JUDGMENT
1. Heard learned advocate Mr. Thakar for the
petitioner and Mr. D.G. Chauhan, learned advocate who
is appearing for the respondent workman. By means of
this petition under Article 227 of the Constitution of
India, the petitioner has challenged the legality,
validity and propriety of the award dated 24.8.1993 made
by the labour court wherein the labour court has set
aside the order of termination dated 10th November, 1984
and granted reinstatement in service with 50 per cent of
the back wages for the intervening period with continuity
of service and other consequential benefits. On 4th
October, 1994, while admitting the petition, this court
has granted interim relief in terms of para 5(B) of the
petition. Alongwith the petition, the petitioner has
produced copy of the statement of claim, written
statement, oral evidence of the parties, written
arguments, seniority list and award. Learned advocate
Mr. Thakar has read over entire award before this Court
and he submits that the labour court has committed gross
error in passing such an award against the petitioner;
that the work has been reduced in the tracing department
and, therefore, these three workmen were offered
alternative work in the new project department by passing
order dated 11th October, 1984 and the workmen concerned
ought to have reported for duty on 15th October, 1984 but
the workmen after receiving the order of transfer,
refused to work in the new project department and,
therefore, by letter dated 9th November, 1984, services
of said three workmen were terminated with effect from
10th November, 1984 by the petitioner. He also submitted
that the provisions of section 25-F of the ID Act, 1947
were complied with by the petitioner at the time of
terminating the services of the said three workmen. It
was his submission that in their statement of claim, the
workmen had not raised the contention about the breach of
the provisions of section 25-G of the ID Act, 1947 and
that is how, the petitioner has not been able to give any
answer and could not produce any material to satisfy the
requirement of section 25-G of the ID Act, 1947 and,
therefore, the conclusion of the labour court on the
issue that the provisions of section 25-G of the ID Act,
1947 have been violated is the basic error which is
required to be corrected by this court. He read over
entire deposition of all three workmen and evidence of
the witness for the petitioner and emphasized the
contradictory statements made by the workmen in their
examination in chief as well as the cross examination and
submitted that looking to the conduct of the workmen, at
one point of time, it was said by them that the order of
transfer is not received and subsequently, they are
saying that the order of transfer has been received by
them and they refused to work on the new project
department. Therefore, under such circumstances, no
relief can be granted in favour of the workmen who had
made contradictory statements before the labour court.
He also submitted that if the contention about the breach
of sec. 25-G of the ID Act, 1947 would have been raised
by the workmen concerned, then, the petitioner would have
got an opportunity to satisfy the labour court concerned
that there is no violation of the provisions of the said
section by producing necessary material in that regard.
According to him, since that contention was not raised,
the petitioner has not been able to produce material in
that regard. He also submitted that the labour court has
committed error in coming to the conclusion that such
termination is amounting to punishment. According to
him, in fact, there is no punishment imposed by the
petitioner. According to him, this was not the case of
the petitioner before the labour court. He also read
over the averments made by the workmen in their statement
of claim. In short, it is his contention that the labour
court has erred in concluding that the impugned order of
termination is punitive. It is also his submission that
the labour court has erred in concluding that the
petitioner has committed breach of section 25-G of the ID
Act, 1947. It is, therefore, his submission that the
labour court ought not to have made the award of
reinstatement. He submitted that after the award was
made by the labour court, offer was made by the
petitioner without prejudice to the rights and
contentions of the workmen to resume the duties but the
respondents have not resumed the duties. According to
him, these are the subsequent development which are
required to be considered by this Court while examining
the award made by the labour Court. This statement made
by Mr. Thakar was objected by Mr. Chauhan by submitting
that the workmen were ready to resume the duties in
response to the offer made by the petitioner but when
they had in fact gone for reporting, they were prevented
at the Gate of the premises. However, this court is such
alleged development, disputed by the other side and is
examining the award made by the labour court on the basis
of the evidence on record.
2. This court has to consider as to whether the
award made by the labour court is within its jurisdiction
and competence or not. While this court was dictating
the oral judgment in the open court, in the midst of the
dictation, learned advocate for the petitioner also made
a submission after obtaining leave of this Court that the
tracing department has been closed since 1987. As
regards this contention about the closure of the tracing
department in the year 1987, this Court asked one
question to the learned advocate for the petitioner as to
whether any such contention has been raised by the
petitioner before the labour court or not at the relevant
point of time; whether any assertion in that regard has
been made by the petitioner or its witness while the
evidence was recorded before the labour court or not and
whether such contention was raised by it during the
course of arguments or not. After consuming about ten
minutes and verifying the record, learned advocate for
the petitioner clearly submitted that no such contention
has been raised by the petitioner in its pleadings before
the labour court, no such whisper has been made by its
witness in his evidence before the labour court and it
was not submitted even during the course of arguments
before the labour court. In view of such clear answer,
this contention raised for the first time before this
court has to be ignored. Same is, therefore, ignored by
this Court. Learned advocate Mr. Chauhan has submitted
that the deposition of the witness for the petitioner was
recorded before the labour court on 23rd December, 1991
wherein it was admitted by him that at the time of
termination of the present workmen, 80 workmen were
working with the company and today also, 80 workmen are
still working with the company. In respect of that
contention of Mr. Chauhan, learned advocate Mr.
Krishnan for the petitioner has clarified that they are
working in the new project department and in view of that
clarification made by Mr. Krishnan, it was further
clarified by Mr. Chauhan that in the oral evidence of
the witness for the petitioner, this has not been
clarified but it was simply said that today also, 80
workmen are working with the petitioner company. Except
these submissions, no other submissions were made by the
learned advocate appearing for the petitioner. No
decision has been cited by the learned advocate for the
petitioner for consideration of this Court. As regards
grant of 50 per cent back wages for the intervening
period, no submission has been made by the learned
advocate for the petitioner.
3. While supporting the award made by the labour
court, learned advocate Mr. Chauhan submitted that the
the order of termination passed by the employer was
violative of section 25-G of the ID Act, 1947 and rule 81
of the ID (Gujarat) Rules, 1966. He also submitted that
this order was passed by the employer only on the ground
that the workmen were not prepared to work in the new
project department and that is how the order has been
passed only against the present three workmen and
excepting the present workmen, no other workmen were
retrenched by the employer and therefore, it was
amounting to punishment by the employer without following
the procedure according to law and, therefore, labour
court was right in holding that it was violative of
sec.25-G of the ID Act read with rule 81 of the Rules
framed under the said Act. He also submitted that the
labour court was right in appreciating the evidence on
record produced by the parties.According to him, before
the labour court, no documentary evidence has been
produced by the petitioner to justify the reduction in
work in tracing department and, therefore, the
conclusions drawn by the labour court on the basis of the
evidence on record are just and proper and the same would
not require any interference of this court. According to
him, unless it is successfully established by the
petitioner that the labour court has committed any
jurisdictional error and/or any procedural irregularity
or that the findings given by the labour court are
contrary to the facts on record or that such findings are
perverse, this court cannot interfere with such findings
of fact while exercising the powers under Article 227 of
the Constitution of India.
4. I have considered the submissions made by the
learned advocates for the parties. I have perused the
award made by the labour court as well as the statement
of claim filed by the workmen and the written statement
thereto filed by the petitioner company before the labour
Court. I have also perused the evidence of three workmen
concerned and the evidence of the witness for the
petitioner as well as the written submissions which were
made by the learned advocates for the parties before the
labour court. On 1st October, 1984, transfer order was
passed by the petitioner against these three workmen
asking them to work in the New Project Department. This
order of transfer was objected by these three workmen
concerned. Immediately within one month therefrom, an
order of termination has been passed by the petitioner
under the guise that the work has been reduced in the
tracing department. For justifying the action of because
of the reduction of work in the tracing department, the
petitioner has produced no material before the labour
court to show that the transfer of these three workmen
was necessary and no other workmen were required to be
transferred. Looking to the evidence of the workmen,
there was some union rivalry being the basis of such
termination. Looking to the evidence of the witness for
the petitioner, it appears that there was some union
rivalry indirectly suggested, to some extent, admitted by
the witness for the petitioner. If the
non-implementation of the order of transfer is considered
as disobedience on the part of the workmen concerned,
then, for that, they have to follow the procedure before
passing such order but without following such procedure,
services of the workmen concerned were terminated. It is
very easy way to terminate the services while following
the mandate of section 25-F of the ID Act, 1947 by
serving one month’s notice or notice pay in lieu thereof
and by paying retrenchment compensation. According to my
opinion, section 25-F of the ID Act, 1947 has not been
enacted with a view to give license to the employer to
terminate the services of the workmen for any reason and
without any justification. According to my opinion, it
is the duty on the part of the employer to show strict
compliance of section 25-F of the ID Act, 1947 and to
justify the order of termination before the labour court.
Even if there is compliance of section 25-F of the ID
Act, 1947 in letter and spirit but if the employer is
unable to justify the order of termination, then,the
Court has to interfere with such unjustified order of
termination and to pass appropriate orders. As per this
Court’s opinion, section 25-F of the ID Act, 1947 is not
the only section which is required to be complied with by
the employer. Section 25-F of the ID Act, 1947 is
attached with section 25-G of the Act and Rule 81 of the
ID (Gujarat) Rules, 1966. These are the combined
provisions. If the order of termination is in consonance
with these provisions namely sec. 25-F, Sec.25-G and
Rule 81 of the Rules, then, such termination would become
legal termination and not otherwise. If the order of
termination is not in consonance with these provisions
namely sec. 25-F, Sec.25-G and Rule 81 of the Rules,
then, it would render such order illegal and bad in law.
In view of that,the contention raised by Mr. Thakar that
they have strictly complied with the mandate of sec.
25-F of the ID Act and as no such contention about breach
of section 25-G was raised by the workmen, they were
unable to produce material and, therefore, findings of
the labour court as regards breach of sec. 25-G are
unwarranted cannot be accepted simply on the ground that
it is the burden upon he employer to satisfy that they
have followed section 25-G and this court is of the clear
opinion that it is not necessary for the workmen to raise
such contention about breach of sec. 25-G of the ID Act,
1947. Once it is proved by the employer that there is
compliance of sec. 25-F of the ID Act, 1947, then, it is
becoming his duty to justify the termination. The
question of justification of termination would become
irrelevant once it is proved that the order is bad for
want of compliance of sec. 25-F. For appreciating this
aspect of the matter, section 25-G of the ID Act, 1947 is
required to be appreciated. Same is, therefore,
reproduced as under:
“25-G. Procedure for retrenchment.- Where any
workman in an industrial establishment, who is a
citizen of India, is to be retrenched and he
belongs to a particular category of workmen in
that establishment in the absence of any
agreement between the employer and the workman in
this behalf, the employer shall ordinarily
retrench the workman, who was the last person to
be employed in that category, unless for reasons
to be recorded by the employer retrenches any
other workman.”
Thus, bare perusal of section 25-G of the ID Act,
1947 itself suggests that it is the duty of the employer
to comply with sec. 25-G when they are retrenching any
employee. Therefore, there is no need on the part of the
workman concerned to raise such contention but it is the
legal obligation on the part of the employer to satisfy
it before the Court where the termination has been
challenged by the workman. Therefore, the labour court
was right in coming to the conclusion that there was
breach of section 25-G of the ID Act and the petitioner
has not justified and satisfied the labour court about
compliance of section 25-G of the ID Act, 1947. This
Court is of the clear opinion that once the action of
termination is challenged by the workman before the
labour court or the industrial tribunal, then, it is the
duty of the employer to establish that the order of
termination is legal and valid on all counts. Like sec.
25-G of the ID Act, 1947, rule 81 of the ID (Gujarat)
Rules is also mandatory and is required to be
appreciated. Same is, therefore, reproduced as under:
“81. Maintenance of seniority list of
Workmen.(1) The employer shall prepare a list of
all workmen in the particular category from which
retrenchment is contemplated arranged according
to the seniority of their service in that
category and cause a copy thereof tobe posted on
a Notice Board in conspicuous place in the
premises of the industrial establishment at least
seven days before the actual date of
retrenchment.”
5. Thus,bare perusal of rule 81 of the said Rules
makes it clear that in case when the occasion for
retrenchment arise, it is the duty of the employer to
publish the seniority list of the employee working in
category where the retrenchment is necessary. This rule
has also been held to be mandatory and non compliance
thereof renders termination bad. Therefore, according to
my opinion, if the employer has to prove legal
termination or retrenchment, then, he is required to
satisfy section 25F of the ID Act and then, to satisfy
the Court about the compliance of sec. 25-G and rule 81
of the ID Act, 1947. If either of the section and rule
is not complied with by the employer, according to my
opinion, order of termination would become bad in law and
void ab initio. All these sections including rule 81 are
mandatory in nature. Therefore, considering these
mandatory statutory provisions in light of the facts and
the observations made by the labour court, according to
my opinion, the labour court was right in coming to the
conclusion that there was breach of section 25-G and rule
81 of the said Rules and such findings are legal and
valid and labour court has not committed any error in
recording such findings.
From the evidence of the witness for the
petitioner before the labour court, it appears that at
the time of termination of these three workmen, in all 80
workmen were working and at the time when the deposition
was given by the witness for the petitioner namely
23.12.1991, 80 workmen were working and if that evidence
of the witness for the petitioner is correct, then, how
the work has been reduced in tracing department and to
what extent, the work has been reduced requiring
retrenchment or termination of only three workmen? This
shows mala fide on the part of the petitioner, means, it
is not fair action on the part of the petitioner.
Therefore, even in case of retrenchment, employer has to
follow sec. 25F, 25-G and rule 81 of the Rules as stated
above and to justify its action and non compliance of
these provisions, even in case of retrenchment also,
would render such retrenchment as illegal and bad in law
and void ab initio. Therefore, considering the evidence
on the record and the observations made by the labour
court, according to my opinion, the petitioner was not
justified in terminating the services of three workmen.
Though it was contended by the learned advocate
for the petitioner that as the contention about violation
of section 25-G was not raised by the workmen before the
labour court, they were unable to produce any material in
that regard, and, therefore, the petitioner was unable to
satisfy the labour court in that regard, before this
court also, the petitioner has not produced any material
for perusal of this court to examine as to whether the
petitioner has complied with the mandate of sec. 25-G and
rule 81 of the Rules or not. This aspect is also
required to be kept in view while examining the legality
of the award. Therefore, according to my opinion, the
award made by the labour court is perfectly all right
requiring no interference of this court.
No submissions were made by the learned advocate
for the petitioner about the award of 50 per cent of the
back wages made by the labour court while granting
reinstatement in favour of the workmen. Before the
labour court, the petitioner has not produced any
evidence to establish that the workmen were working
during the intervening period and were earning and,
therefore, back wages should not be granted and nothing
has been submitted in that regard before this Court also.
Therefore, looking to the observations made by the labour
court in para 10, the labour court has, after considering
the evidence on record as regards back wages, refrained
itself from granting full back wages but has granted only
50 per cent back wages for the intervening period and was
right in granting back wages only to the extent of 50 per
cent considering the evidence on record. Therefore, that
part of the award is also just and proper and would not
require any interference of this court while exercising
extra ordinary powers under Article 227 of the
Constitution of India.
6. Recently, the Apex Court has considered
the scope of Article 227 of the Constitution of India in
case of The observations made by the apex court in Head Note [H]
are reproduced as under:
“Judicial review is permissible only to the
extent of finding whether the process in reaching
the decision has been observed correctly and not
the decision itself, as such. Critical or
independent analysis or appraisal of the material
by the Courts exercising powers of judicial
review unlike the case of an appellate court,
would neither be permissible nor conducive to the
interests of either the officers concerned or the
system and institutions. Grievances must be
sufficiently substantiated to have firm or
concrete basis on properly established facts and
further proved to be well justified in law, for
being countenanced by the court in exercise of
its powers of judicial review. Unless the
exercise of power is shown to violate any other
provision of the Constitution of India or any of
the existing statutory rules, the same cannot be
challenged by making it a justiciable issue
before Courts.”
Therefore, considering the entire evidence on
record and since learned advocate for the petitioner has
not been able to point out that the findings given by the
labour court are contrary to the evidence on record or
perverse or that the labour court has committed any
jurisdictional error and/or procedural irregularity,
according to my opinion, the labour court was right in
granting reinstatement with 50 per cent of the back wages
for the intervening period. Therefore, there is no
substance in the petition and the same is, therefore,
required to be dismissed.
In the result, this petition is dismissed. Rule
is discharged. Interim relief shall stand vacated. There
shall be no order as to costs.
In view of this order passed by this Court in the
main matter, Civil Application NO. 5622 of 1997 as well
as the Misc. Civil Application No. 454 of 1997 in Civil
Application NO. 9065 of 1996 shall also disposed of with
no order as to costs.