Afaq
Husain Vs. UPSRTC & ANR [2008] INSC 697 (24 April 2008)
S.B. Sinha & V.S. Sirpurkar REPORTABLE CIVIL APPEAL NO. 2958 OF 2008 (Arising out of SLP (C) No.1972 of
2004) S.B. Sinha, J.
1. Leave granted.
2. Appellant was appointed as a Conductor on an ad hoc basis as a daily
wager. He used to be appointed on a need basis. On or about 1.1.1976, he was
appointed for a period of three months, i.e., up to 31.3.1976, inter alia, on
the premise that if his services were no longer required, the same could be terminated.
Allegedly, he was paid one month's notice pay before his services were
terminated.
An industrial dispute was raised by him in the year 1982 questioning the
validity of the said order of termination. The said industrial dispute was
referred to by the State for adjudication by the Labour Court, Allahabad.
Respondent herein in its written statement contended :
"That Shri Afaq Hussain has been appointed temporarily in the U.P.
State Road Transport Corporation on 2.1.1976. It was among the terms of his appointment
that his service may be terminated without assigning any reasons by giving one
month's notice. Shri Afaq Hussain has started working in the U.P. State Road
Transport Corporation by binding himself with the terms of his appointment.
That shri Afaq Hussain has worked contrary to the rules of the department
and the employers have lost their confidence in Shri Afaq Hussain.
Therefore, by order dated 24.2.76, his services have been terminated by
giving him one month's salary in lieu of one month's notice. He has no right to
raise any dispute."
3. Before the Labour Court, the respondent examined one witness, Shri K.
Bal, who admitted that no amount towards compensation for retrenchment as
required under the provisions of Section 6N of the U.P.
Industrial Disputes Act, 1947 (the Act) had been paid.
4. Appellant also examined himself as a witness. He, however, accepted that
he had been given one month's notice pay.
According to him, no offer of appointment was issued. He furthermore
admitted that he had been given duty on a need basis only.
The learned Labour Court, however, on the premise that the appellant had
worked continuously from July 1972 to 24.2.1976, held that the provision of
Section 6N of the Act had not been complied with and consequently directed his
reinstatement with back wages. His services were directed to be treated as
uninterrupted. Appellant was reinstated in service pursuant to the said award.
5. Respondent, however, filed a writ petition before the Allahabad High
Court questioning the validity of the said award.
By reason of the impugned judgment, the writ petition of the respondent was
allowed by the High Court, opining :
"As already stated above, since the termination have taken place in the
year 1976, the matter has been referred to the Labour Court in the year 1982
and the Labour Court has given the award in the year 1984, I do not think it
expedient in the interest of justice that the matter now should be remanded
back to the Labour Court.
It is not disputed as held by the labour court, that the workman concerned
was a temporary hand. It is also not disputed, nor a finding has held, been
recorded to the contrary by the Labour Court that the workman concerned has
become a workman on whose employers have lost their confidence. In this view of
the matter, the award of the labour Court requires to be upheld except after
modification that the workman concerned shall not be entitled for any back
wages, particularly in view of the recent pronouncement by the apex Court,
wherein the apex Court tries to make the distinction between the regular
employees and the daily wagers, which says that the daily wagers were entitled
to minimum wages but not the full wages, like the regular staff, as the daily
wagers could not be held to hold the post. In this view of the matter, except
for what has already been paid under the modified interim order by this Court,
the workman concerned shall not be entitled for any back wages and so far as
the reinstatement is concerned, since the employers have lost their confidence
against the workman concerned, the employers are hereby directed to pay a sum
of Rs.50,000/- (Rupees fifty thousand) only, apart from as already been paid
under the interim order as compensation in lieu of the reinstatement."
6. Mr. Dinesh Dwivedi, learned senior counsel appearing on behalf of the
appellant, would submit that the High Court committed a manifest error in
passing the impugned judgment insofar as it failed to take into consideration
that except raising the said plea in the written statement, the respondent
could not establish its plea of purported loss of confidence. It was
furthermore urged that the appellant, having been reinstated in service
pursuant to the award, the High Court committed a serious error insofar as it
failed to take into consideration the fact that he had been working for a
period of 18 years and only after the impugned judgment the services of the
appellant had been terminated. In any event, the High Court should not have
quantified the amount of compensation at Rs.50,000/- only in termining the
question as the principles for grant of compensation had not been taken into
consideration.
7. Ms. Garima Prashad, learned counsel appearing on behalf of the
respondent-Corporation, on the other hand, would submit :
-
Labour Court has committed a serious error in proceeding on the basis
that the appellant has been working for a long time as he was appointed only
for a limited period in January 1976.
-
As one month's salary has been paid
to him, the requirements of Section 6N of the Act stood satisfied.
-
In view of the delay in raising the
industrial dispute on the part of the appellant, the respondent was not in a
position to produce the relevant documents and, thus, was gravely prejudiced.
-
In any event, the award of
reinstatement in service was wholly unwarranted.
8. Appellant was appointed as a Conductor from time to time. The Labour
Court, in its award, proceeded on the basis that he had been working
continuously from 1972 to 1976. It failed to notice the admission of the
appellant that his appointment used to be a need based one. The Labour Court
did not arrive at a finding of fact that periodical appointment and termination
of the services of the appellant was either mala fide or the same was being
resorted to by way of unfair labour practice so as to deprive the workman from
obtaining his legal dues.
9. If the contention of the respondent that the appellant was appointed on
2.1.1976 for a period of three months only and he had been given one month's
notice before terminating his services, in our opinion, the labour court was
wholly incorrect in awarding his reinstatement with back wages and continuity
of service.
Section 6N of the Act reads thus :
"6-N.Conditions precedent to retrenchment of workmen.No workman
employed in any industry who has been in continuous service for not less than
one year under an employer shall be retrenched by that employer until (a) the
workman has been given one month's notice in writing indicating the reasons for
retrenchment and the period of notice has expired or the workman has been paid
in lieu of such notice wages for the period of notice :
Provided that no such notice shall be necessary if the retrenchment is under
an agreement which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation
which shall be equivalent to fifteen days' average pay for every completed year
of service or any part thereof in excess of six months, and (c) notice in the
prescribed manner is served on the State Government."
The pre-condition for applicability of the said provision is working for a
continuous period of not less than one year.
10. It was contended by the respondent in its written statement that there
was a specified date for termination of service. The question as to whether the
appellant had been continuing to work for a period of one year has not been
determined by the Labour Court.
Only when the services of an employee continues for a period of more than
one year, apart from the notice pay, he becomes entitled to be paid
compensation equivalent to 15 days' wage for every completed year of service or
any part thereof in excess of six months.
11. The award of the Labour Court that he should be reinstated in service
cannot, therefore, be upheld, particularly in view of the fact that the
respondent-Corporation, being a 'State' within the meaning Article 12 of the
Constitution of India, was obligated to follow the constitutional requirements
of Articles 14 and 16 of the Constitution of India as also the recruitment
rules, if any, framed by it. The appointment of the appellant did not satisfy
the constitutional requirements. He was not and could not have been appointed
on substantive basis
12. The jurisdiction of the Labour Court to pass an award of reinstatement
is not disputed but the same would not mean that a workman would be directed to
be reinstated in service without taking all relevant factors into
consideration. This Court, times without number, has laid down that some factors
as indicated play significant role.
13. It is true that the High Court was not correct in relying upon an
unproved statement made in the written statement. Pleadings are not proof.
The witness examined on behalf of the respondent did not disclose as to
which rule was violated by the appellant or why he had lost the confidence of
his the Management. Such a contention was required to be established by
adduction of proper evidence.
13. Mr. Dwivedi, however, is not correct in contending that the respondent cannot
raise before us any point other than the loss of confidence. Respondent, in our
opinion, having regard to the principles akin to the provisions of Order 41
Rule 33 of the Code of Civil Procedure, is entitled to support the judgment on
the basis of the materials on record.
{See Swedish Match AB and Anr. v. Securities and Exchange Board, India &
Anr. [(2004) 11 SCC 641 and UCO Bank & Anr. v. Rajinder Lal Capoor [(2007)
6 SCC 694].} Before the High Court, it had raised a large number of
contentions.
The High Court, however, thought that only if a few contentions were
determined, the same would subserve the ends of justice.
Respondent need not question the judgment of the High Court that the
appellant is entitled to payment of compensation for a sum of Rs.50,000/- but
it can certainly contend that having regard to the materials on record, he
would be entitled only thereto and not an order of reinstatement of service
and/or continuity of service only on the ground that the award of the Labour
Court was implemented.
Reliance has been placed by Mr. Dwivedi on Workmen of Bharat Fritz Werner
(P) Ltd. v. Bharat Fritz Werner (P) Ltd. & Anr. [AIR 1990 SC 1054]. Therein
six months' wages for loss of future employment had been awarded keeping in
view the fact that the workmen were skilled and they might not find it
difficult to get alternate employment.
Appellant has not disclosed as to what was his salary and a sum of
Rs.50,00/-, in our opinion, would be more than his six months' wages.
14. In Ram Piari v. Bhagwant & Ors. [AIR 1990 SC 1742], this Court,
having regard to the fact that the workman was entitled to back wages from 1975
to 1985, was of the opinion that a portion of the back wages should be paid to
the employee by way of compensation which was assessed at Rs.2,50,000/-.
15. In this case, Appellant was appointed for a limited period, namely,
three months. We will assume that the requirements of Section 6N of the Act had
not been complied with. Even then, in our opinion, the appellant has been
awarded a just compensation, particularly, in view of the fact that he, without
any right, worked in the Corporation for a period of 18 years.
16. The question that he had been put back in service in terms of the award
by itself was not a ground which stood in the way of the High Court in
declining a relief to him to which he was not otherwise entitled to.
17. In the facts of this case, we are of the opinion that the appellant was
not even entitled to any compensation as envisaged under Section 6N of the Act,
particularly, as he was appointed for a period three months only. His services
had been terminated on the expiry of the fixed period. Furthermore he has
raised the industrial dispute after a long time.
19. For the reasons aforementioned, there is no merit in this appeal. It is
dismissed accordingly. No costs.
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