JUDGMENT
1. In the context of the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947, does it amount to retrenchment if after repeated ad hoc appointments for specified short spells with notional breaks, the period of service exceeds 240 days in the preceding 12 months and the workmen's services are thereafter terminated? Herein lies the controversy raised.
2. Prabhu Narain Rai and Suresh Tewari were appointed as clerks on ad hoc basis for a period of 89 days. The first of such appointment was made in September, 1983, On the expiry of this period, after a short break, another such fresh appointment was made and this continued till the year 1985, when their services were eventually terminated and they were given no further appointment. Admittedly by that time, both had worked for more than 240 days in the preceding 12 months. No retrenchment compensation had been paid to them. The issue thus, arises is whether they were entitled to retrenchment compensation? This in turn, being dependent upon the finding whether or not such termination of services was retrenchment in terms of Section 6-N of the Act.
3. A similar question arose before the Division Bench in Jai Kishan v. U.P. Cooperative Bank Ltd., Lucknow 1989 2 UPLBEC 144 where it was held that a workman would be taken to be in continuous service if he has worked for not less than 240 days during the preceding 12 months period. The case there too was of repeated appointments for 89 days each with short breaks of a few days between each appointment. It was held that the cessation of their employment, rendered applicable to them the provisions of Section 6-N of the Act. The employers, it was observed, should not shirk their liability in giving the benefits which may accrue to a workman by virtue of this provision of law. In other words, it was held to be retrenchment and consequently on the termination of the services of the workmen, they were held to be entitled to payment of retrenchment benefits.
4. A plea was next raised that appointments of the writ petitioners beyond a period of 180 days was contrary to law as the relevant service regulations provided that appointments beyond the period of 180 days are to be made by the Institutional Service Board. The answer to this contention too, is provided by the judgment of the Division Bench in Jai Kishan's case (supra) where it was observed "once an employer itself chose to make appointment and continued the same despite the expiry of period of 180 days or extended period of 120 days, it is not open to it to plead that the benefit which has accrued to the employees for having worked for more than 240 days in one calendar year, would not be available to them. After all, the employer societies had appointed and continued the employees beyond the specified period and also paid their wages which had accrued to them for having worked even beyond the period of 180 days or extended period of 120 days. At the most, in our view, the employer societies can be said to have a good ground to bring about cessation of employment of such employees who have continued in violation of the service regulations but it does not mean that if any benefit has accrued to those employees for the period they worked, that would not be admissible to them. Under the provisions of Industrial Laws, if an employee works for 240 days during one calendar year, certain benefits accrue to him and they cannot be wiped of on the plea which is now sought to be raised. There is no fault on the part of employees. It was for the society concerned to have sent requisition to the Industrial Service Board within the time stipulated for regular recruitment. If this was not done, the employers could only discontinue to take work from such employees after expiry of period of 180 days or the extended period when their appointments ceased under the Regulations. But in the present case, the employees were in fact continued and work was taken from them, they were also paid their wages, therefore, to say that they would not be entitled for other benefits which accrued to them under the provisions of Industrial Laws is not acceptable nor tenable". It was further held that the provisions of Section 6-N of the Act would have "in this respect overriding effect over the provisions of the Service Regulations".
5. Such thus being the settled position of law there can be no escape from the conclusion that the cessation of the employment of the writ petitioners was retrenchment under the Act and they were consequently entitled to retrenchment benefits, such benefits not having been given to them renders the cessation of their employment wholly illegal. This being so the writ petitioners are not only entitled to reinstatement in service but also to full back wages.
6. The writ petitioners are consequently hereby directed to be reinstated in service and to be paid full back wages.
7. Special Appeal filed by the writ petitioners Prabhu Narain Rai and Suresh Tewan is hereby accepted while that of the Secretary- cum-General Manager, District Cooperative Bank Limited, Jhansi dismissed. In the circumstances, however, there will be no order as to costs.