WPMS/1072/2016 of Uttarakhand Forest Development Corporation AND OTHERS Vs Anoop Chandra Bhatt

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 1072 of 2016

Uttarakhand Forest Development Corporation and Others

..…Petitioners .…Respondent

Versus

Anoop Chandra Bhatt

With

Writ Petition (M/S) No. 1009 of 2016

Uttarakhand Forest Development Corporation and Others

Corporation and Others ..…Petitioners Versus Narayan Dutt .…Respondent

With

Writ Petition (M/S) No. 1010 of 2016

Uttarakhand Forest Development Corporation and Others ..…Petitioners Versus Prem Singh Rawat .…Respondent

With

Writ Petition (M/S) No. 1011 of 2016

Uttarakhand Forest Development Corporation and Others ..…Petitioners

Versus

Anand Singh

.…Respondent

With

Writ Petition (M/S) No. 1012 of 2016

Uttarakhand Forest Development Corporation and Others ..…Petitioners Versus Kripal Singh .…Respondent

Kripal Singh

With

Writ Petition (M/S) No. 1013 of 2016

Uttarakhand Forest Development Corporation and Others ..…Petitioners

Versus

Hemant Kumar Chaudhary

.…Respondent

With

Writ Petition (M/S) No. 1014 of 2016

Uttarakhand Forest Development

Corporation and Others ..…Petitioners Versus Jaymal Singh .…Respondent With Writ Petition (M/S) No. 1015 of 2016Uttarakhand Forest Development Corporation and Others ..…Petitioners Versus Nagendra Singh .…Respondent With Writ Petition (M/S) No. 1067 of 2016Uttarakhand Forest Development Corporation and Others ..…Petitioners Versus Madan Singh .…Respondent With Writ Petition (M/S) No. 1068 of 2016Uttarakhand Forest Development Corporation and Others ..…Petitioners Versus Birendra Singh Rawat .…Respondent With Writ Petition (M/S) No. 1069 of 2016Uttarakhand Forest Development Corporation and Others ..…Petitioners Versus Gurucharan Singh .…Respondent With Writ Petition (M/S) No. 1070 of 2016Uttarakhand Forest Development Corporation and Others ..…Petitioners Versus Kishori Lal .…Respondent

With Writ Petition (M/S) No. 1071 of 2016

Uttarakhand Forest Development Corporation and Others ..…Petitioners Versus Man Singh .…Respondent With Writ Petition (M/S) No. 1073 of 2016

Uttarakhand Forest Development Corporation and Others

..…Petitioners .…Respondent

Versus

Bhagchand Singh Negi

With Writ Petition (M/S) No. 1074 of 2016

Uttarakhand Forest Development Corporation and Others

..…Petitioners

Versus

Jagmohan Singh

.…Respondent

With

Writ Petition (M/S) No. 1075 of 2016

Uttarakhand Forest Development Corporation and Others

..…Petitioners .…Respondent

Versus

Birendra Kumar Dabral

With

Writ Petition (M/S) No. 1076 of 2016

Uttarakhand Forest Development Corporation and Others

..…Petitioners .…Respondent

Versus

Tirath Singh

With

Writ Petition (M/S) No. 1077 of 2016

Uttarakhand Forest Development Corporation and Others

..…Petitioners .…Respondent

Versus

Rajendra Singh Aswal With Writ Petition (M/S) No. 2748 of 2016

Uttarakhand Forest Development Corporation and Others

..…Petitioners .…Respondents

Versus

Smt. Kiran Pokhriyal and others

Advocate : Mr. V.K. Kaparuwan, Advocate for the petitioners Mr. M.C. Pant, Advocate for the respondent(s).

Hon’ble Sharad Kumar Sharma, J.

Since in all the writ petitions, common questions of facts and law are involved in the above numbered writ petitions and the

consequent Adjudication Cases, hence these are being taken up together and adjudicated by this common judgement with the consent of the counsels for the parties.

2. In these bunch of writ petitions are those petitions, where the Corporation/petitioners, have challenged the impugned award dated 30.11.2015, as passed by the learned Prescribed Authority, Labour Court, Dehradun in Adjudication cases, detailed below in the chart against each writ petitions, which was published on 05.02.2016 in respective adjudication cases, have been questioned. The details of which are given herein below:-

The common facts as involved in the writ petition, itself has

got very chequered history of litigation.

4. As per the admitted case, upto this stage of litigation, when the Hon’ble Apex Court has rendered the judgement in SLP No. 24584 of

2003, U.K. Forest Development Corporation v. Jabar Singh and others, besides this, several other SLPs were filed as matter of fact, the issue cannot, rather ought, not be re-agitated and re-opened now at this stage.

5. The brief facts, as involved in the writ petitions are that the petitioners, which is statutory Corporation, created under the provisions of the Companies Act, in order to meet their emergent need they had been often now and then were appointing seasonal labourers, scalers and chowkidars, which, according to the petitioners was made subject to the availability of the work and their engagement was seasonal in nature, because invariably most of the time they were engaged for limited period of 9 months in calendar year and in lieu thereof, they were being paid consolidated salary. It is admitted by the petitioner, that the respondents were engaged as seasonal labourers; scalers, chowkidars etc. and on various other class-IV posts, as per their requirements of work, but the respondents had worked in the said capacity for considerable long time since their initial inductment in services which dates back as far as 1984, though the petitioners had been appointing them initially for period of 9 months but their case is that it was resorted to strategically so that their right for regularisation as per the norms prevailing at that point of time may not mature. This device of taking services from the respondents without giving them permanent status would definitely amount to be an unfair labour practise under the labour laws, because their continuance in job was based on the mercy, whims and fancies of the petitioner employers, taking advantage of the problem of unemployment crises which the respondent-workmen were facing at the relevant time.

6. The controversy emerged took its birth where such seasonal workers as that of respondents, who were engaged by the Corporation (petitioners) invoked writ jurisdiction under Article 226 of the Constitution of India by preferring writ before the High Court of Judicature at Allahabad being Writ Petition No. 4209 of 1988, Van

Nigam, Karamchari Kalyan Sangh .U.P. Gorakhpur v. U.P. Forest Corporation and Others. In the said writ petition, the petitioners of that writ petition had initially claimed parity of benefit in the emoluments which was payable to them on consolidated basis as compared to that of regular employees working on the same post(s) with the respondent-corporation discharging some responsibilities. The controversy started germinating when the petitioners and such other seasonal employees raised their voice against the act of the respondents, which was against the welfare concept of the Constitution. The writ petition thus filed by the respondents was numbered as Writ Petition No. 4209 of 1988, Van Nigam, Karamchari Kalyan Sangh U.P. Gorakhpur v. U.P. Forest Corporation, this petition was filed by the Union in the representative capacity, raising their voice against the employer. In the petition, they have raised claim of grant of regular status and regular salary as paid to the regular employee, as there happened to be no difference in their qualification, mode of inductment into the services and the quantum of work which they had to perform as compared to that of the regular employees. The writ petition aforesaid thus filed is reported to have been decided by Lucknow Bench of Allahabad High Court on 19.09.1991, issuing writ of mandamus with certain strict positive directions in favour of the workmen. The writ petition, thus preferred was ultimately adjudicated upon by the Hon’ble Allahabad High Court vide its judgment dated 19.09.1991 and certain directions were issued pertaining as to how the service conditions of the seasonal employees thus appointed like that of the respondents would be governed by the respondent-corporation, vividly, very wide parameters were laid down in para 6 of the said judgement in the following manner, which is quoted hereunder:-

“i. writ in the nature of mandamus is issued commanding the opposite parties to pay the Daily Labour Scalers and other category-D employees including orderly, Chaukidar, Dakia, Peon and Firemen employed on daily wages in the establishment of U.P. Forest Corporation, the minimum pay scales and other service benefits including the benefit or leave encashment, Group Insurance, Gratuity, Employers Provident Fund etc. commanding the opposite parties to pay the Daily Labour Scalers and other category-D employees including orderly, Chaukidar, Dakia, Peon and Firemen employed on daily wages in the establishment of U.P. Forest Corporation, the minimum pay scales and other service benefits including the benefit or leave encashment, Group Insurance, Gratuity, Employers Provident Fund etc.

which are admissible to such workmen/employers employed on regular basis.

ii. writ in the nature of mandamus was also issued commanding the opposite parties to fill up the sanctioned 755 posts of temporary scalers within period of three months from amongst the scalers engaged on daily wage basis and also fill up 361 posts of Group category within the period from the date of the sanction accorded by the State Government from amongst the workmen/employers working of Group-D category posts on daily wage basis. commanding the opposite parties to fill up the sanctioned 755 posts of temporary scalers within period of three months from amongst the scalers engaged on daily wage basis and also fill up 361 posts of Group category within the period from the date of the sanction accorded by the State Government from amongst the workmen/employers working of Group-D category posts on daily wage basis.iii. Opposite parties are further commanded to prepare scheme for absorbing the daily wagers working on the posts of scalers and other Group-D category posts engaged on daily wage basis into the regular services of the Corporation in phased manner within period of one year from today. scheme for absorbing the daily wagers working on the posts of scalers and other Group-D category posts engaged on daily wage basis into the regular services of the Corporation in phased manner within period of one year from today.

iv. It is further directed that till the daily wagers are not absorbed no appointment on the posts of scalers or other Group-D category posts will be made on regular basis.” absorbed no appointment on the posts of scalers or other Group-D category posts will be made on regular basis.”

7. Being aggrieved against the judgement as rendered by the Allahabad High Court on 19.09.1991, an SLP was preferred by the Corporation petitioner being SLP No. 2477 of 1992 and the same was dismissed by the Hon’ble Apex Court vide its judgement dated 31.07.1992. Not even this, apart from affirming the directives of Allahabad High Court, as given in its para 6 of the judgement dated 19.09.1991, the challenge to the judgement of the Hon’ble Apex Court dated 31.07.1992, was questioned by the petitioner by preferring review petition before the Hon’ble Apex Court on the ground that the directions as given by the Allahabad High Court in its judgement dated 19.09.1991, would not be possible to be complied with on account of the fact that there was complete ban, which had been imposed by the State Government in cutting of trees and various other allied works and thus work availability with the Corporation has shrinked, since has tumbled down immensely thus it would not be possible for Corporation to comply

with the directions as given by the Allahabad High Court in the judgement dated 19.09.1991.

8. It was also argued by the Corporation in the review petition that the directives of the judgement dated 19.09.1991 cannot be followed on account of non-availability of alternative work and the employees working with the forest corporation were already in excess. However, the review did not found their favour and the same was dismissed by the Hon’ble Apex Court on 04.02.1993, making the directions given by the Hon’ble Court in its judgement dated 19.09.1991, para 6 of which as referred above, as to be binding precedent for the Corporation.

9. It happens so while these proceedings were pending consideration before Hon’ble Apex Court between 19.09.1991 to 04.02.1993, the forest corporation adopted yet another mode of dispensing the services of the seasonal employees by retrenching their services. The act of retrenchment was yet again questioned by the workmen through their Union by preferring writ petition being Writ Petition (S/S) No. 21 of 1993, Van Nigam Karamchari Kalyan Sang, U.P. v. State of Uttar Pradesh and others before the Allahabad High Court, in which there was initially an interim order granted, directing the respondent-corporation not to disturb the services of the petitioners and they were permitted to continue to function in their respective capacity. It is the case of the respondents that they thus worked under the interim order. However, ultimately the said Writ Petition (S/S) No. 21 of 1993, came up for final consideration before the Allahabad High Court and the same was decided by the judgement dated 12.07.1994. The learned Single Judge categorised the bunch of writ petitions into 4 wider categories, based on the nature of relief claimed by the petitioners and their respective nature of appointment and work. The categories were:- Category-I - Were those daily wagers who claimed to be appointed as Assistant Grade III, typist who were graduates appointed in 1983, 1984, 1986, 1987 and 1988, who had claimed parity of scale as that of their

counterparts working on regular basis, and have also prayed for regularisation of their services.

Category-IIA– Was group of writ petitions filed by those petitioners, who were Group employees, they have challenged the validity of the action of the Corporation of terminating their services. But they continued to serve under the interim order granted by the High Court on 03.09.1988.

Category IIB – Was the bunch of writ petitions filed by the Scalers, engaged on daily basis, having being appointed by Divisional Logging Officers on 19.03.1980, after undergoing the regular process of selection after facing examination for appointment conducted by Corporation. Yet they were ousted from services, whereas on the other DL Scaler and Pay Bill scalers were retained, despite the fact that they were junior to the petitioners of those writ petitions.

Category IIC, IID– Were the writ petitions which were filed by DL Scaler and DL Group workers, working on daily wage basis, they have questioned their order of termination of their services. In these petitions, the petitioners continued to work on the post under the interim order passed by the High Court. These petitions were filed after 19.09.1991 i.e. after the judgement passed in Writ Petition No. 4209 of 1988.

–Category 3, 3A, 4 and 4A Were the writ petitions in which main issue which was involved was determination in these category of petitions was as to whether the appointment of DL scalers on the post of pay bill scalers in their respective Division by DLM/DSM prior to 25.02.1987, would be rendered invalidated and ineffective and for their determination of seniority as per Regulations on 25.07.1987.

The Allahabad High Court disposed off all the category of the

above cited writ petitions with the following directions :-

“In view of what has been indicated hereinabove, application for modification as well as all the writ petition mentioned above as category wise are disposed of with the following directions and guide-lines:- (i)Norms of staff as provided under Regulation 5, read with Schedule-E (iii) shall be strictly adhered to by the authorities of the Forest Corporation, till it may be

dispensed with or relaxed by the corporation in accordance with the provisions contained in the Regulations.

(ii)The termination of service or orders to go on seasonal leave to all the Group-D employees, stump markers, field Assistant and scalers appointed on daily labour basis, which have been done, without following the procedure prescribed under Regulation 3 (xv) and section 6-N of the U.P. Industrial Disputes Act are quashed. leave to all the Group-D employees, stump markers, field Assistant and scalers appointed on daily labour basis, which have been done, without following the procedure prescribed under Regulation 3 (xv) and section 6-N of the U.P. Industrial Disputes Act are quashed.

(iii)In case of reduction of work or short fall in the work the authorities of the forest Corporation would make an endeavour to adjust them in alternative works available in the particular region, in which they are working or in any other region, where work in available before giving them seasonal leave or terminating their service. the authorities of the forest Corporation would make an endeavour to adjust them in alternative works available in the particular region, in which they are working or in any other region, where work in available before giving them seasonal leave or terminating their service.

(iv)If in that particular region or another region such alternative work is not available on account of reduction in work or short fell in work the authorities of the Corporation may retrench the service of such field staff, but only in accordance with the provisions of section 6-N of the U.P. Industrial Disputes Act. Even in that eventuality they will have to follow the principles of last come first go in particular region. alternative work is not available on account of reduction in work or short fell in work the authorities of the Corporation may retrench the service of such field staff, but only in accordance with the provisions of section 6-N of the U.P. Industrial Disputes Act. Even in that eventuality they will have to follow the principles of last come first go in particular region.

(v)those scalers who are working as Assistant Grade III would be give the minimum grade of salary including D.A. and increments etc. of assistant grade III employees, from the date of this judgment and to consider their regularization in phased manner against regular posts in accordance with the principles of seniority whenever the posts are not available opposite parties would make request to the State Government for sanction of the posts. would be give the minimum grade of salary including D.A. and increments etc. of assistant grade III employees, from the date of this judgment and to consider their regularization in phased manner against regular posts in accordance with the principles of seniority whenever the posts are not available opposite parties would make request to the State Government for sanction of the posts.

(vi)The writ petitions mentioned in category 2-A are allowed in terms of the interest order dated 0-9-1988. The opposite parties would allow the petitioners to continue on the post of question so long as the person junior to them are continued in service. allowed in terms of the interest order dated 0-9-1988. The opposite parties would allow the petitioners to continue on the post of question so long as the person junior to them are continued in service.

(vii)As far as writ petition no. 8370 of 1990 is concerned, it is disputed with direction that in case the petitioner has been working in pursuance of the interim order dated 13-8-1990, continously and has been performing his duties satisfactorily and the work it is disputed with direction that in case the petitioner has been working in pursuance of the interim order dated 13-8-1990, continously and has been performing his duties satisfactorily and the work

is available, the opposite parties will allow him to continue as scaler on daily labour basis.

(viii)As far as writ petition no. 1362 of 1991 is concerned, it is disposed of with direction to the opposite parties to allow the petitioner to work and pay him salary, in case in pursuance of the interim order be has been working alone 6-3-91. it is disposed of with direction to the opposite parties to allow the petitioner to work and pay him salary, in case in pursuance of the interim order be has been working alone 6-3-91.

(ix)the seniority of stump markers who have been engaged as scalers on daily labour basis, should be computed from the date of the they have been engaged as scalers on daily labour basis, if they were engaged as scalers on daily labour basis after the prescribed test. engaged as scalers on daily labour basis, should be computed from the date of the they have been engaged as scalers on daily labour basis, if they were engaged as scalers on daily labour basis after the prescribed test.

(x)the seniority field annuitants should be treated at par with scalers appointed on daily labour basis and the period of service rendered by them as field assistants would not be ignored in computing their seniority with scalers on daily labour basis if they have passed the requisite test as prescribed for engagement of scalers on daily labour basis. with scalers appointed on daily labour basis and the period of service rendered by them as field assistants would not be ignored in computing their seniority with scalers on daily labour basis if they have passed the requisite test as prescribed for engagement of scalers on daily labour basis.

(x-A) the order of cancellation of appointment of these field assistant who have brought on pay bill as daily labour scalers, are quash. However, it will be open for the opposite parties to cancel such appointment of such persons if they do not come within the field of eligibility or seniority, after giving them an opportunity to show cause. assistant who have brought on pay bill as daily labour scalers, are quash. However, it will be open for the opposite parties to cancel such appointment of such persons if they do not come within the field of eligibility or seniority, after giving them an opportunity to show cause.

(xi) the seniority of the daily labour scalers should be understood to mean seniority on regional basis in accordance with the provisions contained in Regulation. Hence the seniority of the daily labour scalers, with effect from 1-4-1986 on regional basis, shall be strictly adhored to and their seniority in the region will be counted from the date of their initial engagement. The writ petitions of category 3 and 3-A are thus allowed. The opposite parties are commanded to determine the seniority of scalers on regional basis. understood to mean seniority on regional basis in accordance with the provisions contained in Regulation. Hence the seniority of the daily labour scalers, with effect from 1-4-1986 on regional basis, shall be strictly adhored to and their seniority in the region will be counted from the date of their initial engagement. The writ petitions of category 3 and 3-A are thus allowed. The opposite parties are commanded to determine the seniority of scalers on regional basis. (xii)as far as petitioners of writ petitions of category 4 and 4-A are concerned opposite parties would be free to revert them, from scalers on pay bill to scalers on daily labour basis, after giving them notice to show cause against the same. It is made clear that except an opportunity to submit an explanation within the specified period on more opportunities will be required to be given. 4-A are concerned opposite parties would be free to revert them, from scalers on pay bill to scalers on daily labour basis, after giving them notice to show cause against the same. It is made clear that except an opportunity to submit an explanation within the specified period on more opportunities will be required to be given.(xiii)the case of daily labour scalers who were brought on pay bill on the basis of division wise seniority shall be reviewed/reconsidered and appreciate orders be passed by authorities of corporation. pay bill on the basis of division wise seniority shall be reviewed/reconsidered and appreciate orders be passed by authorities of corporation.

(xiv)in case opposite parties chooses not to reconsider/review the cases of daily labour scalers who have brought on pay bill on the basis of division-wise seniority persons senior to them will also be brought on pay bill. reconsider/review the cases of daily labour scalers who have brought on pay bill on the basis of division-wise seniority persons senior to them will also be brought on pay bill. (xv)those group-D employees who had failed in the test prescribed for scalers on daily labour basis may be adjusted on group-D employee, but these who have passed the test be engaged as scalers as daily labour basis and their seniority would reopen from the date of they were as engaged. prescribed for scalers on daily labour basis may be adjusted on group-D employee, but these who have passed the test be engaged as scalers as daily labour basis and their seniority would reopen from the date of they were as engaged. (xvi)reservation to the physically handicapped persons as prescribed by government orders should also be available to group-D employees as well as other field staff including scalers, whether appointed on daily labour basis or on pay bill basis. prescribed by government orders should also be available to group-D employees as well as other field staff including scalers, whether appointed on daily labour basis or on pay bill basis.

(xvii)No reservation for the family members of freedom fighters needs be given in the matter of engagement of field staff, either on daily labour basis or on pay bill basis. fighters needs be given in the matter of engagement of field staff, either on daily labour basis or on pay bill basis.

(xviii)the different standard of height in hill regions as well as in plain regions prescribed for engagement either on daily labour basis or on pay bill basis are quashed. as in plain regions prescribed for engagement either on daily labour basis or on pay bill basis are quashed. (xix)all the group-D workers and other field staff including the scalers appointed on daily labour basis would be entitled the minimum pay scalers which their regular counter parts are given as directed by this court in Writ Petition no. 4209 of 1988. They would also be entitled for dearness allowance, increments, medical and washing allowance etc. from the date of order passed in Writ Petition No. 4209 of 1988. Such workers would also be entitled for casual also be entitled to medical leave after they furnish medical certificates duly verified by the incharge of Primary Health Centre. the scalers appointed on daily labour basis would be entitled the minimum pay scalers which their regular counter parts are given as directed by this court in Writ Petition no. 4209 of 1988. They would also be entitled for dearness allowance, increments, medical and washing allowance etc. from the date of order passed in Writ Petition No. 4209 of 1988. Such workers would also be entitled for casual also be entitled to medical leave after they furnish medical certificates duly verified by the incharge of Primary Health Centre.(xx)as far as the benefit of leave encashment, provident fund and group insurance are concerned that may be deferred till they are brought on pay bill i.e. whom they would be absorbed in their service, and to that extent only the order passed in W.P. no. 4209 of 1988 is modified. fund and group insurance are concerned that may be deferred till they are brought on pay bill i.e. whom they would be absorbed in their service, and to that extent only the order passed in W.P. no. 4209 of 1988 is modified. (xxi)as far as the mandamus issued by this court in writ petition no. 4209 of 1988 regarding the preparation of scheme for observing the daily wages working on the post of scalers and other group-D category posts engaged on daily wage basis into the regular services of the Corporation in phased manner within period of the one year from the date of the judgment is concerned, it require no modification or change, but petition no. 4209 of 1988 regarding the preparation of scheme for observing the daily wages working on the post of scalers and other group-D category posts engaged on daily wage basis into the regular services of the Corporation in phased manner within period of the one year from the date of the judgment is concerned, it require no modification or change, but

taking lenient view of the matter, writ is the nature of mandamus is issued to the opposite parties to complete the process as directed earlier within period of one year from the date of this judgment.

(xxii)the writ petitions of those belonging to the cadre of field staff, challenging the order of retrenchment passed in accordance with action 6-E of the U.P. Industrial Disputes Act are dismissed. However, it will be open for them to seek redress before the labour court/Industrial Tribunal, according to the provisions contained in Industrial Disputes Act.”field staff, challenging the order of retrenchment passed in accordance with action 6-E of the U.P. Industrial Disputes Act are dismissed. However, it will be open for them to seek redress before the labour court/Industrial Tribunal, according to the provisions contained in Industrial Disputes Act.”

10. In the judgement thus rendered in the said writ petition in its para 4, the coordinate Bench of Allahabad High Court has issued the following directions:-

“(iv) If in that particular region or in another region such alternative work is not available on account of reduction in work or short fall in work the authorities of the Corporation may retrench the service of such field staff, but only in accordance with the provisions of section 6-N of the U.P. Industrial Disputes Act. Even in that eventuality they will have to follow the principle of last come first go in particular region.”

11. As matter of fact, the directions as issued by the coordinate Bench of Allahabad High Court it was to the effect that if at all the Corporation wants to retrench the employees, they should comply with the provisions contained under Section 6-N of the U.P. Industrial Disputes Act, 1947 and while doing so, they will have to adhere to the principle of ‘last in first go’. This judgement as rendered by the Allahabad High Court was sought to be reviewed by filing of an application on 12.07.1994, but the same was turned down, by the Allahabad High Court vide its judgement as quoted in para 9 of this judgement.

12. The Corporation, thereafter, in furtherance of the judgment dated 12.07.1994, as rendered by the Allahabad High Court had issued notices under Section 6-N to the seasonal workers on 24.03.1995, and after giving them one month’s notice, their services were retrenched by

orders dated 30.05.1995 and 31.05.1995 as the case might have been in relation to various workmen. As the seasonal workmen against whom the retrenchment proceedings and the proceedings for dispensation of their services was resorted to, the workmen had preferred the proceedings before the Labour Court and an award was rendered by the learned Labour Court on 24.12.1997 in favour of the Corporation. In the matters of Uttaranchal Forest Development Corporation v. Jabar Singh and others, it was rather held that the directions as given by the Allahabad High Court in its judgement dated 12.07.1994, with regard to the issuance of notices under Section 6-N of the U.P. Industrial Disputes Act was complied with by issuance of notices dated 24.03.1995 to the workmen prior to retrenchment, and hence no defect could be pointed out in the award dated 24.12.1997 and labour Court in the award had dismissed the claim of the workmen, holding that Forest Corporation was not an industry.

13. According to the case of the petitioner is that the award dated 24.12.1997 was an award, questioning the award dated 24.12.1997 rendered in number of petitions with leading writ petition being Writ Petition No. 8351 of 1999 was preferred before the Allahabad High Court, which after creation of State of Uttarakhand was transferred under Section 35 of the Re-organization Act and was numbered as Writ Petition No. 1376 of 2001, Jabar Singh and others v. Utaranchal Forest Development Corpn. and another. Ultimately, the writ petition on its transfer and on being considered on merits by the High Court, the same was allowed by the judgement dated 21.08.2003, with specific observation to the effect that petitioners would be put back to the duty and they would be paid their salary/wages. It would not be out of place to mention that in the judgement dated 21.08.2003 by this Court it was held out that since the Forest Corporation is an industrial establishment it was held out to be an “Industry”, it will fall to be within the definition under Section 25-L of the Industrial Disputes Act, 1947.

14. After rendering of the judgement dated 24.08.2003 by this Court allowing the writ petition, preferred by the workman, Jabar Singh, the matter was taken to the Hon’ble Apex Court by the Corporation by preferring an SLP (Civil) No. 24584 of 2003, Uttaranchal Forest Development Corporation v. Jabar Singh and others, the judgement is reported in 2007 (2) SCC 112, Uttaranchal Forest Development Corporation v. Jabar Singh and others.

15. There was another separate limb of proceedings which was directly carried by the petitioner before the High Court, questioning their respective retrenchment orders after the judgement of this Court dated 21.08.2003 as rendered in in Writ Petition No. 1376 of 2001 in the matter of Jabar Singh. These writ petitions too stood allowed by the High Court in the light of the judgement rendered in Jabar Singh’s case dated 21.08.2003, this subsequent too was questioned by the Corporation before the Hon’ble Apex Court. In this bunch of writ petitions, which stood adjudicated in terms of the judgement dated 21.08.2003, when on being questioned before the Hon’ble Apex Court in an SLP No. 24584 of 2003, Uttaranchal Forest Development Corporation v. Jabar Singh & others, as matter of fact, the Hon’ble Apex Court had splitted the bunch of SLPs (38 appeals) into two groups; one was the bunch of petitions which were emanating after the challenge given to the retrenchment order before the learned Labour Court and the second bunch of writ petitions with which now we are concerned, were those writ petitions arising out of those writ petitions where the workmen the retrenched employees had directly challenged the retrenchment orders before the High Court.16. The Hon’ble Apex Court had dismissed those SLPs of the Corporation so far it related to those cases which were arising out of the judgement rendered by the High Court, where the award was put to question. Whereas, on the other hand, the second bunch of SLPs (Appeals), so far it related to those writ petitions, like that of the petitioners wherein the workmen who had directly filed the writ petition

challenging their retrenchment orders directly before the High Court, without approaching the labour Court, it was these SLPs (Appeals) which were allowed by the Hon’ble Apex Court. While allowing the SLP, vide its judgement dated 12.12.2006, the Hon’ble Apex Court has held that second category of the workmen, who have not approached the Hon’ble Apex Court through proper channel, and who have not raised only Industrial Disputes against their retrenchment before approaching to Hon’ble Apex Court, they ought to have had recourse to the specified procedure of first approaching the labour Court against their respective orders of retrenchment and then only they could have approached to the High Court for redressal of their grievances against the retrenchment order.

17. After the judgement of the Hon’ble Apex Court, those workmen of the second category of the bunch decided on 12.12.2001, those workmen sought reference as against their respective retrenchment orders and they approached the labour Court which was registered as Adjudication Case Nos. (detailed earlier, in para 2 of the petition, which are 19 in numbers) as has been referred above in relation to the respective writ petitions, which is being decided by the present bunch of writ petitions.

18. The proceedings before the labour Court was opposed by the Forest Corporation by filing their written statements before Labour Court, contending thereof that the retrenchment order did not suffer from any illegal vices as 30 days notice as contemplated under Section 6-N was duly given to the workmen in compliance of the directions issued by the High Court of Allahabad earlier, as well as in compliance of the statutory provisions contemplated under Section 6-N of the Act. They have further submitted that the Corporation is already having surplus employees and in view of the fact that the nature of the appointment of the workmen since they are being seasonal in nature and due to lack of

availability of work, they cannot be absorbed permanently with the Corporation.

19. Another argument, which was being raised by the Corporation before the labour Court was to the effect that the Adjudication Cases which has been referred for adjudication suffered from vices of non-joinders of the necessary parties as U.P. Forest Corporation, which was the principal employer of the petitioners when they were inducted was not impleaded as party in the proceedings held before the Labour Court which was necessary party. However, the labour Court, by virtue of the impugned award dated 30.11.2015 had partially allowed the reference and reinstated the petitioners with 50% back wages. The said award was published on 05.02.2016 and after its publication, the same has been put to challenge in the bunch of present writ petition. Precisely, the challenge which has been given by the petitioners to the impugned award is on the premise that there couldn’t have been direction for reinstatement of the petitioners, because he have sought belated reference against their respective references and there had been no explanation extended by them for seeking belated adjudication of dispute emanating from their orders of retrenchment and hence they contended that since it was belated adjudication, the relief against the retrenchment ought not to have been rendered by the Labour Court in favour of the workmen in the light of the ratio laid down by the Hon’ble Apex Court in the subsequent judgements. Where in those cases where the reference have sought at belated stage, the Hon’ble Apex Court has held that the workmen could be remunerated in terms of money rather than by passing of an order of reinstatement.

20. The aforesaid ratio was based on the judgement as reported in 2007 (2) SCC (L & S) 813, Uttaranchal Forest Development Corporation v. M.C. Joshi. The wider principal which has been held out in the said judgement was that the reinstatement with full back wages cannot be granted automatically by the labour Court and various factors

are required to be taken into consideration by the Court which included seeking of belated reference. Secondly, it postulated that for the purposes of issuing directions of reinstatement, it is incumbent on the labour Court to ensure that even the seasonal workmen who have been appointed and their appointment had been made after adherence to the statutory rules and they hold the qualifications to hold the post, which is provided under law to hold the post(s). Some of the relevant paras are quoted hereunder:-

“6. The fact that the respondent was appointed as daily wager is not in dispute. He had worked with the Corporation for very short period namely from 1.8.1989 to 24.11.1991. As noticed hereinbefore, an industrial dispute was raised only on 2.9.1996.

7. The Conciliation Officer purported to have condoned the delay. He could not do so. There is no dispute that the U.P. Industrial Disputes Act does not provide for any period of limitation. But it is now well settled that the relief to which workman would be entitled to in such situation would depend upon the facts and circumstances of each case.

9. Although according to the learned counsel appearing on behalf of the appellant the Labour Court and the High Court committed an error in arriving at finding that in terminating the services of the respondent, the provisions ofSection 6N of the UP Industrial Disputes Act were contravened, we will proceed on the basis that the said finding is correct. The question, however, would be as to whether in situation of this nature, relief of reinstatement in services should have been granted. It is now well- settled by reason of catena of decisions of this Court that, the relief of reinstatement with full back wages would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such an appointment had been made in terms of the statutory rules. Delay in raising an industrial dispute is also relevant fact.

10. In Haryana State Electronics Development Corporation v. Mamni[AIR 2006 SC 2427], this Court directed payment of compensation. Similar orders were passed in North-Eastern Karnataka Rt. Corporation v. Ashappa[(2006) 5 SCC 137] and U.P. State Road Transport Corporation v. Man Singh[(2006) 7 SCC 752].

11. In Man Singh (supra) it was held :-

"7. The respondent admittedly raised dispute in 1986, i.e. after period of about 12 years, it may be true that in an

appropriate case, as has been done by the Labour Court, delay in raising the dispute would have resulted in rejection of his claim for back wages for the period during which the workman remains absent as has been held by this Court in Gurmail Singh vs. Principal, Govt. College of Education. But the discretionary relief, in our opinion, must be granted upon taking into consideration all attending circumstances. The appellant is statutory corporation Keeping in view the fact that the respondent was appointed on temporary basis, it was unlikely that he remained unemployed for such long time. In any event, it would be wholly unjust at this distance of time. i.e. after period of more than 30 years, to direct reinstatement of the respondent in service. Unfortunately, the Labour Court or the High Court did no consider these aspects of the matter.

8. Keeping in view the particular facts and circumstances of this case, we are of the opinion that instead and in place of the direction for reinstatement of the respondent together with back wages from 1986, interest of justice would be subserved if the appellant is directed to pay sum of Rs. 50,000 to him. Similar orders, we may place on record, have been passed by this Court in State of Rajasthan v. Ghyan Chand,State of MP vs. Arjunlal Rajak, Nagar Mahapalika (now Municipal Corporation) v. State of U.P., and Haryana State Electronics Development "Corporation Ltd. v. Mamni.

12. The unreported decision of this Court in Regional Manager, U.P.S.R.T.C. & Anr. v. Kamal Kumar (supra) whereupon, Ms. Issar had placed strong reliance is not an authority for the proposition that in each and every case an order of reinstatement is required to be passed. The fact of the said matter is not known. Furthermore it was passed in Review Petition. It appears that one of the questions which arose for consideration was whether services of daily wager should be regularized or not and in that situation, while directing that the concerned workman to be reinstated only as daily wager but case of the workman for regularization was directed to be considered in terms of purported scheme existing in this behalf.

14. We are therefore, of the opinion that keeping in view the nature and period of services rendered by the respondent herein as also the period during which he had worked and the fact that he had raised an industrial dispute after six years, interest of justice would be met if the impugned judgments are substituted by an award of compensation for sum of Rs. 75,000/- in favour of the respondent.”

21. It was also held out in the judgement of M.C. Joshi’ case (Supra) that while passing an order of reinstatement into the services, the labour Court should also keep in mind the nature of appointment and the

period of service, which has been rendered by the workman in the establishment. In the writ petition, the challenge which has been given by the petitioner in support thereto their case, the petitioners have contended that award of the labour Court cannot be sustained for the reason that the impugned award dated 30.11.2015, had not considered the backdrop and the ratio of the aforesaid case of M.C. Joshi (Supra) and the various directions which have been consistently issued in earlier set of proceedings which had laid down the norms, providing the modalities for absorption of the retrenched employees. It had almost been pleaded by the petitioner that the judgement of the labour Court, cannot be sustained for the reason that despite of the fact that there was specific plea raised with regard to non-joinder of the necessary party but no finding has been recorded in the impugned award with regard to impact of non impleadment of U.P. State Forest Corporation as party to the proceedings, hence the judgment suffers from the vices of the non application of mind.

22. The learned counsel for the petitioner has also argued that looking to the fact that the services of the petitioners stood retrenched long time back i.e. as back as in 1995 and they had sought an adjudication of the dispute by seeking reference after lapse of about 10 years, hence there is an inordinate delay and hence at the most if at all they would be entitled they would not be entitled for reinstatement, but only they could be commensurated with appropriate compensation in accordance with the ratio as propounded by the judgement in the case of M.C. Joshi (Supra).

23. It was also argued by the learned counsel for the petitioner that after direction issued by the Allahabad High Court pertaining for compliance of Section 6-N prior to passing of the order of retrenchment, when the notices were issued to the seasonal workers on 24.03.1995 and henceforth they have rather accepted the money paid in lieu of 30 days’ notice which was given to them without raising any protest and thus after

having accepted the same, it no more lies in their mouth to argue that the subsequent order of their retrenchment suffered from defects of non-compliance of the provisions of Section 6-N or the procedure of retrenchment as contemplated under the Industrial Disputes Act, 1947.

24. The petitioners have reiterated their argument, as their stand was earlier, from the view point that they are having surplus seasonal employees already working with them against the various posts on which respondents are claiming absorption and looking to the nature of the work and the norms under which now Forest Corporation has to function it would be practically difficult for the corporation to reinstate the employees as directed by the impugned award dated 30.11.2015.

25. In support of their contention, the petitioners have heavily placed reliance on judgement which has been rendered by the coordinate Bench of this Court which was arising out of an award as rendered by the labour Court almost under an identical set of circumstances against retrenchment made in 1995 after the 30 days’ notice under Section 6N of the Act. The coordinate Bench of this Court, while dealing with the impugned award dated 30.07.2013 as under challenge in those writ petitions challenging the direction of reinstatement of workmen with 50% back wages has held that in the light of the judgement as rendered in the case of M.C. Joshi (Supra), as well as considering the impact of the judgement as reported in 2013 (14) SCC 543, Assistant Engineer Rajasthan State Agriculture Marketing Board v. Mohan Lal has held that it is no more question open to be argued by the workmen that there was non compliance of the provisions contained under Section 6-N of the U.P. Industrial Disputes Act and the direction as given was duly complied with after the earlier judgement of Allahabad High Court.

26. The learned Single Judge of this Court in bunch of writ petitions, while considering the award and after considering the impact of

ratio as propounded by the aforesaid judgement of M.C. Joshi (Supra), and as that of the Assistant Engineer, Rajasthan State Agriculture Marketing Board (Supra) had come to the conclusion that since reference has been sought at highly belated stage i.e. almost after lapse of 10 years or more of retrenchment, in that eventuality the reinstatement into the services would not to be an appropriate relief which could be granted to the workman in view of the subsequent judgement of the Hon’ble Apex Court, which has been considered by the coordinate Bench and as rendered by the Hon’ble Apex Court laying the ratio that in lieu thereof they can be monetarily commensurated with an adequate compensation, ought to be provided to the workmen rather than granting the relief for reinstatement.

27. Consequently, the coordinate Bench of this Court by the judgement dated 31.03.2014, had modified the award passed by the Labour Court in favour of workmen and had directed that instead in lieu of reinstatement the workmen would be compensated by the Corporation by paying of Rs. 1,50,000/- each as compensation towards retrenchment. The judgement of the coordinate Bench dated 31.03.2014 was put to challenge by the Corporation before the Hon’ble Apex Court and the Hon’ble Apex Court vide its judgement and order dated 30.07.2014 had dismissed the SLP in-limine and consequently, upheld the view taken by the coordinate Bench of this Court of commensurating the workmen with suitable compensation. The following order was passed by the Hon’ble Apex Court on 30.07.2014:-

“Upon hearing the counsel the Court made the following

We do not find any reason to entertain these petitions. The Special Leave Petition are, accordingly, dismissed.”

28. The learned counsel for the respondents Mr. M.C. Pant, seeks to draw distinction from the implications of the judgement of the coordinate Bench as rendered on 31.03.2014 in the bunch of writ petitions and he submits that the aforesaid judgement cannot be taken as

to be correct ratio laying down correct law, since the same being per incuriam and having been rendered without considering the impact of the provisions contained under Section 25-N of the Industrial Disputes Act, which in particular reference has been made by him to sub Section (1) of Section 25 N of the said Act wherein it has been provided that where there was non-compliance of the provisions contained under sub Section (1) of Section 25 N, the workman would be entitled for reinstatement and his retrenchment shall be deemed to be illegal.

“25N. Conditions precedent to retrenchment of workmen.- (1)No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,--

(a)the workman has been given three months' 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 the notice; and (b)the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.

29. Though, apparently this argument of the learned counsel for the respondents would have had some bearing provided it was being raised and considered by the judgment of the coordinate Bench on 31.03.2014 which was involving the same controversy and which now stands affirmed by the Hon’ble Apex Court judgement dated 30.07.2014. This Court on considering the argument is of the view that the argument pertaining to the non-compliance of Section 25N (1) may not be attracted at this juncture for the reason being that in the judgement rendered on 31.03.2014, the learned Single Judge has rather considered the impact of Section 25-N, as argued before the said Court and has held that in view of the ratio laid down by the Hon’ble Apex Court in various pronouncement, the provisions of Section 25N will have its application so far it relates to the process of retrenchment adopted by the petitioner while retrenching their employees in 1995 and not at this belated stage, when the Court is considering the award rendered by labour Court.However, distinction has been carved out by the coordinate Bench regards argument on Section 25N, it was from the view point that the adherence to the provisions contained under Section 25N will have no bearing in the case at hand for the reason being that in compliance of the earlier direction issued by the various judgements, particularly the judgement of Jabar Singh’s case (Supra) the notices under Section 6N were issued to the workmen which was voluntarily accepted by them and in those circumstances where workman had voluntarily accepted the notice and the money/wages paid to the workman in lieu thereof without raising any objection or protest against it, in these circumstances, the argument as raised by Mr. M.C. Pant, learned counsel for the respondents pertaining to the implications of Section 25-N (1) may not be attracted. Once this aspect of the implications of Section 25-N has already been considered by the coordinate Bench in its judgement dated 31.03.2014, and coupled with the fact that the said judgement as the aspect stood affirmed by the Hon’ble Apex Court vide its judgement rendered on 30.07.2014 as the SLPs were dismissed by the Hon’ble Apex Court. The case of the present petitioners cannot be placed on different pedestal in the manner in which it has been placed by the learned counsel for the petitioner with regard to the deeming effect provided under sub Section (7) of Section 25-N of the Act.

30. The learned counsel for the respondents had further submitted that the ratio as followed by the learned Single Judge and as rendered in M.C. Joshi’s case (Supra) ought not to have been made applicable in the present case because there, the case was where the workmen has discharged their services only for couple of year and the effect of belated reference or longtivity of the services was not an issue which prevailed consideration. In the present bunch of cases was applicable the ratio as laid in the judgement rendered in M.C. Joshi’s case (Supra). In support of his contention, he has further made reference to the judgement as reported in 2015(1) FLR 425, Ajaypal Singh v. Haryana

Warehousing Corporation. Para numbers 1, 2, 21, 23 and 24 of the said judgement read as under:-

“1. This appeal has been preferred by the Appellant against the order dated 16th February, 2010 passed by the High Court of Punjab and Haryana at Chandigarh in L.P.A. No. 1117 of 2009 (O & M). By the impugned order, the Division Bench upheld the judgment passed by the learned Single Judge with following observation:

"...several judgments have been delivered by the Hon'ble Supreme Court, holding that reinstatement of workman to public post could not be allowed if the workman has not been recruited after following the mandatory requirement of Articles 14and 16 of the Constitution. The said judgment of learned Single, given in the year 1996, which is in conflict with above judgments of the Hon'ble Supreme Court, cannot be followed."

2. The factual matrix of the case is as follows:

"The Appellant was 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 with the Respondent-Haryana Warehousing Corporation (hereinafter referred to as the "Corporation"), which is an 'Industry' within, the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The Appellant had completed more than 240 days of service in the preceding calendar year but his services were terminated with effect from 1st July, 1988 without one month's prior notice or pay in terms of Section 25F of the Industrial Disputes Act, 1947."

21. Section 25F of the Industrial Disputes Act, 1947 stipulates conditions precedent to retrenchment of workmen. workman employed in any industry who has been in continuous service for not less than one year under an employer is entitled to benefit under said provision if the employer retrenches workman. Such workman cannot be retrenched until he/she is 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 the notice apart from compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. It also mandates the employer to serve notice in the prescribed manner on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.

If any part of the provisions of Section 25F is violated and the employer thereby, resorts to unfair trade practice with the object to deprive the workman with the privilege as provided under the Act, the employer cannot justify such an action by taking plea that the initial appointment of the employee was in violation of Articles 14 and 16 of the Constitution of India.

23. We have held that provisions of Section 25H are in conformity with the Articles 14 and 16 of the Constitution of India, though the aforesaid provisions (Articles 14 and 16) are not attracted in the matter of reemployment of retrenched workmen in private industrial establishment and undertakings. Without giving any specific reason to that effect at the time of retrenchment, it is not open to the employer of public industrial establishment and undertaking to take plea that initial appointment of such workman was made in violation of Articles 14 and 16 of the Constitution of India or the workman was backdoor appointee.

24. It is always open to the employer to issue an order of "retrenchment" on the ground that the initial appointment of the workman was not in conformity with Articles 14 and 16 of the Constitution of India or in accordance with rules. Even for retrenchment on such ground, unfair labour practice cannot be resorted and thereby workman cannot be retrenched on such ground without notice, pay and other benefits in terms of Section 25F of the Industrial Disputes Act, 1947, if continued for more than 240 days in calendar year.”

31. In the aforesaid judgement, as dealt by Hon’ble Apex Court, as adjudicated by the Hon’ble Apex Court had been dealing with the impact of termination from the initial appointment when it was made in violation of Articles 14 and 16 of the Constitution of India. In the aforesaid case on which the reliance has been placed, the situation, conditions, and the factual back droop which prevailed therein was where the retrenchment was made without assigning any reasons and under those circumstances, the Hon’ble Apex Court has held in its para No. 26 of the judgement that there has had to be plausible reason for retrenching an employee and thus the decision of the High Court was reversed since the said aspect was not considered by the High Court as

emanating with regard to the implications of provisions contained under Sections 25(oo), 25(f), 25(g) and 25(h) of the Industrial Disputes Act, 1947. Para 26 of the judgement in Ajaypal Singh’s case (Supra)reads as under:-

“26. In the present case, the services of Appellant was not terminated on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India. No such reasons was shown in the order of retrenchment nor was such plea raised while reference was made by appropriate Government for adjudication of the dispute between the employee and the employer. In absence of such ground, we are of the opinion that it was not open for the High Court to deny the benefit for which the Appellant was entitled on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India.”

32. Before referring to the ratio on which the reliance has been placed by the learned counsel for the respondent Mr. M.C. Pant, it would always be relevant to consider the backdrop under which the Hon’ble Apex Court has propounded law with regards to the ratio for adherence of the provisions contained under Section 25-N of the Act. The said judgement was altogether based on the different proposition and it involved different factual controversy where in the aforesaid case as relied, the services of the workman were terminated by the employer without assigning any reason and even without giving one month’s notice or pay as contemplated in terms of the provisions contained under Section 25(1f) of the Industrial Disputes Act of 1947.

33. As far as the present case is concerned, the view of the said impact regarding non issuance of notices of 30 days in the present cases under Section 25N of the Act or under Section 6N of the State Act stood eradicated admittedly because the respondent herein did received their respective notice under Section 6-N, which is not in dispute, rather its their admitted case and once the procedure under Section 6-N was complied and the same was accepted by the workman without protest, the ratio as held out pertaining to the adoption of the process of

retrenchment would not be applicable in the instant case. Consequently, this Court disagrees with the ratio as argued by the learned counsel for the respondent-workman as it would not apply in the present case.

34. The learned counsel for the workmen further places reliance on judgment as reported in 2015 (144) FLR 7, Sudarshan Rajpoot v. U.P. State Road Transport Corporation. In the said case on which the reliance has been placed by the learned counsel for the respondent yet again was based on different controversy altogether. While answering to the observations made in para 25 of the said judgement rendered by the Hon’ble Apex Court, it would be incumbent to refer to para 4 of the said judgement which deals with the facts under which the said ratio was propounded. Para 4 and 21 of the aforesaid judgement are quoted hereunder:-

“4. On 11.03.1997 the Appellant-workman Sudarshan Rajpoot was appointed to the post of Driver at Azad Nagar Depot, Kanpur, in the Respondent-Corporation. On 07.06.1999 the Appellant-workman was driving vehicle bearing No. UAN 8582 on the Deora to Kanpur route, when all of sudden the steering became free due to the iron ball of the tyre being damaged and he lost control over the vehicle. As result of which the vehicle met with an accident and the Appellant-workman broke both his legs. He was admitted in Lucknow Medical College and his treatment continued till 09.08.2000. On 10.8.2000, he presented himself for duty with fitness certificate, when he was told orally that his name was struck off from the rolls of post of driver and has been removed from the services of the Corporation. No order of termination from his services was served upon the Appellant-workman on that day. It is the case of the Appellant-workman that he had worked for more than 240 days continuously in calendar year from the date of his appointment till the date of his termination from the services of the Respondent-Corporation.

21. In the order of termination, it is alleged that on account of negligent driving of the bus by Appellant-workman the accident of the vehicle happened, the said allegation was neither proved in the inquiry required to be conducted nor producing evidence before the Labour Court by the Respondent-Corporation. Therefore, the High Court has failed to examine the above vital aspects of the case on

hand and erroneously interfered with the award passed by the Labour Court in exercise of its extraordinary and supervisory jurisdiction Under Articles 226 & 227 of the Constitution of India. This exercise of power is contrary to the law laid down by this Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation: (2010) 3 SCC 192, wherein this Court held thus:

“17. Before concluding, we consider it necessary to observe that while exercising jurisdiction Under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State"-State of Mysore v. Workers of Gold Mines.Therefore, we have to hold that the High Court has erroneously exercised its supervisory jurisdiction Under Articles 226 & 227 of the Constitution of India, in interfering with the findings of fact recorded in the award by the Labour Court and setting aside the same and in lieu of the same it awarded retrenchment compensation from the date of appointment till the date of disengagement. The impugned judgment and order passed by the High Court is not only erroneous but suffers from error in law as it has failed to follow the principles laid down by this Court in the above case. Therefore, the same is liable to be set aside.”

35. The case at hand before the Hon’ble Apex Court was too rendered while dealing with the order of termination, where driver of the bus who met with an accident was terminated from his services due to dereliction in performance of his duties challenged the order of

termination despite of the fact that he has already put in 240 days of continuous service in calendar year and he was not served with the notice contemplated under Section 6N of the U.P. Industrial Act, 1947 passing the order for termination. In the said case, rather the learned labour Court has held the termination to be bad because since he has worked for over 240 days in calendar year and removed from his services without any valid prior service of 30 days notice being served upon him, his termination was set aside and the direction was issued by the labour Court for reinstatement after setting aside the termination. It was under the aforesaid backdrop that the Hon’ble Apex Court in paras 24 and 25 of the judgement has laid as under:-

“24. This Court in the later judgment in the case of Hari Nandan Prasad and Anr. v. Employer I/R to Management of Food Corporation of India and Anr. (2014) 7 SCC 190, after adverting to the law laid down in U.P. Power Corporation v. Bijli Mazdoor Sangh: (2007) 2 SCC 755 and Maharashtra State Road Transport Corporation and Anr. (supra) wherein Uma Devi's case is adverted to in both the cases, held that on harmonious reading of the two judgments, even when there are posts available, in the absence of any unfair labour practice the Labour Court cannot give direction for regularisation only because worker has continued as daily-wage worker/ad hoc/temporary worker for number of years. Further, such direction cannot be given when the worker concerned does not meet the eligibility requirement of the post in question as per the recruitment rules. It was held at para 32 in the Hari Nanda Prasad case (supra) as under:

32. However, the Court in Maharashtra SRTC case also found that the factual position was different in the case before it. Here the post of cleaners in the establishment were in existence. Further, there was finding of fact recorded that the Corporation had indulged in unfair labour practice by engaging these workers on temporary/casual/daily-wage basis and paying them paltry amount even when they were discharging duties of eight hours day and performing the same duties as that of regular employees.

Further, Hari Nandan Prasad and Anr. (supra) referred at para 36, the case of LIC v. D.J. Bahadur: (1981) 1 SCC 315 in which the relevant para 22 of LIC (supra) case extracted as under:

"36......"22. The Industrial Disputes Act is benign measure which seeks to pre-empt industrial tensions, provide the mechanics of dispute resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be dissipated in counterproductive battles and the assurance of industrial justice may create climate of goodwill."

In order to achieve the aforesaid objectives, the Labour Courts/Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights, with the underlying objective to achieve social justice. Way back in the year 1950 i.e. immediately after the enactment of Industrial Disputes Act, in one of its first and celebrated judgment in the case of Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. : (1950) LLJ 921, 948-49 (SC) this aspect was highlighted by the Court observing as under:

"61........In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace."

And again at para 37, observing that the aforesaid sweeping power conferred upon the Tribunal is not unbridled and is circumscribed by this Court in New Maneck Chowk Spg. & Wvg. Company Ltd. v. Textile Labour Assn.: AIR 1961 SC 867, the relevant para 6 of which is extracted as under:

"37...."6. ... This, however, does not mean that an Industrial Court can do anything and everything when dealing with an industrial dispute. This power is conditioned by the subject-matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with particular matter before it to overlook the industrial law relating to that matter as laid down by the legislature or by this Court."

38. It is, thus, this fine balancing which is required to be achieved while adjudicating particular dispute, keeping in mind that the industrial disputes are settled by industrial adjudication on principle of fair play and justice.

25. In view of the aforesaid statement of law laid down by this Court after adverting to the powers of the Industrial Tribunal and the Labour Court as interpreted by this Court in the earlier decisions referred to supra, the said principle is aptly applicable to the fact situation of the case on hand, for the reason that the Labour Court recorded finding of fact in favour of the workman that the termination of services of the Appellant herein is not legal and valid and further reaffirmed the said finding and also clearly held that the plea taken in the order of termination that he was appointed on contract basis as driver is not proved by producing cogent evidence. Further, we hold that even if the plea of the employer is accepted, extracting work though of permanent nature continuously for more than three years, the alleged employment on contract basis is wholly impermissible. Therefore, we have held that it amounts to an unfair labour practice as defined under 2(ra) of the I.D. Act, 1947 read with Sections 25T which is prohibited Under Section 25U, Chapter VC of the I.D. Act, 1947. We have to hold that the judgment of the High Court in reversing the award is not legal and the same is set aside by us.”36. In para 25 of the said judgement, the Hon’ble Apex Court has held that any termination of the service of workman without providing the notice was held out to be illegal and invalid. Rather the ratio as propounded in para 25 of the said judgement with regard to the implications of the provisions referred thereto were in relation to the circumstances prevailing in the said case and Hon’ble Apex Court was dealing with the circumstance of that particular case and was not ratio in rem.

37. The learned counsel for the respondent had further placed reliance on judgement as reported in 2015(8) SCC 150, Fisheries Department, State of Uttar Pradesh v. Charan Singh. In particular, the reference has been made by the learned counsel for the respondent to the

contents of paras 14, 18, 24 and 27 of the said judgement which are quoted hereunder:-

“14. Further, it is well established fact that the Respondent-workman has continuously worked for 240 days in calendar year and the Industrial Tribunal has rightly recorded the finding of fact on the basis of pleadings and evidence on record holding that the work which was being done by the Respondent-workman still continues to exist in the establishment of the Appellant, which fact has been admitted by the Respondent as well as the witnesses of the employer before the Industrial Tribunal. Further, Shri. R.B. Mathur has clearly deposed before the Industrial Tribunal that the work of Tube-well Operator has now been taken over by other workmen, such as "Machhuwa" and that some Tube-well Operators were appointed on other posts as well. Thus, in view of the statements made above by him, it is amply clear that the required conditions under the provisions of Sections 6N and 6W of the Act were not complied with by the Appellant and the only contention of the Appellant-department is that one month's salary was paid to the workman concerned treating him to be temporary employee. This contention of the learned AAG on behalf of the Appellant, however, is not sustainable in law and the same has rendered the order of termination of the services of the Respondent-workman illegal and therefore, both the courts below have rightly set aside the same and passed an Award of reinstatement and back wages, respectively. However, not awarding back wages to the Respondent by the Industrial Tribunal and awarding of the same by the High Court for the period between 24.2.1997 to 31.1.2005 only, has been done without assigning any cogent reason even though he is gainfully employed and lawfully entitled for the same from the date of termination from his services, i.e. 22.08.1975, which cannot be said to be valid in law. Therefore, the judgment and Award passed by the courts below with regard to his reinstatement on post equivalent to the post of Tube-well Operator and denial of payment of back wages from the date of his termination, i.e. 22.08.1975 is wholly untenable in law as the same is contrary to the well established principles of law and the same is required to be modified by awarding back wages.

18. In the present case, there has been an absence of cogent evidence adduced on record by the Appellant to justify the termination of the services of the Respondent-workman, who has been aggrieved by the non-awarding of back wages from the date of termination till the date of passing the Award by the Industrial Tribunal. There is no justification

for the Industrial Tribunal to deny the back wages for the said period without assigning any cogent and valid reasons. Therefore, the denial of back wages to the Respondent even though the Industrial Tribunal has recorded its finding on the contentious question No. 1 in the affirmative in his favour and in the absence of evidence of gainful employment of the Respondent during the relevant period, amounts to arbitrary exercise of power by the Industrial Tribunal for no fault of the Respondent and the same is contrary to law as laid down by this Court in catena of cases. Hence, it is fit case for this Court to exercise its power Under Order XLI Rule 33 of the Code of Civil Procedure, 1908, to award back wages to the Respondent, even though the Respondent has not filed separate writ petition questioning that portion of the Award wherein no back wages were awarded to him by the Courts below for the relevant period. The Respondent has got right to place reliance upon the said provision of the Code of Civil Procedure, 1908 and show to this Court that the findings recorded by both the Courts below in denying back wages for the relevant period of time in the impugned judgment and Award is bad in law as the same is not only erroneous but also error in law.

24. Thus, the principle "no work no pay" as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons.

27. In so far as the awarding of full back wages to the Respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The Appellant is further directed to pay full back wages to the Respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the Appellant within four weeks from the date of receipt of the copy of this order.”

38. Yet again, in this case too which has been relied by Mr. M.C. Pant, learned counsel for the private respondents was based upon fact where temporary Tubewell operator who was temporarily appointed his services were terminated with immediate effect i.e. 22.08.1995, on the ground that his services were no more required. In the

said case, though one month’s notice was given in lieu of compliance of the provisions contained under Section 6-N; but he had come up with the case before the Court that since he being permanent employee of the department, hence they ought to have complied with the procedure of termination of services as contemplated under the Rules applicable in the department governing the same conditions. Para 14 of the said judgement, on which the reliance has been placed by the learned counsel for the respondent was postulating the condition where the workman whose services were abruptly terminated and he had already put in 240 days of services and by virtue of the period of service which he has rendered he claimed his status as to be that of permanent employee, and thus it was his case that if his services were to be discontinued, the procedure provided under the service rules governing their service conditions was required to be followed. This was not the issue which was either involved in the present case nor the same has been argued ever by the respondents before the labour court from the said prospective and rather it has been argued before this Court for the first time while challenging the award rendered by the labour Court.39. Rather, the Hon’ble Apex Court has interfered in the matter on the ground that there was non compliance of Section 6-N and the only contention of the department was that one month’s salary was paid to the concerned employee treating him to be temporary employee. The said contention was not acceptable in the given set of circumstance of that particular case and in para 14 of the said judgement which is already referred above, as such no ratio has been laid down on which the reliance has been placed by the learned counsel for the respondent.

40. Similarly, if para 18 too, the Hon’ble Apex Court, was scrutinising the act of termination of services, and non awarding of the back wages from the date of termination till the date of passing of an award was under considering the aspect pertaining to the denial of back wages for the said period which was made by the employer and that too

without assigning any reason. The Court was of the view that as far as the entitlement of the back wages are concerned, the workman cannot be faulted of in any manner for the reason that the workman would be entitled with the back wages in the light of the ratio which was derived by the Hon’ble Apex Court from the implications contained under the provisions of Order 41 Rule 33 of Code of Civil Procedure, wherein it was held that even if the workmen have not claimed the back wages, the Court was to award the same irrespective of the claim raised for it.

41. In the writ petition, basically, the question which is involved for consideration is pertaining to as to what would be the consequences of the retrenchment and its consequential affect, and in order to appreciate and to consider the implications of the judicial pronouncement relied by the respondents for the purposes of drawing distinction from the earlier judgement rendered by the coordinate Bench of this Court, it becomes essential and inevitable that while considering the impact of various judgements relied and to draw distinction as to what would be the effect of the independent interpretation of the two terms i.e. ‘retrenchment’ and the word ‘termination’. Invariably, in all the judgements, on which the reliance has been placed by the learned counsel for the petitioner/respondents, it pertains to the proceeding which has been drawn either as consequence of holding of the disciplinary proceeding or they are emanating from simplicitor order of termination of services either of the circumstances when the service tenure has ceased, or employer didn’t felt the future need of services of the workmen.

42. Under the service law, there are various modes by virtue of which the services of an employee irrespective of his status in the organizational structure or nature of appointment, could be dispensed with by the employer. The first of them being the retrenchment which in its literal meaning, the term ‘retrenchment’ if its meaning is derived from the Acts, under which the proceedings have been carried and reached

upto the stage i.e. Industrial Disputes Act, the term ‘retrenchment’, has been defined under Section 2(oo) of the Industrial Disputes Act, 1947 which reads as under:-

“(oo) “retrenchment” means the termination by the employer of the service of workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include- service of workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-

(a)Voluntary retirement of the workman; or

(b)Retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains stipulation in that behalf; or superannuation if the contract of employment between the employer and the workman concerned contains stipulation in that behalf; or

43. On its simplicitor reading literally retrenchment would mean that whatsoever the reason may be, it’s dispensation of service without attaching any punitive action or cessation of the service of workman from the services without an order of punishment being inflicted by the employer it can also be called dispensation of service without attachment of any stigma. Its impact may be same, but any dispensation of service otherwise by way of punishment or by holding of disciplinary proceeding or where ever under circumstances balance is being sought to be maintained by an employer, wherever there happens to be situation where organization is over employed or has surplus employment, it is always the prerogative of the employer to retrench the services but subject to the compliance of procedure and conditions provided under the Act for retrenchment.

44. Similarly, under the U.P. Industrial Disputes Act, 1947, the term ‘retrenchment’ has been defined under Section 2(s) which too reads as under:-

“(s) ‘Retrenchment’ means the termination by the employer of the service of workman or any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include- service of workman or any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-

(i)voluntary retirement of the workmen; or

(ii)retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains stipulation in that behalf;” superannuation if the contract of employment between the employer and workman concerned contains stipulation in that behalf;”

45. Under both the Acts, its more or less reiterates the same intention and purpose of the term ‘retrenchment’ as defined under the Industrial Disputes Act, 1947 to be the same, with the same purpose to be attained, under State Act, in both situations it has an impact of striking of the name of an employee from the role of the management on account of there being surplus employees being engaged, which in business or in an industrial establishment gradually becomes cost intensive and to maintain the said balance of income and expenditure, the principle of retrenchment is adhered to based on the wider principle of law as laid down by the various Courts and the procedure under the Act itself that is ‘last in first go’.

46. The term ‘retrenchment’ has come up for consideration in various judgements of the Hon’ble Apex Court. For example; reference could be made in the judgement as reported in 2007(8) SCC 171, Mohd. Sadiq and others v. State of U.P. and others wherein the Hon’ble Apex Court in para 9 which dealing with the concept of retrenchment has held as under:-

“9. The other crucial question is whether the Absorption Rules applied to IERT. The relevant provisions in the rules read as follows:

In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules to provide for the absorption in Government Service of the retrenched employees of the Government or of Public Corporations.

The Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991.

2(b) "Public Corporation" means body corporate established or constituted by or under any Uttar Pradesh Act expect University of local authority constituted for the purpose of Local Self Government and includes government Company within the meaning of Section 617 of

the Companies Act, 1956 in which the State Government has preponderant interest.

(c) "Retrenched Employees" means person who was appointed on post under the Government or public corporation on or before October 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government or such corporation up to date of his retrenchment due to reduction in, or winding up of, any establishment or the Government of the Public Corporation, as the case may be and in respect of whom certificate of being retrenched employees has been issued by his appointing authority.”

47. It has defined the term ‘retrenchment’ of an employee as to mean person whose appointment on the post either in the Government or in Public Corporation or in private undertaking is lead to be raised on the ground of there being surplus or appointment was not being in consonance to the provisions of the Regulations, as applicable in the Organization.

48. At times, under service jurisprudence it also denoted and taken that retrenchment is mode adopted for reduction of expenses in an inner trenches or parapet of unit against loss of outer defences, with regard to organizational structure so as to safeguard an institution from the losses being suffered by an establishment due to continuance of staff which otherwise are surplus. For example; in judgement reported in 1957 SC 121, Hari Prasad v. A.D. Develkar, it is held that it denoted as to mean mode to discharge of surplus staff or labour by an employer for any reason whatsoever, otherwise then by way of infliction of punishment or by making of an order as to be punitive and stigmatic. It may be at times that for reason, for either the closure of the business, or whether services of the workmen is not required after taking into consideration the overall business scenario and the downward trend of the turnover of the company. Hence, in view of the judgement reported in AIR 1962 SC 1363, The Workmen of the Bangalore Woolen, Cotton and Silk Mills Co. Ltd. v. The Management of the Bangalore, Woolen,

Cotton and Silk Mills Co. Ltd.It has been propounded that the retrenchment cannot be read as to denoted or the synonyms as to be termination because in those situations or conditions in an organization, if there is possibility of continuance into the services and then the services are dispensed with by the employer, it would be termination which has altogether of different connotation. Though the reason for retrenchment it has been settled by various Courts that it should not be actuated or motivated by way victimization of the workmen so as to amount to be an unfair labour practice.

49. For the reasons and interpretations given above to the arguments of the respondents’ counsel by way of writ petition, it could be said that it is mode adopted by employer to maintain balance where the number of employees exceeds the reasonable and legitimate need of the work of the undertaking and it is exclusively based upon the managerial decision of an organization, but the Courts have to only ensure that its not vindictive and arbitrary, if all it is required, it should adhere to precudure provided under law.

50. The learned counsel for the petitioner had tried to impress upon his argument from the view point that the action taken of discontinuance of service of the private respondents would amount to be termination. For the reasons given above, retrenchment always cannot be treated that the word ‘termination’ cannot be taken as to be synonyms to the term ‘retrenchment’ with which we are related and that is why the Industrial Disputes Act, 1947, though deals with the term ‘termination’ at various places, but the same has not been defined it as to what does it actually means. The similar is the situation so far it relates to the U.P. Industrial Disputes Act, 1947 also.

51. But still, if we deal with the term ‘termination’, to which the reference has been made by the learned counsel for the respondents, it would amount to putting of an end of contract of an employment based

on the need of employer, and his decision and whatsoever the rights was given to the workman comes to an end with an expiry of time or effect of natural consequences of discontinuance of an engagement. The in-house distinction of the definition of the word ‘termination’ though it deems to denote the same effect, but with ‘termination’ of services. Its not because of an end of not only rights or liability, which has accrued during the period when the services were discharged and that is why in those cases, where the services are discontinued as consequence of decision by employer of termination, the stipulation contained for providing one month’s notice is not attracted nor provided under the Acts. Hence, it could be inferred that the termination only means and can be used in limited sense of simple contractual termination or cessation of work and not the termination by way of the culmination of process of removal or dismissal or as penalty or punishment for misconduct. In these circumstances, the ratio, on which the reliance has been placed by the learned counsel for the respondents treating the act of retrenchment as to be an act of termination is absolutely misnomer and same would not apply.

52. Even the interpretation of these two terms, if it is literally seen in view of the meaning assigned to the words in the Oxford English Dictionary, it means it is measure adopted by the employer to reduce the costs or spending in response to the economic difficulty being faced by the organization. The definition used under the aforesaid dictionary, it

has also expressed the word ‘retrench’ which reads as under:-

“retrench 1. Reduce costs or spending in response to economic difficulty. Austral. & African make (an employee) redundant. 2 formal reduce in extent or quantity. -DERIVATIVES retrenchment-ORIGIN C16: FROM OBS. Fr. Retrencher, var. of retrancher, from re-(expressing reversal) + trancher ‘to cut, slice’.”Austral. & African make (an employee) redundant. 2 formal reduce in extent or quantity. -DERIVATIVES retrenchment-ORIGIN C16: FROM OBS. Fr. Retrencher, var. of retrancher, from re-(expressing reversal) + trancher ‘to cut, slice’.”

Similarly, in the said dictionary, the word ‘termination’, too has been defined which means bring to an end before cessation of term by way of an artificial means. That means to say that it can also be said to be cessation of the services of the employee as per the terms of the

engagement. The term ‘terminate’ as used in the said dictionary is quoted hereunder:-

“terminate 1 bring to an end. End (a pregnancy) before term by artificial means. (of train or bus service) end its journey. 2 (terminate in) have an end at (a specified place) or of (a specified form). 3 chiefly N. Amet. End the employment of. 4. euphemistic, chiefly N. Amer. assassinate (someone) 5 archic form the physical end or extremity of (an area).

PHRASES terminate someone with extreme prejudice euphemistic, chiefly US murder someone.euphemistic, chiefly US murder someone.

DERIVATIVES termination n. terminational adj.

ORIGIN C16 (earlier (ME) as termination): from L. terminat, terminare ‘limit’, end’, from terminus ‘end, boundary’.”ORIGIN C16 (earlier (ME) as termination): from L. terminat, terminare ‘limit’, end’, from terminus ‘end, boundary’.”

53. reference is also made to the meaning assigned to the word ‘retrenchment’ in Webster’s Third New International Dictionary. It has given various other synonyms to it that it is process or an act of reduction, curtailment or cutting down of the expenses both in the public expenditures as well as in the organizational expenditures. Whereas the word ‘termination’ as referred in the aforesaid dictionary, it means to bring to an end or determination or terminus of relationship of master and servant either with the end of the time or the terms of the contract or even before the expiry of its term by the employer. The definition of ‘retrenchment’ and ‘termination’ as given under the said dictionary is quoted hereunder for ready reference:-

“re-trench-ment\chmant\n.s [MF retrenchment, fr. Retrenchier + ment] 1 : an act or process of retrenching : REDUCTION, CURTAILMENT, EXCISION : cutting down of expenses ( of their way of living – Willa Cather) ( both in public expenditures and international commitments – Max Ascoli) 2 : defense work (as simple traverse or parapet and ditch) constructed within another to prolong the defense when the enemy has gained the outer work Retrg abbr retracting.”

“ter.mi.na.tion \1 obs: the act of determining: DECISION 2 obs: WORD, TERM 3a : end in time or existence : CLOSE, CESSATION, CONCLUSION (~of life) (~of the middle ages) b: limit in space or extent : BOUND, EXTREMITY (~of route) (~of cave) (~of journey) c: the ending of word: final syllable or letter; esp : the part added to stem in inflection : ENDING, SUFFIX 4: the act of terminating : act of setting bounds or bringing to an end or concluding (after the ~of hostilities) (voluntary ~of an agreement) 5: OUTCOEM, RESULT (a dispute brought to satisfactory ~) syn see END.”

54. Referring back to the arguments of Mr. M.C. Pant, learned counsel for the respondents, and authorities relied are those where the services of the employee is brought to an end under the terms of the contract governing his conditions of service. It is condition where the relationship of master and servant ends due to occurrence of certain events as per the conditions of engagement, may be time, or end of the work and henceforth, its not as consequence of any disciplinary or punitive action attaching any stigma which may create an obstacle in any other future appointment or engagement with the same or other employer. It is the end of an appointment, which other had no lien to continue in service against post. It may be due to situation when the services are no longer required by the employer, such condition is only when the services are incapable to be continued therefore the service is brought to an end as held in the case of The Workmen of the Bangalore Woolen, Cotton and Silk Mills Co. Ltdreported in AIR 1962 SC 1363 (Supra).55. The Hon’ble Apex Court had dealt with the distinction between termination and retrenchment in the light of the provisions contained under the Industrial Disputes Act, 1947, in the case reported in 2003 (4) SCC 27, S.M. Nilajkar and others v. Telecom, District Manager, Karnataka, which too has held to be or connotation to discharge labour or workmen who are determined to be surplus; whereas termination has been held out to be an act which is attributable to the act of employer dehors to the reason for termination of service which does not fall within the purview of retrenchment as defined under Section 2(oo) of the Industrial Disputes Act, 1947, which this Court is of the view that its wide enough, but limitations of discharge of employee only after following the procedure provided under the Act and that is why the notice under Section 25(f) has been made mandatory or wage in lieu thereof. Hence, it could be simply concluded that express retrenchment under Section 2(oo) and 25(f) means discharge of surplus labour or staff

and it cannot be said to mean termination in Hari Prasad’s case as reported in AIR 1957 SC 121 (Supra)

56. For the reasons given above, the procurements relied by the respondents’ counsel which deal with termination would not apply in the bunch of present cases which exclusively relates and deals with retrenchment. As this Court considers for the reasons above that they are two different terms having different meaning and implications under the service law.

57. The reference to para numbers 24 and 27 of the said judgement, yet again is an issue pertaining to as to what would be the impact of ‘no work, no pay’ which has got no nexus so far as the present controversy is concerned, which involves the determination of the act of retrenchment and not the termination.

58. The learned counsel for the respondent has further drawn the attention of this Court on the judgement as reported in 2015 (12) SCC 754, Gauri Shankar v. State of Rajasthan. Particularly, reference has been made in para 21 of the said judgement which contemplates with the pre conditions for complying with the procedure for retrenchment.

“21. The said finding of the Labour Court is re-affirmed by the learned single Judge which also affirmed the finding that the action of the respondent- Department in terminating the services of the workman w.e.f. 1.4.1992 is case of retrenchment as defined underSection 2(oo)of the Act as the termination of the services of the workman is otherwise for misconduct by the respondent-Department. Further, undisputedly the non-compliance of the mandatory requirements as provided under the provisions of Sections25Fclauses (a) and (b), 25G and 25H of the Act read with Rules 77 and 78 of the relevant Rajasthan Industrial Dispute Rules, 1958 has rendered the order of termination passed against the workman void ab initio in law. The Labour Court in the absence of any material evidence on record in justification of the case of the respondent-Department has rightly recorded the finding of fact and held that the order of termination passed against the workman is bad in law, the same being void ab initio in law it has passed an award for

reinstatement of the workman in his post in exercise of its original jurisdiction under provision ofSection 11of the Act.”

59. This issue has already been addressed by this Court in the aforesaid paragraphs in the light of the findings which has been recorded by the judgement of the coordinate Bench of this Court as rendered in bunch of writ petitions with leading Writ Petition (M/S) No. 352 of 2014, Uttarakhand Forest Corporation & others v. Dharm Pal Singh, rendered on 31.03.2014 which reads herein below which was affirmed by the Hon’ble Apex Court. Thus the said aspects need not to be reconsidered at this stage.

“There is another aspect of the case i.e. initially it was held that Forest Corporation was not an industry, therefore, Section 25N had no application, however, this Court in judgment dated 21.8.2003 held that Corporation is an industry and Section 25N has full application. Moreover, all the respondents/workmen initially accepted one month wages in lieu of the notice, therefore, finding fault with the retrenchment on the technical ground of application of 25N does not mean automatic reinstatement. In my considered view, instead of reinstatement, suitable compensation should be awarded to the workmen/respondents, herein.”

60. This finding of the learned Single Judge, while correlating the impact of acceptance of notice, along with the procedure of retrenchment contemplated under Section 25N, since has already been upheld upto the Hon’ble Apex Court, it cannot be now be read distinctly in the manner in which it has been sought to be pressed upon by the learned counsel for the respondent after the same being confirmed by the Hon’ble Apex Court in the same set of case that too which was dealing with same situation and circumstances.

61. There are certain subsequent developments on which the reliance was attempted to be placed by the learned counsel for the respondent by filing supplementary affidavit, which emanates from judgement which has been rendered by Hon’ble Allahabad High Court. Rather, as far as the ratio as propounded in the said judgement rendered

in Special Appeal No. 158 of 1994 by the Division Bench of Allahabad High Court is concerned was not carving out any distinction or laying down distinct ratio which could suit the respondent it was rather postulating the ratio as settled down by the judgement rendered in Writ Petition No. 21 of 1993, Van Nigam Karamchari Sangh v. U.P. Forest Corporation, wherein the only direction was issued to the effect that the benefit as directed by the aforesaid judgement dated 19.09.1991, ought to have been extended to the seasonal employees wherein the claim was raised for getting party of benefits as compared to that of the regular employees. The aforesaid ratio too has got no implications or relevance so far as the present writ petition is concerned, as it was dealing with altogether distinct factor from the view point with regard to grant of parity of scale.

62. There had been other distinctions which have been attempted to be carved out by the learned counsel for the respondent contending thereof that it cannot be said that the judgement as rendered by the coordinate Bench of this Court on 31.03.2014, was not correct law because all aspects of law were not considered by the coordinate Bench of this Court and the same has not considered the impact of the provisions contained under Section 25N in its true spirit. This Court is afraid of the fact that this argument as extended by the counsel for the respondent may not be correct since the aforesaid judgement has dealt with Section 25N and since the findings of the same since now stand affirmed by the Hon’ble Apex Court in its judgement dated 30.07.2014, hence as such now at this stage, the argument, pertaining to the non-compliance of Section 25N cannot be accepted in view of the reason which has already been dealt with by the coordinate Bench of this Court.63. Lastly, it has been argued by the learned counsel for the respondents that the argument extended by the learned counsel for the petitioner to the effect that there is dearth of work as against which the respondents could have been engaged is not tenable for the reason that

the workmen, who were appointed subsequent to the respondents, they have been rather retained in the job and services of the respondent herein had been disengaged after issuance of the notice under Section 6N and hence the procedure of retrenchment as contemplated under Section 6P has not been complied with in its strict sense. It has further been argued by the learned counsel for the respondents that there is non compliance of the provisions contained under Section 6Q which deals with the eventualities and pre conditions where an employer can reappoint retrenched employee. The conditions of re-employment as contemplated under Section 6Q has got certain prior conditions to be fulfilled before an offer is extended for re-employment to retrenched employee by the employer. Section 6P and 6Q of the U.P. Industrial Disputes Act, 1947 is quoted hereunder:-

“6P. Procedure for retrenchment. - Where any workman in an industrial establishment who is citizen of India, is to be retrenched and he belongs to particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.

6Q. Re-employment of retrenched workmen. - Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed give an opportunity to the retrenched workmen to offer themselves for re-employment, and the retrenched workmen who offer themselves for re-employment shall have preference over other persons.”

64. From the aforesaid provisions contained therein, the first aspect is that the employee has to be retrenched employee, which happens to be in the instant case; but more particularly, there has had to be proposal by the employer where the employer feels the necessity of the workman to meet the exigency of work and its only in that eventuality, if that work exigency persists or is subsequently felt by the

employer that there is need of work of workman, in that eventuality, the proposal or an offer could be first extended by the employer under Section 6Q to the employees who have already been retrenched by the employer. Provisions of Section 6Q only entails to safeguard the interests of the retrenched employee only to the extent that no fresh recruitment to be made and if at all there is subsequent requirement of workmen by the employer regards the nature of work, then the offer has to be extended to the retrenched employees first for their re-employment. According to the petitioners, as matter of fact, they have submitted that owing to the changed circumstances, they are already in surplus with the employees and they are not making any new temporary or seasonal appointments any more in the department.

65. In view of what has been observed above, this Court is of the view that as far as the petitioners are concerned, there case cannot be placed at different pedestal than what has been settled down by the coordinate Bench of this Court in its judgement dated 31.03.2014, whereby the similar workmen who have been identically retrenched in 1995 had been commensurated with an adequate compensation of Rs. 1,50,000/- each in the light of the judgements of the Hon’ble Apex Court referred in the body of the judgement i.e. 2006 (2) SCC 329, 2006 (9) SCC 434 and 2006 (7) SC 752.

66. Hence, the writ petition is partly allowed and the impugned award dated 30.11.2015 is modified only to the extent that instead of reinstatement with 50% back wages, the respondents-workmen would be entitled for the compensation of Rs. 2,00,000/- each as settled down by the learned Single Judge of this Court vide its judgement dated 31.03.2014 which has been affirmed by the Hon’ble Apex Court. Consequently, the writ petition partly succeeds. The amount of compensation as determined to be paid to the respondents/workmen in 2014 was determined to be Rs. 1,50,000/- as adequate, but this Court is of the view that considering the passage of time and the increased

inflation rate the compensation payable to the respondents now requires re-determination, which is now assessed to be Rs. 2,00,000/- as to be appropriate.

67. However, there would be no order as to cost.

Mahinder/

(Sharad Kumar Sharma, J.) 27.03.2019