- (1.) Heard Sri Shakti Swarup Nigam, learned Counsel for the petitioner and Sri Vikrant Pandey, learned Counsel for the respondent-workman. This writ petition has been filed by the petitioner challenging an ex parte award passed by the Labour Court in Adjudication Case No. 41 of 2004. The undisputed facts of this case are that the workman was working as a sales promotion employee. He raised an industrial dispute under Section 4K of the U.P. Industrial Disputes Act, this in itself was bad. Under the Sales Promotion Employees Conditions of Service Act, 1976 there is a clear provision under Section 6(2) that it is the provision of the Industrial Disputes Act, 1947 i.e. the Central Act, which will apply in respect of dismissal, discharge or retrenchment for a sales promotion workman.
(2.) Clearly the reference under Section 4K of the U.P. Industrial Disputes Act is not envisaged. The reference was bad and the matter was proceeded before the Labour Court in U.P. without due notice to the petitioner, it has resulted in an award passed by the Labour Court whereby it has come to the conclusion that the provisions of Section 6N are violated in the case of workman and has reinstated him with back wages. This too is bad in view of the settled law.
(3.) First of all the finding has been made in complete ignorance of the pleadings, which were on record that the respondent-workman was a sales promotion employee. The jurisdictional aspect of the matter has also not been considered by the Labour Court at all and secondly the relief of reinstatement has been given without even considering as to whether the workman was gainfully employed or not during this period. It has been settled in a number of decisions by the Apex Court that even if the Labour Court comes to the conclusion that there was a violation of the provisions of Section 6N then the issue as to whether the workman was gainfully employed or not has to be gone into before granting any relief. The award is silent in this respect. The relief of reinstatement granted is, therefore, bad it is set aside. The employer has most graciously consented to offer some compensation to the respondent-workman. Accordingly, this Court fixes Rs. 50,000/- as just and fair compensation, which the petitioner may deposit before the Labour Court and it may be released to the workman. This direction is being passed on account of concession made by the employer. On the face of it the award is bad and liable to be set aside on all grounds. With the aforesaid observations, the writ petition stands disposed of. No costs.;