1. By this petition, the petitioners have challenged the award of Labour Court dated 13.7.2005 published on 31.8.2005. made in Adjudication Case No.75 of 2003 referred to it on 5.4.2003. By the said award the Labour court has directed reinstatement of workman/respondent no.5 along with the continuity of service and 50% salary as back wages. Beside this a sum of Rs.500/- was also awarded as cost to the workman to be paid by the employer.
2. It was case of the respondent no.5 that he was appointed as daily wager pipe line fitter in Jal Sansthan, Hamirpur Division Jhansi on 26.9.1991 against a sanctioned post. His work as pipe line fitter was satisfactory and was appreciated by senior officers. It was also his case that he was appointed as trained fitter and was getting the wages of trained fitter during the period he worked, as such w.e.f. 26.9.1991 to 31.12.1992. But all of a sudden he received information from his office on 4.1.1993 that his services were terminated from the post of pipe line fitter, as such no work was taken from him since January, 1993. It was also his case that the post of pipe line fitter was lying vacant in Jal Sansthan, District-Hamirpur, Division Jhansi but the services of 2 respondent no.5 were terminated without giving any opportunity of hearing against the principles of natural justice, which amounted to his retrenchment within the meaning of Section 6-N of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') without following the procedure prescribed for such retrenchment.
3. Feeling aggrieved against the aforesaid order of termination the respondent no.5 had filed a writ petition before this Court bearing Civil Misc. Writ Petition No.10189 of 1993 Subhash Chandra Tripathi Vs. General Manager, Jal Sansthan, Jhansi Division, Jhansi and others. In the said writ petition, the allegation of the petitioners was that the respondent no.5 was I.T.I. in electrical trade and not in fitter trade and further allegation was that since the respondent no.5 was engaged as muster roll employee and had worked on daily wage basis for 30 days sanctioned on each time and had worked only for a period of one year and three months, it was for him to prove that he had completed 240 days actual service to become entitled for getting benefits under Section 6-N of the Act and Rule 42 of U.P. Industrial Rules 1957 framed thereunder. It was further alleged that the burden of proof was upon the workman to establish by oral and documentary evidence that he was appointed against permanent vacant post in accordance with law.
4. After hearing both the parties, this Court vide judgement and order dated 11.10.2002 had dismissed the writ petition filed by the respondent no.5 on account of availability of alternative remedy to him under U.P. Industrial Disputes Act and rules framed thereunder with the following observations:-
" The petitioner is a workman within the meaning of Section 2(z) of the U.P. Industrial Disputes Act, 1947. The disputed questions of facts involved in this writ petition require oral and documentary evidence to 3 be adduced before the Labour Court. The question as to whether the termination is legal and valid, is within realm of First Schedule of the U.P. Industrial Disputes Act. This Court will not exercise its powers under Article 226 of the Constitution of India for deciding disputed questions of facts by taking evidence for which the Labour Court is best equippend. In these circumstances, it would be proper to relegate the petitioner to the alternative and efficacious remedy available to him before the Labour Court.
If the petitioner raises an industrial dispute before the concerned Regional Conciliation Officer within two months from today, the said authority will call the parties and try to amicably settle the dispute. In case no settlement is arrived at, the matter shall be immediately referred by the competent authority to the Labour Court or the Industrial Tribunal as the case may be, for adjudication. The reference so made, shall be decided by the Labour Court in the manner prescribed and time limits as provided in Rule 12 of the U.P. Industrial Rules, 1957 for filing written statement, rejoinders documents and evidence etc. If necessary, the proceedings may be held on day-to-day basis under Rule 12(4) of the Rules. The case may be decided preferably within a period of six months and not later than six months from the date of receipt of reference.
For these reasons the writ petition is dismissed on the ground of alternative remedy.
No order as to costs."
5. After dismissal of the aforesaid writ petition the respondent no. 5 approached the concerned Regional Conciliation Officer as directed by this Court, who in turn referred the dispute before the Labour Court, Kanpur which was registered as Adjudication Case No. 75 of 2003. The reference of industrial dispute was made to the effect that "Whether on 4.1.93 the termination of services of workman Sri Subhash Chandra Tripathi son of Sri Ram Naresh Tripathi posted as Fitter by the employer is proper or legal. If not so, whether the workman is entitled for any relief/damage and from which date with other particulars."
6. Thereafter the parties have submitted their written statements alongwith affidavits before the Labour Court, Kanpur stating their cases and they have also adduced their respective evidences and after hearing the case the Labour Court has found that the termination of respondent no.5 was illegal and contrary to the provisions of law/Industrial Disputes Act, as such directed for his reinstatement in service along with the continuity of service, and payment of 50% salary as back wage during the period under which the respondent no.5 was out of employment on account of termination of his services. A sum of Rs. 500/- has also been awarded as cost to be paid by the employer to the employee, hence this petition.
7. The thrust of the submission of learned counsel for the petitioners-employer is that having regard to the fact that the respondent no.5 was daily wage employee of Jal Sansthan, the provisions of U.P. Industrial Disputes Act are not applicable to him and the award made by Labour Court against the petitioners is without jurisdiction and nullity. In support of his case, he has placed reliance upon decision of Hon'ble Apex Court in Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others, AIR 1997 S.C. 3657 and other decisions of this Court rendered in Lochan Prasad Vs. Executive Engineer, PUblic Works Department Rashtriya Marg Jyoti Chauraha, Bareilly and another, 2004 (1) AWC403, Mohd. Umar Vs. Executive Officer, Nagar Palika Parishad, Suar, Rampur and another, (2004) 1 UPLBEC 174, Rajesh Singh Vs. Labour Court, Allahabad and others, 2006(4) AWC 3661 and Devanand Vs. State of U.P. and others (2006) 3 UPLBEC 2235.
8. Contrary to it, learned counsel for the respondent workman 5 has cited subsequent decision of Hon'ble Apex Court rendered in State of U.P. and another Vs. Rajendra Singh Butola and another, 2000 (84) FLR 896. Wherein Hon'ble Apex Court held that termination of services of daily wager cleaner on motor truck belonging to irrigation department of State Government, attracted the procedure for retrenchment, if he had worked for years in the department.
9. I have considered the submissions of learned counsel for the parties and perused the record.
10. In Himanshu Kumar Vidyarthi's case although two Judges Bench of the Hon'ble Apex Court held that every department of the Government cannot be treated to be "industry" and when the appointments are regulated by the statutory rules, the concept of "industry" to that extent stands excluded. It was further held that the petitioners of the aforesaid case were not appointed to the post in accordance with rules but were engaged on the basis of need of the work. Under the aforesaid circumstances, their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. In my opinion, the aforesaid case has been decided by Hon'ble Apex Court on the facts of the aforesaid case and no principle has been laid down by Hon'ble Apex Court for its application in each and every case of daily wage employee. By placing reliance upon the aforesaid decision of Hon'ble Apex Court, this Court in aforesaid decisions has held that the concept of retrenchment as contemplated by U.P. Industrial Disputes Act is not applicable to the daily wage employees in various government departments.
11. Contrary to the aforesaid decisions of Hon'ble Apex Court and this Court referred herein before, in State of U.P. and another Vs. Rajendra Singh Butola and another (supra) the Apex Court has held that the termination of services of daily 6 wager cleaner on motor truck, worked for years, without following the procedure provided for retrenchment as contemplated under Section 6-N of U.P. Industrial Disputes Act, held to be bad and reinstatement with back wages of 50% salary was justified. Thus in later recent case, the Hon'ble Apex Court has held that the provisions of U.P. Industrial Disputes Act were attracted even in respect of concern Government Department and further held that in given facts of the case there was no escape from application of provisions of Section 6-N of U.P. Industrial Disputes Act, if the services of a employee was terminated who had worked for a period of 240 days within twelve calender months preceding to the date of termination of his services. In this view of the matter, the submission of learned counsel for the petitioners that the Labour court had no jurisdiction to decide the aforesaid dispute referred to it as the concept of retrenchment contemplated under Industrial Disputes Act is not attracted appears to be misplaced,in view of aforesaid decision of Apex Court, therefore, cannot not be accepted.
12. There is yet another reason for not disturbing the award of Labour Court. It is not in dispute that the respondent no.5 had earlier approached to this Court against the aforesaid termination of his services but this Court had dismissed his writ petition as indicated herein before on the ground of availability of alternative remedy to him under the provisions of U.P. Industrial Disputes Act 1947. In pursuance of the aforesaid direction given by this Court, the respondent no. 5 has approached the Labour Court and both the petitioners as well as respondent no.5 have submitted to the jurisdiction of Labour Court and participated in the proceeding by filing their written statements and adducing their respective evidences. After hearing the parties, Labour Court has made impugned award in favour of respondent-workman. In such eventuality, in my opinion, it is not open for the writ petitioners to 7 challenge the impugned award of the Labour Court on the ground that the provisions of U.P. Industrial Disputes Act are not applicable and on that count the Labour Court had no jurisdiction to decide the dispute referred to it and to make impugned award in favour of the respondent no.5.
13. Apart from it, it is to be noted that it is not the case of the petitioners that the establishment in question does not fall within the meaning of "industry" as defined under U.P. Industrial Disputes Act. And respondent no. 5 was not workman within definition of workman under said Act, as such in my opinion there is no escape from application of concept of "retrenchment" if the termination of services of workman falls within four corners of "retrenchment" defined under the said Act, unless the application of U.P. Industrial Disputes Act is excluded by competent legislation in respect of the establishment of the petitioners and/or Respondent No.5 is excluded form the definition of "workman" by such legislation.
14. In this connection, it is significant to mention that, U.P. Industrial Dispute Act 1947 is "existing law" within the meaning of Article 254 (1) of the constitution and is referable to item No 22 of entries enumerated in concurrent list of seventh schedule of constitution which deals with the trade unions, Industrial and Labour disputes, therefore unless the application of the provisions of U.P. Industrial Dispute Act 1947 in respect of establishment in question and/or Respondent No.5 from the definition of workman are excluded, it are very difficult to assume automatic exclusion of application of the provisions of U.P. Industrial Dispute Act and thereby ouster of jurisdiction of the Labour Court to decide the said dispute referred to it merely because of the reason that respondent no. 5 was employee of Jal Sansthan and the services of employees Jal Sansthan are governed by the provisions of Section 27 and Section 27-A of U.P. Water Supply and Sawerage 8 Act 1975 and/or Rules framed thereunder particularly when it is not specific case of petitioners before this court, that by virtue of any particular enactment/legislation in consonance with the provisions of Article 254 (2) of the Constitution, the jurisdiction of Labour Court and application of provisions of U.P. Industrial Disputes Act have been excluded in respect of establishment in question as well as Respondent No. 5. Not only this but under aforesaid situation In my opinion doctrine of "generalia specialibus non derogant" which means special law shall prevail over general law in case of any conflict between them or geral law has to yield to special law in such conflict, can also not be pressed into service in aid to the case of petitioners. Although the application of the aforesaid doctrine is circumscribed by various conditions and restrictions or limitations, but one of such conditions is that the aforesaid doctrine applies only where both the statutes are enacted by competent legislatures in respect of field assigned to them or part of the same statute. None of the aforesaid decisions of this court cited by the learned counsel for the petitioners, in my considered opinion, have noticed or dealt with the aforesaid aspect of the matter, as such aforesaid decisions rendered by this court are held to be sub-silentio and cannot be treated as binding precedent for determination of the question in controversy involved in instant writ petition.
15. In Arnit Das v. State of Bihar, J T 2000 (6) SC 320, Hon'ble Apex Court held that a decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141. That which has escaped in the judgement is not ratio decidendi. This is the Rule of sub-silentio in the technical sense, when a particular point of law was not consciously determined [See State of U.P. Vs. Synthetics and Chemicals Ltd. J T 1991 (3) SC 268 : 1991 9 (4) SCC 138 Para 41].
16. In view of the aforestated legal position, it is very difficult for me to assume that the concept of "retrenchment" as contemplated under U.P. Industrial Disputes Act, is not attracted and Labour Court had no jurisdiction to decide the dispute referred to it. In given facts and circumstances of the case, in my opinion, there was no illegality with the Labour Court in proceeding with the dispute referred to it, and in making award in favour of Respondent No.5. Admittedly the provisions of Section 6-N of U.P. Industrial Disputes Act have not been observed while terminating the services of respondent no.5, therefore, no fault can be found in the order of reinstatement with back wages granted by Labour Court to the respondent no.5.
17. At any view of the matter, in my opinion, in second inning of this litigation between the same party it is not open for this court to review earlier decision dated 11.10.2002, whereby, the respondent no.5. was permitted to approach concerned Labour Court thereupon which was directed to decide the said dispute as indicated herein before and has attained the finality between the parties. The findings of the Labour Court are also not erroneous and perverse, so as to call for any interference by this court.
18. In view of the foregoing discussion, in my opinion, the writ petition is devoid of merit and liable to be dismissed. Accordingly the same is hereby dismissed.
19. There shall be no order as to costs. The parties shall bear their own cost.
Date: 06.01.2010 SL/-