SAMISHTA DUBE

CITY BOARD, ETAWAH AND ANR.

FEBRUARY 26, 1999

[S. SAGHIR AHMAD AND M. JAGANNADHA RAO, JJ.)

Labour Law:

U.P. Industrial Disputes Act, 1947: Section 2(k).

Industry-Scope and ambit of-Municipal Board--General Administrative Departme11t Employees of-Held : Covered u11der S. 2(k)---lndustrial Disputes Act, 1947, S. 2(j).

Sectio112(z)----!'Workma11''--Scope and ambit of-Typist/Clerk---ln ad- D mi11istrative office of Mu11icipal Board-Held: Covered under S. 2(z).

' Retre11chme11t-f'rocedure f or-{]nder S. 6-P-,:Jpplicability of S. 6- N---Held: S. 6-P does not require a11y particular period of co;1ti11Uqus service as required by S. 6-N-He11ce, High Court en-ed i11 de11yi11g rlief to the E workme11 011 the grou11d that he had put in 011ly a few years' service (three and a half mo11th's service).

Retre11chme11t-f'rocedure f or-{]nder S. 6-P-Deviatio11 from-f'em1issibility of-Rule of 'first come, last go'--Applicability of-To daily-wage employees-Held : Rule applicable to daily-wage employees also---lt is per- F missible for the employer to deviate from this Rule i11 case of lack of efficie11cy or loss of confide11ce-But the burden will be 011 the employer to justify the deviation-ii! the abse11ce of such justificatiOI! tem1i11atio11 of a daily-wage employee is violative of S. 6-P.

G Tennination of service-Proper remedy against-Typist/Clerk in Admi11istrative office of Nagar Palika---Held: Being a workma11 i11 a11 i11dustry the proper remedy agai11st tenni11atio11 of his service is u11der S. 4-K a11d 11ot under U.P. Public Services (Tribu11al) Act-V.P. Public Services (Tribunal) Act, 1976, S. 1(4)(e)-Service Law.

H Words and Phrases :

( \

SAMISHTADUBEv. CITYBOARD, ETAWAH 931

"Industry''--Maning of-In the conte.xt of S. 2(k) of the U.P. Industrial A Disputes Act, 1947.

"Workman''-Meaning of-In the Context of S. 2(z) of the U.P. Industlial Disputes Act, 1947.

"Ordinwily''-Meaning of-In the conte.xt of S. 6-P of the U.P. Industrial Disputes Act, 1947.

The appellant was employed on daily wages as a typist/clerk and the respondent terminated her services after she had put in a service of 3 months and 27 days. Being aggrieved the appellant raised an industrial dispute before the Sate Labour Court under Section 4-K of the U.P. Industrial Disputes Act, 1947. The Labour Court held that the termination of

the appellant's appointment could not be termed as invalid but held that, even-so, the principle of "last come, first go" applied even in the case of those employed on daily wages and, therefore, passed an awared to effect that in case workmen junior to the appellant were retained the appellant D must be considered for regularisation by re-appointment on the basis of her seniority .

pie respondent filed a writ petition before the High Court challeng ing the aforesaid award of the Labour Court. The High Court held that since the appellant was employed in the administrative office of the Nagar E Palika she was not employed in connection with any activity that might amount to an "industry". The High Court also denied the relief to the appellant on the ground that she liad put in only 3 months and 27 days of service and that the question of senior or junior hardly arose in the case of daily-wage appointments. The High Court also held that the appellant F could go before the Services Tribunal. On these grounds the High Court allowed the writ petition and set aside the award. Hence this appeal.

Allowing the appeal, this Court

HELD : 1.1. All the employees in the General Administrative Depart G ment in the Municipal Board would become employees in an "industry" within the meaning of Section 2(k) of the U.P. Industrial Disputes Act, 1947 and if they satisfy the definition of'workmen' under Section 2(z) of the U.P.

Act, they will be entitled to seek a reference to the Labour Court. [934-D]

Bangalore Water Supply & Sewerage Board v.A. Rajappa, [1978) 2 SCC H

A 213 and Corporation of City of Nagpur v. Its Employees, [1960) 2 SCR 942, followed.

1.2. This Court in Bihar State Road Tra11spo1t Corporation's case treated a person doing clerical work in the industry as a ''workman". Therefore, the appellant who was performing the work of a typist/clerk falls B within the definition of 'workman' in Section 2(z) ef the U.P. Act.. [935-D)

Indian Iron & Steel Co. Ltd. v. Their Workmen, AIR (1958) SC 130 and Bihar State Road Transport Corporation v. State of Bihm; AIR (1970) SC 1217, relied on.

2.1. Section 6-P of the U.P. Act is not controlled by conditrons as to length of service contained in Section 6-N of the U.P. Act (which corresponds to Section 25-F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by Section 6-N. Hence, the High Court was wrong in denying the relief to the appellant on the ground D that she had put in only three and a half months' service. [935-G-H]

Kamlesh Singh v. Presiding Officer, [1986) Suppl. SCC 679 and Central Bank of India v. S. Satyam, [1996) 5 SCC 419, relied on.

2.2 The High Court was not correct in stating that no rule of seniority E was applicable to daily wagers. There is no such restriction in Section 6-P

of the U.P. Act read with Section 2(z) of the U.P. Act, which defines 'workman'. [936-A]

2.3. It is true that the rule of 'first come, last go' in Section 6-P could be deviated from by an employer: because the section uses the word 'ordinarily'. It is, therefore, permissible for the employer to deviate from the Rule in cases of lack of efficiency or loss of confidence etc. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, there is a clear violaon of Section 6-P of the U.P. Act. [936-B-C]

Swadesamitran Ltd. v. Their Workmen, [1960) 3 SCR 144, relied on.

3. The High Court was also wrong in thinking that the appellant could

go before the State Services Tribunal. Under Section 1(4)(e) of the U.P. \..

Public Services (Tribunals) Act, 1976, there is a specific bar to the ap H plicability of the said Act to 'workman' as defined in the U.P. Act. [936-D]

SAMISHTADUBEv. CITYBOARD, ETAWAH[M.JAGANNADHARAO, J.] 933

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1279 of A 1999.

From the Judgment and Order dated 11.8.97 of the Allahabad High Court in C.M.W.P. No. 15674 of 1994.

Anand Pandey and Bharat Sangal for the Appellant.

R.L. Bhardwaj, Mrs. Vijaya Thakre, R.S. Lainbat for the Respondents.

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. Leave granted.

The appellant who holds a post-graduate degree was appointed as a typist/clerk on 15.12.1987 by the City Board, Etawah, respondent in this appeal. Her services were terminated on 12.4.1988. The appellant raised an industrial dispute and the same was referred to the Labour Court by D the State of U .P. under section 4-K of the U .P. Industrial Disputes Act, 1947 (hereinafter called the 'Act') on 7.9.1991. The Labour Court held that the termin<1tion of the appellant's appointment w.e.f. 12.4.1988 could not be termed as invalid but held that, even so, the principle of "last come, first go" applied even in the case of those employed on daily wages and, E therefore, passed an award to the effect that in case workmen Junior to the appellant were retained, the appellant must be considered for regularisation by re-appointment on the basis of her seniority. This award was passed on 28.1.1993.

The respondent filed Writ Petition No. 15674 of 1994 in the High F Court of Allahabad. The High Court held that the Municipal Board discharged sovereign functions and that the appellant was employed as a clerk/stenographer in the administrative office of the Nagar Palika and though "some activity" of the Municipal Board might amount to an "industry", there was nothing to show that the appellant was employed in G connection with any activity that might amount to an 'industry'. The High Court also held that the appellant could go before the Services Tribunal.

The High Court also observed that the appellant had worked only for 3 months and 27 days and her employment had come to an end by virtue of the condition of her appointment. The High Court was of the view that the Labour Court rightly held that the termination was not invalid but that its H

A direction that the appellant should be appointed if any of her juniors were working, was unjustified when there was no finding as to discrimination. It was also held that the question of junior or senior hardly arose in the case of daily-wage appointments. The appointment as an employee in the Municipal Board was regulated by Rules and Regulations and appellant was "admittedly'' not appointed to any regular post in accordance with the B procedure provided. The High Court, therefore held that the direction issued for appointment of the appellant in case juniors were continued was not legally justified ana the Labour Court had no jurisdiction to entertain the dispute. On these grounds, the writ petition of the respondent was allowed and the award was set aside. c The appellant filed this appeal questioning the judgment of the High Court. We have heard the learned counsel on both sides.

On the question whether the Municipal Board could be treated as an "industry" within the meaning of the said word in Section 2(k) of the D U.P. Industrial Disputes Act, 1947, learned counsel for the appellant has relied upon the judgment of this Court in Bangalore Water Supply & Sewerage Board Etc. v. A Rajappa & Others Etc., [1978] 2 SCC 213. The question was elaborately gone into by Krishna Iyer, J, and this Court approved the decision in Corporation of City of Nagpur v. Its Employees, [1960] 2 SCR 942, where Subba Rao, J. (as he then was) held that, in view E of the application of the twin tests, namely, (i) primary and predominant activity test and (ii) the integrated activity test, the Municipal Corporation was an "industry" and that, in particular' the employees in the Education Department,. the Health Department and the General Administration Department were to be treated as working in an "industry". It was held in p regard to the General Administration Depa1tment by Subba Rao (as he then was) (pp. 973-974) as follows :

"Every big company with different sections will have a general administration department. If the various departments collated with this department are industries, this department would also be a part of the industry. Indeed the efficient rendering of all the services would depend upon the proper working of this department, for, otherwise there would be confusion and chaos. The State Industrial Court in this case has held that all except five of the departments of the Corporation come under the definition of 'industry' and if so, it follows that this department, dealing

5AMISHTADUBEv. CITYBOARD, EfAWAH(M.JAGANNADHARAO, J.] 935

predominantly with industrial departments, is also an industry. A Hence the employees of this department are also entitled to the benefits of this Act."

The above, observations holding that the General Administration Department of a Municipal Corporation would be an 'industry' were approved in Bangalore Water Supply case. Therefore, all the employees in the General Administration Department would become employees in an "industry" if they satisfy the definition of 'wormken' in the statute, they will be entitled to seek a reference to the Labour Court.

Coming to the question whether a clerk/typist could be 'workman' C within Section 2(z) of the U.P. Industrial Disputes Act, 1947 we may refer to certain cases under section 2(s) of the Industrial Disputes Act. 1947. In M/s. Indian Iron & Steel Co. Ltd. & Another Etc., v. Their Workmen Etc., AIR (1958) SC 130 and Bihar State Board Transport Corporation v. State of Bihar & Others, AIR (1970) SC 1217, a person doing clerical work in the industry was treated as a "workman". The appellant, therefore, falls within D the definition of 'workman' in section 2(z) of the U.P. Industrial Disputes Act, 1947.

We shall next deal with the point whether, in case employees junior to the appellant were retained, the directions issued by the Labour Court E could be treated as valid. Section 6-P of the U.P. Act (which corresponds to Section 25 G of the Central Act cif 1947) states that where any workman in an industrial establishment is to be retrenched and he belongs to a particular category of workmen in that establishment, - in the absence of any agreement between the employer and the workmen in this behalf - the employer shall ordinarily retrench the workmen who was the last person to F be employed in that category, unless for reasons to be recorded, the employer retrenches any other person. Now this provision is not controlled by conditions as to length of service contained in Section 6(N) (which corresponds to Sertion 25F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as re- G quired by Section 6-N. In Kamlesh Singh v. Presiding Officer, (1986] Suppl.

SCC 679 in a matter which arose under this very Section 6-P of the U.P.

Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. (See also in this connection Central Bank of India v. S.

Satyam & Others, [1996] 5 SCC 419 H

A Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such restrictiC1n in Section 6-P

of the U.P. Act read with Section 2(z) of the U.P. Act which defines 'workman'.

It is true that the rule of 'first come, last go' in section 6-P could be B deviated from by an employer because the section uses the word 'ordinarily'. It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence etc., as held in M/s. Swadesamitran Limited, Madras v. 171eir Workmen, [1960) 3 SCR 144.

But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that C there is clear violation of Section 6-P of the U .P. Act.

The High Court was also wrong in thinking that the appellant could go before the State Services Tribunal. Under section 1{4)(e) of the U.P.

Public Services (Tribunals) Act, 1976, there is a specific bar to the ap- D plicability of the said Act to 'workmen' as defined in the U .P. Industrial Disputes Act, 1947.

In the result, ihe High Court was wrong in etting aside the orders of the Labour Court. We accordingly set aside the judgment of the High Court and restore the order of the Labour Court. The said order of the E . Labour Court will be complied with by respondent within 15 days of the receipt of this order. As the re-appointment was denied from the date of the award, namely, 28.1.1993, the appellant will be entitled to re-appointment and all consequential benefits w.e.f. 28.1.1993 including backwages inasmuch as no attempt has been made by the respondent to contend that the appellant was otherwise gainfully employed. Appeal is allowed as stated F above. There will be no order as to costs.

v.s.s.

Appeal allowed.

....