R.B. Singh vs State of U.P. and Others

D.S. Sinha, J.—Heard Shri K. P. Agarwal, learned Senior Advocate appearing for the Petitioner and Shri Rakesh Tewari, learned Counsel representing the Respondent No. 3.

By an order dated 26th June, 1974 the services of the Petitioner-workman were dispensed with by the employer-Respondent No. 3. This led to an industrial dispute which was adjudicated upon by the Labour Court IVth at Kanpur, Respondent No. 2, in adjudication case No. 74 of 1979. The adjudication culminated into the award dated 22nd December, 1979, a copy whereof is Annexure 8 to the petition.

The Respondent No. 2 has found it as a matter of fact that the termination of the workman by the employer amounted to retrenchment as contemplated in Section 25F of the Industrial Disputes Act, 1947, hereinafter called the Act. It has also been found that neither one month''s notice in writing indicating reasons for retrenchment nor wages in lieu of notice was given to the workman. Further finding of the Labour Court is that no retrenchment compensation was given to the workman. Notwithstanding with these findings, Respondent No. 2 has declared that the termination of the services of the Petitioner-workman was justified and legal.

Shri Agarwal, learned Counsel for the Petitioner, contends, and rightly so, that once it is found that the termination amounted to retrenchment and that requirement of giving notice or wages in lieu thereof and of giving retrenchment compensation has not been complied with, the termination of the Petitioner could not be declared to be justified and legal.

On the other hand Shri Tewari, learned Counsel representing the employer-Respondent, contends that the findings of the Labour Court that no notice was given; that no wages In lieu of notice was given; and that no retrenchment compensation was given to the workman are perverse.

Suffice it to say that except during the course of arguments, the employer-Respondent never challenged the award in any manner. Indeed, the Respondent-employer having not challenged the impugned award will be deemed to have acquiesced to it, including the findings recorded therein. Thus, impugned award has become final qua employer-Respondent No. 3.

Section 25F of the Act provides that 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 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 notices 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 continuous service or any part thereof in excess of six months. There is further requirement of giving notice in the prescribed manner served on the appropriate Government or such authority as may be specified by the appropriate Government by notification In the Official Gazette. In the instant case, It has been found as fact that Petitioner-workman was neither given notice or wages in lieu thereof nor was he given retrenchment compensation, which were conditions-precedent to bring about the termination of the Petitioner by way of retrenchment. The said conditions-precedent having not been satisfied, the order dated, 26th June, 1974 terminating the services of the Petitioner-workman cannot be held to be justified and legal. It has, therefore, to perish.

Then, the question arises what relief the Petitioner is entitled to. The Labour Court has granted only the relief of retrenchment compensation.

It cannot be gainsaid that once the termination is found to be illegal, the necessary consequence is that the workman is deemed to be in employment until his employment is terminated in accordance with law and he would be entitled to back wages also. However, while granting the relief of back wages, it has to be borne in mind that if workman had been gainfully employed during the pendency of the adjudication of dispute emanating from the termination, he may be denied back wages to the extent of his earnings during such employment. In the Instant case, there is no finding that the Petitioner-workman was gainfully employed.

On the facts and in the circumstances noticed above, the Court is of the opinion that the award of the Labour Court deserves to be modified'' to the extent that the Petitioner would be entitled to the relief of reinstatement as well as back wages.

In the result, the petition succeeds and is allowed. The award of the Labour Court shall stand modified to the extent indicated above. There will be no order as to costs.