JUDGMENT
Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition is preferred by the petitioners for quashing the award in Adjudication Case Nos. 170/85, 172/85, 174/85 and 244/85 passed by the Labour Court in leading Adjudication Case No. 172/85 (Charan Singh and Ors. v. Modi Rubber Ltd.).
3. By the impugned award the Labour Court has answered the reference against the workmen and has held that the action of the employers in terminating the services of the petitioners from the posts of drivers, as is given in the reference was according to the rules, legal and justified and they are not entitled to any relief or benefit.
3. M/s Modi Rubber Ltd., Modinagar, Ghaziabad (respondent No. 1) has its factory’ at Modipuram, Meerut which is engaged in the manufacture of tyres for trucks, trolleys, cars, scooters etc. At the relevant time it employed more than 3000 workmen in its factory at Modipuram.
4. The petitioners were drivers. It is alleged that they were not paid over time for extra work done by them and therefore they wanted to form an association. A letter dated 16.8.1994 terminating the services of all the concerned workmen was issued by Sri J.L. Kaul, P.A. to the Vice President of the Company on his behalf. One of the orders terminating the services of the concerned workmen is reproduced below foe appreciation of the controversy involved in the writ petition:-
“Modi Rubber Limited
Date 16.8.84
Mr. Charan Singh,
Driver,
Transport Department.
The Management as a matter of police of launching an economy drive and rationalizing overhead expenditure to let the industry remain economically viable……………………………………………….
……………………………………………………………………………….
………………………………………………………………………………….
You will be paid one-month’s wage in lieu of notice and the retrenchment compensation along with your other dues as per the law.
You are, therefore, required to collect one month’s wages in lieu of notice and your dues payable to you in accordance with the law in full and final settlement of your account from the Cash Office before 5.00 P.M. on or before 21.8.84.
for Modi Rubber Limited
Sd/- J.K. Kaul
for and on behalf of
Vice Chairman & Managing Director
Modi Rubber Limited”
5. A notice dated 4.9.84 was sent by one of the petitioners, namely Subhash Chandra through his advocate addressed to the Vice-Chairman and Managing Director Modi Rubber Ltd. inter alia alleging that the workmen though shown as a probationer was in fact a permanent employee whose services had been terminated vide letter dated 17.8.1984 issued by Sri J.L. Kaul on behalf of the Vice-Chairman and Managing Director on fabricated and false grounds. It was also averred in para 6 of the notice: –
“6. That your entire acts is/are illegal, unjustified and your have terminated the services of my client only to victimive him due to his trade union activities. Shri J.L. Kaul has no authority to Terminate the services of my client or to sign on your behalf the letter dated 17.8.84.
Therefore, through this notice I hereby call upon you to withdraw your letter dated. 17.8.84 and take him back on duty as Driver with continuity of service and with all benefits within seven days from receipt of this notice, failing which my Client shall take legal recourse against you at your risk, costs and consequences.
Sd/ – Sudhir Johri
Advocate”
6. The petitioners raised four different industrial disputes, which were referred to the Labour court U.P. as under:-
A. Adjudication Case No. 172/85 (Charan Singh)
^^D;k lsok;kstdksa }kjk vius Jfed pju flag iq=
Jh lxok flag dh NVuh fnukad 18&8&84 ls fd;k tkuk mfpr rFkk @ vFkok oS/kkfud
gS\ ;fn ugha rks lacaf/kr Jfed D;k ykHk @ vuqrks”k ^^fjyhiQ** ikus dk vf/kdkjh
gS ,oa fdl vU; fooj.k lfgrA**
B. Adjudication Case No. 173/85 (Mahendra Singh)
D;k lsok;kstdksa }kjk vius Jfed egsUnz flag iq=
Jh cuchj flag MkbZoj dh fnukad 29&8&84 ls NVuh fd;k tkuk mfpr rFkk
@ vFkok oS/kkfud gS\ ;fn ugha] rks lacaf/kr Jfed D;k ykHk @ vuqrks”k ^^fjyhQ**
ikus dk vf/kdkjh gS ,oa fdl vU; fooj.k lfgrA**
C. Adjudication Case No. 174/85 (Vinod Kumar)
^^D;k lsok;kstdksa }kjk vius Jfed fouksn dqekj
iq= Jh jkelju dh lsok;sa fnukad 17&8&84 ls lekIr fd;k tkuk mfpr rFkk @
vFkok oS/kkfud gS\ ;fn ugha rks lacaf/kr Jfed D;k ykHk @ vuqrks”k ^^fjyhQ**
ikus dk vf/kdkjh gS ,oa fdl vU; fooj.k lfgr**
D. Adjudication Case No. 244/85 (Subhash Chand)
^^D;k lsok;kstdksa }kjk vius Jfed lqHkk”k
pUnz iq= Jh uUnfd’kksj dh lsok;sa fnukad 17&8&84 ls lekIr fd;k tkuk mfpr
rFkk @ vFkok oS/kkfud gS\ ;fn ugha rks lacaf/kr Jfed D;k ykHk @ vuqrks”k ^^fjyhQ**
ikus dk vf/kdkjh gS ,oa fdl vU; fooj.k lfgrA**
7. All the aforesaid four cases were consolidated together by the Labour Court and Adjudication Case No. 172/85 in regard to Charan Singh was made as the leading case in which a consolidated award impugned has been given in respect of all the aforesaid cases.
CASE OF THE PETITIONERS BEFORE THE LABOUR COURT
1. The case of the workmen before the Labour Court challenging the legality of the order of termination was that:-
2. The employers have resorted to retrenchment, which is illegal, as they did not apply for prior permission for retrenchment of the workmen under the provision of the U.P. Industrial Disputes Act. The retrenchment is illegal and void ab-initio. It is further the case of the workmen that the order of retrenchment is also illegal and void ab-initio as neither conditions precedent to retrenchment under Section 25N(1) of the Industrial Disputes Act were complied with nor the procedure under the Rules framed under the Act were followed, i.e., in retrenching the workmen seniority list of the workmen category wise was to published and the employees arbitrarily retained employees junior to the petitioners in service while terminating the services of the seniors.
3. It was also their case that their services have been retrenched by the P.A. to the Vice-Chairman and M.D. who was not competent to terminate their service and that after termination of their services new drivers were appointed in their place. It was also stated that the amounts paid to them towards notice pay and retrenchment compensation in much less than the dues payable to them.
CASE OF THE EMPLOYERS BEFORE THE LABOURS COURT
8. The employers contested the claim of the workmen and justified their action of retrenchment before the Labour Court on the ground tat new companies had come in the market giving stiff competition to them as a result of which sale of their products had sunk to the bottom. The case of the employers further was that the petitioners were employees of Modi Spining.& Weaving Mills Co. Ltd. Which is registered under the U.P. Shops and Commercial Establishment Act. Learned counsel for the respondents further contend that these drivers were employed in the Head Office situate in district Meerut which is head Office of several companies whereas Modi Rubber factory is situate at Modinagar, Ghaziabad. The concerned workmen requested for transfer to establishment of Employer Company at Modinagar; the management accepted their request and they were transferred on deputation to the Modi Rubber Ltd. But their lien and seniority was maintained with Modi Spinning. & Weaving. Mills Co. Ltd and they were at no time employees of Modi Rubber Ltd.; that there is positive finding in the award that in so far as the 4 drivers involved in the dispute are concerned they were employed in the Head Office which in not a factory and the provisions of the U.P. Industrial Disputes Act does not apply. They allege that at the Time of retrenchment the amount of one-month wages in lieu of notice as well as retrenchment compensation, which as payable to them in accordance with law after adjustment of any advanced etc. lying against the petitioners were paid. It was denied by the employer that any over-time dues were payable to the workmen under the amended provisions of Industrial disputes Act/U.P. Industrial Disputes Act and provisions of Section 25N of the Industrial Disputed Act are not applicable and that the said provision imposed an unreasonable restriction and is violative of Article 19(i), (f) and (g) of the Constitution of India and as such was constitutionally invalid. Regarding the allegation of appointment of new hands it was pleaded that they were engaged on need basis for casual work when required and were not appointed in place of the petitioners.
9. It is submitted by the counsel for the petitioners that the Labour Court did not analyze the pleadings, documents and the evidence of the parties and jumped to the conclusion that the case of the respondents in proved by the documents produced and evidence led before it. It is submitted that though there was no case of the employers that the petitioners. He states that the finding of the Labour Court that Sri J.L.Kaul was competent to pass the order observed that the petitioners had to raise dispute before the competent authority and in this reference the question cannot be adjudicated and held that no notice under Section 6-N of the U.P.Industrial Disputes Act was required to be given and the provisions of Section 6-N do not apply on the establishment under the U.P. Shops and Commercial Act, 1962
10. Sri K.P.Aggarwal, learned Senior Advocate assisted by Sri Y.K. Sinha, Advocate for the petitioners submits that there is no disputed on the point that the Modi Rubber Ltd. Modinagar, Ghaziabad (hereinafter referred to as the respondent-Company) employed about 3000 person at the time the petitioners had been retrenched as in mentioned at page 5 of the award of the Labour Court I which is Annexure 27 to the write petition. In the circumstances Section 25N(I) of the Central Act provides:-
“Condition precedent to retrenchment of workmen (1) No workman employed in any industrial establishment to which this Chapter applies, who has been I continuous service for not less then one year under an employer shall be retrenched by that employer until,
(a) the workman has been given three 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; and
(b) the prior permission of the appropriate Government.or authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.”
11. He submits that it was mot the case of the respondent -Company that it had taken prior permission of the appropriate Government for the retrenchment of the petitioners. He further submits Government for the case of the respondent-Company that three months’ notice or pay in lieu thereof has been paid to the petitioners and thus there was a complete breach of the provisions contained in Section 25N(1)(a) and (b) of the Central Act. He also submits that Section 25-N (1) is valid and not ultra vires and has relied upon the case of Meenakshi Mills reported in A.I.R. 1994 S.C.2696 (Meenakshi Mills Ltd. v. Workmen of Meenakshi Mills Ltd.) wherein the hon’ble supreme Court held 25N not to be intra-vires.
12. Initially this ground was not taken at the time the write petition had been filed and an amendment application has been filed on 24.7.2001. The amendment application was allowed and the petitioner had carried out the amendment.
13. The retrenchment notice dated 16.8.1984 (Annexure 1 to the writ petition) has been quoted above in the judgment. A perusal of the notice shows that it has been stated therein that the petitioners had become surplus and the respondent-Company was left with no other alternative but to terminate the services if the workmen with immediate effect i.e. the termination of the services took place with immediate effect from the dated of order of termination but retrenchment compensation of 3 months’ pay in lieu of notice was not paid to workmen. In fact the workers were directed to collect it from the cash office before 5.00 P.M. on of before 21.8.1984. Thus serving of retrenchment compensation and wages in lieu of notice were not part of simultaneous action
14. It is submitted that all the 2 conditions, namely, 1 (a) and (b) are conditions precedent and mandatory and failure to comply with the conditions precedent makes the retrenchment of the workman void ab-initio. It has been so held by the Hon’ble Supreme Court as far back as 1960 in the case of State of Bombay v. Hospital Mazdoor Sabha reported in AIR 1960 S.C. 610. In a later judgment of the Suprem Court eh position has been made more clear and aforesaid judgment is reported in AIR 1976 S.C. 1111 (State Bank of India v. N Sundramani) and in Pramod Jha v. State of Bihar, 2004 (3) S.C.C. 619.
15. The affect of the non-complaince of mandatory provision prior to retrenchment is that the petitioners are to be deemed to continue in service and entitle to all the benefits as if they had not been retrenched. The Hon’ble Supreme Court in Its judgment in the case of Hindustan Tins Private Limited v. Its workmen reported in AIRE 1979 S.C. 75 has held that normal relief to which workman is entitled on the termination of his services being found to be wrongful is reinstatement with continuity in service and full back wages. It has also been held in that judgement that is the employer wanted any relief other than the normal relief he has to plead the same and substanited same before the Labour Court. In the present case the respondent-company has neither pleaded nor substantiated before of reinstatement with continuity of services and full back wages.
16. Since in the notice dated 16.08.1994 by which the services of the workmen have been terminated with immediate effect and they were asked to collect their dues w.e.f. 21.8.1994 without also specifying that their action is against mandatory provision of Section 6 N of the U.P. Industrial Disputes Act as well as against law laid down in Jain Steel Products v. Naipal Singh and Ors., A.I.R 2001 S.C. 2401. In para 3 of the judgment it has taken as proper compliance of the mandatory provisions of retrenchment.
17. In the instant case the offer of payment of retrenchment compensation in not part of same transaction and is not in conformity with law and is therefore illegal.
18. During the pendency of writ petition an application has been arrived at between M/s Modi Rubber Limited and Charan Singh, petitioner No. 1. The counsel for the petitioners informs that Charan Singh is also no more as he has expired and no dispute remains in so far as he is concerned.
19. The labour Court has to consider the relief in the facts and circumstances of the case in respect of all other petitioners except Charan Singh.
20. The writ petition is therefore allowed. The matter is remanded back to the Labour Court for deciding the case afresh on merits after affording opportunity to the parties to amend their pleadings and for leading any additional evidence. No order as to costs.