JUDGMENT
1. Heard Mr. H.N. Sarma, learned counsel for the appellants and Mr. O.K. Mishra, learned counsel for the respondents. Judgment is delivered by the learned single Judge in 13 writ petitions allowing the petitions filed by the workmen setting aside the order of termination issued by the Assam State Co-operative Agricultural & Rural Development Bank Ltd. hereinafter shortly called ASCARD Bank, holding that the ASCARD Bank has not followed the mandatory requirement of Section 25-F of the Industrial Disputes Act, 1947 while terminating the services of the workmen. These 11 (eleven) different appeals have been preferred by the ASCARD Bank challenging the order passed by the learned single Judge.
2. It is contended by the learned counsel for the appellant that in Writ Appeal Nos. 721/2002, 727/2002, 729/2002, 730/2002 and 554/2002 arising out of W.P(C) No, 1140/1999, W.P.(C)No. 1567/1999, W.P.(C) No. 863/1999, W.P(C) No. 1 963/1999 and W.P.(C) 1503/1999 there is no pleading to the effect that petitioner’s termination was contrary to the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter shortly referred to as ‘the Act’) and therefore, the appellant ASCARD Bank was handicapped in not placing the relevant materials before the Court to indicate that the provisions of Section 25-F of the Act has no application, they not being the workmen within the meaning of Section 2(s) of the Act, the termination of these workmen cannot be held to be a retrenchment as contemplated in Section 2(oo) of the Act and in the absence of retrenchment, provision of Section 25-F the Act do not apply. The learned single Judge has committed an error in deciding the matter in absence of necessary pleadings. It is further submitted that the fact whether the provision of Section 2(oo) of the Act is applicable or not can be determined by the Court only on the basis of proper pleadings and placement of and consideration of relevant materials produced by the parties before the Court. The Court’s adjudication on that question could only be after the placement of relevant facts before the Court and in that view of the matter the Court should have directed the petitioners to approach the Industrial Tribunal instead of deciding the matter in exercise of its writ jurisdiction. However, the learned counsel has fairly conceded that there are allegations made by the petitioners workmen in writ petitions W.P. (C) No. 1214/1999, W.P. (C) No. 1090/1999, W.P.(C) No. 1417/1999, W.P.(C) No. 982/1999 and W.P.(C) No. 742/1999 corresponding to Writ Appeal Nos. 722/2002, 723/2002, 724/2002, 725/2002, 728/2002 and 726/2002 respectively that they are workmen within the meaning of the Industrial Disputes Act and that their terminations are being effected without following the legal procedure, namely, the procedure laid down under Section 25-F of the Act before orders of termination. Therefore, we propose to decide only those matters where the pleadings have been made by the petitioner of not following the provisions of the Act, particularly Section 25-F of the Act before orders of termination were issued. In these matters the petitioners have taken a specific plea that they have been employed by the ASCARD Bank and that they are workmen within the meaning of the Industrial Disputes Act, 1947. It has also been pleaded that their termination is being effected without following the provisions of Section 25-F of the Act.
3. The appellant ASCARD Bank has submitted its return in these cases before the learned single Judge. It appears from the return submitted by the appellant Bank that no case has been raised by the Bank that the petitioners are not workmen and therefore their termination cannot be termed as retrenchment under Section 2(oo) of the Act. The appellant Bank has not even raised the plea that the provisions of Section 25-F of the Act have no application to the cases of the petitioners. It is not the case of the Bank that the provisions of the Industrial Disputes Act will not apply to the termination of services of the petitioners and therefore non-compliance of Section 25-F of the Act cannot be a ground for setting aside the orders of termination.
4. In the absence of any plea on behalf of the ASCARD Bank of non-application of. Section 25 of the Act or the petitioners are not workmen within the meaning of Section 2(s) of the Act the fact which is to be looked into, by the Court are: whether the petitioners have been engaged by the Bank and whether their, services have been terminated following the provisions of Section 25-F of the Act. Admittedly, the petitioners have been employed by the ASCARD Bank and it is also admitted that their services have been terminated. There is no denial of the fact that the procedure required to be followed under Section 25-F of the Act has not been followed by the Bank before terminating the services of the employees.
5. It is now well settled that any termination unless it falls within the category enumerated in Section 2(oo) of the Act, termination of service of an employee would be a retrenchment and before adopting the procedure of retrenchment the employer is to follow the provisions of Section 25-F of the Act. On the basis of the facts emerged from the pleadings of the parties there is no necessity for the Court to go into the disputed facts as to whether an employee is a workmen within the meaning of Section 2(s) of the Act or whether the provision of Section 2(oo) of the Act shall apply and, therefore, the termination cannot be held to be a retrenchment. In the factual scenario, the fact emerged in these cases are that the employees services have been terminated by the Bank without following the procedure laid down under Section 25-F and that being the case, the termination is contrary to the law and has rightly been set aside by the learned single Judge. As the Court was not required to go into the controversial factual aspects for determination of the question of termination and the Court was to consider only the legal aspect, we do not find the learned single Judge has committed any error in entertaining the petitions under Article 226 of the Constitution of India instead of directing the parties to approach the Industrial Tribunal for adjudication of their disputes, which would be a normal course when an alternative efficacious remedy is provided, for the Courts to adopt. In the aforesaid circumstances the appeals preferred against the judgment in W.P.(C) No.1214/1999, W.P(C) No.1090/1999 W.P.(C) No. 1417/1999, W.P.(C) No. 982/1999 and W.P.(C) No. 742/1999 i.e. Writ Appeal Nos. 722/2002, 723/2002, 724/2002, 725/2002, 728/2002 and 726/2002 are dismissed.
6. We make it clear that the order passed by the learned single Judge setting aside the Resolution of the ASCARD Bank dated February 10, 1999 shall be read as modified, to the extent that it shall relate to the petitioners only, whose writ petitions are allowed and writ appeals are dismissed by this order.
7. We shall hear the other writ appeals i. e. Writ Appeal Nos. 721/2002, 727/2002, 729/ 2002,730/2002 and 554/2002 mentioned in this order separately. The office is directed to list them after two weeks.