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HIGH COURT OF ALLAHABAD
S.R. SINGH, J.
Brijesh Kumar Srivastava - Appellant
Versus
Director, Rajya Krishi Utpadan Mandi Parishad, U. P. Lucknow - Respondent
Civil Misc. Writ Petition No. 11158 of 1992
Decided on : Apr 07, 1992
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(S), 6-N - U.P. INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(G), 6-N - RETRENCHMENT - AUTOMATIC TERMINATION OF SERVICES - APPLICABILITY OF SECTION 6-N - CONTINUITY OF SERVICE - REGULARISATION OF SERVICES.
Fact of the Case:
Petitioner, a driver, was appointed on a contract basis for a fixed term ending on February 29, 1992. After the expiry of the contract, the petitioner's services were not terminated, but he was not paid his salary or regularized. The petitioner filed a writ petition under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents to accord continuity to his service, pay his salary regularly, and regularize his services.
Finding of the Court:
The court held that the automatic termination of the petitioner's services amounted to retrenchment within the meaning of section 2(s) of the U.P. Industrial Disputes Act, 1947, and that the petitioner was entitled to the protection of section 6-N of the Act. The court directed the respondents to treat the petitioner in continuous service and pay him the wages stipulated in the appointment order dated 30-3-1991, so long as his services were not lawfully terminated.
Issues: 1. Whether the automatic termination of the petitioner's services amounted to retrenchment within the meaning of section 2(s) of the U.P. Industrial Disputes Act, 1947? 2. Whether the petitioner was entitled to the protection of section 6-N of the U.P. Industrial Disputes Act, 1947?
Ratio Decidendi: 1. The court held that the expression 'termination for whatsoever reason' occurring in section 200 of the Industrial Dispute: Act 1947, means termination which takes place either by active step by the employer or by running out of stipulated period. 2. The court held that the petitioner had been in continuous service for not less than one year in the establishment of the respondents on 29th February 1992, and as such his services were not liable to be retrenched except in the manner indicated in section 6-N of the U.P. Industrial Dispute Act. 3. The court held that the postulates contained in the letter of appointment to the effect that the services of the petitioner would come to an end on 29th February 1992, in no manner, stultifies the applicability of clauses (b) and (c) of section 6-N and since on the admitted facts, the postulates contained in clause (b) and (c) were not complied with the retrenchment of the petitioner even on the ground of running out of his term of employment, is, in my opinion, vitiated.
Final Decision: The petition was allowed. The respondents were directed to treat the petitioner in continuous service and pay him the wages stipulated in the appointment order dated 30-3-1991, so long as his services were not lawfully terminated.
S.R. Singh
1. By means of the present petition under Article 226 of the Constitution of India, the petitioner seeks issuance of a writ of mandamus directing the respondents to accord continuity to his service and to pay salary to him regularly and further to regularise his services as a Driver in the establishment of Mandi Parishad.
2. Factual matrix of the case is that the petitioner was appointed as a Driver by an order dated 30-3-91 on contract basis subject to a consolidated salary of Rs. 1516/- per month. It was postulated in the appointment order dated 30-3-91 that unless the appointment was terminated earlier, it would automatically come to an end on February 29, 1992. The services of the petitioner were not terminated earlier than 29th February 1992, but it appears that the respondents refused to extend the span of employment whereupon the petitioner has come up to this Court under Article 226 of the Constitution of India seeking the reliefs aforesaid.
I have heard Sri B. P. Singh, learned counsel appearing for the petitioner and Sri B. D Mandhyan learned counsel appearing for the respondents.
3. In State Bank of India v. S. M. Manie, AIR 1976 (SC) 1111, it was held that the expression 'termination for whatsoever reason' occurring in section 200 of the Industrial Dispute: Act 1947, means termination which takes place either by active step by the employer or by running out of stipulated period. In the instant case, it was not disputed by Sri B. D. Mandhyan that the provisions of U. P. Industrial Dispute Act 1947. are applicable. Section 2 (s) is in pari materia with section 2 (00) of Industrial Disputes Act, 1947. However, for ready reference section 2 (s) of the U. P. Industrial Disputes Act 1947 is quoted below. "Retrenchment" means termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but dots not include; (i) voluntary retirement of the workman; -" (ii) retirement of the workman on reaching the age of superannuation, in the contract of employment between employer and the workman concerned contains a stipulation in that behalf." Section 6-N of the U. P. Industrial Disputes Act, 1947, being also relegant for the purposes of discussion is quoted as below
"6-N. Condition precedent to retrenchment of workman-No workman employed in any Industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for period of the notice. Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies the: date for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to 15 days' average pay for every completed year of service or any part thereof in excess of six months; (c) notice in the prescribed manner is served on the State Government."
Expression 'continuous service' as defined in section 2 (g) of the Act means uninterrupted service and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or cessation of work which is not due to any fault on the part of the workman and the workman who during a period of twelve calendar months has actually worked in an Industry for not less than 240 days, shall be deemed to have completed one year of continuous service in that Industry.
4. The petitioner admittedly joined the duties on 1st of April 1991 and worked continuously upto 29th February 1992. In this view of the matter, he has been in the service in unabated continuity for not less than one year in the establishment of the respondents on 29th February 1992, and as
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