ZONAL CHIEF ENGINEER U P JAL NIGAM EXECUTIVE ENGINEER U P JAL NIGAM AND Vs. PRESIDING OFFICER LABOUR COURT AND JAYANT KUMAR MISRA

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India filed by the petitioners-employer against the award of the labour Court, Gorakhpur dated 18th March, 1986, passed in adjudication case No. 256 of 1984 was heard by this Court and this Court vide its judgment and order dated 12th June, 2001 passed an order to the effect that the workman concerned is not entitled for any relief and the present writ petition filed by employer is allowed in part and award was modified accordingly. The workman concerned, namely, Jayant Kumar Misra aggrieved by the judgment and order passed by this Court dated 12th June, 2001 approached Hon'ble Supreme Court by means of civil appeal No. 514 of 2004, arising out of S.L.P. (Civil) No. 10422 of 2002, in which Supreme Court has been pleased to pass the following direction :

(2.) This is how the matter has come up again before me. The brief facts of the present case are that the following dispute was referred to the labour Court by the State Government in exercise of power under Section 4-K of the U.P. Industries Disputes Act, 1947, here-in-after referred to as 'the Act', for adjudication :

(3.) The labour Court vide its award impugned in the present writ petition has held that Jal Nigam is an 'Industry' in view of the law laid down by the apex Court in its Constitutional Bench decision reported in 1978 (36) F.L.R., 266 Banglore Water Supply and Severage Board v. A. Rajappa; and also Full Bench decision of the Kerala High Court reported in 1983 (47) F.L.R., 103 Ummyamal v. State of Kerala. The labour Court further held that the employer is covered by the definition of Industry under the provisions of the Act. On the question of merit, the labour Court recorded a finding that in view of the law laid down in the case reported in 1982 (45) F.L.R., 150 Ashok Pandurang Saware v. S.D. Rane that the services of the workman concerned were terminated without compliance of the provisions of the law is in fact is an order of punishment, which has been passed without affording any opportunity to the workman. The labour Court has also found that the punishment of termination of services is disproportionate to the misconduct alleged against the workman, namely, 'found absent from the duties'. The employer's case before the labour Court was that the workman concerned was a daily wager employee, who was employed since July, 1973 and he continued as such till the date when his services were terminated by the employer. This Court in view of the decision relied upon by the learned counsel for the petitioner-employer in the case reported in 1997 (76) F.L.R., 237 Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors. have found that Section 6-N of the Act need not be observed while terminating the services of a daily wager as the daily wager has, no right to the post.