JUDGMENT
1. The petitioners herein challenged the order passed by the Labour Court, Amravathi in Complaint (ULPN) No. 189 of 1985 on June 12, 1987 whereunder it was declared that the petitioners have engaged themselves in unfair labour practice and hence directed them to cease and desist from such unfair labour practices. As many as 173 workers whose names are mentioned in the list attached (hereinafter referred to as ‘the listed workmen’) were ordered to be reinstated in service with back wages. Even the order passed in Rev. (ULP) No. 93 of 1987 on September 16, 1988 is impugned in this petition.
2. A complaint under Section 28 read with Item I of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act (hereinafter referred to as “the Act”) was filed by the respondent No. 1 Union espousing the cause of 173 workmen of Division No. 2 of ‘Urdhwa Painganga Project’ alleging that their termination by notice dated September 30, 1985 is invalid and illegal for violation of the provisions of Section 25-F and 25-G of the Industrial Disputes Act. It was also the case of the respondent Union that despite there being sufficient work, their retrenchment was patently for false reasons. They complained even contravention of Section 33(1)(d) of the Industrial Disputes Act. The respondent Union who thus viewed the retrenchment as unauthorised, invalid and illegal, claimed reinstatement and back wages.
3. The petitioners opposed the complaint denying inter-alia that they have engaged in unfair labour practice or that they have violated Section 25F or 25G of the Industrial Disputes Act. The petitioners denied the complaint by specifically contending that since work was nearing completion and since the Department were closing down Sub-Division Nos. 8 and 9, it was necessary to reduce the strength of workers. It was for non-availability of work that the retrenchment was resorted to. An objection was also raised by the petitioners that the respondnet Union was not competent to raise the dispute. They hence claimed that the complaint be dismissed.
4. The learned Judge of the Labour Court found on the basis of evidence led before him that the retrenchment was illegal and invalid for patently false reasons and due to non-payment of retrenchment compensation on or before the actual date of retrenchment. It also held that notice dated September 30, 1985 was not served to all workmen when the retrenchment was effected. The learned Judge also held violation of Section 25G inasmuch as the proper seniority list was not prepared and published and juniors had been retained in service and the seniors retrenched. Consequently, the 173 listed workmen were ordered to be reinstated in service on payment of full back wages. The petitioners, feeling aggrieved challenged the said order in Revision before the Industrial Court, Amravathi, which after hearing the parties, dismissed the Revision. The petitioners have now filed this petition.
5. On the basis of the arguments advanced by either of the parties, various points arise for determination. The first and the foremost question which falls for determination is whether the retrenchment of listed workmen was in violation of Clauses (a) and (b) of Section 25F of the Industrial Disputes Act. Before dealing with the facts found by the learned Court below, it would be proper to look at the relevant provisions. Clause (a) of Section 25F stipulates giving one month’s notice in writing indicating therein the reasons for retrenchment. The notice contemplated by that Section may be one months’ notice or pay in lieu of notice. The clause, therefore, covers three aspects and they are (i) notice must be given to the workmen in writing, (ii) reasons must be disclosed for retrenchment, and (iii) one month’s notice as contemplated or one month’s wages in lieu of notice. The Clause (b) of Section 25F mandates the employer to pay to the workmen, at the time of retrenchment, compensation to be computed in the manner provided in that clause. All these requirements are conditions precedent to retrenchment. In other words, all the conditions must be complied with before the workman is actually retrenched and this includes payment of compensation or atleast a genuine and bona fide offer to pay the amount. A necessary condition for applicability of this Section is that the workman must have put in continuous service of one year. There is, however, no challenge to the conditions of applicability because all the listed workmen have put in more than one year of continuous service.
6. The petitioners have terminated the services of 173 listed workmen by notice dated September 30, 1985 by offering one month’s pay in lieu of notice and also retrenchment compensation. The details of the amount payable are not mentioned in the said notice with the result that it becomes difficult for the workmen to find out whether the amount offered is correct or not. Well, this irregularity may not come in the way of the petitioners, but the question is when these notices were served on the listed workmen. The learned Courts below have found that the notices were served to some persons on September 30, 1985 while some others received it on October 1, 1985 and also thereafter on October 4, 1985 and October 5, 1985. Some workers have mentioned the date of receipt of the notices but there are many who have not done so. For those workmen who have received notices on October 1, 1985 or thereafter it was not possible to collect the dues on or before September 30, 1985. Even those employees who have received the notices on September 30, 1985 itself there is nothing on the record to show that they were served with notices well in advance on that day, so as to enable them to go to the Sub-Divisional Office for collecting the amount. It is no doubt a settled principle of law that an offer may be as good as payment, but the offer must be genuine and bona fide. If an offer is made at the close of the day or even a bit earlier, it can never be said that the offer was genuine and bona fide, more so if the office from which the amount is to be collected is at a place away from the place of work. The fact, however, remains that notice dated September 30, 1985 was served on some of the workers on the very day itself whereas others received after that date. The notices served upon or received by workmen after September 30, 1985 are ipso facto bad, invalid and illegal. Neither the requirements of Clause (a) nor Clause (b) of Section 25F can be said to have been complied with.
7. It was contended on behalf of the petitioners that the notices were affixed on the notice board of the various sub-divisions and hence such publication should be held to be sufficient compliance of the service of the notice. The contention needs to be rejected for more than one reasons. Firstly, there is no such evidence adduced. Secondly, it is not possible that all the notices could be published on the notice board unless they are placed one upon another. Thirdly, the provisions of clause (a) of Section 25F requires notice to be given to a workman, the intention being that the said workman must know that he is being retrenched and that legal dues are offered. The workman who is unable to read being an illiterate can get the notice read by others in order to know the contents. This advantage is not available if the publication of the notice on the notice board is accepted. It is the bounden duty mandatorily imposed to see that notice of retrenchment is directly given to the workman. Therefore, the contention raised that service by pasting the notice on notice board should be sufficient compliance is wholly misconceived and not acceptable.
8. There are yet workmen who have received the notice of retrenchment on September 30, 1985 and may have either received retrenchment compensation or may have refused to collect the amount offered. In the circumstances, what falls for determination is whether the Court should uphold the termination of such employees ? If the question is properly scrutinised, the answer would be in the negative. The reason is very simple. The Section 25G would stand contravened. The said Section lays down the procedure for retrenchment. It provides that where any workman belonging to a particular category of workmen employed in the industrial establishment is to be retrenched, the employer shall ordinarily retrench the workman who was the last person to be employed in that category. There are, however, two exceptions to this rule, but those exceptions are not relevant for deciding the controversy. Section 25G lays down the rule of ‘last come first go’ which must be strictly followed in all cases of retrenchment. Now if a workman is retrenched by an invalid and illegal notice, he will have to be reinstated in service; whereas a workman who is retrenched by a legal and valid notice, may have to go out of employment. In this process, it is possible that the workman who was junior in service may be reinstated in service, whereas the workman who was senior in employment may go out and thereby upset the very principle of ‘last come first go’. It is hence difficult to accept the contention of the petitioners that orders of termination in respect of those employees whose retrenchment notices are found to be in order must be upheld.
9. The retrenchment notice served on each of the workman discloses that the workers are being retrenched for non-availability of work. That is the reason assigned for effecting retrenchment. It is a necessary requirement which must be observed by the employer. Necessarily, the reason disclosed must be correct. The learned Courts below, however, have found that the work of construction of canals was incomplete and the work was stopped not for the reason assigned but for non-availability of funds. In respect of the work, a finding is given that the Division No. 2 was entrusted with the job of constructing the canal 82 kms. in length and the length constructed was not even 42 kms. There is also the evidence on record that the work of construction of the canal is being done by contractors and also by workers of the Employment Guarantee Scheme. There is nothing on the record to suggest that the work which is being done by the contractors or by the workers of the Employment Guarantee Scheme could not be done departmentally. On this point, it was submitted on behalf of the petitioners that the work entrusted to contractors was totally different than the work the listed workmen were called upon to do. According to them, the work done by listed workmen was only incidental to the construction work of the contractors. The explanation is highly belated and not supported by the evidence on record. In any event, the fact remains that the work had to be stopped on account of non-allocation of funds in the budget resulting in shortage of funds which led to retrenchment of workers. The construction work was incomplete and the work is being continued even now. This shows that the listed workmen have not been retrenched due to the fact that the work was about to complete or was nearing completion. Factually, the work was stopped because of the shortage of funds. The reason disclosed in the notice of retrenchment was hence patently false and incorrect.
10. There is yet one more lacuna in the procedure for retrenchment. I have already referred to the provisions of Section 25G of the Industrial Disputes Act which mandates that in ordering retrenchment, ordinarily the management should commence with the latest recruit and progressively retrench employees higher up in the list of seniority. In order to achieve this principle, the seniority list has to be prepared by the employer in accordance with Rule 81 of the Industrial Disputes (Bombay) Rules, 1957. That Rule envisages not only preparation of seniority list category-wise but also requires that a copy thereof should be pasted on the notice board of the premises in industrial establishment at least seven days before the actual date of retrenchment. It has been held by the Division Bench of this Court in Navbharat, Hindi Daily, Nagpur v. Navbharat Shramik Sangha 1985 – I – LLJ – 474 that Rule 81 casts an obligation on the employer to strictly follow the said Rule. The said Rule is also not followed by the petitioners while effecting mass retrenchment.
11. From the above discussions, it is clear that the petitioners have retrenched 173 listed workmen in contravention of clauses (a) and (b) of Section 25F and Section 25G of the Industrial Disputes Act and Rule 81 of the Industrial Disputes (Bombay) Rules. The learned Courts below were hence justified in striking down the notices of retrenchment and holding that the petitioners have indulged in unfair labour practices as enumerated in Items 1(d) and (f) of Schedule IV of the Act with a direction to desist from indulging in such unfair labour practices.
12. What now remains is the relief which the petitioners are entitled to by way of affirmative action. In terms of clause (b) of Section 30 of the Act it is possible to grant the relief of reinstatement with or without back wages. The work for which the listed workmen were engaged is still continuing. Therefore, it would be proper to grant the relief of reinstatement in service. In so far as the back wages are concerned, the normal rule followed ordinarily is full back wages but it is not possible in the present case. The back wages would be a staggering figure because nearly seven years have lapsed after 173 workmen were terminated. In these circumstances, it would be appropriate to restrict back wages only upto September 16, 1988 which is the date on which the order of Industrial Court is passed. The net result of the discussion is that the petition fails. Except for the modification made in the grant of back wages, the petition is dismissed. Rule stands discharged. The parties shall bear their respective costs.