1. This writ petition is directed against an award of the Labour Court, Jullundur, given in Reference No. 21 of 1961. M/s. Kundan Iron and Steel Industries, Chheharta, hereinafter called the management, retrenched four of its workers and suspended another three with effect from 31st July, 1960. The Workers Union took up the cause of the retrenched and suspended workers and as a result there of the Punjab Government in exercise of its powers under Section 10(1)(c) of the Industrial Disputes Act, 1947, described hereinafter as the Act, referred the dispute to the Labour Court at Jullunder for adjudication by notification No. 13662-Lab (1) -60/2781, dated 27th January, 1961. It was pleaded by the workmen before the Court that the retrenchment and suspension orders passed by the management were unjustified, illegal and mala fide. The management allege that there was o industrial dispute existing between the parties and reference was, therefore, had in law. The following three issues had to be decided by the Labour Court :-
1. Whether the retrenchment of Sarvshri Sudagar Singh, Mohan Singh, Amar Singh and Parma Nand is justified and in order If not, to what relief they are entitled ?
2. Whether the action of the management in suspending Sarvashri Santokh Singh, Gurbachan Singh and Veer Singh with effect from 31st July, 1960, is justified and in order If not, to what relief they are entitled ?
3. Whether the dispute raised in the reference was not an industrial dispute
2. Issues Nos. 1 and 2 were decided against the management it being held that there was no justification for the suspension of the works and that retrenchment was bad in law since the provisions of Section 25F of the Act had not been complied with. Under issue No. 3, it was held that there was an industrial dispute capable of adjudication. It is a common, ground that after the reference, respondent management totally closed down its business on 22nd October, 1962, and the legality of its action in closing its business was not challenged by the workmen. In the result, the Labour Court directed the management to pay to the workers concerned retrenchment compensation due to them under Section 25FFF read with Section 25F of the Act. Proviso to Section 25FFF(1) requires that where an industrial undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation payable to the workman under clause (b) of Section 25F shall not exceed his average pay for three months. Except in the case of bona fide closure of business, a workman employed in an industry who has been in continuous service for not less than one year cannot be retrenched by an employer until he is given one month's notice in writing indicating the reasons for retrenchment and that the period of notice has expired, or he is paid in lieu of such notice wages for the period of notice as provided in clause (a) of Section 25F. Clause (b) of the same section permits an employer to retrench a workman if at the time of retrenchment he is paid compensation which is equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months, ad notice in the prescribed manner is serviced on the appropriate Government or such authority as may be specified by the appropriate Government.
3. The workmen being dissatisfied with the relief granted to them by respondent 1 have come to this Court in a writ petition.
4. The only point urged by Mr. Anand Sarup, learned counsel for the petitioners, is that respondent 1 committed an apparent error of law in nor granting proper relief as was warranted from its own findings. The argument is that the Labour Court having held retrenchment and suspension of the workmen to be illegal and inoperative, was bound under the law to have declared the retrenched and suspended workers as deemed to have continued in service till the closure of the business on 22nd October, 1962, and, therefore, entitled to wages upto that time. The same thing put differently means that if the business had not closed, the only relief to which the workmen were entitled, in the circumstances, was of reinstatement and that the closure of business should not have made any difference to the entitlement of the workmen to the wages upto the date of the closure.
5. I find substance in the contention of the learned counsel for the petitioners. The requirements as prescribed in Section 25F constitute a condition precedent for the exercise of the power of retrenchment and non-compliance therewith renders the retrenchment order void and inoperative. When the retrenchment itself is ineffective in law, the only reasonable and legal consequence is that the workmen were never retrenched and that they must be deemed to be continuing in service till their services are retrenched n accordance with law. Same will be the position in regard to suspension of workmen. If the suspension order is set aside, the only logical conclusion is that the workmen are deemed to be in service. Suspension from service, as applied to a contract of employment, means that the workmen cease to be under any present duty to work and that as soon as the period of suspension is over, they are reinstated. Suspension, in other words, is only a temporary stop of a man's right.
6. The contention that when retrenchment has not been effected n accordance with Section 25F, the workman can only claim compensation, was repelled by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha, (1960) 1 Lab LJ 251 = (AIR 1960 SC 610). What happened in this case was that some servants of the hospital who were members of the Industrial Trade Union were retrenched. A writ petition was filed on their behalf where an allegation was made that the said retrenchment was void as it did not comply with the mandatory provisions of Sections 25F and 25H. a writ of mandamus directing the employer to reinstate the retrenched employees to their posts was prayed for. A learned single Judge of the Bombay High Court dismissed the writ petition as, in his opinion, non-compliance with the provisions of Section 25F did not invalidate the order of retrenchment and it was open to the retrenched workers to seek an appropriate remedy under Section 25I. Section 25I which has since been repealed provided for the recovery of moneys due from the employers under Clause V of the Act. this decision was reversed by the same High Court on appeal and a writ in the nature of mandamus issued against the employer directing reinstatement. The state of Bombay, on a certificate from the High Court, preferred an appeal to the Supreme Court which was dismissed and the appellate judgment of the High Court confirmed. It was observed by their Lordships that.-
'Having regard to the fact that the words used in Section 25F(b) are mandatory and their effect is plain and unambiguous, it seems to us that the Court of Appeal was right in holding that Section 25I covered cases of recovery of moneys other than those specified in Section 25F(b), and it is obvious that there are several other cases in which moneys (sic) that Section 25I had been enacted. Therefore, we see no substance in the argument that the Court of Appeal has misconstrued Section 25F(b). That being so, failure to comply with the said provision renders the impugned orders invalid and inoperative.'
7. In view of the clear observations of their Lordships non-compliance whether with clause (a) of Section 25F or with clause (b) thereof will equally render a retrenchment order invalid, void and inoperative. A void order has in law to be treated as having never been passed. The conclusion, therefore, is that the workmen, whose suspension and retrenchment orders are found by a competent Court or Tribunal to be illegal are on the setting aside of those orders, entitled to be treated as continuing in service. The Labour Court, in the instant case, should have regulated the relief on the basis that the retrenched and suspended workmen, mentioned in the reference, were continuing in employment upto 22nd October 1962, and directions for payment of compensation issued accordingly.
8. It is unfortunate that there is no appearance on behalf of the respondents. The management had engaged on Shri M. R. Mittal, who filed his power of attorney and on whom actual date notice has also been served for 22nd January, 1971, but in spite of that he has not cared to be present in this Court. Be that as it may, the fact remains that I did not have the advantage of any assistance from the side of the management.
9. In the result, the writ petition is allowed and the case remanded to the Labour Court for passing appropriate orders in accordance with law.
10. Petition allowed.