Mills Unit of N.T.C. (U.P) Ltd. Vs. Swayam Prakash Srivastava & Anr 
Insc 887 (1 December
Ar. Lakshmanan & Altamas Kabir Dr. Ar.Lakshmanan, J.
appellant in the present matter is Muir Mills a subsidiary of the National
Textile Corporation Ltd. of State of Uttar Pradesh. The respondent No.1 was offered appointment as Legal
Assistant in the litigation section on a probation period of 1 year (in the pay
scale of Rs. 330-560) on 04.06.1982. The appointment letter stated that the
said appointment was on a probationary basis.
period of probation was set at one year from the date of joining. On
12.06.1982, the respondent No.1 joined his duties.
23.11.1982, a letter was written by the Senior Legal Assistant to the General
Manager of the Mill stating that respondent No.1 had completed 6 months of
probation but was not able to understand fully the work of his post and stated
that "His work is not up to the mark; therefore he is of no use to
us". However, it was decided to give the respondent No.1 an opportunity to
improve his performance. It is the case of the appellants that the respondent
No.1 was orally informed about the above decision of the appellants.
expiry of the probation period of the respondent No.1, a letter dated 04.06.1983
was issued to the respondent No.1 stating that, "Your performance has not
been found satisfactory and as such, you have failed to complete the
probationary period successfully".
06.02.1985, respondent No.1 raised an industrial dispute which was referred for
adjudication by respondent No.2 the State of Uttar Pradesh, to the Labour Court
in the following terms, "Is termination of the services of the workman Swayam
Prakash Srivastava (son of Hori Lal Srivastava), Legal Assistant by the
employers vide their order dated 04.06.1983 is right and/or legal? If not, the
concerned workman is entitled to which benefit/relief and along with which
other details." On 25.05.1987, the Labour Court delivered an award holding that, the respondent No.1 was a
workman and the termination was illegal and that respondent No.1 has to be
reinstated within a month of the order with backwages. The Labour court also
observed that the Industrial adjudicator had no power to examine the validity
of the termination of the services of a probationer before the completion of
by this order of the Labour
Court, the appellant
preferred a writ petition being WP No.22193 before the High Court of
Judicature, Allahabad challenging the award of the Labour Court dated 25.05.1987. By an interim
order dated 02.12.1987, the High Court stayed the operation of the award of the
Labour Court subject to the deposit of one half of the decreed backwages. The
appellant was also directed to continue to make payment of the future salary of
respondent No.1 till further orders. The respondent No.1 was given the liberty
to withdraw the backwages upon furnishing security. The future salary be
withdrawn by respondent No.1 without any security. The appellants complied with
the order of the High Court immediately.
Mills ceased to be operational in 1991. In the period 1992-1993, the appellants
referred to the Board of Industrial and Financial Reconstruction ('BIFR') under
the Sick Industrial Companies (Special Provisions) Act ('SICA'). On 05.02.2002
the National Textile Corporation (UP) Ltd, of which the appellants is a
constituent entity was declared as a sick industrial company under the SICA and
9 of the 11 mills owned by the said company was directed to be closed.
01.11.2002, the High Court dismissed the writ petition No.22193 of 1987 holding
that the High Court will not interfere with the order of the Labour court as
the same has neither been shown to be perverse, nor suffering from any error of
letter dated 9/11.03.2004, the Ministry of Labour, Government of India approved
the formal closure of Muir Mills.
on 20.04.2004, the appellant company received a show cause notice from the
Deputy Labour Commissioner asking the appellant to explain why a recovery certificate
of over ten lakhs be not issued in favour of respondent No.1.
was filed by the appellant on 16.07.2004 challenging the order of the High
Court dated 01.11.2002.
issues that deserve to be settled by this court according to us are:
Whether 'legal assistant' falls under the definition of workman under the
Industrial Disputes Act?
Whether the High Court failed to appreciate that the award was perverse
inasmuch as it directed the reinstatement with backwages of a probationer whose
services had been discontinued upon completion of the probationary period on
account of unsatisfactory work?
Whether the High Court failed to appreciate that respondent No.1 having worked
as a probationer for just a year had enjoyed over 15 years of wages without
having worked for the same and that in the facts and circumstances even if the
termination was held to be illegal, these wages paid should have been held to
be treated as compensation in lieu of reinstatement? The appellant Mill was
represented before us by learned counsel Mr.Sanjay Ghose, assisted by Ms. Anitha
Shenoy, advocate. Mr. Bharat Sangal, learned counsel appeared for the
appellants stated that respondent No.1 was not a workman as understood under
the Industrial Disputes Act. The respondent No.1 was being paid a sum of Rs.
866.51 as salary and his work was essentially of supervisory nature. The nature
of respondent No.1, Mr. Swayam Prakash Srivastava's work was to supervise the
court cases and conduct them in the courts for the appellant Mill.
submitted on behalf of the appellants that the High Court failed to appreciate
that the award of the Labour Court was perverse as it directed the
reinstatement with backwages of a probationer whose services had been discontinued
upon completion of the probationary period on account of unsatisfactory work.
In this regard the learned counsel referred to this Court's decision in the
case of Pavanendra. Narayan. Verma vs. Sanjay Gandhi PGI of Medical Studies
& Anr (2002) 1 SCC 520, where it was held that the services of a
probationer can be terminated at any time before confirmation, provided that
such termination is not stigmatic.
counsel submitted that the High Court failed to appreciate that the award of
the Labour Court was also perverse as it had directed grant of backwages
without giving any finding on the gainful employment of respondent No.1 and
held that the discontinuance of the services of a probationer was illegal
without giving any finding to the effect that the disengagement of respondent
No.1 was in any manner stigmatic. The decision in the case of MP State
Electricity Board vs. Jarina Bee (Smt) (2003) 6 SCC 141 was cited in this
regard where it was held that payment of full back wages was not the natural consequence
of setting aside an order of reinstatement. In the instant case, though the
termination was as far back as in 1983, the Industrial Adjudicator has not
given any finding on unemployment.
submitted that the respondent No.1 had been receiving interim wages for over 15
years without having worked at all and without having established his
unemployment. The High Court failed to appreciate that the award itself had
only granted reinstatement to respondent No.1 as a probationer giving the petitioner
the right to take a decision on confirmation.
High Court failed to appreciate that respondent No.1 having worked as a
probationer for just a year had enjoyed over 15 years of wages without having
worked for the same and that in the facts and circumstances even if the
termination was held to be illegal, these wages paid should have been held to
be treated as compensation in lieu of reinstatement.
appellants further contended that, assuming but not conceding that the
termination of the service of respondent No.1 was illegal, given the fact that
all that the Labour Court directed was that the respondent be reinstated as a
probationer and given the fact that the Mill itself had been closed down and
the appellant declared a Sick Industrial Company in respect of which a revival
scheme was sanctioned, the decision of this court in Rolston John vs. Central
Government Industrial Tribunal-cum-Labour Court & Ors., 1995 Suppl (4) SCC
549 would be applicable and the logical relief would be to be compensated in
lieu of reinstatement, which in the given case could be deemed to set off and
satisfied by the payment received by respondent No.1 of wages pursuant to the
interim order of the High Court dated 02.12.1987.
further submitted that the huge financial liability of Rs.7 lakhs in wages to a
probationer who had worked for only about a year was something which the
appellant, being a Sick Industrial Company, would find impossible to bear and
if this liability is saddled upon the appellant, it could prejudice the
sanctioned scheme for revival of two remaining mills. Almost 6898 employees
have been retired under a voluntary retirement scheme.
the High Court erred in dismissing the writ petition of the appellant on the
ground that the appellant had not complied with the interim order of the High
Court whereas the appellant mill has complied with order dated 2.12.1987 for
payment of half of the decreed backwages as early as on 19.1.1988.
his arguments the learned counsel submitted that, the NTC (UP) Ltd. was
managing 11 nationalised textile mills in the State of Uttar Pradesh.
account of huge losses, obsolete technology, excess labour/staff force the
company was referred to the Board for Industrial and Financial Reconstruction
(BIFR) under the Sick Industrial Companies (Special Provisions) Act in the year
1992-1993. The IFCI has prepared a Revival Scheme on the basis of which the
BIFR has approved of a sanctioned scheme. Under the Scheme, 9 of the 11 mills,
including the Muir Mills where respondent No.1 had served as a probationer,
have been closed down. About 6898 employees have opted for VRS. The High Court
failed to appreciate that the petitioner-Company itself had been declared a
Sick Industrial Company and the Muir Mills wherein the respondent worked had
been closed down and the reinstatement in any event was an impossibility.
the claim had been raised by the respondent, a probationer who had served for
only one year and who has already received wages for over 15 years amounting to
Rs.2.5 lakhs despite no entitlement to the same under law and without any proof
of unemployment during this period. If a recovery certificate of over Rs. 10 lakhs
is allowed to be issued in favour of respondent No.1 then the appellant already
staggering under a huge financial liability which the appellant, being a Sick
Industrial Company would find impossible to bear and if this liability is
saddled upon the appellant, it could seriously prejudice the sanctioned scheme
for revival of two remaining mills affecting the future of about 3000 employees
who have been labouring day and night in the remaining mills to make the
Revival Scheme a success.
respondents submitted that the respondent No.1 was appointed as Legal Assistant
in the appellant's organization where he worked with full devotion, sincerity
and to the full satisfaction of the employers but his services were terminated
on 04.06.1983 without any reason. It was submitted that, respondent No.1 was on
leave on 04.06.1983 and 05.06.1983 (being a Sunday) and on 06.06.1983 when he
went for work he was given the termination order. Respondent No.1 was not
issued a charge sheet or notice during the period before the termination of his
contended that respondent No.1 was appointed as legal assistant but he was not
doing any work of supervisory nature and that no body was working under him.
Further it was contended that respondent No.1 used to do parokari on behalf of
the Mills and that this type of work cannot be called as work of supervisory
nature and therefore respondent No.1 will qualify to be workman as defined
under section 2(z) of the U.P. Industrial Disputes Act (U.P.I.D Act), 1947.
stated that the termination order comes under the definition or retrenchment
and the employers have not followed the legal process. The workman has stated
that the termination order comes under the definition of retrenchment under
section 2 of the U.P.Industrial Disputes Act. The definition of retrenchment is
very elaborate in this section and in this connection a decision of this court
was cited, Karnataka State Road Transport Corporation, Bangalore vs. Abdul Qadir which appears on
page 89 F.L.R. 1984- 48, where it was observed that, "To protect the weak
against the strong this policy of comprehensive definition has been
effectuated. Termination embraces not merely the act of termination by the
employer but the fact of termination howsoever produced. We are inclined to
hold that the stage has come when the view indicated in Money's case has been 'absorbed
into the consensus' and there is no scope for putting the clock back or for an
anticlockwise operation. Once the conclusion is reached that retrenchment as
defined in section 2(oo) of the Industrial Disputes Act covers every case of
termination of service except those which have been embodied in the definition,
discharge from employment or termination of service of a probationer would also
amount to termination." It was also contended that there was no evidence
whatsoever to prove that the workman (respondent No.1) was given any warning
during the period of his service for his unsatisfactory work and therefore
terminating his services without a reasonable notice is wrong under law.
respondents further contended that in the present fact scenario retrenchment is
bad under law as conditions under section 6-N is not complied with.
6-N of the U.P. Industrial Disputes Act, 1947, states that, "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-
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 notice:
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" Therefore, it was submitted that
backwages have to be paid to the retrenched workman. The learned counsel cited
a string of cases in support of this contention made before us, Surendra Kumar Verma
Etc vs. Central Government Industrial Tribunal-cum- Labour Court, New Delhi
& Anr., 1981 (1) SCR 789, Hindustan Tin Works Pvt. Ltd. vs. Employees of
Hindustan Tin Works Pvt. Ltd., 1979 (1) SCR 563, Mohan Lal vs. Mgmt of M/s. Bharat
Electronics Ltd, (1981) 3 SCC 225, Post Graduate Institute of Medical Education
and Research, Chandigarh vs. Vinod Krishan Sharma & Anr (2001) 2 SCC 59, J.N.Srivastava
vs. Union of India 1998(9) SCC 559 and Jitendra Singh Rathor vs. Shri Baidyanath
Ayurved Bahwan Ltd & Anr., 1984 3 SCR 223 where this court has consistently
held that in case of illegal termination of service of a workman, the workman
is deemed to be continuing in service and is entitled to reinstatement with
heard the parties in detail and have perused through all the written records
placed before us. We are of the opinion that the arguments of the appellant
merits favourable consideration for the reasons stated infra.
regard to the question, whether respondent No.1 is a 'workman' under the
U.P.I.D Act, 1947, we are of the view that respondent No.1 is not a workman
under the Industrial Disputes Act. Section 2(z) of the U.P.I.D Act that is
similar to section 2 (s) of the Industrail Disputes Act, 1947 states that:
means any person (including an apprentice) employed in any industry to do any
skilled or unskilled manual, supervisory, technical or clerical work for hire
or reward, whether the terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an industrial dispute,
includes any such person who has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute, but does not include any
such person- i) xxx ii) xxx iii) who is employed mainly in a managerial or
administrative capacity; or iv) who, being employed in a supervisory capacity,
draws wages exceeding five hundred rupees per mensem or exercises, either by
the nature of duties attached to the office or by reason of the powers vested
in him, functions mainly of a managerial nature." In the fact situation of
this case, from the perusal of the job profile of respondent No.1 and after
examining section 2 (z) of the U.P.I.D Act it can be said that, respondent No.1
did not fall into the category of workman as contended by the respondents as
respondent No.1 falls under exception (iv) of section 2 (z) of the U.P.I.D Act,
case of Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh (2005) 3 SCC 232,
can be referred to in this context. Here the respondent was appointed to the
post of "Legal Assistant" the qualification for which was degree in
law with a practicing licence. The nature of his duties was to prepare written
statements and notices, recording enquiry proceedings, giving opinions to the
management, drafting, filing the pleadings and representing the appellant in
all types of cases. He was also conducting departmental enquiries against
workmen in the establishment. He was placed in probation and his post was
dispensed with, following which he was terminated.
raised an industrial dispute.
question before the Labour
"Whether the applicant was a workman"; Labour Court held he was a workman, which was upheld by High Court,
Management preferred an appeal to this Court. Following the decisions of this
Court in A Sundarambal v. Govt. of Goa, Daman and Diu (1988) 4 SCC 42, HR Adyanthaya
v. Sandoz (India) Ltd. AIR 1994 SC 2608 and rejecting SK Verma v. Mahesh
Chandra (supra), this Court held:
a person who performs one or the other jobs mentioned in the aforementioned
provisions only would come within the purview of the definition of workman. The
job of a clerk ordinarily implies stereotype work without power of control or
dignity or initiative or creativeness. The question as to whether the employee
has been performing a clerical work or not is required to be determined upon
arriving at a finding as regards the dominant nature thereof. With a view to
give effect to the expression to do 'any manual, unskilled, skilled, technical,
operational, clerical or supervisory work', the job of the employee concerned
must fall within one or the other category thereof. It would not be correct to
contend that merely because the employee had not been performing any managerial
or supervisory duties, ipso facto he would be a workman" "...The
Respondent had not been performing any stereotype job. His job involved
creativity. He not only used to render legal opinion on a subject but also used
to draft pleadings on behalf of the appellant as also represent it before
various courts/authorities. He would also discharge quasi- judicial functions
as an enquiry officer in departmental enquiries against workmen. Such a job, in
our considered opinion, would not make him a workman." In A Sundarambal v.
Govt. of Goa, Daman and Diu (supra), question arose as to whether a teacher
employed in a school is a 'workman' under s.2(s), here this Court was of the
teachers employed by educational institutions, whether the said institutions
are imparting primary, secondary, graduate or postgraduate education cannot be
called as 'workmen' within the meaning of s.2(s) of the Act.
of education which is the main function of teachers cannot be considered as
skilled or unskilled manual work or supervisory work or technical work or
clerical work. Imparting of education is in the nature of a mission or a noble
vocation. The clerical work, if any they may do, is only incidental to their
principal work or teaching.
not possible to accept the suggestion that having regard to the object of the
Act, all employees in an industry except those falling under the exceptions (i)-(iv)
in s.2(s) of the Act should be treated as workmen as it will render the words,
"to do any skilled or unskilled, manual, supervisory, technical or
clerical work" meaningless. Therefore, the appellant teacher of the school
conducted by ... was not a workman, though the school was an industry, in view
of the definition of 'workmen' as it now stands." It can be observed that
even before the Labour
Court as a
preliminary objection, it was contended by the appellant that, the respondent
No.1 was not under the category of workman as defined in section 2 of the U.P. Industrial
Disputes Act, 1947.
the reference order is not covered under the U.P. Industrial Disputes Act,
1947; and the reference order is totally vague, bad in law and is liable to be
rejected. It was also stated before the Labour Court that the total emoluments for the month of April, 1983
drawn by Sri Srivastava were totally in his supervisory capacity and he was
designated as Legal Assistant in the Litigation Department of the Mill and
therefore the reference before the Labour Court is not maintainable.
the Labour Court the respondent was examined as
W.W-I. In his deposition in-chief, he stated on oath that, on 04.06.1982 he was
appointed as the legal assistant in the Mill. In the cross-examination he
stated that he was appointed in the post of Legal Assistant in the Mill and a
total of Rs 850/- per mensem was being paid as salary. One Mr. Naresh Pathak
was examined as E.W.-I, he deposed on oath that he was working as Senior Legal
Assistant since 1971 and that the respondent had worked in his department in
the post of Legal Assistant in June 1982 in a supervisory capacity and the work
of the respondent No.1 was to supervise the court cases and whenever necessary
to prepare draft reply to matters that are pending in the court. He also
deposed that the work of the respondent was not satisfactory and in this regard
a note was issued to the General Manager. In cross-examination the witness
deposed that he has no document to prove that the nature of work of the
respondent was supervisory.
this was not given any kind of serious consideration by the High Court while
deciding on the claim made by the respondents.
if we draw a distinction between occupation and profession we can see that an
occupation is a principal activity (job, work or calling) that earns money
(regular wage or salary) for a person and a profession is an occupation that
requires extensive training and the study and mastery of specialized knowledge,
and usually has a professional association, ethical code and process of
certification or licensing. Classically, there were only three professions:
medicine, and law. These three professions each hold to a specific code of
ethics, and members are almost universally required to swear some form of oath
to uphold those ethics, therefore "professing" to a higher standard
of accountability. Each of these professions also provides and requires
extensive training in the meaning, value, and importance of its particular oath
in the practice of that profession.
member of a profession is termed a professional.
professional is also used for the acceptance of payment for an activity. Also a
profession can also refer to any activity from which one earns one's living, so
in that sense sport is a profession.
it is clear that respondent No.1 herein is a professional and never can a
professional be termed as a workman under any law.
perusal of the appointment order becomes useful here for addressing the issue
whether the High Court failed to appreciate that the award of the Labour Court
was perverse as it directed the reinstatement with backwages of a probationer
whose services had been discontinued upon completion of the probationary period
on account of unsatisfactory work "MUIR MILLS UNIT OF NATIONAL TEXTILE
CORPORATION (U.P) Ltd. SUBSIDIARY OF NATIONAL TEXTILE CORPN. Ltd. NEW DELHI (A GOVERNMENT OF INDIA UNDERTAKING) Post Box No.33, Civil
Lines, Kanpur-208 001 Dated: 4th June, 1982
Prakash Srivastava, S/o Sri. Hori Lal Srivastava, 21/8, Safed Colony, Juhi Kanpur
Dear Sir, With reference to your application dated 24.05.1982 and subsequent
interview you had with us on 27.05.1982, we have pleasure in offering you the
post of Legal Assistant in the pay scale of Rs.330-10-380-EB-12- 500-EB-
15-560/- with a starting basic pay of Rs.330/- (Rupees Three hundred Thirty
only) per month with effect from the date of your joining the Mills, on the
following terms and conditions:-
will be on probation for a period of one year from the date of your joining the
Mills. The probation period of one year can be extended or curtailed at the
discretion of the appointing authority. In the event of your failure to
complete the said probationary period satisfactorily, you may render yourself
liable to be discharged from the service of the Mill without assigning any
reasons and without any notice. During the period of probation, you can resign
from the service of the Mill without giving any notice. Unless a letter is
issued to you to the effect that you have completed your probation satisfactorily,
the probation period shall be deemed to have been extended.
increment shall be granted to you unless you have completed the said
probationary period satisfactorily and a letter to this effect has been issued
After you having completed the probation satisfactorily, your services can be
terminated by the appointing authority on giving you one month's notice or pay
in lieu thereof. If you wish to resign from the service of the Mill, you will
have to give one month's notice or pay in lieu thereof to the Mill.
Your employment will be governed by all the rules and regulations, terms and
conditions of service, administrative orders and/or standing orders presently
in force or as may be framed, amended, altered or extended from time to time
and as applicable to the employees of the Mills.
attaining the age of 58 years, you shall have no claim to be continued in the
service of the Mill thereafter and your services shall come to an end
faithfully (for) Muir Mills Unit of NTC (UP) Ltd. (A.L. MATHUR) General
Manager" Also if we peruse through the termination order it is clear that
the respondent No.1 was appointed in the capacity of legal Assistant and his
services were terminated after the completion of the probationary period. 4th June, 1983 Shri Swayam Prakash Srivastava,
Legal Assistant, Muir Mills Kanpur Reference para 3 of appointment letter No.
PA/16/82 dated 4th
performance has not been found satisfactory and as such, you have failed to
complete the probationary period successfully. Your services are, therefore,
being terminated with immediate effect.
contact Accounts Dept. on any working day and get your dues cleared on
production of a 'No Demand Certificate' from all the concerned.
Muir Mills Unit of NTC (U.P) Ltd.
clear from the clause in the appointment letter and the termination letter
that, the Mill had reserved all rights to discharge from the service of the
Mill the respondent No.1 without assigning any reasons and without any notice.
in the case of Registrar, High Court of Gujarat & Anr vs. C.G.Sharma (2005)
1 SCC 132, it was observed that an employee who is on probation can be
terminated from services due to unsatisfactory work.
Court's decision in the case of P.N. Verma vs. Sanjay Gandhi PGI of Medical
Studies (supra), can be referred to in this context, where it was held by this
court that, the services of a probationer can be terminated at any time before
confirmation, provided that such termination is not stigmatic. This Court in
State of Madhya Pradesh vs. VK Chourasiya 1999 SCC (L&S) 1155 also has held
that in the event of a non-stigmatic termination of the services of a
probationer, principles of audi alteram partem are not applicable.
also of the view that the award of the Labour Court is perverse as it had
directed grant of backwages without giving any finding on the gainful
employment of respondent No.1 and held that the discontinuance of the services
of a probationer was illegal without giving any finding to the effect that the
disengagement of respondent No.1 was in any manner stigmatic. The decision in
the case of MP State Electricity Board vs. Jarina Bee (Smt) (supra), this court
held that payment of full back wages was not the natural consequence of setting
aside an order of reinstatement. In the instant case, though the termination
was as far back as in 1983, the Industrial Adjudicator has not given any
finding on unemployment. This Court in a recent case of State of Punjab vs. Bhagwan
Singh (2002) 9 SCC 636 has held that even if the termination order of the
probationer refers to the performance being 'not satisfactory', such an order
cannot be said to be stigmatic and the termination would be valid.
the Labour Court issued notices to both parties and after adducing evidence and
hearing both the parties, it has recorded a finding that the termination of
services of the concerned workman, during his service, was neither based on
unsatisfactory work nor the same could have been proved before the labour court
and therefore, the labour court arrived at the conclusion and recorded a
finding that the services of the workman have been terminated by way of
victimization and unfair labour practice. Aggrieved by the aforesaid award, the
employer-petitioner has come before this court by means of the present writ
petition. An application has been filed by the workman concerned that the
employer has not complied with the aforesaid interim order.
we are of the view that, the emoluments for the month of April, 1983 drawn by
respondent No.1 was Rs.866.51 and the nature of duties of respondent No.1 were
totally supervisory capacity and he was designated as Legal Assistant in the
Mill's litigation department. So the respondent is not entitled to raise an
Industrial Dispute and also that his services are governed by all the rules and
regulations, terms and conditions of service, administrative orders and/or
standing orders presently in force or as may be framed, amended, altered or
extended from time to time and as applicable to the employees of the Mills as
is clear from the appointment order of 04.06.1982. Also it is clear from the
facts that the appellants have complied with the interim order of the High
also observe that the respondent No.1 had been receiving interim wages for over
15 years without having worked at all and without having established his
unemployment. The High Court failed to appreciate that the award itself had
only granted reinstatement to respondent No.1 as a probationer giving the
petitioner the right to take a decision on confirmation. Further the Mill
itself has been shut down now and given the lapse of 22 years, it was
impracticable to reinstate respondent No.1 as a probationer.
also pertinent to mention Section 2(oo) of the Industrial Disputes Act. Section
2 (oo) of the I.D.Act, 1947 states that, "2. (oo) "retrenchment"
means the termination by the employer of the service of a workman for any
reason whatsoever, otherwise than as a punishment inflicted by way of
disciplinary action but does not include-
Voluntary retirement of the workman; or
Retirement of the workman on reaching the age of superannuation if the contract
of employment between the employer and the workman concerned contains a
stipulation in that behalf; or (bb)
However, this provision is not applicable to the U.P. Industrial Disputes Act,
regard to the contention of the respondents that in the present fact scenario retrenchment
is bad under law as conditions under section 6-N, which talks about a
reasonable notice to be served on an employee before his/her retrenchment, is
not complied with; we are of the view that an even under Section 6-N, proviso
states that 'no such notice shall be necessary if the retrenchment is under an
agreement which specifies a date for the termination of service." In the
present case on the perusal of the appointment letter it is clear that no such
notice needs to be issued to respondent No.1.
respondents had referred to many cases with regard to backwages to be paid to
the retrenched workman. The learned counsel cited a string of decisions of this
court in support of this contention. We are however not addressing this plea of
the respondents, as we have already observed that respondent No.1 is not a
workman under the Industrial Disputes Act, 1947 and the U.P.I.D Act, 1947 and
also that the retrenchment was not illegal and therefore the question of backwages
do not arise.
result, we allow the appeal preferred by the appellants and set aside the award
of the Labour Court and the orders of the High Court.
We also observe that no recovery certificate needs to be issued in favour of
respondent No.1, in lieu of the show cause notice issued by the Deputy Labour
Commissioner. However we state that the salary that has been already paid to
respondent No.1 under the orders of the court will not be recovered from the
respondent. The High Court while passing the interim order dated 02.12.1997 in
writ petition No. 193 of 1997 while granting stay of the award of the Labour
Court directed the Management to deposit half of the amount decreed and also
continue to deposit the amount of salary of respondent in future until further
orders and that the past award if deposited could be withdrawn by the workman
after furnishing security. However, no security need be given to the withdrawal
of the amount which is to be deposited as future salary.
view of our finding that the respondent is not a workman, he will not be
entitled to payment of half of the decreed amount which was ordered to be
deposited. If the amount has not been withdrawn so far, the Management is at
liberty to withdraw the same from the court deposit. However we are not