Lachman Das v. Indian Express Newspapers (Bombay) Pvt. Ltd.

V.S Deshpande, J.:— By this writ petition the petitioners seek to impugn the legality of the award dated January 17, 1976 made by the Additional Labour Court, Delhi on two conflict in grounds, namely, (i) that the termination of their services by the respondent-employer was illegal because it was mala fide and an unfair labour practice and a device to deprive the petitioners all the benefits of permanent employment and (ii) that the said termination amounted to retrenchment and was invalid because the condition precedent requiring payment of retrenchment compensation at the time of retrenchment was not complied with.

2. The facts found by the Additional Labour Court are that the petitioners were employed specifically for the purpose of doing the work in connection with the printing and publication of ‘American Reporter’. This work was given to the employers of the petitioners on a contract basis. When the contract came to an end this work also came to an end and therefore the services of the petitioners were no longer needed by the employers. The petitioners were employed for fixed periods of one year at a time and when the last period of one year came to an end their services automatically came to an end.

3. On these facts it was arguable that the termination fell within the definition of ‘retrenchment’ in Section 2(oo) of the Industrial Dispuets Act, 1947. As the retrenchment compensation was not paid to the petitioners at the time of the retrenchment as required by Section 25-F(b) of the Act, the petitioners could have challenged the termination on that ground and the Additional Labour Court could have upheld that challenge. Unfortunately the stand taken by the petitioners from the very beginning was that the termination of their services was mala fide and by way of an unfair labour practice the petitioners never took the stand that the termination was by way of retrenchment. The reference of the industrial dispute was made to the Additional Labour Court by the Government on the representation of the petitioners that the termination of their services was ‘illegal, unwarranted and mala fide’. The representation dated March 30, 1973 by them alleged that they were victimised because of their union activities. Because of these allegations the terms of reference were worded as follows:—

“Whether termination of service of the following workmen (namely, the petitioners and some others) is illegal and/or unjustified and if so, to what relief are they entitled and what directions are necessary in this respect?

4. Shri Madan Mohan, counsel for the petitioners before us contended that the word ‘illegal’ in the reference could cover any ground of illegality including the ground that the termination was really by way of retrenchment but was illegal because of non-compliance with Section 25-F(b). He further argued that the Additional Labour Court could have considered the question whether the termination amounted to retrenchment and was invalid for non-compliance with Section 25-F(b). In our view the word ‘illegal’ has a very wide significance. Considered in isolation, it is vague for, the termination of employment may be illegal for different and even conflicting reasons. Therefore the meaning of the word ‘illegal’ has to be understood in the context of the allegations of facts constituting the particular kind of illegality pleaded. It would follow that the word ‘illegal’ so construed according to context would not include some meaning of illegality which was not pleaded and which was contrary to the pleading. The definition of ‘retrenchment’ in Section 2(oo) includes every termination excepting a termination inflicted as a punishment by way of disciplinary action and some other kinds of termination. The allegations of the petitioners that they were victimised because of their union activities and participation in the strike meant that they were really punished by the employer by way of disciplinary action. Therefore the meaning of termination of services alleged by the petitioners was outside the definition of ‘retrenchment’. Indeed the termination by way of disciplinary action as a punishment is directly conflicting with termination by way of retrenchment. The former is by way of punishment while the latter is in the interest of economy or because the employer did not need the services of the petitioners who had become surplus after the contract for the printing of the American Reporter which had been enjoyed by the employer came to an end.

5. The question, therefore, is whether the Additional Labour Court could have been expected to consider whether the termination was bad because it was by way of retrenchment even though the pleading by the petitioners was that the termination was bad because of mala fides and unfair labour practice.

6. The law is well settled that no amount of evidence can be looked upon a plea which was never put forward. Siddik Mahomed Shah v. Mst Saran (1).

7. The reason is that a party cannot be allowed to benefit himself from such evidence which was at a variance with his pleading. If he were allowed to do so, the opposite party would be taken by surprise Nagubhai Ammal v. B. Sharma Rao (2). Even if therefore the petitioners themselves had wanted to turn round and ask the Additional Labour Court to hold that the termination of their services was by way of retrenchment, they could not have been allowed to do so. Afortiori, the Additional Labour Court of its own accord could not have so held in the absence of such a stand being taken by the petitioners.

8. The next question is whether the petitioners can be allowed to take up this stand in the writ petition. There are two objections to their doing so. Firstly, the relief sought by the petitioners is in the nature of certiorari. It has to be based on the record of the Additional Labour Court. Since the question of retrenchment did not figure in the said record, it would be unfair to the Additional Labour Court that its award should be quashed on a ground which had not Seen raised before it. Secondly the learned counsel for the petitioners before us prays that the termination should not only be quashed but the petitioners should also be reinstated with entitlement to receive back wages from the date of the termination. They thus want to be paid their wages for more than four years though during that period they did not work for the employer. Their position in this respect is similar to those petitioners who approach this Court under Article 226 too late without justification for delay. Such a delay on the part of a civil servant has been held by the Supreme Court to be fatal to the success of his writ petition because of his attempt to get arrears of salary for the period for which he has not worked for the employer Kamini Kumar Das Choudhury v. State of West Bengal (3). The delay on the part of the petitioners to raise the question of retrenchment from 1972 to 1976 cannot be condoned because they are thereby seeking to set an unfair advantage of being paid for four years without having done any work for the employer. If the petitioners wanted that the termination of their services was an illegal retrenchment then they should have taken up that stand. If the Additional Labour Court had upheld that stand then there would have been some justification for saddling the employer with the wages for the period for which they did not work State Bank of India v. M. Sundramani (4). Alternatively the petitioners could have simply applied under Section 33(c) of the Industrial Disputes Act, 1947 for payment of retrenchment compensation calculated in accordancee with Section 25(b) of the said Act. Unfortunately they did not pursue these proper remedies but took up a wrong course of action. We cannot help them if they fail in it. Even now the petitioners may apply for payment of retrenchment compensation under Section 33-C and succeed in getting it if they can satisfy the appropriate authority that the delay in making such application was due to the time which they have spent in getting the industrial disputes referred for adjudication and then the time spent in adjudication proceedings and in filing the writ petition to this court and that this was sufficient cause for the condonation of delay.

9. For these reasons, the writ petition is dismissed in limine.