Uttarakhand High Court
Between vs Dhanvir Singh & Another on 5 October, 2021
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 05TH DAY OF OCTOBER, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) No. 1427 of 2012
BETWEEN:
Uttarakhand Jal Sansthan & another ...Petitioners
(By Mr. Rakesh Thapliyal, Senior Advocate assisted by Mr.
Mukesh Kaparuwan, Advocate)
AND:
Presiding Officer, Labour Court,
Uttarakhand & another ...Respondents
(By Mr. Ramesh Chandra Joshi, Brief Holder for respondent no.
1 and Mr. M.C. Pant, Advocate for respondent no. 2)
JUDGMENT
Petitioner is the employer. He has challenged the award given by Labour Court,
Dehradun on 09.01.2012 in Adjudication Case No. 61 of 2006. By the said award, learned Labour Court has declared termination of service of respondent no.2 to be unjust and illegal on the ground that it amounts to retrenchment and procedure laid down in Section 6 (N) of U.P. Industrial Disputes Act was not followed.
2. The employer has challenged the said award on the ground that the workman (respondent no. 2) was a probationer, who was disengaged during extended period of probation, therefore, in view of Section 2 (oo) (bb) of Central Industrial Disputes Act, 1947, his disengagement would not amount to retrenchment.
23. Thus the sole question, which falls for consideration of this Court is whether U.P. Industrial Disputes Act, 1947 or the Central Industrial Disputes Act, 1947 would apply to the case.
4. Before proceeding further, it would be apposite to peruse the definition of 'workman' as given in U.P. Industrial Disputes Act, 1947 (State Act), which is reproduced below:
"2. Definitions.-
(z)'Workman' means any person (including apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to any Army Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity;
(iv) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
5. In the aforesaid definition, one would find that an apprentice is also included in definition of workmen. The expression 'apprentice' has been defined in Section 2(a) of the State Act, as a person employed in an industry for the purpose of training therein. Thus, under the State Act there is no distinction made between employees based on nature 3 of their appointment/engagement and anyone, who is employed in an industry to do skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward is a workman, unless he falls in anyone of the four excepted categories given in Section 2(z) of the Act.
6. Thus, in my humble opinion, under the State Act, a person appointed on probation is also a workman and is entitled to the protection available to a workman under U.P. Industrial Disputes Act.
7. Hon'ble Allahabad High Court in the case of Micro Abrasives (India) Limited, Dhampur, District Bijnore Vs. Dhanvir Singh & Another, reported in 2001 UPLBEC 669 after relying upon the law laid down by Hon'ble Supreme Court in the case of Om Prakash Maurya Vs. U.P. Cooperative Sugar Factories Federation, Lucknow AIR 1986 SC 1844, has held that discharge of a probationer, upon expiry of maximum probation period, shall amount to retrenchment. Relevant extract of the judgment rendered in the case of Micro Abrasives (India) Limited (supra) is reproduced below:-
"7. The next question in this case is whether clause (bb) of Section 2 (oo) of the Industrial Disputes Act, 1947 (Central Act) is applicable in State of Uttar Pradesh? The condition of the service of workmen in Uttar Pradesh is governed by the provisions contained in U.P. Act. The question whether definition of the word "retrenchment" as defined in Section 2(s) of the U.P. Act or amended definition under clause (bb) of Section 2(00) of Central Act would apply in State of U.P. came up for consideration before the Division Bench of this Court in Jai Kishun (supra). The Division Bench examined both the definitions of retrenchment contained in U.P. Act and Central ct and held that the provisions of U.P. Act would prevail over the Central Act in the matters relating to rights and liabilities of employer and workmen in a case of retrenchment and in a matters of retrenchment Section 6-N of the U.P. Act would be 4 applicable. The observation of the Division Bench in paragraphs 25 and 26 is extracted below:-
"25. From a perusal of the two provisions quoted above, it is clear that an inconsistency exists in regard to the applicability of the provisions contained in Chapter V-A of the Central Act and the provisions contained under Sections 6-J to 6-Q of the U.P. Industrial Disputes Act. In this connection, we find that the Industrial Disputes Act, 1947 came into force on April 1, 1947. The U.P. Industrial Dispute Act came into force on February, 1948 after receiving the assent of the Governor General of India under Section 76 of the Government of India Act, 1935, Section 6-R has been added to the U.P. Industrial Disputes Act in the year 1957 by U.P. Act No. 1 of 1967. The President had accorded assent to U.P. Act No. 1 of 1957 on December 29, 1996. It was published in the Gazette of Uttar Pradesh dated January 2, 1957. So far Section 25-J of the Central Act is concerned, it was existing since prior to passing of U.P. Act No. 1 of 1957. Section 25-J of the Central Act was also amended by Act No. 36 of 1964 with effect from 19.12.1964 but by this amendment only proviso to sub-section (1) of Section 25-J was added. The other provisions which are material namely, sub-section (1) and sub-section (2) of Section 25-J remained the same as existing from before. From the above facts, it is clear that addition of Section 6-R to the U.P. Act was made by an amendment in the year 1957 i.e. subsequent to the existing provision contained under Section 25-J of the Central. Article 254 of the Constitution is attracted in cases where there exists conflict between the two provisions of the Statutes, one passed by the Parliament and the other, by the State Legislature. In such cases, it is the State law which is to prevail provided it has received the assent of the President and has been passed subsequent to the Act made by the Parliament. This position is clear from clause (2) of Article 254 of the Constitution. As observed earlier, inconsistency exists between the two provisions namely, Section 25-J of the Central Act and Section 6-R of the U.P. Act. Both cannot operate simultaneously and one will have to give way to the other. Provisions contained under Section 6-R of the U.P. Act being a subsequent law, having been passed after receiving assent of the President shall override and provisions contained under Section 25-J of the Central Act as it was already existing since prior to 1957. The subject-matter of legislation is undisputedly in the concurrent list. Therefore, we hold that in view of Article 254(2) of the Constitution, provisions of Section 6-R of the U.P. Act will prevail over the provisions of Section 25-J of the Central Act, i.e. to say, in the State of Uttar Pradesh, in the matters relating to rights and liabilities of employers and workmen, in a case of 5 retrenchment, Section 6-N of the U.P. Act will be applicable.
26. Once we have come to the conclusion that the provisions of the U.P. Act will be applicable in the State of Uttar Pradesh in the matters relating to retrenchment, there remains no difficulty in holding that the definition of the work 'retrenchment' as given under the U.P. Act will be applicable. It is well settled that the word which has been defined in a statute has to be given the same meaning whenever occasion arises while applying the provisions of the statute concerned. The definition provided in a statute is not to be applied while interpreting the provisions of a different Act. The result would, therefore, be that the petitions in hand would be covered by the decisions of the Hon'ble Supreme Court referred to in the earlier part of this judgment holding that cessation of employment brought about without complying with the provisions of Section 25-J of the Industrial Disputes Act, as then stood, would be illegal and void. The decisions of the Hon'ble Supreme Court are based on unamended definition of the word 'retrenchment' as defined under Section 2 (oo) of the Industrial Disputes Act, which was the same as it is under the U.P. Act."
10. The next question is whether a probationer can be terminated or discharged from the service without complying the provisions of the Section 6- N of the U.P. Act? If the employer terminates the services of a workman who had been in continuous service for one year, unless it falls within one of the exceptions mentioned in clauses (a) to (c) of Section 6-N, it amounts to retrenchment. The Constitution Bench of the Apex Court in Punjab Development and Reclamation Corporation Ltd. Chandigarh (supr considered unamended Section 2(00) of the Central Act and held that "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section." None of the clauses (a) to
(c) apply to the discharge of respondent nor the petitioner's case is that the respondent was terminated under any clauses (a) to (c) of Section 6-N. From the records of this case, it is clear that the respondent had worked for a period of 240 days. The claim made by respondent in paragraph 2 of the written statement that he had worked for 240 days had not been specifically denied before the Labour Court by the petitioner in 12001 the rejoinder statement. The Labour Court had recorded a finding of fact that no warning letter or charge-sheet with regard to strike was given by petitioner to the respondent. It further recorded the finding that the respondent had worked from 1.1.1987 to 16.3.1988 for a period of more than 6 one year. Therefore, the claim of the respondent that he worked for a period of 240 days had not been specifically disputed by the petitioner before the Labour Court nor any evidence was led to disprove the claim, therefore, it is clear that the respondent worked for more than 240 days. Even if it is assumed that the respondent was on strike from 10.12.1987 to 16.2.1988, since he worked continuously from 1.1.1987 till 9.12.1987 he completed 240 days in a calendar year. The respondent has worked for the period 240 days, therefore, he could not be retrenched from the service without com plying with the mandatory provision of Section 6-N of the U.P. Act.
11. The next question is whether termination or discharge of a probationer after expiry of maximum probationary period amounts to retrenchment? The terms of the appointment letter, Annexure-I to the writ petition, clearly demonstrate that the respondent was appointed on 1.1.1987 on probation for a period of six months which could be extended further for another period of six months. The petitioner claimed that they have extended the probationary period of the respondent w.e.f. 1.7.1987, for a period of six months. The extended probation period of six months came to an end on 31.12.1987. The respondent continued in service even after the expiry of maximum probationary period. The petitioner terminated his service on 15.3.1988 w.e.f. 16.3.1988, after the maximum probationary period of one year, as per the terms of appointment letter had expired, which was not permissible. After expiry of maximum probation period the respondent became regular employee of the petitioner. He could not be discharged or terminated from the service treating him to be a probationer, without complying with the provisions of Section 6-N of the U.P. Act. The Apex Court in State of Punjab v. Dharam Singh, AIR 1968 SC 1210, Om Prakash Maurya v. U.P. Co-operative Sugar Factories Federation. Lucknow, AIR 1986 SC 1844 and M.K. Agarwal v. Gurgaon Gramin Bank, AIR 1988 SC 286, has laid down that after expiry of maximum probationary period the employee could not be treated on probation but shall be deemed to have been confirmed. Even though these decisions were not concerned with the Industrial Disputes Act but the general principle laid down in these decisions cannot be ignored. The decisions relied upon by the learned Counsel for the petitioner in Krishnadevarya Education Trust (supra), C.P. Shah (supra), Oswar Pressure Die Casting Industry (supra), Pandey Madan Moha Prasad Sinha (supra), Kunwar Arun Kumar (supra), K.V. Krishnamani (supra Ashok Kumar Misra (supra), K.K. Shukla (supra), (Shri) Dhanji Bhai Ramjibh (supra) and Sharad Chandra 7 Manohar Neva (supra) are of no help to the petitioner."
8. Since learned Labour Court has recorded a finding that employer had not followed the procedure laid down in Section 6(N) of the State Act while terminating service of the workman, therefore, Section 6 (N) of the State Act is reproduced below for ready reference:
"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
(c) notice in the prescribed manner is served on the State Government."
9. It is not in dispute that U.P. Industrial Disputes Act, 1947 is applicable in State of Uttarakhand also by virtue of provisions contained in Section 86 of U.P. Reorganisation Act, 2000.
10. In the case of Muir Mills Unit of N.T.C (U.P.) Ltd Vs. Swayam Prakash Srivastava & another, reported in 2007 (1) SCC 491, it has been held by Hon'ble Supreme Court in paragraph no. 50 that provision contained in Section 2 (oo) of the Central Industrial Disputes Act, 1947 is not applicable to U.P. Industrial Disputes Act, 1947. Similar view has been 8 taken by Hon'ble Supreme Court in the case of U.P. State Sugar Corporation Ltd. Vs. Om Prakash Upadhyay, reported in (2002) 10 SCC 89, which was followed in the case of Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Limited, reported in (2014) 11 SCC 85. Paragraph nos. 26, 26.1 & 26.2 of the judgment rendered in Bhuvnesh Kumar Dwivedi (supra) are reproduced below:
"26. The learned senior counsel for the respondent has not brought in his argument to counter the above legal contention except contending that the provision of Section 2(oo)(bb) of the ID Act would be applicable to the fact situation of the case as the appellant has been in contract employment in the project. But, we are inclined to hold that Section 2(oo)(bb) of the ID Act is not attracted in the present case on two grounds:
26.1. Firstly, in the light of the legal principle laid down by this Court in the case of U.P. State Sugar Corpon. Ltd., the provisions of the U.P. ID Act remain unaffected by the provision of the ID Act because of the provision in Section 31 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956.
Hence, Section 2(oo)(bb) is not attracted in the present case.
26.2. Secondly, the claim of the respondent that the appellant was a temporary worker is not acceptable to us. On perusal of facts, it is revealed that his service has been terminated several times and he was subsequently employed again till his service was finally terminated on 27-7-1998. His brief periods of contracts with the respondent have been from 28-12-1992 to 28-12-1993 for the first time, from 3-4-1994 to 29-12-1994 for the second time, from 10- 1-1995 to 5-1-1996 for the third time, from 16-1-1996 to 11-1-1997 for the fourth time, from 20-1-1997 to 21-1-1998 for the fifth time and from 27-1-1998 to 27-7-1998 for a final time at the end of which his service was terminated."
11. Thus in the humble opinion of this Court provision contained in Central Industrial Disputes Act, 1947 will not be applicable in the present case and 9 learned Labour Court was justified in relying upon the provisions contained in the U.P. Industrial Disputes Act.
12. Learned Senior Counsel appearing for the petitioners has relied upon the judgment rendered by Hon'ble Supreme Court in the case of Escorts Limited Vs. Presiding Officer and Another, reported in (1997) 11 SCC 521, in support of his contention that termination of service of respondent no.2, made as per term of his appointment, does not amount to retrenchment under Section 2 (oo) (bb) of the Central Industrial Disputes Act, 1947. The said submission does not help the petitioner for the reason that Section 2 (oo) (bb) of the Central Act is not applicable in the present case, as held by Hon'ble Supreme Court in the aforesaid decisions.
13. Even otherwise also, in the case of Management of Karnataka State Road Transport Corporation, Bangalore Vs. M. Boraiah and Another, reported in (1984) 1 SCC 244, Hon'ble supreme Court after discussing the entire law on the subject has held that termination of service of probationer for unsuitability amounts to retrenchment, as such compliance with the requirements of Section 25-F in case of such termination is essential. Relevant extract of the said judgment is reproduced below:-
"13. Once the conclusion is reached that retrenchment as defined in Section 2(oo) of the Disputes Act covers every case of termination of service except those which have been embodied in the definition, discharge from employment or termination of service of a probationer would also amount to retrenchment. Admittedly the requirements of Section 25-F of the Disputes Act had not been complied with in these cases. Counsel for the appellant did not very appropriately dispute before us that the necessary consequence of non- compliance of Section 25-F of the Disputes Act in a 10 case where it applied made the order of termination void. The High Court, in our opinion, has, therefore, rightly come to the conclusion that in these cases the order of retrenchment was bad and consequently it upheld the Award of the Labour Court which set aside those orders and gave appropriate relief. These appeals are dismissed. There would be one set of costs. Consolidated hearing fee is assessed at Rs 5000. This amount shall be over and above the deposit made by the appellants to meet the costs of the respondents.
14. It is settled position in law that this Court while exercising power under Article 227 of the Constitution does not act as a Court of Appeal. Hon'ble Supreme Court in the case of Radhey Shyam & another v. Chhabi Nath & others, reported in (2009) 5 SCC 616 has held as under:
"31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law."
15. In such view of the matter, this Court does not find any reason to interfere with the impugned award.
16. Accordingly, the writ petition fails and is dismissed.
17. There will be no order as to costs.
(MANOJ KUMAR TIWARI, J.) Shubham