Nirmal Organics Pvt. Ltd. vs Presiding Officer,Industrial Tribunal and Others

G. P. Mathur, J.—Chandrika Prasad, respondent No. 2, raised an industrial dispute that his services had been illegally terminated on 2521989 by the petitioner M/s. Nirmal Organics (P) Ltd. At his instance, the Dy. Labour Commissioner referred the dispute to Industrial Tribunal, Allahabad, under Section 4K of U. P. Industrial Disputes Act (hereinafter referred to as the Act) by the order, dated 6121990. The Tribunal gave an award on 8111991 holding that the termination of service of respondent No. 2 was illegal and consequently he was entitled to reinstatement with effect from 2521989 with full back wages and other benefits. The employers have filed the present writ petition for quashing of the award of the Tribunal. The parties have exchanged affidavits and therefore the writ petition is being disposed of finally at the admission stage with their consent.

Before the Tribunal, the respondent No. 2 filed a written statement on the ground inter alia that he was employed as typistcumclerk on 431988 on a consolidated wage of Rs. 1,000 per month and his services were terminated on 2521989 : that during the course of his employment he had actually worked for more than 240 days that he was neither given any notice nor wages in lieu thereof nor he was paid any retrenchment compensation and therefore there was violation of Section 6N of the Act and consequently termination of his service was wholly illegal and he was entitled to reinstatement with full back wages. The employers filed a written statement on the ground inter alia that respondents No. 2 was never in the regular employment of the company but used to work on parttime basis in a casual manner intermittently ; that he stopped coming to the office from February 1989 ; and that he is enrolled as an advocate with the Bar Council of U. P. A rejoinder affidavit was also filed on behalf of the employer stating that respondent No. 2 was working with Allahabad Canning Company where be was suspended on 17111987 ; that he filed several cases against the aforesaid Company claiming wages being cases No. 1 of 1988, 39 of 1988 before the Labour Court. In case No. 39 of 1988 he claimed wages for the period from 111988 to 3041988 from Allahabad Canning Company. This includes the period during which he claims to be under employment of the petitioner Company. It was thus pleaded that as respondent No. 2 had claimed employment with Allahabad Canning Company from 591987 till date, he was not entitled to claim employment and salary from the petitioner M/''s. Nirmal Organics (P) Ltd.

After considering the oral and documentary evidence, the Tribunal held that respondent No. 2 was employed as a clerkcumtypist with the petitioner on 431988 and his services were terminated on 2521989. It was further held that as one month notice in writing or wages in lieu thereof were not given and retrenchment compensation was not paid, the termination of services of respondent No. 2 was invalid under Section 6N of the Act. The Tribunal, accordingly, directed his reinstatement with back wages.

1 have heard Shri V. R. Agarwal, learned counsel for the petitioner, Shri K. P. Agarwal, Senior Advocate on behalf of respondent No. 2 and Shri Chandrika Prasad himself who appeared in the role of an Advocate. The main submission of the learned counsel for the petitioner is that on the facts and circumstances of the present case, the provision of Section 6N of the Act will not apply and therefore the award given by the Tribunal is erroneous. In the written statement filed by the workman (Annexure 5 to the writ petition), it is clearly stated in paragraphs 1 and 2 that he was appointed on 431988 and his services were terminated on 2521989. The Tribunal has also recorded a finding of fact m paragraph 8 of the award that respondent No. 2 was appointed on 431988 and his services were dispensed with on 25289. It is, therefore, obvious that respondent No. 2 did not complete one year with the petitioner and he actually worked for a period less than 12 calendar months. The learned counsel has submitted that if a person is under employment for a period which is less than 12 months, the provision of Section 6N of the Act would not apply even though he may have actually for 240 days or more. This vary party''s contention has been considered at length by a learned Single Judge in Baij Nath Bhattacharya v. Labour Court, 1995 (70) Indian Factories and Labour Reports 14 wherein after considering Section 25B of Central Industrial Disputes Act, 1947, as it stood prior to its amendment by Act No. 36 of 1964, and decisions of Supreme Court in Surendra Kumar v. Central Industrial Tribunal, 1988 (4) SCC 443 and Mohan Lai v. Management of M/s. Bharat Electronics, 1981 (42) FLR 389 ; it was held that before a workman can be considered to have completed one year of continuous services in an industry, it must be established as a fact that he was employed for a period of not less than 12 calendar months and that during those 12 calendar months he had actually worked for not less than 240 days. Sri K. P. Agarwal, Senior Advocate, in his usual fairness, also conceded that having regard to the language used in the U. P. Act the employment of the workman should not be less than 12 calandar months for the applicability of Section 6N of the Act. In the present case, it is not disputed that service of respondent No. 2 were terminated before he had completed 12 calendar mouths with the petitioner Company. Therefore the provisions of Section 6N of the Act will not apply. The view taken by the Tribunal that as the services of the workman had been terminated in violation of Section 6N the order of termination was illegal therefore, cannot be sustained.

After the judgment had been reserved, Shri Chandrika Prasad gave citation of certain rulings on which he relied in support of his case. They are : State Bank of India v. N. S. Money, AIR 1976 SC 1111, Straw Boards Manufacturing Company Lid.. 1974 (28) FLR 357 ; Rohtak and Hissar Electric Supply Company v. State of U. P., 1966 (12) FLR 290 and State Road Transport Corporation v. State of U. P., 1986 UPLBEC 1404. I have examined the aforesaid authorities and in my opinion, they have no application to the facts of the present case. The question as to whether Section 6N of U. P. Industrial Disputes Act or Section 25F of the Central Industrial Disputes Act will apply to the present case has also been considered in the case of Baij Nath Bhattacharya (supra)^ It has been held that Section 6N of the |U. P. Industrial Disputes Act will apply and not Section 25F of Central Act.

There is, thus, no escape from the conclusion that as respondent No. 2 was under employment for a period of less than 12 calendar months, there was no violation of Section 6N of U. P. Industrial Disputes Act and consequently the order of termination of his services cannot be held to be illegal.

For the reasons given above, the writ petition succeeds and is hereby allowed. The award given by the Industrial Tribunal on 8111991 (Annexure 1 to the writ petition) in Adjudication Case No. 59 of 1990 is quashed. No costs.