Holding

Employees of the municipal board’s General Administrative Department are workmen in an industry, and Section 6‑P applies irrespective of length of service, requiring seniority unless the employer justifies deviation; therefore the Labour Court award is valid.

Summary

Samishta Dube was appointed as a typist/clerk in the City Board, Etawah on 15‑12‑1987 and terminated on 12‑04‑1988 after 3 months 27 days of service. She raised an industrial dispute under Section 4‑K of the U.P. Industrial Disputes Act, 1947. The Labour Court held that while the termination was not invalid, the "last come, first go" rule applied even to daily‑wage workers and directed her re‑appointment if any junior workmen were retained. The Allahabad High Court set aside the award, holding that the municipal board was not an "industry", that seniority did not apply to daily‑wage employees and that she should approach the State Services Tribunal. The Supreme Court allowed the appeal, holding that employees of the General Administrative Department of a municipal board are workmen in an "industry" under Section 2(k), that a typist/clerk qualifies as a "workman" under Section 2(z), and that Section 6‑P is not conditioned on length of service and requires the seniority rule unless the employer justifies deviation. Consequently, the Labour Court award was restored, ordering re‑appointment with back wages.

Issues considered

Whether employees of the General Administrative Department of a municipal board fall within the definition of "industry" under Section 2(k) of the U.P. Industrial Disputes Act, 1947.
Whether a typist/clerk employed on daily wages qualifies as a "workman" under Section 2(z) of the Act.
Whether Section 6‑P of the Act requires a minimum period of continuous service.
Whether the rule of "first come, last go" applies to daily‑wage employees and can be deviated from without employer justification.
Whether the appellant could approach the State Services Tribunal instead of the Labour Court.
Whether the High Court was correct in setting aside the Labour Court award.

Legislation cited

U.P. Industrial Disputes Act, 1947s. 2(k), s. 2(z), s. 4-K, s. 6-N, s. 6-P

Subjects

industrial disputemunicipal boardindustry definitionworkmanre‑trenchmentSection 6-Pseniority ruledaily wage employeepublic services tribunalre‑appointmentback wages

Judgment

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A SAMISHTA DUBE
v.
CITY BOARD, ETAWAH AND ANR.

FEBRUARY 26, 1999

B [S. SAGHIR AHMAD AND M. JAGANNADHA RAO, JJ.)

Labour Law:

U.P. Industrial Disputes Act, 1947: Section 2(k).
c
Industry-Scope and ambit of-Municipal Board--General Ad-
ministrative Departme11t Employees of-Held : Covered u11der S. 2(k)---ln-
dustrial Disputes Act, 1947, S. 2(j).

Sectio112(z)----!'Workma11''--Scope and ambit of-Typist/Clerk---ln ad-
D mi11istrative office of Mu11icipal Board-Held: Covered under S. 2(z).
I
'
Retre11chme11t-f'rocedure f or-{]nder S. 6-P-,:Jpplicability of S. 6-
N---Held: S. 6-P does not require a11y particular period of co;1ti11Uqus service
as required by S. 6-N-He11ce, High Court en-ed i11 de11yi11g r~lief to the
E workme11 011 the grou11d that he had put in 011ly a few years' service (three
and a half mo11th's service).

Retre11chme11t-f'rocedure f or-{]nder S. 6-P-Deviatio11 from-f'em1is-
sibility of-Rule of 'first come, last go'--Applicability of-To daily-wage
employees-Held : Rule applicable to daily-wage employees also---lt is per-
F missible for the employer to deviate from this Rule i11 case of lack of efficie11cy
or loss of confide11ce-But the burden will be 011 the employer to justify the
deviation-ii! the abse11ce of such justificatiOI! tem1i11atio11 of a daily-wage
employee is violative of S. 6-P.

G Tennination of service-Proper remedy against-Typist/Clerk in Ad-
mi11istrative office of Nagar Palika---Held: Being a workma11 i11 a11 i11dustry
the proper remedy agai11st tenni11atio11 of his service is u11der S. 4-K a11d 11ot
under U.P. Public Services (Tribu11al) Act-V.P. Public Services (Tribunal)
Act, 1976, S. 1(4)(e)-Service Law.

H Words and Phrases :
930
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SAMISHTADUBEv. CITYBOARD,ETAWAH 931
"Industry''--M~aning of-In the conte.xt of S. 2(k) of the U.P. Industrial A
Disputes Act, 1947.

"Workman''-Meaning of-In the Context of S. 2(z) of the U.P. In-
dustlial Disputes Act, 1947.

"Ordinwily''-Meaning of-In the conte.xt of S. 6-P of the U.P. Industrial B
Disputes Act, 1947.

The appellant was employed on daily wages as a typist/clerk and the
respondent terminated her services after she had put in a service of 3
months and 27 days. Being aggrieved the appellant raised an industrial
dispute before the Sate Labour Court under Section 4-K of the U.P. In- c
dustrial Disputes Act, 1947. The Labour Court held that the termination of
the appellant's appointment could not be termed as invalid but held that,
even-so, the principle of "last come, first go" applied even in the case of
those employed on daily wages and, therefore, passed an awared to effect
that in case workmen junior to the appellant were retained the appellant D
must be considered for regularisation by re-appointment on the basis of
her seniority.
•
pie respondent filed a writ petition before the High Court challeng·
ing the aforesaid award of the Labour Court. The High Court held that
since the appellant was employed in the administrative office of the Nagar E
Palika she was not employed in connection with any activity that might
amount to an "industry". The High Court also denied the relief to the
appellant on the ground that she liad put in only 3 months and 27 days of
service and that the question of senior or junior hardly arose in the case of
daily-wage appointments. The High Court also held that the appellant F
could go before the Services Tribunal. On these grounds the High Court
allowed the writ petition and set aside the award. Hence this appeal.

Allowing the appeal, this Court

HELD : 1.1. All the employees in the General Administrative Depart· G
ment in the Municipal Board would become employees in an "industry"
within the meaning of Section 2(k) of the U.P. Industrial Disputes Act, 1947
and if they satisfy the definition of'workmen' under Section 2(z) of the U.P.
Act, they will be entitled to seek a reference to the Labour Court. [934-D]

Bangalore Water Supply & Sewerage Board v.A. Rajappa, [1978) 2 SCC H
(
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932 SUPREME COURT REPORTS (1999) 1 S.C.R.
A 213 and Corporation of City of Nagpur v. Its Employees, [1960) 2 SCR 942,
followed.

1.2. This Court in Bihar State Road Tra11spo1t Corporation's case
treated a person doing clerical work in the industry as a ''workman". There-
fore, the appellant who was performing the work of a typist/clerk falls
B within the definition of 'workman' in Section 2(z) ef the U.P. Act.. [935-D)

Indian Iron & Steel Co. Ltd. v. Their Workmen, AIR (1958) SC 130 and
Bihar State Road Transport Corporation v. State of Bihm; AIR (1970) SC
1217, relied on.

c 2.1. Section 6-P of the U.P. Act is not controlled by conditrons as to length
of service contained in Section 6-N of the U.P. Act (which corresponds to
Section 25-F of the Industrial Disputes Act, 1947). Section 6-P does not require
any particular period of continuous service as required by Section 6-N. Hence,
the High Court was wrong in denying the relief to the appellant on the ground
D that she had put in only three and a half months' service. [935-G-H]

Kamlesh Singh v. Presiding Officer, [1986) Suppl. SCC 679 and Central
Bank of India v. S. Satyam, [1996) 5 SCC 419, relied on.

2.2 The High Court was not correct in stating that no rule of seniority
E was applicable to daily wagers. There is no such restriction in Section 6-P
of the U.P. Act read with Section 2(z) of the U.P. Act, which defines
'workman'. [936-A]

2.3. It is true that the rule of 'first come, last go' in Section 6-P could
be deviated from by an employer: because the section uses the word
F 'ordinarily'. It is, therefore, permissible for the employer to deviate from
the Rule in cases of lack of efficiency or loss of confidence etc. But the
burden will then be on the employer to justify the deviation. No such
attempt has been made in the present case. Hence, there is a clear viola~on
of Section 6-P of the U.P. Act. [936-B-C]
G
Swadesamitran Ltd. v. Their Workmen, [1960) 3 SCR 144, relied on.

3. The High Court was also wrong in thinking that the appellant could
go before the State Services Tribunal. Under Section 1(4)(e) of the U.P. \..
Public Services (Tribunals) Act, 1976, there is a specific bar to the ap·
H plicability of the said Act to 'workman' as defined in the U.P. Act. [936-D]
SAMISHTADUBEv. CITYBOARD,ETAWAH[M.JAGANNADHARAO,J.] 933

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1279 of A
1999.

From the Judgment and Order dated 11.8.97 of the Allahabad High
Court in C.M.W.P. No. 15674 of 1994.

Anand Pandey and Bharat Sangal for the Appellant. B
R.L. Bhardwaj, Mrs. Vijaya Thakre, R.S. Lainbat for the Respon-
dents.

The Judgment of the Court was delivered by
c
M. JAGANNADHA RAO, J. Leave granted.

The appellant who holds a post-graduate degree was appointed as a
typist/clerk on 15.12.1987 by the City Board, Etawah, respondent in this
appeal. Her services were terminated on 12.4.1988. The appellant raised
an industrial dispute and the same was referred to the Labour Court by D
the State of U .P. under section 4-K of the U .P. Industrial Disputes Act,
1947 (hereinafter called the 'Act') on 7.9.1991. The Labour Court held that
the termin<1tion of the appellant's appointment w.e.f. 12.4.1988 could not
be termed as invalid but held that, even so, the principle of "last come, first
go" applied even in the case of those employed on daily wages and, E
therefore, passed an award to the effect that in case workmen Junior to
the appellant were retained, the appellant must be considered for
regularisation by re-appointment on the basis of her seniority. This award
was passed on 28.1.1993.

The respondent filed Writ Petition No. 15674 of 1994 in the High F
Court of Allahabad. The High Court held that the Municipal Board
discharged sovereign functions and that the appellant was employed as a
clerk/stenographer in the administrative office of the Nagar Palika and
though "some activity" of the Municipal Board might amount to an "in-
dustry", there was nothing to show that the appellant was employed in G
connection with any activity that might amount to an 'industry'. The High
Court also held that the appellant could go before the Services Tribunal.
The High Court also observed that the appellant had worked only for 3
months and 27 days and her employment had come to an end by virtue of
the condition of her appointment. The High Court was of the view that the
Labour Court rightly held that the termination was not invalid but that its H
934 SUPREME COURT REPORTS (1999] 1 S.C.R.
A direction that the appellant should be appointed if any of her juniors were
working, was unjustified when there was no finding as to discrimination. It
was also held that the question of junior or senior hardly arose in the case
of daily-wage appointments. The appointment as an employee in the
Municipal Board was regulated by Rules and Regulations and appellant
was "admittedly'' not appointed to any regular post in accordance with the
B procedure provided. The High Court, therefore held that the direction
issued for appointment of the appellant in case juniors were continued was
not legally justified ana the Labour Court had no jurisdiction to entertain
the dispute. On these grounds, the writ petition of the respondent was
allowed and the award was set aside.
c The appellant filed this appeal questioning the judgment of the High
Court. We have heard the learned counsel on both sides.

On the question whether the Municipal Board could be treated as
an "industry" within the meaning of the said word in Section 2(k) of the
D U.P. Industrial Disputes Act, 1947, learned counsel for the appellant has
relied upon the judgment of this Court in Bangalore Water Supply &
Sewerage Board Etc. v. A Rajappa & Others Etc., [1978] 2 SCC 213. The
question was elaborately gone into by Krishna Iyer, J, and this Court
approved the decision in Corporation of City of Nagpur v. Its Employees,
[1960] 2 SCR 942, where Subba Rao, J. (as he then was) held that, in view
E of the application of the twin tests, namely, (i) primary and predominant
activity test and (ii) the integrated activity test, the Municipal Corporation
was an "industry" and that, in particular' the employees in the Education
Department,. the Health Department and the General Administration
Department were to be treated as working in an "industry". It was held in
p regard to the General Administration Depa1tment by Subba Rao (as he then
was) (pp. 973-974) as follows :

"Every big company with different sections will have a general
administration department. If the various departments collated
with this department are industries, this department would also be
G a part of the industry. Indeed the efficient rendering of all the
services would depend upon the proper working of this depart-
ment, for, otherwise there would be confusion and chaos. The State
Industrial Court in this case has held that all except five of the
departments of the Corporation come under the definition of
H 'industry' and if so, it follows that this department, dealing
5AMISHTADUBEv. CITYBOARD,EfAWAH(M.JAGANNADHARAO,J.] 935

predominantly with industrial departments, is also an industry. A
Hence the employees of this department are also entitled to the
benefits of this Act."

The above, observations holding that the General Administration Depart-
ment of a Municipal Corporation would be an 'industry' were approved in
Bangalore Water Supply case. Therefore, all the employees in the General B
Administration Department would become employees in an "industry" if
they satisfy the definition of 'wormken' in the statute, they will be entitled
to seek a reference to the Labour Court.

Coming to the question whether a clerk/typist could be 'workman' C
within Section 2(z) of the U.P. Industrial Disputes Act, 1947 we may refer
to certain cases under section 2(s) of the Industrial Disputes Act. 1947. In
M/s. Indian Iron & Steel Co. Ltd. & Another Etc., v. Their Workmen Etc.,
AIR (1958) SC 130 and Bihar State Board Transport Corporation v. State of
Bihar & Others, AIR (1970) SC 1217, a person doing clerical work in the
industry was treated as a "workman". The appellant, therefore, falls within D

- the definition of 'workman' in section 2(z) of the U.P. Industrial Disputes
Act, 1947.

We shall next deal with the point whether, in case employees junior
to the appellant were retained, the directions issued by the Labour Court E
could be treated as valid. Section 6-P of the U.P. Act (which corresponds
to Section 25 G of the Central Act cif 1947) states that where any workman
in an industrial establishment is to be retrenched and he belongs to a
particular category of workmen in that establishment, - in the absence of
any agreement between the employer and the workmen in this behalf - the
employer shall ordinarily retrench the workmen who was the last person to F
be employed in that ·category, unless for reasons to be recorded, the
employer retrenches any other person. Now this provision is not controlled
by conditions as to length of service contained in Section 6(N) (which
corresponds to Sertion 25F of the Industrial Disputes Act, 1947). Section
6-P does not require any particular period of continuous service as re- G
quired by Section 6-N. In Kamlesh Singh v. Presiding Officer, (1986] Suppl.
SCC 679 in a matter which arose under this very Section 6-P of the U.P.
Act, it was so held. Hence the High Court was wrong in relying on the fact
that the appellant had put in only three and a half months of service and
in denying relief. (See also in this connection Central Bank of India v. S.
Satyam & Others, [1996] 5 SCC 419 H
936 SUPREME COURT REPORTS [1999] 1 S.C.R.

A Nor was the High Court correct in stating that no rule of seniority ....
was applicable to daily-wagers. There is no such restrictiC1n in Section 6-P
of the U.P. Act read with Section 2(z) of the U.P. Act which defines
'workman'.

It is true that the rule of 'first come, last go' in section 6-P could be
B deviated from by an employer because the section uses the word
'ordinarily'. It is, therefore, permissible for the employer to deviate from
the rule in cases of lack of efficiency or loss of confidence etc., as held in
M/s. Swadesamitran Limited, Madras v. 171eir Workmen, [1960) 3 SCR 144.
But the burden will then be on the employer to justify the deviation. No
such attempt has been made in the present case. Hence, it is clear that
C there is clear violation of Section 6-P of the U .P. Act.
The High Court was also wrong in thinking that the appellant could
go before the State Services Tribunal. Under section 1{4)(e) of the U.P.
Public Services (Tribunals) Act, 1976, there is a specific bar to the ap-
D plicability of the said Act to 'workmen' as defined in the U .P. Industrial
Disputes Act, 1947.

In the result, ihe High Court was wrong in ~etting aside the orders
of the Labour Court. We accordingly set aside the judgment of the High
Court and restore the order of the Labour Court. The said order of the
E . Labour Court will be complied with by respondent within 15 days of the
receipt of this order. As the re-appointment was denied from the date of
the award, namely, 28.1.1993, the appellant will be entitled to re-appoint-
ment and all consequential benefits w.e.f. 28.1.1993 including backwages
inasmuch as no attempt has been made by the respondent to contend that
the appellant was otherwise gainfully employed. Appeal is allowed as stated
F above. There will be no order as to costs.
v.s.s. Appeal allowed.