Bhanwar Singh, J.@mdashThis petition has been filed for a writ of certiorari to quash the award dated 11.6.1987 (hereinafter referred to as the
award) passed by the Industrial Tribunal (II) U. P., Lucknow.
2. The petitioner''s case is that Sitapur Eye Hospital, Faizabad, is a charitable eye hospital, which is a branch of the Base Hospital at Sitapur. It is
run by a society known as Faizabad District Eye Relief Society, Faizabad. The opposite party No. 2 Mohammad Salim Ansari was a ward-boy
working in a temporary capacity in the petitioners'' hospital. He was appointed with effect from 1.4.1983. However, his services were terminated
vide order dated 21.1.1984 by the Medical Officer Incharge Eye Hospital, Faizabad and in lieu of one month''s notice, he was paid one month''s
salary. Mr. Ansari raised an industrial dispute, which was referred to the Tribunal. The petitioners and Mr. Mohammad Salim Ansari filed their
written statements. As Mr. Ansari did not complete his service for one year, provisions of Section 6N of the U. P. Industrial Disputes Act were
not attracted. He was not entitled to claim retrenchment compensation for he had not completed one year''s service. However, the Tribunal held
that the opposite party No. 2 was entitled to claim retrenchment compensation as well and since the petitioners failed to do so, Mr. Ansari was
entitled to be reinstated to his post. As a matter of fact. Mr. Ansari opened his own chemist shop just behind the petitioners'' hospital by the name
of Sunaina Medical Store and since he was running a profitable business, he was not entitled to any compensation from the petitioners. The
petitioners, however, expressed their willingness to pay the retrenchment compensation but assailed the award on the count of reinstatement.
3. Mr. Ansari filed his counter-affidavit and protected the award in his favour. The petitioners were covered by the Industrial Disputes Act. From
the petitioners'' own record, it was established that he was recruited as ward boy with effect from December 1, 1971 and from 1st October, 1982
to 20th January, 1984, he worked continuously without any break and got his wages. Thus, he had completed more than 240 days in a year and
he was. therefore, entitled for the protection of Section 25F of the Industrial Disputes Act and Section 6N of the U. P. Industrial Disputes Act. His
termination being contrary to the provisions of the said Act was illegal. As a matter of fact, he was given a charge-sheet on January 14, 1984 but
no enquiry was done. Since his termination was made without following the principles of natural justice and completing the enquiry, the Industrial
Tribunal rightly set aside the order of termination. In fact he was victimised by the officers of the petitioners and his termination was the result of
prolonged victimisation. Further, Mr. Ansari denied the petitioners'' allegation that he was running a chemist shop and earning huge profits. As
pleaded by him, he was sitting idle at home with no income from any source of livelihood. In these circumstances, the petitioners'' services were
rightly restored by virtue of the impugned order.
4. The main ground pressed into service on behalf of the petitioners is that the provisions of Section 6N of the U. P. Industrial Disputes Act were
not attracted, as the opposite party No. 2 had not completed the tenure of his service for one year. It was supplemented further that the Industrial
Tribunal, in case of having-found that it was necessary to hold an enquiry, should have given an opportunity to the petitioners to lead evidence for
proving the charge.
5. I have heard the learned counsel for both the parties and perused the record.
6. As recited above, the main thrust has been advanced on the technical ground that the opposite party No. 2 was not entitled to the provisions of
Section 6N of the U. P. Industrial Disputes Act. According to the petitioners, Mohammad Salim Ansari was employed as a ward boy for a period
of less than ten months in the hospital. It was mentioned in the written statement of the petitioners filed before the Industrial Tribunal that Sri Ansari
was allowed to join on 1.4.1983 and since he was terminated with effect from 21.1.1984, he failed to complete one year of term in service and,
therefore, he was not competent to derive any advantage of the provisions of Section referred to above. However, this allegation was disputed by
Mohammad Salim Ansari. According to him; he was in the service of the petitioners as a seasonal ward boy from December, 1971 to January,
1984. He was appointed as temporary ward boy with effect from October, 1982 and he worked upto 20.1.1984. Obviously thus he was in the
employment of the petitioners for nearly fifteen months and since during this period, he served for more than 240 days, he was fully competent to
take recourse of the provisions of Section 6N of the U. P. Industrial Disputes Act.
7. It is significant to note that one Sri Ramji Gupta was examined on behalf of the petitioners before the Industrial Tribunal. His statement is
Annexure-C2 on record, a perusal of which would reveal that he admitted in his cross-examination that Sri Ansari was in regular service with effect
from October, 1982 to January 20, 1984. He conceded further that during this period, he continuously worked throughout the year. In view of this
admission, a clear-cut finding can be recorded that Sri Ansari worked for more than a year in the hospital of the petitioners and he was on duty for
a period exceeding 240 days. This conclusion is certainly bound to attract the provisions of Section 6N of the U. P. Industrial Disputes Act, which
postulates as follows :
6N. Conditions precedent to retrenchment of workmen.--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--
(a) the 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 the notice :
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service ;
(b) the 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, and
(c) notice in the prescribed manner is served on the State Government.
8. It is admitted to the petitioners that Sri Ansari was neither served with one month''s notice nor any compensation equivalent to fifteen days
average pay was paid to him at the time of his retrenchment. No doubt, he was offered one month''s wages in lieu of the requisite notice but since
his termination was in violation of the principles of natural justice, he was justified in declining the said offer. The learned counsel for the petitioners
relying upon the citations, Triveni Shankar Saxena u. State of U. P. and others 1992 (1) SCC 524 and State of Uttar Pradesh and Another Vs.
Kaushal Kishore Shukla, , contended that the opposite party No. 2 could not stake his claim on the post he was holding as he was working on
temporary basis. It is note-worthy that in neither of the two citations, the facts were similar to those of the case in hand. In the first citation, the U.
P. Fundamental Rules were applicable as the appellant was working as a Lekhpal, however since he did not hold any Hen on the post, termination
of his service as per rules on account of unsuitability on the basis of adverse entry in his character-roll was not held punitive. The other citation was
also in respect of a temporary Government servant whose termination had culminated on the ground of unsuitability on assessment of the
employee''s work in terms of his contract of service. The opposite party No. 2 of the case before this Court was a workman as defined under the
U. P. Industrial Disputes Act, 1947 and since he fulfilled the requirement of the provisions of Section quoted above, his services could not be
terminated without following the said provisions. Since no notice in the prescribed manner regarding retrenchment of Sri Ansari was served, his
termination was absolutely invalid.
9. Besides the legal lacuna, as referred to above earlier subsisting in the termination of the opposite party No. 2. the cessation of his service was
also illegal as principles of natural Justice were not followed. It was admitted to the petitioners that Sri Ansari was served with a charge-sheet
before his termination and the charge levelled against him was that he remained absent without leave from his duty with effect from 11.1.1984 to
14.1.1984 and an explanation was also called from him. In compliance, he submitted his explanation on 16.1.1984 but without holding any
domestic enquiry, his service was abruptly terminated with effect from 21.1.1984. It was admitted to Sri Gupta, the witness of the petitioners that a
charge-sheet was issued to the workman asking him to furnish his explanation and the latter replied denying the charge of his having remained
absent. Sri Gupta also conceded that no departmental enquiry was ordered against him, instead he was terminated with effect from 21.1.1984.
The workman pleaded another story in the background and submitted that he was victimised by the then Medical Officer Incharge of the Hospital
because he refused to drive the ambulance carrying the Medical Officer''s wife to an educational institution. It is irrelevant for this Court to enter
into the veracity of such allegations. However, it is evident from the record that the service of Sri Ansari was terminated without holding any
departmental enquiry in spite of the fact that he was served with a charge-sheet containing a serious charge of his being absent without leave from
duty. In this back-drop of domestic enquiry which initially might have been contemplated to be ordered by the then Medical Officer Incharge, the
statement of the petitioners'' witness Sri Rarnji Gupta to the effect that Sri Ansari was present on 11.1.1984 but he was not allowed to sign the
Attendance Register, acquired significant dimensions. It can well be observed out of the said averment that Sri Ansari was harassed and victimised
by the Medical Officer Incharge of the Hospital and the latter''s vindictive attitude culminated in the termination of Sri Ansari''s services. Such
termination was contrary to all canons of natural justice and violative of Article 14 of the Constitution. It was a capricious order. The arbitrariness
on the part of the Medical Officer Incharge clearly reflected from his stubborn attitude towards the workman as he restrained the latter from signing
the Attendance Register on January 11, 1984, although he was very much present to attend to his duties. Apparently thus the impugned termination
order dated 21.1.1984 was arbitrary, unreasonable and violative of Article 14 of the Constitution of India. Accordingly I am inclined to hold that
the impugned award of the Industrial Tribunal (II) U. P., Lucknow, does not suffer from any legal infirmity and there subsists no force for its being
interfered with.
10. The learned counsel for the petitioners challenged the latter part of the award whereby Sri Ansari was granted benefit regarding payment of
back wages on the ground that Sri Ansari was engaged in a profitable business of running a medical store during the period he remained out of job.
In this context, it may be mentioned, at the first instance, that the petitioners failed to establish that Sri Ansari was running the Sunaina Medical
Store, as no documentary piece of evidence worth the name credit to support their contention was brought forth. Secondly, it is a settled law that if
a workman has been deprived of his service by the employer in violation of the mandatory requirements of the U. P. Industrial Disputes Act, it
should be deemed that his service was never terminated and certainly on that rationale, he would be entitled to get his back wages. The said view
is fortified by a decision, Ashok Kumar and Others Vs. Managing Director, U.P. Leather Development and Marketing Corporation and Others, .
The following observation in para 27 of the judgment may relevantly be quoted :
...................... It is apparent that an order dispensing with the services of workman purporting to terminate the relationship of master and servant
taking recourse to a retrenchment which is rendered ab inifio void on account of the non-compliance of the mandatory requirements contemplated
under the provisions of the U. P. Industrial Disputes Act has to be taken as ab initio void and the workman concerned has to be taken to be
continuing in service/employment in spite of the order terminating his service and it should be deemed that his service was never terminated. If an
order is null and void, it has no existence in the eyes of law. It is non-est.
In the succeeding para 28, it was held further that there can be a straight Jacket formula for awarding relief of back wages and the party objecting
to it must establish the circumstance necessitating departure. As held above, the petitioners could not succeed in establishing their allegations that
Sri Ansari was running a medical store during the course of his idleness. Their contention, therefore, to quash the award of back wages is devoid of
merit.
11. In view of what has been discussed above, I am of the opinion that this petition has no merit and, therefore, deserves to be dismissed.
12. Accordingly, the writ petition is dismissed with costs.
