- (1.) PRESENT writ petition has been filed challenging award dated 24.8.2000 passed by the Labour Court(II), U.P., Meerut in Adjudication Case No. 102 of 1997. The award was published under Section 6 of the U.P. Industrial Act (In short 'Act') on 6.12.2000. The reference made under Section 4-K of the Act in C.P. Case No. 401 of 1996 dated 31.3.1997 is as follows:- "Whether the termination of services of the workman Gajendra Kumar, son of Tej Pal Singh with effect from 15.10.1995 is valid and legal ? If not, to what relief the workman is entitled and from which date?
(2.) THE labour court answered the reference in favour of the workman and concluded that the termination of services of the workman with effect from 15.10.1995 by the employer was illegal and hence the workman is entitled for continuity of services and reinstatement alongwith 30% of the back wages. The workman was held entitled to the regular salary with effect from the date of the award. The present petition was admitted on 14.2.2001. This Court while admitting the petition gave a direction which is as follows:- "In the meantime, in case the petitioner allows the joining of the respondent no. 2 and pay wages with effect from the date of joining regularly, the award dated 24.8.2000 passed by the Labour Court in so far as it relates to the award of back wages shall remain stayed till further orders of this Court. The petitioner shall call the respondent no. 2 for joining by issuing registered letter within ten days from today or if the respondent no. 2 himself approaches, he shall be allowed to join. In case registered letter is not sent within ten days, the benefit of this order would not be available to the petitioner." At the very outset, learned counsel for the petitioner employer had informed that in the present petition, no counter affidavit has been filed till date though earlier Sri Rajesh Tiwari, Advocate had accepted notice on behalf of respondent no. 2 workman. On 12.7.2011, learned counsel for the respondent no. 2 informed the Court that he had no instructions in the matter. As such, this Court directed the office to issue registered notice to the respondent no. 2 to engage another counsel and further directed that counter affidavit be filed within a period of one month. This Court on 12.7.2011 has observed that in case, the respondent no. 2 is served sufficiently, the matter shall be heard finally. As per the office report dated 1.9.2011, the service of notice upon respondent no.2 is sufficient in accordance with Explanation II of Rule 12 of Chapter VIII of the Rules of the Court.
(3.) ON 26.4.2012 this Court directed the learned counsel for the petitioner employer to seek instructions with regard to status of the respondent no. 2 workman. On 3.5.2012, learned counsel for the petitioner Sri S.D. Singh after receipt of the instructions, informed that respondent no. 2 workman never turned up to join the duty before the petitioner employer even after the interim order dated 14.2.2001 was passed by this Court though was called upon in pursuance of the interim order. The respondent no. 2 workman filed a caveat application in the month of January, 2001 through Sri Rajesh Tiwari, Advocate who was heard on 14.2.2001 at the time of passing of the interim order, however, he never appeared thereafter before this Court by filing any affidavit in rebuttal of the contents of the writ petition as also supplementary affidavit filed by the petitioner. As despite service of notice issued by this Court in the year 2011, the respondent no. 2 workman has not put in appearance through a counsel. In the circumstances, the Court has no option but to proceed with the matter for final adjudication. After the reference was made, following additional issues were framed by the Labour Court:- (i) "Whether there exists any industrial dispute", if not, its effect? (2) Whether the Court has jurisdiction to enter into and decide the matter" if not, its effect. (iii) Whether the workman was employed as temporary labourer? if yes, its effect.;