RAJENDRA PRASAD NISHAD vs STATE OF U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(All) 2784

ALLAHABAD HIGH COURT
BEFORE : SABHAJEET YADAV, J.
RAJENDRA PRASAD NISHAD ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 4695 of 2009, decided on 16th October, 2012)

Advocates:
Counsel :
Miss Bushra Maryam, Rajeev Kumar Upadhayay and S.K. Shukla for the Petitioner; C.S.C., Piyush Bhargava, Gopal Misra and V.R. Agrawal for the Respondents.

Headnote:(A) Industrial Disputes Act, 1947—Sections 33-C(2), 25-O(6), 10, 2(oo) and 25 (FFF)—U.P. Industrial Disputes Act, 1947—Sections 4-K, 6-W, 6-H(2) and 6-N—Retrenchment—Workman—Closure of establishment—Services of petitioner were terminated by notice after refusal of permission for closure of undertaking by State Government—However, he was paid retrenchment compensation and other terminal dues—Factum of retrenchment of petitioner workmen on account of closure of undertaking disputed—Whether Labour Court had jurisdiction to decide application under Section 33-C(2)/6-H(2)—Claiming computation of his wages/allowances—From date of his termination of services by treating him in continuous service by virtue of Section 25-O (6)/6-W(6)—On account of illegal closure of undertaking without challenging his termination/retrenchment through industrial dispute raised before Labour Court—Closure of undertaking shall be deemed to be illegal from date of closure—And workmen shall be entitled to all benefits under any law for time being in force—As if undertaking had not been closed down—Courts/Tribunals are bound to assume jurisdiction—Hence, rejection of application under Section 33-C(2) by Labour Court was not proper—Since closure of undertaking is illegal—Petitioner is entitled to be treated in continuous service by ignoring termination of his services as void-ab-initio—Whether such workmen required to raise industrial dispute—Either under Section 10/4-K—It is not retrenchment as defined under Section 2(oo)—Since services of workmen terminated on account of illegal closure of undertaking—Relief of continuity of service with backwages shall be straightway granted to them by Labour Court under Section 33-C(2) of Central Act or under Section 6-H(2) of State Act—Order impugned rejecting application under Section 33-C (2) by Labour Court unsustainable. [Paras 9, 12, 22, 27, 29, 34 to 36]
       (B) Industrial Disputes Act, 1947—Section 2(oo)—Retrenchment—Definition of—Closure of undertaking—”Retrenchment” of workmen on account of closure of undertaking does not fall within definition of retrenchment under Section 2(oo) of Act. [Para 10]
       (C) Words and Phrases—'Legal fiction'—What amounts to—Court believes something to exist—Which, in reality, does not exist. [Para 25]
       (D) Words and Phrases—"Presumption"—When conclusive—Presumption may be conclusive or it may be rebuttable—It is conclusive, if no evidence can be permitted to be led to deny it. [Para 25]
       (E) Industrial Disputes Act, 1947—Section 25-O—U.P. Industrial Disputes Act, 1947—Section 6-W (6)—Deeming provision—Purpose of—Termination of services—Illegal closure of undertaking—Legislature created legal fiction in favour of workmen of an industrial establishment—Whose services are terminated—On account of illegal closure of undertaking of—For purpose of granting them certain benefits. [Para 26]

JUDGMENT

Hon’ble Sabhajeet Yadav, J.—By this petition, the petitioner has challenged the validity and correctness of order dated 23.10.2007 passed by Presiding Officer, Labour Court, Allahabad in Misc. Case No. 75 of 2006, whereby the Labour Court has rejected the application of petitioner filed under Section 33-C (2) of the Industrial Disputes Act, 1947 with liberty to the petitioner to raise an industrial dispute under Section 4-K of the U.P. Industrial Disputes Act, 1947. A true copy of the order dated 23.10.2007 passed by the Presiding Officer, Labour Court, Allahabad in aforesaid case is on record as Annexure-1 to the writ petition.

2. The brief facts leading to the case are that the respondent No. 4 i.e. M/s Universal Tyres gave its unit at Allahabad on license basis for a period of 12 years to M/s Jai Shree & Rubber Products on 1.2.1977. The respondent No. 5 M/s Jai Shree Tea & Industries Ltd., Proprietor of Jai Shree Tyres & Rubber Product, New Delhi moved an application on 4.8.1986 to the State Government for closing down its concern. The State Government vide its order dated 20.9.1986 rejected the aforesaid application of the respondent No. 5 by reasoned order. Feeling aggrieved by which, the respondent company filed Writ Petition No. 19090 of 1986 and this Court has dismissed the writ petition on the ground that the company can file review petition and can also come for adjudication. Thereafter the respondent company filed review application, thereupon matter of closure of concern was referred for adjudication by the State Government to the Industrial Tribunal, Allahabad. The Industrial Tribunal Allahabad by an award dated 26.2.1987 has rejected the said application holding that the intended closure of the concern is not only un-reasonable but it is also illegal. A copy of the said award dated 26.2.1987 is on record as Annexure-2 to the writ petition.

3. Feeling aggrieved against the award dated 26.2.1987, passed by Industrial Tribunal, Allahabad, the employer filed Writ Petition No. 6295 of 1987 challenging the aforesaid award and validity of Section 25-O of the Industrial Disputes Act 1947. This Court vide its order dated 28.3.1990 allowed the writ petition filed by the respondent holding that Section 25-O of the Industrial Disputes Act is ultra-virus. Feeling aggrieved by aforesaid decision of this Court, Jai Shree Tyres Karamchari Union and the State Government approached Apex Court challenging the order passed by this Court, by which Section 25-O of the Industrial Disputes Act (Central) and Section 6-W of the U.P. Industrial Disputes Act had been held to be ultra-virus. The matter was referred to the Constitution Bench of Apex Court which decided in case of M/s Orissa Textiles & Steels Ltd. v. State of Orissa and others, 2002 (92) FLR 648, upholding the validity of Section 25-O of the Industrial Disputes Act (Central), consequently, the Supreme Court remanded the matter back to this Court for decision on merits. Thereupon Writ Petition No. 6295 of 1987 filed by the respondent No. 2 was dismissed by this Court on merit vide detailed judgment and order dated 28.1.2004. A true copy of the judgment and order dated 28.1.2004 passed by this Court in Writ Petition No. 6295 of 1987 is on record as Annexure-3 to the writ petition.

4. On dismissal of the aforesaid writ petition the petitioner moved an application under Section 33-C (2) of the Industrial Disputes Act and/ or Section 6-H(2) of the U.P. Industrial Disputes Act before the Labour Court. The case has been contested by the respondents and after hearing the parties vide impugned order dated 23.10.2007 the Labour Court has rejected the aforesaid application of the petitioner on the ground that since the services of petitioner has already been terminated and relationship of employer and employee between the petitioner and respondent company already came to an end, therefore, the Labour Court has no jurisdiction to decide the entitlement of the petitioner either und

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Judicial Analysis

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2012 Supreme(All) 2784

ALLAHABAD HIGH COURTBEFORE : SABHAJEET YADAV, J.RAJENDRA PRASAD NISHAD ....PetitionerVersusSTATE OF U.P. AND OTHERS ....Respondents(Civil Misc. Writ Petition No. 4695 of 2009, decided on 16th October, 2012)

Cases Referred (3)

Judicial Analysis

ALLAHABAD HIGH COURT
BEFORE : SABHAJEET YADAV, J.
RAJENDRA PRASAD NISHAD ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 4695 of 2009, decided on 16th October, 2012)