Writ Petition No. 1759 (M/S) of 2012. Case: Vice Chancellor, Govind Ballabh Pant University of Agriculture & Technology Vs Presiding Officer, Labour Court, Kashipur and Ors.. Uttarakhand High Court

Case NumberWrit Petition No. 1759 (M/S) of 2012
CounselFor Appellant: Rajendra Dodhal, Senior Advocate assisted by Prince Kumar, Advocate
JudgesRajiv Sharma, J.
IssueConstitution of India - Articles 226, 227; Income Tax Act, 1961 - Section 89; Industrial Disputes Act, 1947 - Section 25(F)(a)
Judgement DateJanuary 13, 2017
CourtUttarakhand High Court


Rajiv Sharma, J.

1. This petition is instituted against the award dated 13.07.2009, rendered by learned Presiding Officer, Labour Court, Kashipur, District Udham Singh Nagar in Adjudication No. 51 of 2008 (Old No. 59 of 2006) and recovery notice dated 05.07.2012 passed by respondent No. 1.

2. Key facts, necessary for adjudication of this petition, are that respondent No. 2/workman was engaged as Driver with the petitioner's university on 25.06.2001. He was retrenched on 01.08.2002 in violation of provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. The petitioner raised industrial dispute. The matter was referred to the Labour Court. The respondent No. 2/workman filed the claim petition. The employer/petitioner filed the written statement in the matter. The learned Labour Court, Kashipur, District Udham Singh Nagar passed an award dated 13.07.2009 whereby it was held that the retrenchment of the workman was illegal and in utter violation of provisions of Section 6-N of U.P. Industrial Disputes Act. He was ordered to be reinstated in the service with 25% of back wages. The award was notified by the State Government on 26.10.2009. The employer filed an application for setting aside ex-parte award dated 13.07.2009 which was dismissed by the learned Labour Court vide order dated 26.11.2011. Hence, the present writ petition.

3. Mr. Rajendra Dobhal, Senior Advocate appearing on behalf of the employer/petitioner has vehemently argued that the workman/respondent No. 2 has not completed 240 days in a calendar year. He has also referred the affidavit dated 19.08.2001.

4. Mr. Ramesh Chandra Joshi, Advocate appearing on behalf of respondent No. 2/workman has supported the award dated 13.07.2009. He further submits that the workman/respondent No. 2 was appointed against the sanctioned post.

5. The workman also appeared before the Labour Court. He testified that he had worked with the employer from 25.06.2001. He was neither served any notice nor any domestic inquiry was held against him. He has denied the suggestion that he has stolen logbook on 31.07.2001. Employer has not led any evidence to prove that the workman has entered in the office and stolen the logbook. The workman had worked from 25.06.2001 with the petitioner's department. This fact was not rebutted by the employer.

6. Now the court will advert to affidavit dated 19.08.2001. What is stated in the affidavit by the workman is that he has not worked before 19.08.2001 in the University, even if it is taken as gospel truth, even then he had completed 240 days. He was required to issue a notice and pay the compensation as per provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947.

7. Since, the termination of the service of the workman is in violation of provisions of Section 6-N of U.P. Industrial Dispute Act, 1947. The retrenchment of the workman is void-ab-initio.

8. Their Lordships of Hon'ble Supreme Court in (2013) 10 SCC 324, titled as "Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.)" on the issue of reinstatement when the retrenchment was declared as illegal, have held as under:-

"37. After noticing several precedents to which reference has been made hereinabove, the two Judge Bench observed:

"17. There is also a misconception that whenever reinstatement is directed, "continuity of service"...

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