Saurabh Shyam Shamshery - (1.) Heard Shri R.V. Mishra, Advocate along with Shri Sachin Mishra, Advocate appearing on behalf of the petitioners, Shri Shailendra Singh, learned counsel for respondents No.1 to 3 and Shri Vinod Kumar, Advocate along with Shri Lalji Maurya, Advocate appearing on behalf of respondent No.4.
(2.) Facts of the case as evident from the pleadings before this court are as follows: (i) The petitioners are working as Manager/Secretary and Principal of one College, namely Mahatma Gandhi Post Graduate, College, Fatehpur. This college is duly affiliated from Chatrapati University, Campus Kanpur. It has also been averred that the said College is in receipt of grant-in-aid from the State Government for the payment of salary to its employees which includes, teacher, Class III and Class IV employees also. (ii)The respondent no.4, herein namely Rama Shankar was appointed as a short term daily wage labour on Cycle Stand in the said college on 01.5.1984. Later on, the services of the respondent no.4 were disengaged w.e.f. 30.4.1990 along with two other IVth class employees by the order passed by the Principal of the said college on 29.4.1990. There is no denial that the respondent no.4 had received the said letter. (iii)After a lapse of 1 year and 5 months on 09.12.1991, the respondent no.4 raised an industrial dispute with the prayer for his re-employment as well as payment of salary before the respondent no.3. On the basis of the said dispute, reference was made by the respondent no.3 and it was referred to the respondent no.2. The said industrial dispute was registered as Industrial Dispute Case No.168/1992, (Rama Shankar Vs. Principal & Anr) on 06.1.1992. (iv)The then Principal of the institution on 26.3.1993, filed objections before the Tribunal, wherein it was asserted that the respondent no.4 was kept as a seasonal daily wage labour on Cycle Stand of the College and was paid wages from the own resources of the Management. However, despite repeated requests of the Management, when the post of Class IV was not sanctioned from the competent authority, the Principal has no other option but to disengage the services of the respondent no.4. The then Principal of the College on 11.10.1995, entered into a compromise with the respondent no.4 on certain terms. This compromise has been termed as illegal compromise by the petitioner herein. For reference, the conditions of compromise are mentioned hereinafter: (v)On the basis of the said compromise, the Labour Court, Allahabad passed an award dated 20.10.1995. The relevant part of the award is as under: "The learned representatives for the parties have filed the settlement (7/A) arrived at between the parties. This has been duly verified. I have gone through it carefully. In order to ascertain as to whether this settlement is a genuine one or not I put certain questions to the workman who was also present along with his representatives. He has categorically stated that whatever has been mentioned in this settlement is perfectly correct. Therefore, the settlement appears to be a genuine. In the result, the adjudication is case is disposed of in terms of this settlement (7/A) which shall form a part of this award. There shall, however, be no order as to costs." (vi)The Management has opted not to challenge the said award for about 20 years and by way of this writ petition for the first time the said award has been challenged in the year 2015.The said award dated 22.1.1996 was also published by the Labour Commissioner, U.P. (vii)In pursuance of that award, the respondent no.4 was allowed to work as a Class IV Employee however, the payment of Rs.3000/- per month was paid from their own resources of the Management. It has been mentioned in the writ petition that on 23.5.1996, the Management of the College has sent an application for sanction of the post of Class IV employee to the competent authority. However, no sanction was granted. The respondent no.4 on 21.7.2009 filed an application for execution of the award dated 11.10.1995 before the Deputy Commissioner, U.P. Allahabad demanding his salary from May, 1990 to September, 2007 amounting to Rs.8,15,244/- and by way of filing the second application demanded salary from the month of January, 1998 to March 2009 amounting to Rs.8,11,725/- as arrears of salary. (viii)Respondent no.4 thereafter filed Misc. Case No.48 of 2009 before the Labour Court under Sections 6-H (2) of U.P. Industrial Disputes Act and 33-C (2) of The Industrial Disputes Act, along with calculation chart for commutation and to execute the Award dated 30.10.1995. It was mentioned in the application that despite recruitment process was held for 2 vacant posts in the year 2006, however, respondent no.4 was not appointed in terms of the Award. (ix)Respondent no.4 had tendered resignation on 3.2.2010 w.e.f. from 1.2.2010. The said resignation was accepted and also intimated to respondent no.4 on 18.3.2010 after due endorsement of respondent no.4. The said communication has not been challenged by the respondent no.4. (x)Petitioners filed objection to the applications. It was specifically mentioned that no recruitment process was undertaken before year 2006. Though after sanction was accorded by the Government, posts were advertised in the year 2006 but, respondent no.4 had not applied. After the award, respondent no.4 was appointed even without approval from Government and he was paid also from August, 2004 till he resigned in 2010. (xi)The Labour Court U.P. Allahabad vide impugned order dated 10.10.2012 partially allowed the application of Respondent no.5 and directed that salary as mentioned in the chart annexed to application from July 2006 to March 2009 be paid. The relief was granted on the basis that though in the year 2006, vacant posts were advertised, however according to award respondent no.4 was not appointed and as per application chart/calculation has been filed till March, 2009 only. (xii)Deputy Commissioner, Allahabad issued recovery notice dated 27.3.2014 for amount of Rs.14,71,000/-.Petitioners being aggrieved by the orders dated 10.10.2012 and 27.3.2014 filed instant writ petition. The award dated 30.10.1995 was also challenged.
(3.) Proceedings before this Court This Court passed following orders on 08.10.2015 and 23.12.2015: Order dated 08.10.2015. "The petitioner is assailing the award dated 30 October 1995 after a lapse of 20 years, it is only when the award was put to execution, the Labour Court has directed the petitioner to deposit Rs.14 Lac, aggrieved, petitioner has approached this Court. Put up this matter on 13 October 2015 as fresh to enable the learned counsel for the petitioner to satisfy the Court as to how the petition would be maintainable against a consequential order passed in pursuance of an award passed in 1995." Order dated 23.12.2015. "Heard Sri B.N. Mishra, along with Sri R.V. Mishra, learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. While assailing the impugned award and the consequential orders passed under sections 33-C(2)/6-H(2) of the U.P. Industrial Disputes Act, 1947 (hereafter referred to as 'the U.P. Act') /Industrial Disputes Act, 1947 (hereafter referred to as 'the Act') ,learned counsel for the petitioners submits that the agreement in between the parties is not executable, as the petitioners' Institution is a recognized Institution and the appointments are governed under the statutory rules and any appointment dehors the rule woud be void abinitio. It is also submitted that in view of the decision of the Hon'ble Apex Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and Others, 2006 4 SCC 1 , the appointments on daily wage basis cannot be regularized in absence of Rule. He also submits that the consequential order passed under section 33-C(2) of the U.P. Act read with section 6-H(1) of the Act is without jurisdiction. Learned standing counsel appearing for the State - respondents submits that the petitioner suffers from laches and further, it is the petitioners, none else, who entered into agreement, therefore, learned counsel for the petitioners cannot take stand that agreement is not executable. In his submissions, the inconvenience caused to the workman has to be compensated in terms of the agreement. Matter requires scrutiny. Issue notice. Notices on behalf of respondent nos. 1 to 3 have been accepted by the office of learned Chief Standing Counsel. Therefore, notices need not be served again to the aforesaid respondents. Issue notice to respondent no. 4 through registered post returnable at an early date. Steps be taken within two weeks. Counter affidavit, if any, may be filed by learned counsel for the respondents by the next date of listing. As an interim measure, without prejudice to right and contention of the parties, subject to deposit of Rs. 1,00,000/- by the petitioner before the respondent no. 3 within a period of two months from today, no coercive action shall be taken against the petitioner regarding recovery of the remaining amount pursuant to the award dated 30.10.1995 as well as the consequential orders passed under sections 33-C(2)/6-H(2) of the U.P. Act / the Act. The amount so deposited may be withdrawn by the respondent no. 4 without furnishing any security.";