# Joseph Convent School Shivpur Varanasi v. The Presiding Officer Labour Court & Anr - **Citation:** (2013) 2 ILRA 675 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2011-09-27 - **Bench:** Tarun Agarwala - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/joseph-convent-school-shivpur-varanasi-v-the-presiding-officer-labour-court-anr-42628 - **Pages:** 4 ## Headnote U.P. Industrial Dispute Act, 1947-Section 6 N, 2(s)- word 'Retrenchment'- explained-services of work man terminated-based upon enquiry report under disciplinary proceeding-does not come within perview of retrenchmentnor provision of Section 6 N,attracted held award by Labour Courtunsustainable-quashed. Held: Para-9 From the aforesaid, it is clear that Section-6-N would come into play, if a workman is retrenched for any reason whatsoever except by way of disciplinary action. If disciplinary action is adopted and the services of the workman is terminated on account of a disciplinary action, then retrenchment compensation is not payable and Section 6-N is not applicable. ## Text 2 All] Gyanendra Kumar Rawat Vs. State of U.P. And Anr. 675 prosecution that there is negligence or mischief by the Investigating Officer in omitting the name of Palu @ Ajaya Kumar Barik from the list of chargesheeted witness, then such a question should have been specifically put to the Investigating Officer by the prosecution in the shape of leading questions, if permitted by the trial court, so as to provide circumstances for consideration of the trial court in the event any such additional evidence is sought to be examined. Admittedly, in the present case nothing has been done by the prosecution and, therefore, when there is no positive circumstances available to indicate that Palu @ Ajaya Kumar Barik is a witness to the occurrence (pre or post), this Court finds that the application of the prosecution under Section 311 Cr.P.C. ought to have been rejected by the court below." 8. Reliance has further been placed on the judgment of Uttarakhand High Court dated 27.9.2011 passed in Criminal Misc. Application (C482) No.892 of 2011 "Km. Shailja Rawat Vs. State of Uttarakhand", in which the Uttarakhand High Court has held as under:- "This Court agree with the learned trial court that the object of Section 311 Code of Criminal Procedure, is not to fill the lacunae in the evidence of any party." 9. Learned counsel for the applicant has further relied upon Raghuveer Prashad Sharma Vs. State of Madhya Pradesh, 2009(4) Crimes 315, in which it has been held that because the statement of Dhanno was not recorded under Section 161 Cr.P.C., therefore, there was no justification on the part of learned court below in allowing the application filed by respondent for permitting to examine Dhanno as prosecution witness. 10. In the present case the prosecution evidence was concluded on 8.6.2012 and the statement under Section 313 Cr.P.C. was also recorded on 8.6.2012 thereafter the arguments were heard on 14.6.2012 because the accused persons had not adduced any evidence in defence. After that various other dates were fixed for remaining arguments and on 26.7.2012 this application under Section 311 Cr.P.C. was moved by the prosecution. Admittedly the name of Satrughan Singh did not find place in the list of witnesses and he was not examined under Section 161 Cr.P.C. It was alleged that he has sent the report to the District Magistrate regarding collusion of Digambar Singh and Jitendra Singh with Gyanendra Kumar Rawat. 11. Certainly the prosecution cannot be permitted to fill up the lacunas after it has examined all its witnesses. No reason was shown in the application as to why the said witness was not examined by the Investigating Officer under Section 161 Cr.P.C. and why such application was not moved at the initial stage. The prosecution cannot be permitted to reopen its case and there was no justification to allow such application moved at the belated stage. 12. In these circumstances, the order dated 28.7.2012 cannot be sustained. The application is allowed and the order dated 28.7.2012 is quashed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.04.2013 BEFORE 676 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 THE HON'BLE TARUN AGARWALA, J. Civil Misc. Writ Petition No. 17727 Of 2011 St. Joseph Convent School Shivpur Varanasi ...Petitioner Versus The Presiding Officer Labour Court & Anr. ...Respondents Counsel for the Petitioner: Sri Shyam Narain, Sri Gopal Narain Sri Sudhanshu Narain Counsel for the Respondents: C.S.C., Sri Kailash Prasad Yadav Sri Vinod Kumar Srivastava U.P. Industrial Dispute Act, 1947-Section 6 N, 2(s)- word 'Retrenchment'- explained-services of work man terminated-based upon enquiry report under disciplinary proceeding-does not come within perview of retrenchmentnor provision of Section 6 N,attracted held award by Labour Courtunsustainable-quashed. Held: Para-9 From the aforesaid, it is clear that Section-6-N would come into play, if a workman is retrenched for any reason whatsoever except by way of disciplinary action. If disciplinary action is adopted and the services of the workman is terminated on account of a disciplinary action, then retrenchment compensation is not payable and Section 6-N is not applicable. (Delivered by Hon'ble Tarun Agarwala, J.) 1. The workman committed an act of misconduct and was consequently chargesheeted. The management appointed an Enquiry Officer to conduct a domestic enquiry. The Enquiry Officer gave full opportunity to the workman to defend himself. The Enquriy Officer after considering the various evidence that was brought before it submitted an enquiry report holding that the charges levelled against the workman stood proved. Based on the enquiry report, the management issued a notice, and thereafter, the management after considering all aspects of the matter, passed an order terminating the services of the workman. The workman, being aggrieved by the order of termination, raised an industrial dispute, which was eventually referred to the labour court for adjudication. 2. Before the Labour Court, the workman contended that he had been in continuous service for more than 15 years and that he was not responsible for the misconduct as he was only a door checker in a bus and not a bus driver and was not responsible for the accident. The workman contended that he had worked for more than 240 days in a year and that the order of termination was in violation of the provision of 6-N of the U.P. Industrial Disputes Act. 3. On the other hand, the petitioner/ employers contended that the management took action in terminating service of the workman on account of disciplinary proceedings being initiated against him by serving a chargesheet, and thereafter, holding an enquiry against him. The petitioner contended that the charges stood proved and, on that basis, disciplinary action was taken and since the charges were grave in nature, the services of the petitioner was terminated. The petitioner in the written statement had also stated that in the event the labour court finds that the enquiry initiated and conducted by the management was violative of the principles of natural justice, in that event, an opportunity should be given to them to prove the charges before the labour court itself. 2 All] St. Joseph Convent School Shivpur VaranasiVs.The Presiding Officer Labour Court & Anr. 677 4. The labour court without considering the validity and legality of the domestic enquiry proceedings has set aside the termination of the workman on the short ground that the workman had worked for 15 years continuously without any break in service and that there has been a gross violation of Section 6-N of the U.P. Industrial Disputes Act. The labour court accordingly directed reinstatement with continuity of service and with full backwages. The petitioner, being by the said award, has filed the present writ petition. 5. Having heard the learned counsel for the parties at some length, the Court is of the opinion that the award of the labour court can not be sustained. The Court is constrained to observe that the Presiding Officer of the labour court does not know the basic labour jurisprudence. The retrenchment compensation is payable when a person is retrenched for whatever reason except by way of disciplinary proceedings. This is clearly indicated in the definition of clause 2-(s) of the U.P. Industrial Disputes Act. For facility, the said provision is extracted hereunder: (s)' Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include- (i) voluntary retirement of the workmen; or (ii)retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf; 6. A perusal of the aforesaid provision indicates that retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action 7. Section-6-N of the U.P. Industrial Disputes Act provides certain conditions, which are required to be made by the employer before retrenching the workman. For facility, the said provision is extracted hereunder: 6-N. 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 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. A perusal of the aforesaid provision indicates that a workmen who has been in continuous service for not less than one year could not be retrenched unless the workman has been given one month's notice in writing or one month's wages in lieu of such notice 678 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 and that compensation would be equivalent to fifteen days' average pay for every completed year of service order of service or any part thereof. 9. From the aforesaid, it is clear that Section-6-N would come into play, if a workman is retrenched for any reason whatsoever except by way of disciplinary action. If disciplinary action is adopted and the services of the workman is terminated on account of a disciplinary action, then retrenchment compensation is not payable and Section 6-N is not applicable. 10. In the light of the aforesaid, the provision of Section-6- N is not attracted till such time as the order of termination is not set aside. Consequently, the impugned award can not be sustained and is quashed. 11. The writ petition is allowed --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 12.04.2013 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. Civil Misc. Writ Petition No. 20087 Of 2013 Mahendra Kumar Yadav ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri Vijay Kumar Pandey Sri Bhrigu Ram Ji (Pandey) Counsel for the Respondents: C.S.C., Sri Mrig Raj Singh Sri Sanjay Kumar Prajapati Constitution Of India-Art. 226- Service Law-transfer in garb of complaints-on direction of such minister having no concern with Basic education department denotes complete surrender of power by authority concern-being malice in law-held-not sustainablequashed. Held: Para-6 The Minister of another department can only make a request and he cannot pass an order for the transfer of an Assistant Coordinator who is under the Basic Education Department. The Minister, therefore, transgressed his authority and the Basic Education Officer committed a manifest error by surrendering to the jurisdiction of the concerned Minister. If the head of another department is allowed to pass orders for a different department, the entire administration would go haywire and would, to an extent, violate the rules of business. The order, therefore, suffers from malice in law. (Delivered by Hon'ble Amreshwar Pratap Sahi, J.) 1. Heard Sri B.R.J. Pandey, learned counsel for the petitioner, and Sri Sanjay Kumar Prajapati, learned counsel for the respondent No.5 and Sri Mrig Raj Singh learned counsel for the Respondent No.4 and learned Standing Counsel for the Respondent Nos. 1,2 and 3 who all have assisted the Court in relation to the impugned transfer order dated 2nd April, 2013. This transfer order has been opposed reciting that it is on account of certain allegations made against the petitioner and complaints received that he is being transferred from Dharmapur to Muftiganj. Learned counsel submits that this recital is absolutely false inasmuch as neither the petitioner was made aware of any such complaint nor any such inquiry has been communicated so as to gather that there is a complaint against the petitioner while working as an Assistant Coordinator.