SIVANANDAM S Vs. PRESS SUPERINTENDENT SOUTHERN RAILWAY

JUDGEMENT

(1.) THE petitioner herein was employed as a khalasi, starting from 15 June 1964, in the office of the Southern Railway Press for different periods, with intermittent discharges. Finally the petitioner was accorded a temporary status from 1 June 1966, since he was continuously in service from 1 December 1965. Afterwards by a notice dated 22 November 1966, the petitioner was informed that Ms services would not be required with effect from 22 December 1966. Since the nature of the dispensing with the services of the petitioner is itself the subject-matter of the controversy, it is desirable to set out this notice in full. <FRM>JUDGEMENT_113_TLMAD0_1969Html1.htm</FRM>

(2.) THE petitioner was not entertained in service from the afternoon of 22 December 1966 pursuant to the said notice. On 7 February 1967, the petitioner was paid retrenchment compensation. It is thereafter that the petitioner has filed the present writ petition praying for the issue of a writ of certiorari to quash the order of retrenchment dated 22 November 1966 passed by respondent 1 herein, or for any other appropriate writ of like nature and for passing such further or other consequential order or direction. The case of the petitioner is that under Section 25f of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the condition precedent to an order of valid or effective retrenchment is the compliance with the requirements of Clauses (a) and (b) of that section. That section states: 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

(3.) THE Supreme Court in State of Bombay and Ors. v. Hospital Masdoor Sabha and Ors. 1960-I L. L. J. 251 has held that, having regard to the fact that the words used in Section 25f (b) are mandatory and their effect is plain and unambiguous, it could not be contended that the retrenchment effected without complying with the provisions of Section 25f would not be invalid. The same view has been repeatedly affirmed by the Supreme Court in subsequent decisions. It is on the basis of the law so laid down by the Supreme Court that the petitioner contends that, since the retrenchment compensation was paid only on 7 February 1967, not on 22 December 1966, there has been no valid retrenchment and that he continues to be in service. If the notice dated 22 November 1966 is a notice with reference to Section 25f (a) of the Act, the petitioner's case is unanswerable and there could be no answer to the contention that he has not been validly retrenched. In the counter-affidavit filed on behalf of the respondents at different stages different stands have been taken. At one place there is an averment that the petitioner's services automatically came to an end on the expiry of the sanction for the work for which he had been engaged. In another place, it is stated that there is no contravention of Section 25f of the Act and that the action was taken in accordance therewith. Consequently no useful purpose will be served by relying upon the counter affidavit filed on behalf of the respondents. There are features which indisputably make it clear that the petitioner's services were retrenched or purported to be retrenched under the terms of Section 25f of the Act. The notice dated 22 November 1966 which I have already extracted clearly refers to Section 25f (c) of the Act. No doubt, the reference to the notice under Section 25f (c) was somewhat inappropriate and incongruous, because that notice is intended to be given to the appropriate Government or the authority specified by that Government for the purpose and it is only the notice under Section 25f (a) that is meant for the petitioner. Nonetheless the reference to Section 25f in the notice itself is sufficient to show that the attempted retrenchment of the petitioner comes within the scope of Section 25f of the Act. Further, the records produced by the respondents clearly show that the compensation paid to the petitioner on 7 February 1967 was only retrenchment compensation and not ex gratia payment as contended at one place in the counter-affidavit. If the amount paid on 7 February 1967 is retrenchment compensation to which the petitioner is entitled, then it clearly follows that the petitioner's service had not been validly retrenched in accordance with law as interpreted by the Supreme Court. Hence, it follows the services of the petitioner had not been validly retrenched and the petitioner must be deemed to have been in service.