S. Rangarajan, J.
(1) The petitioner has invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution against respondent No. 2 who was admittedly a workman; he was working as a turner in the electric motor department of the petitioner which was claimed to have been closed down, it being averred that the respondent No. 2 along with three others was working in the department which was closed down. The greater part of the award of the Labour Court (Shri D. D. Gupta) was concerned with the question of closure; there is very little discussion on the other question, which alone has been argued before me by Dr. Anand Prakash, the learned counsel for the petitioner, concerning whether the workman had been paid retrenchment compensation as per section 25-F of the Industrial Disputes Act, 1947, which will be hereinafter called the Act.
(2) It is needless to be concerned about the other three workers who were employed in this department; reportedly the matter has been settled with them. Retrenchment compensation had also, by way of abundant caution, been paid to all (four) of them within the meaning of the said provision despite the stand taken by the manage- ment that there was a closure of that department.
(3) It would seem best to set out here, in the very language of the Labour Court the findings in so far as the question of the retrenchment compensation is concerned; Dr. Anand Prakash stated that it was needless for him to rest his case on closure since section 25-F of the Act has been complied with in this case :
'CONSIDERINGall this evidence oral and documentary, I am of the opinion that the evidence produced by the management, itself, was contradictory to prove the closure of the electrical motor department. In the notices it gave lo the Government it alleged retrenchment under Section 25-F of the Act and not closure. This meant that the management, itself, was not sure whether it did closure or retrenchment. Notice Ex. M/9 which was given io Kartar Singh too showed that closure of the elect, department was not the reason for not requiring his services any longer. Ext. M/9 reads as follows :
'YOURservices are no longer required by the firm with effect from 15th December 1972. You are requested to clear your a/c.' Iam, thereforee, of the opinion that the story of closure of the elect. deptt. is an after-thought for the reason that the retrenchment was illegal and unsupportable, in law, for the reason that the workman had not been paid his compensation or one month's notice before he was retrenched. Besides this the elect, motor department was at best a part of the establishment and it is no where in the evidence of the management that Shri Kartar Singh was employed for that deptt. in particular. He was, in fact, an employee of the entire concern as a whole. thereforee, unless it was shown that he was the juniormost and he could not even be retrenched on account of the principle of 'last come first go'. I, thereforee, hold that the management failed to prove the closure of the elect, motor deptt. or that Shri Kartar Singh's service was terminated on account of the closure.'
'THEretrenchment of Shri Kartar Singh was illegal too as it is clear from the evidence of management itself that compensation was not paid to him at the time he was given notice Ex. M/9. Shri Kartar Singh is, thereforee, entitled to be reinstated with full back wages.'
(4) The Labour Court set out in summary fashion the evidence pertaining to the offer of payment of retrenchment compensation but has not particularly noticed the following documents on record, which it has not discredited or criticised in any manner.
(5) Annexure 'B' to this Writ Petition is the copy of the management's letter dated 14th December, 1972 (4.45 P.M.) to the workman (R.2) (marked as M/9 before the Labour Court) informing him that his services were no longer required w.e.f. 15th December, 1972 and he was requested to 'clear his accounts'. It also contains a significant endorsement that the workman had refused to receive the said letter personally and hence the same was sent by registered A.D. post. This endorsement was elicited during the cross-examination of Mw 1 (Prakash Chander) but there was, significantly, no suggestion that it had been made later on; such a suggestion was not even possible because it had been sent by registered A.D. post on 14th itself. It is not disputed that the letter was sent to the workman's address as it had been mentioned and borne on the register of the management; the workman positively admitted the address was correct. Annexure 'C' to this petition is the copy of the Form of Notice of retrenchment to be given by an employer under clause C of section 25-F which also contains a reference (in para 2) that the four workman concerned, including the respondent No. 2, had been given one month's notice as required by section 25-F of the Act. Annexure 'D' is a copy of the notice of closure, to which no reference need be made now in the light of the submissions made by the learned counsel for the petitioner. Annexure 'E' is a copy of the acknowledgement form of M.O. sent by the management on 14th itself for a sum of Rs. 730; it is not disputed that this represented the entire amount to be paid to the workman (R.2) as retrenchment compensation; it was stated that the bonus would be paid afterwards. (This was marked as M/12 before the Labour Court.)
(6) The Labour Court has not even noticed the fact stated in Ex. M/9 that the workman had refused to receive that letter; it merely set out the other contents of that letter (page 23 of the file and inner page 6 of the copy of the Award marked as Annexure A to this petition) and reliance was placed upon it (as seen in the passage extracted above), only for the purpose of showing that no reference had been made to closure. It then went on to discuss whether the workman was a part of the general establishment or of merely the electric department an aspect which need not detain us now.
(7) I am unable to see how the Labour Court came to conclusion or finding expressed in paragraph of the Award (set out above) that it is clear from the management itself that compensation was not paid to him at the time he was given the notice Ex. M/9. There has been no other discussion on this question in the Award except what has been set out above. This appears to be, thereforee, a clear case of not reading the evidence fully or correctly. The documents referred to above clearly show that the workmen including the respondent No. 2 were only working on and till 14th but not thereafter; the respondent No. 2 was sought to be given a copy of the letter Ex. M/9 as the letter itself shows; the endorsement thereat has not been discredited by the Labour Court in any way; the need for sending the same by registered A.D. post (Ex. M/10 is the cover) arose obviously because of such refusal; the M.O. for the retrenchment compensation (except of course bonus which could be paid only later) was also sent on the 14th itself. The address of the workman does not appear, naturally, in the acknowledgement form of the M.O. because there is no space there for the address of payee (which is in the other part not produced but obviously retained in I he post office). There was no suggestion even that the address was not correctly stated; such a suggestion was impossible because in the registered cover enclosing the letter (original of Ex. M/9) the address of respondent No. 2 has been correctly stated. The cover has been returned on the ground that he was not available for being served. On the other hand it is worth recalling, the workman had admitted in the course of cross-examination as follows : 'My address on Ex. M/10 is correct'. It was elicited during the cross-examination of Prakash Chander (examined on behalf of the management as M.W. 1) that the M.O. (M/12) was sent on 14-12-72 and that the amount was offered on i4th itself. It was also elicited from him that the time of offer was 3 or 4 P.M. whereas the time noticed in Ex. M/9 was 4.45 P.M. Having regard to the fact that this witness was examined before the Labour Court nearly two years after the said offer of payment no importance can be attached to the difference (slight) between 3 or 4 P.M. in the evidence of M.W. I and 4.45 P.M. in Ex. M/9, especially when the Labour Court has not adverted to this as a circumstance for not acting upon the evidence of the management. The above discussion of the Labour Court shows, on the contrary, that the evidence was not disbelieved: its finding is based on the evidence for the management, as it has been let in. Both as a fact. and even on the law, as will be explained presently, the Labour Court was wrong in ordering re-instatement of the workman (R.2).
(8) I had occasion to discuss this question in Management of Band Box v. Suresh Kumar and another 2nd (1971) 2 Del 465. It would be sufficient to set out the head notes therein which explain the legal position :
'HELD,that the word 'settle' was obviously used, and also understood, in the ordinary dictionary sense, to finally arrange with the management concerning the service compensation, one month's pay, earned wages and wages in lieu of unavailed earned leave, if any, etc. The fact that the amount was not sent by money order later on could hardly be a ground from which it can be inferred that the offer of payment was not bona fide. The letter date 9-8-67 was personally offered to the workman; the person offering it need not have with him the amount for being tendered to the workman because the payment in this case was to be made by the head office, in Connaught Place. From the fact that when the said letter was offered to the workman, the representative of the company did not have the money with him to be paid to the workman, it cannot be inferred that there was no compliance with Section 25-F of the Act. Unless it is made out that the workman presented himself the next day of the receipt of the order for receiving payment and still it was not made to him, there could be no challenge on the ground that section 25-F was not complied with.'
'HELD,that the object of both the situations, whether under section 25F or section 33(2) is clearly to ensure that there would be no retrenchment in the former case or discharge or dismissal in the latter without paying in lieu of one month's notice, wages for the period of the notice. The requirement of such payment under section 25-F is not different from section 33(2). All that need be ensured is a bona fide offer to the worker as part of the same transaction of either retrenching him or discharging or dismissing him.'
(9) That was an almost similar case; the worker had been retrenched and a letter dated 9-8-1967 was handed over, which he refused to take, saying that he would be terminated w.e.f. next day (10th) and that he might settle his dues; the said letter was thereupon posted to him (no M.O. had been sent in that case as in this). The worker in that case received that letter on 19th but did not collect his dues. Reference has been made therein to the decisions of some High Courts (of the M.P. High Court in Nowrozobad Mazdoor Sangh v. F. Jeejeebhoy, (1970) 37 FJR 225; of the Madras High Court in Presidency Talkies Pvt. Ltd. v. Labour Court, Madras, : (1969)ILLJ90Mad ; and of the Supreme Court in Straw Board . v. Govind, 1962 Sc 1500; Delhi Transport Undertaking v. Industrial Tribunal Delhi, 1965 (I) Llj 445; Tata Iron & Steel Co. Ltd. v. Modak, : (1965)IILLJ128SC ; National Iron & Steel Co. v. State of West Bengal : (1967)IILLJ23SC ; Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC . Some of these decisions were under section 25F or 33(2) of the Act. Without repeating here what I have stated therein
IT is sufficient to note what Krishna Iyer, J., who spoke for the Supreme Court in State Bank of India v. N. Sundra Money, Vol. 32, 1976 IF & LR 197 said, namely, that then the workmen 'swim into harbour of section 25-F' they 'cannot be retrenched without payment, at the time of retrenchment, compensation computed as prescribed' etc. This proposition has been firmly established (vide National Iron, cited supra) also of a single Judge in the same case by the Calcutta High Court, 1964 (I) Llj 525). The only further question for consideration is whether it has to be a payment which he actually receives on hand or whether it can also be offer of payment before the retrenchment is given effect to. The above documentary and oral evidence on the side of the management which has not been disbelieved by the Labour Court, clearly shows that there had been such offer of payment before the retrenchment- The finding of the Labour Court to the contrary is based clearly on a misreading of the evidence and a failure to comprehend the law on this question. It has missed the true perspective because of its pre-occupation with the question of closure which was agitated before it, a question which has become needless for me to discuss in view of Dr. Anand Prakash's confession that he is not pressing the question of closure. I have, thereforee, had the advantage of considering the question of payment of retrenchment compensation free of the question of closure. It is not even suggested in this case, as it was observed by the learned Single Judge of the Calcutta High Court in National Iron, that it was not possible for the workman to collect the dues to him from the office on that very day because the letter had been pasted on the notice board and not personally given to him.
(10) In the light of the legal position, which I have endeavored to explain, it is necessary that payment has to be made before and not after the workmen are actually discharged. But if actual payment in cash at the very spot of retrenchment is insisted on it may lead to obvious difficulties. Care has to be taken that the management does not put off paying the workers which has to make its best endeavor to pay. The management has done that in the present case; it is only the workman who has probably played a game of 'hide and seek'. The argument of Mr. Madan Mohan that the money order should have reached him before the retrenchment took effect is misconceived since it overlooks the fact that the offer of payment had been made, it was declined and the M.O. was sent on the same day.
(11) This court will exercise its jurisdiction under Article 226 whenever there is any finding based on no evidence, when the finding is contrary to the evidence and when the finding is perverse (vide Bharat Iron Works v. Bahghubai, Air 1976 S.C. 99. Judged by any or all of these tests the finding of the Tribunal that there was no payment to the workman within the meaning of section 25-F of the Act is vitiated and is accordingly set aside.
(12) The impugned Award directing the reinstatement of the workman (R.2) and payment of back wages to him is quashed. The writ petition is accepted accordingly. There will be no order as to costs.
(13) It is needless to say that the workman is free to collect the retrenchment compensation and the bonus, if any, due to him.