Allahabad High Court
St. Josheph Convent School Thru' ... vs The Presiding Officer, Labour ... on 17 April, 2013
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 1
Case :- WRIT - C No. - 17727 of 2011
Petitioner :- St. Josheph Convent School Thru' Principal
Respondent :- The Presiding Officer, Labour Court U.P. Allahabad & Another
Petitioner Counsel :- Shyam Narain,Gopal Narain,Sudhanshu Narain
Respondent Counsel :- C.S.C.,Kailash Prasad Pandey,Vinod Kumar Srivastava
Hon'ble Tarun Agarwala,J.
The workman committed an act of misconduct and was consequently chargesheeted. The management appointed an Enquiry Officer to conduct a domestic enquiry. The Enquiry Officer gave full opportunity to the workman to defend himself. The Enquriy Officer after considering the various evidence that was brought before it submitted an enquiry report holding that the charges levelled against the workman stood proved. Based on the enquiry report, the management issued a notice, and thereafter, the management after considering all aspects of the matter, passed an order terminating the services of the workman. The workman, being aggrieved by the order of termination, raised an industrial dispute, which was eventually referred to the labour court for adjudication.
Before the Labour Court, the workman contended that he had been in continuous service for more than 15 years and that he was not responsible for the misconduct as he was only a door checker in a bus and not a bus driver and was not responsible for the accident. The workman contended that he had worked for more than 240 days in a year and that the order of termination was in violation of the provision of 6-N of the U.P. Industrial Disputes Act.
On the other hand, the petitioner/ employers contended that the management took action in terminating service of the workman on account of disciplinary proceedings being initiated against him by serving a chargesheet, and thereafter, holding an enquiry against him. The petitioner contended that the charges stood proved and, on that basis, disciplinary action was taken and since the charges were grave in nature, the services of the petitioner was terminated. The petitioner in the written statement had also stated that in the event the labour court finds that the enquiry initiated and conducted by the management was violative of the principles of natural justice, in that event, an opportunity should be given to them to prove the charges before the labour court itself.
The labour court without considering the validity and legality of the domestic enquiry proceedings has set aside the termination of the workman on the short ground that the workman had worked for 15 years continuously without any break in service and that there has been a gross violation of Section 6-N of the U.P. Industrial Disputes Act. The labour court accordingly directed reinstatement with continuity of service and with full backwages. The petitioner, being by the said award, has filed the present writ petition.
Having heard the learned counsel for the parties at some length, the Court is of the opinion that the award of the labour court can not be sustained. The Court is constrained to observe that the Presiding Officer of the labour court does not know the basic labour jurisprudence. The retrenchment compensation is payable when a person is retrenched for whatever reason except by way of disciplinary proceedings. This is clearly indicated in the definition of clause 2-(s) of the U.P. Industrial Disputes Act. For facility, the said provision is extracted hereunder:
(s)' Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-
(i) voluntary retirement of the workmen; or
(ii)retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf;
A perusal of the aforesaid provision indicates that retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action .
Section-6-N of the U.P. Industrial Disputes Act provides certain conditions, which are required to be made by the employer before retrenching the workman. For facility, the said provision is extracted hereunder:
6-N. 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 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.
A perusal of the aforesaid provision indicates that a workmen who has been in continuous service for not less than one year could not be retrenched unless the workman has been given one month's notice in writing or one month's wages in lieu of such notice and that compensation would be equivalent to fifteen days' average pay for every completed year of service order of service or any part thereof.
From the aforesaid, it is clear that Section-6-N would come into play, if a workman is retrenched for any reason whatsoever except by way of disciplinary action. If disciplinary action is adopted and the services of the workman is terminated on account of a disciplinary action, then retrenchment compensation is not payable and Section 6-N is not applicable.
In the light of the aforesaid, the provision of Section-6- N is not attracted till such time as the order of termination is not set aside. Consequently, the impugned award can not be sustained and is quashed.
The writ petition is allowed
Order Date :- 17.4.2013
Sanjeev
(Tarun Agarwala,J.)
