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1999 Supreme(All) 1170
IN THE HIGH COURT OF ALLAHABAD
Yatindra Singh, J.
U.P.JAL NIGAM, LUCKNOW - Appellant
Versus
PRESIDING OFFICER, LABOUR COURT, U.P., KANPUR - Respondents
C. M. W. P. 21002 Of 1997
Decided On : 08/13/1999
S.M.H.Zaidi, SABHAJEET YADAV
The notice to the State Government in the prescribed proforma under Section 6n(c) of the U. P. Industrial Disputes Act, 1947 is not mandatory and its absence does not invalidate the retrenchment.
Headnote:
RETrenchment - U. P. Industrial Disputes Act, 1947 - Section 6n - Notice to State Government - Mandatory or Directory - Retrenchment Compensation - Actual Payment or Tendering Sufficient - Junior Engineer's Competence to Retrench.
Fact of the Case:
The petitioner, U. P. Jal Nigam, retrenched the contesting respondent, a daily wage helper, on the ground of surplus staff. The labor court reinstated the respondent, holding that the retrenchment was invalid due to the absence of a notice to the State Government in the prescribed proforma, the retrenchment order being passed by a Junior Engineer, and the retrenchment compensation not being paid before the retrenchment.
Finding of the Court:
The court held that the notice to the State Government in the prescribed proforma is not mandatory and its absence does not invalidate the retrenchment. The purpose of the notice is to enable the State Government to take necessary steps in a dispute between an employer and the employee. It is for the benefit of the State Government and it is for the State Government to complain about the lack of this notice. The State Government has not made any complaint in this case.
Issues: 1. Whether the notice to the State Government in the prescribed proforma is mandatory? 2. Whether the Junior Engineer was competent to retrench the contesting respondent? 3. Whether the retrenchment compensation should be actually paid before the retrenchment or tendering the amount or information to collect the amount is sufficient compliance?
Ratio Decidendi: 1. The condition of sending notice to the State Government under sub-clause (c) of Section 6n of the Act is not a condition precedent. Its purpose is only to give intimation to the appropriate Government about the retrenchment so that the Government may have up-to-date information about the conditions of employment in different industries within its region and can take appropriate action on the same. 2. The decision to retrench/terminate the services was that of the Nigam and the Junior engineer had merely completed the formalities for the same. Even apart from it, the Junior engineer was competent to appoint and terminate the services of the contesting respondent. 3. The retrenchment compensation was offered to the workman but he was not on the spot to receive it where he should be, that is why it was sent by money order on the next date. Tendering the amount before the dismissal is substantial compliance of Section 6n of the Act.
Final Decision: The court allowed the writ petition, quashed the labor court's award, and upheld the retrenchment of the contesting respondent.
( 1 ) IS a notice, under the prescribed proforma, to the State Government before retrenchment of a workman mandatory ? Should the retrenchment compensation be actually paid before retrenchment, or tendering the amount or information to the workman to collect the amount is sufficient compliance of the retrenchment? These, amongst the other questions, are involved in this writ petition. This is how they arise. FACTS
( 2 ) SR! Ashiq All (the contesting respondent) was appointed as a helper In a pumping station on dally wages on 2. 2. 1990 in U. P. Jal Nigam (the Nigam for short ). Subsequently, a decision was taken on 20. 5. 1991 by the Chairman of the Nigam that there are surplus persons working in the nigam and persons appointed on dally wages after 31. 8. 1989 be retrenched. In pursuance of the decision, the services of the contesting respondent was retrenched on 20. 7. 1991. According to the Nigam, a notice was issued to the contesting respondent but could not be served as he was absent from his working place and it was pasted there (at his working place ). Thereafter, the notice was sent by the registered post on 21. 7. 1991 and retrenchment compensation was also sent by the money order on 21. 7. 1991. The retrenchment compensation was received by the contesting respondent on 29. 7. 1991. The labour court initially passed an ex parte award, which was set aside in an earlier writ petition filed by the Nigam. After remand, the labour court has again reinstated the contesting respondent on the finding that : (1) no notice as required under section 6n (c) of the U. P. Industrial Disputes Act. 1947 (the Act for short) has been sent to the state Government ; (2) the order of the retrenchment has been passed by a Junior Engineer who was not the appointing authority. The Nigam and its Engineers have filed the present writ petition against this award. POINTS FOR DETERMINATION
( 3 ) I have heard Sri Sabhajeet Yadav, learned counsel for the petitioner and Sri Haider Zaidi, learned counsel for the contesting respondent. Following points arise for determination in this case :
(i) It is admitted that notice in the proforma as contemplated in Rule 42 has not been sent to the state Government. Only a copy of the notice of retrenchment to the contesting respondent has been sent to the State Government. Does it invalidate the retrenchment ? Is sending of a notice to the State Government in the prescribed proforma mandatory ? (ii) The services of the contesting respondents were terminated by the Junior Engineer. Was he competent to retrench the services of the contesting respondent ? (iii) The contesting respondent was retrenched on 20. 7. 1991. But the retrenchment compensation was received by him on 29. 7. 1991, Is it valid? Should the retrenchment compensation be actually paid before retrenchment or tendering the amount or information to collect the amount is sufficient compliance ? Is retrenchment Invalid on any other ground ? 1st POINT : IS NOTICE TO THE state GOVERNMENT mandatory?
( 4 ) SECTION 6n of the Act prescribes condition precedent for retrenching a workman. Substantially, it is the same as Section 25f of the Industrial Disputes Act, 1947 (the Central Act for short ). These sections prescribe three conditions, which are mentioned in sub-sections (a), (b)and (c ). The condition in sub-clause (c) is regarding notice In the prescribed manner to the State government. According to Sri Halder Zaidi, learned counsel for contesting respondent, this condition of serving a notice in the prescribed manner on the State Government in sub-clause (c)is mandatory. It has not been followed in this case ; merely a copy of the retrenchment notice, which was served on the contesting respondent. has been sent to the State Government. This according to him is not in the proforma which is prescribed under Rule 42 of U. P. Industrial disputes Rules. 1957 (the Rules for short ). He has also cited a decision of the Supreme Court in a. K. Roy
