Sudhir Agarwal, J. - (1.) 1. Heard Sri V. Sahai, learned counsel for the petitioner and learned Standing Counsel for the respondents.
(2.) THE petitioner was engaged as a Chaukidar on daily wage basis at Nali Husainpur, District Ghaziabad vide order dated 7.7.1987 of Zila Yuva Kalyan Evam Pradeshik Vikas Dal Adhikari, Ghaziabad.. THE order of appointment shows that the petitioner's services were liable to be terminated at any point of time. By order dated 8.7.1988 the petitioner has been terminated with effect from 1.7.1988. Learned counsel for the petitioner has submitted that the petitioner has worked for more than 240 days but the procedure prescribed under Section 6N of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to "as the Act") has not been complied with, therefore, termination of the petitioner is in utter violation thereof. He further contended that the termination could not be made retrospectively inasmuch as, the order has been passed on 8.7.1988 but it has been given effect to from 1.7.1988. It is not disputed by the learned counsel for the petitioner that the respondents are the Departments of the Government and his engagement as Chaukidar is an employment under the services of the State of U.P. It is nowhere stated in the writ petition that the respondents are industry and petitioner is a workman which would attract the provisions of Section 6-N of the Act. There is no averment in the writ petition that the employer is an industry and the employee is a workman. There are questions of fact and in the absence of any pleading and evidence, the termination of the employee ipso facto would not attract Section 6-N of the Act unless it is pleaded and proved that the employer is an industry and the employee is workman.
(3.) IN reply to paras 6 and 7 of the writ petition, the respondents in para 7 of the counter affidavit while denying the averments of the writ petition, have averred that the said termination was in accordance with the terms of letter of appointment that his services can be terminated without any prior notice. Moreover, if the petitioner had any grievance of violation of provision of a special statute, namely, U.P. INdustrial Disputes Act, 1947, the remedy provided in that statute ought to have been availed. So far as the question regarding giving effect to the order retrospectively is concerned, it is well settled that no order of termination can be passed retrospectively. Such order is severable and therefore, this Court can severe that part of the order which makes it retrospective, if the order otherwise is valid. I, therefore, uphold it from the date it was passed . In the circumstances, the impugned order dated 8.7.1988 cannot be said to be invalid in so far as it would be effective from the date of its passing. The portion of the order to the effect that the petitioner has been terminated w.e.f. 1.7.1988 is hereby set aside.;