ORDER
S.K. Dubey, J.
1. This Order shall also govern disposal of Misc. Petitions Nos. 866 to 869, all of 1990. Parties are common in all petitions except Respondent No. 3, being an individual employee of the Municipal Council who is different in all cases.
2. The Municipal Council, Govindgarh, for short, the ‘Municipal Council’, by these five petitions, have challenged the award passed by the Labour Court in five industrial disputes referred for adjudication by the “appropriate Government” in respect of the common order dated January 25, 1984, passed by the Municipal Council terminating the services of five “workmen” who were appointed as Moharrirs vide order dated February 15, 1982 and were working as such till
their termination. The Labour Court, after appreciation of evidence and material produced held that the activities of the Municipal Council fell within the definition of ‘industry” as defined in Section 2 of the Industrial Disputes Act, 1947, for short, the ‘I.D. Act’, and the employees whose services were terminated were “workmen” falling within the definition of Section 2(s) of the I.D. Act. Preceding to the termination, the workmen completed 240 days’ of continuous service and as the termination was for the reason that the five posts of the Moharrirs were not sanctioned by the Director, Urban Administration, Madhya Pradesh, Bhopal, and that the said reason for termination is not covered within the excepted or excluded category mentioned in Clauses (a) to (c)
of Section 2(oo) of the ID Act, which amounted to retrenchment. Before retrenching the workmen, preconditions of Section 25F were not complied with, therefore, the termination is void ab initio. Hence, the Labour Court set aside the Order of termination and directed reinstatement of the workmen with back wages.
3. Shri S. C. Chaturvedi, learned counsel for the petitioner-Municipal Council and Smt. Indira Nair, learned counsel for the respondents-workmen, were heard.
4. Firstly, it was contended by the petitioner that the Municipal Council is a statutory body, constituted, under the M. P. Municipalities Act, 1961, for short, the ‘Act’ which discharges its statutory functions and duties and provides civic amenities such as light, water and conservancy to the public in the limits of the Municipal Council, it does not earn any profit nor there is any gainful object, therefore, its activities do not fall within the definition of “industry” and as such, the provisions of the I.D. Act are inapplicable and, therefore, the Reference is bad, the award so passed be quashed. In our considered opinion, there is no substance in this submission for the reason that it is the nature of the activities which is the determining factor and that if on the application of the three tests laid down by the Supreme Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349), with special emphasis on the employer-employee relation, the activities of the Municipal Council are to be construed as “industry” irrespective of the fact that the Municipal Council, constituted under the Act even if it discharges some sovereign and inalienable functions of the State though statutoriiy delegated, but most of the functions-are welfare activities. Not only that it collects taxes and derives income from various sources to meet its expenses. The five workmen were employed in anticipation of sanction of posts for rendering the services of collection of tax. Therefore, considering the nature of activity undertaken, it cannot be said that the Municipal Council is not an “Industry” and the employees in the Department connected with that services, whether financial, administrative or executive, would not be entitled to the benefits of the provisions of the I.D. Act as the predominant
function of the Department shall be the criterion for the purposes of the I.D. Act. See, Nagpur Corporation’s case (1960-I-LLJ-523) (SC). The Supreme Court in Bangalore Water Supply’s case (supra) agreed with much of the reasons in Nagpur Corporation’s case (supra) and observed that the riddle of “industry” is resolved in some measure by the Ruling. Therefore, considering the nature of the activities undertaken by the Municipal Council, it cannot be heard to contend that it is excluded from the definition of “Industry” as given in Section 20) of the I.D. Act.
5. Secondly, it was contended that the five workmen were not holding a regular post, but were daily-rated workmen and their appointment was conditionally made subject to the sanction of posts being accorded by the competent authority, which, however, was not done taking into consideration the financial capacity of the Municipal Council. No right, therefore, accrued to the five workmen as for want of sanction of posts, their appointment, which was made in anticipation of the sanction, was cancelled and their services were terminated. In such a situation, it will not amount to “retrenchment”. In our opinion, the contention is not available to the Municipal Council as retrenchment, defined under Section 2(oo) means the termination by the employer of the services of a workman, for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action or is not covered within the excepted or excluded categories (a) to (c), mentioned in Section 2(oo). Recently, this Court, in Iftikar Ahmed’s case 1992 (I) MPJR 104, has taken the view that while considering a complaint of statutory violation of Section 25F, the question whether the initial appointment is valid or not or the appointment is not in accordance with rules and, therefore, the termination is bona fide is not germane. The definition of “retrenchment” as given in Section 2(oo) of the I.D. Act is wide enough and comprehensive to include all types of terminations of service unless the termination falls within any of the excepted categories mentioned therein. An invalid appointment is not one of the exceptions, therefore, would amount to “retrenchment”.
6. The Supreme Court in case of Punjab Land Development and Reclamation Corporation Ltd., (1990-I-LLJ-70) while considering a case of eight employees whose appointments were made by the Chairman who had no power to appoint them under the Rules, considered the scope of the definition of “retrenchment” defined in Section 2(oo) of the I.D. Act and held that the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the Section would amount to “retrenchment”.
7. Recently, the Supreme Court, in the case of D.K. Yadav, (1993-II-LLJ-696), after considering the case of Punjab Land Development and Reclamation Corporation Ltd., (supra) and its earlier decisions, has reiterated the view about the scope of the definition of “retrenchment” in Section 2(oo) which is a comprehensive one, intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever excepting in the excluded circumstances in Clauses (a) to (c) of Section 2(oo). It further observed that Section 25F prescribes mandatory procedure to be followed before retrenchment becomes valid and legal and violation thereof visits with invalidation of the action with consequential result. Therefore, in view of the settled position of law, the petitioner Municipal Council now cannot be allowed to contend that as the appointment of the five workmen was illegal on the posts which were not sanctioned, and hence no right accrued to the workmen and compliance of Section 25F was not essential.
8. Thirdly, it was contended that the petitioners have filed an appeal under Section 308 of the M. P. Municipalities Act, 1961, and the Collector having found the order of termination legal and proper has dismissed the same. This contention has also no merit as appeal was not maintainable, under the said Act and the Collector in his order has held so. In fact, it was representation to the Collector for redressal of the grievance of the petitioners. After holding that there is no jurisdiction to hear appeal, the Collector recorded the finding on merits. Such recording of findings
cannot be considered as an adjudication of the dispute and cannot bind parties. It is well established principle of law that when a Tribunal comes to the conclusion that it had no jurisdiction to adjudicate upon the dispute before it, the opinion expressed by it on merits of the dispute is in law totally ineffective and cannot, in any sense, be regarded as adjudication of the dispute. If any authority is needed, see Upendra Nath v. Lall, AIR 1940 PC 222.
9. Lastly, it was submitted that in the circumstances, the reinstatement be not awarded and also the amount of back wages be not awarded or be reduced. But, this submission we cannot entertain for the first time in the writ jurisdiction and, therefore, we are not inclined to deal with it and/or for that reason, we refuse to remit the case for adjudication before the Labour Court as the dispute is pending since 1984. There is another reason for not considering this submission and it is that the petitioner after the award of the Labour Court, did not comply with the provisions of Section 17B of the I.D. Act inspite of the order passed by this Court on August 9, 1991. Though it was submitted at the Bar by Shri Chaturvedi that against the said order, an S.L.P. was preferred before the Supreme Court and the Supreme Court has passed the order only in the last month directing the High Court to reconsider the applicability of Section 17B in the facts of the case, but as we have heard the petitions on merits and are disposing of the same finally, now it is not necessary for us to delve into the question of Section 17B of the I.D. Act.
10. Before parting with the records, considering the peculiar circumstances of the case, in our opinion, it will be open to the Municipal Council to terminate the employment of five workmen for want of sanction of posts after complying with the pre-requisites of Section 25F of the I.D. Act; but that would not give right to the Municipal Council not to pay full back wages till date of taking action.
11. In the result, the petitions are dismissed with costs. Counsel’s fee in all the five petitions, Rs. 500/-, if pre-certified.