Full Judgment Text
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CASE NO.:
Appeal (civil) 1322 of 2008
PETITIONER:
Ghaziabad Development Authority & Anr
RESPONDENT:
Ashok Kumar & Anr.
DATE OF JUDGMENT: 15/02/2008
BENCH:
S.B. SINHA & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
[Arising out of SLP(C) No. 17711 of 2004]
S.B. SINHA, J.
1. Leave granted.
2. Appellant is an authority constituted under the Uttar Pradesh Urban
Planning and Development Act, 1973 (Act). It is a Local Authority within
the meaning of the General Clauses Act, 1897.
3. For its various projects, it appoints daily wagers on an ad hoc basis.
Respondent herein was appointed by the Authority on 1.4.1988 as a Amin.
Appellant contends that he was appointed on a periodical basis depending on
the order of sanction issued by the State of Uttar Pradesh from time to time.
On the premise that the sanction for the said appointment was granted only
upto 30.3.1990, he was disengaged from services.
An industrial dispute was raised by the respondent. The State made a
reference for adjudication thereof by the Presiding Court, Labour Court,
U.P., Ghaziabad which is to the following effect;
\023Whether the disengagement/deprivation, by the
employers, of their workman Shri Ashok Kumar s/o
Mahipal Singh, Amin from the work with effect
from 1.5.1990 is proper and lawful? If not, what
benefit/reliefs the workman concerned is entitled to
get, along with any other particulars?\024
3. Before the Labour Court, first respondent contended that since his
date of recruitment, i.e., on and from 1.4.1988 till 9.4.1990, he continued to
work. It, however, appears that his services had been dispensed with on
1.4.1990.
It was urged that as despite the fact that he had worked for more than
240 days in one year, the mandatory requirements of Section 6-N of the
Uttar Pradesh Industrial Disputes Act, 1947 had not been complied with, the
same was illegal and, thus, he was entitled to reinstatement with full back
wages. Appellant, however, in his written statement apart from denying and
disputing the averments made by the respondent that he had worked for
more than 240 days in the year preceding his retrenchment, categorically
stated that as the Government did not create any post, no work from the first
respondent could be taken and his services therefore, automatically came to
an end after 30.3.1990.
The learned Labour Court in its award opined that the respondent No.
1 had worked for more than 240 days in an year and as the requirement of
the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947 had
not been complied with, he is entitled to be reinstated in service with full
back wages.
It was, however, directed;
\023He be re-employed accordingly.\024
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4. A Writ Petition was preferred thereagainst by the appellant before the
Allahabad High Court. By reason of the impugned judgment, the said Writ
Petition has been dismissed.
5. Mr. Mahavir Singh, the learned senior counsel appearing on behalf of
the appellant, submitted that the Tribunal and consequently the High Court
committed a serious error in passing the impugned judgment insofar as it
failed to take into consideration that the services of the first respondent
having been availed only on a periodical basis, it was not necessary for the
appellant to comply with the provisions of Section 6-N of the Act. It was
furthermore urged that the Tribunal in the aforementioned factual backdrop
could not have directed reinstatement of the first respondent.
Ms. Tatini Basu, learned counsel appearing on behalf of the
respondent, on the other hand, supported the impugned judgment.
6. Although, a contention has been raised in the Special Leave Petition
that a statutory authority like the appellant is not an \021Industry\022 within the
meaning of Section 2(k) of the U.P. Industrial Disputes Act, 1947, the same
was not pressed.
7. Before us, the offer of appointment has not been produced. Whether
Respondent No. 1 continued to work on and from 1.4.1988 in terms of the
said offer of appointment or it was renewed from time to time on the basis of
grant of sanction thereof by the State of U.P. for specific periods is not
known.
We would, thus, have to proceed on the basis that the first respondent
worked with the appellant authority for the entire period between 1.4.1988
and 31.3.1990. If that period is taken during which the respondent remained
in service into consideration for the purposes of applicability of Section 6-N
of the U.P. Industrial Disputes Act, there is no doubt whatsoever that the
first respondent had worked for more than 240 days in a year from the date
of retrenchment.
It was, therefore, obligatory on the part of the appellant to comply
with the provisions of Section 6-N of the Act. It reads thus :
\0236-N. Conditions precedent to retrenchment of
workmen.\027No 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\027
(a) the workman has been given one month\022s
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;
(b) the workman has been paid, at the time of
retrenchment, compensation which shall be
equivalent to fifteen days\022 average pay for
every 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.\024
8. Section 6-N of the Act unlike Section 25B of the Industrial Disputes
Act, 1947 does not provide that working for a period of 240 days in the
preceding year would subserve the purpose. What is necessary under the
said provision is working for a period of 240 days in one year. Once, a
workman, has been in continuous service for not less than one year before
his retrenchment, one months\022 notice in writing indicating the reason thereof
or wages in lieu thereof, as also compensation equivalent to fifteen days\022
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average pay for every completed year of service or in part thereof in excess
of six months is imperative. Proviso appended to clause (a) of Section 6-N
of the Act provides that no notice would be necessary to be served, if the
retrenchment has been in terms of an agreement which specified a date for
the termination of service. The said proviso is not in pari materia with
Section 2(oo)(bb) of the Industrial Disputes Act, 1947.
Appellant has miserably failed to prove that the services of the first
respondent were taken under an agreement providing for a specific date for
termination thereof. Even otherwise, the same does not absolve the
employer from payment of compensation as envisaged under clause (b) of
Section 6-N of the Act. The Labour Court and consequentially the High
Court, therefore, in our opinion were correct in holding that the provisions of
Section 6-N of the Act had not been complied with.
9. The question which however, arises for consideration is as to whether
the Labour Court was justified in awarding the relief of reinstatement with
full back wages in favour of the workman.
First respondent was admittedly appointed on a daily wage of Rs.17/-
per day. He worked for a bit more than two years. It has not been disputed
before us that sanction of the State of U.P. was necessary for creation of
posts. The contention of the appellant before the Labour Court that the post
was not sanctioned after 31.3.1990 by the State was not denied or disputed.
If there did not exist any post, in our opinion, the Labour Court should not
have directed reinstatement of the first respondent in service.
A statutory authority is obligated to make recruitments only upon
compliance of the equality clause contained in Articles 14 and 16 of the
Constitution of India. Any appointment in violation of the said
constitutional scheme as also the statutory recruitment Rules, if any, would
be void. These facts were required to be kept in mind by the labour court
before passing an award of reinstatement.
10. Furthermore, public interest would not be subserved if after such a
long lapse of time, the first respondent is directed to be reinstated in service.
11. We are, therefore, of the opinion that the appellant should be directed
to pay compensation to the first respondent instead and in place of the relief
of reinstatement in service.
Keeping in view the fact that the respondent worked for about six
years as also the amount of daily wages which he had been getting, we are of
the opinion that the interest of justice would be subserved if the appellant is
directed to pay a sum of Rs.50,000/- to the first respondent. The said sum
should be paid to the respondent within eight weeks from date, failing which
the same shall carry interest at the rate of 12% per annum. The appeal is
allowed to the aforesaid extent. However, in the facts and circumstances of
this case, there shall be no order as to costs.