State Of U.P. Through Secy. Irrigation vs Mohd.Rais on 13 February, 2020

[Cites 34, Cited by 4]

Allahabad High Court

State Of U.P. Through Secy. Irrigation vs Mohd.Rais on 13 February, 2020

Equivalent citations: AIRONLINE 2020 ALL 210

Bench: Manish Mathur





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved
 
Case :- SERVICE SINGLE No. - 2451 of 1997
 
Petitioner :- State Of U.P. Through Secy. Irrigation
 
Respondent :- Mohd.Rais
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- R.K. Tewari,Rakesh K.Tewari
 

 
Hon'ble Manish Mathur,J.

1. Heard learned State Counsel appearing on behalf of petitioner and Sri Rakesh Kumar Tewari, learned counsel appearing on behalf of opposite party no.1. Opposite party no.2 being the Court concerned, is only a formal party and thus unrepresented.

2. Petition has been filed against award dated 20.11.1995 in Reference Case No.191/1990 regarding validity of termination order of opposite party no.1 dispensing with his services.

3. As per averments made in the petition, the aforesaid reference had been made in terms of provisions of U.P Industrial Disputes Act, 1947 owing to claim of opposite party no.1 that his services were dispensed with without complying provisions of Section 6-N, 6-P and 6-Q of the aforesaid Act of 1947. In reference so made, petitioner which is the Irrigation Department of State of U.P. was arrayed as respondent/employer. In the written statement filed by petitioner/employer, challenge was raised to the reference on the ground that petitioner/employer is a Government Department and would not be covered under the term 'Industry' as explained in Section 2(k) of the Act of 1947. It was also stated in the written statement that the claimant would not be 'workman' as explained under Section 2(z) since he had not been in continuous service for a period of 240 days in a calendar year as defined under Section 2(g) of the said Act.

4. Upon consideration of submissions and material available on record, the reference was allowed by means of impugned award dated 20.11.1995 holding that petitioner's termination from service amounted to retrenchment which was done without following the procedure indicated in Section 6-N of the Act.

5. Learned State Counsel appearing on behalf of petitioner has submitted that both findings recorded by the Labour Court are erroneous inasmuch as the submissions raised by petitioner/employer that he did not come within the meaning of term 'Industry' has not been adverted to in the impugned award and even the second ground of claimant not having completed 240 working days in a calender year has been rejected while taking into account holidays such as Saturday, Sunday and other gazetted holidays on which the claimant had actually not rendered any service. Learned counsel has relied upon judgment rendered by Hon'ble the Supreme Court in the case of Executive Engineer (State of Karnataka) versus K.Soma Setty & Ors. reported in (1997)5 Supreme Court Cases 434 to submit that petitioner being a Government Department is excluded from the purview of 'Industry'. Learned State Counsel appearing for petitioner has also relied upon a Full Bench decision of the High Court of Punjab and Haryana rendered in Executive Engineer, Public Health Division vs. Sanjay Rana & Another to contend that for the purposes of calculation of 240 days of working in a calender year, weekends and other gazetted holidays are required to be excluded.

6. Learned counsel appearing on behalf of opposite party no.1 refuting the submission advanced by learned counsel for petitioner has in turn placed reliance upon judgment rendered by Hon'ble the Supreme Court in the case of Des Raj vs. State of Punjab & Ors. reported in AIR 1988 Supreme Court 1182 to submit that a Government Department such as the Irrigation Department has already been held to come within the purview of term 'Industry' but the subsequent judgment rendered in the case of K. Soma Setty (supra) has been passed without noticing the aforesaid two judgments, which should therefore prevail. Learned counsel has also relied upon judgment rendered by Hon'ble the Supreme Court in the case of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation reported in AIR 1986 Supreme Court 458 to submit that for the purposes of calculation of 240 days of service, weekends and other gazetted holidays are required to be taken into account. Learned counsel has also relied upon a Full Bench Decision of this Court rendered in Ganga Saran vs. Civil Judge, Hapur reported in AIR 1991 Allahabad 114 to submit that in case of a conflict between judgments of Hon'ble Supreme Court consisting of equal authorities, the concerned High Court must follow judgment which appears to lay down the law elaborately and accurately irrespective of time line. Learned counsel also placed reliance on a Single Judge judgment rendered by High Court of Bombay in Executive Engineer, Yavantmal Medium Project Division & Anrs. vs. Anant S/o Yadao Murate & Another reported in 1997 ILLJ 91 wherein after considering the contradictory judgments of Hon'ble Supreme Court regarding Irrigation Department being an 'Industry' has followed the judgment rendered in the case of Des Raj (supra).

7. Upon consideration of argument raised by learned counsel for parties and perusal of record, particularly the impugned award, it is apparent that submissions raised by petitioner/employer regarding Irrigation Department not being an Industry has not been dealt with in the impugned award. However, the said question being a question of law and already adjudicated upon by Hon'ble the Supreme Court, is accordingly being adjudged in the present writ petition.

8. As has been indicated hereinabove, the Hon'ble Supreme Court in the case of Des Raj (supra) has held that an Irrigation Department of particular Government to be an Industry in terms of the Act of 1947. The said judgment has taken into account various other judgments rendered by Hon'ble the Supreme Court particularly a Constitution Bench judgment rendered in Bangalore Water Supply and Sewerage Board vs. A. Rajappa, reported in (1978)2 SCC 213. On the contrary, the subsequent judgment rendered by Hon'ble Supreme Court in case of K. Soma Setty (supra) has not adverted to the aforesaid judgments of Des Raj (supra) and Bangalore Water Supply and Sewerage Board (supra).

9. Upon perusal of Judgment rendered in the case of Desh Raj (supra) as compared to judgment rendered in the case of K. Soma Setty (supra), it is apparent that in the case of Desh Raj (supra) Irrigation Department has been held to come within the definition of Industry whereas judgment of K. Soma Setty holds otherwise. As such, there is clear conflict in the two judgments which are of Coordinate Bench.

10. The proposition of law required to be followed in conflicting judgments rendered by Hon'ble the Supreme Court by Benches of Coordinate strength has been discussed in the Full Bench of this Court in Ganga Saran (supra). The Full Bench after considering the relevant aspect has held as follows:

" 7. One line of decision is that if there is a conflict in two Supreme Court decisions, the decision which is later in point of time would be binding on the High Courts. The second line of decisions is that in case there is a conflict between the judgments of Supreme Court consisting of equal authorities, incidence of time is not a relevant factor and the High Court must follow the judgment which appears it to lay down law elaborately and accurately.

8. Similar situation arose before a Full Bench of Punjab and Haryana High Court in the case of M/s Indo Swiss Time Limited, Dundahera, vs. Umrao, AIR 1981 Punj & Har 213. What the Full Bench in the said case held is extracted below (at pp. 219-220 of AIR) :

"Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and therefore, of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortutious circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot be binding on the courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of coequal Benches of the Superior Court are earlier later is a consideration which appears to me as hardly relevant."

This decision was followed by the Bombay High Court in the case of Special Land Acquisition Officer vs. Municipal Corporation, AIR 1988 Bombay 9. The majority of Judges in the Full Bench held that if there was a conflict between the two decisions of equal benches which cannot possibly reconcile, the courts must follow the judgment which appear to them to state the law accurately and elaborately. We are in respectful agreement with the view expressed by the Full Bench of Punjab & Haryana High Court in the case of M/s Indo Swiss Time Limited v. Umrao, (AIR 1981 Punj & Har 213) (Supra) especially when the Supreme Court while deciding Qamaruddin's case (1990 All WC 308) (Supra) did not notice the U.P. amendment to S.115, C.P.C. and earlier decision of the Supreme Court."

11. The aforesaid aspect has also been dealt with by a learned Single Judge of the High Court of Bombay in which judgment rendered by Hon'ble the Supreme Court in the case of Des Raj (supra) has been followed:

"13. On considering all the concepts of industry and after reviewing the various tests which need not be repeated, as the tests were laid down in Bangalore Water Supply case (supra). The concept of sovereign and regal function was explained in Chief Conservator of Forests (supra). The Apex Court in para 13 specifically rejected an argument that welfare activities partake sovereign functions on the ground that if such a view was taken it would be eroding the view taken by it in Bangalore Water Supply's case. While observing that welfare activities partake sovereign functions the Apex Court did not notice this in Sub-Divisional Inspector of Post, Vaikam and Other (supra). Therefore, considering the various precedents of the Apex Court itself it is clear that the law declared by the Apex Court is that welfare activities do not necessarily partake sovereign functions. In Executive Engineer, State of Karnataka the reliance was placed on the judgment in the case of Union of India v. Jai Narain Singh (supra). In Union of India v. Jai Narain Singh, the Apex Court has merely noted that the Central Ground Water Board is not an Industry. It is not possible to discern from that judgment as to what were the reasons for the Apex Court to so hold. The other judgment relied on is that of State of Himachal Pradesh v. Suresh Kumar Varma & Anr. (supra). On a perusal of the fact and the law laid down it does not seem that the issue as to whether a particular department was an industry or not was in issue. What was in issue was whether the work charged employees who perform duty of transitory nature were appointed to posts and their appointments were on daily wage basis in an appointment to a post. The Apex Court therein noted that such appointments were not appointments to the posts and, therefore, no directions could have been given to re-engage them in any work or appoint them against existing vacancies. Thus the two judgments relied upon by the Apex Court to arrive at the conclusion arrived at in Executive Engineer, State of Karnataka (supra), nowhere have laid down the tests to hold as to why Irrigation Department is to be excluded from the definition of industry. As pointed out earlier, even the case of Sub Divisional Inspector of Post, Vaikam and Others was considered by the Apex Court in Physical Research Laboratory and explained the same in paragraph 10 of the judgment. After that, it proceeded to apply the tests as laid down in Bangalore Water Supply. In the case of Des Raj v. State of Punjab (supra) the Apex Court had considered the tests laid down in various earlier judgments of the Apex Court itself, culminating in the judgment in Bangalore Water Supply (supra) and thereafter had arrived at a conclusion that the Irrigation Department falls within the definition of Industry within the meaning of Section 2(j) of the I.D. Act. I am, therefore, of the considered opinion that the view laid down in Des Raj's case is the better in point of law and hence it is the view in Des Raj's case which will have to be followed. Once it is so held and as I have already set out earlier the work of the Irrigation Department of the State of Punjab and the material placed before this Court including the written submissions filed on behalf of the petitioners show that the projects undertaken by the irrigation department of the State of Maharashtra is discharging the same or similar functions as the Irrigation Department of the State of Punjab. It, therefore, follows that the projects of the Irrigation Department or work connected with that of the State of Maharashtra, on the same tests as applied by the Apex Court in Des Raj's case would fall within the definition of an industry for the purpose of Section 2(j) of the I.D. Act."

12. Upon applicability of said factors to the present case, it is clear that the judgment rendered by Hon'ble the Supreme Court in Des Raj (supra) has elaborately dealt with the question as to whether Irrigation Department of the Government would come within the definition of Industry or not. After considering the Constitution Bench Judgment of Hon'ble Supreme Court rendered in Bangalore Water Supply and Sewerage Board (supra), the Hon'ble Supreme Court has reached a definite conclusion that Irrigation Department of the Government would come within the definition of Industry.

13. Judgment rendered in the case of K. Soma Setty has placed reliance on the Judgment rendered by Hon'ble the Supreme Court in the case of State of H.P. vs. Suresh Kumar Verma and Another reported in (1996)7 SCC 562 and Union of India vs. Jai Narain Singh reported in 1995 Supp. (4) SCC 672 to hold that Irrigation Department of the Government comes within the purview of term Industry.

14. A reading of the aforesaid judgments cited in case of K. Soma Setty (supra) reveals that judgment of Suresh Kumar Verma (supra) has not held the Irrigation Department excluded from the definition of term Industry and was concerned only with regard to following of Recruitment Rules pertaining to fresh appointments being made to various services under the State or to a class of post under the State. In the case of Jai Narain Singh (supra) Hon'ble Supreme Court has held the Central Ground Water Board excluded from the definition of Industry. Matter pertaining to Irrigation Department of the Government has not been adverted to.

15. It is also clear that judgment rendered in K.Soma Setty (supra) has not taken into account the earlier judgment rendered by Hon'ble the Supreme Court in Des Raj (supra) and Bangalore Water Supply and Sewerage Board (supra).

16. As such, it would be appropriate and according to judicial propriety that judgment rendered in the case of Des Raj (supra) be followed. It is accordingly held that Irrigation Department of the Government would come within term of 'Industry' as defined in Section 2(k) of the Act of 1947.

17. So far as second question regarding calculation of gazetted holidays and weekends for the purposes of calculation of 240 days continuous service in a calender year as per Section 2(g) is concerned, it is clear that Hon'ble Supreme Court in the case of Workmen of American Express International Banking Corporation (supra) has specifically rejected the submission of Management that only those days should be taken into account for purposes of calculating the number of days on which the workman had actually worked though he had not so worked on other days. The import of judgment rendered by Hon'ble the Supreme Court is clearly to the effect that Industrial Disputes Act 1947 being in the nature of a beneficial enactment, the meanings and definition given in the Act should be given wide amplitude in order to grant benefit of same to the Workman. The import of Hon'ble the Supreme Court clearly is that the definitions given in the Act should not be constrained so as to render very purpose of the Act nugatory. In fact, the Hon'ble the Supreme Court has clearly held that deviating from the meaning as given in the Act would bring the object of Section 25-F (Corresponding to Section 6-N of U.P. Act of 1947) very close to frustration.

18. The relevant portion of the judgment rendered by Hon'ble the Supreme Court in the case of Workmen of American Express International Banking Corporation is as follows:

"5.Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief Under Section 25-F. is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in Section 25-B of the Industrial Disputes Act. In the present case, the provision which is of reliance is Section 25-B(2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is 'actually worked under the employer'. This expression, according to us, cannot mean those days only when me workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to Section 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression 'actually worked under the employer'. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression 'actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages-and we see no impediment to so construe the expression-there is no reason why the expression should be limited by the explanation. To give it any other meaning then what we have done would bring the object of Section 25-F very close to frustration. It is not necessary to give examples of how 25 F may be frustrated as they are too obvious to be stated.

19. It is thus clear that in the hierarchy of Courts, judgments rendered by Hon'ble the Supreme Court are binding in terms of Article 141 of the Constitution of India upon all other Courts and therefore the judgment rendered by Hon'ble Supreme Court will definitely have precedence over the judgment rendered by Full Bench of Punjab and Haryana High Court.

20. Although Hon'ble the Supreme Court in the case of Workmen of American Express International Banking Corporation (supra) has held that the term ''actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages, but at the same time it has also been held that the aforesaid expression should not be limited by explanation since to give it any other meaning would bring the object of Section 25-F of the Act very close to frustration.

21. If the term ''and was paid wages', is taken in a literal sense, it would be evident that a workman naturally would not be paid wages for weekends and other gazetted holiday on which a factory remains closed. A literal interpretation of this term therefore would necessarily mean that there can be no continuous service of 240 days in a calendar year of any workman because service of all workman would have to endure a break after every week. This obviously is not the purpose of the provisions of the Act of 1947. To give ''continuous service' such a meaning would render the very purpose of Section 6-N of the Act redundant.

22. The matter can also be considered from another aspect that Section 2(g) of the Act of 1947 defines continuous service as follows:-

"(g) 'Continuous Service' means uninterrupted services, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman, and a workman, who during a period of twelve calendar months has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry."

23. A reading of the aforesaid definition clearly indicates that continuous service means uninterrupted service which does not cease due to any fault on the part of workman. Clearly, the intention of statute, which is beneficial in nature for a workman, is to count as continuous, services which cease not on account of any fault on his part.

24. It is evident that the nature of the Industrial Disputes Act, 1947 is beneficial in nature and with regard to such legislation, Hon'ble the Supreme Court in the case of Steel Authority of India Ltd. and Ors. vs. National Water Front Workers and Ors. reported in (2001)7 SCC 1 has held as follows:

"9.After the advent of the Constitution of India, the State is under an obligation to improve the lot of the workforce. Article 23, prohibits, inter alia, begar and other similar forms of forced labour. The Directive Principle of State Policy incorporated in Article 38 mandates the State to secure a social order for promotion of welfare of the people and to establish an egalitarian society. Article 39 enumerates the principles of policy of the State which include welfare measures for the workers. The State policy embodied in Article 43 mandates the State to endeavour to secure, by a suitable legislation or economic organization or in any other way for all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Article 43-A enjoins on the State to take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishment, or other organizations engaged in any industry. The fundamental rights enshrined in Articles 14 and 16 guarantee equality before law and equality of opportunity in public employment. Of course, the Preamble to the Constitution is the lodestar and guides those who find themselves in a grey area while dealing with its provisions. It is now well settled that in interpreting a beneficial legislation enacted to give effect to the Directive Principles of the State Policy which is otherwise constitutionally valid, the consideration of the Court cannot be divorced from those objectives. In a case of ambiguity in the language of a beneficial labour legislation, the Courts have to resolve the quandary in favour of conferment of, rather than denial of, a benefit on the labour by the legislature but without rewriting and/or doing violence to the provisions of the enactment.

25.It is a well-settled proposition of law that the function of the Court is to interpret the statute to ascertain the intent of the legislature-Parliament. Where the language of the Statute is clear and explicit the Court must give effect to it because in that case words of the Statute unequivocally speak the intention of the legislature. This rule of literal interpretation has to be adhered to and a provision in the Statute has to be understood in its ordinary natural sense unless the Court finds that the provision sought to be interpreted is vague or obscurely worded in which event the other principles of interpretation may be called in aid. A plain reading of the said phrase, under interpretation, shows that it is lucid and clear. There is no obscurity, no ambiguity and no abstruseness. Therefore the words used therein must be construed in their natural, ordinary meaning as commonly understood."

25. In view of aforesaid definition, it is clear that non-working of a workman on weekends and gazetted holidays cannot be construed to be absence on his part or due to his fault. Giving any other meaning to the aforesaid definition of continuous services, would clearly do violence to the beneficial enactment, which clearly was not the purposes of the Act. In view of aforesaid circumstances, it is clear that weekends and gazetted holidays on which a workman is unable to render service not on account of his own fault would be counted for the purposes of continuous service of 240 days in a calender year as defined under Section 2(g) of the Act of 1947. In view of aforesaid, the conclusion drawn by the Labour Court for including weekends and other gazetted holidays in 240 days is correct since larger meaning of ''continuous service' has to be given in order to do complete justice to the beneficial provision of Section 6-N of the Act of 1947.

26. Section 6-N of the Act of 1994 is as follows:

"6-N.Conditions precedent to retrenchment of 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 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' average pay for every completed year of service or any part thereof in excess of six months; and

27. With regard to aforesaid provision of the Act, Hon'ble the Supreme Court in the case of Sudarshan Rajpoot vs. U.P State Road Transport Cooperation reported in (2015)2 SCC 317 has held as follows:

"27. 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,-

(a) 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;

Thus, non-compliance with the mandatory provisions under Section 6-N of the UPID Act rendered the retrenchment of the workman void ab initio in law"

28. As such, the proposition of law as emerges from the aforesaid judgment is that compliance with provisions of Section 6-N of the Act is mandatory in nature.

29. A reading of the impugned award clearly indicates that petitioner completed 240 days of continuous service on taking into account the weekends and gazetted holidays. The award also reveals admission on the part of petitioner/employer that no notice was required to be given to the workman in terms of Section 6-N of the Act of 1947 on the basis of twin grounds raised by petitioner/ employer before the Labour Court; as such it is an admitted fact that no notice as required mandatorily to be given under Section 6-N of the Act of 1947 was ever given to the opposite party no.1.

30. The mandatory condition of Section 6-N is that the person concerned should be a workman who is employed in any Industry and has been in continuous service for not less than one year under an employer and has been retrenched by that employer.

31. Reading of the written statement and of present writ petition indicates that the opposite party/employee being a workman was denied only on the ground of not being in continuous service. Rest of the definition of workman as defined under Section 2(z) of the Act have not been disputed by petitioner/employee. The term Industry has also been explained hereinabove to include the petitioner/employee. The term retrenchment has been defined under Section 2(s) of the Act to mean termination by the employer of service of a workman for any reason whatsoever other than as punishment inflicted by way of disciplinary action. It is admitted in the present case that opposite party no.1/ employee's service was terminated by reason that was otherwise than as punishment.

32. Therefore, it is clear that petitioner would now be deemed to be a workman who was employed in an Industry and was in continuous service for not less than one year under the petitioner/employee and was retrenched by the very same employee. As such, compliance of provisions of Section 6-N was mandatory prior to his retrenchment.

33. No other point has been pressed by learned counsel for parties.

34. Upon consideration indicated hereinabove, it is held that Irrigation Department of State Government would come within definition of Industry as envisaged under Section 2(k) of the Act of 1947 and the term ''continuous service' for a period of 240 days in a calendar year as defined under Section 2(g) of the said Act of 1947 would include weekends i.e. Saturday and Sunday as well as other gazetted holidays. In view of aforesaid, writ petition being devoid of merit is dismissed.

 
Order Date :- 13th February 2020
 
Subodh/-						 ( Manish Mathur,J.)

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