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Judgment
S.K. Singh, J.—By means of this writ petition the petitioner has challenged the award of the Labour Court (1) Kanpur, dated 9.8.1990 passed in Adjudication Case No. 153 of 1986 (Annexure-10 to the writ petition).
Respondent No. 3 Keshav Kumar Tandan was appointed on daily wage as Peon in the petitioner''s Bank initially for a fixed period upto 31.3.1984 by appointment letter dated 2.2.1984. In pursuance of that appointment letter dated 2.2.1984, respondent No. 3 submitted his joining report on 4.2.1984. The appointment letter dated 2.2.1984 and the joining as was submitted by the respondent No. 3 has been annexed as Annexures-1 and 2 to the writ petition. In the joining as has been submitted by the respondent No. 3 dated 4.2.1984, he specifically states ^^eq>s mijksDr vkns''k esa ykxw leLr lsok ''krsZ eatwj gSaA** After 31.3.1984 respondent No. 3 was again appointed vide letter dated 16/19th November, 1984 for a period upto December 31, 1984 and again appointment was given to the respondent No. 3 by letter dated 2.1.85, with an stipulation that his appointment would come to an automatic end on expiry of the fixed term. In pursuance of the appointment letter dated 2.1.1985 working of the respondent No. 3 came to an end on 31.3.1985.
On account of cessation of work, a dispute was raised by the respondent No. 3 in respect to his continuance, upon which the State Government has made a reference in exercise of powers u/s 4K read with Section 2A of the U. P. Industrial Disputes Act, 1947 to the effect that "whether termination of services of Keshav Kumar Tandan w.e.f. 1.4.1985 is legal and if not, then to what relief he is entitled."
Initially the Labour Court gave an ex parte award on 25.10.1986. An application was moved by the petitioner for setting aside the award being ex parte was also rejected by the Labour Court on 27.6.1987. Thereafter, the matter having been taken up by the petitioner in the writ petition, the writ petition was allowed by the judgment dated 8.9.1989 passed in Writ Petition No. 512 of 1987 and the ex parte award was set aside and the matter was remanded back to the Labour Court.
On remand of the matter, petitioner filed written statement on 1.3.1990. It was stated in the writ petition that the appointment of the respondent No. 3 was contractual one and it is a case of non-renewal of the fixed term contract of employment which does not come within the definition of retrenchment. It was further stated that the appointment of the respondent No. 3 was for a fixed term which was duly accepted by him and, therefore, on completion of the period the engagement automatically came to an end.
On the aforesaid pleadings, it was stated that reference is not coverable u/s 2A of the Industrial Disputes Act. After filing written statement, statement of M.C. Verma, the Manager was given. On record, there is written statement of the respondent No. 3 as well as his own statement. After pleadings of the parties and the statements, the Labour Court gave its award on 9.8.1990 which was published in the notice Board of the Labour Court on December, 1990, which has been annexed as Annexure-10 to the writ petition, which has been impugned before this Court.
By the aforesaid award, respondent No. 3 was directed to be reinstated with further direction in respect to his pay.
Learned counsel for the petitioner has submitted before me that reference by the State Government was illegal, void and bad in law as appropriate Government in respect to the petitioner-Bank is Central Government and as such reference can be made only by the Central Government u/s 10 of the Industrial Disputes Act, 1947 and not by the State Government u/s 4K of the U. P. Industrial Disputes Act, 1947. It was submitted that the petitioner is a scheduled Bank in co-operative sector, activities of which is regulated by the Banking Regulations Act, 1949, under the control and supervision of the Reserve Bank of India. It has been argued that according to Section 4 of the Industrial Dispute (Banking and Insurance Companies) Act, 1949, reference can be made by the Central Government and not by the State Government. Reference has been made by the learned counsel on the definition of the appropriate Government as defined in Section 2A of the industrial Disputes Act.
Learned counsel has further pointed out the provisions of Section 2 (bb) of the industrial Disputes Act which gives definition of the Banking company, which shows that the Banking company means the banking company as defined u/s 5 of the Banking Companies Act, 1949. By referring the provisions as contained in Section 5 and Section 6 and the provisions as contained in Chapter 5 of the Banking Regulation Act, 1949, learned counsel submits that as the petitioner''s Bank is covered by the aforesaid provisions and, therefore, the appropriate Government in relation to the petitioner is the Central Government and, therefore, the reference as made by the State Government is bad in law.
In this connection, learned counsel for the respondents submits that the question whether in respect to the employees working in the U. P. Co-operative Bank and U. P. Cooperative Federation, the question of applicability of the provisions of the U. P. Industrial Disputes Act, 1947, has already been considered by the Division Bench of this Court (Lucknow Bench) and it has been held that the provisions of the U. P. Industrial Disputes Act, 1947, is fully applicable. In view of this, it has been argued that the submission as has been raised on behalf of the petitioner in the light of the various provisions as referred requires no probe. After careful examination of the decision as has been referred by the learned counsel for the respondent in Jai Kishun and Ors. v. U. P. Co-operative Bank Ltd., Lucknow and Ors. 1989 (2) UPLBEC 144 it appears that after consideration of the matter at length, the Division Bench was of the view that even in respect to the employees of the U. P. Co-operative Bank Ltd. provisions of U. P. Industrial Disputes Act, 1947, is applicable. The aforesaid decision of Jai Kishun and others (supra), has been considered by the learned single Judge of this Court in the writ petition filed by Micro Abrasives (India) Ltd. Vs. Dhanvir Singh and another, After analysing large number of cases of this Court as well as of Hon''ble Apex Court, the applicability of the provisions of U. P. Industrial Disputes Act, 1947, was reiterated.
In view of the aforesaid, the objection has been raised on behalf of the petitioner about the State Government not being the appropriate Government to make reference u/s 4K of the U. P. Industrial Disputes Act, 1947, deserved to be rejected.
It was then argued by the learned counsel for the petitioner that the employment of the respondent No. 3 was for a specified period and was contractual in nature and on cessation of the work after expiry of the period for which he was appointed, it can be said to be non-renewal of the contract which will not come within the definition of the retrenchment. According to the learned counsel as the workmen was appointed for a fixed period and, therefore, his service comes to an end automatically after expiry of such period, hence no notice u/s 6N of the Act for termination of service is necessary. Learned counsel has argued that even if the respondent No. 3 has worked for more than 240 days in a calendar year, although which is not proved in the present case, the cessation of the employment does not come within the ambit of the provisions of Section 6N of the U. P. Industrial Disputes Act, 1947.
Learned counsel placed reliance on the decision as reported in :
(1) U.P. State Co-operative Land Development Bank Ltd. v. Taz Mulk Ansari and Ors., 1994 Supp. (2) SCC 745.
(2) U. P. Kajya Sahakari Krishi Evam Graminya Vikas Bank Ltd. v. Labour Court, Allahabad and Anr. 1994 (68) FLR 1195.
(3) Arundhati Ajit Pargaonkar v. State of Maharashtra and Anr. (1995) 1 UPLBEC 93.
(4) Stare of Rajasthan v. Rameshwar Lal Gahlot 1997 (77) FLR 38.
(5) Family Planning Association of India and Another Vs. Presiding Officer, Labour Court (3) and Another,
(6) F.R. Jesuratnam Vs. Union of India (UOI) and Others,
It was then argued by the learned counsel for the petitioner that under the provisions of the U. P. Cooperative Society Employees Service Regulation, 1975, there is a specific provisions which is contained in Regulation 5 which provides the mode of recruitment for all the post in the co-operative society. It refers to the selection by selection committee which is to be provisional and will be subject to the approval of the Board (U. P. Co-operative Institution Services Board). It has been argued that respondent No. 3 was never approved by the selection board and it was just back-door entry and, therefore, no regularisation could be ordered against the statutory rules and the regulations which deals about recruitment. Learned counsel argued that in view of the aforesaid situation, there is no question of any violation of provisions as contained u/s 6N of the U. P. Industrial Disputes Act, 1947.
Learned counsel for the respondent in response to the aforesaid submissions has argued that employment of the respondent No. 3 even though for a fixed period as he has completed more than 240 days, has acquired status of an employee and thus his services cannot be terminated without complying with the provisions of Section 6N of the U. P. Industrial Disputes Act. Learned counsel on the strength of the decision as has been given in the case of Jai Kishun (supra), has argued that the employee who has completed 240 days in one calendar year even though with breaks here and there on cessation of their employment are entitled to get protection u/s 6N of the U. P. Industrial Disputes Act. It was said in that case that even where the business of society has shrunk or sanctioned strength of the staff was reduced resulting in retrenchment, the compliance of Section 6N is necessary.
Learned counsel further submits that there are certain employees, viz., Jai Shanker, Ram Prasad and Suresh who were appointed after respondent No. 3 and, therefore, action on the part of the petitioner is apparently arbitrary and discriminatory as juniors have been retained.
In the light of the aforesaid submissions on an analysis of the relevant provisions as contained in the U. P. Co-operative Societies Employees Services Regulation, 1975, makes it clear that all the appointment in the co-operative society is to be made through the Service Institutional Board and on the facts of the case. It is clear that respondent No. 3, as pleaded by the petitioner was engaged due to exigency of work for a fixed period.
The most important aspect to my mind is that the respondent No. 3 himself has Joined on 4.2.1984 on the basis of fixed term appointment by accepting the condition of the terms of appointment in writing. He has clearly written in the joining letter that "all the conditions of service mentioned in the appointment letter is acceptable to me." The effect of acceptance by him in writing about term of appointment requires examination in detail.
From the record also, it is not very much clear that in each calendar year, respondent No. 3 has completed more than 240 days as the working of the year 1984 and 1985, as has been placed on record do not establish the claim of the respondent No. 3. In the statement as has been given by M.C. Verma on behalf of the petitioner, it has come that Jai Shanker, Ram Prasad and Suresh Chandra were engaged on daily wage basis as Water-boy during summer when there was need of extra hand. It has been stated that those engagements were also for fixed term and after expiry of the term, their services automatically came to an end.
It has also been pleaded by the petitioner that it has not been demonstrated by the respondents that those persons were appointed in the same cadre and class like respondent No. 3. In any view of the matter in respect to their continuance throughout, the finding of Labour Court do not appear to be very convincing.
The decision as have been cited on behalf of the petitioner in support of the contention that the appointment for a fixed term, without, adopting any procedure, although there is a statutory rules for recruitment, in the event it comes to an end cannot be permitted to be regularised is liable to be examined. In the event of accepting the proposition as has been advanced on behalf of the respondent it will lead to a situation that if a person gets his engagement, for a few days or month just as an extra hand to meet exigency of service in which admittedly no opportunity is available to thousand of candidates being more needy, meritorious and person with private arrangement will get seated on a post which is not a private employment which will be against the mandate of equal opportunity in employment as guaranteed under the Constitution of India and thus it will be violative of Article 14 of the Constitution of India.
The claim of the respondent No. 3 no doubt can be sympathetic one but on the basis thereof, the protection which is available to others under the Constitution of India cannot be denied. If this situation is permitted to be legalised by law court, then in every department, although we are living in the age of unemployment which is one of the problem of the country, a person for various consideration somehow or other gets himself engaged in any capacity, i.e., daily wager, on fixed term say for a period of two months, three months and then laying claim for his regularisation and continuance leading to entry of much meritorious and needy unemployed persons blocked. This part of system and engagement to public employment will have to be given go-bye.
On the facts of the case, in the light of pleading and evidence, it is not clear that juniors to the petitioner have been retained and have been given continuity in service and there is no convincing finding by Labour Court. The specific averments in this respect denying continuance of those employees have been made in para 12 of the rejoinder-affidavit. In fact, the plea of the respondents that Jai Shanker, Ram Prasad and Suresh were employed after termination of the respondent No. 3 have not been specifically taken in the written statement filed by him and it is just in the statement this fact has come about which there is clear denial. The learned counsel for the petitioner has also stated in the written submission, as has been supplied to this Court that regular incumbent has been selected on the post on which respondent No. 3 is laying his claim.
In my opinion, the view taken by the Labour Court that the work for which respondent No. 3 was employed on daily wage was not of casual or temporary nature and direction for continuance of the respondent No. 3 treating the cessation of the petitioner''s work as retrenchment, attracting the provisions of Section 6N of the U. P. Industrial Disputes Act, 1947, is not justified in the facts of the present case. The further view as has been taken by the Labour Court that there is violation of Section 6P and Section 6-O of the Act is also not justified in view of the findings given above. It is not a case where the respondent No. 3 was engaged for a number of years on the basis of which it can be said that there was unfair practice on the part of the petitioner to give appointment for a limited period and going on extending the same time and again and therefore, there appears to be no justification to maintain the award on the consideration and finding as has been given by the Labour Court.
In view of the aforesaid discussions, keeping in view the nature of engagement of respondent No. 3, for a fixed term, which was specifically accepted by the respondent No. 3 by giving a note in writing and in view of the further fact that the engagement of the respondent No. 3 continued only for a short period, acquiring of right by respondent No. 3 will have to be reconsidered. A reading of the award given by the Labour Court does not indicate that he has properly analysed the evidence for giving clear finding about working of respondent No. 3 for even 240 days in one calendar year, for how long period respondent No. 3 had worked, whether the juniors to the respondent No. 3 in the same cadre have been retained without any lawful justification, and whether any regular incumbent on the post on which respondent No. 3 was working has been selected. In view of this, unless a clear finding on all these aspects, by making reference to the positive evidence comes, the claim of the respondent No. 3 cannot be accepted. If it is found that there is element of arbitrariness and discrimination on the part of the petitioner and the respondent No. 3 has continued for several years, some consideration may weigh in his favour and, therefore, the matter requires reconsideration.
For the reasons stated above, this writ petition succeeds and is allowed, the impugned award as has been given by the Labour Court dated 9.8.1990 passed by the Labour Court (I), Kanpur, in Adjudication Case No. 153 of 1986. Annexure-10 to the writ petition is hereby quashed and the matter is remanded to the Labour Court for deciding the claim of the respondent No. 3 afresh in the light of the observations as made in this judgment.
Parties are directed to bear their own costs.