JUDGMENT
Nikhil Nath Bhattacharjee, J.
1. In this writ application the petitioner has challenged the award dated April 28, 1983 made by the learned Judge, Ninth Industrial Tribunal at Durgapur in case No. X-27/80.
2. The petitioner’s case is that the Steel Plant, known as Durgapur Steel Plant belongs to the petitioner where various categories of workmen including security staff were employed. The conditions of service of security staff were governed by the Hindusthan Steel Security Force (Discipline and Appeal) rules. On December 22, 1968, the parliament enacted the Central Industrial Security Force Act, 1968 and the said Act was brought into force in Durgapur Steel Plant on August 8, 1969. After the said Act was enforced in the Durgapur Steel Plant, its security force was necessarily to be wound up. It was actually taken over by the authority under the said Act with effect from August 17, 1970. The security force personal were, however, given option to join the Central Industrial Security Force constituted under the said Act. The petitioner issued appropriate notices and circulars on and from August 8, 1969 notifying the said facts to all members of the security force of the company and they were called upon to exercise option by August 16, 1969 filling in the application form enclosed therewith and returning the same in the office of the personnel manager of the petitioner. In the aforesaid circulars it was, inter alia, laid down that those of the members of the dissolved security force of Durgapur Steel Plant who would not exercise option in favour of absorption in the CISF would not be retained by the company and they would be relieved and paid retrenchment compensation under the law.
3. Respondent No. 3 a senior security guard did not exercise his option for absorption in the CISF even within the extended time valid upto August 10, 1970 and accordingly, the petitioner by a notice dated August 12, 1970 terminated his service w.e.f. the afternoon of August 17, 1970. All the legal dues including 3 months pay in lieu of notice and 15 days average pay for every completed year of service was sent to Respondent No.3 by a Bank Draft. On the same date a P. Form duly filled in was sent to the Labour Commissioner, Govt. of West Bengal as required under Section 25-F(c) of the Industrial Disputes Act, 1947 read with Rule 77 of the West Bengal Industrial Disputes Rules. Because of introduction of the CISF which took over the security duties so long performed by the company’s security department, the services of the Respondent No.3 along with others who had not opted for absorption in the CISF had to be retrenched and the retrenchment was made on the legal and justifiable grounds after complying with the provisions of Section 25-F of the Industrial Disputes Act.
4. However, the Govt. of West Bengal in its Labour Department by an order dated September 22, 1980 referred a purported industrial dispute to the Ninth. Industrial Tribunal for adjudication on the issue. Whether Md. S. Khan, ex-security man of Durgapur Steel Plant has been properly and legally retrenched? To what relief, if any, is he entitled to?” Written statements and rejoinders were submitted before the Tribunal. In the original written statement for Respondent No.3 it was not averred that he had opted for absorption in the CISF. It was only after the company filed its written statement stating inter alia that Respondent No.3 had not exercised option for CISF that the Respondent, No.3 raised the plea that he had opted for CISF and prayed that his written statement might be amended and he filed an amended written statement. During the hearing on merits the petitioner company filed documents which were marked exhibits. Respondent No.3 examined himself and the petitioner company examined 3 witnesses. The learned Tribunal Judge after hearing the parties passed his impugned award on April 20, 1983 wherein he found that actual retrenchment was done on August 3, 1970 and not on August 17, 1970 as contended by the petitioner company. In that view of the matter the Tribunal held that the retrenchment of Respondent No.3 was both illegal and improper and the workman was entitled to an alternative job in the unskilled grade supposedly as promised by the company. The petitioner was directed to absorb the workman in the grade provided he had not crossed the age of superannuation.
5. Being aggrieved by and dissatisfied with the award the petitioner has come up with the present writ application, praying for issue of writ of mandamus for cancellation of the award and to forbear from giving effect or further effect to the award.
6. Annexure A is the circular letter dated August 18, 1969 addressed to all members of Hindusthan Steel Security Force and Special Security Force of Durgapur Steel Plant enclosing therewith an application form for being considered for absorption in the CISF. Each member of the Force was requested to fill up the enclosed form and return the same to the office of the Personnel Manager by August 16, 1969. Adequate number of copies of the CISF Act were sent to Security Headquarters, Township Camp and of security posts for reference. It was intimated that the Central Government had decided to constitute an Industrial Security Force for the Durgapur Steel Plant in Durgapur and when the force would be constituted, the security duties then performed by the company’s security department would stand transferred to the CISF and correspondingly, the security work of the existing security department would cease to exist. In consequence, the members (sic) of the security Force of Durgapur Steel Plant, it were intimated, were to exercise their options as to whether they would like to join the CISF or not. It was made clear that those who would not apply for absorption in the CISF would not be retained by the company and they would be deemed to have decided to leave the service of the company. They will be relieved and paid retrenchment compensation as admissible under the law. It was made known that if any employee of the company’s security department applied for absorption in the CISF and was not so absorbed because of his physical unfitness or for other reason beyond his control, the management of the Steel Plant would try to offer him an appropriate position outside the range of security duties in any one of the establishments of the company and his present scale of pay would be protected. The scale and grade of pay and terms of employment under CISF were clarified. It was reiterated that total emoluments then being drawn by the persons who would opt for CISF would be protected by the Govt. and the previous service in the company would be counted.
7. By the letter dated August 14, 1969 all members of Hindusthan Steel Security Force and Special Security force of Durgapur Steel Plant were intimated that the last date of submitting application form exercising option for CISF was extended upto August 23, 1969, By the letter dated August 16, 1969 the 1st date for submission of application form exercising option for CISF was extended upto August 23, 1969. Once again attention was drawn to the consequence of not exercising option as intimated in paragraph 5 of the letter dated August 8, 1969. By the letter dated August 3, 1970 such date was extended upto August 10, 1970 as last chance. It was again reiterated that those who would not apply for absorption in the CISF could not be retained by the company and they would be deemed to have decided to leave the service of the company. They shall be relieved and paid retrenchment compensation however.
8. Annexure ‘B’ collectively is the letter dated August 12, 1970 which is the form for notice for termination of employment w.e.f. August 17, 1970. It is a form showing a Bank Draft being enclosed towards 3 months’ pay in lieu of notice and 15 days average pay for every completed year of service. It was addressed to each security personnel who did not exercise option. By a letter dated August 12, 1970 addressed to the Labour Commissioner, Government of West Bengal a P-Form duly filled in was sent intimating retrenchment of 635 employees of the Durgapur Steel Plant belonging to security department who did not opt for CISF and who had been paid retrenchment compensation. In the P-Form the date from which the retrenchment was to take place was stated as the afternoon of August 17, 1970. All other necessary information was also sent.
9. It appears that in his first written statement the concerned workman took the plea that on and from August 3, 1970 he was retrenched without any notice as he was forcibly prevented to do his job with the aid of CISF and that at the behest of the Deputy Labour Minister, Government of West Bengal, the management agreed to give him some job. However, his plea was for declaration that the retrenchment was improper and illegal. The company in its written statement contended that the retrenchment had been effected from the afternoon of August 17, 1970 as per notice of termination issued on August 12, 1970. By a further written statement the workman called for the Duty Registrar of CISF (DSP) and of Security Force, DSP for the period from August 3, 1970 to August 31, 1970 to show that the workmen security guards were not given any job during this period.
10. In his oral evidence the workman stated that on August 3, 1970 his post was forcibly occupied by the CISF and he was retrenched without any notice. Although in the examination-in-chief he stated that he (sic) exercised option but in cross-examination he could not sustain his oral evidence. Three witnesses examined by the company-stated that the workman did not exercise any option. They do not appear to have been discredited by cross-examination.
11. It appears form paragraph 9 of the award that the learned Tribunal Judge considered that there were three main disputes between the parties and he formulated them as follows :
(1) According to the company the workman did not exercise any option but the workman took the stand that he had exercised option.
(2) According to the company retrenchment was made w.e.f. August 17, 1970 but the workman stated that the retrenchment was done forcibly on and from August 3, 1970.
(3) The company alleged that retrenchment benefit was paid along with the notice but the workman denied it and described such payment as one towards his outstanding overtime dues.
12. The company produced all the relevant records from which it appears that those of the workmen who did not exercise option were served with notices of termination and retrenchment benefits were sent by registered post. The Respondent workman only orally stated that he did not receive any retrenchment benefit but the company’s employee, OPW-2 in his examination-in-chief as also in cross-examination unequivocally established that the envelope marked Exhibit “F” with A/D containing notice of termination and a Bank Draft on UBI covering 3 months’ notice-pay and compensation as per law were sent to the workman on August 12, 1970 but the envelope was returned unserved on the ground that the addressee was not found. The envelope was addressed to the workman at his official address when he was very much in the service. The retrenchment notice dated August 12, 1970 should therefore be taken to have been duly served. From the Annexure to the writ application it would be apparent that the retrenchment was to be effective w.e.f. August 17, 1970. The workman stated orally that he had certain dues on account of overtime and the draft containing the notice-pay and retrenchment compensation represented the said overtime dues which is denied by the company. The office copy of the said document shows that these were only relatable to the retrenchment. The workman’s plea that the same represented overtime dues does not stand scrutiny. It might be that the CISF started taking over the security posts from August 3, 1969, from which date the security personnel of DSP became practically without any job. This ‘switching over to CISF which necessarily was to be gradual cannot be said to be a forcible take over and even if it was a forcible take over, it cannot be said that it was retrenchment without notice effective from August 3, 1969. That retrenchment was not effected from August 3, is also strengthened by the notice of retrenchment issued on August 12, 1969 with the retrenchment being effective from August 17, 1969. The P-Form that was filled in and sent to the Labour Commissioner also indicates that retrenchment was effective from August 17, 1970. But curiously and surprisingly the learned Tribunal Judge took it that retrenchment had been effected on August 3, 1970. The learned Judge observed that as witness of the company had admitted that CISF was inducted in the 1st week of August, 1970, it should be taken that with the induction of CISF retrenchment was effective on and from August 3, 1970, the date alleged by the workman. In my view this is grossly a wrong approach. It is not based on cogent evidence and it is contrary to the facts and circumstances of the case. Durgapur Steel Plant has plant, machinery and steel wares worth crores of rupees. It cannot remain unmanned so far security aspects are concerned. Induction of CISF is pursuant, to a Central Act. Decision to wound up the security department was a policy decision of the management when the existing security staff either by induction into CISF or by retrenchment were to be parted with by the company. It was therefore inevitable that CISF would come earlier than August 17, 1979 which was the official date fixed for its induction. As security of a big steel plant like D.S.P. is very hazardous, deployment of CISF to replace security personnel from before the target date was inevitable and simply because CISF was being deployed earlier than August 17, 1969, it cannot be said that the retrenchment was effected earlier than August 17, 1969.
13. In paragraph 10 of his award the learned Judge observed, “It may easily be inferred, therefore, that although the company reached a policy of absorbing everybody who opted, either in the CISF or in alternative job, in practice the employer company violated this principle and retrenched even those who had offered option”. Nothing can be more fallacious than this inference inasmuch as it was never the policy of the company to absorb everybody either in CISF or in alternative job, as from the circulars. Annexure ‘A’ it is evident that the policy that had been taken was that those who would opt for the CISF would not be taken into CISF because of lack of physical fitness, might be considered for alternative jobs in the company. In respect of those who would not opt for CISF, the firm decision was that they would be retrenched with retrenchment benefits paid to them. How then the learned Judge could infer what he sought to do is beyond my guess. The facts, circumstances and materials on record clearly and obviously establish that the learned Judge misdirected himself and committed perversity which saps the very foundation of his award.
14. From paragraph 11 of his award it would appear that the learned Judge has summed up the facts as follows :” ………. In fact Sri Khan was removed on August 3, 1970″. What is the basis of this finding? There is absolutely no basis. Excepting oral evidence of the workman that no work was allotted to him on and from August 3, 1970, there is no evidence worth the name that he was removed with effect from August 3, 1970. On the other hand, the materials on record go to show that he was retrenched w.e.f. August 17, 1970 by a notice of retrenchment dated August 12, 1970 along with compensation and notice pay being tendered to him. This is clearly a perversity committed by the learned Judge.
15. In paragraph 11 again the learned Judge has referred to “A Herculean Job” regarding preparation of a list of persons to be retrenched within one day after the last date for option expired on August 10, and drew the inference that the retrenchment must have been done on August 3. This again is a totally misconceived approach, for the last date was extended from time to time and who knows whether the company had already prepared the list of persons or not? That apart, preparation of a list of persons, even if the same runs for 635 persons cannot be a Herculean task, at least for a company of DSP’s magnitude. The trouble with the learned Judge is that he took for granted the uncorroborated testimony of the workman that the retrenchment was effected on 3rd and then tested everything else on that anvil. In fact all evidence go to show that retrenchment was effective from August 17 and accordingly learned Judge’s inference is baseless and perverse.
16. The ultimate finding of the learned Judge that the retrenchment was both illegal and improper is baseless and perverse. The alternative job that has been ordered by the learned Judge on the aforesaid finding is again beyond the scope of the reference, for the reference was only to find whether the retrenchment was proper and legal and not to consider any relief by way of providing an alternative employment. The learned Judge ordered the alternative Job in the unskilled grade “as promised” by the company, but where is the promise? and who made it? The circular letter dated August 8, 1969 was that the management would try to offer an alternative employment to those who would opt for CISF but could not be absorbed in CISF because of lack of physical fitness. There was only promise to “try to offer” and that too to those who would opt but would fail. And those who would not offer, the only promise that was made was retrenchment. Clearly and obviously, the learned Judge misread the different circulars of the company and made the award which is nothing but perverse and liable to be set aside and quashed.
17. There is no evidence worth the name that the workman opted for CISF. The witnesses of the company by producing company records have established that the workman did not opt but the learned Judge took it that the workman opted and was not given any alternative employment making a conclusion without evidence is a perversity and there is no doubt that the learned Judge committed perversity in this respect too.
18. In my view all the points of dispute as formulated by the learned Judge dissolve in favour of the petitioner company contrary to what have been held by the learned Judge. In consequence his award falls to the ground.
19. Mr. R.N. Majumdar, learned Advocate, appearing for the Respondent workman has relied on the following decisions. The determinations made and their applicability to this case are also noted against each.
20. In Rajasthan Canal Project v. Rajasthan Canal Rastriya Majdoor Union, (1976-II-LLJ-25) a Single Judge of Rajasthan High Court held that retrenchment to take effect under the law must be accompanied by actual payment or at least tendering of the money and that mere readiness of the employer to make the payment would not do. In the instant case the compensation and notice pay were actually tendered to the workman concerned as already found and accordingly this decision has no application to this case.
21. In the State Bank of India v. Sri N. Sundra Money (1976-I-LLJ-478) the Supreme Court held that every termination of employment spells retrenchment and termination embraces not merely the act of termination by the employer but the fact of termination howsoever produced. Here the workman’s service was terminated under Section 25-F with notice and payment of compensation w.e.f. August 17, 1970. The workman took the plea that no job was allotted to him from August 3, 1970 and accordingly the retrenchment was in fact effected from August 3, 1970. The facts and circumstances involved in this case are rather unusual. The security force of DSP was being replaced by CISF. The target date of effecting the switch over was no doubt August 17, 1970 but considering the security hazard that was involved in the Durgapur Steel Plant, it was very natural for the management to induct CISF gradually and is in evidence that the CISF started to do the same on and from August 3, 1970. That being so the workman security guard naturally had no work but on this ground alone it cannot be said that his service was in fact terminated w.e.f. August 3, 1970. Repeatedly the management served notices upon the workman and all others drawing their attention to the fact that CISF was being inducted and that the security personnel of the DSP could opt for service under CISF. If they opted for such service but could not be taken they would be considered for alternative employment but if they did not opt for CISF they would not be retrenched. The target date for exercising option was extended from time to time and brought to their notice but the workman did not opt. Thus he knew that he was going to be retrenched, in such circumstances if the workman became jobless from August 3, 1970 because CISF was gradually taking over the posts, it cannot be said that there was retrenchment in fact from August 3, 1970 and the requirement of Section 25-F was not followed. The decision has no application.
22. The Supreme Court in Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukerji (1978-I-LLJ-1) held that striking off name of a workman from the rolls amounts to retrenchment. There is no evidence on record that the name of the concerned workman was struck off the roll with effect from August 3, 1970.
23. In the decision of the Supreme Court in Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72) retrenchment included every kind of termination and that discharge of a workman on the ground that she did not pass the test which would have enabled her to be confirmed was retrenchment within the meaning of Section 2(oo) and therefore, the requirement of Section 25-F had to be complied with. No such case arises here.
24. Hindusthan Steel Ltd v. The Presiding Officer, Labour Court Orissa : It was held by the Supreme Court that termination of service by efflux of time stipulated in the contract of service amounts to retrenchment and non-compliance of Section 25-F(b) renders the retrenchment illegal. Not relevant.
25. Regarding the relief of alternative employment as granted by the learned Tribunal Judge, Mr. Majumdar contended that in industrial law the rigid Rules should not be taken to be the guiding pole starts as an industrial dispute is an alloy of law and social justice where Court functions to work out not only what is legal but also what is just. In that view Tribunal’s direction for payment of gratuity more or less prevalent in many industries in the region was held by the Supreme Court, vide AIR 1983 SCL (L & S) 210 mounts to an approach which is informed by social justice and High Court could not interfere with such direction of the Tribunal. Mr. Majumdar argued that although the instant reference does not speak for relief of granting alternative job, yet the mere fact that an alternative job was directed would not make the Tribunal’s award illegal or perverse. It has, however, been shown that the learned Judge directed alternative employment on the ground that in his view the management had promised alternative employment in case one did not join the CISF. This is contrary to what is on record. The management promised consideration for alternative Job in case option was exercised but the workman could not be taken in CISF and otherwise, there would be retrenchment. There was no question of promising alternative job even if one did not opt for CISF. The basis of the whole approach caves in and along with it the edifice that was sought to be created thereon by the learned Tribunal Judge must crumble to the ground.
26. Mr. Majumdar also placed his reliance on to highlight that while reviewing a Tribunal’s award the High Court does not work as a Court of – appeal and that where there is some evidence as against no evidence, the High Court would not review the evidence to arrive at an independent finding on the evidence. But if the Tribunal’s award is manifestly perverse and based on false premise and not supported by any material on record then, I think, it is the duty of the High Court to interfere in the matter to prevent across injustice being perpetrated taking advantage, of a wrong award. Industrial Disputes Act is no doubt a social legislation but it delineates the social Justice that is sought to be achieved within the framework of the Act. No emotion but only bare facts and the law applicable should goad the Tribunal to arrive at a just decision. Any contrary view would be dehors the purpose for which the legislation has been brought into force. And is there any scope for emotional approach in the instant case? Ample opportunity was given to the workman to cross over to CISF where continuity of service and pay protection had been assured, with the further concession that alternative employment would be considered if one gives the option but fails to be selected. Knowing fully well of the consequences the concerned workman did not opt for CISF. He must face the situation. In my view there is no scope for taking a lenient view in the matter. The award suffers from perversity and error of facts as also of law apparent on the face of the record and accordingly it is liable to be set aside and quashed.
27. Having regard to the facts, circumstances and materials on record. I therefore hold that the impugned award is baseless, perverse and contrary to the evidences on record and accordingly stands set aside and quashed.
The writ application succeeds accordingly.
There shall be no order as to cost.