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Sivanandam (S.) Vs. Press Superintendent, Southern Railway, and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1969)IILLJ373Mad
AppellantSivanandam (S.)
RespondentPress Superintendent, Southern Railway, and anr.
Cases ReferredSupreme Court In State of Bombay and Ors. v. Hospital Mazdoor Sabha and Ors.
Excerpt:
.....writ of certiorari to quash the order of retrenchment dated 22 november 1966 passed by respondent 1 herein, or for any other appropriate writ of like nature and for passing such further or other consequential order or direction. the notice dated 22 november 1966 which i have already extracted clearly refers to section 25f(c) of the act. further, the records produced by the respondents clearly show that the compensation paid to the petitioner on 7 february 1967 was only retrenchment compensation and not ex gratia payment as contended at one place in the counter-affidavit. if the amount paid on 7 february 1967 is retrenchment compensation to which the petitioner is entitled, then it clearly follows that the petitioner's service had not been validly retrenched in accordance with law as..........afternoon of 22 december 1966 pursuant to the said notice. on 7 february 1967, the petitioner was paid retrenchment compensation. it is thereafter that the petitioner has filed the present writ petition praying for the issue of a writ of certiorari to quash the order of retrenchment dated 22 november 1966 passed by respondent 1 herein, or for any other appropriate writ of like nature and for passing such further or other consequential order or direction. the case of the petitioner is that under section 25f of the industrial disputes act, 1947 (hereinafter referred to as the act), the condition precedent to an order of valid or effective retrenchment is the compliance with the requirements of clauses (a) and (b) of that section. that section states:no workman employed in any industry,.....
Judgment:
ORDER

M.M. Ismail, J.

1. The petitioner herein was employed as a khalasi, starting from 15 June 1964, in the office of the Southern Railway Press for different periods, with intermittent discharges. Finally the petitioner was accorded a temporary status from 1 June 1966, since he was continuously in service from 1 December 1965. Afterwards by a notice dated 22 November 1966, the petitioner was informed that Ms services would not be required with effect from 22 December 1966. Since the nature of the dispensing with the services of the petitioner is itself the subject-matter of the controversy, it is desirable to set out this notice in full.

Name of the employer.--M.S. Rao. Dated 22 November 1966.

To S. Sivanandam, casual labourer, I.T. No. E. 1362, through F.D.

[Subject--Employment of casual labour-Termination of service.

1. Your services will not be required with effect from 22 December 1966 (afternoon) due to completion of work/expiry of sanction.

2. You are hereby given a month's notice of termination in terms of Clause (c) of Section 25F of the Industrial Disputes Act, 1947, and Rule 76 of the Industrial Disputes (Central) Rules, 1957.

3. You are required to return one copy of this duly acknowledged.

Signature--M.S. Rao.

Designation--Press Superintendent.

Station--Royapuram.

2. The petitioner was not entertained in service from the afternoon of 22 December 1966 pursuant to the said notice. On 7 February 1967, the petitioner was paid retrenchment compensation. It is thereafter that the petitioner has filed the present writ petition praying for the issue of a writ of certiorari to quash the order of retrenchment dated 22 November 1966 passed by respondent 1 herein, or for any other appropriate writ of like nature and for passing such further or other consequential order or direction. The case of the petitioner is that under Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the condition precedent to an order of valid or effective retrenchment is the compliance with the requirements of Clauses (a) and (b) of that section. That section states:

No workman employed in any industry, who has been in continuous service for not less than one year under an employer, shall be retrenched by that employer until

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice wages for the period of the notice:

provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;(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; and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the official gazette.

3. The Supreme Court in State of Bombay and Ors. v. Hospital Masdoor Sabha and Ors. 1960 I.L.J. 251 has held that, having regard to the fact that the words used in Section 25F(b) are mandatory and their effect is plain and unambiguous, it could not be contended that the retrenchment effected without complying with the provisions of Section 25F would not be invalid. The same view has been repeatedly affirmed by the Supreme Court in subsequent decisions. It is on the basis of the law so laid down by the Supreme Court that the petitioner contends that, since the retrenchment compensation was paid only on 7 February 1967, not on 22 December 1966, there has been no valid retrenchment and that he continues to be in service. If the notice dated 22 November 1966 is a notice with reference to Section 25F(a) of the Act, the petitioner's case is unanswerable and there could be no answer to the contention that he has not been validly retrenched. In the counter-affidavit filed on behalf of the respondents at different stages different stands have been taken. At one place there is an averment that the petitioner's services automatically came to an end on the expiry of the sanction for the work for which he had been engaged. In another place, it is stated that there is no contravention of Section 25F of the Act and that the action was taken in accordance therewith. Consequently no useful purpose will be served by relying upon the counter affidavit filed on behalf of the respondents. There are features which indisputably make it clear that the petitioner's services were retrenched or purported to be retrenched under the terms of Section 25F of the Act. The notice dated 22 November 1966 which I have already extracted clearly refers to Section 25F(c) of the Act. No doubt, the reference to the notice under Section 25F(c) was somewhat inappropriate and incongruous, because that notice is intended to be given to the appropriate Government or the authority specified by that Government for the purpose and it is only the notice under Section 25F(a) that is meant for the petitioner. Nonetheless the reference to Section 25F in the notice itself is sufficient to show that the attempted retrenchment of the petitioner comes within the scope of Section 25F of the Act. Further, the records produced by the respondents clearly show that the compensation paid to the petitioner on 7 February 1967 was only retrenchment compensation and not ex gratia payment as contended at one place in the counter-affidavit. If the amount paid on 7 February 1967 is retrenchment compensation to which the petitioner is entitled, then it clearly follows that the petitioner's service had not been validly retrenched in accordance with law as interpreted by the Supreme Court. Hence, it follows the services of the petitioner had not been validly retrenched and the petitioner must be deemed to have been in service.

4. Sri B.T. Seshadri, the learned Counsel for the respondents, advanced one argument. In an identical situation if the respondents had not been the Government but only a private employer, the petitioner would not be able to approach this Court under Article 226 of the Constitution of India, that he would have to seek the appropriate remedy open to him under the provisions of the Industrial Disputes Act and that therefore I should not entertain the present writ petition. The question is not one of the maintainability of the writ petition, but one of discretion that I should exercise. It is not the case of the learned Counsel for the respondents that any provision in the Industrial Disputes Act bars the Jurisdiction of this Court under Article 226 of the Constitution of India and as a matter of fact no statute can bar such Jurisdiction. All that the learned Counsel contends is that, because the petitioner can have adequate remedy under the provisions of the Industrial Disputes Act, this Court should not exercise its discretion under Article 226 of the Constitution in favour of the petitioner. In view of one consideration I think that this is a proper case in which I must entertain this writ petition and deal with the case put forward by the petitioner. The facts referred to by me clearly show that the purported retrenchment of the petitioner la not valid. When the conclusion is so patent, it is too much to contend that this Court should not, in its discretion, give any relief to the petitioner. Notwithstanding this view of mine, for one reason I am unable to allow the writ petition, in form. As I pointed out already, the petitioner has prayed for the issue of a writ of certiorari to quash the notice dated 22 November 1966. That notice was in terms of Section 25F(a) of the Act and I am unable to see any illegality in the notice itself. The only complaint of the petitioner is that on 22 December 1966 on which date the notice-period expired and on which date the petitioner was refused work, the petitioner ought to have been paid retrenchment compensation and he has not been really so paid. This is an event that took place subsequent to the notice dated 22 November 1966, and, therefore that even would not retrospectively invalidate the notice dated 22 November 1966. Therefore, In form, I am not Issuing a writ quashing the notice dated 22 November 1966, but, at the same time, I declare that the purported retrenchment of the petitioner is not valid and the petitioner must be deemed to have continued in service without his services having been terminated pursuant to the notice dated 22 November 1966. Whoever might have been responsible for this default or negligence In the office of the respondents, certainly it has caused heavy loss to the public exchequer In the form of the salary which the respondents have to pay to the petitioner for the period from 23 December 1966 till fresh action, if found necessary, is taken in accordance with law, and the consequential enhanced compensation they may have to pay. It is all the stranger still because by a communication dated 19 July 1960, the Divisional Superintendent, Madras Division, Personnel Branch, Madras-3, had invited the attention of all the senior subordinates to the decision of the Supreme Court In State of Bombay and Ors. v. Hospital Mazdoor Sabha and Ors. 1980 I.L.J. 251 (vide supra) holding that the payment of retrenchment compensation is a condition precedent to the valid retrenchment, and requested that the condition prescribed by Section 25F of the Act be strictly adhered to in every case of retrenchment.

5. Under these circumstances, this writ petition praying, as it does, for the issue of a writ of certiorari to quash the notice dated 22 November 1966 is dismissed in form, but In its place I declare that the purported retrenchment of the petitioner is not valid.

6. There will be no order as to costs.


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