Gurbachan Singh vs The Presiding Officer and Others

Rajesh Bindal, J.—Challenge in the present writ petition is to the award dated 27.7.2010 wherein respondent No. 1 awarded compensation

of Rs. 24,000/- instead of reinstating the petitioner-workman in service. The petitioner was appointed as Sewer Helper on 1.1.1996 by the

respondent-management. He worked continuously from 1.1.1996 to 30.12.2001 with the respondent department. After he had put in about five

years of service, his services were terminated in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short ""the Act"") as no

retrenchment compensation was paid to him. Aggrieved by his termination, he raised industrial dispute. On a reference the Industrial Tribunal-cum-

Labour Court, Hisar (for short, ''the Labour Court'') vide his award dated 27.7.2010 granted compensation of Rs. 24,000/- instead of reinstating

the petitioner-workman in service. The petitioner has impugned the aforesaid award by filing the present writ petition before this court.

Learned counsel for the petitioner submitted that the petitioner worked as such under administrative control of different Junior Engineers, while

completing 240 days in each calendar year. But the respondent-management on 31.12.2001 did not allow the petitioner to resume his duties

saying that his services are no more required. He further submitted that the respondent management had not issued any prior notice or paid

retrenchment compensation, hence violated the mandatory provisions of Sections 25-F, G and H of the Act. He further contended that the

respondent-management has retained juniors and also appointed many fresh hands but no opportunity of employment has been offered to the

petitioner. He had worked continuously from 1.1.1996 to 30.12.2001 with utmost sincerity to the entire satisfaction of his superiors. It was further

submitted that the Labour Court has held that the petitioner had worked with the respondent management from 1.1.1996 to 30.12.2001 and he

had completed 240 days in the twelve months preceding his alleged termination on 31.12.2001, but has erred in partly allowing the reference and

only granting compensation of Rs. 24,000/-. Once it was proved that the petitioner had completed 240 days of service during the preceding 12

months, resultant termination in violation of Section 25-F of the Act should have been held to be bad with consequential relief of re-instatement

with continuity of service and full back wages. In support of his claim, reference was made to judgments of Hon''ble the Supreme Court in Ramesh

Kumar Vs. State of Haryana, Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), Harjinder Singh Vs.

Punjab State Warehousing Corporation, and Devinder Singh Vs. Municipal Council, Sanaur,

On the other hand, learned counsel for respondent Nos. 2 and 3, submitted that the petitioner workman has never been engaged by the

respondent management for any work. Since no appointment letter was ever issued to the petitioner, the question of giving notice does not arise.

The prayer is for dismissal of the writ petition with costs.

Heard learned counsel for the parties and perused the paper book.

In Ramesh Kumar''s case (supra), Hon''ble the Supreme Court held that if sufficient material is shown that workman has completed 240 days of

service, his service cannot be terminated without giving notice or payment of compensation in lieu thereof in terms of Section 25-F of the Act.

In Anoop Sharma''s case (supra), Hon''ble the Supreme Court has discussed the scope of term continuous service u/s 25-B of the Act, which

when read along with Section 25-F(a) and (b) of the Act mandates giving of one month''s notice or pay in lieu thereof and otherwise than by way

of punishment or in accordance with express terms incorporated in the order of appointment. If a workman is retrenched by an oral order or

communication or is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove

compliance of Clauses (a) and (b) of Section 25-F of the Act. Relevant paragraphs of the aforesaid judgment are reproduced hereunder:-

An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not

less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25-F of

the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month''s notice in writing indicating the reasons

for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of

retrenchment, compensation equivalent to fifteen days'' average pay for every completed year of continuous service or any part thereof in excess of

six months. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance thereof renders the

retrenchment of an employee nullity. This Court has used different expressions for describing the consequence of terminating a workman''s

service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been

termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non-est. Leaving aside the legal semantics, we have no

hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month''s

notice or pay in lieu thereof and compensation in terms of Section 25-F(a) and (b) has the effect of rendering the action of the employer as nullity

and the employee is entitled to continue in employment as if his service was not terminated.

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In State Bank of India v. N. Sundara Money (supra), the Court emphasised that the workman cannot be retrenched without payment, at the

time of retrenchment, compensation computed in terms of Section 25-F(b).

The legal position has been beautifully summed up in Pramod Jha v. State of Bihar (supra) in the following words:

The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month''s time available at his disposal to search for

alternate employment, and so, either he should be given one month''s notice of the proposed termination or he should be paid wages for the notice

period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been

retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only

a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in

searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along

with one month''s notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment

and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the

retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and

a public policy behind it would result in nullifying the retrenchment.

In Harjinder Singh''s case (supra), Hon''ble the Supreme Court has held as under:-

Of late, there has been a visible shift in the courts'' approach in dealing with the cases involving the interpretation of social welfare legislations.

The attractive mantras of globalisation and liberalisation are fast becoming the raison d''etre of the judicial process and an impression has been

created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases

like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by

creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in

such cases is that the initial employment/engagement of the workman employee was contrary to some or the other statute or that reinstatement of

the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the

accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the

employment for years together and that micro wages earned by him may be the only source of his livelihood.

It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal

of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the

approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral

part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public

or private.

Hon''ble the Supreme Court in Devinder Singh''s case (supra) held that provisions of Section 25-F, (a), (b) are mandatory and termination of

service of a workman which amounts to retrenchment within the meaning of Section 2 (oo) of the Act without giving one month''s notice or pay in

lieu thereof and retrenchment compensation is null and void. The relevant paragraphs of the aforesaid judgment are reproduced hereunder:-

This Court has repeatedly held that the provisions contained in Section 25-F(a) and (b) are mandatory and termination of the service of a

workman which amounts to retrenchment within the meaning of Section 2 (oo) without giving one month''s notice or pay in lieu thereof and

retrenchment compensation is null and void/illegal/inoperative.

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In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the

appellant is restored. If the respondent shall reinstate the appellant within a period of four weeks from today, the appellant shall also be entitled to

wages for the period between the date of award and the date of actual reinstatement. The respondent shall pay the arrears to the appellant within

period of three months from the date of receipt/production of the copy of this order.

On due consideration of the matter, I am not inclined to accept the arguments raised by the learned counsel for respondent Nos. 2 and 3. The

petitioner was appointed as Sewer Helper on 1.1.1996 by the respondent- management. He worked continuously from 1.1.1996 to 30.12.2001

with the respondent department. After he had put in about five years of service, his services were terminated in violation of Section 25-F of the

Act. No retrenchment compensation was paid to him. Aggrieved by his termination order, he raised industrial dispute. The matter was referred to

the Labour Court, which was partly allowed by granting compensation of Rs. 24,000/- while upholding that the petitioner workman had worked

with the respondent management from 1.1.1996 to 30.12.2001 and he had completed 240 days in the preceding calendar year. It is not disputed

by the learned counsel for the respondent-management that the respondent management has not challenged the award of the Labour Court.

An employer cannot be permitted to exploit a human being for a number of years, violate the law and show the workman exit door without just

cause or legal justification. Such workman must have the protection of his life, liberty and right to exists in some comfort by securing adequate

means of livelihood protected under Article 21 of the Constitution of India. The workmen in the aforesaid cases were directed to be reinstated.

In the present case, the facts reveal that the petitioner had been in continuous employment for about last five years, when his services were

terminated. The aforesaid decisions are fully applicable in the facts and circumstances of the present case. For the reasons recorded above, the

present petition is allowed. The impugned award dated 27.7.2010 is set aside. The respondent-management is directed to reinstate the petitioner

with continuity of service and to pay wages for the period between the date of award and the date of actual reinstatement.