SHISHIR KUMAR, J. - (1.) THIS writ petition has been filed by the peti­tioners against a common award of respondent No. 1 dated 15.5.2002 published on 13.1.2003 in Adjudication Case No. 13/98 to 39/98. The petitioners who were workmen were employed by respondent No. 2 which is an industry under the U.P. Industrial Disputes Act. Each of the petitioners had continuously worked for 7-8 years with respondent No. 2. Their services were illegally terminated by respon­dent No. 2'on different dates as given in the award of the Labour Court. All the workmen raised industrial dispute and the same was referred under Section 4-K of the Industrial Disputes Act to the Labour Court. The Labour Court consolidated all the cases and one set of evidence was led by the parties in leading case i.e. Adjudication Case No. 13 of 1998.
(2.) THERE is no dispute between the workmen and the employer that workmen worked for 7-8 years under respondent No. 2. The only dispute is that while workmen alleged to have worked continuously more than 240 days in a year, the employer alleged that workmen did not work for more than 240 days. In the counter affidavit the respondents have alleged that employers were willing and ready to employ the workmen, if the workmen approaches the employers. The Labour Court vide its award dated 3.2.2003 (Annexure-28 to the writ petition) dismissed the claim of the petitioners. Hence, the present writ petition is being filed. Sri Shyam Narain, learned Advocate appearing for the petitioners submits that there is a specific and direct evidence of the petitioners alleging that they had worked for 240 days continuously. This evidence is supported by the pleadings of petitioner No. 1 in his written statement before the Labour Court. From the evi­dence on record, as examined and discussed by the Labour Court it appears that Labour Court has been misled by the documentary evidence of the employer which related only to the period of one year before the date of termination of services of the petitioners-workmen. The Labour Court also appears to have relied upon a judgment of the Apex Court reported in 1981 (2) ALJ 70, Mohan Lal v. Bharat Electronic Limited. The said judgment which arose under the Industrial Disputes Act (Central) has been distinguished by the Apex Court in U.P. Drugs Pharmaceuticals v. Ramanuj Yadav and has held that if a workman has worked continuously for more than 240 days in any year, he is entitled for protection under Section 6-N of the U.P. Industrial Disputes Act. The Labour Court has not recorded any finding for any other year during total 7-8 years of services of the petitioners if the petitioners had worked for more than 240 days in a year continu­ously. Since the factum of employment of the petitioners is admitted by respon­dent No. 2 and respondent No. 2 has led evidence including documentary evi­dence, it was for respondent No. 2 to have filed documentary evidence before the Labour Court and a finding to that effect should have been recorded that petition­ers-workmen have not worked for more than 240 days in a year during their ser­vice for last 7-8 years. It has specifically been stated by respondent No. 2 that their services were never terminated. The continuous working of the petitioners shows and proves that the nature of duties performed by the petitioners were continuous and permanent in nature and respondent No. 2 has deliberately been exploiting them of their rights of a permanent workman in violation of Clause 10 of 5th Schedule to the Industrial Disputes Act. The respondents have employed various persons after the impugned award and during pendency of the writ peti­tion, it is in clear violation of Section 6-P and 6-Q of the Industrial Disputes Act. When the petitioners came to know regarding the aforesaid act of the respon­dents, an amendment application has been filed bringing the said fact and the said application has been allowed.
(3.) RESPONDENT No. 2 has throughout been alleging that services of the peti­tioners have never been terminated and they can be re-employed as and when they approach the employer. The petitioners-workmen have been claiming their employment/reinstatement under respondent No. 2 by raising their disputes be­fore the Labour Court and by filing the present writ petition. But in spite of the aforesaid fact, the petitioners have not been reinstated and new workmen in place of the petitioners to perform the same duties as performed by the petitioners earlier, have been appointed. In view of the aforesaid fact, learned Counsel for the petitioners submits that the impugned award passed by the Labour Court may be quashed and appropriate directions be issued to respondent No. 2 to employ the petitioners.;