WPMS/1319/2002 of UTTARANCHAL FOREST DEVELOPMENT andANOTHER Vs P.O. LABOUR COURT and ANOTHER

IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL

Court’s order whether the case is or not approved for reporting

(chapter VIII, Rule 32(2) (b))

Description of case

WPMS No. 7009 of 2001 ; decided on 25-3-03(along with similar matters)

UP Forest Development Corp. Vs. PO Labour Court

A.F.R. (Approved for reporting)x Not approved for reporting

Date 25-3-03 Initials of Judge

Note- Bench Reader will attach this at the top of the firstpage of the judgment when it is put up before the Judge forsignature.

(1)Civil Writ Petition No. 7009 (M/S) of 2001 Uttaranchal Forest DevelopmentCorporation through its Regional Manager, Garhwal Region, Kotdwara ............. Petitioner VersusPresiding Officer, Labour Court and another. .............Respondents (2)Civil Writ Petition No. 1309(M/S) of 2002Uttaranchal Forest Development Corporation and another ............. Petitioners VersusPresiding officer, Labour Court and another. ............. Respondents (3)Civil Writ Petition No. 1310 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners VersusPresiding Officer, Labour Court and another. ………. Respondents (4)Civil Writ Petition No. 1311 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners VersusPresiding Officer, Labour Court and another. ………. Respondents (5)Civil Writ Petition No. 1312 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners VersusPresiding Officer, Labour Court and another. ………. Respondents

(6)Civil Writ Petition No. 1313 (M/S) of 2002 Uttaranchal Forest Development Corporation and another ………. Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents (7)Civil Writ Petition No. 1314(M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners VersusPresiding Officer, Labour Court and another. ………. Respondents (8)Civil Writ Petition No. 1315 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents (9)Civil Writ Petition No. 1316 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents (10)Civil Writ Petition No. 1317 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners VersusPresiding Officer, Labour Court and another. ………. Respondents

(11)Civil Writ Petition No. 1318 (M/S) of 2002

Uttaranchal Forest Development Corporation and another ………. Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents (12)Civil Writ Petition No. 1319 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners VersusPresiding Officer, Labour Court and another. ………. Respondents

(13)Civil Writ Petition No. 1320 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents

(14)Civil Writ Petition No. 1321 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents

(15)Civil Writ Petition No. 1322 (M/S) of 2002 Uttaranchal Forest Development Corporation and another ………. Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents (16)Civil Writ Petition No. 1323 (M/S) of 2002Uttaranchal Forest Development Corporation and another ……..… Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents

(17)Civil Writ Petition No. 1324 (M/S) of 2002

Uttaranchal Forest Development Corporation and another ……..… Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents AND

(18)Civil Writ Petition No. 1325 (M/S) of 2002

Uttaranchal Forest Development Corporation and another ……..… Petitioners Versus Presiding Officer, Labour Court and another. ………. Respondents …………………......

Hon’ble P.C. Verma, J.

All these writ petitions have been filed impugning theaward dated 30.3.2001 and 28.08.2001 made by the Labour Court by oneand common judgment, holding respondent No. 2, in all these writpetition, workmen of the petitioner-Forest Development Corporation anddirected the reemployment of workmen, who have been arrayed in theaforesaid writ petitions as respondent No. 2 with fifty per cent backwages.

All these eighteen Industrial disputes decided by theimpugned award were referred in the following terms:-

“Whether the termination of the services ofapplicant/workmen (by name with father’s name), Scaler by theemployer from 31.05.1995 is illegal/unjustified? If so, to whichrelief/benefit the applicant/workman is entitled to and to whatextent?”

The Reference Case No.231 of 1998 was leading case, inwhich the evidence was led. In Reference Case No.234 of 1998workman was examined and in Reference Case No.198 of 2000, thewitness of employer, namely, Sri Gopal Singh was examined. Theworkmen pleaded before the Industrial Tribunal that they wereretrenched on 31.1.95, 31.3.95 and 31.3.95 without any notice inviolation of provisions of Section 6-N of U.P. Industrial Disputes Act,1947 (herein after referred to as Section 6-N of the Act for short)though there was sufficient work in Garhwal region. The juniorworkmen have been retained while the senior workmen have beenretrenched. Therefore, the retrenchment has been made in violation ofSection 6-P of the Act. The employer pleaded before the IndustrialTribunal that necessity arose for retrenchment of these workmen onaccount of short fall in the work and these workmen were junior in theseniority list, therefore, they were rightly retrenched. All the workmenhave been retrenched in accordance with the provisions of Section 6-N of the Act. After the retrenchment, no workman has been employed asthere is no excess work with the employer. It was conceded before

the Tribunal on behalf of the workmen that in compliance of Section6-N of the Act, the workmen have been paid one month’s salary inlieu of notice and retrenchment compensation.

It was contended before the Industrial Tribunal on behalfof the workmen that the notice as required under Rule-42 of U.P. Industrial Disputes Rules, 1957 was not sent to the Governmentand other authorities in the Form prescribed. In reply to thiscontention of the workmen, the employer contended that the noticeswere sent, which are available on record in Reference Case Nos.168of 1997 and 191 of 1997 in respect of all the workmen. Evenotherwise, the retrenchment will not be illegal if the notices were notsent.

Next it was contended before the Industrial Tribunal that54 scalers (workmen) who were junior to workmen/ respondent inthese writ petitions in the seniority list dated 16.2.95 and wereretrenched with them, have been re-employed and they are working. Ithas been recorded by the Tribunal that the employer conceded that 54scalers (workmen) in all the writ petitions were retrenched alongwiththem but on their representation they were re-employed vide orderdated 27.04.1995 in Tehri Division and they are still working. Theexplanation given for re-employment of these 54 junior scalers by theemployer was that they were initially appointed in Tehri Division andthereafter they were transferred to Garhwal Division, therefore, theywere shown junior to the respondent/workmen in the seniority listdated 16.2.1995 and accordingly they were retrenched. On theirrepresentation they were sent back to Tehri Division vide order dated29.4.95, which is evident from the order of the General Manager ofUttaranchal dated 27.4.1995. Industrial Tribunal on the basis ofrecords found that it is evident from the letter of the Manager(Personnel) of Uttar Pradesh Van Nigam dated 14.12.1999 that beforethe appointed day some part of the Tehri Division was merged in theGarhwal Division and accordingly some scalers were transferred fromTehri to Garhwal and after the retrenchment of these

respondents/workmen on Sri Dhirendra Singh Bisht was transferredto Tehri Division vide order dated 27.4.1995 and again he wastransferred back to Garhwal on 16.6.1998 and he was shown at serialno.56 in the seniority list published later on. Likewise, the anotherworkman Sri Sainsarpal Singh, Scaler was also transferred from TehriDivision to Garhwal Division and he was placed at serial no.57. Thus,it is evident that workmen /Scalers from Tehri were transferred toGarhwal Division and were junior to the respondents in these writpetitions and they are still working. The Tribunal came to theconclusion that once the workmen after the merger of some part ofTehri Division in Garhwal Division, were transferred to GarhwalDivision and were shown in the seniority list junior to therespondents/workmen and after their retrenchment alongwith therespondent/workmen, their appointment in Tehri Division was illegalas they became workmen in the Garhwal Division and the re-employment, if any, ought to have been made in accordance with theprovisions of Section 6-Q of the Act. The Tribunal has also recorded afinding that vide letter dated 17.10.1998, the General Manager,Uttaranchal has transferred 19 Scalers from Tehri Division to GarhwalDivision and they are posted in Kotdwar Logging Division, whichgoes to show that later on work was available in Garhwal Division.The retrenched workmen/Scalers should have been appointed incompliance of Section 6-Q of the Act and the transfer of workmenfrom Tehri Division should not have been resorted to denying therightful claim of the retrenched respondent/workmen in the writpetition.The Tribunal held that retrenchment order has beenpassed in violation of Section 6-N, 6-P and 6-Q of the Act. TheTribunal also held that Section 6-N of the Act was violated asprovisions contained in Section 6-Q were not followed. Accordinglythe Tribunal made the award that the retrenchment orders dated31.1.95, 31.3.95, 29.5.95 and 31.5.95 were illegal and unjustifiedbeing in violation of Section 6-N, 6-P and 6-Q and ordered

their reinstatement and also provided for 50% of the back wages fromthe date the juniors to them were re-employed by the employer.

The petitioners have challenged the award on the groundthat the retrenchment of the workmen was done strictly in complianceof Section 6-N of the Act and the Rules framed thereunder. Thepetitioners accepted their retrenchment compensation and onemonth’s salary in lieu of notice, they did not raise any objectionwithin four years. Retrenchments were done as per the seniority listand only juniors were retrenched. Respondents/workmen neverprotested against the seniority lists, maintained at Division andLogging Division level and the provisions of Section 6-P of the Actwere never violated.

Reliance is placed on the Labour Court award dated10.8.2001. No workman junior to the respondents/workmen were re-employed. Only workmen were transferred temporarily from oneDivision to another Division due to exigency of work. Therefore,there was no violation of Section 6-Q as it did not amount to re-employment.

The first question which falls for consideration is as towhether the retrenchment was in violation of Section 6-N of the U.P.Industrial Disputes Act, 1947. Section 6-N of the U.P. IndustrialDisputes Act, 1947 reads as under :-

“ 6-N. Conditions precedent to retrenchment ofworkmen.-No workmen employed in any industry who hasbeen in continuous service for not less than one year under anemployer shall be retrenched by that employer until- been in continuous service for not less than one year under anemployer shall be retrenched by that employer until-

(a)the workman has been given one month’s notice in writingindicating the reasons for retrenchment and the period ofnotice has expired or the workman has been paid in lieu ofsuch notice wages for the period of the notice: indicating the reasons for retrenchment and the period ofnotice has expired or the workman has been paid in lieu ofsuch notice wages for the period of the notice: Provided that no such notice shall be necessary if the retrenchmentis under an agreement which specifies date for the termination ofservice; is under an agreement which specifies date for the termination ofservice;

(b)the workman has been paid, at the time of retrenchment,compensation which shall be equivalent to fifteen day;average pay for every completed year of service or any part thereof in excess of six months; and compensation which shall be equivalent to fifteen day;average pay for every completed year of service or any part thereof in excess of six months; and

(c)notice in the prescribed manner is served on the StateGovt.”

“Long Heading” of the Section and negative languageemployed in the Section by the Legislature clearly gives out intentionof the Legislature that before retrenchment is effected all theconditions are “Conditions precedent” to the retrenchment andcompliance thereof is mandatory before the retrenchment. Theheadings of the Section constitute an important part of the Act itself,and may be read not only as explaining the sections, whichimmediately follow them, the Section to which it is pre-fixed and allpreamble pre-fixed to the Act. Craies on Statute Law on the Heading‘Seventh Edition’ says as under:-

“ HEADINGS

Heading as part of the Act

………………………….. They constitute an importantpart of the Act itself, and may be read not only as explainingthe sections which immediately follow them, as preamble to astatute may be looked to explain its enactments, but asaffording as it appears to me better key to the constructions ofthe sections which follow them than might be afforded by amere preamble.”

The opening sentence, on ‘Headings’ in the Principles ofStatutory Interpretation by Justice G.P. Singh, 8[th ]Edition 2001 at page144 says as under :-

“The view is now settled that the Headings orTitles prefixed to sections or group of sections can be referredto in construing an Act of the Legislature. (Reliance was placedHammer Smith & City Ry. V. Brand, (1869) LR 4 HLC 171;Ingils v. Robertson, (1898) AC 616, pp. 624, 629 (HL); TorontoCorporation v. Toronto Ry., (1907) AC 315, p.324 (PC);Martins v. Fowler, (1926) AC 746, p. 750 (PC); Qualter Hall &Co. Ltd. v. Board of Trade, (1961) 3 All ER 389, pp. 392, 394(CA); Bhinka v. Charan Singh, AIR 1959 SC 960, p. 966;Director of Public Prosecutions v. Schildkamp, (1969) 3 All ER1640(HL). Toronto Corporation v. Toronto Ry. Co., (1907) AC315, p. 324 (PC) (LORD COLLINS); referred to in Re, RalphGeorge Cariton, (1945) 1 All ER 559, p. 562; Qualter Hall &Co. v. Board of Trade, supra, p. 392. Martins v. Fowler, suprap. 750 : referred to in Qualter Hall & Co. v. Board of Trade,supra, p. 392).

Therefore, the Heading of the title "Conditionsprecedent" for retrenchment can be taken in aid to construe theSection 6-N.

The meaning of the "Conditions precedent" given in

Word & Phrases (Permanent Edition) is as under:-

"A "condition precedent" is such as must happen or beperformed before right can accrue to enforce an obligationdependent upon the happening or performance thereof againstanother in favor of one claiming such right. Cozby v. Edwards,Tex. Civ. App., 203 S.W.2d 569, 574."

I may quote the meaning of "Conditions precedent" from"CORPUS JURIS SECUNDUM-IA, pages 434 and 435 ", which reads as under :-

"Where conditions precedent to the right to maintain anaction are imposed, whether because of statute or anagreement, or because of the nature and circumstances of theparticular case, they must be performed or complied with beforethe action may be instituted. This rule is particularly applicablewhere the imposed conditions form part of the right itself, as,for example, in the case where statute creates right to whichsome condition is expressly attached..............................

Where notice is made condition by the agreement orstatute creating the right itself, such notice constitutes condition on the right and an essential element of the cause ofaction;"

The language used under Section 6-N of the Act, isprohibitory in nature that no workman employed in any Industry, whohas been in continuous service for not less than one year under anemployer shall be retrenched by that employer until; (a) the workmanhas been given one month's notice in writing indicating the reasonsfor retrenchment and the period of notice has expired of the workmanhas been paid in lieu of such notice wages for the period of the notice,provided that no such notice shall be necessary if the retrenchment isunder an agreement which specifies date for the termination ofservice; (b) the workman has been paid, at the time of retrenchment,compensation which shall be equivalent to fifteen days' average payfor every completed year of service or any part thereof in excess of six

months; and (c) notice in the prescribed manner is served on the StateGovernment.

In M.Pentiah v. Muddala Veeramallappa, AIR 1961 SC 1107,at pages 1112 and 1113 His Lordship K.Subba Rao, J. in FullBench consisting of five Judges, observed as under:-

"This argument ignores the express intention of S. 77 ofthe Act. Section 77 says: "Subject to such exceptions as theGovernment may by general or special order direct, noCommittee shall transfer any immovable property except inpursuance of resolution passed at meeting by majority ofnot less than two-third of the whole number of members and inaccordance with rules made under this Act, and no Committeeshall transfer any property which has been vested in it by theGovernment except with the sanction of the Government; ..............................................................................................

This section confers on the Committee an express powercouched in negative form. Negative words are clearlyprohibitory and are ordinarily used as legislative device tomake statute imperative."

The Apex Court while interpreting Section 80 of theC.P.C., in S.N.Dutt v. Union of India, reported in AIR 1961 SupremeCourt 1449, laid down that no suit shall be instituted against theGovernment, until the expiration of two months next after notice inwriting has been delivered to, or left at the office of the Secretary tothat Government, stating the cause of action, the name, descriptionand place of residence of the plaintiff and the relief which he claims;and the plaint shall contain statement that such notice has been sodelivered:

The Privy Council in Bhagchand Dagdusa v. Secretaryof State, 54 Ind App 338 : AIR 1927 PC 176 had to consider the trueapplication of Section 80 C.P.C. and held that Section 80 was explicitand mandatory and admitted of no implications or exceptions and hadto be strictly complied with and was applicable to all forms of actionand all kinds of relief.

The Apex Court in the case of A.K.Roy v. State of Punjabreported in AIR 1986 Supreme Court 2160 while interpreting Section

20 (1) of the Prevention of Food Adulteration Act, 1954 and Rule 3 ofthe prevention of Food Adulteration (Punjab) Rules, 1958 held asunder :-

"The use of the negative words in Section 20(1) "Noprosecution for an offence under this Act... shall be institutedexcept by or with the written consent of " plainly make therequirements of the section imperative. That conclusion of oursmust necessarily follow from the well known rule ofconstruction of inference to be drawn from the negativelanguage used in statute stated by Craies on Statute Law, 6[th ]edn., p.263 in his own terse language :

"If the requirements of statute which prescribe themanner in which something is to be done are expressed innegative language, that is to say, if the statute enacts that it shallbe done in such manner and in no other manner, it has beenlaid down that those requirements are in all cases absolute, andthat neglect to attend to them will invalidate the wholeproceedings."

Where power is given to do certain thing in certainway, the thing must be done in that way or not at all. Othermodes of performance are necessarily forbidden. The intentionof the Legislature in enacting Section 20(1) was to confer apower on the authorities specified therein which power had tobe exercised in the manner provided and not otherwise."

The Industrial Disputes Act, 1947 (hereinafter referredto as the Act) contains the similar provision under Section 25-F of theAct. The Apex Court in State of Bombay v. Hospital Mazdoor Sabha ,reported in AIR 1960 Supreme Court 610 (V 47 95) whileconstruing Section 25F (b) held as under :-

"Clauses (a) and (c) of the said section prescribe similarconditions but we are not concerned with them. On plainreading of Section 25 (b) it is clear that the requirementprescribed by it is condition precedent for the retrenchment ofthe workman. The section provides that no workman shall beretrenched until the condition in question has been satisfied. Itis difficult to accede to the argument that when the sectionimposes in mandatory terms condition precedent, non-compliance with the said condition would not render theimpugned retrenchment invalid. "

The Apex Court in Full Bench, consisting of theirLordships P.B.Gajendragadkar, K.N.Wanchoo and K.C.Das Gupta,JJ.

again considered the provisions of Section 25-F of the IndustrialDisputes Act, 1947 and the nature of conditions (a), (b) and (c) thereofin Bombay Union of Journalists and others, Appellants v. State ofBombay and another, Respondents, reported in AIR 1964 SupremeCourt 1617 (V 51 217) and after referring the decisions in A.I.R.1960 Supreme Court 610 (V 47) State of Bombay Hospital v. HospitalMazdoor Sabha and A.I.R. 1960 Supreme Court 815 (V 47) TeaDistrict Labour Association Calcutta v. Ex-Employees of TeaDistricts Labour Association held conditions (a) and (b) of Section25-F are conditions precedent and must be complied with before theretrenchment is effected.

In Bombay Union of Journalists case (supra) the ApexCourt considered and held in para - 12 as under :-

"In this connection, there is one more considerationwhich is relevant. We have already seen the requirement of S.25F (a). There is proviso to S. 25F(a) which lays down that nosuch notice shall be necessary if the retrenchment is under anagreement which specifies date for the termination ofservices. Clause (a) of S. 25F, therefore, affords safeguard inthe interests of the retrenched employee; it requires theemployer either to give him one month's notice or to pay himwages in lieu thereof before he is retrenched. Similarly, clause (b) provides that the workman has to be paid at the time ofretrenchment, compensation which shall be equivalent to 15day's average pay for every completed year of service or anypart thereof in excess of six months. It would be noticed thatthis payment has to be made at the time of retrenchment, andthis requirement again provides safeguard in the interests ofthe workman; he must be given one month's notice or wages inlieu thereof and he must get retrenchment compensation asprescribed by clause (b). The object which the Legislature hadin mind in making these two conditions obligatory and inconstituting them into conditions precedent is obvious. Theseprovisions have to be satisfied before workman can beretrenched. The hardship resulting from retrenchment has beenpartially redressed by these two clauses, and so, there is everyjustification for making them conditions precedent."

Their Lordships did not hold the 'condition (c)' to be acondition precedent on following three considerations, stated in paras-7, 11 and 12 of the judgment.

The first consideration as contained in para-7 of the

judgment is reproduced hereunder :-

" There is no substance in this argument. It appears thatthe Rules framed by respondent No.1 under the Act indicatethat respondent No.1 has construed the provision of S. 25-F ©as being directory and not as constituting condition precedentfor the validity of retrenchment under S. 25-F. Rule 80 of thesaid Rules clearly shows that where the employer hasretrenched the employee by offering to pay him the requisiteamount of remuneration in lieu of notice prescribed by S. 25-F(a), the employer is required to serve the notice of the saidretrenched the within seven days of the date of retrenchment, andthat means that in such case, the notice has to be served onthe government before retrenchment is effected. In other words,R.80, it is conceded, treats the notice prescribed by S. 25-F (c)as condition subsequent and not condition precedent. "

The second consideration, which is based on the

Rules framed by the Government, as the same was the basis of firstcondition, is found in para-11 of the judgment, which reads as under :-

"The argument based on the negative form in which theprovision is enacted and the use of the word "until" no doubtare in favour of the appellant's contention, but the contextseems to require different treatment to the provision containedin cl. (c). Besides, the requirement introduced by the use of theword "until" is complied with even on the view we are inclinedto take about the nature of the condition prescribed by clause(c), because after the retrenchment is effected, the employerhas to comply with the condition of giving notice about the saidretrenchment to the appropriate Government, and that is wherethe provision in clause (c) that the notice has to be served in theprescribed manner assumes significance. Rules have beenframed by the Central Government and the State Governmentsin respect of this notice and, stated broadly, it does appear thatthese Rules do not require notice to be served in every casebefore retrenchment is effected. In regard to retrenchmenteffected on paying the workman his wages in lieu of notice, theRules seem to provide that the notice in that behalf should beserved within the specified period prescribed by them; that is tosay, under the Rules, notice in such case has to be served notbefore the retrenchment, but after the retrenchment within thespecified period."

The third consideration is based on the object of thenotice required to be given in condition(c), which is found in para-12of the judgment, reads as under:-

"Clause (c) is not intended to protect the interests of theworkman as such. It is only intended to give intimation to theappropriate Government about the retrenchment, and that onlyhelps the Government Keep itself informed about the conditionsof employment in the different industries within its region.There does not appear to be present any compellingconsideration which would justify the making of the provisonprescribed by clause (c) condition precedent as in the case ofclause (a) and (b)."

Therefore, having regard to the object which is intendedto be achieved by clauses (a) and (b) as distinguished from the objectof clause (c), it was found not to be unreasonable to hold that clause(c), unlike clauses (a) and (b), is not condition precedent. It is clearfrom first two considerations, quoted above, that considerations arebases on the Rules framed by the appropriate Government, whichprovided service of notice within week from the date ofretrenchment. Therefore, it is condition subsequentand the thirdconsideration is the object of clause (c) of Section 25-F. The objectseems to have been deciphered in the back ground of notice, to begiven in the prescribed manner i.e. according to the Rules framed bythe appropriate Government and has held that it was only intimationto keep the Government informed about the conditions of employmentin the different industries. The Court found that there was not presentany compelling consideration, which would make clause (c) acondition precedent. Hidden consideration was that this condition didnot provide any safeguard to the workman, which could be said to beaffected by non-compliance and could be compelling considerationfor which the provision could be made condition precedent. Therules prescribed by the appropriate Government, as noticed above,have also played role in deciphering the object of clause (c) ofSection 25-F in the judgment.

Under Section 23 of the U.P. Industrial Disputes Act,rule making power has been conferred upon the State Government.Rule has to be consistent to the provisions of the Act for giving effectto the provisions of the Act. Sub-Section (2) provides that withoutprejudice to the generality of the foregoing power such rules mayprovide for-

"(a)...

(h) the matters which are to be and may be prescribed."

Sub-Section (3) of Section 23 provides that all rulesmade under this Section shall as soon as possible after they are madebe laid before the State Legislature.

In exercise of the power conferred by Section 23 of the

U.P.Industrial Dispute Act, 1947, (U.P. Act XXVIII of 1947) theGovernor of Uttar Pradesh was pleased to make the Rules, known asIndustrial Disputes Rules, 1957. Rules 42 and 43 therof provideprocedure for retrenchment of workmen, which read as under :-

"42. Procedure for retrenchment of workmen.-

(1)If any employer desires to retrench any workman, employedis establishment who has been in continuous service under himfor not less than one year (hereinafter referred to as "workman"in this rule and in Rule 43, he shall give notice of suchretrenchment in Form XIX to the Secretary to Government,U.P., Labour (A) Department, to the Labour Commissioner, U.P. and to the Conciliation Officer of the area concerned byregistered post, in the following manner:

(a)Where notice, as required under clause (a) of Section 6-Nis given to the workman, notice of retrenchment shall be senton the same day on which notice is given to the workman,

(b)and he is paid one month's wages in lieu of by notice, notice of retrenchment shall be sent on the same date on which wagesare paid to the workman; and

(c)where reternchment is or is intended to be carried out underan agreement, which specifies date for termination of service,notice of retrenchment shall be sent on the date on which theagreement was made, if the period for the date of the agreementto the date of retrenchment is of less than one month, otherwisenot less than one month before the date of retenchment.

(2)The employer shall prepare list of the workman in theparticular category from which retrenchment is contemplated,arranged according to the seniority of their service in that category, and cause copy thereof to be pasted on noticeboard in conspicuous place in the premises of the industrialestablishment at least seven days before the date of retrenchment.

(3)Before retrenchment of workman, the employer shall, forthe purposes of sending intimation on the workman for re- employment as required in Rule 43 obtain the address of theworkman in writing from the workman duly signed, or thumb-impression affixed by the said workman."

Clause -3 of From XIX, in which notice is to be sent to theSecretary to Government, Labour Department, alongwithcopy to the Labour Commissioner and to the ConciliationOfficer of the Region is part of the Rule, is reproduced asunder:-

" 3. Information regarding the total number of workmenemployed in the industry and the total number of those who willbe affected by the retenchment, is given below:

--------------------------------------------------------------------------------Class or designation of Number of workmenworkmen to be retrenched ------------------------------------- Employed To be retrenched --------------------------------------------------------------------------12 3 -----------------------------------------------------------------------------1.2.3.,etc."

From the perusal of the Rules framed, providing the procedure for retrenchment of workmen, it is clear that notice to theGovernment shall be given in Form-XIX in the manner providedunder Sub-Rule(1) clauses (a), (b) and (c). Clause (a) provides that thenotice of retrenchment shall be sent on the same day, on which thenotice is given to the workman as required under clause (a) of Section

6-N. Clause (b) provides that notice for retrenchment shall be sent on thesame day, on which the wages are paid to the workmen. Sub-Rule (2)provides that atleast seven days before the date of retrenchment theemployer shall prepare list of the workmen in particular category, fromwhich the retrenchment is contemplated, arranged according to the seniorityof their service in that category and shall paste it on the notice board inconspicuous places in the premises of Industrial establishment. Sub-Rule (3)of Rule 42 provides that before the retrenchment of the workmen, theemployer shall obtain the addresses in writing of the workman duly signed,or thumb-impression affixed by the said workman for the purposes ofsending intimation to the workman for re-employment, as required inRule 43 Rule-43 reads as under :-

" 43. Re-employment of retrenched workmen.-

(1) At least ten days before the date on which any vacancies are to befilled in his industrial establishment, an employer shall arrange forthe display on notice-board in conspicuous place in thepremises of the industrial establishment details of those vacanciesand shall also send intimation thereof to everyone of theretrenched workmen eligible to be considered therefore, byregistered post or personal delivery to the address given by theworkman concerned at the time of retrenchment or at any timethereafter : filled in his industrial establishment, an employer shall arrange forthe display on notice-board in conspicuous place in thepremises of the industrial establishment details of those vacanciesand shall also send intimation thereof to everyone of theretrenched workmen eligible to be considered therefore, byregistered post or personal delivery to the address given by theworkman concerned at the time of retrenchment or at any timethereafter :

Provided that where the number of such vacancies is less thanthe number of the retrenched workmen, it shall be sufficient if intimation is sent by the employer individually to

such number of seniormost amongst the eligible workmen as is notless than double the number of the vacancies:

Provided further that where the vacancy is of duration of lessthan one month, there shall be no obligation on the

employer to send intimation of such vacancy to individual retrenched workmen:

Provided further that if retrenched workman does not offerhimself for re-employment in spite of having received such intimation the employer may not intimate to him the vacancies that may be filledon any subsequent occasion."

From the reading of the aforesaid rule, it is clear that the

manner in which the notice is sent to the Government is safe guard in theinterest of the workman. The notice on the same date, on which either thenotice is given under clause (a) or wages are paid under clause (b) underSection 6-N, means that the notice to the Government should be given

simultaneously, which is clear from clause-3 the proforma, requiringthe information that "total number of those who will be affected by theretrenchment". Thus, notice is not required to be sent subsequent to theretrenchment. Therefore, sending of notice under the Rules framed by theState of U.P. cannot be said to be condition subsequent of retrenchment.

Sub Rules (2) and (3) read with Proforma, are part of Rule-42, which requires the procedure to be followed before the retrenchmentis effected. Thus, the manner provided under Rule -42 provides safeguard to the workmen, protecting them from illegal retrenchment as theGovernment may come to know about the legality or illegality of theretrenchment and in case of illegality, may protect workman. Thus,notice is made condition by statute protecting the right of workman,such notice constitutes condition an essential element of the cause ofaction (See "CORPUS JURIS SECUNDUM-IA" (supra)).

Therefore, clause (c) of Section 6-N of U.P.IndustrialDisputes Act read with Rule 42 of the Rules framed thereunder, whichhas been enacted with the same object i.e. to safe guard the interest of theworkmen, is clearly distinct and different than that which was consideredin the case of Bombay Union of Journalist (supra). The IndustrialDisputes (Bombay) Rules (1947), which were considered in BombayUnion of Journalist (supra), contemplated the service of notice within aweek and did not have the provision like sub-rules (2) and (3) as underRule-42 of the U.P. Rules. Moreover, this fact cannot be overlooked thatin Bombay Union Journalist (supra) Industrial Disputes Act, 1947 readwith Industrial Disputes (Bombay) Rules (1947) was involved. Here weare concerned with U.P. Industrial Disputes Act, 1947 read with Rulesframed thereunder. The Industrial Disputes (Bombay) Rules (1947) aredistinct from the Rules made under U.P. Industrial Disputes Act, 1947 sofar as the present controversy is concerned. Therefore, the judgment'delivered in Bombay Union of Journalists case (supra) is not applicableto the case in hand.

Therefore, in view of the provision contained in Rule-42of U.P. Industrial Disputes Rules, 1957, clues (c) of Section 6-N isalso condition precedent and violation thereof renders the action ofretrenchment illegal as in case of clauses (a) and (b) of Section 6-N of U.P. Industrial Disputes Act. Thus, clause (c) read with Rule 42 ismandatory.

In the present case the different retrenchment order werepassed on 30.5.95, 30.3.95, 30.03.95, 30.3.95, 30.3.95, 29.3.95, 30.5.95,29.5.95,30.5.95,30.3.95 and 30.3.95, which are contained inAnnexure No. 2 to 13 respectively to the writ petition and the noticessent to the Government are dated 31.03.98, 1.4.95 and 31.5.97 asshown and contained in Annexure No. 14 to 16 to the writ petition.

Thus, the notice have not been sent on the same day asrequired by clause (b) of Rule-1 and have been sent on subsequentdate. There is also no statement by the petitioner on record thatrequirement of sub-rule (2) was fulfilled before the retrenchment waseffected. There is further violation of sub-rule (3) as the perusal of theretrenchment orders contained in Annexures-2 to 13 shows that theworkmen were required to sent their permanent addresses while sub-rule (2) provides that before retrenchment is effected, the employershall obtain in writing the address from the workmen duly signed, orthumb-impression affixed by the said workmen before retrenchment iseffected. Therefore, from the evidence on record, it is established thatthere was non-compliance of Rule-42. Accordingly there was non-compliance of clause (c) of Section 6-N, which I have held to bemandatory.For the reasons recorded above, I hold that theretrenchment of the workmen, being in violation of Section 6-N, wasvoid and of no legal effects.

Now, I may proceed to examine as to whether there wasviolation of Sections 6-P and 6-Q of the U.P. Industrial Disputes Act.Section 6-P of the U.P. Industrial Disputes Act provides forretrenchment. It provides that where any workmen in an industrial

establishment, who is citizen of India, is to be retrenchment and hebelongs to particular category of workmen in that establishment, inthe absence of any agreement between the employer and the workmenin this behalf, the employer shall ordinarily retrench the workmenwho was the last person to be employed in that category, unless forreasons to be recorded the employer retrenches any other workmen.Section 6-P provides procedure for retrenchment that the principal oflast come first go shall be applied when retrenchment is to be effectedin particular category of workmen in the establishment. Since it is aprocedure for retrenchment, therefore, in sub-rule (2) of Rule 42 ofthe U.P. Industrial Disputes Rules protection has been made that theemployer shall prepare list of workmen in the particular categoryfrom which retrenchment is contemplated, arranged according to theseniority of their service in that category, and cause copy thereof tobe pasted on notice board in conspicuous place in the premises ofthe industrial establishment at least seven days before the date ofretrenchment. The Industrial Tribunal has recorded finding that SriDhirendra Singh Bisht and Sri Sainsarpal Singh and other, junior tothe respondent/workmen in these write petition, were transferred toGarhwal Division and are still working. This finding has not beenshown perverse rather it is admitted that they were transferred andwere junior, Therefore, it is establishment that the employer did notpublish list of workmen in the particular category from which theretrenchment was contemplated according to their seniority of theservice in that category and did not cause copy thereof to be pastedon notice board in conspicuous place in the premises of theestablishment at least seven days before the date of retrenchment.Therefore, there was violation of sub-rule (2) of Rule 42 as well asviolation of Section 6-P and Section 6-Q and Rule 43, quoted above. The provisions of Section 6-P of U.P. Industrial Disputes Act aresame as the provisions of Section 25-G and the provisions of Section6-Q are same as those of Section 25-H of the Industrial Disputes Act.

It has further been recorded finding of fact by theTribunal that time workmen/ Scalars from Tehri Division weretransferred to Garhwal Division and they were posted at KotdwaraLogging Division, Which shows that the work was available inGarhwal Division and the retrenched workmen/ Scalars ought to havebeen-re-employed in compliance of Section 6-Q." The last come firstgo." Or " The first come last go" is settled position of Industrial law(See Subong Tea Estate v. The Outgoing Management of Subong TeaEstate & another, reported in AIR 1967 Supreme Court 420 (V 54.)

In the present case neither any list was prepared,arranged according to the seniority and pasted on notice board in aconspicuous place as required under sub-rule (2) of Rule 42 norpermanent addresses, duly singed or thumb- impression affixed by theworkmen were obtained prior of effecting the retrenchment . Principalof 'first come last goes" was not followed and the retrenchmentworkmen were not offered for re-employment first, before effectingthe transfer of employees from Tehri Division of Garhwal Division.Therefore, the retrenchment orders were passed in violation ofprovisions of Section 6-N and 6-Q of the U.P. IndustrialDisputes Act and Rules 42 and 43 of U.P. Industrial Disputes Rulesframed thereunder. Therefore, retrenchment was void and was of nolegal consequence and the relationship of employee and employer didnot snap. Therefore, the Tribunal rightly held the reinstatement of theworkmen. The Tribunal also rightly awarded fifty per cent back wagesin the fact and circumstances of the case that the reference wasbelated one and the workmen had accepted the amount offered tothem towards the retrenchment compensation .

For the reasons recorded above, I do not find anyillegality or infirmity in the judgment passed by the IndustrialTribunal. The Petition is devoid of merits and is dismissedaccordingly. 25.03.2003P.Singh