Uttarakhand High Court
Zydus Wellness Employees Union vs State Of Uttarakhand & Ors on 23 September, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2185 of 2022 (M/S)
Zydus Wellness Employees Union, Sitarganj
..... Petitioner
Versus
State of Uttarakhand & Ors. .....Respondents
Present:
Mr. D.S. Mehta, the learned counsel for the petitioner.
Mr. Vinod Nautiyal, the learned Dy. Advocate General and Mr.
N.S. Kanyal, the learned Brief Holder for the State.
Mr. Nischal Jagdhari and Mr. C.K. Sharma, the learned counsel
for respondent no. 4.
Date of hearing and order: 23.09.2022
Sri S.K. Mishra, J.
Heard.
2. By filing this writ petition , the petitioner-union has
prayed for the following relief:-
(I) to issue a writ, order or direction in the nature of
mandamus directing to the respondents decide the
representation/application of the petitioner union under
section 3 (a)(b) of U.P. Industrial Dispute Act pending
before the respondent no. 1.
(II) Pass a suitable writ, order or direction in favour of
the petitioner workmen and against the respondents which
this Hon'ble Court may deem fit and proper in the facts and
circumstances of the present case.
3. At this stage of fresh admission, the learned counsel
for the petitioner would submit that appropriate directions
may be given to the State Government to decide their
representation, filed under Section 3(a)(b) of the U.P.
Industrial Dispute Act, 1947, (hereinafter referred to as the
Act for brevity) (as applicable to the State of Uttarakhand).
The learned counsel for petitioner would further submit that
the aforesaid provisions is not applicable to the present
petitioner as there has been no lock-out by the respondent
rather it is a closure. He would also submit that the closure
was done without following the provisions of Section 6W of
the aforesaid Act as they do not have more than 300
permanent employees employed in their unit.
4. For the purpose of proper appreciation, the provisions
of Section 6W of the Act is reads as follows:-
6W. Procedure for closing down an
undertaking.-
(1) An employer who intends to close down an
undertaking of an industrial establishment shall, in
the prescribed manner, apply, for prior permission, at
least ninety days before the date on which the
intended closure is to become effective, to the State
Government, stating clearly the reasons for the
intended closure of the undertaking and a copy of
such application shall also be served simultaneously
on the representative of the workmen in the
prescribed manner:
Provided that nothing in this sub-section shall apply
to an undertaking set up for the construction of
buildings, bridges, roads, canals, dams or for other
construction work.
(2) xxxxxxxx.
(3) xxxxxxxx.
(4) xxxxxxxx.
(5) xxxxxxxx.
(6) xxxxxxxx.
(7) xxxxxxxx.
(8) xxxxxxxx.
5. Thus, a plain reading of Sub-section (1) of Section 6W
of the Act reveals that before closure, the industrial
establishment shall in the prescribed manner apply for
permission at least 90 days before the date on which the
intended closure has become effective. However, it is
clarified by Section 6V of the aforesaid Act, which reads as
follows:-
"6V. Application of Sections 6W and 6X
(1) The provision of Section 6-W and 6-X shall
apply to an industrial establishment pertaining to an
industry other than an industry referred to in sub-
clause (r) of clause (a) of Section 2 of the Industrial
Dispute Act, 1947 (not being an establishment of a
seasonal character or in which work is performed only
intermittently) in which not less than three hundred
workmen were employed on an average per working
day for the preceding twelve months;
(2) If a question arises whether an industrial
establishment is of a seasonal character or whether
work is performed therein only intermittently; the
decision of the State Government shall thereon shall
final.
6. The provision of Section 6W shall apply to an industrial
establishment pertaining to an industry other than industry
referred in Sub-clause (i) of clause (a) of Section 2 of the
Act (not being an establishment of a seasonal character or
in which work is performed only intermittently) in which not
less than three hundred workmen were employed on an
average per working day for the preceding twelve months;
If a question is whether an industrial establishment is
of a seasonal character or whether work is performed
therein only intermittently, the decision of the State
Government shall be final.
7. Thus, the provisions of Section 6V of the Act, to be
applicable, wherein the following requirement must be
satisfied, as enumerated below:-
(i) The industrial units must be a seasonal one or it
should be an industrial unit in which work is performed
intermittently.
(ii) not less than 300 persons were employed on an
average per working day for the preceding twelve
months.
8. Thus, it is clear that the industrial unit should be
seasonal or intermittently one and should have either 300
employees or less than one.
9. The learned counsel for respondent no. 4 would argue
that those 300 employees has to be permanent employees
and he admitted that the industrial unit has 150 permanent
employees and more than 1000 contractual labourer. By
relying upon a judgment of Bombay High Court in Dyes and
Chemical Workers Union vs. Bombay Oil Industries Ltd. and
Ors., O.O.C.J. Ref., in W.P. No. 1632 of 2000 along with
L.P.A. No. 356 of 2000 decided on 23.01.2001, the learned
counsel for the petitioner would submit that the worker
engaged on contractual basis are not to be included in
calculating figure 300. However, the provision of Section 6W
of the Act shall not be followed if two conditions are fulfilled
(1) with respect to the number of employees and, (2) with
respect to the seasonal or intermittently nature of industry.
10. It is not disputed that the industry is not a seasonal
industry. This Court is of the, prima facie, opinion that there
has been violation of Section 6W of the Act, and this matter
should also be considered by the State Government.
11. Hence, the writ petition is disposed of directing
respondent no. 1 to decide the representation given to it
through Principal Secretary, Labour Department,
Government of Uttarakhand, Dehradun within a period of
30 days from the date of production of certified copy of the
order by passing a reasoned and speaking order after
affording reasonable opportunity of hearing to the petitioner
as well as the representatives/Principal Officer of respondent
no. 4 and any such person who may be interested in the
proceedings.
12. With such observation the writ petition is disposed of.
(Sanjaya Kumar Mishra, J.)
(Grant certified copy as per Rules.)
PV
