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Beni Bhuj Sahu Vs. Chief Engineer, Hirakud Dam Project and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 158 of 1965
Judge
Reported inAIR1970Ori9; 35(1969)CLT898
ActsIndustrial Disputes Act, 1947 - Sections 2, 10 and 25F; Constitution of India - Articles 226 and 227
AppellantBeni Bhuj Sahu
RespondentChief Engineer, Hirakud Dam Project and anr.
Appellant AdvocateL. Rath, Adv.
Respondent AdvocateStanding Counsel
DispositionWrit application allowed
Cases ReferredBaburam v. Zila Parishad. This
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........the petitioner is a workman and as such he was entitled to the benefits of section 25f(b) of the industrial disputes act, 1947. the section not having been complied with, the order of retrenchment is void and without jurisdiction. 3. mr. das, the learned standing counsel rightly does not dispute that the hirakud dam project is an industry and that the petitioner is a workman. that such a project would come within the definition, of 'industry' and the petitioner would come within the definition of 'workman' even if he was a telephone operator unconnected with the main industry concerned, is concluded by the decision of the supreme court in air 1968 sc 554, madras gym. club employees' union v. management of the gymkhana club. on the aforesaid position the provisions of the industrial.....
Judgment:

G.K. Misra, C.J.

1. The petitioner was appointed as a Telephone operator under the Government of Orissa in the Hirakud Dam Project on 1-4-60. A notice was issued on 30-4-63 intimating the petitioner that his services would be terminated after one month from the date of service of the notice. The notice was styled as 'Retrenchment Notice'. Against the order retrenching him. the petitioner filed an appeal before the concerned Chief Engineer. As he got no response, he filed the writ application under Articles 226 and 227 of the Constitution on 21-6-65.

2. The only point raised by Mr. Rath is that the Hirakud Dam Project is an industry and that the petitioner is a workman and as such he was entitled to the benefits of Section 25F(b) of the Industrial Disputes Act, 1947. The section not having been complied with, the order of retrenchment is void and without jurisdiction.

3. Mr. Das, the learned Standing Counsel rightly does not dispute that the Hirakud Dam Project is an industry and that the petitioner is a workman. That such a project would come within the definition, of 'industry' and the petitioner would come within the definition of 'workman' even if he was a telephone operator unconnected with the main industry concerned, is concluded by the decision of the Supreme Court in AIR 1968 SC 554, Madras Gym. Club Employees' Union v. Management of the Gymkhana Club. On the aforesaid position the provisions of the Industrial Disputes Act are applicable to the petitioner even though he was a Government servant.

4. Section 25F(b) runs thus:

'25F. Conditions precedent to retrenchment of workmen. -- No workman employed in any industry who has been in. continuous service for not less than oneyear under an employer shall be retrenched by that employer until-

xx xx xx (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months;'

The section purports to lay down the conditions precedent to retrenchment of workmen. The petitioner worked for about 3 years and he should have got compensation equivalent to 45 days of average pay. Admittedly no such compensation was paid to him at the time when the, retrenchment was to be effective, or even thereafter. It has been held in AIR 1960 SC 610, State of Bombay v. Hospital Mazdoor Sabha, that non-performance of this condition precedent vitiates the order of retrenchment. The order of retrenchment is accordingly void and is ineffective.

5. The only other question for consideration is whether the petitioner should have taken recourse to the remedies available under the Industrial Disputes Act and whether this Court should interfere under Articles 226 and 227 of the Constitution and give relief. The case is a very simple one and no complicated facts are involved. The whole argument proceeds on admitted position. The power of this Court under Articles 226 and 227 is discretionary. Though it is wide, certain self-imposed restrictions are put on account of the wide amplitude of that power. Accordingly when another alternative remedy equally efficacious is available, this Court ordinarily does not interfere. See AIR 1969 SC 556, Baburam v. Zila Parishad. This case has however its special features, namely, it involves no complicated question of fact, and under the accepted position that the order of retrenchment is void and despite an appeal being taken, no -redress was given to the petitioner, we think this is a fit case where we should interfere without sending the petitioner to resort to the long procedure prescribed under the Industrial Disputes Act for getting the remedy.

6. We accordingly quash the order of retrenchment and issue a writ of mandamus directing the opposite parties to reinstate the petitioner in his work. The writ application is allowed with costs. Hearing fee Rs. 100/- (Rupees one hundred).

R.N. Mishra, J.

7. I agree.


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