1999 JTR(SC) 261
1999 AIR(SC) 1056 ; 1999 AIR(SCW) 694 ; 1999 AllLJ 688 ; 1999 2 AWC 1277 ; 1999 1 CLR 854 ; 1999 81 FLR 746 ; 1999 2 JT 37 ; 1999 LIC 1125 ; 1999 1 LLJ 1012 ; 1999 2 LLN 1 ; 1999 1 Scale 655 ; 1999 3 SCC 14 ; 1999 SCC(L&S) 592 ; 1999 1 SCR 930 ; 1999 2 SCT 284 ; 1999 2 SLR 51 ; 1999 1 UJ 540 ; 1999 2 UPLBEC 951 ; 1999 KHC 1112 ; 1999 2 Supreme 357
1999(2) Supreme 357
Supreme Court of India
(From Allahabad High Court)
S. Saghir Ahmad & M. Jagannadha Rao, JJ.
Samishta Dube -Appellant
versus
City Board, Etawah & Anr. -Respondents
Civil Appeal No. 1279 of 1999
(Arising out of SLP(C) No. 704 of 1998)
Decided on 26-2-1999
Counsel for the Parties :
For the Appellant : Anand Pandey, Bharat Sangal, Advocates.
For the Respondents : R.L. Bhardwaj, Mrs. Vijaya Thakre, R.S. Lambat, Advocates.
Important Points
1. Section 6-P of the U.P. Industrial Disputes Act does not requires any particular period of continuous service to claim benefit of rule of last come first go; principle of first come, last go would be applicable even in case of those employed on daily wages.
2. Clerk/typist employed in general administration department of Municipal Board is workman.
Act
Referred
:INDUSTRIAL DISPUTES ACT : S.25(f), S.2(s), S.10, S.2(j), S.25(g)
UTTAR PRADESH INDUSTRIAL DISPUTES ACT : S.2(k), S.6(p), S.4(k), S.2(z), S.6(n)
UTTAR PRADESH PUBLIC SERVICE TRIBUNAL ACT : S.1(4)(e)
(A) The appeal turns on the applicability of the Uttar Pradesh Industrial Disputes Act, 1947, read with the Uttar Pradesh Public Services (Tribunals) Act, 1976, to the termination of a clerk/typist in a Municipal Board. Sections 2(k), 2(z), and 25(g) of the U.P. Industrial Disputes Act, 1947, define industry and workman, bringing within its scope employees in the general administration department of a Municipal Board performing clerical functions. Section 6-P of the U.P. Act, read with Section 25(g), governs retrenchment and mandates the principle of last come, first go unless otherwise recorded, without requiring a minimum period of continuous service. Section 1(4)(e) of the U.P. Public Services (Tribunals) Act, 1976, bars workmen as defined under the U.P. Act from approaching the State Services Tribunal. Sections 2(j), 10, and 25(f) of the Central Act, along with corresponding Uttar Pradesh provisions, frame the procedure for reference to and determination by the Labour Court. Section 4(k) of the U.P. Act empowers the appropriate government to refer disputes to Labour Courts, while Section 6(n) clarifies the scope of proceedings. Sections 25(f) and 25(g) provide for enforcement of Labour Court awards and lay down principles of seniority and retrenchment.
(B) Key principles include: (i) Municipal Boards engaged in an industry under the twintest jurisprudence fall within the Act; (ii) clerical employees are workmen entitled to the protections of the Act; (iii) retrenchment must follow the last come, first go rule under Section 6-P irrespective of the short length of service; (iv) the rule is ordinarily subject to deviation only for reasons recorded by the employer; (v) dailywage employees are not excluded from the seniority principle; and (vi) workmen cannot approach the State Services Tribunal where the dispute is within the Labour Courts jurisdiction.
Facts of the case:
The appellant, holding a postgraduate degree, was appointed as a typistclerk by the City Board, Etawah (respondent) on 15.12.1987 and terminated on 12.04.1988. An industrial dispute was referred to the Labour Court under Section 4k of the U.P. Industrial Disputes Act, 1947. The Labour Court held the termination not invalid and directed reappointment if juniors were retained, applying the last come, first go principle. The High Court set aside the award, finding the Municipal Board was not an industry, that the appellants service was short, and that the Labour Court lacked jurisdiction. This appeal challenges that decision.
Findings of Court:
The Supreme Court held that the Municipal Board was an industry within the meaning of the U.P. Industrial Disputes Act; the appellant was a workman; Section 6P applies irrespective of the threeandahalf months service; the last come, first go rule applies to dailywage employees; the High Court erred in relying on service length and in concluding that the appellant could approach the State Services Tribunal; and there was no finding of discrimination justifying deviation from seniority.
Issues:
(i) Whether a Municipal Board is an industry under the U.P. Industrial Disputes Act; (ii) whether a clerk/typist qualifies as a workman; (iii) whether Section 6P of the U.P. Act applies to dailywage employees and whether length of service is a condition; (iv) whether the Labour Court had jurisdiction to entertain and decide the dispute; and (v) whether the High Court was correct in setting aside the Labour Court award.
Ratio Decidendi:
The Municipal Board is an industry, the appellant is a workman, and Section 6P of the U.P. Act governs retrenchment without requiring a minimum period of service. The last come, first go principle applies to dailywage employees, and deviation requires employer justification, which was absent here. The High Court lacked jurisdiction to substitute its view on seniority and to exclude the Labour Court from the dispute, rendering its order invalid.
Result:
The appeal is allowed. The High Courts judgment is set aside, and the Labour Courts award is restored. The respondent must comply with the Labour Courts order within 15 days, and the appellant is entitled to reappointment and all consequential benefits, including backwages from 28.1.1993, with no order as to costs.
(A) The appeal turns on the applicability of the Uttar Pradesh Industrial Disputes Act, 1947, read with the Uttar Pradesh Public Services (Tribunals) Act, 1976, to the termination of a clerk/typist in a Municipal Board. Sections 2(k), 2(z), and 25(g) of the U.P. Industrial Disputes Act, 1947, define industry and workman, bringing within its scope employees in the general administration department of a Municipal Board performing clerical functions. Section 6-P of the U.P. Act, read with Section 25(g), governs retrenchment and mandates the principle of last come, first go unless otherwise recorded, without requiring a minimum period of continuous service. Section 1(4)(e) of the U.P. Public Services (Tribunals) Act, 1976, bars workmen as defined under the U.P. Act from approaching the State Services Tribunal. Sections 2(j), 10, and 25(f) of the Central Act, along with corresponding Uttar Pradesh provisions, frame the procedure for reference to and determination by the Labour Court. Section 4(k) of the U.P. Act empowers the appropriate government to refer disputes to Labour Courts, while Section 6(n) clarifies the scope of proceedings. Sections 25(f) and 25(g) provide for enforcement of Labour Court awards and lay down principles of seniority and retrenchment.
(B) Key principles include: (i) Municipal Boards engaged in an industry under the twintest jurisprudence fall within the Act; (ii) clerical employees are workmen entitled to the protections of the Act; (iii) retrenchment must follow the last come, first go rule under Section 6-P irrespective of the short length of service; (iv) the rule is ordinarily subject to deviation only for reasons recorded by the employer; (v) dailywage employees are not excluded from the seniority principle; and (vi) workmen cannot approach the State Services Tribunal where the dispute is within the Labour Courts jurisdiction.
Facts of the case:
The appellant, holding a postgraduate degree, was appointed as a typistclerk by the City Board, Etawah (respondent) on 15.12.1987 and terminated on 12.04.1988. An industrial dispute was referred to the Labour Court under Section 4k of the U.P. Industrial Disputes Act, 1947. The Labour Court held the termination not invalid and directed reappointment if juniors were retained, applying the last come, first go principle. The High Court set aside the award, finding the Municipal Board was not an industry, that the appellants service was short, and that the Labour Court lacked jurisdiction. This appeal challenges that decision.
Findings of Court:
The Supreme Court held that the Municipal Board was an industry within the meaning of the U.P. Industrial Disputes Act; the appellant was a workman; Section 6P applies irrespective of the threeandahalf months service; the last come, first go rule applies to dailywage employees; the High Court erred in relying on service length and in concluding that the appellant could approach the State Services Tribunal; and there was no finding of discrimination justifying deviation from seniority.
Issues:
(i) Whether a Municipal Board is an industry under the U.P. Industrial Disputes Act; (ii) whether a clerk/typist qualifies as a workman; (iii) whether Section 6P of the U.P. Act applies to dailywage employees and whether length of service is a condition; (iv) whether the Labour Court had jurisdiction to entertain and decide the dispute; and (v) whether the High Court was correct in setting aside the Labour Court award.
Ratio Decidendi:
The Municipal Board is an industry, the appellant is a workman, and Section 6P of the U.P. Act governs retrenchment without requiring a minimum period of service. The last come, first go principle applies to dailywage employees, and deviation requires employer justification, which was absent here. The High Court lacked jurisdiction to substitute its view on seniority and to exclude the Labour Court from the dispute, rendering its order invalid.
Result:
The appeal is allowed. The High Courts judgment is set aside, and the Labour Courts award is restored. The respondent must comply with the Labour Courts order within 15 days, and the appellant is entitled to reappointment and all consequential benefits, including backwages from 28.1.1993, with no order as to costs.
Workman - Used to support that a person doing clerical work in an industry is a workman under the Industrial Disputes Act.
Workman - Used to support that a person doing clerical work in an industry is a workman under the Industrial Disputes Act.
Retrenchment - Cited to support that Section 6-P of the U.P. Act does not require any particular period of continuous service for the 'last come, first go' rule to apply.
Retrenchment - Cited along with Kamlesh Singh in support of the same proposition regarding Section 6-P of the U.P. Act.
Industry - Relied upon to establish that a Municipal Board can be considered an 'industry' under the Industrial Disputes Act, including its general administration department.
Industry - Approved in Bangalore Water Supply case, used to establish that a Municipal Corporation's general administration department is an 'industry'.
Retrenchment - Cited for the proposition that an employer can deviate from the 'first come, last go' rule for reasons like lack of efficiency, but the burden of proof is on the employer.
Judgment
M. Jagannadha Rao, J.-Leave granted.
2. 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 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 termination 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 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.
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, 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 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 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 Bangalore Water Supply & Sewerage Board etc. v. A. Rajappa & Ors. etc.1. The question was elaborately gone into by Krishna Iyer, J. and this Court approved the decision in Corporation of City of Nagpur v. Its Employees2 where Subba Rao, J. (as he then was) held that, in view of the application of the twin tests, namely, (i) primary and prodominant 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 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 excepts five of the departments of the Corporation come under the definition of `industry’ and if so, it follows that this department, dealing predominantly 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 reference 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(z) of the Industrial Disputes Act, 1947. In M/s. Indian Iron & Steel Co. Ltd. & Anr. etc. v. Their Workmen etc.3 and Bihar State Road Transport Corporation v. State of Bihar & Ors.4, 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 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 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 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. In Kamlesh Singh v. Presiding Officer5 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 & Ors.6.
8. Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wages. 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’.
9. 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 less of confidence etc., as held in M/s. Swadesamitran Limited, Madras v. Their Workmen7. 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 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 applicability of the said Act to ‘workmen’ 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 reappointment was denied from the date of the award, namely, 28.1.1993, the appellant will be entitled to reappointment 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 above. There will be no order as to costs.
(C.R.) Appeal allowed.
*********