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U.P.STATE IRRIGATION DPT. versus THE PRESIDING OFFICER & ANOTHER

High Court of Judicature at Allahabad

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U.P.State Irrigation Dpt. v. The Presiding Officer & Another - WRIT - C No. 17472 of 1993 [2004] RD-AH 891 (23 September 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 51

Civil Misc. Writ Petition No. 17472 of 1993

U.P. State Irrigation Department Unit

Upper Ganga Irrigation Modernization Project,

Quality Control Division (World Bank) Meerut.     ----      Petitioner

Vs.

The Presiding Officer, Industrial Tribunal (V)

U.P. Meerut & Another.             -                       Respondents.

----

Hon'ble V.C.Misra, J.

Heard Sri R.K.Awasthi, learned Standing Counsel on behalf of the petitioner and Sri Siddharth, learned counsel appearing for the respondent No. 2.

1. This writ petition has been filed challenging the award dated 6.1.1993 (Annexure No. 6 to the writ petition) passed by the Presiding Officer, Industrial Tribunal (V), U.P. Meerut (hereinafter referred to as ''the Industrial Tribunal') in Adjudication case No. 228 of 1991 declaring the termination of services of the respondent no. 2 w.e.f. 30.6.1988 as improper and unlawful entitling him to reinstatement in service with continuity and full back wages.

2. The facts of the case in brief are that the petitioner- U.P. State Irrigation Department Unit Upper Ganga Irrigation Modernization Project, (World Bank) Quality Control Division (World Bank) Meerut, (hereinafter referred to as ''the Department') employed the respondent No. 2-Praduman Kumar Singhal on a stop gap arrangement on the post of a clerk in the Department for a fixed term of two months w.e.f. 28.10.1987 to 27.12.1987 subject to the terms and conditions, mentioned in the appointment letter. The respondent no. 2 was further given appointment for another fixed term, on the same terms and conditions, vide order dated 29.12.1987 for a period w.e.f. 29.12.1987 to 28.3.1988 and on the expiry of the said period, he was lastly given appointment for another fixed term w.e.f. 30.3.1988 to 29.6.1988, thereafter the respondent no. 2 was not allowed to perform his duties. The respondent no. 2 raised an industrial dispute on the ground that his services had been wrongly and illegally dispensed with, without complying the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. It is an admitted case that the respondent no. 2 had worked for more than 240 days in 12 calendar months, as per the definition laid down in Section 2 (g) of the U.P. Industrial Disputes Act, 1947. The State Government referred the matter to the Industrial Tribunal- respondent no. 1. The Industrial Tribunal- respondent no 1 after hearing the parties, passed the impugned award dated 6.1.1993 (Annexure No. 6 to the writ petition).

3. Being aggrieved, the petitioner filed the present writ petition challenging the impugned award on the grounds, inter alia; firstly, that the petitioner's establishment was not an Industry; secondly, that  no relationship of an employer and workman, within the meaning of the U.P. Industrial Disputes Act, existed and as such the provisions of the Act were not applicable; and thirdly, that the employment given to the respondent no. 2 was on adhoc basis and was a purely temporary appointment for a fixed tenure, which came to an end on 29.6.1988. Therefore, it could not be considered to be a case of retrenchment, because the amended provisions of Section 2 (oo) (bb) inserted in the Central Industrial Disputes Act would be attracted in the instant case, which was not considered by the Industrial Tribunal- respondent No.1.

4. Learned counsel for the petitioner has submitted that, concept of continuous service of 240 days, in the instant case, is wholly irrelevant because the appointment was not made on the basis of statutory rules but on adhoc basis as a purely temporary stop gap arrangement. He has further submitted that such tenure appointment of the respondent no.  2 was strictly governed by the letter of the appointment and, therefore, after expiry of the fixed tenure, it cannot be said to be a case falling under retrenchment, under section 2 (s) of the U.P. Industrial Disputes Act, 1947. It has also been submitted that the respondent no. 1-Industrial Tribunal has not given any finding on the question as to whether the respondent no. 2-wrokman was not a gainfully employed at any other place.

5. Learned counsel appearing for the respondent no.2-workman has submitted that the respondent no. 2 was entitled to the benefits of the provisions of Section 6-N of the U.P. Industrial Disputes Act and had specifically stated in para 10 of the written statement that after the termination of services w.e.f. 29.6.1988, he had not been gainfully employed, at any place.

6. It is settled law that the petitioner is an Industry, as defined under the U.P. Industrial Disputes Act. The definition of ''retrenchment' as given in Section 2 (s) of the U.P. Industrial Disputes Act, 1947 and Section 2 (oo) of the Central Industrial Disputes Act, the relevant portion of which are quoted as under:

Section. 2 (s) of the U.P. Industrial Disputes Act, 1947

"2 (s). ''Retrenchment' means the termination by the employer of the service of a workman or any reason whatsoever, otherwise than as punishment inflicted byway of disciplinary action, but does not include-

(1) voluntary retirement of the workmen;

or

(ii) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf."

Section. 2 (oo) of the Central Industrial Disputes Act, 1947

"2(oo). "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted byway of disciplinary action, but does not include;

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf ; or

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

( c ) termination of the service of a workman on the ground of

The apex Court in U.P.State Sugar Corporation Ltd. Vs. Om Prakash Upadhyay (2002 (93) FLR 600) has held that Section 2 (oo)(bb) of Central Industrial Disputes Act would not be applicable in U.P. inasmuch as there was no provision akin to it in the Uttar Pradesh Industrial Disputes Act. Since the provisions of Section 2 (oo) (bb) of the Central Industrial Disputes Act do not apply in respect of the State of

U.P. and the specific provisions, under Section 2 (s) of the U.P. Industrial Disputes Act, 1947, are applicable in the instant case. There cannot be any automatic termination of services under law, as the word automatic is used only in respect with machines.      

7. I have looked into the record of the case and heard learned counsel for the parties, at length and find that the services of the respondent     no. 2, in the present case, had been wrongfully and illegally dispensed with, without complying with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. I also find that after thorough examination and critical scrutiny of the pleadings and the relevant material and evidence on record, the respondent No. 1- Industrial Tribunal has arrived at a well reasoned award dated 6.1.1993 (Annexure No. 6 to the writ petition) on the basis of findings of fact. The petitioner has not been able to demonstrate before this Court that, the findings of fact recorded in the impugned award suffers from any illegality or error apparent on the face of the record.  More so, the said findings of fact arrived at by the respondent no. 1, on the basis of which the impugned award has been passed, being based on relevant material on record, are not open to challenge before this Court while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India. In view of this, no illegality or irregularity has been committed by respondent no. 1 in passing the impugned award dated 6.1.1993 (Annexure No. 6 to the writ petition).

Accordingly, the writ petition is dismissed. The interim stay order dated 21.5. 1993 stands vacated. There will be no order as to costs.  

Dt.23.9.2004

Kdo


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