JUDGMENT Honble Rakesh Tiwari, J.—Heard Sri Vikas Srivastava holding brief of Sri S.M. Dayal, Counsel for the petitioner, the Standing Counsel for respondent Nos. 1 and 2 and Sri P.C. Jhingan for workman-respondent No. 3. 2. The petitioner is an educational Scientific, Research Training Institute and claims to be exempted from the purview of industry within the meaning of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act). It is claimed that petitioner institute is a society registered under Societies Registration Act for providing instructions and research in engineering, technology, pure and applied sciences and other branches of learning and dissemination of knowledge in science and technology. 3. The workman concerned was appointed as attendant in the hostel from 9.7.1984 to 5.8.1985. His letter of appointment shows that appointment of the respondent was purely on temporary basis and according to its terms and conditions, his appointment could be terminated at any time by one month notice or one month salary in lieu thereof. 4. As services of the respondent workman were not required by the petitioner, they were terminated on 5.8.1985 after giving one month’s notice in terms of his letter of appointment. Conciliation proceedings having failed, aggrieved the workman raised an industrial dispute and the following reference was made to the Presiding Officer, Labour Court (II), U.P., Kanpur : “KYA SEWAYOJAKON DWARA APNE SHRAMIK ANIL KUMAR SAVITA (PUTRA SHRI SOMNATH SAVITA) ATTENDANT Kl SEWAYEN ADESH DINANK 5.8.85 DWARA SAMAPT KIYA JANA UCHIT EVAM/TATHA VAIDHANIK HAI ? YADI NAHIN, TO SHRAMIK KYA LABH/ANUTOSH RELIEF PANE KA ADHIKARI HAI, EVAM KISI, ANYA VIVRAN KE SATH.” 5. Before the labour Court, the parties filed their respective written as well as rejoinder statements. The undisputed fact in the written and rejoinder statement of the parties, are that the workman had been appointed on 9.7.1984 as a temporary employee and that his services were terminated with effect from 5.8.1985 in terms of his letter of appointment. In his written statement the workman has, however, claimed that though his appointment was on temporary basis but he was appointed against a permanent nature of post and his termination of services being in violation of the provisions of Section 6-N of the Act, hence it was prayed that he may be reinstated on the post with continuity of service and full back wages. Paragraph 4 and 5 of written statement of the workman may be quoted here which is his case in nutshell. Paragraph 4 and 5 of written statement of the workman, are as under : “4. That the applicant served the opposite party concern upto 5.8.1985 i.e. from 9.7.1984 to 5.8.1985 for more than a year and as such provisions of Section 6-N of U.P. Industrial Disputes Act, 1947 came in operation in the case of the applicant. 5. That the services of the applicant were terminated by an order dated 5.8.85 without fulfilling the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 and consequently the said termination of service was illegal and unjustified.” 6. Case of the employer-petitioner is that even a temporary appointment can be made on a permanent post and appointment of the incumbent would be governed by the terms and conditions of appointment; that under clause (2) of his appointment letter, services of the respondent workman could be terminated at any time by one month notice and they have terminated services of the respondent workman after making said payment. It is also their case that petitioner is not a trade or profession and does not indulge in any business of profit rather it is purely a research and scientific institute working on the principle of, no profit and no loss. It also imparts education of technology to young students for advancement of technology. 7. It is emphatically urged by the Counsel for petitioner that clause 13 of the Conduct Rules and bye-laws of the society, provides that : “Any matter not covered by the above Rules and bye-laws will be governed by the relevant rules applicable to the servants of the State Government for the time being in force till the Board frames its own rules and bye-laws.” 8. Therefore, according to the bye-laws aforesaid, U.P. Temporary Govt Servant (Termination of Service) Rules, 1975 is applicable to the workman as there is no service rules for temporary employees in the petitioner institute and hence there is no illegality in termination of services of the workman who was a temporary appointee, after payment of one month notice by the petitioner. 9. No other point has been argued by the Counsel for petitioner. 10. 9. No other point has been argued by the Counsel for petitioner. 10. After hearing Counsel for the parties and perusing the impugned award as well as written statement of the workman, it is apparent that the workman has pleaded that he has worked for 12 calender months in the petitioner institute but has not pleaded that he had actually worked for 240 days continuously. 11. Section 2 (g) of the U.P. Industrial Disputes Act, 1947 defines term “continuous service” in the following manner : “Continuous Service’ means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which 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 forty days shall be deemed to have completed one year of continuous service in the industry.” 12. Therefore, three ingredients are necessary for continuous service that is : (1) The workman should have worked in the establishment during period of 12 calendar months; (2) He should have actually worked for not less than 240 days; and (3) while counting 240 days uninterrupted service, interruption on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock out or a cessation of work which is not due to any fault on the part of the workman, have been excluded, therefore, these have to be counted if applicable in a case. 13. In his evidence also before the labour Court, the workman has nowhere stated that he had actually worked for 240 days continuously rather he has accepted that he had been appointed vide Exhibit E-2 which is his letter of appointment and that his services have been terminated without compliance of provisions of Section 6-N of the Act without any reference to actual and continuous service of 240 days. In his cross-examination also, he has categorically admitted that he had accepted the terms and conditions of his appointment and had not raised any objection thereto. In his cross-examination also, he has categorically admitted that he had accepted the terms and conditions of his appointment and had not raised any objection thereto. Relevant extract of his evidence in this regard is as under : Þesjs iwoZ gkfLVy esa nks vVsUMsUV jg pqds FksA eSaus fnukad 5-7-1985 rd ogka ij dk;Z fd;kA fnukad 5-8-1985 dks ,l0oh0Vh0vkbZ0 dh vksj ls ,d i= feyk FkkA eq>s fnukad 5-8-1985 dk ,Xth0 bZ&2 feyk Fkk] eq>s ,Xth0 bZ&2 feyk Fkk] eq>s ,Xth0 bZ&2 dks feyus ds ckn dksbZ NVuh vkfn dk dksbZ ,slk ugha feyk FkkA ftl txg ij eSa vVsUMsUV ds in ij dk;Z djrk Fkk og in lekIr ugha gqvk FkkA esjs dks gVk;s tkus ds ckn lsA X X X X X X X }kjk Jh ,l0lh0 feJk tgka esa dke djrk Fkk ogka esjs vykok loZ Jh xzqi flag vkSj jktsUnz Álkn mik/;k; esjs vykok dk;Z djrs FksA fQj dgk fd ;g yksx esjs NksM+us ds le; ;gh oks yksx dk;lZ dj jgs FksA mu yksxksa dks dksbZ uksfVl ugha nh xbZ FkhA og yksx eq>als igys ls dk;Z dj jgs FksA ,Xth bZ&1 }kjk eq>s HkrhZ fd;k x;k FkkA ;g esjs ikl vk;k Fkk vkSj blh ds tfj;s eSa HkrhZ gqvk FkkA ,Xth0 bZ&1 esa fy[kh krksZ ij eSaus dksbZ ,rjkt ugha fd;k FkkA ,Xth B&2 esa tks ukfVl esa nkkZ;h xbZ gS og eSaus ugha yhAÞ 14. As regards the question whether the petitioner is workman or not it may be mentioned here that the petitioner imparts technology education on receipt of fees from the students. It is settled law that the teachers in educational institutions may not be an industry but class IV and III employees etc. fall in the definition of workman as defined under the U.P. Industrial Disputes Act, 1947, therefore, respondent No. 3 was a workman and the Labour Court has exercised his jurisdiction of denying the claim, hence the award does not suffer from vice of jurisdiction exercised by the Labour Court. 15. The labour Court after noting undisputed facts, dates of appointment and termination, proceeded to determine whether termination of service of the workman would fall within the ambit of retrenchment. 15. The labour Court after noting undisputed facts, dates of appointment and termination, proceeded to determine whether termination of service of the workman would fall within the ambit of retrenchment. It did not consider definition of retrenchment given in Section 2 (s) of the Act, according to which “Retrenchment” means the termination by the employer of the service of a workman on any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action but does not include voluntary retirement of the workman and if contract between the employer and the workman concerned contains a stipulation in that behalf. 16. It may be noted here that the contract of employment between the petitioner and the workman was that his services could have been terminated at any time without any notice. Regard may also be had to the fact that provisions of U.P. Temporary Govt. Servant (Termination of Service) Rules, 1975 were applicable in view of clause 13 of the bye-laws of the society which provided for exclusion of U.P. Industrial Disputes Act or Industrial Disputes Act as Government Rules were applicable. 17. The Apex Court has consistently held that applicability of U.P. Industrial Disputes Act or the Industrial Disputes Act would be excluded to the extent the Service Rules are applicable governing terms and conditions of the employees. 18. The labour Court only having noted span of period of 12 calender months during which the workman had worked, but failing to notice that neither there was any pleading or evidence that the workman had actually worked continuously for not less than 240 days, erroneously came to the conclusion that the workman in fact had worked for 240 days and hence his services were wrongly retrenched. 19. 19. At this stage, provisions of Section 6-N of the Act may also be noticed which contains conditions precedent to retrenchment of workman and provides as under : “6-N. Conditions precedent to retrenchment of workman.—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 of 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 prescribed manner is served on the State Government. 20. Sub-clause (a) and (b) are mandatory and sub-clause (c) is directory. The proviso to Section 6-N also makes it clear that no such notice shall be necessary if retrenchment is under an agreement which specifies a date for termination of service. This indicates that services can also be terminated under the terms and conditions contained in the appointment letter or agreement between the parties. In the present context, the contract of employment between the employer and the workmen which has been accepted by him, clearly stipulates that services could be terminated at any time by giving one months notice/pay. The workman has also admitted this fact on record. 21. In my opinion, it is not only the span of 12 calendar months which is relevant but workman concerned has also to plead and prove that he had actually worked for 240 days during the aforesaid span of 12 calendar months or a year. It is so because Section 6-N read with Section 2(g) of the Act says so. 22. The award given by the labour Court is, therefore, not based on proper appreciation of pleading, evidence or materials and law. It is so because Section 6-N read with Section 2(g) of the Act says so. 22. The award given by the labour Court is, therefore, not based on proper appreciation of pleading, evidence or materials and law. It has therefore come to a perverse finding and conclusion that services of the workman have been illegally retrenched without recording finding in the award that the workman had actually worked for 240 days and remain in continuous service in the span of 12 calendar months as required for application of Sections 2(g) and 6-N of the Act. 23. For the reasons stated above, the writ petition is allowed and the impugned award dated 24.11.1992 passed by Labour Court, (II), U.P., Kanpur in adjudication case No. 91/86 is quashed. However, since the workman has been reinstated pursuant to the interim order dated 26.4.2002, it would be open for the employer to keep the workman in service or to terminate his services in accordance with law. No order as to costs. ————