Tarun Agarwala - (1.) THE workman was appointed as a "Sahyogi" by an order dated 2.2.1984 for a fixed period till 31.3.1984 @ Rs. 10.77 per day. After the expiry of the period, fresh appointment orders were again issued for a fixed period and, in this manner, the workman continued to work without any break in service. By an order of 15.5.1984, the petitioner fixed the pay of the workman @ Rs. 245.00 per month plus dearness allowance and housing allowance. According to the workman, this was an order of regularisation which was passed after interviewing him and which was also approved by the U. P. Co-operative Institutional Services Board. On the other hand, the petitioner has refuted this allegation, and contends that the petitioner continued to issue short term appointment letters and that the last appointment letter issued to the workman, was dated 2.11.1985 which was till 31.3.1985. THE workman worked till 31.3.85, and thereafter, no further extension was given and, in this manner, the services of the workman came to an end automatically after 31.3.1985.
(2.) THE workman, being aggrieved by the removal of his services, raised an industrial dispute which was referred to the labour court on 31.7.1986. Since the petitioner did not appear, the labour court passed an ex parte award dated 25.10.86, directing reinstatement of the workman with back wages. Upon coming to know of the ex parte award, the petitioner filed an application for setting aside the ex parte award, which was rejected by an order of the labour court dated 27.6.1987. THE petitioner, being aggrieved by the said ex parte award, filed Writ Petition No. 5112 of 1987, in which, an interim order dated 19.4.1988 was passed directing the petitioner to pay wages last drawn by the workman w.e.f. May, 1988 onwards. Instead of paying last drawn wages, the petitioner reinstated the workman, by an order dated 12/16.9.1988. THE aforesaid writ petition was allowed by a judgment dated 8.9.89 and the ex parte award was set aside and the matter was remanded to the labour court to decide the matter afresh. THE Court, however, directed that till the pendency of the dispute before the labour court, the petitioner would continue to pay full salary to the workman. Before the labour court, the petitioner filed the written statement and submitted that the workman was appointed on a fixed term and that his services came to an end automatically upon the expiry of the period and that in view of the provisions of Section 2 (oo) (bb) of the Industrial Disputes Act, there was no retrenchment and that the petitioner was not liable to pay any retrenchment compensation and consequently, no reference under Section 2A of the Act could be made. It is necessary to state here that the petitioner did not raise any plea in the written statement with regard to the applicability of the U. P. Industrial Disputes Act. The labour court, after considering the evidence on the record, gave an award dated 9.8.90 holding that the workman had worked for more than 240 days and was therefore entitled for the payment of compensation. The labour court held that since no retrenchment compensation was paid, the cessation of the service of the workman was illegal, and, therefore, the workman was liable for reinstatement with continuity of service and with full back wages. The petitioner, being aggrieved by the said award, filed Writ Petition No. 27947 of 1991 which was again allowed by a judgment dated 17.9.2001 and the matter was remitted again to the labour court with certain directions. The Court while remanding the matter, directed the labour court to give a finding, as to whether the workman had worked for 240 days in a calender year or not and whether juniors to the workman were retained by the employer while dispensing with the services of the workman and whether any person was employed after the dispensation of the service of the workman by the employer?
(3.) DURING the pendency of the proceedings before the labour court, the Supreme Court delivered a judgment in Ghaziabad Zila Sahkari Bank Limited v. Additional Labour Commissioner and others, 2007 (113) FLR 50, in which, it was held that the U. P. Co-operative Societies Act, 1965 was a special Act and that the U. P. Industrial Disputes Act was a General Act and that the Special Act would prevail over the General Act. The Supreme Court, further held that the U. P. Co-operative Societies Act, 1965 and the U. P. Co-operative Societies Employees Services Regulations, 1975 was a complete Code by itself with regard to the service conditions of the employees of the Co-operative Society which provided a complete machinery for the adjudication of their disputes, and therefore, the provisions of U. P. Industrial Disputes Act was not applicable with regard to the adjudication of the claim of an employee of a Co-operative Society. In the light of this judgment, the petitioner raised a plea before the labour court that the proceedings are without jurisdiction and that the labour court should decline to answer the reference raised by the State Government. The labour court, by its award dated 25.1.08 repelled the contention of the petitioner and found that the petitioner was an industry and that the provision of the U. P. Industrial Disputes Act was applicable. The labour court, on the basis of the evidence, led by the parties held the workman had worked for more than 240 days in a calender year and that the juniors to the workman were retained while dispensing with the services of the workman and also found that the petitioners had not appointed any person after removing the workman concerned. The labour court further found that since retrenchment compensation had not been paid and the provisions relating to the retrenchment compensation, had been violated by the petitioner, the labour court consequently directed reinstatement of the workman with continuity of service and with full back wages. The petitioner, being aggrieved by the said award, has filed the present writ petition.;