1. With consent learned counsel for the parties, the matter is finally heard.
2. This petition under Article 227 of the Constitution of Indian is directed against the Award dated 08.01.2016 passed by labour Court Jabalpur; whereby, the services of the respondent is directed to be reinstated with entire backwages.
3. The labour Court was in seisin with the following Industrial Disputes- The dispute emanated from the fact that the respondent being engaged as notice server on daily wages w.e.f. 26.04.1994 was dispensed with from service w.e.f. 30.04.2001. The termination was found fault with by the labour Court in a proceeding forming subject matter of Industrial Reference:4/2008/IDR because of non compliance of provisions under Section 25 F Industrial Dispute Act 1947 (for short "the Act of 1947)", which resulted in passing of Award on 09.05.2011, directing reinstatement without backwages. The respondent was reinstated on 17.05.2012 and later his services were dispensed with by order dated 07.07.2012. On raising of industrial dispute, the matter was referred to the labour Court. The Labour Court framed two issues viz.,
"VERNACULR MATTER OMITTED"
As regard to issue No.1 the labour Court found
fault with the order of termination since the order of
termination was not accompanying the retrenchment
compensation. Finding to that effect is recorded in
paragraph 8 in the following terms-
"VERNACULR MATTER OMITTED"
Section 25 F of the Act of 1947 mandates-
"25 F- 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:
(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 continuous service] or
any part thereof in excess of six months; and
(c)- notice in the prescribed manner is served
on the appropriate Government or such
authority as may be specified by the
appropriate Government by notification in the
Official Gazette]."
Clause (b) of Section 25 F of the Act of 1947 with
the expression "the workman has been paid, at the
time of retrenchment," contemplates that the
retrenchment compensation should accompany the
retrenchment. The simultaneous payment is thus
mandatory and a non-payment would invalidate the
retrenchment. In this context reference can be had of
the decision in Syed Azam Hussaini v. Andhra Bank
Ltd: AIR 1995 SC 1352, wherein it is held-
"13- ... The termination of appellants services
was, therefore, retrenchment under Section
2(oo) of the Industrial Disputes Act, 1947 and it
could be done only in accordance with the
provisions contained in Section 25-F of the
Industrial Disputes Act, 1947...."
4. There is another aspect in the matter. Clause (c)
of Section 25 F of the Act of 1947 provides for that
notice in the prescribed manner is served on the
appropriate Government or such authority as may be
specified by the appropriate Government by
notification in the Official Gazette. In the case at hand
there is no material on record of the labour Court and
even before the Court that the stipulations contained in
Clause (c) of Section 25 F of the Act of 1947 has been
adhered. Recently, in a decision in Raj Kumar v.
Director of Education and others: (2016) 6 SCC
541 it is held-
"34- We are unable to agree with the reasoning
adopted by the Tribunal as well as the High Court
in the instant case. Admittedly, the notice under
Section 25F(c) of the ID Act has not been served
upon the Delhi State Government. In support of
the justification for not sending notice to the State
Government reliance has been placed upon the
decision of this Court in the case of Bombay
Journalists (supra). This decision was rendered in
the year 1963 and it was held in the said case that
the provisions of Section 25F.
(c) of the ID Act is directory and not mandatory in
nature. What has been ignored by the Tribunal as
well as the High Court is that subsequently, the
Parliament enacted the Industrial Disputes
(Amendment) Act, 1964. Section 25F (c) of the ID
Act was amended to include the words:
"25-F (c) ... or such authority as may be
specified by the appropriate Government by
notification in the Official Gazette" The statement
of objects and reasons provides:
The statement of objects and reasons provides:
"Opportunity has been availed of to propose a few
other essential amendments which are mainly of a
formal or clarificatory nature."
35- Nothing was done on part of the legislature to
indicate that it intended Section 25F(c) of the ID
Act to be a directory provision, when the other two
sub-sections of the same section are mandatory in
nature. The amendment was enacted which seeks
to make it administratively easier for notice to be
served on any other authority as specified.
36- Further, even the decision in the case of
Bombay Journalists (supra) does not come to the
rescue of the respondents. On the issue of
interpretation of Section 25F(c) of the ID Act, it
was held as under: Bombay Union of Journalists
v. State of Bombay: AIR 1964 SC 1617-
"The hardship resulting from retrenchment
has been partially redressed by these two
clauses, and so, there is every justification for
making them conditions precedent. The same
cannot be said about the requirement as to
clause (c). Clause (c) is not intended to protect
the interests of the workman as such. It is only
intended to give intimation to the appropriate
Government about the retrenchment, and that
only helps the Government to keep itself
informed about the conditions of employment in
the different industries within its region. There
does not appear to be present any compelling
consideration which would justify the making of
the provision prescribed by clause (c) a condition
precedent as in the case of clauses (a) & (b).
Therefore, having regard to the object which is
intended to be achieved by clauses (a) & (b) as
distinguished from the object which clause (c)
has in mind, it would not be unreasonable to hold
that clause (c), unlike clauses (a) & (b), is not a
condition precedent."
5. Thus, this Court read the ID Act and the relevant Rules thereunder together and arrived at the conclusion that Section 25F(c) is not a condition precedent for retrenchment. By no stretch of imagination can this decision be said to have held that there is no need for industries to comply with this condition at all. At the most, it can be held that Section 25F(c) is a condition subsequent, but is still a mandatory condition required to be fulfilled by the employers before the order of retrenchment of the workman is passed. 37- This Court in the case of Mackinon Mackenzie & Company Ltd. v. Mackinnon Employees Union: (2015) 4 SCC 544-
"Further, with regard to the provision of
Section 25F Clause (c), the Appellant-Company
has not been able to produce cogent evidence
that notice in the prescribed manner has been
served by it to the State Government prior to
the retrenchment of the concerned workmen.
Therefore, we have to hold that the AppellantCompany
has not complied with the conditions
precedent to retrenchment as per Section 25F
Clauses (a) and (c) of the I.D. Act which are
mandatory in law."
38- In the instant case, the relevant rules are the
Industrial Disputes (Central) Rules, 1957. Rule 76
of the said Rules reads as under:
"76. Notice of retrenchment.- If any employer
desires to retrench any workman employed in his
industrial establishment who has been in
continuous service for not less than one year
under him (hereinafter referred to as ''workman'' in
this rule and in rules 77 and 78), he shall give
notice of such retrenchment as in Form P to the
Central Government, the Regional Labour
Commissioner (Central) and Assistant Labour
Commissioner (Central) and the Employment
Exchange concerned and such notice shall be
served on that Government, the Regional Labour
Commissioner (Central), the Assistant Labour
Commissioner (Central), and the Employment
Exchange concerned by registered post in the
following manner :-
a) where notice is given to the workman, notice of
retrenchment shall be sent within three days from
the date on which notice is given to the workman;
Rule 76(a) clearly mandates that the notice has to
be sent to the appropriate authorities within three
days from the date on which notice is served on
the workman. In the instant case, the notice of
retrenchment was served on the appellant on
07.01.2003. No evidence has been produced on
behalf of the respondents to show that notice of
the retrenchment has been sent to the
appropriate authority even till date.
39- That being the case, it is clear that in the
instant case, the mandatory conditions of Section
25F of the ID Act to retrench a workman have not
been complied with. The notice of retrenchment
dated 07.01.2003 and the order of retrenchment
dated 25.07.2003 are liable to be set aside and
accordingly set aside. "
6. Since there is non compliance of the stipulations
contained under Section 25 F (c) of the Act of 1947, the
termination of the respondent workman cannot be
upheld.
Since the termination of respondent workman is
found to be bad for non compliance of Section 25 F (a)
and (c) of the Act of 1947, the issue as to whether
Section 25 N of the Act of 1947 is attracted in case of
Municipal Corporation is not gone into and is kept
open.
As regard to backwages, the labour Court has
recorded a categorical finding that the workman has
deposed of being unemployed after termination which
has not been contradicted by the petitioner. In view
whereof, and in view of the law laid down in M/s.
Hindustan Tin Works Pvt. Ltd. vs. The Employees
of M/s. Hindustan Tin Works Pvt. Ltd. (1979) 2
SCC 80-
"9. ... The relief of reinstatement with continuity
of service can be granted where termination of
service is found to be invalid. It would mean that
the employer has taken away illegally the right
to the work of the workman contrary to the
relevant law or in breach of contract and
simultaneously deprived the workman of his
earnings. If thus the employer is found to be in
the wrong as a result of which the workman is
directed to be reinstated, the employer could not
shirk his responsibility of paying the wages
which the workman has been deprived of by the
illegal or invalid action of the employer."
7. This view have been reiterated in Deepali
Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others: (2013) 10 SCC
324 and Tapash Kumar Paul v. BSNL (2014) 4 SCR
875.
8. The conclusion arrived at by the labour Court cannot be faulted with as would warrant an interference. Consequently, petition fails and is dismissed.
