Allahabad High Court
U.P. Industrial Co-Operative ... vs The Presiding Officer, Labour Court-I ... on 13 October, 1995
Equivalent citations: (1996)IILLJ324ALL
JUDGMENT S.R. Singh, J.
1. Subject mutter of impugnment in the instant petition is the Award dated May 10, 1995 published on July 13, 1995 rendered by the Labour Court. Kanpur, in Adjudication Case No. (52 of 1993 consequent upon Reference by the Stale Govt. under Section 4-K of the U.P. Industrial Disputes Act. 1947 (In short the 'Act') vide order dated July 5, 1993. The dispute referred to the Labourcourt is extracted below:
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2. The Labour Court by means of the impugned Award has tilted the scale of justice in favour of the second respondent. It recorded a finding, vide order dated January 12, 1994 passed on application 9-D moved on behalf of the workman for summoning his personal file, that it was not in dispute that the workman (second respondent) was in the employment of the petitioner from November 1, 1987 to August 8, 1988. It has been held., vide Award in question that the period between November 1, 1987 to August 8, 1988 during which the workman worked as Salesman, had ripened into 240 days though under an unfair labour practice, his name was not shown in the muster roll maintained in the establishment and since the name of workman was not enumerated in the muster roll of the petitioner's establishment he would according to the Labour Court, be deemed to have been employed in permanent capacity and his services were dispensed with in a manner militating against the fair labour practice.
3. Sri V.K.Birla counsel for the petitioner canvassed that since the respondent - workman had not endured in continuous service "for not less than one year" under the petitioner, the provisions of Section 6N of the Act would not be attracted even if the respondent - workman be held to have completed 240 days of service in broken bits during his employment under the petitioner from November 1, 1987 to August 8, 1988. To paraphrase it, Sri Birla urged that as a condition precedent to the applicability of Section 6-N of the Act, two things have to be reckoned with viz. (i) the workman had been in employment "in continuous service for not less than one year under the employer" and (ii) during this period of one year of his employment, the workman had completed not less than 240 days of continuous service.
4. The aforesaid submission made by the learned counsel for the petitioner cannot be lent countenance. Section 2(g) of the Act defines "continuous service" to mean "uninterrupted service and includes service which may be interrupted merely on ground of sickness and/or authorised leave or an accident or a strike which is not illegal, or a lock out or cessation of work which is not due to any fault on the part of the workman and a workman, who during a period of 12 calendar months has actually worked in an industry for not less than 240 days shall be deemed to have completed one year of continuous service in the industry". It is evident that the first part of Section 2(g) defines as to what is meant by 'continuous service' while its second part creates a legal fiction which visualised actual work for not less than 240 days during a period of 12 calendar months as one year of continuous service. The expression means and includes in Section 2(g) makes the definition exhaustive. 'Continuous Service' means 'uninterrupted Service', but interruption caused due to any of the grounds enumerated in the Section is to be discounted. The second part of Section 2(g) in my opinion, carves out an exception to what is visualised by 'continuous service' for not less than one year and equates actual service whether uninterrupted or interrupted due to any ground whatsoever, rendered for a period of 240 days, during a period of 12 calendar months "to continuous service of one year". The question is what is meant by the expression "during a period of 12 calendar months". In my opinion, the expression aforestated means "in the course of 12 calendar months" and it does not necessarily mean "throughout 12 calendar months" preceding the relevant date from which the calculation is to be made in a given case. But the judicial pronouncements of binding character have construed the expression otherwise. In Sur Enamel and Stamping Works Ltd. v. Their Workmen (1963-II-LLJ-367) the Supreme Court while construing the expression 'continuous service for not less than one year' occurring in Section 25F of the Industrial Disputes Act, 1947 (in short the Central Act) observed as under:
"Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months, he worked for not less than 240 days."
5. Provisions of Sections 2(g) and 6-N of the U.P. Industrial Disputes Act, 1947, have been construed in the tike manner by a learned Judge of this High Court in Baijnath Bhattacharya v. Labour Court, Allahabad and Anr. 1995 (70) FLR 14. The position has however been altered since December 19, 1964 where after the first of the twin conditions formulated by the Apex Court in Sur Enamel (supra) need not be fulfilled for invoking Section 25F of the Central Act or Section 6-N of the State Act. It may be noticed that Section 2(eee) of the Central Act which defined the expression "Continuous service" was in pari materia to the first part of Section 2(g) of the U.P. Industrial Disputes Act, 1947, the second part of which is couched in a language used in Section 25B of the Central Act as it stood before its substitution by Act 36 of 1964 w.e.f. December 19, 1964. As observed by the Supreme Court in Surendra Kumar Varma's case (1981-I-LLJ-386) Section 25B as it read prior to Act 36 of 1964, in the light of the then existing Section 2(eee) certainly lent itself to the construction that a workman had to be in service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one year's service so as to attract provision of Section 25F but Section 2(eee) has been omitted and Section 25B recast by Act 36, of 1964. The marginal title of Section 25B as stood recast by Act 36 of 1964 is "definition of Continuous Service" while previously its marginal title was 'Definition of one year of continuous service". Section 25B(2) of the Central Act as it now stands, creates repugnancy to Section 2(g) of the Act in so far as it provides that -
"(2) where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months he shall be deemed to be in continuous service under an employer -
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case."
6. Fortified by the pronouncements afor-estated it can, indubitably, be said that the language employed in Section 6-N read with Section 2(g) of the Act suggests fulfillment of the twin conditions of a workman being in employment of an Industry for one whole year and of having actually worked for not less than 240 days during the said period of one year as a sine-qua-non for attracting Section 6-N of the Act but the question that emerges for consideration by the Court is if Act 36 of 1964 is fraught with any consequence of bringing about any alteration in the legal position aforestated. In my opinion, it does have that effect. The reason is that the definition of 'continuous service' given in Section 25B of the Central Act as it stands substituted by Act 36 of 1964 shall over-ride the definition of the said term as enshrined in Section 2(g) of the U.P. Industrial Disputes Act, 1947 and to the extent of inconsistency/repugnancy. Sec 2(g) shall be void by virtue of Article 254(1) of the Constitution of India. It has been held by the Apex Court in Gauri Shankar Gaur v. State of U.P. AIR 1994 SC 167 at p. 185 that "if the Parliament in exercising its power under proviso to Article 254(2) makes a law adding, amending, or repealing the Union Law, predominance secured by the State Law by the assent of the President is taken away and the repugnant State Law though it becomes valid by virtue of President's assent, would be void either directly or by its repugnance with respect to the same matter". The Apex Court went on to hold" the Parliament may not expressly repeal the State Law and by necessary implication, the State Law stands repealed to the extent of repugnancy, as soon as the subsequent law of the Parliament creating repugnancy is made". In my opinion Section 2(g) of the Act stands impliedly repealed to the extent it is inconsistent with Section 25B(2) of the Central Act. The predominance which the U.P.Act has, by virtue of Section 6-R(2) over the Central Act, in respect of determination of the rights and liabilities of the employers and workmen, will make no difference. It may be noticed that Section 2(g) falls outside the periphery of Sections 6- J to 6-Q which provisions alone, according to Section 6-R (i) of the Act, have been imparted predominance over "anything inconsistent therewith contained in any other law" and not the definition of "continuous service".
7. In Surendra Kumar Verma v. Industrial Tribunal (supra) the concerned workmen were in the employment under an Industry from May 4, 1974 to January 29, 1975 and during this period, they had worked for more than 240 days. As the period from May 1974 to January 29, 1975 fell short of one year, it was conceded before the Labour Court that there was no breach or violation of the provisions of Section 25F of the Industrial Disputes Act, 1947, a provision which is in pari materia with Section 6-N of the U.P. Industrial Disputes Act, 1947. The concession was impeached before the Hon'ble. Supreme Court and it was urged that there was non-compliance with the requirement of Section 25F of the Industrial Disputes Act, 1947. The Supreme Court reckoned in notice its earlier decision rendered by a Three Judge Bench in SurEnamel & Stamping Works Ltd. v. Their Workmen (supra) as also the related provisions including Section 25B as it stood before and after its amendment by Act 36 of 1964 and held that according to the amended provisions of the relevant statue "a workman who has actually worked under the employer for not less than 240 days during a period of 12 calendar months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year". The Supreme Court went on to hold that "it is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in service of the employer for one whole year".
8. In Workman of American Express International Banking Corporation (1985-II-LLJ-539) the concerned workman had joined the service of the American Express International Banking Corporation on November 4, 1974 as a Typist -clerk in a temporary capacity and he was employed as such with number of short breaks till October 31, 1975 i.e. he was in the employment for a period of less than 12 calendar months, but he had actually worked under the employer for not less than 240 days. The provisions of Section 25F read with Section 25B of the Industrial Disputes Act, 1947 were held applicable to the facts of that case and the concerned workman was directed to be restituted to service with full back wages. The view taken in Baijnath Bhatta Chariya v. Labour Court Allahabad 1995 (70) FLR 14 reliance on which was vehemently placed by the learned counsel appearing for the petitioner cannot be countenanced. It is true that the learned Judge in Baijnath's case (supra) did take notice of the pronouncement of the Supreme Court in Surendra Kumar (supra) but I do not fish out any ground on which the view taken by the Supreme Court in Surendra Kumar (supra) could be distinguished particularly in view of the above discussion. The decision by the Supreme Court in 1980 (4) SCC 443 (supra) that it is enough that the "workman has worked for 240 days in a period of 12 calendar months" and "it is not necessary that he should have been in service of the employer for one whole year", has been distinguished, it may be observed with due respect to the learned Judge, on incorrect quotation of Section 2(g) of the Act. The Section as quoted by the learned Judge in the aforesated decision seems to have been picked out from Sur Enamel's case (supra) as quoted in the Uttar Pradesh Local Acts Vol. VI by V.K.S. Chaudhary 2nd Edition P-53 and the effect of Act 36 of 1964 has been ignored possibly on the basis of the Apex Court's decision in U.P. Electric Supply Company v. R.K. Shukla (1969-II-LLJ-728) where the Apex Court, it may be observed, was not called upon to consider the effect of inconsistency and repugnancy between Section 2(g) of the Act and Section 25B of the Central Act. Once Section 2(g) of the Act is held to be void to the extent it is inconsistent with Section 25B(2) of the Central Act, the predominance which the Act has by virtue of Section 6-R(2) in respect of determination of the rights and liabilities of the employer and workman, would make no difference in that Section 2(g) of the Act falls outside Section 6- J to 6-Q and therefore, while construing Section 6-N, reliance has to be placed on Section 25B(2) of the Central Act which visualises a situation not comprehended by Section 2(g) of the Act so far as the meaning of 'continuous service' is concerned.
9. It was next urged by Sri Birla that the second respondent was not a 'workman' within the meaning of Section 2(s) of the Act in that he was not appointed by or on behalf of the Managing Director of the Society who alone was competent to appoint a person on behalf of the petitioner. Sri Arun Kumar Gupta appearing for the second respondent tried to repudiates the submissions and canvassed that it was beyond the pale of dispute that the second respondent was the workman and further that the Labour Court cannot transgress beyond the dispute referred to it. According to him, the dispute referred to the Labour Court did not admit of any enquiry into the question whether the second respondent was a workman within the meaning of Section 2(s) of the Act and all that was required to be adjudicated by the Labour Court was whether deprivation of the second respondent from the work with effect from August 8, 1988 was proper and valid and if not, what relief the . workman was entitled to. In my opinion, the dispute as referred to the Labour Court, was comprehensive enough to permit adjudication on the question as to whether the second respondent was at all a workman so as to be entitled to be a recipient of the benefits favouring from Section 6-N of the Act. The respondent No. 2 cannot be said to have been employed by the petitioner unless he had been employed with express or implied authority of the "executive officer" i.e. the appropriate officer competent to make appointment on behalf of the petitioner as provided in Section 2(h) (iii) of the Act. It was the case of the petitioner that the Branch Manager was vested with no power to make regular appointment on behalf of the petitioner-establishment. The counsel for the petitioner however, makes no bones about the fact that the Branch Manager could make casual/temporary appointment at the various sales centre in connection with Exhibition and Extension counter. The second respondent, it was alleged by the petitioner in its written statement, was engaged by the petitioner/Branch Manager in connection with exhibition and extension counter purely on casual and temporary basis from November 1, 1987 to January 29, 1988 and January 30, 1988 to August 8, 1988 for which period, he had been paid his wages. The finding of the Labour Court that the second respondent was appointed on regular basis does not appear to be rooted in any evidence on record. The Labour Court was not justified in sussing out the conclusion that the second respondent was in the employment of the petitioner on regular basis merely because his name was not shown in the muster rolls maintained by the establishment. The Labour Court before holding that the second respondent was employed on regular basis ought to have adverted itself to the question whether the Branch Manager was empowered to make appointment and if not whether his appointment was expressly or impliedly approved of by the Managing Director and in no case it could come to that conclusion without any valid material on record. Inter twined with this questions is the question whether the second respondent was appointed for specific purpose and for specific period. It cannot be repudiated that the appointment for specific purpose and for specific period comes to an end automatically on fulfillment of the object and expiration of the period of appointment. It does to amount to retrenchment in view of the definition of the term retrenchment as delineated in Section 2(oo) of the Central Act as amended by Amending Act by 1984 which definition would prevail over the definition of the term given in Section 2(s) of the U.P. Industrial Disputes Act, 1947 by virtue of Article 254 of the Constitution. The Labour Court having failed to absent itself to this question, the Award given by it stands vitiated. It is also vitiated for the failure of the Labour Court to record a categorical finding on number of days for which the second respondent had "actually worked" under the petitioner from November 1, 1987 to August 8, 1988. Since the total period for which the second respondent was in the employment of the petitioner is less than one year, he could not get the benefit of Section6-N of the Act unless it is found that he had 'actually worked for 240 days' dur-ing the period of his employment which was admittedly less than one year. The matter has to be re-examined by the Labour Court afresh in accordance with law and in the light of the observations indicated above.
10. In the result, the petition succeeds and is allowed. The impugned Award is quashed. The Labour Court is directed to process its award afresh in accordance with law within a period of four months from the date of production of a certified copy of this judgment.