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1972 DIGILAW 252 (ALL)

Kalicharan v. Workshop Electrical Engineer

1972-07-10

OM PRAKASH TRIVEDI

body1972
ORDER Om Prakash Trivedi, J. - The petitioner was appointed as a casual labourer in the Locomotive Workshop Northern Railway. Charbagh Lucknow on 1-7-1964 which, according to his contention, is an industrial establishment within the meaning of the Industrial Disputes Act, 1947. His contention is that he has been continuously working in the said workshop without any break in service until the filing of the writ petition and had completed more than four years of service On 12-3-1969 he was served v/11th a notice of retrenchment by opposite party No. 1 (annexure 11 to the writ petition). The petitioner impugns the validity of this notice on the ground that retrenchment compensation was not paid to him as required by Section 25-F of the Industrial Disputes Act, 1947. His retrenchment was challenged by the petitioner on various other grounds also but they were not pressed in arguments and therefore, may not be stated. The petitioner prays for a writ of certiorari quashing the notice of retrenchment contained in annexure 11. 2. A counter-affidavit was filed on behalf of Opposite Parties 1, 3, 4 and 5 and a supplementary affidavit was filed on 10-4-1969. It was not disputed by Sri N. Banerji, learned counsel appearing for the Opposite Parties that the petitioner is a workman within the meaning of the Industrial Disputes Act, 1947 and that the Industrial Disputes Act applies to his case. As already stated the only point urged in arguments on behalf of the petitioner was that the notice of retrenchment dated 12-3-1969 served upon him and contained in annexure 11 was illegal and inoperative in law as retrenchment compensation, as required by Section 25-F of the Industrial Disputes Act had not been paid. It was not disputed that no retrenchment compensation as required by Section 25-F was paid to the petitioner. It was not disputed that no retrenchment compensation as required by Section 25-F was paid to the petitioner. Section 25-F of the Industrial Disputes Act provides that no workman employed in any industry who has been in continuous service for more 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 service or any part thereof in excess of six months etc. The petitioner's learned counsel admits that the petitioner has been given one month's notice in writing as required by Clause (a) of Section 25-F but disputes the compliance of provision contained in Clause (b) of Section 25-F. There has been admitted non-compliance of the condition precedent for retrenchment of a workman embodied in Cl. (b) of Section 25-F. The effect of non-compliance with the condition contained in Clauses (a) and (b) of Section 25-F was considered by the Supreme Court in State of Bombay v. The Hospital Mazdoor Sabha (1960) 62 Bom LR 553 : AIR 1960 SC 610 and it was held that failure to comply with the requirement under Section 25-F (b) of the Industrial Disputes Act, 1947 that the workman sought to be retrenched be paid compensation at the time of retrenchment, makes the order of retrenchment invalid and inoperative. This decision was followed by this Court in Writ Petition No. 229 of 1969, S. K. Shukla v. Union of India decided on 10-12-1971 and in Writ Petition No. 275 of 1971 Amrit Lal v. Divisional Personnel Officer decided on 23-12-1971. The only argument advanced by Sri N. Banerji learned counsel appearing for the respondents was that this Court has no jurisdiction to adjudicate on the validity of the notice of retrenchment with reference to S. 25-F of the Industrial Disputes Act (hereinafter referred to as the Act) as the Act is a complete Code and all disputes and matters covered by it can be decided only by the Courts or Tribunal constituted by or under the Act- The argument is without any substance. Section 10 of the Act contains provision for reference of an industrial dispute to a Board Court or Tribunal. Section 10 expressly speaks of the existence or apprehension of an industrial dispute at any time. The question of reference of an industrial dispute to a Board. Court or Tribunal arises only in those cases where an industrial dispute exists or is apprehended. It is only in those cases that the Board. Court or Tribunal has exclusive jurisdiction to decide the dispute referred to them. But this is not a case falling within the exclusive jurisdiction of an Industrial Board, Court or Tribunal because neither an industrial dispute exists nor is apprehended. Section 10 falls in Chapter III of the Act whereas Section 25-F falls in Chapter V-A of the Act, Chapter III deals with the procedure for reference of disputes to Boards. Courts, or Tribunals, whereas Chapter V-A deals with entirely different matters: lay off and retrenchment. Section 25-A deals with the scope of Sections 25-C to 25-F. Section 25-C confers a right on a workman who had been laid-off for compensation. Section 25-D enjoins certain duty on an employer to maintain muster rolls of workmen. Section 25-F lays down that no workman is entitled to compensation in certain cases and Section 25-F lays down the conditions precedent to retrenchment of a workman. Section 25-F gives to the workman right to claim compensation in the case of transfer of undertaking S. 25-FFF gives him right to claim compensation in case of closing down of undertaking. Section 25-G lays down the procedure for retrenchment. Section 25-H lays down the provision for re-employment of retrenched workman. Section 25-J deals with the effect of laws inconsistent with this chapter. It is therefore, clear that the provisions contained in Chapter V-A do not deal: with disputes which are referable to Boards, Courts or Tribunals under Ch. Ill but to entirely different matters. Section 25-H lays down the provision for re-employment of retrenched workman. Section 25-J deals with the effect of laws inconsistent with this chapter. It is therefore, clear that the provisions contained in Chapter V-A do not deal: with disputes which are referable to Boards, Courts or Tribunals under Ch. Ill but to entirely different matters. The-question which has been raised in this petition, therefore, was not one which could be referred to a Board Court or Tribunal under the Act and as it raises a question of legality of the order of retrenchment for breach of the conditions laid down by Section 25-F. the matter can be raised before this Court In view of the above Supreme Court decision, the condition precedent contained in Clause (b) of Section 25-F to the retrenchment of the petitioner not having been followed inasmuch as compensation in accordance with the said clause had not been paid to the petitioner by or under the impugned notice the same is illegal and unenforceable at law. The petitioner's retrenchment is therefore, illegal and on this ground alone the petitioner is entitled to succeed. The notice of retrenchment contained in annexure II should be quashed and the petitioner be declared entitled to be treated as a workman still in service of the Northern Railway. 3. Accordingly the petition is allowed and the notice of retrenchment of the petitioner contained in Annexure II of the writ petition is quashed. The petitioner shall be treated as still an employee of the Northern Railway and continuing in service. The petitioner shall get the costs of this petition from Opposite Party No. 5.