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1997 Supreme(MP) 351
A. Tripathi, T.S. Doabia
Yogendra Kumar
vs
Municipal Council
Decided On : 2 July, 1997
A workman who has completed more than 240 days of continuous service in one calendar year is entitled to the benefits of Section 25F of the Industrial Disputes Act, 1947, and the remedy under Article 226 of the Constitution of India is available to an employee despite the alternate remedy under the Act.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 25F - RETRENCHMENT COMPENSATION - WORKMAN ENTITLED TO BENEFITS OF SECTION 25F IF COMPLETED MORE THAN 240 DAYS OF CONTINUOUS SERVICE IN ONE CALENDAR YEAR - REMEDY UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA AVAILABLE TO AN EMPLOYEE DESPITE ALTERNATE REMEDY UNDER THE ACT.
Fact of the Case:
The appellant, a workman, filed a writ petition in the High Court of Madhya Pradesh, alleging that his retrenchment was in violation of Section 25F of the Industrial Disputes Act, 1947, as he had completed more than 240 days of continuous service in one calendar year and was entitled to retrenchment compensation. The High Court dismissed the writ petition on the ground that an alternate remedy was available to the appellant under the Act.
Finding of the Court:
The High Court held that the appellant was entitled to the benefits of Section 25F of the Act as he had completed more than 240 days of continuous service in one calendar year. The Court also held that the remedy under Article 226 of the Constitution of India was available to the appellant despite the alternate remedy under the Act.
Issues: 1. Whether the appellant was entitled to the benefits of Section 25F of the Industrial Disputes Act, 1947. 2. Whether the remedy under Article 226 of the Constitution of India was available to the appellant despite the alternate remedy under the Act.
Ratio Decidendi: 1. The Court held that the appellant was entitled to the benefits of Section 25F of the Act as he had completed more than 240 days of continuous service in one calendar year, relying on several Supreme Court decisions. 2. The Court held that the remedy under Article 226 of the Constitution of India was available to the appellant despite the alternate remedy under the Act, relying on two Division Bench decisions of the High Court of Madhya Pradesh.
Final Decision: The High Court allowed the appeal and directed the Municipal Council to determine whether the appellant had completed more than 240 days of service in one calendar year and whether he was entitled to back wages.
T.S. Doabia, J.
1. The writ petition out of which this appeal arises was dismissed on the ground that an alternate remedy is available to the writ petitioner/ appellant under the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The writ petitioner had come to this Court and contended that there is breach of Section 25F of the Act, inasmuch as he was not paid retrenchment compensation though he had rendered more than 240 days continuous service in one calendar year. In fact the assertion made in the writ petition is that he had completed more than three years of continuous service.
2. The law is well settled. If a workman has completed more than 240 days of continuous service in one calendar year even with intermittent breaks, then the workman would be entitled to the benefits of Section 25F of the Act. See the following decisions:-
(i) State bank of India v. N. Sundara Money (1976-I-LLJ-478)(SC),
(ii) Hindustan Steel Ltd. v. Presiding Officer, labour Court, Orissa (1977-I-LLJ-1)(SC),
(iii) Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72)(SC),
(iv) Mohanlal v. Bharat Electronics Ltd., (1981-II-LLJ-70)(SC),
(v) Karnataka SRTC v. M.Baraiah, (1984-I- LLJ-110)(SC) and
(vi) Punjab Land Development and Reclamation Corpn. Ltd Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors. (1990-II-LLJ-70)(SC).
3. In view of the above legal position the writ petitioner-appellant is right in contending that he is entitled to the benefits of Section 25F of the Act. As noticed above the writ petition was dismissed on the ground that alternate remedy is available under the Act. Can the appellant be non-suited on this ground? This is the question which further requires to be gone into.
4. So far as this Court is concerned, the view taken is that retrenchment/termination of service of a workman without payment of compensation in terms of Section 25F of the Act, would be void ab initio. Reference in this regard be made to a Division Bench decision in the case reported as Mukhtyar Singh v. Food Corpn. of India and Ors. (1994-II-LLJ-488)(M.P.). Para 18 of the judgment is relevant and be noticed as under:
"It hardly needs to be emphasized that retrenchment not fulfilling the essential prerequisites mentioned in Section 25F of the Industrial Disputes Act is invalid and void ab-initio or non-est. As such it will be proper to give relief to workman in case of invalid retrenchment, even if he has come directly to this Court invoking writ jurisdiction."
5. Similar view has again been expressed by another Division Bench of this Court in the case reported as Mahesh Bhargawa v. State of M.P. and Ors. (1994-I-LLJ-1113). Para 20 of the Judgment is relevant. This may again be noticed:
"The petitioner in the present case did not avail of the alternative remedy available to him under the Industrial Disputes Act but came directly to this Court in a writ petition. He has simply prayed for quashing of termination order in the writ petition and has not gone further, and in our opinion rightly, to pay for back wages. After the termination is quashed, the petitioner can seek his remedy that may be available to him under law for back wages."
6. In view of the above two Division Bench decisions given by this Court, it can safely be concluded that remedy under Article 226 of the Constitution of India is available to an employee and merely because he can seek remedy under the Industrial Disputes Act, 1947, is not a ground to not to grant the requisite relief.
7. The learned counsel appearing for the Municipal Council, Morena (hereinafter referred to as Council) submits that the question as to whether the appellant had completed more than three years of continuous service is a question of fact and it cannot be gone into in these proceedings.
8. After taking note of the submission made by the learned counsel for the parties, it is directed that the Council shall afford an opportunity of hearing to the appellant and would determine of its own as to
