JUDGMENT Rakesh Tiwari, J.
1. Heard Shri Manish Goyal for the petitioners and Shri K.P. Agarwal assisted by Sri A.K. Sinha for the contesting respondent.
2. The petitioners have challenged the award dated 16.12.1983 by means of this writ petition. By the aforesaid award the Labour Court has directed reinstatement of the workman with full back wages.
3. The brief narration of events for deciding the controversy in this writ petition is as under.
4. The workman Sri Mirazul Haque Siddiqui is alleged to have been appointed by the petitioner on 29.12.1977 under Section 70 of the U.P. Municipalities Act as a temporary Assistant Inspector-cum-Meter Reader. It is further alleged that the appointment of the workman-respondent no 2 was extended from time to time upto 15.6.1978. His services were terminated by order dated 14.6.1978 as no longer required. It is claimed that the order of termination was tried to be served upon respondent No. 2, but he refused to accept the order after reading the same and as such the order of termination was sent to him by Registered A.D. on 21.6.1978.
5. The workman concerned raised an industrial dispute. On conciliation proceedings having failed the following reference was made to the Presiding Officer, Labour Court, Agra for adjudication where it was registered as Adjudication Case No. 67/1980; --
KYA SEWAYOJKON DWARA APNE SMRAM1K MIRAJUL MAQUE SlDDIQUl (PUTRA SWARGIYA SHAMSUL HAQUE) KO DINANK 20.7.78 SE KARYA SE PRATMAK/BANCHIT KIYA JANA UCHIT TATHA/ATHWA VAIDHANIK MAI? YADI NAHI, TO SAMBHANDMIT SMRAMIK KYA LABH/ANUTOSH PANE KA ADMIKARI MAI TATHA. ANYA KIS VIVARAN SAMIT?
6. On the basis of pleadings between the parties, an additional issue was framed as under: --
Whether there was no relationship of Master and Servant between the parties? If so, its effect?
7. The employers in their written statement before the Labour Court refuted the claim of the workman on the grounds that: --
1. The workman was an employee of Water Works Department, Aligarh, under the Municipal Board, Aligarh and as such he could not file his claim under the U.P. Industrial Disputes Act, 1947.
2. The Officer-in Charge of Municipa Board and the Engineer Water Works Department have wrongly been made a party by the Government and the reference therefore is bad as the Municipal Board has not been made a parry to the industrial dispute. 3. The workman had not completed 240 clays of continuous service and as such he cannot be granted any relief by the Labour Court.
8. The Labour Court by the impugned award held that the Water Works, Aligarh was. governed by Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946. which has also been admitted by Sri Ram Narain Nigam, who was formerly the Water Works Engineer at Aligarh, admitted this fact in his evidence and as such the objections of the employers that the workman being an employee of Water Works Department, Aligarh under the Municipal Board, Aligarh could raise industrial dispute under the U.P. Industral Disputes Act, 1947, had no force.
9. It was further held that Ram Narain Nigam, the employers" witness, had confirmed in his evidence that the Water Works Engineer has direct control over the staff of the Water Works and the officer incharge of the Municipal Board; is also incharge of Water Works and that the services of the workman were terminated on 15.6.1978 under the signatures of the Engineer Water Works with the approval of officer incharge. It was also held that since the workman was not direct workman of Municipal Board but of the Water Works Department, the officer incharge and the Engineer Water Works have rightly been made parties by the Government and the reference order is not bad because Municipal Board has not been made a party.
10. After considering the question as to whether the workman had been in continuous service of the Water Works Department, the Labour Court by the impugned award gave a finding of fact after referring to the evidence of EW-1, Sri Mahesh Chandra and EW-2, Sri Ram Narain Nigam and considering the exhibit paper No. B-1, i.e., the order of termination of the workman, Ex.E-1, report of Mohd. Miyan, submitted by him and his affidavit before the Labour Court Exhibit W-6 and held that the circumstances led him to believe that: --
...he did not serve any notice of terminal ion of service on the workman of 14.6.1978. These circumstances lead me to believe the workman that he had not been served with the termination order on 14.6.1978 and he came to know of termination of his services only on 20.7.1978 when he came to the office.
11. It appears from a perusal of the aforesaid paragraph 6 that the workman had given an application (Ex. E/5) for regularization which was put up before the Water Works Engineer on 20.7.1978. The workman has also filed a photostat copy of an application addressed by him to the Engineer Water Works on which remarks by several employees of Water Works have been endorsed to prove that he had actually handed over charge only in July 1978. After considering the objections of the employers that the original of the application was not on record. an application for summoning the original application vide 70/D had been moved by the workman whose existence was denied by the employers, the Labour Court held: --
From the evidence on record I find that there was a tendency on behalf of the employers to withhold certain records, from the Court. To quote another example a ktter is alleged to have been written by the Water Works for increasing the post of Meter Reader on 5.12.1977 but its copy was nor produced in the Court in spire of the prayer of workman.
12. The Labour Court further held that :--
In the absence of proper service on him, it will be deemed that he came to know of termination of his services only on 20.7.1978 and I, therefore, hold that on this date there existed a relationship of master and servant between the employers and employee. The preliminary issue is decided accordingly.
13. It is established beyond doubt that there was no break in service of Mirazul Haque Siddiqui and that the termination of the services of the workman was neither legal nor justified or proper. The workman was awarded relief of reinstatement with all benefits of service and full back wages.
14. The learned counsel for the petitioners has raised much less the same points' before this Court which were urged by the petitioners before the Labour Court specifically:--
(1) Whether the reference as against the Officer-in-Charge and not against the Municipal Board is maintainable ?
(2) Whether the appointment of the workman being a time bound appointment, which came to an end by efflux of time, any industrial dispute could have been raised ? AND
(b) Whether a finding with regard to the nature of appointment and about question of retrenchment was necessary to be recorded while adjudicating the case by the Labour Court ?
Point No. I
15. The learned counsel for the petitioners has urged that the term "employer" has been defined in Section 2(i) of the U.P. Industrial Disputes Act, 1947 and includes the Chief Executive Officer of a local authority, but in ' the instant case in view of the definition of "Industrial Dispute" in Section 2(d) of the Act the employer would be the Municipal Board which was not made a party. It is urged that as the employer was not made a party, the reference itself is bad and the award is a nullity. He further submits that this issue has been incorrectly decided by the Labour Court that the workman was riot a direct employee of the Municipal Board inasmuch as the workman claimed employment under the Municipal Board and not under any particular department of the Municipal Board.
Point No. II
16. It is urged by the learned counsel for the petitioners that it has been categorically stated in para 7 of the written statement filed on behalf of the petitioners before the Labour Court that respondent No. 2 was appointed under Section 70 of the U.P. Municipalities Act vide order dated 29.12.1977 for a period of two months which has not been denied in paragraph 7 of the rejoinder statement by the workman before the Labour Court. He submits that the workman has not denied the issuance of his appointment order dated 29.12.1977 before the Labour Court and in the writ petition even though a categorical statement has been made in paragraph 5 of the writ petition about the appointment of respondent No. 2 under Section 70. It is further submitted that the appointment of the workman was purely time bound and came to an end by efflux of time on expiry of contract and that non-renewal of the contract of employment does not give a right to the concerned workman of raising an industrial dispute regarding termination of service.
Point No. III
17. In respect of point No. 3 it has been urged by the learned counsel for the petitioners that it is evident from appointment letter dated 29.12.77 and from the written statement of the employers that the nature of appointment of the work non was temporary liable to be terminated without notice. The Labour Court neither decided about the nature of appointment of respondent No. 2 being under Section 70 which was root of the matter, nor dealt with plea of retrenchment raised by the workman. In the absence of decision of said questions the award cannot be sustained and is liable to be quashed and set aside by this Court.
18. On the basis of the above submissions it is stressed by the learned counsel for the petitioners that the entire award is self-contradictory and the findings are perverse and against the evidence on record, It is stated that while dealing with the date of termination, the Labour Court illegally placed undue reliance upon the letter dated 20.7.1978 which could not be proved by the workman, respondent No. 2. He further states that no such letter exists on the record of the petitioners, as such the findings of fact recorded by the Labour Court are based upon no evidence and are liable to be set aside.
19. In support of his contentions the learned counsel for the petitioners has placed reliance upon: -
(1) Paragraphs 4, 8, 9, 10, 11 and 12 of (General Manager, Haryana Roadways v. Rudhan Singh; (2) paragraph 3 of 1995 (70) F.L.R. 20 (Alld. D.B.) (Smt. Pushpa Agarwal v. Regional Inspectress of Girls' Schools, Meerut and Anr.; and (3) Paragraph 5 of 1995 (70) F.L.R. 120 (Syed Ali Raza Abdi v. Labour Court, Allahabad.
20. The counsel for the respondents submits that the Labour Court has given cogent reasons for arriving at the findings in the award after appreciation of oral and documentary evidence that reference was not bad.
21. Rebutting the second contention of the learned counsel for the petitioners, the learned counsel for the respondent contends that admittedly according to the assertions of the employers in their rejoinder statement before the Labour Court the respondent-workman was appointed under Section 70 of the U.P. Municipal Boards Act for the following period:--
(1) From 23.3.76 to 7.5.76 during the suspension period of Sri Rasheed Ahmad, Assistant Inspector.
(2) From 7.1.77 to 31.3.77 (Under Section 70 of the U.P. Municipal Act on purely temporary basis) + from 1.4.77 to 31.5.77 (Under Section 70 of the U.P. Municipal Act on purely temporary basis).
From 1.6.77 to 31.7.77 (Under Section 70 of the U.P. Municipal Act on purely temporary basis).
From l.8.77 to 30.9.77 (Under Section 70 of the U.P. Municipal Act on purely temporary basis).
From 14.11.77 to 30.11.77 (Under Section 70 of the U.P. Municipal Act on purely temporary basis).
From 30.12.77 to 14.6.78 on purely temporary basis.
22. Attention of the Court has been drawn by him to paragraph 6 of the written statement of the employers wherein it is stated that the workman had continuously worked from 7.4.77 to 13.6.78 and it is urged that the contention of the learned counsel for the petitioners that the appointment of the respondent-workman was on contract basis vide Annexure 3 to the writ petition for a period of two months is wholly incorrect on the face of record. The legal rights which have accrued to the petitioners from continuous working w.e.f. 7.1.1977 to 13.6.1978 under the U.P. Industrial Disputes Act cannot be washed away by taking refuse behind Section 2(oo)(bb) of the Industrial Disputes Act. 1947 for the reasons (i) The provisions of Industrial Disputes Act, 1947 Central) do not apply in U.P. as has been held by the apex court in the case of U.P. State Sugar Corporation v. O.P. Upadhayaya 2002 (93) FLR 600 (ii) The alleged appointment of the respondent-workman on contract basis for a period of two months was sham and inconsequential as the respondent-workman had completed more than 1240 days of continuous service w.e.f. 7.1.1977 to 13.6.1978 as has been found by the Labour Court on the basis of record in para 5 of the award.
23. As regards the third point, Sri K.P. Agarwal, Senior Advocate, appearing on behalf of the workman urged that the question whether the appointment was temporary or permanent or on contract basis or for a short period was not a question germane for deciding the reference. He submits that the relevant question was whether the workman had continuously worked for more than 240 days or not ? and whether his services had been terminated in violation of the mandatory provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 ? He further submits that the Labour Court was not bound to decide the nature of appointment which according to the admitted details in the rejoinder statement were temporary being under Section 70 of the U.P. Municipalities Act. The temporary appointment was never disputed by the workman. Since this fact had also been confirmed by Sri Ram Narayan Nigam in his evidence, as such the Labour Court has not committed any illegality by not referring to the nature of appointment.
24. Lastly Sri K.P. Agarwal placed reliance upon paragraph 6 of the award and urged that the Labour Court has rightly relied upon the letter dated 20.7.1978 for deciding the date of appointment, i.e., 16.6.1978 as claimed by the employers or 20.7.1978 as claimed by the workman and disputed termination of the services of the workman. It is submitted that the Labour Court has given cogent reasons and has discussed the evidence for accepting the case of the workman that his services were terminated on 20.7.1978 and not on 16.6.1978.
25. I have considered the rival submissions and have perused the record. "Employer" includes -
(i) an association or a group of employers;
(ii) where an industry is conducted or carried on by a department of the State Government, the authority specified in that behalf, and where no such authority has been specified, the head of such department;
(iii) where an industry is conducted or carried on by or on behalf of a local authority, the chief executive officer of such authority;
26. The position from the record is that the said last time bound appointment of the workman for a short period of two months only came to an end by efflux of time, but the workman had continued to work in the establishment of the employers from 7.1. 1977 to 20.7.1978 and had completed more than 240 days in a calendar year. His services had been terminated without complying with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947.
27. To my mind a workman alleging illegal termination from service in violation of the provisions of the Industrial Disputes Act, 1947 could have raised an industrial dispute. The nature of his last appointment on contract basis allegedly for specified period of two months in the facts and circumstances of the case have no material effect as admittedly the workman had been in continuous service with effect from January 1977 to 20,7.1978 and it will not wash away the total working of 240 days prior to the said engagement of two months allegedly on contact basis. The Labour Court has considered his fact and has given cogent reasons for relying upon the letter dated 20,7.1978 in this regard.
28. In so far as the case of General Manager, Haryana Roadways (supra) is concerned, it was in respect of a daily wager who had worked for a very short period in the establishment with breaks in service. In the instant case the details given in the rejoinder statement of the employers themselves filed before the Labour Court coupled with the findings of the Labour Court on the basis of evidence establish that the workman was in continuous employment of the employer for more than 240 days in a year. The artificial break given in service of the workman giving temporary appointment to him under Section 70 of the U.P. Municipalities Act is of no consequence in the circumstances of this case. The case of General Manager, Haryana Roadways is thus clearly distinguishable.
29. The effect of artificial breaks in service vis-a-vis right of temporary employees appointed for specified period has been considered in paragraph 9 of the judgment rendered by the Hon'ble Supreme Court in Regional Manager SBI v. Raja Ram. It was held that the High Court as well as the Labour Court had proceeded on a fundamental misconception as to the nature of the right available to the respondent who was employed for a fixed period of 91 days. The Hon'ble Court observed that even assuming that such an employee could be called a temporary employee for the purposes of the Sastry Award, the requirement as to service of notice of 14 days, would, in cases where an employee has been appointed for a fixed tenure, amount to an embargo on the employer terminating the services prior to the expiry of such period without giving a 14 days' notice and not giving notice would not mean that the employee would thereby continue to serve beyond the period for which he was originally appointed. It was held that the exception to aforesaid principle is when an employee is appointed temporarily for successive fixed tenures with artificial breaks in between so as to deny the employee the right to claim permanent appointment. This action would be an unfair labour practice within the meaning of the phrase in Section 2(ra) of the Industrial Disputes Act. It was further held that before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the Badlis, casuals and temporary workmen had been continued for years as such with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the discontinuous service of workmen over a period of years which is frowned upon.
30. The apex court in Bhagwati Prasad v. Delhi State considered as to what would amount to artificial break in service? It held that if there is a gap of more than three months between the termination of service and re-appointment of a daily rated employee that period may be excluded in the computation of the period of continuous service. Hence, it would depend upon the facts of each case whether a, gap of more than three years may be excluded or not for computation of period of continuous service.
31. Again in the case of Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation , the Hon'ble Supreme Court while construing the words whether Sundays and other paid holidays be treated as days "actually worked under the employer" observed that it cannot be left to the vagaries of the employers to cause artificial breaks in service to deny continuity of service and benefits of such continuity to the workman Such break amounts to unfair labour practice as has been held in the aforesaid cases.
32. Now Rule 70 of the U.P. Municipalities Act may be considered in the light of the judgments of the apex court keeping in view the facts and circumstances of this case.
33. Rule 70 of the U.P. Municipalities Act which provides for temporary appointment by the Chairman may be referred to at this stage. It is as under:--
70. Temporary servants required for emergency. - The power to appoint and fix the salaries of temporary servants in cases of emergency shall vest in the President subject to the following conditions, namely-
(a) the President, in exercise of such powers, shall not act in contravention of--
(i) any general or special directions as the State Government may, from time to issue; '
(ii) an order of the Municipality prohibiting the employment of temporary servants for any particular work; and
(b) each appointment under this section by the President shall be reported at the next meeting of the Municipality following the appointment.
34. Section 70 only gives the Board, powers to appoint temporary servant in emergency by the President. It has not been established by the Board before the Labour Court as to what emergency was there for it to resort to the provisions of Section 70. The appointment of the workman under Section 70 for more than a year was not in any emergency. The artificial breaks appear to have been given in service of the respondent-workman as he could not be appointed at a stretch. Moreover, a perusal of Annexure 3 to the writ petition goes to show that the appointment of the workman had not been made in exercise of powers under Section 70 by the President in emergency as he appointment had been made by the Assistant Engineer. The last appointment of the workman under the alleged contract was not even a fixed term appointment, for if that was so, the cessation of employment should have been affected on 28.2.1978. The workman continued to work even according to the Board up to 14.6.1978, i.e., much, longer than two months. It was a sham contract to deny the workman benefit of continuous service rendered by him since 7.1.1977, i.e., of the period prior to the contract. The appointment order was therefore totally ineffective for the purpose of its being called a fixed term appointment under the contract. The Hon'ble Supreme Court in the case of S.M. Nilajkar v. Telecom District Manager, Karnataka has also held so. Recluse to the petitioner behind the theory of termination by efflux of time would in the circumstances not be available to the petitioner for the reason that the appointment was not limited upto 14.6.1978 on which date alone the cessation of employment would have taken place.
35. Reference may also be made to the 1st Schedule under the U.P. Industrial Disputes Act, 1947 which specifies the matters within the jurisdiction of the Labour Court. It is apparent that the Labour Court has jurisdiction to adjudicate upon the propriety or legality of an order passed by an employer under the Standing Orders, interpretation of Standing Orders and discharge or dismissal of a workman including reinstatement of a workman wrongly dismissed.
36. The Officer-in-Charge of Municipal Board is. also Incharge of Water Works and the services of the workman concerned having been terminated under the signatures of the Engineer Water Works with the approval of the Officer-in-Charge, they have rightly been made parties in the reference as employers.
37. It is not in dispute that there was cessation of employment and the best evidence was with the Board. A finding of fact has been recorded by the Labour Court that the employment of the workman began from January 1977 and the termination order (Annexure 2 to the writ petition) is dated 14.6.1978, but the termination order was not served upon the workman concerned.
38. The termination of services of the workman in the circumstances would amount to retrenchment and the employers were liable to comply with the provisions of Section 6-N of the U.P. Industrial Disputes Act and its non-compliance will render the termination bad in view of the decisions of the Hon'ble Supreme Court in the case of State of Bombay v. Hospital Mazdoor Sabha MANiC/0200/1960 and in the case of State Bank of India v. M. Sundermany A.I.R. 1976 S.C. 111 and Hindustan Tin Pvt. Ltd. . The Labour Court has found the termination of services of the workman bad for non-compliance of statutory provisions of the U.P. Industrial Disputes Act and has rightly granted him relief of reinstatement with full back wages and continuity of service.
39. For the reasons stated above, the writ petition is dismissed and the impugned award is upheld. No orders as to costs.