Allahabad High Court
U.P. State Sugar Corporation Ltd. vs Presiding Officer, Labour Court And ... on 17 May, 2000
Equivalent citations: [2000(85)FLR879], (2001)IIILLJ1013ALL
JUDGMENT Aloke Chakrabarti, J.
1. This writ petition at the instance of the employer was heard along with Writ Petition No. 3884 of 1994, Om Prakash Upadhya v. The Labour Court and Anr., filed at the instance of the workman and both were having the same award as subject matter of challenge.
2. A dispute as raised relating to loss of employment of the workman concerned which ultimately ended in the impugned award granting reinstatement but refusing back wages. The workman challenged the award to the extent it refused back wages. The contention of the employer is against reinstatement as the workman was appointed as Apprentice, initially for one year from January 29, 1987 to January 20, 1988 and thereafter on the oral request of the workman he was again appointed as apprentice for a further period of one year between April 1988 and April 20, 1989.
3. Learned counsel for the petitioner employer contended that as the petitioner's employment was under the Apprentice Act, he is not a workman within the meaning of U.P. Industrial Disputes Act and therefore, the award requires to be quashed. The second contention is that the employment of the workman came to automatic end on expiry of the period of employment itself indicated by the appointment letter and, therefore it did not amount to retrenchment within the meaning of Section 6-N of U.P. Industrial Disputes Act. Law has been relied on as decided in the case of Municipall Committee Tauru v. Harpal Singh and Ors. 1999-I-LLJ-1028 (SC), Ram Dular Paswaft and Ors. v. P. O. Labour Court and Ors., 1999-I-LLJ-451 (Pat-DB), Vinod and Ors. v. District Judge, Pratapgarh and Ors., 1996 (73) FLR 1420; Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors., 1998-II-LLJ-15 (SC), Mentitec India Ltd. v.
State of U.P. and Ors., 1996-I-LLJ-23 (All), Achudan v. Babu 1997-I-LLJ-621 (Ker) and Sharma Das and Ors. v. The Superintendent and Ors., 1997 (75) FLR 945.
4. On behalf of workman, it has been contended that the employer has concocted papers to show employment of the workman as Apprentice and in fact the workman was in employment for the entire two years' period.. In particular contention has been made with regard to appointment as apprentice for the second period of employment and the document at Annexure No. 2 to the writ petition dated April 20, 1988 was referred to for showing that the document was a concocted one when compared to agreement of apprenticeship to apprentice at the time of first appointment. It has been contended that, thereof when the workman was in regular employment, he was workman within the meaning of the Act and award was valid. It has been further contended that even if the first order of employment is accepted as one of apprenticeship, the document at Annexure No. 2 to the writ petition makes it clear that the same was a concocted one and no appointment of apprentice is effective thereby and the workman when was admittedly in employment of the employer, the same was an ordinary employment and, therefore, he was a workman within the meaning of the Act.
5. Further contention has been made that ever if second period of employment was as apprentice, the same was not under the Apprentice Act; as requirement of law for creation of such relationship had not been satisfied. It has been contended that even in such case the employment of workman as apprentice was governed by the definition of workman under the U.P. Industrial Disputes Act and Labour Court was entitled to pass award.
6. The last contention has been made on behalf of workman that as the document at Annexure No. 2 to the writ petition is a concocted one and appointment was an ordinary appointment, it was not time bound and, therefore the impugned termination being in accordance with Section 6-N, the impugned award is valid and proper.
7. In support of such contention learned counsel for the workman relied on law decided in the cases of Workmen of American Express International Bank Corporation v. Management of American Express 1998-II-LLJ-539 (SC), Shambu Nath Goyal v. Bank of Baroda and Ors., 1983-II-LLJ-415 (SC), Shailendra Nath Shukla and Ors. v. The Vice Chancellor, Allahabad University and Ors., 1997-I-LLJ-621 (Ker), Karuna Shankar Tripathy and Ors. v. State of U. P. and Ors., 1995-III-LLJ (Suppl)-60 (All), H.B. Vinobha v. The Managing Director, Hindustan Photo Films and Ors., 1999-III-LLJ (Suppl)-60 (Mad), Reptakos Brett & Co. v. The Labour Court (Vth), Kanpur and Ors. 1999-III-LLJ (Suppl)-1016 (All) and Executive Engineer v. Madhukar Purushottam and Ors., 1998 (79) FLR 850.
8. Learned counsel for the workman also claimed that the award is required to be modified for granting back wages to the workman.
9. After considering the aforesaid contentions and the materials on record, I find that, admittedly, second employment of the workman concerned was not under the Apprentice Act and document at Annexure No. 2 to the writ petition did not amount to an employment as apprentice under the said Act. Therefore, even assuming that the employment of the workman was of apprentice though not governed by Apprentice Act, he is entitled to be treated as workman as defined in Section 2(z) of the U.P. Industrial Disputes Act. Law in this respect has been decided in the case of K.S. Tripathi v. State of Allahabad (supra)
10. On the question of application of State Act and Central Act, law has been decided in the case of Jai Kishan v. U.P Co- operative Bank Ltd., 1989 UPLBEC 144. The Division Bench deciding the said case considered the provisions of law of both the Acts and ultimately came to a conclusion that in respect , of proceedings relating to retrenchment under the State Act Section 6-N of the State Act would apply.
11. With regard to application of Section 2(oo)(bb) of the Central Act it has been held that the same does not apply in respect of the proceedings under the State Act. Though a contrary finding was arrived at in the case of Smt. Pushpa Aganval v. Regional Inspectress of Girls Schools, Meerut 1995-II-LLJ-264 (All) by another Division Bench of this Court, but the same was passed without taking note of earlier judgment of Jai Kishun (supra) by another co- ordinatc Bench. On perusal of aforesaid two judgments, it also appears that in the case of Jai Kishan (supra) all the relevant provisions of law including Section 25-J of the Central Act and Section 6-R of the State Act as also Article 254 of the Constitution of India have been duly considered which have not been taken note oif in the aforesaid case of Suit.
Pushpa Agarwal (supra). In such circumstances, on the present question relating to retrenchment, law decided in the case of Jai Kishan (supra) is binding on this Court.
12. In view of aforesaid, there is no reason far interference with the impugned award.
13. With regard to the back wages. I find that the award deprived the workman of the said benefit as he did not make out a case that he was not in employment throughout the period. Therefore on such findings of facts, there is no reason for interference with the impugned award and both the writ petitions are, therefore, dismissed.