B.D. Agrawal, J. - (1.) The short question arising in this petition is whether for purposes of retrenchment continuous service of a workman is to be computed in this State in accordance with the provision made in Section 2 (g) of the U.P. Industrial Disputes Act, 1947 or whether the computation is to be made as per Section 25-B of the Industrial Disputes Act, 1957. Section 25-B(2)(a)(ii) says, so far as relevant, that a workman is deemed to be in continuous service under an employer for a period of one year, if during the period of twelve calendar months preceding the date with reference to which calculation is to be made, he has actually worked under the employer for not less than 240 days. The provision made in Section 2 (g) of the U.P. Act is that a workman, who, during a period of twelve calendar months, has actually worked in an industry for not less than 240 days, shall be deemed to have completed one year of continuous service in the industry. The difference lies in that whereas under the Central Act continuous service for the required period of 240 days is deemed to have been put in if the workman has worked during a period of twelve calendar months preceding the relevant date while as per the U.P. Act 240 days work must have been put in during twelve calendar months. The finding of the Labour Court in the present case on point of fact is that the respondent was employed on 3rd March, 1981, and continued to work till 31st December, 1981, when his services were terminated and during this period he had put in more than 240 days.
(2.) Sri S. K. Sharma, learned counsel for the petitioner, urged in reference to Section 6-N of the U.P. Act, that the respondent may not claim the benefit of conditions pertaining to retrenchment of workman because he had not been in continuous service as per definition given in Section 2 (g) aforementioned. Relying on Vishnu Das v. State of U.P. and others, 1974 AI.J 591. (Full Bench) it was submitted by him that the provision made in Section 6-N read with Section 2(g) of the U.P. Act will prevail notwithstanding what is provided for in Section 25-B, 25-F of the Central Act. Section 25-F lays down the conditions precedent to retrenchment of workman and this is identical to Section 6-N of the U.P. Act. The difference lies, as mentioned above, between the connotation of the expression 'continuous service' appearing in the two provisions. I am unable to agree to the contention raised for the petitioner in this respect.
(3.) Section 25-B of the Central Act was inserted by the Central Act 236 of 1964 with effect from December 1964. This, as mentioned above, relates to definition of 'continuous service'. Section 2(g)/Section 6-N of the U.P. Act were enacted earlier by the U.P. Act 1 of 1957. The subject-matter of the two enactments finds place in the Concurrent List. The proviso to Article 254(2) of the Constitution lays down that notwithstanding what is provided in clause (2) the Parliament is not prevented from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. If the Parliament has made such law, it is this which shall prevail as against the provision contained in the State law in respect of the same matter. Evidently the provision contained in Section 25-B of the Central Act, which is later in point of time, enacted by the Parliament, varies the provision contained in the State Act vide Section 2(g)/Section 6-N, which received the assent of the President no doubt, but was enacted earlier in point of time. In Vishnu Das (supra) the question raised related to Section 2-A of the Central Act. It was observed that where two self-contained Acts are in operation simultaneously in the same field covered by each, Section 2-A of the Central Act could not be deemed to have been inserted automatically in the U.P. Act so as to modify the definition of industrial dispute contained in Section 2(1) of the State Act. The distinction as between the point of the dispute arising in that case and the present one clearly is that in the former Section 2-A of the Central Act operated in its own field simultaneously with the provision relating to industrial dispute contained in the U.P. Act. If the dispute was referred under Section 4-K. of the U.P. Act the provisions of that Act applied to such adjudication while in case of reference made under Section 10 of the Central Act, it is that Act which governed. In the case before us conditions preceding retrenchment are identical so far as Section 25-F of the Central Act and Section 6-N of the U.P. Act are concerned (vide Straw Board Manufacturing Company Ltd., AIR 1974 SC 1132) Section 25-B of the Central Act varies the meaning given to continuous service as appearing in Section 2(g) of the U.P. Act. Since both Sections 25-F and 6-N occupy the same field, the proviso to Article 254(2) of the Constitution in my opinion, governs and for that matter the Central Act would prevail on the point as against the State enactment.;