C.W.P No.10923 of 2005 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.10923 of 2005 (O&M) Date of Decision: 30.07.2009 Anil Kumar .....Petitioner Versus Executive Engineer, PWD Public Health, Div. No.2, New Colony, Gurgaon and another ....Respondents Present: Mr. Ashwani Bakshi, Advocate for the petitioner. Mr. D.S. Nalwa, Addl. A.G., Haryana. for respondent No.1. 2. C.W.P. No.1752 of 2007 Executive Engineer, PWD Public Health, Div. No.2, New Colony, Gurgaon now at Sohana .....Petitioner Versus Sh. Anil Kumar and another .....Respondents Present: Mr. D.S. Nalwa, Addl. Advocate General, Haryana. for the petitioner. Mr. Ashwani Bakshi, Advocate for respondent No.1. 3. C.W.P. No.7381 of 2007 Executive Engineer, PWD Public Health, Div. No.2, New Colony, Gurgaon now at Sohana .....Petitioner Versus Sh. Ramesh Kumar and another .....Respondents Present: Mr. D.S. Nalwa, Addl. Advocate General, Haryana. for the petitioner. None for respondent No.1. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- C.W.P No.10923 of 2005 (O&M) -2- K. KANNAN J.(ORAL) 1. All the three petitions arise out of same award and are being disposed of together by a common judgment. In C.W.P. No.10923 of 2005, the challenge is by the workman denying to him the alleged right of reinstatement and awarding to him only a compensation of Rs.1,25,000/-. C.W.P. No.1752 of 2007 is a writ petition by the management challenging the direction for compensation for the workman, who is the petitioner in C.W.P. No.10923 of 2005. C.W.P. No.7381 of 2007 is again a petition filed by the management, in so far as it directs compensation for another workman, who is not, however, before this Court challenging the denial of the relief of reinstatement. 2. The admitted case is that due to financial stringency, the Public Works Department decided to terminate the services of 300 odd workmen and sent due notices on 27.08.1997 purporting to be notices of termination and informing by the same notices that compensation in lieu of one month's period of notice and for the number of years of service that the workman had put in, as required to be paid under Section 25-F of the Industrial Disputes Act was also kept ready through demand drafts and requiring the workmen to collect the same from office. Admittedly, the demand draft or the letter was not taken by the workman in C.W.P. No.10923 of 2005 on 27.08.1997, the date when the order of termination was to take effect. 3. The Labour Court found that the termination notice that did not deliver to the workman, the amount of compensation as determined under Section 25-F on the same day when the termination was to take effect did not amount to compliance with Section 25-F and C.W.P No.10923 of 2005 (O&M) -3- observed that the termination was, therefore, bad. The Labour Court, however, did not direct reinstatement on the ground that the management had declared a policy of retrenchment due to financial stringency and that it shall be possible only to award to him compensation and granted to the workman compensation of Rs.1,25,000/- 4. Sh. Nalwa, learned counsel appearing for the management refers to Section 25-F that reads as follows:- "25F. Conditions precedent to retrenchment of workmen- 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 - (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; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]. 5. His argument was that, all that the Section required in a case where the management was also offering the amount which was calculated as per Section 25-F, was expression of an intention to the workman that the compensation as required by law was available for the workman to take. According to him, it is irrelevant when the order of termination is actually received by the workman and for the same reason, it is also irrelevant that the amount of compensation was C.W.P No.10923 of 2005 (O&M) -4- indeed received by the workman later, so long as the compensation so determined was kept available with the employer. He relies on the decision of the Hon'ble Supreme Court in Permod Jha Vs. State of Bihar 2003 2 RSJ 210 that dealt with the validity of a notice under Section 25-F and the effect of an offer of compensation. The facts detailed in the case would show that it was a case where an intimation in advance of the date of retrenchment was communicated by the management but the workman did not collect the compensation. The Hon'ble Supreme Court held in paragraphs 10 to 13 as under:- “10. .....The underlying object of Section 25-F 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 paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the workers along with one month's notice; on the contrary clause (b) expressly provides the payment of C.W.P No.10923 of 2005 (O&M) -5- compensation being made at the time of retrenchment and implication it would be permissible to pay the same before retrenchment. Payment of tender of compensation after the time when the retrenchment had take effect would vitiate the retrenchment and non compliance with the mandatory provision which has a beneficial purpose and a public policy behind would result in nullifying the retrenchment. 11. Compliance with clauses (a) and (b) of Section 25-F strictly as per the requirement of the provision is mandatory. However, compliance with clause (c) is directory, as held in Gurmail Singh and Ors. Vs. State of Punjab and Ors., (1991) 1 SCC 189 and a substantial compliance would be enough. 12. Gammon India Ltd. Vs. Niranjan Dass, (1984) 1 SCC 509, relied on by Shri Mishra, the learned senior counsel for the appellants, has no application to the facts of the present case. There the notice under Section 25-F (a) states the reason for retrenchment as “due to the reduction of the volume of work of company as a result of the recession”. However, the real reason was closure of company's Delhi office and there was not even a whisper in the notice of this real reason and the same was sought to be disclosed by leading evidence before the Industrial Tribunal which was not countenanced by this Court. 13. In Gurmail Singh's case (supra) a three-judge Bench of this Court examined the question of compliance of C.W.P No.10923 of 2005 (O&M) -6- Section 25-F(b). It was contended on behalf of the workers that the State had not furnished the details of the amounts of compensation determined in the case of each employee and that the State had not taken steps to deliver the amount in respect of each employee at his doorstep by the relevant date. It was urged that the tender of compensation under Section 25F, in order to be valid, should be of the precise amount and should be made simultaneously with termination of the service. It was found that the bank drafts in respect of individual employees were dispatched in time so as to reach Divisional/Sub-Divisional Offices of the employer well in advance of the date of expiry of the notice period and the date on which the retrenchment was to be effective. The amounts were not actually paid or tendered to the workers directly but a method for disbursement of compensation was evolved in the interest of workers' convenience. Instead of the workers, spread out all over the State, being asked to come to the Head Office to collect the amount of compensation at the doorstep of the each employee, an arrangement was made whereby the workers could go to the nearest Divisional/Sub-Divisional Office and collect the amount of compensation due to them. None of the workers ascertained whether the amounts sent by the Head Office to the Divisional/Sub-Divisional Offices were the correct amounts. No instance was was pointed out to show that the bank drafts were not for the correct amounts. C.W.P No.10923 of 2005 (O&M) -7- The High Court felt satisfied that the individual compensation drafts were sent to the various subordinate offices ready for disbursement to the concerned workers on or before the relevant date. It was held that there was sufficient compliance with the provisions of clause (b) of Section 25F. This Court agreed with the view of the High Court.” 6. Learned counsel relied on yet another judgment of this Court in Hoshiarpur Central Cooperative Bank Ltd. Vs. Presiding Officer, Labour Court and another 2005(1) RSJ 222 that dealt with the case of the management, which had prepared a demand draft and also made a notice ready for despatch on 29.10.1993 but in the meanwhile, the workman had rushed to Court to secure an order of stay of his termination. Consequently the demand draft could be served only on 04.11.1993 that was beyond the date when the termination was contemplated on 01.11.1993. This Hon'ble Court, therefore, said that when the amount was very much available and the intention of the management was also evident and there had been sufficient compliance of the provisions of Section 25-F of the Industrial Disputes Act. 7. In my view, the case has to be tested on how the facts have come about and whether by the facts disclosed, there has been a compliance as required by law. Learned counsel for the workman points out that at the evidence before the Labour Court, the management wanted to contend that it had offered the compensation on 27.08.1997 but it was refused by the workman. It later issued a C.W.P No.10923 of 2005 (O&M) -8- notice on 06.09.1997 through registered post, which was again refused. This contention that compensation was offered on 27.08.1997, according to the learned counsel for the workman, could not be true, for the office was situate at Gurgaon and the workman was employed under SDE, Sohana which was about 35 kms away. According to him, the attempt to communicate the fact of termination and the availability of the demand draft was itself made only through a notice on 06.09.1997 and the facts clearly revealed that on 27.08.1997 when the termination was purported to have been effected, even the notice had not been despatched nor the demand draft delivered to the workman. The mandate under Section 25-F of the Industrial Disputes Act is expressed in the observations of the Hon'ble Supreme Court, which I have outlined above that shows that the intention of the legislature was to ensure that the work was not left high and dry and he had the necessary resources placed in his hands at the time when he had to lookout for employment elsewhere. The payment of compensation and the termination have to co-exist and that is why we find even Section 25-F states that a workman shall not be retrenched by that employer until the workman has been paid (emphasis supplied). Learned counsel appearing for the State would argue that the date of actual receipt of the demand draft ought not to be a matter for consideration, for it would amount to suborning the effectiveness of this Section to depend on the vagaries of a courier service that could include a Postal Department. I am not prepared to examine the case from a hypothetical stand point. The case is faced with hard truth of an admitted despatch of the letter of termination only on C.W.P No.10923 of 2005 (O&M) -9- 06.09.1987 which was subsequent to the date when termination was purported to take effect. I have no doubt in my mind that there is no compliance of Section 25-F and the finding to that effect rendered by the Labour Court is justified. 8. The issue then shall be only whether the workman is entitled to reinstatement or he has to contend with compensation and even if it is compensation whether the amount determined by the Labour Court is justified. Learned counsel appearing for the workman would argue that yet another person whose services had been engaged subsequently namely one Shashi Bhushan obtained an order of reinstatement on a negotiated settlement with the management in the year 2001 and the management was not entitled to make an invidious distinction between one employee and another. Learned counsel appearing for the State would respond to it by stating that settlement came about at a time when there was a direction for reinstatement with back wages by the Labour Court. It was to meet the planned exigency of saving revenue that the management had to enter into settlement and in view of the development of law later, as laid down by the Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi and others 2006(4) SCC 1 and the other pronouncements of this Hon'ble High Court as well as other High Courts, it became impermissible for any workman to demand a reinstatement by the only fact that there had been no compliance of Section 25-F of the Industrial Disputes Act. Learned counsel appearing for the workman points out that even the Department has gone on record stating that they had employed 120 more persons subsequently on temporary basis, which showed that C.W.P No.10923 of 2005 (O&M) -10- there were posts available but the Government was not willing to regularize them. In fact the reference to the affidavit of the Government makes also the fact clear that the engagement of 120 more persons had been on a temporary basis on condition that their services will not be regularized. 9. We have come to a sad pass that State is not any longer a model employer. It adopts ways which are undesirable but it is not a judicial function to characterize the policies of Governments. In a democratic process, a State ought to respond to the wishes of her people, and it shall regulate its own conduct and do what is appropriate. Suffice it to observe that the workman does not have any right to employment, for in public service, there cannot be an employment otherwise than through a process of recruitment by rules and regulations and there cannot be any equality in illegality. If the workman finds to his dismay that persons who are juniors to him have been offered employment contrary to what was secured through the award, he shall have remedy under Section 25-H but he cannot complain that he shall be reinstated only for that reason. The impugned award itself secured to the workman a right to claim re- employment when vacancies arose in future, in the manner provided under Section 25-H of the Industrial Disputes Act. The petitioner complains of breach and the happenings of how persons who had been subsequently employed have been offered employment but the workman before this Court himself has not been given such a facility. It may probably give the right to the workman to work out his remedy by resort to Section 29 of Industrial Disputes Act. It is again most C.W.P No.10923 of 2005 (O&M) -11- unfortunate that the workman must be forced to undertake such an exercise and the management does not offer to accommodate him in the admitted vacant posts. This shall be a matter which the petitioner before this Court shall address itself and see that injustice is not perpetrated the way it is done through its officers. The compensation of Rs.1,25,000/-, learned counsel appearing for the State states, is excessive and it has no basis. Though on the face of it, the amount seems excessive, by the conduct of the Government as exhibited in this case, it deserves it. 10. The award of the Labour Court is confirmed and all the writ petitions are dismissed. (K. KANNAN) JUDGE July 30, 2009 Pankaj*