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TMI Blog2010 (4) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... ct from 11.10.1995. He was paid monthly wages at the rate of ₹ 1900/-. His service was discontinued with effect from 25.4.1998. The dispute raised by the appellant was referred by the Government of Haryana to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short, "the Act"). In the statement of claim filed by him, the appellant pleaded that he had worked for a period of more than two years and six months; that his service was discontinued with effect from 25.4.1998 without giving him notice or pay in lieu thereof or retrenchment compensation and without complying with mandate of Section 25N of the Act. Another plea taken by the appellant was that no seniority list of the workers had been prepared and persons junior to him, namely, Ramesh, Amarjit, Jagbir and Rohtash were retained in service. In the written statement filed by the respondent, it was pleaded that the services of the appellant and other similarly situated employees were discontinued because the State Government had issued instructions to that effect in the wake of financial crisis. It was further pleaded that the workman was offered compensation along with the letter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as casual labour from December 1995 to 25.4.1998 with breaks and that he was given retrenchment compensation with letter Ex. M-1 dated 25.4.1998, which he refused to accept. Shri Ram Chander further stated that the amount of compensation was sent to the appellant at his home address by demand draft Ext. M-3 dated 25.4.1998. According to Shri Ram Chander, no person junior to the appellant was retained in the department. However, no evidence was produced by the respondent to corroborate the oral assertion of Shri Ram Chander that the appellant had refused to accept the compensation. 5. After considering the pleadings and evidence of the parties, the Labour Court recorded the following conclusions: (1) That the total number of employees in the department was about 400 and, therefore, compliance of Section 25N of the Act was mandatory before terminating the services of the workman. (2) From Ext. M-4 it is clear that the workman received the amount of compensation on 18.8.1998, i.e., after the months and 23 days. (3) The plea of the management that compensation was refused by the workman is not supported by any proof or other evidence. (4) The workman is entitled to reinstateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant on the date of termination of his service and he refused to accept the same but no evidence was produced to substantiate the same. Learned Counsel further argued that the alleged violation of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution has no bearing on the appellant's case because appointment of casual, daily wage and monthly rated employees do not require advertisement of the post or consideration of the competing claims of all eligible persons. Learned Counsel pointed out that the respondent had not pleaded either before the Labour Court or the High Court that the appellant's initial engagement/employment was contrary to any statute or Articles 14 and 16 of the Constitution and argued that in the absence of a specific plea having been taken in that regard, High Court was not at all justified in setting aside the award of reinstatement on the specious ground that the appellant's entry in the service was not legal. 8. Ms. Sukhda Pritam, learned Counsel for the respondent argued that the High Court did not commit any error by setting aside the award of the Labour Court because the finding recorded by it on the issue of violation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to issue writ of certiorari under Article 226 of the Constitution - Syed Yakoob v. K.S. Radhakrishnan (1964) 5 SCR 64, Municipal Board, Saharanpur v. Imperial Tobacco of India Ltd. (1999) 1 SCC 566, Lakshmi Precision Screws Ltd. v. Ram Bhagat (2002) 6 SCC 552, Mohd. Shahnawaz Akhtar v. Ist ADJ Varanasi JT 2002 (8) SC 69, Mukand Ltd. v. Mukand Staff and Officers' Association (2004) 10 SCC 460, Dharamraj and Ors. v. Chhitan and Ors. 2006 (11) SCALE 292 and Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd. 2008 (12) SCALE 582. 11. In Syed Yakoob v. K.S. Radhakrishnan (supra), the Constitution Bench of this Court considered the scope of the High Court's jurisdiction to issue a writ of certiorari in cases involving challenge to the orders passed by the authorities entrusted with quasi judicial functions under the Motor Vehicles Act, 1939. Speaking for majority of the Constitution Bench, Gajendragadkar, J. observed as under: ...A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be terminated otherwise than by way of punishment or in accordance with the express terms incorporated in the order of appointment, read as under: 25B. Definition of continuous service. - For the purposes of this Chapter,-- (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer -- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity - State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay (1964) 6 SCR 22, State Bank of India v. N. Sundara Money (1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Management of M/s. Bharat Electronics Ltd. (1981) 3 SCC 225, L. Robert D'Souza v. Executive Engineer, Southern Railway (1982) 1 SCC 645, Surendra Kumar Verma v. Industrial Tribunal (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/ engagement by way of retrenchment without complying with the mandate of Section 25F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service. The workman was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. Manifestly, Section 25F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with Section 25F, we need not consider the other points raised by the learned Counsel. 15. In State Bank of India v. N. Sundara Money (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25F(b). 16. The legal position has been beautifully summed up in Pramod Jha v. State of Bihar (supra) in the following words: The underlying object of Section 25F is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent's assertion that the compensation was offered to the appellant on 25.4.1998 and he refused to accept the same, there could be no justification for not sending the demand draft by post immediately after the appellant's refusal to accept the offer of compensation. The minimum which the respondent ought to have done was to produce the letter with which draft was sent at the appellant's residence. The contents of that letter would have shown whether the offer of compensation was made to the appellant on 25.4.1998 and he refused to accept the same. However, the fact of the matter is that no such document was produced. Therefore, we are convinced that the finding recorded by the Labour Court on the issue of non- compliance of Section 25F of the Act was based on correct appreciation of the pleadings and evidence of the parties and the High Court committed serious error by setting aside the award of reinstatement. 19. The judgment of the Constitution Bench in Secretary, State of Karnataka v. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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