Narendra Deo Krishi Evam Proudyogik Vishwavidyala v. Kulpati Narendra Deo Krishi Evam Proudyogik Vishwavidyalaya
1989-05-19
S.H.A.RAZA, U.C.SRIVASTAVA
body1989
DigiLaw.ai
JUDGMENT S.H.A. Raza, J. - By means of this writ petition, the petitioner which is a trade union registered under the Indian Trade Unions Act, 1926, and draws its membership from amongst the employees of the lower category of Narendra Deo Krishi Evam Proudyogik Vishwavidyalaya, Faizahad, has prayed for the issue of a writ of mandamus commanding the respondents not to terminate the services of 43 employees and treat them as continuing in employment and not' to make any appointment in pursuance of the advertisement inserted in "Janmorcha Dairy," contained in annexure 2, mentioning therein if they did not report for duty it would be deemed that they are not interested in continuing in employment of the Narendra Deo Krishi Evam Proudyogik Vishwavidyalaya, Faizabad. This advertisement was followed by another advertisement mentioning that the recruitment would be made to the various categories of employees on a permanent basis. 2. The aforesaid employees who were treated as casual workers although they have been working since 1976 to 1981, have been agitating for improvement in the service conditions. Ultimately, the State Government invoking the powers under section. 4K of the Uttar Pradesh Industrial Disputes Act, 1947, referred the dispute for adjudication before the Labour Court. The dispute which was referred pertains to their regularisation in permanent service. In the said reference order the names of 43 labourers were mentioned. As soon as the said dispute was referred the aforesaid employees were served with the notices by means of which they were called upon to report on duty till 13 December 1966, failing which it would be presumed that they would not like to work as casual labourers and would not be entitled to work. The said notice has been challenged on the ground that the respondents have not obtained prior approval from the appropriate authority or from Industrial Tribunal as the case of the workmen is still pending. It was also assailed on the ground that no disciplinary action whatsoever has been taken against the 'acid employees and they were denied opportunity to show cause to the said notice. On 16 January 1987, this Court has passed an interim order to the effect that till the next listing proceedings for appointment shall go on but further appointment shall not be made. 3.
On 16 January 1987, this Court has passed an interim order to the effect that till the next listing proceedings for appointment shall go on but further appointment shall not be made. 3. A counter-affidavit has been filed by Sri J.P. Srivastava, Administrative Officer, Narendra Deo University of Agriculture and Technology, Faizabad, in which it has been contended that the petitioner-union was not recognised by the respondents and respondent-university does not fall within the ambit of " industry" and the provisions of the Uttar Pradesh Industrial Dispute Act, or any other industrial law do nor apply to the university. The labourer were engaged on daily wages and casual basis for intermittent work and were pail daily wages. The workers in violate, of ban on strike which was promulgated by gazette notification, dated 23 April by the State Government under section. 3(1) of Uttar Pradesh Essential Services Maintenance Act, 1986, stopped casual work the university with effect from 7 November 1986, and general notice was published in the newspaper, advising them to resume casual work by 13 December 1986. Thereafter same posts were advertised to be filled up on temporary basis. The aforesaid 43 labourers were never remained in the employment of the university, they WOO w, my engaged as casual labourers for intermittent work on daily wages according to the requirement. The reference to the Labour Tribunal made by the State Government is without jurisdiction. 4. It is well settled that the university is and industry" and 43 labourers whose services have been terminated came within the definition of workman. Now it has to be seen whether the termination of services of these labourers amounts to termination within section. 2 of the Act. The petitioner which represents the cause of the 43 workmen has assailed the order of termination on the ground that provisions of section. 6N of Industrial Disputes Act, were not followed while terminating the services of the workmen. According to section. 6N of the Uttar Pradesh Industrial Disputes Act, before retrenchment is resorted certain conditions have to be complied with by the employer, viz., giving of one month's notice or wages in lieu thereof, the workman has to be paid retrenchment "compensation and notice in prescribed manner is to be served on the State Government. Admittedly, no retrenchment compensation has been paid to the workmen nor one month's notice prior to the recruitment was given.
Admittedly, no retrenchment compensation has been paid to the workmen nor one month's notice prior to the recruitment was given. Certainly this provision applies to the workmen who have been in continuous service for not less than one year. The terms " continuous service" has been defined under section. 2(g) of the Uttar Pradesh Industrial Disputes Act which means uninterrupted service and merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work is not due to any fault on the part of the workman, and a workman, who during a period of twelve calendar months has actually worked in an industry for not less than two hundred and forts days shall be deemed to have completed one year of continuous service in the industry. In the instant case although it has been averred in the counter-affidavit that the workers were employed as casual labourers for intermittent casual work on daily wages according to need but it has nowhere denied as to whether they had not completed more than 5 to 9 years' service as alleged by the petitioner. Thus, it is clear that the workmen had completed more than 240 days' work in one calendar year preceding cessation of their employment. 5. Sections 2(oo) and 25F of the Industrial Disputes Act (Central) came for consideration before the Hon'ble Supreme Court and it was held that non-compliance with the provisions of section. 25F rendered the termination of the services of an employee or cessation of employment as void and illegal in State Bank of India v. Sundaramony, 1976 II L.L.N. 5.. 6. In the case of Gammon India, Ltd. v. Niranjan Dass, 1984 I L.L.N. 90.], exception as provided under section. 2(oo) of the Industrial Disputes Act (Central), it amounted to retrenchment even though it may be on the ground of reduction in volume of business. The retrenchment bringing about the termination was held to be abinitio void in absence of compliance with the prerequisites as laid under section. 25F of the Industrial Disputes Act. Before resorting to retrenchment, the opposite parties have not followed the provisions of section. 25F of the Central Act, inasmuch as before retrenching the 43 employees no permission from the appropriate authority was obtained.
25F of the Industrial Disputes Act. Before resorting to retrenchment, the opposite parties have not followed the provisions of section. 25F of the Central Act, inasmuch as before retrenching the 43 employees no permission from the appropriate authority was obtained. The opposite parties have undoubtedly resorted to unfair labour practice by retrenching the services of the petitioner particularly when the reference under section. 4K was pending before the Industrial Tribunal and retrenchment was wilfully resorted just to deprive them from the benefit of the adjudication in the dispute. 7. The argument of the learned counsel of the respondents that the labourers cannot claim the benefit of the Industrial Disputes Act inasmuch as the university does not come within the definition of industry" has no force. A Division Bench of this Court in Civil Miscellaneous Writ Petition No. 7816 of 1986 S.N. Shukla v. Vice-Chancellor, Allahabad University. gave the benefit of the provisions of Industrial Disputes Act of the daily wags (sic) of Allahabad University, working merely as a labourer of the said university. 8. In the result, this writ petition succeeds and is allowed. A writ in the nature of mandamus is issued commanding the respondents not to terminate the services of the aforesaid 43 employees and to treat them in continuous employment of Narendra Deo University of Agriculture and Technology, Faizabad, and if their services have already been retrenched then reinstate them with all benefits. There shall be no order as to costs.