U.P Jal Nigam And Others v. Presiding Officer, Labour Court-Ii, U.P And Another

1. Is a notice, under the prescribed proforma, to the State Government before retrenchment of a workman mandatory? Should the retrenchment compensation be actually paid before retrenchment or tendering the amount or information to the workman to collect the amount Is sufficient compliance of the retrenchment? These, amongst the other questions, are involved in this writ petition this is how they arise.

2. Sri Ashiq All (the contesting respondent) was appointed as a helper in a pumping station on dally wages on 2-2-1990 in U.P Jal Nigam (the Nigam for short). Sub-sequently a decision was taken on 20-5-1991 by the Chairman of the Nigam that there are surplus persons working in the Nigam and persons appointed on daily wages after 31-8-1989 be retrenched. In pursuance of the decision the services of the contesting respondent was retrenched on 20-7-1991. According to the Nigam a notice was issued to the contesting respondent but could not be served as he was absent from his working place and it was pasted there (at his working place). Thereafter the notice was sent by the registered post on 21-7-1991 and retrenchment compensation was also sent by the money order on 21-7-1991. The retrenchment compensation was received by the contesting respondent on 29-7-1991. The Labour Court initially passed an ex parte award, which was set aside in an earlier writ petition filed by the Nigam. After remand, the Labour Court has again reinstated the contesting respondent on the finding that: (1) no notice as required under Section 6-N (c) the U.P Industrial Disputes Act, 1947 (the Act for short) has been sent to the State Government; (2) the order of the retrenchment has been passed by a Junior Engineer who was not the appointing authority. The Nigam and its Engineers have filed the present writ petition against this award.

POINTS FOR DETERMINATION

3. I have heard Sri Sabhajeet Yadav, learned counsel for the petitioner and Sri Haider Zaldl, learned counsel for the contesting respondent. Following points arise for determination in this case:—

(i) It is admitted that notice in the pro forma as contemplated in Rule 42 has not been sent to the State Government. Only a copy of the notice of retrenchment to the contesting respondent has been sent to the State Government. Does it invalidate the retrenchment? Is sending of a notice to the State Government in the prescribed pro forma mandatory?

(ii) The services of the contesting respondents were terminated by the Junior Engineer. Was he competent to retrench the services of the contesting respondent?

(iii) The contesting respondent was retrenched on 20-7-1991. But the retrenchment compensation was received by him on

(iv) 29-7-1991. it is valid? Should the retrenchment compensation be actually paid before retrenchment or tendering the amount or Information to collect the amount is sufficient compliance? Is retrenchment invalid on any other ground?

1. POINT: IS NOTICE TO THE STATE GOVERNMENT MANDATORY?

4. Section 6-N1. of the Act prescribes condition precedent for retrenching a workman. Substantially it is the same as Section 25-F of the Industrial Disputes Act, 1947 (the Central Act for short). These sections prescribe three conditions, which are mentioned in sub-sections (a), (b), and (c). The condition in sub-clause (c) is regarding notice in the prescribed manner to the State Government. According to Sri Haider Zaidi, learned counsel for contesting respondent, this condition of serving a notice in the prescribed manner on the State Government in sub-clause (c) is mandatory. It has not been followed in this case; merely a copy of the retrenchment notice, which was served on the contesting respondent, has been sent to the State Government. This according to him is not in the pro forma which is prescribed under rule 422 of U.P Industrial Disputes Rules, 1947 (the Rules for short). He has also cited a decision of the Supreme Court in A.K Roy v. State of Punjab . The Nigam filed an appeal before Supreme Court against the order modifying the stay order. It was dismissed bxit the hearing of the case was expedited in view of the order of the Supreme Court dated 12-10-98. AIR 1986 SC 2160 : (1986) 4 SCC 326 for the proposition that if a thing is required to be done in a prescribed manner it can be done in that manner and in no other manner. There is no dispute with this statement of proposition law but the question is, Is the condition of sending notice in the prescribed pro forma mandatory or directory only? Does its violation give any right to the workman or only to the State Government?

5. It has been held in Bombay Union of Journalist v. State of Bombay, AIR 1964 SC 1617 (the Bombay Journalist case) that condition of sending notice to the State Government under sub-clause (c) unlike clauses (a) and (b), is not a condition precedent. In this case the Supreme Court also considered the object of enacting different subclauses of S. 25-F of the Central Act, which is similar to S. 6-N of the Act. The Supreme Court opined that as far as the sub-clause (a) and sub-clause (b) were concerned, these conditions were obligatory and observed that the object which the Legislature had in mind in making these two conditions in sub-clauses (a) and (b) obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification, for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government keep itself informed about the conditions of employment in the different industries within its region. The portion in Italics is from the Bombay Journalist Case, AIR 1964 1617.

6. According to Bombay Journalist case, the purpose of clause (c) is only to give intimation to the appropriate Government about the retrenchment so that the Government may have up-to-date Information about condition of employment in different industries in the region and can take appropriate action on the same. The object of this notice is to enable the State Government to take necessary steps in a dispute between an employer and the employee. It is for the benefit of the State Government and it is for the State Government to complain about lack of this notice. The State Government has not made any complaint in this case. The purpose of the notice was merely to initiate appropriate conciliation proceedings or, if need be, refer the dispute to the Labour Court. Here both the things have been done. Neither any objection has been taken, nor can be taken by the State Government. I am not alone in taking this view. I am in company of a Division Bench decision of the Calcutta High Court in this regard C.K Dutta v. FR & Co., 1971 Lab IC 790.

7. Apart from it, a notice was sent to the State Government. Notice of retrenchment to the workmen is Annexure-6 to the writ petition. A copy of the same was sent to the State Government, Labour Department. Though it is not in the prescribed pro forma it is substantial compliance of S. 6-N (c) of the Act. If the government wanted, it could have asked for information in the prescribed pro forma subsequently. It is not a condition precedent. The termination or retrenchment order cannot be declared illegal on this ground.

2nd Point: Was Junior Engineer Competent to Retrench?

8. The Nigam has realized that surplus number of persons was working with it and because of that, it was incurring losses. In view of this the Nigam took a policy decision to retrench persons who were appointed on muster roll and daily wages after 31-8-1981. This notice (Annexure 5 to the writ petition) was filed before the Labour Court. This policy decision along with pro forma notice etc. was set to different persons for taking action. It was in pursuance of this policy decision that the junior Engineer had served the retrenchment notice on the contesting respondent. This notice was in the same pro forma, which was, sent along with the policy decision. The decision to retrench/terminate the services was that of the Nigam and the Junior Engineer had merely completed the formalities for the same. Even apart from it the Junior Engineer was competent to appoint and terminate the services of the contesting respondent. This is clear from the G.O dated 2-5-1990 issued by the Chairman of the Nigam. This G.O (Annexure 13 to the writ petition) was not filed before the Labour Court but is not disputed in the counter-affidavit. It is a document whose Judicial notice can be taken. There is no illegality in the retrenchment notice issued by the Junior Engineer.

3rd Point: Actual Payment—Tendering the Amount

9. The contesting respondent was retrenched from 20-7-91. A notice (Annexure 6 to the petition) was also given to him on the same day. This notice says that the contesting respondent was given one month salary in lieu of the notice (this is contemplated under S. 6-N(a) of the Act and the retrenchment compensation which the contesting respondent may receive. This notice was sent to the working place of the contesting respondent but he was not present there and as such the notice was affixed at that place and then the notice was sent by registered post and the entire amount, as due to him, was sent by money order on the next date i.e 21-7-91. It is admitted that the workman received this amount on 29-7-91. According to the contesting respondent, as this amount was not given to him on 20-7-91, the retrenchment is illegal.

10. One-month notice and retrenchment compensation is to be given under subclauses (a) and (b) of S. 6-N of the Act. The section says the services of workman cannot be retrenched until workman has been given one-month notice and the retrenchment compensation. In this case the retrenchment compensation was offered to him but he was not on the spot to receive it where he should have been that is why it was sent by money order on the next date. The Supreme Court in Management of D.T Undertaking v. Industrial Tribunal This case is reported in AIR 1965 SC 1503. The portion in italics is an excerpt from the judgment, while interpreting the proviso to S. 33(2)(b) of the Central Act where similar language is used has held that the proviso does not mean that the wages for one month should have been actually paid because in many cases the employer can only tender the amount before the dismissal but cannot force the employee to receive the payment before dismissal becomes effective. A single Judge of this Court in Rajendra Rai v. Nagar Mahapalika Allahabad, (1992) 2 UPLBEC 1030 in the circumstances where the Cheque was prepared but employee instead of taking it walked away then the cheque was dispatched along with covering letter, has held that this is substantial compliance of S. 6-N of the Act. Similar view has been taken by Rajasthan High Court and Bombay High Court in Moinuddin v. Union of India, 1981 Lab IC 697 and Parle Products Ltd. v. C.S Sarswati, 1981 Lab IC 704. In this case also retrenchment compensation was prepared and was sent along with notice but could not be given as the contesting respondent was not available and then it was sent on the next date by money order which the contesting respondent received. This is sufficient compliance of the S. 6-N of the Act. The retrenchment cannot be faulted on this ground.

11. There is neither any allegation nor any finding that any one Junior to the contesting respondent has been engaged by the Nigam or is working. This is also not a case that the Nigam did not have surplus workman and retrenchment was invalid on that account. There was no illegality in the retrenchment of the contesting respondent.

Conclusion

12. The present writ petition is allowed and the award dated 31-10-1996 is quashed and the retrenchment dated 20-7-1991 is upheld. This Court initially by order dated 8-7-1997 had stayed the operation of the award for a period of 8 weeks. Subsequently this order was modified and petition was admitted and the operation of the award was stayed provided the Nigam paid wages to the contesting respondent. It is made clear that in case any wages have been paid to the contesting respondent in view of the interim order, it will not be recovered from the contesting respondent. With these observations the writ petition is allowed.

13. Petition allowed.