Raj Kumar Dixit v. M/s Vijay Kumar Gauri Shanker

2. This appeal is directed against the impugned final judgment and order dated 02.07.2014 passed by the High Court of Judicature at Allahabad, in Writ Petition No.1957[3] of 2010, whereby the High Court quashed the judgment and order of the Labour Court, Page 2 C.A.@ SLP (C) No.29960 of 2014 -2- Kanpur, in Adjudication Case No.66 of 2009 dated 03.07.2009, wherein the Labour Court directed the reinstatement of the appellant-workman in his post along with 50% back wages. The High Court modified the Award by granting compensation of Rs. 2 lakhs to be paid to the appellant-workman in place of the Award passed by the Labour Court.

3. The factual matrix and the rival legal contentions urged on behalf of the parties are briefly stated hereunder with a view to find out whether the impugned judgment and order of the High Court warrants interference by this Court in exercise of its appellate jurisdiction and for what relief the appellant is entitled to?

4. M/s.Vijay Kumar Gauri Shanker, the respondent-firm herein, was carrying on the business of transporting caustic soda from M/s.Modi Alkalies and Chemicals Ltd. in Alwar, Rajasthan. For the said purpose, the respondent-firm was in possession of seven tankers which were used for Page 3 C.A.@ SLP (C) No.29960 of 2014 -3transporting caustic soda from Alwar to the place of supply.

5. It is the case of the appellant that he was working as an accounts clerk in the respondent-establishment from the year 1994 and was looking after all the factories of the respondent-establishment. Apart from that he was in charge of maintenance of all the seven tankers in the respondent-establishment and was also looking after the transport office and court work of the respondent-employer and in return he was being paid Rs.1,800/- per month along with bonus as was being paid to other workmen of the respondent-establishment.

6. On 11.6.2001, when the appellant who had fallen sick approached the respondent-firm for his outstanding salary, the respondent-firm terminated him from his services. However, the workmen who were junior to him were still working in the respondent-establishment. The appellant-workman Page 4 C.A.@ SLP (C) No.29960 of 2014 -4requested for reinstatement of his services in his post but the respondent-establishment refused the same which action amounts to retrenchment as they have done so without following the mandatory conditions as provided under Section 6N of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter, “the Act”). Aggrieved by the order of termination, the appellant raised an industrial dispute before the Labour Court, Kanpur narrating all the relevant facts and grounds in support of his claim.

7. The Labour Court on the basis of the pleadings of the parties and in accordance with the claim and written statements of the appellant and the respondent and on re-appreciation of the evidence on record adjudicated the existing industrial dispute between the parties and recorded its finding on the points of dispute referred to it in favour of the appellant which are extracted in the narration of the facts and based on the evidence Page 5 C.A.@ SLP (C) No.29960 of 2014 -5and circumstances of the case, it held that the appellant was under the employment of the respondent-firm and terminating him from his services by the respondent-firm is in contravention to the provisions of Section 6N and other provisions of the Act which is improper and illegal. The Labour Court directed the respondent-firm to reinstate him in the said post and pay him 50% back wages from the date of termination till the date of passing of the Award.

8. The correctness of the said Award was challenged by the respondent-establishment before the High Court by filing writ petition urging various legal grounds. The High Court, based on the findings and reasons recorded on the points of dispute, held that the termination order passed against the appellant-workman is not legal. The High Court in exercise of its judicial review power under Article 227 of the Constitution of India modified the Award passed by the Labour Court, Page 6 C.A.@ SLP (C) No.29960 of 2014 -6holding that the workman has neither stated anything with regard to his gainful employment nor any averments were made by him in this regard during the aforesaid period. Therefore, awarding 50% back wages in favour of the workman by the Labour Court in its Award is held to be not justified and the High Court modified the Award by awarding Rs.[2] lakhs compensation in lieu of reinstatement with 50% back wages as awarded by the Labour Court.

9. The appellant-workman aggrieved by the judgment and order of the High Court has filed this appeal by special leave, urging various legal grounds in support of his claim and prayed this Court to set aside the impugned judgment and order of the High Court and restore the Award and further direct the respondent to reinstate him in his post and pay him full back wages from the date of the Award passed by the Labour Court. Page 7 C.A.@ SLP (C) No.29960 of 2014 -7-

10. It has been contended by the learned counsel on behalf of the appellant-workman that the services of the workman have been terminated without complying with the mandatory provisions of Section 6N of the Act. His juniors are still continuing in the employment of the respondent-establishment while his services were arbitrarily terminated which is contrary to the law laid down by this Court in a catena of cases. The learned counsel has further contended that the respondent-firm has erroneously claimed that the appellant-workman is not an employee of the firm as he was carrying out the work of advocacy in the courts on its behalf whenever the tankers of the respondent-firm met with an accident. It has been further contended by him that the maintenance of the tankers was done by the appellant-workman in the capacity of the employee of the respondent-firm as the said work could be carried out by an employee of the respondent-firm only. It has been further contended by the learned counsel on behalf Page 8 C.A.@ SLP (C) No.29960 of 2014 -8of the appellant-workman that the High Court has erred in its decision in holding that the reinstatement of the appellant-workman was unjustified since the respondent-firm has closed down its business. The High Court has further erred in its decision in holding that the Labour Court was not justified in passing an Award of reinstatement of the workman in his post with 50% back wages as the Labour Court in another case involving the driver working at the establishment of the respondent-firm has not ordered his reinstatement which fact of the case could not have applied to the fact situation of the present case as only the transport business of the respondent-firm has closed down and its other businesses are still continuing and the appellant-workman was working in the capacity of an accounts clerk of the respondent-firm which does not disqualify him from reinstatement in his post. Page 9 C.A.@ SLP (C) No.29960 of 2014 -9-

11. On the other hand, it has been contended by the learned counsel on behalf of the respondent-firm that the appellant-workman has not placed any evidence on record, either oral or documentary to the effect that he was an accounts clerk employed in the respondent-firm and as such there is no master-servant relationship between him and the respondent-firm. Hence, the provisions of Section 6N of the Act are not applicable to the fact situation of the present case. It has been further submitted by him that the management of the respondent-firm gave special power of Attorney to the appellant-workman for the purpose of getting the tankers released from the custody of the police or the court and he has worked in that capacity only and nothing more. For the said work the respondent-firm used to give him fee for all the necessary expenses that he would incur with regard to the release of the tankers of the respondent-firm from the custody of the police or the court. Page 10 C.A.@ SLP (C) No.29960 of 2014 -10-

12. It has been further contended by the learned counsel that since M/s. Modi Alkalies and Chemicals Ltd. has been closed down in the year 2000 and the work of transporting caustic soda from the said factory was completely stopped, therefore, the tankers of the respondent-firm were sold off and all the licenses of the tankers were surrendered to the respective authority. Hence, the Labour Court has erred in directing the respondent-firm to reinstate the workman with 50% back wages and the same has been rightly quashed by the High Court and modified the Award by awarding Rs.[2] lakhs towards compensation in lieu of reinstatement and back wages awarded by the Labour Court.

13. We have heard both the learned counsel on behalf of the parties. On the basis of the aforesaid rival legal contentions urged on behalf of the parties and on perusal of the findings recorded by the Labour Court in its Award, we have to answer the points of dispute on the basis of Page 11 C.A.@ SLP (C) No.29960 of 2014 -11evidence produced on record. We are of the view that the conclusion arrived at by the High Court is erroneous in law in holding that the appellant workman was not in employment under the respondent-firm and it has erroneously quashed the Award of reinstatement of the appellant-workman passed by the Labour Court along with 50% back wages. In support of the above said conclusion arrived at by us, we record our reasons hereunder:- It is an admitted fact that the respondent-firm used to authorise the appellant-workman on its behalf to do the work of releasing of the tankers of the respondent-firm from the custody of police or the court whenever the tankers met with an accident and a special power of Attorney was executed by the respondent-firm in this regard to the appellant-workman. Further, the respondent-firm also used to give him advance amount for the expenses that he would incur for carrying out the said work. The appellant-workman was also given Page 12 C.A.@ SLP (C) No.29960 of 2014 -12bonus every year and the same has been recorded in the cash-book of the respondent-firm. The fact that the respondent-firm is still continuing with its business of trading betel nut and the new plea that the transport business of the respondent-firm has been shut down has also been considered by us. The question that arises for our consideration in this case, keeping in view the relevant facts, circumstances and the evidence on record is that whether the appellant-workman was gainfully employed in the capacity of the clerk in the establishment of the respondent firm or not. The same is answered by the Labour Court in the positive, on the basis of the evidence on record in favour of the appellant for the reason that one would not simply authorize a person who is not even an employee of its establishment for carrying on with the work of getting the tankers released from the custody of the police or the court. Further, the bonus received by the workman is only given in the case where he would be employed in the Page 13 C.A.@ SLP (C) No.29960 of 2014 -13establishment of the respondent-firm. Thus, the contention of the learned counsel on behalf of the respondent-firm that the appellant-workman is not the employee of the respondent-firm and there is no master-servant relationship between them, was rightly rejected by the Labour Court by recording its reasons and holding that the concerned workman was employed in the establishment of the respondent-firm. Further, the payment of labour charges for the repair of the tankers was given to the workman through bill or voucher separately, instead of it being mentioned directly in the invoices of the repair of the tankers, which evidence was produced by him before the Labour Court, the same is rightly accepted by it on proper appreciation in exercise of its original jurisdiction.

14. Further, various records such as court orders or the report given at the police station were placed on record before the Labour Court which Page 14 C.A.@ SLP (C) No.29960 of 2014 -14would clearly show that the appellant-workman worked in the capacity of Munim/Clerk/Manager in the establishment of the respondent-firm. Even the power of Attorney executed by the respondent-firm clearly states that the appellant-workman was authorised to carry out whatever action necessary in connection with the release of the tankers of the respondent-firm either from the police custody or the court. Thus, it is clear from the above evidence produced on record by the appellant before the Labour Court that he has worked in the capacity of not only a mechanic in the establishment of the respondent-firm but also as an accounts clerk. The witnesses on behalf of the respondent-firm had further deposed before the Labour Court that the appellant-workman used to carry out the repair work of the tankers of the respondent-establishment on a regular basis and the said work was done by the appellant-workman only. Therefore, in the light of the facts and circumstances of the case and the evidence admitted on record before the Labour Court Page 15 C.A.@ SLP (C) No.29960 of 2014 -15and produced before this Court, it is amply clear that the appellant-workman was employed in the establishment of the respondent-firm and he used to carry out the business of the respondent-firm in the capacity of an employee/clerk and not just a third party agent or a mechanic. Therefore, the High Court has gravely erred in quashing the Award of reinstatement of the appellant-workman with 50% back wages in the establishment of the respondent-firm by awarding a compensation of Rs.[2] Lakhs in lieu of the same which modification of the Award of the Labour Court is not only erroneous but also suffers from error in law and therefore, the same is liable to be quashed by this Court.

15. Awarding compensation to an amount of Rs. 2 lakhs to the workman by the High Court in lieu of reinstatement of the appellant-workman along with 50% back wages is once again contrary to the well settled principles of law as has been laid down by this Court in a catena of cases, particularly, the Page 16 C.A.@ SLP (C) No.29960 of 2014 -16case of Punjab Land Development and Reclamation Corporation. Ltd. v. Presiding Officer, Labour Court,[1] wherein the Constitution Bench held that the order of termination simpliciter has to be held bad in law for non-compliance of the mandatory requirements provided under the Act and further held that the order of termination will be rendered void-ab-initio in law and therefore, the workman is entitled for all benefits for which he is legally entitled to in law.

16. The High Court has exceeded in its jurisdiction in setting aside the Award passed by the Labour Court in awarding reinstatement of the appellant-workman in his post along with 50% back wages which is erroneous in law as the High Court has not noticed the fact that the appropriate Government has referred the dispute to the Labour Court for its adjudication on the points of dispute