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CASE NO.: Appeal (civil)  1322 of 2008

PETITIONER: Ghaziabad Development Authority & Anr

RESPONDENT: Ashok Kumar & Anr.

DATE OF JUDGMENT: 15/02/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T [Arising out of SLP(C) No. 17711 of 2004]

S.B. SINHA, J.

1.      Leave granted.

2.      Appellant is an authority constituted under the Uttar Pradesh Urban  Planning and Development Act, 1973 (Act).   It is a Local Authority within  the meaning of the General Clauses Act, 1897.  3.      For its various projects, it appoints daily wagers on an ad hoc basis.    Respondent herein was appointed by the Authority on 1.4.1988 as a Amin.   Appellant contends that he was appointed on a periodical basis depending on  the order of sanction issued by the State of Uttar Pradesh from time to time.    On the premise that the sanction for the said appointment was granted only  upto 30.3.1990, he was disengaged from services.         An industrial dispute was raised by the respondent. The State made a  reference for adjudication thereof by the Presiding Court, Labour Court,  U.P., Ghaziabad which is to the following effect; \023Whether the disengagement/deprivation, by the  employers, of their workman Shri Ashok Kumar s/o  Mahipal Singh, Amin from the work with effect  from 1.5.1990 is proper and lawful?  If not, what  benefit/reliefs the workman concerned is entitled to  get, along with any other particulars?\024

3.      Before the Labour Court, first respondent contended that since his  date of recruitment, i.e., on and from 1.4.1988 till 9.4.1990, he continued to  work.  It, however, appears that his services had been dispensed with on  1.4.1990.         It was urged that as despite the fact that he had worked for more than  240 days in one year, the mandatory requirements of Section 6-N of the  Uttar Pradesh Industrial Disputes Act, 1947 had not been complied with, the  same was illegal and, thus, he was entitled to reinstatement with full back  wages.  Appellant, however, in his written statement apart from denying and  disputing the averments made by the respondent that he had worked for  more than 240 days in the year preceding his retrenchment, categorically  stated that as the Government did not create any post, no work from the first  respondent could be taken and his services therefore, automatically came to  an end after 30.3.1990.        The learned Labour Court in its award opined that the respondent No.  1 had worked for more than 240 days in an year and as the requirement of  the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947  had  not been complied with, he is entitled to be reinstated in service with full  back wages.        It was, however, directed;                 \023He be re-employed accordingly.\024

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4.      A Writ Petition was preferred thereagainst by the appellant before the  Allahabad High Court.  By reason of the impugned judgment, the said Writ  Petition has been dismissed.

5.      Mr. Mahavir Singh, the learned senior counsel appearing on behalf of  the appellant, submitted that the Tribunal and consequently the High Court  committed a serious error in passing the impugned judgment insofar as it  failed to take into consideration that the services of the first respondent  having been availed only on a periodical basis, it was not necessary for the  appellant to comply with the provisions of Section 6-N of the Act.   It was  furthermore urged that the Tribunal in the aforementioned factual backdrop  could not have directed reinstatement of the first respondent.             Ms. Tatini Basu, learned counsel appearing on behalf of the  respondent, on the other hand, supported the impugned judgment. 6.      Although, a contention has been raised in the Special Leave Petition  that a statutory authority like the appellant is not an \021Industry\022 within the  meaning of Section 2(k) of the U.P. Industrial Disputes Act, 1947, the same  was not pressed.

7.      Before us, the offer of appointment has not been produced.  Whether  Respondent No. 1 continued to work on and from 1.4.1988 in terms of the  said offer of appointment or it was renewed from time to time on the basis of  grant of sanction thereof by the State of U.P. for specific periods is not  known.         We would, thus, have to proceed on the basis that the first respondent  worked with the appellant authority for the entire period between 1.4.1988  and 31.3.1990.  If that period is taken during which the respondent remained  in service into consideration for the purposes of applicability of Section 6-N  of the U.P. Industrial Disputes Act, there is no doubt whatsoever that the  first respondent had worked for more than 240 days in a year from the date  of retrenchment.         It was, therefore, obligatory on the part of the appellant to comply  with the provisions of Section 6-N of the Act.   It reads thus : \0236-N. Conditions precedent to retrenchment of  workmen.\027No 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\027 (a)     the workman has been given one month\022s  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 the period of  the notice : Provided that no such notice shall be  necessary if the retrenchment is under an  agreement which specifies a date for the  termination of service; (b)     the workman has been paid, at the time of  retrenchment, compensation which shall be  equivalent to fifteen days\022 average pay for  every completed year of service or any part  thereof in excess of six months, and (c)     notice in the prescribed manner is served on  the State Government.\024

8.      Section 6-N of the Act unlike Section 25B of the Industrial Disputes  Act, 1947 does not provide that working for a period of 240 days in the  preceding year would subserve the purpose.  What is necessary under the  said provision is working for a period of 240 days in one year.   Once, a  workman, has been in continuous service for not less than one year before  his retrenchment, one months\022 notice in writing indicating the reason thereof  or wages in lieu thereof, as also compensation equivalent to fifteen days\022

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average pay for every completed year of service or in part thereof in excess  of six months is imperative.   Proviso appended to clause (a) of Section 6-N  of the Act provides that no notice would be necessary to be served, if the  retrenchment has been in terms of an agreement which specified a date for  the termination of service.   The said proviso is not in pari materia with  Section 2(oo)(bb) of the Industrial Disputes Act, 1947.         Appellant has miserably failed to prove that the services of the first  respondent were taken under an agreement providing for a specific date for  termination thereof.  Even otherwise, the same does not absolve the  employer from payment of compensation as envisaged under clause (b) of  Section 6-N of the Act.   The Labour Court and consequentially the High  Court, therefore, in our opinion were correct in holding that the provisions of  Section 6-N of the Act had not been complied with.

9.      The question which however, arises for consideration is as to whether  the Labour Court was justified in awarding the relief of reinstatement with  full back wages in favour of the workman.         First respondent was admittedly appointed on a daily wage of Rs.17/-  per day.   He worked for a bit more than two years.   It has not been disputed  before us that sanction of the State of U.P. was necessary for creation of  posts.  The contention of the appellant before the Labour Court that the post  was not sanctioned after 31.3.1990 by the State was not denied or disputed.   If there did not exist any post, in our opinion, the Labour Court should not  have directed reinstatement of the first respondent in service.        A statutory authority is obligated to make recruitments only upon  compliance of the equality clause contained in Articles 14 and 16 of the  Constitution of India.   Any appointment in violation of the said  constitutional scheme as also the statutory recruitment Rules, if any, would  be void. These facts were required to be kept in mind by the labour court  before passing an award of reinstatement.

10.     Furthermore, public interest would not be subserved if after such a  long lapse of time, the first respondent is directed to be reinstated in service.

11.     We are, therefore, of the opinion that the appellant should be directed  to pay compensation to the first respondent instead and in place of the relief  of reinstatement in service.        Keeping in view the fact that the respondent worked for about six  years as also the amount of daily wages which he had been getting, we are of  the opinion that the interest of justice would be subserved if the appellant is  directed to pay a sum of Rs.50,000/- to the first respondent.  The said sum  should be paid to the respondent within eight weeks from date, failing which  the same shall carry interest at the rate of 12% per annum.   The appeal is  allowed to the aforesaid extent.  However, in the facts and circumstances of  this case, there shall be no order as to costs.