Raju vs Presiding Officer, Labour Court and Another

Arvind Kumar, J.—Petitioner has invoked the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing award dated 17.11.2005 (Annexure P/1), vide which the Labour Court, Gurgaon, has dismissed his claim statement.

Petitioner-workman on 1.11.1995, joined the services of respondent-department as Mail-cum-Chowkidar. On 8.10.1997, his services were terminated by the department on the ground that the same were no longer required. On termination of his services, the workman served a demand notice upon the department seeking reinstatement with continuity of service and back wages. On failure of the reconciliation proceedings, the appropriate Government referred the dispute to the Labour Court for adjudication. The workman filed claim statement before the Labour Court taking the plea that his services have been terminated illegally without any notice or payment of any compensation. Upon notice of the claim statement, the department denied the allegations levelled by the workman stating that the services of the workman were terminated as the same were no longer required and that in lieu of requisite one month''s advance notice he was paid a sum of Rs. 3,097/- through a demand draft It was pleaded, that in case of availability of work in future, the services of the workman would be availed.

In support of their respective case, evidence was led by the parties. Upon appreciation thereof, the learned Labour Court vide the imppgned award held that the department had retrenched the services of the workman in accordance with law and after complying with the formalities contained in Section 25F of the Industrial Disputes Act, 1947, (in short, the Act) and accordingly, dismissed the claim statement of the workman with the observation that in case of occurrence of any future vacancy, the case of the workman would be considered for re-employment. Hence, the present writ petition by the workman.

We have heard the learned the learned Counsel for the petitioner workman and have also gone through the paper-book carefully.

Learned Counsel for the petitioner-workman has argued that when the petitioner-workman was working with the respondent-department, at that time more than 100 workers were employed and has developed the arguments that Section 25N of the Act was applicable in the present case and it was obligatory for the respondent-department to give three months'' notice as required by Section 25N of the Act and the non-compliance thereof renders the termination invalid. The contention is meritless. Section 25N of the Act is placed in Chapter V-B of the Act which according to Section 25K has an application only to an industrial establishment in which not less than 100 workmen were employed in an average per working day for the preceding 12 months. There is nothing to substantiate the said plea. There was also no such plea before the Labour Court. A bare perusal of the claim statement shows that there were no such pleadings before the Labour Court. Now this plea need not detain us any longer. The infirmity in retrenchment ''by reference to Section 25N cannot be ventured to be found out without laying factual foundation attracting application of provision. It is basically a question of fact. In the absence of requisite pleadings having been raised and documents having been brought on record of the Labour Court, we are not persuaded to entertain the plea. Thus, we refrain ourselves to entertain the said plea having been raised for the first time before this Court in proceedings under Article 226 of the Constitution of India.

Clause (b) of Section 25F of the Act expressly provides for payment of retrenchment compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. In other words, a tender of compensation u/s 25F of the Act, in order to be valid, should be of precise amount and should be made simultaneously with termination of service. This is a condition precedent to a valid order of retrenchment. In the instant case, perusal of the impugned award shows that demand draft dated 8.10.1997 on account of retrenchment compensation was sent along with retrenchment notice, Exhibit MW-2/A, which the petitioner-workman received under protest but the factum of receipt of retrenchment notice along with demand draft cannot be disputed. A further perusal of the award shows that there was a specific pleading of the management of non-violation of Section 25G and having paid retrenchment compensation through bank draft, which was not controverted by the petitioner-workman in the replication.

In this back-drop, the learned Labour Court has rightly non-suited the petitioner-workman but at the same time observing that in case of occurrence of any future vacancy in the department, the case of the petitioner-workman for reemployment would be considered. Learned Counsel for the petitioner-workman has not shown anything to convince us to take any contrary view.

In view of what has been stated above, we find no infirmity or illegality in the findings arrived at by the learned Labour Court.

The writ petition being wholly without merit stands dismissed in limine.