moreover, the term of reference was in respect of dependants, and not the heirs. The question of heirs arises only after the death of an employee, or person. In the present case, both the employees are alive.

On the other hand, Sri Pradeep Kumar, learned Counsel for the Respondents contended that the Tribunal has in advertently used the word ''heirs'' It should have been ''dependents''. The judgment and award of Tribunal may not be happily worded but are sound in law and cannot be disturbed in the writ jurisdiction.

Having heard learned Counsel for the parties and gone through the impugned award, as well as terms of reference. I find that the impugned award has been passed without application of judicious mind. The terms of reference u/s -K of the Act read as under:

Whether the Petitioners were justified in not giving employment to the dependents of retired employees, Sri Ishtiaq Hussain. Accountant and Sri Ram Chandra Saxena, Clerk Grade A, in terms of Sri Kashi Nath Pandey''s Award, and, to what relief are the concerned workmen entitled to?.

At this stage, it is relevant to mention that the two employees, namely. S/Sri Ishtiaq Hussain and Ram Chandra Sate of were working with the erstwhile Electric Supply Company Limited, Shahjahanpur. After its taking over by U.P. State Electricity Board, these employees opted for the terms and conditions of their old employer. An award, known as Kashi Nath Pandey award, which wan published on 16-12 1967, stipulated that the erstwhile Electric Supply Company Limited Shaojahanpur will give preference to the dependants of Company''s employees, over and above the outsiders in case of employment. This award was published on 16-12-1967, and. admittedly, this was operative for one year. Thus, it lost its efficacy on 16-12-1968. In paragraph 10 of the impugned award, the Tribunal has considered the case of workmen and dealt with the case law, namely, Thungabhadra Industries Ltd. v. The workmen 1973 CC 459 wherein the Apex Court has held that unless a notice of termination of as award was given, it would operate. To this submission of the workmen, the view of the Tribunal is that the aforesaid case law is based on Central Act, u/s 19(6) whereof; an award can continue even after one year, unless a notice of termination is given by either party, in ''''which case, the award will erase to operate after two months of such notice. The Tribunal further held that while there is a provision parallel to Section 19(3) in U.P. Industrial Act, with regard to period of operation of an award, there is no such provision like Section 19(6) of the Central Act in the U.P. Act. Thus, be held that the case law was distinguishable and was not applicable to the facts of the present case. The Tribunal, in clear cut and unambiguous terms, held that Kashi Nath Pandey Award was inoperative after 16-12-1968.

Thus, once the Tribunal held that the aforesaid award was not applicable in the present case, the chapter should have been closed there, However, the Tribunal crossed its jurisdiction and went beyond the terms of reference by observing as follows:

It has been held above that the Standing Orders do not provide the benefit of employing a heir of a retired employee. But the Board, as admitted by employers, gives the benefits to those who dies In service as per Board''s rules. The question is whether this benefit given under Kashi Nath Pandey Award can be termed as a condition of service of ex-licensee''s employees and whether it was the practice which prevailed... .

A perusal of impugned award goes to show that the learned Presiding Officer of the Industrial Tribunal has misdirected himself by considering the case of ''heirs'' The reference was made for the dependants and not for the heirs. Both the employees, in respect of whom the reference was made were alive at the time of reference They were retired employees and the question was that whether their dependents were entitled to be appointed as dependents, In view of Kashi Nath Pandey Award, or not. it was never a case of heirs.

In view of what has been said above, I also arrive to the conclusion that the grant of financial compensation to the tune of Rs. 5000 to both the workmen is not according to law. The Tribunal has committed gross illegality and perversity in awarding such compensation.

In the result, the writ petition is allowed and the impugned award dated 26th November, 1987 is quashed. However, this will not take away the fight of the dependents of two workmen, namely, S/Sri Ishtiaq Hussain and Ram Chandra Saxena to apply for their absorption in the U.P. State Electricity Board, according to their qualification and technical experience. If such applications are made, the Petitioner Board is directed to consider the same even if they have crossed the age limit in accordance with law, without being influenced by the fact that the present writ petition has been allowed in their favour.