B.C. Basak, J.
1. In this application under Article 226 of the Constitution of India the petitioner is praying for appropriate writs directed against an Order of Reference made and dated 4th February, 1978, the order of the Tribunal dated 27th June, 1979 and an award made thereon on the 29th October, 1979.
2. The facts of this case which are relevant for the purpose of this case are shortly as follows :-The petitioner-company carries on the business of grinding minerals such as lime stone, dolomite and china clay from lump to powder. According to the petitioner from 1973 the petitioner's business has been adversely affected by various factors. Some incidents of the same have been given in the petition. According to the petitioner it was compelled to declare a lay-off in its factory at Belghoria with effect from the 25th of March, 1976, which was challenged by the workers of the petitioner. Thereafter there was a memorandum of settlement signed on the 1st June, 1976. It is alleged that thereafter there was a negotiation pursuant to such settlement. Thereafter the notice of retrenchment was issued in respect of one Dhiren Chakraborty who did not accept such retrenchment. According to the petitioner it was compelled to retrench the members of its staff numbering two (2) at the said factory. Thereafter Dhiren Chakraborty and the third respondent purported to dispute the retrenchment and by an order of Reference dated the 4th February, 1978, in exercise of the power conferred by Section 10 of the Industrial Disputes Act, 1947 the State Government referred the said dispute to the Second Industrial Tribunal. The issues are as follows:
1. Whether the retrenchment of Shri Dhiren Chakravarti is justified What relief, if any, is he entitled to
3. After receipt of the Order of Reference notices were issued by the Tribunal to the parties fixing 10th April, 1978, for appearance when the petitioner-company appeared. Thereafter the union appeared on behalf of the workman and filed its written statement. Thereafter the petitioner-company filed its written statement. Thereafter the union filed a petition for hearing on a preliminary point first before going into the merits of this case. By an Order No. 14 dated the 27th June, 1979, this prayer of the union for hearing on the preliminary point was allowed and the Tribunal directed the preliminary hearing on the preliminary issue reading as follows:
Whether the conditions precedent for retrenchment as required under Section 25F of the Industrial Disputes Act, 1947, have been complied with?
4. The case was taken up for preliminary hearing and thereafter continued and evidence was concluded and arguments were also heard on the preliminary points. The petitioner-company gave evidence as to justiciability of retrenchment and as to whether it was compelled to effect such retrenchment. The Tribunal after considering the materials before it came to the conclusion that the notice of retrenchment dated the 10th September, 1976, being tendered on the 14th September, 1976, when the retrenchment was effected since the 11th September, 1976 and there being no offer of retrenchment benefit by the petitioner-company to the concerned workmen simultaneously or with such time lag or intervening circumstances as to show any nexus or connection between the two, the Tribunal must hold that the petitioner-company has not compiled with the provisions of Section 25F (a) and (b) of the I.D. Act and on its failure to comply with the mandatory provisions, which are conditions precedent to the retrenchment of the concerned workmen, is illegal, invalid and void. Accordingly the Tribunal held that it is well-established in the industrial disputes that when the retrenchment is illegal, invalid and void, the retrenchment cannot be justified. It concluded as follows:
So I find that the retrenchment of the concerned workman by the opposite party - company is not justified and the first part of the issue was answered in the negative. The relief under such circumstances would be reinstatement and back wages as if there was no retrenchment in law against the concerned workman and he was all along continuing in service. The opposite party-company, therefore, would allow the petitioner-workman to join his duties immediately and shall pay him back wages since the 11th September, 1976 till the date he joins, within one month from the date of publication of this award. This is my award.
5. Being aggrieved by the same the petitioner has preferred this application. A rule was issued and directions were given for expeditious hearing of this matter. Mr. Chaudhury, learned Counsel appearing in support of the rule has made a three-fold contention before me. He has not challenged before me the finding of the Tribunal that there was non-compliance with the provisions of Section 25F but he has submitted that that is not the end of the matter. The issue was whether the retrenchment was justified. Therefore, even if the Tribunal came to the conclusion that the retrenchment was in violation of the provisions of Section 25F of the Act, still it was obligatory on the part of the Tribunal to go into the merits of the case as to the question of fact whether such retrenchment was justified or not. He has submitted that even if the retrenchment is not in compliance with the provisions of the Act, still it is open to the Tribunal not to direct reinstatement but to direct payment of certain wages and for that purpose it is necessary for the Tribunal to go into such question and come to the conclusion as to whether such retrenchment was justified in fact as contended by the petitioner-company irrespective of non-compliance with the provisions of the Act. In this connection he has referred to me the following decisions:
J.K. Cotton Spinning and Weaving Mills Co, Ltd. v. Labour Appellate Tribunal of India 1963-II L.L.J. 436; B.N. Elias and Co. Pvt. Ltd. v. Fifth Industrial Tribunal of West Bengal 1965-II L.L.J. 324; Management of Penquine Textiles Ltd. v. Labour Court, Hyderabad (1975) Lab. I.C. 526 (Andh, Pra.); Workmen of Subong Tea Estate v. Outgoing Management of Subong Tea Estate 1964-I L.L.J. 333.
6. He submitted that the question of justiciability of retrenchment involves both the question of fact and also the question of law.
7. Mr. Chakraborty appearing for the Union has drawn my attention to the decision of a single Judge of this Court in the case of C.R. Rev. No 11826 (W) of 1976-B.M. Gupta v. State of West Bengal 1979-I L.LJ. 168.
8. Before I deal with these submissions I may set out the relevant provisions of Section 25F of the said Act which is as follows:
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.)
In my opinion this question is now well-settled. It has been held by the Supreme Court in various decisions including some of the decisions cited before me that the provision of Section 25F is mandatory in nature. If there is any non-compliance with the said provision, the order becomes illegal. If the order becomes illegal, then the position is as if there is no such order at all and in such a case such retrenchment cannot be given effect to at all in any manner whatsoever. If the retrenchment is in violation of the provisions of Section 25F of the Act, the employee concerned remains an employee of the company and the question of awarding some compensation regarding his wages without granting reinstatement cannot and does not arise. I would have dealt with this matter in details and referred to various decisions, had it not been for the fact that this point has already been covered in detail by the judgment of G. N. Ray, J., in the case referred to above, I fully agree with each and every reasoning of His Lordship and that is also my own view. However, I refrain from setting out my own view separately because that will be mere repetition of the reasoning given by His Lordship. So far as the decision of the Supreme Court in the case of Delhi Cloth and General Mills Co. Ltd. v. Shambu Nath Mukherji 1978-I L.L.J. I; is conerned, I ought to point out that in that case the Supreme Court pointed out that any order of retrenchment in violation of these two peremptory conditions as specified in Section 25F (a) and (b) is invalid. If it is invalid, then he is still in service. The same was the observation made in the case of Workmen of Subong Tea Estate v. Outgoing Management of Subong Tea Estate 1964-I L.L.J. 333 where the Supreme Court pointed out that the retrenchment of the workmen being invalid in law cannot be said to have terminated the relationship of employer and employee. The relationship of employer and employee not being terminated and the retrenchment being invalid being in violation of the mandatory provisions of law, the question of granting compensation in lieu of reinstatement does not arise.
9. Pursuant to my direction certain payments have been made by the petitioner-company to the workmen concerned without prejudice to its rights and contentions. I direct that such payments already made would be adjusted against the claims of the workmen concerned.
10. For the aforesaid reasons, I dismiss this application and discharge the rule. Interim order, if any, is vacated.
11. There will be no order as to costs.