1. Termination of a typist-clerk employed by a Municipal Board — Dispute over the last come, first go principle under Section 6-P, U.P. Industrial Disputes Act, 1947. (Para 2 )
Back
Next 
1999 Supreme(SC) 261
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
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.
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.
Subject
Employment - Industrial Disputes
Act Referred
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)
Legal Category Hierarchy
Table of Contents
2. Whether a Municipal Board's administrative office constitutes an industry, whether a daily-wage clerk is a workman, and whether seniority rules apply to short-term daily-wage employees. (Para 3 )
3. General Administration Departments of Municipal Corporations are industries; clerical staff are workmen; Section 6-P seniority rules apply to daily wagers regardless of length of service. (Para 5 , 6 , 7 , 8 , 9 )
4. The last come, first go rule under Section 6-P of the U.P. Industrial Disputes Act applies to all workmen, including daily wagers, regardless of service length. (Para 7 , 8 , 9 )
5. Appeal allowed — High Court judgment set aside — Labour Court award restored with directions for reappointment and consequential benefits including backwages. (Para 11 )
6. Is the General Administration Department of a Municipal Corporation considered an industry?
Yes. Applying the primary and predominant activity and integrated activity tests, the General Administration Department is considered part of an industry if the various departments it collates are industries. (Para 5 )
7. Does a person performing clerical work in an industry qualify as a workman?
Yes, a person performing clerical work within an industry is treated as a workman under Section 2(z) of the Industrial Disputes Act. (Para 6 )
8. Does the last come, first go rule under Section 6-P of the U.P. Industrial Disputes Act require a minimum period of continuous service?
No. Section 6-P, which mandates that the last person employed in a category be retrenched first, is not controlled by the continuous service requirements found in Section 6-N. (Para 7 )
9. Does the rule of seniority apply to employees appointed on a daily-wage basis?
Yes. There is no restriction in Section 6-P or Section 2(z) of the U.P. Industrial Disputes Act that excludes daily-wage employees from the application of seniority rules. (Para 8 )
10. Can an employer deviate from the last come, first go principle?
Yes, an employer may deviate from this rule for reasons such as lack of efficiency or confidence, but the burden of proof lies with the employer to justify such deviation. (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
