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Kishan Kumar Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 396/1976
Judge
Reported in1982WLN209
AppellantKishan Kumar
RespondentUnion of India (Uoi) and ors.
DispositionPetition allowed
Cases ReferredSurendra Kumar v. Industrial Tribunal
Excerpt:
.....remedy and industrial disputes act, 1947--section 25 f--termination order inavlid--held, bar of alternative remedy does not stand in way & writ jurisdiction can be invoked;it cannot be inferred that where the requirement prescribed by section 25-f of the act is a condition precedent for the retrenchment of the workman and non-compliance with the condition renders the retrenchment invalid and inoperative, the writ petition should not directly be entertained.;the bar of alternative remedy cannot be invoked and the reliefs can be granted to the petitioner in the petition under article 226 of the constitution.;(b) industrial disputes act, 1947 - section 25f--termination--services terminated because petitioner failed to secure position--held, provisions of section 25 f are not complied..........a contention was raised in mahesh chandra's case 1974 rlw 338 that the petitioner had .an alternative remedy under the act, which he should have pursued and, therefore, the writ petition should be dismissed on that ground. after referring to n. sundaramony v. the state bank of india kuzhithurai br. 1973 (2) llj 551, it has held that the objection regarding the existence of alternative remedy should not be entertained when the petition has been heard on merits. the learned judge observed as under:as mentioned above, the writ petition was filed on 29-10-1969 and has been pending in this court for the last 4 years. in my opinion, the objection, regarding the existence of an alternative remedy cannot be entertained at the fag end of the arguments, when the matter has been heard.....
Judgment:

S.K. Mal Lodha, J.

1. By this petition, petitioner Kishan Kumar seeks to quash the order Ex.3 dated November 17, 1975, by which his services were terminated. He has also prayed that he may be reinstated with all consequen-tial benefits. Facts first.

2. The petitioner was appointed by order Ex.1 dated June 27, 1973 as temporary local substitute Khalasi under the Inspector of Works, Jodhpur in the scale of Rs. 70-85 (AS) on pay Rs 70/- plus usual allowances. He joined on July 3, 1973. The petitioner along with others submitted representation Ex.2 dated May 8, 1975 for taking up his name in the regular panel. The petitioner continuously worked since July 3, 1973, until the notice Ex.3 dated November 17, 1975, in which it was stated that as the petitioner has not secured a position to come up within the vacancies arising upto May 1, 1973, his services would stand terminated on the date after one month of the issue of the notice. Subsequently, the petitioner's services were ordered to be terminated by letter (Ex 4) dated January 3, 1976, in which it was stated that his services stand terminated from January 3, 1976 and are no more required from that date. The case of the petitioner is that since he is a workman and had completed more than 240 day of service. the termination of his services without giving retrenchment benefit under Section 25F of the Industrial Disputes Act (No. XIV of 1947) (for short 'the Act' herein after) is null and void and, therefore, it should be quashed and set aside. He, therefore, filed the writ petition on February 4, 1976 for the reliefs mentioned above.

3. On behalf of the Union of India (non-petitioner No. 1) and the Divisional Engineer, Northern Railway, Jodhpur (non-petitioner No. 2), reply dated November 9, 1979 was filed opposing the writ petition. It was contended in the reply that a screening test for the purpose of regular empanelment as per Rules was notified and it was specified that those casual labours substitutes who have completed 180 days upto May 1, 1973 will be screened. The notice has been produced marked as Annexure R/1. The screening took place on 7th and 8th May, 1975. The petitioner appeared but he failed. Consequently, he could not be empanelled and the empanelled candidates replaced him. This led to the termination of the services of the petitioner. It was admitted that the petitioner had completed service of 240 days but his services were terminated on his failure to be empanelled after screening under the Rules. No preference could be given to the petitioner over the empanelled candidates. The Act has no application. Along with the reply, Annexure R/2 was filed showing that the screening was done for the posts available upto December 31, 1975, in which the petitioner had failed.

4. I heard Mr. M.R. Singhvi, learned Counsel for the petitioner and Mr. A.K. Mathur, learned Counsel for non-petitioners No. 1 and 2.

5. Mr. A.K. Mathur, learned Counsel has raised a preliminary objection regarding the maintainability of the writ petition. It was contended by him that the petitioner should have pursued his remedy under the Act. He should have approached the competent authorities under the Act for the relief which he has prayed for in the writ petition In support of his contention, he relied on Premier Automobiles v. K.S. Wadke : (1975)IILLJ445SC .

6. The preliminary objection regarding the non-maintainability of the writ petition was stoutly opposed by Mr. M.R. Singhvi, learned Counsel for the petitioner on the basis of Mahesh Chandra Sharma v. State of Rajasthan 1974 RLW 338 and Nagaur Central Co-operative Bank Ltd. v. Kesa Ram 1979 WLN 408.

7. I have considered the aforesaid decisions and have come to the conclusion that the preliminary objection should be over-ruled. A contention was raised in Mahesh Chandra's case 1974 RLW 338 that the petitioner had .an alternative remedy under the Act, which he should have pursued and, therefore, the writ petition should be dismissed on that ground. After referring to N. Sundaramony v. The State Bank of India Kuzhithurai Br. 1973 (2) LLJ 551, it has held that the objection regarding the existence of alternative remedy should not be entertained when the petition has been heard on merits. The learned Judge observed as under:

As mentioned above, the writ petition was filed on 29-10-1969 and has been pending in this Court for the last 4 years. In my opinion, the objection, regarding the existence of an alternative remedy cannot be entertained at the fag end of the arguments, when the matter has been heard fully on merits. There is no doubt that the existence of an alternative remedy is an important consideration for the exercise of the discretion of this Court under Article 226 of the Constitution, but the mere existence of an alternative remedy does not bar the jurisdiction of this Court. As I have found that the order Ex.2 is patently erroneous on its very face and is void in as much as the provisions of Section 25F of the Act have been completely ignored and the petitioner, though a 'workman' within the meaning of the Act, has not been paid any retrenchment compensation as envisaged under the aforesaid provision at the time of the termination of his services, the order of termination of his service, Ex.2 cannot be allowed to stand.

8. Before a Division Bench of this Court in Nagaur Central Co-operative Bank Ltd.'s case 1979 WLN 408, a question relating to the maintainability of the writ petition was raised. It was contended that the respondent has alternative remedy under Section 10 of the Act or Section 75 of the Rajasthan Cooperative Societies Act, 1965. It was observed as follows:

The making of reference under Section 10 of the Industrial Disputes Act is exclusively within the discretion of the Government and the respondent cannot claim this relief as a matter of right. As regards the alternative remedy by way of arbitration under Section 75 of the Act, the dispute has to be referred to the Registrar of the Co-operative Societies for decision, but in the present case, it is the Registrar's order which is being called in question and, therefore, the remedy of arbitration under Section 75 of the Act cannot be of any avail to the respondents.

It was held in N. Sundaramony's case 1973 (2) LLJ 551 that where the breach of the provisions of Section 25F of the Act is found, the impugned order is invalid and void in Jaw and writ petition is a proper remedy. The rule that there is an alternative remedy, the High Court will not interfere under Article 226 is only a rule of discretion and expediency and not one of jurisdiction or limitation on the power of the High Court. In view of the fact that the orders Ex. 3 and Ex. 4 under challenge are invalid and void orders, bar of alternative remedy should not come in the way of the petitioner to get the reliefs prayed for by him in the petition under Article 226 of the Constitution. So far as Premier Automobiles' case : (1975)IILLJ445SC is concerned, what was held amongst others was that if the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. From this authority, it cannot Be inferred that where the requirement prescribed by Section 25F of the Act is a condition precedent for the retrenchment of the workman and non-compliance with the condition renders the retrenchment invalid and in operative, the writ petition should not directly be entertained. I am, therefore, of opinion that in the facts and circumstances of the case, the bar of alternative remedy cannot be invoked and the reliefs can be granted to the petitioner in the petition under Article 226 of the Constitution. The preliminary objection is, therefore, over-ruled.

9. This brings me to the examination of the merits of the writ petition. Mr. M.R. Singhvi, learned Counsel for the petitioner submitted that the petitioner had to his credit a continuous service of 2 years and 7 months (period of more than 240 days), that Northern Railway is an industrial establishment within the Act and the petitioner is a workman and that the services of the petitioner have been terminated without giving any retrenchment benefit as required by Section 25F(b)of the Act, namely, compensation equivalent to 15 days average pay for every completed years of continuous service or any part there of in excess of six months though the petitioner was entitled for that. The order Ex. 3 and subsequent order Ex. 4, contended the learned Counsel, are null and void and should be quashed, for, the condition precedent for retrenching the services under Section 25F of the Act have not been complied with.

10. Section 2(oo) of the Act defines retrenchment as under:

In this Act, unless there is anything repugnant in the subject or context:

(oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason what so ever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include:

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(c) termination of the service of a workman on the ground of continued ill-health.

11. It was held in State of Bombay v. Hospital Mazdoor Sabha : (1960)ILLJ251SC that the requirement prescribed by Section 25F(b) of the Act is a condition precedent for the retrenchment of the workman, and non-compliance with the said condition renders the impugned retrenchment invalid and inoperative.

12. Section 2(oo) and 25F of the Act were examined in Santosh Gupta v. State Bank of Patiala : (1980)IILLJ72SC . After over-ruling the decisions mentioned in para 13 of the report, their Lordships have expressed themselves as under:

We hold, as a result of our discussion, that the discharge of the workman on the ground 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 requirements of Section 25F had to be complied with.

13. The aforesaid two provisions of the Act were again examined in Mohan Lal v. Management, Bharat Electronics Ltd. : (1981)IILLJ70SC . In para 7 speaking for the Court, His Lordship D.A. Desai has observed as under:

Niceties and semantics apart, termination by the employer of the service of a workman for any reason what so ever would constitute retrenchment except in cases excepted in the section itself. The ex-cepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued ill-health.

14. It is clear from the aforesaid authoritative pronouncements of the Supreme Court that the expression 'termination of service' for any reason what so ever in Section 2(oo) of the Act covers every kind of termination of service except those, which are not expressly provided for by other provisions of the Act such as Sections 25FF & 25FFF. It is also clear that the requirement prescribed by Section 25F is a condition precedent for retrenchment of the workman and the non-compliance there of makes the retrenchment invalid and inoperative. In this case the petitioner is a workman under the Act. He has put in continuous service of 2 years and 7 months i.e. for a period more than 240 days. The Northern Railway is an industrial establishment under the Act. The petitioner's services were terminated vide Ex. 3 dated November 17, 1975 on the ground that be had not secured a position to come up within the vacancies arising upto May 1, 1973. In other words, the services were terminated without complying with the provisions of Section 25F of the Act because the petitioner had not secured a position to come up within the vacancies arising upto May 1, 1973. It was held in Santosh Gupta's case : (1980)IILLJ72SC that the discharge of the workman on the ground that she did not pass the test which would have enabled her to be confirmed was 'retrenchment' with in the meaning of Section 2(oo) and, therefore, the requirements of Section 25F had to be complied with. In view of this the order Ex. 3 and the subsequent order Ex 4 terminating the services of the petitioner having been passed without complying with the conditions laid down therein, are invalid and inoperative and, therefore, they have to be set aside.

15. The next question in as to what order should be passed. It was held in Mohan Lal's case : (1981)IILLJ70SC that where the termination is illegal specially where there is an in effective order of retrenchment, there is neither termination nor cessation of service and a declaration should follow that the workman concerned continues to be in service with all consequential benefits, namely, back wages in full and other benefits.

16. It was observed in Surendra Kumar v. Industrial Tribunal 1981 SCC (L&S;) 16 as under:

Striking down of an order terminating the services of workmen must ordinarily lead to the reinstatement with back wages. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to do so. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. Generally the relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but, more often than not, comparatively far greater hardship is certain to be caused to the workman if the relief is denied than to the employer if the relief is granted.

17. The petitioner is entitled to get the reliefs in accordance with the aforesaid decisions.

18. The result is that the writ petition is allowed and the order (Ex. 3) dated November 17, 1975 and (Ex. 4) dated January 3, 1976 are quashed and set aside. It is directed that the petitioner be reinstated in service with full back wages and other consequential benefits.

19. In the circumstances of the case, there will be no order as to costs.


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