Allahabad High Court
Prabhari Adhikari Nagar Palika And Anr. vs Ramesh Chandra And Ors. on 16 November, 1990
Equivalent citations: [1991(62)FLR265], (1992)ILLJ639ALL, (1991)1UPLBEC203
JUDGMENT D.P.S. Chauhan, J.
1. The petitioners, while invoking extraordinary jurisdiction of this Court under Article 226 of Constitution of India, have impeached an award of the Labour Court, Agra, dated October 23, 1983, in Adjudication Case No. 86 of 1981, seeking relief for issuance of a writ in the nature of certiorari quashing the same.
2. The facts of the case, in brief, as set up by [he parties and relevant to the controversy in the present case, are:
(a) The services of Sri Ramesh Chandra (Respondent No. 1), who was appointed on a permanent post of Sweeper in the Municipal Board, Sirsagani, District Mainpuri (hereinafter referred to as 'the Municipal Board'), were terminated illegally on January 23, 1980, on account of his union activities, through a verbal order whereby he was required for not turning up on duty w.e.f. January 24, 1980, but despite his having reported on duty, as usual, was not allowed to do work. The termination was said to be bad as neither any notice nor any charge-sheet was given to him and the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 (for brevity hereinafter referred to as 'the U.P. Act') were not complied with.
(b) The petitioners (for brevity, hereinafter referred to as 'the employer') came up with the case that the services of Respondent No. 1, whose appointment was made on a temporary basis against the permanent post of Sweeper in the Municipal Board on July 2, 1976 in the vacancy caused on April 22, 1976 on account of dismissal of one Sri Banwari Lal were terminated as a result of subsequent reinstatement of Sri Banwari Lalunder the orders of the Administrator dated January 23, 1980.
The employer raised three-fold objections pertaining to jurisdiction of the Labour Court:-
(i) That the provisions of the U.P. Act were inapplicable in the case of employees of the Municipal Board as the Municipal Board was not an 'industry' and Respondent No. 1 was not a 'workman';
(ii) That the services of the employees of the Municipal Board having been governed under the provisions of the U.P. Municipalities Act, 1916 and the service rules framed thereunder, known as the U.P. Municipal Board Servants (Inquiry, Punishment and Termination) Rules (for brevity, hereinafter referred to as 'the Service Rules') the provisions of the U.P. Act would be inapplicable; and
(iii) That the Respondent No. 1 being a public servant within the meaning of Section 2 of the U.P. Public Services (Tribunal) Act, 1976, had the remedy by way of filing a claim petition before the U.P. Public Services Tribunal.
3. The Labour Court, relying on the decision of the Supreme Court in Bangalore Water Works ana Sewage Board's case (1978-I-LLJ-349), held that the Municipal Board was an industry and Respondent No. 1 was a workman and the dispute raised by him was maintainable under the provisions of the U.P. Act. While finding that neither disciplinary proceedings were taken against Respondent No. 1 nor any domestic enquiry was made, the Labour Court held that his services were not terminated on account of reinstatement of Sri Banwari Lal. The services were held as continuous from the date of appointment upto the date of termination and the termination was held as retrenchment not being in accord with the provisions of Section 6-N of the U.P. Act. Orders for reinstatement were passed giving continuity of service with full wages together with other benefits till the date of reinstatement.
4. This award is the subject matter of dispute in the present writ petition. The findings of tact, as recorded by the Labour Court, are final and have not rightly been challenged.
5. Heard the learned counsel for the parties, adlongum, in support of their respective contentions.
6. Learned counsel for the petitioners, Sri. P.C. Gupta, made three-fold submissions challenging the jurisdiction of Labour Court:-
(i) The provisions of the U.P. Act would be inapplicable as the scavenging, conservancy or sanitation section of the Municipal Board, which is not a business organization, cannot be an 'industry' and Respondent No. 1 cannot be a 'workman';
(ii) The provisions of the U.P. Act would be inapplicable as the employees of the Municipal Board, in the matter of enquiry, punishment and termination, are governed by and under the provisions of the Municipalities Act and the Service Rules framed thereunder; and
(iii) The Respondent No. 1 being a public servant within the meaning of Section 2 of the U.P. Public Services (Tribunal) Act, 1976, had the remedy available to him before the U.P. Public Services Tribunal by preferring a claim petition and not under the provisions of the U.P. Act which he having failed to avail, cannot have resort to raise dispute under the provisions of the U.P. Act.
7. In support of the first submission, learned counsel for the petitioners submitted that the Municipal Board is not an 'industry' or a business organization and the employees working in scavenging, conservancy or sanitation section cannot be the 'workman'. Learned counsel for Respondent No. 1 took the stand that after the celebrated judgment of seven Judges of the Supreme Court in Bangalore Water Works and Sewage Board's case (supra) the controversy as to whether the scavenging, conservancy or sanitation section of the Municipal Board is an 'industry' or not and the employees working therein are 'workman' or not, is no more res-integra.
8. To meet the situation learned counsel for the petitioners submitted that the said case would not be attracted to the facts of the present case as the said case was founded on the provisions of the Industrial Disputes Act, 1947, which is a Central Act, and the controversy in the present case hinges around the provisions of the U.P. Act. No doubt the case (supra) was based on the consideration of the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Central Act') but this argument, by itself, is not sufficient unless any such marked difference in the definition of the words 'industry' and 'workman' is established so as to make the case (supra) inapplicable. In this view of the matter it has become imperative to look into the definition of words 'industry' and 'workman' under the two enactments for the purpose of finding as to whether the case (supra) would be attracted or not in the facts and circumstances of the instant case.
9. The word 'industry' as defined in the two enactments reads as under:-
Under Central Act:
"Section 2(j): 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workman."
Under U.P. Act:
"Section 2(k): 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen."
In the two enactments in the definition of word 'industry', there is no difference whatsoever. It is admitted by the parties that the new definition of the word 'industry' as substituted by Central Act No.46 of 1982 has not yet come into force. However, the new definition is in accord with the said definition of the Supreme Court and is of wide amplitude.
(i) The word 'workman' as defined under the two enactments reads as under: -
Section 2(s), Central Act (prior to amendment by Central Act No. 46 of 1982):
'Workman' means any person (including an 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 proceedings under the 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 the Army Act (46 of 1950) or the Air Force Act, 1950 (45 of 1950) or the Navy (Discipline) Act, 1934 (34 of 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; or
(iv) who being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercise, either by nature of the duties attached to the Officer or by reason of the powers vested in him, functions mainly of a managerial nature."
Section 2(s), Central Act (subsequent to amendment by Central Act No. 46 of 1982):
'Workman' means any person (including an apprentice) employed in any industry to do any manual, un-skilled, skilled, technical, operational, supervisory work for hire or reward whether the terms of employment be express or implied, and, for the purpose of any proceedings 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 the Air Force Act, 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); 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; or
(iv) who being employed in a supervisory capacity, draws wages exceeding one thousand six 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."
Having considered the Supreme Court case and having looked the amendments it is clearly borne out that the amendments by the Act No.46 of 1982 were made having full regard to the views expressed by the Supreme Court, and the definition of the word 'workman' is now more extended. Earlier the category of work is skilled or unskilled manual, but after amendment, the category of manual work is separated and now it is 'manual, unskilled, skilled' and a new category of operational work was also added.
Section 2(z) of U.P. Act:
'Workman' means any person (including an 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 had led to that dispute but does not include any such person--
(i) who is subject to 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 is an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(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."
10. It would be apt to consider the definition of word 'industrial dispute' also under the two enactments as the definition of 'workman' makes reference to word 'industrial dispute' which, under the two enactments, is as under:-
Under Central Act:
Section 2(k): 'Industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
Under U.P. Act:
Section 2(1): 'Industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with conditions of labour, of any person; but does not include an industrial dispute concerning --
(i) any industry carried on by or under the authority of the Central Government or by a Railway Company; or
(ii) such controlled industry as may be specified in this behalf by Central Government; or
(iii) Banking and Insurance Companies as defined in the Industrial Disputes Act, 1947; or
(vi) a mine or an oil field.
On consideration it is found that the definition of word 'industrial dispute' under the two enactments is the same except that certain categories of disputes excluded from the purview of the U.P. Act are covered under the Central Act. Present case has nothing to do with the excluded categories of dispute.
The comparison settles that in the definition of words 'industry', 'workman' and 'industrial dispute' there is no marked difference so as to make the case (supra) unattractable in the facts and circumstances of the present case.
11. The arguments of petitioners that the scavenging, conservancy, or sanitation section of the Municipal Board which is not a business organization, cannot be the 'industry' as the normal duties connected with the function as local Self Government are discharged and there is no engagement in any industry, stands squarely concluded by the above decisions of the Supreme Court which after considering all the cases including the cases of Budge Budge Municipality (1953-I-LLJ-195); Corporation of City of Nagpur (1960-I-LLJ-523) and (Hospitals Mazdoor Sabha's case (1960-LLJ-251), as have been relied upon by the learned counsel for the respondent, laid down the following triple test giving wide import to word 'industry'.
"(i) where systematic activity;
(ii) organized by a co-operation between employer and employee; the direct and substantial element is chimerical;
(iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or service geared to celestial bliss, i.e. making on a large scale Prasad and Food) prima facie, there is an 'industry' in that enterprise."
Having regard to the discussion in the judgment and reading the triple test in that light, the only conclusion which can be arrived at, protecting the purpose and meaning, is that in place of word 'and', the word 'or' should have been there in the third test after the word 'goods'.
12. The portions extracted below from the case (supra) establish that the dispute between the employees of Municipal Board in public utility service would be 'industrial dispute' and the Municipal Board would be 'industry' (1953-I-LLJ-195 at 199-200):
"A public utility service such as Railways, Telephones and Supply of Power, light or water to the public may be carried on by private companies or business corporations. Even conservancy or sanitation may be so carried on, though after the introduction of local self-government this work has, in almost every country, been assigned as a duty to local bodies, like our Municipalities or District Boards or Local Boards. Dispute in these services between employers and workmen is an industrial dispute... If the public utility service is carried on by a corporation, like a Municipality which is the creature of statute and which functions under the limitations imposed by the statute, does it cease to be an industry for this reason? The only ground on which one could say that what would amount to the carrying on of an industry if it is done by a private person ceases to be so if the same work is carried on by a local body tike a Municipality is that in the latter there is nothing like the investment of any capital or existence of a profit earning motive as there generally is in a business. But neither the one nor the other seems a sine qua non or necessary element in the modern conception of industry."
"The levy of taxes for the maintenance of services of sanitation and conservancy or the supply of light and water is a method adopted and devised to make up for the absence of capital. The undertaking or the service will still remain within the ambit of what we understand by an 'industry' though it is carried on with the aid of taxation and no immediate material gain by way of profit is envisaged."
13. Having regard to the facts and circumstances of the present case, I am of the view that the first point as raised by the learned counsel for the petitioner is squarely covered by the aforesaid decision of the Supreme Court and the controversy is no more res-integra. The wide sweep of expression 'industry' as interpreted in the above case comprehends Municipal Board, its scavenging, conservancy or sanitation section within its fold and the persons employed therein as workmen. Following the said decision of Supreme Court, it is held that the scavenging, conservancy or sanitation sections of the Municipal Board are 'industry' within the meaning of Sub-section (k) of Section 2 of the U.P. Act and the dispute in the present case is the 'industrial dispute' and the Respondent No. 1 is a workman within the meaning of the expression 'workman' defined in Sub-section (w) of Section 2 of the U.P. Act.
14. Before dialating on the second question, it would be apt to find out as to whether the services of the Respondent No. 1 were terminated in accordance with the Services Rules relied on by the petitioners. The Respondent No. 1 was appointed as Safai Jamadar on July 2, 1976 on a permanent post but on temporary basis as per appointment order filed with the writ petition. The order of termination dated January 23, 1990, which is in writing and filed alongwith the petition, speaks that the services of the Respondent No. 1 are terminated with immediate effect.
Rule 11 of the Services Rules which provides for the termination of services of a temporary servant is as hereunder:
"Rule 11:
(1) Subject to the provisions of the Rule 9, the services of a temporary servant shall be liable to termination at any time by notice in writing given either by the servant to the competent authority, or by the competent authority to the servant.
(2) The period of such notice given either by the competent authority to the servant or by the servant to the competent authority shall be one month:
Provided that in the case of notice by the competent authority, the latter may substitute for the whole or part of this period of notice, pay in lieu thereof and provided further that it shall be open to the competent authority to relieve a servant without any notice or accept notice for a shorter period without requiring the servant to pay any penalty in lieu of notice.
(3) In this rule, 'temporary service' means officiating and substantive service in a temporary post and officiating service in a permanent post under Municipal Board.
(4) Nothing in this rule shall apply to -
(a) servants engaged on contract;
(b) servants not on whole-time employment of a Municipal Board;
(c) servants paid out of contingencies; and
(d) persons employed in work-charged establishment."
This Rule defines the 'temporary service' saying that temporary service means officiating and substantive service in a temporary post, and officiating service in a permanent post under the Municipal Board. The appointment of Respondent No. 1 was on a temporary basis but against a permanent post which was not in an officiating capacity and as such this Rule would not be attracted. The said Rule 11 was subject to Rule 9 which is as hereunder:
"Rule 9. Where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or of a temporary servant for any specific fault or on account of unsuitability for the service, it shall not be necessary to observe the detailed procedure laid down in Rule 5. In such cases, the probationer or temporary servant concerned shall be apprised of the grounds of such proposal, given an opportunity of showing cause against the action proposed to be taken against him and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority."
This Rule provides for the termination of services of a temporary servant but such an action is conditioned with the condition that it could be resorted to only on the ground of specific fault of the employee or for his unsuitability for the service, wherefor a summary procedure provided therein has to be followed. In the present case, the services of the Respondent No. 1 were neither terminated for any specific fault nor for his unsuitability, and not only this, if the position is adopted that the services of the Respondent No. 1 were terminated for unsuitability or for any specific fault even then the procedure provided therefor was not observed as neither any notice apprising him the grounds of any such proposal of termination nor any opportunity for snowing cause was given. Such a termination cannot be said to be in accord with the Service Rules. The circumstances are, thus, such that the employers cannot be allowed to take shelter of the Service Rules by raising a technical plea that the provisions of U.P. Act would not be applicable as the statutory Rules exist in this regard. The Service Rules relied on even otherwise do not provide for any remedy by way of appeal for the rectification of wrong done. It is a settled principle of rule of law that in a welfare State even instrumentalities cannot be allowed to raise a technical plea for the sake of technicality alone for defeating the just cause or causing injustice to the other side. The rule of law has to run with the rule of life.
15. So far as the second question is concerned, both the parties have placed reliance on the said decision of the Supreme Court. Learned counsel for the petitioners has placed reliance on the following passage in paragraph 18 of the judgment (supra) delivered by Hon'ble M.H. Beg, Chief Justice, which is quoted hereunder (1978-I-LLJ-349 at 358):
"I am impressed by the argument that certain public utility services which are carried out by governmental agencies or corporations are treated by the Act itself as within the sphere of Industry. If express rules under other enactments govern the relationship between the State as an employer and its servants as employees, it may be contended, on the strength of such provision, that a particular set of employees are outside the scope of the Industrial Disputes Act for that reason. The special excludes the applicability of general."
The passage in paragraph 46 of the said judgment which has bearing here, runs as under (pp. 374-375):
The Court proceeded to carve out the negative factor which notwithstanding the literal width of the language of the definition, must, for other compelling reasons, be kept out of scope of industry. For instance, sovereign functions of the State cannot be included although what such functions are has been aptly termed 'primary and inalienable functions of a Constitutional Government.' Even here we may point out the inaptitude of relying on the doctrine of regal powers. That has reference, in this context, to the Crown's liability in tort and has nothing to do with industrial law. In any case, it is open to Parliament to make laws which govern the State's relations with its employees. Articles 309 and 311 of the Constitution of India, the enactments dealing with the Defence Forces and other Legislation dealing with employment under statutory bodies may, expressly or by necessary implication, exclude the operation of the Industrial Disputes Act, 1947. This is a question of interpretation and statutory exclusion, but, in the absence of such provisions of law, it may indubitably be assumed that the key aspects of public administration like public justice stand out of the circle of industry. Even here, as has been brought out from the excerpts by ILO documents, it is not every employee who is excluded, but only certain categories primarily engaged and supportively employed in the discharge of essential functions of constitutional Government. In a limited way, this head of exclusion has been recognised throughout."
16. The argument as developed from the petitioner's side is, prima facie, attractive and the statutory rules either expressly or by necessary implication can exclude the applicability of the U.P. Act and the principle - 'special act excludes the applicability of general' would also apply. In para 46 of the aforesaid judgment, as has been quoted above, court has said that even here, as has been brought out from the excerpts by ILO documents, it is not that every employee who is excluded, but only certain categories primarily engaged and supportively employed in the discharge of the essential functions of the constitutional government and in this limited way the head of the exclusion has been recognized. The function of scavenging, conservancy or sanitation section of a Municipal Board cannot be said to be the essential functions of the constitutional government.
17. Since it has been found earlier that the services of the Respondent No. 1 were not terminated in accordance with and on the ground provided in the Service Rules and also for the fact that he had no remedy by way of appeal, the employer in view of the maxim 'obedentia est legis asentia' cannot be allowed to take the technical plea of shelter of Service Rules. In para 131 (IV) of the said case laying down the dominant nature of test in Sub-clause (d), Supreme Court said that 'constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'. The Service Rules framed under the Municipalities Act though being competently enacted legislative provisions may well remove from the scope of the U.P. Act the categories of the employees to whom such Service Rules apply on the basis of the principle that special Act excludes the applicability of general but the position as emerged out on the basis of an analysis as made in the present case is such which excludes the applicability of the above principle of law.
18. The third submission of the petitioners: In view of the fact that the provisions of the U.P. Act had been made applicable in the case of the Respondent No. 1 is sans any gravity as Clause (e) of Sub-section (4) of Section 1 of U.P. Public Service (Tribunals) Act. 1976, which is, as quoted hereunder, has itself provided for its inapplicability in such situation:
"This Section and Sections 2 and 6 shall apply in relation to all public servants while the remaining provisions shall not apply to the following classes of public servants, namely -
(e) A workman as defined in Industrial Disputes Act, 1947, or United Provinces Industrial Disputes Act, 1947."
19. Since the Respondent No. 1 is held to be a 'workman' under the U.P. Act, and as such the provisions of U.P. Public Services (Tribunals) Act, 1976 would be inapplicable.
20. In view of the above, the writ petiton fails and is accordingly dismissed. No order as to costs.