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1997 Supreme(All) 424
IN THE HIGH COURT OF ALLAHABAD
S. P. Srivastava, J.
U.P.VIDYUT MAZDOOR SANGH - Appellant
Versus
U.P.STATE ELECTRICITY BOARD - Respondents
C. M. W. P. 16885 Of 1992
Decided On : 04/11/1997
Arvind Kumar, K.N.SINGH, KAMESHWAR PRASAD AGRAWAL, Rajesh Tewari, Sudhir Agarwal
The mandatory requirements of Section 6-N of the U.P. Industrial Disputes Act and Section 25-N of the Central Act must be strictly complied with before effecting retrenchment of workmen. An undertaking that carries on a systematic activity, organized by cooperation between employer and employees with a substantial element of commercial activity for the production and/or distribution of goods and services calculated to satisfy human wants and wishes is an industry as contemplated under the provisions of the U.P. Industrial Disputes Act.
Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 6-N - RETRENCHMENT - CONDITIONS PRECEDENT - NOTICE, COMPENSATION, AND PERMISSION OF GOVERNMENT - ELECTRICITY DISTRIBUTION DIVISION - INDUSTRY - DEFINITION - APPLICABILITY OF ACT.
Fact of the Case:
The petitioners, daily wage employees of the Electricity Distribution Division, Bhadohi, were terminated from service on the ground of irregular appointments and no longer required. The termination orders provided for one month's pay and other dues, which were to be collected on specific dates or sent by money order. The petitioners challenged the termination, asserting that the mandatory requirements of Section 6-N of the U.P. Industrial Disputes Act and Section 25-N of the Central Act were not complied with.
Finding of the Court:
The Court held that the impugned retrenchment was illegal and void as the mandatory requirements of Section 6-N of the U.P. Industrial Disputes Act and Section 25-N of the Central Act were not complied with. The Court found that the Electricity Distribution Division was an industry as contemplated under the provisions of the U.P. Industrial Disputes Act and that the petitioners were entitled to the protection of the Act.
Issues: 1. Whether the retrenchment of the petitioners was in compliance with the mandatory requirements of Section 6-N of the U.P. Industrial Disputes Act and Section 25-N of the Central Act? 2. Whether the Electricity Distribution Division was an industry as contemplated under the provisions of the U.P. Industrial Disputes Act?
Ratio Decidendi: 1. The Court held that the retrenchment of the petitioners was illegal and void as the mandatory requirements of Section 6-N of the U.P. Industrial Disputes Act and Section 25-N of the Central Act were not complied with. The Court found that the employer failed to provide the petitioners with the requisite notice, compensation, and permission from the government before effecting the retrenchment. 2. The Court held that the Electricity Distribution Division was an industry as contemplated under the provisions of the U.P. Industrial Disputes Act. The Court applied the three tests of systematic activity, organized cooperation between employer and employees, and production or distribution of goods and services to satisfy human wants and wishes to determine the nature of the undertaking.
Final Decision: The Court directed that the petitioners be deemed to be continuing in service unaffected by the impugned retrenchment. The Court also directed that the petitioners were entitled to recover the amount due to them in accordance with law under Section 6-H of the U.P. Industrial Disputes Act. The Court, however, allowed the respondents to take recourse to retrenchment of the petitioners in accordance with law hereafter.
( 1 ) THE Executive Engineer of the Electricity Distribution Division, Bhadohi, Varanasi published a notice in the Daily Newspaper aaj dated April 27, 1992 with the information that services of all the persons who had been employed in the Electricity Distribution Division, Bhadohi on daily wage basis shall stand terminated from the afternoon of April 25, 1992 on the ground that they had been appointed on irregular basis and further that their services were no longer required. The aforesaid employees were further advised that they could get all the payments which were due under the rules from the concerned Sub-Divisional Officer or Assistant Engineer (Revenue) or the Cashier (works) on April 26, 1992 or April 27, 1992 otherwise the amount due to them will be sent to them by money order after deducting the money order charges on April 28,1992.
( 2 ) IT may be noticed that an office order had been issued by the Executive Engineer, Electricity distribution Division, Bhadohi on September 25, 1992 whereunder the services of petitioners no. 2 to 13 had been terminated from the afternoon of April 25, 1992 indicating that their services were no longer required. The aforesaid office order provided that these employees will be entitled to one months pay along with other dues with immediate effect and were advised that they could take dues either on April 25, 1992 during the period 4 p. m. to 6 p. m. or on April 26, 1992 during the period 11 a. m. to 1 p. m. or ort April 27, 1992 during the period 10 a. m. to 12 a. m. and in case they do not receive the amount it will be sent to them by money order on April 28,1992.
( 3 ) A similar office order was issued on the same date terminating the services of petitioners No. 14 to 24 with the same provision. In this order, however, it was indicated that the same was being issued pursuant to the order of the Executive Engineer dated April 24, 1992. A third office order was issued on the same date indicating that it was being issued pursuant to the direction of the Executive Engineer contained in his letter dated April 24, 1992 terminating the services of petitioners No. 25 to 44 with the same provisions. A fourth office order in identical terms was issued on April 25, 1992 terminating the services of Petitioners No. 45 to 57. Fifth office order of the same date was issued to the same effect terminating the services of Petitioners Nos. 58 and 59.
( 4 ) BEING aggrieved, the Petitioners No. 2 to 59 along with the U. P. Vidyut Mazdoor Sangh as petitioner No. l have approached this Court seeking redress praying for a direction requiring the respondents not to prevent the petitioners from discharging their duties pursuant to the notice published in daily newspaper "aaj" dated April 27, 1992 and the office orders re- ferred to herein above.
( 5 ) THEY have also prayed for a direction re quiring the respondent to pay to the petitioner No. 2 to 59 wages which they have earned. They have also prayed for a direction requiring the respondent to regularise the appointment of the Petitioners No. 2 to 59 and place them in the time scale of pay admissible to the appointees on the similar posts as held by the petitioners, who had been appointed on regular basis. Dur ing the pendency of the writ petition an applica tion was filed by the petitioners praying that the supplementary affidavit filed along with that application be accepted and a ground to the ef fect that the termination of the services of the Petitioners No. 20 to 59 was not in compliance with the provisions of law contained in Section 25-N of the Central act be allowed to be incor porated in the petition. :
( 6 ) A Division Bench of this Court vide its order dated August 4,1992 allowed the said application and accepting the supplementary affidavit directing that it will form part of the record.
( 7 ) A copy of the aforesaid application and the affidavit has been served on the counsel representing the respondents on May 14, 1992. The
