- (1.) Superintending Engineer and Executive Engineer, All India Radio, Gorakhpur have assailed the award dated 5.6.1998 published on 11.7.1998 passed by Presiding Officer Central Government Industrial Tribunal cum Labour Court, Pande Nagar, Kanpur.
(2.) Record in question reflects that the first respondent- Ram Sanwar Singh was engaged as a casual labour on contract in All India Radio, Gorakphpur and filed claim before the Central Government Industrial Tribunal bearing Reference No. 92 of 1996 (Ram Sanwar Singh Vs. Superintending Engineer, All India Radio, Gorakhpur). The petitioner has submitted reply to the same specifically mentioning therein that the respondent Ram Sanwar Singh had never been engaged as Peon. Finally, the award was passed in favour of first respondent (workman) on 5.6.1998 directing therein reinstatement of the workman but without back wages.
(3.) In the present matter on 6.2.2019, the Court has proceeded to pass detailed order to the following effect. "In the present matter on 09.03.2017, the Court has proceeded to pass detailed order with following effect:- "1. This case has been filed by the Superintending Engineer, All India Radio, Gorakhpur against the award dated 05.06.1998 published on 11.07.1998 passed by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Pandu Nagar, Kanpur. 2. When the writ petition was filed, no interim order was granted by this Court and since none had appeared even in the revised call at the time it was taken up for admission as fresh, this Court had proceeded to direct the matter to be listed in ordinary course. Thereafter, the matter had been listed on several occasions and passed over on the request of counsel for the petitioners - Shri Prashant Mathur. For example, on 03.05.1999, 11.05.1999, 03.05.2012 and thereafter, the writ petition was dismissed for want of prosecution on 18.03.2013. The order dated 18.03.2013 was recalled on restoration application being moved by the petitioners, on 17.12.2013. 3. The case was again adjourned on 19.02.2014 on the request of counsel for the petitioners and, then, again on 13.07.2014 and 19.08.2014. On 19.08.2014, this Court has directed the matter to be listed on 27th of August, 2017 in the additional cause list with a rider that on that date, the matter would not be adjourned on any pretext. When the matter came up for hearing again on 27.08.2014 Shri Prashant Mathur, the counsel for petitioners, requested for adjournment and then, the matter was directed to be put up on 01.09.2014 and thereafter, on 01.09.2014, again, the matter was adjourned to 03.09.2014 on which date ten days and no more time was granted to Shri Prashant Mathur, learned counsel for the petitioners, to file supplementary affidavit with a direction that the matter should be listed after ten days. 4. Thereafter, it appears that on 14.09.2016 a supplementary affidavit was filed, to which the counsel for respondents prayed for and was granted three weeks' time to file a reply, on two occasions. When the matter was listed on 03.04.2015 the counsel for petitioners again prayed for adjournment and on his request the matter was adjourned to 18.04.2015. Thereafter, on 18.04.2015 the matter was also adjourned on the request of learned counsel for the petitioners and on 21.09.2015 was also directed to be listed in the next cause list. On 28.02.2017, on the request of counsel for the petitioners, the matter has been put up today i.e. 9th March, 2017. Today, again, a request has been made by Shri B.D. Yadav on behalf of Mr. Prashant Mathur that Mr. Prashant Mathur, learned counsel for the petitioners, is ill, but he could not send his illness slip. Since the counsel for the respondents states at the Bar that the request for adjournment is being misused by the learned counsel for the petitioners, I have heard the matter on merit. 5. It has been argued on behalf of the counsel for respondent-workman concerned that All India Radio has been held to be an 'Industry' as per the decision of the Hon'ble Supreme Court in the case of All India Radio Vs. Santosh Kumar and another : JT 1998 (1) SC 662 wherein the Supreme Court had held that save and except the sovereign functions, all other activities of employers would be covered within the sweep of term 'industry' as defined under Section 2(j) of the Industrial Disputes Act. The functions which are carried on by All India Radio and Doordarshan cannot be said to be confined to sovereign functions as they carry on commercial activity for profit by getting commercial advertisements telecast or broadcast through their various kendras and stations by charging fees. 6. Since the Central Government Industrial Tribunal in that case had found after investigation of facts that termination of workman was illegal and violative of Section 25-F of the Act the Hon'ble Supreme Court directed for reinstatement of the respondents therein with all benefits available to them under the impugned orders. The reinstatement was directed to be made on the same post on which the respondents were working prior to the termination order. 7. It has been pointed out by the counsel for the respondents that in an another case namely Bharat Heavy Electricals Limited Vs. State of U.P. and others : 2003 (6) SCC 528 the Hon'ble Supreme Court held that definition of "employer" given in Section 2(i)(iv) of the Act is an inclusive definition. If the respondent workmen, as a matter of fact, were employed with the appellant to work in its premises and which fact is found established after removing the mask of facade of make-believe employment under the contractor, the appellant cannot escape its liability. For this observation, the Hon'ble Supreme Court relied upon the judgment in the case of Steel Authority of India Limited Vs. National Union Waterfront Workers reported in 2001 (7) SCC 1. 8. After perusal of the record of writ petition, it appears that the petitioners herein namely All India Radio have taken the main ground of challenge in the aforesaid writ petition that All India Radio is not an "Industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and the respondent Ram Sanwar Singh had only been engaged on contract basis as a casual labour and payment had been made to him on the basis of contract rate. It has also been pleaded in the writ petition that Ram Sanwar Singh had never worked continuously in All India Radio, Gorakhpur and he had not completed 240 working days during the period of 12 months preceding 01.07.1995 as mentioned in the claim petition by the workman before the Tribunal. The Tribunal, however, in its award passed on 05.06.1998 had come to the conclusion on investigation of the facts that the workman had worked for 240 days in the preceding calender year and was terminated in violation of Section 25-F of the Industrial Disputes Act, 1947 and hence, was entitled for reinstatement. As held by the Hon'ble Supreme Court in the case of Bhuvnesh Kumar Dwivedi Vs. M/s. Hindalco Industries Ltd. : (2014) III LLJ 478 SC the findings of the Industrial Tribunal with regard to the working of the workman for 240 days in the preceding calender year cannot be challenged nor looked into by the Writ Court unless it is apparent on the face of record that the such finding is completely perverse. The Writ Court is not expected to go into detailed gathering of evidence which is the job of the Industrial Tribunal. It has also been held in the case of Bhuvanesh Dwivedi (supra) that where it is found that the workman has been illegally terminated in violation of Section 25-F of the Act, then, reinstatement should follow as a matter of course and only when the employer is able to show that no evidence was led by the workman that he was not gainfully employed can an order passed for reinstatement be set aside. 9. From perusal of the order sheet of the writ petition, it is evident that no interim order has been passed by this Court during the long pendency of the writ petition since 1998 and the case has been adjourned on the request of the counsel for petitioners on several occasions. It has been informed by the counsel for the respondents that as per the application made by him under the Right to Information Act there are four posts of peons vacant in the office of All India Radio, Gorakhpur and he has brought on record this fact by means of supplementary affidavit which he filed in July, 2014. The learned counsel for the petitioners has thereafter filed a supplementary rejoinder affidavit in which in para - 8 it has been said by the petitioners that because of government policy no fresh recruitment on class-iv posts can be done. It is not case of fresh recruitment, but a case where employee i.e. respondent No. 1 has been adjudicated by the Competent Industrial Tribunal to have been engaged by All India Radio, Gorakhpur as a peon and who was a workman who had worked for more than 240 days before his illegal termination under Section 25-F of the Act. He is entitled to reinstatement as held by the Industrial Tribunal but the order of Industrial Tribunal has not been complied with till date even when there is no interim order passed by this Court in the Execution Case filed before the Competent Court. A plea is raised on all occasions by All India Radio that the writ petition is pending before this Court. 10. Since there is a request for adjournment on behalf of the counsel for petitioners, today, on the ground of illness although no illness slip has been sent, the matter is adjourned today. But, it is clarified that no interim order has been granted by this Court staying the operation of award impugned in this petition passed by the Industrial Tribunal and execution proceedings may go on as prayed for by the workman and be brought to its logical conclusion. 11. List this matter after three weeks for hearing." Thereafter the matter was again listed on various occasions and on 12.12.2018, direction has been issued to learned Standing Counsel to obtain instructions in the matter with following effect:- "On the matter being taken up on 31.10.2018 the Court has asked the parties to appear for conciliation on 3.12.2018. On 3.12.2018, Sri Prashant Mathur, learned counsel for the petitioners has sent illness slip. On the said date the petitioner i.e. Superintending Engineer, All India Radio, Gorakhpur was not present though the first respondent i.e. Ram Sanwar Singh was present. Thereafter, the parties were again directed to remain present on the next date fixed and the matter was posted for today i.e. 12.12.2018. Today again the authority concerned i.e. Superintending Engineer, All India Radio, Gorakhpur is not present though the first respondent i.e. Ram Sanwar Singh is present. ;