Nirmala Joshi vs Labour Court and Others

S.B. Kapoor, J.—This civil writ petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 5 December 1964, (copy annexure D to the petition) of the presiding officer of the labour court, Delhi (respondent 1 to the petition), directing the petitioner Miss Nirmala Joshi, to pay to her ex-employee, Jai Gopal Kapur (respondent 2), compensation amounting to Rs. 2,638 in all, split up as follows:

Rs. Item (a): Earned wages for 21 days ... 268 Item (b): Wages, in lieu of unavailed leave ... ... ... 395 Item (c): One month''s wages in lieu of notice ... ... ... 395 Item (d): Retrenchment compensation- tion ... ... ... 1,580 ______ 2,638 ______

Items (c) and (d) were awarded in view of the provisions of Section 25F of the Industrial Disputes Act, 1917 (14 of 1947) (hereafter referred to as the Act).

The facts as found by the labour court, and which the learned Counsel for the petitioner has not for the purpose of this petition disputed before me, are as follows:

(1) that the petitioner Is an owner of an industrial concern;

(2) that the respondent as an employee of the petitioner was drawing consolidated wages of Rs. 395 per mensem; and

(3) that the respondent was retrenched with effect from 21 May 1964.

The further findings of the labour court that it had jurisdiction to decide the matter of the respondent''s application u/s 330(2) of the Act and that the respondent was entitled to retrenchment compensation have, however, been challenged before me on behalf of the petitioner.

So far as item (a) Is concerned, there is no dispute at all about it, because Sri Yogeswar Dayal, learned Counsel for the petitioner, has conceded that for the period of duty performed by the respondent before 21 May 1964, he was entitled to earned wages for 21 days. With regard to Item (&), that IB, wages In lieu of unavalled leave, Sri Yogeshwar Dayal''s contention was that the respondent was not entitled to such wages as a matter of right, but he declared that the employer was prepared to let him have, as a matter of grace, these wages In lieu of unavalled leave, BO It Is not necessary to enter upon this item also.

With regard to Items (c) and (d), however, it was strongly contended by Sri Yogeshwar Dayal that on an application u/s 330 (2) of the Act the labour court had no jurisdiction to grant any relief u/s 25F and In the connexion he has relied on a Bench ruling of the Gujarat High Court in Ambalal Shivlal v. D. M. Vin and Ors. 1964 II L.L.J. 271 which has been followed by Mahajan, J., in an unreported case of B. L. Ghasi Ram v. Labour Court and Ors. Civil Writ No. 158D of 1958, decided on 21 January 1965. The ratio of these cases is as follows:

Under Sub-section (1) of Section 7 of the Act a labour court IB to have jurisdiction In relation to matters specified In Sub, II of the Act, while u/s 7A of the Act an Industrial tribunal has jurisdiction for the adjudication of industrial disputes relating to any matter, whether specified In Sch. II or Sch. III. Now it is Sch. III under which are given items such as "wages," "leave with wages and holidays, "and" retrenchment of workmen and closure of establishment." The matters which are specified in Sch. III are noted in Sch. II as being outside the ambit of that schedule. However, withdrawal of any customary concession or privilege la a matter falling within Sch. II. u/s 25F of the Act, a workman, who has been in continuous service for no less than one year under an employer, cannot 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:

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;

(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 ...

Thus Section 25P lays down the conditions which have to be fulfilled before a valid order of retrenchment is made and it does not create a new right in favour of the workman to receive retrenchment compensation as well as pay for the notice-period In case no notice has been given. It follows therefore that a workman retrenched without complying with the provisions of Section 25F cannot claim retrenchment compensation directly u/s 25F and having regard to Sch. III as well as Sections 1 and 10 of the Act, the labour court will have no jurisdiction to determine the same in an application under 3. 330 (2) of the Act. The principle is that jurisdiction of the labour court is confined only to the determination of the amount of benefit arising out of an existing right.

The learned Counsel for the respondent does not challenge the correctness of the two decisions relied upon on behalf of the petitioner, but he maintains that inasmuch as the particular point as to jurisdiction In this form was not raised before the labour, court, the employer should not be permitted to canvass that point in a writ petition, and, in this connexion, reliance is placed on Jagatjit Cotton Textile Mills Ltd., Phagware Vs. Industrial Tribunal, Patiala and Others, . It was observed that the failure to raise objection to defect or lack of jurisdiction of the tribunal before it la always a material and relevant factor which must be taken into account by the High Court before it considers the case fit for exercise of its writ jurisdiction. However, the learned Judges qualified their observation by emphasizing that it would naturally depend on the facts of each case as to whether such conduct has been established as would disentitle the petitioner to such relief. Now, what we find in this case is that objection as to the labour court''s jurisdiction was actually taken on behalf of the employer and the basis was that jurisdiction of the labour court was confined to matters stated In Sch. II and that It could not be extended to any matter mentioned In Bob. III. Repelling this objection toe labour court observed that the question of compensation In lieu of retrenchment did not fall under Sch. III as that schedule comprised only those cases In which the legality or the retrenchment or closure of establishment was In question and did not include within It oases of retrenchment or closure compensation. This view IB, on the authorities relied upon by the petitioner, obviously Incorrect and while It is true that Ambalal Shivlal case 1964 II L.L.J. 276 (vide supra) was not cited before the labour court the omission to cite a Judgment cannot preclude the petitioner from agitating the question of Jurisdiction here also. As regards the case from our Court B.L. Ghasi Ram v. Labour Court and Ors. Civil Writ No. 158D of 1958, decided on 21 January 1965 (vide supra) that decision was pronounced after the date of the Impugned order.

The next contention urged on behalf of the respondent to persuade me not to Interfere by way of writ was that In view of the labour court''s finding that the respondent''s case was that of retrenchment he would be entitled to get retrenchment compensation from ''the Industrial tribunal and he should not, therefore, be made to resort to another proceeding. However, when the question la one of Jurisdiction and the Impugned order is, so far as Items (c) and (d) are concerned, admittedly beyond jurisdiction It has to be quashed to that extent.

The writ petition la, therefore, allowed and the Impugned order quashed so far as Items (c) and (d), viz., one month''s wages in lieu of notice and retrenchment compensation u/s 26F of the Act, are concerned, la view of the divided success of the parties, they will bear their own costs In this Court.