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M/S PALACE THEATRE, ALLAHABAD versus LABOUR COURT, ALLAHABAD & OTHERS

High Court of Judicature at Allahabad

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M/S Palace Theatre, Allahabad v. Labour Court, Allahabad & Others - WRIT - C No. 15656 of 1981 [2006] RD-AH 17079 (3 October 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Judgment Reserved on 18.9.2006

Judgment Delivered on 3.10.2006

(Reserved)

Civil Misc. Writ Petition No. 15656 of 1981

M/s Palace Theater Versus Labour Court and others.

Hon'ble S.U.Khan J

This writ petition is directed against the award dated 30.9.1981 given by Presiding Officer Labour Court in Adjudication case No. 25 of 1981. Through the said award, it has been held that termination of services of respondent No.2 Vijay Kumar Srivastava by petitioner employer on 31.7.1980/ 1.8.1980 was illegal as it was in violation of section 19 of U.P Dookan Aur Vanijya Adhishthan Adhiniyam 1964.

Petitioner had pleaded before the Labour Court that respondent No.2 was employed by it on 16.6.1980 on the post of Assistant Operator and since 1.8.1980 he did not report on duty.

Section 19 and 20 of the aforesaid Act are quoted below:

Section 19: Discharge of employee by his employer--;(1) No employee, other than an employee engaged for a specified period or in a leave vacancy, shall be discharged from service by his employer except on the ground that --

(a) the post held by him has been retrenched; or

(b) he is unfit to perform his duties on the ground of infirmity or continued ill-health;

and he has been served with a notice in writing containing the grounds of discharge. The notice shall be for a period of not less than thirty days, or such longer period as may be required under the terms of employment.

Provided that the notice of discharge may be of a shorter period if the same is accompanied with payment of wages to the employee for the number of days the notice is short of the required period.

(2)  Nothing in sub-section (1) shall apply to dismissal for misconduct.

Section 20:  Termination of employment by an employee-- (1) No employee, other than an employee engaged for a specified period or in a leave vacancy, shall terminate his employment, except after notice of thirty days, or of such longer period, as may be required under the terms of his employment.

(2) Where an employee fails to comply with the provisions of sub-section (1), his unpaid wages for a period not exceeding fifteen days may be forfeited to his employer.

Labour Court ultimately set-aside the termination of respondent No.2 and directed the petitioner to take back respondent No.2 in service and also directed that petitioner should pay the entire salary and allowance to the respondent No.2 from 1.8.1980.

Learned counsel for the petitioner has cited an authority of this court reported in Kanpur I.D. Cooperative State Vs. V.K. Srivastava 1980 (40) FLR 325. In the said authority, it has been held that provisions of the aforesaid Act do not confer any right on the employee to get the order terminating his services declared invalid and only remedy for breach of any provision of the said Act is as provided under section 33 of the Act which prescribes penalties.

In this regard reference may also be made to an authority of this court reported in Management of SDI Versus P.O Central Government Industrial Tribunal 1999(4) AWC 3160. In the said authority provisions of paragraph 522.4 of the Shastri award (applicable to the bank employees) was interpreted. Under the said provisions, it is provided that services of any employee other than a permanent employee or probationary may be terminated after 14 days notice. In the aforesaid authority, this court held that 14 days notice or salary in lieu thereof is not a condition precedent for termination of service and in case the same was not given then the employee was entitled only for 14 days pay and not reinstatement. The court further held that the said para of Shastri award was distinct from section 25-F of Industrial Disputes Act (equivalent to section 6-N of U.P. Industrial Disputes Act), where payment of compensation is condition precedent to termination of service and non compliance of the said condition renders the termination void and illegal. In the said authority reliance was placed upon a Supreme Court authority reported in 1999 (Supp)SCC 287 K. A. Barot  Vs. State of Gujrat. In this regard reference may also be made to Section 6-Rof U.P. Industrial Disputes Act, which is quoted below:

[6-R. Effect of laws inconsistent with Sections 6-J to 6-Q--.    (1) The provision from Sections 6-J to 6-Q shall have effect notwithstanding anything inconsistent therewith contained in any other law (including Standing Orders) made under the Industrial Employment (Standing Orders) Act, 1946:

Provided that nothing contained in this Act shall have effect to derogate from any right which a workman has under the Minimum Wages Act, 1948, or any notification or order issued thereunder or any award for the time being in operation or any contract with the employer.

(2)  For the removal of doubts, it is hereby declared that nothing contained in Sections 6-J to 6-R shall be deemed to affect the provision of any other law for the time being in force so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of Sections 6-J to 6-Q].

From the above, it follows that unless retrenchment is hit by any of the provisions contained in section 6-J to 6-Q of the Act, Labour Court can not set that aside. Under Section 6-N of the Act, retrenchment without fulfilling certain condition, is bad and liable to be set-aside only if the employee has worked for 240 days. In the instant case respondent No. 2 worked only for 46 days.

Respondent No.2 is not therefore entitled for any thing more than one month's salary. Through interim order dated 22.12.1981 passed in this writ petition, operation of the impugned award was stayed.

Accordingly writ petition is disposed of. Impugned award is modified and it is directed that instead of reinstatement petitioner shall pay one month's salary to respondent No.2 along with interest quantified at Rs.2000/-. This  amount shall be paid within three months by the petitioner to respondent No.2.

Waqar

3.10.2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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