JUDGMENT S.K. Keshote, J.
1. Heard learned counsel for the parties.
2. The petitioner--workman, employed with the respondent No.2 has raised an industrial dispute regarding alleged wrongful termination of his service w.e.f. August 31, 1981. The State of U.P. in exercise of its powers under Section 4-K of the U. P. Industrial Disputes Act, 1947 referred the said dispute for adjudication to the Labour Court, Allahabad vide order dated June 30, 1982. The Respondent No. 1 gave its award on May 30, 1985 and reference was answered against the petitioner. This award was published on August 20, 1985. This award has been questioned by the petitioner in this writ petition. The petitioner has questioned the legality of the order of termination of his service on the ground that the Respondent No.2 has not given him one month notice or notice-pay and retrenchment compensation and hence same has been made in total violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the 'State Act'). The Respondent No. 1 decided and answered the reference against the petitioner on two grounds, namely that the petitioner has not actually worked for 240 days and secondly he did not remain in employment of the Respondent No. 2 for 12 calendar months. Though admittedly the petitioner has been paid wages of Sundays and holidays but the Labour Court did not count paid holidays for the calculation of total days of working of the petitioner in this case.
3. The petitioner was appointed on September 22, 1980 and his services were terminated on August 31, 1981. From this fact it comes out that the petitioner has not worked during a period of twelve calendar months. Section 6-N of the State Act reads 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 the prescribed manner is served on the State Government."
4. Continuous service has been defined in Section 2 (g) of the State Act, which reads as under :
"Section 2(g) ; Continuous Service: Before a workman can be considered to have completed one year of continuous service it must be shown first that he was employed for a period of not less than 12 months and next that during those calendar months he had worked for not less than 240 days."
5. A combined reading of these two aforesaid Sections gives out that before a workman can be considered to have completed one year of continuous service it must be shown first that he was employed for a period of not less than 12 months and next that during these calendar months he had actually worked for not less than 240 days.
6. Prior to the amendment made in the Industrial Disputes Act, 1947 (hereinafter referred to as the Central Act) by the Industrial Disputes (Amendment) Act, 1964 (Act No. 36/ 64) the provisions regarding continuous service as contained in Section 2(eee) read with Section 25B were part materia with the provisions as contained in the State Act. Unamended provisions of Central Act as contained in Section 2(eee) and Section 25B had been considered by the Apex Court and it has also considered the provisions of Section 25B of the Central Act as amended by Act 36/64 in Surendra Kumar v. Central Govt. Industrial Tribunal-cum-Labour Court (1981.-I-LLJ-386) and Mohan Lal v. Management of Bharat Electronics Ltd. (1981-II-LLJ-70). In both these cases the matter has been decided after noticing amended and unamended provisions of Section 25B and Section 2(eee) of the Central Act and decision in Sur Enamel and Stamping Works (P) Ltd. The Apex Court in the case of Mohan Lal (supra) held as under :
"13. In Sur Enamel and Stamping Works (P) Ltd. v. Workman, referring to Section 25B as it then stood read with Section 2(eee) which defined continuous service, this Court held as under :
"The position therefore is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of Section 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calender months had worked for not less than 240 days. Whereas in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements of Section 25B would not be satisfied by the mere fact of the number of working days being not less than 240 days. If Section 25B had not been amended, the interpretation which it received in the aforementioned case would be binding on us. However, Section 25B and Section 2(eee) have been the subject matter of amendment by the Industrial Disputes (Amendment) Act 1964. Section 2(eee) was deleted and Section 25B was amended. Prior to its amendment by the 1964 amendment Act, Section 25B read as under :
For the purpose of Section 25C and 25F workman who during the period of 12 calendar months had actually worked in an industry for not less than 240 days, shall be deemed to have completed one year of continuous service in the industry.
We have already extracted Section 25B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in Surendra Kumar Verma v. Central Government Industrial Tribunal cum Labour Court, Chinnappa Reddy, J., after noticing the amendment and referring to the decision in Sur Enamel and Stampny Works (P) Ltd. case, held as under :
These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months ; it is not necessary that he should have been in the service of the employer for one whole year.
In a concurring judgment Pathak, J., agreed with this interpretation of Section 25B(2). Therefore, both on principle and on precedent it must be held that Section 25B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date i.e. the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of Section 25B and Chapter V-A."
7. The State Act has not been amended and interpretation which has been given to unamended provisions of Sections 2(eee) and 25B of the Central Act (which were pari materia to the provisions of the State Act) as they stood prior to amendment Act 36/64 was given by Apex Court in Sur Enamel and Stamping Works (P) P Ltd. which holds fields so far as the State Act is concerned. Sri K. P. Agarwal, learned counsel for the petitioner argued that the Central Act has an overriding effect and provisions of this Act will rule the case of the petitioner and not the State Act. In support of this argument he placed reliance on the provisions of Section 25J of the Central Act and the decision of the Apex Court in the case of Rohtak and Hissar Dist. Electric Supply Company Ltd. v. State of U. P. (1966-II-LLJ-330). On the other hand Shri V. R. Agarwal, learned counsel for the respondent No. 2 argued that the State Act will apply to the present case. State Legislature is competent to enact the State Act on the subject Industrial Disputes. U. P. Industrial Disputes (Amendment) Act 1957 (Act No. 1/57) received the assent of the President and by virtue of Article 254(2) of the Constitution of India the State Act prevails, notwithstanding any prior law made by the Parliament. In support of his argument he has placed reliance on the decision of the Apex Court in U. P. Electricity Supply Company v. R. K. Shukla (1969-II-LLJ-728). It has further been argued by Shri V.R. Agarwal, counsel for the respondent No. 2 that ratio of the decision of Apex Court in Rohtak and Hissar District Electricity Supply Company Ltd. (supra) is only that in regard to the question of payment of compensation for lay off and retrenchment the relevant provisions of the Central Act will apply and not those of State Act. The applicability of the Central Act is restricted to the quantum of the aforesaid two claims and nothing beyond it.
8. I find considerable force in the argument of the learned counsel for the respondent No. 2. The Apex Court in the case of Rohtak and Hissar District Electric Supply Co. Ltd. (supra) while dealing with the question of applicability of Section 6-R of the State Act and Section 25J(2) of the Central Act has observed as under :
"Section 6-R--Applicability.--The Supreme Court has spoken on the subject in Rohtak and Hissar Distt. Electric Supply Co. Ltd. v. State of U.P. (1966-II-LLJ-330)(supra). The Supreme Court dealt with the applicability of Sections 6R and 25J(2) (Central Act). It observed that :
"It is thus clear that the last part of Section 25J(2) categorically provides that the rights and liabilities of the employers and workmen in relation to lay off shall be determined in accordance with the provisions of Chapter V- A of the Central Act. This clearly means that in regard to the question of payment of compensation for lay off and retrenchment, the relevant provisions of the Central Act will apply and not those of Uttar Pradesh Act. 13. This declaration of law makes Section 6-R and the consequential provisions of Section 6-J to 6-O of the U. P. Act inapplicable. The claim for retrenchment compensation will be governed by Chapter V-A of the Central Act which includes Section 25F. U. P. Electric Supply Co. v. H.N. Bowen AIR 1968 All 95 at 98."
9. The law as laid down by the Apex Court in this case is very clear and I have no hesitation to hold that the provisions of Section 6-N read with Section 2 (g) of the State Act will apply to the present case. The pre-requisites of a valid retrenchment as provided under Sections 2 (g) and 6-N of the Stale Act will apply to the present case and not as contained in the Section 25B of the Central Act. The authority cited by the learned counsel for the petitioner is of no help to the petitioner in this case.
10. Before a workman can be considered to have completed one year of continuous service in an Industry it must be established as a fact that he was employed for a period not less than 12 calendar months and, next that during those 12 calendar months had actually worked for not less than 240 days. In the present case as per his own case the petitioner has not at all been employed for a period of 12 months. In view of this factual position in the present case it becomes unnecessary to examine whether the actual days of work of the petitioner numbered 240 days or more. For, in any case, the requirement of Section 2 (g) and Section 6-B of the State Act would not be satisfied by mere fact of the number of working days of petitioner being not less than 240 days. The award of the Respondent No. 1. does not call for any interference of the Court.
11. In the result, this writ petition fails and the same is dismissed. The parlies are left to bear their own costs of this petition.