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IN THE HIGH COURT OF ORISSA
K.P. Mohapatra, A.K. Padhi, JJ.
SHYAM SUNDAR ROUT - APPELLANT
Versus
ORISSA STATE ROAD TRANSPORT CORPORATION AND OTHERS - RESPONDENT
Original Jurisdiction Case No. 2211 of 1988
Decided On : 10-05-1989
INDUSTRIAL DISPUTES ACT - SECTION 25-F - RETRENCHMENT - CONDITIONS PRECEDENT - COMPLIANCE - BONA FIDE ENDEAVOUR TO PAY COMPENSATION - DISPUTED QUESTIONS OF FACT - ADJUDICATION UNDER INDUSTRIAL DISPUTES ACT.
Fact of the Case:
Two conductors, who had worked for more than 240 days in a year, were retrenched without being paid retrenchment benefits as required under Section 25-F of the Industrial Disputes Act. The employer claimed that it had sent the benefits to the conductors' residences, but they were absent and the money was returned. The conductors denied receiving the benefits and claimed that the employer had not made a bona fide effort to pay them.
Finding of the Court:
The court held that the mandatory provisions of Section 25-F of the Act must be strictly complied with and that non-compliance renders the order of retrenchment void ab initio. However, the court also held that when the payment of wages in lieu of notice and retrenchment compensation and retrenchment order can be regarded as constituting a single transaction, then the retrenchment order will not be invalid in the eye of law. The court further held that a bona fide endeavour on the part of the employer to pay the compensation amount and one month's wages in lieu of notice along with the retrenchment order should be taken as due compliance where the workman avoids acceptance of compensation with a view to invalidate the order of retrenchment.
Issues: 1. Whether compliance with Section 25-F of the Act is required as the Petitioners' Services were contractual and for a specific period; 2. Whether tendering or endeavour to give the compensation benefits on the part of the employer which were made impossible by the action of the workman will tantamount to compliance of Section 25-F of the Act; and 3. When there is a dispute regarding number of years of continuous service and when there was actual endeavour on the part of the employer to comply with Section 25-F of the Act, can it be adjudicated under the writ jurisdiction
Ratio Decidendi: The court held that the employer had made a bona fide effort to pay the retrenchment benefits to the conductors, but that the conductors had avoided accepting the payments. The court also held that the disputed questions of fact regarding the number of years of continuous service and the employer's compliance with Section 25-F could not be adjudicated in a writ jurisdiction and should be referred to the appropriate authority under the Industrial Disputes Act.
Final Decision: The court disposed of the writ applications and directed the appropriate authority to make a reference if the workman raises a dispute under the Industrial Disputes Act in the proper manner.
JUDGMENT :
A.K. Padhi, J. - In these two writ applications as common question of law arise for consideration both the matter were heard together and are disposed of by this common judgment.
2. The facts of O.J.C. No. 2211 of 1988 are the Petitioner under intermittent orders of appointment for specified periods continued in service from 13-3-1980 till 18-7-1988 as a conductor under opp. party No. 1. The Petitioner comes within the definition of "workman" and the provisions of Industrial Disputes Act are applicable to him. It has been asserted in the writ application that the Petitioner had served for 240 days in each financial years and as such his service comes within the definition of "continuous service" as envisaged u/s 25-B of the Industrial Disputes Act. It is claimed that the Petitioner was selected by the Divisional Selection Committee and his appointment should have been regularised. On 26-9-1986 a notice was served on him purported to be a notice u/s 25 F of the Industrial Disputes Act giving him one month's prior notice of retrenchment. The relevant portions of Annexure-I, the notice, is as follows:
You are directed to note that your Services will not be required with effect from 29-7-1988 (Forenoon). This may be treated as one month's notice as required u/s 25-F(a) of the I.D. Act 1947. You are allowed to draw 45 days average pay retrenchment compensation.
Before the notice period of one month was completed, the Petitioner was relieved from duty on 18-7-1988. The assertion by the Petitioner is that he was not paid the retrenchment compensation or pay of one month in lieu of one month's notice before he was unilaterally relieved from duty. It is submitted that payment of retrenchment benefits being pre-condition to the retrenchment order having not been complied with, the retrenchment order is void ab initio as per the provisions of Section 25-F(b) of the Act and as such is liable to be quashed.
3. Opp. party No. 1 has filed a counter affidavit. The employment of the Petitioner for 240 days for preceding three years is admitted. It is averred, after being aware that he is to be retrenched the Petitioner left the office to avoid service of retrenchment order, relieve order and payment of retrenchment compensation. As the Petitioner was absent on 18-7-1988 from the office, the retrenchment order, the relieve order and the retrenchment benefits in shape of money were sent to the residence of the Petitioner at Baripada on the same day. This was delivered back by the messenger with intimation that the Petitioner was absent from his residence. On the next day (19-7-1988) the retrenchment benefits amounting to Rs. 2,538/- was deposited in the bank and bank draft bearing No. TTA-95-610710 was obtained on 20-7-1988. On the same day along with the order of retrenchment and the relieve order and the draft were sent to the Petitioner by Registered Post in his residential address. This also returned undelivered to the D.T.M. with the endorsement that the addressee was absent. On 12-8-1988 the Petitioner appeared in the office and gave an application in writing, the English translation of which is as follows:
My retrenchment benefits were sent to my house. I had not taken it as I was absent from the house. The said money I want to take today i.e. on 12-8-1988. (translation is mine)
On 12-8-1988, the Petitioner has also signed in token of the receipt
of letter dated 18-7-1988, memo dated 1871988, and letter dated 20-7-1988 and receipt of the bank draft. The assertion that the retrenchment benefits and the retrenchment order could not be served on the Petitioner due to his absence from the office as well as the residence has not been admitted nor specifically denied by the Petitioner by any affidavit. In the counter affidavit filed by the opp. party No. 3 it has been averred that the Petitioner had worked only for three years for a period of 240 days and the Petitioner was entitled to 45 days of pay as required u/s 25-F(B) of the Act. This
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