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.

Headnote:(i) U.P. Industrial Disputes Act, 1947 - Section 2(k) - Industry-Municipal Board-General Administration Department-IS an industry. (Para 5)
       (ii) U.P. Industrial Disputes Act, 1947 - Section 2(z) - Workman-Clerk/typist working in Municipal Board-Falls within definition of workman. (Para 6)
       (iii) U.P. Industrial Disputes Act, 1947-Section 6-P read with Section 6(N)-Retrenchment-Last come, first go-Principle applicable even in case of those employed on daily wages-Section 6-P does not require any particular period of continuous service.
       Held : 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 thos 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. 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. 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’. (Paras 7 & 8)
       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 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. (Para 9)

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 thi

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1999 Supreme(SC) 261

Cases Referred (6)