Smt. Pushpa Agarwal v. Regional Inspectress Of Girls' Schools, Meerut, And Another

Sharma, J.:— Appellant was appointed as librarian-clerk on temporary basis against the vacancy of Smt. Sukhbir Kaur Sandhu for a fixed term. As Smt. Sandhu confined to remain on leave, the services of the appellant were extended from time to time. By the last order, dated 13 march, 1987, the appellant was appointed for a period till the decision was taken on the application of Smt. Sandhu. Thereafter by order, dated 8 April, 1989, services of the appellant were terminated, against which she filed writ petition before this Court, which was dismissed by the learned Single Judge on 16 March, 1993. Hence this appeal.

2. We have heard learned counsel for the parties. The sole contention raised by the learned counsel for the appellant is that termination of service of the appellant is in contravention of S. 6-N of Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the Uttar Pradesh Act). This contention cannot be accepted. Retrenchment has been defined in S. 2(s) of the Uttar Pradesh Act, according to which termination of service of a workman by the employer for any reason whatsoever otherwise than as punishment inflicted by way of disciplinary action or the retirement amounts to retrenchment of the workman. Unless the case falls in one of the exceptions laid down in the above definition clause, every termination of service is a retrenchment within the meaning of the Act. Under the Central Industrial Disputes Act (hereinafter referred to as the Central Act), retrenchment has been defined in S. 2(oo). Definition of retrenchment as given in the Uttar Pradesh Act and in the Central Act were identical but by Central Act No. 49 of 1984, Cl. (bb) was added to S. 2(oo) by which two more exceptions to the definition of retrenchment were inserted. Clause (bb) is as follows:

“(bb) Termination of service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein”

But such a clause was not inserted in the Uttar Pradesh Act. In case the validity of the order of termination of service of the appellant is adjudged under the Central Act, it cannot amount to retrenchment, because his appointment was till a decision is taken on the application of Smt. Sukhbir Kaur Sandhu. Such being a stipulation in the appointment letter itself, and the service of the appellant having been terminated in accordance therewith, the case falls under Cl. (bb) of S. 2(oo) of the Central Act and, as such, it cannot amount to retrenchment.

3. A Full Bench of this Court in the case of Hindustan Sugar Mills, Ltd. v. State of Uttar Pradesh, [Writ Petition No. 1910 of 1981-LKO], has laid down that both the State and Central Acts deal with the matter enumerated in the concurrent list of the Seventh Schedule of Constitution and, as such, in view of the provisions of Art. 254 of the Constitution of India, if amendment in Central Act has been made after the law was enacted by the State, it will prevail over the State Act, with the result that the State law to the extent of inconsistency has to give way to permit the newly added provision in the Central Act to govern the situation. Therefore, Cl. (bb) of S. 2(oo) of the Central Act will be applicable to every case whenever the question of validity of termination of service is raised on the ground of non-compliance of S. 6-N of the Uttar Pradesh Act. This being the position, termination of service of the appellant cannot be said to be a case of retrenchment as it falls in one of the exceptions laid down in Cl. (bb) of S. 2(oo) of the Central Act.

4. The appeal is accordingly dismissed.