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TMI Blog1973 (1) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... consolidated salary of ₹ 250/- p.m. He was recruited in March, 1960 and it was made clear to him that the post was purely temporary subject to termination with or without notice. Shri Naidu joined duty on March 15, 1960 after accepting those conditions. He later applied for the post of Overseer in the same establishment of the Ranchi Housing Project in response to an advertisement and an offer for his appointment as an Overseer was made to him on June 15, 1960, clearly stating that his appointment would continue upto March 31, 1961 though it would be extended in case his services were to be required beyond that date. This appointment was also stated to be purely temporary terminable at any time without assigning any reason and without giving any notice. Shri Naidu assumed charge of the post of Overseer on June 20, 1960. The construction and the connected residuary work relating to the Ranchi Housing Project were over by the end of the year 1966 and it was decided to wind up this project and retrench 13 workmen employed in four categories with effect from December 31, 1966 after giving notices and paying compensation to the workmen concerned. The services of three executives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that there was some shortage of steel rods. After an enquiry he was found guilty and on the recommendations of the enquiry committee he was dismissed with effect from January 13, 1965. Shri Naidu approached the Presiding Officer, Labour Court, Ranchi under Section 25 of the Bihar Shops and Establishments Act, 1963 complaining against his dismissal and the Presiding Officer on April 13, 1966 held the order of dismissal as unjustified and illegal and ordered his reinstatement. He resumed his duties on receipt of the office order on 7/10 May, 1966. But some big bosses of the management were not happy on account of his reinstatement with the result that he was again charge-sheeted on May 12, 1966 on the ground that he had falsely stated that he had passed the Senior Cambridge Examination. Shri Naidu filed a civil suit for a declaration that the proceedings initiated by the employer were mala fide. But during the pendency of that suit he was served with a retrenchment order dated June 29, 1968 purporting to be under Section 25F of the Industrial Disputes Act, 1947 (hereinafter called the Act) which, according to Shri Naidu was mala fide and unjustified. 4. According to the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the management had decided to wind up the establishment of Ranchi Housing Project with effect from March 31, 1968 and that serious attempts were made to absorb Shri Naidu but without success. The Ranchi Housing Project having been wound up the Management was fully justified in retrenching Shri Naidu. The management was also held to have made genuine and bona fide efforts to absorb Shri Naidu in other units but it did not succeed in its attempt. The plea of mala fides on the part of the management in retrenching Shri Naidu was also repelled by the Tribunal. It was also observed that he had failed to substantiate that there was any unfair labour practice or victimisation. The further point raised on behalf of Shri Naidu that the principle of first come last go or last come first go was not adhered to was also not accepted by the Tribunal. Shri Naidu's appointment being temporary terminable by the Company at any time without assigning any reason and without giving any notice was held to be an agreement contrary to the said principle and the provisions of Section 258 of the Act were held inapplicable. The submission on behalf of the management that it was for them to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held by the award to have been violated by the appellant in the present case is not attracted to the facts. The counsel questioned the legality of the view taken by the Tribunal and submitted that Section 25FFF(2) is the real provision which applies to the facts of the present case. 8. The short question thus requiring determination is whether Section 25F(b) or Section 25FFF(2) of the Act is attracted to the facts of this case. In order to appreciate the true scheme and scope of these sections it would be helpful to reproduce them : 25F. Conditions precedent to retrenchment of workmen : No workman 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 he necessary if the retrenchment is under an agreement specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sense in an existing or continuous industry by adopting a simple yard-stick of the length of service of the retrenched workmen doing away with the perplexing variety of factors for determining the appropriate relief in each case. In Hari Prasad Shiv Shankar Shukla v. A.D. Divekar [1957]1SCR121 it was held that this section was not intended by the Legislature to be applicable to bona fide closure of business. This decision led to amendment of the Act by the Parliament In 1957 Section 25FFF was inserted in order to give benefit of Section 25F to the retrenched workmen where an undertaking is closed down for any reason whatsoever . We need not refer to the amendment of Section 25FF because that section does not directly concern us. According to Sub-section(2) of Section 25FFF it is quite clear that in case of closure of the categories of undertakings as mentioned therein, no workman employed in those undertakings can claim compensation under Clause (b) of Section 25F. The language of Section 25FFF(2) is plain and unambiguous. Indeed, the learned Counsel for the respondent also did not dispute that if it were to be held in this case that the undertaking had been closed down then Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant's argument. 11. Now, under Section 25FFF(1), which creates a statutory fiction, all that Shri Naidu was entitled to, was notice and compensation in accordance with the provisions of Section 25F as if he had been retrenched. Retrenchment notice, Ex. 7, dated June 22, 1968, quite clearly complies with this requirement. On behalf of the respondent, as already noticed, it is not disputed that there has been no failure to give notice as required by Section 25F, in case Clause (b) is held inapplicable. 12. It is also clear that the respondent had not specifically raised any plea of defect in the notice given to Shri Naidu. The Tribunal, however, allowed the objection of the notice Ex. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the objection was covered by the general plea in the written statement filed on behalf of Shri Naidu, to the effect that the grounds given in the retrenchment notice were all false and cooked up. On this view the notice was held to be conditional and, therefore, invalid and Shri Naidu was held entitled to be reinstated. 13. In our view, Shri Setalvad was fully justified in submitting that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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