- (1.) ANJANI Kumar, J. These bunch of writ petitions filed on behalf of the petitioner employers against the award of the Labour Court in each and respective case, as would be clear from the reference made with regard to the workmen raise the common questions of fact and law, therefore, they are dealt with by this common judgment.
(2.) HEARD learned counsel appearing on behalf of the petitioner-employers and the learned Standing Counsel as well as learned Counsel for the contesting respondents. From the different references made and the pleadings of the respective parties, the facts as emerge are here-in-below: In each case the workman has worked for more than 240 days in preceding calendar year and the services of the workman concerned were terminated without complying with the provisions of Section 6-N of the U. P. Industrial Disputes Act, 1947 (In short 'act' ). Learned Counsel appearing on behalf of the petitioner employers basically argued putting the reliance on the judgments and submitted that the appointment of the workman concerned being daily wager cannot be governed by the exception of the definition of retrenchment as amended in the year, 1984, whereby Section 2 (oo) (bb) was added and Section 25-F of the Industrial Disputes Act, 1947 (Central ). In each case, the labour Court has recorded finding that the workman cannot be said to be appointed for a fixed term because he has not been given any letter of appointment and it is the admitted case between the parties on the basis of the pleadings and the evidence adduced before the labour Court that the workman concerned was appointed on daily wages. Thus, the case relied upon by the petitioner employers, which deals with the situation on the basis of the aforesaid provision of Section 25-F and Section 2 (oo) (bb), does not apply to the facts of the present case because in no case it has been demonstrated either from the pleadings, or from the evidence adduced before the labour Court that the appointment of the workman concerned was for a fixed term. Much reliance has been placed by Sri B. D. Mandhyan, learned Counsel appearing on behalf of the petitioner employers out of which one is the case of Himanshu Kumar Vidyarthi and others v. State of Bihar and others, reported in Judgment Today 1997 (4) S. C. 560, wherein the apex Court has held that "the daily wager do not have any right to the posts and their appointment begins from the early part of the day and automatically comes to the end of the day. " Learned Counsel for the employers has further relied upon a decision of learned single Judge of this Court, wherein the learned single Judge (Hon'ble Mr. Justice Anjani Kumar) has taken a view quoting reliance of the case of Himanshu Kumar and others (supra) and held that in the facts and circumstances of the case, the workman being employed on daily wages does not have a right and thus cannot claim the benefit of Section 6-N of the Act; Section 2 (oo) (bb), or Section 25-F of the Act (Central ). In objection these cases are cases, which were decided on facts of these cases, whereas in the present case, it is admitted fact that the workman concerned has worked for more than 240 days or above for years together. As would be clear from the latest decision of the apex Court that except for Himanshu Kumar's case, all other judgments have taken the employment of daily wages when terminated without compliance of the provision of Section 6-N of the Act to be illegal and unjustified. The latest being the case reported in [2003 (97) F. L. R. 608, S. M. Nilajkar and others v. Telecom, District Manager, Karnataka.
(3.) ON the other hand, learned Counsel appearing on behalf of the workman argued that Section 2 (oo) (bb) of the Industrial Disputes Act (Central) does not apply to the State of U. P. Learned Counsel appearing on behalf of the workman has further placed reliance in the case of 2002 (93) F. L. R. 1984, Rajkiya Krishi Utpadan Mandi Parishad v. Presiding Officer, Industrial Tribunal; 2000 (85) F. L. R. 879; U. P. S. S. Corporation v. Presiding Officer; 2002 (93) F. L. R. 600 (SC), U. P. S. S. Corporation v. Om P. Upadhyay and 2000 (87) F. L. R. (SC) 727 Ex. Engineer C. P. W. D. v. M. P. Kolbarkar, whereby the apex Court has held that in the absence of any written appointment letter, Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 (Central) will have no application. There is yet another reason that the facts of the present case, it is admitted that there is no contract of service for a fixed term so as to attract the provisions of Section 2 (oo) (bb) of the Central Act, as held in AIR 1998 SC 1681, Uptron India Ltd. v. Shammi Bhan. So far as the view taken by the learned single Judge, referred to above, to which learned Counsel for the employers has placed heavy reliance wherein the learned single Judge has relied upon the view taken in the case of Himanshu Kumar and held that a daily wages enters into a contract of employment every day and his employment contract comes to end in the evening, therefore, there was no question of retrenchment. This view has not been approved by the apex Court in the case reported in 2001 (88) F. L. R. 508, Deep Chandra v. State of U. P. and others. Learned Counsel appearing on behalf of workman further argued that the clause reading of the definition of the workman under the Central Act and also under the U. P. Act would indicate that the mode and manner of the payment of wages is a determining factor of right of the workman because according to the learned Counsel once the workman is appointed for higher or reward, he need not to be appointed to a particular post, therefore, the law of Himanshu Kumar's will not apply to the facts of the present set of cases. Since the main line of the argument advanced on behalf of the employers based on Himanshu Kumar's case do not apply to the facts and circumstances of the present cases, I have no hesitation in holding that the present set of facts of the present cases, the termination of the services of the workman by the employers is governed by the definition of retrenchment as defined under Section 6-N of the Act and since the retrenchment has been done without compliance of the provisions of Section 6-N of the Act, the same has rightly been found to be illegal by the loabour Court, therefore the findings recorded by he labour Court do not warrant any interference by this Court under Article 226 of the Constitution of India. Lastly, it is submitted by learned Counsel appearing on behalf of the petitioner-employers that admittedly the workman concerned has since not worked from the date of termination, the award of the labour Court so far as it directs the payment of full back wages to the workman concerned deserves to be modified on the basis of principles of "no Work No Pay" and the award in question deserves to be quashed so far as it directs of payment of full back wages.;