Samishta Dube Vs. City Board, Etawah & Anr.
EmailAppeal: Civil Appeal No. 1279 of 1999
(From the Judgment and Order dated
11-8-97 of the Allahabad High Court in C.M.W.P.No. 15674 of 1994)
(From the Judgment and Order dated
11-8-97 of the Allahabad High Court in C.M.W.P.No. 15674 of 1994)
Petitioner: Samishta Dube
Respondent: City Board, Etawah & Anr.
Apeal: Civil Appeal No. 1279 of 1999
(From the Judgment and Order dated
11-8-97 of the Allahabad High Court in C.M.W.P.No. 15674 of 1994)
(From the Judgment and Order dated
11-8-97 of the Allahabad High Court in C.M.W.P.No. 15674 of 1994)
Judges: S. SAGHIR AHMAD & M. JAGANNADHA RAO, JJ.
Date of Judgment: Feb 26, 1999
Appearances:
Mr. Anand Pandey, Mr. Bharat Sangal Advocates for the appellant.
Mr. R.L. Bhardwaj, Mrs. Vijaya Thakre, Mr. R.S. Lambat, Advo-cates for the Respondent.
Head Note:
LABOUR AND INDUSTRIAL LAW
U.P. Industrial Disputes Act, 1947
Section 2(z), 2(k) – “Workman ” – Lady clerk/ typist in City Board, Etah. Held that she was a “workman” with in Section 2(z). (Para 6)
Section 6-P, 6-N – Rule of “first come, last go”- Applicability – If rule of seniority applies – Deviation from Rule by employer – No justification shown – Length of service – If to be considered; Held that Section 6-P does not require any particular period of continuous service. In absence of justification for deviation by employer, Section 6-P was violated. Case law referred. (Paras 7 to 9)
Cases Reffered:
1. Central Bank of India v. S. Satyam & Others JT 1996 (7) SC 181 (Para 7).
2. Kamlesh Singh v. Presiding Officer (1986 Suppl. SCC 679) (Para 7)
3. Bangalore Water Supply & Sewerage Board etc. v. A. Rajappa & Others etc. (1978 (2) SCC 213) (Para 5)
4. Bihar State Board Transport Corporation v. State of Bihar & Others (AIR 1970 SC 1217) (Para 6)
5. Corporation of City of Nagpur v. Its Employees (1960 (2) SCR 942) (Para 5)
6. M/s. Swadesamitran Limited. Madras v. Their Workmen ( 1960 (3) SCR 144) (Para 9)
7. M/s Indian Iron & Steel Co. Ltd. & Another etc. v. Their Workmen etc. (AIR 1958 SC 130) (Para 6)
2. Kamlesh Singh v. Presiding Officer (1986 Suppl. SCC 679) (Para 7)
3. Bangalore Water Supply & Sewerage Board etc. v. A. Rajappa & Others etc. (1978 (2) SCC 213) (Para 5)
4. Bihar State Board Transport Corporation v. State of Bihar & Others (AIR 1970 SC 1217) (Para 6)
5. Corporation of City of Nagpur v. Its Employees (1960 (2) SCR 942) (Para 5)
6. M/s. Swadesamitran Limited. Madras v. Their Workmen ( 1960 (3) SCR 144) (Para 9)
7. M/s Indian Iron & Steel Co. Ltd. & Another etc. v. Their Workmen etc. (AIR 1958 SC 130) (Para 6)
JUDGEMENT:
M. JAGANNADHA RAO, J.
1. Leave granted.
2. The appellant who holds a post-graduate degree was appoint-ed 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 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 termina-tion 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, therefore, passed an award to the effect that in case workmen junior to the appellants were retained, the appell-ant must be considered for regularisation by re-appointment on the basis of her seniority. This award was passed on 28-1-1993.
3. The respondent filed writ Petition No. 15674 of 1994 in the High 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 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 direction that the appellant should be appointed if any of her juniors were working, the 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
ap-pellant was “admittedly” not appointed to any regular post in accordance with the procedure provided. The High Court, there-fore, held that the direction issued for appointment of the appellant in case juniors were continued was not legally justi-fied and 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.
4. The appellant filed this appeal questioning the judgment of the High Court. We have heard the learned counsel on both sides.
5. 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 U.P. Industrial Disputes Act, 1947, learned counsel for the appellant has relied upon the judgment of this Court in Babgalore 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 of the application of the twin tests, namely, (i) primary and predomi-nant 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 regard to the General Administration Department 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 depart-ments 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, if follows that this department, dealing predomi-nantly with industrial departments, is also an industry. 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 ‘workmen’ in the statute, they will be entitled to seek a refer-ence to the Labour Court.
6. Coming to the question whether a clerk/typist could be “workman” 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 the definition of ‘workman’ in section 2(z) of the U.P. Industrial Disputes Act, 1947.
7. We shall next deal with the point whether, in case employees junior to the appellant were retained, the directions issued by the Labour Court could be treated as valid. Section 6-P of the U.P. Act (which corresponds to Section 25 G of the Central Act of 1947) states that where any workmen in an industrial establish-ment is to be retrenched and he belongs to a particular category of workmen in that establishment, – in the absence of any agree-ment between the employer and the workmen in this behalf – the employer shall ordinarily retrench the workmen who was the last person to be employed in that category, unless for reasons to e 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 Section 25 F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by sec-tion 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 JT 1996 (7) SC 181.
8. Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such re-striction in Section 6 P of the U.P. Act read with Section 2(z) of the U.P. Act which defines ‘workman’.
9. It is true that the rule of ‘first come, last go’ in sec-tion 6-P could be deviated from by an employer because the sec-tion uses the word ‘ordinarily’. It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or less of confidence etc., as held in M/s. Swadesami-tran Limited. Madras v. Their 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 there is clear violation of Section 6-P of the U.P. Act.
10. The High Court was also wrong in thinking that the appell-ant could go before the State Services Tribunal. Under section 1(4)(e) of the U.P. Public Services (Tri-bunals) Act, 1976, there is a specific bar to the applicability of the said Act to ‘work-men’ as defined in the U.P. Industrial Disputes Act, 1947.
11. In the result, the High Court was wrong in setting 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 Labour Court will be complied with by the 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 back wages inasmuch as no attempt has been made by the respondent to contend that the appellant was otherwise gainfully employed. Appeal is allowed as stated above. There will be no order as to costs.
1. Leave granted.
2. The appellant who holds a post-graduate degree was appoint-ed 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 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 termina-tion 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, therefore, passed an award to the effect that in case workmen junior to the appellants were retained, the appell-ant must be considered for regularisation by re-appointment on the basis of her seniority. This award was passed on 28-1-1993.
3. The respondent filed writ Petition No. 15674 of 1994 in the High 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 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 direction that the appellant should be appointed if any of her juniors were working, the 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
ap-pellant was “admittedly” not appointed to any regular post in accordance with the procedure provided. The High Court, there-fore, held that the direction issued for appointment of the appellant in case juniors were continued was not legally justi-fied and 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.
4. The appellant filed this appeal questioning the judgment of the High Court. We have heard the learned counsel on both sides.
5. 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 U.P. Industrial Disputes Act, 1947, learned counsel for the appellant has relied upon the judgment of this Court in Babgalore 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 of the application of the twin tests, namely, (i) primary and predomi-nant 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 regard to the General Administration Department 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 depart-ments 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, if follows that this department, dealing predomi-nantly with industrial departments, is also an industry. 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 ‘workmen’ in the statute, they will be entitled to seek a refer-ence to the Labour Court.
6. Coming to the question whether a clerk/typist could be “workman” 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 the definition of ‘workman’ in section 2(z) of the U.P. Industrial Disputes Act, 1947.
7. We shall next deal with the point whether, in case employees junior to the appellant were retained, the directions issued by the Labour Court could be treated as valid. Section 6-P of the U.P. Act (which corresponds to Section 25 G of the Central Act of 1947) states that where any workmen in an industrial establish-ment is to be retrenched and he belongs to a particular category of workmen in that establishment, – in the absence of any agree-ment between the employer and the workmen in this behalf – the employer shall ordinarily retrench the workmen who was the last person to be employed in that category, unless for reasons to e 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 Section 25 F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by sec-tion 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 JT 1996 (7) SC 181.
8. Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such re-striction in Section 6 P of the U.P. Act read with Section 2(z) of the U.P. Act which defines ‘workman’.
9. It is true that the rule of ‘first come, last go’ in sec-tion 6-P could be deviated from by an employer because the sec-tion uses the word ‘ordinarily’. It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or less of confidence etc., as held in M/s. Swadesami-tran Limited. Madras v. Their 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 there is clear violation of Section 6-P of the U.P. Act.
10. The High Court was also wrong in thinking that the appell-ant could go before the State Services Tribunal. Under section 1(4)(e) of the U.P. Public Services (Tri-bunals) Act, 1976, there is a specific bar to the applicability of the said Act to ‘work-men’ as defined in the U.P. Industrial Disputes Act, 1947.
11. In the result, the High Court was wrong in setting 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 Labour Court will be complied with by the 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 back wages inasmuch as no attempt has been made by the respondent to contend that the appellant was otherwise gainfully employed. Appeal is allowed as stated above. There will be no order as to costs.
