STATE OF U P Vs. SHANTESHWAR PANDEY

JUDGEMENT

(1.) The workman was engaged as a Mate on muster roll w.e.f. 1st March, 1987, and continued to work in that capacity till 20th December, 1992, when his services were terminated. The workman at that stage did not challenge the order of termination, but chose to file a writ petition in the year 1993 for regularization of his services. This writ petition was disposed of in the year 1993 itself directing the petitioner to make an appropriate representation. The representation was made, and the same was decided holding that the workman's services could not be regularized as his services had been terminated. The workman again did not question the veracity and legality of the order passed by the authority rejecting his representation, but filed a suit before the Civil Court in the year 1995 praying that his services should be regularized in the services of the employer. This suit was ultimately dismissed in the year 1999. The Civil Court held that the services of the workman can not be regularized as his services had been terminated. It is only thereafter that, the petitioner filed an application for conciliation of his dispute with regard to his alleged termination and, upon the failure report, the matter was referred to the State Government and ultimately in the year 2003, the State Government referred the dispute to the labour court for adjudication with regard to the validity and legality of the order of termination dated 20th December, 1992. The labour court gave an ex parte award on 06th January, 2010 directing reinstatement of the workman with continuity of service and with 25 per cent back wages. The petitioner, being aggrieved by the said award, has filed the present writ petition. The submission of the learned counsel for the petitioner is that the labour court passed an ex parte award without given any notice or opportunity of hearing, and consequently, on this short ground, the award of the labour court was liable to be set aside. The learned counsel for the petitioner in the alternative submitted that the dispute was with regard to the alleged termination dated 20th December, 1992, whereas the reference was made after a gap of 11 years in the year 2003 and the award was passed on 06th January, 2010. The contention of the petitioner is that no reference could have been issued after a gap of 10 years. Assuming without admitting that an industrial dispute existed and that a reference could be made, the labour court committed a manifest error in directing the reinstatement of the workman, who was working on muster roll. The learned counsel for the petitioner also made a feeble effort in submitting that no evidence was filed by the workman to prove that he had worked for more than 240 days in a calendar year and that the labour court had mechanically held that the workman had deemed to have worked for more than 240 days in a calendar year.

(2.) Having heard the learned counsel for the parties, the Court finds from a perusal of the award that notice was sent by a personal messenger at the office of the petitioner, which was refused by the clerk concerned on the ground that the unit has shifted to another place, and therefore, refused to accept the notice. The labour court further finds that apart from the said notice, other notices were sent by registered post at the same place, which was duly delivered and which would have been indicated to the petitioners about the existence of a dispute before the Labour Court. Nothing has been stated in the writ petition before this Court that the unit of the petitioner had shifted to another place nor anything has been brought on record to show that no office of the petitioner was functioning at the place where the notices were sent. In the absence of any specific averment to this extent, the Court is not inclined to believe that no notice was ever served upon them. The findings given by the labour court has not been specifically challenged except for making a bald averment in paragraph 10 of the writ petition to the extent that the award is ex parte and that no opportunity of hearing was given to the petitioner. Nothing has been indicated that the notice, which was sent by the labour court through the messenger was sent at the wrong address. In view of the aforesaid, the Court is of the opinion that sufficient notices were sent to the petitioner at the given place, which the petitioner refused to accept. Consequently, the Court is of the opinion that the petitioner had knowledge of the proceedings before the labour court.

(3.) The Court finds that the workman was engaged on muster roll on exigencies of work in the construction department of the Public Works Department, which engaged workers from time to time for the execution of their contracts. The services of the workman was terminated on 20th December, 1992. Admittedly, the petitioner had worked for 5 years and retrenchment compensation had not been paid. Therefore, there was a violation of Section 6-N of the U.P. Industrial Disputes Act. The workman in his written statement had categorically submitted that he had worked for more than 240 days in a calendar year, which fact remained unrebutted since no written statement was filed by the employers. Subsequently, the averments made by the workman, was duly affirmed by means of an affidavit filed under Section 12(9) of the U.P. Industrial Disputes Rules, which was duly accepted. In this view, it is no longer open to the petitioner to contend that there was no evidence before the labour court to hold that the workman had worked for more than 240 days in a calendar year.