Supreme Court of India
AFAQ HUSAINversusUPSRTC & ANR.
- Citation
- 2008 INSC 530
- Decided
- 24 April 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The Supreme Court dismissed the appeal, holding that the Labour Court’s award of reinstatement was untenable because the appellant’s appointment did not satisfy the continuous‑service requirement of Section 6N and violated constitutional principles, leaving only the compensation award.
Summary
Afaq Husain, a conductor appointed on an ad‑hoc, daily‑wager basis by the U.P. State Road Transport Corporation, was given a three‑month contract in 1976 and terminated thereafter with one month’s notice pay. He raised an industrial dispute in 1982; the Labour Court, assuming continuous service from 1972‑1976, held that Section 6N of the U.P. Industrial Disputes Act had not been complied with and ordered his reinstatement with back wages. The High Court modified the award, granting Rs 50,000 as compensation in lieu of reinstatement. On appeal, the Supreme Court held that the Labour Court failed to consider the appellant’s admission that his appointment was need‑based and temporary, and that Section 6N requires at least one year of continuous service, which was absent. The Court also observed that, as a State entity, the corporation must adhere to constitutional guarantees of equality and non‑discrimination, which were not satisfied by the appellant’s appointment. Consequently, the appeal was dismissed and the compensation award stood as the only relief.
Issues considered
- Whether the Labour Court could order reinstatement when the appellant was appointed on an ad‑hoc, temporary basis.
- Whether Section 6N of the U.P. Industrial Disputes Act, 1947 applies to the appellant’s three‑month appointment.
- Whether the appointment complied with constitutional provisions Articles 12, 14 and 16 of the Constitution.
- Whether the compensation of Rs 50,000 awarded by the High Court is appropriate in lieu of reinstatement.
Legislation cited
- Code of Civil Procedure, 1908s. Order 41 Rule 33
- Constitution of Indias. Art.12, s. Art.14, s. Art.16
- U.P. Industrial Disputes Act, 1947s. 6N
Subjects
Section 6NIndustrial disputeReinstatementCompensationAd hoc appointmentConstitutional lawArticles 14 and 16State corporationLabour CourtU.P. Industrial Disputes ActDaily wager
Judgment
[2008) 6 S.C.R. 999
-~.,-
AFAQ HUSAIN A
v.
UPSRTC & ANR.
(Civil Appeal No.2958 of 2008)
APRIL 24, 2008
4,
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
r
UP Industrial Disputes Act, 1947 - s.6N:
Appellant appointed in Respondent-Corporation from
time to time on ad hoc basis as daily wager - In 1976, c
appointed for 3 months - Thereafter, termination - Industrial
dispute raised in 1982 - Labour Court, on premise that
Appellant worked continuously from 1972 to 1976, held that
s. 6N had not been complied with and consequently directed
reinstatement - Writ petition - High Court directed payment D
of Rs. 50, 0001- as compensation in lieu of re-instatement - On
-·-1 appeal, held: Labour Court while directing re-instatement did
not take all relevant factors into consideration - ft failed to notice
the admission of Appellant that his appointment was a need
based one and for limited period - Award of Labour Court E
cannot be upheld, particularly since Respondent-Corporation,
being a 'State' within meaning Art.12 of the Constitution, was
obligated to follow constitutional requirements of Arts.14 and
16 of the Constitution as a/so the recruitment rules, if any,
framed by it, but appointment of Appellant did not satisfy the
F
constitutional requirements - He was not and could not have
I been appointed on substantive basis - Assuming that
requirements of s. 6N of the Act had not been complied with,
even then, Appellant has been awarded just compensation,
particularly since he, without any right, worked in the
Corporation for 18 years - In facts of the case, Appellant was G
not even entitled to any compensation as envisaged under
s. 6N, particularly, as he was appointed for 3 months only -
~
His services had been terminated on expiry of the fixed period
- Furthermore he raised industrial dispute after a long time -
999 H
1000 SUPREME COURT REPORTS [2008] 6 S.C.R.
' -
A Constitution of India, 1950-Arts. 12, 14, 16.
Appellant used to be appointed as a Conductor in
Respondent-Corporation from time to time on ad hoc
basis as a daily wager. In 1976, he was appointed for a
period of three months. Thereafter, his services were
B terminated. Allegedly, he was paid one month's notice pay ;
before termination. An industrial dispute was raised by
1
Appellant in the year 1982. The Labour Court, on the
premise that Appellant had worked continuously from
1972 to 1976, held that the provision of Section 6N of the
c U.P. Industrial Disputes Act, 1947 had not been complied
with and consequently directed his reinstatement.
Respondent filed writ petition before High Court which
directed payment of Rs.50,000/- as compensation in lieu
of the re-instatement. Hence the present appeal.
D
Dismissing the appeal, the Court
;.-
HELD:1.1. The jurisdiction of the Labour Court to
pass an award of reinstatement is not disputed but the
same would not mean that a workman would be directed
E to be reinstated in service without taking all relevant
factors into consideration. [Para 12] [1007-A-B]
1.2. Appellant was appointed as a Conductor from
time to time. The Labour Court, in its award, proceeded
on the basis that he had been working continuously from
F 1972 to 1976. It failed to notice the admission of the
appellant that his appointment used to be a need based ''
one. The Labour Court did not arrive at a finding of fact
that periodical appointment and termination of the
services of the appellant was either malafide or the same
G was being resorted to by way of unfair labour practice so
as to deprive the workman from obtaining his legal dues.
[Para 8] [1005-D, E]
1.3. The award of the Labour Court that he should
be reinstated in service cannot be upheld, particularly in
H
AFAQ HUSAIN v. UPSRTC & ANR. 1001
-" view of the fact that the respondent-Corporation, being a A
'State' within the meaning Article 12 of the Constitution,
was obligated to follow the constitutional requirements
of Articles 14 and 16 of the Constitution as also the
recruitment rules, if any, framed by it. The appointment of
the appellant did not satisfy the constitutional B
•. requirements. He was not and could not have been
appointed on substantive basis. [Para 11] [1006-G-H;
1007-A]
Swedish Match AB and Anr v Securities and Exchange
Board, India & Anr (2004) 11 SCC 641 and UCO Bank & Anr C
v. Rajinder Lal Capoor (2007) 6 SCC 694 - referred to.
2. The pre-condition for applicability of s.6N of the
U.P. Industrial Disputes Act, 1947 is working for a
continuous period of not less than one year. In the present
case, however, Appellant was appointed for a limited D
__ , period, namely, three months. Assuming that the
requirements of s.6N of the Act had not been complied
with, even then, the Appellant has been awarded a just
compensation, particularly, in view of the fact that he,
without any right, worked in the Corporation for a period E
of 18 years. In the facts of this case, Appellant was not
even entitled to any compensation as envisaged under
s.6N of the Act, particularly, as he was appointed for a
period of three months only. His servkes had been
terminated on expiry of the fixed period. Furthermore he F
has raised the industrial dispute after a long time. [Paras
9, 16, 18] [1006-D; 1008-D-E, G]
Workmen of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz
Werner (P) Ltd. & Anr AIR (1990) SC 1054 and Ram Piari v.
Bhagwant & Ors. AIR (1990) SC 1742 - referred to. G
CIVIL APPELLATE JURISDCITION : C)vil Appeal No.
2958 of 2008.
From the Order dated 18.8.2003 of the High Court of
Judicature at Allahabad in C.M.W.P. No. 4099/1985. H
1002 SUPREME COURT REPORTS [2008] 6 S.C.R.
,_
A Dinesh Dwivedi, Arvind Verma and Vibha Datta Makhija
for the Appellant.
Garima Prashad, Suchita Sharma and Tessy Varghese
for the Respondents.
B The Judgment of the Court was delivered by
•
S.B. SINHA, J. 1. Leave granted. ~
2. Appellant was appointed as a Conductor on an ad hoc
basis as a daily wager. He used to be appointed on a need
basis. On or about 1.1.1976, he was appointed for a period of
c three months, i.e., up to 31.3.1976, inter alia, on the premise
that if his services were no longer required, the same could be
terminated. Allegedly, he was paid one month's notice pay
before his services were terminated.
D An industrial dispute was raised by him in the year 1982
questioning the validity of the said order of termination. The said
f--
industrial dispute was referred to by the State for adjudication
by the Labour Court, Allahabad.
Respondent herein in its written statement contended :
E
"That Shri Afaq Hussain has been appointed temporarily
in the U. P. State Road Transport Corporation on 2.1.1976.
It was among the terms of his appointment that his service
may be terminated without assigning any reasons by giving
one month's notice. Shri Afaq Hussain has started working
F
in the U.P. State Road Transport Corporation by binding ,,
himself with the terms of his appointment.
That shri Afaq Hussain has worked contrary to the rules of
the department and the employers have lost their
G confidence in Shri Afaq Hussain. Therefore, by order dated
24.2.76, his services have been terminated by giving him
one month's salary in lieu of one month's notice. He has
no right to raise any dispute." +--
3. Before the Labour Court, the respondent examined one
H witness, Shri K. Bal, who admitted that no amount towards
AFAQ HUSAIN v. UPSRTC & ANR. [S.B. SINHA, J.] 1003
y
compensation for retrenchment as required under the provisions A
of Section 6N of the U.P. Industrial Disputes Act, 1947 (the Act)
had been paid.
4. Appellant also examined himself as a witness. He,
however, accepted that he had been given one month's notice
pay. B
•
-~ According to him, no offer of appointment was issued. He
furthermore admitted that he had been given duty on a need
basis only.
The learned Labour Court, however, on the premise that c
the appellant had worked continuously from July 1972 to
24.2.1976, held that the provision of Section 6N of the Act had.
not been complied with and consequently directed his
reinstatement with back wages. His services were directed to
be treated as uninterrupted. Appellant was reinstated in service 0
pursuant to the said award.
__.,
' 5. Respondent, however, filed a writ petition before the
Allahabad High Court questioning the validity of the said award.
By reason of the impugned judgment, the writ petition of E
the respondent was allowed by the High Court, opining :
"As already stated above, since the termination have taken
place in the year 1976, the matter has been referred to the
Labour Court in the year 1982 and the Labour Court has
given the award in the year 1984, I do not think it expedient F
/ in the interest of justice that the matter now should be
remanded back to the Labour Court.
It is not disputed as held by the labour court, that the
workman concerned was a temporary hand. It is also not
disputed, nor a finding has held, been recorded to the G
·(
contrary by the Labour Court that the workman concerned
has become a workman on whose employers have lost
their confidence. In this view of the matter, the award of the
labour Court requires to be upheld except after
modification that the workman concerned shall not be H
1004 SUPREME COURT REPORTS [2008] 6 S.C.R.
,· -
A entitled for any back wages, particularly in view of the
recent pronouncement by the apex Court, wherein the apex
Court tries to make the distinction between the regular
employees and the daily wagers, which says that the daily
wagers were entitled to minimum wages but not the full
B wages, like the regular staff, as the daily wagers could not
be held to hold the post. In this view of the matter, except
~
for what has already been paid under the modified interim
order by this Court, the workman concerned shall not be
entitled for any back wages and so far as the reinstatement
is concerned, since the employers have lost their
c confidence against the workman concerned, the employers
are hereby directed to pay a sum of Rs.50,000/- (Rupees
fifty thousand) only, apart from as already been paid under
the interim order as compensation in lieu of the
reinstatement."
D
6. Mr. Dinesh Dwivedi, learned senior counsel appearing
!- -
on behalf of the appellant, would submit that the High Court
committed a manifest error in passing the impugned judgment
insofar as it failed to take into consideration that except raising
the said plea in the written statement, the respondent could not
E
establish its plea of purported loss of confidence. It was
furthermore urged that the appellant, having been reinstated in
service pursuant to the award, the High Court committed a
serious error insofar as it failed to take into consideration the
fact that he had been working for a period of 18 years and only
F after the impugned judgment the services of the appellant had
~
been terminated. In any event, the High Court should not have '
quantified the amount of compensation at Rs.50,000/- only in
termining the question as the principles for grant of
compensation had not been taken into consideration.
G
7. Ms. Garima Prashad, learned counsel appearing on
behalf of the respondent-Corporation, on the other hand, would
submit:
(i) Labour Court has committed a serious error in
H proceeding on the basis that the appellant has been
AFAQ HUSAIN v. UPSRTC & ANR. [S.B. SINHA, J.) 1005
-)·
working for a long time as he was appointed only for A
a limited period in January 1976.
(ii) As one month's salary has been paid to him, the
requirements of Section 6N of the Act stood satisfied.
~
(iii) In view of the delay in raising the industrial dispute B
on the part of the appellant, the respondent was not
1 in a position to produce the relevant documents and,
thus, was gravely prejudiced.
(iv) In any event, the award of reinstatement in service
was wholly unwarranted. c
8. Appellant was appointed as a Conductor from time to
time. The Labour Court, in its award, proceeded on the basis
that he had been working continuously from 1972 to 1976. It
failed to notice the admission of the appellant that his
D
appointment used to be a need based one. The Labour Court
--1 did not arrive at a finding of fact that periodical appointment
and termination of the services of the appellant was either ma la
fide or the same was being resorted to by way of unfair labour
practice so as to deprive the workman from obtaining his legal
dues. E
9. If the contention of the respondent that the appellant was
appointed on 2.1.1976 for a period of three months only and he
had been given one month's notice before terminating his
services, in our opinion, the labour court was wholly incorrect in F
;~ awarding his reinstatement with back wages and continuity of
service.
Section 6N of the Act reads thus :
"6-N.Conditions precedent to retrenchment of G
workmen.-No workman employed in any industry who
has been in continuous service for not less than one year
.... under an employer shall be retrenched by that employer
until-
(a) the workman has been given one month's notice in H
1006 SUPREME COURT REPORTS [2008] 6 S.C.R.
( -
A writing indicating the reasons for retrenchment and
the period of notice has expired or the workman has
been paid in lieu of such notice wages for the period
of notice :
Provided that no such notice shall be necessary if
8 the retrenchment is under an agreement which
specifies a date for the termination of service;
(b) the workman has been paid, at the time of
retrenchment, compensation which shall be
equivalent to fifteen days' average pay for every
c completed year of service or any part thereof in
excess of six months, and
(c) notice in the prescribed manner is served on the
State Government."
D The pre-condition for applicability of the said provision is
working for a continuous period of not less than one year.
10. It was contended by the respondent in its written
statement that there was a specified date for termination of
E service. The question as to whether the appellant had been
continuing to work for a period of one year has not been
determined by the Labour Court.
Only when the services of an employee continues for a
period of more than one year, apart from the notice pay, he
F becomes entitled to be paid compensation equivalent to 15
days' wage for every completed year of service or any part (,
thereof in excess of six months.
11. The award of the Labour Court that he should be
reinstated in service cannot, therefore, be upheld, particularly
G in view of the fact that the respondent-Corporation, being a
'State' within the meaning Article 12 of the Constitution of India,
was obligated to follow the constitutional requirements of Articles
14 and 16 of the Constitution of India as also the recruitment
rules, if any, framed by it. The appointment of the appellant did
H not satisfy the constitutional requirements. He was riot and could
AFAQ HUSAIN v. UPSRTC & ANR. [S.B. SINHA, J.) 1007
_,Y.
not have been appointed on substantive basis A
12. The jurisdiction of the Labour Court to pass an award
of reinstatement is not disputed but the same would not mean
that a workman would be directed to be reinstated in service
without taking all relevant factors into consideration. This Court,
~
times without number, has laid down that some factors as B
-1 indicated play significant role.
'
13. It is true that the High Court was not correct in relying
upon an unproved statement made in the written statement.
Pleadings are not proof. The witness examined on behalf of the c
respondent did not disclose as to which rule was violated by
the appellant or why he had lost the confidence of his the
Management. Such a contention was required to be established
by adduction of proper evidence.
14. Mr. Dwivedi, however, is not correct in contending that D
--~ the respondent cannot raise before us any point other than the
loss of confidence. Respondent, in our opinion, having regard
to the principles akin to the provisions of Order 41 Rule 33 of
the Code of Civil Procedure, is entitled to support the judgment
on the basis of the materials on record. {See " Swedish Match E
AB and Anr. v. Securities and Exchange Board, India & Anr.
[(2004) 11 SCC 641 and UCO Bank & Anr v. Rajinder Lal
Capoor [(2007) 6 SCC 694].}
Before the High Court, it had raised a large number of
contentions. The High Court, however, thought that only if a few F
)
contentions were determined, the same would subserve the
ends of justice.
Respondent need not question the judgment of the High
Court that the appellant is entitled to payment of compensation G
for a sum of Rs.50,000/- but it can certainly contend that having
regard to the materials on record, he would be entitled only
thereto and not an order of reinstatement of service and/or
continuity of service only on the ground that the award of the
Labour Court was implemented.
H
•
1008 SUPREME COURT REPORTS [2008] 6 S.C.R.
A Reliance has been placed by Mr. Dwivedi on Workmen of
Bharat Fritz Werner (P) Ltd. v Bharat Fritz Werner (P) Ltd. &
Anr [AIR 1990 SC 1054]. Therein six months' wages for loss of
future employment had been awarded keeping in view the fact
that the workmen were skilled and they might not find it difficult
B to get alternate employment.
Appellant has not disclosed as to what was his salary and
a sum of Rs.50,00/-, in our opinion, would be more than his six
months' wages.
C 15. In Ram Piari v Bhagwant & Ors. [AIR 1990 SC 1742],
this Court, having regard to the fact that the workman was entitled
to back wages from 1975 to 1985, was of the opinion that a
portion of the back wages should be paid to the employee by
way of compensation which was assessed at Rs.2,50,000/-.
o 16. In this case, Appellant was appointed for a limited
period, namely, three months. We will assume that the
requirements of Section 6N of the Act had not been complied
with. Even then, in our opinion, the appellant has been awarded
a just compensation, particularly, in view of the fact that he,
E without any right, worked in the Corporation for a period of 18
years.
17. The question that he had been put back in service in
terms of the award by itself was not a ground which stood in the
way of the High Court in declining a relief to him to which he
F was not otherwise entitled to.
18. In the facts of this case, we are of the opinion that the
appellant was not even entitled to any compensation as
envisaged under Section 6N of the Act, particularly, as he was
appointed for a period three months only. His services had been
G terminated on the expiry of the fixed period. Furthermore he
has raised the industrial dispute after a long time.
19. For the reasons aforementioned, there is no merit in
this appeal. It is dismissed accordingiy. No costs.
H 8.8.8. Appeal dismissed.
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