Swadesh Press v. The-State of U. P — 1979 DIGILAW 1004 (ALL)

JUDGMENT K.N. Goyal, J. - The petitioners have a notice to some of their workmen; namely, opposite parties 4 to 10 and some others (Annexure 2) to the effect that due to installation of automatic machines in the press, retrenchment had become inevitable and, as such, the services of these workmen would be terminated with effect from 6th Aug. 1972. A copy of each individual notice to the workmen is annexure 3. This notice further laid down that under the Industrial Disputes Act, 1947, the opposite parties were entitled to retrenchment compensation. Accordingly, they were being informed of the termination one month in advance. It was further mentioned in this notice that they would be paid retrenchment compensation at the rate of 15 days wages for each year. The workmen were further informed that they may collect their dues according to their convenience at any time between 11 a. m. to 3 p. m. on or after 7th Aug., 1972. The opposite parties did actually collect their dues on 8th Aug. Subsequently, however, at their instance, an industrial dispute was-referred to the Labour Court the dispute referred to was whether the retrenchment of the opposite parties was justified and legal and, if not, to what benefits or compensation they were entitled, with particulars. The Labour Court, after hearing the parties, held that the petitioners had failed to comply with Cl. (b) of S. 6N of the (J. P. Industrial Disputes Act inasmuch as payment of compensation was not made before the workmen were relieved, but after the retrenchment became effective. Cl. (a) was obviously not attracted as the workmen were given one month's notice. On this finding, the Labour Court ordered reinstatement of the opposite parties with full back wages. This order dated 23-11-1977, Annexure 1, is the subject of challenge in this writ petition, the petition is contested by the said workmen. 2. We have heard learned counsel for the parties. 3. The first question that arises for consideration is whether the Labour Court was correct in taking the view that Cl. (b) of S. 6N, was violated. This order dated 23-11-1977, Annexure 1, is the subject of challenge in this writ petition, the petition is contested by the said workmen. 2. We have heard learned counsel for the parties. 3. The first question that arises for consideration is whether the Labour Court was correct in taking the view that Cl. (b) of S. 6N, was violated. This section, which is identical in terms with S. 25F of the Central Act, lays down, so far a# material as follows: "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 )............................ (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 of any part thereof in excess of six months; and (c) notice in the prescribed manner is; served on the State Government." 4. There is no dispute before us about* the amount of compensation due to the opp. parties under the aforesaid Cl. (b); There is also no dispute with regard to the compliance of Cl's, (a) and (c). The petitioner's contention is that the opp. parties were asked to collect their dues; on or after 7th Aug. for the sole reason that 6th August, was a Sunday on which the petitioners office as well as the bank were closed and payment for that reason was not possible on that day. In these circumstances, it is contended that the view taken by the Labour Court that the payment was made subsequently to the retrenchment was mere hairsplitting and that it has not considered the substance of the matter. 5. It is well settled that any violation of the provisions of S. 6N (b)/25-F(b) makes a termination order illegal. But two points arise for consideration in this context, namely,:- (a) whether in the event of non-compliance with Section 6-N(b)/25-F(b) the relief for reinstatement should be automatic or whether the Labour Court should have considered other alternative reliefs to the workmen? (b) Whether a delay of one day in the special circumstance of the case amounts to non-compliance? 6. But two points arise for consideration in this context, namely,:- (a) whether in the event of non-compliance with Section 6-N(b)/25-F(b) the relief for reinstatement should be automatic or whether the Labour Court should have considered other alternative reliefs to the workmen? (b) Whether a delay of one day in the special circumstance of the case amounts to non-compliance? 6. The language of S. 25F is in some respects similar to that of the proviso to Section 33 (2) (b) of the Central Act corresponding to S. 6E (2) (b) of the U. P. Act which reads as follows: "Provided that no such workman shall be discharged or dismissed, unless he has i been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." 7. It will be seen that both the provisions lay down a condition precedent for action by the employer resulting in termination of services of a workman. It is well settled that a breach of this proviso to S. 33 (2) (b) also makes the resulting order illegal. It has, however, been held in Punjab Beverages Pvt. Ltd. v. Suresh Chand ( (1978) 2 SCC 144 ): (1978 Lab IC 693) that although the order passed in violation of the said proviso would be illegal, it would not be void ab initio. It would be effective de facto subject to any order of a Labour Court or Industrial Tribunal that may be passed on reference of an industrial dispute under Section 10. In regard to violation of S. 25F also a Division Bench of this Court has held in Ram Singar v. Union of India (1979 Lab IC 370) that an industrial dispute can be raised if the employer commits a violation of S. 25F. We are, therefore, of the opinion that a breach of the provisions of Section 25F(b) does not make the order nonest and it is open to the Labour Court to grant to the workman appropriate relief and it is not bound as a matter of course to grant him the relief of reinstatement with back wages. Of course, reinstatement is the normal rule, but the grant of alternative relief in the special circumstances of a case cannot be ruled out altogether. Of course, reinstatement is the normal rule, but the grant of alternative relief in the special circumstances of a case cannot be ruled out altogether. Even in case of mala fide order of dismissal, it is open to the Industrial Tribunal on a reference being made to it to grant appropriate relief in such cases-Reliance was placed by the Division Bench on Premier Automobiles v. Wadke ( AIR 1975 SC 2238 ) in which it was laid down that the Tribunal can give appropriate relief to a workman aggrieved by an illegal order made by an employer. Even in cases of violation of statutory standing orders, it has been held that alternative relief can be granted. See in this connection Hindustan Steels Ltd. v. A. K. Roy ( AIR 1970 SC 1401 ): (1970 Lab IC 1166) If so, a bona fide technical breach of the provisions of S- 2-7F (b) cannot be constructed to visit the employer with a greater liability than would be the case if he had acted mala fide or in the colourable exercise of power or by way of unfair labour practice. 8. Coming to the next point, there are, no doubt, cases where a delay of a few days in compliance with the provisions of S. 33 (2) (b) or of S. 25F (a) or Co) has been held to be fatal, for instance, National Iron and Steel Co. v. State of West Bengal ( AIR 1967 SC 1206 ). In this case services were terminated with effect from 17tb Nov. and the workman was asked to collect his wages on 20th November, or thereafter, and their Lordships held in the circumstances that if the workman was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. It is, however, not clear from the facts of that case as to why the employer could not pay the dues on 17th, 18th or 19th Nov. In the present case an explanation has been given, namely, that 6th Aug. was a Sunday on which payment was not possible and, accordingly, payment was promised on the very following day. In this connection, the facts in Calcutta State Transport Corporation v. Mohammad Noor Alam ( AIR 1973 SC 1404 ): (1973 Lab IC 1120) may also be noticed. In the present case an explanation has been given, namely, that 6th Aug. was a Sunday on which payment was not possible and, accordingly, payment was promised on the very following day. In this connection, the facts in Calcutta State Transport Corporation v. Mohammad Noor Alam ( AIR 1973 SC 1404 ): (1973 Lab IC 1120) may also be noticed. This was a case under Section 33 (2) (b). The removal order was made effective on 1st July. The money-order for one month's wages was also received by the workman on 1st July, but an application under Section-33 (2) (b) was made on 3rd July which was a Monday. It was noted by their Lordships that an application could not be filed on Sunday and hence the passing of the order of removal, the tendering of wages and the filing of the application for permission should be deemed to form part of one transaction. Their Lordships added: "It is the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must 'be decided on its own facts." (Emphasis supplied) 9. We have noted earlier that the provisions of S. 25F (2) (b) and S. 33 (2) (b) are similarily worded with the only difference that in one case the word "until" has been used and in another the word "unless" has been used. The two expressions apparently mean the same thing as while describing the condition precedent the present perfect tense "has been" occurs in both the sections. It may also be noted that in spite of the use of the word "until" and the words "has been", the condition mentioned in Cl. (c) of S. 25F has been held sufficiently complied with if the prescribed notice is served on the Government after retrenchment. We are, however, not concerned with Cl. (c) in the present case. It may also be noted that in spite of the use of the word "until" and the words "has been", the condition mentioned in Cl. (c) of S. 25F has been held sufficiently complied with if the prescribed notice is served on the Government after retrenchment. We are, however, not concerned with Cl. (c) in the present case. Reference has been made to {that clause here only for showing that a {reasonable interpretation of the conditions precedent laid down in the two sections has to be made. Another Division Bench of this Court in Panchoo Gopal Karmakar v. State (1979 Lab IC 30) has held that if the workman did not collect the payment of the money order so sent to him later after deduction of advance that had been received by him, sufficient compliance with the terms of Section 6N should be deemed to have been made. This ruling did not deal with the question of time of payment, but only with the question whether the actual payment and payment of the full compensation without adjustment was required. The principle laid down was that substantial compliance with the provisions of the section should be insisted upon. In this view of the matter, the delay of one day in the date of promised payment, which was sufficiently explained by the fact that the previous day was a Sunday, should not have the effect of invalidating the order. 10. Thus on both the points, the petitioners are entitled to succeed. The Labour Court has also dealt with the question whether the retrenchment was bona fide. It appears, however, that this question was not categorically decided. In paras 7 and 8 of its judgment, the Labour Court was, no doubt, inclined to take the view that the retrenchment was not bona fide, but thereafter in Paras 9 and 10 the learned Labour Court held on the aforesaid legal grounds that the retrenchment was bad for non-compliance with Cl. (b) of S. 6N and, accordingly, held the retrenchment to be illegal. (b) of S. 6N and, accordingly, held the retrenchment to be illegal. Thereafter, in Para 11 it went on to observe that because of this legal finding it was unnecessary to go into additional grounds taken by the workmen, namely retention in service of hands junior to those who were retrenched, and continued existence of posts of hand-compositors in the petitioners' press even after the installation of the new machines and retrenchment of those workmen. This observation in para 11 detracts from the finality of the observations contained in Paras 7 and 8 of its judgment. Those observations thus appear to be only tentative. It is, therefore, necessary that this aspect of the matter should be considered afresh. 11. In the result, the writ petition is allowed, and the award of the Labour Court, annexure 1, is hereby quashed. The Labour Court shall decide the industrial dispute afresh in accordance with law. No order as to costs.