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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 10353-10354  OF 2014 (Arising out of SLP(C) NOS. 31173-31174 OF 2010)

SUDARSHAN RAJPOOT              …APPELLANT

Vs.

U.P. STATE ROAD TRANSPORT CORPORATION …RESPONDENT

J U D G M E N T

V.GOPALA GOWDA, J. Leave granted.

2.  These  civil  appeals  are  directed  against  the  

impugned  judgment  and  orders  dated  5.3.2008  and  

3.8.2010  passed  in  Civil  Misc.  Writ  Petition  No.  

21553(C) of 2005 and Civil Misc. Review Application  

No. 93051 of 2008 by the High Court of Judicature at  

Allahabad.  Vide  order  dated  05.03.2008  the  High  

Court  allowed  the  writ  petition  filed  by  the  

REPORTABLE

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respondent-  U.P.  State  Road  Transport  Corporation  

(in short ‘the respondent-Corporation’) and quashed  

the  award  dated  31.05.2004  passed  by  the  Labour  

Court and held that the appellant-workman would be  

entitled  to  consolidated  damages/compensation  

equivalent  to  the  retrenchment  compensation  

calculated from the date of his engagement till the  

date of his disengagement. The Review Application of  

the Corporation was rejected.  

3. Brief facts in nutshell are stated hereunder for  

the purpose of appreciating rival legal contentions  

with a view to find out as to whether the impugned  

judgment is required to be interfered with or not by  

this  Court  in  exercise  of  its  appellate  

jurisdiction.

4.  On  11.03.1997  the  appellant-workman  Sudarshan  

Rajpoot was appointed to the post of Driver at Azad  

Nagar Depot, Kanpur, in the respondent-Corporation.  

On 07.06.1999 the appellant-workman was driving a  

vehicle bearing No.UAN 8582 on the Deora to Kanpur  

route, when all of a sudden the steering became free  

due to the iron ball of the tyre being damaged and

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he lost control over the vehicle. As a result of  

which  the  vehicle  met  with  an  accident  and  the  

appellant-workman broke  both  his  legs.  He  was  admitted  in  Lucknow  Medical  College  and  his  

treatment continued till 09.08.2000. On 10.8.2000,  

he  presented  himself  for  duty  with  a  fitness  

certificate, when he was told orally that his name  

was struck off from the rolls of post of driver and  

has  been  removed  from  the  services  of  the  

Corporation.  No  order  of  termination  from  his  

services was served upon the appellant-workman on  

that day. It is the case of the appellant-workman  

that  he  had  worked  for  more  than  240  days  

continuously in a calendar year from the date of his  

appointment till the date of his termination from  

the services of the respondent-Corporation.

5.  The  appellant-workman  raised  an  industrial  

dispute before the Conciliation Officer questioning  

the correctness of the order of termination dated  

29.07.2000  under  the  provisions  of  the  U.P.  

Industrial  Disputes  Act,  1947  (for  short  “the  

U.P.I.D, Act”).

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   The State Government of Uttar Pradesh, which is  

the appropriate State Government under the U.P.I.D.  

Act  to make  an order  of reference  to either  the  

Labour Court or Industrial Court for adjudication of  

the industrial dispute between the workman and their  

employer,  exercised  its  statutory  powers  under  

Section  4-K  of  the  U.P.I.D  Act  and  referred  the  

dispute to the Labour Court vide its order No. 483-

85 KR (Branch Secretary) CP493/2000 dated 9.4.2001  

to adjudicate the following point of dispute whether  

the termination of services of the appellant-workman  

by  the  respondent-Corporation  vide  order  dated  

29.7.2000 is proper and valid? If not then whether  

the  concerned  appellant-workman  is  entitled  to  

receive interest/compensation?

6. The said order of reference was registered as  

Industrial  Dispute  No.52  of  2001  by  the  Labour  

Court. The Labour Court has adjudicated the dispute,  

after affording an opportunity to the parties and  

rejected the plea of the respondent-Corporation that  

the appellant-workman was working on contract basis.  

Further, the Labour Court adverted to an undisputed

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fact that the order of termination was not preceded  

by any departmental inquiry required to be conducted  

by the Corporation. It was also noted by the Labour  

Court that no evidence on record was adduced before  

it  to prove  the allegation  made in  the order  of  

termination that the accident occurred on account of  

the negligence on the part of the appellant-workman.  

7. The Labour Court has held that the workman had  

worked for more than 240 days in a calendar year and  

that he was removed from his post on 29.07.2000 by  

the Corporation without any valid reasons. In the  

order  of  termination,  it  has  been  specifically  

stated  that  his  name  was  struck  off  from  the  

contract roll. The finding of fact recorded by the  

Labour Court on appreciation of the pleadings and  

evidence on record was that the termination of the  

services of the appellant-workman was contrary to  

law and accordingly set aside the same & passed an  

Award. The Corporation was directed to reinstate the  

appellant-workman without any break in service in  

the post of driver and pay all his dues, salary etc.  

from the date of termination of his services and

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also further directed to the Corporation to continue  

to pay in future also.  

8. The said award was challenged by the respondent-

Corporation before the High Court questioning the  

correctness  of  the  findings  of  fact  inter  alia,  

contending the finding recorded by the Labour Court  

in  its  Award  that  the  appellant-workman  was  a  

permanent  employee  of  the  Respondent-Corporation  

without  there  being  any  evidence  on  record  and  

therefore, the same is erroneous in law. Reliance  

was placed on the decision of this Court in the case  

of Secretary, State of Karnataka & Ors. v. Uma Devi  

&  Ors.1 in  the  matter  of  appointment  of  the  

appellant-workman  as  he  was  appointed  on  

temporary/contractual basis.

9.  The  High  Court  has  set  aside  award  of  

reinstatement and consequential reliefs granted by  

the Labour Court in its Award after referring to the  

decisions  of  this  Court  in  the  cases  of Haryana  

State  Electronics  Development  Corporation  Ltd.  v.  

Mamni2.  The  High  Court  held  that  the  appellant-

1  (2006) 4 SCC 1  2   (2006) 9 SCC 434

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workman  was  entitled  to  consolidated  

damages/compensation equivalent to the retrenchment  

compensation  calculated  from  the  date  of  the  

workmen’s  engagement  till  the  date  of  his  

disengagement.  

10.  The  correctness  of  the  impugned  Judgment  and  

order  of  the  High  Court  is  questioned  by  the  

appellant-workman  before  this  Court  by  raising  

various questions of law and urging various grounds  

in support of the same and prayed for restoration of  

the award passed by the Labour Court.

11. The legal questions raised in this appeal are  

that the High Court has failed to consider Section  

6R of the U.P.I.D. Act, where the effects of laws  

inconsistent with Sections 6J to 6Q are dealt with.  

Sections 6N and 6Q (which are equivalent to Sections  

25F and 25H of the Industrial Disputes Act, 1947)  

have an overriding effect on all laws, as such non-

compliance of mandatory provisions of Sections 6N  

and  6Q  rendered  the  order  of  termination  passed  

against the appellant void  ab initio in law. The  

conditions precedent as laid down under Section 6-N

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of the U.P.I.D. Act for retrenchment of workmen have  

not been complied with though the appellant-workman  

has put in continuous service of more than 240 days  

in a calendar year from the date of appointment till  

the  date  of  his  termination  passed  by  the  

Respondent-Corporation.  Non-consideration  of  this  

important legal aspect of the case by the High Court  

while setting aside the finding of facts recorded by  

the Labour Court in its Award that the order of the  

respondent-Corporation  terminating  the  services  of  

the appellant-workman & non-compliance of mandatory  

provision  of  Section  6-N  of  the  U.P.I.D.  Act,  

rendered the order of termination void ab initio in  

law.

12. It has been contended by the learned counsel for  

the appellant-workman that the High Court has erred  

in placing reliance upon the decision of this Court  

in Uma Devi case (supra), which was distinguished in  

as much as the said case is not applicable to the  

case  on  hand  for  the  reason  that  the  appellant-

workman is a “workman” as defined under Section 2(z)  

of  the  U.P.I.D.  Act and  the  respondent  is  the

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Statutory Corporation which is an undertaking of the  

State  Government  and  therefore,  it  is  an  

instrumentality  of  the  State  Government,  it  will  

come within the definition of “Industry” as defined  

under Section 2(k) of the U.P.I.D. Act. Therefore,  

the  said  provisions  of  the  U.P.I.D.  Act  are  

applicable  to  the  appellant-workman  as  he  is  a  

“workman”  as  defined  under  Section  2(z)  of  the  

U.P.I.D. Act and Section 2(s) of the I.D. Act, 1947.  

13. Further, it is contended that the High Court has  

failed to consider the “Unfair Labour Practice” as  

defined under Section 2(ra) of the I.D. Act, 1947  

read with Sections 25T and 25U and V Schedule of the  

I.D. Act.  Para 10 of the V Schedule of the I.D. Act  prohibits the employer to employ workmen as badlis,  

casuals or temporaries and to continue them as such  

for years in the Corporation, with the object of  

depriving  them  of  the  status  and  privileges  of  

permanent  workmen  is  prohibited.  It  is  further  

contended that the respondent-Corporation is liable  

for penal action under the provisions of Section 25U  

of the I.D. Act. In support of the above contention,

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reliance was placed on 3 Judge Bench decision of  

this  Court  in  the  case  of  Chief  Conservator  of  

Forests  and  Anr.  v.  Jagannath  Maruti  Kondhare  &  

Ors3.

14. On the other hand, the learned counsel appearing  

on behalf of the respondent-Corporation sought to  

justify the correctness of the finding and reasons  

recorded by the High Court in the impugned judgment.  

Alternatively,  it  is  contended  that  even  if  the  

order of termination is bad in law, the workman who  

is working on the contract basis is not entitled for  

reinstatement with full back-wages as per the view  

taken by this Court in several decisions. Therefore,  

the learned counsel for the respondent-Corporation  

submits that the impugned judgment and order need  

not be interfered with by this Court in exercise of  

its appellate jurisdiction.  

15. With reference to the above said rival legal  

contentions  the  following  substantial  questions  

would arise for our consideration:

i. Whether the High Court is justified  in   passing the impugned judgment, order  

3  (1996) 2 SCC 293

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and  reversing  the  award  passed  by  the  Labour Court?

ii. Whether  the  order  of  termination  passed  against  the  appellant-workman  amounts to retrenchment as defined under  Section 2(s) of the U.P.I.D. Act, 1947?

iii. Whether  non-compliance  of  the  statutory provisions under Sections 6-N  and  6-Q of  the U.P.I.D.  Act which  are  analogous with 25-F and 25-H respectively  of the I.D. Act,1947 renders the order of  termination void ab initio in law?

iv. What relief the appellant-workman is  entitled to?

16. To answer the above substantial questions of law  

it is necessary for this Court to extract the order  

of  termination  passed  by  the  Assistant  Regional  

Manager of the Corporation, which reads thus:

“ OFFICE OF ASSISTANT REGIONAL  MANAGER,

U.P. TRANSPORT CORPORATION, AZAD  NAGAR DEPOT

Letter  No.ARM/A.Ngr/Bus  Accident  0582/2000/3591 dated 29.7.2000

OFFICE ORDER

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On 7.6.1999 vehicle bearing No. 8582 which  had met an accident which was being driven  on  7.6.1999  by  Shri  Sudharshan  Rajput  contractual driver and conductor Shri Kamta  Prasad  on  Deoria  to  Kanpur  route  and  accident occurred on the way at 1:30 a.m.  in the night at village Palhari, Barabanki  near Police Station Safdarganj and due to  negligent driving of the driver, department  suffered heavy loss.

Hence in order to meet departmental loss,  forfeiting  security  of  driver  Shri  Sudharsan  Rajput,  I  pass  the  order  to  struck off his name from the contract roll  with  an  immediate  effect.  His  name  be  struck off from contract roll.

Sd/(Illegible)  (Sad Sayed)

Assistant Regional Manager, Azad Nagar, Depot”

(emphasis laid by this Court)

In  the  aforesaid  order  of  termination  it  is  

specially mentioned that the appellant-workman was  

appointed as a driver on contractual basis. It has  

been further stated that the accident occurred on  

07.06.1999  due  to  the  negligent  driving  of  the  

appellant-workman  resulting  in  heavy  loss  to  the  

department of the respondent-Corporation. In order  

to meet the departmental loss, security amount of  

driver was forfeited and Assistant Regional Manager  

had  struck  off  the  name  of  the  appellant-workman

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from  the  contract  employees  roll  with  immediate  

effect.  The  respondent-Corporation  has  neither  

produced documentary evidence nor showed before the  

Labour  Court  that  the  appellant-workman  was  

appointed  on  contract  basis.  The  fact  that  he  

deposited Rs.2000/- towards security amount with the  

respondent-Corporation indicates that he was working  

as the Driver on a permanent basis. In view of the  

Schedule V, entry No. 10 of the I.D. Act,1947 the  

respondent-Corporation  is  prohibited  from  engaging  

the  appellant-workman  as  a  badli,  casual  or  

temporary workman to work on permanent basis. The  

fact that he had been continuously working for more  

than 3 years and he had rendered more than 240 days  

of service as the driver in a calendar year until  

his termination order and yet he being engaged on a  

contractual basis in the respondent-Corporation is  

statutorily  prohibited.  The  same  amounts  to  an  

unfair  labour  practice  as  defined  under  Section  

2(ra) read with Section 25T, which action of the  

Corporation is punishable under Section 25U of the  

I.D. Act. This legal position is settled by this

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Court in  Chief Conservator of Forest  case (supra)  

wherein it was held as under:-

“22..... In our opinion, it would  be  permissible  on  facts  of  a  particular  case  to  draw  the  inference  mentioned  in  the  second  part  of  the  item,  if  badlis,  casuals  or  temporaries  are  continued  as  such  for  years.  We  further state that the present was  such a case in as much as from the  materials  on  record  we  are  satisfied that the 25 workmen who  went  to  Industrial  Court  of  Pune  (and  15  to  Industrial  Court,  Ahmednagar)  had  been  kept  as  casuals  for  long  years  with  the  primary  object  of  depriving  them  the  status  of  permanent  employees  in as much as giving of this status  would have required the employer to  pay  the  workmen  at  a  rate  higher  than  the  one  fixed  under  the  Minimum Wages Act. We can think of  no other possible object as, it may  be  remembered  that  the  Pachgaon  Rarwati  Scheme  was  intended  to  cater  to  the  recreational  and  educational aspirations also of the  populace,  which  are  not  ephemeral  objects,  but  par  excellence  permanent.  We  would  say  the  same  about  environment-pollution-care  work of Ahmednagar, whose need is  on increase because of increase in  pollution. Permanency is thus writ  large on the face of both the types  of work. If, even in such projects,  persons are kept in jobs on casual  basis  for  years  the  object  manifests  itself;  no  scrutiny  is  required. We, therefore, answer the

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second  question  also  against  the  appellants.”

17. In the absence of the documentary evidence to  

justify the plea taken by the Respondent-Corporation  

that the appellant-workman was a contract employee  

in the order of termination it remained as a plea  

and not a proven fact of assertion. Therefore, the  

appellant-workman  is  considered  to  be  permanent  

workman. Further, the appellant-workman has clearly  

stated in his affidavit before the High Court that  

at the time of termination his juniors were working  

on permanent basis. Therefore, the same is another  

added  fact  to  accept  the  contention  of  the  

appellant-workman by the Labour Court that he was  

appointed as a permanent workman in the respondent-

Corporation as a driver.  

18. The reference of the industrial dispute to the  

Labour  Court  regarding  the  justification  of  the  

order of termination passed against the appellant-

workman was made by the State Government in exercise  

of its statutory power under the U.P.I.D. Act.  The  

burden to justify the same lies on the respondent-

Corporation,  the  same  has  not  been  discharged  by

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producing  cogent  evidence  on  record  before  the  

Labour  Court.  Therefore,  the  finding  of  fact  

recorded  by  the  Labour  Court  while  answering  the  

point of dispute referred to it by placing reliance  

upon  the  evidence  of  the  employer-EW1  wherein  he  

admitted that the appellant-workman was appointed on  

permanent basis in the post of driver at Azad Nagar  

Depot of the respondent-Corporation. The finding of  

fact was recorded by the Labour Court accepting the  

evidence  of  EW  1  that  the  appellant-workman  has  

worked continuously from 11.3.1997 to 29.07.2000 in  

the  respondent-Corporation.  Therefore,  the  Labour  

Court has rightly come to conclusion and held that  

the  appellant-workman  has  rendered  more  than  240  

days  continuous  service  from  the  date  of  his  

appointment till the date of passing the termination  

order.  

19.  It  is  the  case  of  retrenchment  as  the  

termination of the appellant from his services is  

otherwise for misconduct, in view of the admitted  

fact mentioned in the order of termination that his  

name was struck off from the contract roll. Merely

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because the words mentioned as “contractual driver”  

in the termination order dated 29.7.2000 to strike  

off his name from the contract employees roll does  

not automatically prove that he has worked as the  

driver  on  contract  basis  in  the  respondent-

Corporation.  

20. The finding of fact recorded by the Labour Court  

in its award on proper appreciation of undisputed  

facts and evidence on record, has been rightly held  

that the termination order amounts to retrenchment  

and non compliance of the statutory provisions under  

Sections 6-N, 6-R and 6-Q of the U.P.I.D. Act has  

rendered the order of termination void ab initio in  

law. Therefore, the Labour Court was justified in  

passing  the  award  of  reinstatement  after  setting  

aside  the  order  of  termination  and  awarded  

consequential benefits and such as back-wages from  

the date of termination till date of reinstatement  

and further direction to pay future salary to the  

appellant-workman.  

21. In the order of termination, it is alleged that  

on  account  of  negligent  driving  of  the  bus  by

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appellant-workman  the  accident  of  the  vehicle  

happened, the said allegation was neither proved in  

the inquiry required to be conducted nor producing  

evidence before the Labour Court by the respondent-

Corporation. Therefore, the High Court has failed to  

examine the above vital aspects of the case on hand  

and erroneously interfered with the award passed by  

the Labour Court in exercise of its extraordinary  

and supervisory jurisdiction under Articles 226 &  

227 of the Constitution of India. This exercise of  

power is contrary to the law laid down by this Court  

in  the  case  of Harjinder  Singh  v.  Punjab  State  

Warehousing  Corporation4, wherein  this  Court  held  

thus:-

“17. Before concluding, we consider it  necessary  to  observe  that  while  exercising jurisdiction under Articles  226 and/or 227 of the Constitution in  matters like the present one, the High  Courts are duty bound to keep in mind  that the Industrial Disputes Act and  other similar legislative instruments  are  social  welfare  legislations  and  the  same  are  required  to  be  interpreted keeping in view the goals  set  out  in  the  preamble  of  the  Constitution  and  the  provisions  contained  in  Part  IV  thereof  in  general and Articles 38, 39(a) to (e),  

4  (2010) 3 SCC 192

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43  and  43A  in  particular,  which  mandate that the State should secure a  social  order  for  the  promotion  of  welfare of the people, ensure equality  between  men and  women and  equitable  distribution of material resources of  the community to sub-serve the common  good and also ensure that the workers  get  their  dues.  More  than  41  years  ago,  Gajendragadkar,  J,  opined  that  "the  concept of  social and  economic  justice  is  a  living  concept  of  revolutionary  import;  it  gives  sustenance  to  the  rule  of  law  and  meaning and significance to the ideal  of welfare State" - State of Mysore  v. Workers of Gold Mines AIR 1958 SC  923.”

Therefore, we have to hold that the High Court has  

erroneously exercised its supervisory jurisdiction  

under Articles 226 & 227 of the Constitution of  

India,  in  interfering  with  the  findings  of  fact  

recorded  in  the  award  by  the  Labour  Court  and  

setting aside the same and in lieu of the same it  

awarded retrenchment compensation from the date of  

appointment  till  the  date  of  disengagement.  The  

impugned  Judgment  and  order  passed  by  the  High  

Court is not only erroneous but suffers from error  

in law as it has failed to follow the principles  

laid  down  by  this  Court  in  the  above  case.  

Therefore, the same is liable to be set aside.

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22. Further, the reliance placed upon the decision  

of this Court on Uma Devi (supra) case by the High  

Court to reverse the finding of fact recorded in  

the award in favour of the workman in answering the  

points of dispute in the negative, is not tenable  

in law in view of the judgment of this Court in  

Maharashtra State Road Transport Corpn. & Anr.  v.  

Casteribe  Rajya  Parivahan  Karmchari  Sanghatan5,  

wherein, this Court after adverting to  Uma Devi’s  

case  (supra) at para 36, has held that the said  

case  does  not  denude  the  Industrial  and  Labour  

Courts of their statutory power under Section 30  

read with Section 32 of the MRTU and PULP Act to  

order  permanency  of  the  workers  who  have  been  

victims of unfair labour practice on the part of  

the employer under Item 6 of the Schedule IV where  

the posts on which they have been working exist.  

Further,  this  Court  held  that  Uma  Devi’s  case  

cannot be held to have overridden the powers of  

Industrial and Labour Courts in passing appropriate  

order under Section 30 of the MRTU and PULP Act,  

5   (2009) 8 SCC 556

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once  unfair  labour  practice  on  the  part  of  the  

employer  under  Item  6  of  the  Schedule  IV  is  

established.  

23. We are of the opinion that the view taken in  

Maharashtra  State  Road  Transport  Corpn.  &  Anr.

(supra) at para 36 after distinguishing  Uma Devi’s  

case is the plausible view. Therefore, we have to  

hold that the finding of the High Court in setting  

aside the finding of fact recorded by the Labour  

Court  in  its  award  by  applying  Uma  Devi  case  

(supra) is wholly untenable in law. Therefore, the  

same is set aside by this Court.  

24. This Court in the later judgment in the case of  

Hari  Nandan  Prasad  &  Anr.  v.  Employer  I/R  to  

Management of Food Corporation of India & Anr.6,  

after adverting to the law laid down in U.P. Power  

Corporation  v.  Bijli  Mazdoor  Sangh7  and  

Maharashtra  State  Road  Transport  Corpn.  &  Anr.  

(supra) wherein  Uma Devi’s  case is adverted to in  

both the cases, held that on a harmonious reading  

of the two judgments, even when there are posts  6   (2014) 7 SCC 190 7  (2007) 2 SCC 755

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available,  in  the  absence  of  any  unfair  labour  

practice the Labour Court cannot give direction for  

regularisation only because a worker has continued  

as  daily-wage  worker/ad  hoc/temporary  worker  for  

number of years.  Further, such a direction cannot  

be given when the worker concerned does not meet  

the eligibility requirement of the post in question  

as per the recruitment rules. It was held at para  

32 in the Hari Nanda Prasad case (supra) as under:-

“32.  However,  the  Court  in  Maharashrtra  SRTC  case  also  found  that  the  factual  position  was  different in the case before it. Here  the  post  of  cleaners  in  the  establishment  were  in  existence.  Further, there was a finding of fact  recorded  that  the  Corporation  had  indulged in unfair labour practice by  engaging  these  workers  on  temporary/casual/daily-wage basis and  paying them paltry amount even when  they  were  discharging   duties  of  eight hours a day and performing the  same  duties  as  that  of  regular  employees.”

Further, Hari Nandan Prasad & Anr. (supra) referred  

at  para 36, the case of  LIC  v. D.J. Bahadur8 in  

which  the  relevant  para  22  of  LIC  (supra)  case  

extracted as under :-

8  (1981) 1 SCC 315

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And again at para 37, observing that the aforesaid  

sweeping power conferred upon the Tribunal is not  

unbridled and is circumscribed by this Court in New  

Maneck Chowk Spg. & Wvg. Co. Ltd. v. Textile Labour  

Assn.9,  the relevant para 6 of which is extracted  

as under :-

“37….“6. … This, however, does not  mean that an Industrial Court can  do  anything  and  everything  when  dealing with an industrial dispute.  This  power  is  conditioned  by  the  subject-matter  with  which  it  is  dealing  and  also  by  the  existing  industrial law and it would not be  open  to  it  while  dealing  with  a  particular  matter  before  it  to  overlook  the  industrial  law  relating  to  that  matter  as  laid  down by the legislature or by this  Court.” 38.  It  is,  thus,  this  fine  balancing which is required to be  achieved  while  adjudicating  a  particular dispute, keeping in mind  that  the  industrial  disputes  are  settled  by  industrial  adjudication  on  principle  of  fair  play  and  justice.”

25. In view of the aforesaid statement of law laid  

9  AIR 1961 SC 867

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down by this Court after adverting to the powers of  the  Industrial  Tribunal  and  the  Labour  Court  as  

interpreted by this Court in the earlier decisions  

referred  to  supra,  the  said  principle  is  aptly  

applicable to the fact situation of the case on  

hand, for the reason that the Labour Court recorded  

a finding of fact in favour of the workman that the  

termination of services of the appellant herein is  

not legal and valid and further reaffirmed the said  

finding and also clearly held that the plea taken  

in the order of termination that he was appointed  

on  contract  basis  as  a  driver  is  not  proved  by  

producing cogent evidence. Further, we hold that  

even  if  the  plea  of  the  employer  is  accepted,  

extracting  work  though  of  permanent  nature  

continuously for more than three years, the alleged  

employment  on  contract  basis  is  wholly  

impermissible.  Therefore,  we  have  held  that  it  

amounts  to  an  unfair  labour  practice  as  defined  

under  2(ra)  of  the  I.D.  Act,  1947  read  with  

Sections 25T which is prohibited under Section 25U,  

Chapter VC of the I.D. Act, 1947. We have to hold

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that the judgment of the High Court in reversing  

the award is not legal and the same is set aside by  

us.

26.  Further,  the  conditions  precedent  to  the  

retrenchment of workmen under Section 6-N of the  

U.P.I.D.  Act  have  not  been  satisfied  before  

terminating the services of the appellant-workman  

in the case on hand. Section 6-N of the U.P.I.D.  

Act states as follows:  

“6-N.  Conditions  precedent  to  retrenchment of workman.- 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,- The  workman  has  been  given  one  month’s notice in 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 the  notice; Provided that no such notice shall be  necessary  if  the  retrenchment  is  under an agreement which specifies a  date for the termination of service;  the  workman  has  been  paid,  at  the  time  of  retrenchment,  compensation  which shall be equivalent to fifteen  days’ average pay for every completed  year of service or any part thereof  in excess of six months; and Notice  in the prescribed manner is served on

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the State Government.”

Thus, non-compliance with the mandatory provisions  

under Section 6-N of the U.P.I.D. Act rendered the  

retrenchment of the workman void ab initio in law.  

This position of law is well settled by this Court  

in the case of Delhi Cloth & General Mills Ltd v.  

Shambhu  Nath  Mukherjee  &  Ors10 which  states  as  

under:-

“On the face of it, the order striking  off the name of the workman from the  rolls on August 24, 1965, is clearly  erroneous.  No  order,  even  under  section 27(c) of the Standing Orders,  could have (1) [1957] SCR 335. been  passed on that date. The clause in the  Standing Orders reads as follows :-

"If any workman absents for  more  than  eight  consecutive  days  his  services  shall  be  terminated  and  shall  be  treated  having  left  the  service without notice".

The workman last attended work on 14th  August, 1965. 15th August was a public  holiday.  He  was,  therefore,  absent  from work only from 16th of August. So  even  under  the  Standing  Orders  the  workman was not absent for "more than  eight  consecutive  days"  on  24th  August, 1965. The order is, therefore,  clearly untenable even on the basis of  

10  (1977) 4 SCC 415

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the  Standing  Orders.  It  is  not  necessary  to  express  any  opinion  in  this appeal whether "eight consecutive  days"  in  the  Standing  Orders  mean  eight  consecutive  working  days.  Striking of the name of the workman  from the rolls by the management is  termination  of  his  service.  Such  termination of service is retrenchment  within the meaning of section 2(00) of  the Act. There is nothing to show that  the provisions of section 25F (a) and  (b)  were  complied  with  by  the  management  in  this  case.  The  provisions  of  section  25F(a),  the  proviso apart, and (b) are mandatory  and  any  order  of  retrenchment,  in  violation  of  'these  two  peremptory  conditions precedent, is invalid.”

(emphasis laid by this Court)

This  position  of  law  was  also  reiterated  in  L.  

Robert  D'souza  v. Executive  Engineer,  Southern  

Railway  &  Anr11 and  approved  by  the  Constitution  

Bench of this Court in Punjab Land Development And  

Reclamation  Corporation  Ltd.,  Chandigarh  (supra).  

Therefore, the Labour Court has rightly set aside  

the  order  of  termination  by  the  respondent-

Corporation while adjudicating the point of dispute  

which  has  been  referred  to  it  by  the  State  

Government, the same is perfectly legal and valid  11    (1982)1 SCC  645

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and  therefore  it  should  not  have  been  interfered  

with  by  the  High  Court  in  exercise  of  its  

Supervisory Jurisdiction.

 27.  Under  Section  2(z)  of  the  U.P.I.D.  Act,  

“workman” whether daily wage, casual and temporary  

workman or permanent workmen, all are workmen for  

the  purpose  of  the  U.P.I.D.  Act.  There  is  no  

classification  of  workmen  such  as  permanent,  

temporary  or  casual  under  the  U.P.I.D.  Act.  The  

classification of workmen either in the Recruitment  

Rules  &  Regulations  or  under  the  Model  Standing  

Orders  framed  by  the  State  Government  under  the  

Industrial Employment (Standing Orders) Act, 1946,  

are applicable to the Respondent-Corporation in the  

absence  of  service  regulations  framed  by  the  

respondent-Corporation.  

28.  Further,  the  alleged  misconduct  of  negligent  

driving of the vehicle by the appellant-workman on  

the date of the accident, the argument advanced by  

the respondent-Corporation is falsified by documents  

produced  by the  workman in  CA-1 and  CA-2 of  the  

counter  affidavit  filed  before  the  High  Court

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wherein it is specifically pleaded by the appellant-

workman that he got severe injuries in the accident  

due to mechanical defect of the vehicle which is  

admitted by the Assistant Regional Manager of the  

respondent-Corporation. Annexures CA-1 and CA-2 and  

the  Commissioner  for  Workmen’s  Compensation  under  

the Employees Compensation Act, 1923, treated the  

appellant-workman  to  be  a  workman  under  the  

provisions of Employees Compensation Act, 1923 and  

passed  an  order  on  8.1.2000 in  favour  of  the  appellant-workman. The said order became final and  

was  not  challenged  by  the  respondent-Corporation.  

This  clearly  proves  the  fact  that  the  appellant-

workman  sustained  injuries  in  the  accident  that  

occurred on account of the mechanical defect of the  

vehicle involved in the accident. The plea taken by  

the  respondent-Corporation  that  the  order  of  

termination was passed against the appellant-workman  

as  the  accident  occurred  on  account  of  negligent  

driving of the vehicle by the appellant-workman is  

not proved by the respondent-Corporation in order to  

justify the same. This aspect of the matter has not

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been discussed either by the Labour Court or by the  

High Court.  

29.  Further,  it  is  important  for  us  to  examine  

another aspect of the case on hand with respect to  

reinstatement,  back-wages  and  the  other  

consequential benefits to be awarded in favour of  

the appellant-workman. In the case of Deepali Gundu  

Surwase  v. Kranti Junior Adhyapak Mahavidyalaya (D.  

Ed) and Ors.12 ,   after referring to three Judge Bench  

Judgments  with  regard  to  the  principle  to  be  

followed by the Labour Courts/Industrial Tribunals  

to  award  back-wages  if  order  of  

termination/dismissal  is  set  aside,  law  has  been  

laid down in this regard by this Court as under:-  

“17.  The  very  idea  of  restoring  an  employee to the position which he held  before  dismissal  or  removal  or  termination  of  service  implies  that  the employee will be put in the same  position in which he would have been  but for the illegal action taken by  the employer. The injury suffered by a  person, who is dismissed or removed or  is otherwise terminated from service  cannot easily be measured in terms of  money. With the passing of an order  which has the effect of severing the  employer  employee  relationship,  the  latter's source of income gets dried  

12  (2013) 10 SCC 324

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up. Not only the concerned employee,  but  his entire  family suffers  grave  adversities. They are deprived of the  source of sustenance. The children are  deprived  of nutritious  food and  all  opportunities  of  education  and  advancement  in  life.  At  times,  the  family  has  to  borrow  from  the  relatives  and  other  acquaintance  to  avoid  starvation.  These  sufferings  continue  till  the  competent  adjudicatory  forum  decides  on  the  legality of the action taken by the  employer. The reinstatement of such an  employee,  which  is  preceded  by  a  finding  of  the  competent  judicial/quasi judicial body or Court  that the action taken by the employer  is ultra vires the relevant statutory  provisions  or  the  principles  of  natural justice, entitles the employee  to  claim  full  back  wages.  If  the  employer wants to deny back wages to  the  employee  or  contest  his  entitlement  to  get  consequential  benefits, then it is for him/her to  specifically  plead  and  prove  that  during  the  intervening  period  the  employee  was  gainfully  employed  and  was  getting  the  same  emoluments.  Denial of back wages to an employee,  who has suffered due to an illegal act  of  the  employer  would  amount  to  indirectly  punishing  the  concerned  employee and rewarding the employer by  relieving him of the obligation to pay  back wages including the emoluments.

Therefore, keeping in mind the principles laid down  

by  this  Court  in  the  above  case,  we  are  of  the  

opinion that the appellant-workman should be paid

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a  disability during  his service.  It  must be borne in mind that Section 2  of  the  Act  has  given  distinct  and  different  definitions  of  disability  and person with disability. It is well  settled that in the same enactment if  two  distinct  definitions  are  given  defining a word/expression, they must  be understood accordingly in terms of  the definition. It must be remembered  that  a  person  does  not  acquire  or  suffer  disability  by  choice.  An  employee,  who  acquires  disability  during his service, is sought to be  protected under Section 47 of the Act  specifically. Such employee, acquiring  disability,  if  not  protected,  would  not only suffer himself, but possibly  all those who depend on him would also  suffer.  The very frame and contents  of  Section  47  clearly  indicate  its  mandatory nature. The section further  provides  that  if  an  employee  after  acquiring disability is not suitable  for the post he was holding, could be  shifted to some other post with the  same pay scale and service benefits;  if it is not possible to adjust the  employee against any post he will be  kept on a supernumerary post until a  suitable  post  is  available  or  he  attains  the  age  of  superannuation,  whichever is earlier. Added to this  no  promotion  shall  be  denied  to  a  person  merely  on  the  ground  of  his  disability  as  is  evident  from  sub- section (2) of Section 47. Section 47  contains a clear directive that the  employee shall not dispense with or  reduce  in  rank  an  employee  who  acquires  a  disability  during  the  service. In construing a provision of

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a social beneficial enactment that too  dealing with disabled persons intended  to  give  them  equal  opportunities,  protection  of  rights  and  full  participation, the view that advances  the object of the Act and serves its  purpose must be preferred to the one  which  obstructs  the  object  and  paralyses  the  purpose  of  the  Act.  Language of Section 47 is plain and  certain  casting  statutory  obligation  on  the  employer  to  protect  an  employee  acquiring  disability  during  service.”

Therefore, the respondent-Corporation is statutorily  

obliged  under  Section  47  of  The  Persons  with  

Disabilities  (Equal  Opportunities,  Protection  of  

Rights and Full Participation) Act, 1995 to provide  

alternate equivalent job to the appellant-workman in  

place of the post of driver. Therefore, we direct  

accordingly.

31. In the result, the impugned Judgment and orders  

are  set  aside.  The  appeals  are  allowed. The  respondent-Corporation is directed to reinstate the  

appellant-workman with 50% back-wages from the date  

of termination till the date of the Award of the  

Labour Court and further award 100% back-wages from

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the date of Award of the Labour Court till the date  

of reinstatement with all consequential reliefs and  

other monetary benefits including the continuity of  

service in an alternative equal job with the same  

pay-scale as that of a driver. It is needless to  

state that the back-wages shall be calculated as per  

the  provisions  of  pay  scales  revised  to  the  

employees of   the respondent-Corporation from time  

to  time.  The  respondent-Corporation  is  further  

directed to comply with the order within 4 weeks  

from  the  date of  receipt  of  the  copy  of  this  

Judgment. There shall be no order as to costs.  

                                          ……………………………………………………………………J.

                       [V.GOPALA GOWDA]

  ……………………………………………………………………J.                         [C. NAGAPPAN]

New Delhi,                                      November 18, 2014