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CASE NO.: Appeal (civil)  2958 of 2008

PETITIONER: Afaq Husain

RESPONDENT: UPSRTC & Anr

DATE OF JUDGMENT: 24/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T 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

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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 : (i)     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. (ii)    As one month’s salary has been paid to him, the requirements of  Section 6N of the Act stood satisfied.

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(iii)   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. (iv)    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.\027No 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\027

(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

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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.