S.N.SRIVASTAVA, J. - (1.) PRESENT petition has been filed canvassing the validity of award delivered by the labour court on 28.2.1994 (Annexure -6 to the petition) attended with a further relief of mandamus restraining the labour court from implementing the award dated 28.2.1994.
(2.) MATRIX of the necessary facts as bear on the controversy involved in this petition is that Sri Prabhu Dayal, arrayed as respondent No. 5 in the present petition was engaged on daily wage basis on the post of clerk in the accounts department of the Nigam for a specified period, i.e., 60 days with the stipulation that his services were liable to be terminated after expiry of the prescribed period at any time without assigning any reason in accordance with the privity of contract between the Nagar Nigam and the respondent No. 5. It transpires from the record that the services of the petitioner were extended from time to time and each extension is stacked up back to back without there being anybreak and the extension granted from time to time endured upto 31.10.1990. It would further transpire from the record that the services of the respondent No. 5 came to be terminated by means of the order dated 22nd October, 1990, passed by Mukhya Nagar Adhikari, Bareilly. Aggrieved by the order of termination of his services, the respondent No. 5 knocked at the door of labour court. The proceeding pending before the labour court culminated in award aforestated and the quintessence of finding recorded by the labour court is that respondent No. 5 had worked from 31.10.1988 to 22.10.1990 in unbroken continuity and that in a calendar year, he had worked for more than 240 days. It has also been noticed in the award that no notice was served to the workman nor wages in lieu of period of notice or compensation for retrenchment have been paid to the workman. I have heard Sri G. D. Srivastava, learned senior advocate appearing for the petitioner and Sri N. K. Srivastava, for the respondent workman. Sri G. D. Srivastava, learned senior advocate, inter alia, submitted that the petitioner was appointed on daily wage basis initially for two months and that though he was sustained in service on extension granted from time to time in unbroken continuity, he was not entitled to be given protection of Section 6N of the U. P. Industrial Disputes Act read with Section 25F of the Industrial Disputes Act. He further contended that the Tribunal erred in holding that the petitioner was entitled to get any notice or compensation for the notice period given the phraseology of the orders giving extension to the workman passed from time to time and that the workman who was appointed for different period by different orders though worked continuously but was paid wages as daily wages employee and that his services were never regularised and therefore, he cannot be given the protection of Section 6N of the U. P. Industrial Disputes Act and by this reckoning award is vitiated and cannot be sustained in law. It is in the above perspective that question : 'Whether a daily wage employee who is not otherwise entitled to regularisation is entitled to be given protection of the provisions under Section 6N of the U. P. Industrial Disputes Act.' Reference in connection with the proposition propounded by the learned counsel for the petitioner, has been made to the decisions in Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors. : [1997]3SCR368 . Yet another decision cited in support of the contention is the decision in Kumaon Motor Owners Union Ltd. v. State of U. P. and Ors.. 1994 (1) AWC 636 : 1994 (2) UPLBEC 1106, followed by decision in Rqjesh Pratap Singh v. District Registrar Registration Office, Basti, 1995 (1) AWC 487 : (1995) 1 UPLBEC 403, in order to give prop to his submissions. These two decisions too are inapplicable to the present case inasmuch as the decision in these cases stems from different set of facts and circumstances and do not involve a vestige of controversy involved in this petition. Sri N. K. Srivastava appearing for the workman canvassed that the petitioner had been appointed on ad hoc basis initially for a period of two months but he was granted extension from time to time and he worked in unbroken continuity upto 31.10.1990. The learned counsel further contended that the respondent No. 5 has already completed more than 240 days in a calendar year as per requirements and by this reckoning, he was entitled to, protection under the provisions of Section 6N of the U. P. Industrial Disputes Act. In the present case, proceeds on the submission, the respondent workman was neither served with any notice nor was paid wages for the period of notice/compensation for retrenchment was paid and in this perspective, the award was rightly given. He cited decision in U.P. Vidyut. Mazdoor Sangh, Lucknow and Ors. v. U. P. State Electricity Board, Lucknow and Ors.. 1997 (2) AWC 2.241 (NOC) : (1997) 2 UPLBEC 1295 and decision in State Bank of India v. Sri N. Sundara Money, 1976 SCC (L & S) 132, to hammer home his submissions.
(3.) IN view of the controversy Involved in this petition, for proper appreciation of the controversy, Section 6N of the U. P. Industrial Disputes Act, may usefully be quoted below : '6N, Conditions precedent to retrenchment of workmen. - -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 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' 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.' It would thus crystallise that no workman employed in any industry and who has been in continuous service for not less than one year under an employer shall be retrenched by the employer until he has been given one month's notice in writing indicating the reasons for retrenchment and has been paid wages in lieu of such notice for this period. The only exception is that if retrenchment has been made under an agreement, which specifies the date of termination.;