Anjani Kumar, J. - (1.) This petition under Article 226 of the Constitution of India by the petitioner-Zonal Chief Engineer. U. P., Jal Nigam, Gorakhpur challenged the award of the Labour Court, Gorakhpur in Adjudication Case No. 256 of 1984. Respondent No. 2 Jayant Kumar Mishra referred to as workman, filed his written statement pursuant to the reference by the State Government as to whether the employers in terminating the services of respondent No. 2 workman with effect from 1st of May, 1982 is legal and justified, if not to what relief the workman is entitled.
(2.) The petitioner as well as respondent No. 1 filed their written statements before the Labour Court. The case set up by respondent workman was that he was appointed on the post of Operator with effect from 11th of July, 1979 by Executive Engineer, U. P. Jal Nigam. Gorakhpur and was posted at Pumping Station Jal Nigam, Elahibagh, Gorakhpur and since then he was in continuous service and at the time of termination of his service, who is drawing wages at the rate of Rs. 324 per month and was lastly posted at Nautanwa Drinking Water project. The employers have illegally dismissed him from service with effect from 30th of April, 1982 without giving him any opportunity for submitting his explanation. He further stated that due to illness of his wife, he submitted the application for leave on 4th of April, 1982 and left the working place. On that very day, the Superintending Engineer made a surprise inspection and found the workman concerned absent. The services of the respondent-workman were terminated with effect from 1st of May, 1982, which is wholly illegal as the workman concerned was not given any opportunity for hearing. The employers in their written statement denied the case set up by the workman concerned. The employers' case is that the workman was appointed on the post of Operator on 11th of July, 1979. His appointment was purely as daily wager and he was not given any letter of appointment. Since the work for which the workman was appointed as dally wager, came to an end. The requirement of the workman was no more in the department and, therefore, his services were terminated. His daily wager appointment was terminated on 1st of May, 1982. The employer further states that in fact the workman was posted as Chaukidar and he was found absent from his duty by the higher authority, but since he was only a daily wager, his services were terminated as no longer required. He was not a permanent employee. Therefore, he was not given any opportunity before terminating his services. The employer also set up his case that Jal Nigam is not an industry as defined under U. P. Industrial Disputes Act. Therefore, the reference is not in accordance with law. The Labour Court has found that Jal Nigam is an industry and, therefore, the dispute was rightly referred to the Labour Court. Since it is no more in doubt that Jal Nigam is covered by the definition of industry. This question has not been disputed by the petitioner. So far as the merit of the case is concerned, it is admitted case of the parties that before terminating the services of the workman concerned, no domestic enquiry was conducted nor any opportunity was given to the workman concerned for submitting his defence. In reply to this, the employers have stated that the services have been terminated by a simple order of termination and the workman was only a daily wager. Therefore, it was not necessary to give him an opportunity. However. It is admitted by the workman concerned that petitioner's services were terminated because he was found absent without leave. It is settled by the Apex Court that the termination whatever form it may be. Is covered by the definition of retrenchment under the provisions of U. P. Industrial Disputes Act. Therefore, it was incumbent on the part of the employers to follow the provisions of Section 6N of the U. P. Industrial Disputes Act before terminating the services of respondent-workman. Counsel for the petitioner has relied on two decisions--one of Hon'ble Supreme Court in the case of Himanshu Kumar Vidyarathi and others v. State of Bihar and others, 1997 176) FLR 237 and another decision of the single Judge of this Court in the case of Channey Lal and others v. Director, Malaria Research Centre, New Delhi and another, 1999 ALJ 1053, wherein the Apex Court as well as this Court has found that provisions of Section 6N, which is pari materia to the provisions of Section 25F of the Industrial Disputes Act need not be observed while terminating the services of a daily wager as a daily wager employee has no right to the post. Learned counsel for the petitioner has accepted the concept of the daily wager that he is an employee for a fixed term. That the contract of the employment begins with the day and ends at the end of the day automatically and, therefore, for this reason also the daily wager is covered by the exception of the Industrial Disputes Act, 1947. Exception, which is an excuse as to what would not amount to retrenchment within the meaning of the words used under the Act. That one more decision is relied upon by the learned counsel for the petitioner in the case of Municipal Committee Taunt v. Harpal Singh and another, (1998) 5 SCC 635, wherein the Hon'ble Supreme Court has held that in case of the inconsistent statement with regard to the claim by the workman, the Labour Court cannot justify in granting any relief ignoring the inconsistency in claim on the ground of substantial justice. Here in this case, the workman has set up the case that he was appointed as Operator and was working at the relevant time at Nautanwa Drinking Water Scheme, when on hearing his wife's illness, he has submitted his application for leave and left the place without even waiting for the result of the application nor could he any time thereafter to ascertain as to whether the leave has been sanctioned or not. When the employer's case was set up that on the same day on Inspection by the Superintending Engineer, the concerned workman was found absent from the place of posting. That before terminating his services, he was not afforded any opportunity. The fact that he was found absent, has not been denied rather admitted and justified by the workman and he states that on hearing the illness of his wife, he proceeded on leave after submitted an application. In these circumstances and by the law laid down by the Apex Court and the learned single Judge of this Court to which I also agree. I found that the view taken by the Labour Court in holding that since the services of the concerned workman have been terminated without complying of the provisions of Section 6N of the U. P. Industrial Disputes Act which is pari materia to Section 25F of the U. P. Industrial Disputes Act and that being the position, the termination is held to be illegal and reinstatement with continuity of service has been granted by the Labour Court. I am of the view that the relief granted by the Labour Court is contrary to the law laid down by the Apex Court and followed by this Court. In the facts and the circumstances of the case, the relief granted by the Labour Court for reinstatement of workman with continuity of service with back-wages is not justified. The award of the Labour Court Annexure-IV to the writ petition deserves to be quashed and is hereby quashed.
(3.) In view of what has been stated above, the award of the Labour Court is modified to this extent that the workman is not entitled for any relief as held by the Apex Court in view of Inconsistent stand taken by the workman, the workman is not entitled for any relief. In the facts and the circumstances of the case, there will be no order as to costs.;