JUDGMENT
Yogeshwar Dayal, J.
(1) This order will dispose of C.W. Pns. 314 of 1974 and 750 of 1974. The first is on behalf of the Management of Air France whereas the latter is on behalf of the workman Khushal Singh.
(2) The Award arose out of a reference made by the Lieutenant Governor, Delhi, by an order dt. 26.6.73, The terms of reference were ; “Whether retrenchment of Shri Khushal Singh is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?”.
(3) The case of the workman before the Industrial Tribunal was that he was permanent employee of the company. On 14.9.72 Shri Claude Pineau, General Manager of the company called him and seven others who were employed as sweepers and peons. Each one of them was called one by one. It was further alleged that when he was called inside he was asked to sign a letter of resignation which was lying typed there and a receipt showing the payment of about Rs. 4,000.00. as ex-gratia payment in full and final settlement of his claims against the company. He refused to sign that letter and to receive the payment. He further alleged that no letter of retrenchment was issued to him on that day nor was any compensation offered or paid. It was further stated that his other colleagues received the ex-gratia payments varying form Rs, 3.000.00 to Rs. 8,000.00 and were issued certificates of discharge. It was further alleged that when he reported for duty on 15.9.72, he received a copy of the letter dt. 14.9.72 intimating him that his services had been retrenched w.e.f. the close of the business on the 14.9.72 on account of the reorganisation and he was asked to settle his accounts on 15.9.72. He further alleged that he never received any payments, and this order of retrenchment was invalid, illegal and unjustified.
(4) The case of the Management on the other hand was that the work of cleaning and messenger service at its office in the Allahabad Bank Building, New Delhi, was sought to be entrusted to a contractor on account of which all the workmen engaged in cleaning and messenger service became surplus. The Management discussed the proposal with all the workmen engaged in cleaning and messenger service and explained to them the various amounts which it wanted to give to them if they left service of their own accord. Those amounts were far in excess of retrenchment compensation. All the workmen except Khushal Singh accepted the proposal of the Management and their accounts were settled on payment of various ex-gratia amounts. The Management further pleaded that on these facts as the services of Khushal Singh became surplus, he was retrenched by letter dt. 14.9.72 and when that order was offered to him by the General Manager Along with the retrenchment compensation and other dues, he refused to accept. Again such an offer was made to the workman by Shri A.N. Chaterjee, another officer of the company at about 5.30 p.m. on the same day but he refused to accept the same. A cheque Along with the latter of retrenchment was, therefore, posted to the workman on 15.9.72, for Rs. 2,588.88 which the workman refused to receive on account of which it was returned unserved by the postal authorities. So, according to the Management, the retrenchment was valid and the provisions of Section 25F, of the Industrial Disputes Act, 1947 (‘the Act’) were duly complied with.
(5) The workman, however, in the rejoinder described the entrustment of the cleaning and messengers work to a contractor as unfair labour practice and against the legislative policy as indicated in the contract Labour (Regulation and Abolition) Act, 1970.
(6) Before Tribunal the Management examined Shri. A.N. Chaterjee and Shri S.K. Sinha, who supported the case of the Management. The Tribunal also noticed that the workman has admitted in cross-examination that insured cover had come to him. The Tribunal, after considering all the facts, held : " It is quite evident that on 15.9.72 the Management sent a cheque for retrenchment compensation and other dues to the workman which he refused to accept. There was nothing to suggest that the retrenchment compensation and other dues were less than the amount which was permissible to the workman u/s 25F of the Act." (7) Another submission of the Workman before the Tribunal was that the letter of retrenchment was not given to him on 14.9.72 The order of retrenchment was invalid in view of the mandatory provisions of Section 25F of the Act which contemplates that retrenchment compensation and wages in lieu of notice should be paid at the time of making the order of retrenchment.
(8) This proposition was not disputed by the Tribunal either. In fact that is one of the conditions of Section 25F of the Act. On facts, the Tribunal observed” that the retrenchment took effect from 15.9.72 and on the same date the entire retrenchment compensation was tendered to him along with the letter or retrenchment, which was refused. This had been sent to the workman through post. This finding was given by the Tribunal in the light of what had transpired on 14.9.72, namely the seven other workmen of the similar class had accepted ex-gratia payment and had voluntarily retired after agreeing with the case of the Management. The workman could not be treated differently on that date. But the Tribunal in view of the fact that there is nothing in writing that the Management tendered the retrenchment compensation to Khushal Singh on 14.9.72 did not accept that part of the case of the Management but felt that the case of the Management is fully satisfied in as much as the retrenchment took effect from 15.9.72 and on which date the retrenchment compensation was simultaneously tendered to him by post which the workman refused to accept. The finding of the Tribunal at page 8 of the Award is ” I am, therefore, inclined to take the view that on the face on this evidence, it cannot be said that the order of retrenchment suffers from any infirmity on account of non-compliance with Section 25F of the Act.”
(9) The Tribunal having held that the retrenchment was in compliance with Section 25F of the Act went on to hold that the abolition of the posts by way of re-organisation of the business was contrary to tl,c provisions of Contract Labour (Regulation & Abolition) Act, 1970 and on that basis directed that the workman concerned be reinstated.
(10) The writ on behalf of the Management is directed against this part of the finding of the Tribunal whereas the writ on behalf of the workman is directed against the finding of the Tribunal that the provisions of Section 25F of the Act were complied with.
(11) Mr. Devender Goverdhan, learned counsel for the Management brought to my notice Vegoils P. Ltd. vs. The workmen which analyses the provisions of Contract Labour (Regulation and Abolition) Act, 1970. In this decision the Supreme Court held : “The following points emerge from Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, (1) the appropriate Government has power to prohibit the employment of Contract labour in any process, operation or other work in any establishment : (2) before issuing a notification prohibiting contract labour, the appropriate Government has to consult the Central or State Board as the case may be, comprising of the representatives of the workmen, contractor and the industry : (3) before issuing any notification u/s 10(1) prohibiting the employment of contract labour the appropriate Government is bound to have regard, not only to the conditions of work and benefits provided for the contract labour in a particular establishment, but also other relevant factors enumerated in clauses (a) to (d)of S. 10(2) and (4) under the explanation which relates to clause (b) the decision of the appropriate Government on the question whether any process, operation or other work is of perennial nature, shall be final…. There fore the legality of the direction given by the Industrial Tribunal abolishing contract Labour in respect of loading and unloading with effect from a date after the coming into force of Act 37 of 1970 can also be considered from another point of view. The Act came into force before the date from which the Tribunal directed the company to abolish contract system. Under Section 10 of the said Act the jurisdiction to decide matters connected with prohibition of contract labour is now vested in the appropriate Government. Therefore, with effect from the coming into force of Act 37 of 1970 it is only the appropriate Government that can prohibit contract labour by following the procedure and in accordance with the provisions of the Act. The Industrial Tribunal in the circumstances will have no jurisdiction though its award was given prior to the coming into force of the Act, to give a direction in that respect which becomes enforceable, after the date of the coming into force of the said Act. In any event, such a direction contained in the award cannot be enforced from a date when abolition of contract labour can only be done by the appropriate Government in accordance with the provisions of the Act. In this view also the direction of the Industrial Tribunal abolishing contract labour with effect from a date before Act 37 of 1970 came into force cannot be sustained ”
(12) It is clear from the aforesaid observations of the Supreme Court that it is not function of the Tribunal to give any direction in this behalf as given in the impugned Award and this could be given only by the appropriate Government. On this Short ground the Award in so fas as it orders for re-instatement of the workman is concerned is liable to be quashed.
(13) I had the privilege to hear Mrs. Anita Bahri for workman concerned for 2″ hours. She argued with the usual persistence, but she is still not satisfied with the extent of hearing. It appears that her idea of proper hearing is that the Court should keep on hearing her till she convinces the Court to her point of view. This is not the idea of hearing being granted by the Court. . It is also the duty of the counsel to appreciate that the court has also commonsense to assess the correctness or otherwise of what is being submitted and it is the discretion of the Court alone to accept or reject the argument but that does not mean that the arguments should go ad nauseam.
(14) She brought to my notice the decision reported as 1977 Lab. l.C. 1938. R. Sankaran v. The Presiding Officer, and 1980 L.L.J. 503: Workmen Vs. Labour Court. She submitted that the retrenchment was improper inasmuch as the letter of retrenchment was dt, 14.9.72 but the finding of the Tribunal is that the compensation was tendered or sent on 15.4.72, and therefore there is a gap and it was not a part of same transaction as contemplated by the Supreme Court in 1962 (1) L.L.J. 420 : Strawboard Mfg. Co. and Gobind. I am afraid, I do not agree with the submission of learned counsel.
(15) It will be noticed that though the Tribunal found that there is nothing in writing to show that – the workman concerned was offered the retrenchment compensation on 14.9.72 but it found that seven other workmen had been so offered. I do not find any reason why the Management had treated the workman concerned differently. The letter of retrenchment was offered to him on 14.9.1972 but he declined. It was again offered to him on the same date at 5.30 P.M. and he again declined. The further finding in this behalf is that the Management sent the letter of retrenchment Along with the retrenchment compensation and whatever else was required to be paid by post on 15.9.72. The Tribunal also found that the workman concerned received full salary for 14.9.72 and therefore the workman was working with the company till 14.9.72 and retrenchment took effect from 15.9.72. From that date and on that date the full compensation as required by Section 25F of the Act was tendered to the workman. The Tribunal found that it was part of the same transaction. In this connection the learned Tribunal observed as under : “To me, it seems that these two witnesses did offer the letter of retrenchment to the workman after 5.30 p.m. on 14.9.82 but in fact, the retrenchment compensation was not offered simultaneously Along with it. But on that ground I do not feel that the retrenchment can be said to be bad in law. It was not disputed that on 14.9.72 the workman was paid his wages for the full day. So, in fact, he was retrenched with effect from 15.9.72 when his wages ceased to accrue. In 1970 F.I.R. 284 (Nowarozabad C.M. Sangh v. F. Jeejeebhoy, the wages were offered to the workmen on 27.1.1965, They were allowed to work on the 27th but not on Jan. 28. It was held by the High Court of Madhya Pradesh that in reality the retrenchment took effect with effect from 28th Jan. and not from 27th of Jan. In the present case also though the letter of retrenchment indicates that he was retrenched from the close of the business on 14.9.72 yet in reality the retrenchment took place on the following day for the simple reason that full wages were paid to the workman for the 14.9.72 It is obvious from the statements of the said two witnesses that the workman was not in a mood to accept the letter of retrenchment. Under these circumstances, what the management did was to send the cheque Along with the letter of retrenchment to the workman on the 15.9.72 which admittedly he refused to accept. Under Section 25F of the Act, order of retrenchment compensation and payment of wages in lieu of notice are to be “simultaneous. What is meant by the word, “simultaneous” is that the employer’s conduct should show that the three things were part of the same transaction. It was so held in 1973 Lab. I.C. 1356 (The workmen of Devangere Cotton Mills Ltd., v Industrial Tribunal, by the Mysore High Court. I am, therefore, inclined to take the view that on the face of this evidence, it cannot be said that the order of retrenchment suffers from any infirmity on account of non- compliance with section 25F of the Act. It may be noticed that on the 15.9.72 the Management also addressed a letter to the Secretary (Lab), Delhi Administration, Delhi informing him that the workmen had been retrenched and this was in pursuance of Section 25(C) of the Act vide Ext. M/s. So, in may view, the submission of Shri Madan Mohan on this point is not tenable.”
(16) To my mind this approach tallies with the ratio of the decision of the Supreme Court in the case of Strawboard Mfg. Co. and Gobind (Supra). I am thus not inclined to disagree with this finding u/Art. 226 of the Constitution of India. Cw 750/74 dismissed;