M.C. Jain, J.
1. This writ petition is directed against the award of the Labour Court, Rajasthan Jaipur, dated 16-9-1970 on the following disputes referred to by the Government for adjudication (Ex. 8):
(1) Whether the termination of services of Shri Chhabildas Goyal on 1-2-65 (represented by Sri Ganganagar Sugar Mills Employees Union) by the management of the Ganganagar Sugar Mills Ltd., Sriganganagar is justified? If not, to what relief is he entitled?
(2) Whether Shri Chhabildas Goyal is entitled to get his increment of Rs. 6/- in the grade of 100-5-150-10-200 as Cane Inspector from 1-7-58 to 31-10-60? If so, is he entitled to claim bonus for these years, according to the revised pay?
(3) Whether Shri Chabildas Goyal is entitled to be fixed on Rs. 167/-per month with effect from 1-11-60, i.e. on introduction of the Wage Board recommendations?
(4) Whether the retrenchment of Shri Chhabildas Goyal on 3-4-58 was justified? If not, to what relief, is he entitled?
2. The petitioner No. 2 was appointed as Cane Clerk on 24-11-1956 and after a month he was promoted as Cane Inspector. Later on he was confirmed by the Director Incharge Ganganagar Sugar Mills Ltd. on 1-7-1957. The petitioner No. 2's services were terminated on 1-3-1965 without giving him any reasonable opportunity for defending himself. The petitioner No. 2 has sought that the termination order be set aside and he may be reinstated with full back wages. The petitioner No. 2 has further challenged that his retrenchment on 3-4-58 was unjustified. Disputes No. 2 and 3 have not been pressed in this writ petition.
3. As regards disputes No. 1 and 4 the case of the petitioner No. 2 is that his services were wrongfully terminated by order dated 1-2-1965, as no inquiry was held into the charge of his work being unsatisfactory and his retrenchment is illegal as none of the preconditions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') have been fulfilled. As regards his retrenchment on 3-4-1958, the case of the petitioner No. 2 is that it was also illegal, as the pre-condition of one month's notice or notice pay and the retrenchment compensation were not fulfilled. The award in respect of disputes No. 1 and 4 has been challenged in this writ petition only on the above grounds.
4. The writ petition has been resisted by the Ganganagar Sugar Mills Ltd. and a reply to the writ petition has been filed. Its case is that the petitioner No. 2 was employed only as a Cane clerk for the season and he was confirmed as Cane Inspector for the seasonal work. The undertaking has two types of persons, one class is on the regular roll of the undertaking and they are permanent employees, and, the other type is that they are permanent seasonal employees, who work in every season and if necessary their services can be retained in off season also or for a part thereof, The petitioner No. 2 belonged to the later class and he was confirmed in the seasonal category, that is, he was a permanent employee from season to season. By confirmation the petitioner No. 2 did not become employee on a regular roll, but the word 'confirmed' is used in the sense as indicated above. The General Manager dispensed with the services of the petitioner No. 2 as his work was not satisfactory. The petitioner No. 2 was taken on regular roll by Shri V.S. Sud, the then General Manager of the undertaking in pursuance of the note of Shri M.U. Menon, who was Director Incharge of the undertaking. Shri Rajkumar Goyal son of petitioner No. 2, was working as P.A. to Shri M.U. Menon. The note of Shri V.S. Sud posting the petitioner No. 2 against the permanent post also appears on the same note Annx. 2, which is dated 11-4-1957. It is in these circumstances the petitioner No. 2 was allowed to work against the only permanent post of the Cane Inspector despite the fact that there were other Cane Inspectors, who were senior to him and one of them was entitled to work on the only one post of Cane Inspector. Thereafter on the representation of Shri Dharampal, who was the senior most Cane Inspector and who was entitled to be retained on the permanent post, the matter was reconsidered and to rectify the wrong already done to other persons, it was thought necessary to dispense with the sesvices of the petitioner No. 2 thereafter only for off season. The representation of the petitioner No. 2, after consideration, was rejected. The order dispensing with the services of the petitioner No. 2 is dated 2-4-1958. The non-petitioner No. 1 further stated that the usual practice in the undertaking is that during the off season, that is, on the close of the crushing season, off-seasonal employees are paid off and they are recalled when the next crushing season starts. After the crushing season of 1957-58 the petitioner No. 2 was paid off and was recalled when the next season 1958-59 started vide Annexure C, and the petitioner No. 2 joined his duties again on 7-12-1958. This case of the petitioner No. 2 was denied that Dharmpal was working on work-charged establishment and it was stated that he was definitely senior to the petitioner, as he was already in the employment of the out-going management when the answering non-petitioner took over the undertaking first on lease on 11-12-1953 and thereafter purchased the managing agency interest in the undertaking. The grounds on which the Award of disputes No. 1 and 4 has been challenged, were denied, and, it was stated that Section 25F of the Act has no application to the petitioner's case as the petitioner was not holding any permanent post and as such had no right to be given any opportunity of hearing and the petitioner was not retrenched in 1958. He was simply paid off for the off season and was recalled in the next crushing season.
5. I have heard Shri M. Mridul, learned Counsel for the petitioner's and Shri A.K. Mathur, learned Counsel for the Management of the Ganganagar Sugar Mills Ltd., Sriganganagar, respondent No. 1.
6. Mr. Mridul, learned Counsel for the petitioners contended that the Tribunal did not examine the question that the termination of the petitioner No. 2 amounted to retrenchment. The compliance of Section 25F of the Act was not made, so the termination of the petitioner No. 2 was illegal. The labour Court simply found that the termination of the petitioner No. 2 was a 'discharge simplicitor' and the order of discharge was not punitive in character and further it observed that there was no element of surplusage and merely the use of the word 'surplus' does not suggest that there was a retrenchment of the staff and evidently the management of the undertaking did not purport to impose any punishment upon Shri Goel. The Labour, Court therefore, held that the action taken by the management of terminating the services of Shri Chhabil Das Goel was justified and legal. Shri Mridul urged that every termination involves retrenchment, so such termination has to be effected only after compliance of Section 25F of the Act. Non-compliance thereof would render the termination void and the employee is entitled to be reinstated with full back wages. In support of his contention Mr. Mridul placed reliance on a decision of the Supreme Court in Santosh Gupta v. State Bank of Patiala : (1980)IILLJ72SC . This decision undoubtedly supports the contention of Shri Mridul. The scope of the expression 'retrenchment' has been the subject of judicial decisions and the law, as it stands today, is to the effect that expression 'retrenchment includes every kind of termination. It has been held in the above decision of the Supreme Court that the expression 'termination of service for any reason whatsoever' in Section 2(oo) covers every kind of termination of service except those not expressly included in Section 25F or not expressly provided for by other provisions of the Act such as 25FF and 25FFF. In that case the discharge of the workman on the ground that the 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 requirement of Section 25F had to be complied with.
7. Shri Mathur, learned Counsel for the non-petitioner No. 1, submitted that the petitioners have not laid down the necessary foundation for the applicability of Section 25F. It was no where pleaded that the condition requisite for the applicability of Section 25F existed in the petitioners' case, that is, the petitioners have no where averred that the petitioner No. 2 has been in continuous service for riot less than one year as defined in Section 25B. Shri Mathur submitted that in Santosh Gupta's case (supra) the workman was employed in the State Bank of Patiala from 13-7-1973 till 21-8-1974, when her services were terminated. Though there were some breaks in service for a few days, those breaks were not relevant. Despite the breaks, the workman had admittedly worked for 240 days, in the year preceding 21-8-1974. Thus according to Shri Mathur, Santosh Gupta's case (supra) has no application to the present case. In this case it has not been pleaded and made out that the petitioner No. 2 had served for a period of 240 days in a year prior to his termination.
8. Shri Mathur submitted that in a writ of certiorari, the ground which has not been taken before the Tribunal, cannot be allowed to be taken for the first time in the writ petition. Mere ground' without laying down factual foundation, is no ground in the eye of law and no factual foundation was laid by the petitioner in respect of the ground of non-compliance of Section 25F. In this connection reliance was placed by Shri Mathur on Bachan Singh and Ors. v. Gauri Shankar Agarwal and Ors. : AIR1971SC1531 .
9. Shri Mridul, learned Counsel for the petitioners, submitted that when non-compliance of Section 25F was alleged by the petitioners then it was the duty of the respondent No. 1 to have challenged the ground by making an averment that the petitioner No. 2 had not served for a period of 240 days in a year preceding his termination. The burden was on the non-petitioner No. 1 to refute the ground taken by the petitioner. Shri Mridul pointed out that an argument was advanced before the Labour Court that Section 25F has not been complied with, but the learned Labour Court proceeded to consider the question on the basis that there was no element of surplusage so there was no question of retrenchment and the law, as stands now, expounded, was not given any consideration and the Labour Court examined the question only from this point of view as to whether the termination was simplicitor or by way of punishment. As a matter of fact exposition of law relating to retrenchment, as defined Under Section 2(oo), as has now taken place, was not there at the time of Award given by the Labour Court, but the ground of non-compliance of Section 25F was very much there right from the time of making of the claim by the petitioner.
10. I have considered over the rival submissions of the learned Counsel for the parties. I find force in the contention of Shri Mathur that necessary factual foundation for the plea based on Section 25F has no where been made by the petitioners. Neither such a plea has been made in the writ petition, so that the same could haye been met by the non-petitioner No. 1, nor such a plea appears to have been put forward before the Labour Court in the claim made by the petitioner No. 2. Thus, there was no occasion for the non-petitioner No. 1. to contest the question as to whether the petitioner No. 2 in fact had served for a period of 240 days in a year preceding his termination. It is significant to note that according to the non-petitioner No. 1 the petitioner No. 2 Was only a seasonal employee. He was called only during the crushing season and thereafter was paid off. It has not been stated by the learned Counsel for the petitioner that the employment during the crushing season continues for a period of more than 240 days. This case, in my opinion, cannot be disputed as is evident from the petitioner No. 2's own document Annexure-D dated 19-9-1962, wherein the petitioner No. 2 has stated that last year he was called to join his duty from 15-7-1961 to check the survey work and he is now a retainer holder. He made a request to recall him early as per last year to serve, as he has no work at present. It was on this application of Shri Goyal that he was called from 1-10-1962 to do his last year's duties, as approved by the General Manager. Shri Mridul urged that the petitioner atleast served continuously from 11-4-57 to 2-4-1958 on a permanent post. When the petitioner had served at any time prior to his termination, then this period can be reckoned as a period of continuous service attracting the applicability of Section 25F. I am unable to agree with this contention of Shri Mridul. The mistake of posting of Shri Goyal on a permanent post was rectified and he was brought back in the second category of employees, that is, in the category of seasonal employes and after 2-4-1958 Shri Goyal continuously remained in the employment of non-petitioner No. 1 as a seasonal employee. Unless the seasonal employee satisfies the condition of Section 25F regarding continuous service for a period of not less than one year, the other conditions of Section 25F will not be applicable. I, therefore, do not find force in the contention of Shri Mridul that the service of the petitioner No. 2 has been terminated in violation of the provision contained in Section 25F of the Act.
11. Shri Mridul next contended that on the showing of non-petitioner No. 1 the status of Shri Goyal is that of a permanent seasonal employee. The word 'permanent' signifies that Shri Goyal had to right to the post and the management is under an obligation or duty to recall when the crushing season starts. The services of the petitioner No. 2 was not purely temporary. Had the services of the petitioner No. 2 were temporary, no inquiry would have been conducted in the past and no warning would have been given. This case too appears to be a new one and the basis thereof appears to be the pleading of non-petitioner No. 1. What are the respective rights and obligations of the workman and the employer, when the workman is a seasonal employee, have neither been pleaded, nor proved nor established. Simply by the nomenclature, as given by the non-petitioner No. 1, that the petitioner No. 2 was in the category of permanent seasonal employees, it cannot be found that he had a right to the post as such and his services cannot be terminated without affording him an opportunity of being heard and in the absence of such an opportunity the order of termination would be a punitive one. In order to adjudge such a question a specific case is required to be pleaded, so that the same can be met by the other side. It cannot be denied that Chhabildas Goyal was a seasonal employee. I have not been referred to any service rules, which may provide for the rights of such an employee and the obligation on the employer in relation to him. Thus, the second contention, as well has no force.
12. It is next contended that Shri Chhabil Das Goyal was retrenched vide order dated 7-4-1958 (Ex. 2) to be operative from 3-4-1958. It was urged by Shri Mridul that the learned Labour Court simply disposed of this question by stating that Shri Goyal was taken back in service and the matter was finalised before the Conciliation Officer, so it need not go into the question whether the termination of the service of Shri Chhabildas Goyal by way of retrenchment on 3-4-1958 was justified. In this connection Shri Mathur contended that Shri Goyal was recalled and was asked to join his duty order dated 6-12-1958. After rectification of the mistake, Shri Goyal was brought back to his original position of the seasonal employee and was recalled in December 1958. Shri Goyal thereafter did not challenge, that matter and for the first time it was agitated after his termination in the year 1965. It was submitted that it is not open to Shri Goyal to challenge the same after a lapse of more than seven years. Besides that, there was no retrenchment of Shri Goyal in the year 1958.
13. As regards dispute No. 4 it is sufficient to mention that when Shri Goyal was recalled and was asked to join his duties, question of any retrenchment does not arise. What was actually done, was that instead of being kept on a regular roll, he was brought back on the roll of seasonal employee and so after dispensing with the service with effect from 3-4-1958 he was called back in December 1958. The order dated 6-12-1958 (Annexure C) is in these terms that Chhabildas Goyal, Cane Inspector, is hereby recalled and asked to join his duty. It does not appear to be a case of new appointment or employment. The language used in this order is indicative of the fact that he continues to have a status of a seasonal employee, so he was recalled and asked to join his duty. It may be that the order dated 6-12-1958 has been passed in pursuance of compromise before the Conciliation Officer, still the position remained that he has been treated to be a seasonal employee. It has come in the statement of Vidhya Sagar, Chief Executive Officer of non-petitioner No. 1 (Annexure-E), that after issuance of the order dated 2-4-1958 (Annexure-B) a complaint was made by Shri Goyal to the Labour Department that his services had been terminated. Thereafter he explained the position to the Labour Officer that in fact Goyal's services have not been terminated. On the contrary he has been paid of and after start of the season he will be recalled. He gave in writing to this effect to the Labour Officer Thereupon the Labour Department dropped the case and the complaint made by Shri Goyal was filed. It appears that the order dated 2-4-1958 does not involve the element of retrenchment or termination. Thus, Section 25F of the Act is not attracted in connection with this order. More over, the matter stood settled as far back as on 6-12-1958 and the claim even if is found to have any substance, though there is none, is highly belated.
14. No other point has been pressed before me.
15. As all the contentions advanced before me by Shri Mridul, learned Counsel for the petitioners, have failed, so this writ petition deserves to be dismissed.
16. In the result, this writ petition is hereby dismissed with no order as to costs.