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Judgment
Yatindra Singh, J.—Sri Ved Prakash Agrawal(Sri Agrawal) Joined U.P. State Sugar Corporation Limited, Lucknow (the Corporation) sometime, in the year, 1973. His services were terminated on 2481976, w.e.f. 2531976; he raised a labour dispute. In conciliation proceedings, the parties came to the terms and the order terminating his services was cancelled on 17111976. According to Sri Agrawal he went back to the Corporation on 24111976, but was not taken back and he raised a labour dispute again. This dispute was referred to Labour Court. The Labour Court by its award dated 1451980 accepted the contention of the Corporation that Sri Agrawal himself did not join his duties on his own accord. In view of this finding no relief was granted to him. It appears that subsequently Sri Agrawal did join duties sometimes in 1978 and the Corporation permitted him to work.
Sri Agrawal continued in service of the Corporation and was charge sheeted on 921987, for misconduct (disobedience, insubordination, indiscipline, creating nuisance and disturbing the workers while on duty). An injury officer was appointed and he submitted his report on 231987. Service of Sri Agrawal were terminated on 331987 on the basis of inquiry report. He again raised a Labour dispute and this was referred to the Labour Court by the order dated 2221988. The case was initially sent to Labour Court, Meerut for adjudication, thereafter it was transferred to some other Labour Courts and ultimately to the Industrial Tribunal1, Allahabad (the Tribunal).This reference was allowed in favour of Sri Agrawal on 251999, and termination order was set aside on the finding that no retrenchment compensation was given to Sri Agrawal before terminating his services. He was ordered to be reinstated with continuity of service with full back wages and other benefits.
Sri Agrawal filed a Writ Petition No. 2667 of 2000 (the first writ petition)
* Quashing of the award dated 1451980;
* Directing for his reinstatement from 2531980;
* Payment of interest on full back wages; and
* Prosecution of employers and their Advocate under different Acts.
The first writ petition was dismissed by this Court on 1912000 on the ground of latches and Sri Agrawal filed an appeal before the Apex Court. During pendency of this appeal, the Corporation also filed WP No. 9202 of 2000 (the second writ petition) challenging the award of the Tribunal dated 251999. The Corporation did not reinstate Sri Agrawal in pursuance of the award on the ground that he superannuated on 611996 during pendency of labour dispute, and thereafter interim orders were obtained from this Court in the second writ petition.
The Apex Court allowed the appeal of Sri Agrawal on 1682000 dismissing the first writ petition and remanded to send the matter for redecision on one question to consider whether Sri Agrawal could be retired on 611996 or was he to be retired on any other date. This point was to be decided after affording opportunity to the parties concerned.
The Apex Court while remanding the case also expressed at desire that the writ petition filed by Sri Agrawal alongwith the writ petition filed by the corporation may be decided, if possible, within six month. The are being decided today.
POINTS FOR DETERMINATION:
Have heard Sri Agrawal, in person and Sri S.S. Nigam, Counsel for the corporation. Following points arises for determination in this case:
(i) The age of superannuation in the Corporation is 60 years. According to the Corporation the date of birth of Sri Agrawal is 611938, whereas according to Sri Agrawal his date of birth is 1611943. What is the correct date of birth of Sri Agrawal?
(ii) The Industrial Tribunal has set aside the order of termination on the ground that no retrenchment compensation was given. The services of Sri Agrawal were terminated after disciplinary inquiry. Was he entitled to any retrenchment compensation? Was it a case of retrenchment ? Could the award be set aside on the ground that no retrenchment was given?
1st POINT: SRI AGRAWAL''S DATE OF BIRTH 611936 :
There is neither any relief nor any pleading in the first writ petition about date of birth or date of superannuation. This question was neither raised nor argued when the first petition was decided earlier by the Single Judge. I proceed to decide it as the Apex Court has permitted it to be raised and the parties have also filed affidavits regarding date of birth.
The Corporation has filed following documents to show that date of birth of Sri Agrawal is 611936:
(i) Photostat copy of the application dated 1361973 filed Sri Agrawal for recruitment.
(ii) The Photostat copy of the Form II declaring and nomination form regarding Employees Provident Fund under the provisions of Employees Provident Fund Scheme, 1952.
(iii) Photostat copy of the Gazette dated 1391952 in which High School result of Sri Agrawal was published.
(iv) Copy of the written statement and affidavit filed by Sri Agrawal before Labour Court.
According to the Corporation the first two documents are in the handwriting of Sri Agrawal. The third document is public document. In the first three documents, the date of birth of Sri Agrawal is mentioned as 611936. The fourth document is the written statement and the affidavit filed by Sri Agrawal before labour Court, Meerut in this labour dispute. It was filed on 961988. In this Sri Agrawal has shown his age to be 53 years. This indicates that according to Sri Agrawal, himself, he was born in 1935 and the date 611936 mentioned by the corporation is correct.
Sri Agrawal submitted that these documents are forged documents and are not correct ones. No documents have been filed by Sri Agrawal that his date of birth is 1611943 and not 611936. There is nothing to show that documents filled by corporation are forged on the date of birth of Sri Agrawal is 1611943 instead of 611936. The first two documents filed by the Corporation are photostat copies of the documents filed by Sri Agrawal himself. The third one is photostat copy of the Official Gazette. The fourth one is affidavit of Sri Agrawal which indicates that the date of birth as mentioned by the Corporation is correct. In these circumstances, I have no reason to doubt that date of birth of Sri Agrawal is 6136 and not 1611943. If services of Sri Agrawal were not terminated then he would have retired on 611996. This point is decided against Sri Agrawal.
2nd POINT : THE AWARD IS ILLEGAL:
Sri Agrawal was given a charge sheet on 921987. An inquiry report was submitted against him and his services were terminated on 331987 as punishment by way of disciplinary action. This fact has been stated in the written statement filed by the Corporation before the Labour Court. In paragraphs 13A and 13B of the second writ petition, it has been specifically stated that copies of chargesheet explanation given by Sri Agrawal, inquiry proceedings were brought on record before the Tribunal and the Tribunal also framed following two issues on 15121991:
(i) Whether the inquiry conducted in the matter was fair and proper?
(ii) If the reply in issue No. 1 is in negative whether unitRohanakalan can be permitted to prove the charges.
The Paragraphs numbers 13A and 13B of the second writ petition are not denied. The Tribunal has not decided these questions, but has held that termination order is illegal as no retrenchment compensation was given. This could not be done because if the case of the Corporation is correct then there was no retrenchment.
Retrenchment is defined under Section 2(s)<2. (s) Retrenchment means the termination by the employer of the service of a workman or any reason whatsoever, otherwise then as punishment inflicted by way of disciplinary action, but does not include. (i) Voluntary retirement of the workmen; or (ii) Retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf.> of U.P. Industrial Disputes Act (the Act). It means termination of employment of services of workmen on any reason whatsoever otherwise than on the basis of discipline proceedings. According to the Corporation services of the petitioner were terminated by means of disciplinary proceedings after holding inquiry. Two issues (in paragraph No. 11) were also framed. The Tribunal ought to have decided these issues and thereafter the labour dispute in its light. In case inquiry was illegal then termination order could be held to be illegal after giving opportunities to the Corporation to lead evidence (in case it was so entitled) but the termination order could not be set aside on the ground that no retrenchment compensation was paid. The Tribunal not decided the question regarding validity of the inquiry, the award of the Tribunal is illegal.
CONCLUSION
In view of above the writ petition No. 2667 of 2000 (the first writ petition) is dismissed; the writ petition No. 9202 of 2000 (the second writ petition) is allowed.
The award of Tribunal dated 251999 is illegal and is set aside. The parties may appear before the Tribunal on 2632001. The Tribunal may decide the dispute expeditiously on merit, if possible within four months.
Order accordingly