EXECUTIVE ENGINEER Vs. DY LABOUR COMMISSIONER

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution, by the Executive Engineer in the Nalkoop Division, Saharanpur. Petitioner has challenged the notices of the Labour Court dated 21st February, 2004 and 26th April, 2005 in respect of the proceeding initiated under section 6-H(1) and section 14-A of the U.P. Industrial Disputes Act. The proceeding was in consequence of award dated 20th April, 2005 passed in Adjudication Case No. 244 of 1999. A brief reference to the factual aspect would be suffice. The respondent No. 2 was engaged by the petitioner as casual labour between 1985 to 1992 in Nalkoop Division, Saharanpur. The respondent No. 2 was not assigned any work after 1992 and his service was discontinued. He raised Industrial Dispute which was referred to the Labour Court by the State Government in exercise of its power under section 4-K of the U.P. Industrial Disputes Act. The said dispute which was referred on 2nd August, 1999 to the Labour Court, Deharadun. The Labour Court registered the said reference as Adjudication Case No. 244 of 1999. It is the case of respondent No. 2, herein, that he was appointed in 1992 and continued to work till 1995 thereafter illegally his services were terminated. According to respondent No. 2 he has worked more than 240 days and without giving any notice or compensation his services have been terminated. His termination is in violation of section 6-N of Industrial Dispute Act as such he is entitled for reinstatement with full back wages. After giving opportunity to the parties the Labour Court passed an award dated 20th April, 2000 copy of the award is Annexure-1 to this petition. The Labour Court found that there was violation of section 6-N of Industrial Disputes Act by the employer. The respondent No. 2 had worked more than 240 days and as such removal/dismissal from 1.1.1996 was declared illegal for the violation of section 6-N. However, no order with regard to the reinstatement was passed. The Labour Court has further issued a direction to the employer that the respondent No. 2 shall be considered for appointment if any vacancy occurs in future. The Labour Court has awarded a compensation of a sum Rs. 5,000/- only.

(2.) The award dated 20.4.2000 attained finality as none of the parties challenged the said award. The respondent No. 2 filed an application under section 6-H(1) of the U.P. Industrial Disputes Act for the payment of his regular salary inter alia on the ground that as his termination was declared illegal and as such he will be deemed to continue in service, therefore, he is entitled for the full wages from 30th September, 2000. He has further stated in his application that minimum salary of a worker is Rs. 2550/- and as such his arrears of salary for 35 months that comes to Rs. 89,250/-. He is entitled for the same. A copy of the application made by respondent No. 2 is Annexure-2 to the Writ Petition. The Labour Court on the said application issued a notice dated 9th February, 2004 to the petitioner thereafter on 21.2.2004 another notice under section 14-A of Act 1947 was issued to the petitioner by the Deputy Labour Commissioner, Saharanpur wherein it was mentioned that respondent No. 2 has alleged that in spite of the fact that two vacancies occurred in the past but he was not appointed against those vacancies.

(3.) The petitioner has submitted the reply in response to the earlier notice wherein the petitioner had taken the stand that there are only 42 sanctioned posts against which 92 Class IV employees are working, thereafter, and as such it was not possible to regularise/appoint the respondent No. 2 in absence of the vacancy in sanctioned posts. It appears that the Deputy Labour Commissioner was not satisfied with the reply of the petitioner, therefore, he issued an order dated 28.4.2005 for the compliance of the award.