IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.06.2008 CORAM THE HONOURABLE .MR.JUSTICE S.MANIKUMAR W.P.No.10235 of 1997 S.Palanisamy ... Petitioner vs. 1. The Management of Jyothi Bus Transport, Kamarajar Road, Tiruppur, Coimbatore District. 2. The Presiding Officer, Labour Court, Coimbatore. ... Respondents Writ petition is filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records connected with award passed on 28.07.1994 by the Labour Court at Coimbatore, second respondent herein in I.D.No.390 of 1990, quash the same and direct the first respondent to reinstate the petitioner into service with backwages and all other benefits. For Petitioner : Mr.S.Arunachalam for Mrs.Girija For 1st Respondent : Mr.R.Devaprasad O R D E R The petitioner has sought for a Writ of Certiorarified Mandamus to quash the award passed on 28.07.1994 by the Labour Court at Coimbatore, second respondent herein in I.D.No.390 of 1990 and direct the first respondent to reinstate the petitioner into service with all backwages and for further orders. 2. Facts leading to the Writ Petition are as follows: The petitioner joined duty as Checking Inspector in the respondent-Transport Company on 30.06.1980 and was paid a salary of Rs.195/-, lower than the Minimum Wages fixed by the government. Therefore, the petitioner filed a Claim Petition in C.P.No.175 of 1985 under Section 33C(2) of the Industrial Disputes Act, 1947 and the same was ordered on 15.04.1985. Pursuant to the order, his wage was raised as per the Minimum Wages Act at Rs.521/-. Therefore, the Management has indulged many indirect activities to somehow eliminate the petitioner. The petitioner applied for three days Medical Leave from 23.02.1987 to 25.02.1987 with the permission of the Management and when he returned to join duty, he was asked to work in the Office and in his place, posted one T.K.Muthusamy to act as Checking Inspector. The said act was immediately objected by the petitioner. While that being the position, the petitioner was shocked to receive an order of retrenchment, dated 28.02.1997, along with a Cheque for Rs.2,676/- towards retrenchment compensation. In this connection, the petitioner also received a letter from the Management, dated 25.02.1987, directing him to produce Medical Certificate and also the Fitness Certificate to join duty. It is the grievance of the petitioner that the Management has retrenched his services inspite of the above letter asking him to join duty without providing any opportunity to join duty. Therefore, the petitioner raised an Industrial Dispute before the Conciliation Officer, Coimbatore, challenging the termination. A failure report was sent to the Government and the Government was pleased to refuse the reference of the dispute stating that it is a clear case of retrenchment and therefore, could not be referred for adjudication, vide order dated 30.08.1988. Aggrieved by the said order, the petitioner filed W.P.No.4978 of 1990 and this Court, by order dated 15.06.1990, directed the Government to refer the matter to the Labour Court for adjudication within 12 weeks from the date of order. Pursuant to the said order, the matter was referred by the Government for adjudication and the same was taken on file as I.D.No.390 of 1990 and ultimately, the Labour Court passed an award dated 28.07.1994, holding that the petitioner's non-employment was justified stating that the provisions of Section 25-FF of the I.D.Act has been properly complied with and the said T.K.Muthusamy resigned his job as Conductor subsequently. Aggrieved by the same, the petitioner has preferred the present Writ Petition for the relief as stated above. 3. Learned counsel for the petitioner submitted that the minimum wages of the petitioner was not paid properly and therefore, he filed a claim petition under Section 33 C(2) of the Industrial Disputes Act and by order dated 15.05.1985, the labour Court directed the respondent to pay the minimum wages at the rate of Rs.521/-. Before passing the retrenchment order, the respondent has called for particulars relating to the absence of the petitioner and within two or three days, by invoking Section 25 of the Industrial Disputes Act, the respondent retrenched the petitioner from service, on the ground that he was no longer required. According to the learned counsel for the petitioner, the intention of the respondent in gathering information was to proceed against the petitioner for his alleged absence, but to eliminate the petitioner, immediately the respondent with a mala fide intention has invoked Section 25(F) of the Industrial Disputes Act and without following the conditions precedent, forcibly retrenched the petitioner. Therefore, learned counsel for the petitioner requested this Court to lift the veil to find out the malafide intention and the unfair labour practice exercised by the respondent in retrenching the petitioner from service. 4. Learned counsel for the petitioner further submitted that even if there was any necessity to retrench an employee due to financial constraint or reducing the expenditure, the respondent ought to have followed the Principle "Last come First go" and retrenched the junior most person in the Industrial concern. Referring to the impugned order as well as the communication sent to the Government, as per Section 25-F of the Industrial Disputes Act read with Section 61(3) of the Act, learned counsel for the petitioner submitted that the intimation sent by the respondent to the Government does not fulfil the statutory conditions laid down in Section 25(F) of the Industrial Disputes Act and therefore, the impugned order is liable to be set aside. Lastly, learned counsel for the petitioner further submitted that since the petitioner had moved the labour Court for fixing the minimum wages, the respondent actuated by motive, victimised the petitioner and retrenched him from service. He also submitted that the order of retrenchment is purely an after thought to get rid of the petitioner and therefore, the malafide intention is explicit. 5. Placing reliance on the decision reported in AIR 1975 SC 66 [L.Michael v. Johnson Pumps Ltd.,], learned counsel for the petitioner submitted that when there is a mala fide exercise of power under Section 25(F) of the Industrial Disputes Act, the Court can lift the veil and find out the real intention of the Management. Referring to Schedule (5) of the Industrial Disputes Act, he submitted that the respondent, by resorting to Section 25(F) of the Act, the petitioner has been victimised for filing a claim petition and dismissed from service and therefore, the action of the management amounts to unfair Labour practice. 6. Learned counsel for the petitioner submitted that the Labour Court failed to consider the evidence in proper prospective and the order of retrenchment is nothing but a colourable exercise of power under Section 25(F) of the Industrial Disputes Act. 7. By way of reply, learned counsel for the respondent submitted that the petitioner was only a checking inspector in the office of the first respondent. The company was incurring huge loss during 1986-87 and the management produced the balance sheets, M12 and 13, to substantiate the same. Though the above said balance sheets were produced by the Management to prove that the company was running into loss during 1986-87 and subsequent years, the Labour Court has failed to advert to the same in the impugned order. Had the Labour Court considered this aspect, then it could be easily inferred that the decision of the respondent in retrenching the petitioner was not taken suddenly and it was only due to the financial constraint. Learned counsel for the respondent further submitted that when the petitioner has failed to discharge the burden of proving malafide and unfair labour practice and in the absence of any strong evidence to infer motive, there is no need to re- appreciate the evidence and come to a contrary conclusion. 8. As regards the contention of the petitioner that the conditions set out in Section 25-F has not been complied with, learned counsel for the respondent submitted that the decision to retrench the petitioner was taken on 28.02.1994 and on the next day, an intimation was sent to the appropriate government in the prescribed Form under the Industrial Disputes Act. He submitted that though Section 25(F) contemplates that the intimation should be sent to the appropriate Government on the same day, merely because, it was sent either two days in advance or later, that by itself will not vitiate the retrenchment order and it is suffice, if there is substantial compliance of the conditions in Section 25-F of the Act. 9. Referring to the evidence let in by the Manager of the respondent-transport Company, learned counsel for the respondent submitted that due to the increase in the number of the buses operated by Transport Corporation in the routes between Karur and Chennimalai, there was considerable reduction of passengers and in the result, the respondent was running the business in loss and therefore a decision was taken to reduce the expenditure and consequently, the petitioner was retrenched from service after complying with the requirements under Section 25(F) of the Act and the retrenchment was not done due to any mala fide intention. In this context, learned counsel for the respondent submitted that, after the retrenchment order, nobody was employed as checking inspector in the first respondent-transport company, which would prove that the impugned order was out of necessity and not actuated by any motive of victimisation. Therefore, he submitted that there was no victimization or unfair labour practice or colourable exercise of power by the respondent. Heard the counsel appearing for the parties and perused the materials available on record. 10. The question for consideration is whether the retrenchment of the petitioner falls under the ambit of unfair labour practice and whether the respondent has followed the condition prescribed in Section 25(F) of the Industrial Disputes Act. 11. Before the Labour Court, the petitioner examined himself as WW.1 and on behalf of the respondents, a conductor and the Manager of the respondent-Company were examined as Management Witnesses. The petitioner has marked 19 documents on his side and 14 exhibits were marked on the side of the Management. On examination of the pleadings and evidence let in by the parties, the Labour Court came to the conclusion that the retrenchment of the petitioner was due to reduction in expenditure and surplus of labour in the transport company and that the procedure contemplated under Section 25(F) has been rightly followed. 12. It is the specific contention of the petitioner that the action of the respondent in retrenching him from service, amounts to colourable exercise of power under Section 25(F) of the Act for the reasons (1) that the respondent was aggrieved by the action of the petitioner in filing a claim petition in No.176 of 1986 in which, a revision of wages was ordered. (2) the respondent wanted to rid of the petitioner without holding an enquiry for his alleged absence from 3.02.1987 to 25.02.1987. (3) Even assuming without admitting for argument sake, instead of following the principle of "last come first go", the respondents have deliberately retrenched the petitioner. I have perused the oral evidence let in by the petitioner before the Labour Court. 13. Conspicuously, the petitioner has not whispered anything about the filing of claim petition under Section 33C(2) of the Industrial Disputes Act, nor has he deposed that the retrenechment of the petitioner was only to weed out his services from the transport company for the absence. It is the evidence of the petitioner that he was on medical leave upto 22.01.1987 and that he was taken back to duty on the intervention of Union Leader. He has further deposed that he was given only office work and that the respondent did not assign his duty as Checking Inspector. 14. In support of the contention that retrenchment was necessitated due to loss in the business, MW.1, the Manager of the respondent-Transport Company, has deposed that he has been maintaining the records of the company properly and as per the records, there were four drivers, four conductors, one fitter and one Mechanic working in the Transport Company. He has further deposed that due to introduction of many buses owned by the Transport Corporation between Karur- Chennimalai Route, there was reduction in the collection of fair and in order to reduce the expenditure, the respondent was constrained to sell one vehicle. To prove that the company had sold one of the vehicles, the respondent has marked Ex.M11  Xerox copy of the proceedings of the Secretary, Regional Transport Authority, Tiruchirapalli. 15. Perusal of the above document reveals that transfer of permit of stage carriage bearing Registration No.TN Q 6536 plying on the route Karur to Chennamalai to one Smt.K.Rukumani, W/o. Kandasamy, with effect 06.06.1986. Exs.M12 to M15, Profit and Loss Accounts for the year ending 31.03.1986 and 31.03.1987, produced by the respondent also support their case of sale of one bus during 1986-87. Both the Management Witnesses have clearly spoken to the fact that after the retrenchment of the petitioner, nobody was employed as Checking Officer in the Transport Company. Though the petitioner has contended that after his illegal termination, one Mr.T.K.Muthusamy, was working as Checking Inspector, he has not produced any documents to prove the same. On the other hand, letter dated 11.11.1990 of the said individual enclosed at Page 17 of the typed set of papers reveals that he had resigned from the company only as a conductor and not as a Checking Inspector. It is therefore evident that retrenchment of the petitioner was inevitable for the respondent to reduce expenditure. 16. In this context, the decision relied on by the learned counsel for the petitioner in M/s.Parry and Co. Ltd. v. P.C.Pal reported in 1970 (II) LLJ 429, squarely applies to the case on hand. While considering the scope of interference of High Court with the decision of the Labour Court, the Supreme Court, at Paragraphs 11, 12, and 15 of the judgment, held as follows: "11. The grounds on which interference by the High Court is available in such writ petitions have by now been well established. In Basappa v. Nagappa (1955)SC.R. 250; A. I. R. (1954) S. C. 440, it was observed that a writ of certiorari is generally granted when a court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, Can be so corrected. In Dhrangadhara Chemical Works Ltd v. State of Saurashtra, (1957) S.C.R. 152; A.l.R. (1957) SC. 264, this court once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Art, 226 unless it could be shown to be wholly unwarranted by the evidence. Likewise, in the State of Ananra Pradesh v. S. Sree Ram Rao, A.I R. (1963) S.C. 1723, this Court observed that where the Tribunal has disabled itself from reaching a fair decision by some considerations extrane-ous to the evidence and the merits of the case or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion interference under Art. 226 would be justified. The question for our determination, therefore, is whether the learned single Judge was within the aforesaid well recognised limits when he set aside the award. Before, however, we examine that aspect of the case we may first consider the scope of the Tribunal's jurisdiction in cases of retrenchment arising under S. 25-F of the Act. 12. ..... In Workmen of Subong Tea Estate v. The Outgoing Management of Subong Tea Estate, (1964) 5 S.C.R. 602; A.I.R. 1967 S.C. 420) this Court laid down the following propositions : (1) that the management can retrench its employees only for proper reasons, which means that it must not be actuated by any motive of victimisation or any unfair labour practice, (2) that it is for the management to decide the strength of its labour force, for the number of workmen required to carry out efficiently the work in his industrial undertaking must always be left to be determined by the management in its discretion, (3) if the number of employees exceeded the reasonable and legitimate needs of the undertaking it is open to the management to retrench them, (4) workmen may become surplus on the ground of rationalisation or economy reasonably or bona fide adopted by the management or on the ground of other industrial or trade reasons, and (5) the right to effect retrenchment cannot normally be challenged but when there is a dispute about the validity of retrenchment the impugned retrenchment must be shown as justified on proper reasons, i.e., that it was not capricious icous or without rhym or reason. 15. ....As laid down in Workmen of Subong Tea Estate (1964)S.C.R. 602; AIR. 1967 SC. 420 it is for the manage-ment to decide the strength of its labour force to carry out efficiently the working of its undertaking, if, as a result of reorganisation, the number of its existing employees exceeded the reasonable and legitimate needs of the undertaking, the management, subject to its obligation to pay compensation, can effect retrenchment. So long as retrenchment carried out is bona fide and not vitiated by any consideration for victimisation or unfair labour practice and the employer comes to - the conclusion that he can carry on his undertaking' with reasonable efficiency with the number of employees retained by him after retrenchment, the Tribunal ought not ordinarily to interfere with such decision. The fact that in 1960 17 temporary appointments were made or that the union's secretary deposed that work had accumulated would not mean that the surplusage calculated by the manager was unjustified. Accumulation of work at a given point of time, unless it is constant, may be seasonal or due to various reasons and not necessarily because, there was no surplusage. The management had worked out the surplusage which would occur in consequence of their giving up the agency business. Barring the bare statement of the union secretary that work had accumulated and that employees were doing overtime work there was no rival data available to the Tribunal to the startling conclusion that there would be so surplusage at all even though a little more than half of the agency business was given up. Such a conclusion could be arrived at only on the assumption that the accumulation of work was permanent, which assumption could not follow the evidence." 17. The contention of the petitioner that there has been an unfair labour practice by the respondent is not proved and therefore, the decision of the Management to invoke Section 25(F) to retrench the petitioner cannot be found fault with. 18. The next question to be considered is whether the respondent has followed the procedure as contemplated in Section 25(F) of the Industrial Disputes Act and complied with the conditions thereto. As per Section 25(F) of the Act, three conditions have to be followed by the employer and they are as follows: "(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." 19. In the case on hand, under Ex.M4, the management has sent an intimation dated 28.02.1987 to the petitioner informing the reasons for retrenchment and enclosed a cheque for Rs.2,676/- dated 28.02.1987, which includes wages for one month, in lieu of one month's notice and compensation equivalent to 15 days average pay (for every completed year of continuous service). Perusal of Ex.M4 reveals that a copy of the same has been sent to the government on the same day. 20. Section 25(F)(c) of the Industrial Disputes Act r/w. Rule 61 of the Tamil Nadu Industrial Dispute Rules, 1958, contemplate that a notice in the prescribed manner has to be served on the appropriate Government. As per Rule 61 of the Tamil Nadu Industrial Dispute Rules, if any employer desires to retrench any workmen employed in his industrial establishment who has been in continuous service for not less than one year under him (hereinafter referred to as 'workman' in this rule and in rules 62 and 63), he shall give notice of such retrenchment as required under clause (c) of Section 25F in Form 'R' to the State Government, the Commissioner of Labour, Madras, the Conciliation Officer having jurisdiction over the area and the Employment Exchange concerned and such notice shall be served on that Government, the Commissioner of Labour, Madras, The Conciliation Officer having jurisdiction over the area and the Employment Exchange concerned by registered post in the following manner:- (a) where notice under clause (a) of Section 25F is given to the workman, notice of retrenchment shall be sent within three days from the date on which notice is given to the workman; (b) where no notice is given to the workman and he is paid one month's wages in lieu thereof under clause (a) of section 25-F, the notice, shall be sent to the State Government on the date on which such wages are paid. 21. Perusal of Form 'R' enclosed at Page 7 of the typed set of papers shows that the intimation as per Rule 61 of the Tamil Nadu Industrial Disputes Rules to the Secretary to the Government of Tamil Nadu. Labour Department was sent on 01.03.1987 and not on the same day on which the wages were paid. Though the said rule contemplates that intimation to the Government in the prescribed format should be sent on the same day in the case of retrenchment under Section 25(F) of the Industrial Disputes Act, where an employee is retrenched with payment of a month's salary in lieu of notice, whether non-compliance of the same in the manner set out in Section 25(F)(c) would vitiate the retrenchment Order? The said question is also answered in M/s.Parry and Co Ltd's case cited supra, where the Apex Court at Paragraph 17 of the judgment, held as follows: "17. Equally the Tribunal's decision on Rule 77 was contrary to its provisions. The Rule by sub-cl. (1) provides that when an employer finds it necessary to retrench any workman he shall at least one month before the date of actual retrenchment give notice thereof to the Labour Com-missioner and to the Conciliation Officer. The proviso to it states that where an employer retrenches any workman with immediate effect by paying him wages in lieu of notice he shall immediately after such retrenchment give notice thereof to the said officers. Obviously, sub-cl. (1) did not apply to the facts of this case. It is true that the notice was given two days before the actual retrenchment and was not given "immediately". But the Tribunal could not conclude that since the notice was not given immediately after retrench-ment the proviso did not apply, and, therefore, it would be sub-cl. (1) which would be applicable and since one month's notice was not given the retrenchment was invalid. In our view such a conclusion was not only incorrect but