The Lucknow Bench of the Allahabad High Court while allowing the petition observed that the Labour Court had no jurisdiction to entertain and decide the matter pertaining to a Society constituted under the Act, 1965.
A Single Bench of Justice Alok Mathur passed this order while allowing the petition filed by U.P Cooperative Federation Limited through its Managing Director and Another.
The award passed by U.P Industrial Tribunal, Lucknow dated 23.4.2011 has been questioned by the petitioner, wherein the claim of the respondent-employee has been allowed, and his order of termination has been set aside and the petitioners have been directed to reinstate him in service with effect from 1.1.1985 and he has also been held entitled to 50 per cent back wages.
The petitioner has also challenged the order dated 9.3.2010 whereby the preliminary objection raised by the petitioner with regard to the jurisdiction of the Industrial Tribunal to decide the dispute pertaining to the cooperative society has been rejected.
The facts of the controversy are that respondent No 3-employee, namely, Ajay Kumar Mishra was appointed on adhoc basis for 89 days with effect from 16.2.1982. His employment was extended from time to time till 31.12.1984 after which he was not allowed to continue in service.
Aggrieved by the action of the petitioner in terminating his services he moved to the Conciliation Officer under U.P Industrial Tribunals Act, 1947. On failure of the conciliation proceedings the matter was referred for adjudication by the Tribunal on the question with regard to the validity of his termination with effect from 1.1.1985.
Notices were issued to the petitioner who appeared before the tribunal and contested the claim of the respondent-employee. It was stated that he was initially appointed on the post of Operator and posted at Copaganj, District Azamgarh on 16.2.1982 and subsequently transferred to Cold Storage, Shahjahanpur (Jaunpur) on his own request with effect from 12.11.1983.
Some disciplinary inquiry was also initiated against the employee as there was damage to the potatoes in the said cold storage due to which he was transferred from Shahjahanpur to Head Office, Lucknow where he worked till 31.12.1984. Subsequently, his name was struck off from the attendance register.
In the written statement filed by the petitioner it was stated that the employee was engaged only for 89 days but subsequently his services were extended from time to time considering that his services were needed in the working of the federation.
The employee himself gave evidence in support of his claim while Lal Bahadur, Additional, Additional District Cooperative Federation Officer appeared for the employer and after hearing both the parties the Tribunal rejected the claim of the employee holding that his services had come to an end on expiry of the period prescribed in his letter of appointment and further he was not entitled to any relief vide order dated 3.4.1991.
The employee being aggrieved of the order of Tribunal dated 3.4.1991 filed writ petition before the Court. The Court by means of the dated 11.4.2008 quashed the award dated 3.4.1991 and remanded the matter back to the Tribunal for adjudication afresh.
The preliminary objection raised by the petitioner was rejected by means of order dated 09.03.2010 which order has also been impugned in the petition.
Subsequent to rejection of the preliminary objection the matter was proceeded with and the statements of the employer along with one Vinod Kumar Pandey, Assistant Accountant and Accountant appeared for the employee were recorded while one Rakesh Kumar Singh, Senior Assistant posted at Lucknow appeared on behalf of the employer.
The Tribunal after considering the evidence adduced by both the parties was of the considered view that the employee has worked for more than 240 days in a calendar year preceding his termination and also that his termination was illegal and arbitrary and no procedure was followed and no notice was given to him. It was also considered that even in the inquiry conducted against the petitioner no opportunity was granted to him and accordingly while allowing his claim the order of termination dated 1.1.1985 was set aside and he was directed to be reinstated in service along with 50 per cent back-wages.
Counsel for the petitioner while assailing the said award has submitted that the same is illegal and arbitrary in as much as the employee was appointed for a fixed period of time on expiry of which his services came to an end and, hence, the order is illegal and arbitrary.
It has further been contended that the employee has not completed 240 days in a calendar year and on this ground also the relief as prayed by him could not have been granted.
Counsel for the respondent, on the other hand, has supported the impugned order. He submitted that the Tribunal has duly considered all the material and dealt with all the objections preferred by the employer and after categorically recording that the petitioner has completed 240 days in a calendar year and his services were terminated dehors the provisions of law. The oral order of termination dated 1.1.1985 was set aside and then there is no infirmity in the same requiring interference of the Court in exercise of powers under Article 226 of the Constitution.
The Court noted that,
With regard to validity of the award dated 23.4.2011 it is noticed that the Tribunal has considered the fact that the employee was appointed on 18.1.1985 on the post of Operator after due selection wherein he also faced interview and was placed in the sale of Rs 240-380/- and was posted at Gauriganj Cold Storage, District Azamgarh. He joined on the said post on 16.2.1982 and had worked diligently on the said post till he was transferred to Cold Storage at Shahganj (Jaunpur) on 11.7.1983.
He had worked at Cold Storage at Shahganj till 31.7.1984 subsequent to which he was transferred to Headquarters at Lucknow where he was allowed to work till 31.12.1984.
“The Court does not find any infirmity with the order of the Tribunal on the merits. It was fully established that the respondent employee has worked for more than 240 days in a calendar year and also that he had continuously worked with the petitioner from 16.2.1982 till 31.12.1984 and no procedure was followed prior to passing the order of termination and no salary in lieu of the notice was given and consequently he was entitled to the benefits of Section 6F of U.P. Industrial Disputes Act no material has been placed before him for taking contrary view than what has been taken by the Tribunal and accordingly the Court finds that there is no infirmity in the order of the Industrial Tribunal.
In the controversy the issue which has been raised by both the parties is as to whether an employee of the Cooperative Society can maintain an application pertaining to his service dispute taking recourse of the Act, 1965 or the Act, 1947. The Court has also considered the judgements of the Supreme Court as well as the statutory provisions and finds itself bound by the judgment of the Apex Court, in the case of Ghaziabad Zila Sahkari Bank Ltd (supra), where the Supreme Court after considering the provisions of the Act, 1965, in great details along with Section 135 of the said Act, have concluded that provisions of the Act, 1947 stands excluded with regard to the employees of the Cooperative Societies.
In the case, the workman had approached the Labour Court, Lucknow and preliminary objection regarding maintainability had been raised by the petitioners but was rejected by the Labour Court by means of order dated 09.03.2010 and accordingly, the Labour Court fell in error in rejecting the preliminary objections by means of order dated 09.03.2010. A Division Bench of the Court has also relied upon the judgment in the case of Ghaziabad Zila Sahkari Bank Ltd (supra) and from the above discussions, it is clear that the Labour Court had no jurisdiction to entertain and decide the said matter pertaining to a Society constituted under the Act, 1965″, the Court observed while allowing the petition.
“In light of the above, the impugned award dated 23.04.2011 passed by the Presiding Officer, Industrial Tribunal (2) U.P, Lucknow in in Adjudication Case as well as order dated 09.03.2010 are hereby set aside”, the Court ordered.