13 CHAPTER 5-A.pdf

Lay-Off and Retrenchment(Sections 25A to 25J) Synopsis A. Scope Object and Applicability . . . . . . . . . . 2287 FI. Chapter VA not a complete code in itself on lay off compensation hence compensation is payable even in establishments to which neither Chapter VA nor Standing Orders are applicable (S.C.2J) . . . 2287 XIII. Section when not applicable workmen entitled to full wages for lay off as per contract of service (Mad.DB). . . . . . . . . . . . 2289 XIV. Adjudication procedure to determine disputes under Chapter VA . . . . . . . . . . . . 2290 II. Compliance with provisions of Chapter-VA not a condition precedent to lay-off (Bom. DB) . . . . 2287 a) Dispute to be adjudicated as per provisions of Chapter V-A though raised before a forum constituted under State law (All.HC) . . . . . . . . 2290 III. Chapter VA does not confer beneficial rights on employers but imposes obligations on them in respect of lay-off and retrenchment in the interests of labour (Bom.DB) . . . . . . . . . . . . 2287 B. Application of Sections 25-C to 25-E – Sec. 25A . . 2290 IV. Rights of temporary employees under Chapter V-A cannot prevail over the rights of Public Service Commission recruits as it violates Art.16 and 320 (Ker.DB) . . . . . . . . . . . . . . . . . . . . . . . 2287 FV. Chapter VA confers retrenchment and lay–off benefits to temporary employees by virtue of Sec. 25J (S.C.3J). . . . . . . . . . . . . . . . . . . 2288 VI. Chapter V-A will prevail over service regulations entitling a budli worker to retrenchment compensation terminated for unsatisfactory work without enquiry (Karn.HC) . . . . . . . . . 2288 VII. Government instructions contrary to the provisions of Chapter V-A cannot sustain (P&H.DB) . . . . . . . . . . . . . . . . . . . . . . 2288 I. Industrial Establishment u/s. 25A . . . . . . . . . 2290 Fa) Expression ‘Industrial Establishment’ does not lay down any test for determining an industrial establishment (S.C.3J) . . . . . . . . . . . . . . . . 2290 II. Expression ‘Preceding calendar month’ in sub-Sec. (1) means. . . . . . . . . . . . . . . . . . 2290 a) The point of time when right to claim lay off compensation arose (Mad.DB) . . . . . . . . . . . . 2290 III. Burden of proof as to number of workmen employed in an industrial establishment . . . . . 2291 a) Is on the employee who contends that more than 300 persons were engaged in the preceding 12 months (Bom.DB). . . . . . . . . . . . . . . . . . . . . . . 2291 IV. Seasonal establishment. . . . . . . . . . . . . . . 2291 VIII. Provisions of chapter VA prevail over Sec. 7 of Andhra Pradesh Act 1994 in the matter of regularization hence daily wage workman who is protected u/ Chapter VA cannot be terminated u/ A.P. Act 1994 though the latter bars regularization (AP.DB) . . . . . . . . . . . . . . . 2288 FIX. Chapter VA applies to cases of retrenchment under A.P. Shops and Establishment Act (S.C.2J) . . . . 2289 X. Chapter V-A applicable to lay-off though initiated under State law(All.HC) . . . . . . . . . . . . . . 2289 a) Determinative criteria . . . . . . . . . . . . . . . . 2291 1. Number of days an establishment in operation during preceding 12 months is not determinative but factors related to nature or employment pattern are determinative (Mad.DB) . . . . . . . 2291 b) Seasonal establishment includes . . . . . . . . . . . 2292 1. Tile factory (Ker.DB) . . . . . . . . . . . . . . . 2292 c) Excludes . . . . . . . . . . . . . . . . . . . . . . . 2292 XI. Chapter V-A applicable to badli workmen since covered under Sec. 25C (Karn.HC) . . . . . . . . 2289 XII. Applicable to temporary employees appointed under Kerala State Service Rules entitling them to protection under Chapter VA (Ker.DB). . . . . 2289 1. Sugar Factory when it engages itself in permanent activities though it’s crushing activity is seasonal (Guj.DB) . . . . . . . . . . . 2292 d) Authority to determine the question as to seasonal character of an industrial establishment . . . . . . . 2292 2258 Chapter VA – Lay-Off and Retrenchment 1. Appropriate Government to decide when question is referred to it u/s. 25A (Ker.DB) . . . . . . . . . 2292 1. Meaning of Continuous service for one year u/s. 25B(1) . . . . . . . . . . . . . . . . . . . . 2298 2. Decision of the Appropriate Government not necessary when there is no dispute about seasonal character (MP.DB) . . . . . . . . . . . 2293 i) In order to attract Sec. 25B(1) the person must have been in service not only on days when he actually worked, but also on days he could not work (Karn.HC) . . . . . . . . . . . . . . . . . . . . . 2298 3. Reference of the dispute as to entitlement to lay off compensation not vitiated by subsequent raising of the question of seasonal character by management (Mys.DB) . . . . . . . . . . . . . . 2293 ii) Performance of work in a different capacities is immaterial if the employer is same (Raj.DB) . . . 2299 4. Appropriate Government acquires jurisdiction to grant or deny exemption from Chapter VA as seasonal establishment only when it arises as an incidental question in a claim like lay-off compensation (Mad.DB) . . . . . . . . . 2293 V. Reliefs when admissible. . . . . . . . . . . . . . . 2294 a) No relief is admissible u/s. 25C to 25E when workman merely challenged his termination but not sought any relief u/s. 25C to 25E (Bom.HC) . . . . . . . . . . . 2294 b) No lay-off compensation payable if factory is of seasonal character (Ker.HC) . . . . . . . . . . . . . 2294 C. Definition of Continuous Service – Sec. 25B . . . . 2294 I. Object . . . . . . . . . . . . . . . . . . . . . . . . 2294 a) The object of deeming provision is to mitigate workman’s hardship in being made to serve intermittently or after periodical breaks (Mad.DB) . . 2294 iii) If workman was in continuous service for one year in terms of Sec. 25B(1) uninterrupted by the employer, it is immaterial whether he completed 240 days in a particular year (Guj.HC) . . . . . . 2299 iv) Expression ‘cessation of work’ u/s. 25B(1) excludes cessation of work on account of employer’s inability to provide work for specific reasons though employee is willing to work (AP.DB). . . . . . . . . . . . . . . . . . . . . . 2299 v) When workman has put in long service in successive years it is immaterial that he did not complete 240 days some of those years (Bom.HC) . . . . . . . . . . . . . . . . . . . . . 2300 2. When service is deemed to be continuous service for a period of one year u/s. 25B(2) explanation of deeming provision . . . . . . . . . . . . . . . 2300 i) Service is deemed to be continuous despite periodical terminations and re-employment during workman’s service of 240 days in the preceding twelve months (AP.DB) . . . . . . . . 2300 II. Applicability . . . . . . . . . . . . . . . . . . . . . 2295 Fa) Applicable if workman has actually worked for 240 days in a period of twelve months (S.C.CB) . . . 2295 b) Definition of continuous service is applicable to Secs. 25FF and 25FFF (Raj.DB) . . . . . . . . . . . 2295 Fc) Not applicable to adhoc employees though completed 240 days (S.C.3J) . . . . . . . . . . . . . . . . . . . 2295 d) Not applicable to determine the status of workman since non-completion of 240 days does not affect the status (AP.HC) . . . . . . . . . . . . . . . . . . 2296 Fe) Not applicable to daily rated workmen employed in a Government company since they cannot be on par with Government servants enjoying status and security of tenure (S.C.2J) . . . . . . . . . . . . . . 2296 III. Continuous service . . . . . . . . . . . . . . . . . 2296 a) Prior to amendment of Sec. 25B . . . . . . . . . . . 2296 F 1. Parties bound by meaning given to the expression in the award (S.C.3J) . . . . . . . . . . . . . . . 2296 F 2. Employment for 12 months is a pre-condition for determining number of days worked (S.C.3J) . . . . . . . . . . . . . . . . . . . . . . 2297 F ii) When employee has worked for not less than 240 days in a period of twelve months (S.C.3J) . . 2300 F iii) When employee completed 240 days though he is not in service for a period of twelve months (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . 2301 iv) When workman rendered 240 days service though not continuously but in a period of preceding twelve months or 365 days (Bom.HC) . . . . . . 2302 v) It is sufficient compliance of the section if workman completes 240 days within eight months and need not work for twelve months (Guj.HC) . . . . . . . . . . . . . . . . . . . . . 2302 3. When not deemed to be in continuous service. . . 2302 F i) When employee has worked for less than 240 days (S.C.2J) . . . . . . . . . . . . . . . . . 2302 ii) When intervening breaks given to a daily wager were not malafide (Raj.DB) . . . . . . . . . . . 2303 iii) Cannot be deemed only by relying on the witnesses’ statement in the cross-examination that employee has worked for 240 days (Raj.HC) . . . . . . . . . . . . . . . . . . . . . 2303 4. Computation of continuous service u/s. 25B(2). . 2303 3. Need not necessarily mean completion of one year of service but covers service of 240 days in any particular year of 12 calendar months (Bom.DB) . . . . . . . . . . . . . . . . . . . . . 2297 F i) Expression ‘actually worked’ includes Sundays and paid holidays (S.C.2J) . . . . . . . . . . . . 2303 F 4. Interruption is not relevant when employee has worked for 240 days (S.C.CB) . . . . . . . . . . 2298 ii) Expression ‘actually worked’ is to enable a workman to get the benefit of fictional service notwithstanding the interruptions (Mad.DB) . . . . . . . . . . . . . . . . . . . . . 2305 b) After amendment of Sec. 25B by Act 36 of 1964 . . . 2298 Synopsis iii) Preceding twelve months – how to compute . . . 2305 F a) To be counted backwards just preceding the relevant date (S.C.2J) . . . . . . . . . . . . . 2305 2259 r) All days when employee was in employment and paid wages as per statute/contract /Standing Orders (MP.DB) . . . . . . . . . . 2311 b) To consider a year immediately before his termination (P&H.HC) . . . . . . . . . . . . 2306 s) Service rendered by workmen in different categories like mason and khalasi to be considered (Pat.DB). . . . . . . . . . . . . . 2311 F c) Expression ‘preceding’ is absent in Sec. 2(g) of U.P. Industrial Disputes Act (S.C.2J) . . . . 2306 t) The period of strike though illegal when it does not constitute misconduct (Bom.DB) . . 2311 iv) Computation of 240 days includes . . . . . . . . 2307 u) To include the period of services in PWD though employee was transferred to Municipality since he was employed in the industry (AP.HC) . . . . . . . . . . . . . . . 2312 a) The date on which a workman joined service even on adhoc basis but not to compute from the date of his regular recruitment (P&H.HC) . . . . . . . . . . . . . . . . . . . 2307 b) The period of fresh appointment on workman’s re-employment but not from the date on which he was temporarily employed when there is a clear break (Bom.HC) . . . . . . . . . . . . 2307 c) All those days for which wages paid under express or implied contract of service (MP.HC). . . . . . . . . . . . . . . . . . . . 2307 d) Service rendered pursuant to interim order (Guj.HC) . . . . . . . . . . . . . . . . . . . 2307 e) The period of service rendered under different schemes under the same employer (Bom.HC) . . . . . . . . . . . . . . . . . . . 2308 f) Service rendered in different projects but under one sub-division (P&H.DB) . . . . . . 2308 g) The period between the date on which he was terminated and the date of his reinstatement if he is reinstated as per terms of settlement (P&H.HC) . . . . . . . . . . . . . . . . . . . 2308 h) Service of 20 days rendered every month by workman when paid for the whole month (Ker.HC). . . . . . . . . . . . . . . . . . . . 2309 i) Period of service interrupted on account of accident during the course of job (P&H.DB) . 2309 v) Service rendered in a sub-division to the service at Divisional Office since sub-divisional office is functioning under Divisional Office (Bom.HC) . . . . . . . . . . . . . . . . . . . 2312 v) Computation of 240 days excludes . . . . . . . . 2312 F a) The period of service rendered in different units when there is no integrality between them though they are under the same PWD (S.C.2J) . . . . . . . . . . . . . . . . . . . . 2312 b) Notice period indicating intention to terminate services of workman (Mad.DB). . . . . . . . 2313 c) Service rendered by employee in separate establishments (Raj.DB) . . . . . . . . . . . 2313 F d) The service rendered in different establishments though of same employer when administrative set up of the establishments are different (S.C.2J) . . . . . . . . . . . . . . . . . . . . 2314 F e) Broken spells of temporary employment under different units of an employer (S.C.2J) . . . . 2314 f) All artificial breaks in service (Mad.DB) . . . 2315 g) Sundays and holidays in case of daily wager for which no wages paid (P&H.HC) . . . . . . 2315 j) Service rendered during probation (Raj.HC) . 2309 h) Holidays and Sundays even if paid since the words ‘actually worked’ exclude it (Mad.DB) . . . . . . . . . . . . . . . . . . . 2316 k) The period interrupted due to sickness or authorized leave (AP.DB). . . . . . . . . . . 2309 i) Service rendered by workman due to interim orders of the High Court (Guj.DB) . . . . . . 2316 l) Paid holidays such as public festival holidays, Sundays and leave with pay (Raj.DB) . . . . . 2309 j) Training period as an apprentice (All.HC). . . 2317 m) Period of leave with pay (All.DB) . . . . . . . 2310 k) Period of continuous absence for three years (Raj.HC). . . . . . . . . . . . 2317 n) Service with the same employer though not in the same capacity (Raj.DB) . . . . . . . . . . 2310 l) The period of apprenticeship (Guj.HC). . . . 2317 o) Service rendered by the employee in the transferee company in case of transfer of his department to a different body (Del.HC). . 2310 c) Burden of proof as to 240 days of continuous service . . . . . . . . . . . . . . . . . . . . . . . . 2317 F 1. Lies on the employee (S.C.3J) . . . . . . . . . . 2317 p) Period of casual service rendered prior to regularization (Raj.DB) . . . . . . . . . . . . 2310 i) When the workman discharges original burden . . . . . . . . . . . . . . . . . . . . . . . 2322 q) Period of service by daily wager employed through employment exchange after termination of earlier contracts for fixed tenure (P&H.DB) . . . . . . . . . . . . . . . . . . . 2311 F a) When employee proved 240 days service in a period of 12 months, no further proof of 240 days service in each of the 8 years necessary (S.C.2J) . . . . . . . . . . . . . . . . . . . . 2322 2260 Chapter VA – Lay-Off and Retrenchment b) By adducing records in support of service of 240 days (AP.HC). . . . . . . . . . . . . . . 2323 iii)When breaks in service/termination can be unfair labour practice . . . . . . . . . . . . . . . 2331 F c) By producing certificate of employment (S.C.3J) . . . . . . . . . . . . . . . . . . . . 2323 a) When breaks given to prevent the completion of 240 days (P&H.DB) . . . . . . . . . . . . 2331 2. Is on the employer . . . . . . . . . . . . . . . . 2324 IV. Reliefs/benefits available to workmen under various provisions of the Act on completion of continuous service . . . . . . . . . . . . . . . . . . 2332 i) As per the doctrine of ‘Non est factum’ and ‘res ipsa loquitor’ (AP.DB) . . . . . . . . . . . . 2324 a) Relief of reinstatement . . . . . . . . . . . . . . . . 2332 ii) Burden of proof on the employer would arise subsequently after workman discharging his burden (Bom.DB). . . . . . . . . . . . . . . . . 2324 1. When can be . . . . . . . . . . . . . . . . . . . 2332 d) Inference as to service of 240 days . . . . . . . . . . 2324 i) When employer terminates services without complying Sec. 25-F (P&H.DB) . . . . . . . . . 2332 1. When can be drawn . . . . . . . . . . . . . . . . 2324 2. When cannot be . . . . . . . . . . . . . . . . . . 2333 i) When employer refused to provide records and witnesses made evasive statements (Raj.DB) . . . . . . . . . . . . . . . . . . . . . 2324 i) When employee had not completed 240 days and failed to prove violation of Sec. 25G & 25H(Raj.DB) . . . . . . . . . . . . 2333 ii) When employer failed to produce muster roll (P&H.DB). . . . . . . . . . . . . . . . . . . . . 2325 ii) When there is no proof of completion of 240 days (Ori.DB) . . . . . . . . . . . . . . . . 2333 iii) When employer failed to produce attendance register/muster roll (P&H.DB) . . . . . . . . . . 2325 iii) When there is no finding in the award as to completing continuous service in one year since award holding termination as illegal is not sustainable (MP.HC) . . . . . . . . . . . . . . . 2333 iv) When employer fails to specifically deny workman’s claim (Raj.HC) . . . . . . . . . . . . 2325 b) Relief of continuity of service can be . . . . . . . . . 2333 2. When cannot be drawn . . . . . . . . . . . . . . 2325 1. When termination is void ab initio (MP.DB) . . . . 2333 F i) When there is no evidence on either side except written statements (S.C.2J) . . . . . . . . . . . . 2325 F ii) No adverse inference on employer’s failure to produce relevant muster rolls when the burden of proof is on workman (S.C.2J) . . . . . . . . . 2326 2. Continuity of service to be taken into account for granting special grade or stagnation increments (AP.HC) . . . . . . . . . . . . . . . 2334 c) Relief of regularisation . . . . . . . . . . . . . . . . 2334 iii) When workman engaged is a daily wager and dispute raised after two years (Del.HC) . . . . . . 2328 1. Regularization means . . . . . . . . . . . . . . . 2334 e) Evidence in proof of continuous service . . . . . . . 2329 1. What can be . . . . . . . . . . . . . . . . . . . . 2329 F i) The expression ‘regular’ and ‘regularisation’ does not imply regularization but meant only to cure defects of procedural irregularities (S.C.3J) . . . . . . . . . . . . . . . . . . . . . . 2334 i) Log sheet, and attendance registers (Raj.HC) . . . 2329 2. What amounts to regularisation. . . . . . . . . . 2335 ii) Attendance register and recruitment rules (Bom.HC) . . . . . . . . . . . . . . . . . . . . . 2329 i) Mere granting regular salary to workman performing similar work as that of regular workmen does not amount to regularization (Guj.HC) . . . . . . . . . . . . . . . . . . . . . 2335 F iii) Letter of appointment and termination letter (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . 2330 3. Factors to be considered for regularisation . . . . 2335 iv) Vouchers by which wages were paid (Jhar.HC). . 2330 v) Charts containing service details can be evidence (P&H.HC). . . . . . . . . . . . . . . . . . . . . 2330 vi) Workman’s assertion that he had worked for 240 days in each of ten years though not corroborated is sufficient to grant absorption (P&H.DB) . . . . 2330 i) Number of posts and funds, the need for retention of employee and nature of appointment whether on daily wage basis or adhoc basis etc. are to be considered (All.DB) . . . . . . . . . . . . . . . 2335 ii) Reservation policy of the Government to be considered while regularizing workmen (Pat.HC). . . . . . . . . . . . . . . . . . . . . . 2335 2. What cannot be . . . . . . . . . . . . . . . . . . 2331 4. When can be granted . . . . . . . . . . . . . . . 2335 F i) Affidavit by workman is insufficient to prove continuous service of 240 days (S.C.2J) . . . . . 2331 ii) Bonus register and attendance certificate since secondary evidences and cannot be proof of the date of entry into service (Bom.HC). . . . . . . . 2331 F i) When causal labour working for 30 long years was terminated (S.C.2J). . . . . . . . . . . . . . 2335 ii) To be granted to contract workmen when employer maintained muster roll, attendance, and supervised the workmen (P&H.HC) . . . . . 2336 Synopsis 2261 iii) Can be granted only as per the prevailing scheme (HP.DB) . . . . . . . . . . . . . . . . . 2336 F x) When employees are appointed on a time bound project and not in sanctioned posts (S.C.2J). . . . 2347 iv) When workmen rendered service for longer period ranging from seven years to 15 years service on contingent basis and service rules contained clause regarding absorption (Karn.DB) . . . . . 2337 xi) Regularisation cannot be granted if employer himself ceases to exist (Del.DB) . . . . . . . . . 2348 v) Can be granted from initial date of appointment since there was no dispute regarding appointment (Ori.HC). . . . . . . . . . . . . . . . . . . . . . 2337 F vi) Regularisation cannot be from anterior date when services were regularised in reasonable time and there was delay in filing the claim and wrong criterion of Sec. 25B applied (S.C.2J) . . . 2338 vii)Can be granted to contract worker when establishment is prohibited from engaging contract labour and on the evidence of his employment in the company (All.HC) . . . . . . 2338 viii) When workmen engaged through contractor have completed 240 days and the contract is sham (Jhar.HC) . . . . . . . . . . . . . . . . . . . . . 2338 F ix) Temporary driver to be absorbed if pilot plant continued on permanent basis and post is not abolished (S.C.2J). . . . . . . . . . . . . . . . . 2339 xii) Regularisation cannot be of daily wagers but Labour Court or Tribunal can only direct consideration of cases against vacancies (Jhar.HC). . . . . . . . . . . . . . . . 2348 xiii) Regularization of an ineligible person cannot be on the ground that some ineligible persons were previously regularized (AP.HC) . . . . . . 2349 F xiv) Regularization cannot be of an employee under-aged on the date of appointment but attained required age later (S.C.2J) . . . . . . . . . . . . . . . . . 2349 F xv)Regularisation cannot be of an employee unless he submits original certificate or certified copy of passing the qualifying examination requisite for the post (S.C.2J). . . . . . . . . . . . . . . . 2349 xvi) Regularization cannot be if workman is not appointed against any existing vacancy or appointed through any selection process (AP.HC). . . . . . . . . . . . . . . . . . . . . . 2350 x) Whether regularization can be denied on the ground of HIV status . . . . . . . . . . . . . . . 2339 F xvii) Regularisation cannot be of a workman who is appointed on the basis of fixed tenure (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . 2350 a) Cannot be denied on the said ground if certified physically fit and no risk to others by medical opinion (Bom.DB) . . . . . . . . 2339 xviii) Regularisation cannot be of casual workmen though completed 240 days of service (Cal.DB) . . . . . . . . . . . . . . . . . . . . . 2351 5. When cannot be granted . . . . . . . . . . . . . 2340 F xix) Regularisation cannot be of daily rated workmen of a Government company since they do not enjoy any status or security of tenure as Government servants u/Art. 311 and have only limited protection (S.C.2J) . . . . . . . . . . . . 2351 i) When appointments are violative of cadre strength or educational qualifications (Mad.DB) . . . . . 2340 ii) When there is no cogent evidence of completing 240 days (Bom.HC) . . . . . . . . 2340 F iii) Cannot be granted where company is sick and Government is making efforts to present for revival proposal (S.C.2J) . . . . . . . . . . . . . 2340 F xx) When claimants are empanelled to meet temporary requirement and such panel is in force only for one year (S.C.2J) . . . . . . . . . . 2352 d) Relief of pension . . . . . . . . . . . . . . . . . . . 2353 iv) When workmen appointed under contract without sanction of posts and compliance of selection procedures (Cal.DB) . . . . . . . . . . . . . . . 2341 1. Not available to daily wagers who had not completed 240 days in any of the 10 years they had worked (Guj.DB) . . . . . . . . . . . . 2353 F v) When workmen who are temporary, contractual, casual or adhoc are employed dehors the rules and against constitutional scheme of public employment (S.C.CB) . . . . . . . . . . . . . . 2342 e) Relief of closure compensation u/s. 25FFF . . . . . . 2354 F vi) Regularisation can not be granted on completion of 240 days if the appointment is contrary to statutory rules (S.C.2J) . . . . . . . . . . . . . . 2343 f) Relief of retrenchment compensation . . . . . . . . 2354 vii)When claimants are contract workers though contract labour system is abolished (Mad.HC) . . 2344 F viii) When workmen are seasonal employees and can not be fitted into permanent employment or it would be iniquitous to perennial employees (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . 2345 ix) When workman is the casual employee though completed 240 days since recruitment is to be through Public Service Commission or Employment Exchange as per stipulated procedure (Cal.DB) . . . . . . . . . . . . . . . . . . . . . 2347 1. Available to workman if he has been in continuous service for one year (Mad.DB) . . . . 2354 1. Available to workman who is in continuous service and terminated violating Sec. 25F (Pat.DB). . . . . . . . . . . . . . . . . . . . . . 2354 g) Service benefits. . . . . . . . . . . . . . . . . . . . 2355 1. Workman entitled to pay scale and other allowances when granted under Government resolution (Guj.HC). . . . . . . . . . . . . . . . 2355 F 2. Wages payable to casual workers for the intervening period between termination and re-absorption when done so with a view to prevent completion of 240 days service (S.C.2J) . . . . . 2355 2262 Chapter VA – Lay-Off and Retrenchment F 3. Back wages admissible to daily wagers from the date of regularization but not from the date of initial engagement (S.C.CB) . . . . . . . . . . . 2355 IV. Quantum of Compensation . . . . . . . . . . . . 2362 a) Labour Court can determine whether lay-off is in accordance with standing orders (Mad.DB) . . . . . 2362 V. Appropriate forum to grant relief . . . . . . . . . 2356 Fa) Appropriate forum is Industrial Court and not Apex Court (S.C.2J) . . . . . . . . . . . . . . . . . 2356 b) Labour Court to record finding as to master servant relationship and on the issue of service of 240 days before granting any relief of reinstatement (Chh.HC) . . . . . . . . . . . . . . 2357 c) Civil Court cannot adjudicate matter falling u/s. 25B (P&H.HC). . . . . . . . . . . . . . . . . . 2357 Fd) High Court cannot grant interim relief directing the employer to consider the case of the workman by creating supernumerary post since it is in the nature of final relief (S.C.2J) . . . . . . . . . . . . . 2357 b) Last drawn wages is proper when lay off is not authorized or justified and Sec. 25C is not applicable (Gau.DB) . . . . . . . . . . . . . . . . . 2362 Fc) Compensation not restricted to Sec. 25C when lay-off is malafide (S.C.3J). . . . . . . . . . . . . . 2363 Fd) Compensation can be full wages in case of an establishment to which neither standing orders nor Chapter VA applicable or can be lesser if lay-off is justified (S.C.2J) . . . . . . . . . . . . . . . . . . 2363 e) Lay-off compensation u/s. 25C to be given but not as per Standing Orders since the Central Act prevails over Standing Orders (All.HC). . . . . . . . . . . . 2363 f) Burden of proof. . . . . . . . . . . . . . . . . . . . 2363 VI. Settled law on the issues under this section . . . . 2358 Fa) Burden of proof as to 240 days of continuous service lies on the employees (S.C.3J) . . . . . . . . . . . . 2358 1. Is on the employer to produce muster rolls to prove status of workmen (Karn.DB) . . . . . . 2363 V. When payable . . . . . . . . . . . . . . . . . . . . 2364 Fb) Temporary, contractual, casual or adhoc employees employed dehors the rules not entitled to regularisation (S.C.CB) . . . . . . . . . . . . . . . 2358 Fc) No adverse inference can be drawn on employer’s failure to produce relevant muster rolls since the burden of proof is on workman (S.C.3J) . . . . . . . 2358 Fd) Mere affidavit by workman is not sufficient to prove continuous service of 240 days (S.C.2J) . . . . 2359 D. Right of workmen laid off for compensation – Sec. 25C . . . . . . . . . . . . . . . . . . . . . . 2359 I. Attributes of Layoff compensation . . . . . . . . 2359 a) Lay-off compensation does not fall within the definition of wages since not being remuneration or paid for employment (Bom.DB). . . . . . . . . . 2359 b) Secs. 25C and 25F are independent and Sec. 25F can be invoked without recourse to lay-off (Bom.DB) . . . . . . . . . . . . . . . . . 2360 c) Lay off compensation counts for bonus (Ker.DB) . . 2360 d) Payment of lay off compensation is not a condition precedent to laying off workmen (Bom.DB). . . . . . . . . . . . . . . . . . . . . . . 2360 Fa) When lay off is justified and not malafide (S.C.3J) . . . . . . . . . . . . . . . . . . . . . . . . 2364 b) When lay off is due to shortage of electricity (Bom.DB). . . . . . . . . . . . . . . . . . . . . . . 2364 Fc) Even when an establishment has only 30 employees to which neither standing orders nor Chapter VA applicable (S.C.2J) . . . . . . . . . . . . . . . . . . 2365 Fd) When temporary closure of establishment is not due to reasons beyond the control of management like detention order of central excise authorities (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . . . 2366 Fe) Payable only for 45 days even though lay off is continuous by single notification (S.C.3J) . . . . . . 2366 Ff) Payable even though Lay off is by mutual agreement (S.C.3J) . . . . . . . . . . . . . . . . . . 2367 Fg) When lay off is resorted to in retaliation to strike (S.C.3J). . . . . . . . . . . . . . . . . . . . . 2367 Fh) Can not be avoided on the ground that company incurred losses on account of half day’s strike (S.C.3J) . . . . . . . . . . . . . . . . . . . . . . . . 2368 e) Lay off compensation ranks in priority over the claim of secured creditor like bank (Karn.DB) . . . . 2360 i) When workmen could not be given work due to dismantling of machines and installation of the same (Mad.HC) . . . . . . . . . . . . . . . . 2368 II. Who are exempted. . . . . . . . . . . . . . . . . . 2361 Fj) Only when lay-off falls u/s. 2(kkk) (S.C.3J) . . . . . 2368 Fa) Badli employees since they have no right to claim employment (S.C.2J). . . . . . . . . . . . . . 2361 VI. When not payable . . . . . . . . . . . . . . . . . 2369 b) Seasonal workers since not granted under Industrial Disputes Act (MP.DB) . . . . . . . . . . . . . . . . 2361 III. Badli worker when can claim . . . . . . . . . . . 2362 Fa) When lay-off not malafide and due to shortage of raw materials (S.C.3J) . . . . . . . . . . . . . . . 2369 Fb) If amenities like quarters and medical relief are provided during the suspension (S.C.CB) . . . . . . 2369 a) When he completes 240 days of continuous service as per explanation to the section (Mad.DB). . . . . . 2362 Fc) Not payable beyond 45 days when there is agreement regarding payment of lay off compensation to that effect (S.C.2J) . . . . . . . . . 2370 b) When his name is found in the muster roll and completed one year of service (Mad.HC) . . . . . . . 2362 VII. When can be reduced . . . . . . . . . . . . . . . 2370 Synopsis Fa) When there are justifiable reasons for lay-off (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . . . 2370 VIII. Remedy for recovery . . . . . . . . . . . . . . . 2371 2263 b) Does not create pre-existing right in workman to claim retrenchment compensation but subjects the power of employer to retrench to certain limitations (Guj.DB) . . . . . . . . . . . . . . . . . . . . . . . 2376 a) Recoverable u/s. 33C(2)since it is capable of being computed in terms of money (Bom.DB) . . . . . . . 2371 c) Section would form implied terms of contract of service (Bom.DB) . . . . . . . . . . . . . . . . . . 2376 b) Recovery certificate obtained under the Industrial Disputes Act will prevail over SICA. (Karn.DB) . . . 2371 d) Standing Order can not be inconsistent with Sec. 25F and termination based on it is not valid (Bom.HC). . . . . . . . . . . . . . . . . . . . 2376 c) Recovery certificate issued if not after enquiry is bad (Karn.HC) . . . . . . . . . . . . . . . . . . . 2371 e) Provisions of Sec. 25F prevail over service regulations (Guj.HC) . . . . . . . . . . . . . . . . . 2377 E. Duty of an employer to maintain muster rolls of workmen – Sec. 25D. . . . . . . . . . . . . . . . . 2371 f) Section cannot be construed to enforce private rights or deal with domestic disputes but statutory rights compelling Court’s interference (Cal.DB) . . 2377 F. Workmen not entitled to compensation in certain cases – Sec. 25E . . . . . . . . . . . . . . 2372 I. Alternative employment means . . . . . . . . . . 2372 a) Alternative employment offered by employer means a suitable employment commensurate with the status and nature of the duties performed by the employee (Bom.HC) . . . . . . . . . . . . . . . . . 2372 II. Sec. 25E when can be invoked to deny compensation . . . . . . . . . . . . . . . . . . . . 2372 a) When lay-off was declared by employer in response to strike by workers (Ker.HC) . . . . . . . . . . . . 2372 Fb) When lay- off of some workers is due to strike by others in the same establishment since they belong to same class (S.C.3J) . . . . . . . . . . . . . . . . 2372 c) When workers deliberately slowed down the production to pressurize management to concede to their demands (Mad.HC) . . . . . . . . . . . . . 2373 Fd) When lay-off in cement factory is due to strike in limestone quarry since both constitute one establishment due to functional integrality though the Appropriate Governments are separate for both of them (S.C.3J) . . . . . . . . . . . . . . . 2373 III. Sec. 25E when cannot be invoked . . . . . . . . . 2373 a) When go-slow cannot be proved by employer to have affected production (All.HC) . . . . . . . . . . 2373 Fb) When it is resorted as vindictive measure by employer to retaliate strike (S.C.3J) . . . . . . . . . 2374 g) Provisions of the section are mandatory and prevail over the conditions in appointment letter that provide for termination of service of workman by one month wages (P&H.DB) . . . . . . . . . . . . . . . . . . . 2377 h) Conditions precedent to retrenchment are mandatory (MP.DB) . . . . . . . . . . . . . . . . . 2377 i) Conditions under clause (a) and (b) are obligatory and are conditions precedent to retrenchment while that under clause (c) is not obligatory (Pat.DB) . . . . . . . . . . . . . . . . . . . . . . . 2378 j) Order of retrenchment payment of wages in lieu of notice and retrenchment compensation shall constitute same or single transaction to comply with conditions of retrenchment 1356 (Mys.DB) . . . . . . . . . . . 2378 k) Sec. 25F & 25C are independent and resorting to lay-off is not a condition precedent to attract Sec. 25F (Bom.DB). . . . . . . . . . . . . . . . . . 2378 l) Probationary period cannot be for two years as it defeats the object of Sec. 25F (Karn.HC) . . . . . . . 2379 m) Benefits u/s. 25F can be claimed by employees against the company even though the unit is sold by previous owner to the company (MP.HC) . . . . . . 2379 III. Applicability of sections . . . . . . . . . . . . . . 2379 a) Applicable irrespective of the status of the employee whether casual or daily wager (P&H.HC) . . . . . . 2379 Fb) Applicable to daily rated employee who had completed more than 240 days of service (S.C.2J) . . 2379 IV. One establishment or separate establishment Sec. 25E(iii) . . . . . . . . . . . . . . . . . . . . . 2374 Fc) Applicable to termination which is not punitive in nature and amounts to retrenchment and illegal if conditions not complied (S.C.2J) . . . . . . . . . . 2380 Fa) Determinative factors are unity of ownership, supervision and control, finance, functional integrality etc. (S.C.3J) . . . . . . . . . . 2374 Fd) Applicable to termination of surplus labour due to recession in work being retrenchment and not closure (S.C.3J). . . . . . . . . . . . . . . . . . . . 2380 G. Conditions precedent to retrenchment of workmen – Sec. 25F . . . . . . . . . . . . . . . . . 2375 Fe) Applicable to workmen in coal units though can relocate but opted for closure, as they are deemed to have been retrenched (S.C.2J) . . . . . . . . . . . 2381 FI. Object is to enable employer to retrench surplus deadweight as he has discretion to organize his business (S.C.3J) . . . . . . . . . . . . . . . . . . 2375 II. Scope and attributes of the section . . . . . . . . . 2376 a) Section has no retrospective effect (Ker.DB) . . . . . 2376 Ff) Applicable to termination of employees by transferee even prior to transfer since he is in de facto possession of tea estate even prior to transfer (S.C.2J) . . . . . . . . . . . . . . . . . . . 2382 g) Applicable to discontinuance of employee when it is substitute for termination as per evidence (Del.HC) . . . . . . . . . . . . . . . . . . . . . . . 2383 2264 Chapter VA – Lay-Off and Retrenchment h) Applicable to a daily rated workman who worked for 240 days in a year (Guj.DB) . . . . . . . . . . . . 2383 zd)Not applicable to termination of workmen employed for less than 12 calendar months (Pat.DB) . . . . . . 2391 i) Applicable to workman who is employed in an industry for a period of not less than one year (Raj.HC) . . . . 2383 ze) Not applicable to compulsory retirement of workmen as per service regulation being not a retrenchment (Ori.DB) . . . . . . . . . . . . . . . . . . . . . . . 2392 j) Applicable to termination of services of an employee whose tenure is extended after breaks of 29 days to go beyond 240 days (Guj.DB) . . . . . . . . . . . 2383 k) Applicable to workmen even though they did not complete 240 days in the immediate preceding 12 months when his past service is also considered (Karn.DB) . . . . . . . . . . . . . . . . 2384 l) Applicable to termination of the services of the casual railway workers discharged as surplusage (Ori.DB) . . . . . . . . . . . . . . . . . 2384 m) Applicable to telephone department being an industry under the Act (Guj.DB) . . . . . . . . . . . . . . . 2384 n) Applicable to Statutory body performing non-sovereign functions (AP.HC) . . . . . . . . . . . . . . . . . . 2384 zf) Not applicable to termination if employment is through backdoor in public service (P&H.DB) . . . . 2392 Fzg) Not applicable if the termination is for misconduct (S.C.2J) . . . . . . . . . . . . . . . . . 2392 zh)Not applicable to a case of refusal by employer to allow employee to rejoin duty after unauthorised absence (MP.HC). . . . . . . . . . . . . . . . . . . 2393 zi) Not applicable to a case of non-resumption of duty on transfer since it amounts to abandonment of service (Raj.HC) . . . . . . . . . . . . . . . . . . . 2393 zj) Not applicable if appointment is void ab initio (Ker.HC) . . . . . . . . . . . . . . . . . . . . . . . 2393 o) Applicable to contract labour against unlawful termination (Karn.HC) . . . . . . . . . . . . . . . . 2385 zk)Not applicable to establishments to which Chapter V-B is applicable (AP.HC) . . . . . . . . . . . . . . . . 2393 p) Applicable to part time workmen (Guj.HC) . . . . . 2385 zl) Not applicable to an apprentice appointed under Apprentices Act since not a workman (Ker.DB) . . . 2394 q) Applicable to termination due to surplusage on account of introduction of new machinery (Raj.HC) . . . . . . . . . . . . . . . . . . . . . . . 2385 zm) To apprentice though completes 240 days since he cannot be a permanent employee (Mad.HC) . . . . . 2394 Fr) Provisions of Section not applicable to cases of retrenchment effected prior to it’s enactment (S.C.3J) . . . . . . . . . . . . . . . . . . . . . . . . 2386 Fzn) Not applicable to casual employees who are not recruited as per recruitment rules (S.C.2J) . . . . . . 2394 IV. Expressions and Meanings. . . . . . . . . . . . . 2395 Fs) Not applicable to workmen who did not complete 240 days (S.C.2J) . . . . . . . . . . . . . . . . . . . 2386 a) Expression ‘until’ means . . . . . . . . . . . . . . . 2395 Ft) Not applicable to post office since not an industry (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . . . 2387 1. Conditions like notice pay, retrenchment compensation or payment of wages are necessary for compliance (Mys.DB). . . . . . . . . . . . . 2395 u) Not applicable to a case of re-employment of an employee after superannuation (Mad.HC) . . . . . . 2387 V. Conditions precedent to retrenchment. . . . . . . 2395 Fv) Not applicable to a case of termination of Contract Labour in the absence of master and servant relationship (S.C.CB). . . . . . . . . . . . . . . . . 2387 a) The three conditions stipulated u/s. 25F are necessary pre-conditions for retrenchment (AP.HC) . . . . . . 2395 Fw) Not applicable to discharge of workmen on closure (S.C.CB) . . . . . . . . . . . . . . . . . . . 2388 b) Conditions like notice pay, retrenchment compensation or payment of wages are necessary for compliance (Mys.DB) . . . . . . . . . . . . . . 2395 Fx) Not applicable to a case of re-deployment of senior workman on lower post without continuity of service since it is not retrenchment (S.C.2J) . . . . . . . . . 2389 c) The condition of completing continuous service of one year . . . . . . . . . . . . . . . . . . . . . . 2395 Fy) Not applicable to discharge of workmen on grounds of medical unfitness since not retrenchment (S.C.3J) . . . . . . . . . . . . . . . . . . . . . . . . 2389 1. Workman to be in continuous service though less than one year but should have worked atleast for 240 days in a calender year preceding his termination (AP.DB) . . . . . . . . . . . . . . . 2396 z) Not applicable to a case of resignation since it falls u/s. 2(oo)(a) (Jhar.DB) . . . . . . . . . . . . . . . . 2390 za) Not applicable to seasonal employees on daily wage basis even if they complete 240 days (MP.HC) . . . . 2390 zb) Not applicable to abandonment of service by workman (Guj.HC) . . . . . . . . . . . . . . . . . . 2391 zc) Not applicable to workmen whose names were struck off the rolls on the dismissals of their applications challenging their termination effected after complying with the section (Pat.DB) . . . . . . . . 2391 2. Workman has to put in 240 days of service in the immediate preceding year though in spells (AP.DB). . . . . . . . . . . . . . . . . . . . . . 2396 d) The condition of serving notice as per Clause (a) . . . 2396 1. Attributes of Notice . . . . . . . . . . . . . . . . 2396 i) Notice u/s. 25F(a) is different from notice u/s. 9A which is confined to items in Sch. IV of the Act (Bom.DB) . . . . . . . . . . . . . . . . . . . . . 2396 Synopsis ii) Notice has to specifically indicate that termination is due to retrenchment failing which termination becomes termination simpliciter (Bom.HC) . . . 2397 iii) It is mandatory but not directory to mention reasons for termination in the notice (Ori.DB) . . 2397 2265 F iii) Similar payment on closure does not bring closure within ambit of retrenchment (S.C.CB) . . . . . 2404 F iv) Gratuity is not substitute for retrenchment compensation since the objects of both are different (S.C.3J) . . . . . . . . . . . . . . . . . 2404 2. Service of Notice . . . . . . . . . . . . . . . . . 2397 F v) Retrenchment compensation need not be paid again u/s. 25F(b) when the same is paid in the name of gratuity under the scheme of the company (S.C.3J) . . . . . . . . . . . . . . . . . 2405 i) Notice pasted on notice board is not a substitute for individual notice u/s. 25F(a) (Ori.DB). . . . . 2397 vi) Compensation to be offered at the time of termination but not subsequent to it (Del.HC). . . 2406 ii) Notice given on penultimate day of retrenchment is valid (MP.DB) . . . . . . . . . . . . . . . . . 2398 vii) Defect of non payment of retrenchment compensation cannot be cured by employer’s subsequent offer of any sum in full and final settlement (AP.HC) . . . . . . . . . . . . . . . . 2406 iv) Notice under Clause (a) of Sec. 25F to precede termination (All.HC) . . . . . . . . . . . . . . . 2397 iii) Presumption of service of notice cannot be when employer admitted that no notice was sent to workman (Bom.HC) . . . . . . . . . . . . . . . 2398 iv) Notice is invalid if served after retrenchment (Bom.HC) . . . . . . . . . . . . . . . . . . . . . 2398 v) Notice though valid becomes void if retrenchment compensation was also not paid (Cal.HC). . . . . 2398 F vi) Notice given even before two days instead of one month in advance as per Rule 77(1) of W.B. I.D Rules is sufficient service since the employees were put on notice (S.C.3J) . . . . . . . . . . . . 2398 3. When not required . . . . . . . . . . . . . . . . 2399 F i) Notice is not required on termination by expiry of term under an agreement (S.C.3J) . . . . . . . 2399 ii) When the discharge of employees took place more than one month after the order of winding up was passed since the order itself operated as notice (Ker.DB) . . . . . . . . . . . . . . . . . . 2400 iii) When the workman is engaged for a fixed period (Del.DB). . . . . . . . . . . . . . . . . . 2400 4. Wages in lieu of notice . . . . . . . . . . . . . . 2401 i) Notice not compulsory when wages paid in lieu thereof since both are independent (Ori.DB) . . . 2401 F ii) To be paid time of termination when employee was asked to leave forthwith (S.C.3J) . . . . . . . 2401 F iii) Worker held to be terminated on the date when wages paid in lieu of notice (S.C.3J) . . . . . . . 2401 5. Wages for one month does not always mean wages for 30 days and wages for the month of February to be computed on the basis of 28 days but not 30 days (Bom.HC) . . . . . . . . . . . . . . . . 2402 e) The condition of Retrenchment Compensation as per clause (b) . . . . . . . . . . . . . . . . . . . 2402 viii) Compensation to be paid either before or at the time of retrenchment (P&H.HC) . . . . . . . . . 2406 ix) Compensation not required to be paid simultaneously with the notice (HP.DB) . . . . . 2407 x) Payable even in case of termination on ground of loss of confidence (Bom.DB). . . . . . . . . . . 2407 xi) Retrenchment compensation cannot be set off against gratuity since the two benefits arise under two different laws (Mad.DB) . . . . . . . . . . . 2407 xii) Not payable in case of simple discharge for loss of confidence (Bom.HC) . . . . . . . . . . . . . 2407 xiii) Retrenchment compensation is allowable deduction as business expenditure as per Income Tax Act (Ori.DB) . . . . . . . . . . . . 2407 F xiv) Retrenchment compensation being not an expenditure cannot be debited to profit and loss A/c (S.C.3J) . . . . . . . . . . . . . . . . . 2408 xv) Recovery of loan amount from the legal dues such as retrenchment compensation permissible (Bom.HC) . . . . . . . . . . . . . . . . . . . . . 2408 xvi) There cannot be settlement for lesser amount of compensation than that provided under Industrial Disputes Act (Guj.HC) . . . . . . . . 2408 xvii) Additional compensation of one month’s wages granted can be ordered by Court if retrenchment justified (Cal.HC) . . . . . . . . . . . . . . . . . 2409 F xviii) Retrenchment compensation cannot be claimed from parent company once services transferred to subsidiary company with workman’s consent (S.C.3J) . . . . . . . . . . . . . . . . . . . . . . 2409 f) Payment / Acceptance of compensation effect on the rights of workman . . . . . . . . . . . . . . . . . . 2409 1. Does not bar industrial dispute . . . . . . . . . . 2409 1. Attributes . . . . . . . . . . . . . . . . . . . . . 2402 F i) Compliance of Clause (b) mandatory since retrenchment means ending, concluding and cessation of employment and failure to pay renders retrenchment illegal (S.C.3J). . . . . . . 2402 ii) Payment of dues was a condition precedent (Raj.DB) . . . . . . . . . . . . . . . . . . . . . 2404 F i) Acceptance of compensation is not a bar casual worker to raise a dispute on illegal termination (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . 2409 F ii) Acceptance and utilisation of retrenchment compensation does not take away rights of Union Government employees against termination which is punitive in nature (S.C.2J) . . . . . . . . 2410 . . . . .7. 2412 iii) A month is to be taken as 26 days for calculating one day wages (Pat. 2416 F 1. . . . . . . . 2421 h) Who can claim . . .HC) .2J) . . . .HC) . . . . . . Wages – what payments to be considered . . . . 2416 3. . . . . . . . . 2411 1. .When employee is offered retrenchment compensation but declined to accept it (Bom. . .2J) . . .DB) . . . . .HC) . . . . 2423 . . . . .DB) . Employer cannot adduce evidence in the absence of averment that sufficient amount was offered (Bom. . . . . . . . 2413 13. . . . . . . . . . . . . .1972 i. . . . . . . 2412 7. 2415 18. . . . . . . . . . . . . 2414 ii) To include travelling allowance since it is part of wages (Raj. . . . . . . . . . . . . . . . . . . . . . .8. 2422 3. Deemed not paid by showing mere readiness to pay unless there is an offer or tender or actual payment (Raj. . . . . 2419 iv) Retrenchment compensation was to be computed on the basis of 26 working days (Bom.HC) . .HC) . 2414 F 16. . . . . . 2416 j) When not deemed paid/when not substantially complied with. . . . .DB) . . . . . . 2415 17. . . . . . . . . . . . . . . 2421 2. . . . . . 2410 F i) Payment of compensation is not a bar to re-employment of retrenched workmen on subsequent nationalisation of colliery (S. .HC) . .DB) . . . . . . . . .3J) . . When sent by bank drafts through registered post though the workman avoids receipt of the same (Raj.C. .HC) . Deemed paid from the date of tender by cheque (Mad. .HC) . . . . 2411 ii) In the case of wages paid per working day the computation shall be as per provisions of Sec. .HC) .DB) . . . .When employee asked by letter to collect his dues from office after striking his name from muster roll (AP. . . . . . . . . .C.HC) . . . .When sent prior to termination though received after termination by the employee (Bom. . . . 2415 2. . . . . . . . . . . . .HC) . . .C. . . . .Though work man collects dues on 8. . . . . . . . . . . . If workman is merely asked to collect amount from office (Mad. . . Temporary workman has also right to receive retrenchment compensation (Mad. . . . . . . . . . . 2(aaa) of the Industrial Disputes Act (S. . . . . . . 2421 F 1. . . 2417 6. . . . . . . . . . . .HC) . . . . . . . . . . . . . . . . 2423 5. . . . . . . . . . .DB) . . . . . . . . . When demand draft and retrenchment notice were sent on the same day though served three days after retrenchment (P&H. .e. 2411 F i) To be computed on the basis of 30 working days instead of 26 working days in a month in terms of Sec. . . . . . .C. Members of Co-operative Motor Transport Society not entitled to claim since they are not workmen (Mad. . . . Deemed paid from the date of tender by cheque and non-realisation of it on the same day will not affect retrenchment (Raj. . . . . . . . . .e. If compensation is paid at the time of retrenchment instead at the time of notice (S. Deemed paid even if cheque is undated (Raj. 2420 F iv) Income earned from gainful employment to be excluded (S. . . . When drafts of compensation amount forwarded in advance to divisional authority for workmen to receive is sufficient compliance (S. . . 2414 15. 2416 2. . . . . . . .2J) . . . 2(aaa)(iii) on the basis of 26 days (Mad. . . . . When letter of termination offers employee his dues but does not specify that it is compensation u/s. . . . .C. . .HC) . . . . . . . . . . . . . . .C.DB) . . . 2418 10. . . .2266 Chapter VA – Lay-Off and Retrenchment 2. . . . . . 2419 v) Computation shall be on the basis of 15 days wages but not half month’s wages for each completed year of service (Pat. .When sent by money order though workman refused to receive notice and compensation personally (Del.3J) .DB) . . .HC) . . . . 2413 12. . . . . . . . . . . . 2417 F 5. . . . . . . . . . . . . . . . . . . . . . . . .When sent by Registered Post (Bom. . . 2410 3. . . . . . . . . . . . . . . . . 2419 2. . . .HC) . . . 2415 i) When deemed paid/when substantially complied . . . .C. . 2418 11. . . . . . . . . .2J). . . . .C. . . 2422 4. . When sent by crossed cheque through post (Del.C. . . . . 2418 8. . . . . . . . . . . . Does not bar re-employment . . . Deemed paid if sent by cheque on the date of retrenchment through registered post with ‘acknowledgement due’ (Cal. . . . . . .Deemed paid when the same is paid in the name of gratuity under the scheme of the company (S. . Sunday (All. . . . .HC) . . . . . . . . . 2418 g) Computation of retrenchment compensation. . . . . . . 2421 1. . . . . . . . . . 2414 14. . . . . 2420 F i) Concessional payments forming part of basic wages taken in determination of wages for compensation (S. . . . . . . . . . . Number of working days – what should be to arrive at one day wage . . . . . . . . . .3J) . . .When money and ex-gratia paid in lieu of notice and retrenchment compensation (Cal. . .1972 i. . . . . . . . . . . . . . . 2420 iii) Value of house accommodation must be included (Raj. . . . . . . . . . . . . . . . . . .HC) . . . 2411 F 4. . .2J) . . . . . 2418 9. . . . . . 25F it does not amount to compliance (S. . . When sent by demand draft after terminating workman (Raj. . . . . . . . . . Monday instead of 7. . When 3 months’ salary as compensation was paid to employees by compromise pursuant to compromise formula by Supreme Court (S.2J) .HC) . .Deemed paid even if the word ‘gratuity’ was mistakenly written in place of ‘retrenchment compensation’ in the receipt (Raj. . . . . . . .DB) . . . . . 2425 1. . . . . . 2434 d) When appointment order itself was forged and fabricated and void ab-initio (Raj. . . . . .HC) .When notice to collect it was sent first and money order was sent later (P&H. 2429 8. . . . . . . . . . . . . . . . . . . . . When retrenchment is proper Tribunal is not justified in awarding 50% of wages as compensation in addition to statutory compensation (S. . . . . .DB) . . hence failure will not lead to any infirmity in retrenchment order (S. . . . . . When paid by cheque though on the date of retrenchment but after banking hours (Mad. . . . . 2436 F 5. 2424 15. . . . . 2423 i) Is to inform State Government to make it aware of the existence of conciliation proceedings or reference (Cal. .2J) . .CB) . . . . . .When compensation offered not at the time of termination but subsequent to it (Del. .HC). . . hence non-compliance is not fatal (S.C. . . . . . . . . . . . . . . . . . . . . 2432 v) Non-issuance of notice by the employer to State Government being not an invasion of workman’s right can not be raised in writ (Cal. . . . . . . . . . 25F(a) and 25F(b) (Ori. 2427 k) When services terminated on reaching the age of superannuation (J&K. . . 2427 l) Even though workman who is terminated completed 240 days but not in the preceding year (Bom. . . . . . . . . . . . . 2429 7. . . . . 2432 Fa) When a daily wage worker who failed to establish that he worked for 240 days and employer refused to employ him can be terminated (S. . . . . . . . . . . .HC) . . . . . . . . . . . . . . . . . . . . . . 2434 e) When terminated on the expiry of the term as per contract of employment (Guj. .DB) . . . .2J) . .DB) . . . .C. . . . 2424 16. . . . . .HC).Synopsis 2267 6. . . 2423 2. . . . . . . .C. . . . . . . .HC) .3J) . . . . . . . . . Can be recovered u/s. . . . . . . 2426 g) When employer deposits the short payment of compensation at the earliest. 2432 b) When Services of workman terminated for absence with notice pay as permissible under Sastry Award (All. . . . . 2431 iv) Notice to Government required u/s. 2425 k) Retrenchment compensation vis-à-vis extra/additional compensation – whether admissible .3J) . held valid (S. . . .HC) . . . . . . . 33C(2) (Pat. 2429 F ii) Notice u/s. . . . . . . . . . . . . . . Attributes of the clause . was posted (Cal. . 2429 F i) Clause (c) being only informative is not mandatory nor condition precedent (S. . . . .When the offer is made at the close of the day or bit earlier since the offer cannot be said to be genuine (AP. . . . 2436 F 3. . Ex-gratia payable over and above compensation to legal heir of deceased employee (S. . . . . . .2J) . . . . . . . . . . .When it was not possible for workmen to be present to receive retrenchment compensation on the same day on which the letter so requiring.When there is mere recital in notice of termination that efforts will be made to pay retrenchment compensation (Bom. . 2432 VI.HC) . . 2436 F 4.HC) . . . . when such mistake was bonafide (Bom. . . . . . . . . . . . . 2434 c) When workman was retired for disablement due to electric shock and received adequate compensation and pensionary benefits (MP. .HC). . . When termination is not violative of Sec. . . . .HC) . . . . . . . . . . . . . . . . . .If lay-off compensation is deducted from retrenchment compensation (Bom. . . . . . . .DB) . . . .C. . . . . . . . . . . . . . . . . . . 2424 12. . 2424 14.When retrenchment compensation falls short due to non-inclusion of HRA and travelling allowance when paid as part of wages (Raj. . . . . . . . . . . . . . . Object of Clause (c). 2434 Ff) When workman voluntarily abandoned the service (S. .HC) . . 25F . 2427 i) Termination of apprentice held valid since 240 days service was not rendered by him (Mad. . . . . . . 2423 m) The condition of serving notice on Appropriate Government / notified authority as per Clause (c) . . . . 2426 h) Retrenchment not vitiated for small and insignificant shortfall in payment of retrenchment compensation (Mad. . Compensation awarded by Tribunal at it’s discretion before introduction of Chapter V-A. . . . 2437 1.DB). . . . . . . .3J) . . 2424 11. . . . . 2428 . .C. . . . 2429 F 9. . . . Can be recovered under Payment of Wages Act (Bom.C. . .HC).3J) . Mere notice to collect payment on a particular date cannot be equivalent to payment if workman for good reason fails to turn up to collect (P&H. Tribunal cannot grant retrenchment compensation and compensation for premature termination of service when it decides to grant it in lieu of reinstatement (S. 25F(c) is only directory and not mandatory.HC) . .When amount due from employee is adjusted against compensation payable u/s. .3J) . . . . . . . . 2424 10. . . . . . . . . . .3J) .DB) . . . .C. 2437 l) Recovery of compensation . . . . . . 2425 F 1. . . . . . .C. When gratuity is paid since object of both are different (S. . . . . . . .C. . . . . . 2430 F iii) Requirement of notice is treated as a condition subsequent. . . . . 2427 Fj) When Apprentice terminated has no right to post (S. . .C.HC) . . . . . .C. . . . .DB) . . . . . . . . . . 2424 13. . .C. . . . When compensation was paid on the basis of wages drawn prior to earlier retrenchment (MP. . . . . . .2J) . . . . . . 25F(c) is not an empty formality and non-compliance results in vitiating termination (Ker.DB). . . . .HC) .HC). . . . . . . . .3J) . . . .HC) . . . . . 2438 2. . 2425 17. . . 2435 F 2. Additional compensation of six years wages paid when retrenchment is due to closure on account of environmental protection (S. . . . . . . 2444 zc) When workers did not opt for alternative employment and accepted compensation u/s. . . . . . .DB) . .DB) .DB). . . .C. . . . . 2448 Fzr) When discharged due to medical unfitness since it does not amount to retrenchment (S. . . . . . . . . 2440 Fu) When termination effected falls under the purview of Clause (bb) of Sec. . . . . . . .HC) . . 2439 r) When probationer terminated could not establish that he is a workman (Guj. . . . . . .DB) . . . . . and did not raise any objection in his pleadings (Cal. . . 2444 zd)When money and ex-gratia paid in lieu of notice and retrenchment compensation (Cal. . . 2443 Fz) When workmen failed to prove that they have worked for 240 days service (S. . . . 2439 p) If employee is purely temporary and termination is for want of Government grants and due to closure of few divisions (Guj. . . . . . . . . . . . . 2446 zl) When workman offered compensation and one month wages though arrears of wages not paid as demanded since it has no relationship with compliance of Sec. . 25F when violated or when required to be complied . . . . . . . . . . . . . . . . .DB) . .HC) . 552. . . . .HC) . . .DB) . . . . . 2449 Fb) If one month notice or one month salary in lieu of notice is not given (S. . 2446 zj) When employee terminated completed 240 days of service due to interim order of Writ Court (HP. 2449 VII. . . 2453 .DB) . . . . . 2438 o) When the employer is a Government company and workman was not sponsored by Employment Exchange as per recruitment rules and there is no evidence of 240 days of his service (Bom. 2448 zq)When pleadings of employer that workman is a daily wager is not controverted by workman (P&H. . . . . 25F complied with one month’s salary in lieu of notice paid despite error in the date of notice (Ass. . . 2446 zk)When notice of termination served on the workmen on 15. . . . . . . . . . 2445 zg)When employer issued notice and paid compensation and interim relief on terminating a probationer for unsuitability and thus complied with Sec. . . . . .2J) . . . . . . . 2443 za) When workman accepted compensation & ex-gratia etc. . . . . 2440 t) When there is no proof of employer-employee relationship (Raj. . 2453 g) If lay-off compensation is deducted from retrenchment compensation (Bom. . . . . . . 25F (Cal. .DB) .C. . . . . . 2438 n) When employee terminated is not employed in industry and has not completed 240 days of service (Karn. . . 25F prior to March 2.5000 as retrenchment compensation and one month wages (Guj. . 2442 x) When services were terminated under the provisions of a statute which prohibits continuance of temporary employees beyond six months (Karn. . .2J). . 2444 zb)Though retrenchment compensation is short of small amount of Rs. . .3J) . . . .DB) . . . . . 2445 ze) When services of trainee who was not in regular employment were terminated (Bom. . 2452 f) Termination of service for any reason in violation of Sec. . . . . . . . .HC) . 2441 v) When notice served on the workman indicating that pay and other dues would be paid to him on the same day but he failed to collect the same (Bom. . 1982 is void ab initio (P&H. . 2447 Fzp) When services of probationer employee terminated for unsuitability as per letter of appointment (S. . .HC) . . . .2J). . . . . . . .DB) .C. . . . . . .DB) . (Pat. . .1982 and dues were not accepted (All. 2447 zn)When notice of retrenchment is accompanied by a sheet containing detailed calculations for payment of retrenchment compensation (Mys. . . . . . .HC) . . .HC) . .HC) . . . . 2452 Fd) When termination is from back date since it amounts to termination without notice (S. . .HC) . . . . . . . .2268 Chapter VA – Lay-Off and Retrenchment m) When appointment is not consistent with standing orders and service was less than 240 days (Cal. . . . . . .HC) . . . . . . . . . . . . . 2452 e) When services of employees terminated by notice under Service Rules or terms of appointment order but not by notice u/s. . . 25F (Ori. 25F (Cal. . . . . .C. . . . . . .2J) . . . . . . . 25F (Karn. . . . . . . . . 2443 y) Though notice under Clause 25F(c) is not given since it is only a condition not condition precedent (Bom. . . 2449 Fa) When Termination is effected without compliance of any of the Clauses (a) (b) & (c) are not complied since they are all independent (S. . . . . .C. . . . . . .87 when workman accepted it.3J) . . . .DB). . . . . .DB) . . . . . . . . 25F when there is no work and one month salary paid (Mad. . . . . . . . . . 2446 zi) When the letter offering him to collect his compensation and notice pay is definite & genuine (Del. . . . . 2445 zh)When Clauses (a) and (c) of Sec. .HC) . . . . . . . . . . . . . . 2442 w) When termination is valid even in the absence of notice u/s. . . . . . .DB) . . . .HC) . . . . . . . 2447 zm) When employer terminated is a daily wager not entitled to regular post and there is delay of 8-9 years in raising dispute (Bom. . . . . . . . . . . 2439 q) When probationer whose services were terminated was paid Rs. . . . . . . . . . . . .DB) . .DB). . . Sec. . . . . . . . . . .HC) . . . . . . .DB) . . . .4. 2445 zf) When workman declined to receive notice pay and retrenchment compensation (Del.2J) . . . . . . . 2447 zo)When service rendered by a daily wager in two spells cannot be clubbed to arrive at 240 days (AP. . . . . . . . . . . . . . . .DB). . 2(oo) or on account of expiry of fixed tenure (S.C. . . . . . . . . . . . .C. . . . . . .2J) . 2448 Fzs) When workman appointed for 88 days on temporary basis was terminated since bank’s policy forbids appointment for 90 days (S. . . . . 2451 c) When notice was served fifteen minutes before closing of work (Bom. . . . . . .DB). . . . . 2440 s) When workman’s services were terminated as per settlement for non-selection (Guj.C. . . . . . . . In respect of casual workman/daily wager . . . . . . . . . .DB) . . . . . . . . . . . . 25F since their termination does not fall under any of the exceptions (MP. . . . . . . 2462 r) When name was removed for absence as per service rules due to arrest since conditions u/s. . . . .DB) . . . 2467 zd)When retrenchment compensation falls short at the time of retrenchment due to non-inclusion of HRA and travelling allowance when paid as part of wages (Raj. . . on the date of retrenchment as well as on the next day since Sec. . . . . . . 25F (AP. . . . . 2459 m) When contract workers employed without license by principal employer were terminated since they are deemed to be terminated by principal employer (P&H. . . . . . . . .2J) . . . . . . .DB). . . .HC) . . . .DB) .DB) . . . . . . . . . . . .DB) . . . . . . In respect of probationer . . 2465 w) When notice to collect retrenchment compensation was sent first and money order later since Sec.M. . .3J) . . 2458 ii) When Probationers even appointed invalidly but terminated in non-compliance of Sec. . 2466 y) When retrenchment compensation of 15 days wage paid for service of 2 years since Sec. . . . . . . .3J) . . .2J) . . .C. . . . . . . 25F(a) & 25F(b) since Sec. . . 2464 i) When appointment letter mentions only the words ‘contract basis’ without mentioning the period and nature of work (P&H. . . . . 2471 . . . . . . . . . . . . . 2465 j) When an overaged employee is terminated without compliance of Sec. . 25F (P&H. . . . . . . 2467 Fze)When employee who completes 240 days or more even with artificial breaks after 89 days or with intermittent breaks.DB) . 25F mandatory (All. 2454 Fk) When the workman who had worked for 240 days is terminated (S.HC). . .C. . . . . . . .DB) . .DB) . . . 2461 q) When employee refuses to work on a lower post in night shift but attends office during normal hours and employer treats him to have abandoned the service (P&H. . . . . . . . . . . . 25F though it is oral (Pat. 25F(b) deemed not complied (Raj. . . . . . . . . . .HC) . 2456 F i) If temporary workmen with 240 days service for not passing test for absorption is terminated (S.C. . 25F (Ker. .3J) . . . .HC) . . .DB) . . . . . . . . 2454 1. . . . . 2456 Fv) Temporarily appointed daily wage workman terminated on account of surplusage (S. . . . . . . . . . . .C. . . . 2469 zh)When surplus railway employee terminated though as per Indian Railway Establishment Code but in violation of Sec. .C. . . 25F(b) deemed not complied (P&H. . . . . 2457 4. . 25F(b) deemed not complied (Raj. . . 2469 zg)When workman under contractual service in a project terminated before completion of it in non-compliance of Sec. In respect of apprentice . 25F(b) deemed not complied (Bom. . . . . 25F (Ori. . . . 25F (S. . . In respect of temporary workman . . . . . 2460 Fn) When the name of daily rated worker on passing of matriculation exam is struck-off in the absence of any such condition of service (S. . . . . . . . . . . . . . 2465 x) When there is mere recital in notice of termination that efforts will be made to pay retrenchment compensation since Sec. . . 2467 zf) When terminated without counting the services rendered by an employee in the previous organisation from which he was transferred (Raj. . . . . . .HC) . . . . . . .DB). . . .HC) . 2466 zc) When bank drafts carrying retrenchment compensation were remitted at 6 P. . . . . . 2456 2. . . . 2466 z) When Amount due from employee is adjusted against compensation payable u/s. . . . . . . . . . . 2470 zi) When employee with 8 years of service terminated without compliance of Sec. . . . . . .DB) . . . . . .DB) . . . . . . 2456 i) If apprentice who was continued beyond the initial period of appointment and worked for 240 days as staff reporter terminated (Guj. . . . . . . . . . . . . . . . . 2463 za) When service terminated without retrenchment compensation though terms of employment render service terminable without notice (Karn. . . . . . . . 2458 i) When probationer with continuous service of one year or more terminated (Karn. . . . . . . . . .3J). .DB) . . . . . . . . . . . . . . 2466 3. . . . . . . . . . . . . . . . . . .C. .DB) . 2459 Fl) When contractor’s employees under previous direct payment system discontinued due to reintroducing of contract system to deny the status of workman (S. . . .DB) .HC) . 2454 u) When termination effected during probationary period without paying compensation (P&H. . . . . . . . . . . . . . . . . . . . . .C. . . . . .DB) . . . . . . . . . . . . . . . . . . . . .Synopsis 2269 h) When the termination is in non-compliance of Sec. 2470 zk)When correspondent in a newspaper was terminated to avoid financial burden and not for misconduct in non-compliance of Sec. . . . . .2J) . . . . 2470 zj) When employee with longer tenure of service terminated when the work is of perennial nature or after a long tenure of service (Guj. . . . terminated with malafide intention to deprive workman of benefits u/s. . . .HC) . was posted since Sec. . 2461 p) When terminated on grounds of abandoning service (Jhar. .DB) . . 25F(b) deemed not complied (Ori. .DB) . .HC) . 2463 s) When termination is for misconduct without enquiry or where despite enquiry the charges were not proved (Pat. . . . . . . . . . . . . . . . . . . . 2460 o) When terminated without enquiry for continued absence unauthorisedly by invoking Standing Orders (MP. . . . . . . . . . . 25F(b) deemed not complied (Cal. . . 2453 Ft) When temporary workmen terminated after completion of probation period (S. . . . . . . . . . . . . . . . . . . . . 2466 zb)When it was not possible for workmen to be present to receive retrenchment compensation on the same day on which the letter so requiring. . . . . 2457 i) When a casual worker with more than 240 days of service in preceding 12 months terminated (Cal. . . . . 25F (MP. . . . . . . 2474 zu)When workmen terminated for not possessing requisite qualification after serving more than two years (P&H. . . . . Civil Court is not proper forum for recovery of retrenchment compensation and remedy lies u/s. .HC) . .2J) . . . . . 2483 IX. . . . . . . . . . . . . . . . . 2483 i) Remedy under writ jurisdiction for violation of Sec. . . . . . . . . . . . . . . . . . .HC) . . . . .HC) . . . . . . . . . . . . . . . . . . . . 2487 8. . . . .HC). 2486 4. . . 2475 Fzy) Termination not proper if employer fails to disclose grounds and nor is it examined by the Labour Court (S.C. . . . . . . . . . . . . . . .DB) . CAT cannot interfere with the relief granted by the Tribunal since not vested with power of superintendence over the latter (S. . . . 2473 zq)When termination is ostensibly due to closer of one unit since functional integrality exists between the unit closed and other unit (Del. . . . Effect of violation of Sec. . . . . . . . 2483 F 1. . . . . . .HC) . .C. . 2487 g) Remedy under civil jurisdiction . . . . . . . 33C(2) of Industrial Disputes Act (All. . . . Tribunal to give declaration that workman terminated has continued in service when termination becomes void and non-est (Guj.DB) . Labour Court to give positive finding on justification of termination failing which award stands vitiated (Ori. 2484 Fzm) When senior was terminated retaining his junior in violation of the principle of ‘last come-first go’ u/s. . . . . . Societies Act to grant relief (P&H. . . . . . . . . 2487 9.HC) . . . . . . . . . . .DB) .DB). . . . . 2489 b) Legal heirs can enforce the claim for retrenchment compensation and the right survives even though the workman dies (LAT) . . . . . . . . . . . . . . . . . . . . . . . . 2475 Fzx) When terminated on non-renewal of contract of employment (S. . . . . . . . . . . . . . . . . . . . 2472 d) Workman on his reappointment for one month which does not include his previous service can challenge his previous termination in violation of Sec. 2485 2. . . . . . . . . . Labour Court must find out whether employee is a workman and he has completed 240 days of service to decide the question of retrenchment compensation (Karn. . . . . . . . . . . . . Labour Court is not barred by Haryana State Co-op. . .3J) . . . 2473 zr) When workmen terminated for pressing their charter of demands since actuated by victimisation (Karn. . . . . . . . . . . . . . . . . . 25F. . . . . . . .HC) . . . . . . .DB) . . . . . 2485 zn)When employee who completes 240 days terminated for not accepting certain conditions of service (Raj. . . . . . . . . . . . . 2487 10. . . . . . . . When can be . . . . . . . . . . . . . . . . . . .C. . . . . . . . .DB) . . . . . . . . . . . . . . 2474 zt) When terminated without compliance of the section and employer-employee relationship exists (Bom. . . . . . 2482 1. . . . 25F (Raj. . 2474 zw) When terminated in the absence of proof of appointment for fixed term (Del. . . . 25F (HP. . . . .2J). . . . . . . . . . . . . . . . . . . 2488 h) Remedy under Central Administative Tribunal . . . . . . . 2485 zp)If terminated for disobedience of transfer orders without enquiry since it amounts to punishment (P&H. 2486 6. 2472 e) Employer deemed acquiesced into findings of award when he never challenged award which thus becomes final (All. . . . . . 2476 zz) When Extra Departmental Branch Post Master was terminated after enquiry without an opportunity of hearing (CAT) . . . . . . .The decision of High Court though was a summary dismissal operates as res judicata against the same cause of action for the same relief before Labour Court (P&H. . . . . . . . . .HC). . . . . . . . . . . .DB) . . Delay cannot be ground for Labour Court to decline relief to workman (P&H. . . . . . . . . . .C. . 2473 zs) When some workmen were terminated in view of proposed closure and others are retained (Mad. . . Remedies for violation of the section . . . . . . . 2485 zo)When driver terminated while employer maintains three vehicles and employs a casual driver (Bom. . . . . .HC) . . . 2472 c) Proper forum is under Industrial Disputes Act but not under writ jurisdiction (All. . 2486 5. . . 2473 f) Scope of powers of the Tribuna/Labour Court under Industrial Disputes Act .HC) . . . . . . . . . . . . 2488 a) Workman can elect his remedy either by challenging retrenchment or claiming retrenchment compensation by accepting retrenchment (Del. . . .DB) . .2270 Chapter VA – Lay-Off and Retrenchment zl) When employees in irrigation department of public works of State Government were terminated in non-compliance of section (Guj. . . . . . . 2482 a) Employer-employee relationship exists when retrenchment is bad due to non-compliance of Sec. . . . 2476 1. . . . . . . . . . . . .HC) . . . . . . .3J) . . . . .HC) . . 2474 zv)When terminated on the ground of loss of confidence for remaining absent continuously (MP. . Labour Court cannot question management’s right to retrench but to examine whether the same is justified (All. . . . . . . 2488 VIII. . . . 2484 1. . . 2489 . . . . . . . . 25G (S. . . . . . when workman claimed re-employment (Bom. . . . . . . . 2486 7. . . . . .DB) . . . . . .DB) .HC). 2488 b) Termination becomes void (Bom. . . . . . .DB). . . . . . . .HC) . .HC). . .DB) . . 2485 3. . . . . 25F . . . . . . Tribunal cannot interfere with termination if union fails to submit evidence despite ample opportunities (Raj. . . . 25F (Raj.DB) . . . Industrial Tribunal but not Administrative Tribunal can adjudicate on termination in violation of Sec. Labour Court not justified in granting reinstatement. . . . . . . . . . . . 2496 iv) When contravention of sec. . .DB) . . . . . . . . . . . . . . .C. . . . . . 2492 h) Plea that department is closed is to be taken before Labour Court but not High Court (Mad. . . 2494 x) Single Judge cannot analyse the issue whether qualification was misrepresented to obtain employment but only to examine applicability of the section (Raj.DB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .DB) . 2495 j) Prosecution . . . . .DB) . .DB) . . . . . .2J) . . . . . . . 25F is an admitted fact but not a dispute for adjudication (Ori. . 10 (All. . . Pleadings by either party-what can be and appropriate forum where can be made. . . . . . 2497 Ff) Pleading that employment is tenure based cannot be taken by the employer for the first time in the appeal before Apex Court (S. . . . . . . . . . . . . .DB) . . 2498 vi) When fresh issues were raised before High Court but not before Industrial Tribunal (Guj. . . 2489 k) Appropriate Government-whether competent to determine workman’s claim . . . 2491 F v) When writ involves pure question of facts like whether employee worked for 240 days (S. .Synopsis i) High Court can directly entertain writ over matters falling under Chapter V-A since it does not contain disputes referable to Labour Court or Tribunal u/s. . 2501 . . Can be initiated for violation of Sec. . 2491 iv) Writ not maintainable in case of non-compliance of Sec. . .C. . . . . .HC) .C. . .HC). . . . 2492 i) Plea of non-payment of retrenchment compensation can not be raised by employee who obtained stay on the service of notice of retrenchment (Pat. 2492 a) Pleading as to non-payment or inadequacy of compensation to be made to challenge retrenchment (P&H. . . . . . . 2496 Fb) Plea of non-compliance of section to be raised before the lower Courts but not before Higher Courts (S. . . . . . . . 2496 c) Plea disputing the status of employer as an industry to be taken before Labour Court but not before High Court for first time (P&H. . . 2500 m) Plea of non-service of notice and non-payment of retrenchment compensation cannot be raised by workman who avoids to take drafts (Raj. . . . . . . . . . 2489 1. 2500 o) Pleadings by management as to abandonment of services and retrenchment being inconsistent not acceptable (Del. . . . 2496 v) When services of casual workers were terminated on completion of work without any written order (Cal. . .C. . . . 2490 X. . . . . . . . . . 25F is violated since it amounts to violation of natural justice (Mad. . . . . . . . .HC) . . . . . . 25F if industry is closed or is in severe financial condition (Bom. . . . 2499 F viii) When order dismissing the writ against Labour Court’s order of reinstatement operates as resjudicata in the subsequent writ appeal filed by management against writ for back wages by workman (S. . . . . . . . . . . 2490 iii) When alternate remedy is available under Industrial Disputes Act (All. . . . . . . . . . . . . 2489 2271 a) Not a proper remedy to decide questions of appointment on vacancy and violation of rules and benefits u/s. . . . . . . . . 2497 e) Workman to specifically plead that he put in 240 days or more in preceding 12 months to claim relief (Bom. . . . . . . . . .2J) . . . . . . . . . . . . . . . . .HC) . . . 25F unless there is proof of legal injury or infringement of legal right of the employee (Pat. . . . . 2495 i) Remedy of Letters patent appeal . . . . . . . . . 2494 F 3. . Cannot determine the question of retrenchment compensation claimed by discharged workman (Mad. . . . . . . . . . .C. . .HC) . .HC) .HC) . .HC) . . . . . . .C. . . . . 2495 Fk) Plea that calculation of compensation was as per previous wages instead of wage board award to be raised initially before Tribunal (S.2J) . . . . . . 2497 d) Plea of probationer that he was workman and completed 240 days raised for first time in writ appeal is untenable (AP. . . . . .HC) . .3J). . . . . . . . . . 2495 iii) High Court not barred by availability of alternate remedy to grant relief for retrenchment u/Art. . . . . . 2490 2. High Court to pass speaking order while upholding order of reinstatement (S.2J) .HC). . . . . . . . . . . . . . .HC) . . . . . . . . . . . . . . 2490 1. 2496 vi) High Court can modify the relief granted u/s. . . . 25F can be raised by workman in writ appeal though not raised in writ petition since it involves question of law (Raj. . . . . . . . . 2490 ii) High Court cannot decide questions of fact like whether or not the workman completed 240 days of service (All. When cannot be . . . . . . . . . . . . . .HC) . . . . . . . . . . . . . 25F (Ori. . .HC). 2498 vii) Cannot be for contesting ex-parte award when employer failed to contest the reference before Tribunal (Del. . . . .HC) . . . 2497 g) Plea that employee was irregular to be taken to justify termination before Labour Court (Raj. . . . . 2490 i) High Court cannot interfere where no jurisdictional error/procedural irregularity is committed (Guj. . . . . .3J) . . .2J) . . . . . . . . . . . 2500 Fn) Plea of infirmity in notice to be specific and precise and not in the form of a general plea (S. . . . . . . .DB) . . . . . . . . .HC) . . .HC) . .HC). .2J) .C. . . . . . . .HC) . . 2495 ii) High Court can entertain dispute of termination if Sec. . . .HC) . . . . . . . . . . .C. . . . . . . . 2499 F ix) High Court cannot dismiss a writ on grounds of delay without ascertaining facts for delay like agitating in wrong forum ignorantly (S. . 2499 l) Plea of non-compliance of Sec. . 25F (MP. . . . . . . . . . .DB) . . . . . . . 2493 j) Plea of non-payment of compensation at the time of retrenchment not sustainable once the fact of receiving is admitted by the workman (Raj. . 226 (Cal. . . . . 2509 XI. . . . . . . . . . . . . . . . . . .DB) . . Employees who worked for 240 days during the period of 12 calendar months preceding termination (Del. . . . .DB) . . . 2507 ix) Reinstatement cannot be granted when workman worked for short period and attained the age of superannuation on date of retrenchment (Raj.DB) . . . . . . . . . .DB) . . .DB). . . . .HC) . . .2272 Chapter VA – Lay-Off and Retrenchment p) Management cannot adduce evidence as to payment of retrenchment compensation if no averment made to that effect in it’s reply (Bom. . . . 2502 xiii) Reinstatement proper when probationer terminated in violation of Sec. . . . . . . . .HC) . . .HC) . . 2503 F ii) Reinstatement unjustified when no work is available (S. . . . . .DB). . . . . . . 2502 2. . 25F (Guj. . . . . 2512 v) When there is violation of the section though the appointment is dehors the Act (Raj. . . . . 2510 F i) When workman proved having worked 240 days with the help of muster roll (S. . 2506 vi) When termination of employees is due to closure of mechanical workshop since it is not a separate undertaking being adjunct to manufacturing activity (Guj. . .HC) . . . . . . . . . . . . . . . . . . .DB) . . . . . The expression “deemed to be in service” in the award means reinstatement (Ker. 2502 1. 2503 ii) When a workman even a casual one worked for 5 years (AP. . . Workmen working in different units under different employers if failed to complete 240 days in any of the units (Raj.DB). . . . . . . . . . . . . . . . . . Conditional Reinstatement by employer is invalid and he cannot contend the same against grant of 50% back wages (Bom. . . . . 25F though services were terminated under standing orders (Bom. . . . 2509 1. .DB) . . . . . . . . . . . . .DB) . . . . . . . . . . . . .C. . . 2508 q) Plea of invalidity of retrenchment cannot be takenby employer to deny his liability to pay it (Mys. . . . . . . . . . . .C. . 2501 xii) Reinstatement proper when one workman not taken back while other delinquent workmen were taken back after strike (Del. . . . . 2502 xiv) Reinstatement cannot be denied on the ground of delay even if it is unexplained (Pat. When can be . . . . . . . . . . . . . . . . . . . . . . . . . . . .3J) . .2J). . 2503 i) Reinstatement cannot be of casual workman in the absence of proof of retrenchment or appointment letter or completion of 240 days (Guj. .HC) . . . . 2514 vii) Reinstatement is the relief for non-compliance of Sec. . . . . 2(oo) (All. . . . . . . . . . . . . . . . . . . . 2510 2. 2515 xi) Reinstatement not proper for casual workmen when not entitled to regular post and not completed 240 days (Bom. .DB) . . .HC) . . . . . . . . . . 2511 iv) When retrenchment not bonafide as effected to enable employer subsequently to raise salaries of other employees (Mad. 2502 3. . . . . . . . . . . .3J) . . . . . . . . .C. . . . . .HC) . Reliefs available for violation of the sections . . . . . . . . . . 2513 vii) When workman’s capacity to work is impaired (Bom. . . . . . . . 2503 xviii) When a workman’s services are terminated even after completion of 240 days by oral orders while that of similarly placed employees were continued (Raj. . . . 2515 . . . . . . .HC) . . . . . . . . . . . . . . . . .DB) . . 2510 3. . . . . . 2509 xv)Reinstatement cannot be denied when Labour Court gave a clear finding that termination was illegal (Del. . . . . . . . . . .HC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .DB) . . . . . . 2504 F iii) Reinstatement cannot be in case of closure of business or severe financial constraints or in case of better employment of workman elsewhere (S. . . . . 2508 x) Reinstatement cannot be denied on the ground of closure when the same not pleaded by the employer (Bom. . . . . . . . . . . . 25F (S. . . . 2503 4. . . . . . . . . . . . . . . . . . . . . . . 2506 F iv) Reinstatement cannot be when workman did not complete 240 days (S. 2513 vi) When workman is found to be indulging in smuggling activities (Bom. . . . . . . . . . . . 25F as he rendered service of 22 years (P&H. 2510 xvii) Reinstatement cannot be denied when termination does not fall within the purview of exceptions u/s. . . . . . 2502 b) Who cannot claim . . 2509 xvi) Reinstatement proper when workman was terminated in violation of Sec. . . . . . . . . . .HC) . . . . . . . . . . . . .HC) . . . . . . . . . . . .DB) . 2511 F iii) When workman after 240 days of continuous service terminated in non-compliance of Sec. . . . . . . . . . . . . 2514 ix) Reinstatement proper when workman terminated for unsatisfactory work in violation of Sec. . . . . . .HC) .DB) . . . . . . . . . 2501 xi) Reinstatement cannot be denied on the ground of strained relationship between management and retrenched workman (Mad. . . . . 25F is for loss of confidence that is justified (Bom. Legal heirs in case of death of the workman (Del. 2510 c) Relief of Reinstatement . . . . . . . . . . . . . . . Only aggrieved employees (MP. . . . . . . . . .2J) . . . . 2508 x) Reinstatement not justified when tribunal did not decide the question of voluntarily leaving the job when raised by the employer (Raj. . . . .C. . .2J). . .HC) . .C.DB) . .DB) . . . 2514 viii) Reinstatement proper if employee completed 240 days in a year though in spells of 89 days (P&H. . . . . 2506 v) When termination though violative of Sec. . . 25F as a measure of pruning (Cal. . 2502 a) Who can claim . . . .HC) . . . . . 2503 1. . . . . . . . . . . . . .HC) . . . 2507 viii) When employee is superannuated during pendency of proceedings (Ori. When reinstatement cannot be . . . . . . . . . . . . .C. . . . . . 2524 F b) On the employee to prove that he is not gainfully employed (S. . . . . . . . . . . . . . . . . employment and appointment (Raj. . . . . .HC). . . 2521 x) The factor of delay to be considered in determinig the quantum of back wages (Guj. . .C. . .HC). . 2530 xv) 60% granted to probationer who was terminated for misconduct without enquiry and terminated without enquiry (Guj. . 2525 iii) Plea of gainful employment to be raised before Tribunal by employer but not before Writ Court (Chh. . . . . . . 2525 iv) Full back wages payable when the Labour Court fails to furnish reasons for reducing them to 50% (P&H. . . 2523 2273 2. . . . . . . . . 2523 F i) Back wages in full payable if gainful employment of workman not proved (S. . . . . . . . . . . . . . . . . . . . . . . Quantum of back wages when can be in full/when can be reduced . . 2529 xii) 50% back wages granted on no work no pay basis though employee was wrongfully denied work by the employer (All. . . . . . . . . . . . . . . . 2519 iv) Quantum of back wages to be determined having regard to financial implications on public functionary (All. . . . . . . . . . . . 2530 xiv) Only 50% backwages granted as the employer being the State cannot be saddled with full back wages (Guj. .HC) . . . . .Synopsis xii) Reinstatement cannot be of daily wagers though terminated in violation of Sec. . . .C. . DB) . . . . . . 2520 vi) Labour Court to record the basis of evidence for granting back wages and mere absence of plea of employer raising objection to back wages does not entitle workman to back wages (Del. 2518 F ii) No law in absolute terms can be laid down to grant full back wages but it is not automatic since industry cannot be compelled to pay for the period during which the employee contributed nothing (S. . . 2515 xiii) Reinstatement cannot be if there was unexplained delay of 13 years on the part of workman (Mad. . . . . . . . . . . . . . . General principles to determine quantum of back wages . . . . . . . . . . . . .3J) . . . . . . . 2523 xi) The principle of ‘no work-no pay’ to be considered to decide the quantum of back wages (Ori. . . . . .HC) . . 2516 xvii) Reinstatement not proper when employment is for fixed period (Raj. . . . . . . . .HC) . . . . . . . .HC) . . . . .HC). . . . . . . .2J) . . . 2518 1. . . . . . . . .C. . .3J) . driver (Gau. . .2J) . . 2524 F a) Is on the employer to have the issue of gainful employment framed by the Tribunal to determine admissibility of back wages (S. 2523 ii) Burden of proof as to gainful employment . . . . . . . 2527 F ix) 25% garnted since employer cannot be saddled with burden of full back wages for no work rendered (S.3J) . . . .HC) . . . 2529 xiii) Backwages of 50% granted since employer is public instituition and the employee was not employed after termination (Mad. . . .C. . . 2519 iii) Quantum of back wages to be determined on the basis of nature of work. . .2J) . . . 2528 xi) Only 50% back wages admissible from the date of filing claim statement till passing of award in view of delay in raising the dispute (Bom. 2517 d) Relief of back wages . .C. .HC) . . . . . .C. . . . 2521 viii) Back wages to be at the rate commensurate to the status of a daily rated workman but not at the scale of the post i. . . 2527 viii) 25% granted inspite of gainful employment when the same is not substantially better (Bom. . . . . . . . . .e. . . . . . . . . . . . . . . . . . .C. . . . .HC) . . .HC) . . . . . . . . . . . . .HC) . . . . . . 2520 F vii) Reinstatement entitles employee to wages of the post from which he was terminated but not of fresh post to be considered (S. .2J) . 2521 F ix) The factor of gainful employment of the workman to be considered while examining the admissibility of back wages or deciding quantum of back wages (S.HC) . . . . 2516 xv) When workman abandons service of his own volition (Raj. . . . . 2530 xvi) Full back wages from the date of termination to the date of reference not admissible since not appropriate to burden the exchequer meant for public benefit and 60% back wages permissible for the period of pendency of reference since employee is not at fault (Guj.2J). . . .HC) . 2517 F xviii) When retrenchment is valid on facts though Sec. . . . .2J) . . . . . .HC) . . .C. . 25F violated as retrenchment compensation was not paid (S. . . . . . . .HC) . . . . . . . . . . . . . 2516 xiv) If termination is by way of acceptance of voluntary resignation (Bom. 2520 F v) Quantum of back wages to be determined on the basis of apportionability of burden due to delay not attributable to either party (S. . . . . . 2526 vi) Back wages cannot be denied on the plea that it would affect public exchequer for payment of back wages (Guj. . . . . .HC) . . 2525 v) Back wages in full payable when the workman even after termination made a representation to the employer to allow him to work (Bom. . . . . . . . . . . 2516 xvi) Reinstatement cannot be awarded on the ground of workman completing 240 days without discussing the evidence on record (P&H. . . . . . . . . . . 2518 F i) There is no starightjacket formula to grant back wages and Labour Court has discretion to decide the qunatum on facts and circumstances (S. . . 25F since the posts they worked on were not sanctioned (Mad. . . . .HC) . . . .3J) . . . 2526 vii) Back wages as a lumpsum granted when workman is a daily wager (Guj. .HC) . . . .C. . .HC) . . . .DB) .HC) . . . . . .HC) . 2531 . . . . . . .HC). . . . 2528 x) Back wages to the tune of only 30% payable when project workman terminated six years before the project came to an end (Guj. . . . . 2533 F 1.3J) . . . .C. 2533 v) Back wages not payable merely on acquittal of criminal charges when they are fairly serious and employee did not work during pendency of criminal proceedings (Del. . . 2546 h) Relief of Compensation in lieu of reinstatement is proper . . . . . . . 2534 1.HC) . . . 2531 iv) When post itself is abolished (Ori. . . .C. . .HC) .m. .DB). . 2532 iii) Back wages denied for unauthorized absence on the principle of no work-no pay (Ori.HC). . . . . . 2538 vii) When workman offered to take employment afresh through selection process and he worked only for 230 days (P&H. . . . . . . . . . . . . . . . . 2546 xxiii) Proper when only consultant office was functioning at skeletal level (Jhar. .HC) . . . . . . . . . . . 2543 xii) When workman reached superannuation (P&H. . . 2535 xvii) Compensation is proper when establishment was sold out (Karn. . . . 2545 F iii) When termination in violation of Sec. . . . . . 2545 ii) When workman without giving notice or wages in lieu of it is terminated (Ori. . . . . .HC) . . .DB) . . . . . . . . . . . . .HC) . . . . . . 2540 F x) When workmen terminated were casual employees and did not work for 240 days (S. 2543 xiii) When workman is a temporary supervisor and termination is illegal for mere technical violation of the section by non-payment of retrenchment compensation (Bom. . . . . . . . 2535 F xv) When the job performed by employees in fast food centers is such that they can easily find other jobs (S. . . . .C. . . .C. . . . . . . . 2544 2. Cannot be when provisional employees were retrenched and replaced by Public Service Commission recruits (Ker. .2274 Chapter VA – Lay-Off and Retrenchment 3. . . 2535 xviii) When workman is part-timer and irregular in attendance (Raj. . . . . When can be . . . . . . . . . . . . . . . . . . 2545 i) When retrenchment and suspension are declared void employee entitled to be in continuous service (P&H. . . . . . 2534 i) The intervening period to count for seniority and back wages on pay revised during the intervening period (Raj. . . . . . . . .2J) . . . . . . . . . . . . . . . . . . increments falling due during the period of employment to be paid along with wages (P&H.C. . . 2536 xxi) When workman is engaged elsewhere after termination (P&H. . . . . . . . . . .3J). . . 2539 F ix) When there is lapse of longer period after retrenchment more so when work man was appointed on temporary basis/daily wage basis/adhoc basis and also they can be gainfully employed (S. . Back wages when can be denied . . . . 2546 F i) When termination is as a result of closure of unit (S. . .HC) . . 2539 F viii) When termination is set aside on technical reason of miscalculation of compensation and since 14 years lapsed (S. .C. . . . . 2532 iv) Back wages not payable when employee is not joining duty on reinstatement but working elsewhere (Mad. 2538 vi) When employee does not have prescribed qualification to carry out or discharge duties of the post (Bom. . . . . . . . 2535 xix) Proper for just reasons like establishment is a defence establishment (AP. . . . . . . .DB) . . . . . . .2J) . . . . . . . . . . . .2J) . . . . . . . . (Bom. . . . . . . . . . . .HC) . . . . . . . . . . . . . . . . . . 2536 F ii) When employee worked only for one year and not appointed as per recruitment rules (S. . . . . . . . . . . .HC) . . . . . . . . .DB) . . .3J) . . . . . . . . . . . 25F is deemed to be non-est or void ab-initio (S. . . . . . . . . . .HC) . . .HC) . . . .2J) . . . . . . . . . . . . . . . . . . . . . .DB). . . 2544 ii) If reinstated pending final result of writ petition. . . . . . . . . . Continuity of service means . . . . . 2537 xxii) Mere compensation proper when appointment itself is not as per relevant rules (Raj. . . . . .DB) . . . . 2531 F iii) When the employee is not interested in continuing the job (S. . . . . . . . . . . . . . . . 25F (Bom. 2542 xi) When employee was a daily wager and the company is engaged in manufacture of missiles which is a sensitive one requiring verification of antecedents (AP. . . . . .C. . . . . . . . 2536 xx) Proper when establishment is running into losses (P&H. . . . . . . . . . . . . . . . . . . 2547 . . . . . .2J) .3J) . . . . . . 2534 g) Relief of continuity of service . 2534 1. . . .3J) . .HC) . . .HC) . . . .HC) . . 2538 ii) Back wages not payable since the employee remained absent without bonafide reasons though reinstated for non-compliance of Sec. . . . . . . . . .DB) . . . . . . . 2533 e) Relief of re-employment can be .HC).C. . . . . . . . . . 2535 xvi) Mere compensation for truck driver proper when the truck driven by him was sold (P&H. .C. 2544 xiv) When reinstatement is not insisted by workman in his petition (Raj. . 2546 1.DB) . .HC) . . . . . . . . . . . . 2537 F i) Back wages not payable in case of a daily wager who completed only 264 days in his short employment under a year (S. . . . .C. 2533 vi) Back wages denied for long delay in raising dispute and employee earning Rs. . . . . . . . . . . . . . 25F (Mad. . . . . . . . . . . . . When can be . 2533 f) Relief of re-appointment whether can be . . . . . . . . 800 p. . 2534 v) When retrenchment is bonafide though in violation of Sec. . . . . .DB) . . . . When new recruitment was made by employer subsequent to termination of the workman (S. . .HC) . . . . . . . . . . . . .HC). . . . . 2552 F xxv) Mere compensation proper in case of termination of project employee though illegal (S. . . . .DB) . . . . . . . . . . . 2555 II. .HC) . .HC) . 2555 Fi) Sec. . . . . . . . . . . . . . 2552 V.2J) . . . . . . . . . . . . . . . . . . . . . . HC) .HC) . . . . . . .DB). .C. . . . . . . . . 25FF not applicable to a change of constitution of partnership firm or conversion of partnership firm into a proprietorship firm (Mad.HC) . . . . . . 2549 xxxii) When employee suffered from paralysis (Gau. . 2550 iii) When work man did not complete 240 days (Del. . . 2548 xxix) Mere compensation proper though Sec. . . . .DB) . . . . . . . . . . . Transfer of undertaking . . . . . . . . . . . Compensation to workmen in case of transfer of undertaking . . 25F was as per service rules (S. . 2557 . . . .3J) . . . . . . Scope object and applicability of section . . 2550 2. .C. . . . . . . .HC) . . . . . . 2551 a) Includes . . . . . . . . . Settled law on the issues under this section . . . . .C. . . . . 2550 b) Cannot be of a casual employee in a local body if Government instructions prohibit it (Cal. . . . . . . . . . . . .2J) . . . 2556 III. . . . Workman deemed to be in employment and entitled to all the benefits till employer tenders the due amount of gratuity (All. . . . . 25FF does not stipulate notice or payment of compensation as condition precedent to transfer nor any time limit for their payment (S. . 2552 a) When business of transferor and transferee is the same (Bom. .C. . 2557 c) Cannot be when workman agitated for the relief after a delay of 12 years (Mad. 25FF does not compel employees to accept transfer but only ensures compensation to them (Bom. . . . 25FF has no application in case where transfer of an industrial concern is fictitious or ‘benamidar’ (S. 2555 h) Section not applicable to take over of undertakings if it is not for acquiring ownership (Pat. . . . 2551 1. . . 2548 xxviii) When employer loses confidence in the concerned employee when employer loses a customer by the conduct of workman (AP. . . . . . . . . . .2J). . . . . . . . . . . . . . . .C. . . . . 2552 xxvi) When employer cannot provide continuous work (Bom. . . . . . . 2552 Fa) Retrenchment compensation to be calculated on the basis of 30 days instead of 26 days (S. . . . 2557 1. . . . . . 2550 iv) Regularization cannot be . . . . .C. . . . . . 2556 b) Sec. . . . . . . . .2J) . . . . . . . . . . . . . . . .C. . . . . . . 2557 1. 2555 g) Applicable to all undertakings covered both under Chapter VA and VB (Mad. Transfer is valid . . . . .HC) . . . . .DB) . . . .C. . . Can be granted to the retrenched workmen for the period prior to their retrenchment (Cal. . . . . . . . 2550 a) In the absence of any posts (Ori. . 2551 Fa) Transfer does not end workmen’s contract of service (S. . . . . . . . .2J) . . . . . 2549 F xxxiii) When employee dies during pendency of proceedings (S. . . . . . .DB) . . . . . .CB) .Synopsis 2275 xxiv) Proper when workers are not interested to be reinstated to the post last held (Mad. 2557 IV. . .C. . . . .HC) . . 2552 Fb) Inter-departmental transfers are not within the ambit of the section (S. . . . . . . . . . 25FF . . . . . 2550 i) Ten times the retrenchment compensation not proper when retrenchment compensation was duly sent and termination is lawful (Bom. . . . . . Compensation in lieu of reinstatement when not proper . 2557 XII. .3J) . . . Sale of a bus together with the permit since it involves transfer of ownership (Mad. . . 2554 Fe) Sec. . 2557 i) Relief of bonus . . . . . . . . . . . . . 2548 F xxx) When employer lost his confidence and termination though violative of Sec. 2548 F xxxi) When reinstatement is not possible due to peculiar circumstances like cancellation of work permit which is necessary to enter port area (S.HC). . . . . . .DB) . .HC) . . 2547 xxvii) When terminated for unsatisfactory work (Bom. . . . . . . . . Transfer of Undertaking vis-a-vis splitting of existing firm into two firms-Whether to be considered to be two different employers . . . . . . . . . . . . . .DB) . . . . . . .C. 2552 1. . . Transfer of undertaking–Entering into partnership-whether same . . . . . . . .DB) . . . . . .HC). . . . 2557 j) Relief of fringe benefits and gratuity . . 2554 f) Section is applicable prospectively (AP. 2557 Fb) Though workmen’s consent is absent (S. . . . . . . . . . . . . . . . . . . . . .C. . . . . . . . . . . 2556 a) Entering into a partnership business requires no consent of employees and legally no transfer takes place (Mad. . . . . . . . . . . . . . . . . . 2547 I. . . . . . .2J) . . . . 2547 H. . . . . . . . . . . . . . . . .DB) . . . . .C. . . Joint venture between two companies for better functioning and technical cooperation (All. . . . . . . . . . . . . . . 2551 b) Excludes . . 2556 Fa) It cannot be two different employers if company is split dividing functions and liabilities between them when workmen are not aware of such split or contracted separately with them and there is no change in their service conditions (S. . . 2550 ii) When granted without any cogent reasons by diluting it’s own findings (Mad. . . .2J) . . .HC) . 25F was violated if worker abandons service by not joining at the place of transfer (Mad. . 2554 Fd) Transfer of undertaking cannot be assumed but to be proved on evidence (S.Sec. . . 2553 c) Sec. . .3J) .HC) . . .2J) . . . . . . . . . . . . . . . . . . . . . . . . . . 25FF cannot be claimed if transfer of undertaking is not proved (Mad. . . . . transferor stands absolved of obligations. . . . 2565 b) Transferor liable to pay retrenchment compensation in the absence of any agreement between him and the transferee on the liability to pay the same (Raj. . . . . .HC). . transferee liable to reinstate the workmen if retrenchment is illegal (Guj. . . . .2J) . . . . . 2574 . . . . .CB) . . . . . . .HC) . . . . A transferee company is not when it took over only assets but not liabilities and sale was free from encumbrances (Bom. . . . 2563 f) Transferee company liable to give notice pay and compensation to workman whose dismissal it effected was set aside even after retransfer to original owner if bound by an agreement (Bom. . . . . . . . .3J). . . . . . . . . . . .DB) . Tribunal not to focus on automatic end of service since it is an abstract question of law but on diverse issues arising out of contractual relations between parties since it answers the said question (S. . . . . . . . . . . . . . . . . . . . 2572 c) Tribunal has jurisdiction to give effect to obligations arising out of transfer (Ker. . . . . . . . . . 25FF (S. . . . . . . . . . . 2569 X. . . . . . . .DB) . . . . A purchaser can be when he carries on same business without appreciable break at same place and it’s very object of sale transaction was to carry on business of vendor company (S. 2571 2. . . . . . . . . . .DB) . . 25FF complied. . . . . . . . 2566 IX. . . A transferee company cannot be in respect of an employee whose services were terminated at the time of transfer if it has liberty not to absorb all (Cal.CB) . Transfer is not valid . . . . . . . . . . . . . 2560 c) If resorted to as a colourable exercise of power to discharge workmen (Ker. . . . .DB). . . . . . . . . . . . . . . . . 2562 Fa) No single conclusive factor but to be determined by various factors like whether whole business was purchased or is it a going concern etc. . . . 2569 VII. . . .HC) . . .DB). . 2562 2. . . . . 2562 b) Who can be Successor-in-interest . 2569 d) If made a party to the dispute. . . . .HC) . . . . . . . . .HC) .DB) . . .HC) . .DB) . . . . 2560 d) Transferee entitled to cross-examine witnesses when impleaded as a party to the proceedings before the Tribunal (Del. . . . . . . . . . . Purchaser of equity redemption of assets cannot be as it does not amount to transfer or it being transferee (S. . 2570 1. . . . .CB) . . . .C. . . . . . . . . . . . . . . . . . 2561 a) Undertaking given by transferor company to employees of it’s subsidiaries are binding on transferee (Bom. . . . . 2559 Fc) In the absence of any express or implied undertaking. . . . . .HC) . . .3J) . . . . 2559 Fb) When the transfer is inter-departmental and departments are interdependent (S. . . . . . . . . . . . . . . . . . . 2568 e) Transferee when not undertaken to retain workmen of the transferor is not liable to pay the same wages drawn prior to transfer to workmen in case of re-employment (P&H. . . . . . . . . . . . 2567 a) Transferee not liable to absorb retrenched workmen (Guj. . . . . . . . Obligations of Transferor . . . . . transferee liable to employees about their conditions of service (Mad. .C. . . . . . . . . . . . . . . . Successor-in-interest . .3J) . . 2567 d) When factory sold is functioning as a separate undertaking (Mad. .C. . . . .C. .C. 2571 F 3. 2569 Fd) If transfer is fictitious or benami or despite transfer.DB) . . . .DB) . . . . . . .DB) . . .DB) . . . . . . . . . . . . . . . . .C. . . . .C. . . 2572 d) Relationship between transferor and workmen gets terminated by reason of deemed retrenchment and discretion to continue employees lies with transferee as per agreement (Bom. . . . . 2567 XI. 2570 c) Who cannot be a successor-in-interest . . .DB) . the management continues to be in the same set of persons organised differently (S. . . . . 2569 Fc) Employee illegally terminated liable to be reinstated by the transferee since he was deemed to continue in service on the date transferee corporation came into existence (S. . . . . . . . . . . . . . . . . . . . . .C. . . . . . . 2564 4. . . . . . .C. . . Effect of transfer of undertaking . . 2572 Fa) Workman entitled to receive retrenchment compensation as per legal fiction envisaged under the section (S. . . . . . transferee entitled to treat the discharged employees on their absorption as fresh hands (S. . . . . 2568 VI. . . . . . .C. . .CB) . . . . . . . . . .C. . . . . 2559 a) If there is no express consent of the workmen (Bom. . . . . 2572 b) Benefits of Sec. . . . . . . . . . . .3J) . 2565 Fa) Transferor is liable to pay compensation u/s. . . .DB) . . . . 2563 e) Transferee taking over transferor corporation liable to pay the benefits to which employees were entitled (Mad. . . .2J) . . . . .2J) . . . . . . . . . . 2563 b) If all the conditions in the proviso to Sec. . . . . 2558 b) Transferee not liable to reinstate employees of transferor when no such relief is prayed (AP. . . . . . 25FF does not stipulate notice or payment of compensation as condition precedent to transfer nor any time limit for their payment (S.2276 Chapter VA – Lay-Off and Retrenchment c) When workmen had tacitly consented to it (Mad. . . . . . . . . 2564 VIII. . Rights of Transferee . 2562 F1. . . . Obligations of transferee . 2573 F 1. . . . . . . . . . . . A new company can be when the same business was carried on by new company and identity of business is not destroyed by interruption (Ker. . Purchaser cannot be where the business is not taken over but only land and buildings were purchased to start a new business (Karn. . . . . . . . . 2563 Fg) Clause in memorandum of agreement or the sale deed giving discretion to the purchaser to employ or not to employ or give fresh employment to workmen is prejudicial to the workmen and cannot be considered as bonafide (S. . 2566 Fc) Sec. . . . . . . . . .CB) . . .DB) . . . .C. . . . (S. . . . . . . . . . . . C. . 2581 Ft) Reinstatement can be claimed when no notice or compensation paid as their services are deemed to have been not interrupted by transfer (S. . . 25FF but u/s. . . . . 2589 Fb) Workman not entitled to any other relief u/s. 25-N once Sec. . . . . . . . 2590 . . . . . . . .C. . .2J) . . .C. . workers entitled to wages till the date of transfer and compensation from seller (transferor) u/s. . . . . . .3J) . . 2585 c) Expiry of 60 days will not render reference made thereafter as to validity of closure invalid since no limitation for the same stipulated in the Act (Cal. .DB) . . . . . . . . . . 25H can be sought when employees were retrenched prior to the transfer and not paid compensation u/s. . . . . . .C. . . employees terminated by transferor cannot claim reinstatement or compensation from transferee (AP. Applicability . . . . .DB) .C. .C. . . . . . . . 25FF is payable to workmen since it is not closure but transfer as the company is taken by MPEB (MP. .DB). . . . . . . Remedy for violation of Sec. . . . 2581 r) Workman entitled to retrenchment compensation as per Sec. . . . 2588 c) Does not render closure illegal but workman is entitled to 60 days wages (Bom. . . . . . . . . . . . .C. . . . . .2J). . . . . . . . . . . . .CB) .Synopsis Fe) Employee opting to serve transferee is bound by transferee’s service conditions (S. . 2587 Fq) Permanent employees are entitled to be absorbed subsequent to the transfer in the same status when so directed (S. . . . Scope and Object . .DB) . . . . . are not unconstitutional (Bom. . . . .2J) . . . . . 2574 f) In the absence of uninterrupted service. . . . . . . . . .3J) . .3J). . . . 25FFA mandatory failing which closure becomes invalid (Bom. 25F (S. . . Remedy for violation of the section . . . . 2581 Fs) Double benefit of compensation and re-employment u/s. 2586 Fm) No compensation is payable for benefit of earned leave not availed before the transfer (S.2J) . . . . .C. . . . . . .C. . . . . . . 2578 III. 2580 Fc) Though notice was issued closure will not be justified when it results in the unemployment to sizeable number of workmen and affects producers of Sugarcane (S. . . . . . . . 2577 Fk) Compensation payable is as per Sec. 2585 a) The object of 60 days notice is to prevent sudden closure and to enable the Government to take any measure including reference (Cal. . . . . . . . . . Sixty day’s notice to be given of intention to close down any undertaking – Sec. . . . . Notice of closure . . . . 2582 Fu) Transferee becomes real owner if in de facto possession of tea estate and termination by him is retrenchment u/s. . . . . 2587 Fp) Re-employment u/s. . . . . . . . . . . . . . . . . . 2587 Fn) Claim of seniority over transferee’s employees is not maintainable (S. . . . . . . . . . . . . . . . 2589 c) Functional integrality of unit with the factory to be determined before deciding applicability of Sec. . . 2576 Fj) Compensation under the section is payable by the transferor only when employees are reemployed afresh by transferee (S. . . . . .DB) . . . . .C. . . . . 2580 b) Notice u/s. . .HC) . . . . 2586 l) Compensation u/s. . . . . . . . . .DB) . . . . . . . . 25FF or 25FFF when the illegally terminated employee was either transferred to the Electricity Board as employee of the transferor or the company never closed down but continued on transfer (S.2J) . 25FFA complied since termination due to closure excludes retrenchment (S. . . . . . . . 25 F and not u/s. 2584 Fb) Remedy lies u/s. . . . . . . 2579 a) Closure will not result in termination of services unless notice of closure was given and compensation paid (Guj. . . . 25FF when services terminated prior to transfer (Mad. . .C. . . . . . 25F is payable when conditions of Proviso not satisfied as service conditions of transferee are less favourable (S. . 25FFA . . . . . . . 2588 V. . . . . . . . . . . . . .HC) . . . .DB) .2J) . . . 25FFA are not fulfilled (Bom. . . . . . . . 25-O (Cal. . . . . 2576 Fi) Compensation at the rate provided in Sec. . . 25FF (S. .DB). .C. . 25FFA . . 2576 h) The employee becomes entitled for retrenchment compensation and need wait for the formal orders of termination (All. . . 2585 b) Provisions of Sec. . . . . .2J) . . . . . . . . Effect of violation of Section . . . . . . . . . 33C (2) for recovery of compensation (S. .C. . . 2583 IV. . .HC). . . . . . . . . . 2582 v) Transfer of undertaking when affected during the pendency of a dispute about termination. . . . . . . . . . . 2588 a) Closure becomes invalid when requirements of Sec. 2584 I. . 2575 g) Workmen of transferor company have no claim barring right to compensation u/s. . . . . 25H not envisaged by the section in case of genuine transfer (S. . . . . . . . . . . . . . 25FFA and 25-O since imposed in public interest. 2588 b) Closure will not result in termination of service of employees unless notice of closure has been given (Guj.2J) . . . . . . . . . . . . . . . . . . . . . . .DB) . . 2585 I. 25FF though reinstated for invalid retrenchment (AP. . . . . . 25F and not u/s. . . . . 2589 a) Writ of Mandamus will lie even against a private company (Guj.C. . .2J) . . . .DB). . . . . . . . . 2578 b) Section not applicable to cases falling u/s. . . . . 2586 a) Applicable only to establishments employing less than 100 employees (Jhar.C. .DB) . . . . . . . .CB) . . . . . . . . . . .DB) . . . . . . . . . 25FF (Karn. . . . . .DB). .2J) . 2584 Fa) Right to retrenchment compensation is exercisable not against the transferee company but accrues against the owner at the time of actual transfer (S. . . . . . . .CB) . . . . . . 2587 Fo) Reinstatement of employee not maintainable if there is agreement not to transfer the employees concerned (S. .HC) . . . . . . . . . .C. . . 2586 II. . . . 25FFA (Ori. . . . . . . . . . . . .HC) . . . . . . . . . . 2578 2277 XII. . . . . a sense of security in a worker and to standardize his right in relation to industry (MP. . Expression ‘as if the workman had been retrenched’ means workmen are entitled to compensation and notice pay and not re-employment (S. 2591 Fa) Retrospective application of amendment of the section is not unconstitutional (S. . 2591 Fb) Discharge due to closure is not due to surplusage (S. .DB) . .CB) .C. . . . . . . . . . 25FFF. 25FFF on the right of employer to close down his business are not unreasonable nor violative of Constitution (MP.DB) . . . . .HC) . . 2600 Fc) No additional compensation like ex-gratia is payable when not payable under law (S. . . 2594 Ff) Standardisation of compensation is not in violation of Art. . . .HC) . . . . . . . . . 2601 2. . . . . . .C. . .C. . . . . . . . . . . . . . .C. . . . .C. . . . . . Attributes of the section . . . . . 2592 Fb) Closure should be real and bonafide (S. . . . 2597 f) Not applicable if a specific project is discontinued which is not a separate and distinct activity (Bom. . . . . .DB) . . . . . .2278 Chapter VA – Lay-Off and Retrenchment d) Labour Court cannot draw inference as to closure without recording findings on the factum of closure on the basis of evidence (Mad. 2602 c) Reference as to applicability of proviso to Sec. Notice of closure required even in case of closure due to ‘Force Majeure’ (Ker. 2600 VI. . . 2593 Fe) Compensation in addition to wages does not violate Art.DB) . . . . 2598 c) The legal fiction envisaged as to applicability of Sec. . . . 2599 f) Closure does not automatically terminate contract of service and hence nominees can claim benefits under Employees Deposit Linked Insurance Scheme (Guj. . . . . . . . . . . . . . . . . .C. . Sec. . . .CB) . . . . 2594 g) Restrictions u/s. . . . . . 25FFF(1)) . . . . . . . . Criteria determinative for closure . . .CB) . . . 25F is a yardstick for standardizing compensation while u/s. . . 19(1)(g) (S. . . 2595 a) Excludes .3J) . . . . . 2601 b) Effect of absence of notice on validity of termination . 25F is limited only to notice or payment of wages in lieu of notice and does not render termination as retrenchment (Pat. 2602 Fd) Not applicable when notice indicating termination cites recession and not closure as reason (S. . . 2596 F 1. . . .DB) . . . . . 2597 2. Payment is not a condition precedent to closure u/s. . . . . . . . . . . Scope of the section . . . . . . . . 25F (Pat. . Absence of notice does not affect validity of termination (Raj. Compensation to workmen in case of closing down of undertaking – Sec. . . . . . . it is by way of equitable relief (S. . . . . . . Compensation on closure . . . . . . 2600 Fb) Retrospective application of the section by an amendment is not violative of Art. .DB). . . . . . . . . . . . . . . . . 2591 e) Closure leads to severance of employer employee relationship and employee cannot be treated as continued in service even if undertaking is restarted (All. . . . 25FFF and need not be paid with discharge notice (Pat. . . . . . . . . . .C.3J). .C. . 2591 a) To provide for involuntary unemployment. . . . . . . . Compensation does not fall within the definition of wages u/Payment of Wages Act & authority there under cannot adjudicate claims (MP. . . . . 2603 IV. . . . . . . 2597 5. . . . . . . . . . . 2597 Fa) Paying compensation and notice are not pre-conditions for the section since Sec. . . . . . . . . . . . 2601 1. . . . . . . . . . . . . . 19(1)(g) (S. . . . Applicability . . . . . . . . . . . . . . . . . . . .FB) . . . . . . . . 2599 I. 2590 e) Employer liable to pay interest on the closer compensation due to workmen (Cal. . . . . . . . .DB) . . 2599 d) Closure may be of part of undertaking and not whole business (Raj. When Chapter V-A is applicable to the workman he is entitled to one month’s notice & not 3 months’ notice on closure (P&H. . . . 2595 III. . 2591 J. . 2602 3.HC). . . . Notice of closure (Sec. . . . . .C. . . . . . Compensation to accompany order of discharge of workman (P&H. . . . . 2601 1. . . . . . . . . . .HC). . . 20(1) since non-payment of compensation does not amount to an offence (S. . . 2601 1. . . . . . .DB) . . . . .2J) . . . . . . . . . . . . . Object of the Section . . . . . . . . . . . . . . .HC) . . . 2601 c) When notice is required . Scheme of leasing (Mad. . 2595 a) Applicable to cases where there is closure of independent undertaking (Del. . . . . .CB) . .HC) . . . . 2597 g) Applicable to an independent project which is completed since it amounts to bonafide closure (Raj. . . . . . . . . . 25FFF does not become inaccurate merely because it refers to entitlement of compensation u/s. . . . . . . . . . . . . . . . . . . 25FFF . . . . . . . . 2592 V.CB) . . . .CB) . . . . .DB) . . . . . . . . 25F and 25FFF are not pari materia (S. . . . . . . . . . 2601 Fd) Liability under the section is not violative of Art. . . . 19(1)(g) (S. . . . 2602 e) Not applicable to an undertaking where there are only 14 workmen (All. . 2604 . 2600 Fa) Winding up the company and transferring machinery are not determinative of closure (S. . . . . . 2602 VII. . . . . . . . 2603 F 4. . . . .DB). . . . . . . . . . . .CB) .CB) . . . .CB) .CB) . . .DB) . . . . . . . . . . . . . . . . . . . . . . . . . 2591 II. . . 2595 b) Applicable to termination of temporarily appointed workman appointed for definite period (MP. .C. . . .C. . . . . . . . . . . . . . . . .DB). . . .C.DB). 2596 a) Attributes of closure compensation .C. . . . .DB) . . . . . . . .2J) . 2606 F 1.DB) . . . . . . . . . .DB) . . . . . . . . . . . . . . . . Closure compensation when not payable . .Synopsis 2279 F 6. . . . . . . . . . . . . . . Whether any other compensation can be set off against closer compensation . . . . . 2614 a) When workmen were retrenched before Sec. . . 25F (Ker. . . . . . . . 2607 e) Period of closure is to be included in length of service for calculation of closure compensation (Guj. . . 2610 a) Employer can set off any compensation paid to workman against closure compensation (Ker. . Compensation but not reinstatement is the relief to workmen in case of genuine closure (S. . . . . .2J) . . . . . . . . . . . . . . . . when fresh employment is not at the instance of undertaking closing down (Guj. . . . . . . . . . . . . . . . 2613 Fl) Payable when project work comes to an end (S. . . . . .C.C. . . . 25J (S. . . . 2604 Fi) When termination is due to closure of department but not amounting to retrenchment (S. . . . 25FFF came into force (Pat. . . . . . . . . . . . 2609 a) Closer compensation not to be refunded. . . .C. . . 2615 Ff) When claimant is a badli workman (S. . . . .CB) . . .2J) . . . . . . . . . If closure is not due to fraud but for circumstances beyond control of employer. 2610 .C. . 2608 1. . . . . . . . . . . . . . .HC) . . . . . . . . . . . .DB) . . . . . . . . . . . . . 2607 IX. . . . . . . . . . . 2609 XIII. . .HC) . . 2613 Fc) Length of service to be the basis for compensation to compensate the workman who is to be content with jobs at lower level after termination (S. . . . .C. .C. . .2J) . . . . . . . .HC). . . .2J) . . . . 25F adopted as a yardstick to compute closure compensation (S. . 25FFF becoming enforceable (Punj. 2615 XII. . 2608 F 1. . . . . . .C. . .C. . . . . . . . 2615 a) Is on the workman . 2614 c) When closure is genuine and not malafide (Raj. 2606 1. . . . . . . . . . . 25FFF and not u/s. 2614 XI. 2606 Fj) If closure is due to financial difficulties which is not beyond employer’s control (S. . . compensation u/s. . . . . . . .DB) . . . . . . .CB) .2J) . When workmen offered though refused to accept it (S. . 2616 Fd) When there is mere gherao but no threatening speech or physical injury as proof of circumstances beyond control to carry business (S. . . 2605 9. . 2606 n) Effect of payment of closure compensation. 2615 e) Though Letter Press Section was closed since it is not an independent part of the establishment as workmen were interchangeable between Letter Press section and Offset Press unit (Del. 2608 X. . . . . . . . . . . .DB) . .C. . 2616 c) When services of an employee were terminated on dissolution of Khadi Board (Ori. . . . . . 2613 a) Definition of Continuous service u/s. . . . . . . . . . . . . . . . . . . . . Closure compensation when payable . . . . . . .C. . . . 2616 Ff) Payable under Proviso to Sec. . . . . . . . . . . .2J) . . . . . Computation of period of service for purpose of compensation .HC) . . . . 2617 Fg) When society goes into liquidation (S. . . . . 25B applicable in case of closure (Raj. . . . 2605 VIII. . 2613 o) Effect of non-payment of closure compensation . . . . . . .3J). 2610 XIV. . . . .DB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25FFF(1) Proviso. . 25FFF but not as per proviso where establishment is not closed for circumstances beyond the control of employer (Mad. . . .HC) . . . . . . . . . . .C. . . 2612 Fk) Payable even if single unit is closed since the word ‘undertaking’ covers even closure of a single unit (S. Closure compensation whether refundable . . . . . 2607 f) When an establishment was closed twice. . . . . .HC) .C. Employer-employee relationship comes to an end (Cal. . . . . .DB) . . . . . .3J) . . . . . . . . .C.DB) . 2608 b) Payable as per first part of Sec. 2608 d) When undertaking is leased out as a going concern and employer continued to have ownership (Mad.C.C. . 2614 Fd) Period of illegal strike to be excluded in computing 240 days (S. . . 2613 m) Closure compensation when deemed paid . . . . . . .C. . . . .DB) . . . . . . . the period of service rendered by an employee prior to first closure cannot be considered for computing continuous service for the purpose of compensation on second closure (Raj. . . . .DB) .C. . . . .2J) .3J) . . . . 2608 a) When date of discharge is after date of Sec. . . . .3J). . . Not being business expenditure cannot be deducted from profit of the relevant year (Mad. . . . . . . .3J) . . . . . 2616 Fe) If workman has worked for 240 days of service and after deducting illegal strike period (S. . . . . . . . . . . . . . . . . Burden of proof in respect of claim for closure compensation . . .2J) . . . Closure on account of “unavoidable circumstances beyond the control” Sec. . . 2612 F 8. . . . . . . . . . 25F will not make termination as retrenchment since procedure u/s. . To prove 240 days of service in a year immediately preceding closure (S. . . . . Closure compensation as per Sec. Closure does not become illegal by non-payment of compensation to four out of 59 workmen (Cal. . . 25FFF even if closed for unavoidable circumstances/reasons beyond employer’s control (S. . . .DB) . . . . 2604 Fh) Payable even in the absence of provision for closure compensation in the State Act by virtue of Sec. 2611 7.2J) . 2613 b) Continuous service is to be determined before workman can be held entitled to compensation (Mad. . 2614 Fb) On termination or retrenchment but not when employee is continued de facto in other section (S. . . . . . . . . . . . . . . . .3J) . . . . . . . . 2623 14. . . . 2631 . . Closure due to financial difficulties and mismanagement (S. . 2621 10. . . . . 2623 Fb) The issue whether complete lawlessness in industry is a “circumstance beyond the control” cannot be decided in writ (S. Division of workers into two camps indulging in mutual assault. . . . . . . . . 2622 13. . . . . . . . 2620 6. . . . . . . . . . . .3J) . 2618 f) ‘Unavoidable circumstances beyond the control’ includes . . . . . 2620 XV. . . .DB) . . . . . . .DB). 2628 Fd) Closure is valid though all branches are not closed down (S. . . . . 2630 h) Closure of the bank valid when it is due to compulsory liquidation (Cal. . .DB) .3J) . . . . . . Gherao and mere threatening speech without any evidence of physical injury (S. . . .e. . 2624 4. . . Non-availability of orders for supply of goods and non co-operation of workmen and high percentage of rejection (S. . . . Serious illness since it is not a reason connected with the running of the business (Bom. . . .Inability to produce standardized products with available machinery compelling closure (Mad. . .2J). . . . . . . Financial difficulties resulting in the company being taken over by corporation (S.CB) . . .C. . . Closure of bank due to winding up order of Court (Ker. . . . Refusal of a workman to work and preventing others from working (S. .HC) . . . . . . . . . . . . . . . . . . . . . . 2621 8. . .C. .C. 2617 d) Benefit of proviso cannot be availed unless evidence of circumstances beyond control placed before Labour Court (P&H. . . . .Government’s refusal to grant license to manufacture spirit and to supply raw material i. .Closure of sugar factory due to non-availability of sugarcane (Bom. 2619 F 1.C. . . . . . . . . . 2628 Fc) Closure is valid even if a single unit is closed since the word ‘undertaking’ covers even closure of a single unit (S. . . .HC) . Compulsive vacation of rented premises by company running bidi factory (IT) . . . . . . . . . . . . .2J) . . . total disappearance of orders and business and refusal by workmen to do work besides financial difficulties (Mys. . . . .C. . . .C. . .2J). . . Government’s refusal to grant license to manufacture spirit and supply raw material (Cal. . . 2617 F 2. . . . . . . . . . . . . . 2622 12. . . .CB) . . .DB). . . . Termination of agency as in the case of a petrol pump compelling retrenchment of a salesman (Mad. . . . .DB) . . . . . . . . . . . . . 2619 F 1. . 2625 7. . . business or hazards to staff or management etc. . . . . . . 2624 6. . . . . . . . . . . 2627 7. . . . . molasses etc. 2621 a) Rights of pledgee/pawnee of goods of sugar mill will prevail over rights of workmen u/s. . . . . . .HC) . . . . . . 2620 9. .HC) . . . . . . .C. . . Closure brought about by the pressure of workmen for leasing it out to another company due to financial losses and shortage of raw nuts (Ker. . delayed deliveries and defective workmanship contributing to the financial difficulties by causing decline in orders (Pat.2J) . . . . . .HC) . . . . . . . .C. . . . . . . . . Closure when valid . . .DB) . . . . .HC) . . . . . . . . . . . . . . . . . . . . . .C. . . . 2625 F 8. 2622 11. . . . . . . . . . . . . . . . . . . .C 2J) . .2J) . . . . .C. . . . Want of accommodation for running factory (Cal.DB) . . . . . Adverse trade conditions like restrictions imposed by importing countries (Ker. . . . . . . . .C. shall be the focal point of consideration by Courts (S.Statutory prohibition on Trust to carry on any business coupled with financial compulsion of substantial corpus of the Trust to clear liabilities (Mad. . .C. . . . . . . . . . . . . . . 2626 4. . . . . .2J) . . . . . . . . . . 2630 g) Closure of tool workshop is valid when closure of main section is bonafide (Mys. . 2629 Ff) Closure is valid even though the same activity is resumed after some time (S. .DB). . . . . . . . 33C since they rank as secured creditors in the absence of liquidation proceedings (S. . . . . . . . . . 2619 2. . . . . . . . . . . . . . . . . . . . . . . . . . . .Obstructive activities of workmen compelling closure (Cal. . (Cal. 2621 9. . . . . Closure due to increase in production costs. 2618 e) Burden of proof in respect of unavoidable circumstances beyond employer’s control . . . . . . . . . . . 2623 3. 2623 Fc) Tribunal to determine whether closure was due to unavoidable circumstances beyond employer’s control (S. . . . . . . . . throwing hand bombs and indulging in go-slow tactics (Cal. . .DB) . . . . . . . . .C. . .HC) . . . Is on the employer (S. 2629 Fe) Closure is valid even if products are outsourced after closure (S. . . . . . . . . . . . . . . . .3J) . . . . . workers’ indiscipline. . Stopping of credit by financing bank and accumulation of stocks (Mad. . . . . . 2626 5. . . . . . . . . . . . . . . Winding up order of the Court resulting in closure when it is due to non-repayment of debts (Bom. . . . . 2623 Fa) The factum of closure by whatever reasons – financial. . . . . . . . . . . . . . . . . . . . . 2626 XVI. . . . . . . . . . . . . .HC) . . . . . . . . . . . . .DB) . . .2J). 2624 F 5. . . .DB) . . . . .HC) . . 2618 F 1. . .C. . . . 2617 g) Unavoidable circumstances excludes . . . . . . .DB) . . . 2627 Fb) Closure is valid when effected due to gherao endangering the safety of the staff continued for several hours (S. . . . . Rights of workmen to dues over those of other creditors of the company – whether protected in the absence of liquidation proceedings . .3J) . . . . 2626 3.2280 Chapter VA – Lay-Off and Retrenchment a) To claim benefit of proviso employer to act with mere diligence but need not put extra effort or incur extraordinary expenses to prevent closure (Bom. . . . . . . . . . . . . 2640 c) Closure cannot be challenged. . . . . . . . . 2631 a) Retrenched workers though after a valid closure are entitled to be re-employed if the same employer restarts manufacturing activity even after a lapse of thirteen years (Bom. . increment and higher salary cannot be claimed (S. . . . . . . . . . . . 25G not applicable to termination due to closure since it is not retrenchment (Ker. . after accepting the dues and compensation since employer-employee relation comes to an end (Cal. . 2642 Fj) Re-employment of Government servants can be on same terms as per directions consequent up on termination (S. . . . . . 2636 c) When mechanical workshop is closed since not being a separate undertaking but being adjunct to main manufacturing activity (Guj. . . . . . . 2638 Fa) To safeguard the workmen against discrimination. . . . . . . . . .DB) . . . . . . . When closure is not genuine or not valid. Remedy for violation of the section – Jurisdiction of Courts . . . . . .HC) . . . 2645 Fb) Closure is not lock-out when board of directors ratified notice of closure and employees discharged in large numbers retaining a few permanent employees and no orders executed in the matter of sales (S. . . . 25FFF entitled to re-employment (All. . . . . . . . . . . . . . . . . . 2634 XVII. .3J). . . 2639 b) Workman receiving closure compensation in full and final settlement of claims deemed to have waived his right to remedy (Mad.DB) . . . . . 25H . . . . . . .3J) . . . .C. . victimisation and unfair labour practice (S. . . . . 2640 d) Discharged workmen can apply to Labour Court u/s.HC) . .C. . . . . . . Object and Scope . .DB) . . . . . . . . . . . . . . .2J) . . . .HC) . Procedure for Retrenchment – Sec. . . . 2637 XXI. 2632 l) Closure valid though machinery is leased out to sister concern which is a separate unit (Mad. .HC) . . . . . . .3J) . . . . .C.HC) . . . . . . . . . . . . 2634 b) Leasing of undertaking as going concern and employer continued to have ownership (Mad. . . . . . . 2637 m) Principle of last come first go of Sec. . . . . . . . .DB) . . . . . 2642 Fi) On fresh employment subsequent to closure. . . . . . . 25G . .2J) . . . . 2634 a) Taking over of a power company by MPEB on expiry of it’s licence (MP. when relief is available under Chapter V-A (Bom. . . . 2636 Fa) Workmen continue to be workmen as before (S. . . . . . . . . . . . . . . . . . . .HC) . . . . .2J) . . . . . . . . . . . . . 21 (Cal. . . . . . . . . . . . . . . . . . .C. . 2632 Fm) Closure of maternity hospital run by Red Cross society valid despite running other centres like Family Planning and Vikalang Centre when there is no functional integrality among them (S. . . . . . 2635 c) Closure which is subjected to conditions stipulated in a scheme that are discriminatory and arbitrary (Guj.DB). . 2641 f) Tribunal to determine the status of employees as workmen and their entitlement to compensation while adjudicating on justifiability of closure (Cal. . . .C. . . . . . . . . 33C(2) for compensation without raising dispute (Pat. . . . . . . . . . . . . . . . . . . . . . . . 2639 k) When employer was unable to produce goods that can be marketed (Mad. . .DB) . . . . . . . . . .C. . 2644 f) When closure is subjected to conditions stipulated in a scheme that are discriminatory and arbitrary (Guj. . . . . . . . . . . . .DB) . . . . . 2639 j) Closure is valid when due to unavoidable circumstances of stoppage of raw material supply (Mad. . . . . . . . . . . .2J) . . . . . . . . . 2641 g) Writ of mandamus can lie against a private company when resorted to wholesale termination of work force in violation of Secs. . . . . .3J) . . . . . .C.2J) . . . . . . . .C. . . 2633 o) Closure valid inspite of non-compliance since it merely entitles workmen to notice and compensation (AP. . . . . . . . . . . . . .C. . . . . . . . . . . . . . . . 2636 b) When branch retail outlet which is functionally integral with head office and other branches is closed (Del. .Synopsis 2281 i) Closure is valid when due to inability to produce standardized products with available machinery (Mad. 2643 k) Employee terminated on closure in violation of Sec. 2632 Fn) Closure of unit of an establishment which is distinct from and does not enjoy functional integrality with other units is valid (S.HC) . . . 2645 Fa) Closure though effected in stages will not amount to lock-out (S. . .HC) . . . . . . . . . . 2633 Fp) Closure valid despite fraught with malafides since it does not render the closure unreal (S. . . . . .DB) . . . . . . . 25G is not applicable when closure of a unit was genuine having no functional integrality to other units (S. .3J). . . . . . .DB) . . . . . . . . . . . . . . . . . . . . . . 2631 XX. . . . 2637 Fn) Sec. . . . . . . . 2639 Fa) Tribunal can decide issue of closure compensation while adjudicating on closure (S. . . .C. . .DB) . . 2641 h) Civil Court is barred from adjudicating claim of workman removed on closure of factory. . . 25FFA and 25FFF (Guj. . . . . . . . . 2645 b) Sec. .DB) . . . . . Closure Lock-out distinction. 25G and 25F are regarding statutory rights & right to livelihood u/Art.3J) .HC) . . . . . . .DB). . . .C. . . . . 2643 e) When Letter Press Section is closed since it is not an independent part of establishment as workmen were interchangeable between Letter Press section and Offset Press Unit (Del. . 2638 I. .2J) . . . . . . Closure and it’s effect on workman’s right to re-employment u/s. . . . . . 2638 K. . 2635 XVIII. . . . . . 2637 Fl) No relief of regularization when compensation as per section is paid (S. . . . . . . . . 2641 e) Tribunal’s findings on the fact of closure not to be interfered with since it involves mixed questions of law and fact (Cal. . . . . . . . . . 2645 . . . .C. . .DB).HC) . 2644 XIX. . . . . . 2643 d) When closure is without any grounds being established for it (Ori. . . . . . . . . .HC). . . . . . . . . . . . . . . . . . Closure excludes . . . . . . .HC) . . Sec. . . .C. . . . . 25G is an independent provision and is applicable even where an employee did not complete 240 days of service or put in continuous service in terms of Sec. . . . . . . . .HC) . Principle of last come first go . . . . . . .HC) . . . . . 2647 d) Seniority of watchman promoted to the post of driver is to be computed from the date of confirmation in that post (Bom. . . . . . . . . . .DB) . .All units to be considered as one entity for the purpose of applicability of Sec. . . . . . . . . . . . . . .3J). . Act (S. . . . . . . . . . . . . . . . . . . . . .DB) . . Applicable while terminating employees even on closure of industry (Ker. 2657 1. . . . .HC) . . . . . 2653 II.DB). . . . 2656 Ff) When there is lack of efficiency on the part of employee and loss of confidence in him (S. . . 2654 5. . . 25B (Raj. . . . . . . . hence seniority of workmen employed in a particular branch but not at all branches to be considered (Mad. . 2653 F i) To prove that the deviation is based on sound and valid reasons (S. . . 2648 7. . . . . . . 2652 i) When workman whose appointment itself is void ab initio is terminated (Jhar. . . . . . . Sec. . . . . . . . . . . 25G & 25F form implied part of Contract of Service (Bom.Applicable to F. . . . . . . . . . . . . . . . 2646 Fa) Employer to maintain category wise seniority list when different categories of workmen were appointed (S.C. .2J) . . . . . . . . 2653 ii) To prove the existence of special circumstances (Raj. . . . . . . . . . . . . . 2655 d) When services of an employee well versed with the activities of a corporation and working knowledge is retained at the time of winding up of company (P&H. . . 2651 Fa) Not applicable in case of closure of establishment (S. . . . . . . . 2654 F 3.3J) . . . . Applicability to be examined with reference to each branch as a seperate entity but not with reference to the whole establishment as one entity when there does not exist functional integrality (S. . . . . . . . . 2655 8. . . . 25F (Bom. .DB) . . . . . . .CB) . . . .CB) . . . . . . . 2651 III. . Applicable when employees are retrenched (Del. . . . . 2647 e) Reason for departure of seniority principle must be shown on the face of order. . . . . . . . . Procedure for implementing ‘last come-first go’ principle . . 2650 11. . . 2652 h) When female workers in mines are terminated due to working conditions & statutory provisions (MP. . 2656 Fg) When special skills. . . . . . . . . Applicable only in the case of surplusage (AP. . . . . . . . . . . . . . 2646 a) When applicable . . . Applicable to daily wagers also (Pat. 2655 Fc) Reasons for deviation from the principle to be recoded (S. 2656 Fc) Not applicable to termination of temporary Government employee (S. . . . . . . . .DB) . . . . . . . . . 2654 4. . . .HC) . . . . . . .3J) . mere recording reason in the file of employer is not sufficient (Ker. . . . .C. . . . . .2J) . . . . . . . . . . . 25G is independent of Sec. . . . . . . . . . . . . . . . . .D. . . . . 2655 Fa) Expression ‘ordinarily’ in the Section allows deviation for justified reasons (S. . .DB) . . . .C. .C. 25G is applicable though the workman is not in a continuous service within the meaning of Sec. . . . . .HC). .2J) . . . . . . . .C. . 2656 . 25G not available in case of break-in-service (Ker. . 2646 c) Seniority list maintained by Divisional Executive Engineer to include service only at divisional level but not entire period of service is proper (P&H. . . . . . . . . . . . Applicable to workmen within the same category of the same establishment and not of different branches unless inter-transfer of workmen is permissible among them (S. .C.DB). . . . . .HC) .2J) . . . . . . .HC) . . . . . . . . 2649 10. . . . .C. . . 2653 d) Sec. . I. . . . . . . . . . . .DB). . . aptitude and specific experience justify deviation (S. . . . . . . . .HC) . . . . . . . . . . 2655 e) Deviation can be justified when employees belong to ‘any special category’ (Cal. . 2647 f) Each branch of the company/concern to be a separate establishment. . . . . . . . . . . . . Deviation of principle last-come first go – when can be . I. . . . . . 2654 V. . . . . . . . . .HC).C.CB) . . . .DB) . 2652 j) Burden of proof in case of deviation . . . .DB) . . . . . . 2654 F 6. . . . . . . . . . . . .2282 Chapter VA – Lay-Off and Retrenchment c) Sec. Is on employer .I godown since industry (Cal. . . . . . . . 2646 IV. .HC) . . . . . . 2656 e) Not applicable when retrenched employee is the only employee of the department (Bom. 6P of U. . .DB) . 2648 g) Combined seniority of two units owned by the same employer to be considered if transfer of employees from one unit is permitted to another unit (Bom.P. . . 2651 b) Principle not absolute and can be deviated on valid grounds (Guj. . . . 2649 F 9. .C. . . 2656 b) Protection of seniority u/s. . . . . . . . . . . . .HC) . . Applicable not only to permanent employees but also to temporary reserve conductors (Ker. . 2646 b) Seniority List to be common for workers of both the yards when they have same pay scales and their services were transferable between the two (Pat. . . . .HC). . 25G when functional integrality exists among them (AP. . . . . . . . . . . . . . . . . .D. . . . . . . . . . . .HC) . . . . . . . 2653 2.2J) . . . 2656 f) Not applicable to termination on loss of confidence (AP.C. . . . . .DB). . . . . . . 6N of U. . . . . .C. 2656 d) To an apprentice appointed under Apprenticeship Act even though his apprenticeship training is extended as per the terms of agreement (Raj. . . 2646 1. . Principle last come first go – when not applicable . . . . . . . . . . .P. . . Act which is pari materia to Sec. . . . . . . . . Synopsis 2283 iii) To prove lack of efficiency and trustworthy character of the employee (Mad. . . . . . . . . . . 2661 1. . . . . 2668 Fb) When reasons for deviation from the principle are recorded (S. . . . . . . . 2663 ii) If workman is terminated in violation of seniority norm even if he did not complete 240 days (Raj.HC) . . . . . . . Government servants employed temporarily in construction division (Ori. . . . . . . . . . 2662 3. 2659 c) When deviation cannot be justified in the absence of evidence as to ‘any special category’ within the category of employees to justify retention of juniors (Cal. . .C. . .C. . . . .3J) . . .HC) . . Effect of violation. . . . . . 2661 a) Renders bad termination of services of temporary railway employee (Del. . . . Deviation that junior was retained is to be pleaded in the written statement (S. . . . . .DB) . 2667 q) When establishment was closed some juniors were retained as caretaker staff since they have knowledge of different activities (P&H. . . . . . . . . . . . . . . .2J) .HC). . . . 2663 Ff) When the termination of workmen of a department was due to closure for economic reasons and it’s work distributed among other employees (S. . . . . . . . . . . . . . . . . .2J) . . . . . .HC) . . . . . . .C. . 2663 Fg) When there is lack of efficiency on the part of employee and loss of confidence in him (S.DB) . . . . . . . . . . . . . . . . . . . . . . When can be granted . . . . . . . . . 2662 1. . Reliefs for violation . . 2658 i) When female workers in mines terminated due to adverse working conditions and statutory provisions (MP. . . . . Employee who worked with intermittent breaks cannot when similarly situated other employees were also terminated (Raj. . . . 2668 d) When list is prepared category-wise and not for whole project (All. 2661 2. . 2660 Fg) When junior most employee spared on the ground of being in a different grade when the employees placed in different grades only on the basis of pay scales do the same work (S. . . . 2668 c) When retrenched employee is the only employee of the Department (Bom. . . .C. . . . . Last come first go (Sec. 2666 l) When termination is on the expiry of the period of contract (All. . 2662 a) When there is no proof that juniors were continued in service (Ori. . 2669 iv) Reinstatement can be of temporary conductor terminated in breach of rule (P&H. . . . 25G) when violated . . . . . . . .DB) . . . . . . . . 2668 b) Relief of reinstatement . . . . .C. . . . . . . . . . . . 2666 m) When employee terminated due to bad performance (Raj. . 25H and 25G (Raj. . . . . . . . . . . .HC) . . . . . . . . . . . . . . . . . . . .HC) . . . . . . 2658 b) When casual workers completing 240 days service with artificial breaks terminated in violation of principle of ‘last come first go’ (Raj.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2667 X. . . . . . . . . . . . . . . 2667 IX. . . . . . . . . . . . . . . . . . . 2658 Fh) When special skills aptitude and specific experience justify deviation (S. . . . . 2666 n) When seniority list is prepared as per grades and not as per category but in accordance with the settlement with the union and accepted by the employees (Bom. . . . . . . . . . . . . . . . . . . . . . . 2668 e) When Seniority list of only the division closed is considered since it is separate from other division having no functional integrality (AP. .DB) . . . .3J) . . . . . . . . . . . . . . . . .C. . . . . 2660 VII. . 2667 p) When the departure is made for the sake of efficiency and trustworthy character of the employee (Mad. . . 2664 F 2. . . . . . . . . . . .DB) . . . . . . . .HC) . .2J) . .DB) . . . Last come first go (Sec. . . . . . 2660 a) Who cannot claim . . . . . . . .DB) . . . . . . . .DB) . . . . . . . . . . . . 2667 b) Retrenchment can be held as invalid (Bom. . . . . . . . . . . . . .DB) . . . . . . . 2663 F i) Reinstatement of workman with 240 days service is justified when principle is violated (S.HC) . . . 2664 F iii) Reinstatement can be of retrenched casual labour when the scheme of railways permits absorption (S.HC). 2666 o) If terminated on the basis of seniority list published if it’s correctness was not disputed by union (Cal. . . . . . . . . . . . . . . . . . .DB) . . . . . . . . . . . . . .DB) . . . . . . . 2665 k) If employee terminated was selected not through regular selection process and the junior employee retained was appointed through selection process (Raj. 25G) when not violated . .DB) . . . . . .HC) . . . . . . 2669 v) Reinstatement with 50% back wages proper even if workmen who refused to accept new posting on transfer were terminated in violation of the Section (Guj. . . . . . . 2670 . . . . . . . . . . . . . .2J) . . . . . . . . . 2658 Fa) When juniors retained as against seniors (S. .HC). . . . . . . . . . . . . .2J) . .HC) . . . . . 2659 d) When casual labour employed in normal course were retrenched and those employed out of turn were retained without valid reasons (Ker. . .C. . . . . . . 2660 j) When workman terminated was due to his appointment being void ab initio though other illegal appointees retained (Jhar. .2J) . . Employee who had failed to prove violation of Sec. . . . . . . . 2667 a) Lies on the workman (Del. 2667 VIII. Burden of proof in case of allegation of violation . . . . . .3J) .HC) . . . . . .C. 2665 VI. . .DB) . . . .HC). . . . . . 2660 f) When workman in a hospital run by Municipal Corporation terminated without considering seniority of workmen of all hospitals run by it (Del. 2660 e) If one employee retrenched and other retained when both were doing clerical job and not having technical skill (Cal.DB) . . . . . . . 2678 a) Sec. . . . . . .2J) . . . . . . . Jurisdiction and procedural issues connected with the disputes under the Section .2J) . . 2676 a) When workmen terminated in violation of the seniority principle (Ker. . . . . . . . . . . 25H has only prospective in effect and not applicable to retrenchment effected prior to introduction of the section (Cal.HC) . .HC) .DB) . can be determined by appellate authority u/A. . . . . .DB) . 2680 a) Tribunal to arrive at conclusion on compliance after examining lists and verifying documentary evidence (Pat. . . . . . When workman failed to prove that juniors are retained (Del.C. . . . 2676 Fb) Benefit granted by the section is prospective and not retrospective (S. . . . . . . 25F (S. . .DB) . . . . . . . . . . . . 2685 Fc) Section prevails over Nationalization Act (S. . . 25F (S.2J) . . .2J) . . .C. .HC) . . . . . . . . . . . . . . 2676 Fb) When new employment was made subsequent to retrenchment (S. . .2284 Chapter VA – Lay-Off and Retrenchment 2. . . . . . . . . . . . .3J) . . .C.3J) . .C. . .C. 25H . . . . . . . . . .CB) . . . . . .DB) . . . . . . .C. . . Re-employment of retrenched workmen – Sec. . . . . . 2677 Fd) When vacancy arises in other projects for the retrenched project employee and the same is not offered to him (S. . . . . . . . . . . . . . . 2684 I. .2J) . . . . . . 2675 a) Burden of proof to justify deviation of principle of ‘Last come first go’ is on the employer . .C. .C. . . . . . . . . . . . . . Re-employment means .HC) . . . 2683 a) Taking back a retrenched worker in same category to which he belonged before retrenchment (Pat. . 2670 F iii) When workman was appointed under a scheme and the scheme itself came to an end (S. . .C. . 2682 Fi) Not applicable in case of genuine transfer of establishment where workmen are paid compensation (S. . . . 2684 L. . . . Settled law on the issues under this section . . . .CB). . . 2683 IV. . . . . . . . . 2670 i) Reinstatement is not mandatory relief in case of breach of Sec. . 25H attracted. . . 25F & 25G as they are regarding statutory rights and right to livelihood involving factual investigation (Ori. . . . . 2672 Fb) Section applies to the transferee even if employee receives retrenchment compensation prior to transfer of undertaking (S. .C. . . . . . .HC) . . . 2680 Fb) Tribunal cannot decide violation if same is not disputed (S. . . 2672 Fd) Applicable to continuing industries (S. . . . 2672 c) Dispute as to whether retrenchment was as per Sec. . . . . . . . . . . . . Proper when establishment is not in existence (S.C. 2677 f) Sec. . . .CB) . . . . . . . . . . . . 2677 e) When workmen worked for 240 days terminated and vacancy is available (MP. .DB) . . . . . . . . . . . . . . . . 2674 Fe) Section is not restricted to retrenchment only under Sec. . . . . . . . 2683 III. . . . . . . . . . 2681 h) Not applicable unless the offer of reemployment is clear and unambiguous (Bom. . . . . . 2671 c) Relief of compensation in lieu of reinstatement.DB). . . . . . 25G when the reference does not contain the said question (S.C. . . . . Attributes of the section . . . .2J) . 2678 II. . . . . 2670 F ii) Mere violation of Sec.C. . 25H does not prescribe any time limit for employment (Ker. . . . .2J) . . .HC) . . . . 2685 d) Sec. . . . . 25G cannot be decided in proceedings u/s. . . . . . . . . . 33C (Mys. . . . . . . . . . . . . . . . . . 2684 c) If employer after termination retained similarly placed employees and appointed new candidates with similar qualifications (Raj. .3J) . . . . . . . . . . Applicability . . . . . . . . . 2682 j) Not applicable to an apprentice appointed under Apprenticeship Act even though his apprenticeship training is extended as per the terms of agreement (Raj. . When Sec.C. . . . . . . .HC) . . . . . . .2J). . . . 2671 e) Section does not bar claim by workmen for bonus declared by company after their retrenchment (Cal. . . 2683 XII. 2685 . . . .C. . .DB) . . . . . . 2674 Fg) Tribunal cannot set aside termination as violative of Sec. . . . . . . . 2680 f) Applicable to retrenched temporary workmen (P&H. . . . . . . . . . When cannot be granted . . . . . .3J) . . . . . . . . . . . 2672 Fc) Applicable to retrenched employee having 240 days of continuous service (S. . 2678 2. . . . . . . . . . . . 2678 g) Retrenched employees to be preferred over others in re-employment but not entitled to reinstatement with back-wages (P&H. . .C. . . . 25F & 25G. . . . . . .DB) . . . . 2676 Fa) Re-employment is the generally recognized principle of the Courts even prior to introduction of chapter V-A (S. . . 25G and H of the Act does not warrant reinstatement in public employment when job was not of perennial in nature (S. . . . . . . . . . . . . 2673 Ff) Labour Court can draw adverse inference when management failed to produce documentary evidence or cross examine workmen (S. . . . . . .C.DB) . . 2675 Fb) Does not mean resumption of work by workmen after discharge during lock-out (S. . . . . . . . . . 2673 d) Retrenchment whether as per Sec. . . . . . . . .P Shops Act (AP. . . . . . . . . . . . . . . . . . . . . . 2679 XI. . . . . . . . . . . .C. . . . . . . . . . . . . . . . . . . . . . .DB). . . .2J) .2J) . . 2673 e) Writ Court cannot decline to interfere with disputes as to violation of Sec. . . 25H contains no provision stipulating that re-employment should be on the former terms and conditions (Bom. 2671 F 1. . .2J) . . 2681 Fg) Not attracted in case of termination on account of closure since the compensation paid is not one u/s. . .HC). 25F & 25G when employee does not have prescribed qualification (Bom. . . . . . . . . . . . . .DB) . . . . . .HC) . . . . . . . . . . . . . . . . . . . . . 2691 VIII. . . . . . .C. . . . .DB) .DB) . . . . . . . . . . 2695 d) When workmen give up their right to re-employment on revival of the undertaking by virtue of a settlement u/s.HC) . . . . . . . 2686 i) When workman is terminated for unsuitability for employment (Karn.C.DB). . .HC) . . . . . . . . 2690 c) Back wages not admissible on re-employment (Jhar. . . .DB) . . .DB) . 2691 h) If employee appointed on fixed tenure was terminated on expiry of term (Raj. . . . 25F before transfer of management but not u/s. . . . . . . . . . . When not attracted/not violated . . .DB) . . . . .C. .HC) . . 2688 V. . . .C. . . 2692 l) When intimation to ex-employees is given in newspapers when it is not practical to intimate each worker through registered post (P&H. . . . 2692 Fb) Casual employees who were terminated to be given preference (S. . . . . . 25H does not prescribe any order in which the workmen are to be re-employed and employer not bound to offer re-employment on the basis of length of the service or seniority of retrenched workmen (IC). . . . . . . . . 2686 Fj) Re-employment cannot be claimed against successor-in-interest when workman ceased to be in employment prior to the date of acquisition (S. . 2692 h) When employer failed to prove that workman’s tenure is fixed and new appointments were made subsequent to his termination (MP. . . . . . . . . . . . . . . . . 2687 n) When fresh advertisement was issued to recruit fresh hands while temporary workman was discharged from duty in vioation of section (Guj. . . .2J) . . . . . . . . . 2687 p) When retrenched workers though after a valid closure were not re-employed by the same employer when he restarted manufacturing activity even after a lapse of thirteen years (Bom. 2694 h) Sec. . . . . . . . . . . . .DB) . 2688 q) Even though the workman who did not serve for one year since it covers all cases of retrenchment (Del. . . . . . . . . . . . 2693 Ff) Re-employment cannot be granted by Labour Court where the reference is about determination of violation of the section (S. . . . . . . . .DB) . 25F (Del.2J) . . . . . . . . . . . . . . . . . . . 2689 b) When new persons were appointed as per rules but not to posts identical to that of daily wagers who were retrenched (Raj. . . . . . . . . . . . . . . . .HC) . . . . . . . . . . . . . 2689 k) When consequent upon closure employer-employee relationship is severed (Del. 2686 i) When liquidation of the establishment leading to termination of employees set aside (Raj. . . . . . . . . . . . . . . 2695 b) Retrenched workers are entitled to emoluments prevailing at the time of retrenchment (AP. . . . . . . . . . . . . . . . . . 2696 f) When workmen who had not completed 240 days of service failed to prove violation of Sec. . . .DB) . . . . . . . . .C. . . . . . .HC) . . . .DB) . . .Synopsis 2285 f) Even though the termination of the workmen does not fall under Sec. . . . . .DB) . . . . . . . . . . . . . 25FF (S. . . . . .C. . .HC). . . . .C. . . . . . . .DB) . 2693 Fe) Re-employment to be as per the category of work performed by the employee but not as per the designation born by him (S. Procedure for re-employment . . 18 (Karn. . . . . . . . . . . . . .HC) . . . . . . . . 2687 m) When an employee terminated and others were appointed on the same post subsequently (P&H. . . 2693 Fd) Right of re-employment accrues to workmen when terminated u/s. . . . . . . . .CB) . . . . . . . . . . . . . . . . . . Remedy for violation of the section . . . . . . . . . . . . . . . . . . . .C. 2686 k) Part-time sweeper who worked for ten years shall have preference in regular vacancy to the outsiders (AP. 2692 g) Even though no pleading as to violation of 25H is made. . . . . . . . 2695 e) When employees retrenched consequent upon closure (Ori. .2J) . . . 2689 Fa) When compensation is paid consequent up on transfer (S. . . . 2694 VII. . . . . . . .3J) . . . . . 2690 d) Back wages not admissible when workers refrained from joining work of their own accord due to lower wages (AP. . . . . . . . 2687 o) When retrenched workers are not intimated of vacancy and juniors are employed instead (Guj. . . . . . . . . . . . . . . . 2686 j) Re-employment for want of required qualification cannot be denied when the new post does not require any technical qualification considering his length of service (AP. . . . . . .DB) . . . . . . . 2695 Fa) Higher salary of past employment is not admissible when re-employment is on fresh conditions (S. . . . . . . . . . . . . . . . . . .DB) . . . . . . 2687 l) If Termination is due to closure consequent to financial difficulties but not due to unavoidable circumstances (Bom. . . . . . . 2692 a) Offer of re-employment to be clear and unambiguous (Bom. . . .HC) . . . (Guj. . . . . . . . . . . . . . .HC) .2J) . . . . . . . . Admissibility of Benefits on re-employment . . . . . . . . . . 2691 Fa) Workman aggrieved can raise an industrial dispute (S. . 2689 c) When workmen unable to prove that management re-employed others in their category (Jhar. .2J) . . . . .HC) . . . . . . . 2692 VI. .DB) . 2693 g) Workman need not fulfill age criterion on re-employment if he was within the prescribed age limit at initial recruitment (AP. . . . . . . . . . . .DB) . 2693 c) Workmen on labour register to be preferred to outsiders for engaging them as casual labour (Ori. . . . . 25H and 25G (Raj. . . . . . . . . . 2696 g) When workman terminated due to non-renewal of contract of service (Mad. . . . . . .DB) .3J) . . . . . . . 2697 . . . . . . . . . . 2696 b) High Court can direct reference of the dispute if conciliation report fails to mention violation of the section (Pat. C. . . . .2J). . . . . . . . . 2698 b) Civil Court has no jurisdiction to give relief to illegally removed workman. . . . . .C. . 2701 Fa) Chapter VA applies to cases of retrenchment under A.DB) . . . . . . . . . . . . Effect of laws inconsistent with this chapter – Sec. . . . . . . . 2699 a) Provisions of the chapter prevail over rules made under Article 309 (MP. . . . . . . . . .HC) . Consequence of Sec. 2701 Fb) Section renders Chapter VA applicable to retrenchment and lay-off benefits to temporary employees (S. . . . . 2700 Fd) Sec. . . . . 2705 d) Provisions of Chapter VA prevail over Sec. .HC) . . . .2286 Chapter VA – Lay-Off and Retrenchment c) Reference cannot be rejected when there is clear finding of conciliation officer that section was violated (Pat.DB) .C. . . . . . . 2699 I. .P. . . . . . 2704 Ff) Does not entitle workman appointed under a scheme to reinstatement when scheme itself came to an end (S. 2706 V. . . . . . . . .2J) . .C. . . . . 25F and 25H violated (AP. .C. . . . . . . . . . . 2699 Fc) Standing Orders providing for lesser lay-off compensation will not prevail over the Central Act (S. . . . . . 2698 b) Lay-off compensation u/s.DB) . . . . . . . . 1994 though the latter bars regularization (AP. . . . . . 25F has overriding effect over REC (Railway Establishment Code) provisions on retrenchment of railway workman (All. . . . .DB) . . . . . . . .HC) . . . . 2706 c) Government instructions contrary to the provisions of Chapter V-A cannot sustain (P&H. . .DB) . .P. . . . 25J . . . . Recovery of Moneys due from employers under this Chapter Sec. . 2702 c) Section extends the benefits of retrenchment and lay-off to establishments covered by Bombay Industrial Relations Act (Bom. .CB) . . 2703 e) Workmen entitled to reinstatement since termination of workmen’s services become illegal if Sec. . . . . . . . . . .2J) . . . . . 2703 d) Writ will not lie when employees did not respond to employer’s advertisement and delayed in applying for writ (Pat. Proviso to sub-Section (1) of Sec. . . 2698 IV. . . . . .2J) . . . .2J) . . 2706 b) Wages under Minimum Wages Act to be granted but not those fixed under an award since the wages under the latter are lower (Cal. . 2707 VI. . . 25J does not grant compensation in addition to gratuity in the nature of retrenchment compensation payable under a scheme (S. . . . . . . . . . . . . . . . . . . 2700 Fe) Non-obstante clause is not applicable to the whole of Chapter VB (S. . . . . . . 2705 e) Sec. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3J) . . . . 2701 II.CB) . . 25J . . . Expressions and meanings. . . . . . . . . . . . 2(s) of U. . . .2J) . . . 25J. . . . . . . Industrial Disputes Act (S. 2698 Fa) Expression ‘Any other law’ in the section does not include any other provisions of the Industrial Disputes Act (S. Scope and ambit of the section . . . . . 7 of Andhra Pradesh Act. . . . 2708 . . . . . . . . . . . . .C. . . . . . . . . .DB). . . . . . . . . . . 2706 f) Benefits of Sec. . . . . . . . .DB) . . 2704 IX. Shops and Establishment Act (S. .C. 2702 Fa) Benefits favourable under the Standing Orders will prevail over the Central and State Acts (S. . . . . . . . . . Issues pertaining to jurisdiction and proceedings under the Section . . . . . . 2708 a) Agreement between employer and employees not to be dehors the provisions of Chapter VA (Mad. . . .DB) . . . . 25-I .C. . . . . . . . . . . . 2697 Fd) Does not apply if termination is due to retirement as per Standing Orders (S. . . . .CB) . . .DB) . . . . . . . . . 1994 in the matter of regularization hence daily wage workman who is protected under Chapter VA cannot be terminated under A. . . . . 2702 III. . . . . Rights and liabilities of employers and workmen relating to lay-off and retrenchment compensation to be as per Chapter VA. . . . . . . which is available under Chapter VA (Bom. . . .C. . . 25C to be given but not as per Standing Orders since the Central Act prevails over Standing Orders (All. . 2699 Fb) Central Act overrides Sec. . . . . . 2704 a) Proceedings regarding validity of retrenchment would not operate as res judicata in the complaint of unfair labour practice (Bom. . . . .P. . . . . 25G and 25H available to employees of shops and establishments even after commencement of Punjab Shops & Commercial Establishments Act (P&H. . . 25F.C. . 2699 M. . . . . . . . . . . . . Applicability . . . .HC) . . . . . . .C. . . . . . 2699 N. .3J) . . . . . . . . . . . . Act. . . . 2698 Fa) Lay-off and retrenchment compensation payable u/Central Act when the State Act does not make provision for lay-off and retrenchment compensation (S. . . . . . . . . . . . . . . .DB) . . State Industrial Court.DB) “It is clear………. Hence their appointments cannot be . DB) ¥ 5A. Firestone Tyre and Rubber Co.A of the Industrial Disputes Act their rights cannot defeat the rights of Public Service Commission recruits as this will be violative of Art.the rights and liabilities………. The Firestone Tyre and Rubber Co.Chapter VA does not confer beneficial rights on employers but imposes obligations on them in respect of lay-off and retrenchment in the interests of labour (Bom.” (Page: 452. Ltd. & Anr. Nagpur v. Weaving & Manufacturing Co. M. of India (P) Ltd.” (Page: 454.2 Since the whole industrial law is enacted in the interest of labour. 1976 I LLJ 493 : 1976 (49) FJR 177 : 1976 (32) FLR 170 : 1976 II LLN 176 : 1976 LIC 1154 : 1976 SCC (L&S) 504 : 1976 AIR (SC) 1775 : 1976 (3) SCC 819 (S. Compliance with provisions of Chapter-VA not a condition precedent to lay-off (Bom.employees. Nagpur. 1956 I LLJ 547 : 1955-56 (9) FJR 449 (Bom. AND Thiru J.. as the suspension of contract comes to an end or to dismiss him by paying him retrenchment compensation except in the case of misconduct. Ltd. Para: 4) IV. 320. Chapter VA not a complete code in itself on lay off compensation hence compensation is payable even in establishments to which neither Chapter VA nor Standing Orders are applicable (S.” (Page: 453. Para: 3) “Therefore………. 25C III. George & Anr. it is erroneous to view Chapter V-A as conferring rights on the employers in respect of lay-off and retrenchment and on the other hand. 25C II.lay-off it self.what………. v.DB) ¥ 5A. Fernandes & Anr. 1959 I LLJ 468 (Bom. Rights of temporary employees under Chapter V-A cannot prevail over the rights of Public Service Commission recruits as it violates Art.2J) The Workmen of M/s. N. Veiyra v. (Empress Mills). of India Pvt. prescribed by the act and reinstate him as and when the crisis is over or pay him full wages. Para: 2) “Then section 25-J(2) provides “……….3 Though the employees appointed under Rule 9 of the Kerala State and Subordinate Service Rules on a temporary basis are entitled to the protection of Chapter V.this chapter. Management of M/s.” (Page: 451.16 and 320 (Ker.P. C.the expression……….obligation……….1 Compliance with provisions of Chapter-VA not condition precedent-non-payment of lay-off compensation does not amount to change u/s41 of Berar Act Central India Spinning. v.DB) ¥ 5A.Temporary employees rights not to prevail over public service commission recruits 2287 A. 16 and Art...C.DB) Note: Please see related ratio/s under the above citation in Sec. Scope Object and Applicability I. Para: 1) “………. it imposes an obligation on the employer to continue the services of the employee during lay off without paying full wages except the compensation.A.resumed……….2J) Note: Please see related ratio/s under the above citation in Sec. Firestone Tyre and Rubber Co.C. without holding any enquiry and their names were removed from the Badli list. Dudhan Sadan. Chapter V-A would be applicable as Sec. 1994 in the matter of regularization hence daily wage workman who is protected u/Chapter VA cannot be terminated u/ A. v. Union of India & Ors.” (Page: 312. Para: 9) Note: Also refer to sections .M. Silar Bee.P. 25-C provides that badli workmen are covered under the said Chapter V-A. Sukhwinder Singh & Anr. 2007 (112) FLR 1135 (P&H. Managing Director.” (Page: 313. 1996 LIC 1776 (AP. Para: 8) “Therefore……….C.2288 Chapter VA – Lay-Off and Retrenchment perpetuated since this would nullify the Constitutional protection with regard to public service appointment. Para: 6) “The problem………. Patiala v. The High Court held that badli conductors are workman u/s.in limine. The calculation of 240 days be done by including the days of rest and compensatory holidays as they could have availed under the settlement. 25J (S.Act.. Primary Health Centre. 1979 II LLJ 371 : 1980 I LLN 44 : 1979 LIC 1362 : 1980 SCC (L&S) 36 : 1980 AIR (SC) 115 : 1979 (4) SCC 440 (S.. Mukunda v.S.R. 25J VI.3J) Note: Please see related ratio/s under the above citation in Sec.DB) Maize Beedar Agriculture Research Station Hyderabad & Anr. 2(s) and if retrenchment is effected in violation of provisions of Sec.” (Page: 312. Act 1994 though the latter bars regularization (AP. 1986 I LLJ 470 (Karn.C. Viswambharan & Ors. The petition of the workmen referred by the single judge being without merits is dismissed by the division bench.DB) “The State………. 1983 II LLJ 309 : 1983 II LLN 428 : 1983 LIC 369 (Ker. 25 B(2)(a)(ii).. Smt. v. Incharge. The regulations relating to service conditions will have to make way for the provisions of Chapter V-A in view of the provisions of Sec.HC) VII. State of Kerala & Ors. 25J.3J) Jaswant Singh & Ors.DB) Note: Please see related ratio/s under the above citation in Sec.DB) . Para: 7) “To perpetuate………. Provisions of chapter VA prevail over Sec.the applicants. 25J VIII. 25F.4 The services of conductors working as badlis under corporation were terminated on grounds of unsatisfactory work and unsuitability.T. Chapter VA confers retrenchment and lay–off benefits to temporary employees by virtue of Sec. Government instructions contrary to the provisions of Chapter V-A cannot sustain (P&H.25A to 25E for more elaborate under standing of the scope of the Chapter VA V.” (Page: 313. O.DB) Senior Medical Officer. K. 7 of Andhra Pradesh Act.HC) ¥ 5A.eligibility. Chapter V-A will prevail over service regulations entitling a budli worker to retrenchment compensation terminated for unsatisfactory work without enquiry (Karn. v. The workmen are thus entitled to retrenchment compensation if they satisfy requirement of Sec.C.. the applicants.”(Page: 266. Madras (by Superintendent) v.C.. v. the workers are entitled to favourable benefits in addition to lay-off compensation as per Sec. 1986 I LLJ 470 (Karn...P. 1988 (57) FLR 703 (All.under the Standing Order. 33C(2).” (Page: 313. 1983 II LLJ 309 : 1983 II LLN 428 : 1983 LIC 369 (Ker. Shops and Establishment Act (S.C.C. nor reasons for lay off are covered under Standing orders.A of the Industrial Disputes Act O. Para: 5) “When the matter………. State of U. Narayanaswamy learned……….V.S.HC) Mukunda v.DB) “Mr. Managing Director. Para: 7) “To perpetuate………Act.R.DB) ¥ 5A. v. Viswambharan & Ors. Para: 8) “Therefore………in limine. G. Para: 9) XIII. Chapter VA applies to cases of retrenchment under A. N.HC) XI. State of Kerala & Ors. Para: 6) “The problem……….2J) Note: Please see related ratio/s under the above citation in Sec. Thus. Chapter V-A applicable to badli workmen since covered under Sec. Gowri & Ors. M.M. Vijayawada. Tansi Leather Works.DB) “The State………. 25J IX.5 A dispute regarding lay-off though initiated under a State law and pending before a forum constituted under the Sate law shall be adjudicated in accordance with the provisions of Chapter V-A. 25A is not attracted as the number of employees are less than 50. 25J and the proviso and Chapter V-A. Applicable to temporary employees appointed under Kerala State Service Rules entitling them to protection under Chapter VA (Ker. R. Hind Lamps Ltd. the amount of compensation which workers are liable to get and in the instant case it held that since Sec. K. Purnachandra Rao & Anr.” (Page: 312. 25C (Karn.T. 1987 II LLJ 365 : 1987 (71) FJR 482 : 1987 (55) FLR 498 : 1987 II LLN 671 : 1987 LIC 1651 : 1987 AIR (SC) 1960 : 1987 (4) SCC 99 (S.” (Page: 312.” (Page: 313. Chapter V-A applicable to lay-off though initiated under State law (All.HC) Note: Please see related ratio/s under the above citation in this section (supra) XII.7 The Labour Court has jurisdiction to decide u/s.Workmen entitled to fullwages for lay-off when section not applicable 2289 Note: Please see related ratio/s under the above citation in Sec. hence the workmen are entitled to full wages as per contract of service. 1986 II LLJ 263 : 1986 II LLN 594 (Mad.eligibility. Petitioner v. Para: 9) . 25J X.” (Page: 264.HC) ¥ 5A.wages of compensation.P.2J) The Krishna Dist.DB) ¥ 5A. & Ors.. . Section when not applicable workmen entitled to full wages for lay off as per contract of service (Mad. Co-operative Marketing Society Ltd..6 Though the employees are appointed under Rule 9 of the Kerala State and Subordinate Service Rules on a temporary basis they are entitled to the protection of Chapter V. that we do not thinks is the effect of the explanation to S. (1) means a) The point of time when right to claim lay off compensation arose (Mad.section 25-A(1)(a)………. (Chaibasa Cement Works. can also form one establishment for purposes of Sec.HC) B.P.1957 II LLJ 210 (Mad. Their Workmen.2290 Chapter VA – Lay-Off and Retrenchment Sec. Industrial Establishment u/s.9 Explanation to Sec.C. 1960 I LLJ 1 : 1959-60 (17) FJR 166 : 1960 AIR (SC) 56 (S. Para: 1) II. it does not deal with the question as to what constitutes one establishment and lay down no tests for determining that question. 25A I. Kohinoor Saw Mill Co. a mine which supplies the raw material to the factory. State of U.HC) ¥ 5A. can never be one establishment under the Act. Expression ‘Preceding calendar month’ in sub-Sec. the workers are entitled to favourable benefits in addition to lay-off compensation as per Sec. Thus. Para: 1) month………. Ltd. We cannot therefore.10 The period “Preceding Calendar Month” shall be reckoned with reference to the point of time when the statutory right to claim lay-off compensation arose.” (Page: 8.calendar arose………. Application of Sections 25-C to 25-E – Sec. 25A XIV.. 25-A only gives the meaning of the expression ‘Industrial Establishment’ for certain sections of the Act and explains what categories of a factory.The explanation only gives the meaning of the expression “Industrial establishment” for certain section of the Act.8 A dispute regarding lay-off though initiated under a State law and pending before a forum constituted under the Sate law shall be adjudicated in accordance with provisions of Chapter V-A.3J) F 5A. & Ors. accept the arguments of learned counsel for the respondent that a factory and a mine. Hind Lamps Ltd.” (Page: 214. Jhinkpani) v. v.25A.. 25-J and the proviso and Chapter V-A.3J) “………. mine or plantation come within the expression.DB) “One class of establishments………. Adjudication procedure to determine disputes under Chapter VA a) Dispute to be adjudicated as per provisions of Chapter V-A though raised before a forum constituted under State law (All.In our view. 25E(iii) of the Act. Ltd. v.25C . the true scope and effect of the explanation is that it explains. Associated Cement Companies. State of Madras. come within the meaning of the expression “Industrial establishment”. mine and a mine which supplies the raw material to the factory. it does not deal with what constitutes one as establishment nor lays any test for determination of that question and hence a factory.C. 1988 (57) FLR 703 (All. it does not purport to lay down any test as to what constitutes one “establishment………. 25A a) Expression ‘Industrial Establishment’ does not lay down any test for determining an industrial establishment (S.DB) ¥ 5A. 1957 II LLJ 210 (Mad.11 In a case where employee has raised an industrial dispute on an issue that more than 300 persons were engaged in an establishment within preceding 12 months and the employer had disputed it. Arvind Anand Gaikwad v.he adoption……….vitiated……….DB) “It should be………. & Ors.. Seasonal establishment a) Determinative criteria 1. State of Madras.” (Page: 219.year.S.DB) ¥ 5A. Number of days an establishment in operation during preceding 12 months is not determinative but factors related to nature or employment pattern are determinative (Mad.25-A(2)……….Sec.DB) ¥ 5A.we……….In S.” (Page: 219.” (Page: 216.25-A(2)……….a gospel truth……….The patterns of employment……….” (Page: 686/687.Seasonal cle………..” (Page: 219. Para: 4) IV.” (Page: 218.DB) “……….12 The expression ‘seasonal’ and ‘intermittent’ are not synonymous and they should be either normal seasonal or normal intermittent and the seasonal character of an establishment can be determined either by the factors of nature like floods or the employment pattern of the industrial establishment like permanent workers.” (Page: 218.discharge that burden………. Para: 5) “…………we have……….oral. Para: 4) “Seasonal………. 1994 III LLJ 684 : 1988 I LLN 239 : 1988 I CLR 26 (Bom. Kohinoor Saw Mill Co.synonymous……….. Para: 2) “……….Act………. Para: 5) “Another factor………. Para: 3) “the sole test………. 25A Seasonal establishment 2291 III.The Labour Court……….” (Page: 218.apart……….it self……….” (Page: 220. Para: 3) . “Neither the expression………. v. Para: 3) “Had……….employer………. Ltd. the burden of proof lies on employee and not employer. casual workers and badli workers but not by the number of days an establishment worked during the preceding twelve months and hence it was held that the order of the Government refusing to grant exemption on the ground that the establishment worked for 240 days at normal strength was held to be based on irrelevant consideration and hence vitiated.whether………. Para: 4) the contact………. Ltd.provides……….exemption………. Burden of proof as to number of workmen employed in an industrial establishment a) Is on the employee who contends that more than 300 persons were engaged in the preceding 12 months (Bom.in writ jurisdiction.we are unable………. Uni Abex Alloy Products.the findings recorded……….irrelevant. The decision of the Government was a quasi-judicial decision and the petitioners did not have the necessary opportunity to adduce evidence and make their representation in rebuttal of the information on which the order of the Government was apparently based. 1974 II LLJ 90 : 1975 LIC 976 (Ker.the Government.” (Page: 526.” (Page: 526. Para: 25) “………. v. 25A (Ker.DB) “We entertain no doubt………...DB) ¥ 5A. constitution………. Dalmia International.The impugned decision……….we do not……….1957 I LLJ 637 (Ker.and set aside………. Saurashtra Majoor Mahajan Sangh v.” (Page: 638.If the quasi……….to be adopted.all other sections.14 In view of the fact that Government had ignored significant number of permanent employees and the permanent nature of work in different sections of the sugar factory while declaring it as establishment of seasonal character and had only considered seasonal activity of crushing department..However. Alleppey & Anr. Appropriate Government to decide when question is referred to it u/s.DB) “While considering the……….” (Page: 527. Para: 22) “……….2292 Chapter VA – Lay-Off and Retrenchment Sec. 25A(2) declaring that the Tile factories of the petitioner did not come under industrial establishments of a seasonal character was unsustainable.be in operation………. Tile factory (Ker.In the instant……….DB) ¥ 5A. it was held that Tribunal ought to have referred the question to Government or directed the parties to move Appropriate Government to decide u/s. 1994 I CLR 518 (Guj.15 Workman employed in a cashew nut factory raised an industrial dispute for 3 months wages for closure period.” (Page: 638/639. Tile Manufacturer’s Association Quilon & Ors.DB) ¥ 5A. Industrial Tribunal. Para: 7) c) Excludes 1.of the. 25A b) Seasonal establishment includes 1. Sugar Factory when it engages itself in permanent activities though it’s crushing activity is seasonal (Guj. Travancore-Cochin State & Ors. Para: 19) “……….DB) . Para: 27) “……….no costs. Para: 28) “……….” (Page: 525. Para: 30) d) Authority to determine the question as to seasonal character of an industrial establishment 1. Kundara v.is apparently based. while……….13 The order of the State Government u/s. Union of India & Ors. 226 and also considering delay that would result the matter was not remanded.” (Page: 526.” (Page: 523. 25A(2). Para: 6) “The rules of natural Justice………. Hence the order being in violation of the principles of natural justice is quashed. which was objected on the ground that it is a seasonal factory but rejecting the plea Tribunal held closure not bonafide whereas rejecting the award. order of the Government was held as patently wrong which could be interfered with and set aside u/Art. . Harris Mineral Supply Co. 25A(1)(a) or (b) are fulfilled.with costs……….18 Once the conditions u/s.exemption.” (Page: 212. Para: 2) “It is undisputed that………. Reference of the dispute as to entitlement to lay off compensation not vitiated by subsequent raising of the question of seasonal character by management (Mys..” (Page: 450. 25A(2) was raised by management after reference of the dispute of lay-off compensation and hence application of the management that reference should be rejected and the proceedings regarding claim for lay-off compensation be postponed was rejected by Labour Court and the same was upheld by the Bench. Their Workmen & Ors. Para: 3) 2.Sub section (2) of Section……….heaving before respondent 2……….in other words………. v.” (Page: 92. 1965-66 (29) FJR 420 (MP.. Para: 1) 3. 1964 II LLJ 449 : 1964-65 (26) FJR 218 (Mys. Para: 3) “………. 25A Seasonal establishment 2293 “In the instant……….” (Page: 94.the Government………. Merchant & Ors. Para: 2) “………. State of Madras.DB) “The State Government……….” (Page: 213. M. Para: 3) 4.. Ltd. Kohinoor Saw Mill Co.” (Page: 450. Para: 7) “The summary……….But in……….by the petitioner.DB) “……….25 A(2)……….this writ……….” (Page: 451. a decision of Appropriate Government is not necessary to give that character to the industry though Sec. Para: 6) “The petitioner……….certiorari……….16 Court observed that when there is no dispute between employer and workmen as regards seasonal character of industry.in the year. & Ors.17 Issue of seasonal character of the establishment or intermittent nature of work u/s.” (Page: 450/451. the exemption from the Chapter V-A is a statutory one and automatic but the Government intervenes to decide the question of exemption only when it arises in a claim like lay-off compensation made by a workman and hence the Government was held without jurisdiction to pass an order refusing exemption to the petitioner mill as the petitioner’s letter did not refer to any lay off or any claim for compensation but merely sought a declaration that his saw mill was only a factory of seasonal character. Decision of the Appropriate Government not necessary when there is no dispute about seasonal character (MP.DB) ¥ 5A. Para: 2) . Para: 2) “……….the Tribunal.” (Page: 212.A.mining industry is seasonal………. Para: 4) “The plea of……….DB) “………. 25A(2) states that decision of Government shall be final when a question arises as to seasonal character of industry.DB) ¥ 5A. Appropriate Government acquires jurisdiction to grant or deny exemption from Chapter VA as seasonal establishment only when it arises as an incidental question in a claim like lay-off compensation (Mad.1 December 1962. 1957 II LLJ 210 (Mad.When the matter came……….to its notice……….” (Page: 428. Salim M. v.Disputes Act.” (Page: 93.Sec.DB) ¥ 5A. Mohamad Basha Tannery v. 1960 II LLJ 103 (Ker. Madras.25A(2)………. Madras v. v.A dispute………..dispute………. 1988 (57) FLR 636 (Bom. By its Chief General Manager).. State Bank of India (rep. The tribunal award granting layoff compensation to such workmen on the ground of social justice was negatived by High Court as in such a case employer was exempted from such an obligation u/s. 25C to 25E when workman merely challenged his termination but not sought any relief u/s.HC) ¥ 5A. Central Government Industrial Tribunal. Reliefs when admissible a) No relief is admissible u/s.a decision.HC) b) No lay-off compensation payable if factory is of seasonal character (Ker. Vasant Sahkari Sakhar Karkhana Ltd.25A(2).intermittently. Para: 2) V. Para: 4) “If a workman……….could be………. 25C to Sec.Government.” (Page: 214/215. 25B “Sec.DB) ¥ 5A. 25E of the Industrial Disputes Act and hence the provisions of Sec. 25C to 25E (Bom. 25-C and 25E……….one of the……….when does a ‘Question’………. Para: 6) “If that is the……….it will then……….dispute………. 1991 I LLJ 155 : 1990 II LLN 365 : 1991 I CLR 540 : 1990 LLR 693 (Mad. 25B I. Para: 7) “In our opinion………. Its workmen.19 Workman challenged his order of termination but did not claim any relief u/s.2294 Chapter VA – Lay-Off and Retrenchment Sec. Object a) The object of deeming provision is to mitigate workman’s hardship in being made to serve intermittently or after periodical breaks (Mad.” (Page: 215. The management was not in a position to give work to the concerned workmen for more than 10 months. All Kerala Cashewnut Factory worker’s Federation & Anr. Madras.” (Page: 214.” (Page: 214.jurisdiction.but it is possible……….S. Para: 5) “……….” (Page: 216.20 Factories engaged in industry are of seasonal nature. 25-A……….” (Page: 215.HC) ¥ 5A. Para: 3) “When we find……….that Question. Definition of Continuous Service – Sec.dispute………. 25A of the Act.HC) C. 25A of the Act which apply to establishment of seasonal character is not attracted.DB) .21 The object of the deeming provision introduced by the legislature treating a workman who served for 240 days during the period of 12 calendar months also to be in continuous service was to mitigate his hardship in being made to serve intermittently or after periodical breaks and hence the contention that there shall exist a subsisting contract of employment during the entire period of 12 months for calculating 240 days or the re-employment after the breaks shall be treated as separate appointments was held to be unsustainable. The Industrial Tribunal had no jurisdiction to award such compensation in cases not governed by the Act also the statute cannot be circumvented by calling it ‘unemployment compensation’.” (Page: 214. v. Para: 2) “………. Ramesh Eknath Shinde & Anr. South India Corporation & Ors.total……….function………. ” (Page: 120. Applicability a) Applicable if workman has actually worked for 240 days in a period of twelve months (S.23 The definition of continuous service u/s. 25-F can be invoked even if workmen has actually worked for 240 days during a period of 12 calendar months. 25F. Employers in relation to the Digwadih Colliery v. 25FF and 25FFF as these sections introduced by an amendment are to be read as a whole with Sec.3J) F 5A.Sec. 1994 II LLJ 977 : 1994 I LLN 851 : 1994 LIC 1197 : 1994 AIR (SC) 1638 (S. 2(eee) into Sec.C.of course……….C.district………. though S. Anil Kumar Mishra & Ors. by S.25F………. is maintained. 2 (eee) itself.e. 25B.” (Page: 162. they cannot be assigned the status of workmen by importing the incidence of completion of 240 days of work the assignment being adhoc which spend itself out and does not confer any right for regularization and the orders of High Court to continue their services in consequence set aside. 25B applies also to Secs.Thus………. 25-B because the fiction envisaged u/s. 25B because the fiction converts service of 240 days in a period of twelve calendar months into continuous service for one complete year. It is not necessary to read the definition of continuous service into S.: II) Note: Sec. Rashtriya Mill Mazdoor Sangh.” (Page: 162. 25B had not been enacted the contention of the Employers would have been unanswerable for the words of S.CB) F 5A. 2(eee) omitted by Act 36 of 1964 w. Their Workmen.Judge………. But S. 1965 II LLJ 118 : 1964-65 (27) FJR 364 : 1965 (11) FLR 99 : 1966 AIR (SC) 75 (S. Therefore. Para: 3) c) Not applicable to adhoc employees though completed 240 days (S. Uttar Pradesh v. Para: 18) “We are unable……….3J) .. Service for 240 days in a period of twelve calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. 25B says that for the purpose of S. Madhyamik Siksha Parishad.25-B………. 25F would then have plainly meant that the service should be for a period of 12 months without interruptions other than those stated in S. 25B Applicability 2295 “Section 25-B(1)………. both conditions are fulfilled if the workman has actually worked for 240 days during a period of twelve calendar months. 25FFF to workmen who had completed 240 days services prior to the second closure. Para: 24) “We therefore……….C. in a period of twelve calendar months has actually worked for not less than 240 days shall be deemed to have completed one year of continuous service. If S.f. 25-B converts the service of 240 days in a period of 12 calendar months into continuous service for one complete year therefore Sec. 19-12-1964.25. 2 of the Act do not apply if there is anything repugnant in the subject or context and the question is whether the definition of “continuous service” can at all apply in considering S. Para: 25) II. 25F is. v. b) Definition of continuous service is applicable to Secs. Col.provisions of S..terminated. Ltd.DB) ¥ 5A.CB) “The definitions in S. 25F when what is meant by the expression “one year of continuous service” in S. 25F a workman who. Hence the part of the award of the Tribunal granting compensation u/s.” (Page: 91. Bijaynagar & Ors. Shri Bijay Cotton Mills. 1965 II LLJ 83 : 1965-66 (28) FJR 489 (Raj.” (Page: 160..22 It is not necessary to read the definition of continuous service u/s.24 Where the Education Board had given some assignment on ad hoc basis without any sanctioned posts for preparation of pending certificates and engaged a few personnel to clear back log on payment ad quantum and later their services were discontinued although they had put up more than a year’s service it is held that although they had completed 240 days of work. 25FF and 25FFF (Raj. 25F speaks of continuous service for not less than one year under the employer.DB) “It is obvious that……….C. specially stated. Its Workmen. The legal consequences that flow from work for that duration under the Industrial Disputes Act. 1947.” (Page: 978. Calcutta v.2J) Note: Please see related ratio/s under the above citation in this section III. Jeewanlal (1929) Ltd. in an extended or enlarged from here. Para: 3) “………. Para: 4) “………. the Industrial Tribunal held that the employee has not completed 240 days of continuous service u/s. 1990 (77) FJR 275 : 1990 II LLN 952 : 1990 LIC (Sum) 158 : 1990 LLR 719 (AP.In the year 1986. 2007 LIC 3209 : 2007 (2) SCC (L&S) 441 : 2007 AIR (SC) 2733 : 2007 (6) SCC 207 (S.of the back-log for a period ranging from one to two years before the assignment was discontinued. appellant engaged the respodents for the work of preparing certificates to be issued by the appellant to the successful candidates at the examinations conducted by it………. Para: 2) “……….26 When the award using the expression “continuous service” defines the same.HC) e) Not applicable to daily rated workmen employed in a Government company since they cannot be on par with Government servants enjoying status and security of tenure (S.3J) F 5A.” (Page: 978. M/s. The number of days fixed for taking action u/s.” (Page: 978. Dan Bahadur Singh & Ors. 25B. It is not appropriate to import and apply that analogy. 25B had no application to cases like removal from service on the ground of misconduct for which a departmental enquiry had been held. parties are bound by it but if award does not explain the same and other Act having same expression does not give any assistance then the same would be decided on principle to find the meaning given in the award. It is difficult to envisage for them the status of Workmen on the analogy of the provisions of Industrial disputes Act.HC) ¥ 5A. The completion of 240 days work does not under that law import the right to regularisation. Para: 7) d) Not applicable to determine the status of workman since non-completion of 240 days does not affect the status (AP.The assignment was an ad hoc one which anticipatedly spent itself out. R. 1947 are entirely different form what. The finding of Tribunal was not correct.It would appear that there was a back-log of certificates to be cleared and the services of the respondents were engaged to clear that back-log on payment ad quantum………. importing the incidence of completion of 240 days work. Parties bound by meaning given to the expression in the award (S.the orders of the High Court under appeal are set aside………. High Court held that Sec. hence matter was remanded back for disposal afresh.3J) . by way of analogy.C. v. It merely imposes certain obligations on the employer at the time of termination of the service..2296 Chapter VA – Lay-Off and Retrenchment Sec.25 The Conductor in a road transport corporation was dismissed from service after domestic enquiry on non-issuance of tickets to some passengers.Accordingly.The High Court was persuaded to the view that respondents were casual workmen who had completed 240 days of work………. 25B was applicable only to cases of lay off and retrenchment of employees.C. the High Court directed the appellant to take respondents back to service as casual workers and continue their service upon payment of wages admissible to the regular employees doing similar work………. 25B “……….. On reference. Continuous service a) Prior to amendment of Sec.C. Additional Industrial Tribunal-cum-Additional Labour Court. hence he is not a workman and dismissal was justified. 1961 AIR (SC) 1567 : 1961 I LLJ 517 : 1961-62 (20) FJR 182 : 1961 (2) FLR 537 (S.2J) Hindustan Aeronautics Ltd. Mallesham v.” (Page: 977.C. 25B 1. Sec. 25B Continuous service 2297 “……….In other words, the expression “continuous service” may be statutorily defined in which case the definition will prevail. An award using the said expression may itself give a definition of that expression and that will bind parties in dealing with claim arising from the award. Where, however, the award does not explain the said expression and statutory definitions contained in other Acts are of no material assistance it would be necessary to examine the question on principle and decide what the expression should mean in any given award; and that is precisely what the tribunal had to do in the present case.” (Page: 1569, Para: 5) Note: The definition of continuous service in this case was u/s. 2(eee) which was omitted by Act 36 of 1964 w.e.f. 19-12-1964 and incorporated for academic interest 2. Employment for 12 months is a pre-condition for determining number of days worked (S.C.3J) F 5A.27 In interpretation of the Sec. 25B, it has been held that where the employee has not worked continuously for full 12 calendar months but worked for less than 11 months, then it cannot be held that merely because he had worked for 240 days he can satisfy the requirement of Sec. 25B of the Act. Sur Enamel & Stamping Works, Ltd. v. Their Workmen, 1963 AIR (SC) 1914 : 1963 II LLJ 367 : 1963–64 (25) FJR 88 : 1963 (7) FLR 236 (S.C.3J) “……….The position therefore is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that it would not satisfy the requirement: of S.25-B. Before a workmen can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed, for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in. the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements of S. 25-B would not be satisfied by the mere fact of the number of working days being not less than 240 days.” (Page: 1917, Para: 8) “We have therefore come to the conclusion that the Tribunal was wrong in thinking that these two workmen were entitled to the benefit of S. 25-F. Accordingly we set aside the direction that the Tribunal made for payments to Nagen Bora and Monoharan by way of compensation.” (Page: 1917, Para: 9) Note: Sec. 2(eee) omitted by Act of 1964 and the position as to continuous service for less than one year also now holds good subject to 240 days of work. 3. Need not necessarily mean completion of one year of service but covers service of 240 days in any particular year of 12 calendar months (Bom.DB) ¥ 5A.28 The word “Continuous Service” in Sec. 25F read with Sec. 25-B, means continuity of service but does not necessarily mean that he must have completed one year of service but it is sufficient if he completes 240 days in any particular year of 12 calendar months to be deemed as continuous service within the meaning of the section and hence the period from the date of recruitment i.e. 24th January 1945 to the date of retrenchment i.e. 15th October 1954 which includes the period of illegal strike from 6th October 1951 to 24th November 1951 was held to be taken into account for computing retrenchment compensation as the employee did not suffer dismissal on that account and therefore the period of strike despite interruption in service is deemed to have been continuous by virtue of the definition as enumerated in categories of cases in the second part of the said definition, so long as the ‘viniculam juris’ is not severed on that account. Jairam Sonu Shogale v. New India Rayon Mill Co., Ltd. 1958 I LLJ 28 : 1958-59 (14) FJR 371 (Bom.DB) “The petitioner was……….with effect from 15th October 1954.” (Page: 28, Para: 2) “On this petition……….claimed by him……….” (Page: 29, Para: 2) 2298 Chapter VA – Lay-Off and Retrenchment Sec. 25B “The Second question……….compensation……….then section 25-F also refers……….compensation.” (Page: 30, Para: 2) “……….one has to……….six months……….so that……….than one year……….But this is……….Industry……….it is sufficient……….service……….the principal……….12 Calendar months……….and where……….for 240 days.” (Page: 31/32, Para: 2) “In other words……….set aside.” (Page: 32, Para: 2) Note: This case is prior to Amendment Act of 1964 4. Interruption is not relevant when employee has worked for 240 days (S.C.CB) F 5A.29 Interpreting the expression ‘one year of continuous service’ Apex Court held that the person who has worked for 240 days during the period of twelve months is entitled to the benefit of Sec. 25-F of the Act even though his work during the twelve months was interrupted hence upheld the order of Tribunal in awarding relief for the non-compliance of Sec. 25-F in terminating the workmen and even now after amendment of 1964, situation has not changed except the change that the service must be during a period of 12 calendar months preceding the date with reference to which the calculation is to be made. Employers in relation to the Digwadih Colliery v. Their Workmen, 1965 II LLJ 118 : 1964-65 (27) FJR 364 : 1965 (11) FLR 99 : 1966 AIR (SC) 75 (S.C.CB) CA 43 of 1964 dt.22 -3 -1965. “……….But S. 25B says that for the purpose of S. 25F a workman who, in a period of twelve calendar months has actually worked for not less than 240 days, shall be deemed to have completed one year of continuous service. Service for 240 days in a period of twelve calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. Therefore, though S. 25F speaks of continuous service for not less than one year under the employer, both conditions are fulfilled if the workman has actually worked for 240 days during a period of twelve calendar months. It is not necessary to read the definition of continuous service into S. 25B because the fiction converts service of 240 days in a period of twelve calendar months into continuous service for one complete year.” (Page: 120, Para: Last) “The explanation to S. 25 B is the same, mutatis mutandis as before. Sri Sen contended that the change in the law brought out his contention. We do not agree. The amended S. 25B only consolidates the previous S. 25B and 2(eee) in one place, adding some other matters which are not relevant to the present purpose; but the purport of the new provisions is not different. In fact the amendment of S. 25F of the principal Act by substituting in Cl. (b) the words “for every completed year of continuous service” for the words “for every completed year of service” now removes a discordance between the unamended S. 25B and the unamended Cl. (b) of S. 25F. Neither before these several changes nor after these in uninterrupted service necessary if the total service is 240 days in a period of twelve calendar months. The only change in the new Act is that this service must be during a period of twelve calendar months preceding the date with reference to which calculation is to be made. The last amendment now removes a vagueness which existed in the unamended S. 25B.” (Page: 121, Para: Last) b) After amendment of Sec. 25B by Act 36 of 1964 1. Meaning of Continuous service for one year u/s. 25B(1) i) In order to attract Sec. 25B(1) the person must have been in service not only on days when he actually worked, but also on days he could not work (Karn.HC) ¥ 5A.30 The Badli workmen were given work only on the days when regular workmen were remaining absent, they raised dispute of termination of their services. Their contention was that their case falls u/s. 25B(1) of the Act as they were given work and as the work was not given on other days for no fault of theirs, they must be deemed to be in continuous service. High Court held that it Sec. 25B Continuous service 2299 would be a travesty of law to say that if a person is given work for one or for a few days in a year by an employer, either as a leave substitute or to meet the extra work, the rest of the days on which no work is given amounts to “cessation of employment” within the meaning of Sec. 25B(1). In order to attract Sec. 25B(1) the person must have been in service during the period i.e. not only on days when he actually worked, but also on days he could not work under circumstances set out in Sec. 25B(1). Petition dismissed. Therefore to be in employment is sine qua non for the application of the provision. Honnayya & Ors. v. Karnataka State Road Transport Corporation & Anr., 1985 II LLJ 487 : 1985 (66) FJR 293 : 1985 I LLN 669 (Karn.HC) ii) Performance of work in a different capacities is immaterial if the employer is same (Raj.DB) ¥ 5A.31 To determine continuous service, performance of work in different capacity is immaterial since requirement is that employer must be one and the same. Prabhu Dayal Jat v. Alwar Sahakar Bhumi Vikas Bank Ltd. & Ors.,1991 II LLJ 130 : 1990 (60) FLR 9 : 1990 LLR 136 : 1991 II LLN 1042 : 1991 LIC 944 : 1991 II CLR 526 (Raj.DB) “The contention……….Mr. Lodha.” (Page: 132, Para: 7) “The definition……….of the Act.” (Page: 132, Para: 8) “If he is……….credit.” (Page: 132, Para: 8) iii) If workman was in continuous service for one year in terms of Sec. 25B(1) uninterrupted by the employer, it is immaterial whether he completed 240 days in a particular year (Guj.HC) ¥ 5A.32 The workmen who were working for over 12 years as daily wagers were terminated without notice and for which Labour Court awarded reinstatement with back wages for violation of Sec. 25F of the Act. The award was challenged by filing a writ petition in the High Court contending that the workmen did not complete 240 days in one year. The High Court held that the question is whether the said workmen had put in continuous service in one year as Sec. 25B(1) contemplates. Once it is proved that the workman is in continuous service for more than one year and the service is not interrupted by employer during this period and even if interrupted, it is not due to the fault of the employee, it is wholly immaterial that they had not worked for 240 days in some years. And so there is no infirmity in the award of the Labour Court. Moti Ceremic Industries v. Jivuben Rupabhai, 2000 II LLJ 735 : 2000 LIC 1921 : 2000 II CLR 156 (Guj.HC) iv) Expression ‘cessation of work’ u/s. 25B(1) excludes cessation of work on account of employer’s inability to provide work for specific reasons though employee is willing to work (AP.DB) ¥ 5A.33 The Court rejected the contention that the words “cessation of work” occurring in sub-Sec. (1) should be interpreted with reference to the workman and not from the point of view of the company and held that the same should instead be interpreted “ejusdem generis” with other factors which leads to cessation of work such as a strike or lock out, power failure, imposition of curfew, declaration of bandhs, break down of law and order and such other related matters etc. Therefore held that merely a casual worker is willing to work, there is no obligation on the part of the company to provide him with work even if there is no work and hence rejected the claim of workmen based on Sec. 25B(1). G. Yadi Reddy v. Brooke Bond India Ltd., Ghatkesar & Anr., 1994 LIC 186 : 1994 (68) FLR (Sum) 44 : 1994 (69) FLR 25 : 1994 I LLN 282 : 1994 I CLR 207 : 1994 LLR 328 (AP.DB) 2300 Chapter VA – Lay-Off and Retrenchment Sec. 25B “……….The phrase “Continuous Service” for a period occurring in sub section (1)……….sub section (1) therefore has no application to the appellant’s case.” (Page: 188, Para: 6) v) When workman has put in long service in successive years it is immaterial that he did not complete 240 days in some of those years (Bom.HC) ¥ 5A.34 A mill worker resigned from service under Voluntary Retirement Scheme. On retirement, company paid an amount of Rs. 3,260 towards the retrenchment compensation. However, he filed an application u/s. 33C(2) claiming that he was entitled to receive a sum of Rs. 8,100. The employer resisted his claim on the ground that employee had not worked for a period of 240 days every year in the years 1948, 1958, 1961 and 1971 therefore, he could not be deemed to be in continuous service as contemplated in Sec. 25B of the Act. Labour Court passed the award in employer’s favour. Aggrieved, a writ petition was filed. High Court held that Sec. 25B provides that workman shall be said to be in continuous service for a period if he is for that period, in uninterrupted service. The continuous service would be interrupted only by two modes and that is by workman leaving the employment or the employer terminating his service by dismissal or discharge and the mere fact that during some years in the long period of service the workman had not worked for 240 days is not a sufficient answer to deprive him of the retrenchment compensation by ignoring the entire period and quashed the impugned award. Ramasamuz Narsing Upadhyaya v. Vinubhai M. Mitra, 1982 II LLJ 186 : 1982 (44) FLR 406 : 1982 II LLN 385 (Bom.HC) 2. When service is deemed to be continuous service for a period of one year u/s. 25B(2) explanation of deeming provision i) Service is deemed to be continuous despite periodical terminations and re-employment during workman’s service of 240 days in the preceding twelve months (AP.DB) ¥ 5A.35 The period of 240 days of service in preceding 12 months from the date of termination of service even if interrupted by periodical terminations and re-appointment by fresh order, it will deemed to be continuous service and employer will have to comply with Sec. 25F. Y. Narender & Ors. v. Central Bank of India (by its Divisional Manager, Hyderabad), 1978 II LLN 436 (AP.DB) “According to……….by S. 25F.” (Page: 442, Para: 13) “It is on that……….of the Act.” (Page: 444, Para: 15) Note: Also refer to the following case Tata Consulting Engineers v. Ms. Valsala K. Nair & Ors., 1998 I LLN 525 : 1998 LLR 66 : 1997 II CLR 1099 (Bom.HC) ii) When employee has worked for not less than 240 days in a period of twelve months (S.C.3J) F 5A.36 Workmen who has actually worked under the employer for not less than 240 days during the period of twelve months shall be deemed to have been in continuous service for a period of one year u/s. 25B by virtue of Act 36 of 1964 whether or not he has in fact been in such continuous service for a period of one year and as in the instant case appellants were in employment from May 4, 1974 to Jan. 29, 1975 have completed more than 240 days during the period of 12 months and are entitled for reinstatement with full back wages for violation of Sec. 25F. Surendra Kumar Verma etc. v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi & Anr., 1981 I LLJ 386 : 1980 (57) FJR 67 : 1980 II LLN 456 : 1980 LIC 1292 : 1981 SCC (L&S) 16 : 1981 AIR (SC) 422 : 1980 (4) SCC 443 (S.C.3J) Sec. 25B Continuous service 2301 “……….It appears that Usha Kumari and Madhu Bala were in the employment of the Bank from May 4, 1974 to January 29, 1975 and had worked for 258 and 266 days respectively during that period. As the period from May 4, 1974 to January 29, 1975 was not one year, it was conceded before the Labour Court that there was no violation of the provisions of S. 25F of the Industrial Disputes Act……….” (Page: 390, Para: 8) “Act 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25 B(2) now begins with the clause ‘where a workman is not in continuous service……….for a period of one year’. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. We hold that Usha Kumari and Madhubala are in the same position as the other appellants.” (Page: 391, Para: 9) “In the result, all the appeals are allowed and the workmen-appellants are directed to be reinstated with full back wages……….” (Page: 391, Para: 10) iii) When employee completed 240 days though he is not in service for a period of twelve months (S.C.2J) F 5A.37 Negativing management’s contention that concerned workman’s case is not satisfied by Sec. 25B Apex Court held that for the purpose of sub-Sec. (2) of Sec. 25B it is not necessary that a workman should have been in service for a period of one year as it provides that a workman shall be deemed to be in continuous service for a period of one year if in a period of twelve calendar months just preceding the relevant date with reference to which calculation is to be made, the workman has rendered service for a period of 240 days and hence in instant case since the workman has worked for more than 240 days from his appointment date i.e. 8th Dec. 1973 till his termination on 19th Oct. 1974 his termination without compliance of Sec. 25F is illegal. Mohan Lal v. The Management of M/s. Bharat Electronics, Ltd., 1981 II LLJ 70 : 1981 (58) FJR 467 : 1981 (42) FLR 389 : 1981 II LLN 23 : 1981 LIC 806 : 1981 SCC (L&S) 478 : 1981 AIR (SC) 1253 : 1981 (3) SCC 225 (S.C.2J) “……….It is not necessary for the purposes of sub-section (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub-section (1) his case would be governed by sub-section (1) and his case need not be covered by sub-section (2). Sub-section (2) envisages a situation not governed by sub-section (1). And sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment……….” (Page: 77, Para: 12) “Reverting to the facts of this case, admittedly the appellant was employed and was on duty from December 8, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service, i. e. October 19, 1974 Commencing from that date and counting backwards, admittedly he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within Section 25B (2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter VA.” (Page: 78, Para: 15) “Appellant has thus satisfied both the eligibility qualifications prescribed in Section 25F for claiming retrenchment compensation. He has satisfactorily established that……….he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As precondition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service.” (Page: 78, Para: 16) “Accordingly, this appeal is allowed and the Award of the Labour Court dated may 31, 1980, is set aside……….” (Page: 79, Para: 18) 2302 Chapter VA – Lay-Off and Retrenchment Sec. 25B iv) When workman rendered 240 days service though not continuously but in a period of preceding twelve months or 365 days (Bom.HC) ¥ 5A.38 The period of 240 days may not be a period of continuous 240 days and it is sufficient if total number of 240 days is calculated with reference to a period of 12 months. In other words, an employee should render a service for total number of any 240 days in a period of continuous 365 days. Union of India through Divisional Railway Manager, Mumbai v. Jairaj N. Shetty, 2003 (99) FLR 671 : 2003 LLR 1142 : 2003 III CLR 374 (Bom.HC) ¥ 5A.39 On termination, matter referred to Labour Court. It held that since the workman not completed 240 days of continuous service, he is not entitled to any relief. On being challenged, High Court held that continuous service as per Sec. 25B of Industrial Disputes Act means 240 days of employment preceding twelve months to the date of termination and on the basis of evidence it is clear that the employee in the twelve months preceding to the termination worked for a period of more than 240 days. It is not the requirement of law that a person has to work continuously for a period of 240 days in a calendar year. Hence award of Labour Court liable to be set aside and he is entitled to reinstatement without back-wages. Rajeev Sinha v. Sardar Vallab Bhai Government Polytechnic College, Bhopal & Anr., 2006 (111) FLR 571 : 2006 III CLR 1034 : 2007 I LLJ 577 : 2007 II CLR 47 : 2007 LLR 44 (MP.HC) “On the basis of the……….Industrial Dispute Act, 1947.” (Page: 572, Para: 5) v) It is sufficient compliance of the section if workman completes 240 days within eight months and need not work for twelve months (Guj.HC) ¥ 5A.40 In a dispute for termination of his services without complying with Sec. 25F raised after a period of 4 years, the Labour Court reinstated him with 70% back-wages, excluding the wages for those four years period. Though the employer pleaded that he was not in a continuous service as required u/s. 25B of the Act, but did not produce any documents such as muster roll, pay register etc. on the plea that the burden of proof lies on the employee and that the employee had abandoned the service. But the Labour Court did not accept the contention. On assailing the award, the High Court upheld the award and held that it was not necessary for the employee to work for 12 months of continuous service and if within eight months, he had completed 240 days of continuous service, then also he would be entitled to the benefit of Sec. 25F of the Act. Regarding production of documents in proof of continuous service was concerned, the High Court held that if the workman was having documents and yet failed to produce the same, then the burden of proof of continuous service would be on the employee. But if the workman had not been given any documents by the employer, then the employer had to disprove the facts by producing documentary evidence in his possession which were not produced, Labour Court has rightly drawn an adverse inference in favour of the employee. State of Gujrat & Anr. v Jitendra M.Raval & Anr., 2005 (106) FLR 97 (Guj.HC) Note: Relied on Mohan Lal v. The Management of M/s. Bharat Electronics, Ltd., 1981 II LLJ 70 : 1981 (58) FJR 467 : 1981 (42) FLR 389 : 1981 II LLN 23 : 1981 LIC 806 : 1981 SCC (L&S) 478 : 1981 AIR (SC) 1253 : 1981 (3) SCC 225 (S.C.2J) 3. When not deemed to be in continuous service i) When employee has worked for less than 240 days (S.C.2J) F 5A.41 Workman who is a temporary godown Darban whose service was terminated, when subsequently appointed as messenger after period of 12 years, demanded back wages for that period on the basis of settlement between union and management providing for payment of back Sec. 25B Continuous service 2303 wages to temporary employee in view of judgement of State Bank of India v. N. Sundara Money. But since he was not in continuous service for 240 days as per Sec. 25-B he was held to be not entitled to back wages. State Bank of India v. Presiding officer & Anr., 1999 III LLJ 320 : 1998 SCC (L&S) 1725 : 1998 (8) SCC 576 (S.C.2J) “This fact is not disputes by Respondent 2. This shows that Respondent 2 had admittedly not worked for more than 240 days continuously in a year as required under section 25-B of the Act. The Tribunal has proceeded in he basis that the benefit of the settlement dated August 22, 1977 was available to all temporary employees irrespective of the fact whether they had put in 240 days’ continuous service or not and has directed the payment of back wages to Respondent 2 on the view that Respondent 2 had worked for more than 90 days in a year. This view of the Tribunal cannot be upheld because, as a pointed out earlier, Para 1 of the settlement dated August 22, 1977, clearly refers to “temporary employees concerned” and temporary employees concerned are only those who satisfy the requirements of the section 25-B of the Act having worked for more than 240 days continuously in a year so as to take the benefits of the decision in Sundara Money case. Since Respondent 2 did not put in 240 days service in any year, he cannot be regarded as a temporary employee concerned and he could not be extended the benefit under Para 1 of the settlement dated August 22, 1977. The order passed by the Tribunal cannot, therefore, be upheld and has to be set aside and for the same reason the impugned order of the High Court dismissing the write petition field by the appellant has also to be set aside.” (Page: 321/322, Para: 6) ii) When intervening breaks given to a daily wager were not malafide (Raj.DB) ¥ 5A.42 Breaks given to daily wager, whose appointment is made when shortage of staff arises or seasonal increase of work, being not malafide, employee was held to be not in continuous employment and hence termination was not in violation of Sec. 25F. Pali Central Co-operative Bank Ltd., Pali v. Sunil Kumar Sharma., 1994 LIC 1370 (Raj.DB) “From……….the Act.” (Page: 1373, Para: 8) “It is thus……….this case.” (Page: 1374, Para: 9) iii) Cannot be deemed only by relying on the witnesses’ statement in the cross-examination that employee has worked for 240 days (Raj.HC) ¥ 5A.43 Mere reliance on the witnesses’ statement in the cross-examination that the workman had worked for 240 days and thereby declaring that the termination of workman to be illegal is not sufficient. The significant point is that the workman must have worked for 240 days in a year immediately preceding the termination of the workman. Garrison Engineer MES v. Central Industrial Tribunal & Anr., 1993 II LLJ 850/883 (Raj.HC) 4. Computation of continuous service u/s. 25B(2) i) Expression ‘actually worked’ includes Sundays and paid holidays (S.C.2J) F 5A.44 The expression “actually worked under the employer” u/s. 25B(2)(a) comprehends all those days when workman was in the employment of the employer and for which he has been paid wages under express or implied contract of service or under statute thus Sundays and other paid holidays should be included while computing days of ‘Actual work’, u/s. 25(B). Hence Supreme Court set aside the decision of the Industrial Tribunal to the contrary and granted reinstatement with full back wages. The Court rejected the contention that only days which are mentioned in the explanation should be taken in to account on the ground that explanation is only clarificatory and cannot be used to restrict the expanse of the main provision of the Act. 2304 Chapter VA – Lay-Off and Retrenchment Sec. 25B The Workmen of American Express International Banking Corporation v. The Management of American Express International Banking Corporation, 1985 II LLJ 539 : 1985 (67) FJR 189 : 1985 (51) FLR 481 : 1985 II LLN 817 : 1986 LIC 98 : 1985 II CLR 269 : 1985 SCC (L&S) 940 : 1986 AIR (SC) 458 : 1985 (4) SCC 71 (S.C.2J) “……….According to the workman excluding the breaks in service, he ‘actually worked under the employer’ for 275 days during the period of 12 months immediately preceding October 31, 1975 whereas according to the employer he actually worked for 220 days only……….” (Page: 540, Para: 2) “……….In the present case, the provision which is of relevance is S. 25B(2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is ‘actually worked under the employer’. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders, etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to S. 25B(2) should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the Construction of the expression ‘actually worked under the employer’. The explanation is only clarificatory, as all explanations is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression ‘actually worked under the employer’ is capable of comprehending the days during which the workman was in employment and was paid wages – and we see no impediment to so construe the expression – there is no reason why the expression should be limited by the explanation. To give in any other meaning then what we have done would bring the object of S. 25F very close to frustration……….” (Page: 542, Para: 5) “On our interpretation of S. 25F read with S.25B, the workmen must succeed. The workman Shri. B. Ravichandran is therefore directed to be reinstated in service with full back wages……….” (Page: 543, Para: 7) F 5A.45 Sundays and paid holidays should be included in determining the number of days on which a workman has actually worked under the employer for the purpose of computing ‘continuous service’. Management of Standard Motor Products of India Ltd. v. A. Parthasarathy & Anr., 1985 (67) FJR 417 : 1985 (51) FLR 459 : 1985 II LLN 830 : 1985 II CLR 274 : 1986 LIC 101 : 1985 SCC (L&S) 934 : 1986 AIR (SC) 462 : 1985 (4) SCC 78 (S.C.2J) “……….submission of Shri Pai that the number of days on which the workmen actually worked under the employer would be less than 240 days if Sundays and other holidays for which the workmen were paid wages were excluded has already been answered by us in the case of The Workmen of American Express International Banking Corporation v. The Management of American Express International Banking Corporation (Reported in 1986 Lab IC 98) in which judgment has just been pronounced by us. In the circumstances, both the appeals are, dismissed with costs.” (Page: 419, Para: 1) Note: Also refer to the following cases State of Uttaranchal, Through Collector v. Bhajan Singh, 2004 (102) FLR 283 (Uttar.HC) Pawan Kumar Srivastava v. Municipal Corporation, 1999 II LLJ 21 : 1999 III LLN 266 (MP.DB) Note: Please also refer to the case of A. Parthasarathi & Anr. v. Management of Standard Motors Products of India Ltd. & Anr., 1979 LIC (Sum) 136 (Mad.DB) where in it was held by some Madras High Court that Sundays and holidays for which no wages paid are to be excluded while computing 240 days Sec. 25B Continuous service 2305 ii) Expression ‘actually worked’ is to enable a workman to get the benefit of fictional service notwithstanding the interruptions (Mad.DB) ¥ 5A.46 The implication of the expression “actually worked” is to enable a workman to get the benefit of fictional service, if he actually worked for 240 days in a period of 12 calendar months notwithstanding any number of interruptions in his service. State Bank of India (rep. By its Chief General Manager), Madras v. Central Government Industrial Tribunal, Madras, Its workmen, Madras, 1991 I LLJ 155 : 1990 II LLN 365 : 1991 I CLR 540 : 1990 LLR 693 (Mad.DB) “Under………..S. 25F of the Act.” (Page: 161, Para: 20) iii) Preceding twelve months – how to compute a) To be counted backwards just preceding the relevant date (S.C.2J) F 5A.47 The Sec. 25B(2) by a fiction brings within its scope the services rendered for 240 days in a calendar year although literally the workman did not render uninterrupted service for a period of one year. The Court said by fiction, one has to count 12 calendar months from backwards just preceding the relevant date of retrenchment. In other words one has to ascertain the date of retrenchment and then count backwards to a period of 12 months and ascertain whether the workman had completed/rendered service for a period of 240 days. Thus within this deeming fiction of 12calendar months counting backwards one has to ascertain the continuous service of 240 days so as to apply the section for purposes of Chapter VA. Mohan Lal v. The Management of M/s. Bharat Electronics, Ltd., 1981 II LLJ 70 : 1981 (58) FJR 467 : 1981 (42) FLR 389 : 1981 II LLN 23 : 1981 LIC 806 : 1981 SCC (L&S) 478 : 1981 AIR (SC) 1253 : 1981 (3) SCC 225 (S.C.2J) “Sub-section (2) incorporates another deeming fiction for an entirely different fiction for an entirely different situation. It comprehends a situation where a workman is not continuous service within the meaning of sub-s. (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period for one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-s. (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in clause (a) of sub-s. (2). The conditions are that commencing the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter VA. It is not necessary for the purposes of sub-s. (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub-s. (1) his case would be governed by sub-section (1) and his case need not be covered by sub-s. (2). sub-section (2) envisages a situation not governed by sub-s. (1). And sub-s. (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in sub-s. (2)(a) it is necessary to determine first the relevant date, i.e., the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these there facts are affirmatively answered if favour of the workman pursuant to the deeming fiction enacted in sub-s. (2) (a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in S. 25F……….” (Page: 76/77, Para: 12) Sec.P.2J) . “just preceding”.C. v. Also. Presiding Officer. 2004 SCC (L&S) 46 : 2003 III LLJ 1064 : 2003 (99) FLR 331 : 2003 LIC 3491 : 2003 LLR 1097 : 2003 AIR (SC) 3337 : 2003 (8) SCC 334 (S. 25B ¥ 5A. First Additional Labour Court. the period of twelve months to be counted from the date of termination and if the workman completed 240 days it will have to be assumed that the workman is in continuous service.. 2(g) of U. Oza. at one……….. 2002 (95) FLR 401 : 2002 II LLN 667 : 2002 LLR 371 : 2002 LIC 227 (P&H. Labour Court held that the workman had not completed 240 days of service in the twelve preceding months.come to his rescue. P. 25F r/w..C. 2006 I LLJ 213 : 2005 (107) FLR 797 : 2006 II LLN 476 : 2005 III CLR 333 : 2006 LLR 864 (Guj.. then there is no scope to hold that the words. P.P.48 When the Supreme Court says that employee has to prove that he had worked for 240 days during the period of twelve calendar months counting backward and just preceding the relevant date.49 Workman raised an industrial dispute alleging that he had served from the year 1990 and his services terminated in 1999 illegally. 25B of the Industrial Dispute Act.” (Page: 262.HC) c) Expression ‘preceding’ is absent in Sec.O. 1986 (68) FJR 73 : 1986 (52) FLR 441 : 1986 I LLN 219 (P&H. 2002 (95) FLR 401 : 2002 II LLN 667 : 2002 LLR 371 : 2002 LIC 227 (P&H. M/s. Shri Pal S/o Chander Bhan v. Act under the definition of “continuous service” though the same was introduced in Industrial Dispute Act to give complete and meaningful benefit of welfare legislation to the working class. Chetan P.. P. the employee has not completed 240 days in just preceding twelve calendar months. considering the period of service rendered by him the workman was awarded 75% back wages and reinstatement with continuity of service. 2007 (112) FLR 261 : 2007 II LLJ 157 : 2007 II LLN 937 : 2007 LLR 236 : 2007 I CLR 70 (P&H. Industrial-cum-Labour Court & Anr.2J) F 5A. in the instant case.were denied. Sec.” (Page: 262.HC) Eicher Goodearth Ltd. Industrial Tribunal Haryana.O.The petitioner. hence dismissed the claim. Executive Engineer (Mechanical) v.51 The word “preceding” is not used in Sec. the submission of the employer that the workman had left of his own accord cannot be accepted for the industrial dispute was raised by the workman the very next month and there is nothing in evidence to show that the workman was gainfully employed during the intervening period. He has failed to prove that any worker junior to him was retained or fresh recruitment made by the department. Waryam v. Ltd. Industrial-cum-Labour Court & Anr. Since. U. Madras.HC) ¥ 5A. High Court held that. Drugs and Pharmaceuticals Co.DB) ¥ 5A. 2(g) of U.DB) “………. Ramanuj Yadav & Anr. Hence this writ petition. & Anr. 1988 I LLN 695 (Mad. Para: 6) Note: Also refer to the following case Logaiyan v.50 On a reference of dispute as to termination of service the Labour Court did not favour the workman. v. 25F of the Act does not come to his rescue. but in the present case workman has not completed 240 days of continuous service preceding 12 months.. are otiose or superfluous or have no importance.HC) b) To consider a year immediately before his termination (P&H.2306 Chapter VA – Lay-Off and Retrenchment Sec. The High Court observed that the employee had worked for 240 days in a year immediately before his termination. So. Para: 1) “In order to qualify………. A judgment is a judgment for what it decides. Labour Court & Ors. & Anr. Industrial Disputes Act (S. he would not be entitled to any benefits u/s.HC) Shri Pal S/o Chander Bhan v. But High Court held that working for 240 days does not mean only those days during which he was in employment and working with pen. R.HC) ¥ 5A.53 Employee’s temporary services were terminated but later there was a settlement whereby he was re-employed as a fresh employee from 4.. hammer or sickle but also includes all those days for which he was paid wages under express or implied contract of service or by compulsion of statute or standing order.HC) ¥ 5A.Sec...52 In order to count the period of 240 days for continuous service.service rules. Assistant Line man.Section 2(g) of the UP Act does not require a workman.54 Employee’s services were terminated without following the provisions of Sec. Randhir Singh. Sh.HC) “In view of………. P.HC) ¥ 5A. without any break and workman was entitled to get benefit of that continuity period as per the service rules. held that the employee had completed 240 days of service and passed award in favour of the employee. The word ‘preceding’ has been used in S.service rules. & Anr.12. 1999 (82) FLR 429 : 1999 III LLN 1114 : 1998 LLR 802 (MP.K. Haryana State Electricity Board. 25-B of the ID Act as incorporated in the year 1964.55 The service which was rendered by the workman because of the interim order in favour of the workman was held to be considered as continuous service. 25F of the Act and it was found by the Labour Court that the employee had not worked for 240 days in a year. Therefore the matter is remanded. Udaykumar Thakorbhai Bhat v. to avail the benefit of the deeming provision of completion of one year of continuous service in the industry.9. Para: 6) “Therefore according ………. 1994 I LLJ 1120 : 1993 II LLN 750 : 1993 II CLR 806 (P&H.’………. Ltd.” (Page: 3604. Para: 10) iv) Computation of 240 days includes a) The date on which a workman joined service even on adhoc basis but not to compute from the date of his regular recruitment (P&H.HC) b) The period of fresh appointment on workman’s re-employment but not from the date on which he was temporarily employed when there is a clear break (Bom. Prav Plast Pvt. to have worked for 240 days during ‘preceding’ period of 12 calendar months.1986 Labour Court by taking into account the period prior to settlement. Section 2(g) does not use the word ‘preceding. 2001 III LLJ 513 : 2000 (84) FLR 122 : 2000 I LLR 420 : 1999 IV LLN 884 : 1999 LIC 3749 : 1999 II CLR 995 (Bom. the day when the workman had joined service even though on ad-hoc basis is to be considered and not the date on which he was regularly recruited into service. 25F of the Act is mandatory and proof of continuous service of 240 days must be strictly proved.HC) ¥ 5A. Kaluram A.HC) c) All those days for which wages paid under express or implied contract of service (MP. 2003 LIC 3600 : 2004 LLR 236 (Guj.O. Choudhari & Anr. 25B Continuous service 2307 “………. v. Labour Court & Anr. Industries Commissioner & Ors. Sec. Shrivastava v.” (Page: 3603. Para: 9) .. High Court held that there was a clear break in service and earlier service could not have been taken into account.HC) d) Service rendered pursuant to interim order (Guj.1985 and again his services were terminated on 2.” (Page: 51. Chandigarh v. ” (Page: 1034. 2007 (112) FLR 1188 : 2007 LLR 509 (P&H.3.1986 and was not allowed to work from 1.HC) . v. 25B Note: An opposite view is given by Gujarat High Court in Medical Officer.” (Page: 1036. 2004 LIC 1034 (Bom.2.56 Workman raised industrial dispute for illegal termination without complying with Sec.. State of Punjab & Anr.1988 with continuity of service but he was again terminated on 30.unimpeachable……….HC) ¥ 5A. Chhedi Lal & Anr.10. Primary Health Centre & Anr. Anandroa Ramchandra Khobragade. Para: 2) “The condition……….same employer.9.HC) ¥ 5A.back wages………. 2006 (109) FLR 321 : 2006 I CLR 569 (Guj. Executive Engineer.2.58 Workman joined service on 25.1988. Irrigation Division.Therefore in the………. Amritsar v.1987 to 9. 25F of the Act cannot be accepted and the High Court upheld the award of Labour Court that Sec. It was held that the period between 1.57 Though the workman worked under various projects but all of them were executed only under Verka Drainage sub-division and the employer’s witness besides the records before Tribunal affirm the same and therefore it is held that the employer has no case to disprove the continuous service of the workman and the plea that service rendered by the workman under various projects cannot be clubbed together to extend the benefit of Sec. 25F attracts to the case. Gondia & Ors. 25F and for contravention of Sec. v.DB) ¥ 5A.1987 and finally after a settlement he was reinstated on 9.employer……….DB) e) The period of service rendered under different schemes under the same employer (Bom.1988 would be counted towards his service and ordered reinstatement as the workman thus completed 240 days of service. Para: 10) “Hence in view………. Jikubhai R.10.2308 Chapter VA – Lay-Off and Retrenchment Sec. 1995 (86) FJR 663 : 1996 (72) FLR 407 : 1995 II LLN 433 :1995 LLR 513 (P&H. 25G as his juniors were retained. Executive Engineer. Tarsem Singh & Anr. Bari Doad Drainage Division. Para: 7) “………. v.. Para: 11) f) Service rendered in different projects but under one sub-division (P&H.” (Page: 1036.HC) “The petitioners who are……….DB) g) The period between the date on which he was terminated and the date of his reinstatement if he is reinstated as per terms of settlement (P&H. Labour Court awarded reinstatement with 15% back wages on the ground that the workman was in continuous employment for more than 240 days after taking into account days when he was paid by employer and when he was paid from Employment Guarantee Scheme Fund.” (Page: 1035. It was upheld by High Court and it held that for the purpose of determining continuous employment it makes no difference if during the period in contemplation the workman was paid from the Employment Guarantee Scheme Fund as long as he is under the same employer. Saparia. 2001 (90) FLR 517 : 2001 I LLN 424 (Raj.HC) i) Period of service interrupted on account of accident during the course of job (P&H. interruption of service due to sickness or authorised leave shall be considered for computing continuous service hence the workmen whose appointments though made as casual employees.This is a……….HC) k) The period interrupted due to sickness or authorized leave (AP. Ram Kishan Gurjar v. Babulal Sharma v. 1990 LLR 211 (Raj. 2006 LIC 56 : 2006 I CLR 607 : 2006 LLR 301 (Raj. It was held that workman worked for more than 240 days.on the point………. Sundays and leave with pay (Raj.” (Page: 550. 2001 II LLJ 549 : 2001 III LLN 1137 : 2001 LLR 1036 (P&H.60 Uninterrupted service includes interruption in service on account of accident occurring during the course of job.HC) ¥ 5A.” (Page: 786.63 While calculating 240 days.DB) “Chapter V-B………. P. having worked for a decade and more. 1998 I LLJ 784 : 1997 II LLN 383 (AP.64 For calculating 240 days of continuous service Sundays should be considered as actual working days.. Durga Parsad..59 Bus driver on an average worked for 20 days in a month but was paid for whole month.DB) ¥ 5A. 1995 I LLJ 323 : 1994 (85) FJR 340 : 1995 (70) FLR 113 : 1994 LLR 528 (Ker..regular employees. v.DB) ¥ 5A. State of Rajasthan & Anr... Faridabad & Anr.DB) “………. C. University of Ajmer & Anr.O. Kumaran v. 25B Continuous service 2309 h) Service of 20 days rendered every month by workman when paid for the whole month (Ker.DB) “………. Faridabad v..DB) Note: The High Courts in recent cases (see below) ruled that Sundays and holidays for which wages are not paid are not to be included for computing continuous service . Para: 6) l) Paid holidays such as public festival holidays. Murali & Ors.The Labour Court………. Industrial Tribunal-cum-Labour Court-1. Mohd.K. Yusuf v. Para: 9) ¥ 5A.DB) ¥ 5A.62 For the purpose of regularisation.Sec. 25F would be mandatory. Labour Court & Ors. Management of Hindustan Machine Tools Ltd.61 Service rendered by workman during probation period should be taken into consideration for computing 240 days service and if it was found that 240 days service was rendered compliance of Sec. were held entitled to regularisation. Idukki Jilla Motor Mazdoor Sangh (BMS) & Anr. Para: 1) j) Service rendered during probation (Raj.writ petition. Holidays and Sundays shall be considered for calculating working days.” (Page: 212. P.HC) ¥ 5A. 1989 (59) FLR 565 (Raj. 1987 (54) FLR 22 : 1987 I LLN 186 (All. Pandu Nagar.O.HC) Chaggan Lal v. 2001 III LLJ 787 : 2000 (86) FLR 505 : 2000 LIC 1178 : 2000 II CLR 583 : 2000 LLR 947 (Raj. 1990 (61) FLR 264 : 1990 LLR 576 (Raj.DB) “The petitioner………. his termination amounted to retrenchment and as such he was entitled to reinstatement and back wages consolidated to an award of Rs. Bharatpur v.67 Workman was employed under Delhi Municipal Corporation Management. 1992 I LLJ 419 : 1990 (61) FLR 467 : 1990 LIC 1463 : 1992 I CLR 552 (Raj. & Anr.HC) p) Period of casual service rendered prior to regularization (Raj. 25B m) Period of leave with pay (All.2310 Chapter VA – Lay-Off and Retrenchment Sec. Naresh Chandra Srivastava v. his services were terminated.1. Para: 1) Note: Also refer to the following cases in this regard Execuive Engineer... & Anr. Scooters India Ltd. v.66 A workman who has worked as Lower Division Clerk (LDC) and later as peon and has rendered 240 days service.Disputes Act. and then again re-transferred to Delhi Municipal Corporation. Para: 4) “Admittedly.HC) Prathma Bank v.. Central Government Industrial Tribunal-cum-Labour Court. Para: 2) o) Service rendered by the employee in the transferee company in case of transfer of his department to a different body (Del. v. his termination was held as invalid on the basis that he has worked continuously with the same employer although he may not have worked in same capacity..DB) ¥ 5A.11.HC) Municipal Corporation of Delhi v.65 Days on which workman has actually not worked but wages are paid. Panchayat Samiti & Anr.” (Page: 266. Kanpur.. After some time he was transferred to D.HC) ¥ 5A. Of Municipal Corp.” (Page: 267. Para: 1) “In the result………. Labour Court.. University of Ajmer & Anr.. 2002 II LLJ 1000 : 2002 (93) FLR 197 : 2002 II CLR 197 : 2002 LLR 524 (All.80 when he was initially appointed as work charged employee to 1.D. 2004 (105) FJR 884 : 2004 (100) FLR 938 : 2004 I LLN 861 : 2004 LIC (Sum) 2 : 2004 LLR 162 (Del. High Court held that he had worked for more than 240 days and he cannot be denied relief of reinstatement on the ground that department in which he was employed stood transferred to D. 25-F calculating 240 days continuous service period between 19. Lucknow & Anr.DB) “The definition of……….A. Sri Girdhari v.DB) . Workmen of Municipal Corp. Manoj Kumar & Anr.” (Page: 27.HC) n) Service with the same employer though not in the same capacity (Raj.D. 20000.HC) Deputy Chief Life Warden.82 when he was regularized would be counted because workman had worked continuously and it is immaterial that he was temporarily employed on purely casual basis during this period. 1990 (60) FLR 265 (Raj. 1986 (53) FLR 223 (Del. Bharatpur. Hardeo Lal Jat v. The State of Rajasthan & Ors..DB) ¥ 5A. such as public and festival holidays and leave with pay are to be counted for determining 240 days. Sanjay Kumar & Ors.at his credit. 1999 III LLN 376 (Raj.” (Page: 267.not complied with………. of Delhi & Anr.DB) ¥ 5A. Alwar Sahakari Bhumi Vikas Bank Ltd. P.. the provisions………. PHED & Ors. Mgnt..A.HC) Babulal Sharma v. Thereafter. of Delhi & Anr.68 For assessing compensation u/s.reinstate the petitioner………. 25-B.. Pawan Kumar Srivastava v.Khalasi………. 25-F and 25-B. Kailash Paswan & Ors. the period of 30 days of employment cannot be excluded while calculating his continuous service.” (Page: 436.” (Page: 25.e.DB) “In view………. 25B 2311 Continuous service “………. 15th October 1954 which includes the period of illegal strike from 6th October 1951 to 24th November 1951 was held to be taken into account for computing retrenchment compensation. 25F read with Sec.DB) ¥ 5A. in absence of any reasons. 1958 I LLJ 28 : 1958-59 (14) FJR 371 (Bom.The reason for………. Para: 2) “………. of casual workmen who were initially appointed as masons was held illegal as they worked for 240 days including in mason and khalasi categories. 2001 II LLJ 1610 : 2002 (92) FLR 834 : 2001 (99) FJR 232 (P&H. Ambala Improvement Trust v. sickle and pen but all those days during which he was in the employment of the employer and paid wages as per contract of service. Cum-Authority.. Para: 4) r) All days when employee was in employment and paid wages as per statute/contract/Standing Orders (MP. Para: 8) “Section 25F……….The period……….by the employer.70 The expression “actually worked under the employer” not only includes those days where the workman worked with hammer.DB) “If we consider………. Para: 4) casual basis………. Ltd.71 It is not incumbent on the workmen to do the same work for 240 days to claim the benefit of the section and the service rendered by them in different categories shall also be considered and hence the termination in violation of Sec. statute or standing orders and hence Sundays and paid holidays to be counted to determine 240 days.DB) .DB) ¥ 5A.” (Page: 566.continuous service………. 24th January 1945 to the date of retrenchment i.DB) ¥ 5A. Union of India & Ors.purely compensation.” (Page: 437.with.DB) ¥ 5A.O.the petitioner has………. Ojha……….assessing “……….Sec.The language………. Para: 1) q) Period of service by daily wager employed through employment exchange after termination of earlier contracts for fixed tenure (P&H. P.days of service……….” (Page: 568..A.DB) “……….e. 1999 II LLJ 21 : 1999 III LLN 266 (MP. New India Rayon Mill Co.D. Para: 11) t) The period of strike though illegal when it does not constitute misconduct (Bom. Jairam Sonu Shogale v.69 A daily wager was appointed for various fixed periods under separate contracts and on termination of aforesaid contract he was employed through employment exchange for 30 days. S. means continuity of service but does not necessarily mean that he must have completed one year of service but it is sufficient if he completes 240 days in any particular year of 12 calendar months to be deemed as continuous service for the purpose of the section and hence the period from the date of recruitment i.standing orders……….The impugned order………. Para: 10) s) Service rendered by workmen in different categories like mason and khalasi to be considered (Pat.O..prescribed for employment………. Labour Court & Anr. v.” (Page: 1612. 1985 LIC 433 (Pat.B. Municipal Corporation.” (Page: 567.72 The word “Continuous Service” in Sec. Para: 2) “On this petition……….HC) ¥ 5A. The issue was whether services under PWD can be counted for calculating 240 days in one year.HC) Note: Also refer to the following case/s M.” (Page: 31/32.HC) v) Computation of 240 days excludes a) The period of service rendered in different units when there is no integrality between them though they are under the same PWD (S. Employee entitled to reinstatement and full back-wages. Para: 2) u) To include the period of services in PWD though employee was transferred to Municipality since he was employed in the industry (AP.claimed by him……….the principal……….for 240 days.” (Page: 32. Para: 2) “In other words………. Commissioner.and where………. The Labour Court considered the service rendered in both the sub-divisions for the purpose of Sec..75 A daily wager worked for 145 days in sub-division-2 from Oct. 25B “The petitioner was………. 25F was not applicable.with effect from 15th October 1954.” (Page: 29.P.HC) ¥ 5A. Rajaram Dhakatu Gaikar v.73 Workman working in water works department under PWD which was eventually transferred to the municipality.2J) F 5A. Para: 2) “………. Rajya Beej Evam Farm Vikas Nigam v.74 Workmen challenged his termination on ground that he had put in continuous service of more than 240 days and was terminated without complying with Sec.so that……….compensation.Industry……….six months……….HC) v) Service rendered in a sub-division to the service at Divisional Office since sub-divisional office is functioning under Divisional Office (Bom. 1995 and for 90 days in sub-division-3 from March 1995 to July 1995 where after he was terminated. 25F and granted reinstatement with full back wages. and part of service under Executive Engineer.than one year……….then section 25-F also refers………. 1994 to Feb.one has to……….12 Calendar months………. P.” (Page: 28. Labour Court found that part of his service was under Executive Engineer.” (Page: 30. therefore. 1997 (76) FLR 193 (MP. The writ petition against this order was dismissed as a consequence of which employer filed a special leave petition in Supreme Court which held that the Labour Court erred in clubbing the service in .set aside.C. 2000 III LLJ 543 : 2000 (85) FLR 836 : 2000 I LLN 911 : 2000 I CLR 771 : 2000 I LLR 316 (AP. The High Court held that this section lays emphasis on ‘employment in the industry’ for a continuous period of one year and is not concerned with change in the employer.. Para: 2) “The Second question………. Chiplun Sub-Division where termination occurred but that part did not exceed 240 days therefore Sec. State of Maharashtra & Ors. 25F was attracted.service………. Ratnagiri. Labour Court & Anr.2312 Chapter VA – Lay-Off and Retrenchment Sec.it is sufficient………. 25F.compensation………. However High Court held that Divisional Office was at Ratnagiri and Chiplun was mere Sub Division and therefore if this fact was taken into consideration one cannot escape from concluding that employee worked for more than 240 days in a year and Sec. Ongole Municipality v. was terminated from services. Kunchala Sreenu & Ors..O. 1998 (78) FLR 730 : 1998 I CLR 306 (Bom.But this is………. the findings of Industrial Tribunal in favour of the workman is held correct. 25B and held that there is violation of Sec. in that event. State of Rajasthan & Ors. 2000 III LLJ 1439 : 2000 (87) FLR 501 (Raj. as was held by the Tribunal. However. Para: 7) ¥ 5A. Para: 4) “Respondent worked for a very short period.DB) ¥ 5A. 25-F. 25-F r/w. 25B(2) is not attracted.days as required………. Industrial Tribunal Madras & Anr.DB) ¥ 5A. Hence the award was set aside and employer was directed to pay an amount of Rs.2J) “The Industrial Tribunal-cum-Labour Court unfortunately did not go into the said question at all. 25000 only. In absence of such a knowledge. 2002 I LLN 1230 : 2002 I LLJ 937 : 2002 (92) FLR 431 : 2002 LLR 320 (Raj.000/-. Para: 2) c) Service rendered by employee in separate establishments (Raj. High Court held that evidence on record proves that units though under the same department cannot be said to have any integrality with one another and the employee was agitating the same without evidence so award of Labour Court cannot be sustained and period of employment under different units cannot be clubbed together for the purpose of completion of statutory period of 240 days. therefore. for the purpose of reckoning continuity of service within the meaning of Section 25B of the Act. Madras v. Karan Singh Saktawat v.” (Page: 1031/1032. If both the establishments are treated to be one establishment.we do not……….” (Page: 274. particularly when he was not transferred from one Sub-Division to the other. directing the reinstatement of the respondent with full back-wages.12. Sec.HC) b) Notice period indicating intention to terminate services of workman (Mad.DB) . once two establishments are held to be separate and distinct having different cadre strength of the workmen. Om Pal.DB) “……….of the Act. Labour Court however awarded reinstatement on the ground that termination was in contravention to Sec.78 The service rendered by an employee in various establishments which are separate and have no functional integrality cannot be clubbed to arrive at 240 days in a year of service.” (Page: 1032. State of Rajasthan & Ors.1990 to 31. while passing an award in the year 2003. By Chief General Manager). Although we are of the opinion that the respondent was not entitled to any relief. the authority retrenching the workman concerned would not be able to comply with the statutory provisions contained in Section 25F of the Act.expressions “actually………. in 1994-95. whatsoever.. 25B Continuous service 2313 the two sub-divisions as they are separate and distinct and wrongly granted the reliefs.1992 in different units of PWD and department contended that he worked in different units which is independent and separate and seniority of workman is maintained unitwise.. Arun Kumar & Ors. 1990 I LLN 272 : 1993 (67) FLR 18 (Sum) (Mad. as noticed hereinbefore. He only worked. 2007 II LLJ 1030 : 2007 (113) FLR 831 : 2007 II LLN 995 : 2007 II CLR 856 : 2007 LLR 582 : 2007 (2) SCC (L&S) 255 : 2007 (5) SCC 742 (S. a person working at different point of time in different establishments of the statutory authority.C. we direct the appellant to pay him a sum of Rs. Thus. we are of the opinion that the period during which the workman was working in one establishment would not enure to his benefit when he was recruited separately in another establishment. Haryana Urban Development Authority v. In this case he was appointed merely on daily wages.76 Workman had worked from 1.learned counsel appearing………. would be entitled to claim reinstatement on the basis thereof. v. if any. one establishment even may not know that the workman had worked in another establishment. 25.Sec..standing orders.77 In the case of termination of services of a temporary clerk a notice period which was of 14 days in instant case cannot be added to period of service rendered even if the stand of workman of having worked for 233 days is accepted over the stand of the management of his having worked for 226 days specially if during the said period employee was not in employment at all and hence Sec.11. in our opinion committed an illegality. So he has not completed 240 days of continuous service in each department. State Bank of India (rep. etc………. Para: 2) “……….” (Page: 274. The Industrial Tribunal-cum-Labour Court. Udaipur & Anr. It is not in dispute that the establishment of Appellant No. 10(1)(c) to the Industrial Court. Para: 9) d) The service rendered in different establishments though of same employer when administrative set up of the establishments are different (S.. 3 herein had started a project.80 The Employee was terminated from service and reference was made u/s.2J) F 5A. When a casual employee is employed in different establishments.79 When casual employee is employed in different establishments.2J) “Respondent was appointed as a daily wager in the Railway Electrification Project at Vadodara Ratlam section. 25-F of the Act.C. Jummasha Diwan. Straw Board Manufacturing Company Ltd.2314 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 1233. Appellant No. having different administrative set up. In a case of this nature. If the project came to a close. 1995 LIC 2012 (Raj. 3 herein. He was retrenched purportedly on the premise that railway electrification works at Vadodara Ratlam section came to an end. the concept of continuous service cannot be applied and it cannot be said that even in such a situation he would be entitled to a higher status being in continuous service. Bhilwara & Ors v. the Railway Administration of India as a whole.. Respondent would not be entitled to his seniority. Western Railway (Overhead Equipment) Railway Electrification Railway Yard. He was paid retrenchment compensation in terms of Section 25F of the Industrial Disputes Act. Para: 1) “If a workman voluntarily gives up his job in one of the establishments and joins another. 2006 (111) FLR 895 : 2007 I LLJ 225 : 2007 I LLN 83 : 2007 I CLR 134 : 2007 LLR 6 : 2006 SCC (L&S) 2037 : 2006 (8) SCC 544 (S. the same would not amount to his being in continuous service. therefore. Union of India & Ors. 1947 (for short “the Act”). His recruitment in the said establishment would. Baroda. v. Pratapnagar.g. different requirements and different projects. maybe under the same employer.2J) F 5A.. the concept of continuous service cannot be applied. the requirements of Section 25N of the Act were not required to be complied with.” (Page: 896. e. The Tribunal therefore. He is said to have joined the Railway Electrification Project as a skilled worker under the Divisional Electrical Engineer.C. It is held that his recruitment in the said establishment would constitute a fresh employment every time. the Single Judge took a ..” (Page: 897. rejected the claim of the employee. There is no dispute before us that if different sub-divisions of the Irrigation Department are considered to be separate establishment the appellant workman does to fulfil the criteria of continuous employment for one year or more on an establishment under an employer for the purpose of invoking the provisions of S. It also held that the employee did not have requisite qualification in that he had not passed 7th class and also that his last appointment was as water supply contractor. which held that as the employee had worked in different units under different administrations of the appellant corporation these units cannot be considered as single unit and hence the days put in by the employee in different units cannot be counted for the purpose of determining whether the employee worked for 240 days continuously hence Sec. On writ petition by the employee.C. He was granted a temporary status. constitute a fresh employment. Labour Court.HC) e) Broken spells of temporary employment under different units of an employer (S. 25B “We are of the opinion that the judgement of the learned Single Judge is correct and the learned judge is right in placing reliance upon the decision rendered in Workmen of Straw Board Manufacturing Company Ltd. 25F did not apply. may be under the same employer. (1974 (2) LLN 102) where in applying the test of functional integrality while considering the provisions relating to retrenchment in the context of two factories situated in the same compound and owned by the same company were held to be distinct Separate establishments notwithstanding unity of the employer and unit of financial management because of absence of functional integrality in the sense functioning or working of one was not dependent on the other notwithstanding unity of ownership and unity of Management. Para: 7) Note: Also refer to the following case Sarvajanik Nirman Mazdoor Sangh. v. having different administrative set ups. In such circumstances we think the Industrial Tribunal was justified in coming to the conclusion that the number of days of work put in by the respondent in broken periods. The records also showed that the employee was not qualified for a permanent job..DB) “It should………. Para: 8) f) All artificial breaks in service (Mad. The State of Rajasthan & Ors. and the Industrial Tribunal was justified in dismissing the Reference. 25B Continuous service 2315 contrary view holding that the employee had worked continuously for 240 days under the same employer. 1992 LIC 2004 : 1993 I CLR 11 (Mad. (supra). DGM.” (Page: 556. the Supreme Court finally concluded that the Industrial Tribunal was correct in that the employee went in search of employment at different places and wherever temporary employment was available he accepted the employment. On appeal by the employer. Ilias Abdulrehman. Madho Shankar Dave v. as has been held by this Court in the case of Indian Cable Co. be it the field work or the work in the Chemistry Department.83 Where the Labour Court excluded Sunday and other holidays to determine continuous service and held that the daily wagers not entitled to any retrenchment compensation. 25F of the Act and hence allowed the appeal. It was held that it is clear that whatever breaks were given were all artificial breaks and therefore he is entitled to the benefits of Sec. 2005 I LLJ 554 : 2005 (104) FLR 300 : 2005 I LLN 659 : 2005 I CLR 488 : 2005 (2) SCC 183 : 2005 AIR (SC) 660 : 2005 SCC (L&S) 195 (S. The appeal against this order also came to be dismissed. Oil & Natural Gas Corporation Ltd..2J) “A perusal of the evidence adduced by the workman himself shows that he went in search of employment to different places and whenever there was a temporary employment available in different Departments of the appellant-Corporation. Government of Tamil Nadu v.81 All artificial breaks given in service shall be ignored and excluded to compute the period of continuous employment.. Ltd (supra).HC) g) Sundays and holidays in case of daily wager for which no wages paid (P&H. Ltd. 1991 (62) FLR 683 : 1991 LLR 468 (Raj. cannot be taken as a continuous employment for the purpose of section 25F of the Act. We are aware that the judgment of this Court in Indian Cable Co. which upheld the Labour Court’s order and held that the Sunday and other holidays for which no wages paid could not be counted for the purpose of determining continuous service of 240 days.C.HC) .. Para: 14) ¥ 5A. he accepted the employment and worked in these Departments not in one place alone but at different places like Baroda and Mehsana.Sec. the Supreme Court held that the number of days of work put in by the employee in broken periods cannot be taken as continuous employment for the purpose of Sec. Hence. the workman moved High Court. Tamil Nadu Race Course General Employees’ Union & Anr. Labour Commissioner & Anr. Ltd (supra) was rendered in the context of section 25G of the Act.be ignored. 1947. Malkiat Singh v.DB) ¥ 5A.82 Where a daily wage earner worked from time to time for a period exceeding 240 days and during 1982-1984 he worked for 485 days.” (Page: 2009. 25-F of the Industrial Disputes Act. 1997 I CLR 524 (P&H. It has come on record that the Management did try to accommodate the appellant in a permanent job but could not do so because of lack of qualification.HC) ¥ 5A. & Anr v. still we are of the opinion that the law for the purpose of counting the days of work in different Departments controlled by an apex Corporation will be governed by the principles laid down in the judgment of Indian Cable Co. 1979 LIC 136 (Sum) (Mad. 2007 I CLR 110 : 2007 II LLJ 81 : 2007 (112) FLR 787 : 2007 III LLN 761 : 2007 LLR 260 (Cal.86 The services of an employee was terminated but after a month. On reference. cannot be treated as relevant factors. 25B ¥ 5A. & Anr. Labour Court made wrong calculation of actual working days. hence granted reinstatement with full back wages. Para: 12) Note: Also refer to the following case/s Karnal Co.” (Page: 112. The Labour Court after hearing rejected employer’s application for recall and review. Ltd. Tribunal held that workman had rendered continuous service of more than 240 days inclusive of Sundays and Holidays. v.sustained in law. Jikubhai R. also held the order of termination was bad as having not issued charge-sheet.. The Division Bench allowing the appeal setting aside the award and decision of Single Judge remanded the matter to Labour Court to be heard on merits holding that the employee could not have completed 240 days unless the period of service rendered by him due to interim order of the High Court which should not be taken to be a period for determination of continuous service.. It was also held that payment of bonus. he was reappointed on daily wages.DB) Note: Also refer to the following case Panipat Thermal Power Project Station v. Labour Court.HC) “The respondent………. Medical Officer.DB) h) Holidays and Sundays even if paid since the words ‘actually worked’ exclude it (Mad. 25F and came to continue in service by ad-interim order of the High Court. Order cannot be sustained in law. v. Parthasarathi & Anr.DB) ¥ 5A. Balmer Lawrie & Co. On reference. However the employer terminated his service second time after regular appointment was made. Panipat & Anr.” (Page: 111. The Labour Court also committed an error in not granting the review. Saparia. He filed a writ for reinstatement with continuous service for violation of Sec. A. Sugar Mill Ltd.DB) i) Service rendered by workman due to interim orders of the High Court (Guj. First Industrial Tribunal of West Bengal & Ors. Presiding Officer. provident fund scheme. 2007 I CLR 976 (P&H.other benefits.op.” (Page: 113. State of Haryana & Ors. Para: 5) “In my view………. the above facts have material bearing on the merits of the case before it.85 The words “actually worked” were not held to include holidays or even Saturdays and Sundays which were paid holidays and days provided the explanation can be included while calculating 240 days in addition to the actual working days. v. Labour Court gave an ex-parte award in his favour as the employer was absent The employee cleverly suppressed the fact from the Labour Court that he was continuing in service only by virtue of interim orders in his civil application pending against his earlier termination. Para: 2) “While considering……….DB) ¥ 5A. High Court held that unpaid Sundays and Holidays cannot be taken into account while calculating actual working days in a calendar year. 1996 III LLJ (Sum) 64 : 1996 (88) FJR 465 : 1996 (73) FLR 1142 : 1996 II LLN 735 : 1995 LIC 2630 (P&H.HC) .84 The services of a Clerk were terminated on which dispute was raised. v. Management of Standard Motors Products of India Ltd. 2006 (109) FLR 321 : 2006 I CLR 569 (Guj. Primary Health Centre & Anr..for adjudication.2316 Chapter VA – Lay-Off and Retrenchment Sec.. Geetaben Anilkumar Tank. Mani & Ors. v. Single Judge rejected the writ petition filed by employer and Division Bench modified the order of Tribunal so far as back wages only.1990.u/A.88 The Tribunal on appreciation of evidence clearly found that workman (daily rated employee) has completely failed to prove that he ever worked for 240 days in any calendar year.reinstated in service.1989.HC) “……….1989. 2002 LIC 301 (Guj.Sec. Para: 5) l) The period of apprenticeship (Guj. S.. State Spinning Mills Co. 2005 (105) FLR 1067 : 2005 II LLN 952 : 2005 LIC 2598 : 2005 II CLR 3 : 2005 LLR 737 : 2005 SCC (L&S) 609 : 2005 AIR (SC) 2179 : 2005 (5) SCC 100 (S. He was terminated for not reporting for duty. the appointment was also for a specific period which came to an end on 28. 1997 (75) FLR 237 : 1997 I LLN 774 (All.HC) ¥ 5A.” (Page: 39. 30.1989 to 28.9.P.I.9. 226. Allahabad & Anr. which set aside all orders of lower Courts because no evidence was produced by workman to prove his 240 days service and initial burden of proof was on workman to prove 240 days service. then only workman is to be employed for doing work otherwise not. 25B Continuous service 2317 j) Training period as an apprentice (All. Manager R. Lies on the employee (S.9.1990 and was assigned ‘census work’ from 1.B.1990.HC) k) Period of continuous absence for three years (Raj. on completion of apprenticeship he was assigned work of typing from 30..1988 to 30.1990 to 31.3J) F 5A. High Court remanded the matter to Labour Court for fresh adjudication because Labour Court’s calculation regarding 240 days service was not appeared to be proper and sound.87 The workman was appointed as an apprentice. Bhura Ram v. Telephone & Telegraphs & Ors. On his termination. Labour Court. U. Rajkot Municipal Corporation v. 2001 (88) FLR 38 (Raj. Being aggrieved.3J) .C.8.8. The view taken by the Tribunal has been confirmed by High Court which observed that first of all he was not a regular employee.It is clear that the………. Commissioner. On workman’s application. employer moved Supreme Court.The appointment letter stated that posts will be abolished on the work of census being over and later on extended the period stating workman may continue on ad hoc basis till March 1991 as census work is likely to continue beyond 31. Para: 3) “This submission has………. Moreover. (No. he moved Tribunal. Labour Court directed his reinstatement holding that he completed 240 days of service by including the period of training. S.HC) ¥ 5A. Employer challenged the order contending that the workman had worked for 204 days only and training period should be excluded.2.HC) c) Burden of proof as to 240 days of continuous service 1. Labour Court awarded reinstatement with 40% back wages holding that workman has completed 240 days.1990. On the above said grounds Labour Court’s award was quashed. which ordered his reinstatement with back wages as Sec.9.C.3. Bangalore v.O. Further the person was suffering from arthritis. High Court held while calculating 240 days of service. 240 days has to be calculated only from the period of appointment i.D. continuously remaining absent for a period of 3 years.. 25F was not complied with.e. and this type of medical leave cannot be included in calculating 240 day of service Hence he can never be reinstated in service. Labour Court erred in granting reinstatement.HC) ¥ 5A.2.” (Page: 40.II) Ltd.1990.90 The workman was engaged as Ticca Mazdoor and his service was not permanent in nature. apprenticeship period should not be considered. and the very concept of daily wage is that if there is work. Since typing work was over workman was terminated by 21.9.89 Workman was appointed as an apprentice for the period 27. S. it is contended: “(3)For that the High Court ought to have held that the disengagement of the Ticca Mazdoors (Respondents). it was obligatory on the part of the Respondents to add new evidence. However. A party to the lis. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. therefore not correct to contend that the plea raised by the Respondents herein that they have worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. On this ground alone. WITH State of Karnataka & Anr.C. no onus of proof lies on employer to prove that he has not worked for 240 days.2J) “………. Para: 3) . we agree with the opinion of the Tribunal that the plea of abandonment of service by the Respondents in the facts and circumstances of the case was wholly misconceived. we cannot accept that the Appellant had abandoned such a plea. the award is liable to be set aside………. The Division Bench does not say so. Range Forest Officer v. did not involve any retrenchment and as such there was no question of reinstatement of Respondents will full backwages from 23. 2002 AIR (SC) 1147 : 2002 I LLJ 1053 : 2002 (100) FJR 397 : 2002 (93) FLR 179 : 2002 (94) FLR 622 : 2002 II LLN 391 : 2002 LLR 339 : 2002 LIC 987 : 2002 SCC (L&S) 367 : 2002 (3) SCC 25 (S. Para: 59) “The contention of Mr. Such a contention has been raised only on the basis of a statement made by the Respondents in the Counter-affidavit wherein the reference had been made to one order of the Division Bench asking the parties to make endeavour for settlement. S. T. took an oath to state that they had worked for 240 days.” (Page: 1148. in fact. thus. Para: 60) Note: As regards the question on whom lies the burden to prove 240 days of service. The Respondents contend that the order of the Division Bench is virtually a consent order. No settlement admittedly had been arrived at. Only by reason of non-response to such letters. T.” (Page: 1081. Hadimani. No workman. It any event the contention of the Respondents having been denied and disputed. for the reasons stated in the impugned judgment. Phadke raised before us that the order passed by the Division Bench was a consent order is unacceptable. The impugned order of the Division Bench.7. cannot be deprived of his right of appeal.91 Claimant workman unless proves in evidence that he has worked for 240 days in preceding year to his termination. Para: 18) “We have noticed hereinbefore that the Appellant herein raised a specific plea denying or disputing the claim of the Respondents that they had completed 240 days of work. The High Court has passed the judgment upon consideration of the rival contentions raised at the Bar. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had. v. the three Judge Bench of the Apex Court in the above case and other cases referred here settle as of to-day the legal position on the question as to on whom the burden to prove 240 days of service lies as of to-day F 5A.In our opinion the Tribunal was not right in placing the onus on the Management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. the contention of Mr. It is. 1988 and 11th April. who were daily wage casual workers. Similarly. Such a plea having been raised both before the Industrial Tribunal as also before the High Court.” (Page: 1073. The Evidence Act does not say so.2318 Chapter VA – Lay-Off and Retrenchment Sec. but the same is of no effect as by reason thereof. the contents thereof would not stand admitted. It arrived at specific findings on the issues framed by it. worked for 240 days in a year. by no stretch of imagination. in our opinion. can be said to have been passed with consent of the parties. the allegations made therein cannot be said to have been proved particularly in view of the fact that the contents thereof were not proved by any witness. It has. 25B “Pleadings are no substitute for proof. in absence of a statutory interdict. No document in support of the said plea was produced. It was the case of the claimant that he had so worked but this claim was denied by the Appellant. Phadke that they have abandoned the said plea cannot be accepted. Hadimani. Even in this Special Leave Petition. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. 1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to. The contents raised in the letters of the Union dated 30th May. affirmed the findings of the Industrial Tribunal as also the learned Single Judge.” (Page: 1081.1993. ” (Page: 770. Executive Engineer MANU/SC/1607/2005. Drawing of adverse inference ultimately would depend thereafter on facts of each case. Para: 13) “Apart from the aforementioned error of law. Thus in most cases.2J) “………. 2006 II LLJ 768 : 2006 (110) FLR 198 : 2006 III LLN 806 : 2006 II CLR 643 : 2006 LLR 662 : 2006 (5) SCC 173 : 2006 SCC (L&S) 967 (S. The Asst. v. Supreme Court held that burden of proof to establish completion of 240 days of work within a period of 12 months preceding the termination as well as the burden of proof that he was not gainfully employed after the termination was on the workman and not an the management. By the impugned judgment. the workman had not discharged the initial onus of proving that he had worked for more than 240 days with the Jala Nigam and therefore the award directing his reinstatement was illegal. There will also be no receipt or proof of payment. The Court emphasized the repeated view taken that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. Surinder Kumar. Only because relief by way of reinstatement with full back wages would be lawful. Municipal Council. The writ petition was allowed and the award of the Labour Court set aside. Para: 12) “Equally well settled is the principle that the burden of proof. The Division Bench however allowed the appeal of the workman and restored the award setting aside the judgment of Single Judge. Krishna Bhagya Jala Nigam Ltd. we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. Yellatti v. reinstated him with full back-wages. there will be no letter of appointment or termination. By an award. In cases of termination of services of daily waged earner. 25B Continuous service 2319 F 5A. The burden was on the workman………. High Court upheld Labour Court’s order. a Labour Court was required to consider the facts of each case therefor.” (Page: 770.C. the attendance register etc. 2006 IV LLN 208 : 2006 (110) FLR 1212 : 2006 LLR 1080 : 2007 (1) SCC (L&S) 679 (S. The Supreme Court setting aside the award of Labour Court and the judgment of Division Bench held that the High Court proceeded on the basis as if the period of employment of workman has to be established by the employer. This burden is discharged only upon the workman stepping in the witness box. having regard to the principles analogus to Section 106 of the Evidence Act that he was not gainfully employed. the Labour Court held that the termination was illegal for non-compliance of Sec. Para: 15) F 5A.M. 25F of the Act. it set aside the termination.C. However.” (Page: 209.2J) “The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination. the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11A of the said Act being discretionary in nature. the letter of appointment or termination. both oral and documentary.Sec. the workman (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period. it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. the writ appeal was allowed. On appeal. 25F was not followed and employer did not produce attendance register to prove that the workman did not complete 240 days service. the wage register. was on the management. The Single Judge set aside the award on the ground that the workman had not discharged the initial onus of proving that he had worked for more than 240 days. It is against this order of the learned single Judge that a writ appeal was filed before the Division Bench. the decisions referred to above were noted and it was held as follows: Analyzing the above decisions of this Court. Sujanpur v. This burden is discharged upon the workman adducing cogent evidence. if any.93 The services of a daily wage employee was terminated upon reference of the dispute. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a . Mohammed Rafi. applying general principles and on reading the aforestated judgments.92 The workman was reinstated by Labour Court as Sec.According to the learned single Judge. was on the workman.” (Page: 770. Para: 2) “In R. in our considered opinion. it would not mean that the same would be granted automatically. 2006 AIR SCW 3574. Para: 6) “The above position was again re-iterated in ONGC Ltd. Para: 12) . This burden is discharged upon the workman adducing cogent evidence. This burden is discharged only upon the workman stepping in the witness box. Above being the position. the decisions referred to above were noted and it was held as follows: Analyzing the above decisions of this Court. v. 25F on the basis of the zerox copies of attendance and salary register produced by the employer holding that the burden of proof lies on the employer. Gangaben Laljibhai & Ors. there will be no letter of appointment or termination. Shyamal Chandra Bhowmik MANU/SC/2039/2005 and Chief Engineer. Sham Lal. that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. namely.M. In cases of termination of services of daily waged earner. The Asst. the workman (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period. Lastly.” (Page: 323. Surendranagar Distt. 2006 III LLJ 320 : 2006 (110) FLR 548 : 2006 LLR 887 : 2006 SCC (L&S) 1623 (S. the letter of appointment or termination. Executive Engineer MANU/SC/1607/2005. Panchayat & Anr. we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. Rejecting the orders of the Labour Court and High Court. The respondents have not adduced any evidence except making oral statement that they had worked for more than 240 days.2320 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 323. Yellatti v. and Anr. Drawing of adverse inference ultimately would depend thereafter on facts of each case. v. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. Lastly. Para: 7) F 5A. There will also be no receipt or proof of payment. the above judgments lay down the basic principle.” (Page: 211. This exercise will depend upon facts of each case. the award and judgement of High Court are set aside. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year.2J) “In a recent judgment in R. The Labour Court set aside the termination as violative Sec..” (Page: 323.” (Page: 211. if any. Ranjit Sagar Dam and Anr. Thus in most cases. v.94 The services of the employees were terminated by oral intimation on the ground that they were daily wagers and there was no work. Para: 9) “It was held in all these cases that the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer. the Apex Court held that the burden of proof lies on the employee that he worked for 240 days for the preceding one year and he must adduce evidence apart from examining himself to prove the said factum and since the workmen have not adduced any evidence except making oral statements that they worked for more than 240 days. namely. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. Para: 11) “In the instant case the Labour Court and the High Court also lost sight of the fact that the zerox copies of the appellant’s attendance and salary registers were produced. impugned order of the High Court cannot be maintained and is set aside. both oral and documentary. However. 25B given year. The employees challenged it as illegal since they claimed to have worked for 240 days in each of the year’s right from the beginning. This exercise will depend upon facts of each case. the attendance register etc. the above judgments lay down the basic principle. the wage register. applying general principles and on reading the aforestated judgments.C. worked for 240 days in a year.C. Bharat Coking Coal Ltd. as noticed hereinbefore in this judgment more fully.” (Page: 720.2J) “In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. Sham Lal. P. It was the case of the claimant that he had so worked but this claim was denied by the appellant.96 The burden to prove that the employee has completed 240 of days service is on the workman and having failed to do so his termination without compliance of Sec.In the face………. v. 2006 III LLJ 326 : 2006 (110) FLR 552 : 2006 III LLN 751 : 2006 LIC 3048 : 2006 LLR 881 : 2006 SCC (L&S) 1617 : 2006 AIR (SC) 2682 (S. Ranjit Sagar Dam & Anr.11.to be quashed……….1990.” (Page: 1114/1115.Sec. Kuya Colliery of M/s. has thus committed a manifest error in reversing the order of the Labour Court. The employer contended that he did not complete 240 days immediately preceding termination. M/s. set aside the order of the High Court.The High Court. The High Court unfortunately has not dealt with the matter in that perspective. hence in absence thereof Tribunal has erroneously held it as retrenchment.In our view………. It is a finding of fact which the High Court cannot possibly overturn without assailing the order of the Labour Court as otherwise perverse. Para: 2) F 5A.” (Page: 719.the year 1976……….” (Page: 1115. Para: 3) . The Labour Court held that the termination was illegal holding that the burden of proof that the employee did not work for 240 days was on the employer which was confirmed by the High Court. Dhanbad & Ors.O. Para: 2) “………. Para: 14) “………. On this ground alone.97 The burden of proof is on the workman to establish before the Court that he has worked for the required number of days to attract the section. The Apex Court holding that the burden of proof that he worked for 240 days lies on the employee. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. And it is on this score Mr. v. hence reversal of the order of Labour Court by the High Court was held to be manifest error and was set aside.the muster rolls………. 2002 III LLJ 1111 : 2002 (95) FLR 949 : 2002 IV LLN 1176 : 2002 LIC 3563 : 2002 III CLR 943 : 2003 LLR 113 : 2003 SCC (L&S) 13 : 2003 AIR (SC) 38 : 2002 (8) SCC 400 (S.The requirement of the Statute of 240 days cannot be disputed and it is for the employee concerned to prove that he has in fact completed 240 days in the last preceding 12 months’ period. Essen Deinki v. As noticed hereinbefore.” (Page: 327/328. 25B Continuous service 2321 F 5A. it has been the definite case of the workman concerned whilst at the stage of evidence that he has not worked for 240 days. Employers in Relation to the Management. Ranjit Kumar has been rather emphatic that the High Court has thus fallen into a grave error in reversing the order of the Labour Court. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. Para: 16) ¥ 5A.2J) “………. Chief Engineer.. in fact. 2003 (98) FLR 718 : 2004 LIC 947 : 2003 LLR 954 (Jhar.DB) “We find that………. in our view. the award is liable to be set aside.C. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or tribunal to come to the conclusion that a workman had. 25F was valid. Central Government Industrial Tribunal 2. Rajiv Kumar.95 The services of the employee was terminated on 13. Kalyan Telecom District.HC) i) When the workman discharges original burden a) When employee proved 240 days service in a period of 12 months. v. Umapati Chauhan of Mumbai v.DB) ¥ 5A. 25B(1)..” (Page: 314. Ravichandran v. Union Carbide India Ltd.. State of West Bangal & Ors. 2001 II LLJ 282 : 2001 (89) FLR 181 : 2001 III LLN 1021 : 2001 I CLR 781 : 2001 LLR 431 (Cal. General Manager.under S... Shakuntala Pravinbhai Saraiya v.T. Ornate Multi-Model Carriers Pvt. State of Bihar & Ors. Kanta (Deceased) through LRS. She contested the termination in a writ petition before High Court alleging that the termination was illegal in violation of Sec. (Now known as Eveready Industries Ltd.2J) F 5A. Single Judge set aside Labour Court’s order since workman did not adduce any evidence before Labour Court to prove his 240 days service and Labour Court wrongly shifted the burden on employer to prove that workman did not work for 240 days. Labour Court’s order upheld by Division Bench holding that once the workman fails to lead any cogent evidence to prove the continuous service then management cannot be burdened with any liability to prove the same..DB) ¥ 5A. 25B ¥ 5A. 25F of the Act. 2003 (103) FJR 810 : 2003 III CLR 307 (Bom. 25-B has further to show that he has worked during all the period he has been in the service of the employer for 240 days in the year……….HC) Bharatiya Dak Tar Mazdoor Manch (through its President) v.DB) Note: Also refer o the following case N. On termination.) & Ors. Nagpur & Anr.99 The workman was appointed against leave vacancy.101 When a company was closed down u/s. Chandigarh. Ramakrishna Ramnath v. & Anr. & Ors.. 25F was not complied with Labour Court refused to grant any relief because workman failed to prove that he had worked for 240 days in the year preceding his termination.S. 2006 I LLJ 573 : 2005 LLR 1110 (Del.C..2J) “……….HC) Daji Dada Pawar & Ors.. 25F was not followed.100 The services of workman was terminated. Management of Thanthai Periyar Transport Corpn.HC) Goutam Chatterjee v. Divisional Forest Officer. Smt. 2003 (99) FLR 457 : 2003 III LLN 612 (Bom. 2001 (91) FLR 824 (Pat. & Anr. Labour Court. no further proof of 240 days service in each of the 8 years necessary (S. 2006 (110) FLR 1060 : 2006 LLR 1012 : 2006 II CLR 1082 (Bom. he moved Labour Court which reinstated him as Sec. Smt. 2003 I LLJ 1015 : 2003 (102) FJR 53 : 2003 I LLN 415 : 2003 LLR 380 (Mad. the Court held that the provisions of Sec. 2006 II LLJ 486 : 2005 IV LLN 725 (P&H. MTNL. U. 25B does not further impose any burden on the workman to prove that she had also worked for 240 days in each of the 8 years she was in service of the company. Babu Ram v. 25FFF and where the workman had actually discharged her burden to prove that she had worked for not less than 240 days during a period of 12 calendar months immediately preceding the retrenchment. Ltd.98 Workman challenged his termination since Sec. Para: 2) . The employer cannot be held to have deliberately withheld the relevant documents sought by the employee due to transfer of his company. 1970 II LLJ 306 : 1972 (41) FJR 209 : 1970 (21) FLR 159 : 1973 LIC 87 : 1970 (3) SCC 67 (S. Pramod Kumar v. The High Court dismissing the petition upheld the termination and held that she miserably failed to discharge her burden of proof that she worked for 240 days. The Presiding Officer.. having worked continuously for 240 days in terms of Sec.2322 Chapter VA – Lay-Off and Retrenchment Sec.HC) Note: Also refer to the following case/s Burden to prove that whether workman has completed 240 days is on the workman.C. HC) ¥ 5A.. the defence of the management was that although Ex. He has produced cogent evidence in support of his case. Hence. therefore.W1). we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1 was issued by the former Asstt. Para: 10) c) By producing certificate of employment (S..HC) “It is understandable………. a case where the allegations of the workman are founded merely on an affidavit. the management was duty bound to produce before the Labour Court the nominal muster rolls for the relevant period. which indicated that the workmen had worked for 43 days during the period 21-1-1994 to 20-2-1994 and 21-3-1994 to 20-4-1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. Para: 18) .3J) “Now applying the above decision to the facts of the present case.Sec.102 It is clear that the management by producing earlier records for 1989-1993 and not producing records for the period 1994-1995 due to efflux of time had wantonly evaded to produce records. 2005 I LLJ 200 : 2005 (104) FLR 434 : 2004 LLR 1157 (AP.M. In the circumstances.M1.M3.W1). Supreme Court set aside Division Bench’s order and upheld Single Judge’s order because workman had entered witness box and testified that he rendered 240 days service and no reason given by Division Bench while discarding certificate of employment produced by workman. Ex. This period is the period borne out by the certificate (Ex. Executive Engineer. The Labour Court has rightly held that there is nothing to disbelieve the certificate (Ex.M2 and Ex. Single Judge upheld the award but Division Bench reversed the award holding that the letter on the basis of which Labour Court granted the relief was fabricated and 240 days service was not proved by workman. Hyderabad v. Athani and Ex.3J) F 5A. Dena Bank Employees Union. He had called upon the management to produce the nominal muster rolls for the period commencing from 22-11-1988 to 20-6-1994. The workman was working in SD-1. On appeal. R. Labour Court awarded reinstatement with 50% back wages. Athani-591304. the award given by the Tribunal that the workman failed to produce satisfactory evidence to the effect that they worked for 240 days was set aside and the matter remanded back to the Tribunal for adjudication afresh. The management produced five nominal muster rolls (NMRs). we are of the view that the Division Bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the Labour Court and confirmed by the learned single Judge vide order dated 7-6-2000 in writ petition No. This is not. In the present case.C. Industrial Tribunal-I A.103 The daily wager was terminated without complying with Sec 25F. The workman had in fact discharged his earlier burden by adducing evidence and therefore the burden now shifted to the management which has the custody of relevant documents to prove that the workmen had not worked for 240 days continuously.M5.17636 of 2000. The Asst.” (Page: 449. the workman had not worked as a daily wager on all days during that period.” (Page: 204. 25B Continuous service 2323 b) By adducing records in support of service of 240 days (AP. In the present case. We are not placing this judgment on the shifting of the burden. we find that the workman herein had stepped in the witness box. did not even relate to the concerned period. out of which 3 NMRs. In the circumstances.P. Executive Engineer The evidence in rebuttal from the side of the management needs to be noticed.W1) issued by the former Asstt. If so.1.C. Ex. The relevant NMRs produced by the management were Ex. Hipparagi Dam Construction Division No. Executive Engineer. the Division Bench of the High Court had erred in interfering with the concurrent findings of fact. We are not placing this case on drawing of adverse inference.continuously for 240 days. 2006 I LLJ 442 : 2006 (108) FLR 213 : 2006 I LLN 7 : 2006 LIC 143 : 2005 III CLR 1028 : 2006 LLR 85 : 2006 SCC (L&S) 1 : 2006 (1) SCC 106 : 2006 AIR (SC) 355 (S. The High Court in its impugned judgment has not given reasons for discarding the said certificate. Yellatti v. particularly when it was summoned to do so.W1 refers to the period 22-11-1988 to 20-6-1994.M4 and Ex. Hyderabad & Anr. even if it is framed as an additional issue. Para: 5) “The above two………. Para: 3) “……….appellant company.single judge.” (Page: 543.106 Labour Court can draw inference of continuous employment of the workman and grant reinstatement in view of the refusal of the employer to provide records requested by the workmen and evasive statements of witnesses.DB) “……….. v.DB) ¥ 5A.104 Applying the doctrine of ‘Non est factum’ and ‘res ipsa loquitor’ in case of illiterate sweeper woman who was terminated. Chandramma v. the burden of proof that she had not worked for 240 days lies on employer. Labour Court-I.” (Page: 955.DB) ¥ 5A.Act without help. Para: 4) “………. State of Rajasthan v. Ltd.. Is on the employer i) As per the doctrine of ‘Non est factum’ and ‘res ipsa loquitor’ (AP.HC) d) Inference as to service of 240 days 1.DB) ¥ 5A. When can be drawn i) When employer refused to provide records and witnesses made evasive statements (Raj.” (Page: 539.” (Page: 542. Pankajgiri Javergiri.res ipsa loquito………. 2003 IV LLN 954 : 2004 I LLJ 752 : 2004 LLR 157 (Raj.non est factum………. 1997 (77) FLR 538 : 1997 II LLN 685 : 1997 LLR 811 (AP.2324 Chapter VA – Lay-Off and Retrenchment Sec. 25B 2.DB) “In view of……….105 Burden to prove that workmen worked for a shorter period will arise only subsequent to the discharge of burden of proof by workman about his employment for minimum period of 240 days. Para: 2) Note: The Apex Court in recent judgments (supra) has fixed the burden on the workman ii) Burden of proof on the employer would arise subsequently after workman discharging his burden (Bom.shorter period. Sher Singh & Anr. Jaiswal & Ors.” (Page: 719.” (Page: 954. Para: 8) Note: Also refer to the following case Keshod Nagar Palika v.another principle……….even though……….Courts in India……….illiterate women………. 2000 (85) FLR 488 : 2000 III LLN 724 : 2000 I LLR 416 (Guj.The learned single………. Para: 3) “In the totality………. Indian Silk Manufacturing Company Pvt. Para: 4) ..” (Page: 542. Gamprasad R.DB) “Thus it………. Hyderabad & Ors. K.to be reinstated. 1997 IV LLN 718 : 1997 II CLR 468 : 1997 LLR 1126 (Bom. State of Punjab v. 2005 LIC 3225 (Bom. However.DB) ¥ 5A. Also the Labour Court’s finding that workman worked for 240 days is just and proper. the High Court held that there was no case for interference with the decision of the Labour Court. Neelkanth Kawadooji Gire & Anr. Presiding Officer. Doongar. praying to be reinstated. Kanpur & Anr.107 The adverse inference drawn against the employer with regard to tenure of service of 240 days in the absence of production of muster rolls was held valid. which was based on working for 240 days. Principal v. Held that such an evasive reply on the part of the employer amounts to admission of facts. 2001 IV LLN 1156 (P&H.appointed. Tarsen Singh & Anr. although mandated u/s.111 The Labour Court can come to the conclusion that the workman worked for 240 days by taking into account the period for which the muster rolls were not produced by the employer since it was for the workman to lead evidence by producing salary receipt etc. Central Government Industrial Tribunal-cum-Labour Court. since the bank failed to produce the attendance register of the employee the Labour Court drew adverse inference that the employee had worked continuously for a period of 240 days preceding to his termination. Executive Engineer..109 An employee appointed as a daily wager in a Bank worked from time to time in its different Branches. The employee had submitted before the Labour Court that he was working for a period of ten years but was employed intermittently.HC) Maharashtra State Electricity Board v.” (Page: 1157. When cannot be drawn i) When there is no evidence on either side except written statements (S.HC) ¥ 5A.2J) F 5A.C. regarding continuous service of the workman. 25D of the Act. Natvarlal Maganlal Trivedi. Para: 5) iii) When employer failed to produce attendance register/muster roll (P&H.Sec. PWD. The employee was granted only compensation instead of reinstatement. 2005 LIC 2806 (All.DB) ¥ 5A..DB) “So far as………. employer did not specifically deny that workman worked for 240 days. 2006 III CLR 503 (Guj.HC) 2. 2003 LIC 1793 (Guj. Amritsar v.110 In a claim by workman.. Prakash Laxmidas Gujjar. On writ petition filed by the employee.DB) Note: Also refer to the following case Shihor Nagar Palika through Chief Officer v. it is held that the Tribunal can draw adverse inference.274.HC) iv) When employer fails to specifically deny workman’s claim (Raj.HC) ¥ 5A. 25B Continuous service 2325 ii) When employer failed to produce muster roll (P&H. 2007 (112) FLR 1188 : 2007 LLR 509 (P&H.” (Page: 1156.108 Where the employer withheld the muster rolls and attendance record pertaining to the workman and also payment register of casual workers.HC) Executive Engineer. Para: 3) “Regarding………. Om Prakash & Anr. 1999 LIC 97 (Raj. which he failed to do except filing an affidavit which being his own statement cannot be a sufficient evidence and hence matter was remanded to Labour Court for determining the question of having worked for 240 days . Bari doad Drainage Division.. against the employer.. College. Rajkot v. Puran Singh & Anr. Pramod Kumar v. He has filed an affidavit. as it was in possession of the best evidence and.C.1991. thus.2J) “The basic fact of the matter is not much in dispute.2J) “Though specific direction was given to the employer to produce the muster roll for the period from 17.1991 to 12.” (Page: 251. he having not completed 240 days of working in a year was not entitled to any relief. This claim was denied by the appellant.2J) F 5A. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed. Municipal Corporation.1. Para: 3) “The tribunal upon considering all the materials placed on records by the parties to the dispute came to the conclusion that the total number of working days of the workman was 184 days and. The respondent herein allegedly worked with the appellant herein from 5. He allegedly further worked from 1.” (Page: 833. State of Rajasthan & Anr.” (Page: 833.C. was of the view that as the appellant herein did not produce the relevant documents before the Industrial Tribunal. Accordingly it was held that the sanctioned days and the days covered by the muster roll. remit the matter to the Labour Court to consider the evidence and come to a definite conclusion as to whether the workman had worked for 240 days during the period claimed………. an adverse inference should be drawn against it.12.” (Page: 250/251. Old Zone II.” (Page: 834. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year………. Para: 7) ii) No adverse inference on employer’s failure to produce relevant muster rolls when the burden of proof is on workman (S.Only on that basis the writ petition was allowed……….2326 Chapter VA – Lay-Off and Retrenchment Sec. it was not necessary for the first respondent herein to call upon the appellant to do so………. Faridabad v. which was not produced.11. however. thus. His services were terminated on or about 17.” (Page: 251. 25B in the face of the fact that even if the period mentioned in the affidavit and days for non production of muster roll are taken into account the requirement prima facie does not appear to be fulfilled. Para: 6) . indicating the terms and conditions and his remuneration etc. Para: 6) “The High Court. taken together indicated that the workman had worked for more than 240 days.112 Presumption as to adverse inference for non-production of evidence is optional and shall take into account the background of the facts involved in lis and hence when the burden of proof is on the workman to prove that he worked for 240 days and he failed to adduce any evidence such as offer of appointment. The learned tribunal noticed that neither the management nor the workman cared to produce the muster rolls with effect from August. the same was not produced. Mills Ltd. therefore. 2004 III LLJ 832 : 2004 (107) FJR 264 : 2004 (103) FLR 192 : 2004 IV LLN 845 : 2004 SCC (L&S) 1055 : 2004 (8) SCC 161 (S.5. 1994 which was their joint liability. It was further observed that the workman even did not summon the same although the management had not produced the muster rolls. Rajasthan State Ganganagar S.C. 2004 (107) FJR 248 : 2004 (103) FLR 187 : 2004 IV LLN 785 : 2004 III CLR 543 : 2004 LLR 1022 : 2004 SCC (L&S) 1062 : 2004 (8) SCC 195 (S. though not muster rolls which were in the custody of the employer or examine any witness in his support. v. Para: 1) “It was the case of the workman that he had worked for more than 240 days in the concerned year.1994 as Tubewell Operator. Siri Niwas. Para: 5) “We..5. Even if that period is taken into account with the period as stated in the affidavit filed by the employer the requirement prima facie does not appear to be fulfilled……….1994 to 31.1995 whereupon an industrial dispute was raised.No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. an adverse inference cannot be drawn for mere non-production of muster rolls by the employer and hence the order of the High Court granting reinstatement and awarding 75% back wages on the basis of adverse inference drawn was held unsustainable.1995 at Sector 37.1995 to 16..6.8. Accordingly direction was given to reinstate the workman and for paying 30% of the back wages. therefore. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant herein including the muster rolls. the employment of the respondents was terminated and whenever a similar occasion arose for digging pits they were re-employed on daily wages.2J) “Facts necessary for the disposal of these appeals are as follows : 2. It is the case of the appellant that on completion of the said project of drawing electric lines from point to point. The Industrial Court noticing the fact that though the application for production of the Muster Rolls was for the years 1987 to 1992. Para: 3) “……. it rejected the applications of the respondents. the respondents herein filed applications………. proceeded to pass the impugned judgment only on the basis of the materials relied on by the parties before the tribunal. they cannot claim permanency nor could they term their non-employment as a retrenchment. the appellant had only produced the Muster Rolls for the year ending 1990.” (Page: 247. M. thus. Para: 18) F 5A. In the instant case.P.” (Page: 253. in our opinion committed a manifest error in setting aside the award of the tribunal only on the basis of adverse inference drawn against the appellant for not producing the muster rolls. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent.” (Page: 247. the respondents preferred an appeal before the Industrial Court at Bhopal Bench. an adverse inference against the appellant was drawn .The Labour Court after examining the entries in the Muster Rolls came to the conclusion that the respondents-applicants had not worked for 240 days continuously in any given year.” (Page: 254.” (Page: 252. the Industrial Tribunal did not draw any adverse inference against the appellant.113 The workmen made application for production of muster rolls for the period 1987-92 to prove their continuous employment for 240 days and the employer produced muster rolls for the period 1987-90 and when the workmen were not able to establish that they worked continuously for 240 days during the period 87-90 it was held not proper for the Industrial Court and High Court to draw an adverse inference against the employer to the effect that the workmen were employed for 240 days continuously during the period 1990-92 for which the muster rolls were not produced especially in the absence of specific pleading by them and such adverse inference was held to be erroneous and hence the orders of the Industrial Court and High Court being based on the said erroneous adverse inference were held not sustainable and set aside especially because the factum of the burden rests not on the employer but on the workmen.on the ground that they have completed 240 working days in a year and their discontinuation of service amounted to retrenchment without following the legal requirements. 2004 (8) SCC 246 : 2004 IV LLN 839 : 2004 LIC 4041 : 2004 SCC (L&S) 1092 (S. hence.1 The respondents herein were engaged by the appellant-Board on daily wages for the purpose of digging pits for erecting electric poles. Para: 4) “Being aggrieved by the said rejection of their application.Sec. The High Court.” (Page: 247/248. On the said basis. Para: 17) “For the foregoing reasons the impugned judgments are not sustainable in law and they are set aside accordingly. Para: 12) “………. Para: 11) “……….As noticed hereinbefore.before the Labour Court.Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. Electricity Board v. From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of section 25B of the Industrial Disputes Act. The presumption. other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. the burden of proof was on the workman. Para: 2) “Being aggrieved by the said non employment. Hariram.The High Court.” (Page: 254. It is improbable that a person working in a local authority would not be in possession of any documentary evidence to support his claim………..C. Bhopal seeking permanent employment …. The said project jobs have come to an end in 1991 and respondents were never re-employed by the Board. Hence their employment was not permanent in nature nor in any one of the cases the respondents had completed 240 days of continuous work in any given year. Therefore. is not obligatory because notwithstanding the intentional non-production. 25B Continuous service 2327 “………. Para: 6) .” (Page: 251. is wholly erroneous on the part of the Industrial Court and the High Court. Para: 1) “Tribunal observed………. Para: 8) “……….in perpetuity. the Industrial Court or the High Court could not have drawn an adverse inference for the non-production of the Muster Rolls for the years 1990 to 1992 in the absence of specific pleading by the respondents-applicants that atleast during that period they had worked for 240 days continuously in a given year. it confined the back wages to 50% only and with the above modification reinstatement of the respondents was ordered. 2007 (112) FLR 984 : 2007 LLR 76 (Del. Para: 5) “However.” (Page: 985. The application calling for the production of the documents was for the years 1987 to 1992. Krishna Pal. Para: 7) “In these appeals. Para: 3) “In this case………. Municipal Corporation of Delhi v. The appellant.” (Page: 248. Para: 13) iii) When workman engaged is a daily wager and dispute raised after two years (Del. In such a factual background. Para: 10) “For the reasons stated above. as a matter of fact.has worked for 240 days.” (Page: 985.Therefore. cannot claim either permanency or regularisation since there is no such permanent post to which he could stake his claim nor could he claim the benefit of completion of 240 days……….It is an accepted finding of the Courts below that the employment of the respondents have been discontinuous and intermittent during the period from 1982 till their employment was discontinued………. As stated above. between the period 1987 to 1990. learned counsel appearing on behalf of the appellant-Board contended that the Courts below could not have drawn any adverse inference against the Board lor not having produced the Muster Rolls for the year 1990-1992………. as stated herein above. We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the applicants-respondents.114 Mali/ Beldar was employed as daily wager and worked as and when work was available. employment of people in that local area for the limited job cannot be construed as an employment for a continuous and regular work of the Board………. proceeded to grant relief. Court should not encourage back door entry. The order of Labour Court was perverse liable to be set aside.2328 Chapter VA – Lay-Off and Retrenchment Sec. hence. Considering these facts in our view drawing of an adverse inference for the non-production of the Muster Rolls for the years 1991-92. these appeals succeed. The impugned orders of the High Court as well as the Industrial Court are set aside and that of the Labour Court is restored. On being challenged.in following terms……….HC) ¥ 5A. He raised dispute on his disengagement. till end of the year 1990 the respondents have not been able to establish the case of continuous work for 240 days.This clearly shows the fact that the employment of the respondent was on a job required basis and was not for any continuous services required by the Board. Tribunal directed reinstatement drawing adverse inference on failure of employer to produce muster roll holding that the workman completed 240 days but denied back wages as dispute was raised after two years.” (Page: 248. High Court held that as dispute was raised after two years employer was not supposed to retain muster rolls of employee who was engaged from time to time in perpetuity. in our opinion.that the respondents whose particulars are referred to herein above or the other respondents for that matter have worked for 240 days.” (Page: 986. while considering the case of grant of back wages both the Industrial Court as well as the High Court came to the conclusion that the respondents had not worked continuously at any given point of time and were not engaged on all working days and their employment was punctuated by short periods when they had not been engaged. 25B and solely based on the said adverse inference it accepted the case of the respondents that they had worked for 240 days continuously in a given year.HC) “Briefly the facts……….” (Page: 249/250. Hence. therefore.” (Page: 248. Taking both the references together Labour Court awarded regularization and reinstatement of the workmen on the basis of workmen’s 240 days service. 2004 II LLN 904 : 2004 I LLJ 445 : 2004 (105) FJR 1112 (Raj.Bank did not……….” (Page: 640. 25F. Jhunjhunu & Anr.e. Before High Court employer contended that most of the workmen did not complete 240 days and workmen could not be absorbed in absence of vacancy. Grindlays Bank……….HC) ¥ 5A.be set aside.” (Page: 905. v. Para: 7) “………. and attendance registers (Raj.Mr. v. Para: 13) .” (Page: 632.Constitution of India.Z..115 The workman was terminated.A. Para: 6) “After having………. Labour Court awarded reinstatement with 50% back wages as workman had worked for more than 240 days and employer did not follow Sec. Para: 4) “In response to………. Pala Ram & Anr. Two references were made i.HC) “Petitioner has challenged………. the………. Para: 10) “Mr. Para: 3) “Sri Manish Bhandari……….having no merits. Para: 8) ii) Attendance register and recruitment rules (Bom.Sec.” (Page: 638. Para: 8) “Mr.time to time……….Moreover. sought………. What can be i) Log sheet. employer terminated 29 workmen. Para: 1) “ANZ. Para: 1) “The Labour Court……….” (Page: 904. Rele. Para: 5) “The said statement……….the union’s………. Grindlays Ltd.on monthly basis……….Constitution of India……….” (Page: 905.upon to produce……….N.” (Page: 905.to any relief’s.concerned workmen. High Court upheld the award of Labour Court as the employer failed to produce any attendance register or documents to show workmen’s appointments.a calendar year.. Rele. Para: 2) “Mr.” (Page: 638/639. Para: 12) “Mr. 25B Continuous service 2329 e) Evidence in proof of continuous service 1. then……….of the bank.is therefore rejected.to be rejected.not be sustained……….the concerned workmen.116 During the pendency of conciliation regarding the issue of regularization of 43 temporary workmen.HC) “The award passed……….” (Page: 636.” (Page: 640. one for regularization and other for termination.” (Page: 905.of the back wages. High Court upheld the award of Labour Court as the workman proved his continuous service by producing documents before Labour Court whereas the employer failed to produce the log sheet or the attendance register. Grindlays Bank Employees Union & Anr. Para: 9) “The Bank is………. the………. ANZ Grindlays Bank Ltd. Para: 4) “Since the……….HC) ¥ 5A. Rele. Employer challenged the award before High Court contending that workman failed to prove 240 days service before Labour Court. the petitioner………. On workman’s application.” (Page: 630. 2000 III LLJ 629 (Bom. strength of staffs before Labour Court. Zila Parishad. Rele contended………. Chief Executive Officer. recruitment rules.” (Page: 636. Rele.of back wages.” (Page: 631.” (Page: 632. 2. Dhanbad & Anr.O. 2002 SCC (L&S) 1088 : 2001 II LLJ 256 : 2001 (90) FLR 708 : 2002 AIR (SC) 508 : 2002 (9) SCC 623 (S. Labour Court. It is clear that neither the respondent produced any material in support of his case.HC) vi) Workman’s assertion that he had worked for 240 days in each of ten years though not corroborated is sufficient to grant absorption (P&H.” (Page: 1089. Gurmail Singh v. P.119 The charts produced by workmen showed that none of them had worked for 240 days in a year and so the termination was not retrenchment and compliance of Sec. On reference Labour Court ordered in favour of workman.C.2J) F 5A. v. Punjab State Electricity Board v.” (Page: 640. 2001 II LLJ 1287 : 2001 (89) FLR 1044 : 2001 LIC 2910 : 2001 LLR 788 (Jhar.petition………. Central Government Industrial Tribunal No. Employers.HC) v) Charts containing service details can be evidence (P&H. we think that the view taken by the Labour Court is in order. Raj Kumar & Anr.as withdrawn………. Management. Prisiding Officer.117 Where no material was placed before the Labour Court either by company or by workmen except an appointment and termination letter by the workmen so as to prove that whether workmen had completed 240 days in a year.DB) ¥ 5A.2J) “Learned counsel for the appellant submitted that the burden of proof lay upon the respondent to establish that he was in the employment of the appellant and had worked for a period of 240 days in a year before termination of his services and no such material was made available.HC) ¥ 5A.2330 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 641.120 The statement of the workman that he worked for 240 days in every year during the period of ten years though not corroborated by the employee or rebutted by the employer and in view of the Apex Court’s decision in Dharma Pal’s case and Sec..” (Page: 503/504.Constitution of India.C. Therefore. If that was the material on which the Labour Court placed reliance as no other material was placed by the appellant in rebuttal of the same.DB) “No particular………. lastly………. Amlabad Colliery of Bharat Coking Coal Ltd. High Court dismissed the petition on the ground that findings of the Tribunal was based on facts and documents and High Court cannot substitute it’s own findings unless the evidence was erroneous and perverse in law and there was no reason to reverse the finding of the Tribunal..HC) ¥ 5A. nor to rebut the claim made by him any material was produced by the appellant. 25F was not necessary. the High Court was justified in not interfering with the award made by the Labour Court. & Anr. Rele. Tannery and Footwear Corpn. of India v. 1996 I LLJ 373 (P&H.118 Workman working as Auto Electrician stopped coming to work without any notification and justifiable cause. Para: 15) iii) Letter of appointment and termination letter (S. He contended that during his period of service he was paid wages on vouchers and therefore claimed reinstatement and payment of wages. However management contended that he was working on contract. 2003 I LLN 502 (P&H. Labour Court was proper in coming to the conclusion by appreciating the material on record that he had completed 240 days and holding that termination was illegal and in reinstating the workmen.. so termination of service cannot be said to be bad on that account. It is in these circumstances that the Labour Court came to the conclusion that on appreciation of the material on record such as Exhibit E-1 (Appointment letter) and Exhibit E-4 (the order of termination that the services of the respondent are not required from 20-7-1976) that the respondent had worked with the appellant for 240 days in a year.. State of Punjab & Ors. M/s. Para: 4) . 25B is sufficient to grant absorption as per Government policy. Para: 3) iv) Vouchers by which wages were paid (Jhar. Para: 14) “All in all………. 25B “Mr. State of Rajasthan & Anr.Sec.122 A workman appointed on daily wages was terminated. The High Court upheld the decision of the Labour Court that the employer despite his contention that the workman has not worked for 240 days has failed to prove it by production of attendance register and that the bonus register and attendance certificate are only secondary evidence and cannot be conclusive to prove the date of entry. the writ petition was dismissed. S.HC) iii) When breaks in service/termination can be unfair labour practice a) When breaks given to prevent the completion of 240 days (P&H. v.C. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination.” (Page: 1148. Maharashtra State Electricity Board v. Hadimani. the award is liable to be set aside………. 2002 II LLN 391 : 2002 LLR 339 : 2002 LIC 987 : 2002 SCC (L&S) 367 : 2002 AIR (SC) 1147 (S. 1984 (65) FJR 95 : 1984 II LLN 180 : 1984 LIC 974 (P&H.DB) ¥ 5A. & Ors.121 Filing of affidavit by workmen being a statement in favour of his own that he has worked for 240 days in preceding year to his termination cannot be regarded as sufficient evidence to arrive at conclusion unless the claimant-workmen proves with other material in support and it was held that tribunal was not right in placing the onus on the Management without any cogent evidence from workman’s side.123 Termination of the services of a workmen when he has just completed 230 days of work with a view to prevent them from completing 240 days thereby depriving them the benefit of Chapter V-A is held as an unfair labour practice. 2002 AIR (SC) 1147 : 2002 I LLJ 1053 : 2002 (100) FJR 397 : 2002 (93) FLR 179 : 2002 (94) FLR 622 : 2002 II LLN 391 : 2002 LLR 339 : 2002 LIC 987 : 2002 SCC (L&S) 367 : 2002 (3) SCC 25 (S. Hadimani.C. Jullundur.Annexure P1……….so there was……….. Hence. worked for 240 days in a year. v.Act.2J) “……….C. On this ground alone. Kapurthala Central Co-operative Bank Ltd. T. S. 2004 III LLJ 832 : 2004 (107) FJR 264 : 2004 (103) FLR 192 : 2004 IV LLN 845 : 2004 SCC (L&S) 1055 : 2004 (8) SCC 161 (S. It was the case of the claimant that he had so worked but this claim was denied by the Appellant.HC) ¥ 5A. 2005 LIC 3225 (Bom. S.2J) and also in Rajasthan State Ganganagar S. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had. Hadimani.If a workman……….” (Page: 504. T..DB) “………. Labour Court. S. Range Forest Officer v. Para: 3) ii) Bonus register and attendance certificate since secondary evidences and cannot be proof of the date of entry into service (Bom. T..It is thus crystal………. Mills Ltd. T.230 days limit……….It was……….2J) 2.” (Page: 100. v. in fact. Para: 6) Note: This runs counter to the Supreme Court judgement in Range Forest Officer v. Also the Labour Court has satisfied itself from other records that the employee has worked for 240 days. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. v.In our opinion the Tribunal was not right in placing the onus on the Management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination.available………. WITH State of Karnataka & Anr. Hadimani. WITH State of Karnataka & Anr.2J) F 5A. What cannot be i) Affidavit by workman is insufficient to prove continuous service of 240 days (S.C.long term………. Para: 1) . Neelkanth Kawadooji Gire & Anr. 25B Continuous service 2331 “For the reasons………. O.126 Court held that mistake was made by management in calculating continuous service of workmen and as per facts 240 days of service was rendered and hence termination in violation of Sec.Industrial Disputes Act 1947.124 Giving breaks of two days each time in a spell of two years service to prevent completion of 240 days in a period of 12 months is unfair Labour practice Presiding. Para: 6) “Considering the date……….e.DB) ¥ 5A. P.. Para: 2) ¥ 5A. Zilla Parishad v.dismissed. 2001 II LLJ 12 : 2001 III LLN 1142 : 2001 LIC 837 (P&H.” (Page: 13.the termination was………. termination must conform to the law and hence termination in violation of Sec.instead of Mahabir. Para: 1) “………. P. Chief Administrator.” (Page: 421. 25F was rightly set aside by Labour Court and Single judge and reinstatement with 40% back wages was upheld.” (Page: 102. State of Rajasthan & Ors.DB) “………. 2002 I LLN 420 (P&H.O.” (Page: 431/432. Para: 10) IV.Labour practice……….125 Although workman was employed for fixed period of 89 days with break of 6 or more days intermittently each time but since he had completed 240 days of work and also his work was found satisfactory as per his experience certificate. P.” (Page: 257.” (Page: 13. 25B i.25–F of the Act. & Anr. Chandigarh v.. 25-F was upheld.of this Court……….the respondent workman………. service for 240 days and employment for 12 months were fulfilled and also the employer failed to prove the special circumstances as claimed by him in which principle of last come first go u/s.2332 Chapter VA – Lay-Off and Retrenchment Sec. Para: 1) ¥ 5A.for 265 days………. award of the Labour Court reinstating him with back wages on account of non-compliance with Sec. Haryana Urban Development Authority.there is no……….O.” (Page: 434.” (Page: 421.DB) “………. Para: 7) ¥ 5A. 2003 I LLJ 256 : 2002 (95) FLR 595 : 2003 III LLN 484 (Raj. Labour Court. v.. 25-F (P&H.127 Once it was shown that workman had actually worked for 240 days during period of 12 calendar months.Admittedly the workman………. Industrial Tribunal-cum-Labour Court. Gurgaon & Anr.DB) “The mistake………. 1994 (84) FJR 428 : 1994 (69) FLR 35 : 1994 LLR 454 : 1995 LLR 54 (P&H. Industrial Tribunal-cum-Labour Court. Reliefs/benefits available to workmen under various provisions of the Act on completion of continuous service a) Relief of reinstatement Note: Readers can refer to Secs.. Panipat. Mahendra Joshi & Anr. & Anr. 25G and 25H for more ratios on reinstatement 1. Para: 4) “In view………. 25F. Manimajra Chandigarh & Anr. Haryana Urban Development Authority.unsatisfactory………. The Chief Administrator..DB) “He Labour Court………. 25G was not required to be adhered and it was held that even if appointment was de hors the Act. both conditions u/s.according to law………. 25B “To conclude………. 25F was illegal. Para: 4) . v. Rohtak. When can be i) When employer terminates services without complying Sec. ” (Page: 1231.the purpose……….” (Page: 259. Labour Court No.” (Page: 257. 25H and 25G employee was not held to be entitled for any relief.” (Page: 1230. Para: 6) “………. II. Pawan Kumar Srivastava v.” (Page: 815. Para: 29) 2.129 In the absence of any proof that workman had worked for more than 240 days in preceding 12 months or that his juniors were continued in service. v. When cannot be i) When employee had not completed 240 days and failed to prove violation of Sec. Para: 5) “………. 25F.DB) ¥ 5A.” (Page: 259.any ground whatever.131 When the termination of service of a workman who completed 240 days of work is void ab initio.calling for interference………. P.50% backwages.employee.DB) ¥ 5A.1947. Municipal Corporation. Gangadhar Labala v.The petitioner has not……….DB) .. State of M..” (Page: 815.We do not……….the workman was………. Labour Court & Ors. 2001 I LLJ 1230 : 2001 (89) FLR 778 : 2001 LIC 610 : 2001 I CLR 907 : 2001 LLR 747 (Raj. Para: 6) “……….DB) ¥ 5A. 1999 (81) FLR 315 (MP. he is deemed to be in continuous service from the date of termination without back wages since it requires enquiry as to his gainful employment by appropriate forum. Para: 2) “We are……….not been established. 1999 II LLJ 21 : 1999 III LLN 266 (MP.HC) b) Relief of continuity of service can be Note: Readers can refer to Secs. Labour Court & Ors.had rendered service.Sec.dispute about that.DB) “In this……….The fact that Sri……….retrenchment. 2002 I CLR 812 : 2002 I LLJ 484 : 2002 I LLN 452 (Ori. Para: 26) “Learned……….DB) “……….P. Para: 27) “If the………. the award holding termination as contravening Sec. 25G & 25H (Raj. Ram Gopal Saini v. Jaipur & Ors.HC) ¥ 5A.130 When there is no finding as to continuous service in one year. his termination was held as proper. When termination is void ab initio (MP.128 As employee had worked for less than 240 days and failed to prove violation of Sec.” (Page: 815. Para: 7) iii) When there is no finding in the award as to completing continuous service in one year since award holding termination as illegal is not sustainable (MP.O.” (Page: 260.” (Page: 257. 25G & 25H for more ratios on reinstatement 1. 25F of the Act is set aside. 25B Reliefs/benefits to workman on complition of continuous service 2333 “The Tribunal found………. Para: 10) “The special circumstances……….O.. Para: 8) ii) When there is no proof of completion of 240 days (Ori. P. ” (Page: 214.Tracing the………. 1999 LIC 2946 (AP. They cannot be construed so as to convey an idea of the nature of tenure of the appointments……….service.C.wages. Para: 10) “As the appellant………. Para: 11) “As the order………. B. APSRTC & Ors.HC) “The petitioner………. 2007 SCCL.2334 Chapter VA – Lay-Off and Retrenchment Sec.2J) . Nagarajan v. M.” (Page: 2948. However. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. Depot Manager.attendant benefits………. Firstly the words “regular” or “regularisation” do not connote permanence. on the ground that the persons who were in employment by virtue of any award of Labour Court were not entitled to any special grade.Com. 25B “In view……….Constitution.. Para: 22) 2. Para: 12) “In the light……….Memorandum……….” (Page: 27.” (Page: 25.C. Rahamatullah v.133 The expression ‘regular’ and ‘regularisation’ does not imply regularization but meant only to condone and cure defects of procedural irregularities and defects attributable to methodology in making appointments and thus deal with methods of appointment. Prantiya Sinchai Avam Bandh Yogana Sharamik Mahaparishad. employer denied special grade to workman.C. 1979 II LLJ 209 : 1979 LlC 1206 : 1980 SCC (L&S) 4 : 1979 AIR (SC) 1676 : 1979 (4) SCC 507 (S.” (Page: 2947.The argument however is unacceptable to us for two reasons.suspension……….HC) ¥ 5A.D. Para: 1) “……….N.3J) F 5A.” (Page: 2948. Continuity of service to be taken into account for granting special grade or stagnation increments (AP.” (Page: 27.” (Page: 25. Para: 3) “Turing to the……….appellant. Para: 4) Note: Also refer to the case of State of Uttaranchal v. (S. Para: 13) c) Relief of regularisation 1. Para: 22) “As a result………. State of Karnataka.3J) “……….” (Page: 2946. Regularization means i) The expression ‘regular’ and ‘regularisation’ does not imply regularization but meant only to cure defects of procedural irregularities (S. it was held that the workman should be treated equally with all workmen and the period during which the workman was out of service prior to his reinstatement should be counted for continuous service for the purpose of sanction of special grade or stagnation increments.standing orders.132 The workman though removed from service but he was reinstated when Labour Court awarded reinstatement with continuity of service and all other attendant benefits. They raised an industrial dispute of which reference was made to the Tribunal. 1994 I LLJ 5 : 1994 I LLN 606 : 1993 LIC 836 (All. v. The Supreme Court held that the casual labourers are working for the last 30 odd years and therefore their services are be regularized expeditiously to create a happy and healthy relationship between employer and employee. Rao. Para: 13) “This writ petition………. the management terminated the services of 125 labourers. Bhurkunda Colliery of M/s.HC) ¥ 5A. The Workmen. Para: 1) “A person………. The management contested the same in High Court and Supreme Court.HC) “In this case………. v. and he was appointed on the post by following due procedure.” (Page: 5.” (Page: 3433/3434... unsuccessfully. the need for retention of employee and nature of appointment whether on daily wage basis or adhoc basis etc. Gujarat State Rural Development Corpn. Labour Court granted regular salary without arrears of salary.HC) 4. & Ors.C.” (Page: 6. but instead. High Court held that Labour Court rightly granted the salary and the same does not amount to regularisation of his services. The Tribunal held that a part of these workforce is to be regularized after an year with due regard to their attendance. Central Coalfields Ltd.134 Workman was denied regular salary for which he was performing similar nature of work with similar responsibility for twenty years. Bhurkunda Colliery.HC) ¥ 5A.137 A large number of casual labourers were not regularized years together.2J) F 5A.terminated………. 2006 II LLN 23 : 2006 (108) FLR 826 : 2006 LIC 960 : 2006 I CLR 635 : 2006 (3) SCC 297 (S. the need for retention of the employee and whether the appointment is on daily and ad hoc basis or against leave or casual vacancies and hence a workman is not entitled automatically to regularisation on completion of 240 days and therefore the workman was directed to make representation to the employer who is only held competent to take a decision having regard to the above factors. 1999 III LLJ (Sum) 859 (Pat. 2006 LIC 3429 (Guj.135 The factors to be considered for regularisation are availability of posts and funds. Para: 8) 3. 25B Reliefs/benefits to workman on complition of continuous service 2335 2. Upendrakumar J. Para: 16) ii) Reservation policy of the Government to be considered while regularizing workmen (Pat. Satyadeo Prasad v.C.DB) ¥ 5A. Union of India & Ors. Para: 3) “The question……….136 Reservation policy of the Government to be considered while regularizing. The union raised a demand for regularizing them. Ltd.service………. The Management. What amounts to regularisation i) Mere granting regular salary to workman performing similar work as that of regular workmen does not amount to regularization (Guj. When can be granted i) When causal labour working for 30 long years was terminated (S.2J) .” (Page: 12. are to be considered (All.” (Page: 10. Engineer-in-Chief. Irrigation Department. Factors to be considered for regularisation i) Number of posts and funds.Sec.to day……….service………. Zakir Hussain v.DB) “petitioner……….respondent workman. He was unauthorizedly absent from duty for 2 years. Union of India & Ors. labour is the real basis that underlines the production of goods and services. Through the work should the human personality and its sense of responsibility be able to unfold. The learned Single Judge.1175 of 1989 and labour union filed C. 2002 III CLR 581 (Guj..W. Industrial Tribunal-cum-Labour Court.M.HC) Satrughana Mishra & Anr. 1997 II LLN 295 (P&H. The Award of the Tribunal was challenged.W. v. employer moved High Court which upheld the order of the Labour Court on the ground that the Labour Court’s record revealed that the employer used to maintain the record of attendance of the workmen and the workmen were terminated by employer himself which established that the workmen were managed by the employer.J. on scrutiny.DB) ¥ 5A. On a reference by workmen. only 74 of them in Repairs and Maintenance (Civil) Section of Bhurkunda Colliery of M/s ‘CCL’ could justify their claim.” (Page: 28.139 The workman was a temporary mazdoor. Balbir Singh.” (Page: 25. & Anr. the management should appreciate this and always attribute its success to the trained and effective labour force.C.. As such. Cuttack.” (Page: 28. attendance. Water & Land Management Institute (WALMI). The Division Bench of the Jharkhand High Court upheld the judgment of the Learned Single Judge and consequently as directed by the Tribunal.C.680 of 1999 and all the three writ petitions were heard together by the learned Single Judge. The management filed C. then the conclusion becomes irresistible that the employees who have been working since 1973-74 required to be regularized as expeditiously as possible.HC) iii) Can be granted only as per the prevailing scheme (HP.J. It must be understood by all concerned that both the employees and employers are vital for any industry and unless there is proper co-ordination. Para: 21) Note: Also refer to the following case Gujarat State Road Transport Corporation v. They must have the appreciation of each other’s responsibilities.W. A. being refused by the employer to join duty. Para: 7) “When we modulate our thinking process and attitude according to the underlying philosophy of industrial and labour jurisprudence and apply the laws meant for industrial peace and harmony. No. Division Bench also upheld the order of the Tribunal but rejected the prayer of workman regarding regularization as the Tribunal had rightly observed that the question of regularization could only be decided by competent authority in accordance with the scheme under which the workman was claiming regularization.C. Later on.1083 of 1991 and Koyla Mazdoor Sabha on behalf of 51 persons. out of 104 casual workmen. No. v.J. the employer took no action against him nor sent him any notice and he continued to be on the rolls of temporary status. the smooth functioning of any industry would be difficult.138 The workmen who were initially recruited with the assistance of contractor were terminated by employer when they demanded regularization. and supervised the workmen (P&H. duties and obligations.2336 Chapter VA – Lay-Off and Retrenchment Sec. who heard these three writ petitions did not interfere with the Award of the Tribunal. No. Para: 20) “Both employers and employees have their respective obligations. But. 25B “According to the Tribunal. the management was directed to enlist those 74 workers as casual workmen and be provided with different jobs in Category-I and they may be regularized after they have fulfilled the condition of attendance in a year. who were not granted any relief in the award. Panipat Co-operative Sugar Mills Ltd v. 2005 LIC 3247 (HP.HC) ii) To be granted to contract workmen when employer maintained muster roll. Being aggrieved.HC) ¥ 5A. The trade union and labour union should understand and appreciate the fact that labour is not a commodity nor is it a mere supply of labour force at the management’s disposal. Rohtak & Anr. the workman moved Administrative Tribunal which held that the employer should allow the workman to join duty since no enquiry was conducted nor any opportunity of hearing was given to him. Labour Court directed their regularization. Essentially.DB) . also filed C. Shaikh. 2001 III LLN 699 : 2001 LIC 1195 : 2001 II CLR 498 : 2001 LLR 713 (Ori. cases of 74 workmen were required to be considered for regularization of their services after they have fulfilled the condition of attendance in a year. Para: 1) ¥ 5A. As the employer ignored the initial appointment of the workman in the gradation list and regularized services of some juniors. High Court directed employer to calculate seniority of workman from initial date of appointment and directed workman’s regularization. 2000 III LLJ 192 : 2000 LIC 2571 (Cal.workmen………. on 1990 he was reinstated by employer as per the award of Labour Court.R workers. 2001 I LLJ 1557 : 2001 II LLN 290 (Cal.and not retrospectively. 2006 (108) FLR 436 (All. & Ors.142 The workman was working as a casual employee from 1985.” (Page: 860.M. Para: 3) “From the averments………. & Anr. Para: 1) “………. however.HC) Note: Also refer to the following case Keshav Tripathi & Ors.DB) “………. v.The Tribunal……….141 Workmen who were engaged for 10 to 15 year continuously on casual and contingent basis and was in continuous service.” (Page: 1150. Orissa Lift Irrigation Corporation Ltd.N.” (Page: 1150.140 As the workmen had been working as Ticca Mazdoor for long period of time ranging from seven to thirteen years and this fact was not disputed by the Bank.N.” (Page: 1151.C. Chief General Manager... Reserve Bank of India v. Employer contended that regularisation of the workman from back date would affect seniority of those who were regularly appointed and regularized.Sec. Para: 1) “……….now………. He was terminated without following Sec. Para: 1) “The case of the………. Mahendra Kumar Sahoo v. District Judge. as a regular employee since there was no dispute regarding initial appointment.there being no……….” (Page: 1152.in the event……….DB) ¥ 5A.be regularised……….G. Mazdoor Union & Ors v. they could not be denied regularization on the ground that there was no post under recruitment rules since the same amounts to unfair labour practice and was violative of Certified Standing orders which itself contained the regulations regarding regularization of employees..as claimed.HC) v) Can be granted from initial date of appointment since there was no dispute regarding appointment (Ori.ULP……….at paragraph 13………. O. 2002 (101) FJR 849 : 2000 III LLJ 6 : 2001 (88) FLR (Sum) 13 (Karn. P.HC) “The petition in……….” (Page: 860.HC) Union of India & Anr..” (Page: 1151.has been filled. 25F.respective posts. Para: 4) “……….” (Page: 1152. 2002 I LLJ 1150 (Ori. Tribunal is justified for awarding regularisation of them and failure by the Bank to regularise them as permanent Mazdoor will amount to unfair labour practice. Para: 5) “From the decision……….It is further……….O.since 1985.” (Page: 861. Para: 2) “A counter has………. Central Government Industrial Tribunal & Anr.by corporation. Oil & Natural Gas Commission & Ors.it has………. the workman moved High Court..” (Page: 862. v. Para: 1) “………. 25B Reliefs/benefits to workman on complition of continuous service 2337 iv) When workmen rendered service for longer period ranging from seven years to 15 years service on contingent basis and service rules contained clause regarding absorption (Karn. Para: 6) . Faizabad & Ors.HC) ¥ 5A. right from date of appointment was held to be unsustainable. wrong criterion based on Section 25–B of the ID Act was applied in case after case. 25B was applied in which the Court held that when the section was applicable to the provisions of lay-off and retrenchment contained in Chapter V-A of the Act. Para: 14) “In the light of above discussion. 25B “I. No service rule of regularization or any other principle of law has been pressed into service by the respondents to claim regularization from an anterior date i. National Union Water Front Workers & Ors. & Anr. 1997 (76) FLR 503 (All. Para: 16) vii) Can be granted to contract worker when establishment is prohibited from engaging contract labour and on the evidence of his employment in the company (All.Perhaps. thereby unsettling the settled position. (IV) Kanpur & Ors. 2001 (99) FJR 332 : 2001 LIC 3656 : 2001 SCC (7) 1 : 2001 AIR (SC) 3527 : 2001 SCC (L&S) 1121 (S. In the event of such regularization.” (Page: 1152.” (Page: 1159.C.C.2338 Chapter VA – Lay-Off and Retrenchment Sec. Divisional Manager. P. Firstly. v.O. thereby unsettling the settled position besides wrong criterion of Sec.2J) “……….144 The employer challenged the Labour Court’s award before High Court contending that the Labour Court awarded reinstatement of the workman who was not his employee but was a contract worker. Thirdly. Lakshmoji Rao & Ors.e.e. Tribunal held workmen were employed for more than 240 days under direct control and supervision of management. Labour Court. they should be absorbed on regular basis to the extent of vacancies available.. High Court upheld the award of Labour Court since the establishment was prohibited by Government to engage contract labour and workman had adduced enough evidence before Labour Court to show that he was engaged by employer. Muir Mills.HC) Note: Also refer to the Judgment in Steel Authority of India Ltd. 25B applied (S. therefore………. it would take effect from the date of initial appointment.C. v.his service. the respondents and other similarly situated employees approached the Court under Article 226 long after their regularization. it is evident that the services of the employees who were recruited as conductors were regularized within a reasonable time. Their work was of continuous .. what the learned Judges meant was that the employees’ claim for regularization should be considered on completion of 240 working days and if they are otherwise eligible. right from the date of their initial appointment as daily–wage employees. we are of the view that the law laid down or the directions given in various writ petitions/writ appeals are not legally sustainable for more than one reason. Secondly. importing that concept of regularization is nothing but alien and hence the employers have the legal right to be regularized from date of initial appointment what is already regularized cannot be legally faulted.2J) F 5A. as service of the employees were to be regularised subject to availability of posts and which was done within a reasonable time and that they approached the Court long after their regularization.HC) ¥ 5A. Para: 7) vi) Regularisation cannot be from anterior date when services were regularised in reasonable time and there was delay in filing the claim and wrong criterion of Sec. M/s. P. Kanpur v. The respondent employees were therefore treated fairly. Andhra Pradesh State Road Transport Corporation.CB) viii) When workmen engaged through contractor have completed 240 days and the contract is sham (Jhar. 2004 I LLN 1154 : 2004 I LLJ 1045 : 2004 (100) FLR 951 : 2004 LIC 893 : 2004 SCC (L&S) 416 : 2004 AIR (SC) 1503 : 2004 (2) SCC 433 (S.143 Employees’ claim for regularisation from anterior date i. on the facts of these cases.HC) ¥ 5A.145 Workmen were employed for water supply through contractor by management and dispute regarding regularization was raised..” (Page: 1159. & Ors. due wages……….” (Page: 466.DB) ¥ 5A.claim. So Kailash Kumar is the only eligible hand for the post. the incumbent of the job should also be permanent.The pilot plant was set on a permanent footing in 1959 and the post held by Kailash Kumar became a permanent job then. The abolition of the job is not in contemplation.Kailash Kumar was employed in this experimental pilot plant in 1962.Accordingly………. it was found that he was HIV positive but presently asymptomatic . Para: 6) “The aforesaid………. But no surplus hand has so far been absorbed in the post. Their Workmen. State of West Bengal & Ors. 2004 (102) FLR 117 : 2004 LLR 775 (Jhar.is dismissed……….HC) ix) Temporary driver to be absorbed if pilot plant continued on permanent basis and post is not abolished (S.” (Page: 118.C.” (Page: 119. Para: 6) x) Whether regularization can be denied on the ground of HIV status a) Cannot be denied on the said ground if certified physically fit and no risk to others by medical opinion (Bom. No decision could be taken in regard to Kailash Kumar.2J) “……….” (Page: 119. 1970.” (Page: 119. On these facts we agree with Labour Court that the job in which Kailash Kumar is employed is a permanent job. This view of Labour Court could not be and has not been challenged before us. Employees in Relation to the Management of Kunju Pundi Project of M/s. Para: 4) “………. It is not disputed by the appellant that the job in which Kailash Kumar is employed will continue in future for an indefinite period.C.has been challenged………. In our view Labour Court has rightly directed the appellant to confirm him on the post. 1 & Ors. the job would continue in future for an indefinite period because the plant is now set on a permanent footing.supplier is not permissible under Contract Labour (Regulation and Abolition) Act. Dhanbad v.2J) F 5A. Labour Court has doubted that there were any surplus hands to be absorbed. 1995 II LLJ 153 : 1994 LIC 2548 (Cal. The said order was upheld by High Court. Para: 12) “………. When he subjected himself to medical examination as instructed by the corporation. 1974 LIC 465 : 1974 (28) FLR 89 : 1974 AIR (SC) 769 : 1974 (3) SCC 514 (S..Sec.L. Para: 7) “The Tribunal has………. v.The action of the management………. 25B Reliefs/benefits to workman on complition of continuous service 2339 nature and employment of contractor. Accordingly the area supervisors and block supervisors were made permanent.. It directed reinstatement and regularisation with arrears of back wages from the date of issuance of reference with 40% back wages and other benefits as engagement of contractor was paper arrangement which was a camouflage done by the management to deprive the workmen from their due wages. Central Government Industrial Tribunal No. Para: 13) Note: Also refer to the following case/s Swapan Mondal & Ors.146.and other benefit. v. Conceivably. Presiding Officer..C.” (Page: 466. The Hindustan Lever Ltd. Labour Court had rightly directed the employee’s confirmation. In 1965 the appellant decided to place the pilot plant on a permanent basis.HC) “The learned Tribunal………. Refusal to confirm him is an unfair labour practice. Accordingly. C. Apex Court held that since the plant was set on a permanent footing conceivably the job would continue in future for indefinite period and also since abolition of job was not in contemplation.146 Concerned person was employed as temporary jeep driver in a factory which was an experimental pilot plant for manufacturing dehydrated vegetables and this pilot plant was later set on permanent basis and accordingly area supervisors and block supervisors were made permanent. He was employed as a temporary hand.1 The workman who was working as a casual labour in the employer’s corporation was interviewed for a vacancy in a regular post. and they were over staffed. Para: 3) “In the circumstances………. Justine & Anr.fall to ground. MX of Bombay Indian Inhabitant v.” (Page: 803. that he is fit to work and that the government guidelines are not for sacking a workman for his HIV status.the said order.C. Para: 4) “………. L. When cannot be granted i) When appointments are violative of cadre strength or educational qualifications (Mad.DB) ¥ 5A.HC) ¥ 5A.” (Page: 805.” (Page: 287. v. provisions of Industrial Disputes Act cannot be pressed into service by relying on Sec..2340 Chapter VA – Lay-Off and Retrenchment Sec. 25B and was certified as physically fit for duty. Para: 2) “The Industrial Tribunal……….e. Negativing the contention of the employer that the workman is certain to deteriorate in health progressively and thus certainly cannot be fit to perform duties over a span of time. But in petition. 2006 III CLR 801 (Bom.in their place.149 Ten employees were appointed as casual workers on daily rate basis for the reason that they were dependants of employees died in harness. the High Court considering the medical opinion that the workman does not incur symptoms immediately. Para: 5) “………. Soc. the reference was made to Labour Court.” (Page: 298. Workmen Employed & Anr. set aside corporation’s order and directed the corporation to consider his employability on the basis of medical test again and pay the wages due to him in the intervening period. the award of Tribunal cannot be sustained.DB) “……….148 In a case where the Tribunal directed to accord permanency to 18 workers by virtue of their alleged completion of 240 days of continuous service.cannot be sustained. It held that the employees entitled to regularization hence ordered to pay the wages and benefits. 25B or for that matter even on the settlements if any purporting to be entered either u/s. Para: 19) ii) When there is no cogent evidence of completing 240 days (Bom.” (Page: 803. 18 between management and staff and hence the decision of Single Judge was upheld. Chennai & Ors. 2003 I LLJ 284 (Mad. When the services of these employees were terminated due to bad financial conditions of the company. 1997 AIR (3) Bom 406 : 1997 (3) BCR 354 : 1997 (2) Bom LR 504 (Bom.” (Page: 287. when the company was declared as a sick company and when . in violation of cadre strength or the prescriptions of educational qualifications outside the employment exchanges cannot claim regularisation as their appointments are null and void and also in such case. High Court did not agree with the tribunal so for as regularization is concerned although in other respects it did not interfere in the decision.the learned single……….it should be……….. 12 or Sec. M/S ZY & Anr. Permanent Magnets Ltd.we hold that………. However the Corporation deleted by notice his name from the selection panel which was challenged by him by writ petition.2J) F 5A.147 Employees appointed illegally i. Supreme Court however held that.HC) “The claim of the………. it is held that in the absence of any cogent evidence on record that the workmen had completed the bench mark of 240 days.. v.DB) 5. Registrar of Co-op.reference was made.Section 18 there of. Para: 9) iii) Cannot be granted where company is sick and Government is making efforts to present for revival proposal (S. Indian Drugs & Pharmaceuticals. only about 9 employees at the Hyderabad plant i.” (Page: 1156. wholly uncalled for and in violation of settled legal principles………. Indian Drugs and Pharmaceuticals.Sec. 30 employees at the Tamil Nadu plant i. Ltd.. supervisors and managers.e. Thus.e. 2007 (112) FLR 474 : 2007 I LLN 37 : : 2007 I CLR 48 : 2007 SCC (L&S) 270 : 2007 (1) SCC 408 (S. yet in view of their having continued for a long time.” (Page: 478. there were already 1299 employees working in the company at the relevant time.e. 15 employees at the Bihar plant i. allowed. Such appointments were made by the appellant due to the persistent and prolonged agitation by the trade union since the appellant wanted to maintain industrial harmony. the impugned directions of the Courts below were. without any compliance with selection process under Municipal Act and in absence of sanction of posts by state it was held that merely rendering 240 days service will not entitle workmen to regularisation and they cannot continue to work on completion of purpose. The impugned judgment of the High Court and the Labour Court are set aside and the Reference made to the Labour Court is answered in the negative.C. only supervisors and managers. therefore. 25. supervisors and managers and about 200 odd employees at the Rishikesh plant including only about 39 regular workers. v..DB) ¥ 5A.” (Page: 1156.2J) “We have heard the learned Counsel for the parties and perused the record. the order to continue the workmen and to pay wages till superannuation would be unjustifiable and hence orders of Labour Court and High Court were set aside. which was already over-staffed. Para: 12) .150 Since appointment was on contract basis only for particular purpose. Workmen. The present dispute relates to the ten concerned employees who were appointed as casual workers on daily rate basis for the reason that they were dependants of employees dying in harness. As against 1049 sanctioned posts. Prabir Kumar Nag & Ors. Para: 35) iv) When workmen appointed under contract without sanction of posts and compliance of selection procedures (Cal.any such post.employed is completed. Ltd. 29 at Gurgaon in which there are only 4 in the workers category. 25B Reliefs/benefits to workman on complition of continuous service 2341 the Government is making an effort to present a revival proposal. The facts of the case are that the appellant is a Public Sector Undertaking which has a plant in Rishikesh where it was manufacturing pharmaceuticals.7. in our opinion. Para: 11) “The appellant is………. have at present. in the scenario as stated above. The Labour Court held that although the said persons were employed as “casual daily rated employees” by the company.” (Page: 489.e. Chairman. There shall be no order as to costs. Para: 5) “In the present case it is relevant to state that the Government in effort to revive the company drastically reduced the manpower of the appellant-company from 1991 onwards and the petitioner which at one point of time had a total of about 13000 employees in all its units in India. Para: 10) “In view of the above discussion. The appeal is.” (Page: 479.” (Page: 477. although there was no rule/policy for such compassionate appointment in the service of the appellant company. Para: 2) “Before the Labour Court. It is relevant to state the Government is still pursuing the plans of reduction in manpower under a VRS Scheme.1996. 2001 II LLJ 1153 : 2001 LIC 1946 (Cal. they were entitled to regularization and the action of the management in not regularizing them was unjustified and consequentially they should be paid the wages and benefits as given to other regular employees from the date of the award i.DB) “The writ petitioners………. in total. Midnapore Municipality v. only 10 out of the 22 workmen appeared and filed written statement and therefore the award was passed only in respect of the said ten persons. we are of the opinion that the orders of the Labour Court as well as the High Court were wholly unjustified and cannot be sustained for the reasons already mentioned above. the High Court ordered their regularization with back wages on par with the regular employees. cannot be extended to a claim for equal treatment with those who were regularly employed.2342 Chapter VA – Lay-Off and Retrenchment Sec. . 25B v) When workmen who are temporary. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. he would not be entitled to be absorbed in regular service or made permanent.CB) F 5A. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis. there would be no question of other allowances being paid to them. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate. casual or adhoc are employed dehors the rules and against constitutional scheme of public employment (S. Order of High Court set aside. There is no case that the wage agreed upon was not being paid. and made permanent in employment. Those who are working on daily wages formed a class by themselves. of the view that. They had also been engaged in the teeth of directions not to do so. if the original appointment is not made by following a due process of selection as envisaged by the relevant rules or the Constitutional scheme of public employment. Umadevi (3) & Ors. at best. In view of our conclusion. even assuming that the principle could be invoked for claiming equal wages for equal work. under Articles 14 and 16 of the Constitution. 2006 II LLJ 722 : 2006 (109) FLR 826 : 2006 III LLN 78 : 2006 II CLR 261 : 2006 (4) SCC 1 : 2006 AIR (SC) 1806 : 2006 SCC (L&S) 753 (S. As has been held by this Court. The right to be treated equally with the other employees employed on daily wages. are violated. they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules.C. Para: 39) “In cases relating to service in the commercial taxes department. since. Hence. they cannot be said to be holders of a post. This order was challenged by the State Government before the Supreme Court. The objection taken was to the direction for payment from the dates of engagement. with effect from the dates from which they were respectively appointed. The daily wagers constitute a class by themselves and hence their non-absorption is not discriminatory.CB) “It was then contended that the rights of the employees thus appointed. from the date of the judgment of the Division Bench of the High Court. applicable not only to Central or State Governments but also to their instrumentalities. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. State of Karnataka & Ors. a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The Administrative Tribunal declined to grant relief but upon challenging the same. We are. some other Daily Wagers engaged in various Government Departments challenged the order of the High Court declining to grant the relief of regularization to those employed after 1st July 1984. contractual. they are only daily wage earners. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in Government service. v. That would be treating unequals as equals..151 Some daily wage workers engaged for more that 10 years in the Sales Tax Department of Karnataka State Government claimed regularization. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.C. Secretary. that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in Government service. therefore. the High Court has directed that those engaged on daily wages. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. In another set of appeals.” (Page: 740. The Apex Court held that merely because a temporary employee or casual worker is continued for a time beyond the term of his appointment. Since. to claim that they have a right to be absorbed in service. with effect from the dates from which they were respectively engaged or appointed. be paid wages Page 1951 equal to the salary and allowances that are being paid to the regular employees of their cadre in Government service. the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. ZP Engg.152 An Assistant engineer who is a daily rated employee was not made permanent though worked for 6 months as per standing orders upon which he filed an application before Labour Court under M. v. & Anr. It is not the case of the Respondent that he was appointed against a vacant post which was duly sanctioned by the statutory authority or his appointment was made upon following the statutory law operating in the field. he must be appointed as per statutory rules against a vacant post duly sanctioned. State Agro Industries Development Corpn. Merely because an employee had been working for more than 240 days it does not mean that it would confer any legal right upon him to be regularised in service. he does not derive any legal right to be regularized in service. 25B Reliefs/benefits to workman on complition of continuous service 2343 that Courts are not expected to issue directions for making such persons permanent in service. In such a situation. 2006 II LLJ 119 : 2006 (109) FLR 194 : 2006 II LLN 84 : 2006 (2) SCC 702 : 2006 SCC (L&S) 422 (S.2J) F 5A. Mani and Ors. Bangalore v. v. 25-B or 6months under relevant clause of standard standing orders. upon compliance of the constitutional requirements as also the provisions of the 1972 Act or the rules and regulations framed thereunder. Para: 7) “It has not been found by the Labour Court that the Respondent was appointed by the Appellant herein. the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. And Anr.” (Page: 742/743.I.” (Page: 121. S. Manager. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. M.” (Page: 123. Para: 14) “For the foregoing reasons. Divn. M. Housing Board & Anr.P. Para: 46) Note: The above case settles the legal position as of to-day on the rights of temporary. he does not become entitled to regularization and in order to be so entitled. Act which ordered the employer to categorise him as per standing orders in the permanent category. [See Madhyamik Shiksha Parishad. which is a ‘State’ within the meaning of Article 12 of the Constitution of India. Executive Engineer. the impugned judgment cannot be sustained which is set aside accordingly……….P. Manoj Shrivastava. Anil Kumar Mishra and Ors. Dhampur Sugar Mills Ltd.P. 2006 II LLJ 215 : 2006 (109) FLR 204 : 2006 II LLN 89 : 2006 I CLR 1066 : 2006 (2) SCC 716 : 2006 SCC (L&S) 434 (S.C. Pandey. v. MANU/SC/0204/2005 and Neeraj Awasthi.C. Supreme Court granted compensation instead of reinstatement in the interest of justice. the Supreme Court setting aside the orders of lower Courts held that merely because an employee worked for 240 days under Sec.153 A person appointed as typist on daily wages by Branch Manager who is not authorised to appoint cannot claim to have been appointed in terms of provisions of the Act and Rules framed thereunder and thus he does not acquire any legal right. Bhola Singh MANU/SC/0088/2005.” (Page: 121. S. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection.C. However. Reserve Bank of India. MANU/SC/0390/1994.” (Page: 124. Para: 19) F 5A. On his appeal. v. MANU/SC/0825/2004. Digambara Rao and Ors.C.Sec. This was challenged by the employer unsuccessfully in the Industrial Court as well as in High Court. v.P. Para: 10) “It is now well-settled that only because a person had been working for more than 240 days. casual or adhoc workmen to regularization in Government employment or it’s instrumentalities despite completing 240 days by disentitling them to the same vi) Regularisation can not be granted on completion of 240 days if the appointment is contrary to statutory rules (S.2J) “A person with a view to obtain the status of a ‘permanent employee’ must be appointed in terms of the statutory rules.R.2J) . U. ” (Page: 1158. 25FF of Industrial . As regards the circular dated 31. and hence regularization cannot be granted under the said circular. Lakshmoji Rao and Ors.HC) F 5A.V. Umadevi Ors. contractual. (3) Only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularized in service. and Ors.C.1998 the same cannot override Article 16 of the Constitution. v.154 Regarding regularization of the services of contract workers are concerned. v. was taken to be the basis for directing regularization. Ramana & Ors.” (Page: 1043. and the impugned judgements of Division Bench and Single Judge are set aside. State of Karnataka and Ors. daily-wage or ad hoc employees dehors the rules and constitutional scheme of public employment cannot be granted by the Courts. it is utterly untenable. Uma Devi (3) and Ors.. Andhra Pradesh State Road Transport Corporation. Para: 16) F 5A. State of Karnataka and Ors. (4) If an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof………. casual. It has been held by a Constitution Bench of this Court in Secretary.N. (2006 II LLJ 722) that absorption.2J) “In our opinion these appeals have to be allowed. no proposition of service law entitling them to the status of regular employees can be laid down. 2007 I LLJ 1042 : 2007 LLR 338 (S. Divisional Manager.” (Page: 217. 2007 LIC 283 : 2007 LLR 782 (Bom. Even if the contract labourers or casual workers or ad hoc employees have worked for a long period they cannot be regularized dehors the rules for selection. 10(1) of Contract Labour Act. The fact that they underwent a process of selection was also relied on. one relating to selection and appointment and the other relating to the terms and conditions of service. Hence the principal employer cannot be forced to absorb the employees from the date on which the contractor has employed him. Even if the contract labour or casual workers or adhoc employees have worked for a long period they cannot be regularized de hors the rules for selection. regularization or permanent continuance of temporary. it has been reiterated by Supreme Court citing the case of secretary.HC) ¥ 5A. 25B “………. Saundankar. the performance of duties carried out by regular employees. casual. daily wage or adhoc employees de hors the rules and constitutional scheme of public employment can not be granted by the Courts. (2) A daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and in that view of the matter he does not derive any legal right.156 There is no express provision in the Act for absorption of contract workers whose contract labour system stood abolished by way of publication of notification u/s. Moreover. MANU/SC/1918/2006 that absorption. the provisions of Sec. contractual. In the absence of any service rules entitling the employees recruited on daily wages to get the status of regular employees with pay scale form the very date of joining.3.2J) “Thus. v. Para: 8) vii) When claimants are contract workers though contract labour system is abolished (Mad. P. Para: 9) Note : Also refer to the following case Contract Laghu Udyog Kamgar Union v. v. Insofaras the decision purports to lay down a proposition of service law that the employees selected on daily–wage basis after selection automatically become regular employees from day one if they perform the duties similar to regular employees. 2004 I LLN 1154 : 2004 I LLJ 1045 : 2004 (100) FLR 951 : 2004 LIC 893 : 2004 SCC (L&S) 416 : 2004 AIR (SC) 1503 : 2004 (2) SCC 433 (S.C. an endeavour should be made to give effect to both of the statutes..2344 Chapter VA – Lay-Off and Retrenchment Sec. as has been held in Uma Devi’s case. K. regularization or permanent continuance of temporary. S. APSRTC & Ors. it would be difficult to countenance such proposition especially when there is no finding that the daily wage employment was a ploy or a colourable device to postpone regularization indefinitely……….when the conditions of service are governed by two statutes.155 In the absence of any service rules entitling the employees recruited on daily wages to the status of regular employees with pay scale from the date of joining or any finding that daily wage employment was a ploy or a colourable exercise. it appears that it would be proper to direct that those employees who have put in 240 days of continuous service be treated as permanent employees”.” (Page: 59. Tribunal including the aforesaid demand No. K. National Union Water Front Workers & Ors. v. 1995 I LLJ 53 : 1994 (84) FJR 454 : 1994 (68) FLR 579 : 1994 LIC 959 : 1995 SCC (L&S) 36 : 1994 AIR (SC) 1046 : 1994 (3) SCC 385 (Suppl.C.. Para: 3) “………. it merely summarises the arguments of the parties and gives a direction which is quoted above.The learned single Judge dismissed the petition holding that the Patankar Award had become final and since it had given the direction to make permanent even the seasonal employees who had put in more than 240 day’s of service.. The direction can be read either as a direction to make the temporary perennial employees and temporary seasonal employees as permanent perennial employees and permanent .The Industrial Court by its impugned order of 14-9-1990 (i) allowed the said complaint………. the temporary perennial employees were made permanent but the seasonal employees on the date of the award continued as such without demur………. 2001 (99) FJR 332 : 2001 LIC 3656 : 2001 SCC (7) 1 : 2001 AIR (SC) 3527 : 2001 SCC (L&S) 1121 (S. Regional Labour Commissioner & Ors.Award does not even refer to the seasonal employees. 25B Reliefs/benefits to workman on complition of continuous service 2345 Disputes Act cannot be applied as there is no transfer of ownership or management of an undertaking either by agreement or by operation of law. All the demands were in relation to the perennial employees. the same was referred by the State Government for adjudication to the Industrial Tribunal consisting of Shri G. & Anr. 1973……….Sec. since under Patankar Award directions were issued to confirm temporary perennial employees as permanent who have put in 240 days of continuous service and made no reference to seasonal employees and the issue regarding permanency of seasonal employees was never called upon for adjudication.HC) Note: Also refer to the Judgment in Steel Authority of India Ltd. Para: 11) “………. On the other hand. 1999 II LLJ 1329 (Mad. Para: 12) “……….CB) viii) When workmen are seasonal employees and can not be fitted into permanent employment or it would be iniquitous to perennial employees (S.” (Page: 56.directed the appellants to absorb and make permanent the said employees in compliance with the provisions of the Patankar Award………. in relation to the aforesaid demand for permanency... Patankar by’ the reference order of May 30. the writ petition had no merit………. Para: 5) “………. therefore. Maharashtra State Co-operative Cotton Growers’ Marketing Federation Employees’ Union & Anr. It also does not make any distinction between the two and give reasons either to accept or reject the contentions of the parties. WITH State of Maharashtra v.C. the arguments advanced on both sides. v. & Anr. also such a direction would have been highly inequitous and discriminatory to perennial employees hence aforesaid direction issued under Patankar Award was held to be inapplicable to seasonal employees. it referred to all temporary’ workmen………. v.C. Maharashtra State Co-operative Cotton Growers’ Marketing Federation Employees’ Union & Anr.” (Page: 59.There is also no dispute that as per the Patankar Award.The grievance made in the complaint was that those seasonal employees who had worked for 240 days in 1982-83 and 1983-84 were not made permanent and inasmuch as the Patankar Award had directed the Marketing Federation to make permanent seasonal employees who had completed 240 days of service……….an industrial dispute having arisen between the employees and the Marketing Federation.None of the demands referred to the. The operative portion reads “considering. 4 suggested that they related to the seasonal employees.2J) F 5A. Madras Aluminium Co.157 Apex Court set aside the Industrial Court’s order affirmed by High Court directing the employer to absorb and make permanent seasonal employees completing 240 days of service in compliance with Patankar Award. Maharashtra State Co-operative Cotton Growers’ Marketing Federation Ltd. The statement of claim filed in the Reference by the Union on behalf of the workmen did not also refer anywhere to the seasonal employees.” (Page: 55.2J) “……….) (S. we allow the appeals and set aside the decisions of the Industrial Court and of the High Court………. 25B seasonal employees respectively or as a direction relating only to the temporary perennial employees. But in no case. Para: 16) “………. The appellant is now required to compete with others in securing exploration work and can only recruit field workers as and when required. It would be even more difficult for the appellant to adjust the workmen in permanent employment when the need for them was only seasonal.” (Page: 90. Even then the learned Tribunal found a via media in directing that Page 5129 the 153 workmen who had admittedly completed 240 days and had acquired a temporary status be regularized against vacancies as and when such vacancies became available………. Admittedly. the appellant will have to find work for them during the months when their services would otherwise have not been required. Tribunal’s order restored and it was directed to management not to make any recruitment from outside till all those who figured in the list put up before the Tribunal are regularized. In considering the question who would be eligible to be considered for appointment to the regular posts. be considered for conversion as a regular employee. Para: 7) “Having regard to the nature of employment and the period during which these field workers are employed. Salve. Para: 14) . without putting in work throughout the year as the latter have to do………. 2007 I LLN 85 : 2007 I CLR 61 : 2007 SCC (L&S) 157 : 2007 AIR (SC) 920 : 2007 (1) SCC 250 (S. raised an industrial dispute in the form of a demand for regularization of such workmen………. Union of workmen raised industrial dispute for regularization of casual workmen. it would create various difficulties if the seasonal workmen were to be treated at par with regular employees as directed by the learned Single Judge. to make’ the seasonal employees permanent and give them all the benefits of the perennial employees would mean that they would get the salary and all other benefits throughout the year as the perennial employees do. previously the appellant had monopolistic control over geological survey work for oil and natural gas but today the scene had changed and it is just another competitor along with others. Tribunal held that a casual workman who has put in attendance of 180 days or more in 12 consecutive months would automatically become a temporary workman who would after completion of 240 days of attendance in any period of 12 consecutive months and possessing requisite qualifications. Ltd. the Tribunal held that a casual workman who put in attendance of 180 or more days in 12 consecutive months automatically became a temporary workman who could after completion of 240 days of attendance in any period of 12 consecutive months and possessing qualifications be considered for conversion as a regular employee……….C.2J) “In view of the aforesaid phenomenon relating to employment of seasonal workers. On the undisputed fact. It was held that having regard to the nature of employment and the period during which field workers were employed. these workmen who are employed for field survey work are employed for about six months in a year between November and May.” (Page: 62. As pointed out by Mr. Single judge modified the decision and extended the benefits given by the Tribunal even to persons who were not parties before the Tribunal while Division Bench directed that the workman concerned should be notionally treated as regularized. notwithstanding the fact that they are a Government company. If at all they are to be regularized. Oil & Natural Gas Corporation. Para: 25) F 5A. There are other reasons why the Tribunal could not have given such a direction and if such a direction was given.158 The public sector undertaking was recruiting casual workmen for specified period and was terminating their services at the end of the field season. v. it would have been highly inequitous and discriminatory to the perennial employees whether temporary or permanent. that the procurement and processing operations under the Cotton Scheme do not last for more than 4 to 6 months and in any case not more than 8 months.” (Page: 88. it would create difficulty if seasonal workmen were treated at par with regular employees. Engineering Mazdoor Sangh. it can be read as a direction to make seasonal employees as permanent employees as in the nature of things such a direction could not have been given. the Engineering Mazdoor Sangh on behalf of its members who had been recruited as such casual/contingent/temporary workmen. It would be even more difficult to adjust workmen in permanent employment when need for them was only seasonal.” (Page: 66. appeal was filed before Supreme Court.” (Page: 87.2346 Chapter VA – Lay-Off and Retrenchment Sec. Para: 3) “On the basis of the above. The Superintendent. Durgapur Sub-divisional Hospital & Ors. There is also nothing on records to show that such a claim was put forward even in the demand raising the industrial dispute.DB) ¥ 5A.C.There cannot be………. No case was made out by the Appellants herein in their statements of claim that they became permanent employees in terms thereof. Mahendra L.DB) “As State………. 1999. The Government failed to regularise the services of the engineers. Birmhum Zila Parishad & Ors. the Labour Court having derived its jurisdiction from the reference made by the State Government. the Appellants were aware of the statutory limitations in this behalf. Hence Supreme Court held that the service could not be regularized. 14 and 16 thereof before making any appointment.permanently in service………. The Labour Court gave award in favour of the employees. add a few further safeguards in order to protect the interests of the said 153 workmen so that they are assured of employment as before. v. Presumably. Para: 1) ¥ 5A. 1997 (75) FLR 482 : 1997 III LLJ 1293 : 1996 II LLN 906 (Cal. v. We can. Sarama Das & Ors.HC) x) When employees are appointed on a time bound project and not in sanctioned posts (S.” (Page: 90. 12 is bound to comply with State Government circular which stipulates that all recruitments to local bodies should be made either through Public Service Commission or through Employment Exchange. 2003 LIC 1048 (Ori. hence they raised an industrial dispute. were deducted from the same.” (Page: 947. On appeal the Supreme Court held that the Government being a state within the meaning of Article 12 of the constitution of India. 25F.2J) F 5A. continued in service and they received monthly salary and provident fund etc. Para: 34) . such workmen have right to claim only retrenchment compensation u/s.. of course. Indore Development Authority & Ors. it was bound to act within the four-corners thereof.161 Certain Engineers were appointed on daily wage basis on a Government project without issue of any appointment letters.” (Page: 482.2J) “We have noticed the provisions of the Act and the Rules.. firstly to treat the said 153 workmen at par with the regular employees and thereafter to treat their services as having been notionally regularized from 1st May. therefore. Para: 15) ix) When workman is the casual employee though completed 240 days since recruitment is to be through Public Service Commission or Employment Exchange as per stipulated procedure (Cal. Nitya Hari Chaterjee & Ors. The Government filed writ petition in the High Court which allowed the same on the ground that the employees were not appointed in any sanctioned posts and the project for which they were working having been completed then services could not be regularized.159 Zilha Parishad being State under Art. Jain & Ors. it was obliged to strictly comply with Art.C. v. therefore a casual employee who has competed 240 days of service is not entitled for absorption but to only benefits of Sec.DB) “………. 25B Reliefs/benefits to workman on complition of continuous service 2347 “We are of the view that the directions given by the learned Tribunal are reasonable and should be allowed to stand as against the directions given by the High Court. however.” (Page: 166. Institute of Life Science & Ors. 2005 SCC (L&S) 154 : 2005 (1) SCC 639 (S. It could not enlarge the scope of the reference nor could deviate therefrom. A demand which was not raised at the time of raising the dispute could not have been gone into by the Labour Court being not the subject-matter thereof. 1997 (75) FLR 945 (Cal. They were. Furthermore..Sec.160 The fact that casual workmen had completed 240 days of continuous service would not entitle them to any right of regularisation. 25F and hence claim of workmen for regularisation was refused by Court. Para: 3) Note: Also refer to the following case Prakash Chandra Panda v.employment.. raised an alternative plea in their statements of claims.HC) ¥ 5A.” (Page: 168/169. The burden was on the Appellants to establish that they had a right to invoke the said doctrine in terms of Article 14 of the Constitution of India. 2006 III LLJ 67 : 2006 LIC 1152 (Del. Industrial Employment Standing Orders Act xi) Regularisation cannot be granted if employer himself ceases to exist (Del.DB) ¥ 5A. The Labour Court could not have granted any relief to them as prayed for.” (Page: 167. entitled to take the recourse of the doctrine of ‘equal pay for equal work’ as adumbrated in Articles 14 and 39(d) of the Constitution of India. it has been seen that even services of one of them had been requisitioned only for the project work. thus. the nature of the work and responsibility attached to the post are some of the factors which were bound to be taken into consideration. The Court or the Tribunal can.1997. The plea of Dr. The Appellants were aware of the said fact and.6. the High Court’s observation remained unchallenged.163 Some of the daily wage workers of Damodar Valley Corporation were in continuous service for long periods. 337 of 2002 were asked to perform other duties also may not be of much significance having regard to our foregoing findings. For the purpose of invoking the said doctrine. The appointments. 25B “As noticed hereinbefore. They were not appointed in terms of the provisions of the statute. Damodar Valley Corporation v. the appointments had to be made by it. no employee could be thrust upon it without its consent. the Government referred the dispute to the Labour Court. The High Court. as indicated hereinbefore. direct the management to consider the cases of workmen for appointment against the existing or future vacant posts. Such a relief would have been beyond the scope and purport of the reference made to the Labour Court by the State Government. No post was sanctioned by the State Government. The life of the project came to an end on 30. had been made for the purpose of the project which. when their services had not been regularized and they had continued on a consolidated pay on ad hoc basis having not undergone the process of regular appointments. thus.” (Page: 166/167. was right in arriving at the conclusion that the Appellants were not entitled to be regularized in service. The State of Bihar & Ors.HC) . They were not. as Indore Municipal Corporation is a separate juristic person having been created under a statute.. they would be deemed to have been appointed therefor and only because such appointments had been made by the Respondent would by itself not entitle them to claim permanency. The High Court modified the decision of the Labour Court accordingly. that the project was to be financed by ODA. therefore. Para: 43) Note: This arose under M. 2005 LIC 2774 (Jhar.DB) xii) Regularisation cannot be of daily wagers but Labour Court or Tribunal can only direct consideration of cases against vacancies (Jhar. The project was indisputably to be executed by the Indore Development Authority. in our opinion. The maintenance job upon completion thereof had been taken over by Indore Municipal Corporation. Furthermore.162 A temporary employee was terminated when Government declared ban on the Bhatti Mines. came to an end. Furthermore. The employee demanded regularization of service. Para: 39) “The Appellants having been employed on daily wages did not hold any post. the Indore Municipal Corporation was not a party and. However. If the Appellants were appointed for the purpose of the project. Division Bench held that the employer concerned no more exist as such the question of creating a regular post and absorbing employee does not arise. no direction to give regular pay scale could have been issued by the Labour Court. Para: 37) “It is furthermore evident that the persons appointed as daily wagers held no posts. at best. Sunil Kumar v. and for the implementation thereof.P. Delhi State Mineral Development Corporation & Anr. On writ petition by the employer. On making grievance that their services should be regularized.. The Labour Court answered the reference in favour of the workmen.2348 Chapter VA – Lay-Off and Retrenchment Sec. the High Court held that it is well settled that a Court or Tribunal cannot issue direction for regularization or absorption in service of daily wage employees merely because of their continuation in employment for a long time. Dhawan to the effect that the Appellants in Civil Appeal No. thus. Satyanarayana & Ors v.In this fluid state of things. The right which is claimed is the right from the date of initial appointment.HC) xiii) Regularization of an ineligible person cannot be on the ground that some ineligible persons were previously regularized (AP.. In these circumstances. B. 2002 LIC 2627 : 2002 III LLJ 258 : 2002 (94) FLR 753 : 2002 AIR (SC) 2498 : 2002 (6) SCC 223 (S. Para: 2) “………. therefore. either before the High Court or before this Court……….It is pertinent to note. Ltd. they were underage in the year 1973. Para: 9) xiv) Regularization cannot be of an employee under-aged on the date of appointment but attained required age later (S. of M/s.C.. In spite of this it further held. that the petitioner-company failed to produce. We do not find such a finding could be sustainable in the eyes of law. which he did not prove by producing original certificate.” (Page: 2430. If this be so there is no justification for upholding the order as their age now is 30 years.The reason for his inability to produce the certificate has not been explained.C.” (Page: 2628. by Bihar Colliery Kamgar Union. Meghajibhai Sanabhai Bhimsuriya & Ors.HC) “Lastly.2J) F 5A. National Aluminium Co.164 If some ineligible persons were previously regularized by employer. BCCL v. 1999 LIC 2428 (AP.C. specially when there is specific provision.HC) ¥ 5A. underage disability now vanishes.. Deepak Kumar Panda & Anr.2J) “The appellant has challenged the order of the High Court which has dismissed the Letters Patent Appeal through holding the questioned appointment of 11 persons were medically examined and were found to be underage in the year 1973 the year of their appointment. Once this is found.C. are not entitled to regularization as their right of appointment accrues on the date of initial appointment and not on the date of judgment. in 1973……….166 Employee appointed on contract basis was denied extension and regularization on the ground that he did not possess requisite educational qualification. He is only harping on the secondary evidence in the form of testimonial/letter issued by the Registrar bearing the date 19-11-1980.C. the proper course would be . v.” (Page: 2343. the question of extension of service or regularisation did not arise………. adverting………. namely.Supreme Court………. M/s. Tirumala Tirupathi Devasthanam & Ors. 25B Reliefs/benefits to workman on complition of continuous service 2349 Note: Also refer to the following case Ahmedabad Municipal Corporation v. Employer in relation to the Management of G. at this juncture. 2002 LIC 370 (Guj.2J) “………. Para: 3) xv) Regularisation cannot be of an employee unless he submits original certificate or certified copy of passing the qualifying examination requisite for the post (S. their regularisation based on such appointment cannot be upheld. High Court directed regularization by holding that he possessed required qualification whereas the Apex Court directed the employee to produce original certificate issued by the institute or certified copy thereof in order to get the benefit of his claim.165 Employees who were under-aged on the date of appointment but attained the required age on the date of the judgment.Sec. the High Court ought not to have entered into the factual finding that the respondent possessed the necessary qualification.2J) F 5A. The question is not of their employment on compassionate ground after attaining the requisite age. no person can work in the mines who is underage. Their Workmen. The High Court clearly misdirected itself in doing so………. 2002 AIR (SC) 2343 : 2002 LIC 2184 (S. rep. it would not be a ground for regularizing other ineligible persons.stand taken by the petitioner-company was that the respondent did not produce satisfactory proof of possessing the requisite educational qualification for being appointed as French Interpreter or to the post of Assistant and. Indian Railway Construction Co. Para: 6) xvi) Regularization cannot be if workman is not appointed against any existing vacancy or appointed through any selection process (AP. AND Ravindra Nath Mishra v. we are not inclined to grant the benefit of retrospective regularisation from an earlier date or to award any backwages.. Lal Mohammad & Ors. as soon as the project was over they cannot claim as a matter of right to be permanent employees or to be regularized in the company.” (Page: 2430. Indian Railway Construction Co. The services of project employees come to an end as soon as the project is over and they cannot be given permanent status. the writ of mandamus could not be issued unless the workmen had any enforceable right against the employer.2J) “A distinction has to be borne in mind who is employee of the company and who is employee of the Project. Since they were employees of the project their services have to be terminated after completion of the project. On approach being made by the respondent. Shortfall of period of notice or compensation will not render termination bad on that count. we do hope that the authorities of Sri Aurobindo International Centre would take expeditious steps to verify the concerned record and issue the certificate in original or a certified copy thereof………. Para: 8) xvii) Regularisation cannot be of a workman who is appointed on the basis of fixed tenure (S. & Ors. Para: 19) . Ltd. There is no question of violation of Articles 14. The services of project employees come to an end as soon as the project is over and they cannot be given permanent status and their services have to be terminated after completion of the project.As the respondent has to partly blame himself for the situation in which he is placed. Ltd.Since the………. there is no violation of Articles 14. 2007 I LLJ 773 : 2007 (112) FLR 847 : 2007 II LLN 31 : 2007 LIC 2783 : 2007 I CLR 688 : 2007 (1) SCC (L&S) 725 : 2007 AIR (SC) 2230 : 2007 (2) SCC 513 (S.instant cases. two months time is granted to the respondent to produce the same. They are only entitled to notice and compensation to be determined under Section 25-F.” (Page: 2428.” (Page: 787.168 Where workmen were engaged for project work.HC) “Although the……….” (Page: 2629. v.C. Satyanarayana & Ors v. For this purpose. 16 or 21 of the Constitution as they are the employees of the project and at the end of project they are entitled to take their benefits as are admissible in accordance with the provisions of Industrial Disputes Act. Pondicherry... In his claim regarding regularization.in nature………. In this connection the Full Bench has considered the necessary provisions of the rules and after a detailed discussion on the matter has rightly come to the conclusion that they are employees of the project and they are not the employees of the company. Para: 2) “………. it was held that the employer could dispense with the services of the workman if he found that there was no need to continue his services because he was not appointed against any existing vacancy or appointed through any selection process. 16 & 21 of the Constitution of India in the matter as they were employees of the project and at the end of the project they have taken their benefits as are admissible in accordance with the Industrial Disputes Act. Tirumala Tirupathi Devasthanam & Ors.HC) ¥ 5A. Para: 7) “……….” (Page: 784.” (Page: 2430. B.The Court………. In this context. 1999 LIC 2428 (AP.” (Page: 2629.2J) F 5A. Further.2350 Chapter VA – Lay-Off and Retrenchment Sec. & Anr.C. Para: 5) “The impugned order of the High Court is set aside……….in law. 25B to give a final opportuntiy to the respondent to produce the original or authenticated certificate issued by the competent authority of Sri Aurobindo International Centre.167 The workman was appointed on casual/daily wage basis. Para: 15) “So far as the termination of the incumbents is concerned after completion of the project they have no right to continue. 311 and have only limited protection (S.is disclosed………. O.C.C.If this is so………. Sarama Das & Ors. which could be terminated without assigning any reason. 309and entitled to hold the post and cannot be removed without complying with the provisions of Art. v. Ltd. The Division Bench too upheld the said direction..There cannot be………. The Single Judge allowing their petition directed the company to regularize them and pay them regular scales of pay.the interview……….permanent employee………. as a permanent employee cannot be accepted. P.171 The daily rated Malis and some individual workmen working in a Government company filed petitions before the High Court seeking a direction to the company to regularize their services on the ground that they have completed 240 days in each year during the past many years and they were given artificial breaks with a view to deny them permanency and continuity in service. . 617 of Company’s Act and is an industrial establishment. Para: 28) ¥ 5A.169 Plea of workman for regularization was dismissed on the ground that there was overwhelming evidence to show that the workman was appointed on a fixed term of one year on contract basis on a temporary appointment. The position of a Government servant is different from that of an employee in an industrial establishment in that he enjoys status and security of tenure and governed by rules framed u/Art.HC) xix) Regularisation cannot be of daily rated workmen of a Government company since they do not enjoy any status or security of tenure as Government servants u/Art. The above appeals and writ petitions filed by workers are dismissed. the contention that having completed 240 days of service he is entitled to be considered. The petitioners are not entitled to be regularise their services in the Company and they are not employees of Company.” (Page: 2622.” (Page: 789..Sec. The Apex Court held that the employer is a Government company within the meaning of Sec. Industrial-cum-Labour Court & Anr.The petitioner was………. such workmen have right to claim only retrenchment compensation u/s.” (Page: 947. 1997 (75) FLR 945 (Cal.HC) “………..permanently in service………. 25F. Para: 5) “There is thus………. Para: 14) xviii) Regularisation cannot be of casual workmen though completed 240 days of service (Cal.” (Page: 2620. Para: 3) Note: Also refer to the follwing cases Shri Pal S/o Chander Bhan v. in the light of discussion made above. where as an employee working in an industrial establishment enjoys limited kind of protection where his tenure may be cut short not on account of any disciplinary action taken against him but on account of unilateral act of the employer attracting Section like 25E. 2002 (95) FLR 401 : 2002 II LLN 667 : 2002 LLR 371 : 2002 LIC 227 (P&H.2J) F 5A.170 The fact that casual workmen had completed 240 days of service would not entitle them to any right of regularisation. 2001 LIC 2619 : 2002 II LLJ 494 : 2002 LLR 840 (Guj. This was challenged by the Government company before the Apex Court before which the company contended that the claimants were not Government servants who enjoy constitutional protection but governed by the provisions of Industrial disputes Act and other allied Acts.DB) “………. They are only entitled to compensation as indicated above. 25F and hence claim of workmen for regularisation was refused by Court. The Superintendent. we are of the opinion that the view taken by the Full Bench is correct. An agreement was also executed between the parties stating the nature of appointment hence. Durgapur Sub-divisional Hospital & Ors.DB) ¥ 5A.O. 25B Reliefs/benefits to workman on complition of continuous service 2351 “Therefore.G. 311. Nareshkumar Manilal Parmar & Anr. v.N. Group General Manager. v. MANU/SC/8652/2006. But the type of tenure of service normally enjoyed by a permanent employee in Government Service. Hindustan Aeronautics Ltd. Bishambar Dutt MANU/SC/1734/1996. v. He may be entitled to notice or wages in lieu of notice and monetary compensation depending upon the length of service put in by him. Indian Drugs & Pharmaceuticals Ltd.. the claim for permanency in an industrial establishment has to be judged from a different angle and would have different meaning.2352 Chapter VA – Lay-Off and Retrenchment Sec. He may lose his employment in various contingencies which are provided under the Industrial Disputes Act such as lay off as provided in Section 25C. The panel will be in force for one year. Managing Director MANU/SC/0428/1989). v. Housing Board & Anr.” (Page: 3213. The same view was taken in Dr.” (Page: 3213. In Madhyamik Shiksha Parishad v. Para: 17) “The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularization in service. It merely imposes certain obligations on the employer at the time of termination of the services. Ramakrishnan and Ors. v. 2007 LIC 3209 : 2007 (2) SCC (L&S) 441 : 2007 AIR (SC) 2733 : 2007 (6) SCC 207 (S.2J) “The legal position is that identity of the Government Company remains distinct from the Government. MANU/SC/4993/2006 and paragraphs 34 and 35 of the reports are being reproduced below: Thus. Regularization can only be done in accordance with the rules and not de hors the rules.. Syndicate Bank & Anr. namely. Kishore v. but on account of a unilateral act of the employer.172 For recruitment of Attenders. eligible candidates were empanelled by getting sponsored names from Local Employment Exchange for their temporary recruitment. 1997 II LLJ 814 : 1997 LIC 2913 : 1997 AIR (SC) 3091 : 1997 (6) SCC 584 (S. Dan Bahadur Singh & Ors. Manoj Shrivastava MANU/SC/8059/2006 (paragraph 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days. may not be available to an employee or workman working in an industrial establishment on account of various provisions in the Industrial Disputes Act where his tenure may be cut short not on account of any disciplinary action taken against him. Anil Kumar Mishra and Ors. closure of undertaking as provided in Section 25FFF. 25B 25FFF etc.P. it is well settled that there is no right vested in any daily wager to seek regularization.2J) F 5A. Siemens Ltd.2J) . MANU/SC/0390/1994 it was held that the completion of 240 days’ work does not confer the right to regularization under the Industrial Disputes Act.C. State of Kerala and Ors. Therefore. to continue in service till the age of superannuation.C. Where notice or wages in lieu and compensation is given and hence regularization or permanency is not contemplated under the Act. retrenchment as provided in Section 25F. It is also equally well settled that the employees of the Government Company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution (See Pyare Lal Sharma v. Merely because the entire share holding is owned by the Central Government will not make the incorporated company as Central Government.C. transfer of industrial establishment or management of an undertaking as provided in Section 25FF. The candidates so empanelled cannot claim as right to seek permanent appointment in the service of Bank. This view has been reiterated in Gangadhar Pillai v. The same question has been examined in considerable detail with reference to an employee working in a Government Company in Indian Drugs and Pharmaceuticals Ltd. The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time. In M. An employee working in an industrial establishment enjoys a limited kind of protection. he does not derive any legal right to be regularized in service. v. Para: 33) xx) When claimants are empanelled to meet temporary requirement and such panel is in force only for one year (S. In the case of E. Workman. State of Maharashtra MANU/SC/1090/1997 and Union of India and Ors. Shankar Paul & Anr. The Government Company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of the Companies Act. MANU/SC/1651/1996 this Court held that there can be no regularization de hors the rules. v. Sec. 25B Reliefs/benefits to workman on complition of continuous service 2353 “The Deputy General Manager in charge of Calcutta Zone of the appellant bank wrote to the Sub-Regional Employment Exchange, North Calcutta, sometime in July, 1986, to send a list of candidates for selection arid empanelment for the post of attenders for some of its branches in Calcutta. The empanelled candidates were to be appointed in the temporary vacancies which were likely to arise on account of absence of or casual leave taken by the regular attenders……….” (Page: 816, Para: 3) “……….Considering the object with which the panel was prepared and the fact that it was an yearly panel expiring on 6.2.1988, we are of the opinion that the respondents did not get any right, because of inclusion of their names in the said panel, for permanent absorption in the service of the Bank. Whatever conditional right they had came to an end with the expiry of the panel……….” (Page: 817, Para: 7) Note: Also refer to the following cases in the above context Heavy Engineering Mazdoor Union v. State of Bihar & Anr., 1969 II LLJ 549 : 1969 (19) FLR 27 : 1970 LIC 212 : 1970 AIR (SC) 82 : 1969 (1) SCC 765 (S.C.2J) B.N. Nagarajan v. State of Karnataka, 1979 (4) SCC 507 : 1980 SCC (L&S) 4 (S.C.3J) Pyare Lal Sharma v. Managing Director, 1989 (3) SCC 448 : 1989 SCC (L&S) 484 (S.C.2J) Dr. Surinder Singh Jamwal v. State of J&K, 1996 II LLJ 795 : 1996 II CLR 956 : 1996 (9) SCC 619 : 1996 SCC (L&S) 1296 : 1996 AIR (SC) 2775 (S.C.2J) E. Ramakrishnan v. State of Kerala, 1997 I LLJ 1215 : 1996 (10) SCC 565 : 1997 SCC (L&S) 331 (S.C.2J) Union of India v. Bishamber Dutt, 1997 II LLJ 381 : 1996 (11) SCC 341 : 1997 SCC (L&S) 478 (S.C.2J) Dr. Kishore v. State of Maharashtra, 1997 (3) SCC 209 : 1997 SCC (L&S) 779 (S.C.2J) P.U. Joshi v. Accountant General, 2003 (2) SCC 632 : 2003 SCC (L&S) 191 (S.C.2J) A.K. Bindal v. Union of India, 2003 II LLJ 1078 : 2003 (5) SCC 163 : 2003 SCC (L&S) 620 (S.C.2J) Madhyamik Shiksha Parishad v. Anil Kumar Mishra, 2005 (5) SCC 122 : 2005 SCC (L&S) 628 (S.C.3J) Union Public Service Commission v. Girish Jayanti Lal Veghela & Ors., 2006 (2) SCC 482 : 2006 SCC (L&S) 339 (S.C.2J) Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors., 2006 II LLJ 722 : 2006 (109) FLR 826 : 2006 III LLN 78 : 2006 II CLR 261 : 2006 (4) SCC 1 : 2006 AIR (SC) 1806 : 2006 SCC (L&S) 753 (S.C.CB) M.P. Housing Board & Anr. v. Manoj Shrivastava, 2006 II LLJ 119 : 2006 (109) FLR 194 : 2006 II LLN 84 : 2006 (2) SCC 702 : 2006 SCC (L&S) 422 (S.C.2J) Indian Drugs & Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd., 2007 (112) FLR 474 : 2007 I LLN 37 : 2007 I CLR 48 : 2007 SCC (L&S) 270 : 2007 (1) SCC 408 (S.C.2J) Gangadhar Pillai v. Siemens, Ltd., 2007 I LLJ 717 : 2007 I LLN 139 : 2007 LIC 590 : 2007 II CLR 139 : 2007 LLR 325 : 2007 (1) SCC (L&S) 346 : 2007 (1) SCC 533 (S.C.2J) d) Relief of pension 1. Not available to daily wagers who had not completed 240 days in any of the 10 years they had worked (Guj.DB) ¥ 5A.173 As the daily wage employees engaged for cleaning canals had not worked for more than 10 years and more than 240 days in a year, they were not entitled to benefit of pension as per the Government resolution. Shankerji Cheljaji Thakor v. State of Gujarat, 2000 II LLJ 239 : 2000 III CLR 86 : 2000 III CLR 86 (Guj.DB) “Looking……….resolution.” (Page: 243, Para: 9) “Looking to the aforesaid……….to get certain benefit.” (Page: 243, Para: 10) “Locking to……….benefits.” (Page: 243, Para: 10) “……….It is very……….dismissed.” (Page: 245, Para: 19) 2354 Chapter VA – Lay-Off and Retrenchment Sec. 25B e) Relief of closure compensation u/s. 25FFF Note: Also refer to Sec. 25FFF for more ratios on closure compensation 1. Available to workman if he has been in continuous service for one year (Mad.DB) ¥ 5A.174 Whether an employee has been in continuous service for one year from the date of entry is to be determined before he can be held to be entitled for compensation u/s. 25FFF and compliance with other conditions of continuous service and period of illegal strike cannot be considered. A. Parthasarathi & Anr. v. Management of Standard Motors Products of India Ltd. & Anr., 1979 LIC 136 (Sum) (Mad.DB) f) Relief of retrenchment compensation 1. Available to workman who is in continuous service and terminated violating Sec. 25F (Pat.DB) ¥ 5A.175 The workmen who was terminated from service had been employed for less than 12 calendar months and since they were not in continuous service in accordance with Sec. 25-B, the Tribunal has rightly denied the retrenchment benefits claimed by them. Workmen of Pure Kustore Colliery (represented by Khan Mazdoor Congress) v. Central Government Industrial Tribunal-cum-Labour Court, Jabalpur & Anr., 1969 I LLJ 126 : 1969 (18) FLR 297 (Pat.DB) “……….the approach……….year’s service.” (Page: 128, Para: 1) “……….before the workmen……….rightly failed.” (Page: 128, Para: 1) ¥ 5A.176 Workman who had worked for not more than 89 days claimed retrenchment compensation since they were not in continuous service of 240 days, as per Sec. 25-B were held not entitled to retrenchment compensation and benefit of Sec. 25H. Indian Airlines v. Sebastian, 1994 III LLJ 498 : 1991 (62) FLR 755 : 1991 I LLN 247 : 1991 I CLR 43 : 1991 LLR 488 (Ker.DB) “Thus it is……….S. 256.” (Page: 503, Para: 8) “In our opinion……….unsustainable.” (Page: 506, Para: 15) ¥ 5A.177 In the present case, the Labour Court recorded a finding that the workmen were in continuous service for the years 1978-1985, so their case falls under Clause (1) of Sec. 25-B, not Clause (2) and they are entitled to be dealt with under the provision of Sec. 25F irrespective of the fact that the workmen did not actually work for 240 days in the last calender year therefore, the Labour Court has rightly held that there was non-compliance of Sec. 25-F and the retrenchment of the workmen was illegal and void. Chief Engineer, Irrigation v. Kamlesh & Ors., 1996 II LLJ 316 : 1996 I LLN 941 : 1996 I CLR 1128 : 1996 LLR 218 (Raj.HC) Note: Refer to the following case also Management of the Food Corporation of India v. Union of India Through Labour Secretary, Government of India & Ors., 2005 (106) FLR 1171 : 2005 LLR 1112 (Jhar.HC) Sec. 25B Reliefs/benefits to workman on complition of continuous service 2355 g) Service benefits 1. Workman entitled to pay scale and other allowances when granted under Government resolution (Guj.HC) ¥ 5A.178 The Government by Resolution granted benefits of pay scale and other allowances to the daily wagers working continuously within the meaning of Sec. 25B of the Industrial Disputes Act. But the workman was not given the benefit of the said two circulars in spite of working for 20 years, though other similarly situated employees were getting the benefits. On representation the authority rejected the request. On appeal, Division Bench held that workman was entitled to all the benefits under resolution dated 17.10.1988, 19.9.1991, 24.4.1998, and 24.3.2006 as permanent employee on par with Government employee. Devraj Punjabhai Makwana v. State of Gujarat & Ors., 2006 LIC 3619 (Guj.HC) “The State of Gujarat……….benefit of both the circulars.” (Page: 3619/3620, Para: 3) “Ultimately, Division Bench……….21 years service.” (Page: 3627, Para: 12) 2. Wages payable to casual workers for the intervening period between termination and re-absorption when done so with a view to prevent completion of 240 days service (S.C.2J) F 5A.179 Where pending reference regarding status of the employees, workers were jettisoned for a few days and later re-absorbed with a view to prevent a continuous run of 240 days of work, Tribunal awarded wages for the said period which was upheld by the Supreme Court. Municipal Corporation of Delhi v. Rasal Singh etc., 1976 II LLJ 96 : 1976 (32) FLR 283 : 1976 II LLN 578 : 1976 LIC 1560 : 1976 SCC (L&S) 217 : 1976 AIR (SC) 2454 : 1976 (2) SCC 179 (S.C.2J) “The facts in the single dispute spread out into a hundred appeals are that the workers were jettisoned for a few days and, later re-absorbed, thus depriving the workers of the small wages for short spells. An industrial dispute was pending at this time relating to the status of the workers as regular employees or only casual workers though ‘continuously on the muster rolls’. Discharge of these workers during the pendency of the dispute before the Tribunal attracted Section 33 of the Industrial Disputes Act which was invoked by the affected workmen. The plea of the Municipal Corporation of budgetary provision having petered out as justifying the non-employment was disbelieved by the Tribunal……….But, having heard counsel on both sides, we are happy to hold that since the award is essentially just it must stand……….Tribunal had read more into the mind of the Commissioner than was warranted by the record……….The workmen have since been held in the Industrial Dispute to be only casual labourers although we hope this will be no weapon in the hands of the employer to breach fair norms. The wages for the broken period will be paid by the appellant within one month……….These conclusions are mutually satisfactory as attested by counsel on both sides and we too share in the happy ending to a forensic saga of misfortune.” (Page: 96, Para: 2) 3. Back wages admissible to daily wagers from the date of regularization but not from the date of initial engagement (S.C.CB) F 5A.180 The Supreme Court not only set aside the judgement of Division Bench to regularize the daily wage workers appointed in Commercial Taxes Department in deficiency of the rule, but also modified the order as to the effective date at the most of making payment of wages equal to the salary that are being paid to regular employees that also not from date of engagement but from the date of judgement of High Court. Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors., 2006 II LLJ 722 : 2006 (109) FLR 826 : 2006 III LLN 78 : 2006 II CLR 261 : 2006 (4) SCC 1 : 2006 AIR (SC) 1806 : 2006 SCC (L&S) 753 (S.C.CB) 2356 Chapter VA – Lay-Off and Retrenchment Sec. 25B “In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages Page 1951 equal to the salary and allowances that are being paid to the regular employees of their cadre in Government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in Government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in Government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.” (Page: 742/743, Para: 46) “Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.” (Page: 743, Para: 47) V. Appropriate forum to grant relief a) Appropriate forum is Industrial Court and not Apex Court (S.C.2J) F 5A.181 The claim for regularisation made in the appeal before Apex Court involved disputed questions of fact and hence it was held that the appropriate forum to adjudicate was the Industrial Court and thus State was directed to make the reference. Bhagwan Singh Rana & Ors. v. U.P. State Food and Essential Commodities Corp. Ltd. & Ors., 1989 (58) FLR 132 : 1989 I LLN 842 (S.C.2J) “Having heard learned counsel for the parties, we are of the opinion that the petition involves disputed question of fact which cannot adequately be decided in the present proceedings. It would be convenient and proper if the dispute raised by the petitioners is adjudicated by an Industrial Court. Learned counsel for the parties are agreeable to this proposal……….” (Page: 132, Para: 2) Sec. 25B Appropriate forum to grant relief 2357 b) Labour Court to record finding as to master servant relationship and on the issue of service of 240 days before granting any relief of reinstatement (Chh.HC) ¥ 5A.182 A mechanic was terminated from service. Aggrieved, he moved Labour Court. Labour Court held his termination illegal and awarded reinstatement with full back-wages and consequential relief. Aggrieved, employee moved High Court which held that the Labour Court’s award was not sustainable as it did not record any finding in regard to ‘master and servant relationship’ and about working of 240 days and remanded the matter back to Labour Court for fresh disposal. M/s. Shivam Motors Pvt. Ltd., Chhattisgarh v. (1) State of Chhattisgarh & Ors. (2) Kand Kumar Verms, 2006 (108) FLR 274 (Chh.HC) Note: Also refer to the following case Jurisdiction – u/s. 11A Labour Court can deal with incidental questions if a larger question is before it, is within the scope of Industrial Tribunal M/s. Indian Farmers Fertiliser Co-op. Ltd. v. Industrial Tribunal Allahabad & Ors., 1992 (65) FLR (Sum) 10 : 1991 LIC 1747 (All.HC) c) Civil Court cannot adjudicate matter falling u/s. 25B (P&H.HC) ¥ 5A.183 An employee who hadcompleted 240 days of employment was terminated in a summary manner made an application in the Trial Court which was dismissed. However the Appellate Court granted decree in his favour. When the aggrieved employer appealed further the Court held that the Civil Court had no jurisdiction since the workman invoked the benefit u/s. 25B and therefore only the Labour Court had the jurisdiction. State of Punjab v. Dawarka Dass, 1976 (49) FJR 430 : 1977 I LLN 120 (P&H.HC) d) High Court cannot grant interim relief directing the employer to consider the case of the workman by creating supernumerary post since it is in the nature of final relief (S.C.2J) F 5A.184 A writ petition was filed by a daily wager for his regularization. The Single Judge passed interim order to consider the case of workman and to create supernumerary post till regular posts fall vacant which was affirmed by Division Bench. Supreme Court held that Single Judge granted interim relief on very first day which was not justified. Relief which was required to be granted only at the final hearing of the matter, should not ordinarily be granted by way of an interim order. It is also doubtful as to whether the impugned direction could have been issued even at the final hearing of the matter which would amount to creation of supernumerary post in purported compliance with the regularization rules because under the settled law as laid down in secretary, State of Karnataka and Ors. v. Umadevi and Ors. (2006 II LLJ 722) it is impermissible to regularize in derogation to the statutory or constitutional scheme. Hence the said orders were set aside. State of U.P. & Ors. v. Desh Raj, 2007 I LLJ 616 : 2007 (112) FLR 456 : 2007 (1) LLN 585 : 2007 SCC (L&S) 163 (S.C.2J) “A writ petition was filed by the respondent herein, inter alia, praying for his regularisation. A learned Single Judge of the Lucknow Bench of the Allahabad High Court on the day of preliminary hearing while issuing rule passed the following order: In the meantime, the opposite parties No. 3 to 5 shall examine the petitioner’s claim for regularization under the Regularization Rules 2001 and pass appropriate orders. However his claim shall not be rejected on the ground of the post being not available. Supernumerary posts have to be created to comply with the provisions of the Regularization Rules and kept alive until regular posts fall vacant. Till a decision is taken, the petitioner shall be paid wages equivalent to the minimum of pay scale admissible to a Mate working in the department with effect from 1st January, 2004.” (Page: 617, Para: 4) 2358 Chapter VA – Lay-Off and Retrenchment Sec. 25B “A bare perusal of the impugned order could show that the learned Single Judge for all intent and purport had allowed the writ petition on the very first day, which in our opinion, was not justified. It is now well-settled that a relief which can be granted only at the final hearing of the matter, should not ordinarily he granted by way of an interim order. It is also doubtful as to whether the impugned directions could have been issued even at the final hearing of the matter which would amount to creation of supernumerary post in purported compliance of the regularisation rules.” (Page: 617, Para: 4) VI. Settled law on the issues under this section a) Burden of proof as to 240 days of continuous service lies on the employees (S.C.3J) Issue – Burden of proof as to 240 days of continuous service lies on the employees Case Law – Manager R.B.I. Bangalore v. S. Mani & Ors., 2005 (105) FLR 1067 : 2005 II LLN 952 : 2005 LIC 2598 : 2005 II CLR 3 : 2005 LLR 737 : 2005 SCC (L&S) 609 : 2005 AIR (SC) 2179 : 2005 (5) SCC 100 (S.C.3J) Please see related ratio/s under the above citation in this section Note : As regards the question on whom lies the burden to prove 240 days of service, the three Judge Bench of the Apex Court in the above case and other cases referred here settle as of to-day the legal position on the question as to on whom the burden to prove 240 days of service lies as of to-day b) Temporary, contractual, casual or adhoc employees employed dehors the rules not entitled to regularisation (S.C.CB) Issue – Workmen who are temporary, contractual, casual or adhoc employees employed dehors the rules and against constitutional scheme of public employment are not entitled to regularization despite completing 240 days of service Case Law – Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors., 2006 II LLJ 722 : 2006 (109) FLR 826 : 2006 III LLN 78 : 2006 II CLR 261 : 2006 (4) SCC 1 : 2006 AIR (SC) 1806 : 2006 SCC (L&S) 753 (S.C.CB) Please see related ratio/s under the above citation in this section Note: The above case settles the legal position as of to-day on the rights of temporary, casual or adhoc workmen to regularization in Government employment or it’s instrumentalities despite completing 240 days by disentitling them to the same c) No adverse inference can be drawn on employer’s failure to produce relevant muster rolls since the burden of proof is on workman (S.C.3J) Issue – No adverse inference can be drawn on employer’s failure to produce relevant muster rolls since the burden of proof is on workman Case law- Manager R.B.I. Bangalore v. S. Mani & Ors., 2005 (105) FLR 1067 : 2005 II LLN 952 : 2005 LIC 2598 : 2005 II CLR 3 : 2005 LLR 737 : 2005 SCC (L&S) 609 : 2005 AIR (SC) 2179 : 2005 (5) SCC 100 (S.C.3J) Municipal Corporation, Faridabad v. Siri Niwas, 2004 (107) FJR 248 : 2004 (103) FLR 187 : 2004 IV LLN 785 : 2004 III CLR 543 : 2004 LLR 1022 : 2004 SCC (L&S) 1062 : 2004 (8) SCC 195 (S.C.2J) Please see related ratio/s under the above citation in this section Note : The above cases indicate the latest legal position on adverse inference Sec. 25C Attributes of Layoff compensation 2359 d) Mere affidavit by workman is not sufficient to prove continuous service of 240 days (S.C.2J) Issue – Mere affidavit by workman is insufficient to prove continuous service of 240 days Case Law – Range Forest Officer v. S. T. Hadimani, with State of Karnataka & Anr. v. S. T. Hadimani, 2002 II LLN 391 : 2002 LLR 339 : 2002 LIC 987 : 2002 SCC (L&S) 367 : 2002 AIR (SC) 1147 (S.C.2J) Case Law – Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan & Anr., 2004 III LLJ 832 : 2004 (107) FJR 264 : 2004 (103) FLR 192 : 2004 IV LLN 845 : 2004 SCC (L&S) 1055 : 2004 (8) SCC 161 (S.C.2J) Please see related ratio/s under the above citation in this section Note: The Supreme Court judgement in Range Forest Officer v. S. T. Hadimani, with State of Karnataka & Anr. v. S. T. Hadimani, 2002 II LLN 391 : 2002 LLR 339 : 2002 LIC 987 : 2002 SCC (L&S) 367 : 2002 AIR (SC) 1147 (S.C.2J) and also in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan & Anr., 2004 III LLJ 832 : 2004 (107) FJR 264 : 2004 (103) FLR 192 : 2004 IV LLN 845 : 2004 SCC (L&S) 1055 : 2004 (8) SCC 161 (S.C.2J) indicate the present legal position on the subject D. Right of workmen laid off for compensation – Sec. 25C (Note: Please refer to Sections 2(kkk) and 25E for related ratios on lay-off) I. Attributes of Layoff compensation a) Lay-off compensation does not fall within the definition of wages since not being remuneration or paid for employment (Bom.DB) ¥ 5A.185 Lay off compensation is payable on account of inability to provide work and not for services rendered, therefore it cannot be held to be remuneration, nor is it in respect of employment hence it is not within the definition of wages. Anusuyabai Vital v. J.H. Mehta, 1959 II LLJ 742 (Bom.DB) “The question……….Wages Act……….” (Page: 743, Para: 1) “……….It is however……….resumed.” (Page: 744, Para: 1) “……….When no services are……….the definition……….” (Page: 745, Para: 1) “Compensation which……….employment.” (Page: 745, Para: 1) “……….The compensation for……….employment.” (Page: 745, Para: 2) “As, therefore……….definition……….” (Page: 746, Para: 2) Note: Kerala Division Bench differs in the case of Mohankumar v. Dy. Labour Commissioner, 1996 II LLJ 484 : 1996 II LLN 793 (Ker.DB) (infra) 2360 Chapter VA – Lay-Off and Retrenchment Sec. 25C b) Secs. 25C and 25F are independent and Sec. 25F can be invoked without recourse to lay-off (Bom.DB) ¥ 5A.186 Secs. 25C and 25F are independent and resorting to lay-off is not a condition precedent to attract provisions of Sec. 25F. Bhartiya Kamgar Sena v. Indabrator Ltd. & Anr., 1987 (55) FLR 615 : 1987 II LLN 648 (Bom.DB) “It must be……….by the employer.” (Page: 616, Para: 2) c) Lay off compensation counts for bonus (Ker.DB) ¥ 5A.187 Lay off compensation being wages to be counted for determining the bonus payable to workman. Mohankumar v. Dy. Labour Commissioner, 1996 II LLJ 484 : 1996 II LLN 793 (Ker.DB) “Under sec 25C……….of the Bonus Act.” (Page: 486, Para: 7) “We, therefore……….petitioner.” (Page: 487, Para: 11) d) Payment of lay off compensation is not a condition precedent to laying off workmen (Bom.DB) ¥ 5A.188 Where the Standing Orders of the company provided lay off on account of shortage of process without any compensation, and where due to absenteeism of workmen in preparatory department, workmen in connected departments were laid off, it was held that compliance with provisions of Chapter VA, not being a condition precedent for lay off, union cannot contend that lay off amounted to illegal change u/s. 41 of Berar Act because of non-payment of compensation and hence allowing the petition of management, order of State Industrial Court that there was an illegal change was set aside. Central India Spinning, Weaving & Manufacturing Co. Ltd. (Empress Mills), Nagpur v. State Industrial Court, Nagpur, 1959 I LLJ 468 (Bom.DB) “……….After recording evidence……….Industrial Dispute Act……….” (Page: 470, Para: 3) “……….Standing Orders 19(1)……….in lieu of notice……….” (Page: 473, Para: 4) “……….No doubt, the standing……….by the petitioner.” (Page: 474, Para: 1) “……….The omission of……….in an illegal change.” (Page: 474, Para: 4) “upon this view………..the State Industrial Court……….” (Page: 474, Para: 5) e) Lay off compensation ranks in priority over the claim of secured creditor like bank (Karn.DB) ¥ 5A.189 A sick company is liable to pay lay-off compensation to the workers who have priority over the claim of the Bank which is a secured creditor. Even the remaining amount cannot be paid over to the Bank as claim of workmen, for lay-off compensation is a recurring claim in case of a sugar factory. Siruguppa Sugars & Chemicals Ltd. Gauribidanur v. Commissioner of Labour, Government of Karnataka & Ors., 2002 (101) FJR 430 : 2002 (95) FLR 171 : 2002 II CLR 668 (Karn.DB) Sec. 25C Who are exempted 2361 II. Who are exempted a) Badli employees since they have no right to claim employment (S.C.2J) F 5A.190 As Badli workman gets work only in the absence of regular employees for temporary period without any right to claim employment, therefore they are excluded from benefit of layoff compensation. Prakash Cotton Mills Pvt. Ltd. v. Rashtriya Mills Mazdoor Sangh, 1987 I LLJ 97 : 1986 (69) FJR 254 : 1986 (53) FLR 310 : 1986 II LLN 459 : 1986 LIC 1361 : 1986 SCC (L&S) 682 : 1986 AIR (SC) 1514 : 1986 (3) SCC 588 (S.C.2J) “……….It has been rightly submitted by the learned Counsel for the appellant that the Badli employees could not be said to have been deprived of any work to which they had no right and, consequently they are not entitled to any compensation for the closure……….In this connection, we may refer to section 25C of the Industrial Disputes Act, 1947 which excludes a Badli workman or a casual workman from the benefit of compensation in the case of lay–off.” (Page: 101, Para: 14) ¥ 5A.191 Badli worker who is kept on work when permanent operator or probationer is temporarily absent cannot claim lay off compensation on the days he is not kept on work whereas workman is entitled to lay off compensation when he has a right to be given work but is refused employment on that day for any reason falling u/s. 2(kkk) and hence application u/s. 33C(2) by Badli worker is not maintainable and his application by Labour Court was rejected which was upheld by Bench. Girdharlal Laljibhai v. M.N. Nagrashna & Anr., 1964 II LLJ 235 (Guj.DB) “……….the petitioner filed an……….for those days……….in that application the……….application was dismissed……….” (Page: 236, Para: 1) “……….lay-off must……….or analogous reason……….a badli workers……….or a probationer was absent.” (Page: 237, Para: 2) “……….we, therefore hold that………days in question……….the order of the………..and is dismissed……….” (Page: 238, Para: 1) ¥ 5A.192 In view of provision of Sec. 25C which specifically excludes badli workers to claim lay-off compensation High Court held that where the statute wanted Badli worker’s exclusion, it expressly did the same and that is indicative of the fact that they will be ‘workmen’ for other sections and hence termination of a Badli worker completing 240 days of service in violation of Sec. 25F amounts to illegal retrenchment and upholding Labour Court’s decision, High Court directed reinstatement with back wages. Sarabhai Chemicals v. Subhas N. Pandya, 1984 II LLJ 75 : 1984 (49) FLR 244 : 1984 I LLN 601 (Guj.DB) “……….In fact, it is……….what was done.” (Page: 75, Para: 3) “Section 25C, it……….be workmen otherwise……….” (Page: 76, Para: 5) “……….we find no……….it does fall.” (Page: 77, Para: 6) “……….we give three……….of back wages.” (Page: 77, Para: 8) b) Seasonal workers since not granted under Industrial Disputes Act (MP.DB) ¥ 5A.193 If under Industrial Disputes Act lay-off compensation cannot be granted to workers in seasonal industry on grounds of social justice or any other description such as “retention allowance”. Harris Mineral Supply Co. & Ors. v. Salim M. Merchant & Ors., 1965-66 (29) FJR 420 (MP.DB) .DB) ¥ 5A. Sec. 25C. Labour Court. 1983 II LLN 105 : 1983 LIC 824 (Gau. Madurai & Anr. 25C provides that a workman is entitled to lay-off compensation if his name is found in the muster rolls and the manner in which the name is described does not affect the right. Kovilpatti & Anr.DB) ¥ 5A. if badli worker is employed continuously for more than 240 days he qualifies himself to be a workman under the explanation to Sec.DB) ¥ 5A.O. 2(kkk) and hence Labour Court finding that lay off is not justified and its award of wages at the rates prevailing at the time of lay-off for the period in which they remained unemployed by way of compensation. 25C is not applicable (Gau. 25C “In directing that those……….” (Page: 264. Management of Gauhati Press Pvt. P. G.196 When workmen claimed full wages for the period of lay-off under contract of service. Ltd.If under section 25–A read………..Only if a………. Labour Court. 1986 II LLJ 263 : 1986 II LLN 594 (Mad.Badli worker when can claim a) When he completes 240 days of continuous service as per explanation to the section (Mad.DB) “It being the categorical………. v.is not applicable to it………. 1965 I LLJ 92 (Mad.” (Page: 427/428. Quantum of Compensation a) Labour Court can determine whether lay-off is in accordance with standing orders (Mad.. they could contend that lay-off was not in pursuance of standing orders when management had relied on the Standing orders in support of the lay-off and Labour Court can go into the question whether lay-off was in accordance with standing orders in order to determine the quantum of compensation payable to the workmen.” (Page: 500.and 25C. Ltd.. Labour Court & Ors.HC) IV. is proper.DB) “Section 25C……….dependent on that.HC) b) When his name is found in the muster roll and completed one year of service (Mad. Para: 3) “………. v.2362 Chapter VA – Lay-Off and Retrenchment Sec.workers cannot be sustained……….” (Page: 500. Madras (by Superintendent) v. Vijayakumar Mills Ltd.195 A worker whose name is found in the muster roll as “badli worker” and who has completed one year of continuous service was held entitled to lay-off compensation because Sec.DB) . 1960 II LLJ 567 : 1960-61 (18) FJR 286 (Mad.HC) ¥ 5A.. thereby nullifies the exclusion provided by that section and can claim lay off compensation in terms of explanation thereto.194 Since. & Ors. Para: 4) Note: the following cases may be referred Lakshmi Mills Company. 1975 I LLJ 498 : 1975 (31) FLR 232 : 1974 (46) FJR 294 : 1974 II LLN 433 (Mad. Gowri & Ors.197 As the number of workmen employed was less than fifty. Tansi Leather Works. Gauhati. 25C was not applicable to them. Joseph & Ors. Para: 2) III. Para: 5) b) Last drawn wages is proper when lay off is not authorized or justified and Sec. Loyal Textile Mills. P.retrenched. v. v. The employer was not authorised to lay off employees as there were no standing orders or terms of contract to that effect and illness of the Assistant Managing Director is not a ground for lay off u/s. Siruguppa Sugars & Chemicals Ltd. Commissioner of Labour. 2002 (101) FJR 430 : 2002 (95) FLR 171 : 2002 II CLR 668 (Karn. Firestone Tyre and Rubber Co.C. The Workmen of M/s.interfered with. P. Government of Karnataka & Ors. Ltd.200 It is open to the employer to produce muster rolls to substantiate its case regarding workers to be badli or casual. Is on the employer to produce muster rolls to prove status of workmen (Karn. The Firestone Tyre and Rubber Co.HC) Note: Also refer to Sec.. B. Their workmen. AND Thiru J.P...C. then the payment of compensation will be governed by the provisions of chapter VA but in the instant case where the total number of workmen being 30. Kanpur. & Anr. of India (P) Ltd. the workmen were held entitled to lay-off compensation u/s. v. Singh.it is rejected. & Ors.DB) . Labour Court.” (Page: 109.199 The High Court held that the workmen are entitled to only compensation as per the provisions of Sec. Firestone Tyre and Rubber Co.1964 I LLJ 601 : 1964 (8) FLR 256 (All.O. 25-J provides that Sec. 25-J for additional ratios on lay-off compensation f) Burden of proof 1. it was held by Apex Court that in such case the lay–off compensation will be equal to full wages but the Tribunal can award lesser amount of compensation if the lay-off is held justified.the case. 25C of the Act.3J) Note: Please see related ratio/s under the above citation in this section d) Compensation can be full wages in case of an establishment to which neither standing orders nor Chapter VA applicable or can be lesser if lay-off is justified (S. Gauribidanur v.. 25C when lay-off is malafide (S.” (Page: 109.C. 1976 I LLJ 493 : 1976 (49) FJR 177 : 1976 (32) FLR 170 : 1976 II LLN 176 : 1976 LIC 1154 : 1976 SCC (L&S) 504 : 1976 AIR (SC) 1775 : 1976 (3) SCC 819 (S.HC) ¥ 5A.. In industrial establishments to which Chapter VA applies. 1962 I LLJ 382 : 1962 (4) FLR 470 : 1962-63 (22) FJR 79 : 1962 AIR (SC) 1533 (S. Para: 9) “When the………. 25C supersedes the standing orders of the establishment. British India Corporation. Management of M/s. Para: 9) c) Compensation not restricted to Sec. of India Pvt.198 Supreme Court held that Chapter VA of Industrial Disputes Act is not a complete code in itself regarding payment of lay off compensation. neither chapter VA nor standing orders were not applicable. George & Anr.” (Page: 109.3J) Tatangar Fountry Co. v.Sec. Para: 8) “By the same……….2J) Note: Please see related ratio/s under the above citation in this section e) Lay-off compensation u/s.2J) F 5A. N.DB) ¥ 5A. where the management has power to lay-off. Kanpur v. Ltd. v. 25C Quantum of Compensation 2363 “In our present……….C. 25C which has already been paid because Sec. but since in this case evidence regarding the same was not produced. 25C to be given but not as per Standing Orders since the Central Act prevails over Standing Orders (All. C.202 The workmen who had been laid off for half an hour for seven days due to shortage of electric power were rightly granted lay off compensation by the Labour Court as the definition of lay-off is general and does not state the extent of the period of lay-off.. Para: 13) “The result is. 1968 I LLJ 610 : 1968 LIC 480 (Bom.. has in law taken place and so. in the sense that the employer has deliberately and maliciously brought about a situation where the lay off became necessary then such lay off u/s.: 18) “There was nothing in……….of lay off.. 25J for additional ratios on lay-off compensation a) When lay off is justified and not malafide (S..: 22) .2364 Chapter VA – Lay-Off and Retrenchment Sec.C. it seems to us that the Tribunal exceeded its jurisdiction in trying to decide whether better management could have avoided the crisis. Para: 12) “……….” (Page: 1536.L. v. then it would not be a lay-off which is justified under s.HC) b) When lay off is due to shortage of electricity (Bom.The Tribunal has found that the appellant was in financial difficulties at the relevant time. pig iron could have been secured and lay-off could have been avoided. & Ors. 25C but entitled for additional compensation. 2(kkk) was held does not amount to lay off and held that relief given will not be merely restricted to what is prescribed u/s.3J) F 5A. Apart from the fact that this conclusion does not appear to be borne out by any evidence on record. 25C would not be the only relief to which they are entitled.3J) “It is also not in dispute that if the lay-off is malafide in the sense that the employer has deliberately and maliciously brought about a situation where lay off became necessary. There would be no order as to costs. it has found that the appellant was not actuated by any malafide intention.” (Page: 613. T. T. However in the instant case.DB) “The admitted facts of………. Para: 14) Note: The following case/s also be referred Kundan Iron & Steel Industrial v. Col. It would not be a lay-off as contemplated by s.not been retrenched..... State of Punjab & Ors. a finding as to malafides of the employer in declaring a lay-off naturally takes the lay-off out of the definition of s. Malafides of the employer in declaring a lay-off really mean that no lay-off.: 2. 2(kkk) and the relief provided to the laid-off workmen under s.201 Where the lay off was found to be malafide or has been declared to victimize the workmen or for some other ulterior purpose. 25C cannot be held to be applicable to it so as to confine the workmen’s right to the compensation therein prescribed. came to the conclusion that the management could have avoided the lay-off by better management and far-sight which finding is not within the jurisdiction of the tribunal and hence it’s order granting 75% of consolidated wages as compensation was set aside. Their workmen. the position would be the same. Tatanagar Fountry Co. the tribunal while arriving at a finding that the company was passing through financial difficulties at the relevant time and the lay-off was not actuated by malafides. it has come to the conclusion that the lay-off was not the result of any ulterior motive.. as contemplated by the definition. 2(kkk)” (Page: 1536. Nagpur. Labour Court. and yet it has finally come to the conclusion that if the affairs of the appellant had been better managed and more foresight had been shown by the appellant prior to the time when the crisis was reached.. If the lay-off has been declared in order to victimise the workmen or for some other ulterior purpose.” (Page: 612. When payable Note: Also refer to Sec. the appeal succeeds and the order passed by the Tribunal for the payment of compensation of 75% of the consolidated wages is set aside. 25C V.DB) ¥ 5A.L. 1961 II LLJ 599 : 1961-62 (20) FJR 370 (Punj. 2(kkk) and as such s.” (Page: 1536. 1962 AIR (SC) 1533 : 1962 I LLJ 382 : 1962 (4) FLR 470 : 1962-63 (22) FJR 79 (S. v. Col.: 2.. Ltd. Rai Saheb Rekchand Mohota Spinning & Weaving Mills Pvt. not ruled out. 25C When payable 2365 “As adumbrated the ………. AND Thiru J. therefore. Firestone Tyre and Rubber Co.” (Page: 500. An industrial dispute was raised and referred by the Delhi Administration………. Delhi has held that the workmen are not entitled to any lay-off compensation. B. B. Para: 12) “In the case of the Delhi Office of the respondent the Tribunal has held that the lay-off was justified. Such a power. (kkk) of S.: 2. of India Pvt. we direct that 75% of the basic wages and dearness allowance would be paid to the workmen concerned for the period of lay-off………. where the management has power to lay-off. The Workmen of M/s. Instead of sending back the case to the Tribunal. Para: 4) “Under the general law of master and servant.2J) “The lay-off of the 17 workmen whose names were mentioned in the notice was recalled by the management on the 22nd April 1968. The Firestone Tyre and Rubber Co. Col. 2 is not a temporary discharge of the workman. Ltd. must be found out from the terms of contract of service or the standing orders governing the establishment.” (Page: 497.” (Page: 615. the question of payment of compensation will be governed and determined by the said provisions. This case. it was held by Apex Court that in such case the lay-off compensation will be equal to full wages but the Tribunal can ward lesser amount of compensation if the lay-off is held justified. & Anr. Management of M/s. therefore. neither Chapter VA nor standing orders were not applicable. The workmen were not given their wages or compensation for the period of lay-off. It was open to the Tribunal to award a lesser amount of compensation than the full wages.” (Page: 615.stated therein.203 Supreme Court held that Chapter VA of Industrial Disputes Act is not a complete code in itself regarding payment of lay off compensation.Sec. 1976 I LLJ 493 : 1976 (49) FJR 177 : 1976 (32) FLR 170 : 1976 II LLN 176 : 1976 LIC 1154 : 1976 SCC (L&S) 504 : 1976 AIR (SC) 1775 : 1976 (3) SCC 819 (S.2J) F 5A. v. Mere refusal or inability to give employment to the workmen when he reports for duty on one or more grounds mentioned in cl. Hence this is an appeal by their union. In Industrial Establishments where there is a power in the management to lay-off a workman and to which the provisions of Chapter VA apply.C. George & Anr.: 2) “In our opinion………. Nor was there any term of contract of service conferring any such right of lay-off.” (Page: 616. goes out of Chapter VA………. Para: 3) “The Presiding officer of the Additional Industrial Tribunal. In the instant case the number of workmen being only 30. then the payment of compensation will be governed by the provisions of Chapter VA but in the instant case where the total number of workmen being 30. Col. there were no standing orders certified under the Industrial Employment (Standing Orders) Act. 1946.: 15) “A perusal of the………. Para: 2) c) Even when an establishment has only 30 employees to which neither standing orders nor Chapter VA applicable (S. v.616.C.L.” (Page: 614.dismissed with costs. N.his normal. In such a situation the conclusion seems to be inescapable that the workmen were laid off without any authority of law or the power in the management under the contract of service. In industrial establishments to which Chapter VA applies..L. Para: 1) “It is unfortunate……….: 2. Otherwise Chapter VA is not a complete Code as was argued on behalf of the respondent company in the matter of payment of lay-off compensation. Para: 19) . an employer may discharge an employee either temporarily or permanently but that cannot be without adequate notice.” (Page: 494. of India (P) Ltd.” (Page: 494/ 495. Firestone Tyre and Rubber Co.. . Ltd.in the present case. and that as the appellant had offered to pay .” (Page: 99. The contention is.3J) “………. certain detention orders were passed by the Assistant Collector of Central Excise detaining the goods of the appellant like cotton fabrics. overruled.C. We.2J) F 5A. it is clear that the lay off which falls within the proviso (b) to S.C. Ltd. the appellant was not liable to pay any compensation for such closure………. Under the circumstances. uphold the order of the Industrial Court directing payment of compensation to the employees of the appellant for the above period of closure.2366 Chapter VA – Lay-Off and Retrenchment Sec. Faquir Chand Sharma & Ors. 25-C. The Standing Order 16 provides that such closure can be made without notice and no compensation would be required to be paid in lieu of notice. 25C of the Act as such closure amounts to layoff.” (Page: 99. 25-C can such a lay off be brought within its purview………. 1987 I LLJ 97 : 1986 (69) FJR 254 : 1986 (53) FLR 310 : 1986 II LLN 459 : 1986 LIC 1361 : 1986 SCC (L&S) 682 : 1986 AIR (SC) 1514 : 1986 (3) SCC 588 (S. And as.there is no dispute that the compensation payable for the first 45 days has to be determined in accordance with proviso (a) to S.” (Page: 752. v.204 Even though there was a temporary closure of the mill caused by detention order of central excise authorities it cannot be said to be beyond the control of management as per standing order.The respondent-Sangh demanded that the employees who were affected by the said closure from March 29.C.” (Page: 101. 1956 I LLJ 749 : 1956-57 (10) FJR 391 : 1956 AIR (SC) 628 (S. By no straining of the language of proviso (b) to S. Para: 4) “There is no substance in the contention of the appellant that as the closure had to be made under certain compelling circumstances.We are accordingly of opinion that the respondents are entitled to compensation only for the 45 days as provided in proviso (a).25-C and subsequent thereto in point of time. 25C d) When temporary closure of establishment is not due to reasons beyond the control of management like detention order of Central Excise authorities (S. That proviso would apply only if the workmen had been paid compensation for 45 days were again laid off for further periods of more than one week at a time. there is no substance in the contention of the appellant that as the closure had been made in accordance with Standing Orders. in the present case there was one continuous lay off for the entire period. cotton yarn and cotton bales… and. consequently. 25-C. therefore. there was only one notification.2J) “It appears that on account of the alleged failure of the appellant to pay the Central Excise duty. v. accordingly. 1964 to June 10. Prakash Cotton Mills Pvt. 1964 should be paid their wages for the entire period………. and the period specified therein was up to the next season. the appellant was not liable to pay compensation to any of its employees. It is clear from Standing Order 16 that it does not contemplate that when there has been a closure on account of some unavoidable circumstances. there was a disruption in the functioning of the appellant’s mill compelling the appellant to stop the working of the mill………. Para: 3) “………. no compensation is required to be paid to the employees. On the wording of the section. The dispute is only as to whether for the rest of the period of lay off the workmen are entitled to compensation under proviso (b) to S.It was contended on behalf of the appellant that as the closure was due to certain circumstances beyond the control of the appellant.3J) F 5A.C. Para: 2) “………. hence regular employees are entitled to lay off compensation u/s. Modi Food Products & Co. 25-C must be distinct from that for which compensation had been paid in accordance with proviso (a) to S.205 Continuous lay off under a single notification cannot be split into first period of 45 days covered by proviso (a) and the remaining period by proviso (b) and hence the demand of employees that they should also be paid for remaining period as per proviso (b) in addition to compensation offered by employer for first 45 days as per proviso (a) was rejected and hence Tribunal’s order granting compensation for entire lay off period was set aside. proviso (b) could have no application. Rashtriya Mills Mazdoor Sangh. Para: 13) e) Payable only for 45 days even though lay off is continuous by single notification (S. was not justified and upheld the finding of Tribunal that it was due to retaliatory or vindictive measure against factory workers and eschewing the other contention that strike had resulted in losses. The Tribunal has ordered that the lay-off compensation should be paid by the appellant to its workmen under the provisions of S. is justified. November 30. Workmen & Anr. His first argument was that the appellant was not liable to pay any lay-off compensation because this lay-off was the result of a settlement between the parties reached on October 4. M-15. This plea has been found to be true. Management of Churakulam Tea Estate (P) Ltd. but. the agreement postulated that no dispute would be raised by the workmen in regard to such a lay-off. the petition of the respondents was liable to be rejected. Para: 3) f) Payable even though Lay off is by mutual agreement (S.. work . v.C. under the provisions ofSection25E (iii) and hence the workmen are not entitled to compensation. Sastri attempted to raise two contentions against this award. by the Tribunal. 1969 AIR (SC) 998 : 1969 II LLJ 407 : 1970 (37) FJR 202 : 1969 (19) FLR 203 : 1969 LIC 1396 (S.207 When only 27 workmen had gone on half day’s strike and next day the entire body of workmen including the 27 striking workmen presented themselves for work. during this period. M.this dispute relates to the laying off the workmen by the appellant from October 7.3J) “……….C. the Supreme Court agreed with the Tribunal that 3 hours token strike by only 27 workmen would not have resulted in any loss to the company and found no error in ordering wages for the period of lay off.e. the Court held that the refusal to provide work by the management to all of them on the ground of lay off applying Sec.” (Page: 1004. without previous intimation. according to the management. 1961. Para: 2) “We accordingly allow the appeal.out of the garden to an end One of the terms of this settlement was that the management will reopen the garden with effect from October 7. 1961. 25C When payable 2367 the same by its notice dated 12-7-1954.3J) F 5A. 1957 We have already noticed how this settlement brought the closure or lock.” (Page: 752. (In both the Appeals) v.” (Page: 564. In our opinion.On the very day that the factory workers went on strike i. the management put up a notice. the lay-off.206 As per the agreement the tea gardens where there was a lock out was reopened and those employees who could not be kept in employment were to be laid off as per the law therefore even though the parties had entered into an agreement and mutually agreed to lay off some employees lay off compensation was payable as the agreement expressly says lay off would be as per the law. in consequence. The appellant has filed a list Ex.the plea of the workers is that all of them reported for duty on December 1. 25E(iii) of Industrial Disputes Act even when only 27 workers have actually gone on strike. and that. but they were not given any work by the management on the ground that there was a lay-off. no compensation can be claimed by the respondents. 1967 AIR (SC) 560 : 1964 I LLJ 436 : 1963 (7) FLR 469 (S.3J) “………. set aside the order of the Tribunal………. Para: 25) “………. Workmen of Demdima Tea Estate (In both the Appeals). According to the management. there was no alteration of the conditions of the service within S.22 of the Act. It is true that the parties contemplated and agreed that some workmen may have to be laid-off and so.C. there is no substance in this argument. the management was forced to lay-off without compensation all the workmen in the entire establishment as from December 1.” (Page: 752. inasmuch as there was a strike in the factory section. But the parties also agreed expressly that the lay-off will be in accordance with law and that necessarily involves the payment of compensation as provided by S. the facts in regard to the 1ay-off are not in dispute. 1961……….Sec. in this case. 25C of the Industrial Disputes Act. 1957 and provide immediate employment to as many workers as possible and will lay-off the remainder of the labour force in accordance with 1aw. Northern Dooars Tea Co. 1957.. Mr. 25C. Ex. Ltd. 1 showing the details of this laying off and how it was lifted and giving the number of workmen with respect to whom the lay-off operated and the period for which it so operated. The argument is that since this lay-off was agreed to by the parties. In other words. to the effect that since all the factory workers had gone on strike at 1 P. Para: 13) g) When lay off is resorted to in retaliation to strike (S.C.3J) F 5A. 210 The workmen who can claim the benefit of Sec. Para: 26) h) Can not be avoided on the ground that company incurred losses on account of half day’s strike (S. 1969 AIR (SC) 998 : 1969 II LLJ 407 : 1970 (37) FJR 202 : 1969 (19) FLR 203 : 1969 LIC 1396 (S. Ltd. and so. 2(kkk) of the Act and there is no inherent common law right dehors the section. 1961. We are not inclined to accept this contention advanced on behalf of the management. Workmen & Anr. and for such lay-off compensation would be awarded under S. Coimbatore & Anr. 25C in the other sections could not be carried on. was as a retaliatory or vindictive measure against the factory workers. it is the laying off as defined by S.C.2 (kkk). 25C recognizes the inherent right of the employer to declare lay-off for reasons which he may regard as sufficient or satisfactory in that behalf. would not have resulted in any loss to the management. R.C. When the laying off of the workmen is referred to in S. workmen who can claim the benefit of S. and.208 Management laid off all the workmen who presented themselves for work subsequent to half day’s protest strike by 27 workers. No such common law right can be spelt out from the provisions of S.The question which we are concerned with at this stage is whether it can be said that S. Management of Churakulam Tea Estate Pvt. It was held that Management’s plea of incurring losses as a result of half day strike did not justify lay off for about 8 days and Sec. 1961. 1965 II LLJ 677 : 1966-67 (30) FJR 341 : 1968 LIC 509 (Mad. Therefore we do not think that the tribunal was right in holding that S. v. who went on strike on November 30.3J) F 5A. as the management were not sure whether the workmen would turn up for work.. The P. but they were declined work by the management on the ground of lay-off. 25C. We are in agreement with the findings. recorded by the Tribunal in this behalf and the award by the Tribunal of wages to the workmen for this period is justified.HC) ¥ 5A. Narayanaswami v. by the management. We have already referred to the finding of the Tribunal that twenty-seven factory workmen alone went on strike on November 30. if they had allowed the workmen to do work on December 1. 1964 I LLJ 358 : 1963–64 (25) FJR 386 : 1964 (8) FLR 167 : 1964 AIR (SC) 1458 (S. Para: 1) . 1961. Workers of Dewan Tea Estate & Ors. 25C recognizes a common law right of the industrial employer to lay off his workmen..25C must be workmen who are laid off and laid off for reasons contemplated by S. 1961.3J) Note: Please see related ratio/s under the above citation in this section i) When workmen could not be given work due to dismantling of machines and installation of the same (Mad.C. lay off must be defined u/s. lay-off.25C” (Page: 363. be answered in the negative.209 Workmen who were not given work in a textile mill owing to dismantling of the preparatory machines and installation of the same were held to be entitled to lay-off compensation as there was inability on the part of the employer to provide work to the workmen. v. available to the employer to declare lay off for reasons he deems fit.2368 Chapter VA – Lay-Off and Retrenchment Sec.2(kkk) is present. This question must. Their Management.3J) “………. that is all that S. The plea of the management that they suffered loss. and the entire body of workmen presented themselves for work on December 1. 2(kkk) (S. 1961.25G.2(kkk).HC) j) Only when lay-off falls u/s.25C. justifying the lay-off. Labour Court. The Tribunal has also held that the lay-off. 1961.” (Page: 1004. was justified. and lay-off would be permissible only where one or the other of the factors mentioned by S. 25C means.C. If any case is not covered by the standing orders. 2(kkk) of Industrial Disputes Act and therefore the lay off permitted by the standing order was held to satisfy the requirements of Sec. in our opinion. it will necessarily be governed by the provisions of the Act. 25E(iii) was inapplicable hence lay off being retaliatory and vindictive in nature workmen are entitled to claim wages for lay off period. has not been accepted by the Tribunal.3J) F 5A. on account of the half a day’s strike on November 30.O. in the circumstances. In fact the Tribunal has accepted the plea of the workmen that the effect of the three hours’ token strike on November 30. 1962 AIR (SC) 1533 : 1962 I LLJ 382 : 1962 (4) FLR 470 : 1962-63 (22) FJR 79 (S. it seems to us that the Tribunal exceeded its jurisdiction in trying to decide whether better management could have avoided the crisis. Aggarwala to the deposition of Mr. in the instant case was set aside. medical relief. Besides as we have just. it is necessary that he must submit to an enquiry by the Industrial Tribunal about the prudence of the management and the fore-thought displayed by it in anticipating and avoiding the difficulties. 25C When not payable 2369 VI.3J) “………. fuel and forest produce were given during suspension.CB) “As regards the compensation to retrenched workmen. 9 of the Standing Orders. The Tribunal did not attempt to evaluate accurately the pecuniary value of all these concessions but it has expressed the view that the value of these concessions would be roughly equal to one week’s wages for every four months of unemployment and therefore the retrenched workmen were not entitled to any compensation in cash apart from any right to wages in lieu of a week’s notice under Cl. M. They were also granted medical relief. Bipan at page 97. In that connection.. it is significant that subsequently the section in question has been closed and the retrenched workmen have been paid the retrenchment compensation due to them.212 As amenities like undisturbed possession of quarters.C. ex-gratia payment was held to be sufficient and since error of law or legal principle in deciding compensation amount was not shown the Apex Court refused to interfere with the computation. the Tribunal has exceeded its jurisdiction. then thereafter the Tribunal was not justified to hold by embarking into the domain of the management function and to opine that by foresight. 1966 AIR (SC) 987 : 1966 I LLJ 420 : 1965-66 (28) FJR 320 : 1966 (12) FLR 153 (S. indicated. Assam v. but it would.C.Apart from the fact that this conclusion does not appear to be borne out by any evidence on record. not be reasonable or fair to hold that if the employer is faced with a situation under which for lack of raw materials he has to lay-off his workmen. v. That is why we think in embarking upon in enquiry as to whether the apparent had shown sufficient foresight in managing its affairs.C. the Tribunal has stated in para 185 of the Award that the amenities granted to them included undisturbed possession of residential quarters and khet lands. Para: 13) b) If amenities like quarters and medical relief are provided during the suspension (S. When not payable a) When lay-off not malafide and due to shortage of raw materials (S. Aggarwala said that the retrenched workmen were entitled to get a larger amount of compensation than that awarded by the Tribunal. On behalf of the appellant reference was made by Mr. we think. expected to manage affairs prudently.” (Page: 1536. fuel and other forest produce even during the period of suspension of work.CB) F 5A.211 Where the lay-off was not attributable to reasons of malafide but due to shortage of raw materials. The appellant is no doubt. There is also .3J) F 5A. the Tribunal has observed that they have been granted ex gratia payments which were.Sec. in several cases in excess of the total loss of wages by reason of the revision of the daily wages under the notification of February 9. On behalf of the appellant Mr. Cachar Chah Sramik Union.C. Part-I that the ex gratia payment compensated merely for the minimum wages cut and not the loss to labour by the short work-week. its finding on the question of negligence is not supported by any evidence on record nor by probabilities in the case. prudence and better management the lay off could have been avoided and held that it is not the function of the Tribunal to sit in judgement over the managerial actions of company and therefore it is held that the Tribunal held exceeded its jurisdiction and even on facts the Supreme Court held that the evidence on record did not support the findings of the Tribunal and therefore compensation of 75% of the consolidated wages awarded. khet lands. Their workmen. Tatangar Fountry Co. But the Tribunal having examined the entire evidence reached the conclusion that the ex gratia payment was in several cases in excess of total loss of remuneration on account of the notification under the Minimum Wages Act. 1953 under the Minimum Wages Act. Silchar. however. a matter primarily for the Tribunal to estimate and it is not open to this Court to go into this question unless it is shown that Tribunal has committed any error of law or legal principle in deciding it. As regards the workmen who were subjected to short hours of work. The Management of Tea Estate of Cachar Assam & Anr. employees were held to be not entitled for lay off compensation and for those employees on short work hours. R. The quantum of compensation is. there should be independent agreement between the workman and the employer to that effect agreeing not to demand lay-off compensation beyond 45 days of the starting of the lay-off period. v.214 Generally workmen are entitled to full wages during lay off period as compensation. It is difficult to appreciate this contention.213 In the event the workmen are laid off for more than 45 days during the period of 12 months and if there is an agreement u/s. 12(3) r/w. In this state of facts it is not possible for us to hold that the Tribunal was in error in holding that the ex gratia payment made by the management was sufficient compensation to the workmen who were not retrenched outright but who were put on short hours of work. Para: 12) VII.C. N.Learned Counsel for the appellants submitted that for attracting the first proviso to Section 25-C(1). AND Thiru J. Firestone Tyre and Rubber Co. The first proviso to Section 25-C(1) clearly lays down that if there is an agreement for not paying any more lay-off compensation beyond 45 days between the workman and the employer.C. It was open to the Tribunal to award a lesser amount of compensation than the full wages.. 1976 I LLJ 493 : 1976 (49) FJR 177 : 1976 (32) FLR 170 : 1976 II LLN 176 : 1976 LIC 1154 : 1976 SCC (L&S) 504 : 1976 AIR (SC) 1775 : 1976 (3) SCC 819 (S.2370 Chapter VA – Lay-Off and Retrenchment Sec. such an agreement has binding effect both on the employer and the workman concerned. Para: 12) “In the case of the Delhi Office of the respondent the Tribunal has held that the lay-off was justified. 1998 I LLJ 389 : 1998 (92) FJR 562 : 1998 (78) FLR 107 : 1998 I LLN 977 : 1998 LIC 834 : 1998 I CLR 1 : 1998 LLR 240 : 1998 SCC (L&S) 342 : 1998 AIR (SC) 554 : 1998 (1) SCC 650 (S. of India (P) Ltd. VA c) Not payable beyond 45 days when there is agreement regarding payment of lay off compensation to that effect (S. of India (P) Ltd.C. The Management of Lotus Mills & Anr. It is open to the Tribunal or the Court to award a lesser sum finding the justifiability of the lay-off.…………” (Page: 500. 10(1) Industrial Tribunal or Labour Court can grant a lesser sum after considering justifiability of lay off and hence Tribunal’s grant of lesser compensation was justified. Management of M/s.C. Para: 19) . Such binding force gets clearly attracted in the case of the appellants by virtue of operation of section 12(3) read with Section 18 of the Act emanating from the settlement arrived at during the conciliation proceeding as aforesaid………. Firestone Tyre and Rubber Co. George & Anr. 18(3) between the employer and the workmen that the workmen are not entitled to layoff compensation for more than 45 days such an agreement will have binding effect on all the workmen even though some of the workmen are not members of the said union. An agreement restricting the claim of lay-off compensation beyond the available period of 45 days can be said to be arrived at between the workman on the one hand and the employer on the other as there is such an agreement embedded in a binding settlement which has a legal effect of binding all the workmen in the institution as per Section 18(3) of the Act.2J) F 5A. but in a reference u/s. v. Virudhachalam & Ors. When can be reduced a) When there are justifiable reasons for lay-off (S. 25C undisputed evidence in this case to show that even in normal times short hours had to be imposed by employers upto a period of three days in a week in Cachar tea gardens. v.2J) “………Ordinarily and generally the workmen would be entitled to their full wages but in a reference made under Section 10 (i) of the Act. P. Sec.” (Page: 497/498.” (Page: 991. Such binding effect of the embedded agreement in the written settlement arrived at during the conciliation proceedings would get telescoped into the first proviso to Section 25-C(1) and bind all workmen even though individually they might not have signed the agreement with the management or their union might not have signed such agreement with the management on behalf of its member workmen. Para: 7) Note: Judgment before introduction of Ch...2J) “………. & Anr. The Firestone Tyre and Rubber Co. The Workmen of M/s.2J) F 5A.” (Page: 397. Para: 3) “………. It was held that recovery certificate was bad in law as the same was not preceded by an enquiry. 2000 III LLJ 1079 : 2000 (96) FJR 493 : 1999 LIC 2650 : 2000 I LLR 38 : 1999 (83) FLR 945 (Karn. v. 1961 I LLJ 581 : 1960-61 (18) FJR 225 (Bom.” (Page: 582/583. A recovery notice was issued followed by a recovery certificate. 25C Remedy for recovery 2371 VIII. Duty of an employer to maintain muster rolls of workmen – Sec. Para: 1) “It is urged by counsel………. As there was no agreement that lay-off compensation was not liable to be paid beyond 45 days.the petition fails……….Sec.DB) c) Recovery certificate issued if not after enquiry is bad (Karn. Siruguppa Sugars & Chemicals Ltd. petition before us……….it seems to us………. 33C(2) would also include a claim for monetary benefits such as claim for lay-off compensation under Chapter V-A of the Act and thus the contention of employer that Labour Court had no jurisdiction to deal with the matter was rejected and petition filed by it was dismissed.DB) “………. Commissioner of Labour. Shree Amarsinhji Mills. Nagrashna & Ors. Government of Karnataka & Ors.in the petition……….of the Labour Court.terms of money………. 2002 (101) FJR 430 : 2002 (95) FLR 171 : 2002 II CLR 668 (Karn. Para: 5) b) Recovery certificate obtained under the Industrial Disputes Act will prevail over SICA.216 Recovery certificate in respect of lay off compensation issued against a Sick Company is enforceable and provisions of the Industrial Disputes Act will prevail over SICA as the said Act is a special enactment.215 Expression “any benefit which is capable of being computed in terms of money” occurring in Sec.” (Page: 584. v. State of Karnataka & Ors. Remedy for recovery a) Recoverable u/s. 25D . M..entertain the applications………..the Labour Court………. 33C(2) since it is capable of being computed in terms of money (Bom. Ltd.one thing is certainly………. hence recovery certificate and notice were quashed. (Karn. the employer had to pay lay-off compensation.it was contended that………..HC) E.include any money claim……….N.” (Page: 582.DB) ¥ 5A. Para: 4) “……….DB) ¥ 5A.” (Page: 582. Gauribidanur v. towards lay-off compensation payable to the workmen.of any elaboration.HC) ¥ 5A.217 Company laid-off its workmen. Kap Steel Ltd. 25E. due to no fault of the employees themselves……….HC) ¥ 5A. The Tribunal directed the management to pay compensation on the ground that the action amounted to lock-out. Superintendent. In our view. Jhinkpani) v. 1994 III LLJ (Sum) 469 : 1990 (60) FLR (Sum) 38 : 1990 I LLN 172 : 1990 I CLR 97 (Bom.C. Para: 2) .We are of the view that the learned chairman of the Industrial Tribunal wrongly held that the limestone quarry at Rajanka and the factory at Jhinkpani were separate establishment. Ltd. Sec.HC) ¥ 5A. They show that the basis of the right to unemployment compensation is that the unemployment is involuntary..219 The management refused to give work to some workmen as a result of strike by some workmen in one part of the establishment. (Chaibasa Cement Works. Their Workmen. the employer cannot offer an employment which is not commensurate with the status and nature of duties performed by workman. (iii) of S. Industrial Court. 25E I.HC) b) When lay-off of some workers is due to strike by others in the same establishment since they belong to same class (S. they constitution one establishment within the meaning of Cl. 25E of the Act……….2372 Chapter VA – Lay-Off and Retrenchment Sec. Ltd. The High Court quashed the order passed by the Tribunal on the ground that employer’s step being the antithesis of strike is fully justified under the circumstances. 1962 II LLJ 319 : 1961 (3) FLR 506 (Ker. Alternative employment means a) Alternative employment offered by employer means a suitable employment commensurate with the status and nature of the duties performed by the employee (Bom.e.” (Page: 13. in other words. v.. Firth (India) Steel Co. Maharashtra & Ors. Workmen not entitled to compensation in certain cases – Sec.the last clause treats the workmen in one establishment as one class and a strike or slow-down by some resulting in the laying-off of other workmen disqualifies the workmen laid off from claiming unemployment compensation.3J) F 5A. 25E when can be invoked to deny compensation a) When lay-off was declared by employer in response to strike by workers (Ker. Para: 2) “………. Lonetree Estate v.There are three disqualifying clauses in S.HC) II. 1960 I LLJ 1 : 1959-60 (17) FJR 166 : 1960 AIR (SC) 56 (S.218 When an offer for alternative employment is made in case of lay-off the alternative employment must be a suitable employment which is commensurate with the status and nature of the duties of the employee and cannot be meant to be any sort of employment which the employer offers because the bracketed clause after the expression “alternative employment” is merely illustrative and cannot affect the requirement that the employment offered must be a suitable one i..C.220 Clause (iii) of Sec. factory workmen were disentitled to lay off compensation as lay-off was a result of strike by quarry workers. the reason being that the unemployment is not really involuntary. 25E treats workmen of one establishment as a class and therefore strike or slow down by some workers resulting in lay off of others would disentitle laid off workmen from claiming compensation in instant case since quarry and cement factory were held one establishment.” (Page: 9/10.The Workmen at the factory were not entitled to claim lay-off compensation. Associated Cement Companies. 25E F. Industrial Tribunal Alleppey & Anr.3J) “………. Ltd.C.” (Page: 11. Workman Of India Radiators.O. the concerned workmen were not entitled to any compensation as the management could not be made responsible for the consequences which . necessarily imply that for all purpose of the Act. 25E of Industrial Disputes Act or Sec.Sec. nor do we find anything in the provision creating two jurisdiction which by reasons of the principle underlying them or by their very nature give rise to an implication in law that the existence of two jurisdiction means the existence of two separate establishments. On the contrary. Industrial Disputes Act. and perhaps for certain other limited purpose. 1960 I LLJ 1 : 1959-60 (17) FJR 166 : 1960 AIR (SC) 56 (S. There is no provision in the Act which says that the existence of two jurisdiction has the consequence contended for by learned counsel for the respondent. Ltd.HC) ¥ 5A. 25E and hence such an implication or inference would be at variance with the scheme and object of unemployment compensation as provided in Chap. Madras. and particularly for payment of unemployment compensation as per the provision in Chap VA. Management of India Radiators. 25E Sec. Their Workmen..P. Madras v. On reference.3J) F 5A. the factory and the quarry must be treated as separate establishment.221 Management justified in laying-off the workers who slowed down the production deliberately to pressurise concede their demand. Second Labour Court.223 On account of low production in the warping section the average earning of the workmen in the weaving section were affected for a certain period for which the workmen demanded compensation from management which caused an industrial dispute. Associated Cement Companies. P. Jhinkpani) v. VA of the Act……….HC) d) When lay-off in cement factory is due to strike in limestone quarry since both constitute one establishment due to functional integrality though the Appropriate Governments are separate for both of them (S. Para: 2) III. dichotomy one may call it. the Act gives jurisdiction to two distinct authorities.(Chaibasa Cement Works. We are unable to find any such necessary implication. Ltd. VA of the Act.222 The company runs a cement factory for which raw material was supplied by quarry located adjacent to it. Sec. the Central Government in respect of the limestone quarry and the State Government in respect of the factory. 25E when cannot be invoked a) When go-slow cannot be proved by employer to have affected production (All. The Short question is does this quality of jurisdiction. 1998 III LLN 411 : 1998 LLR 956 (Mad. No provision of Industrial Disputes Acts says that existence of two jurisdictions in an establishment would make them two separate establishments for purpose of Sec.C. Laid-off employee not entitled to claim lay-off compensation. such an implication or inference will be at variance with the scheme and object for by the provisions in chap. management moved High Court contending that on the analogy of the principles contained in Sec. Labour Courts and Tribunals and also in the matter of reference of Industrial Disputes to them. There is common accounts and employees were transferable between the two units though the Appropriate Government for cement factory is State Government and that for limestone quarry is Central Government. 6M of U.3J) “………. Courts of inquiry. and hence the Apex Court held that cement factory and quarry constitute same establishment and consequently the workmen are not entitled to lay-off compensation for the lay-off in cement factory declared due to strike in limestone quarry. the Industrial Tribunal passed an award in favour of workmen.It is indeed true that in the matter of constitution of boards of conciliation. Aggrieved.HC) ¥ 5A. 25E when cannot be invoked 2373 c) When workers deliberately slowed down the production to pressurize management to concede to their demands (Mad. Para: 25) “………. lay-off.” (Page: 1004. supervision and control. by the Tribunal. The Tribunal has also held that the lay-off. functional integrality etc. in the circumstances. 1969 AIR (SC) 998 : 1969 II LLJ 407 : 1970 (37) FJR 202 : 1969 (19) FLR 203 : 1969 LIC 1396 (S.2374 Chapter VA – Lay-Off and Retrenchment Sec. Ex. was justified. if they had allowed the workmen to do work on December 1. 25E(iii) was inapplicable hence lay off being retaliatory and vindictive in nature workmen are entitled to claim wages for lay off period. finance. 1961. M-15. 1960 I LLJ 1 : 1959-60 (17) FJR 166 : 1960 AIR (SC) 56 (S. (S. but. the lay-off. 1961. and the entire body of workmen presented themselves for work on December 1. 1962 II LLJ 708 (All.. the management was forced to lay-off without compensation all the workmen in the entire establishment as from December 1. 1961.3J) . Para: 26) IV. This plea has been found to be true. but they were declined work by the management on the ground of lay-off.. We are not inclined to accept this contention advanced on behalf of the management. 1961………. We are in agreement with the findings.the plea of the workers is that all of them reported for duty on December 1.C. finance. as the management were not sure whether the workmen would turn up for work. to the effect that since all the factory workers had gone on strike at 1 P. 1961. by the management.3J) F 5A. regard must be had to provisions of a statute and in their absence. under the provisions of Section 25E (iii) and hence the workmen are not entitled to compensation.e. management..C. justifying the lay-off. work in the other sections could not be carried on. 1961. We have already referred to the finding of the Tribunal that twenty-seven factory workmen alone went on strike on November 30.3J) F 5A. inasmuch as there was a strike in the factory section. Ltd. 1961. during this period. Lord Krishna Sugar Mills.HC) b) When it is resorted as vindictive measure by employer to retaliate strike (S.224 Management laid off all the workmen who presented themselves for work subsequent to half day’s protest strike by 27 workers. recorded by the Tribunal in this behalf and the award by the Tribunal of wages to the workmen for this period is justified. condition of service. Associated Cement Companies.C.On the very day that the factory workers went on strike i. In fact the Tribunal has accepted the plea of the workmen that the effect of the three hours’ token strike on November 30. However. was as a retaliatory or vindictive measure against the factory workers.225 Setting aside tribunal’s award it was held that in order to determine “one establishment”. Workmen & Anr. 25E followed from the go-slow move adopted by the workmen in the warping section. Jhinkpani) v. It was held that Management’s plea of incurring loss as a result of half day strike did not justify lay off for about 8 days and Sec. v.3J) “………. and. employment. One establishment or separate establishment Sec. November 30. Ltd.” (Page: 1004. 25E(iii) a) Determinative factors are unity of ownership. who went on strike on November 30. on account of the half a day’s strike on November 30. According to the management. according to the management. in this case. general unity of purpose and geographical proximity should be applied and hence in the s instant case lime stone quarry and factory were held to constitute one establishment. but they were not given any work by the management on the ground that there was a lay-off. 1961. M. would not have resulted in any loss to the management. 1961. has not been accepted by the Tribunal. The plea of the management that they suffered loss. supervision and control. v. functional integrality. labour. the High Court rejected the contention and upheld the award of Tribunal because the management has not proved their allegation in regard to go-slow move adopted by workmen in warping section.C. Management of Churakulam Tea Estate Pvt. (Chaibasa Cement Works. without previous intimation. Their Workmen. Ltd. Industrial Tribunal (Textiles) & Ors. the management put up a notice. tests such as unity of ownership. is justified. to go into the question whether such a scheme is profitable or not and whether it should have been adopted by the employer………. 25F compensation to such retrenched workman so that the blow of hardship could be softened while he is thrown out of employment. This unfortunate consequence has provided by Sec. unity of management.226 It is within the managerial discretion of an employer to organise and arrange his business in the manner he considers best. Ours is a case where all the tests are fulfilled. C. Para: 2) Note: For additional ratios on functional integrality.C. supervision and control.The quarry is indeed a feeder of the factory and without limestone from the quarry. The legislature realising.. however.” (Page: 438. please refer to Sec. If the statute does not. branches etc.. 1970 II LLJ 429 : 1970 (38) FJR 164 : 1970 (21) FLR 266 : 1970 LIC 1071 : 1970 AIR (SC) 1334 (S. Para: 14) . the factory cannot function. v. surplus labour is bound to be retrenched because no employer is expected to keep and carry the burden of such economic dead weight. 25-F compensation to soften the blow of hardship resulting from an employee being thrown out of employment through no fault of his.” (Page: 12/13. P.3J) F 5A. Para: 3) “The Act not having prescribed any specific tests for determining what is “one establishment. however unfortunate it is.3J) “It is well established that it is within the managerial discretion of an employer to organise and arrange his business in the manner he considers best. as shown from the evidence given on behalf of the appellant to which we have earlier referred. While doing so. M/s. 25F Employer to retrench surplus workmen since entitled to organize his business 2375 “………. This is the objective behind introducing Sec. if the statute itself says what is one establishment. If a scheme for such reorganization results in surplusage of employees no employer is expected to carry the burden of such economic dead-weight and retrenchment has to be accepted as inevitable. namely.” (Page: 9. So long as that is done bona fide it is no competent to a tribunal to question its propriety. Judge on the Second Industrial Tribunal. 2(ka) G. General unity of purpose and geographical proximity………. therefore. they constitute one establishment within the meaning of Cl.. then the usual tests have to be applied to determine the true relation between the parts. bonafide. Para: 2) “………. There are unity of ownership. Pal. It is not the function of the Tribunal..Sec. unity of labour and condition of service of Workmen.” we must fall back on such consideration as in the ordinary Industrial or business sense determine the unity of an Industrial establishment………. Para: 2) “………. whether they constitute one integrated whole or not………. Conditions precedent to retrenchment of workmen – Sec. (iii) of S. In our view.C. 25F I. Ltd. Parry and Co. then there is no difficulty. Calcutta & Anr..” (Page: 13. 25E of the Act……….We are of the view that the learned chairman of the Industrial Tribunal wrongly held that the limestone quarry at Rajanka and the factory at Jhinkpani were separate establishment. say what constitutes one establishment. The legislature realised this position and therefore provided by S. 25F in the Act.We must have regard to the provision of the statute under which the question falls to be considered. Object is to enable employer to retrench surplus deadweight as he has discretion to organize his business (S. unity of finance and employment. functional integrality.” (Page: 8. Arun Tukaram Wankhede v. 33C(2).” (Page: 411. IV of MRTU and PULP Act. 1994 I LLJ 395 : 1994 I LLN 297 (Bom. 1971. 25F and 25G of the Industrial Disputes Act would form implied terms of contract of service of the workmen and failure to comply with the same amounts to breach of agreement within the meaning of Item 9 of Sch. Such employee be reinstated and back wages are to be paid after deducting the amount earned by him during the period of forced unemployment. 25F and termination based on it is not valid (Bom. & Anr. v. Vallabhdas Kanji Pvt. v.S. does not amount to improper pleading.HC) . it merely subjects the power of employer to retrench to certain limitations and conditions and hence no such claim can be entertained by Labour Court u/s.2376 Chapter VA – Lay-Off and Retrenchment Sec. 25F in an application by employee. Para: 54) “It has……….directly u/s. Chief Gate Erection Unit No. 25F does not create pre-existing right in workman to claim retrenchment compensation. Scope and attributes of the section a) Section has no retrospective effect (Ker. The High Court held that a badli workman if works for more than 240 days in a preceeding year.under appeal. D.with the matter……….all that we………. C. 1959 I LLJ 616 : 1959-60 (16) FJR 91 (Ker.229 Sec. 1993 I LLJ 1162 : 1993 (67) FLR 94 : 1993 LIC 1494 : 1993 II CLR 112 (Bom. 25F does not have any force in law and termination effected based on provisions of such order is not proper. 25F needs to be complied with before termination of his services. Para: 57) d) Standing Order cannot be inconsistent with Sec. Sonawane & Anr.” (Page: 412..M.DB) “Turning then……….order accordingly.the correct interpretation……….an existing right.. 1964 II LLJ 271 : 1964-65 (26) FJR 297 : 1964 (9) FLR 328 (Guj. Mere failure to mention provision of Sec.The only finding………. Para: 17) “It is thus clear………. Dattatraya Shankarrao Kharde. Standing Order which is inconsistent with the provisions of Sec.2.228 Sec. Nagpur.DB) ¥ 5A. 25F II. Ambalal Shivlal v.DB) “………. Executive Engineer.230 Services of an employee were terminated after one year without any notice or without following any procedure of law. Industrial Tribunal..DB) ¥ 5A.” (Page: 617.Act also.” (Page: 279. Para: 1) c) Section would form implied terms of contract of service (Bom.” (Page: 280. Para: 4) b) Does not create pre-existing right in workman to claim retrenchment compensation but subjects the power of employer to retrench to certain limitations (Guj. 25F by Act 43 of 1953 which came into force on 24th October 1953 cannot be given retrospective effect and hence award of compensation by the Tribunal in instant case was quashed. The Raymond Woollen Mills Ltd. Vin & Ors.227 The amended Sec.” (Page: 400.HC) ¥ 5A.DB) “Section 25F was………. Alleppey.accepted.DB) ¥ 5A. 25F………. Para: 2) “………. Ltd. Sec. Para: 12) g) Provisions of the section are mandatory and prevail over the conditions in appointment letter that provide for termination of service of workman by one month wages (P&H.pleases.233 Conditions in the appointment letter contrary to the provisions of Sec.benefits.HC) f) Section cannot be construed to enforce private rights or deal with domestic disputes but statutory rights compelling Court’s interference (Cal. 1997 III LLJ 439 (Raj. Bhavnagar Jilla Sahakari Sangh Ltd.be accepted. & Anr. 1992 I LLJ 64 (MP. Dhiren P. P. as introduced/made by the employer will not supersede the provisions of the Industrial Disputes Act.232 Disputes about termination of service in violation of Sec.hissar.writ jurisdiction………. and the plea was held not tenable. 1995 I LLN 1222 : 1996 LIC 328 : 1995 LLR 749 (Cal. State of West Bengal & Ors.. Management relying on Service Regulations.235 The conditions precedent to retrenchment are mandatory and hence termination in violation there of.HC) ¥ 5A. Para: 3) .Sec. Hisar v.DB) “………. v. Labour Court-cum-Industrial Tribunal.234 Mandatory provisions of the section cannot be by-passed on ground that workman had failed to pass test or has not been sponsored by Employment exchange for regular post. Pancha Mayurakashi Cotton Mills Employees Union & Ors. Steel Authority of India Ltd. Para: 8) “That apart………. 25F and 25G are not cases to enforce private rights or contractual rights or obligations but statutory rights and also right to livelihood u/Art.” (Page: 556..DB) ¥ 5A.DB) ¥ 5A.DB) “Shri Gupta has………. is void ab initio entitling the workman to reinstatement with back wages and hence the order of the single Judge granting only 25% back wages in lieu of reinstatement on the ground that the employee appointed on affixed tenure basis but extended from time to time was given three months notice thus dispensing with requirement of retrenchment compensation was quashed and reinstatement with 50% back wages ordered.In our view………. 21 and hence the writ Court cannot decline to interfere with them on the ground that they are domestic disputes under private law.DB) “Regarding the……….by Shri Gupta.” (Page: 441. contended that appointment of the workman was illegal or irregular. 25F Scope and attributes of the section 2377 e) Provisions of Sec. 25F prevail over service regulations (Guj. 2007 (112) FLR 435 : 2007 LLR 133 (Guj.” (Page: 1228. State of Rajasthan.” (Page: 72. Para: 9) h) Conditions precedent to retrenchment are mandatory (MP. v. 25F provides for payment of retrenchment compensation and one month’s notice or pay in lieu of notice by the employer to the employee at the time of his termination. Om Prakash Raigar v. Para: 19) ¥ 5A. 25F Act can not debar the rights of workman hence appointment letter providing termination of service of workman by one month wages was held to be unsustainable. v. District Red Cross Society. Kumari Vandana Singh & Anr. The Service Rules.231 Sec.O.DB) “In view of……….” (Page: 1226/1227. 2001 II LLN 554 (P&H.DB) ¥ 5A. Parekh.. Para: 18) “In the……….to go. payment of wages in lieu of notice and retrenchment compensation shall constitute single transaction to comply with conditions of retrenchment under the section and hence in the instant case issuance of notice accompanied by sheet containing detailed calculation and particulars with direction to draw wages together with compensation and other statutory dues was held to be one and entire single transaction and in compliance with Sec.” (Page: 190.DB) ¥ 5A.” (Page: 189. Workmen of Davangere Cotton Mills Ltd.. Irrigation v. v.. Para: 2) .2378 Chapter VA – Lay-Off and Retrenchment Sec. Somu Kumar Chatterjee & Anr. v. 1973 I LLJ 306 : 1973 (43) FJR 107 : 1974 (28) FLR 162 : 1974 II LLN 154 : 1973 LIC 1356 (Mys. 1987 (55) FLR 615 : 1987 II LLN 648 (Bom.this score.HC) j) Order of retrenchment payment of wages in lieu of notice and retrenchment compensation shall constitute same or single transaction to comply with conditions of retrenchment 1356 (Mys. Industrial Tribunal. 25C and 25F are independent and resorting to lay-off is not a condition precedent to attract provisions of Sec.in law.constitution. Kamlesh & Ors. issuing notice u/Cl. Bangalore & Anr. 25F Note: Also refer to the following case Tribhuvan v. Indabrator Ltd. Para: 17) “The aforesaid………..” (Page: 190. Para: 19) Note: Also refer to the following case/s Chief Engineer.DB) ¥ 5A. & Anr. 1996 II LLJ 316 : 1996 I LLN 941 : 1996 I CLR 1128 : 1996 LLR 218 (Raj. Para: 16) “In this………. 25F of the Act. 2005 (106) FLR 586 : 2005 LLR 548 (Del. 25F (Bom.. Madhya Pradesh Administration. District Signal Tele-Communication Engineer & Anr.” (Page: 311.DB) “The question……….237 Order of retrenchment.HC) i) Conditions under clause (a) and (b) are obligatory and are conditions precedent to retrenchment while that under clause (c) is not obligatory (Pat.238 Sec. (b) as to payment of retrenchment compensation but not for non-service of notice on Appropriate Government.” (Page: 616. Para: 19) k) Sec. (a) and (b) of the Section are obligatory and are conditions precedent to retrenchment.bad in law. Bhartiya Kamgar Sena v. (c) to Appropriate Government is not a condition precedent to retrenchment and not obligatory and hence retrenchment order passed by the railway was held illegal for not complying with condition u/Cl.” (Page: 311.DB) ¥ 5A.DB) “It must be……….236 While conditions u/Cl. 25F & 25C are independent and resorting to lay-off is not a condition precedent to attract Sec.DB) 1970 II LLJ “In the………. 179 : 1970 (21) FLR 37 : 1970 LIC 629 (Pat. 25F.by the employer. From the dates mentioned in the judgement of the first Appellate Court dated January 22. he was entitled to the protection of Section 25-F of the Act and the said protection could not be denied to him on the ground that he was a daily-rated worker. In these circumstances. Para: 3) . 2003 (97) FLR 351 : 2003 II LLN 662 : 2003 LLR (Sum) 508 (MP. Chandigarh v.240 Sale of a unit by earlier owner to company is of no consequence so far as right of workmen are concerned.HC) ¥ 5A. the termination of services of the appellant cannot be upheld and has to be set aside……….2J) F 5A. v. Laxminarayan Bhailal & Anr. Rattan Singh v. Since he was a Workmen. Labour Court passed an award in favour of workman. 2(oo)(bb) of the Industrial Dispute Act.HC) III. Jullundhar & Anr.HC) m) Benefits u/s. Narayana Bhat & Ors. they continue to be in employment of the unit.242 Termination of employee was set aside as he had rendered more than 240 days of service and therefore was held to be entitled to protection u/s. 25F (Karn.Sec. 25F of the Act resulting in the conferment of arbitrary powers on the employers which would be destructive of the protection granted by the Act to the employees and dismissed the writ of the management upholding the impugned award of Labour Court. v.241 Status of workman. 1987 (55) FLR 223 : 1987 II LLN 170 (Karn. However.239 Management discharged employee and justified the discharge on the ground that the service conditions governing its employees provided for a probation of two years and therefore. 25F even though he was a daily rated employee. Applicability of sections a) Applicable irrespective of the status of the employee whether casual or daily wager (P&H. It is not the case of the respondents that the provisions of Section 25-F of the Act were complied with while terminating the services of the appellant. Ltd. Labour Court was justified in holding termination as an illegal retrenchment. T. discharge of the workman in question was in accordance with the stipulation in the contract of employment and therefore. 1998 III LLJ 714 : 1998 SCC (L&S) 170 : 1997 (11) SCC 396 (S.HC) ¥ 5A. 1995 II LLJ 333 : 1995 (87) FJR 630 : 1996 (72) FLR 554 : 1995 I LLN 606 : 1995 I CLR 895 (P&H. Labour Court. Karnataka State Tourism Development Corp.C. Punjab State Seeds Corporation. 25F can be claimed by employees against the company even though the unit is sold by previous owner to the company (MP.HC) ¥ 5A. in reference. Kuber Extrusions Pvt.HC) b) Applicable to daily rated employee who had completed more than 240 days of service (S.... 25F of the Act. High Court relied upon the judgment of 1986 II LLN 355 and observed that if the contention of the management is accepted it would enable unscrupulous employer to provide a stipulation in the contract of service for terminating the employment of employees to avoid the rigour of Sec. 1985. it appears that the appellant had continuously worked for more than 240 days in a year. Union of India & Anr.C. 25F Applicability of sections 2379 l) Probationary period cannot be for two years as it defeats the object of Sec.” (Page: 715.2J) “……….. which was challenged in High Court by management. fell into the exempted category u/s. whether as temporary or casual or daily wager is of no material for applying Sec. In Section 2(oo) the word ‘termination’ for any reason whatsoever is the key word. including intermittent breaks and since it is a question of fact required to be determined the matter was remanded. therefore. 1984 I LLJ 233 : 1984 (64) FJR 60 : 1984 (48) FLR 310 : 1984 I LLN 90 : 1983 LIC 1865 : 1984 SCC (L&S) 144 : 1984 AIR (SC) 500 : 1984 (1) SCC 509 (S. 25F.C. the termination was to be due to surplus labour and it was retrenchment and also as the notice does not mention closure of the office. 1967. Labour Court. Para: 19) d) Applicable to termination of surplus labour due to recession in work being retrenchment and not closure (S. Sri Niranjan Dass. therefore. v.it must be held that termination of the respondent-workman’s service on April 29. Bhilwara & Anr. Pratapgarh & Anr. 25-F of the I. Whatever the reason.. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term………. he was served with a notice terminating his services.244 Benefit of Sec. it must be held that termination of services of the respondent-workman on April 29. 2003 (97) FLR 747 : 2003 IV LLN 810 : 2003 LIC 528 : 2003 I CLR 952 : 2003 LLR 663 (Raj. null and void……….Respondent continued to serve in that capacity when on September 14. 1997 IV LLN 751 : 1997 II CLR 1182 (MP. Para: 3) “This appeal………. Para: 9) ¥ 5A.C.DB) “The law………. 2001 II LLJ 165 : 2001 (89) FLR 979 : 2001 II LLN 972 : 2001 II CLR 110 : 2001 LLR 792 (Cal. if he has completed more than 240 days of continuous service in the preceding date of termination in a calendar year. 1966 was violative of Section 25F of the I.245 Termination which is not punitive in nature amounts to retrenchment and thus attracts Sec. Municipal Council. Act and was.2380 Chapter VA – Lay-Off and Retrenchment Sec. In view of this settled legal position.” (Page: 752. Employer in realtion to the Management of Calcutta Telephones & Anr.or not. v. Sec.HC) c) Applicable to termination which is not punitive in nature and amounts to retrenchment and illegal if conditions not complied (S. Prem Chand Gupta & Anr. Gammon India Ltd.the Act.243 Workman is entitled to benefits of Sec. Central Government Industrial Tribunal. The notice reads as under: . 25F of the Act and in the instant case since employee’s termination was violative of Sec.D.O. every termination spells retrenchment.2J) “……….C. 1966 which was admittedly not by way of punishment clearly amounted to retrenchment attracting Sec.C. Management of M. M/s.. 25F it was held null and void. 25FFF is applicable and set aside the orders of High Court which had held the same as one of closure. Calcutta & Ors. v.246 The Supreme Court held that as the notice mentioned that termination was due to recession in work. 25F of the Act is also available to casual worker who has worked for 260 days within a course of 12 months preceding date of termination.” (Page: 542. Para: 2) “In view of……….D.2J) F 5A.HC) ¥ 5A.3J) “………. Yogendra Kumar v. P. v. 2000 I LLJ 533 : 2000 (96) FJR 288 : 2000 I LLN 358 : 2000 LIC 250 : 2000 AIR (SC) 454 : 2000 SCC (L&S) 404 : 2000 AIR (SC) 454 (S.C.” (Page: 541.” (Page: 752. 25F and not Sec. Para: 18) “………..” (Page: 751. 25F Note: Also refer to the following case Municipal Board.of the Act.3J) F 5A.D. Act. ” (Page: 696. (b) and (c) of S.” (Page: 234. Union of India & Ors.C. This point can be answered by mere reference to the notice served by the appellant-company on the respondent intimating to him that his services will no more be required effective from October 14.The recitals and averments in the notice leave no room for doubt that the service of the respondent was terminated for the reason that on account of recession and reduction in the volume of work of the company. 25B and will be paid compensation u/s. the services of the respondent would not be required………. respondent has become surplus.2(oo) which defines retrenchment and it is by now well-settled that where the termination of service does not fall within any of the excluded categories.247 Workmen employed in 292 coke/coal using industries located in Agra who do not intend to relocate/ obtain natural gas necessary to prevent degradation of Taj Mahal and opted for closure. 1997. Para: 13(d)) . The terms and conditions of their employment shall not be altered to their detriment.25F of Industrial Disputes Act. 25F Applicability of sections 2381 “Due to the reduction in the volume of business of the company as a result of the recession in (sic) services will not be required by the company after the 14th October.25FFF or the Industrial Tribunal was right in holding that it is a case of retrenchment covered by S. shall be deemed to have been retrenched by May 31. (b) The period between the closure of the industry in Agra and its restart at the place of relocation shall be treated as active employment and the workmen shall be paid their full wages with continuity of service. however.The question. It is there indisputably a case of retrenchment” (Page: 236. shall be deemed to have been retrenched subject to their being in continuous service of one year as per Sec. is whether the learned Single Judge. They shall be paid compensation in terms of Section 25-F(b) of the Industrial Disputes Act. 1967 and this notice may be treated as a statutory notice as contemplated by S. and this may be treated as statutory notice of one month of termination of your service……….Sec. in addition. (c) All those workmen who agree to shift with the industry shall be given one year’s wages as ‘shifting bonus’ to help them settle at the new location. The said bonus shall be paid before January 31. 1947) for not less than one year in the industries concerned before the said date.C. The notice as a whole recites that as a result of recession in the volume of work of the company.25F(a).2J) F 5A. six years’ wages as additional compensation. M.C. 1967. Para: 2) e) Applicable to workmen in coal units though can relocate but opted for closure. These workmen shall also be paid. as they are deemed to have been retrenched (S.” (Page: 234.. 1998. 1967. Mehta v. It was not even attempted to be urged that the case of the respondent would fall in any of the excluded categories.” (Page: 696. services of the respondent would no more be required by the company after October 14. the termination of service for the reasons mentioned in the notice is not covered by any of the clauses (a). the termination would be ipso facto retrenchment. Even apart from this. Para: 2) “………. There is not even a whisper in the notice that as the Delhi office is being closed down. provided they have been in continuous service (as defined in Section 25-B) of the Industrial Disputes Act. 25F(b) and in addition six year wages as additional compensation. who interfered with the award of the Tribunal was justified in coming to the conclusion that the case was one of closure covered by S.2J) “The workmen employed in the above-mentioned 292 industries shall be entitled to the rights and benefits as indicated hereunder :(a) The workmen shall have continuity of employment at the new town and place where the industry is shifted. Para: 1) “………. Para: 13) “The workmen employed in the industries who do not intend to relocate/obtain natural gas and opt for closure. 1997 LIC 667 : 1997 AIR (SC) 734 : 1997 (2) SCC 353 (S. and the management of Subong Tea Estate represented by respondents 1 and 2.In pursuance of these notices. 1959. 1959. 1959.C. 1959. Para: 2) “Shri Sastri for the vender……….” (Page: 341. 1959. Para: 3) “……….12. and so. there can be little doubt that after July 15.1959 but before that on 17. be taken to attract the operation of S. Gungaram Tarachand otherwise known as Hindustan Tea Company………. Workmen of Subong Tea Estate (Indian Tea Employees’ Union) v. Hammond. Therefore. 25F f) Applicable to termination of employees by transferee even prior to transfer since he is in de facto possession of tea estate even prior to transfer (S. the Union representing the said employees protested against the retrenchment in question………. the tea estate was in the possession and management of the Vendee as an owner and that the conduct of the parties clearly shows that the Vendee was the employer and the workmen working in the garden including the 8 retrenched workmen were the Vendee’s employees.. 1959.. 1959. to July 15. It is not retrenchment consequent upon transfer. and the conveyance was actually executed on December 28. Since these two conditions can be treated as conditions precedent to the transfer there can be no question of the transfer of the undertaking having taken place before the date of retrenchment. as from the latter date it would be impossible to accept the Vendee’s case that it continued manage the property as the Agent of the Vendor. there can he no doubt whatever that as from July 15. 1964 I LLJ 333 : 1964-65 (26) FJR 18 : 1964 (8) FLR 91 : 1967 AIR (SC) 420 (S.2J) F 5A.10.C.” (Page: 335. the approval of the Reserve Bank was obtained. the essential condition precedent having been satisfied.2382 Chapter VA – Lay-Off and Retrenchment Sec. M/s. 1959 the Vendee accepted the employees as its workmen and became answerable to them in that character. 25FF. Respondent No. Mr.It is common ground that on July 15. Even taking into account the fact that the approval of the Reserve Prank was a condition precedent. 25FF at all.” (Page: 340. 1959. Para: 3) “………. whatever may be the character of the Vendee’s possession from February 17.” (Page: 335. Macneill and Barry Ltd.1959 has been held as retrenchment as per Sec.” (Page: 334. has transferred the said estate to respondent No. it was agreed to take effect from January 1. there can be no escape from the conclusion that after the approval was obtained. The impugned retrenchment cannot. 1959. the eight employees were paid retrenchment compensation due to them on August 31. 1. These facts are not in dispute. 1959. whether or not the transfer of management took place on February 17. the Vendee was put in possession of the tea garden. That is one important point which cannot be ignored. 25F and not termination as per Sec.We are therefore. it had to receive the sanction of the Reserve Bank and the Vendee held made it clear that the staff whom the Vendee regarded as surplus had to be retrenched by the Vendor before the Vendee could take over the undertaking as an owner. who managed the Subong Tea Estate. Subong Tea Estate & Anr. If that be so. the operative clause in the conveyance came into play and the Vendee who had already obtained possession of the estate became the owner of the property and his possession became the possession of the owner. 1959. The said approval was accorded on July 15. We have already noticed that the main stipulation in the conveyance was that whenever the conveyance may be actually registered. 1959. the Vendee became the owner of the property.It was agreed between the parties that when the agreement was completed. Para: 1) “On August 31. 1959 clearly shows that it was subject to two C0nditions. therefore. 1959. M/s. it would take effect from January 1. On September 1. Pending the execution of the conveyance. the Manager of the Vendor Company served notices on the 8 employees in question intimating to them that their services would be terminated with effect from October 1. the workmen of Subong Tea Estate.1959 the transferee was put in de facto possession subject to certain conditions of transfer and during this period transferee was taking all the decision in consultation with transferor hence it was held that the transferee was the real owner and employer and termination of eight employees by transferee on 1.” (Page: 339. 1959……….248 The deed of conveyance was finalized on 28. satisfied that at least from July 15. This agreement was subject to the approval of the Reserve Bank of India.2J) “The industrial dispute which has given rise to this appeal arose between the appellants. 2.12. Para: 1) . it is retrenchment effected after the transfer was made………. Para: 1) “………. on February 17.His case is that the transfer which is evidenced by the conveyance executed between the parties on December 28. 253 Termination of services of an employee who was appointed temporarily for a fixed period of 29 days and thus extending the service period beyond 240 days and also considering that the work continued to exist.be accepted. Para: 6) “We are……….252 For applicability of Sec. of Service. because no reasons have been recorded by the Vendee for departing from the rule prescribed by S.DB) .” (Page: 159.” (Page: 341. and there can be little doubt that failure to comply with S.HC) ¥ 5A. Mamtaben Mahendrabhai Joshi.” (Page: 68. Surat Mahila Nagrik Sahakari Bank Ltd. 25F is necessary. State of Haryana & Anr. Una Irrigation Project Division.Sec. 25F and hence reinstated. 25F Applicability of sections 2383 “………..his Service.DB) ¥ 5A.HC) ¥ 5A. 25F or S. and so would the failure to comply with S. Ministry of Information & Broadcasting v. Labour Court. v. Sopali. The State of Rajasthan & Ors.In the Present………. High Court held that it cannot interfere as reinstatement award by Labour Court was proper. Para: 3) g) Applicable to discontinuance of employee when it is substitute for termination as per evidence (Del.250 A daily rated workman who worked for 240 days in a year is entitled to the benefits of Sec.It is conceded that if the retrenchment is held to be effected by the Vendee. 1999 II LLJ 158 (Guj. P. v.DB) “According to………. 25G of the Act.HC) h) Applicable to a daily rated workman who worked for 240 days in a year (Guj. 2003 (99) FLR 912 : 2003 IV LLN 293 : 2003 LLR 1002 (Del. 2001 II LLJ 567 : 2001 (90) FLR 666 : 2001 III LLN 469 : 2001 II CLR 505 (Guj.249 Service of the workman who had completed 240 days of service was discontinued. Para: 12) i) Applicable to workman who is employed in an industry for a period of not less than one year (Raj. it has not complied with S. v. Para: 8) “……….DB) “When the matter……….DB) ¥ 5A.251 Whose appointment was not on a particular job and who has worked for 240 days in preceding 12 month is entitled for retrenchment compensation. 1981 LIC 719 (Raj.HC) j) Applicable to termination of services of an employee whose tenure is extended after breaks of 29 days to go beyond 240 days (Guj. 25F it is necessary that the workman should be employed in the industry for a period of not less than one year. 2000 I LLJ 66 : 2000 I LLN 713 (P&H.implemented. Subhash Purohit & Ors. Para: 2) ¥ 5A. was held to be unfair labour practice and hence compliance with Sec. Director.” (Page: 68. Rajiben Prabhatbhai v.. Rohtak & Anr. 25F would make the retrenchment invalid. Executive Engineer.O. It was held that “discontinuance” is nothing but a substitute for ‘terminations’ as the finding is based on admission of the employee. 25G……….” (Page: 69. 25G. DB) “Their Lordships……….running industry. S.. Para: 13) m) Applicable to telephone department being an industry under the Act (Guj. 25F would not be wiped out by mere fact that in the year immediate preceding to date of his termination he had not worked for 240 days. Para: 10) “Applying the……….services were terminated………. Para: 12) “All the petitioners……….we are of………. Hutchiah v. Para: 27) k) Applicable to workmen even though they did not complete 240 days in the immediate preceding 12 months when his past service is also considered (Karn.. v. Union of India & Anr.” (Page: 578. 25F of Industrial Disputes Act. Para: 11) “Having regard……….Therefore in our……….257 Vishakhapatnam Urban Development Authority was constituted under an Act of Legislature but it had been discharging or undertaking certain functions which were non-sovereign in nature. 2003 II LLJ 256 : 2002 LIC 3441 (AP.256 The workman of telephone department was terminated in violation of Sec. Kambari Gowri Naidu & Anr. the employer has to follow provisions of section and thus ordered workman’s reinstatement with back wages and consequential benefits.” (Page: 1288.” (Page: 1287.DB) ¥ 5A.the Act.R. Para: 22) l) Applicable to termination of the services of the casual railway workers discharged as surplusage (Ori. hence the Authority was under obligation to follow Sec.HC) . Duryodhan Naik & Ors.255 Retrenchment implies discharge of surplus labour for any reason whatsoever otherwise than as punishment and the termination of the services of the casual railway workers discharged as surplusage when candidates selected through recruitment are appointed amounts to retrenchment.DB) “Another submission……….to continue a……….HC) ¥ 5A.not bonafide. Bharai v.254 Workman’s service rendered in the past because of which he would be entitled to notice and pay prescribed u/s. On appeal. The retrenched workmen are entitled to the benefits of Sec.wiped out.DB) ¥ 5A.of the Act.of the Act. 25F of the Act.DB) ¥ 5A.” (Page: 1288.DB) n) Applicable to Statutory body performing non-sovereign functions (AP. 1983 I LLJ 30 : 1982 (61) FJR 207 : 1983 I LLN 205 (Karn.and genuine……….we are not………. 1947………. On workman’s application.” (Page: 1289. Union of India.2384 Chapter VA – Lay-Off and Retrenchment Sec. 2006 (109) FLR 184 : 2005 LIC 3499 : 2006 II CLR 167 (Guj. Visakhapatnam Urban Development Authority.” (Page: 43. 25F “………. the CAT dismissed the petition and also his review petition holding that workman was not entitled to protection under Industrial Disputes Act. 25F.. 1969 LIC 1282 (Ori. High Court upheld the award of Labour Court directing reinstatement without back wages for non-compliance of Sec. 25F and this not being complied with the orders of retrenchment are quashed. Division Bench set aside order of CAT since it was established that the workman had completed 240 days and Telephone department being an industry under Industrial Disputes Act.Disputes Act. Karnataka State Road Transport Corporation & Ors. Visakghapatnam v. ” (Page: 981. Bangalore v. Bhavnagar Jilla Sahakari Sangh Ltd. 25F and also rejected the plea that appointment was not legal as it was inconsequential. 25F and has paid compensation and documentary evidence regarding the same was produced and union failed to produce any evidence whatsoever and were not able to prove their case.” (Page: 830.258 The writ petition by the workmen employed by the labour contract or of the FCI for a declaration that the action of the corporation in retrenching 450 workmen who have been working continuously and rendering services to the corporation for several years in its various godowns in Bangalore District was illegal violative of Industrial disputes Act and for a writ of mandamus directing the corporation not to retrench the workmen without complying with the mandatory provisions of Sec.services of the workmen. Labour Court granted reinstatement with 40% back-wages.” (Page: 981.of the I. 1947.D. Act. Labour Court held that retrenchment order is valid since the management has complied with provisions of Sec. His services were terminated on which he raised dispute.260 Management retrenched 27 workmen working in composing section of a press stating services of workman were no more required since new machines were installed. Society moved High Court with the plea that the employee was engaged on part time basis hence there is no need to follow mandatory provision.HC) ¥ 5A. hence.HC) ¥ 5A.HC) “……….HC) ¥ 5A. Kala……….. the validity of the termination of their services can only be tested under Industrial Disputes Act FCI Loading & Unloading Workers Union. Rajasthan Samachar Patra Karmachari Sangh v. High Court upheld Labour Court’s order and stated since there is no reason to interfere with the Labour Court award writ petition stands dismissed. Para: 7) “In view of the………. Para: 2) “Mr. 25F Applicability of sections 2385 o) Applicable to contract labour against unlawful termination (Karn. Labour Court has no other option other than to uphold the termination. v.dated 15-1-1996. Para: 10) . Food Corpn. The High Court held that the Contract Labour Act does not contain any provision for protecting the workmen against unlawful termination of their services by their immediate employer and the said Act does not override the provisions of Industrial Disputes Act.” (Page: 981. 2004 (105) FJR 980 (Raj.dated 15-1-1985. Para: 6) q) Applicable to termination due to surplusage on account of introduction of new machinery (Raj.consequential benefits.259 Clerk was appointed by Co-operative Society on temporary period. 1987 (71) FJR 79 (Karn.HC) “……….terminated is valid. 25F……….” (Page: 829.” (Page: 980. Dhiren P.HC) p) Applicable to part time workmen (Guj. Parekh.Sec. Judge Industrial Tribunal. High Court held that there is no distinction given between full time and part time employee and can not be distinguished for compliance of Sec. 2006 III CLR 828 : 2006 LIC 3785 : 2007 (112) FLR 435 : 2007 LLR 133 (Guj. Para: 6) “Since the………. Para: 1) “Provisions of Sec.the management………. 25N and 25F of the Act was resisted by the corporation. of India & two Ors.the Labour Court………. Indian Airlines v. upholding the termination was based on facts and on the employee’s statement that he did not complete 240 days in service.2J) “……….” (Page: 503. as per Sec.P. 256. The High Court. as noticed hereinbefore in this judgment more fully.” (Page: 506. question of affirmance of the impugned judgment cannot and does not arise more so by reason of the fact that even this Court searched in vain in regard to the availability of such an evidence.3J) Note: Please see related ratio/s under the above citation in this section s) Not applicable to workmen who did not complete 240 days (S. U.S. it has been the definite case of the workman concerned whilst at the stage of evidence that he has not worked for 240 days.1953 was held to be terminated on such date unlike in cases where termination occurs after the notice period but as Tribunal awarded retrenchment compensation even prior to the enactment the payment of one month’s salary as compensation was not interfered with.C.9.DB) “………. therefore Sec.DB) “Thus it is………. 2003 I LLJ 497 : 2003 (96) FLR 492 : 2003 I LLN 834 : 2003 LLR 1 (S. Sebastian. Para: 8) . 2002 (94) FLR 1030 : 2002 LLR 890 : 2002 IV LLN 909 (AP. 25B were held not entitled to retrenchment compensation and benefit of Sec.2386 Chapter VA – Lay-Off and Retrenchment Sec. 25F was not held to be applicable..” (Page: 1033.. Kanak & Anr.unsustainable. Avas Evam Vikas Parishad v. Industrial Tribunal. Para: 8) “In our opinion………..264 Order of reinstatement was not sustainable as employee who was on ad-hoc basis had put in only 60 days of service.C. 25H. It is finding of which the High Court cannot possibly overturn without assailing the order of the Labour Court as otherwise perverse. Para: 17) ¥ 5A. Hyderabad & Anr. And it is on this score Mr. 1994 III LLJ 498 : 1991 (62) FLR 755 : 1991 I LLN 247 : 1991 I CLR 43 : 1991 LLR 488 (Ker. Ranjit Kumar has been rather emphatic that the High Court has thus fallen into a grave error in reversing the order of the Labour Court.2J) F 5A.C. State Bank of India v.263 Workman who had worked for not more than 89 days claimed retrenchment compensation since they were not in continuous service of 240 days.C.261 The section was not held to apply to cases of retrenchment occurring prior to the enactment of the section and employee who was given one month pay in lieu of notice on 30.The reason……….The requirement of the Statute of 240 days cannot be disputed and it is for the employees concerned to prove that he has in fact completed 240 days in the last preceding 12 months period. v. Para: 15) “Having regard to the opinion of this Court in the last noted decision. Management of M/s. it was not perverse and therefore the High Court was held to have exceeded its jurisdiction by interfering with the same. Para: 15) ¥ 5A. Their Workmen. As noticed hereinbefore. has thus committed a manifest error in reversing the order of the Labour Court” (Page: 501. The High Court unfortunately has not dealt with the matter in that perspective” (Page: 500.3J) F 5A. 25F r) Provisions of Section not applicable to cases of retrenchment effected prior to it’s enactment (S. 1961 II LLJ 94 : 1961-62 (20) FJR 147 : 1961 (2) FLR 594 : 1967 AIR (SC) 678 (S.262 As the order of the Labour Court. in our view.be sustained. May & Baker India Ltd. 25F of the Industrial Dispute Act.Sec.HC) t) Not applicable to post office since not an industry (S. Para: 3) “The learned Additional Solicitor General has invited our attention to the judgement of this Court in Sub-divisional Inspector of Post v..2J) “The respondent was appointed temporarily as Extra-Departmental Delivery Agent in Ghazipur on 1-1-1993. Presiding Officer. India General Navigation & Railway Co.266 A person who has attained the age of superannuation. 25F Applicability of sections 2387 Note: Also refer to the following case/s Management of Mahadev Textile Mills. 2004 (106) FJR 727 (Guj. & Anr. 25F. Joginder Kumar & Ors. Central Government Industrial Tribunal & Labour Court. Hubli v. v. Theyyam Joseph where in this Court has laid down that post office is not “Industry” under section 2(j) of the Industrial Disputes Act. Kamlesh Kumar Bharti.2J) F 5A. 25F was not applicable Nagar Palika.C. 1947. Yoginiben Anilkumar Joshi. Edwin A. 1998 SCC (L&S) 1535 : 1998 (9) SCC 727 (S. & Anr. Their workmen. 2001 III LLJ 459 : 1999 (82) FLR 260 : 1999 III LLN 906 : 1999 II CLR 110 : 1999 II LLR 705 (All. v.HC) Bank of Baroda v.P.CB) F 5A.C.HC) ¥ 5A. Daniel & Anr.HC) Gujarat State Co-operative Agriculture & Rural Development Bank Ltd. v.” (Page: 1535. v. Labour Court. Union of India and Anr. Dehradun & Anr. Coimbatore & Anr. 2003 II LLJ 791 : 2003 (97) FLR 782 : 2003 II LLN 535 : 2003 II CLR 691 : 2003 LLR 580 (Del.HC) Housing Urban Development Corpn.267 Tribunal’s grant of retrenchment compensation after holding that master-servant relationship existed between company and concerned workmen relying for its decision on documents wherein employer had merely agreed to introduce the system of permanent direct employment in future and undertook liability to pay wages at prescribed rates was set aside as there was no evidence to show that contract labour were company’s employees. Para: 4) Note: Also refer to the following case Department of municipality – not an industry. hence Sec. In view of the said decision of this Court the provisions of Section 25-F of the Industrial Disputes Act could not be invoked to set aside the termination of the services of the respondent. if given a fresh employment thereafter cannot claim the benefits of the standing orders and such appointment is only contractual and the termination of his services will not amount to retrenchment within the meaning of Sec. He was relieved of the said post……….. Ltd.C. Bangalore & Anr. 1993 I LLN 169 : 1993 LLR 356 (Mad. v.” (Page: 1536.. v. 2003 III LLJ 198 : 2004 (106) FJR 509 : 2003 (98) FLR 385 (Raj.C. Additional Industrial Tribunal.265 In view of Judgement of Sub-divisional Inspector of Post v..HC) u) Not applicable to a case of re-employment of an employee after superannuation (Mad.CB) .. Theyyam Joseph it was held that post office is not an ‘industry’ and hence termination of extra departmental delivery agent will not attract Sec.HC) v) Not applicable to a case of termination of Contract Labour in the absence of master and servant relationship (S. 1976 (33) FLR 313 : 1976 I LLN 367 : 1976 LIC 1284 (Karn. 1966 I LLJ 735 : 1966 (12) FLR 223 (S. The State of U.. . The Workmen of Bangalore Wollen. Beed & Ors. 2001 III LLJ 889 : 2001 LIC 1255 : 2000 (86) FLR 885 : 2000 IV LLN 986 : 2000 III CLR 92 : 2000 II LLR 1156 (Bom. Union of India. then thirteen of the twenty-three. denying him continuity of service……….Sec. the logical corollary would be that in such an event Section 25H will have no application. l953 and the award only applied to workmen whose services had been terminated as from that date.K.HC) Retrenchment is on account of closure. that it was a new appointment. 2 Division No.C. 1957-58 (12) FJR 156 (Mad. 1.C. Another of these twenty-three persons had been discharged before January 1. To clear the ground it may be stated that even if Mr. it was obvious that the dispute was concerned with payment to be made to surplus workmen otherwise fit whereas discharge on the ground of medical unfitness cannot be considered as services no longer required but service they were bound to render under the contracts of service but were unable to do so due to physical condition. Labour Appellate Tribunal of India and Ors.Mr.3J) F 5A. Executive Engineer. This workman also was therefore not entitled to the benefit of the award.271 Upholding Tribunal’s decision and dismissing the appeal of workmen discharged on grounds of ill health demanding gratuity under the terms of a consent award or under the terms of Central Ordinance 5 of 1953 it was held that reading the consent award along with the dispute referred in its connection.C. 25-F in view of the award. 1986 AIR (SC) 958 : 1986 I LLN 706 : 1986 (52) FLR 376 : 1986 LIC 671 : 1986 (2) SCC 83 (S. 25F Applicability of sections 2389 “Once it is held that Section 25F will have no application in a case of transfer of an undertaking or closure thereof as contemplated in Section 25F and 25FFF of the 1947 Act. that is.” (Page: 859.persons would not be entitled.. Ltd. Their Workmen & Anr.270 Re-deployment of the seniormost welder on lower salary without continuity of service can not be considered as retrenchment on the ground of surplusage hence Supreme Court held that his re-deployment to a lower post was held was invalid. hence their discharge not being retrenchment does not entitle them to compensation under the said ordinance.HC) x) Not applicable to a case of re-deployment of senior workman on lower post without continuity of service since it is not retrenchment (S. Pandharinath Taharabadkar v. Ramesh S/o. Ltd... to any gratuity under the award. that the appellant was the only Senior Welder who was singled out for this adverse treatment. That leaves only ten workmen who had been discharged on . Jayakwadi Project Stage No. New Era Manufacturing Co. Para: 25) Note: Also refer to the following case/s Sathiarthy v. Hosiery Factory v. Cotton & Silk Mills Co.2J) F 5A. Jha’s contention is that ‘retrenchment’ means termination of service for any reason other than by way of disciplinary action and therefore all workmen whose services had been terminated except by way of disciplinary action were entitled to the compensation under S.HC) J. v.HC) Ratnam & Company v.2J) “………. Suraj Prakash Bhandari v.. Ltd. As we have stated earlier. These eleven therefore had not been retrenched for their services could not be said to have been terminated.3J) “……….. one of them was discharged for misconduct. 1956 II LLJ 04 : 1956-57 (11) FJR 67 (All.The specious explanation given by the High Court to justify the declaration of surplusage of the appellant that the appellant was not the only person singled out does not impress us because. the fact on the evidence available is. Bangalore Woollen. 1971 (39) FJR 457 (Ker. 1962 I LLJ 213 : 1961–62 (21) FJR 538 : 1962 (4) FLR 298 : 1962 AIR (SC) 1363 (S. Seven had died and four had resigned. that was a case of termination of service by way of disciplinary action and therefore not retrenchment within the definition. The further justification discovered by the High Court that the appellant was re-deployed as a welder in Jullundur Cantonment also does not impress us since that post carried lesser pay.” (Page: 959. Jha is right.C. Para: 3) y) Not applicable to discharge of workmen on grounds of medical unfitness since not retrenchment (S. Cotton & Silk Mills Co. BCCL v. coercion etc. v. in absence of any fraud.O. as Sec... he falls u/s. Gwaliar. Labour Court No. and not on Management. 25F grounds of health. The award settled this dispute.duress or coercion..2390 Chapter VA – Lay-Off and Retrenchment Sec. Their physical condition prevented them from rendering the service for which they had been employed. Para: 6) “………. 25F was not followed.or duress etc………. State of Punjab & Ors. 2001 III LLJ 1456 : 2001 (99) FJR 121 : 2001 (91) FLR 1029 : 2001 III LLN 1134 : 2001 LLR 1001 (P&H.HC) . Para: 3) “We therefore think that the ten persons who had been discharged on grounds of health-and as to this there does not appear to be any dispute-were not persons who were entitled to any payment under Ordinance No.The award has first to be read along with the dispute referred in connection with which it had been made. P. his dues were not paid. Para: 2) z) Not applicable to a case of resignation since it falls u/s. Para: 7) “………. Central Government & Ors.274 The daily wager seasonal employee.HC) za) Not applicable to seasonal employees on daily wage basis even if they complete 240 days (MP. it cannot be said that they had been discharged on the ground that their services were no longer required. Employers in Management. could not claim permanency even if he worked for more than 240 days. Now when a workman is discharged on the ground that he is medically unfit as happened in the case of the ten workmen with whom alone we are concerned in this appeal. 2001 II LLN 1093 : 2001 LIC 3032 : 2001 LLR 708 (MP.DB) ¥ 5A.272 Where voluntary resignation tendered by workman was accepted by Management. 5 of 1953. Krishi Upaj Mandi Samiti. Their services cannot be said to have been terminated on the ground that such services were not required.in this case. on the contrary they were not in a fit condition of health to continue in service at all. That dispute concerned payment of bonus to workmen as “discharged as being no longer required. Labour Court ordered employee’s reinstatement.The onus of……….” (Page: 216.DB) “………. who worked for more than 240 days in the preceding year.O. High Court held that employee was employed on seasonal basis and not against any clear vacancy. Held that as the workman had resigned. The reason for their discharge was that they could not render the services required of them and which under the contracts of service they were bound to render.The Management discharged………. he fairly conceded that he could not press the case of any workman excepting these ten.” (Page: 265.273 Labour Court granted workman compensation on the ground that though the workman had resigned. 2(oo)(a) (Jhar.will not apply………. & Ors. coercion or duress being proved by workmen. Kusunda Area of M/s. P.” It therefore clearly contemplated workmen who were surplus but who were otherwise fit and willing to continue in service if their service had been needed.” (Page: 266. Therefore. Para: 1) “……….1. Jha. As we understood Mr. Para: 11) ¥ 5A. Dabra & Anr.” (Page: 217. 25F of the Act does not arise. was terminated. 2003 (97) FLR 262 : 2003 LLR 618 (Sum) (Jhar. Roxy Industrial Corporation v. 25F is not applicable and also the burden is on workmen to prove that their resignation was obtained as a result of fraud.the finding of……….” (Page: 266. termination would not amount to retrenchment and Sec. Therefore it seems to us that the company agreed by it to pay gratuity only to workmen who had been discharged on the ground that their services were no longer required and not to any whose services had been terminated for any other reason.HC) ¥ 5A. 2(oo)(a) and hence the compensation u/s.In the instant……….” (Page: 216. Union of India & Ors. 25F even though they had worked for 240 days.. C.” (Page: 128. Jitendra Kumar Babubhai Parmar v.DB) ¥ 5A.R. Shoe land.be rejected. v. Para: 1) “………. Bharat Electronics Ltd.276 When the workmen who were terminated from service in accordance with Sec. 25B. 25F of the Act.compensation. 25B. 1997 III LLJ 692 (Sum) (Guj. 1979 II LLJ 117 : 1979 II LLN 347 : 1979 LIC 776 (Pat.278 The retrenched workmen who had not been employed for 12 calendar months will not be entitled for compensation u/s... Workmen of Pure Kustore Colliery (represented by Khan Mazdoor Congress) v. the Tribunal has rightly denied the retrenchment benefits claimed by them. 25B . the same was upheld by High Court as before passing award Labour Court observed that the workman after gaining adequate experience as salesman by putting number of year’s of service in his employer’s shoe shop.DB) ¥ 5A.277 The workmen who had been terminated from service had been employed for less than 12 calendar months and since they were not in continuous service as per Sec.” (Page: 119. Sundra Raj Trivandrum & Ors.rightly failed.” (Page: 122. 1969 I LLJ 126 : 1969 (18) FLR 297 (Pat. General Manager.before the workmen……….Court. 25F again. Para: 11) Note: However Supreme Court in the case of Mohanlal v.the approach……….275 Where the Labour Court held that the workman was not terminated but abandoned his service.year’s service. Management of M/s. Central Government Industrial Tribunal-cum-Labour Court. it does not amount to fresh retrenchment and compliance with Sec.Sec. Jabalpur & Anr.HC) ¥ 5A.DB) “But in the………. 1976 (33) FLR 303 (Ker..absolutely irrelevant. as they were not in ‘continuous service’ within the meaning of Sec. Para: 10) zd) Not applicable to termination of workmen employed for less than 12 calendar months (Pat.S. 25F Applicability of sections 2391 zb) Not applicable to abandonment of service by workman (Guj. Para: 5) “It is therefore……….HC) zc) Not applicable to workmen whose names were struck off the rolls on the dismissals of their applications challenging their termination effected after complying with the section (Pat. Parsuram Mishra & Ors.T.DB) “……….” (Page: 308. Corpn. is not required. Para: 1) ¥ 5A. Para: 8) “These appeals………. Trivandrum v. abandoned his employment to start his own business and got Municipality license in his name which he subsequently transferred to his brother to show that the business which he had started was of his brother there by he is precluded from invoking the provisions of Sec. K. 1981 II LLJ 70 held that the employee need not be in service for 12 months if he completion 240 days in a lesser period for Ratio Sec. 25F were retained on the rolls in deference to a High Court order maintaining status quo and their names were subsequently struck off the rolls on dismissal of their applications.DB) “He must……….” (Page: 128.” (Page: 309. In terms of the award. Para: 3) “The said reference was answered in favour of the workman and against the State by an award dated 2-5-1997. The State. even if his services were terminated in violation of Sec. on the ground of his being absent from duty. Para: 3) zf) Not applicable to termination if employment is through backdoor in public service (P&H. The workman did not apply for any grant of leave.” (Page: 614.” (Page: 473. State of Punjab v.DB) “No doubt………. & Anr. compliance of Sec.” (Page: 414. in relation whereto conciliation proceedings were held.” (Page: 614. Para: 8) “………. Consequent upon failure of the parties to arrive at an amicable settlement therein. a purported demand was raised by the workman to reinstate him in service by a letter dated 5-3-1981.statutes……….2J) “The workman herein joined the service in Punjab Roadways.would be hit.DB) ¥ 5A. 25F. the question of violating the mandatory requirements of compensation and notice does not arise. even though such termination was effected without disciplinary proceedings. since the services of the driver were terminated for unauthorised absence which is a misconduct.DB) ¥ 5A. 1959 prejudicing the interests of more qualified persons. Purna Chandra Giri v. 1981 I LLJ 411 : 1981 I LLN 536 (Ori.Constitution……….the Officer………. Brij Bhushan v.C.C.280 No relief of reinstatement can be granted to an employee who was employed through back-door in public service like Haryana Road Ways in violation of Employment Exchange Act. 25F ze) Not applicable to compulsory retirement of workmen as per service regulation being not a retrenchment (Ori.2J) F 5A. He was asked to report for duty by a registered letter dated 22-6-1979 but despite the same he did not comply with the said request. As regards his absence from duty.2392 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 474. therefore. terminated his services with effect from 3-8-1979. 2004 (107) FJR 611 : 2004 (103) FLR 416 : 2004 LLR 1131 : 2004 IV LLN 739 : 2004 LIC 3740 : 2004 SCC (L&S) 1109 : 2004 (8) SCC 129 (S. 1998 IV LLN 470 : 1998 LIC 2043 : 1998 LLR 896 (P&H. the State was directed to reinstate the workman with continuity in service and full back wages stating : “In view of my findings on the aforesaid issues the workman is entitled to be reinstated with continuity in service and since the workman has stated that he had remained unemployed throughout. and there being no evidence contradicting above statement by management in this regard. in the year 1965 as a driver. An industrial dispute was raised. a notice was published in the newspapers but despite the same he did not join his duties within the time specified therein. workman shall be entitled to full back wages……….. Orissa Khadi & Village Industries Board. Questioning the legality of the said order. Pantipat. Jagir Singh.281 The question of payment of compensation will arise only where the termination is on any ground other than misconduct and in the instant case. Taran Taran. the dispute was referred to the Labour Court by the State………. Para: 9) zg) Not applicable if the termination is for misconduct (S.DB) “We are………. Industrial Tribunal-cum-Labour Court. 25F is not necessary. Para: 3) . It is not in dispute that he absented himself from duty from 2-5-1979 to 3-8-1979.279 Compulsory retirement of service of workmen in terms of the service regulation being not a retrenchment. State Industrial Court & Ors. cannot be held to be a case of retrenchment to attract provisions of Sec. 25F. the workman was held to be entitled to 60% of the back wages………. Labour Court. 1999 (82) FLR 348 (MP.HC) ¥ 5A.283 On transfer a workman did not join the post.282 Refusal by the employer to allow employee to rejoin the post after being unauthorisedly absent. Vijay Singh Charan v. hence. Ahmedababi v.HC) zi) Not applicable to a case of non-resumption of duty on transfer since it amounts to abandonment of service (Raj.. Shri Swatamber Nakoda Parshwanth Tirth & Anr.” (Page: 615. the question of payment of any retrenchment compensation or service of any statutory notice would not arise.Sec. 2006 (110) FLR 327 : 2006 III LLN 534 : 2006 LLR 902 : 2006 (3) BCR 618 (Bom. Management. no disciplinary proceeding was held in terms of the Punjab Civil Services (Punishment and Appeal) Rules and furthermore the mandatory requirements of Section 25-F of the Industrial Disputes Act. A finding that the workman had himself abandoned service was held to be not incorrect and that the termination if it is by way of punishment would not amount to retrenchment. Hyderabad & Anr. it was not a case of automatic termination neither a retrenchment. The findings of the Labour Court are inconsistent and self-contradictory. 1981 II LLJ 54 : 1981 (43) FLR 202 : 1981 LIC 942 : 1981 (58) FJR 327 : 1981 I LLN 623 (AP. 25F Applicability of sections 2393 “The State thereafter filed a writ petition questioning the said award before the Punjab and Haryana High Court on 2-6-1999. v. The High Court by reason of its impugned judgment dated 7-12-2000 allowed the writ petition in part to the limited extent that instead and place of full back wages. Gattaiah v.HC) Note: Please see related ratio/s under the above citation in Sec. 1999 (83) FLR 357 : 1999 III LLN 723 (Raj. His services were terminated because of non-approval of appointment and the High Court held that the order of appointment was ab initio void. Sec. if the services of the workman concerned were terminated on a ground other than misconduct. The question of compliance with the provisions of Section 25-F of the Industrial Disputes Act would arise.A..HC) zj) Not applicable if appointment is void ab initio (Ker.. Original. Dharam Estates & Investments Ltd. Commissioner of Labour. 25F was not attracted. If the services of the workman were terminated for misconduct.HC) zh) Not applicable to a case of refusal by employer to allow employee to rejoin duty after unauthorised absence (MP..HC) ¥ 5A. therefore.HC) zk) Not applicable to establishments to which Chapter V-B is applicable (AP. Para: 9) Note: Also refer to the following case F. Para: 3) “It is not in dispute that the workman did not perform any duty since 2-5-1979. The Labour Court made its award only on the ground that before issuing the order of termination dated 3-8-1979.HC) ¥ 5A. 25F of Industrial Disputes Act.284 The employee was appointed as salesman on temporary basis and such appointment was subject to approval of the Registrar of Co-operative Societies and also the employee did not even have the requisite qualification prescribed under the Rules. 1988 (56) FLR (Sum) 11 : 1987 (71) FJR 20 (Ker.” (Page: 614. Enanallor Service Co-operative Bank Ltd. 25N . Ramashanker Srivastava v.HC) T. 1947 were not complied with. the employee is not entitled to benefits u/s. again in October. Para: 10) zn) Not applicable to casual employees who are not recruited as per recruitment rules (S. skilled. High Court reversed the Labour Court’s finding and held merely because apprentice was allowed to work like a regular employee he does not become a regular employee. v. 1985 Respondent had worked regularly.2J) F 5A. He. 1985. Para: 2) “In Industrial Dispute No.The statute does not envisage application of the provisions of the Act and Rule where both recruitment and termination is uncertain or when the workmen are not required to be recruited in a category-wise service. Hence. Para: 15) “Before the Labour Court.On a plain reading……….” (Page: 934. whereas. where standing order has provision for training apprentice he has no right to get permanent status and set aside the order of Labour Court. Ram Sahai & Anr.DB) “……….285 Registration of contract of apprenticeship was not necessary for the purpose of Sec.C. 1986 he worked only for 9 days. muster rolls were produced by Appellant.” (Page: 933.” (Page: 431. Para: 16) .HC) ¥ 5A.286 Training period of apprentice who was appointed for one year was extended since he was not upto the level of expectation and his services were terminated without notice or enquiry. in March. therefore as the apprentices who were not registered were covered under it were not “workman” under the Act and hence Sec.The second………. 27 days and 25 days respectively. 1985.. Presiding Officer.g. Labour Court.” (Page: 431. worked regularly in November and December of 1985. Ltd.g. 18 of the Apprentice Act. however. September and October of 1986 he did not work at all. 25F of Industrial Disputes Act was not attracted. April. skilled. 25F zl) Not applicable to an apprentice appointed under Apprentices Act since not a workman (Ker. e. Moreover. Again in February. August. he worked for 27 days.2394 Chapter VA – Lay-Off and Retrenchment Sec. such as a casual employee who is not in continuous employment but keeps on coming and going having not been appointed in accordance with recruitment rules. Para: 5) zm) To apprentice though completes 240 days since he cannot be a permanent employee (Mad.has been filed.DB) ¥ 5A. Bhaskaran v. Management of Easun Reyrolle. 1986.. & Anr. 2004 I LLJ 932 : 2004 (100) FLR 990 : 2004 I LLN 564 (Mad. semi-skilled or unskilled. Thereafter. Jaipur Development Authority v. May and June of 1986. 2007 I LLJ 429 : 2006 (111) FLR 1178 : 2007 I LLN 78 : 2007 LIC 274 : 2007 I CLR 221 : 2007 LLR 92 : 2007 (1) SCC (L&S) 518 (S. Yet again.HC) “………. Dispute referred to Labour Court which held that since he has completed 240 days of service he has become a permanent employee and management violated Sec. Para: 4) “In the present………. 25F of Industrial Dispute Act. He worked for 25 days in September. 1986 II LLJ 346 (Ker. in November. But in January. It was noticed that in July.Labour Court Salem. semiskilled or unskilled etc. He did not work in August. 1985 he did not work at all.2J) “………. In the months of July. 26 days. 1986 he did not work at all.C. 439……….not illegal……….” (Page: 348. he worked for 26 days. Kerala State Electricity Board. Labour Court granted reinstatement with back wages. etc.287 The statute does not envisage application of the provisions of Industrial Dispute Act and the Rules where both recruitment and termination is uncertain or when the workmen are not required to be recruited category wise in service e..present case.” (Page: 932. S. 1992 I LLJ 210 : 1991 (78) FJR 314 : 1991 LIC 428 : 1990 II LLN 954 : 1990 II CLR 506 (AP.” (Page: 310.S.Sec. it cannot be cured by employer’s subsequent offer for any sum in full and final settlement nor can it disentitle the workman from challenging the order of retrenchment on the ground of non-compliance of statutory requirements. Expressions and Meanings a) Expression ‘until’ means 1.. Workmen of Davangere Cotton Mills Ltd.288 The word “until” used u/s. 1973 I LLJ 306 : 1973 (43) FJR 107 : 1974 (28) FLR 162 : 1974 II LLN 154 : 1973 LIC 1356 (Mys.. 25F Conditions precedent to retrenchment 2395 IV.DB) “The circumstance………. 25F and word “unless” used u/s. Bangalore & Anr. Labour Court. retrenchment compensation or payment of wages are necessary for compliance (Mys. 33(2) of Industrial Disputes Act have the same meaning as to mean that the conditions like notice pay. 33(2)(b). retrenchment compensation or payment of wages are necessary for compliance and hence as the notice of retrenchment itself having been accompanied by a sheet containing detailed calculations for payment of retrenchment compensation on the same day.DB) Note: Please see related ratio/s under the above citation in this section c) The condition of completing continuous service of one year Note: reference can be had to Sec. Conditions precedent to retrenchment a) The three conditions stipulated u/s. v. Management of Oasis School. 25F. Himayatnagar.HC) b) Conditions like notice pay. v. Therefore. 25F are necessary preconditions for retrenchment and non-compliance of the same will render retrenchment invalid ab intio.289 It is well settled principle that 3 conditions u/s.DB) ¥ 5A. 1973 I LLJ 306 : 1973 (43) FJR 107 : 1974 (28) FLR 162 : 1974 II LLN 154 : 1973 LIC 1356 (Mys. Para: 13/14) V. Bangalore & Anr.” (Page: 309. Industrial Tribunal. Conditions like notice pay. 25F are necessary pre-conditions for retrenchment (AP..HC) ¥ 5A. Hyderabad & Ors. Hyderabad v. retrenchment compensation or payment of wages are necessary for compliance (Mys. 25B to understand as to what constitutes continuous service and computation thereof . Para: 11) “Now so………. it is deemed to constitute a single transaction and hence retrenchment made was held legal and valid. Thus a workman can challenge the validity of retrenchment during conciliation proceedings and even after receiving retrenchment compensation.DB) Workmen of Davangere Cotton Mills Ltd. Industrial Tribunal. ” (Page: 26.” (Page: 575.. Yadi Reddy v. 25F of the Act. 25F 1..therefore………. it is held that fact itself would not attract the petition Sec.previous year………. v. Vijayawada & Anr. 1994 II LLJ 530 : 1994 (68) FLR 462 : 1994 II LLN 870 : 1994 LIC 114 : 1993 II CLR 1110 (Bom.The appellant claimed……….” (Page: 26. Ghatkesar & Anr.2396 Chapter VA – Lay-Off and Retrenchment Sec. v. Deputy Executive Engineer.291 As long as an employee has worked for 240 days in any calendar year preceeding his termination the employee would be entitled to the benefit of Sec.him employment………. Padamati Balaramiah & Anr. 9A was not required and also their retrenchment as such is not covered by any item of Sch. III & Anr... I & P.negative………. Narkeshari Prakashan Ltd.DB) . Para: 4) “As regards the………. IV of the Act (Bom. P. 9A which is confined to items in Sch.The Learned Presiding……….of the case……….and forty days……….O.000 on humanitarian grounds.DB) ¥ 5A.by the company……….by the management………. Workman has to put in 240 days of service in the immediate preceding year though in spells (AP.HC) 2. Workman to be in continuous service though less than one year but should have worked atleast for 240 days in a calendar year preceding his termination (AP. Para: 2) “………. Para: 4) “During the course………. Attributes of Notice i) Notice u/s.292 If the workman merely put in more than 240 days of service is several spells during several years but not in the immediately preceding previous year. RC Department. if workman had put in 240 days of continuous service in the pervious year.. hence notice of change u/s.290 Though a casual worker was employed from 1969 to 1979 but since it was not proved that he had worked for period of 240 days in any year it was held that Sec. 10. Brooke Bond India Ltd. Para: 4) d) The condition of serving notice as per Clause (a) 1.” (Page: 29.DB) ¥ 5A.DB) “………. 9A and notice u/s. 1994 (69) FLR 25 : 1994 (68) FLR (Sum) 44 : 1994 I LLN 282 : 1994 LIC 186 : 1994 I CLR 207 : 1994 LLR 328 (AP. 25F for effecting retrenchment are entirely different and non co-related aspects.Ex W1……….293 Retrenchment of 19 workers engaged in hand composing was not a direct result of installation of photo-composing machine as workmen had continued in service for years after installation of the machine and actually the reason behind their retrenchment was non availability of hand composing work. Labour Court No. G. Suraj Pal Singh & Ors. 25F. 25F(a) is different from notice u/s. 25B(2) was not applicable hence disentitling him to claim any retrenchment compensation but considering the fact that worker had met with an accident resulting in amputation of his right leg which led to his termination company was directed to pay Rs.” (Page: 28.DB) “………. Para: 2) ¥ 5A. 2002 III LLJ 885 : 2002 (95) FLR 521 : 2002 IV LLN 735 : 2002 III CLR 158 : 2002 LLR 975 : 2002 LIC 2897 (Del. IV of the Act and it was also observed that notice of change u/s. Nagpur Press Kamgar Sangh & Anr.DB) ¥ 5A. It will attract only when it is established that on the date of removal of the workman from service. 2003 LIC 574 : 2003 II LLJ 396 (AP. v.we direct………. HC) ¥ 5A. 25F(a) (Ori.. & Ors. However. The High Court upheld the award of Labour Court directed the employer to reinstate him. Ratna Construction Co. P.HC) “The respondent was………. Para: 40) “Even other wise……….HC) ¥ 5A.O. Para: 5) iv) Notice under Clause (a) of Sec.296 Retrenchment compensation is to be paid to a probationer also. P. 1970 LIC 349 (Ori.Sec.. Manohar Bhatia Partner of M/s. Para: 42) ii) Notice has to specifically indicate that termination is due to retrenchment failing which termination becomes termination simpliciter (Bom.respondent in service.effect from 14-1-93………. 25F of the Act. 1989………. Para: 3) “It is therefore……….DB) “The question………. Alumina Mazdoor Sangh Etc. 25F it was held that it amounts to non-compliance of Sec. Zila Sahkari Bank Ltd. 25F of Industrial Disputes Act is illegal. Para: 2) “Pursuant there to………. v.” (Page: 634. A notice or salary in lieu of notice is to be paid before the order of termination is passed therefore. 25F(a) and amounts to a termination simplicitor. 2003 I LLJ 793 : 2003 (96) FLR 944 : 2002 LIC 3693 (Ori.in June.K.Industrial Dispute Act 1947……….” (Page: 635.” (Page: 539..Act.294 Where the employer terminated the services of a stenographer without indicating in the notice that it was retrenchment under the provisions of Sec.I find that………. Para: 3) “……….with each other. Para: 16) iii) It is mandatory but not directory to mention reasons for termination in the notice (Ori.DB) .DB) ¥ 5A.” (Page: 626.as to costs. & Ors. 25F Conditions precedent to retrenchment 2397 “It is thus……….illegal and void.” (Page: 624. it observed that if is still open to the employer to retrench him every after reinstatement following the correct procedure prescribed u/s.DB) ¥ 5A. Labour Court & Ors.297 Retrenchment notice pasted on notice board is not a substitute for individual notice hence in such case it was held that one month’s pay in lieu of retrenchment notice as required u/s. Dhruba Singh v.” (Page: 540. Para: 41) “………. Mumbai v. 25-F is necessitated.” (Page: 350. Para: 13) “……….295 Mentioning of reasons of termination in a notice of termination of service is mandatory and not directory hence notice issued in absence thereof being invalid was quashed. 1947………. Union of India & Anr.we do not………. 1994 (68) FLR 386 : 1994 II LLJ 941 (All. 25F to precede termination (All.HC) 2. termination of chowkidar who was on probations without complying Sec. 2004 (106) FJR 622 : 2004 (102) FLR 742 : 2004 IV LLN 469 : 2004 LIC 2876 : 2004 II CLR 613 : 2004 LLR 793 (Bom. Raghavan.The only case………. Service of Notice i) Notice pasted on notice board is not a substitute for individual notice u/s.” (Page: 539. Manohar Brothers. v.Section 25F(a).” (Page: 625. Calcutta & Anr. Rajaram Rama Harguel v. L: 13) iii) Presumption of service of notice cannot be when employer admitted that no notice was sent to workman (Bom. invalid.DB) “In the present……….. becomes inoperative and void.2398 Chapter VA – Lay-Off and Retrenchment Sec. reinstatement ordered.for the aforesaid……….3J) . Para: 4) ii) Notice given on penultimate day of retrenchment is valid (MP.B. 25F was given 2 days before the actual retrenchment.C.There is no dispute………. 1970 II LLJ 429: 1970 (38) FJR 164 : 1970 (21) FLR 266 : 1970 LIC 1071 : 1970 AIR (SC) 1334 (S. Union of India & Ors. and illegal as Clauses (a) and (b) of Sec. 25F are not complied with.HC) ¥ 5A. I.HC) vi) Notice given even before two days instead of one month in advance as per Rule 77(1) of W. v. Urdhwa Painganga Project Circle & Anr. no question of presumption of service of notice arises. P.C. the notice is proper and retrenchment is valid.3J) F 5A.O. It was held that compensation not having been offered the said notice. 2003 (96) FLR 115 (Bom. Maheswar Thakur (2) Ram Chandra Das v. 1958 although neither one months notice to commissioner and conciliation officer before retrenchment nor with one months wages and a notice to the said authorities given in as much as the object of the Rule was complied with.W. Judge on the Second Industrial Tribunal. Pal. Therefore findings by Labour Court in favour of the employer were held to be perverse...D Rules is sufficient service since the employees were put on notice (S..according to law………..301 A person was working as a casual labourer in the railway and his services were terminated by notice.” (Page: 228.C.HC) ¥ 5A. 25F “……….298 When notice and wages prior to retrenchment were given to the workmen on 27th January. Nowrozabad Colliery Mazdoor Sangh v. Therefore. P. Parry and Co. Jeejeebhoy & Anr. though valid.HC) iv) Notice is invalid if served after retrenchment (Bom.HC) v) Notice though valid becomes void if retrenchment compensation was also not paid (Cal. Ltd.the notice board……….. He filed a writ petition and an interim order was passed allowing him to continue in the service.HC) ¥ 5A.” (Page: 794. on which day they were in service and retrenchment was to come into effect on 28th January. v. M/s.DB) ¥ 5A.and genuine. Where the employer has himself admitted that as no intimation was sent to workman. Superitending Engineer.302 Where notice of retrenchment u/s. P. Finally the decision went against the worker and the railway thereafter issued a second notice with out paying retrenchment compensation. Yavatmal Zila Raste & Ors. 1970 (37) FJR 225 : 1970 (20) FLR 284 (MP. & Anr. L: 37 to Page: 229. 1978 II LLJ 379 : 1978 II LLN 95 : 1980 LIC (Sum) 4 (Cal. F. Bhuyar. 1993 I LLJ 789 : 1992 II CLR 1106 : 1993 LLR 455 (Bom.300 Notice of retrenchment served after retrenchment is ipso facto bad. it was held that it was substantial compliance of Rule 77(1) of West Bengal Industrial Dispute Rules.299 Services of workmen were terminated without any notice or enquiry. 3J) “Respondents Nos. 1962. 1957 but as Time Keeper. 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. 1977 I LLJ 1 : 1976 (49) FJR 397 : 1976 (33) FLR 257 : 1976 II LLN 479 : 1976 LIC 1766 : 1976 SCC (L&S) 583 : 1977 AIR (SC) 31 : 1976 (4) SCC 222 (S. The fifth respondent was also appointed for a period of three years from July 15. Pursuant to an alleged policy to “streamline the organisation and to effect economies wherever possible”.” (Page: 2. The Rule by sub-clause (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 Labour Commissioner and to the Conciliation Officer. In the meantime he had been promoted from Time Keeper to Head Time Keeper with effect from 3-11-1960. v. the appellant chose not to renew the contracts of service of the Head Time keepers who were eight in number including these three respondents. 25F which says that no notice is required if retrenchment is under an agreement specifying the date of termination of service would have been quite unnecessary if retrenchment defined u/s. In his case the period was extended after the expiry of three years from time to time till October 15. It instead of giving such information after the retrenchment it is given two days before the retrenchment takes place it is hardly possible to say that the requirement of the proviso was not carried out. appellant herein. 25F Conditions precedent to retrenchment 2399 “Equally the Tribunal’s decision on Rule 77 was contrary to its provisions. Para: 2) “This Decision.. as conceded by the Solicitor general. When not required i) Notice is not required on termination by expiry of term under an agreement (S. has a proviso which says that “no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service. Para: 17) 3. It is true that the notice was given two days before the actual retrenchment and was not given “immediately”. The object of the proviso clearly is that where it is not possible for an employer to give one month’s notice to the two authorities concerned by reason of his retrenching the employees with immediate effect.3J) Note: Proviso to Sec. it would be sub-clause (1) which would be applicable and since one month’s notice was not given the retrenchment was invalid. 25F no more exists F 5A. There was no order terminating their services. Sunder Money.C.303 Proviso to Sec. Para: 1) “The main question in this appeal is whether the three respondents had been retrenched by their employer as found by the Labour Court………. Even where the termination was by efflux of time for which the Court relied on the case SBI v.. The third and the fourth respondents were appointed on September 24. In our view such a conclusion was not only incorrect but contrary to the very object of the rule. goes against the contention of the appellant and is conclusive on the main question that arises for consideration in this appeal. and therefore. 2(oo) and he is entitled to reinstatement with back wages for non compliance of Sec.” (Page: 439/440. It may also be noted that Section 25F(a) which lays down that no workman who has been in continuous service for not less than one year under an employer shall be retrenched by that employer unless he has been given one month’s notice or wages in lieu of such notice. 1959 respectively. sub-clause (1) did not apply to the facts of this case. Obviously. Hindustan Steel Ltd. State of Orissa and Ors. 1959 and September 14. 25F. So long as the object underlying the proviso was satisfied it did not make any difference that information was given a little earlier than the date when retrenchment took place. according to the appellant the termination was automatic on the expiry of the contractual period of service……….Sec. each for a period of three years.” (Page: 2. not Head Time Keeper. 4 and 5 had been employed as Head Time Keepers in the Rourkela Unit of Hindustan Steel Limited.” Clearly. the company had substantially complied with the requirements of the proviso. 3. the . information should be supplied to the two officers immediately after such retrenchment. But the Tribunal could not conclude that since the notice immediately after retrenchment the proviso did not apply.C. 2(oo) was intended not to include termination of service by efflux of time and hence Court was right in holding that termination of service of workmen falls within Sec. We are in agreement with the earned Single Judge that though the notice was not given immediately after the retrenchment but two days before it. B.S.” (Page: 534. Ltd.of time. 1966 I LLJ 533 (Ker.as to cost.” (Page: 534.period.” (Page: 535. Its Workman Shri Basant Lal Bhambri & Anr. 445(3) of the Companies Act.” (Page: 129. 25F proviso would have been quite unnecessary if retrenchment as defined in Section 2(oo) was intended not to include termination of service by efflux of time in terms of an agreement between the parties. Para: 8) “The result……….. Palai Central Bank Employees’ Union (by general secretary) v. (by Official liquidator).P.” (Page: 244.DB) “The third ground………. & Ors.DB) “It must be……….traders. Ltd.also fails. Hence the employees are not entitled to notice pay u/s.. The Management of Associated Traders & Engineers Pvt. Para: 3) Note: Section amended by insertion of Sec. Para: 13) ¥ 5A.306 When the workman is engaged for a fixed period. 25F(a) for their discharge.is continued.304 When the winding up order was passed the business of the bank was stopped and the order operated as a notice of discharge of employees u/s. This is one more reason why it must be held that the Court Court was right in taking the view that the respondents were retrenched contrary to the provisions of Section 25F. Palai Central Bank. Para: 1) iii) When the workman is engaged for a fixed period (Del.E. Para: 12) “It was contended……….” (Page: 3. The winding up work carried on under the liquidator was not a continuation of the business of the Bank nor did it constitute a fresh employment in the absence of any agreement to that effect. Hence termination being proper. which had taken place more than a month after the winding up order was passed. 2(oo)(bb) – Proviso omitted by Act 49 of 1984 ii) When the discharge of employees took place more than one month after the order of winding up was passed since the order itself operated as notice (Ker. Para: 3) “………. Amit Bhardwaj v.fresh employment.DB) “Incase of……….DB) ¥ 5A. Para: 12) .when the winding up……….” (Page: 129.305 The services of the employee being determined by contract for a fixed period came to an end on the expiry of such period and notice of termination was not necessary.” (Page: 245.DB) ¥ 5A. v. Para: 9) “It is therefore………. no notice is required to be served before termination.be sustained. H. Para: 4) “There is no evidence………. 1972 LIC 126 (Del.2400 Chapter VA – Lay-Off and Retrenchment Sec. award of the Labour Court granting reinstatement with back wages is unjustified and so is quashed.” (Page: 129. 2001 I LLJ 241 : 2001 LLR 244 : 2000 LIC 2990 (HP. when one month wages were paid prior to retrenchment. M/s.C. Learned counsel further argued that the Tribunal had gone wrong in holding that the retrenchment was illegal as S.309 If one month’s notice of termination is given then termination of service is effected on the expiry of notice period but in case of termination made by payment of one month salary in lieu of notice. Para: 1) iii) Worker held to be terminated on the date when wages paid in lieu of notice (S. As there was no compliance with S. 25F. Their Workmen. According to him. 25 F of the Industrial Disputes Act had not been complied with………. 25F was not complied retrenchment was illegal or non-compliance of Sec. S. 1973 II LLJ 589 : 1974 (28) FLR 114 : 1973 I LLN 331 : 1973 LIC 742 (Ori. Babaji Charan Swain v.The notice in this case bears the date November 15. the wages for the period of the notice in lien of the notice.1953 only hence the award of reinstatement made by Labour Court was set aside since he was retrenched prier to coming into force of Sec. 25F as if the employee continued in service as has been done by Labour Court since Sec. National Iron & Steel Co.C. v. The workman was further asked to collect his dues from the cash office on. 25F had not come into operation when his services were terminated and it came into force w. v. it is not correct to pay him compensation u/s. Ltd.Iqbal Singh who has been awarded retrenchment compensation as well as gratuity. the tribunal has held that Iqbal Singh was entitled to retrenchment compensation under S.10. This view of the tribunal is in . 1967 AIR (SC) 678 : 1961 II LLJ 94 : 1961-62 (20) FJR 147 : 1961 (2) FLR 594 (S. 25F when employer pays wages in lieu of notice he has to pay at the time when the employee is asked to leave forthwith and not afterwards therefore in instant case as Sec. In the instant case workman was terminated on 30th September 1953 with notice pay. 24.3J) “………. November 20.3J) F 5A. Union of India & Ors. l958.The language……….3J) F 5A. if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards.” (Page: 590.f. State of West Bengal & Anr. May & Baker India Ltd. 25 F. & Ors.308 Workman was served with notice of termination on 15th November stating that their services will be terminated from 17th November and in lieu of notice one month wages would be paid and he was asked to collect the same on or after 20th November and it was held that u/s. we need not consider the other points raised by the learned counsel………. his service will come to an end on the date on which his service is terminated. had not been complied with under which it was incumbent on the employer to pay the workman. 25F Conditions precedent to retrenchment 2401 4.C. retrenchment could only be struck down if it was mala fide or if it was shown that there was victimisation of the workman etc. 1967 II LLJ 23 : 1966-67 (31) FJR 425 : 1967 (14) FLR 356 : 1967 AIR (SC) 1206 (S. 25F. So far as retrenchment compensation is concerned. That is to say. Wages in lieu of notice i) Notice not compulsory when wages paid in lieu thereof since both are independent (Ori.3J) “The third point raised by the Additional Solicitor General is also not one of substance. 25F.mandatory. 25-F of the Industrial Disputes Act.” (Page: 29.DB) ¥ 5A.Sec. Management of M/s.307 The two parts of Clause (a) relating to one month notice or one month salary are completely independent and alternative and hence notice indicating the reasons for retrenchment is not compulsory. Manifestly. Para: 1) ii) To be paid time of termination when employee was asked to leave forthwith (S.e. It is to the effect that the addressee’s services were terminated with effect from the 17th November and that he would get one month’s wages in lieu of notice of termination of his service. 1908 or thereafter during the working hours...C.DB) “………. 1985 allowing the workman to work for the succeeding month of February and to earn wages for 28 days and if holidays are not counted then for 24 days. Tas Engineering Pvt.3J) F 5A.C. Therefore. This is a case where the services were terminated from September 30. therefore. 1953. In such a case the service comes to an end on the date from which it is terminated.1985 it would be the duty of the employer to give notice on 30. The tribunal was not right in holding that this meant that Iqbal Singh continued in service till October 30. while the services of Iqbal Singh were terminated on September 30. the stipulation in the order cannot prevent him from swimming ashore to the safety of Sec.HC) ¥ 5A.310 In this case the employer in lieu of notice for the month of February made payment of wages for 28 days. we reach the conclusion that if the workman swims into the harbour of Sec. He was informed that his service would be terminated after September 30. and he was directed to take one month’s salary in lieu of notice. compensation computed as prescribed therein read with Section 25B (2)………. 25-F was enacted and that Section merely standardised the practice which was generally prevalent. entitled to the benefit of S. the order as to payment of one month’s average salary as retrenchment compensation to Iqbal Singh must stand……….1. Para: 10) 5. The State Bank of India v. In the present case. concluding and cessation of employment and failure to pay renders retrenchment illegal (S. The employee submitted that retrenchment is illegal for want of wages of 30 days. Ltd. though the tribunal was wrong in holding that S. 25F our opinion incorrect. at the time of retrenchment. the employer cannot heave a sigh of relief from the grip of Sec. 1972 ceased. 18. 25-F applied to Iqbal Singh.HC) e) The condition of Retrenchment Compensation as per clause (b) 1. Section 25-F came into force on October 24. 1953. 1953.3J) “Without further ado. on payment of one month’s salary in lieu of notice. But. 2002 (95) FLR 739 : 2002 IV LLN 772 : 2002 LIC 2873 : 2003 LLR (Sum) 107 (Bom. 1976 I LLJ 478 : 1976 (49) FJR 78 : 1976 (32) FLR 197 : 1976 II LLN 5 : 1976 LIC 769 : 1976 SCC (L&S) 132 : 1976 AIR (SC) 1111 : 1976 (1) SCC 822 (S. concluding and cessation of employment and merely because the date of termination was read into the order of appointment. hence. 25-F. 1970 to Nov. Attributes i) Compliance of Clause (b) mandatory since retrenchment means ending. 25F(b) and hence it can be said that employment of the temporary workmen appointed between July 4. we see no reason to interfere with the order allowing one month’s average pay as retrenchment compensation to Iqbal Singh.. 25B also. 1953. The matter would be different if one month’s notice had been given to Iqbal Singh and after that month his services had been terminated.” (Page: 481. In the circumstances. he was not given one month’s notice. 25F. the company has paid wages of 4days in excess. ended automatically may be but cessation all the time on the expiry of time as stipulated in the appointment letter and since in this case the employee had complied with Sec. Wages for one month does not always mean wages for 30 days and wages for the month of February to be computed on the basis of 28 days but not 30 days (Bom. concluded. as he was surplus. Sundara Money. it cannot be accepted that the company has violated Sec.C. Para: 9) .1. and was.311 The term retrenchment is no longer terra incognita but definitionally very expansive to bring in its fold the ending. But in this case 28 days wages are paid in lieu of notice. 1953. he cannot be retrenched without payment.2402 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 680. for it is not disputed that industrial tribunals use of to give retrenchment compensation even before S. In that case he would be actually working for the month of notice and his services would have terminated after the notice period. & Ors. 25F. Janata Mazdoor Union v. The High Court held that when retrenchment had taken place on 30. Shri N. however. 25F(a) of the Act. what was done was that his services were terminated from September 30 and he was given one month’s pay in lieu of notice. In the event of any contravention of the said mandatory requirement.” (Page: 970. Para: 4) “The requirement to comply with the provision of Section 25-F(b) has been held to be mandatory before retrenchment of a workman is given effect to. conclude.C. A sum of Rs. .” (Page: 255.” (Page: 970. however. 39. void and inoperative. but cessation all the same. cease’. inter alia.000. 25F(b). The Industrial Tribunal by its order dated December 28.Without speculating on possibilities. 25F(b) are mandatory and hence retrenchment effected without complying with its provision will be invalid. Purna Theatre & Ors.” (Page: 970.000 as full and final settlement. the retrenchment would be rendered void ab initio. 2004 LLR 969 : 2004 III LLJ 555 : 2004 (103) FLR 146 : 2004 LIC 3466 : 2004 III CLR 563 : 2004 SCC (L&S) 1086 : 2004 AIR (SC) 4282 : 2004 (8) SCC 229 (S. we may agree that ‘retrenchment’ is no longer terra incognita but area covered by an expansive definition. It means ‘to end. retrenched from services within one month from his joining i..030 issued by the management allegedly as part payment of his compensation of Rs.Sec.313 Retrenchment without complying with the requirement of payment of compensation in terms of Clause (b) and also in violation of Rule 77-A of the West Bengal Industrial Dispute Rules regarding maintaining seniority list of employees was held illegal since the compliance of Clause (b) is mandatory hence the order of the Division Bench upholding the retrenchment was set aside while restoring that of the Single Judge upholding the award of the Tribunal declaring the retrenchment as illegal. 25F Conditions precedent to retrenchment 2403 “………. 1991. 9. stating. Accepting the said plea. State of Bombay & Ors.” (Page: 972. May 30. the Division Bench by reason of the impugned judgment allowed the appeal………. a Cinema House……….Having regard to the fact that the words used in S. In the present case the employment ceased. That to write into the order of appointment the date of termination confers no moksha from Sec. ended on the expiration of nine days . 25F(b) is inferable from the proviso to Section 25F (1) (sic) (Section 25F (a) ?). 434 of 1996.He was. 9.we see no substance in the arguments that the Court of Appeal has misconstrued Sec. Para: 10) F 5A. 1947 which ended in an amicable settlement in terms whereof the appellant allegedly agreed to receive a sum of Rs.C. 39. 39. on the ground of contravention of the legal requirements as contained in Section 25-G of the Industrial Disputes Act.312 Words used in Sec.automatically may be. 1995 held. the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient………. Hospital Mazdoor Sabha & Ors. Para: 16) “We may furthermore notice that the learned Industrial Tribunal interfered with the retrenchment of the appellant not only on the ground of non-compliance of the provisions of Section 25-F(b) of the Industrial Disputes Act but also on the ground of contravention of Rule 77-A of the West Bengal Industrial Disputes Rules.3J) “……….e. Para: 3) “The respondent herein referred an appeal there against before a Division Bench of the Calcutta High Court which was marked as Appeal No.The said writ petition was dismissed by a learned single Judge……….2J) “………. True. Para: 2) “A writ petition was filed by the respondent………. v. 1960 I LLJ 251 : 1959-60 (17) FJR 423 : 1960 AIR (SC) 610 (S. A plea as regard substantial compliance of the requirements of law on the part of the workman was raised for the first time. A trade union known as Bengal Motion Pictures Employees Union took up the cause of the appellant. failure to comply with the said provision render the impugned orders invalid and inoperative..the appellant had also initiated a proceeding under Section 33-C(2) of the Industrial Disputes Act. concluded. That being so.” (Page: 482.030 was paid as retrenchment compensation which the appellant is said to have received under protest. 25F (b) are mandatory and their effect is plain and unambiguous………. Krishna Bahadur v. He had accepted a cheque for the aforementioned sum of Rs. 1947 as also insufficiency of the amount of compensation paid to the appellant in terms of Section 25-F(b) thereof……….The appellant herein was appointed in the post of Messenger-cum-Bearer in the establishment of the respondent herein.000 which was deducted from the aforementioned settled amount of Rs. Para: 1) F 5A. Madras v. 1993 III LLJ (Sum) 671 : 1992 (65) FLR 977 : 1992 I CLR 1005 : 1992 LLR 636 (Bom. Hariprasad Shivshankar Shukla & Anr. Labour Court. AND Barsi Light Railway Co. Madras.HC) Blackwoods India Ltd. 1959 II LLJ 830 : 1959-60 (17) FJR 273 : 1960 AIR (SC) 251 (S. It is set aside accordingly and the judgment of the learned single Judge upholding the award passed by the Industrial Tribunal is restored……….3J) . A.HC) Management of Sri Krishna Talkies. D.. Ltd. it had acquired no special meaning so as to include discharge of workmen on bona fide closure of business.” (Page: 366.C. 25F “……….the closure.CB) F 5A. Its workmen & Anr.CB) “………. 1957 I LLJ 243 : 1956-57 (11) FJR 317 :1957 AIR (SC) 121 (S.HC) iii) Similar payment on closure does not bring closure within ambit of retrenchment (S. Indian Hume Pipe Co.316 Since the object of granting gratuity is different from granting retrenchment compensation and as claims for both the benefits are for entirely different reasons. K.O. Para: 22) Note: Also refer to the following case in the above contexts R.314 In case of retrenchment. Divelkar & Anr. If the intention of the legislature was to given statutory effect to those decisions which awarded compensation on real and bona fide closure of business.C. the legislature standardised the payment of compensation to workmen retrenched in the normal or ordinary sense in an existing or continuing industry. v.C. Pillay v. & Anr. N. First Labour Court. 25-F.” (Page: 973.DB) “There is………..D. every requirement of which is fulfilled by the ordinary. the impugned judgment of the Division Bench cannot be upheld. 1993 III LLJ 361 : 1990 (61) FLR 157 : 1990 II LLN 888 : 1990 LIC 1668 : 1990 II CLR 485 (Raj.DB) ¥ 5A. though a number of Labour Appellate Tribunals awarded compensation to workmen on closure of business as an equitable relief for a variety of reasons... Joglekar & Anr. 1961 II LLJ 552 (Cal. accepted meaning of the word ‘retrenchment’. v.2404 Chapter VA – Lay-Off and Retrenchment Sec. It is reasonable to assume that in enacting S. Indian Dyestuff Industries Ltd.” (Page: 250. Ltd.. there is no conflict between the two and hence grant of one will not exclude the claim for grant of another and the fact that they appear to constitute double benefit is immaterial. State of Rajasthan & Ors. Rajasthan Small Scale Industries Employees’ union v. Para: 16) “For the reasons aforementioned.Retrenchment means discharge of surplus workmen in an existing or continuing business. the legislature would have said so instead of being content by merely adding a definition clause. 25F does not bring closure within the purview of retrenchment since it is awarded as an equitable relief adopting the simple yardstick of length of service to standardize the amount of compensation..When there is such a controversy and when no such list was maintained by the company although maintaining of such list can be said to be a compulsory compliance of the rules framed under the Industrial Disputes Act on the part of the Company (vide Rule 77-A of the West Bengal Industrial Disputes Rules) it must be held that the retrenchment was illegal………. Para: 1) iv) Gratuity is not substitute for retrenchment compensation since the objects of both are different (S. P. the legislature did away with the perplexing variety of factors for determining the appropriate relief in such cases and adopted a simple yard stick of the length of service of the retrenched workmen.. 1971 (40) FJR 250 : 1972 LLN 470 : 1972 LIC 1595 (Mad. payment of compensation is condition precedent whereas in case of closure it is not a condition precedent but can be made after closure. Para: 18) ii) Payment of dues was a condition precedent (Raj.3J) F 5A. v.315 Mere payment of compensation on closure as per Sec.” (Page: 972.C. v. West Bengal & Ors. M/s. the employees are not supposed to get the compensation once again and what Sec. 25J………. (I) where there is retrenchment..We therefore allow the appeal. On the other hand. Therefore. 1959 II LLJ 840 : 1959-60 (17) FJR 282 : 1960 AIR (SC) 257 (S. 25F of the Industrial Disputes Act. 1972 (41) FJR 602 : 1972 LLN 158 : 1972 LIC 383 (AP.The claims for retrenchment compensation and gratuity proceed on different considerations and it would be impossible to hold that the grant of one excludes the claim or grant of the other. and the workmen are only entitled to one or the other.317 Gratuity is a kind of retirement benefit like provident fund or pension and is intended to help workmen after retirement. it is held that merely because of introduction of Sec.” (Page: 833.” (Page: 835. 1947. Para: 1) .318 Where the company has already provided a scheme of compensation by name gratuity to the retrenched employees. Para: 2) “………. The name given to the payment is. what the retrenched workman got is only compensation for retrenchment and not any amount by way of gratuity properly so called. Nagarjuna Sagar Dam & Anr. The concept of retrenchment compensation is essentially different from gratuity.3J) F 5A. on considerations of social justice there is no reason why both the claims should not be treated as legitimate. merely because certain workmen are entitled to the benefit of gratuity under their service regulation. they really complement each other. Venkata Buchi Babu & Ors.In fact the whole object of granting retrenchment compensation is to enable the workman to keep his gratuity safe and unused so that it may be available to him after his retirement. it cannot be contended that they should not be entitled to retrenchment compensation as provided in Sec. whether the retirement is the result of rules of superannuation or physical disability. Chief Engineer. 25F under Chapter V-A. retrenchment compensation is a compensation paid to a workman who has suddenly and without his fault to face unemployment on account of retrenchment. The Brahmachari Research Institute. Calcutta v.C. Para: 2) ¥ 5A. M. it is clear that cases of retrenchment as such are also covered by the Award and payment to workmen retrenched has been called “gratuity”.Sec.3J) “It will be seen that the Award is a composite scheme providing for what is termed gratuity therein under three conditions. Thus the object of granting retrenchment compensation to the employee is very different from the object which gratuity is intended to serve.” (Page: 842. 25J has prescribed is a mere advantageous benefit either under the Act or by the company’s own gratuitous gesture and not both. namely. Their workmen.HC) v) Retrenchment compensation need not be paid again u/s. whichever is more advantageous to them in view of S.it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under S. They do not overlap but are really complementary and there is no reason why workmen should not be entitled to the benefits. That is why on principle the two schemes are not at all irreconcilable nor even inconsistent. and (iii) where there is resignation with the consent of the management. Para: 3) “………. The fact that they appear to constitute a double benefit does not affect their validity……….C. and so. 25F(b) when the same is paid in the name of gratuity under the scheme of the company (S. Though the word “ gratuity” has been used to cover all these three cases. 25F Conditions precedent to retrenchment 2405 “………. v.” (Page: 844. not material and it is the nature of the payment that has to be looked into………. the decision of the Appellate Tribunal and restore that of the Industrial Tribunal in this matter………. set aside. (ii) where there is termination of service for any reason other than misconduct.on a fair and reasonable construction of the Award. 25F of the Act. however. Management of Oasis School. Assuming that………. Industrial Tribunal. 1993 III LLJ (Sum) 133 : 1992 I LLN 212 : 1992 I CLR 571 : 1992 LLR 291 / 429 (P&H. Faridabad & Ors.1st April 1973………..HC) Shambhu Dayal v. Lakshmi Pandit v..1st April 1973………. 1998 I LLJ 186 : 1998 (93) FJR 92 : 1998 (80) FLR (Sum) 18 : 1997 (77) FLR 321 : 1997 III LLN 669 : 1997 II CLR 279 : 1997 LLR 924 (P&H. Rajasthan State Road Transport Corpn. South Eastern Railway. 1983 I LLN 771 (Del.This clearly shows………. Industrial Tribunal.HC) ¥ 5A.D.HC) “………. Industrial Tribunal. 25F vi) Compensation to be offered at the time of termination but not subsequent to it (Del. D.322 Retrenchment compensation was not paid before retrenchment or at the time of retrenchment. Jaipur & Anr. v. 1988 II FLR 272 Note: Also refer to the case of Joginder Kumar Gautam & Anr.O.HC) Note: refer to the case of Joginder Kumar Gautam & Anr.DB) for different view . it cannot be cured by employer’s subsequent offer for any sum in full and final settlement nor can it disentitle the workman from challenging the order of retrenchment on the ground of non-compliance of statutory requirements.In their notice………. 1992 I LLJ 210 : 1991 (78) FJR 314 : 1991 LIC 428 : 1990 II LLN 954 : 1990 II CLR 506 (AP. Himayatnagar.2406 Chapter VA – Lay-Off and Retrenchment Sec. P. 1985 LIC 480 (Raj.319 Workman received the retrenchment compensation on 2nd April 1973 whereas he was intimated that he would be retrenched from service with effect from 1st April 1973. State Bank of India & Ors.HC) Rajasthan State Road Transport Corporation & Anr. Hyderabad v. Haryana & Ors. Roop Narain Shukla v. v.. In this context it cannot be said that compensation was offered at the time of retrenchment. Para: 13) Note: Also refer to the following case/s Naren Mahato & Ors. Therefore. Therefore.of the statute. 25F are necessary preconditions for retrenchment and non-compliance of the same will render retrenchment invalid ab initio.” (Page: 775.HC) ¥ 5A.DB) for different view vii) Defect of non payment of retrenchment compensation cannot be cured by employer’s subsequent offer of any sum in full and final settlement (AP.321 The amount payable u/s.320 It is well settled principle that 3 conditions u/s.. Kharapur & Ors. Labour Court.HC) viii) Compensation to be paid either before or at the time of retrenchment (P&H.HC) ¥ 5A. v. 2003 II LLJ 401 : 2003 LIC 503 (HP. Rajasthan. 25F(a) and 25F(b) of the Act... Kanti Weekly v. 2003 II LLJ 401 : 2003 LIC 503 (HP.. Hyderabad & Ors. termination was set aside and reinstatement ordered.. 1985 II LLN 894 : 1985 LIC 1516 (Cal. v.. State Bank of India & Ors.HC) ¥ 5A. 25F of the Industrial Disputes Act has to be paid at the time of retrenchment. Gupta & Ors. Mere intimation to workman that he should collect his dues from office on any working day is not enough compliance of provisions of Sec. Thus a workman can challenge the validity of retrenchment during conciliation proceedings and even after receiving retrenchment compensation subsequently. DB) “Learned……….DB) ¥ 5A. Para: 9) Note: Refer to the recent case of Hotel Horizon Pvt. Para: 21) x) Payable even in case of termination on ground of loss of confidence (Bom. Hotel Horizon Pvt.DB) ¥ 5A. 1.and proper. State Bank of India & Ors. v. Bhartiya Kamgar Karmachari Mahasangh & Anr.325 Retrenchment compensation due to a workman cannot be set off against gratuity payable as the entitlement to the two benefits arise on satisfaction of requirements under two different laws and hence cannot be destructive of each other. Budharaj & Co.DB) ¥ 5A.323 Retrenchment compensation not required to be paid simultaneously with the notice.000 in lieu of reinstatement as no enquiry was held nor the employee was charge sheeted.50. 2002 I LLJ 186 : 2001 III LLN 1003 (Bom. & Ors. K. Joginder Kumar Gautam & Anr. v.. Commissioner of Income-Tax v.C.326 Workman was discharged without any enquiry as he failed to give explanation about the money. Before High Court it was contended by the employer that the workman failed to show any reason for such amount with him... 25F Conditions precedent to retrenchment 2407 ix) Compensation not required to be paid simultaneously with the notice (HP. Srinarayan Mevalal Gupta v.Payment of Gratuity Act. Ltd. 25F was not required.DB) “The Labour……….HC) xiii) Retrenchment compensation is allowable deduction as business expenditure as per Income Tax Act (Ori.HC) for different view in this section (Given below) xi) Retrenchment compensation cannot be set off against gratuity since the two benefits arise under two different laws (Mad.” (Page: 917. 1991 I LLN 479 (Bom. Ltd.DB) .of the Act………. 2002 I LLJ 186 : 2001 III LLN 1003 (Bom.Sec. 1994 I LLJ 589 : 1993 (83) FJR 595 (Ori. which he had with him during duty hours. 2003 LIC 503 : 2003 II LLJ 401 (HP.. Padamjee Pulp & Paper Mills. termination for loss of confidence was held not to be suffering from any infirmity.DB) ¥ 5A. J. Bhartiya Kamgar Karmachari Mahasangh & Anr.HC) ¥ 5A. Deputy Dommissioner of Labour & Anr. 1998 II LLN 914 : 1998 (92) FJR 174 : 1998 (79) FLR 64 (Mad. Labour Court awarded Rs..DB) “Retrenchment……….” (Page: 482..” (Page: 507.. v. it would be a case of simple discharge and employer was only required to justify the termination before Labour Court and compliance of Sec. On reference. Para: 6) xii) Not payable in case of simple discharge for loss of confidence (Bom. High Court set aside the award of Labour Court on the ground that the charge was admitted by workman and employer proved the charge before Labour Court and it was also held that where the employer discharged the workman for loss of confidence. Subba Rao v. Ltd.327 Retrenchment compensation is allowable deduction as business expenditure as per Income Tax Act.324 Retrenchment compensation is payable even in case of termination on ground of loss of confidence but as the workmen did not visit employer to collect the final dues which includes retrenchment compensation. Para: 11) “Under S. During the entire period that the business. wholly contingent and does not raise any definite obligation during the time that the business is carried on. But to be a permissible allowance the expenditure must be for the purpose of carrying on the business. The liability which arose on transfer of the business was not of a revenue nature.37(1)………. cannot be regarded as a part of the outgoing of the business debitable in the profit and loss account. but springs from the transfer of the business. Ramabhai Bhikhabhai. business.” (Page: 1563. Profits of a business involve comparison between the state of the business at two specific dates. Salim Khan.HC) . It arose not in the carrying on of the business.So xiv) Retrenchment compensation being not an expenditure cannot be debited to profit and loss A/c (S. Commissioner of Income-tax. profession or vocation”.” (Page: 1563. Para: 12) xv) Recovery of loan amount from the legal dues such as retrenchment compensation permissible (Bom. it may appropriately be regarded as expenditure.328 Retrenchment compensation payable due to transfer of business being a liability having not arisen during the whole period of business does not fall within expression “expenditure” and cannot be debited in Profit and Loss Account as a revenue item in determination of profits under the Income Tax Act.C. 1967 AIR (SC) 1559 (S. It has to be worked as per the provisions of Industrial Dispute Act.actual payment………. a properly debitable item in its profit and loss account as a revenue outgoing. in our judgment. Petlad Bulakhidas Mill Company Ltd. during the whole of the period that the business is carried on. Kerala v. is a permissible allowance. The claim of the firm to treat it as an item in the determination of the profits of the firm under S.. unless its source is in a pre-existing definite obligation.HC) xvi) There cannot be settlement for lesser amount of compensation than that provided under Industrial Disputes Act (Guj. was continuing. not for the purpose of carrying on the business. it is not. it cannot fall within the expression “expenditure laid out or expended wholly and exclusively” for the purpose of the business.e. Respondent.C. if liability to make the payment has arisen during the time the business is carried on.liability……….3J) F 5A. 10(1) of the Income-tax Act cannot. But where the liability is. the liability to pay retrenchment compensation arose for the first time after the closure of the business and not before.HC) ¥ 5A.329 There is no illegality in recovering the loan amount given to workman by deducting the same from legal dues at the time of his retrenchment.Payment far………. i. therefore be sustained. 25F of………. 2004 (102) FLR 194 : 2003 IV LLN 261 : 2004 II CLR 309 : 2004 LLR 685 (Bom. profession or vocation carried on by the assessee. Petitioner v. Where accounts are maintained on the mercantile system. Petlad. 1995 II LLJ 1240 : 1995 (87) FJR 158 : 1995 II LLN 219 :1995 LIC 675 : 1995 II CLR 494 : 1995 LLR 1069 (Guj. Engineering & Ancilliary Manufacturers v. but on account of the transfer of the business.3J) “As already observed.. A deduction which is proper and necessary for ascertaining the balance of profits and gains of the business is undoubtedly properly allowable.” (Page: 591. Normally the liability which occurs after the last date. but where a liability to make a payment arises not in the course of the business. 10(2)(xv) of the Indian Income-tax Act in the computation of taxable profits (omitting parts of the clause not material) “any expenditure laid out or expended wholly and exclusively for the purpose of such business.HC) ¥ 5A. Para: 5) Sec.330 Retrenchment compensation cannot be a contracted for lesser amount between union and employer than provided under the statute. Gemini Cashew Sales Corporation Quilon.2408 Chapter VA – Lay-Off and Retrenchment “The determinative factor is………. there was on liability to pay retrenchment compensation. Sindhu Resettlement Corporation.it is clear that the Tribunal committed an error in drawing the legal inference that respondent No. it cannot be held that his services were retrenched by the appellant Corporation………. Gujarat.2J) F 5A.HC) ¥ 5A. 3 in Sindhu Hotchief. Does not bar industrial dispute i) Acceptance of compensation is not a bar casual worker to raise a dispute on illegal termination (S.3J) F 5A. we are constrained to observe.HC) xviii) Retrenchment compensation cannot be claimed from parent company once services transferred to subsidiary company with workman’s consent (S. 1968 I LLJ 834 : 1968 (16) FLR 307 : 1968 LIC 526 : 1967-68 (33) FJR 332 : 1968 AIR (SC) 529 (S...332 In instant case services of an employee were placed in subsidiary company with his consent and he later got confirmed therein subsequently his services were terminated after payment of retrenchment compensation by subsidiary company. Nar Singh Pal v.. the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment.Sec. it is clear that the services of respondent No. Ltd. Supreme Court held that his services with parent company came to an end on his confirmation by subsidiary company and he cannot claim reinstatement or retrenchment compensation from parent company. Ltd. v.333 Acceptance of retrenchment compensation will not bar the casual worker to raise a dispute regarding reinstatement in respect of illegal termination. v.though respondent No.331 Retrenchment of certain workmen effected without complying requirements of Sec. The concerned workmen were not estopped from receiving such payment as estoppel cannot be applied against retrenched workmen who had no freedom to refuse payment.C. Like any other employee. 25F Conditions precedent to retrenchment 2409 xvii) Additional compensation of one month’s wages granted can be ordered by Court if retrenchment justified (Cal. when he was retrenched by Sindhu Hotchief. Industrial Tribunal.2J) “………. Union of India & Anr.he took the service in Sindhu Hotchief and accepted permanent appointment there willingly.N. 3 continued to be in the service of the appellant Corporation even after he had received permanent appointment in Sindhu Hotchief. The appellant was a casual labour who had attained the ‘temporary’ status after having put in ten years’ of service. he ceased to be an employee of the appellant later when he was confirmed in Sindhu Hotchief………. 25F.They intended to say that once retrenchment compensation was accepted by the appellant. he would not have been entitled to retrenchment compensation from Sindhu Hotchief………. his family members on the wages he got. Para: 1) f) Payment / Acceptance of compensation effect on the rights of workman 1.3J) “………. On a correct inference. he could not claim reinstatement in the appellant Corporation……….C. Elias & Co. was wholly erroneous and was not the correct approach. he was given retrenchment compensation which he accepted.3 did not cease to he an employee of the appellant when his services were placed at the disposal of Sindhu Hotchief by the appellant with effect from 18th September. the matter was referred for adjudication. B. 1953. West Bengal & Ors. or may be. employment of respondent No. Industrial Tribunal on finding that the retrenchment was justified directed additional payment of 1 month’s wages to the concerned workmen. Thus. Such order was held to be valid and justified. Pvt. 1965 II LLJ 324 : 1961 II LLJ 14 : 1965-66 (28) FJR 257 (Cal. In case he had continued to be in the service of the appellant. 2000 I LLJ 1388 : 2000 (96) FJR 502 : 2000 (85) FLR 458 : 2000 II LLN 407 : 2000 LIC 1377 : 2000 SCC (L&S) 362 : 2000 AIR (SC) 1401 : 2000 (3) SCC 588 (S.” (Page: 837/838. & Ors.at the time of termination of the.C. he had to sustain himself. On the .C. Fifth Industrial Tribunal. 3 under the appellant Corporation had come to an end and. C. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution.They intended to say that once retrenchment compensation was accepted by the appellant. therefore. Like any other employee.. 25F termination of his services. was wholly erroneous and was not the correct approach. the plea of employer that their re-employment would result in double benefit in the form of payment of compensation and immediate re-employment was held as not maintainable. Thus. Such an order cannot be sustained. The retrenchment compensation paid to him. or may be. the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights.334 The acceptance and utilisation of retrenchment compensation paid as per the Act cannot take away the fundamental right available under the Constitution to temporary employees in service under Union of India against his dismissal in violation of Principles of Natural Justice. Workmen (represented by Akhil Bhartiya Koyla Kamgar Union) v. there was no hope left for payment of salary in future. the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. 6. As pointed out earlier. Ltd. Para: 13) 2.was utilised by him to sustain himself. & Ors. On the termination of his services.” (Page: 1392. 6.C.2J) “……….C. but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case. Para: 13) ii) Acceptance and utilisation of retrenchment compensation does not take away rights of Union Government employees against termination which is punitive in nature (S. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. That . 2000 I LLJ 1388 : 2000 (96) FJR 502 : 2000 (85) FLR 458 : 2000 II LLN 407 : 2000 LIC 1377 : 2000 SCC (L&S) 362 : 2000 AIR (SC) 1401 : 2000 (3) SCC 588 (S. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution.” (Page: 1392.350 was utilised by him to sustain himself.. 25FF.335 Since workmen were retrenched before the nationalisation of colliery and were paid compensation u/s. Fundamental Rights under the Constitution cannot be bartered away. Such an order cannot be sustained. he had to sustain himself. which was only a meagre amount of Rs. we are constrained to observe.The workmen had been paid compensation only under Section 25-F and not under Section 25-FF of the Act of transfer of the colliery to the present management. his family members on the wages he got. Union of India & Anr.C. 25F and not u/s. It is no doubt true that this argument sounds good.2J) F 5A. there was no hope left for payment of salary in future. Fundamental Rights under the Constitution cannot be bartered away. Nar Singh Pal v.2410 Chapter VA – Lay-Off and Retrenchment Sec. Does not bar re-employment i) Payment of compensation is not a bar to re-employment of retrenched workmen on subsequent nationalisation of colliery (S. The appellant was a casual labour who had attained the ‘temporary’ status after having put in ten years’ of service. which was only a meagre amount of Rs. 2001 AIR (SC) 1994 : 2001 I LLJ 1400 : 2001 (98) FJR 652 : 2001 (89) FLR 552 : 2001 II CLR 1 : 2001 II LLN 819 : 2001 LIC 1397 : 2001 SCC (L&S) 641 : 2001 SCC (4) 55 (S.2J) F 5A. the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment. fair justice means that such workmen will not be entitled to such conferment of double benefit.350/. The workmen in question have been retrenched long before the colliery was taken over by the respondents……….2J) “Shri Sinha submitted that as soon as transfer has been effected under Section 25-FF of the Act all the employees became entitled to claim compensation and thus who had been paid such compensation will not be entitled to claim re-employment under Section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and. As pointed out earlier. The retrenchment compensation paid to him. Employers in relation to Management of Industry colliery of Bharat Coking Coal. Dharam Pal.” (Page: 52. The Supreme Court setting the record straight had held that the provisions of Sec. unless where the construction of those words is. Hisar v.LJ 63 : 2007 SCCL. Industrial Tribunal..” (Page: 1997. 2(aaa) of the Act being legitimate. The respondent had worked for two years and one month and. 25F(b) in statement of claim and Management in it’s reply failed to make an averment that requisite amount was offered.336 Where union specifically pleaded non-compliance of Sec. Para: 6) g) Computation of retrenchment compensation 1.DB) ¥ 5A. the “average pay” in accordance with Section 2(aaa)(i) would come to Rs.DB) “As held by……….B. ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning. The true way is to take the words as the legislature have given them.337 The question of computation of retrenchment compensation u/s. B. 25F(b) of the Act. Ltd. we do not think that the line upon which the High Court has proceeded is correct.COM 59 (S. The Apex Court held that the word “average pay” occurring herein has been defined in Sec. it was held that management cannot subsequently adduce evidence in this behalf before Tribunal. either by the preamble or by the context of the words in question. Therefore by applying the plain and ordinary meaning. 1642 per month and he being entitled to 30 days’ average pay by way of retrenchment . & Ors.2J) “The language used in Section 2(aaa) is absolutely plain and clear and there is not the slightest ambiguity in the same. 4(2) of The Payment of Gratuity Act which adopts the principle of “twenty six working days” instead of 30 working days in a month for the purposes of computation.2J) F 5A.. As is often said the golden rule is that the words of a statute must prima facie be given their ordinary meaning and natural and ordinary meaning of the words should not be departed from unless it can be shown that the legal context in which the words are used requires a different meaning.C. and to take the meaning which the words given naturally imply. controlled or altered. It is well settled principle that the words of a Statute are first understood in their natural. 25F(b) was the bone of contention in which case the Labour Court and High Court had held that as the compensation paid was short by virtue of not applying the method of computation of wages as prescribed u/s. 1642 per month in immediately three preceding months before his retrenchment. Number of working days – what should be to arrive at one day wage i) To be computed on the basis of 30 working days instead of 26 working days in a month in terms of Sec. 1981 (42) FLR 50 : 1981 II LLN 255 (Bom.before the Tribunal. Guru Jambeshwar University. Para: 9) 3.The respondent was being paid wages amounting to Rs. 25F Conditions precedent to retrenchment 2411 case has not been pleaded or established. 2007 I LLJ 1006 : 2007 (112) FLR 880 : 2007 I LLN 740 : 2007 LIC 956 : 2007 I CLR 931 : 2007 LLR 297 : 2007 (1) SCC (L&S) 792 : 2007 AIR (SC) 1040 : 2007 (2) SCC 265 : 2007 (3) Mah. Tambe. there is no illegality and therefore the order of Courts below were set aside. the retrenchment of the employee was illegal in violation of Sec. he was entitled to thirty (15x2) days of average pay by way of retrenchment compensation in order to comply with requirement of Section 25F(b) of the Act. 4(2) of Gratuity Act do not apply while computing retrenchment compensation under the provision of Sec. 2(aaa) of the Act where the legislature has not thought it necessary to bring in the concept of dividing monthly wages by 26 days for determining the average pay unlike in Payment of Gratuity Act. Employer cannot adduce evidence in the absence of averment that sufficient amount was offered (Bom. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored.Sec. 1642. Therefore.” (Page: 1010/1111. Maharashtra. The “average pay” of the respondent being Rs. 25F(b) of the Act. 2(aaa) of the Industrial Disputes Act (S. unless that leads to some absurdity or there is something in the context or in the object of the statute to suggest to the contrary. Calama Industries Pvt.C. therefore. Para: 9) “………. the compensation paid in terms of Sec. Hence. v. which reads as under:Explanation:. But. But the legislature has chosen not to do so. Hisar v. 1969 LIC 1166 (Pat.338 For assessing retrenchment compensation.2J) ii) In the case of wages paid per working day the computation shall be as per provisions of Sec. 25F(a) of the Act and not for 30 days wages. 2(aaa)(iii) on the basis of 26 days (Mad. the legislature has brought the statute in line with the principle laid down in the case of Jeevanlal (supra) and has given statutory recognition to the principle evolved.COM 59 (S. Palaniswami v.HC) iii) A month is to be taken as 26 days for calculating one day wages (Pat. 1965 II LLJ 541 (Mad. Dharam Pal. K. India Hume Pipe Company.2412 Chapter VA – Lay-Off and Retrenchment Sec. he was required to be paid Rs. Pvt. Para: 13) “There is another important feature which deserves notice. Kailash Nath Shrivastava & Anr.HC) ¥ 5A. there was full compliance of Section 25F(b) of the Act. The issue is now settled by Apex Court in Guru Jambeshwar University.. no such amendment has been made in the Industrial Disputes Act. average monthly wages divided by 30 instead of by 26 and multiplied by 15 but for assessing 15 days wages.” (Page: 1012/1013.339 Where wages are fixed per working day. there is no warrant or justification for importing the principle of 26 working days for determining the compensation which is payable in terms of Section 25F(b) of the Act. Third Industrial Tribunal.HC) Note: The following cases are based on computation of compensation on the basis of 26 days. that in case of monthly rated employee the fifteen days’ wages shall be calculated by dividing the monthly rate of wages by twenty six and multiplying the quotient by fifteen.In the case of a monthly rated employee. 1642/. 2001 II LLJ 39 : 2001 (89) FLR 192 : 2001 LLR 462 : 2001 II LLN 743 : 2001 I CLR 777 (Cal.” (Page: 1010.LJ 63 : 2007 SCCL. The University gave him a cheque for Rs. By adding the explanation.DB) ¥ 5A. the fifteen days’ wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.at the time of his retrenchment and. West Bengal & Ors.C..” (Page: 1171. v. The award of the Labour Court allowing the claims of the workman is not assailable.. Ltd.also not assailable.Therefore. Parry’s (Cal) Employees’ Union & Anr. 1642 as retrenchment compensation. 2(aaa)(iii) of the Act.” (Page: 1012.340 In accordance with the industrial law applicable to mines. monthly wages need not be divided by 26. Ltd. by Act No. therefore. a similar amendment could have been made. v.DB) “Lastly I take………. Para: 10) “………. 25F compensation. & Ors. a month is calculated on a 26 day basis and so leave salary and retrenchment compensation is to be calculated on this basis. Para: 14) ¥ 5A. This is an additional reason for holding that the principle of “twenty-six working days” is not to be applied for determining the retrenchment compensation under Section 25F(b) of the Act. 2007 I LLJ 1006 : 2007 (112) FLR 880 : 2007 I LLN 740 : 2007 LIC 956 : 2007 I CLR 931 : 2007 LLR 297 : 2007 (1) SCC (L&S) 792 : 2007 AIR (SC) 1040 : 2007 (2) SCC 265 : 2007 (3) Mah. 22 of 1987.. viz. Para: 21) . and such workman held entitled to 26 days wages by way of notice pay u/s. retrenchment should be calculated by applying provisions of Sec. Khas Joyrampur Colliery Co. M/s. If the legislature wanted that for the purposes of Section 25F(b) also the average pay had to be determined by dividing the monthly wages by twenty-six. Subsequent to the decision of this Court in Jeevanlal (supra) an explanation has been added after second proviso to Section 4(2) of the Payment of Gratuity Act. COM 59 (S.Sec. DBH International Ltd. Ltd. 2007 I LLJ 1006 : 2007 (112) FLR 880 : 2007 I LLN 740 : 2007 LIC 956 : 2007 I CLR 931 : 2007 LLR 297 : 2007 (1) SCC (L&S) 792 : 2007 AIR (SC) 1040 : 2007 (2) SCC 265 : 2007 (3) Mah. there is no unanimity as to the number of days to be considered to arrive at one day wage for the purpose of computing retrenchment compensation. Management of Shadlow India Ltd. the correct method is to first calculate 1 day’s average by dividing monthly pay by 26 days and not by 30 days.HC) ¥ 5A. moreover 15 days average pay has to be calculated on this basis.2J) has settled the issue by holding that the number of working days to be considered is 30 days but not 26 days .DB) “The said decision………. it follows that retrenchment compensation paid in this case is a short payment which in law is no payment at all.C. Therefore. Division Bench held that the award by Tribunal was justified but in view of the closure of establishment granted compensation instead of reinstatement.DB) ¥ 5A.3J) iv) Retrenchment compensation was to be computed on the basis of 26 working days (Bom.. Patna & Ors.” (Page: 1042.HC) v) Computation shall be on the basis of 15 days wages but not half month’s wages for each completed year of service (Pat. Prabhakar Dattaram Phodkar Of Bombay & Ors.. & Anr.343 To calculate 15 days average pay... Tribunal directed reinstatement of the workman for short payment. Hisar v. However the Apex Court in the recent case of Guru Jambeshwar University. 25F Conditions precedent to retrenchment 2413 Note: Refer to Jeewanlal (1929) Ltd. Para: 26) Note: As observed from the above decisions from some High Courts. By Transport and Dock Workers’ Union and Anr. 2000 II LLJ 208 : 2001 (98) FJR 114 : 2000 I LLN 418 : 2000 LIC 65 : 2000 I CLR 510 (Mad. Appellate Authority.O.341 The employer calculated retrenchment compensation with divider of 30 instead of 26.O. As the worker works only for 26 days retrenchment compensation should be computed on the basis of workman’s monthly wages for 26 working days. rep.LJ 63 : 2007 SCCL. Labour Court. Hence retrenchment for want of proper retrenchment compensation was liable to be quashed. Their Workmen. v. P.. Trade Wings Ltd. 2005 III LLJ 434 : 2005 (106) FLR 735 : 2005 III LLN 414 2005 II CLR 679 (Bom. P.C. etc v. 1984 AIR (SC) 1842 : 1984 (4) SCC 356 : 1984 II LLJ 464 (S. V.Calendar month.DB) ¥ 5A.DB) ¥ 5A. v. 25F(b) was to be computed on the basis of 30 days a calendar month or 26 working days was the question. etc. 2003 (98) FLR 1032 : 2003 III LLJ 981 (Pat.344 Payment of compensation under the section has to be calculated at 15 days wage and not half month and one days wages shall be determined on basis of 26 days and not 30 days. Bennet Coleman & Co. 1993 III LLJ (Sum) 299 : 1992 (64) FLR 978 : 1992 II LLN 500 : 1992 I CLR 480 (Bom.342 Whether retrenchment compensation payable u/s. Payment of Gratuity Act & Ors. Single Judge dismissed the application filed by employer. v. Dharam Pal. Sen is. Para: 2) ii) To include travelling allowance since it is part of wages (Raj.HC) Note: also refer to the following case Girish Kumar Jain v.347 In this case. As we have already pointed out..C. Girish Kumar Jain v. If in.” (Page: 7. 25F 2. notice pay and retrenchment compensation was paid while effecting retrenchment of the workman but while calculating the retrenchment compensation value of house accommodation was not included.. 25F(a) and (b) renders the termination non-est. 1994 (84) FJR 447 : 1994 (69) FLR 31 (Raj.. Crown Aluminium Works v. It was held that there is non-compliance of Sec. Wages – what payments to be considered i) Concessional payments forming part of basic wages taken in determination of wages for compensation (S. enough material had not been produced to show to what extent the cost of living index has fallen and whether this fall was temporary or had come to stay. but however this amount of House rent allowance + travelling concession was not included while paying wages in lieu of notice and retrenchment compensation. 25F(b) of Industrial Disputes Act and thus retrenchment is not valid. reaching its final conclusions. 40 as Travelling concession which are included in the value of wages. not right in contending that the final decision of the appellate tribunal is based solely or even chiefly on the alleged convention to which the appellate tribunal has referred.HC) ¥ 5A. 1958 I LLJ 1 : 1957-58 (13) FJR 292 : 1958 AIR (SC) 30 (S. Besides. the appellate tribunal has relied not only upon the alleged convention but also upon the other circumstances just mentioned it would not be fair to say that its conclusion is vitiated in law or is otherwise unsound………. thought that the wages paid by the appellant to its workmen “are the irreducible minimum or may at best be in the region of fair wages with a small margin over the minimum wage”. The appellate tribunal. the tribunal has also found that substantial retrenchment which has been sanctioned by both the tribunals would improve the financial position of the appellant. Union of India & Ors.3J) F 5A. 1994 (84) FJR 447 : 1994 (69) FLR 31 (Raj. M/s.HC) iii) Value of house accommodation must be included (Raj.C.HC) ¥ 5A.2414 Chapter VA – Lay-Off and Retrenchment Sec.3J) “Mr. 1994 (84) FJR 496 : 1994 (69) FLR 220 (Raj. In the opinion of the appellate tribunal. Mahendra Kumar Sharma v.HC) . which was approved by the Tribunal the modification made by the Appellate Tribunal was upheld. it appears.346 In this case the petitioner was paid Rs. the downward tendency in the cost of living index on which the appellant partly relied could not be considered in the present proceedings since no specific issue had been referred to the tribunal in that behalf. Union of India & Ors. Their Workmen. 25F(a) and (b) of Industrial Disputes Act falls short the order cannot be sustained and in this case the non-compliance of Sec. however. 187 as House rent allowance and Rs. Thus it was held that if amount payable u/s. Union of India & Ors.345 As concessional payments were paid to the employees for some years it was held to form part of their basic wages and as the financial condition of the company would improve on substantial retrenchment. interested in running the transport services and thus. v. Para: 2) 2.C.348 Labour Court is directed to compute the amount payable to the respondent.” (Page: 576.1956 Days. Syed Batcha & Ors. 200 per month paid under direction of High Court………. (1) SCC 37 (S.the Presiding Officer………. Temporary workman has also right to receive retrenchment compensation (Mad. not workmen indicating the absence of master and servant relationship as a consequence of which no Industrial Dispute could exist (2) The respondent employees can agitate their grievance through their workmen directors on the Board as per the by laws of the society (3) The by laws do not provide for payment of any retrenchment compensation (4) and the Societies Act provided for machinery for settlement of disputes and hence the respondent employees were directed to get their claims adjudicated under Co-operative Societies Act.Sec. Additional Labour Court.Bearing these principles………. which makes no distinction between permanent and temporary workman. Ltd.” (Page: 284. 1973 II LLJ 446 : 1974 (28) FLR 48 : 1974 (28) FLR 69 : 1973 II LLN 501(Mad.349 A temporary workman deemed to be a workman u/s.C. 1964 I LLJ 280 (Mad.DB) ¥ 5A. The Chief Engineer (Irrigation).Act. was held not maintainable because (1) The member employees were shareholders.” (Page: 284. It is open to the appellant to establish if respondent was employed elsewhere. Rajasthan State Electricity Board. Chepauk. 2(s) is entitled to receive retrenchment compensation in addition to notice u/s. Natesan. Chief Engineer. decided by directing the Labour Court to compute the amount liable to be paid to respondent. v. Para: 2) “……….well established……….” (Page: 447. Para: 4) “It is also………..DB) “That even………. N.The Act……….compensation………. Para: 3) “………. Para: 1) “The only……….DB) “In 1957 the Society………. Rajasthan & Anr. 25F.change………. Madras-5 & Anr. Members of Co-operative Motor Transport Society not entitled to claim since they are not workmen (Mad.350 The claim for retrenchment compensation made by the member employees of the Co-operative Motor Transport Society Ltd..DB) ¥ 5A. South Arcot Co-operative Motor Transport Society.” (Page: 281. Para: 5) . The amount paid under the direction of the High Court and Supreme Court be deducted. therefore.2J) “The appeal is. Para: 3) h) Who can claim 1. 1993 III LLJ 576 : 1990 (61) FLR 647 : 1990 II LLN 992 : 1990 II CLR 689 : 1990 LLR 692 : 1991 SCC (L&S) 730 : 1991 Suppl..” (Page: 447.is correct. as Junior Engineer from the date of termination to date of superannuation minus the amount received by him in course of employment and Rs. Jaipur v. Para: 3) “Thus the………. Order of Single Judge is upheld.” (Page: 281.” (Page: 283.grievance. 25F Conditions precedent to retrenchment 2415 iv) Income earned from gainful employment to be excluded (S.” (Page: 447. Para: 2) “……….2J) F 5A.society………. were both members and owners of the society and hence. Union of India & Ors. 25F. v. Jalandhar & Ors. his disengagement cannot be treated as being under the Industrial Disputes Act 1947.High Court has satisfied itself by looking into the original records.2416 Chapter VA – Lay-Off and Retrenchment Sec. there was sufficient compliance with the provisions of Clause (b) of Section 25-F.. 1991 II LLJ 76 : 1993 (82) FJR 332 : 1991 (62) FLR 458 : 1991 I LLN 587 : 1993 LIC 428 : 1991 I CLR 637 : 1991 SCC (L&S) 147 : 1993 AIR (SC) 1388 : 1991 (1) SCC 189 (S. 1983..etc. spread out all over the State.” (Page: 83/84.. When sent by bank drafts through registered post though the workman avoids receipt of the same (Raj.3J) F 5A. The Labour Court held the delay as non-compliance of Sec. the Corporation made arrangements whereby the tubewell operators could go to the nearest divisional/sub-divisional office and collect the amount of compensation due to them………. Eastern Engineering Works.in the circumstances of this case. Presiding Officer.HC) Note: Refer to the following case Anand Pandurang Mhaskar v. we agree with the High Court that when individual drafts for the amounts of compensation due to the various tubewell operators were forwarded to the divisional/sub-divisional Officer.this Act.HC) . 1983……….HC) ¥ 5A. Hoshiapur v. cannot contend that there was no tender of notice pay and retrenchment compensation u/s. on the same date as the notice. the fact that he had made a back door entry into the services it further disentitles him as it is in contravention of Arts. 1993 (66) FLR (sum) 43 : 1993 LIC 678 (Raj.351 Forwarding of individual drafts favouring tube well operators for the amounts of retrenchment compensation to sub divisional / divisional officers well in advance of termination of their services so that they are timely available to be received by employees is held to be sufficient compliance of Sec. The High Court in its decision held that as the employer had tendered the amount by obtaining D. Para: 3) i) When deemed paid/when substantially complied 1.Societies Act. 2003 (96) FLR 673 (Bom.HC) 3.” (Page: 284. Gurmail Singh & Anr. etc.3J) “………. It is true that the amounts were not actually paid or tendered to the workers by the Corporation directly but the Corporation had evolved a method of disbursement of compensation in the interest of the workers’ convenience. that drafts in respect of individual employees were dispatched in time so as to reach divisional/sub-divisional officers by 31st of August. 25F(b).352 The workman by avoiding to take the requisite amount through bank drafts. Labour Court..C. When demand draft and retrenchment notice were sent on the same day though served three days after retrenchment (P&H. 14 and 16 of the Constitution. Hoshiarpur Central Co-operative Bank Ltd.353 The workman was a daily wager and his services were terminated and the retrenchment compensation along with termination notice could be served only after 3 days of termination. 2005 I LLJ 800 : 2005 (104) FLR 574 : 2005 I LLN 940 (P&H. 25F and also. 25F “If immediately………. Para: 9) 2. Dinesh Kumar v. 25F(b).D. the workman is a daily wager. State of Punjab & Anr. to come to the head office to collect the compensation and to avoid the inconvenience and difficulty of the Corporation making available the compensation at the doorstep of each employee. there is sufficient compliance of Sec.C.. sufficiently in time to be available to be taken by them by 31st August.. When drafts of compensation amount forwarded in advance to divisional authority for workmen to receive is sufficient compliance (S. Para: 5) “The discharged………. which was sent by registered post.” (Page: 285. Also. Instead of making the appellants.HC) ¥ 5A. since. the Society retrenched the services of the appellants by order dated October 9. 1996 but since society agreed to pay 3 months salary to each employee which was acceptable to them the appeal was disposed without going into merits of the matter.Sec. Para: 15) 5. 2003 II LLJ 159 : 2003 (97) FLR 110 : 2003 III LLN 34 : 2003 LIC 1449 : 2003 LLR 419 : 2003 SCC (L&S) 545 : 2003 AIR (SC) 1872 : 2003 (4) SCC 619 (S.. Para: 4) “Notice was issued in the SLPs.” (Page: 1683..355 Subsequent to liquidation of society. During pendency of writ petition filed by employees. certain interlocutory orders were passed.2J) “………. no compensation as required under Section 25–F(b) of the Industrial Disputes Act was given to the appellants. pursuant to certain interlocutory orders.2J) F 5A. workmen were retrenched by order dated 9th Oct.C. Para: 3) “The High Court while disposing of the writ petition. the last instalment of compensation was paid to the appellants on April 30. State of Bihar & Anr. 25F(b) was paid.” (Page: 1683. They were obviously not interested in receiving the retrenchment compensation which if done may have had the effect of frustrating the interim order. Para: 2) “………. Under such circumstances.P.3 stated that respondent No. Government of A. Sai Sharma & Ors.” (Page: 1683. Para: 5) “When the matter was taken up today.. during the pendency of the writ petition. An opportunity of hearing against the proposed termination was also afforded though not required by Section 25F.. (sic) 1991” (Page: 1683.C. held that the appellants are entitled to payment of compensation in accordance with Section 25-F(b) of the Industrial Disputes Act. 25F if compensation is paid at the time of retrenchment therefore where the employer after giving notice. 1991 and during that time no compensation as required u/s. the appellants filed a writ petition under Article 226 of the Constitution. which is acceptable to the appellants. and in pursuance thereof.2J) F 5A.Ps. Para: 7) . 1991 or April 30. v. Compensation as required by Section 25F was available in the form of banker’s cheques for payment to the workers simultaneously with the time of retrenchment and they were given an intimation in advance in that regard. It appears that. 1996.R.L. & Ors. In these facts and circumstances. 1996. The workers had already approached the High Court and secured an interim order protecting their employment and status quo being maintained. 2001 I LLJ 1682 : 2002 LIC 119 : 2004 SSC (L&S) 271 : 2003 (10) SCC 260 (S.C..The Society had gone into liquidation under Section 64 of the Act and a Liquidator was appointed.1996. 25F Conditions precedent to retrenchment 2417 4. before the High Court of Andhra Pradesh.2J) “In the case before us the workmen have been given one month’s notice in writing. The reasons for retrenchment have been indicated. If compensation is paid at the time of retrenchment instead at the time of notice (S.H.3 is agreeable to pay 3 months’ salary to each of the appellants within a period of 3 months from today.at the time when the services of the appellants were retrenched. confined to the question whether the cut-off date for payment of retrenchment compensation on closure should be October 9. Pramod Jha & Anr. K.C. It is against the said judgement the appellants have filed the S.” (Page: 1683. v. learned counsel for respondent No. When 3 months’ salary as compensation was paid to employees by compromise pursuant to compromise formula by Supreme Court (S. made available compensation amount in the form of banker’s cheques at the divisional office it was held to be proper compliance of the section. In an SLP the question before Apex Court was whether the cut off date for payment of retrenchment compensation on liquidation should be 9th Oct.354 Compensation need not be paid at the time of notice provided it is substantial compliance with Sec.” (Page: 163. 1991 or April 30. the last installment of compensation was paid on April 30. In these circumstances. the retrenchment of any of the appellants cannot be found fault with on any of the ground raised by the appellants by reference to Clauses (a) and (b) of Section 25-F. Retrenchment was to take effect on expiry of the month from the date of the notice. 1996 (74) FLR 2105 : 1996 I LLN 986 : 1996 LIC 808 : 1996 II CLR 182 (Raj. 1993 II LLJ 62 : 1993 (66) FLR 711 : 1993 (67) FLR 5 : 1993 LLR 173 : 1993 I CLR 264 (Raj. Parry’s (Cal) Employees’ Union & Anr. Deemed paid even if cheque is undated (Raj. Madras & Ors. 25F. Deemed paid if sent by cheque on the date of retrenchment through registered post with ‘acknowledgement due’ (Cal. Deemed paid from the date of tender by cheque (Mad.” (Page: 149. 25F(b). to cover his dues. 25F which is equivalent to cash and in due compliance of Sec. Jethmal Agarwal & Anr. & Ors.the payee. P. 138 of Negotiable Instruments Act.HC) 10. 1977 II LLJ 137 : 1977 (34) FLR 403 : 1977 I LLN 607 (Mad. Management of Industrial Chemicals Ltd. 1977 LIC 694 (Del.358 When a cheque received by the workman while retrenching him. West Bengal & Ors.DB) ¥ 5A..359 Payment made by cheque and sent by Registered Post with acknowledgement.HC) 9.HC) 8.D. Labour Court. When sent by money order though workman refused to receive notice and compensation personally (Del.HC) .. Deemed paid from the date of tender by cheque and non-realisation of it on the same day will not affect retrenchment (Raj.HC) ¥ 5A.HC) ¥ 5A. Gupta.” (Page: 149.356 Payment of retrenchment compensation by cheque is effective from the date of tender of the cheque amounts to compliance of Sec. Jaipur.HC) ¥ 5A. & through its Managing Director.2418 Chapter VA – Lay-Off and Retrenchment Sec. Jaipur. v. Para: 42) 7. Workshop Ltd. it would not render retrenchment invalid. D.. Rajasthan State Handloom Development Corporation Ltd.. Automobiles Co-op. payment by cheque is in sufficient compliance of Sec. v. Chomu House. 25F 6.O.HC) ¥ 5A. The Management of Indian Compressors New Delhi v. Third Industrial Tribunal. 2001 II LLJ 39 : 2001 (89) FLR 192 : 2001 LLR 462 : 2001 II LLN 743 : 2001 I CLR 777 (Cal. It is held to be sufficient compliance with requirement of payment before retrenchment.Act. 25F of the Act..360 Workman refused to receive personally notice of retrenchment and offer of compensation so the employer sent notice by registered post and compensation by money order. Therefore.357 The order of termination and cheque of retrenchment compensation which were tendered to the workman simultaneously during his retrenchment were considered by the High Court as a valid tender and just because the cheque could not be in cashed on the very same day that won’t make it invalid. Para: 42) “We therefore………. v. due on the date of retrenchment is sufficient compliance for the provision of Sec.DB) “We may……….. is undated. Vikas Bunkar /son of Manshiram Balai v. But the order of termination can become invalid if the cheque bounces and relief can be sought u/s. Sec. G. Belgaum v. Services were terminated with effect from 10.HC) Ramesh Hydromachs. Hubli & Anr.HC) 13.HC) Dabhoi Nagarpalika v. Labour Court. 25F. 2002 LLR 1213 : 2002 LIC 2762 (AP.. 25F.HC) ¥ 5A. Hubli & Anr. 25F of Industrial Dispute Act. When sent by Registered Post (Bom. 25F Conditions precedent to retrenchment 2419 11.1983 and was received on 23. Ltd. Associated Cement Co. & Ors. 25F of the Act.11. 1986 I LLJ 334 : 1985 (66) FJR 468 : 1985 (51) FLR 88 : 1985 I LLN 940 : 1985 LIC 1806 : 1985 II CLR 48 (Karn. When sent prior to termination though received after termination by the employee (Bom. Salim Khan. the Court setting aside the Labour Court order.. Udayambag. Labour Court rejected the plea and held that the offer was made by the employer. 1993 II LLN 245 : 1993 LLR 385 (P&H. High Court also upheld the award of the Labour Court.. Jayakwadi Project & Ors. workman raised the dispute alleging that retrenchment compensation and notice pay was not paid with the notice of retrenchment.11.362 When the notice pay and retrenchment compensation is sent by Registered Post.1983. Belgaum v.1983.11.11.Bank draft is to be ruled out as he has to approach the Bank. Labour Court. Narayan Poojari v.HC) ¥ 5A. Associated Cement Co. Executive Engineer. Industrial Tribunal-cum-Labour Court. It was held that Sec.1983. 2004 (102) FLR 194 : 2003 IV LLN 261 : 2004 II CLR 309 : 2004 LLR 685 (Bom. Ilnd Floor.. Shinde v. Ltd. 25F is sufficiently complied and termination would be with effect from 23. G. Hence asking the employee to collect the dues from office is sufficient compliances Sec... keeping such an amount ready in the office is sufficient compliance of Sec.HC) Hari Singh v. In the instant case.HC) .1986 I LLJ 334 : 1985 (66) FJR 468 : 1985 (51) FLR 88 : 1985 I LLN 940 : 1985 LIC 1806 : 1985 II CLR 48 (Karn.364 Where the workman assailed the termination on the ground that the employer has asked the workman to collect the notice pay and compensation from the office instead of sending it by money order. Chandra Vihar & Anr. Udayambag. 25F does not state that compensation is only to be made through Money order and if that be the case then payment by cheque and. 1995 I LLJ 1245 : 1995 (70) FLR 541 : 1995 I LLN 235 : 1995 I CLR 157 : 1995 LLR 234 (Bom.HC) 12... Shinde v. there is due compliance of Sec. 2001 III LLJ 889 : 2001 LIC 1255 : 2000 (86) FLR 885 : 2000 IV LLN 986 : 2000 III CLR 92 : 2000 II LLR 1156 (Bom. it cannot be taken to mean that the employer has not complied with Sec. When employee asked by letter to collect his dues from office after striking his name from muster roll (AP..HC) ¥ 5A.363 When the employer offers the workman to collect retrenchment compensation and one month’s notice pay.HC) ¥ 5A. Rohtak & Anr. 1995 I LLJ 1245 : 1995 (70) FLR 541 : 1995 I LLN 235 : 1995 I CLR 157 : 1995 LLR 234 (Bom. 2000 III LLJ 461 (Guj. Ramesh Hydromachs.HC) Engineering & Ancilliary Manufacturers v.HC) Note: also refer to the following cases Ramesh v.D.361 Notice pay and retrenchment compensation was sent on 8.D. held that Sec. The Labour Court. Omkarbhai Somabhai Patel & Ors. & Ors. the word ‘gratuity’ was written instead of ‘retrenchment compensation’ was only by mistake and hence..We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under s. Labour Court No. 1996 (74) FLR 1843 : 1996 II LLN 537 : 1996 II CLR 858 (All. 25F of the fact.366 A writ petition was preferred against the order of Labour Court holding the retrenchment to be illegal and directing reinstatement with back wages. the Labour Court’s order should be upheld. 2002 (95) FLR 931 : 2002 IV LLN 606 : 2002 LIC 2062 : 2002 III CLR 314 (Raj. It was contended by the workman that since the retrenchment compensation was not paid at the time of retrenchment.HC) Note: also refer to the following case Uttar Pradesh State Electricity Board. Pune & Anr. Industrial Tribunal 1.O.2420 Chapter VA – Lay-Off and Retrenchment Sec. Ltd.C.367 Where the company has already provided a scheme of compensation by name gratuity to the retrenched employees. 25F under Chapter V-A. whichever is more advantageous to them in view of s. the employees are not supposed to get the compensation once again and what Sec.. we see no justification for compelling that payment twice over. & Ors. 25F of the Act.” (Page: 843/844. Jai Drinks Pvt. P.HC) ¥ 5A. it is in substance a payment to the workman on account of retrenchment. The High Court held that there was due compliance with Sec. The Brahmachari Research Institute. it cannot be held that retrenchment compensation was not paid to the workman.3J) F 5A. retrenchment of casual employee was bonafide. 25F and again under the scheme in force in the concern……….3J) “………. 25F 14. and the workmen are only entitled to one or the other.it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under s. M/s. 25J has prescribed is a mere advantageous benefit either under the Act or by the company’s own gratuitous gesture and not both. Deemed paid even if the word ‘gratuity’ was mistakenly written in place of ‘retrenchment compensation’ in the receipt (Raj. Rs. Sakharam Govind Kadam v. 2(oo). 25J………. Calcutta v. and if a scheme like the present specifically provides payment for retrenchment as defined in s. Jaipur & Ors.HC) ¥ 5A.HC) 15. David Brown Greaves Ltd..O.” (Page: 844. Lucknow.000 as compensation was directed to be paid to the employee. 25F of the Act. v. Whether it is called “gratuity” or “compensation”. 2001 III LLJ 546 : 2000 I LLN 479 : 2000 LIC 186 : 2000 I CLR 180 : 2000 I LLR 258 (Bom. once under s.HC) 16. P. Deemed paid when the same is paid in the name of gratuity under the scheme of the company (S. but he declined to accept. 1.C. The Appellate Tribunal seems to have been carried away by the word “gratuity” used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment. it is held that merely because of introduction of Sec. 50. M/S. We are of opinion that this is not correct. Manager. Allahabad & Ors. Para: 4) “………. Their workmen. v. therefore.365 Casual employee who completed 240 days of continuous services was retrenched and was offered his legal dues and retrenchment compensation. 1959 II LLJ 840 : 1959-60 (17) FJR 282 : 1960 AIR (SC) 257 (S.. When employee is offered retrenchment compensation but declined to accept it (Bom. The High Court rejected the plea on the ground that in the receipt. Para: 1) . Para: 23) “……….6 August 1972………. Para: 9) j) When not deemed paid/when not substantially complied with 1. Act and would not result in invalidating the termination order dt.award.C.The workmen were……….e.. Though work man collects dues on 8.. When money and ex-gratia paid in lieu of notice and retrenchment compensation (Cal.the award of……….370 The letter of termination offering the employee to collect whatever was due to him but it did not specify that the payment contemplates compensation in accordance with Sec.1972 i.The Labour Court………. Para: 27) 18. 25F Conditions precedent to retrenchment 2421 17. Sain Steel Products v.accordance with law……….” (Page: 833.2J) F 5A.very following day………. Swadesh Press v.On this finding……….369 Collection of dues by workmen on 8th August 1972 instead of 7th August 1972 being Sunday is substantial compliance with the Sec. Guest Keen Willams Ltd. 25F but awarded Rs.” (Page: 1345. When letter of termination offers employee his dues but does not specify that it is compensation u/s.DB) “The petitioners gave……….DB) ¥ 5A.2J) “………. 25F it does not amount to compliance (S. State of Uttar Pradesh & Ors. 25F.” (Page: 333.000 considering the period employee was away from service.It therefore………. The High Court dismissed the same.on 8 August………..invalidating the order. West Bengal & Ors. the Labour Court order of reinstating retrenched employees was set aside.” (Page: 331.Sec. Para: 1) “……….per month which was the last drawn wage or the minimum wages permissible under the Minimum Wages Act whichever is higher till the date of his reinstatement. v.retrenchment became effective……….C.DB) ¥ 5A. Sunday (All.service.” (Page: 333.8. 50. Hence this appeal by special leave.In the present………. The Fifth Industrial Tribunal. Para: 24) “………. 2001 I LLJ 1345 : 2001 (89) FLR 356 : 2001 II LLN 859 : 2001 LIC 2372 : 2001 II CLR 32 : 2001 LLR 566 : 2003 SCC (L&S) 554 : 2001 AIR (SC) 2401 : 2003 (4) SCC 628 (S. Para: 7) “………. 137/. 1996 III LLJ 825 : 1996 I LLN 106 : 1995 LIC 1687 : 1995 II CLR 485 : 1996 LLR 64 (Cal.368 Even though the employer paid money in lieu of notice and ex-gratia to the employees not purporting them to be workman. 6N(b) of U. hence.” (Page: 833. Naipal Singh & Ors. Monday instead of 7.Now the question……….The Labour Court held that the termination of the services of the respondent did not comply with the provisions of Section 25-F of the Act and therefore illegal and directed his reinstatement with wages at Rs.DB) “……….7. This order was challenged in a writ petition before the High Court.full back wages………. the mandatory conditions of notice and retrenchment compensation under Clause (a) and (b) were held to be complied with and hence their termination was valid.” (Page: 834. 6th August 1972 and.the delay of……….As we have……….1972 i.. 1980 I LLN 330 : 1980 LIC 878 (All. the Supreme Court upheld the decision of the lower Courts that it would not amount to compliance of Sec.employees………. Para: 1) .P.e. In these circumstances. in the circumstances of the case. awarded him reinstatement with full back wages on it’s finding that Sec.” (Page: 772. 25F and the same was upheld by High Court. appropriate relief to be granted is a sum of Rs.It is true……….Kanti weekly………. 2006 (108) FLR 1035 : 2006 (109) FLR 274 : 2006 III LLN 384 : 2006 LIC 34 : 2006 I CLR 346 (Raj.D. Kanti Weekly v. Labour Court ordered reinstatement holding that the termination violated Sec.non est……….HC) R. However. Para: 9) “………. 25F “Secondly.” (Page: 774. 1995 on which reliance is placed.371 Services of peon were terminated by intimating through Registered acknowledge due Labour Court..” (Page: 1346. Para: 8) “………. v.HC) “………. When sent by demand draft after terminating workman (Raj.” (Page: 776. Para: 3) “Considering the fact that the respondent has not been in employment of the appellant since 1975 for well over quarter of a century we do not think it appropriate to put him back in service of the appellant. Gupta & Ors.50.” (Page: 1346. When sent by crossed cheque through post (Del. a reading of the letter dated September 8. It would be proper that some reasonable compensation be paid to him in lieu of back wages and reinstatement.If it is………. Jaipur.industrial dispute……….Continuity of service. 1983 I LLN 771 (Del.April 1973……….I cannot find………. Govind AIR 1962 SC 1500 : 1962 I LLJ 420 and Management of Delhi Transport undertaking v. Delhi and Anr.000 which shall be paid to the respondent period of one month from today to be drawn by the respondent.HC) ¥ 5A.. Industrial Tribunal. Labour Court & Anr.372 Retrenchment compensation was not paid to workman at the time of termination but subsequently sent to him by demand draft.Concerned……….. Para: 2) Feb……….D. we cannot take this sentence to be making an offer in terms of Sec 25-F of the Act to comply with the terms therof. Para: 4) Note: also refer to the following case Kailash Parshad Sharma v. Judge.HC) ¥ 5A.On the question………. We think. Jaipur v. to contend that even an offer of payment is as good as payment itself in terms of Section 25-F of the Act.HC) .HC) 2. Labour Court & Ors. he contended that the termination of services of the respondent was in terms of Section 25-F of the Act as the order of termination discloses that it is open to the respondent to collect the dues before leaving and in this context he relied upon two decisions of this Court in Straw Board Manufacturing Co. though justified the action of management. Hence the view taken by the Labour Court as affirmed by the High Court stands to good reason and it does not call for any interference at our hands. “………. Pillay v. hence the order of retrenchment is non-est which is upheld by High Court.was illegal.On 28 Thereafter………. 1998 III LLJ (Sum) 4 : 1996 (88) FJR 461 : 1996 (73) FLR 1181 : 1996 II LLN 741 (P&H.” (Page: 774. Ltd... 1993 III LLJ (Sum) 671 : 1992 (65) FLR 977 : 1992 I CLR 1005 : 1992 LLR 636 (Bom. Industrial Tribunal. 1986 (68) FJR 374 : 1986 II LLN 996 (Raj. D. Para: 16) 3. AIR 1965 SC 1503 : 1965-I-LLJ-458. 25-F or not.2422 Chapter VA – Lay-Off and Retrenchment Sec. Assistant Engineer & Anr. it is clear that all that is stated is to ask the respondent to collect whatever is due to him but it does not spell out whether it included the amount as contemplated under Sec. Indian Dyestuff Industries Ltd.The workman………. Saharanpur v. 25F has not been complied with as no retrenchment notice was given nor paid retrenchment compensation since sending a crossed cheque through post did not amount to payment of compensation.HC) Note: also refer to the following case Rajasthan State Road Transport Corporation. Om Prakash Singh & Anr.HC) 5. 25F of the Act Management. there must be either an offer or tender or actual payment.374 Simultaneous tender of amount along with termination order is necessary.HC) ¥ 5A. because if the employee could not come on the day fixed to receive the payment for some good reason.HC) ¥ 5A. Deemed not paid by showing mere readiness to pay unless there is an offer or tender or actual payment (Raj. 1977 (50) FJR 28 : 1977 I LLN 94 : 1977 LIC 1338 (Mad. Rajasthan Canal Rastriya Mazdoor Union.O.HC) ¥ 5A. The P. When compensation was paid on the basis of wages drawn prior to earlier retrenchment (MP. might lead to harsh results. Madras & Anr.. v. Later he was again retrenched after paying retrenchment compensation.HC) ¥ 5A. an obstinate employer may refuse to make the payment on the next day on the plea that the notice itself was equivalent to payment and his obligation to make the payment had ceased in previous day.HC) 7. When paid by cheque though on the date of retrenchment but after banking hours (Mad. Jabalpur v. which the workman was drawing prior to his earlier termination. R. Moinuddin & Ors. which was challenged. 1976 II LLJ 25 : 1976 II LLN 73 (Raj.HC) Note: also refer to the following case Rajasthan Canal Project. Coimbatore & Anr. 2001 (90) FLR 945 : 2001 IV LLN 503 : 2002 I CLR 250 (MP. Additional Labour Court. v.376 Retrenchment compensation paid by cheque on the date of retrenchment but after banking hours is held to be non-compliance of Sec. Mere notice to collect payment on a particular date cannot be equivalent to payment if workman for good reason fails to turn up to collect (P&H. Mere readiness to pay was not sufficient. Sankaran v.HC) 6.HC) .. 1999 I LLJ 497 : 2000 (86) FLR (Sum) 6 : 1999 I LLN 233 : 1999 LIC 771 (Mad.. Labour Court. 25F. through State of Rajasthan v.. Pepsu Transport Co. Labour Court rejected the claim of workman but on appeal Industrial Court allowed workman’s claim and ordered reinstatement and held that’ Sec. Ltd v.Sec. Shaw Wallace Gelatines Ltd.O.377 Service of the workman was terminated but he was reinstated under the order of Court. 1968 LIC 351 (P&H.375 Mere sending notices calling upon the workmen to receive payment before the due date and then equating such an offer to actual payment. Kodumudi Growers Co-op. 25F Conditions precedent to retrenchment 2423 4. Bank Ltd. High Court upheld the order of Industrial Court. 25F was not complied with since compensation was paid on the basis of wage. If workman is merely asked to collect amount from office (Mad. Pvt.. Mere statement that workman was asked to collect amount from office cannot be construed as sufficient compliance of Sec.. Vijayanagar Circle. Union of India & Ors.HC) ¥ 5A. 1981 LIC 697 (Raj.373 For payment of compensation on retrenchment. Suratnagar & Anr.HC) 8. State of Punjab & Ors. P. The P. 1993 III LLJ 726 : 1991 (62) FLR 972 : 1991 II LLN 752 : 1991 II CLR 941 (Ori. When compensation offered not at the time of termination but subsequent to it (Del.HC) Kanti Weekly v.. v.DB) Note: Please see related ratio/s under the above citation in this section 15.3J) Note: Please see related ratio/s under the above citation in this section 10..C. Utkal Asbestos Ltd. v. When notice to collect it was sent first and money order was sent later (P&H.DB) M/s. Labour Court.HC) Note: Please see related ratio/s under the above citation in this section 12. P..W. Rao & Anr. When amount due from employee is adjusted against compensation payable u/s.DB) The P. Ambala..HC) Note: Please see related ratio/s under the above citation in this section 11. 1983 I LLN 771 (Del.S.DB) Note: Please see related ratio/s under the above citation in this section 13.HC) National Iron & Steel Company. 1999 II CLR 530 (Bom.D.D. & Ors.. Vacuum Plant & Instruments Fanufacturing Co.D. When there is mere recital in notice of termination that efforts will be made to pay retrenchment compensation (Bom. The Executive Engineer. 25F 9. 1959 II LLJ 830 : 1959-60 (17) FJR 273 : 1960 AIR (SC) 251 (S. Ltd.W. 1964 I LLJ 525 : 1964 (8) FLR 24 (Cal. Its workmen & Anr.3J) Indian Hume Pipe Co.C.HC) Note: Please see related ratio/s under the above citation in this section . Workman.DB) Mani Ram v. & Anr. T. Ltd. was posted (Cal.DB) Note: Please see related ratio/s under the above citation in this section 14. 1997 (77) FLR 76 : 1997 LLR 1027 (Bom. Mazdoor Union & Anr. 1997 II LLJ 519 : 1997 (75) FLR 132 : 1996 (89) FJR 673 : 1996 LLR 615 : 1997 IV LLN 361 : 1997 II CLR 868 (P&H. Gupta & Ors. P. When it was not possible for workmen to be present to receive retrenchment compensation on the same day on which the letter so requiring. v. 25F(a) and 25F(b) (Ori. If lay-off compensation is deducted from retrenchment compensation (Bom. Third Industrial Tribunal.2424 Chapter VA – Lay-Off and Retrenchment Sec.. When gratuity is paid since object of both are different (S. West Bengal. D. Ltd v.HC) Vacuum Plant Kamgar Sanghtana v. & Anr.O. CB) “………. We are unable to accept this argument as correct………. R & B Dept.4. In the present case.. 25F but there was no uniformity or certainty in the matter and in determining the amount of compensation the Tribunals considered a variety of relevant factors.4. It is manifest that in determining the amount of compensation the Tribunals exercised complete discretion and took into account whatever factors they considered relevant. The Management of Tea Estate of Cachar Assam & Anr.1973. 1994 (84) FJR 447 : 1994 (69) FLR 31 (Raj.379 The purpose of enacting Chapter V-A was for standardizing compensation payment but the Tribunal was awarding compensation for retrenchment in it’s discretion even before the enactment after considering relevant factors therefore in the instant case retrenchment was effected before enactment of the chapter and the Industrial Tribunal’s award of one week wages for every four months of unemployment was not held to be in error and therefore did not require interference. The contention of the appellant is that the compensation should have been awarded on the scale laid down in S.There is substance in the argument put forward on behalf of the appellant and the Tribunal has also applied this principle in granting compensation to the retrenched workmen even though the case was not attracted by S. 25F Conditions precedent to retrenchment 2425 16. Cachar Chah Sramik Union. Compensation awarded by Tribunal at it’s discretion before introduction of Chapter V-A.HC) Note: Please see related ratio/s under the above citation in this section 17.Industrial Tribunal had been awarding compensation even before the enactment of S. Sambaiah & Anr. Para: 6) Note: When termination was on 2. Assam v.C. But the Tribunal has taken the view that one week’s wages for every four months of unemployment was adequate compensation. whereas compensation was paid on 1. 1966 AIR (SC) 987 : 1966 I LLJ 420 : 1965-66 (28) FJR 320 : 1966 (12) FLR 153 (S.HC) k) Retrenchment compensation vis-à-vis extra/additional compensation – whether admissible 1. D. but it must be genuine and bonafide. When the offer is made at the close of the day or bit earlier since the offer cannot be said to be genuine (AP.C. Silchar. 25F of the Industrial Disputes Act. to standardise the payment of compensation by prescribing a statutory rule in that behalf………. by the amendment. VA the legislature was merely recognising the practice of payment of compensation by Labour Tribunal before the date of the amendment and the legislature decided. Warangal & Anr. 2002 LIC 2124 (AP..Sec. the Tribunal has estimated the amount of compensation as one week’s wages for every four months of unemployment and it is not shown on behalf of the appellant that in making this estimate the Tribunal has committed any error of law or applied any wrong principle. 25F of the Industrial Disputes Act. Superintending Engineer.. When retrenchment compensation falls short due to non-inclusion of HRA and travelling allowance when paid as part of wages (Raj.” (Page: 990..1973 Note: This position is prior to introduction of Chapter VA . v. held valid (S.378 It is a settled principle of law that an offer may be as good as payment.HC) Girish Kumar Jain v. But if the offer is made at the close of the day or even a bit earlier it can never be said that the offer was genuine and bonafide more so if the office from which the amount is to be collected is at a place away from the place of work.HC) ¥ 5A. Union of India & Ors.CB) F 5A.It was said that by enacting Ch. It is urged on behalf of the appellant that the Appellate Tribunal was wrong in allowing double compensation in this manner.2426 Chapter VA – Lay-Off and Retrenchment Sec. 25F 2. it can grant only compensation for premature termination of service but not retrenchment compensation. When retrenchment is proper Tribunal is not justified in awarding 50% of wages as compensation in addition to statutory compensation (S. It was also conceded that for carrying on the business of the appellant after imposition of the ban by the Central Government..3J) “The second part of the order directing that clerks from Nos. Delhi v. Ltd. Anglo-American Direct Tea Trading Co. In effect. These employees had been properly retrenched: that was conceded before the Labour Court. shall be entitled.381 Where retrenchment is held proper and compensation paid was also within the provisions of Sec. and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation………. we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutory payable. it was held that if the Tribunal decides to give compensation in lieu of reinstatement. 4 to 14 and peons from Nos. Strictly speaking. we fail to appreciate the grounds on which an order for payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Om Oil and Oil Seeds exchange. M/s. not more than seven employees were required.3J) F 5A. Retrenchment compensation is paid as solatium for termination of service resulting in unemployment.C.C. If the management was entitled to retrench thirty workmen and did so after paying wages for the period of notice and retrenchment compensation. Tribunal cannot grant retrenchment compensation and compensation for premature termination of service when it decides to grant it in lieu of reinstatement (S. Para: 3) 3.C. for there is no question of any retrenchment as such where the tribunal decides not to pass an order of reinstatement but to give compensation instead.Where retrenchment has been properly made and that order has not been set aside. Workmen of Nahortoli Tea Estate. compensation is awarded to such workman in lieu of that relief. 1961 II LLJ 625 : 1961-62 (20) FJR 523 : 1962 (4) FLR 65 (S. There is. workmen were not held entitled to any relief other than statutory compensation. 25F it is held that Tribunal was not justified in awarding 50% wages for the period they remained unemployed as compensation in addition to statutory compensation and as in the instant case retrenchment was not unjustified or illegal. v. however. however. in addition to the retrenchment compensation already paid to them 50 per cent of the wages as compensation for the period they remained unemployed is wholly indefensible.C. 1966 II LLJ 324 : 1965-66 (29) FJR 69 : 1966 (13) FLR 7 : 1966 AIR (SC) 1657 (S. Para: 2) . 18 to23 in the seniority list. It is not disputed that where a workman is entitled to reinstatement but for some reason the tribunal does not consider it proper to give that relief.” (Page: 628. the Appellate Tribunal was wrong in giving retrenchment compensation as well as compensation for unjustified and premature termination of employment.380 Tribunal granted retrenchment compensation as well as compensation for unjustified and premature termination of service of workman.3J) “We have already set out the final order of the Appellate Tribunal by which it allowed two kinds of compensation–retrenchment compensation as also compensation for unjustified and premature termination of employment. the order of the Appellate Tribunal works out to giving one month’s average pay for each year of completed service for unjustified and premature termination of employment in this case………. no scope for allowing retrenchment compensation in a case of this kind. therefore. What it could and should have given was compensation only for unjustified and premature termination of employment. Their Workmen.” (Page: 329/330. Ltd.3J) F 5A. six year’s wages as additional compensation. the same was upheld by the Apex Court.C.C. shall be deemed to have been retrenched with effect from April 30. S. Management Navashakti Publishing Company.384 Individual workman can claim retrenchment compensation u/s.383 The workmen employed in the shrimp culture industries. 33C(2) although he can claim the same by raising an industrial dispute u/s.DB) “………. in addition. Ex-gratia payable over and above compensation to legal heir of deceased employee (S. The Pioneer Ltd. 1997 provided they have been in continuous service (As defined in S.25F(b) of the Industrial Disputes Act.DB) ¥ 5A.” (Page: 345. because even if we do not accept ultimately the contentions of the appellant. That is why we are of the opinion that it is unnecessary to proceed further with the matter and that the offer made by the appellant is quite fair to all parties. as mentioned earlier. In such a case the legal representatives of the deceased workman will not be entitled to get anything more than what was due to the workman under S. Tajdar Husain (Dead) & Anr.25F of the Industrial Disputes Act as also an additional ex-gratia amount of Rs. S. v.3J) “On behalf of the appellant. Can be recovered u/s. v.” (Page: 198.2J) F 5A. Over and above that the appellants may also raise an objection before the Labour Court regarding its jurisdiction to consider the matter afresh after the death of the workman concerned. They shall be paid compensation in terms of S.” (Page: 815.25B of the Industrial Disputes Act. On the other hand. Para: 1) .1 the retrenchment compensation amount due to the deceased workman under S. it has been represented before us by Mr.. 1964 II LLJ 198 : 1964 (9) FLR 351 (Pat.382 Where the employer is ready to pay ex-gratia payment over and above the retrenchment compensation to the legal representative of the workman who died during the pendency of appeal. Para: 16) l) Recovery of compensation 1. The compensation shall be paid to the workmen before May 31. 10 and hence grant of the same by Labour Court under the section was upheld. 25F and six years wages as additional compensation since they were in continuous service. 33C(2) (Pat. Para: 7) “If we accept the contention of the appellant. 1947.over and above the amount due by way of retrenchment compensation.C.petitioner has moved………. that his clients are prepared to pay to the legal representatives of the deceased respondent No. in which case.of that Act………. Ltd. the award upholding the validity of the retrenchment will stand.C. the parties will be put to considerable expenses. B. Union of India & Anr. in which case. which are directed to be closed in the interests of environmental protection are entitled to retrenchment compensation u/s. 25F Conditions precedent to retrenchment 2427 4.1000/. These workmen shall also be paid. Additional compensation of six years wages paid when retrenchment is due to closure on account of environmental protection (S. the appellant has offered to pay an additional ex-gratia amount of Rs. The gratuity amount payable to the workmen shall be paid in addition. 1947) for not less than one year in the industry concerned before the said date. the result will be that the order of the High Court remanding the proceedings to the Labour Court will have to be set aside.1000/-. 1997.Sec. State of Bihar & Ors. Maheshwari. Para: 8) 5. We consider this offer to be quite reasonable.25F of the Industrial Disputes Act. learned counsel.. Jagannath. 1974 (29) FLR 343 : 1974 LIC 1235 : 1974 AIR (SC) 1809 : 1974 (3) SCC 232 (S. the position would be that the proceedings will have to go on afresh before the Labour Court as per the orders of the High Court. Petitioner v. P.3J) F 5A. 1997 AIR (SC) 811 : 1997 (2) SCC 87 (S.2J) “The workmen employed in the shrimp culture industries which are to be closed in terms of this order.” (Page: 344.. the definition of wages. 1962 I LLJ 359 (MP.jurisdiction. District Labour Court.” (Page: 843/844. & Ors.386 The amount of retrenchment compensation payable to the workman u/s.387 The amount claimed by the employees of the mill u/s. 33C(2). 33C(2). District Labour Officer. Jabalpur. which comes within the second part of the definition of wages under the Payment of Wages Act...388 The authority under the Payment of Wages Act could adjudicate the workman’s claim for retrenchment compensation and also decide incidental questions regarding employment.. Para: 2) “In an opinion.” (Page: 200. Para: 3) “………. District Judge. Para: 2) “In the present case………. Hence the order of the authority rejecting the workman’s petition is quashed and it is directed to decide the workman’s claim in accordance with law. 25F is a sum payable to employees on the termination of their services. Ramcharan Tiwari v.O. 1967 I LLJ 657 : 1966-67 (30) FJR 24 (Mys.aspect of the case………. Central India Electric Supply Co. Sri Gopalakrishna Weaving Mills v.. P.of the Act……….” (Page: 513.and is dismissed………. 25F “On behalf of the……….” (Page: 360/361. Para: 4) 2.” (Page: 199. Thus the authority under the Payment of Wages Act has jurisdiction to decide the claim and it has erred in declining to do so. Baroda & Ors.” (Page: 507. Para: 6 ..” (Page: 506.” (Page: 658.” (Page: 505.therefore wages. 1955 II LLJ 501 : 1955-56 (9) FJR 139 (Bom.D.entitled to it. AND A. & Ors.in this argument………. Para: 4) “The point………. Para: 2) ¥ 5A. 1969 I LLJ 840 : 1969 (18) FLR 22 : 1969 LIC 1204 (MP.we held that……….fulfillment of the contract. & Ors. Para: 2) “In this case……….2428 Chapter VA – Lay-Off and Retrenchment Sec.Now the definition of wages………. Can be recovered under Payment of Wages Act (Bom.and decide it in accordance with law. Ltd. Dinesh Mills Ltd. Gorakhpur Ward. Para: 2) ¥ 5A.land revenue………. 33C(2) cannot determine a dispute with regard to the claims for recovery of retrenchment compensation when the right of workmen are disputed but can only determine the amount due from the employer hence it had no jurisdiction to direct the employer to pay compensation.under S. v.” (Page: 199. Para: 6) ¥ 5A.DB) “………. Bilaspur v. Its order is therefore set aside and it is directed to adjudicate the claim. & Ors. Divekar v.. Para: 2) “In this case……….DB) “Any gratuity payable on the termination……….DB) ¥ 5A.385 Since the Labour Court under sub-Sec..” (Page: 516. Para: 3) “There is nothing……….DB) “Indeed the matter………. the………. Labour Court. 25F can be awarded by the Labour Court in proceedings u/s.” (Page: 658. Hubli. termination of service and determination of the amount of compensation.” (Page: 658.DB) “The Labour Court……….we have no doubt………. Authority Under Payment of Wages Act & Anr. Jabalpur. Para: 3) “……….passed by him. C.389 Notice u/s. The hardship resulting from retrenchment has been partially redressed by these two clauses.3J) F 5A.” (Page: 793. 1964 I LLJ 351 : 1964-65 (26) FJR 32 : 1964 (8) FLR 236 : 1964 AIR (SC) 1617 (S.C. Similarly. Para: 3) . & Ors.3J) “………. and that only helps the Government keep itself informed about the conditions of employment in the different industries within its region. Clause (c) is not intended to protect the interests of the workman as such. it would not be unreasonable to hold that clause (c). it requires the employer either to give him one month’s notice or to pay him wages in lieu thereof before he is retrenched. unlike clauses (a) and (b). there is every justification for making them conditions precedent. 25F. State of Bombay & Anr.” (Page: 357/358. Frank Ross & Co. Therefore. clause (b) provides that the workman has to be paid at the times of retrenchment. Object of Clause (c) i) Is to inform State Government to make it aware of the existence of conciliation proceedings or reference (Cal. is not a condition precedent.. Ltd. and this requirement again provides a safeguard in the interests of the workman………. affords a safeguard in the interests of the retrenched employee.Clause (a) of S. therefore.390 The object of Clause (c) is mere service of notice on the Government to keep it informed of the condition of employment in different industries but not intended to protect the interests of the workmen and therefore cannot be treated as condition precedent to retrenchment unlike Clauses (a) and (b) which provide for monetary compensation to redress partially the hardships caused by retrenchment and therefore where the notice is issued after effecting retrenchment is found not invalid and hence the contention of the workmen that it is mandatory was set aside. Attributes of the clause i) Clause (c) being only informative is not mandatory nor condition precedent (S. Secretary. and so.DB) ¥ 5A. Para: 15) 2. having regard to the object which is intended to be achieved by clauses (a) and (b) as distinguished from the object which clause (c) has in mind. 25F Conditions precedent to retrenchment 2429 m) The condition of serving notice on Appropriate Government / notified authority as per Clause (c) 1. 1971 LIC 790 (Cal. Messrs. compensation which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. The same cannot be said about the requirement as to clause (c). It is only intended to give intimation to the Appropriate Government about the retrenchment. 25F(c) is intended for information to State Government in case where Government is not aware of conciliation proceedings or reference and not in case where retrenchment is followed subsequent to conciliation and award of Tribunal. There does not appear to be present any compelling consideration which would justify the making of the provisions prescribed by clause (c) a condition precedent as in the case of clauses (a) and (b). It would be noticed that this payment has to be made at the time of retrenchment. v.These provisions have to be satisfied before a workman can be retrenched. Bombay Union of Journalists & Ors..Sec.retrenchment. Chandra Kumar Dutta v.DB) “Left to myself………. .any non compliance……….C. 25F.” (Page: 1682. the High Court was of the opinion that the notices were not vitiated due to non-compliance with Clause (c) of Sec.of the Act………. such a requirement can be treated only as directory and not mandatory and it would be erroneous to hold that. hence non-compliance is not fatal (S. v. State of Bombay & Anr. Pointing out that the requirements of Clause (c) of Section 25-F were only directory and not mandatory. Para: 2/3) “But so long as………. Para: 11) . Gurmail Singh & Anr. 1965 II LLJ 619 (Ass. 25F.etc. 25F(c) to Labour Department by registered post is held to be only directory and not mandatory and a notice sent through peon book duly acknowledge of held to be sufficient compliance with Sec. Para: 6) “It was then……….High Court was satisfied that the requisite notice in the prescribed form ‘P’ was sent to the Secretary to Government. As rightly pointed but by the High Court. it could not be taken up in writ proceedings. Dhirendra Kumar Vidyarthi & Ors.3J) F 5A.the suggestion is that they should have been sent by registered post.” (Page: 80. v.” (Page: 1683. v.work/work load……….393 As the workmen were retrenched by giving one month’s salary in lieu of notice.3J) “………. 1982 LIC 1680 (Pat. Labour Department and the Employment Exchange concerned by personal delivery duly acknowledged in the peon book of the Department. Para: 2) “The contention base on Clause (c) of Section 25.” (Page: 1684.In the notice………..2430 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 622.order of retrenchment………. High Court held that even though grounds for retrenchment were not specifically mentioned it cannot be said that the same resulted in contravention of Clause (a) of Sec. the notices cannot be treated as complying with the statute……….C..of the Act. 25F(c) is only directory and not mandatory. State of Assam & Ors.” (Page: 84. Para: 1) “The Point not……….. Para: 3) ¥ 5A.really mandatory. The workmen had accepted the payment made to them and were not prejudiced in any way.391 The requirement of sending notice u/s. notice should have been given to the Government under Rule 79 within 3 days of payment. 25F(c) and the statute. Bombay Union of Journalists & Ors.before us. also compliance with Rule 76 requiring notice to be served on Appropriate Government and prescribed authorities is not condition precedent for valid order of retrenchment and hence petition filed by the workers was dismissed. 1991 II LLJ 76 : 1993 (82) FJR 332 : 1991 (62) FLR 458 : 1991 I LLN 587 : 1993 LIC 428 : 1991 I CLR 637 : 1991 SCC (L&S) 147 : 1993 AIR (SC) 1388 : 1991 (1) SCC 189 (S. 1961 II LLJ 727 (Bom. etc. But as this point regarding non-compliance of Rule 79 was not raised before the Labour Court..394 Considering retrenchment notice of casual workers of Railways.rule 79.it would have………. Para: 8) “This writ application………. Hence the provisions regarding notice to the Government were not really mandatory..392 Non-compliance with Sec.DB) “If however it is……….F is equally baseless………. 25F ii) Notice u/s.DB) ¥ 5A.” (Page: 622.DB) “………. Workmen of Shillong Hydro-Electric Ltd. Para: 10) ¥ 5A. State of Punjab & Anr. 25F(c) is only an irregularity and does not make retrenchment illegal as it is only a mere condition but not condition precedent to retrenchment.. Union of India & Ors. etc.it is dismissed………. v. unless sent by registered post.” (Page: 622. 25F(c). v. because notice u/s. Rule 80 of the said Rules clearly shows that where the employer has retrenched the employee by offering to pay him the requisite amount of remuneration in lieu of notice prescribed by S. 1 before retrenchment was effected introduced an infirmity in the order of retrenchment……….25F(c) cannot be said to constitute a condition precedent which has to be fulfilled before retrenchment can be validly effected.. In other words. 25-F.3J) F 5A. Jagan Singh v. 2’s failure to serve a notice on respondent No. the notice has not to be served on the Government before retrenchment is effected. notice in such a case has to be served not before the retrenchment. We are.HC) Note: also refer to the following cases Manohar Lal v. 25F(c) within 7 days of retrenchment. it is conceded.There is no substance in this argument. and that means that in such a case. 25-F (c) as being directory and not as constituting a condition precedent for the validity of retrenchment under S.” (Page: 357. 1964 I LLJ 351 : 1964-65 (26) FJR 32 : 1964 (8) FLR 236 : 1964 AIR (SC) 1617 (S.Sec.HC) iii) Requirement of notice is treated as a condition subsequent.Section 25-F (c) provides that no workman to which the said provision applies shall be retrenched by the employer until notice in the prescribed manner is served on the Appropriate Government………. it treats the notice as a condition subsequent but not precedent to retrenchment and hence it was held that failure to serve notice on Appropriate Government prior to retrenchment did not lead to any infirmity in the order of retrenchment. R. treats the notice prescribed by S. under the Rules.395 Non-compliance of notice to Government is not fatal. because after the retrenchment is effected. Para: 2) .but on the view we are inclined to take.396 Since the section requires notice to be given in a prescribed manner and the procedure for the same is set out in the rules framed by the Government under the Act and since Rule 80 so framed requires the employer to serve notice of retrenchment in terms of Sec. satisfied that S. therefore.Besides.. Central Warehosing Corporation & Anr. 80. the Rules seem to provide that the notice in that behalf should be served within the specified period prescribed by them. 25F Conditions precedent to retrenchment 2431 ¥ 5A. It appears that the Rules framed by respondent No.” (Page: 355. hence failure will not lead to any infirmity in retrenchment order (S. In regard to retrenchment effected on paying the workman his wages in lieu of notice. State of Bombay & Anr. 1994 II LLJ 1184 : 1994 I CLR 899 : 1994 LLR 495 : 1994 (68) FLR 648 (All. it does appear that these Rules do not require a notice to be served in every case before retrenchment is effected. that is to say. 1995 (87) FJR 494 : 1996 (72) FLR (Sum) 29 (P&H. the employer is required to serve the notice of the said retrenchment within seven days of the date of retrenchment. 1 has construed the provision of S. the employer has to comply with the condition of giving notice about the said retrenchment to the Appropriate Government.C. 1 under the Act indicate that respondent No. 25-F (c) as condition subsequent and not a condition precedent. stated broadly. Canara Bank & Anr. 25-F (a). 25F(c) of Industrial Disputes Act only directory in nature and not mandatory. the Rules framed by the Government appear to be consistent with the policy underlying the provision prescribed by S. Rules have been framed by the Central Government and the State Government in respect of this notice and. Para: 2) “………. but after the retrenchment within the specified period……….1 must not have thought it necessary to make any reference to the argument urged by the appellants that respondent No. the requirement introduced by the use of the work “until” is complied with even on the view we are inclined to take about the nature of the condition prescribed by clause (c).3J) “Mr.. In view of the rule framed by itself respondent No. Bishan Narain has then urged that……….C. Bombay Union of Journalists & Ors. and that is where the provision in clause (c) that the notice has to be served in the prescribed manner assumes significance. ” (Page: 792. Chandra Kumar Dutta v.DB) ¥ 5A. Society Ltd. v. Ltd.The authority below has come to the conclusion that he had worked for a period from 10-8-1985 to 30-6-1986 which would be less than one year. non-issuance of notice u/s. it is not his case that at any point of time he reported for duty and he was refused work.HC) ¥ 5A.2J) “………. Frank Ross & Co.2432 Chapter VA – Lay-Off and Retrenchment Sec.. 25-F are mandatory. There is also no evidence that he had worked for 240 days to satisfy Section 25-B of the Act. 1971 LIC 790 (Cal. therefore. this is a case in which the . 25F(c) is not an empty formality and non-compliance results in vitiating termination (Ker. Therefore.C. he had not worked for 12 calendar months. The issue of notice to the Government as required under the Act cannot be said to be an empty formality and thus non-compliance with the provisions entitles workman to reinstated. please also refer to cases under head on retrenchment compensation when deemed paid a) When a daily wage worker who failed to establish that he worked for 240 days and employer refused to employ him can be terminated (S. Om Prakash & Anr.. The High Court held that conditions precedent to retrenchment given u/s. 1993 II LLJ 174 : 1993 (82) FJR 426 : 1993 (66) FLR 1056 : 1993 II CLR 312 : 1993 LLR 553 (Ker. petitioner has to prove invasion of his rights. Labour Court & Anr.C.DB) “Secondly………. 25F iv) Notice to Government required u/s. Therefore.appellant. he himself voluntarily ceased to report for duty and there was no act on the part of the employer nor is there anything on record to suggest that the employer had refused work to him. the authority was wrong in coming to the conclusion that there was a violation of Section 25-F of the Act besides. Besides no information was laid before the authority as to how many days during that period he had worked for. When termination is not violative of Sec. Retrenchment within the meaning of Section 2(oo) means termination by the employer of the service of the workman for any reason whatsoever. as stated earlier. & Ors. There was nothing of the sort in the instant case. the authority was wrong in concluding that he had worked for 240 days during 12 months immediately preceding the date of cessation of work. State of Haryana v. Secretary. but in any case. Messrs. 25F Note: for additional ratios under this head. therefore the Labour Court erroneously held that he was illegally retrenched and Apex Court held there was no violation of Sec.398 In order to maintain writ petition.399 Daily rated workman who failed to establish that he had worked for 240 days and on the contrary evidence proved that he did not report for duty and it was not the employer who refused to give work to him and thus there was no act on the part of the employer.2J) F 5A.HC) Note: Refer to the decisions of Apex Court given above holding contrary view v) Non-issuance of notice by the employer to State Government being not an invasion of workman’s right can not be raised in writ (Cal. Ollur Regional Imitation Diamond Manufacturers Industrial Co-op. It was the workman who ceased to report for duty and even after he ceased to report for duty. Para: 6) VI.. 1999 SCC (L&S) 262 (S. He straightaway proceeded to invoke the provisions of the Act and. Therefore it contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression” retrenchment” in Section 2(oo) of the Act.397 The Labour Court ordered reinstatement of workman as his termination was illegal in an ex-parte award and application for setting aside the ex-parte award was rejected on the ground of insufficient cause being shown. 25F and not entitled to any relief. 25F(c) by the employer to State Government being not an invasion of workman’s right it cannot be raised in writ. 25F – not contravened when an employee who worked for 93 days Raj Vimal v. High Court over ruling held that he being a daily wager and specifically employed on leave vacancy his first period can not be counted and hence his termination for not having worked for 240 days for subsequent period is legal and proper. Venkataiah & Anr.1984 and his services were terminated w.1986.1. Rajasthan State Road Transport Corporation.12. 1994 II LLJ 1111 (P&H. D.. Therefore.1986 thereby he worked for 226 days including holidays. 2001 III LLJ 396 : 2000 III LLN 960 : 2000 I LLR 327 (Del.7.P. 2006 (108) FLR 726 (Raj. Para: 3) ¥ 5A. Ram Sahai & Anr.DB) Termination – without enquiry was held proper since appointment was on ad-hoc basis on a temporary project. Kanpur & Ors. 25F of Industrial Disputes Act.. Udai Ram Sharma v.1984 to 30. Tis Hazari & Anr. 1999 I LLJ 142 : 1993 III LLJ (Sum) 463 : 1991 (79) FJR 591 (Ker. Delhi & Anr.II. VI. Central Government Industrial Tribunal-Cum-Labour Court Pandu Nagar. v.400 Daily wager was employed on leave vacancy from 30. 25F was held proper.f.3. Telecommunications.. 2000 III LLJ 960 : 2000 LIC 3143 (All.. 2006 LIC 3395 : 2007 (112) FLR 24 : 2007 II LLN 298 : 2007 LLR 334 (Sum) (AP.. 25F.1985 to 31. Chennai. 25F 2433 employer has done nothing whatsoever to put an end to his employment and hence the case does not fall within the meaning of Section 2 (oo) of the Act.1986 and he was terminated on 1. v.HC) Termination – of daily wager in violation of Sec. Ltd. Devassy & Anr. 1.HC) Daily wage worker – not entitled to benefits of the provisions under the Act. Sunil Kumar Shukla v. Mohan..HC) Sec. nor does it satisfy the requirements of Section 25 F.2J) Ajay Kumar Sharma v. P. Industrial Tribunal No. 2007 I LLJ 429 : 2006 (111) FLR 1178 : 2007 I LLN 78 : 2007 LIC 274 : 2007 I CLR 221 : 2007 LLR 92 : 2007 (1) SCC (L&S) 518 (S.HC) Ad hoc employee – can be terminated without complying Sec...HC) Note: also refer to the following cases of daily wagers/temporary employees/employees appointed on adhoc basis whose termination either for unsatisfactory work or for unauthorized absence or for service of short period was held not violative of Sec. 25F When termination is not violative of Sec. 2006 III LLJ 912 : 2007 I LLN 314 (Mad.” (Page: 264. Chief Project Officer & Ors.O. 2002 II CLR 227 : 2002 LLR 151 (Del. Besides it held that as the reference was for the dispute of termination from 1. Labour Court No. Presiding Officer.O. Narmada Building Materials Pvt. & Ors. 25-F not violated by termination of workman since he did not complete 240 days. Punjab Water Supply & Sewerage Board & Ors. Teja Singh v. 2006 (108) FLR 390 (All.HC) Employee is a daily wage workman and not completed for 240 days. 2006 LLR 1228 (Del. State of U.DB) Sec.1984.e.HC) . v. Central Government Indl. Industrial Tribunal No. The Tribunal clubbing two periods of services held that he is entitled for reinstatement with full back wages for non-compliance of Sec. Subsequently he was appointed on 1. Kanda Swami & Anr.C. State of Rajasthan & Ors.HC) Daily wager – who hardly worked for considerable period can be terminated for unauthorized absence without following Sec. 25F The Management.HC) Adhoc employee’s termination by paying wages in lieu of notice is proper since no malafide on part of employer.4.4. v. Presiding Officer.Sec. The P. Management of Divisional Engineer. of M/s The Hindu Ins. Tribunal-cum-Labour Court...11. III & Anr. Jaipur Development Authority v. the case does not attract Section 2(oo).Building v. 25F. 2003 III LLJ 86 : 2003 (97) FLR 1199 (Raj. Mahaboobnagar District v. the Tribunal while clubbing the previous services has exceeded its jurisdiction as it cannot proceed to adjudicate dispute not referred to it. . Crompton Engineering Co. Delhi & Ors.O. & Ors.HC) b) When Services of workman terminated for absence with notice pay as permissible under Sastry Award (All. Shri Ram Institute For Industrial Research. High Court observed that worker’s appointment were not made on . 2007 (112) FLR 1236 : 2007 LIC 905 : 2007 I CLR 1049 : 2007 LLR 558 (Raj. does not attract Sec. Hence. Sec. 25F Termination – is proper. 1988 LIC 1282 (Bom..HC) c) When workman was retired for disablement due to electric shock and received adequate compensation and pensionary benefits (MP.. when period of employment of temporary employees has expired. Tribunal & Anr. Rajasthan State Granite & Mars Mazdoor Sangh v.. 2000 LIC 1892 (All. quashed the award of Labour Court.HC) Note: also refer to the following case/s Termination for unauthorized unjustified absence. Ramesh Gonekar v.HC) d) When appointment order itself was forged and fabricated and void ab-initio (Raj. workman moved High Court. L. 25F. State Industrial Court & Ors. Babasaheb Devgonda Patil v. Rajasthan Mines & Minerals Ltd.HC) ¥ 5A.. High Court held that Para 522. Madras & Ors.402 The workman was retired form service.DB) ¥ 5A.. when employee is unsuitable for job routine. Labour Court granted reinstatement but Industrial Court reversed the order. The Managing Director. suffers from the error apparent on the face of record in that it has failed to correctly apply the law while making adjudication of industrial law. Member Judge. 25F is not attracted.HC) ¥ 5A. Additional Labour Court. 1975 I LLJ 207 : 1974 II LLN 262 : 1975 LIC 1006 (Mad.4 of the Sastry Award was not given. On reference.T.4 of the Sastry Award States that if employee leaves service without notice will be entitled for a week’s pay including allowance and violation of not giving of notice of 14 days does not render termination illegal and he is only entitled to 14 days wages including allowances hence. Governor. Labour Court awarded reinstatement with back wages on the ground that termination is illegal as 14 days notice under Para 522. Ltd.DB) e) When terminated on the expiry of the term as per contract of employment (Guj.403 Where the appointment order itself was found forged and fabricated. held. since on account of electric shock he was seriously injured and was not able to discharge his normal duties. Management of State Bank of India v. (Madras) Pvt.2434 Chapter VA – Lay-Off and Retrenchment Sec.404 The Female Health Workers appointed for 11 months and continued after reappointment for period of 11 months challenged the termination order and also seek regularization in service.HC) Termination – proper. The award of Labour Court reinstating with 25% back wages. v. 2005 IV LLN 277 : 2005 LIC 2127 : 2005 LLR 855 (MP. Being aggrieved.401 Services of cook working in the canteen run by the bank was terminated on remaining absent without notice for 6 days. gratuity and other pensionary benefits and he was terminated only for his disablement. compliance of Sec.HC) ¥ 5A. Central GovernmentIndus. 1985 (50) FLR 111 (Del. Delhi v. which upheld Industrial Court’s order because workman received compensation as per Workmen’s Compensation Act. 25F cannot be insisted upon because one of the requisite conditions of compliance of this provision is the genuine appointment with the employer. Panchgonda Sahakari Sakhar Karkhana Ltd. P. We cannot lose sight of the fact that thereafter till 4. 25F of the Act. set aside the decision of High Court and held that it was a case of abandonment of service.. There is significant delay in challenging the action. The Labour Court recorded two crucial findings of fact namely. When dispute was raised after five years. The muster roll. fell into an error in thinking that the reply given by the Appellant to the notice of the Respondent justified the order of termination. therefore the appointment came to an end automatically after completion of the period. Ranchi v. Hinoo. 2005 SCC (L&S) 872 : 2005 (105) FLR 378 : 2005 II LLN 81 : 2005 II CLR 112 : 2005 LLR 446 (S.1979 the respondent did nothing to assert his right of reinstatement.” (Page: 875. Apart from this no evidence was led by the Respondent-Workman that he had made any effort to seek reinstatement or complained against the action of the Management to anyone. The Labour Court held that it is a case of voluntary abandonment of service and rejected the reference.11. There is nothing in the reply to the notice which is even suggestive of the fact that the appellant accepted the fact that the services of the Respondent were terminated. on appeal. After a period of one year five months he raised an industrial dispute u/s. Impugned order set aside. and this fact fitted with the case that the workman abandoned the work.405 The name of a Railway casual labourer was deleted from the Muster Roll on continued absence for a period of five weeks. In fact the High Court was in error in interfering with the findings of fact recorded by the Tribunal………. Ranchi & Anr. v. 25F. The workman failed to prove the facts for attracting Sec.11. Chief Engineer (Construction) v. Labour Court directed his reinstatement with full back wages. Moreover the workman raised the dispute after five years. Labour Court. 2006 III LLJ 875 (Jhar. that he had abandoned his service and the allegation that he was prevented from joining his duties on 1. On a writ petition. Material evidence that workman started working from 1982 but he produced the identity card of 1984. It was observed that the conclusion of the Labour Court was one which no reasonable man could reach on the evidence. whose finding was affirmed by the Division Bench. Aggrieved the employer moved High Court. These were findings of fact recorded by the Tribunal on the basis of evidence on record.1977 was not true. Presiding Officer. that the Respondent was engaged as a causal labourer in connection with project work. Para: 16) ¥ 5A. the Single Judge of High Court set aside the award of Labour Court and ordered reinstatement with full back-wages. in terms of the Rules his name was deleted from the muster roll.Sec. Arunaben Atmaram Dudhrejiya & 16 Ors. had been ignored by the Tribunal. Para: 15) “We have further found that the learned Judge. There is no material whatsoever to suggest that he had made a grievance about it before any authority or before the Workers’ Union………. and secondly. But when he was given fresh employment he worked only for 12 days and thereafter he never turned up. or that there was justification for such termination. did not suffer from the vice of perversity or unreasonableness. Gammon India Limited. No relief can be granted. The Supreme Court.1977 he did not report for duty. The finding of the tribunal is not perverse or unreasonable. Court cannot extend contract of employment which was for 11 months. Keshava Rao (Dead) by Legal Representatives. Union of India & 4 Ors. 25F 2435 regular basis by following statutory recruitment.4. As we have noticed earlier.C. 25F When termination is not violative of Sec. Workers have no legal right.. it was interim arrangement made by State authority.C. no doubt. supported the case of the Appellant that after 1.HC) f) When workman voluntarily abandoned the service (S.” (Page: 875/876. the learned Judge mis-read the reply given by the appellant-Railways in which it was clearly asserted that the Respondent had abandoned his service and therefore. statutory right or constitutional right to challenge any of the conditions mentioned in the appointment order. And they are also not entitled to regularization in service because their appointments are void ab initio and de hors the statutory rules.2J) “We are of the view that this Appeal should be allowed. The finding of the Tribunal therefore. The delay of a year and 5 months in issuing a notice appears to us to be significant. The employer contested the decision in Supreme Court.406 Assistant Mechanic employed did not join service after expiry of due leave. The employee has not discharged his burden of proving that he was on duty continuously for a period of 240 days.HC) .2J) F 5A. 2007 I CLR 513 (Guj. 1992 II LLN 91 : 1992 LIC 1421 : 1992 LLR 703 (Mad. 25F Note: also refer to the following case/s Nagar Parishad Bilaspur v.408 A workman was retrenched on 1. an employer who rectifies the mistake at the earliest available opportunity and deposits in Court the amount of short fall. 75. 1998 I LLJ 208 : 1997 (76) FLR 402 : 1997 II LLN 774 : 1997 I CLR 930 : 1997 LLR 643 (Bom. 25F he was required to render continuous service as per Act. Ltd. 25F. when such mistake was bonafide (Bom. 1947. Labour Court upheld the order of termination since workman did not render 240 days of service and held that apprentice being a workman as per Sec.HC) Life Insurance Corporation of India v.HC) .HC) i) Termination of apprentice held valid since 240 days service was not rendered by him (Mad. Termination was challenged on the ground that retrenchment compensation was not paid hence it amounted to violation of Sec.409 The workman was appointed as apprentice.HC) ¥ 5A. 25F because if there is a bonafide mistake either of fact or law pertaining to mandatory requirement of the Statute. 1997 (91) FJR 409 : 1998 (78) FLR 43 : 1997 LIC 1555 (Del. 2700 which he refused to receive and demanded more. Labour Court dismissed the petition as it held that provisions of Sec.HC) ¥ 5A.3 years salary as compensation. v. then. Bone Ram & Anr. 2004 LIC 2013 (Mad.. 25F were complied with.DB) g) When employer deposits the short payment of compensation at the earliest.HC) Note: please refer to the following cases also where the termination was held valid since the employees did not complete 240 days Dilbagh Singh v. 2006 (111) FLR 204 : 2007 I LLN 193 : 2006 III CLR 82 : 2007 I LLJ 88 (Bom.000 in full and final settlement.2436 Chapter VA – Lay-Off and Retrenchment Sec.. however held retrenchment to be illegal and awarded 3. Aggrieved. it refused to remand the matter back as more than 19 years had lapsed from the date of termination but modified the award by directing compensation of Rs. would be deemed to have substantially complied with the provisions of statute and hence set aside the impugned award of the Labour Court. Principal Labour Court. L. High Court upheld the order of Labour Court. Union of India. 25F(b) of the Act. employer filed the writ petition challenging the award. the Management immediately deposited the same in the Court and the deficiency was cured at the earliest.G. therefore entitled to take benefit of Sec. Madras. 2005 II LLJ 123 : 2005 II CLR 484 (HP. High Court relied upon the ratio laid down in the case of ++++++++ (1981 (1) LLN 636) and held that retrenchment cannot be faulted on the ground of non-compliance of Sec. Therefore. Santosh Kumar Sharma & Anr. Vasule & Anr. 2(s). R.407 The employee challenged his retrenchment from service by the management. & Anr. State Express Transport Corpn. Managing Director. High Court held that small and insignificant shortfall in the payment of retrenchment compensation will not render the retrenchment void ab initio. v. In the said proceedings as soon as the employee highlighted the fact of short payment of compensation.5.. Chennai. thus in order to take the benefit of Sec.HC) Bharat Sanchar Nigam Ltd.HC) h) Retrenchment not vitiated for small and insignificant shortfall in payment of retrenchment compensation (Mad. Rajamani v.... Labour Court. The Bombay Film Laboratory Ltd. On termination he moved Labour Court contending that he was a workman under Industrial Dispute Act. Rajendra v.HC) ¥ 5A.1985 and when he went to collect salary for the month of April he was offered retrenchment compensation of Rs. Though the short payment was bonafide mistake.. Balasabeb Maruti Poojari & Anr. 2004 (103) FLR 963 : 2004 LIC 3396 (MP. . Labour Court. Para: 14) “The High Court. Wadakkamcherry. It is now well known that completion of 240 days of continuous service in a year may not by itself be a ground for directing regularization particularly in a case when the workman had not been appointed in accordance with the extant rules. Vikas Vidyalaya.2J) F 5A. Ltd. Presiding Officer. 2002 II CLR 1001 : 2002 LLR 723 (MP. On appeal the Supreme Court held that in terms of the provisions of the Apprentice Act. It is trite that if the provisions of the Apprentices Act applies. 1961. Para: 16) “When a workman is appointed in terms of a scheme on daily wages. Ornate Multi Model Carriers (P) Ltd. v. in our opinion committed a manifest error in coming to the conclusion that the Appellant is guilty of commission of unfair labour practice only on the premise that the services of 11 similarly situated had been regularized without taking into consideration the materials placed on records as also the finding of fact arrived at by the Labour Court that the services of such persons had been regularized in the year 1986. Bhola Singh. On writ petition the High Court held that the employer adopted unfair labour practice.HC) Karnal Central Co-Operative Societies Bank Ltd.. Labour Court. which was managed by the State Government.411 On reaching the age of superannuation. thus.C.Sec. Erandol.. 1995 (86) FJR 223 (P&H. he does not derive any legal right to be regularized in his service.HC) Management. The Employee was terminated after the scheme came to an end. 2005 (105) FLR 565 : 2005 LLR 621 (Bom. 2003 (103) FJR 810 : 2003 (99) FLR 989 : 2004 I LLN 187 : 2003 III CLR 307 (Bom.2J) “In terms of the provisions of the Apprentices Act. therefore.O.HC) Madhya Pradesh State Road Transport Corporation through Divisional Manager.C. v. the provisions of the Labour Laws would have no application. 25F When termination is not violative of Sec.. therefore the order of termination was illegal. AND Umapati Chauhan of Mumbai v. Bhubaneswar. v. P. Dhampur Sugar Mills Ltd. 2005 (105) FLR 386 : 2005 LLR 565 (All. the Respondent herein did not qualify for his absorption at that time and.” (Page: 1088.HC) Hemalata Sahoo v.. On reference the Labour Court held that the services of workman were terminated as per rules and the workman was never engaged on a permanent post and that he was a trainee and. The High Court further failed to take notice of the fact that according to the Appellant. 1961.. the services of all the trainees had been terminated. The High Court upheld the order of termination by State Government and observed that the termination of the services of a .. Presiding Officer. Ornate Multi-model Carriers (P). Ltd. Soc. 2003 I LLJ 236 : 2003 LLR 169 (Ker. Ranchi & Anr.HC) Daji Dada Pawar & Ors. his services continued as apprentice with several other trainees and it was only when the scheme came to an end. of that the provisions of the apprentices Act override the provision of the Industrial Disputes Act. Gwalior & Anr. Ramesh Mukund Lokhande. He filed a writ petition in High Court for quashing the order of the State Government contending that since he was not given retrenchment compensation.HC) j) When Apprentice terminated has no right to post (S. 1997 LLR 54 (P&H. did not fall within the ambit of the definition of workman.HC) Municipal Counsil. Labour Court. Presiding Officer.” (Page: 1088. 25F of Industrial Dispute Act. thus. 2005 IV LLN 693 (Ori. Thrissur District v. which was a condition precedent before retrenchment u/s. Newri. Jalgaon v. the services of an Assistant Store Keeper were terminated by the factory. State Of Haryana & Ors.HC) ¥ 5A. v. Ranchi v.” (Page: 1087. Labour Court.HC) Punjab State Electricity Board v. Industrial Tribunal.410 The employee was appointed as an apprentice in terms of a scheme sponsored by the State Government.. Indra Bahadur Singh & Ors.. Para: 20) k) When services terminated on reaching the age of superannuation (J&K. a trainee or apprentice had no right to be absorbed in services. 2005 I LLJ 1084 : 2005 LLR 320 : 2005 LIC 1611 : 2005 I CLR 799 : 2005 (2) SCC 470 : 2006 AIR (SC) 1790 : 2005 SCC (L&S) 292 (S. 1947 therefor proper and the termination was legal and set aside the orders of the High Court. 2007 (112) FLR 79 : 2007 III LLN 745 : 2007 LLR 208 (Jhar. Alappuzha & Anr. Allahabad & Ors. Bhatinda & Anr. a trainee or an apprentice has no right to be absorbed in services. 25F 2437 Government Servant’s Co-op. & Anr.HC) Motila Nehru Farmers Training Institute (Cordet) v. First Industrial Tribunal & Ors.DB) “The issue before……….2438 Chapter VA – Lay-Off and Retrenchment Sec. Shetty.1994 in as much as his service were terminated on 1.413 When the services of an employee who had joined duty on 5. SH.1994. Management challenged the award.2J) m) When appointment is not consistent with standing orders and service was less than 240 days (Cal. 2004 I LLN 658 (Bom.O. see Mohan Lal v.. 25F. v. Co. 25F as he could not discharge his burden that he was a workman employed in the bank is no proof that he had completed 240 days of continuous service.412 Services of the workman were terminated on 1. the termination of the employee was not in contravention of Sec..” (Page: 747. 25F workman in order to amount to “retrenchment” as defined in the Industrial Dispute Act.HC) . State of Jammu & Kashmir & Ors.writ petition /appellant.” (Page: 741.HC) ¥ 5A. Ltd.1989 and therefore he was entitled to the benefit of Sec.of his services.5. Held that completion of 240 days has to be in a year preceding termination of services which in this case was 1.414 High Court held that. & Anr. Tribunal held that workman had completed 240 days from 7. Calcutta Jute Mfg.7.6.HC) ¥ 5A.C.1982. Karur Vysya Bank Employees’ Union Bangalore v. Ltd. it will not amount to “retrenchment” and will not entitle the workman to any retrenchment compensation. Bangalore.3. & Anr. Award of Tribunal was set aside.7. Para: 2) “It appears from the………. 1988 (73) FJR 93 : 1989 (59) FLR 157 : 1988 II LLN 794 : 1988 LIC 1746 (Karn.HC) Note: Also refer to the following case Delhi Agricultural Marketing Board v. The Management of M/s. Central Government Industrial Tribunal-cum-Labour Court. Jairaj N. Bharat Electronics.HC) l) Even though workman who is terminated completed 240 days but not in the preceding year (Bom. Para: 21) n) When employee terminated is not employed in industry and has not completed 240 days of service (Karn. must be due to discharge of surplus labour or staff in a continuing or running industry. Union of India (THROUGH Divisional Railway Manager) v.11.1981 was terminated on 30. all forums up to Single Judge held that the termination was illegal in violation of Sec. P. 2006 III CLR 739 : 2006 (111) FLR 1158 : 2007 I LLN 526 (Cal.1993 to 30. but the Division Bench upheld the termination on the ground that he had not been issued any appointment letter and he had worked for less than 240 days in a year.1981 II LLJ 70 : 1981 (58) FJR 467 : 1981 (42) FLR 389 : 1981 II LLN 23 : 1981 LIC 806 : 1981 SCC (L&S) 478 : 1981 AIR (SC) 1253 : 1981 (3) SCC 225 (S. Satya Pal Singh Dabas & Anr. 2003 (99) FLR 719 : 2003 IV LLN 313 : 2003 LLR 1035 (Del. his appointment was inconsistent with Standing Orders and that his termination was termination simpliciter.8. 25F of the Act.7.1994 and not in earlier years to avail benefit of Sec. Any other mode of termination will not amount to retrenchment merely because he had reached the age of superannuation and was given notice by employer to that effect.DB) ¥ 5A... 25F.7. 1965-66 (28) FJR 89 (J&K. Parsidh Singh v..1994.1988 to 14. In this case relevant period of 1year is 1..HC) Note: For contrary view. 5000 is awarded by way of retrenchment compensation. Further. Hospital Rajkot. 2002 (93) FLR 728 (Guj. v.B.416 An employee was appointed as ‘Tracer’ on purely temporary basis for a fixed term to complete the work within the prescribed time. Bharat Earth Movers Ltd. held valid. Mansukh M. Jasani T. The probationer also admitted that 1 month’s wages were sent to him by money order after the termination of services. A. 5000 as retrenchment compensation and one month wages (Guj. Bangalore. Presiding Officer. Central Government Industrial Tribunal-cum-Labour Court.415 Claim of the employee of the Government company that his services were illegally terminated was favoured by the Industrial Tribunal and the award of reinstatement with back wages was passed.. Concept Pharmaceuticall Pvt. Narayan Maganlal Oza v.HC) ¥ 5A.HC) p) If employee is purely temporary and termination is for want of Government grants and due to closure of few divisions (Guj. Hence. the findings of the Industrial Tribunal that the employee had worked for 240 days preceding his termination was not based on any evidence and hence. On reference the Labour Court directed reinstatement with 50% back wages. it is perverse.O. 1988 (73) FJR 93 : 1989 (59) FLR 157 : 1988 II LLN 794 : 1988 LIC 1746 (Karn.HC) . Executive Engineer. His services were terminated as the Government grants were stopped and few divisions were closed.Sec. Maria Thomas Gonsalvies v. P. Indra Bahadur Singh & Ors. Rajkot v. On writ petition the High Court held that the termination was proper and justified and there was no misuse or colourable exercise of powers by the employer and the employee was appointed for a fixed term attracting Sec.HC) Termination – of temporary employee on the basis unsatisfactory service. Labour Court.. 2001 III LLJ 846 : 2001 (89) FLR 141 : 2000 III CLR 914 (Bom. Makwana & Anr. (rep. The High Court set aside the award as the relationship of employer-employee was not proved and the employer being a Government company the employee should have been employed by regular recruitment by sponsorship through an Employment Exchange. Gwalior & Anr. 2005 II LLJ 632 : 2005 I LLN 280 (Mad.417 Court found that termination of services of a probationer was due to his unsatisfactory work.HC) q) When probationer whose services were terminated was paid Rs. 25F is not applicable and hence set aside that award. no case is made out for interference.. 2000 III LLJ 478 : 2000 II LLN 632 : 2000 LIC 818 (Guj..HC) Note: also refer to the following case Management of Vellore Co-operative Sugar Mills Ltd. Vellore & Anr. 25F When termination is not violative of Sec.HC) ¥ 5A. but taking into consideration the various aspects found that interests of justice would be served if Rs. v. 25F 2439 Karur Vysya Bank Employees’ Union Bangalore v. By Special Officer). Ltd. Madhya Pradesh State Road Transport Corporation through Divisional Manager. 2(oo)(bb) and held that Sec. & Anr. Rameshkumar K. Roads & Building Department.HC) ¥ 5A.V..HC) o) When the employer is a Government company and workman was not sponsored by Employment Exchange as per recruitment rules and there is no evidence of 240 days of his service (Bom. 2002 II CLR 1001 : 2002 LLR 723 (MP.. Vellore v. 2001 (90) FLR 412 : 2001 LLR 755 (Bom. & Anr. Bhatt.HC) Note: also refer to the following cases Termination of service – On ground of unsatisfactory work was held to be legal and valid. Mrs. 1947 for compensation on the ground that first. Therefore. 25F.HC) .. Udaipur & Anr. the wages of the employee were made out of the proceeds received from the trainees coming for training where the employee functioned as a watchman.1999 I LLN 319 : 1998 LIC 3309 (Guj. Para: 1) “First contention……….418 The employees appointed on probation by Indian Oil Corporation for a period of 6 months.their services………. Sunilkumar S.HC) ¥ 5A. M/s. Though the Single Judge denied relief holding a salesman is not a workman as per Apex Court decision but Division Bench held that his termination is not retrenchment since the finding of fact recorded by the Labour Court clinches that appellant was not in service of the respondent establishment for the above duration. Ltd. Aushadh Prathishthan. As per the said settlement concerned workman was called for an interview in Bombay but was not selected and terminated as per settlement. Hence there was no proof of the termination of the employee by the employer for want of master and servant relationship. 25F of the Industrial Disputes Act.to be terminated.2440 Chapter VA – Lay-Off and Retrenchment Sec..R. Para: 14) s) When workman’s services were terminated as per settlement for non-selection (Guj.DB) ¥ 5A. Manager. Lekhakar Jha v. The High Court upheld the findings of Labour Court and refused to interfere with the award. There was oral termination of his services.10. there was no master and servant relationship. v.f.P. Delhi & Anr.from 6-10-1978………. On workman’s challenge. 15.” (Page: 1142. there was no post of a Chowkidar to be filled and second.e. High Court held that the termination was valid because there was no rule.1996 without compensation raised by a salesman the Labour Court held that although he was alleged to be appointed w. although working for nearly two years continuously. Sinha v.. Judge. Trivedi. Upon reference of the Industrial Dispute to Labour Court it held that neither he could be reinstated nor his case fitted with the parameters governing the provisions of Sec.In this case……….the said Act……….f.” “………. 2005 (106) FLR 528 : 2005 IV LLN 758 : 2005 LLR 926 (Raj.As pointed out……….HC) “The petitioner……….” (Page: 1147. 1973 no case for continuous service was made out and hence not entitled to any benefit.DB) ¥ 5A. Para: 3) “While passing………. We are appointed On termination they moved High Court contending that they were in service for more than 6 months as such they should be deemed to have been confirmed in service and could not be terminated without following Sec. Labour Court & Ors. the he held that when the workman acted in pursuance of the settlement in respect of process of relocation by attending the interview. N. 25F would not apply to the employees because there was no material to show that the employees were workmen within the meaning of Industrial Disputes Act. 2006 (109) FLR 522 (Raj.420 In a dispute of alleged termination of service w. 25F r) When probationer terminated could not establish that he is a workman (Guj.HC) ¥ 5A.419 A settlement was entered between management and the union representing Gujarat region which provided that workmen may on closure of Agricultural zone (West) due to losses be relocated in Maharashtra wherever possible. he was estopped from disputing settlement and hence the award of Labour Court in favour of the workman holding that there were only minutes but not settlement and there was no closure since the office at Baroda was functioning ignoring the fact that it was attended only by one employee was quashed. Ganesh Lal v. 1983 LIC 1139 (Guj.421 The employee a Chowkidar was not allowed to join duty.. Shaw Wallace & Company.e.” (Page: 1141. which provides such automatic confirmation nor any order of confirmation was passed as per rules and it was held that Sec.HC) t) When there is no proof of employer-employee relationship (Raj.passed by it………. Indian Oil Corporation Ltd. Karnataka Handloom Development Corporation Ltd.2J) “A careful perusal of the terms and conditions of appointment would go to show that the respondent is not a worker but employed on contract basis on a time bound specific scheme assigned as weaving trainer. M. 25F as was done in this case. & Anr.422 A person was appointed as a trainer to train weavers for a fixed period after expiry of which.C.2J) Anil Bapurao Kanase v. Para: 10) “From the………. v. hence termination is valid.m.servant. On the other hand. it does not attract compliance of Section 25F of the I.M. does not amount to retrenchment and.000 p.Sec. from the date of his appointment and. Para: 10) “The petitioners……….DB) “The services………. Telecom District Manager. Section 2(oo) of the Act is not attracted soon after the expiry of the specific period the respondent’s service was discontinued and so it is not a retrenchment as defined under Section 2(oo) of the I.employees. 25F. We are. Ravindra Kumar Srivastava v..” (Page: 431. Mahadeva Laxman Raval. Act at all.. Para: 14) .” (Page: 432. Dhenkanal. Act but employed on contract basis only. v.C.2J) F 5A. the case of the Corporation before the learned Single Judge and also before the Division Bench was that the respondent was not a workman in the employment of the appellant and that he was a weaver in the area as another weaver in the area and was getting certain concessions from the Corporation. Telecom District Manager. The High Court has failed to notice that the respondent was engaged on contract basis and had been assigned to train weavers who were lagging in weaving skills in the weaving potential development area working on time specific short term scheme sponsored by the Corporation.D. therefore.423 The workmen terminated from service were not temporary railway servants under the Railway Establishment Code Rules.2J) Kishore Chandra Samal v.D. 2007 I LLJ 696 : 2007 (112) FLR 490 : 2007 I CLR 25 : 2007 LLR 317 (Sum) (S. Union of India & Ors.The termination of his contract. the learned Judges of the Division Bench committed a factual error in holding that the above letter of appointment does not show that employment was not a contract which stipulated that it comes to an end with the expiry of project or scheme nor is it the case of the Corporation that the respondent was made aware of any such stipulation even at the commencement of the employment.surplus.C.C. therefore.” (Page: 700. 25F When termination is not violative of Sec. Orissa State Cashew Development Corporation Ltd. Para: 10) “………. Karnataka MANU/SC/0261/2003. 2003 II LLJ 359 : 2003 (97) FLR 608 : 2003 II LLN 1134 : 2003 LIC 2273 : 2003 II CLR 233 : 2003 LLR 470 : 2003 SCC (L&S) 380 : 2003 AIR (SC) 3553 : 2003 (4) SCC 27 (S. as they were employed as casual labourers in work charged projects and on completion of the work. 1. As the respondent was engaged as trainer for a specific period under the scheme and was paid a stipend of Rs. of the opinion that the respondent is not a worker for the purposes of Section 25F of the I.D. 1982 II LLN 427 : 1982 (45) FLR 214 : 1982 LIC 1739 (All. Act. 1998 I LLJ 343 : 1997 (91) FJR 317 : 1997 (76) FLR 847 : 1997 III LLN 67 : 1997 II CLR 383 : 1997 LLR 701 : 1997 SCC (L&S) 1637 : 1997 AIR (SC) 2698 : 1997 (10) SCC 599 (S.” (Page: 431/432. The High Court also has not properly appreciated the judgment relied on – S.M. therefore. 2006 I LLJ 685 : 2006 (108) FLR 143 : 2006 I LLN 74 : 2006 I CLR 29 : 2006 LLR 65 : 2006 SCC (L&S) 241 (S. However. his appointment stood automatically terminated after the expiry of the stipulated period and hence not violative of Sec. 25F 2441 u) When termination effected falls under the purview of Clause (bb) of Sec. Karnataka.D.3J) ¥ 5A.C. 2(oo) nor Sec. Labour Court passed an award of reinstatement which was confirmed by Single Judge as well as by the Division Bench but the Apex Court held that since the appointment was contractual. their services are liable to be terminated in compliance with Sec.. Nilajkar and Ors. his services were discontinued. Krishna Sahakari Sakhar Karkhana Ltd. v. Para: 11) Note: Also refer to the following cases S. Nilajkar and Ors.” (Page: 700/701. 2(oo) or on account of expiry of fixed tenure (S. Divisional Manager. in our view. 25F and thus directed his reinstatement with 25% back wages. It indicated that pay and other dues would be paid to him on the same day. Abdul Rahman & Co. 25F ¥ 5A. Savjibhai Trikambhai Kansagra. 2000 II LLJ 120 (P&H.HC) Medical Officer. 25F. Conciliation proceedings failed. The High Court held that when the case falls under the aforesaid Clause (bb). 1981 (42) FLR 185 : 1981 I LLN 548 (Bom. M. Therefore.M. The contention of the workmen was that they were not served notices but High Court dismissed the petition holding that the letter sent to the workmen along with compensation can be construed as notice only and further that when retrenchment was bonafide. notice and payment was given to the employee. Coimbatore and other.426 Three employees working as stacking section operators and paid wages as per the law filed a petition u/s. Labour Court. A.2J) . v. 1980 I LLJ 503 : 1982 (61) FJR 180 : 1980 (40) FLR 371 1981 I LLN 561 : 1981 LIC (Sum) 12 : 1980 AIR (SC) 1871 : 1980 (1) SCC 698 (S. Abdul Rahman & Co.C. Patel & Anr. The Presiding Officer. 25F. the employer was not required to follow the requirements of Sec.HC) ¥ 5A. 25F when there is no work and one month salary paid (Mad.HC) Note: also refer to the following cases in the above context Ravindrakumar B. 2006 (110) FLR 719 : 2006 LLR 847 (Del. 25F will not invalidate it. 2003 (96) FLR 268 : 2002 III CLR 838 : 2002 LIC 2659 (Guj. 1997 LIC 207 (Guj. 2000 III LLJ 1307 : 2000 (85) FLR 886 : 2000 I CLR 827 (Guj.HC) ¥ 5A. & Anr. Vijay Bahadur Singh & Anr.HC) Retrenchment valid.HC) Deputy Executive Engineer. The Labour Court found that the case of the workman falls u/s. Jasani.424 The workman was appointed temporarily on ad hoc basis and his services were terminated after extending twice for brief spells. District Health Centre & Anr. Selvam & Ors. employer offering the notice pay and retrenchment compensation to the employee but the employee denying the same. the award was set aside as being erroneous in law. Dilkhush Bairwa & Anr. v. 2A and the same was rejected by the Labour Court. 2(oo)(bb) but held that the employer violated Sec. Ltd. Although the payment was ready with the cashier he failed to collect the same.. 25F was not valid. v..HC) Note: Refer to Workmen of Coimbatore Pioneer “B” Mills Ltd. 2002 II LLJ 188 : 2002 (93) FLR 898 : 2002 II LLN 739 : 2002 LLR 372 : 2002 LIC 185 (Mad.. Thereafter they filed a writ petition. They filed a petition u/s.HC) Note: also refer to the following cases similarly decided Retrenchment valid u/s. 2002 II LLJ 188 : 2002 (93) FLR 898 : 2002 II LLN 739 : 2002 LLR 372 : 2002 LIC 185 (Mad. Netaji Subhash Institute of Technology v. v. Selvam & Ors. v. Consequently. 2(k) of the Act. Oriental Metal Pressing Works Pvt.. v. v. Frick India Private Ltd. the absence of notice u/s. Management C. Hasmukh M. his contention that his termination was in violation of Sec.425 Employee was retrenched from his service and a notice was served to him. Kendrekar. in compliance with Sec. Gujarat Maritime Board v. National Dairy Development Board. A. & Anr.HC) v) When notice served on the workman indicating that pay and other dues would be paid to him on the same day but he failed to collect the same (Bom. They were terminated since there was no further work and were paid one month salary and compensation through a registered letter.HC) w) When termination is valid even in the absence of notice u/s.2442 Chapter VA – Lay-Off and Retrenchment Sec. 25-F. Management C. On appeal.. State of Bombay & Anr. 51B of Karnataka State universities Act which prohibits continuance of a temporary employee beyond six months..at all. Rao & Anr. no co-worker was examined. Cuttack Gramya Bank. it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding Page 1559 the date of termination. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Mangalore v. 2006 I LLJ 424 : 2006 (108) FLR 193 : 2005 IV LLN 1007 : 2005 LIC 4308 : 2005 III CLR 892 : 2005 LLR 1222 : 2005 (8) SCC 750 : 2006 SCC (L&S) 38 : 2006 AIR (SC) 110 (S.2J) F 5A. 1989 (58) FLR 173 : 1988 II LLN 771 (Karn. 1961 II LLJ 727 (Bom. 25F was not attracted.428 Non-compliance with Sec. 2003 II LLJ 957 : 2003 LIC 1030 (Ori.” (Page: 732. Para: 19) Note: also refer to the following case Not violative of Sec. Workman. Hence his services were terminated. 25F when no evidence that workman has worked for 240 days Bhaskar Chandra Sahoo v.2J) “In the light of the aforesaid. muster roll produced by the employer has not been contradicted.DB) . 1993 III LLJ 726 : 1991 (62) FLR 972 : 1991 II LLN 752 : 1991 II CLR 941 (Ori. v.C.S. no evidence was produced by workman to show that he had rendered 240 days service in preceding year before his termination. Surendranagar District Panchayat v. 25F(c) is only an irregularity and does not make retrenchment illegal as it is only a mere condition but not condition precedent to retrenchment.DB) z) When workmen failed to prove that they have worked for 240 days service (S.. Cuttack & Anr. 25F 2443 x) When services were terminated under the provisions of a statute which prohibits continuance of temporary employees beyond six months (Karn. No proof of receipt of salary or wages or any record or order in that regard was produced. Chairman.” (Page: 430. Supreme Court set aside Labour Court’s order since apart from oral evidence. v.. Mangalore University & Anr.429 The workman was terminated without following Sec.DB) “From……….C. 25F.DB) ¥ 5A. High Court upheld the order of Labour Court. Labour Court ordered his reinstatement accepting workman’s contention that he rendered 240 days service. 25F When termination is not violative of Sec.HC) ¥ 5A. Mangalore University Non-Teaching Employees Assocition. T.Sec. we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service………. Para: 2) Note: also refer to the following case M/s. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. Bombay Union of Journalists & Ors. Therefore it was held that it was not retrenchment. Hence Sec.427 Employee appointed on temporary basis u/s.HC) y) Though notice under Clause 25F(c) is not given since it is only a condition not condition precedent (Bom. Utkal Asbestos Ltd. Dahyabhai Amarsinh. Therefore. S.522.HC) .we deen………. Steel Authoritsy of India Ltd.DB) ¥ 5A.” (Page: 978.I. Borhan Kumar v.” (Page: 58/59.workman.87 when he accepted the same and did not raise any such objection in his pleadings and the payment was made in bona fide and hence the order of reinstatement with back wages by the tribunal on the above ground was set aside and employer was directed to pay the shortfall. Indian Oil Corporation. The Ninth Industrial Tribunal & Ors.F. State of West Bengal & Ors.retrenchment………. Assistant Personnel Officer. and did not raise any objection in his pleadings (Cal.DB) ¥ 5A. Para: 4) “……….. Refineries Division Barauni Unit & Ors. Para: 2) “………. the Government referred the dispute of termination to Labour Court which held that the termination was illegal and ordered absorption of the workmen.432 The employer provided an option to it’s senior security guards to join CISF in view of the enactment of C. 25F za) When workman accepted compensation & ex-gratia etc.So the fact………. 552. 25F and hence it is legal and valid. v. Being aggrieved.HC) ¥ 5A.430 A workman who received retrenchment compensation and also accepted ex–gratia payment under settlement after filing the writ. the security guards did not exercise the said option and as a result the employers terminated them as per Sec. is deemed to have acquiesced with the older of his termination. 25F (Cal.87. Para: 11) zc) When workers did not opt for alternative employment and accepted compensation u/s. Purna Theatre v.2444 Chapter VA – Lay-Off and Retrenchment Sec.retrenchment……….” (Page: 980. Act. 552. (Pat. which set aside Labour Court order on the ground that the workmen failed to exercise the option of alternative employment and they were terminated in due compliance with Sec.Disputes Act. 1971 I LLJ 50 : 1971 LIC 675 (Pat. 2000 II CLR 977 : 2000 (86) FLR 819 : 2000 I LLR 197 : 2000 I LLJ 519 (Cal.upheld………. 25F(c).the workman………. 1968 which provided that C. employer moved High Court.the facts……….. But. 25F and sent notice to State Government u/s.So I do not……….the workman……….” (Page: 979..” (Page: 977/978.87 when workman accepted it. Para: 9) “……….” (Page: 978. Para: 3) “The……….workman……….mandamus……….tribunal……….F would protect industrial establishments of the country. 1997 (76) FLR 4 : 1997 LIC 1247 : 1997 I CLR 737 (Cal.431 Termination of service of a workman on grounds of being surplus cannot be set aside on the ground of short payment of compensation by small amount of Rs. Para: 2) zb) Though retrenchment compensation is short of small amount of Rs.I.DB) “……….DB) “……….nugatory. However.S. West Bengal & Ors.DB) “……….DB) “………. Shri Beli Ram v..V.” (Page: 834.As we have………. 1977………. Para: 2) zg) When employer issued notice and paid compensation and interim relief on terminating a probationer for unsuitability and thus complied with Sec. the mandatory conditions of notice and retrenchment compensation under Clause (a) and (b) were held to be complied with and hence their termination was held valid.” (Page: 417.433 Even though the employer paid money in lieu of notice and ex-gratia to the employees not purporting them to be workman. & Ors. D. v.Now the question……….” (Page: 632.” (Page: 833.employees………. Associated Instrument Manufacturers India Pvt. 25F 2445 zd) When money and ex-gratia paid in lieu of notice and retrenchment compensation (Cal. M/s. it was held unjust to penalise employer with more damages and hence the award of reinstatement with 50% back wages was quashed.bad in law………. 25F (Karn.award.DB) ¥ 5A.It therefore………. 25F and hence writ petition by workman was dismissed.” (Page: 311. Karnataka Handloom Development Corporation Ltd..The bank held……….. Anthony Olinto Silva v. Para: 14) “So far as back………. Para: 23) “………. Guest Keen Willams Ltd.DB) ¥ 5A.service.. 1980 (41) FLR 416 : 1981 I LLN 109 (Del.434 Termination of services of a trainee who was not in regular employment of the bank was held not to be “retrenchment” under the section. S. Para: 27) ze) When services of trainee who was not in regular employment were terminated (Bom.petitioner. Para: 3) zf) When workman declined to receive notice pay and retrenchment compensation (Del.000 and the workman was not found suitable for employment. Para: 4) “Any how in the………. 1989 (59) FLR 309 : 1989 I LLN 869 : 1990 LLR 191 (Bom.DB) ¥ 5A.” (Page: 632.the above memo……….435 Court accepted the contention of the management that postal receipt showing dispatch of notice pay and retrenchment compensation which in fact workman had declined to receive was sufficient compliance with Sec.436 Where the employer complied with legal requirements of notice and compensation while terminating the services of a probationer and also paid the interim relief of more than Rs.L.DB) “With regard to……….a trainee officer………. 50. Management of M/s.DB) ¥ 5A. 1996 III LLJ 825 : 1996 I LLN 106 : 1995 LIC 1687 : 1995 II CLR 485 : 1996 LLR 64 (Cal. 2002 (95) FLR 626 : 2003 LLR (Sum) 105 (Karn.DB) “The petitioner was………. Para: 15) . Nanjundaswamy & Anr.” (Page: 833.clauses 2 & 3. Para: 24) “………. Ltd. Nevaji & Ors. The Fifth Industrial Tribunal.” (Page: 628. 25F When termination is not violative of Sec.Sec.undertaking. v.December 30. dismissing him.DB) “The Learned Single Judge………. 1960 would not vitiate the notice. Suresh Kumar v.438 The offer made by the Employer whose services were terminated through a letter offering him to collect his compensation and notice pay was held to be definite. Nor does this error in the date of retrenchment.” (Page: 434. & Ors. 1982 II LLN 427 : 1982 (45) FLR 214 : 1982 LIC 1739 (All.” (Page: 244.DB) ¥ 5A.S.DB) “The petitioner………..4. 25F. Para: 20) .” (Page: 621. 1982 I LLJ 362 : 1981 (42) FLR 276 : 1981 I LLN 657 (Del. Ltd. v.4. the defect in the date of notice erroneously stating it as 1st Oct.439 Termination of employees completing more than 240 days of service only due to interim order of writ Court but not in regular course of engagement is not violative of Sec.437 The workmen were paid one months salary in lieu of notice as per Sec. “This is to writ……….” (Page: 363.Sec.. Para: 5) “The learned Single Judge………. invalidate the notice to the Government in Form P. 1965 II LLJ 619 (Ass.” (Page: 621.B. Para: 8) zk) When notice of termination served on the workmen on 15. genuine and sufficient compliance of the section and hence the contention of the workman that Sec.2446 Chapter VA – Lay-Off and Retrenchment Sec. H. Ravindra Kumar Srivastava v. Workmen of Shillong Hydro-Electric Ltd. Para: 4) zi) When the letter offering him to collect his compensation and notice pay is definite & genuine (Del.DB) “In the present case………of Service.above. Para: 2/3) “The next point is………. 25 F Act. Band Box Pvt.” (Page: 364. Para: 8) zj) When employee terminated completed 240 days of service due to interim order of Writ Court (HP. 25F was violated since the offer was vague. 2001 I LLJ 241 : 2001 LLR 244 : 2000 LIC 2990 (HP. 1960 instead of 1st Nov.due. 25F complied with one month’s salary in lieu of notice paid despite error in the date of notice (Ass. Union of India & Ors. 25F(a) and since the Statutory provisions were complied with.DB) ¥ 5A.follow.440 The notice of termination served on the workmen on 15.DB) ¥ 5A. and they had continued to work on the 15th and 16th but Court held that they cannot contend that it was illegal as they had not accepted the notice and dues offered to them and so could not be permitted to argue otherwise and hence termination of service from date of notice was not illegal.1982 and dues were not accepted (All.P.E..1982 was not accepted by them on the date it was served. State of Assam & Ors.DB) “Felling……….DB) ¥ 5A.a valid notice.. Amit Bhardwaj v. 25F zh) When Clauses (a) and (c) of Sec. was set aside. 1984 and his services were terminated w.” (Page: 3397. to collect the retrenchment compensation along with wages in lieu of notice which was denied by the workman. Besides it held that as the reference was for the dispute of termination from 1.DB) ¥ 5A.e. After 6 years.1986 and he was terminated on 1. The Single Judge set aside the award and reinstated him with continuity of service relying on his service of 240 days applying Sec. 2006 LIC 3395 : 2007 (112) FLR 24 : 2007 II LLN 298 : 2007 LLR 334 (Sum) (AP. 25F of the Act. not holding a post.” (Page: 791.1984 to 30. The Division Bench set aside the order of Single Judge and held that it was a case of voluntary abandonment of service as the worker failed to ventilate his grievance for 8-9 years apart from being a daily wager. Industrial Tribunal. Para: 5) zm) When employer terminated is a daily wager not entitled to regular post and there is delay of 8-9 years in raising dispute (Bom.DB) Workmen of Davangere Cotton Mills Ltd. Frank Ross & Co.such reinstatement. 25F of Industrial Disputes Act. the employer is not obliged to issue any notice or to comply with Sec.4. Subsequently he was appointed on 1. 1973 I LLJ 306 : 1973 (43) FJR 107 : 1974 (28) FLR 162 : 1974 II LLN 154 : 1973 LIC 1356 (Mys. the tribunal while clubbing the previous services has exceeded its jurisdiction as it cannot proceed to adjudicate dispute not referred to it.DB) Note: Please see related ratio/s under the above citation in this section zo) When service rendered by a daily wager in two spells cannot be clubbed to arrive at 240 days (AP.1986. Balasabeb Maruti Poojari & Anr. 25F of the Act.to the Industrial Tribunal for adjudication. 25F When termination is not violative of Sec.Sec. on the ground that he was not paid arrears of wages of 3 months.12.of the Act. 25F (Cal. 1971 LIC 790 (Cal.1985 to 31. High Court held that he being a daily wager and specifically employed on leave vacancy his first period cannot be counted and hence his termination for not having worked for 240 days for subsequent period is legal and proper. Management of Divisional Engineer.1. 25F 2447 zl) When workman offered compensation and one month wages though arrears of wages not paid as demanded since it has no relationship with compliance of Sec.442 The daily wager worked continuously for 240 days but did not report for work allegedly due to oral termination of his services..11. 25F(a) and 25F(b) hence compliance was held to be justified.f.” (Page: 3397/3398. v. Para: 5) .HC) “Facts to the extent………..1984. he being a casual daily wager.443 Daily wager was employed on leave vacancy from 30. he raised a dispute and after conciliation proceedings failed..4.DB) “It is evident………. Mahaboobnagar District v. v. Chandra Kumar Dutta v. Para: 2) “The Tribunal held that………. it was held that payment of arrears of wage have no connection with compliance of Sec. Bharat Sanchar Nigam Ltd. Venkataiah & Anr. 2006 (111) FLR 204 : 2007 I LLN 193 : 2006 III CLR 82 : 2007 I LLJ 88 (Bom. the Labour Court. upon reference held that it is not a case of voluntary abandonment of service and yet rejected the reference..1986 thereby he worked for 226 days including holidays. 1. Messrs. Bangalore & Anr.7. Telecommunications.441 Employer by it’s letter requested the workman who was sought to be retrenched.3.DB) zn) When notice of retrenchment is accompanied by a sheet containing detailed calculations for payment of retrenchment compensation (Mys. Secretary. & Ors. The Tribunal clubbing two periods of services held that he is entitled for reinstatement with full back wages for non-compliance of Sec. Ltd.HC) ¥ 5A.DB) ¥ 5A. 3J) Note: Please see related ratio/s under the above citation in this section . Ltd.C. Bangalore Woollen. Thus the respondent was not found suitable to be continued in service of the appellant.February 19–1985.C.to be set aside.” (Page: 413/414. When the services of the respondent were required to be continued. we hold that the order of termination of the respondent was in terms of stipulation contained in his appointment order and we set aside the award made by the Labour Court as affirmed by the High Court………. Para: 4) zq) When pleadings of employer that workman is a daily wager is not controverted by workman (P&H. Cotton & Silk Mills Co. 2001 II LLJ 412 : 2002 SCC (L&S) 1022 : 2001 (10) SCC 681 (S. Para: 4) “The workman………. Para: 3) “The services of the workman……….Disputes Act.444 Services of the employee who was kept on probation was terminated in accordance with letter of appointment as he was not found suitable dull unsatisfactory work it as held that his termination will not invoke Sec.” (Page: 3407. Unfortunately.” (Page: 1123. Hence we do not think the order of termination is bad. Cotton & Silk Mills Co.C. Para: 23) “In view of breaks………. v. Para: 5) zr) When discharged due to medical unfitness since it does not amount to retrenchment (S.” (Page: 413. the facts are clear in this case that termination was within the period of probation.. Para: 3) “………. 25F “Since the 1st respondent’s………. regularized or confirmed after the period of probation his service record is examined and since the same is not satisfactory his services were discharged. Industrial Tribunal. Rajajinagar Coop. having been oblivious of the above fact was set aside and matter remanded to it for fresh consideration.DB) “After………. Para: 2) “The Management………. That is how the award was made in favour of the respondent. but the same was considered.445 Since an inference is deducible if a pleading by one party is not specifically controverted by the other party. 25F hence Supreme Court set aside the order of Labour Court and High Court.2448 Chapter VA – Lay-Off and Retrenchment Sec.2J) F 5A.sustained.” (Page: 3405. Hissar. Haryana Board of School Education v.DB) ¥ 5A..ab initio void..3J) The Workmen of Bangalore Wollen.” (Page: 3410. Ltd. Para: 31) “Thus mere completion………. 1962 I LLJ 213 : 1961–62 (21) FJR 538 : 1962 (4) FLR 298 : 1962 AIR (SC) 1363 (S.” (Page: 1123. Thus. the learned single Judge while dealing with the writ petition held that contention had not been raised before the Labour Court though at earlier stage of the order he noticed that the appellant had raised such a probation was due to expire on December 31. Para: 45) zp) When services of probationer employee terminated for unsuitability as per letter of appointment (S.” (Page: 1123.” (Page: 1124. 1988. Bank Ltd. v.C. Before the Labour Court the appellant contended that Section 25-F would not be attracted inasmuch as the services of the respondent had been put an end to during the period of probation.Industrial Dispute Act. Therefore.2J) “………. the workman appointed on daily wages was held to have been appointed for a specific period as per the pleadings of the employer which was not controverted by the workman and hence the order of the Labour Court holding the termination illegal. 1994 I LLJ 1123 (P&H. Gururaj & Anr.nature………. K. Sec. because he thought that by S. was that the consequence of non-compliance with the requirement of S. 25F when violated or when required to be complied 2449 zs) When workman appointed for 88 days on temporary basis was terminated since bank’s policy forbids appointment for 90 days (S.2J) “………. 25F (b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman. 25F when violated or when required to be complied Note: please refer to head on service of notice and retrenchment compensation for more ratios on violation of Sec.C. Section 25-I provides for the recovery of monies due from employers under Ch. its discretion should be exercised judiciously. 2007 I CLR 594 : 2007 I LLJ 424 : 2007 (112) FLR 338 : 2007 I LLN 32 : 2007 LIC 270 : 2007 LLR 98 (S.447 The Supreme Court in this case has held that failure to comply with the provisions of Sec. 25H is applicable.Section 11A of the Industrial Disputes Act confers a discretionary power in the Industrial Tribunal or the Labour Court. 25F (b) was not to render the impugned retrenchment invalid. however. High Court modified award for reinstatement only.C. and it is obvious that there are several other cases in which monies become due from the employers to the employees under Ch. Having regard to the fact that the words used in S. and according to Tendolkar J. Regularisation does not mean permanence………. 25F (b). this provision covers the amount due to the workman by way of compensation under S. v. That being so.Sec. Regional Manager. It is difficult to accede to the argument that when the section imposes in mandatory terms a condition precedent.446 The workman was appointed for 88 days on temporary basis as regard to Bank’s policy of appointment to maximum for 90 days. 25-I covered cases of recovery of monies other than those specified in S. 25F (b). we see no substance in the argument that the Court of Appeal has misconstrued S. SBI v.” (Page: 255. 25-I had been enacted. Although in a given case. Para: 2) . Hospital Mazdoor Sabha & Ors. 25-I a specific provision has been made for the recovery of the amount prescribed by S. On termination of his services and on reference Labour Court awarded reinstatement with full back wages on writ petition. 25F Sec.C.Even in a case where service of an employee is terminated in violation of Section 25F of the Industrial Disputes Act.” (Page: 598. On appeal Supreme Court held that “temporary service” of workman for 88 days only does not attract reinstatement. 25F (b) are mandatory and their effect is plain and unambiguous it seems to us that the Court of Appeal was right in holding that S.” (Page: 598. An employee after termination of his services cannot get a benefit to which he was not entitled to if he remained in service………. In our opinion. 25F(b) renders the orders of termination invalid and inoperative. this view is untenable. J. V. failure to comply with the said provision renders the impugned orders invalid and inoperative.3J) “On a plain reading of S. a) When Termination is effected without compliance of any of the Clauses (a) (b) & (c) are not complied since they are all independent (S.. as the case may be.C. Mahatma Mishra. full back wages nor Sec. 25F (b). non-compliance with the said condition would not render the impugned retrenchment invalid. Para: 11) VII. State of Bombay & Ors.3J) F 5A. he would not be entitled to grant of a permanent status. Therefore. The section provides that no workman shall be retrenched until the condition in question has been satisfied. the Industrial Tribunal or the Labour Court may grant appropriate relief.2J) F 5A. 25F. 25F especially Sec. Para: 11) “………. V. it is for the recovery of these monies that S. 25F (b). 1960 I LLJ 251 : 1959-60 (17) FJR 423 : 1960 AIR (SC) 610 (S. The argument which appealed to Tendolkar. Para: 2) ¥ 5A. 2006 (111) FLR 892 (Raj.before us. v. Tribal Development. 1995 II LLJ 206 (Raj. Silas v. the management did not have the right to terminate the services under College rules and regulation. Prabh Dayal v.HC) Termination illegal. Ashok Kumar Gupta & Ors. Hanuman Singh v. without compensation was held bad. The High Court held that all the provisions of Sec. violation of any of the clause will make the termination illegal hence retrenchment of workmen having completed 240 days though in compliance of Clause (a) but not by Clause (b) and hence was held to be illegal. Panchayat Samiti. (a).HC) Termination without notice.. workman neither regularized nor was compensation given.HC) Retrenchment invalid. Braja Kishore Pradhan v.1994 (85) FJR 384 : 1995 (70) FLR 463 (Raj.” (Page: 1832.petitioner.HC) Note: The following cases may also be referred in the above context M/s.. (b). Pepsu Road Transport Corpn. only notice pay but no retrenchment compensation u/s. 25F have been substantially complied with by paying one month’s salary in lieu of notice was held to be not proper. 1996 III LLJ 1191 : 1995 LIC 1668 : 1995 LLR 890 (Pat..be illegal.HC) Non-compliance – of Sec. 25F ¥ 5A.” (Page: 1670. State of Rajasthan. Shahpura. 1987 (55) FLR 93 : 1987 II LLN 573 (MP. Raj Kumar College.HC) . District Red Cross Society.DB) “………. Union of India & Ors. 25F need to be complied with as a whole and non-compliance would make termination of service liable to be considered as retrenchment u/s. Jodhpur Sahkari Upbhokta Wholesale Bhandar Ltd.. 1992 LIC 1831 : 1993 LLR 15 (Ori.450 Workman employed in a bank for a fixed term was terminated and it was held that.DB) “It has been………. 2003 (98) FLR 852 : 2003 LIC (Sum) 210 (Jhar. Krishna Kumari & Ors. when retrenchment compensation is not paid...451 The contention of the management that the provisions of Sec. Para: 6) ¥ 5A. Raj Kumar College Karmachari Union v. retrenchment is void and reinstatement with full back wages is ordered. v. 25F(a) and 25F(b) have not been fully paid.even if the………. 2003 (98) FLR 919 : 2004 LIC 172 : 2003 LLR (Sum) 1021 (P&H. termination illegal. Jaipur. State Bank of India v. (c) of the section is independent.” (Page: 139. Raipur & Anr. 25F given.DB) “There cannot………. Para: 20) ¥ 5A. Pratap Singh v.2450 Chapter VA – Lay-Off and Retrenchment Sec. Thus. Labour Court & Anr. is bad.HC) Retrenchment without paying compensation.449 Termination of employee without paying retrenchment compensation was held to be invalid and therefore he was awarded reinstatement without back wages in facts of case and probability of gainful employment for the period in question. 2(oo).” (Page: 1831.. State of Jharkhand & Ors.yet we would think……….the petitioner. Municipal Council. 1989 II LLJ 138 : 1989 (58) FLR 392 : 1989 II LLN 1010 (Raj. 25F.448 When amounts due to the retrenched employees u/s. 1997 (91) FJR 570 : 1998 (78) FLR 150 :1998 I LLN 309 : 1998 LLR (Sum) 4 (P&H. since sub-Sec. State of Rajasthan v. Para: 3) “………. 453 Termination of services without any notice pay or retrenchment compensation is in violation of the provisions of Sec. 1996 LIC 718 (Ker.C. it was clearly a non-compliance with Sec. more than 240 days in a year and upheld the award of Labour Court. Para: 7) “Even on merits.HC) Termination held bad retrenchment compensation not paid. retrenchment bad. Labour Court . Labour Court & Anr.” (Page: 1078. Dakshina Railway Casual Labour Union. Executive Engineer. General Secretary. 1988 (57) FLR 157 (Ori. R. 25F Sec.to the Labour Court……….C. The Labour Court came to the conclusion that the appellant while issuing the notice of retrenchment as contemplated under Section 25F of the Industrial Disputes Act neither gave one month’s notice nor in lieu of the notice gave one month’s salary which has been upheld by the High Court. Bhanwar Lal v. 2006 SCC (L&S) 95 (S. v. Para: 19) Note: also refer to the following cases Bombay Leprosy Project v. Labour Court Jaipur & Anr. D.9. Chavan & Anr. 2005 (105) FLR 1196 (Del.” (Page: 95.HC) .. when notice/notice pay was not given.452 Where neither one month’s notice nor in lieu of notice. 1995 II CLR 393 (Raj. Cuttak Municipal Council v. Meshram & Anr.HC) Termination-was set aside since Sec.D. Ram Kumar & Anr. & Ors.HC) Sita Ram Pareek v. State of Bihar. Ernakulam & Ors. Deoria Kasiya Sakhari Bank.Sec. 25F of the Act when an employee had worked from 5. Punjab v.HC) Notice – by registered post. Judge. Presiding Officer.6.. Learned counsel for the appellant is not able to satisfy us how the impugned orders of the Labour Court Court as well as the High Court are contrary to the law. Para: 2) ¥ 5A. Nagpur..” (Page: 1083/1084.50% back wages.K.DB) “The facts leading………. 25F and therefore order of termination was illegal since the workman by producing muster roll had established the 240 days service and the employer failed to lead any evidence to rebut the same and reinstatement with back wages was directed. 1995 (70) FLR 122 : 1994 II CLR 780 (Bom. one month’s salary was given.1985 to 26. if one month not lapsed on date of termination it is illegal.. 25F. Ramjee Jaisingh & Co. workman terminated. Gupta & Ors. Municipal Corporation of Delhi v.HC) Retrenchment-invalid.VIII & Ors. v. 25F when violated or when required to be complied 2451 Retrenchment compensation if not paid and employee completed 240 days..not more than 30.1987. if notice of retrenchment not served.DB) Kanti Weekly v.HC) Notice if not given. 2006 (110) FLR 877 : 2006 LLR 1092 : 2007 I LLJ 264 (Raj. held illegal. Jagannath Prasad Yadav v. we………. PWD & Anr. 1983 I LLN 771 (Del.HC) Non-compliance of Sec.HC) Sarjug Prasad v. Pargat Singh. 1985 (51) FLR 620 : 1984 II LLN 630 : 1984 LIC 1264 (Pat.3.. 1988 (57) FLR 298 (All. Executive Engineer. Municipal Board.HC) b) If one month notice or one month salary in lieu of notice is not given (S. 2002 (94) FLR 789 : 2002 LLR 994 (Bom. Divisional Railway Manager.2006. Para: 1) “On the basis of………. Presiding Officer Labour Court.” (Page: 1081.2J) “By the impugned order the High Court has upheld the award made by the Labour Court directing the reinstatement of the respondent workman with back wages.2J) F 5A.. Vishnu B. Roy Brother v.. 1988 (57) FLR (Sum) 19 : 1988 LIC 1265 (Raj. 2006 (111) FLR 1077 (Del. Southern Railway Palghat v. 25F was not followed. v. Even though clause in appointment order provides services of workman can be terminated by giving one . Southern Railway & Anr. 25F (Ori.456 Notice given under Rule 421 of Orissa Municipal Rules 1953 for termination of services of sweepers on abolition of Post under Rule 420 would not affect a case of retrenchment. v. L. Para: 7) e) When services of employees terminated by notice under Service Rules or terms of appointment order but not by notice u/s. 1974 II LLN 329 (Ori. Para: 5) ¥ 5A. 2(s) and termination was not justified for non-compliance with Sec.C.. Notified Area Council. 1980 (40) FLR 38 (Raj.2452 Chapter VA – Lay-Off and Retrenchment Sec. Retrenchment.HC) c) When notice was served fifteen minutes before closing of work (Bom. it is not a genuine offer and held that Sec. is violative of Sec.2J) F 5A.” (Page: 336/337.Retrenchment. 25-F are two different aspects of notice. It granted reinstatement with back wages payable after deducting pension received by him. P. v.The basic fallacy in the submission is that notice of change contemplated by Section 9-A and notice for a valid retrenchment under S. 2001 II LLJ 45 : 2001 (89) FLR 929 : 2001 II LLN 314 : 2001 LIC 2243 : 2001 II CLR 502 : 2001 LLR 460 (Del. 1982 I LLJ 330 : 1982 (60) FJR 144 : 1982 (44) FLR 250 : 1982 I LLN 257 : 1982 LIC 811 : 1982 SCC (L&S) 124 : 1982 AIR (SC) 854 (S.” (Page: 331.” (Page: 332. 25F is not complied with..2J) “……….DB) “Rule 420………. High Court held that finding of the Labour Court that termination was not justified cannot be interfered with as it is a fact. Registrar Co-OPerative Societies.. Robert D’Souza v. 25-F would be dispensed with in view of the provision contained in S. 25F. It is. 25F.DB) ¥ 5A. 25F Dismissal of workman with one year service without show cause notice nor notice or pay in lieu thereof held bad. 25F was held to be inoperative and invalid. being retrenchment. Bengal Chemicals & Pharmaceuticals Ltd. Hence retrenchment made in non-compliance of Sec.454 Where notice of termination is served on employee 15 minutes before the closing of the working day and asking the workman to collect his dues immediately. Labour Court held that the employee was a workman u/s. Para: 4) “Admittedly………. 9-A. Om Prakash v. no compensation being paid and no notice being given to the prescribed authority. 25F and held retrenchment is void ab-initio. (Labour Court-3) & Ors. Para: 4) “………. & Ors. The Executive Engineer. it is an indisputable position that none of the other pre-conditions to a valid retrenchment have been complied with in this case because the very letter of termination of service shows that services were deemed to have been terminated from a back dale which clearly indicates no notice being given.457 Services of an employee were terminated as per Clause 10 of the appointment order without complying with Sec.” (Page: 332. General Secretary. proviso (b). That apart. Dyes & Chemical Worker’s Union.HC) d) When termination is from back date since it amounts to termination without notice (S. one having no correlation with the other.. therefore.Since……….O.to law. Smt. Pandab Kalyani & Ors.455 Termination of workman from back date being indicative of no issuance of notice before termination.HC) ¥ 5A. 25-F. termination of service. for failure to comply with See. & Ors. 1988 (57) FLR (Sum) 13 : 1988 II LLN 40 : 1988 I CLR 439 (Bom.C. (a) or (b) was null and void and was liable to be quashed. Coal India Ltd. futile to urge that even if termination of the service of the petitioner constitutes retrenchment it would nevertheless be valid because file notice contemplated by S.HC) Retrenchment of an employee in contravention of Sub-Sec. Therefore. Bhubaneswar. would be void ab initio. Ltd v.” (Page: 21.of section 25–F. 11A due to the absence of a written order and hence the employer is not allowed to adduce evidence in support of dismissal. Jadhav & Anr.O.contact of employment.DB) “……….” (Page: 21. 2(oo).DB) ¥ 5A. termination is illegal and Tribunal has rightly directed reinstatement with back wages. & Anr.In the present……….” (Page: 18. 1989 II LLJ 294 : 1989 (75) FJR 63 : 1989 II LLN 640 : 1989 LIC 623 (Pat. State Bank of India v. financial position did not improve hence these and few more were retrenched. 1981 (59) FJR 121 : 1981 II LLN 569 (P&H. Ltd. Since the requirements of Sec. Labour Court Patiala & Ors.HC) Note: also refer to the following case S.HC) f) Termination of service for any reason in violation of Sec.. Para: 18) “………. 1982 is void ab initio (P&H. 25F. therefore non-compliance with Sec. 2(oo) g) If lay-off compensation is deducted from retrenchment compensation (Bom. Khashaba K. Union of India & Ors. State of Punjab & Ors.. 1984 would render it void ab initio.of that clause.H. Kelkar & co.HC) ¥ 5A.HC) h) When the termination is in non-compliance of Sec. 25F when violated or when required to be complied 2453 month’s notice or payment in lieu of notice. P. Para: 19) Note: This position is prior to introduction of Clause (bb) of Sec. 1997 (77) FLR 619 : 1997 IV LLN 638 : 1997 II CLR 649 (Bom. State of Rajasthan & Ors. Administrator. Beco Engineering Co. Ltd. Vacuum Plant & Instruments Fanufacturing Co. 1999 I LLR 1103 : 1999 (83) FLR 112 (Raj.. 25F though it is oral (Pat.We hold that……….HC) . 25F in case of termination prior to August 18. amount of such back wages has to be decided by Labour Court afresh. It does not amount to dismissal/discharge u/s... management cannot take advantage of it in view of Sec. P. 25F Sec.458 Before introduction of Clause (bb) in 1984 termination of service for any reason was covered by ‘retrenchment’. 1999 II LLJ 14 : 1998 III LLN 526 (P&H.459 Company laid off 65 employees as it was in financial difficulty. v. Vacuum Plant Kamgar Sanghtana v.Definition of ‘retrenchment’………. He is entitled to back wages for the period he was unemployed without deducting pension.460 Oral termination falls within the purview of retrenchment u/s.DB) ¥ 5A.. 25F were not complied with. It was held that company was not entitled to deduct lay-off compensation from retrenchment compensation and by effecting such deduction there was breach of mandatory provision of Sec.DB) Note: Please see related ratio/s under the above citation in this section Note: also refer to the following case Shiv Dan Singh v. 25F prior to March 2. 1999 II CLR 530 (Bom. Para: 12) “………. 25F of the Act and therefore retrenchment was held illegal.Sec. Municipal Committee v. v.” (Page: 350.” (Page: 350. v. it is held violates the provisions of Sec. Executive Engineer & Anr. whereas company contended that the workman could not be reinstated because of being overage. Supreme Court affirmed the order of Division Bench since the workman by producing muster roll had established the 240 days service and the employer failed to lead any evidence to rebut the same. Union of India & Ors.3J) Note: A long list of additional cases is given at the end of the heading on violation of this section given below in which termination of workmen whether daily wagers/casual labour/temporary employees/probationers who completed 240 days was held illegal for non compliance of Sec. Labour Court.. Quadin through its Executive Officer v. Shantabai Kisan & Ors. 25F.DB) ¥ 5A. Smt.3J) .DB) ¥ 5A.DB) When services were verbally terminated without complying with section.A.. 1976 (33) FLR 96 : 1976 LIC 660 (Bom. Presiding Officer. Benny v. 1981 LIC 696 (Raj. Rajasthan Co-op.2454 Chapter VA – Lay-Off and Retrenchment Sec. Para: 9) Note: also refer to the following case Rajeshwar Nath v. 25F Termination of workmen on the oral orders of the president in non-compliance of Sec. Municipal Council Akot & Anr. Municipal Counsil. his termination.DB) “The Labour……….C. T. The company’s contention was rejected on the grounds that earlier also the employee being over age was continued in service and also had employed several overage employees without Government approval and hence was directed to employ him with back wages. Para: 7) “Opposite party………..assailed. 25F F 5A. Gurdaspur & Anr. Para: 6) “It transpires……….appointment.DB) j) When an overaged employee is terminated without compliance of Sec.HC) k) When the workman who had worked for 240 days is terminated (S.461 Where the employer merely mentions in the appointment letter the word “contract basis” without stipulating the period of contract and nature of work whether fixed or temporary.463 Employer moved Supreme Court against the order of Division Bench which upheld the order of Labour Court and ordered reinstatement of the workman in view of the non-compliance of Sec..terminated.462 Because of non-compliance of Sec. 25F termination of the employee was held to be illegal retrenchment and hence he was reinstated with full back wages. 2006 SCC (L&S) 650 (S. 2007 (113) FLR 179 : 2007 I CLR 650 (P&H. Lekh Raj & Anr.” (Page: 351... 25F amounts to illegal retrenchment. Dairy Federation Ltd. 25F (Ori.HC) i) When appointment letter mentions only the words ‘contract basis’ without mentioning the period and nature of work (P&H. 1986 II LLJ 349 : 1986 (52) FLR 188 (Ori. The Management of Bhubaneswar Municipality v. Chief Officer.. Mojes Gaon & Anr. 25F of the Act which led the Labour Court to set aside the termination ordering his reinstatement with 50% back wages which was upheld by the Division Bench of the High Court.C. 1994 III LLJ (Sum) 336 : 1991 (63) FLR 52 : 1991 II LLN 218 : 1991 I CLR 460 (Raj. DB) “In such circumstances……….” (Page: 160. 25F when violated or when required to be complied 2455 “We have heard the learned counsel for the appellant in this appeal and perused the award as well as the judgment of the High Court. Labour Court. Faily Ram.8.”(Page: 160.DB) “………. Rajahmundry v. On appeal.467 Termination of person who worked for more than 240 days in preceding 12 months in violation of Sec.The learned single………. 25F is invalid.Sec. Hence this appeal fails and the same is dismissed.P. On reference.DB) .” (Page: 818. P. 25F is unlawful and hence order was unsustainable. 25F was applicable in the case.R.466 Termination without notice of services of a workman re-employed after his resignation is bad as he completed 240 days since then.” (Page: 650.. Managing Director Rajasthan Small Industries Corporation & Anr. Municipal Board. Shetty v.DB) Note: also refer to the following case If employee terminated after 240 days of service.O. Para: 6) ¥ 5A. 2001 II LLJ 1164 : 2001 (91) FLR 1037 : 2001 II LLN 1169 : 2001 LLR 846 (Sum) 3 (P&H. Para: 17) ¥ 5A. Mamidi Venkata Ramana & Anr. From the award we notice that so far as the workman is concerned he has produced muster rolls for the relevant period which indicated that the workman did work continuously from 1. 2003 II LLJ 907 : 2003 (97) FLR 1132 : 2003 III LLN 764 : 2003 LLR 803 (AP. Ltd.1995 and the appellant management did not produce any material from its side to rebut the same on such factual background we find no reason to interfere with the impugned order..in the matter. Division Bench set aside Single Judge’s order since workman was in continuous service as he had worked for 240 days in earlier year or years though not in the year immediately preceding termination and held that Sec. 25F.resignation. Coaxial Cable Project. Para: 16) “In view of the above………. Industrial Tribunal & Ors. 1989 (58) FLR 469 (Raj.” (Page: 471.465 Discontinuance of an employee completing 240 days service in violation of Sec.464 Neither notice nor compensation was paid to terminated employee who had rendered 245 days of service therefore Court upheld decision of Industrial Tribunal-cum-Labour Court that his termination was null and void and he was entitled to be reinstated with back wages. Divisional Engineer. v. Jairaj N. Union of India.DB) “Since the respondent………... Marwar Mundwa v. 2001 III LLN 158 : 2001 LLR 1089 (Cal. 1997 I LLJ 817 : 1996 (74) FLR 2459 : 1996 II LLN 1261 : 1996 500 : 1996 LLR 645 (Raj.DB) “………. 2006 I LLJ 206 : 2005 IV LLN 537 : 2005 III CLR 106 : 2005 LLR 1095 (Bom. 1987. v. F.1994 to 31.468 The workman was terminated without complying Sec. Para: 11) ¥ 5A.” (Page: 911. Moulding Company Pvt. Para: 1) ¥ 5A.The total number………. State of Wet Bengal & Ors. Telecom. Ram Niwas & Anr.2. 25F Sec. Para: 2) ¥ 5A.with back wages. v. Tribunal held that workman completed 240 days service and ordered reinstatement. Faridabad & Ors. Single Judge set aside Tribunal’s order since workman was not in continuous service preceding the date of termination.April 4.respondent is invalid………. . Textile Traders co-operative Bank. First. 25F of the Act was not followed when he was terminated. Ranchi & Anr.HC) 2. New Delhi & Anr.C. Hindustan Photo Films.2456 Chapter VA – Lay-Off and Retrenchment Sec. & Ors. There is no hint in the record that any undue burden would be placed on the employer if the same relief is granted as was done in Santosh Gupta v. Jagdishbhai Natwarlal Patel. Ltd. Diwan Chand Teneja & Anr.C.HC) M. The Labour Court appears to have thought that the award of the relief of reinstatement with full back wages would put these workmen on a par with those who had qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter... Second...HC) Management. Surat v. Newri. (AIR 1980 SC 1219).469 Workman was appointed as an apprentice and he continued in employment for about 8 months after training was over.3J) “In the cases before us we are unable to see any special impediment in the way of awarding the relief. Labour Court. liable to be retrenched.2J) . v. 1999 III LLJ (Sum) 60 : 1998 (93) FJR 326 : 1998 (78) FLR 857 : 1998 I LLN 744 : 1998 LLR 391 (Mad. Raghuram v. State Bank of Patiala. Vinobha & 39 Ors..3J) F 5A. Vikas Vidyalaya. 2001 (90) FLR 1121 : 2001 I LLJ 1410 : 2001 LLR 822 : 2002 SCC (L&S) 719 : 2001 (10) SCC 49 (S.470 Labour Court held that termination of temporary workmen who had completed 240 days because of failure to pass the test for permanent absorption is invalid but did not reinstate them with back wages because in its view it will create dissatisfaction with those workmen who had passed the test but Supreme Court set aside the order and held that there is no shade of evidence to suggest that reinstatement will cause widespread dissatisfaction among permanent employees and therefore reinstated them with full back wages and further held that for seniority purpose the period from retrenchment to reinstatement will not be considered. 2000 III LLJ 1082 : 2000 II CLR 603 : 2001 III LLN 444 : 2001 LIC 222 (Guj. the interference by the High Court that the termination was in violation of Sec. Held that as he remained in service after completion of training and during that service he completed 240 days of continuous service and Sec. 2001 I LLJ 235 : 2000 III LLN 766 : 2000 II CLR 503 : 2002 (93) FLR 9 (Guj. was justified by the Supreme Court. Mamtaben Mahendrabhai Joshi.471 In the instant case Labour Court overlooked the fact that the workman had worked for 240 days and also post was not abolished.. Nagar Panchayat. 1994 (69) FLR 329 : 1994 I CLR 1089 (AP. 1981 AIR (SC) 422 : 1981 I LLJ 386 : 1980 (57) FJR 67 : 1980 II LLN 456 : 1980 LIC 1292 : 1981 SCC (L&S) 16 : 1980 (4) SCC 443 (S. Ltd. 2007 (112) FLR 79 : 2007 III LLN 745 : 2007 LLR 208 (Jhar.” (Page: 425. 25F and also the post was not abolished. Para: 7) F 5A. Labour Court. Presiding Officer. he is entitled to reinstatement with back wages. Hyderabad & Ors. M. In respect of apprentice i) If apprentice who was continued beyond the initial period of appointment and worked for 240 days as staff reporter terminated (Guj. they can never be on par since reinstatement would not qualify them for permanent absorption. Ranchi v. The Central Government Industrial Tribunal-cum-Labour Court. They would continue to be temporary. there is not a shred of evidence to suggest that their reinstatement would be a cause for dissatisfaction to anyone. v. v. In respect of temporary workman i) If temporary workmen with 240 days service for not passing test for absorption is terminated (S.HC) H. 25F 1.C.HC) Note: also refer to the following case Surat Mahila Nagrik Sahakari Bank.HC) ¥ 5A. v. Surendra Kumar Verma etc.B.P. Sec. interfered with the order and held that the respondent was entitled not only to retrenchment compensation but also shall get Rs. 25F Sec.” (Page: 1121.of the Act.. 1981 II LLJ 382 : 1981 LIC (Sum) 68 (Cal. Prem Narain & Ors.O. Para: 2) “It is………. In respect of casual workman/daily wager i) When a casual worker with more than 240 days of service in preceding 12 months terminated (Cal. State of Maharashtra & Ors. Assistant Personnel Officer & Ors. v.appellant.” (Page: 703.HC) Executive Engineer (Construction Division).. as the statutory requirements of Sec. 2(oo) of Industrial Disputes Act.his services were put to an end by an oral order on the ground that the Helper / Nakedar post stood abolished.of their employment. 1989 (59) FLR 701 : 1990 I LLN 28 : 1990 LLR 81 (All. Narendra Deo Krishi Evam Proudyogik Vishwavidyala Mazdoor Union v.It was made clear that the respondent was working as a Helper / Nakedar and his services were orally terminated.” (Page: 391. Para: 3) . 25F would render their termination illegal hence Court issued mandamus directing that concerned employees should not be terminated and if already terminated they should be reinstated with all benefits.HC) 3. Ilango & Ors..DB) ¥ 5A.474 As university is an ‘industry’ its casual labourers who undisputedly completed 240 days of continuous service were “workmen” therefore non compliance with Sec.. 1947 which was referred to the Labour Court.definition of workman………. 25F have not been complied with and hence orders of termination are set aside. 2002 (100) FJR 120 (Mad. Union of India & Ors.Admittedly no………. The Labour Court. did not interfere with the action of the appellant having taken the view that the Helper / Nakedar post stood abolished……….472 Verbal termination of the services of the casual labourer constitutes retrenchment u/s. therefore. Para: 2) Note: also refer to the following cases Shashikant Govind Malgaonkar v. Co-operative Department v.illegal. 25F. Calcutta Telephones & Ors.DB) “It is settled………. Para: 25) ¥ 5A. however. When the fact that the respondent had worked for more than 240 days in a year could not be disputed and it was not clearly established that it was on account of closure of Nakedar system. & Anr. the High Court took the view that the finding recorded by the Labour Court was perverse and. 2003 (98) FLR 20 : 2004 LIC 273 : 2003 II LLN 1023 : 2003 II CLR 342 (Bom. Para: 4) ¥ 5A. v.” (Page: 144/145. Aggrieved by that action the respondent raised a dispute under section 10(1) of the Industrial Disputes Act. Tapan Kumar Jana v.we think the order made by the High Court is just and proper and we decline to interfere with the same……….473 The termination of services of the casual workmen who have been in continuous service for more than a year constitutes retrenchment and it is bad in law. 000 (Rupees thirty thousand) or in the alternative he shall be employed in some other vacancy………. 1996 LIC 2362 (Mad. Kulpati Narendra Deo Krishi Evam Proudyogik Vishwavidyalaya & Ors.” (Page: 1121. 25F when violated or when required to be complied 2457 “……….” (Page: 391. hence reinstatement is ordered.HC) A. P. 30..than one year……….DB) “As soon………. Para: 1) “………. Workman had worked for more than 240 days and his termination was in violation of Sec. 1985 (50) FLR 143 : 1985 I CLR 163 : 1984 (48) FLR 400 (All.it is clear………..DB) “In the present………. has no force……….DB) “Once it is……….476 Termination of probationer for unsatisfactory work which did not carry any stigma as per regulations amounts to retrenchment and hence non compliance of Sec. 2000 II LLN 231 : 2001 (98) FJR 424 : 2001 (90) FLR 418 : 2000 I CLR 557 : 2000 I LLR 136 : 2002 I LLJ 457 (Del.. Para: 5) 4. Para: 3) Note: also refer to the following case Termination for unsatisfactory work in violation of Sec. In respect of probationer i) When probationer with continuous service of one year or more terminated (Karn.not.477 Employee who was appointed on probation of 6 months. 1989 upto October. according to the cross-examination of MW1 read with the appointment letter Ex. 1990 and his services were terminated on 22-10-1990. v. v.) Ltd.assigned.. Para: 2) ¥ 5A. 25F renders it void and illegal and the Division Bench awarded compensation in lieu of reinstatement holding that reinstatement is not the inevitable consequence of illegal retrenchment following the decision of the Constitution Bench in the case of Punjab Land Development Reclamation Corporation 1990 (77) FJR 17.475 Probationer who had put in continuous service of one year or more. 2004 (105) FJR 604 : 2004 (102) FLR (Sum) 50 : 2004 (105) FJR 609 (Guj. Karnataka State Road Transport Corporation & Ors.in law. the petitioner was allowed to continue.. Hutchiah v. & Anr.” (Page: 704. Para: 4) “………. both because the petitioner had worked for more than 240 days and because even after the expiry of the service period of six months.with all benefits………. his Termination without complying with requirements of Sec. In this position. was continued after expiry of 6 months and had also completed 240 days hence termination in violation of the section was held to be illegal and reinstatement with back wages were granted.DB) ¥ 5A.DB) “The workman……….A writ in………. Para: 2) “……….DB) “………. Bhojani. 2001 LIC 1227 (P&H.Moreover.” (Page: 236.” (Page: 236.back wages. Para: 3) “The Labour Court has held that the petitioner has not completed 240 days of service in a calender year and his appointment was for a fixed period and was not extended further and that provision of section 2(oo) (bb) of the Industrial Disputes Act (hereinafter referred to as the “Act”) will be applicable. M1.” (Page: 704. Manibhai D.as regards………. 25F was held to be illegal and void. the petitioner’s appointment cannot be said to be for a particular period. Para24) “The decision………. Amritsar & Anr. Delhi Transport Corporation v. 25F illegal. Commercial Clearing Agnecies (P. 25F “The argument of……….” (Page: 232.” (Page: 1228.. the petitioner had worked from November. Managing Director of Tarn Taran Co-operative Sugar Mills Ltd.” (Page: 1228. Para: 27) ¥ 5A. Therefore.2458 Chapter VA – Lay-Off and Retrenchment Sec. Branch Manager. P.HC) . Wazir Singh. 1983 I LLJ 30 : 1982 (61) FJR 207 : 1983 I LLN 205 (Karn. we do not agree with the Labour Court which upheld termination.O.” (Page: 37. the contractor in this case. 25F as well as non compliance of Sec.479 When the corporation introduced direct payment system to the workmen of the contractor they became the employees of the corporation and subsequently it’s unilateral act of discontinuing it and reintroducing contract system o deny the status of workman will amount to termination of these employees in violation of Sec. in legal parlance such an act of the first employer constitutes discharge.DB) ¥ 5A. Presiding Officer. a direct relationship of master and servant came into existence between the contractor and the workmen………. 1985 II LLJ 4 : 1985 (66) FJR 453 : 1985 (50) FLR 442 : 1985 II LLN 20 : 1985 LIC 876 : 1985 SCC (L&S) 420 : 1985 AIR (SC) 670 : 1985 (2) SCC 136 (S.DB) “………. Villupuram). and have become workmen of another employer namely.3J) “………..25F was mandatory………. Rajesh Kumar & Ors. Para: 7) “………. the abolition of the contract system and the introduction of direct payment system hereinbefore discussed brought about a basic qualitative change in the relationship between the Corporation and the workmen engaged for handling foodgrains in that on the disappearance of the intermediary contractor.” (Page: 322. Therefore. 25F since their termination does not fall under any of the exceptions (MP. therefore it was held that even in case of termination of probationers though appointed invalidly. 25F is necessary and hence the orders of their termination were quashed.Though the petitioners……….C. 31(2) of Industrial Dispute Act and held that all the workmen so affected shall be entitled to all the rights liabilities obligations and duties as prescribed for the workmen by the corporation and displacement of their contract of service with corporation was held illegal. v. compliance with provisions of Sec. invalid.3J) F 5A. And on discontinuance of the system of direct payment. & Ors.25F is necessary. Radhakrishnan v.C. The Workmen of the Food Corporation of India v.478 An invalid appointment does not fall in exception clause of Sec. termination of service or retrenchment by whatsoever name called and a fresh employment by another employer namely. was it open to the Corporation of unilaterally discontinue the system without the consent of the workmen and reinduct contractor so as to again introduce a smoke-screen which may on paper effectively deny the status of being the workmen of the Corporation. acquired by these workmen.” (Page: 10..” (Page: 321. 2(oo). 1994 II LLJ 320 : 1993 II LLJ 249 : 1993 I LLN 1009 : 1993 I CLR 846 (MP. 25F Sec. Para: 11) Note: Similar view was held incase of termination of trainee in the following case R. Para: 15) “………. Labour Court. the contractor…………. without ordering retrenchment of their services by the Corporation. 25F when violated or when required to be complied 2459 ii) When Probationers even appointed invalidly but terminated in non-compliance of Sec.HC) l) When contractor’s employees under previous direct payment system discontinued due to reintroducing of contract system to deny the status of workman (S. 2004 III LLJ 631 : 2004 (103) FLR 671 : 2004 II LLN 1054 : 2004 LLR 756 (Mad. they obtained a fresh employment under the Contractor……….whether once on the introduction of the direct payment system.An invalid appointment……….Sec. M/s. Cuddalore (2) Management of Thanthai Periyar Transport Corporation (Now known as Tamil Nadu State Transport Corporation..When workmen working under an employer are told that they have ceased to be the workmen of that employer. the workmen acquired the status of the workmen of the Corporation. ab initio void and they continue to be workmen of Food Corporation of India and Supreme Court quashed and set aside Tribunal’s award and directed it to pass a formal award on the lines of the decision set out by the Supreme Court now in case before it. 9A inviting a penalty u/s.the action of introducing so as to displace the contract of service between the Corporation and the workmen would be illegal and invalid and ab initio void and such action would not . State of M. Villupuram. Food Corporation of India.P. Kanpur. He was also informed that his name would be struck off since he had concealed his educational qualification and that his services would be terminated without any notice and compensation from the bank.C. Para: 13) “For the……….481 Considering that the daily rated Tikka Mazdoor of bank was not told at the time of accepting job that his name would be struck off the rolls if he clears matriculation examination and also considering that there was no such term in the memorandum governing terms and conditions of service of Tikka Mazdoor.Tribunal. 25F would amount to invalid retrenchment and Court directed reinstatement with back wages and costs. he was not a matriculate. 25F. 7 of Contract Labour Act nor the workers were employed through licensed contractor and hence it was set aside on ground of violation of Sec.it would be appropriate to extract in full the Memorandum issued by the Reserve Bank of India.2J) F 5A. Food Corpn.” (Page: 348. 1993 III LLJ 347 : 1987 (70) FJR 395 : 1988 I LLN 472 : 1988 I CLR 144 (P&H.2J) “The appellant was a Tikka Mazdoor with the first respondent.” (Page: 129. The appellant sent a reply stating that he was not a matriculate in 1974 when he was selected and that he passed the examination only in 1975. Para: 15) n) When the name of daily rated worker on passing of matriculation exam is struck-off in the absence of any such condition of service (S.O. of India v. obligations and duties as prescribed for the workmen by the Corporation. 1986 I LLJ 127 : 1985 (67) FJR 379 : 1985 (51) FLR 494 : 1985 II LLN 1037 : 1985 LIC 1733 : 1985 II CLR 246 : 1985 SCC (L&S) 975 : 1986 AIR (SC) 132 : 1985 (4) SCC 201 (S.C. Central Government Industrial Tribunal.DB) ¥ 5A.” (Page: 13. Singh v. liabilities.illegal. 25F alter. P. Reserve Bank of India & Anr. which lays down the terms and conditions of service of a Tikka Mazdoor………. On 23-7-1976. Chanmdigarh & Anr.” (Page: 128. Para: 22) m) When contract workers employed without license by principal employer were terminated since they are deemed to be terminated by principal employer (P&H. A formal award to that effect shall be made by the Tribunal. Para: 1) “The appellant was not given any work after July 1976……….DB) “The Tribunal……….D.At the time he was selected for employment.” (Page: 11. Para: 2) “………..” (Page: 351. Para: 17) “………the award of the Tribunal rejecting the reference and denying the benefit must be quashed and set aside and an award be made that the aforementioned 464 workmen who had become the workmen of the Corporation continued to be the workmen employed by the Corporation and shall be entitled to all the rights. At the time he was selected he was not told that his name would be struck off the list of Tikka Mazdoors if he passed the matriculation examination. charge or have any effect on the status of the afore-mentioned 464 workmen who had become the workmen of the Corporation.” (Page: 351. the Reserve Bank of India………..observed. H. Para: 6) . It appears that Tikka Mazdoors are placed in List II maintained by the bank. He passed the matriculation examination in 1975.. since neither the employer had certificate of registration as required u/s.” (Page: 128. A confidential circular seems to have been issued by the bank on 27-6-1976 to the effect that matriculates would not be retained in this list. he received a letter from the bank asking him to state within a week (latest by 29-7-1976) as to what his educational qualification was.480 Termination of services of workers employed through contractor was held to be effected by principal employer only. Para: 3) “In the………. Apex Court setting aside Tribunal’s order held that striking his name off the rolls in accordance with a confidential circular issued by bank to the effect that matriculates would not be retained in the service and hence termination in violation of mandatory provisions of Sec.2460 Chapter VA – Lay-Off and Retrenchment Sec. 2(oo) it would amount to retrenchment and since it was made without complying with Sec. 25-F.DB) Note: also refer to the following case/s Sec. 21 of the Constitution.484 Services of employee terminated without enquiry for having absented herself without applying for leave for more than 20 consecutive working days and therefore. Hemraj v.482 Termination of workman for over staying the leave period made as per standing order being not covered by excepted category specified u/s.” (Page: 263...” (Page: 132. Para: 4) ¥ 5A. High Court held that the employee has discharged her burden by proving that she worked for 240 days to seek the benefit of Sec.” (Page: 131. 25F would not become stale. Labour Court. 1997 I LLN 468 (P&H. Bathinda. v.In this case………. Udam Raj v. to reinstate him and pay him his backwages up-to-date. and the said order is upheld by Labour Court. 25F was held bad. Para: 3) “………. Labour Court.O. 25F Sec. Central Government & Ors. BCCL v. and is invalid……….DB) “………. 1994 III LLJ 327 : 1989 (58) FLR 768 : 1989 II CLR 145 (MP. 2003 (97) FLR 262 : 2003 LLR (Sum) 618 (Jhar. which was challenged on the ground that she had been deprived of her right to livelihood guaranteed u/Art. P. Judge.The petitioner himself………. 25F was held bad.” (Page: 130.proceeding against them. 25F – violated – when workman for over staying the leave period terminated as per standing order in non-compliance of section. 2(oo) of the Act and was in violation of S. Para: 7) “……….in violation of the mandatory provision contained in S. Indore & Ors.HC) Termination – for unauthorized absence without complying Sec.483 Termination of service due to abandonment of work would be retrenchment and Sec. 25-F. Para: 16) o) When terminated without enquiry for continued absence unauthorisedly by invoking Standing Orders (MP.As per own……….Sec. Atlas Cycle Industries Ltd.HC) Termination – for unauthorized absence without complying Sec.. Para: 10) “……….It is useful to note that this Memorandum does not contain any terms that a Tikka Mazdoor will be struck off the rolls once he passed the matriculation examination.DB) ¥ 5A. 1995 (87) FJR 571 : 1996 (72) FLR 372 : 1995 II LLN 417 (P&H. 25F was held to be void.. 1998 I LLN 683 (Raj. Kusunda Area of M/s. Striking off the name of a workman from the rolls by the employer amounts to ‘termination of service’ and such termination is retrenchment within the meaning of Section 2(oo) of the Act if effected. 14 and observed that the . The appeal is allowed with costs………. Employers in Management.We set aside the order of the Industrial Tribunal and hold that the striking off the name of the appellant from List II amounted to retrenchment under S. as Tikka Mazdoor. 25F applies and it was also held that a dispute raised even after 12 years regarding termination in violation of Sec.DB) ¥ 5A. Gursewak Singh v. should be deemed to have voluntarily abandoned her employment as per Clause 5(vi) of Standing order.it dormently survived. We direct the first respondent-bank to enlist the appellant as a regular employee. 25F and the action of the management amounts to violation of Art. Labour Court & Anr. State Industriall Court. Rohtak & Anr. 25F when violated or when required to be complied 2461 “……….had become stale……….HC) p) When terminated on grounds of abandoning service (Jhar.” (Page: 264. HC) ¥ 5A.” (Page: 405. Muththabarabnam v. 2007 I CLR 404 (Guj.1) “………. The Tribunal rejected the contention of the employer that he had abandoned the duties. employer has to serve notice and conduct departmental enquiry against workman. Para: 12) ¥ 5A. 2005 IV LLN 118 : 2005 LLR 1034 (AP.. Labour Court.9) “In this view of the……….The Labour Court……….and illegal. High Court held that the plea of delay though not raised before Labour Court is not fatal. 25F may be required.employee……….The fact that………. Para: 6) “Next contention………. & Ors. The High Court upheld the decision of the Tribunal.A.” (Page: 903. 1947 and ordered his reinstatement with back-wages and continuity of service.I am satisfied………. Nilgiris. Chief Engineer.” (Page: 900.of the Act. compliance of Sec. If the workman abandoned the service the principle of natural justice has to be followed.” (Page: 895. v. Hyderabad. Para: 7) “Right of daily wager……….1) “………. Para: 9) q) When employee refuses to work on a lower post in night shift but attends office during normal hours and employer treats him to have abandoned the service (P&H.HC) “Looking to the………. I. Presiding Officer. P.” (Page: 902. (TW Department). And even in case of daily wagers.It therefore. Colacumby.” (Page: 900. 2001 IV LLN 894 : 2002 LLR 202 (Mad.486 The services of workman were terminated on which Labour Court granted reinstatement with 25% back wages which was challenged on the ground of delay and abandonment of service by workman.HC) “The arbitrary………. High Court held that as .4) “……….Constitution of India………. He raised an industrial dispute of which reference was made to the Tribunal. Para: 9. Jashubhai Devabhai Gohel.D. The employee refused to work in the night shift but attended the office during normal hours and signed the attendance register at that time but was not given any work.award in question.” (Page: 405/406. as he had issued no notice asking the employee to come and join the duties. Industrial Tribunal-cum-Labour Court. Kheda District Panchayat v.rejected.2462 Chapter VA – Lay-Off and Retrenchment Sec. Para: 11. Para: 5. Management of Colacumble Tea Manufacturers Pvt.485 The services of a workman was terminated without notice or enquiry or compensation although he had worked continuously for three years.” (Page: 896.respondent management………. As the workman had rendered continuous services for a period of three years and in the absence of any other defence the Tribunal also rejected the contention of the employer that the termination of the services was outside the purview of Sec. 25F of Industrial Disputes Act.such a situation. 25F rules of natural justice should be complied with at a pre-decisional stage when the workman is entitled to submit his explanation but not at a post decisional level and directed his reinstatement with continuity of service. Para: 9.in violation of the……….O.respondent management. Para: 2. & Anr.” (Page: 406.” (Page: 407.6) “………. Visakhapatnam.HC) ¥ 5A.of India………. Ltd. unless the dispute ceased to exist due to delay. logically………. Labour Court has to consider delay factor while granting relief. Smt. Para: 5) “As regards………. Coimbatore.487 An employee who was appointed as Accounts clerk was transferred to a sister concern and was asked to work in the night shift as cane clerk which was a lower post in pay scale and status.T.with back wages. O.. Thus.The petition.490 For unauthorized absence from duty. The management did not start proceedings for terminating his services for absence nor took any action u/s.HC) ¥ 5A.DB) ¥ 5A.” (Page: 224/225. Narayanbhai Kalubhai Bhamre. Para: 2) “There is no dispute………. 25F was not complied with before termination and it was held that rule could not override the express provisions of statutory section. Para: 5) ¥ 5A. Labour Court. 1986 II LLN 634 (P&H..488 The workman was on leave but due to his arrest by police he was not able to join duty.HC) Note: Similar view held in the following case Sohanlal v. Industrial Tribunal & Anr. Jai Bhagwan Jain v.489 Discharge simpliciter as per the provisions of Sastry Award. of the workmen for his complicity in fraudulent withdrawal of money from the Bank since the charges against him having not been proved in the domestic enquiry. was held not to be pursuant to a disciplinary action and hence it was held not vitiated for not hearing him about the order of discharge but it was held amounting to only retrenchment and since no compensation was paid even as per the provisions of Sastry Award which is more or less on the same lines as u/s. State Bank of India. Bareilly & Ors. Bharadwaj. High Court set aside the order of Labour Court on the ground that Sec. 25F mandatory (All. 2003 I LLN 223 : 2003 LLR 38 : 2002 III CLR 702 (Guj.” (Page: 227.HC) . Credit & Thrift Society Ltd.detection………. 25F.Paragraph 521(10) (c)………. On workmen’s appeal. Union of India & Ors. 1994 III LLJ (Sum) 589 : 1991 (63) FLR 721 : 1992 I LLN 69 : 1992 I CLR 173 : 1992 LLR 221 (All. award of the Tribunal passed against him is erroneous. 2001 (89) FLR 759 (Guj. 25F but assumed that the employee abandoned the services which is illegal. State Transport Co-op. Gujarat Electricity Board v. 25F when violated or when required to be complied 2463 per contract of service he cannot be made to work at a lower post and thus. Para: 5) petitioner………. 25F Sec. M. Sarjoo Prasad v. 1979 (55) FJR 223 : 1979 (38) FLR 433 : 1979 LIC 990 (Pat.above……….Sastry Award. The employer deleted his name from muster roll as per rule. which was upheld by the High Court. and thus violated the principle of natural justice. Afsar Mian v. President.HC) Note: also refer to the following cases in the above context Termination if Sec. the discharge was held not valid. he is entitled to continue in service with all benefits. P.HC) s) When termination is for misconduct without enquiry or where despite enquiry the charges were not proved (Pat.DB) “The petitioner……….ultimately………. v. the service of the workman was terminated without holding departmental enquiry.disciplinary “From the last sentence……….HC) r) When name was removed for absence as per service rules due to arrest since conditions u/s.. 25F not followed and enquiry not held. Labour Court awarded reinstatement without back wages for the interim period on the ground that the order of termination itself states that the termination is for misconduct of unauthorized absence and no enquiry was conducted for the same. Labour Court upheld the order of termination. 2000 I LLJ 201 : 1999 LIC 1553 (J&K.521(10) action………. void and without jurisdiction.” (Page: 226. Regional Manager. Sanjaykumar Mahendrakumar Mehta.C.Sec.writ (c)………. P. Bilaspur & Ors.C.2J) F 5A. 1974………. Undoubtedly therefore the termination would constitute retrenchment and by a catena of decisions it is well settled that where prerequisite for valid retrenchment as laid down in Section 25F has not been complied with.K.HC) Charges against the employee were not proved and therefore termination of his services was illegal u/s.” (Page: 72. Para: 3) “………. Jabalpur v. Society Ltd.O. Puthiya Veetil Raghavan v. Labour Court.. 25F.HC) Retrenchment – includes termination for misconduct affected without enquiry. Johny v.. Modern India Construction Company Ltd. Mohan Tiwari & Anr. Para: 1) “………. In State of Bombay v.. without following Sec. though for misconduct without enquiry. Bhaskaran & Ors. 1993 III LLJ (Sum) 700 : 1988 I LLN 106 : 1987 II CLR 439 (Bom.” (Page: 73. 1998 (78) FLR 565 (MP. Anand Cinema of M/s.” (Page: 71. excluded categories. termination of service of the appellant does not fall within any of the excepted.HC) Misconduct if not established. All India Institute of Medical Sciences & Ors. C.. 25F Termination – is bad when no enquiry was held.2J) “The appellant Mohan Lal was employed with the respondent M/s. or to be precise. 1987 (54) FLR 156 (Bom.491 Temporary workman who was terminated from his service after completion of his probation period does not fall within the exception given u/s.HC) Discharge – of workman without enquiry. Accordingly it was held that the termination was neither illegal nor improper nor unjustified………. 25F. 2000 I LLJ 158 : 1999 IV LLN 272 (Del.HC) t) When temporary workmen terminated after completion of probation period (S. 1974 with effect from 19th October. 872 : (AIR 1960 SC 610 at p. 1984 (49) FLR 357 : 1986 LIC 336 (MP. Employers in Relation to M/s. Larsen & Tubro Consumers Co-Op. would not constitute retrenchment within the meaning of Section 2(oo) read with Section 25-F of the Industrial Disputes Act. 520/. State Road Transport Corpn. Management/Director.The case does not fall under any of the excepted categories.” (Page: 71. Para: 7) “Reverting to the facts of this case.1993 I LLN 1008 : 1993 (66) FLR 505 (MP. There is thus termination of service for a reason other than the excepted category. Maheshwari & Bernard. It would indisputably be retrenchment within the meaning of the word as defined in the Act………. M. without paying compensation held bad.2464 Chapter VA – Lay-Off and Retrenchment Sec. was set aside. v. (1960) 2 SCR 866 at p. The Hospital Mazdoor Sabha. Bharat Electronics Limited as Salesman at its Delhi Sales Depot on a salary of Rs.C.termination in this case. Mohan Lal v. Madan Lal Arora v. Para: 5) “………. 25F hence the order of Labour Court holding that termination was valid. His service was abruptly terminated by letter dated 12th October. M. 613) this Court held that failure to comply with the requirement of Section 25-F which prescribes a condition precedent for a valid retrenchment renders the order of retrenchment invalid . Member Judge v. 1981 II LLJ 70 : 1981 (58) FJR 467 : 1981 (42) FLR 389 : 1981 II LLN 23 : 1981 LIC 806 : 1981 SCC (L&S) 478 : 1981 AIR (SC) 1253 : 1981 (3) SCC 225 (S.the appointment was temporary in the first instance and there was an inner indication that it was likely to be made permanent……….. Bharat Electronics Limited.. & Anr.HC) Termination in breach of Sec. according to the Labour Court. retrenchment bringing about termination of service is ab initio void. State Industrial Court & Anr. 1973. 25F of Industrial Disputes Act.. 2(oo) of the Act therefore termination of the workman amounts to retrenchment and attracts Sec. termination would be illegal.Per month from 8th December. Bank Ltd. Sharad Hari Deshpande v.DB) “………. Labour Court. which the management itself gave. v.” (Page: 525/526.the Act. Labour Court. 25F(b) deemed not complied (P&H. because there was not enough work for them. it is held that it amounted to retrenchment.DB) ¥ 5A. Nayar. 1990 (77) FJR 368 (P&H. 25F of the Act. 25F Sec. Para: 4) . K. Ambala Central Co-op. there is no escape from the conclusion that the concerned workmen were retrenched and that could not have been done without giving them the benefits provided by the relevant provisions of the Act..C.3J) “………. This was not even seriously controverted before us.” (Page: 521.Sec.” (Page: 75. Ambala & Anr.HC) ¥ 5A. that these workmen were served with notices of termination of service. 1973 (44) FJR 523 : 1974 (29) FLR 173 : 1974 I LLN 96 : 1974 LIC 706 : 1974 AIR (SC) 1166 (S.O. which apparently meant that they had become surplus so far as their services were concerned……….492 Termination during probationary period without paying compensation amounts to retrenchment and probationer liable to be reinstated in service..3J) F 5A..HC) v) Temporarily appointed daily wage workman terminated on account of surplusage (S. 1988 I LLJ 297 : 1987 II LLN 656 : 1987 II CLR 297 (Bom.If the reason. In other words. such termination becomes illegal and therefore their reinstatement made by the Labour Court was held valid. upon they being rendered surplus and therefore it attracts the provisions of Sec.C. it does not bring about a cessation of service of the workman and the workman continues to be in service. was that the termination of the services was on account of surplus labour. The P. Mani Ram v. the Labour Court was fully justified in ordering their reinstatement.493 Where the workmen appointed on temporary basis on daily wages were terminated for want of enough work. Para: 9) Note: also refer to the following case Probationer continued to be in service even after his period was over. 2(oo) and where the termination was made without complying with the provisions of Sec. later he was terminated – held bad.DB) u) When termination effected during probationary period without paying compensation (P&H. India Security Press & Ors.It is quite clear from the admission made in the written statement filed before the Industrial Tribunal and the evidence of Shri J. As that was not done. Management of M/s. 1997 II LLJ 519 : 1997 (75) FLR 132 : 1996 (89) FJR 673 : 1996 LLR 615 : 1997 IV LLN 361 : 1997 II CLR 868 (P&H. v. 25F when violated or when required to be complied 2465 and inoperative. Ambala. Willcox Buck well India Ltd.494 Mere notice given to workmen to collect the retrenchment compensation and subsequently sending the money order on expiry of notice does not exonerate the liability of employer. Para: 3) w) When notice to collect retrenchment compensation was sent first and money order later since Sec. Jagannath & Anr.The section………. DB) “The appellant………. The Executive Engineer. 2000 I LLJ 984 : 2000 (84) FLR 619 (Raj.497 Amount due from employee cannot be adjusted against compensation payable u/s. 25F(b) is held invalid even if terms of service provide that service of workman is terminable at any time without notice.496 Payment of Retrenchment Compensation of 15 days wage only for service of 2 years being inadequate retrenchment was held to be illegal. Para: 5) y) When retrenchment compensation of 15 days wage paid for service of 2 years since Sec.DB) ¥ 5A. the offer was held to be bad and retrenchment order was incompetent.” (Page: 78. v. was posted since Sec.. Ltd v.DB) “……….W. Utkal Asbestos Ltd. West Bengal. 25F(a) & 25F(b) since Sec.HC) ¥ 5A.DB) ¥ 5A. T..495 Mere recital in notice of termination that efforts will be made to pay retrenchment compensation would render termination null and void and of no effect. Workman. S.of the Act.499 Notice was served on the retrenched workmen to receive payment following their retrenchment.As far as……….HC) zb) When it was not possible for workmen to be present to receive retrenchment compensation on the same day on which the letter so requiring.D.of the Act. 25F x) When there is mere recital in notice of termination that efforts will be made to pay retrenchment compensation since Sec. Mazdoor Union & Anr.R. & Ors.his retirement. & Anr. The P.S.HC) .DB) “In view of………..HC) ¥ 5A.. The Union of India & Anr. 25F(b) deemed not complied (Bom. v. 25F(a) and 25F(b) was upheld by the Court.” (Page: 729. 1993 III LLJ 726 : 1991 (62) FLR 972 : 1991 II LLN 752 : 1991 II CLR 941 (Ori. As there was very little chance for the workmen to receive the retrenchment letter on the day when it was posted and present themselves for payment. P.full back wages. 25F(a) and 25F(b) since it is imperative and mandatory condition to avoid hardship of employee after Termination hence award of tribunal holding the termination illegal for in non compliance of Sec. Papanna v. Rao & Anr. 1964 I LLJ 525 : 1964 (8) FLR 24 (Cal. Para: 6) z) When Amount due from employee is adjusted against compensation payable u/s. Para: 8) za) When service terminated without retrenchment compensation though terms of employment render service terminable without notice (Karn.” (Page: 728. 25F(b) deemed not complied (Raj.2466 Chapter VA – Lay-Off and Retrenchment Sec. The notice of retrenchment was posted and the retrenched workmen were called for the payment either on the same day or any subsequent date.The aforesaid………. Third Industrial Tribunal. 25F(b) deemed not complied (Cal. 1997 (77) FLR 76 : 1997 LLR 1027 (Bom. National Iron & Steel Company. Madan Singh Rawat v. 25F(b) deemed not complied (Ori.498 Termination of service not preceded by payment of prescribed amount of retrenchment compensation as in Sec.. M/s.W. Para: 7) “……….” (Page: 985.D. Ajmer Central Co-operative Bank & Ors.DB) ¥ 5A. 1981 LIC 1129 (Karn. Ramchander & Anr. 25F. 25G of the Act and therefore the said casual labourers are ordered to be reinstated on 31. 2007 (1) SCC (L&S) 439 (S.3. Thus. Union of India & Ors. the High Court held that the employer has violated Sec. retrenchment is invalid.. v.1. Rajasthan State Road Transport Corporation.1995 with full back wages.LJ 534 : 2006 (5) BCR 275 (Bom. it cannot be said that Sec. 1987 I LLN 90 (All..501 Where the employer a Government in this case appoints casual labourers on 89 days basis but terminates the after but reappoints after a day or two and this cycle lasts as many as 4 spells where after the services of said casual labourers were terminated.HC) ¥ 5A.2001 from 11. High Court held that the Corporation started the process of remitting dues by mailing the bank drafts at 6 p.HC) Girish Kumar Jain v. 25F and thus ordered their re-employment as aforesaid with in a period of one month. 25F had been complied with before or at the time of retrenchment. 25F(b) deemed not complied (Raj. on the date of retrenchment as well as on the next day since Sec.HC) Note: Please see related ratio/s under the above citation in this section Note: also refer to the following cases in the above context Retrenchment compensation – when falls short at the time of retrenchment. 1986 (68) FJR 374 : 1986 II LLN 996 (Raj.500 Tribunal directed reinstatement of workmen with back wages as the Works Manger who passed the retrenchment order was not the appointing authority and therefore. Industrial Tribunal.HC) Compensation – paid was not adequate. State Bank of India v. 25F Sec. termination was set aside. Purna Theatre v. Supreme Court confirmed the High Court order except for the fact that the back wages are reduced to 50% only and held that the employers conduct shows that despite having sufficient work.2J) F 5A. 2006 (110) FLR 394 : 2006 LLR 901 : 2006 (3) Mah..HC) zd) When retrenchment compensation falls short at the time of retrenchment due to non-inclusion of HRA and travelling allowance when paid as part of wages (Raj.Sec..HC) Termination – was held bad due to not non-compliance of Sec.M. 1998 III LLN 499 (Pat. Jaipur. Union of India & Ors. 25F were not complied with. Ramesh Gonekar v. 25F and Sec. State Industrial Court & Ors.m. 1994 (84) FJR 447 : 1994 (69) FLR 31 (Raj. State of West Bengal & Ors. was not competent to pass such order and provisions of Sec. termination and reemployment after each spell of 89 days is aimed at to deprive the workmen the benefit of Sec. terminated with malafide intention to deprive workman of benefits u/s. Member Judge. Jaipur v.C. 1998 III LLJ (Sum) 493 : 1998 (79) FLR 85 : 1997 LIC 997 : 1998 I CLR 912 (Cal.. Thus. on the date of retrenchment for only 20 workmen and for the rest of the 96 workmen on the next day.2J) .HC) ze) When employee who completes 240 days or more even with artificial breaks after 89 days or with intermittent breaks. Uttar Pradesh State Road Transport Corporation v. State of Uttar Pradesh & Ors.C. the retrenchment was illegal. 25F when violated or when required to be complied 2467 zc) When bank drafts carrying retrenchment compensation were remitted at 6 P.HC) Retrenchment Compensation – falls short. Union of India & Ors. 25F (S.. therefore termination was set aside. facts make it……….HC) Termination of workman. 25F “The respondents were appointed against casual labourers but nevertheless they continued in service for four spells and that too their re-appointments were made immediately within a few days of termination on completion of 89 days. 25F and 25G is illegal. who was repeatedly appointed for small periods. We direct the appellants to re-employ the respondents as daily-wagers. Para: 35) “……….2468 Chapter VA – Lay-Off and Retrenchment Sec. We do not find any error or illegality in the decision rendered by the Division Bench. 2(oo)(bb) and violative of Sec. they would have completed 240 days of continuous employment.1995 and now a fairly long period has passed and in the meantime.it is declared………. karnal & Anr. Para: 2) “………. The P.” (Page: 1143. Para: 36) ¥ 5A.504 Termination of service after 89 days and re-employment after one day break and then termination of service on completion of 232 days denotes malafide intention of the employer to deprive workman of benefits u/s. The P. Para: 8) “……….. 25G of the Industrial Disputes Act. we direct the appellants to re-employments to re-employ the respondents with 50% back wages from the date of termination till their re-employment. Pawaskar & Ors.was finally discontinued………. 1997 LLR 352 (P&H.DB) “Petitioner was appointed……….Industrial Disputes Act. the respondents must have been engaged in employment in any other work. Estate Officer. the direction of the High Court for payment of entire salaries and allowances for the period they were out of service was not justified under the circumstances.Only a bona………. Union of India & Ors.1.” (Page: 1127.503 Termination of casual workers completing 240 days of service in one calendar year with artificial breaks of a day or two without complying with Sec..” (Page: 121. Lalji v. Para: 4) Note: also refer to the following case/s in the above context Nar Singh v.HC) .DB) “………. The termination of the respondents was from 11. 2001 II LLJ 120 : 2001 (91) FLR 341 : 2001 III LLN 1139 : 2001 III CLR 77 (P&H. Para: 16) ¥ 5A.malafide one.after reading the………. was held bad. Ram Chandra v.DB) “………. It shows that sufficient work was available with the employer and had there been no termination on completion of 89 days. 25-F………. Haryana Urban Development Authority. 25F and amounts to unfair labour practice and hence matter was remanded. Therefore. Mahindra & Mahindra Ltd.of the services………. v.by the employer………. In that view of the matter the appellants had violated Sec.of the Act……….O..it must be………. Industrial Tribunal Labour Court & Anr. 25F.Admittedly. Bhikku Ram Son of Sh.of Sec.” (Page: 433. The Appellants shall re-employ the respondents within a period of one month……….502 Termination of services of an employee appointed initially for fixed period of 89 days but continued for 3 years with intermittent breaks without any notice. Panipat & Anr.” (Page: 440/441. v. 1996 III LLJ 1126 : 1995 LIC 2448 : 1996 LLR 259 (P&H.. Rohtak.the Labour Court………. Industrial Tribunal-cum-Labour Court.O.O. Digambar G.” (Page: 1143. despite continuity of work was held by Court as not covered by Sec. However. the petitioner………. 1997 I CLR 872 : 1997 LLR 589 (Bom.be set aside……….” (Page: 433. P. 2001 II LLJ 431 : 2001 (90) FLR 55 : 2001 LLR 1034 : 2002 LLR (Sum) 104 : 2002 LIC 1077 (Raj. Para: 4) ¥ 5A. Industrial Tribunal-cum-Labour Court. P.O.12.A.HC) Retrenchment – invalid. Union of India v.his services rendered……….” (Page: 540.DB) “When we………. was terminated before completion of project it was held to be retrenchment and since it was made in non compliance of Sec.P. Valsala K.benefits.T.HC) When workman who is appointed in fixed spells but completing 240 days service in 12 months is terminated.” (Page: 541. P. Tata Consulting Engineers v. C.. 25F when violated or when required to be complied 2469 Termination of daily wager who was in service from 1987 till 19.. 2001 I LLJ 1516 : 2001 I LLN 542 : 2001 LLR 363 (Mad. Ferozepur Central Co-operative Bank Ltd. Kovilpatti v.the services of………. Para: 5) “The only………. Government of A.HC) Termination was held bad as workman was repeatedly appointed for 89 days to avoid compliance of Sec. 2001 II LLJ 787 (Raj. 1985 (67) FJR 367 : 1986 I LLN 204 (P&H. 25F.Sec. Concilliation Officer & Joint commissioner of Labour. Para: 6) .506 Workman who was employed under contract of service for project. 25F Sec... the High Court has set aside the termination on grounds of non-compliance of Sec. & Anr.D.. Jaipur & Anr.” (Page: 788.Industrial. Babu Lal Sharma & Anr. 2002 III CLR 251 : 2002 LIC 2051 (MP.505 The services rendered by an employee under Urban Improvement Trust from which he was transferred to Development Authority have to be taken to compute 240 days and since no reasons were given for excluding the said service and the employee completed more than 240 days of service. Judge. 25F. Bhatinda.G. Para: 2) zg) When workman under contractual service in a project terminated before completion of it in non-compliance of Sec. Rajasthan State Road Transport Corporation v. Nair & Ors. & Anr. Labour Court.DB) “………. Labour Court No. 1997 II LLJ 539 : 1997 (75) FLR 603 : 1997 I LLN 829 : 1996 LIC 2213 : 1997 I CLR 82 (AP. when employee’s services are terminated on the ground of breaks. v.. workmen was deemed to be in continuous service with all consequential benefits.DB) ¥ 5A. Labour Court..1. 25F (AP.HC) zf) When terminated without counting the services rendered by an employee in the previous organisation from which he was transferred (Raj.DB) ¥ 5A.I. v. Ms. with breaks held bad due to violation of Sec.HC) Termination – of a daily wager who completed 240 days. Shantimoy Mandal v. 25F. J.1991 with breaks held bad.Industrial Disputes Act………. 25F. Tirunelveli & Anr.of service benefits………. 1995 II LLJ 222 : 1994 (85) FJR 510 : 1995 (70) FLR 241 : 1995 II LLN 491 (Raj. & Ors. 1998 I LLN 525 : 1998 LLR 66 : 1997 II CLR 1099 (Bom. Management 0-322 Kovilpatti Co-operative Marketing Society.O. he was terminated. 1979 II LLJ 363 : 1979 (55) FJR 216 : 1979 II LLN 341 : 1980 LIC 119 (Pat. 25F. v. 2006 (111) FLR 164 : 2007 I LLN 922 :2006 LIC 2180 : 2006 II CLR 1027 : 2006 LLR 872 (Guj. N.. 1972 II LLJ 568 : 1973 (43) FJR 129 : 1973 (26) FLR 268 : 1973 I LLN 172 : 1972 LIC 1588 (Ker. Chief Mechanical Engineer.” (Page: 575. 1972 II LLJ 462 (Pat. Nagpur & Anr. Labour Court awarded reinstatement since he was periodically engaged on the same post and his nature of work was same.E. Southern Railway & Anr.. Rly. District Panchayat.” (Page: 571. L. he worked for 4 years. High Court upheld the same..respondents case.2470 Chapter VA – Lay-Off and Retrenchment Sec.DB) Mahabir v. Bharuch v.K.S.DB) “………. v.. Para: 13) “Nevertheless……….” (Page: 575.F.DB) Shri Rammoo & etc. D. Piru Kisku & Ors. v. Union of India & Ors. The Zilla Parihsad. Para: 6) “We have………. Krishnan & Ors.for decision. The District Signal Telecommunicatioin Engineer Construction.DB) Malkhan Singh v. 1988 LIC 1509 (Cat. 2004 LIC 2505 : 2004 LLR 957 (Bom. All India Institute of Medical Sciences. which revealed that the work was perennial in nature and he was terminated in violation to Sec. Shankarbhai Jivabhai Patel.unacceptable.509 The workman was engaged as a daily wager. v. 1977 I LLN 549 : 1977 LIC 1236 (Cal. cases.DB) Union of India & Ors. Moreshwar.DB) ¥ 5A. Union of India & Ors. 2000 I LLJ 1323 : 2000 (96) FJR 581 : 2000 (85) FLR 911 : 2000 I LLN 728 : 2000 LIC 853 (P&H. 25F (P&H.” (Page: 573. & Ors. 25F.HC) . 25F zh) When surplus railway employee terminated though as per Indian Railway Establishment Code but in violation of Sec. Para: 10) Note: also refer to the following case/s in the above context Somu Kumar Chatterjee & Ors. 1981 II LLJ 174 : 1981 (42) FLR 401 : 1981 II LLN 670 : 1981 LIC 1633 (Del. v.DB) “We have………. Executive Engineer. Divisional Personnel Officer. 25F (Ker. 25F of the Act was necessary but as the same was not complied with.508 Employee employed for 8 years cannot be held to be employed for a short duration and therefore compliance of Sec. Dy..HC) Note: also refer to the following cases where termination was held bad after longer service periods Sec. Railway Katihar (Purnea) & Ors. reinstatement was awarded.In the case………. Para: 13) “It is……….DB) ¥ 5A. Para: 8) zj) When employee with longer tenure of service terminated when the work is of perennial nature or after a long tenure of service (Guj. 25F violated Termination is bad-two years service.. New Delhi & Anr. N.” (Page: 1325.Act. Mittal.. 25F was imperative.DB) zi) When employee with 8 years of service terminated without compliance of Sec.HC) ¥ 5A. v. s/o Vithobaji Mendhekar & Anr. Thereafter.507 Termination of services of surplus staff made in accordance with Rule 149(1) of the Railway Establishment Code is retrenchment and compliance of Sec. Attar Singh & Ors. Gidderbha Co-operative Marketing-Cum-Processing Society v. A.. held illegal. 2003 (98) FLR 41 (Raj. Industrial Tribunal (V).HC) zk) When correspondent in a newspaper was terminated to avoid financial burden and not for misconduct in non-compliance of Sec..HC) Termination of probationer in violation to Sec.” (Page: 230.Tribunal. 1994 (68) FLR 639 : 1994 I CLR 252 : 1994 LLR 381 : 1994 LLR 788 : 1994 II LLN 111 (Bom. 25F bad. Rajasthan State Road Transport Corporation & Anr. Salem. 25F (MP.our hands. workman completing 2 years of continuous services. 1998 LIC 3401 (Raj. rather………. v. 2003 (98) FLR 473 (All.HC) Termination of employees with several years of service without complying Sec.HC) Termination of workman engaged for continuous work for number of years illegal..HC) Termination illegal. Kukadi Irrigation Project v.HC) Termination of an employee continued for 2 years. Para: 16) Note: also refer to the following case in the above context Termination due to financial difficulties by employer without following Sec. same was set aside and reinstatement was granted.. Para: 9) “Accordingly……….HC) Termination illegal. Salem v. Deputy Secretary.HC) . invalid. violating Sec.” (Page: 229. v. Meerut & Anr. Labour Court & Ors. Trible Area Development Department & Ors.1996 I LLJ 644 : 1995 (87) FJR 41:1995 (71) FLR 370:1995 II LLN 418:1995 LLR 510 (P&H. Commissioner. 25F.Sec. Nav Bharat & Madhya Pradesh Chronicle Group of Newspapers v. Kadhirvel. to avoid the financial burden and not for misconduct hence it was held to be retrenchment and since provisions of Sec.DB) ¥ 5A.retrenchment. was held bad since he rendered 22 years service and ought to be regularized. 25F Sec. Edapadi. Para: 10) “………. Edapadi Municipality. Udaipur & Anr.. 25F. 25F appointed for 3 years allowed to continue beyond that period is illegal. Labour Court. Krishna Sharan Shrivastava & Anr. workman working for long period in non-compliance of Sec.we also………. 25F when violated or when required to be complied 2471 Termination of workman in violation of Sec.O. Para: 12) “To sum up………. Presiding Officer..” (Page: 230. Waman & Anr. 2003 LIC 2789 : 2003 LLR 1031 (Bom. Narendra Joshi & Anr. Rashtriya Mazdoor Sena & Anr. 25F was not complied week by issuing 3 months notice and retrenchment compensation was not paid. in non-compliance of Sec.disputed. 25F. P.. 2003 II LLJ 763 : 2003 (98) FLR 73 : 2003 II LLN 691 : 2003 II CLR 305 (P&H. Labour Court. State of U. State of Punjab & Ors.DB) “We..510 Correspondent in a newspaper was terminated. 25F. v.P. 2004 II LLN 353 (Mad. 1989 II LLN 226 (MP.” (Page: 231. 25F. State Bank of Indore v. Jagtar Singh v. HC) . There will be no order as to costs. 25G (S.set out above. Learned counsel for the appellant has failed to substantiate that no person junior to the respondent had been retained in the Department. he will not be entitled to any back wages. Para: 2) “We have heard learned Counsel for the parties. Employees Union & Ors. his services were terminated and dispute was raised by him. Managing Director.e. Therefore. On reference. 25F zl) When employees in irrigation department of public works of State Government were terminated in non-compliance of section (Guj. 1997 IV LLN 820 : 1998 I LLJ 523 (Raj. v. 25F hence their termination were set aside. the Labour Court allowed the claim of the respondent and granted reinstatement with continuity of service with 50% back wages from the date of demand notice i.W.” (Page: 919/920 Para: 3) zn) When employee who completes 240 days terminated for not accepting certain conditions of service (Raj.” (Page: 533. 1988 I LLJ 524 : 1988 (57) FLR (Sum) 31 : 1987 LIC 89 (Guj. Labour Court found that there was a breach of Sec. Para: 19) zm) When senior was terminated retaining his junior in violation of the principle of ‘last come-first go’ u/s. He was selected and put on probation and continued to work for more than 240 days. 2006 (111) FLR 919 : 2007 I LLJ 8 : 2007 I LLN 120 : 2007 I CLR 550 : 2007 LLR 72 : 2007 (1) SCC (L&S) 211 (S. The appellant shall issue order of appointment of the respondent within one month from the date of receipt of this order. The respondent shall be reinstated but looking into the peculiar facts and circumstances of this case.C. The High Court upheld the order and dismissed the writ filed by the employer. Hence. the Tribunal has found violation of Sections 25G & 25H of the Act. v.DB) ¥ 5A. A dispute under the Industrial Disputes Act. Applications were received for regular appointment and the workman applied for the same.. we find no merit in this appeal and the same is accordingly dismissed.2J) “The respondent was serving as a Beldar in PWD (B&R) and his services were terminated on 25.513 The workman was appointed for one month and continued to work regularly.12. It is a clear finding of the Tribunal that a person like Krishan s/o Dharam Singh who is junior to the respondent is still working with the Management whereas the services of the respondent had been terminated. State of Haryana v.HC) ¥ 5A. He was removed without complying with the provisions of Sec. from 1. Therefore.2000. State of Gujarat & Ors. 25F because he refused to accept certain conditions of service. Aggrieved against that order a writ petition was filed before the High Court and the High Court affirmed the order of the Labour Court. It is also alleged that another person named Mahabir who is also junior to the respondent is still working with the Management.511 Employees in irrigation department of public works of State Government were terminated without complying with provisions of Sec. Hence. This finding of fact has not been controverted by the management and there is no reason to take a different view from the view taken by the Tribunal which was affirmed by the High Court. Labour Court. Dilbagh Singh. the present appeal. The Labour Court ordered his reinstatement with full benefits. It was held that person junior to the respondent is still working whereas the services of the respondent had been terminated.2472 Chapter VA – Lay-Off and Retrenchment Sec.D.2J) F 5A. Bikaner & Ors.1999.512 Workman was working as a Beldar.2..” (Page: 919. 1947 (hereinafter to be referred to as the ‘Act’) was raised and the matter was referred to Labour Court and the Labour Court after hearing both the parties found that there is a breach of Sections 25G and 25H of the Act. The P.C. 25G and 25H of the Act and granted reinstatement with 50% back wages which was affirmed by High Court as well as Supreme Court except back wages as the finding of the fact that persons juniors to the workman were still working was not contravened by the management.DB) “In that………. Sri Ganganagar Sahakari Spinning Mills Ltd. HC) zq) When termination is ostensibly due to closer of one unit since functional integrality exists between the unit closed and other unit (Del. Para: 3) “The Labour Court………. Chavan & Anr. v.516 Dismissing appeal of the management and upholding Labour Courts finding of fact as affirmed by Single Judge that establishment consisting of letter press and offset press was one integrated whole because of unity of ownership.placed before it……….DB) ¥ 5A.Labour Court found……….HC) ¥ 5A.” (Page: 157. 25F was not complied with and also it amounts to punishment for non-compliance with transfer orders and hence disciplinary action against the employee for defying transfer orders was to be taken.” (Page: 158. Raj Hans Press v. Labour Court.HC) ¥ 5A. 1988 I LLN 982 (P&H. Mysore Structurals. Ltd. Bahadur Singh & Ors.of the undertaking……….on record……….The Labour Court………. Para: 14) zr) When workmen terminated for pressing their charter of demands since actuated by victimisation (Karn.HC) “……….in this regard………. and other evidence. Para: 7) “……….” (Page: 158.DB) “………. Para: 29) . Workmen of Mysore Structurals. production. control.Sec.HC) zp) If terminated for disobedience of transfer orders without enquiry since it amounts to punishment (P&H.” (Page: 459. Bombay Leprosy Project v...HC) ¥ 5A. Vishnu B.dismissed the petition……….” (Page: 457.514 An employee working as driver was terminated on the ground that company was taking measures of economy and driver was rendered surplus to its requirement. 25F when violated or when required to be complied 2473 zo) When driver terminated while employer maintains three vehicles and employs a casual driver (Bom. Labour Court ordered reinstatement with 60% back wages. 2002 (94) FLR 789 : 2002 LLR 994 (Bom.unfair labour practice……….we find………. Para: 11) “………. Tribunal on the basis of charter of demands. Ltd.. 1983 I LLN 441 (Karn.the same………. Para: 29) “The finding recorded………. 25F and hence concerned workers were entitled to reinstatement with full back wages and continuity of service. closure of letter press would not mean closure of undertaking and hence termination of services of workmen of letter press was invalid retrenchment due to non compliance with Sec. inter changeability of workmen and location of machines. State of Haryana & Ors.” (Page: 157. Bangalore v. Delhi & Ors. Even High Court upheld the same. & Anr..In the instant………... 25F Sec. 1980 I LLN 155 (Del. It was held that termination was illegal as Sec. came to the conclusion that retrenchments are not proved to be on proper reasons and the same was upheld by High Court.The charter of demands………. hence he was terminated. Employer was still maintaining 3 vehicles and was also employing casual driver on occasion as such the reason for effecting retrenchment does not seem to be genuine.517 The union of workmen challenged the validity of retrenchment as it were actuated by victimization and unfair labour practice and company had failed to adduce evidence to prove otherwise.515 Employee did not comply with the transfer orders on transfer of undertaking. HC) . 25F zs) When some workmen were terminated in view of proposed closure and others are retained (Mad. Fashion Exim India Pvt. Labour Court Jalandhar & Ors.HC) ¥ 5A. McKenzies. Sewak Ram Maternity Hospital v.HC) ¥ 5A. Madras v. Raipur & Anr. Chintamani Ambolkar & Anr. 1960 I LLJ 334 : 1960-61 (18) FJR 7 (Mad.. 1999 II LLJ 81 (P&H. Labour Court.O. P. 2005 (105) FLR 988 : 2005 LLR 624 (Bom..518 Where a few workmen were retained whereas remaining were terminated from services in view of proposed closure without complying with provisions of Sec. which upheld the order of on the ground that before Labour Court workman proved that the relation of employee-employee existed and held that under writ jurisdiction Court could not interfere with award where it was correct. Robert D’Souza v.DB) ¥ 5A. AIR 1982 (SC) 854 and held that even if the management lost confidence. 1987 (55) FLR 93 : 1987 II LLN 573 (MP. Raj Kumar College Karmachari Union v..2474 Chapter VA – Lay-Off and Retrenchment Sec. Rao Saheb Shripatrao Patil v. The High Court held that termination of the services of the remaining workmen was illegal because there was non-compliance of Sec.HC) zt) When terminated without compliance of the section and employer-employee relationship exists (Bom. Balasaheb Desai Sahakari & Ors.522 The contention of the management was that it lost confidence on the workmen because of their act of remaining absent continuously for days together and hence.B.521 The termination of workman in violation of Sec. Ltd. Ltd. 25F on the ground of lack of qualification held bad and the same was held as a case of retrenchment.520 Services of nurses cannot be terminated on the ground of not possessing registration certificate after keeping them on job for a long period of 2 to 12 years and after undergoing training course and hence termination in violation of the section is illegal. 25F was not complied with. 25F. it has to comply with the provisions of Sec.1995 (71) FLR 384 : 1995 LLR 980 (Bom..HC) ¥ 5A.519 The workman was reinstated by Labour Court on the ground that Sec. Raj Kumar College. Southern Railway and another.. their services were terminated. v. 25F of the Act.HC) Note: also refer to the following case Termination-was held bad since no evidence was produced by employer to prove that the workman. 25F. The Executive Engineer. zu) When workmen terminated for not possessing requisite qualification after serving more than two years (P&H. Madras & Anr. R. The High Court relied on the case of L.HC) zv) When terminated on the ground of loss of confidence for remaining absent continuously (MP. Challenging the award the employer moved High Court.DB) ¥ 5A. thus it is retrenchment within the meaning of Sec. N. 25F of Industrial Disputes Act and not contrary to the scheme of Act in keeping with the case SBI v. 25F was not followed. The Labour Court has categorically and rightly held that the services were terminated in violation of provisions of Sec.DB) Note: also refer to he following cases in the above context Termination – held illegal.. for any reason whatsoever’ are the key words. 25F when violated or when required to be complied 2475 zw) When terminated in the absence of proof of appointment for fixed term (Del.. Gobindgarh v.. 2005 LLR 392 (Del. It may also be noted that Section 25F(a) which lays down that no workman who has been in continuous service for not less than . Labour Court. 1977 I LLJ 1 : 1976 (49) FJR 397 : 1976 (33) FLR 257 : 1976 II LLN 479 : 1976 LIC 1766 : 1976 SCC (L&S) 583 : 1977 AIR (SC) 31 : 1976 (4) SCC 222 (S. it is held that their termination Constitutes retrenchment as mandated u/s.C. M/s. Municipal Counsil. Labour Court. Orissa & Ors.. So this case falls within the term termination of services “for any reason whatsoever”. Termination embraces not merely the act of termination by the employer.3J) “Analysing this definition in State Bank of India v. 2(oo) of the Act and would be consistent with the scope and purpose of Sec. v. This decision. 1994 (85) FJR 161 : 1994 (69) FLR 1002 : 1994 LLR 206 (P&H.523 The workman was reinstated by Labour Court as he has completed 240 days service and Sec.3J) F 5A.HC) zx) When terminated on non-renewal of contract of employment (S. 25F Sec. .525 When the contract of employment for the three employees who were appointed for a fixed period of three years were not renewed.. . Quadin through its Executive Officer v. one giving employment and the other ending or limiting it. Vajasoor Ala Rathod.HC) Termination-was held bad since there was no evidence that workman was appointed for a specific project.C.. goes against the contention of the appellant and is conclusive on the main question that arises for consideration in this appeal. 2007 (113) FLR 179 : 2007 I CLR 650 (P&H.. Sundara Money. v. He can do so by writing a composite order. Municipal Committee. A preemptive provision to terminate is struck by the same vice as the post-appointment termination.. Hindustan Steel Ltd. but the fact of termination howsoever produced. 25F of the Act. Gurdaspur & Anr. So the sole question is has the employee’s service been terminated ?. High Court upheld Labour Court’s order since there was no averment that the workman was employed for a specific project or scheme for temporary duration or that the employment came to an end on the expiry of the specified scheme or project. (supra) this Court held : ‘Termination.an employer terminates employment not merely by passing an order as the service runs. Patiala. Rajkot District Panchayat & Anr. Labour Court. if no record of period of employment available. 2005 (106) FLR 930 : 2005 LLR 952 (Guj.HC) ¥ 5A.HC) ¥ 5A. Employer challenged the award contending that workman was employed for a specific period on compassionate ground. Sundara Money and therefore the award reinstating three employees was upheld.. Ram Pal & Anr.. Presiding Officer.. as conceded by the Solicitor General. Whatever the reason. A separate.Sec. Municipal Corporation of Delhi v. 2(oo) of the Act.524 It is held that in the appointment letter though the word “contract basis” is used but it does not stipulate the period of contract and nature of work whether fixed or temporary.. every termination spells retrenchment. subsequent determination is not the sole magnetic pull of the provision. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. Telecom District Engineer. Labour Court & Anr.527 Extra Departmental Branch Post Master was terminated after enquiry without an opportunity of hearing nor was given one month notice nor wages in lieu thereof in compliance of provision of Sec. his services were terminated without observing the due procedure as provided under Section 25–F of the Industrial Disputes Act.HC) Parshuram Yallapa Kotekar v. 25F one year under an employer shall be retrenched by that employer unless he has been given one month’s notice or wages in lieu of such notice. 25F. The Labour Court did not examine any one of those contentions in the manner in which it should have been done. Various contentions were raised on behalf of the parties.bad in law. Ratnagiri & Ors. 2(oo) zy) Termination not proper if employer fails to disclose grounds and nor is it examined by the Labour Court (S.P. A. the High Court also dismissed the same by a cryptic order………. Talwinder Singh v.cannot be sustained.. has a proviso which says that “no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service”. the proviso would have been quite unnecessary it’ retrenchment as denned in Section 2(oo) was intended not to include termination of service by efflux of time in terms of an agreement between the parties.” (Page: 673.when the applicant………. We direct Respondent 2 to appoint the appellant afresh………. Para: 6) “………. Clearly. 25F violated Casual worker rendered 240 days of continuous service entitled to regularization Management of Tungabhadra Steel Products Ltd.from this date………. State Tourism Development Corporation v.2J) F 5A.C.2476 Chapter VA – Lay-Off and Retrenchment Sec. Supreme Court directed his appointment a fresh in similar employment which he had earlier.C.The termination of………. 2000 (96) FJR 278 : 2000 (84) FLR 565 : 2000 (84) FLR (Sum) 7 (Karn. 25F.. This is one more reason why it must be held that the Labour Court was right in taking the view that the respondents were retrenched contrary to the provisions of Section 25F. and hence Labour Court’s award as affirmed by High Court was set aside.HC) M.” (Page: 1050. termination of employees including daily wagers. In the circumstances the award made by the Labour Court. as affirmed by the High Court needs to be set aside. Union of India & Ors.O. Sita Bai Kushwaha. He raised a dispute before the Labour Court. Para: 1) “There is no material to show on what ground his services have been terminated. 2004 II LLJ 1050 : 2004 IV LLN 50 : 2003 (10) SCC 283 (S.” (Page: 1051. casual employees or probationers or ad hoc held illegal if he completed 240 days and Sec..” (Page: 672.. Para: 2) Note: This is prior to introduction of Clause (bb) to Sec. 2002 (94) FLR 425 : 2002 IV LLN 714 : 2002 LLR 566 (MP. It was held that such termination was bad in law. Para: 7) Note: In the following cases.B.526 Since there was no material available to show on what grounds workman’s services were terminated by employer and also Labour Court did not examine any of the contentions of the employee including that the workman had completed 240 days of service at the time of his termination while dismissing the dispute raised by employee that his termination was in violation of Sec..we hold that……….HC) . it dismissed the claim made by the appellant. Patil & Anr. Smt. P. 1989 LIC 670 (CAT) “……….2J) “The grievance of the appellant in this case is that though he had put in 240 days of service. However.” (Page: 3. 2002 (93) FLR 1181 : 2002 II CLR 78 : 2002 LLR 825 (Bom. Asoke Kumar Sinha v. Pasra: 5) “……….” (Page: 673. v. When the matter was carried further by way of a writ petition. Para: 4) zz) When Extra Departmental Branch Post Master was terminated after enquiry without an opportunity of hearing (CAT) ¥ 5A. Kishor D. Bhopal v. does not amount to retrenchment.D. Smt.1998 LIC 1078 : 1998 LLR 586 (Raj. Naresh Kumar & Anr. Management of Sericulture Department. Managing Director. parasar & Anr. v.HC) M. 2002 (94) FLR 283 : 2002 II CLR 1040 : 2002 LIC 1915 (Raj.P. Garhi & Anr.. 1999 I LLJ 973 : 1998 LLR 886 (Guj. Rajya Van Vikas Nigam Limited. Ltd. Nagappa Hanumanthappa Lamani v.HC) Termination – Without complying Sec. Kherthal & Anr. Girdhar Gopal Saini v. Municipal Corporation.HC) Nirmal Kumar Sharma v. Kalia & Anr. 1998 LIC 874 : 1998 LLR 583 (Raj. held valid. 2005 LLR 324 (MP. Karnatak State Road Transport Corporation. if completed 240 days of service Sec.3J) Reinstatement – of daily wager who worked for 240 days. 2002 II LLJ 607 : 2002 (101) FJR 442 : 2002 (93) FLR 1050 : 2002 LLR (Sum) 955 (Guj. Ratnakar v. 2003 (96) FLR 90 : 2003 I LLN 740 : 2003 LIC 1951 (MP.. if casual employee has completed 240 days of service... Shri Q. 1996 (74) FLR 1903 (S. 25F. Executive Engineer.HC) .HC) Termination of casual labour working for more than 240 days.C. Labour Court.Sec. Balaghat v. State of Haryana v..HC) Sec. 2002 (94) FLR 425 : 2002 IV LLN 714 : 2002 LLR 566 (MP. reinstatement with back wages follows. continuity with full back-wages.HC) M. 2001 III LLN 1144 (P&H. no notice and compensation was given.HC) Causal emolyee. Gujarat State Land & Development Corpn.HC) Maheshkumar Jivram Chauhan & Anr.HC) Sec. 25F..HC) Sunil Bhalchandra Jani v. 25F. Text Book Corporation. Hyderabad & Anr. 25F Sec.HC) Termination – on completing 240 days in a calendar year is in contravention of Sec. 25F must mandatorily be followed. Text Book Corp. non-compliance Sec. 2002 (94) FLR 905 : 2002 II LLN 692 : 2002 II CLR 1043 : 2002 LLR 685 : 2002 LIC 59 (Sum) : 2003 (99) FLR 25 (Sum) (Raj. M. S. Parasar v. 25F valid. 2002 III CLR 694 (Guj. 2002 (101) FJR 581 : 2002 (94) FLR 1183 : 2002 III LLN 1026 : 2002 III CLR 219 : 2002 III CLR 322 : 2002 LLR 1145 (Karn. 25F when violated or when required to be complied 2477 Daily Wager – If completed 240 days of service in a year cannot be terminated in violation of Sec. 2002 (94) FLR 300 : 2002 LLR 957 (AP.P. And S. Rathod. 1996 II LLN 1130 : 1996 II CLR 189 (Guj. held illegal. 25F – must be followed. State of Rajasthan v. Kutch District Panchayat Executive Engineer v. K.HC) Labour Court – Justified in granting reinstatement with back-wages in absence of any rebuttal evidence Commissioner. Ram Kumar & Anr. Kanhaiya Lal & Ors. Industrial Tribunal & Ors. Qureshi English Coaching Class & Ors. Madhya Pradesh State Tourism Development Corporation v. S. 2003 (96) FLR 877 : 2002 LIC 3329 : 2003 LLR 154 (Raj.M. H.HC) Termination – workman completing 240 days. Municipal Board. Sita Bai Kushwaha. Prantij Municipal Borough & Ors.HC) Termination – u/s. workman worked for less than 240 days. invalid as employee completed 240 days of continuous service.K. daily wage employee worked for 240 days. Varu.... 25F – violated.P. v. & Anr. 25F. State of Rajasthan v. Hyderabad v. v. Sompura Dharmendra Hathi c/o.. Gujarat Electricity Board.. State of Maharashtra & Ors. Labour Court.HC) . mere delay in reaching Court. Rajya Van Vikas Nigam Limited. Bank of Baroda v.P.. 2003 LLR 916 (Guj. Labour Court. Andravadan Ambalal Soni. also employer had not terminated his services.M. Municipal Council. P. Municipal Copo of Delhi v.HC) Termination – illegal.HC) Non-compliance of Sec. Central Government Industrial Tribunal & Anr. 2002 (95) FLR 533 (All. Jai Veer & Anr. 25F 480 days. not entitled to any benefits u/s. strict rules of evidence are not applicable to the proceedings before Labour Court and only rules of natural justice are to be followed.HC) Retrenchment – valid. on account of non-compliance of Sec. 2003 III LLJ 198 : 2004 (106) FJR 509 : 2003 (98) FLR 385 (Raj. Salem & Anr.. amounts to retrenchment. does not amount to retrenchment. Gujarat State Construction Corporation v. 2002 I CLR 678 (P&H. Thilagam & Ors. v. 25F. workman worked for more than 240 days in the preceding year. G.. Rajendra Rathor.. on account of non-compliance of Sec. Dineshbhai M. Iqbal Singh & Anr. Shahpura v.O.HC) Termination – illegal. 2003 LLR 556 (MP. Shashikant Govind Malgaonkar v. Board v. 2003 (96) FLR 90 : 2003 I LLN 740 : 2003 LIC 1951 (MP. Vellore & Anr.. Islam v. 25F. workman completed 240 days but not in the preceding year. State of Madhya Pradesh through Executive Engineer v. State of Punjab & Ors.HC) Termination – valid.HC) Retrenchment – invalid.. 2002 (93) FLR 518 : 2002 I CLR 876 : 2002 LLR 552 (Mad. 25F. Labour Court.. 2002 (95) FLR 624 : 2002 III LLN 1099 (Mad. 25F. 25F. 2003 (98) FLR 20 : 2004 LIC 273 : 2003 II LLN 1023 : 2003 II CLR 342 (Bom. worker seeking full wages succeeded in proving that he had completed continuous service of more than 240 days in a year. workman worked for more than 240 days in a calendar.. workman was an absentee who did not come to join the job.HC) Gujarat Water Supply & Sewg. M. on account of non-compliance of Sec. 25F. 2003 II CLR 886 (Del. employee had worked for more than 240 days he is entitled to a show cause notice and compliance of the provisions of Sec. workman failing to prove that he has worked for 240 days of continuous service in a calendar year. 2002 (94) FLR 200 : 2002 IV LLN 708 : 2002 LLR 565 (MP. 25F is a must.HC) Termination – illegal. amounts to retrenchment. P. 25F of the Act. 2005 LIC 2353 (Guj.O. on account of non-compliance of Sec. not completed 240 days. cannot deny relief to workman u/s. R. 25F. Qureshi English Coaching Class & Ors. Modh. Agra & Ors. amounts to retrenchment. The P. Balaghat v. 2003 (96) FLR 301 : 2003 LIC 403 : 2003 I CLR 547 : 2003 LLR 236 (All. 25F.HC) Retrenchment – violated. v.O. Regional Manager. reinstatement with continuity of services must be allowed.O.O. yet compliance of Sec. Shri Q. 25F must be followed. 25F.HC) Termination – illegal.2478 Chapter VA – Lay-Off and Retrenchment Sec. Kanpur & Anr. P. non-compliance of Sec.. amounts to retrenchment. Solanki.HC) Termination – illegal.HC) Termination – valid. Nirmal Kumar Jain v. on completion of 240 days provisions of Sec. Jitendra S/o.. chowkidar working in service of State Government for 240 continuous days.. Poori @ Bhoopathi v. amounts to retrenchment. Central Government Industrial Tribunal-cum-Labour Court. P. State Labour Court & Anr.. worked for 240 days but job was abandoned. hence not entitled to the benefits of Sec. MCD v. 2002 (95) FLR 401 : 2002 II LLN 667 : 2002 LLR 371 : 2002 LIC 227 (P&H.HC) Termination – illegal.HC) Reinstatement and back wages – continuous service of 240 days in a calander year. 2003 (96) FLR 9 : 2003 LLR 9 (MP. amounts to retrenchment. Morena v. on account of non-compliance of Sec. 1995 I LLJ 287 : 1995 (86) FJR 723 : 1995 I CLR 539 : 1994 LLR 857 (MP. High Court in writ petition – no jurisdiction to re-appreciate evidence. 25F invalid. amounts to retrenchment. & Ors. Navsari District Panchayat & Anr. Vinod Singh Rathur & Ors. amounts to retrenchment. Bhubaneshwar & Anr. amounts to retrenchment.. 2003 (96) FLR 603 : 2003 I LLN 619 : 2003 LIC 8 (Raj. 25F.M.. on account of non-compliance of Sec. 2001 III LLJ 689 : 2000 (87) FLR 228 : 2000 III CLR 113 (Bom. Power Plant v. employer’s contention of employment being temporary not supported by evidence. 2004 I LLJ 533 : 2003 IV LLN 1017 : 2004 LLR 62 : 2003 (99) FLR 1209 (Del.HC) Termination – illegal. P. 2003 LIC 665 (Guj.Sec. Kalyan Singh S/o. Lekh Ram & Anr. State and Others v.O & Ors.. Makwana Dhirajlal Dahyalal. claim of employers that the wokman was appointed against Jawahar Yojana Scheme not supported by evidence. Executive Engineer. Ram Prakash Tiwari & Anr. amounts to retrenchment. Bhopal Singh. 2003 III LLJ 338 : 2003 (97) FLR 566 : 2003 III LLN 391 : 2003 LLR 489 (MP. workman working for 240 continuous days in a calendar year. if workman working for more than 240 days in a calendar year.. when workman has completed 240 days of continuous service in a calendar year. P. v. Maan Singh Thakur & Anr.. workman working for more than 240 days. as the employee had completed 240 days of continuous services. Ram Chandra & Anr.HC) Termination – illegal..HC) Termination – illegal.HC) Smt.. v. Hemalata Sahoo v. 25F. employer’s contention of employment being temporary not supported by evidence.HC) Termination – illegal.H. Presiding Officer. 25F not followed.O. 2003 (96) FLR 1144 : 2003 III LLN 492 : 2003 LLR 5494 : 2003 LLR 468 (Raj. v. workman working for 240 continuous days in a calendar year. Labour Court. after completion of continuous service of 240 days.. 2005 (106) FLR 732 : 2005 LLR 993 (Ori. Presiding Officer. P. telephone v.. Sachiv.O.HC) Government Nehru Degree College Sabalgarh Dist.. 1979 (38) FLR 287 : 1979 LIC 255 (Ker. Dvn. 2003 I LLN 1071 : 2003 LIC 1088 (Guj. Executive Engineer. State of Madhya Pradesh & Ors. Ashok Kumar Verma & Ors. 25F. P. Anjad (Barwani) v. on account of non-compliance of Sec. amounts to retrenchment. State of Madhya Pradesh through Conservator of Forest & Ors.HC) .HC) Shri Pal S/o Chander Bhan v.HC) Termination – illegal. 25F. Junagadh v. State of Rajasthan v.1 & Anr.HC) Reinstatement and back wages – continuous service of 240 days in a calander year.HC) Termination – illegal. 2003 I LLN 135 : 2002 LLR 1093 (MP. 2004 (102) FLR 1122 (Ori. on account of non-compliance of Sec..HC) Termination void ab initio as workman had completed 240 days and Sec. v. Management of Calcutta. Executive Engineer. Labour Court.. Industrial-cum-Labour Court & Anr. Alleppey & Anr.. Gujarat Water Supply & Severage Board. 25F Sec. Krishi Upaj Samiti. Sumanbhai Morarbhai Patel & Anr.HC) John Fernanez & Anr. 25F when violated or when required to be complied 2479 Retrenchment – u/s. proof of 240 days of continuous service adduced by employee. More v. 25F. P. on account of non-compliance of Sec. 2003 III CLR 665 (Cal. Central Government Industrial Tribunal No.. 2002 (95) FLR (Sum) 20 : 2002 LIC 1923 : 2002 II CLR 512 : 2002 LLR 529 : 2002 (95) FLR 9 (Del. State & Ors. Market Committee Bhiwanigarh & Ors. Nagar Palika. Digambar G. 1996 I LLJ 533 : 1995 (70) FLR 1086 : 1995 I LLN 1165 : 1995 I CLR 942 : 1995 LLR 777 (Bom. 1999 (83) FLR 224 (Raj.HC) Predyumn Nath Pandey v.HC) Jaipur Development Authority v. 1998 III LLJ (Sum) 333 : 1995 (71) FLR 405 : 1995 LLR 1018 (MP. v. 1979 LIC 831 (All.1998 LIC 874 : 1998 LLR 583 (Raj. v. Pawaskar & Ors. v.W... Vidisha v. v.1993 LLR 474 (Raj.O..HC) Executive Engineer. Savjibhai Trikambhai Kansagra. The Administrator.. Halvad Nagarpalika & Ors. 1993 (67) FLR 345 (Raj. Executive Officer. The Administrator. Jaipur IInd & Anr. Labour Court. Om Prakash Sharma & Ors. Ram Kumar & Anr.HC) M.HC) Executive Engineer. terminated without complying Sec. Kalia & Anr. 1998 II LLJ 555 : 1998 I LLN 629 : 1998 LIC 1198 : 1998 LLR 218 (MP. 1998 (92) FJR 133 : 1997 III LLN 666 : 1997 LIC 2254 (P&H.& Anr. Vithalbhai Gambhilrbhai Bariya. Union of India & Ors. C. Bodh Raj S/o Sunder Das & Anr. Agra.. Agra. 1997 IV LLN 820 : 1998 I LLJ 523 (Raj. of Delhi & Anr.HC) Umesh Saxena v. 1993 (66) FLR 566 : 1993 I LLN 809 : 1993 LLR 118 (All. Garhi & Anr.HC) Sanjay Kumar Jain v. 25F Termination illegal..P.HC) State Bank of India v. Agra. Suresh Chand. 1997 I CLR 872 : 1997 LLR 589 (Bom. 1993 (66) FLR 566 : 1993 I LLN 809 : 1993 LLR 118 (All. 1996 (88) FJR 431 : 1996 (73) FLR 1187 (P&H. of Delhi & Anr..HC) Sawai Madhopur & Tonk Dugdhutpadak Sahkari Sangh Ltd. Labour Court.. Labour Court.O.. Central Bank of India v.& Ors. Officer-in-charge. Officer-in-charge.O.HC) Viney Kumar Majoo v. Labour Court.HC) The State of Punjab through Exective Engineer Central Works Division. 1987 I LLJ 85:1987 II LLN 118 (Del. 2003 (96) FLR 268 : s2002 III CLR 838 : 2002 LIC 2659 (Guj.HC) Workman of Municipal Corpn. Legal Heirs of Bhagwanbhai Khodabhai Algotar & Anr.. P. Nagar Palika. 2000 (85) FLR 102 (Raj. Narmada Yojna & Anr. Management of Municipal Corpn. P... Labour Court & Anr. 1995 LLR 518 (P&H.. Fatehpur Sikri. 2002 III LLJ 223 : 2002 (94) FLR 633 : 2002 III CLR 427 (Pat.. Pathankot v.2480 Chapter VA – Lay-Off and Retrenchment Sec. Agra. Hariram & Anr. Nagar Palika.HC) Madan Singh Shekhawat v.HC) Shri Ram Deen v. 1994 (68) FLR (Sum) 33 : 1994 II LLJ 474 : 1993 I CLR 929 (Raj. State of Rajasthan & Ors.1998 LIC 1078 : 1998 LLR 586 (Raj.HC) Goutam Chatterjee v.. State of Rajasthan v. Muzahid Hussain & Anr.. Sikar Central Co-operative Bank Ltd. Bikaner & Ors. Fatehpur Sikri. v. if 240 days completed on re-employment and Sec. Agra.HC) Medical Officer. v. National Thermal Power Corporation Ltd. Fatehpur Sikri. 25F. 1968 II LLJ 398 : 1970 (37) FJR 22 : 1968 LIC 1180 (Raj. Amritsar.. State of Rajasthan..HC) Mahindra & Mahindra Ltd. Agra. Perfect Oil Seals & Irp & Ors. 2001 (89) FLR (Sum) 15 (Guj.HC) Umesh Saxena v. 2001 (91) FLR 1042 (Raj. State of Rajasthan & Ors. 2000 (87) FLR 750 (MP.. Water Works Engineer..HC) Part-time Employee – Worked for 240 days.HC) Gujarat Water Resources Development Corporation Ltd. Agra. 2001 II LLJ 282 : 2001 (89) FLR 181 : 2001 III LLN 1021 : 2001 I CLR 781 : 2001 LLR 431 (Cal. Nagar palika. 2003 (96) FLR 317 (Uttar. illegal..HC) State of U. Electricity Board. v. 25F not complied. Executive Officer.P. 2003 II LLJ 234 : 2003 (96) FLR 842 : 2003 II LLN 108 : 2003 II CLR 437 : 2003 LLR 189 (Pat.. Fatehpur Sikri. Fatehpur Sikri. Union of India & Ors.HC) Shri Pal Singh v. Fatehpur Sikri. Agra. Nagar Palika. Alexandar Yesudas Maikel v.. 2001 (88) FLR 818 (Guj. District Health Centre & Anr.HC) Krishi Upaj Mandi Samiti Katghora v. Labour Court. v.HC) .HC) Managing Director.P.HC) Khadim Ali v. v. P.HC) Kanhaiya Lal v.. Water Works Engineer. Vadodara. v.HC) Norton Engineering Works v..O... State of West Bangal & Ors. Nagar Palika. 2001 (91) FLR 785 (Guj.HC) Vinod Kumar v.HC) Zonal Manager.HC) Ram Swaroop Sharma v. Life Insurance Corporation of India & Ors. Nagar palika.. P.HC) Rameshbhai Nagarbhai Parmar & Anr. 2002 (92) FLR 811 : 2002 (94) FLR 151 : 2002 LLR 382 (Raj. Sri Ganganagar Sahakari Spinning Mills Ltd. Aron through the Chief Municipal Officer. Jagtap.. 2002 II LLN 311 (Mad.HC) Retrenchment – includes – termination of services of a pump assistant on ad hoc basis who has completed 240 days of service. First Additional Labour Court.. Sita Bai Kushwaha. Chauhan v. v.. 2001 III LLJ 833 : 2000 III LLJ 644 : 2001 (98) FJR 27 : 1999 IV LLN 383 : 1999 LIC 3450 (Mad. Haryana. Dhule & Ors.P. 25F when violated or when required to be complied 2481 Chief Engineer. Tirvallur Municipality. The District Foood & Supplies Controller.O. of Delhi & Anr. 2006 (110) FLR 265 : 2006 (2) BCR 873 (Bom. Rajendra Hiraman Khairnar. Dean.D.HC) Food Corporation of India v. 1997 (76) FLR 508 : 1997 II LLN 942 : 1997 I CLR 948 : 1997 LLR 582 (Guj. 2001 III LLJ 959 (Gau. Smt. Agra. Gramya Marg Vikas Yojna Vibhag. 1995 I LLJ 323 : 1994 (85) FJR 340 : 1995 (70) FLR 113 : 1994 LLR 528 (Ker.P.HC) Madhya Pradesh State Tourism Development Corporation v.HC) Mansukhbhai Jivabhai & Ors. Agra. Erode. Executive Officer.HC) Rajendraprasad Shanklal Purohit v. Workmen of Municipal Corp. v. Agra. Indian Employees Union. Salem & Ors. Chennai. v.HC) Zilla Parishad. Chief Conservator of Forests & Ors.K. Agra. Housing Board. Ratni. 25F Sec. & Anr.HC) Administrative Officer. J. Water Works Engineer. Alapuzha & Anr. Sudhakaar D... 2004 (106) FJR 613 : 2005 I LLN 384 (Raj. Nagar Palika.O. Labour Court. Fatehpur Sikri. Mohan E. & Ors. 25F was held bad.J. Mgnt. Officer-in-charge. Vijayakumari WITH R...HC) Termination – of probationer in violation of Sec. Kiritbhai Somabhai Bariya c/o. when employee has completed 240 days of service. v. 1994 III LLJ (Sum) 1001 : 1986 (52) FLR 380 : 1986 I CLR 172 (Bom..HC) Standard Charted Bank. Chhagan Lal & Anr. v. v. District Panchayat. Lucknow v. v.. & Management of Institute of Road Transport & Tenchology (represented by its Principal). 2001 III LLJ 829 (Guj. 2002 III LLJ 984 : 2003 (102) FJR 903 : 2002 LIC (Sum) 56 (Ker. Nagar Palika.. P. v. The Administrator. Of Municipal Corp. Block Development Officer & Anr. Fatehpur Sikri. 2004 II LLN 927 (Bom. 2005 LLR 717 (Raj.HC) Ghansham v. Nagar palika.HC) The termination of workman in contravention to Sec.. Khanvilkar & Anr. Ramesh. Irrigation Department. Central Government Labour Tribunal. P.. v.. P.HC) Senior Divisional Mechanical Engineer. 2002 (94) FLR 425 : 2002 IV LLN 714 : 2002 LLR 566 (MP. Indore & Ors. 2006 (108) FLR 401 : 2006 LIC 1814 (MP. Executive Engineer. 25F was set aside by Labour Court and the same was upheld by High Court on the ground that workman completed 240 days service.HC) . of Delhi & Anr. Ravichandramoorthy & Ors...HC) Indian Overseas Bank v. 2000 I LLJ 459 : 1999 LIC 2193 (J&K. Kumaran v. 1994 II LLN 663 (P&H. 1996 I LLJ 637 (P&H.. 1986 (53) FLR 223 (Del. P. v. since he rendered 240 days service. Bhavnagar Mahanagarpalika.HC) C.O. Sivakumar & Ors.. Ltd. 1993 (66) FLR 566 : 1993 I LLN 809 : 1993 LLR 118 (All. & Ors. Fatehpur Sikri. 2006 II LLJ 1079 : 2006 (109) FLR 770 : 2006 I CLR 1096 (Guj. through D.HC) Commissioner. Municipal School Board & Ors. Industrial Tribunal-cum-Labour Court & Anr. 2004 (103) FLR 411 (All. 2002 III CLR 439 : 2002 LIC 3214 (Guj.HC) Executive Engineer M. v. Labour Court. Northern Railway.HC) R.HC) State of Rajasthan v.HC) Bharat Pump & Compressors Ltd.O. Idukki Jilla Motor Mazdoor Sangh (BMS) & Anr. 2003 I LLJ 729 : 2003 (96) FLR 459 : 2002 IV LLN 465 (Mad. Dave v.HC) State of Gujarat v. Group of Hospitals & Ors.HC) Termination – is invalid. & Anr. 1992 LIC 1586 (All. 1995 II LLJ 565 : 1995 (70) FLR 64 : 1994 II CLR 995 : 1995 LLR 183 (Bom. P.Sec. Ranchhodji C.HC) Rajwant Singh Rewat v.HC) Shri Kishore B. State of U. P. Umesh Saxena v.O. Smt.HC) R.O. Tiruvallur v.. & Anr. Ferozepur & Ors. Industrial Tribunal.O. Palanpur & Anr. & Ors. 25F.” (Page: 502. Irrigation Division. Garg v. Para: 4) “………. 2004 II LLN 501 (P&H. The P. Municipal Council. & Anr.. employer-employee relationship was still in existance and the Labour Court has erred in refusing reinstatement.. 2004 (106) FJR 849 2004 (101) FLR 1133 : 2004 II LLN 928 : 2004 II CLR 677 (Bom. 1994 (68) FLR (Sum) 33 : 1994 II LLJ 474 : 1993 I CLR 929 (Raj. Jaipur Development Authority & Anr... 2004 III LLN 814 (Bom.. Mahesh Kumar & Anr.HC) VIII. 25F. v. Kanpur Electricity Supply Co. Hence the order of the Single Judge amending the award to this effect is proper. Rewa f& Ors. Bank. Chief Municiipal Officer.HC) Benefit – of Sec.P. 25F. Eastern Coal Field Ltd. 25F is available to workman who rendered 240 days service.P. 25F (Raj. Management of M/s. ECF Ltd. R. Dave & Anr. Bhimrao Shioram Khobragade.and it therefore……….HC) Sec. 2006 (110) FLR 1207 : 2006 III CLR 448 : 2007 I LLJ 142 (Raj. v.HC) Termination of two employees’ who had completed 240 days of service in 12 calendar month-Contravention of Sec. v. 2003 (96) FLR 665 (Jhar.2482 Chapter VA – Lay-Off and Retrenchment Sec. 2007 (112) FLR 369 (All. Labour Court. when employee has completed 240 days of services. how he was paid and recruited is not relevant. v.it’s award. Labour Court. cannot be terminated in violation to Sec.retrenchment………. Employers.. M. Executive Engineer & Ors. Bhilwars v.DB) When workman in an irrigation project terminated though his name is born on two muster rolls if he completes 240 days under both the muster rolls.DB) “We have………. 1998 III LLJ 655 : 1995 I LLN 1112 : 1994 II CLR 708 (MP.. IV Kanpur & Anr...” (Page: 502. Gondia & Ors. Effect of violation of Sec. 25F a) Employer-employee relationship exists when retrenchment is bad due to non-compliance of Sec. State of Haryana & Ors. Kanhaiya Lal v. Para: 4) . 25F was held bad as workman completed 240 days service. Govindgarh. Udaipur Mineral Development Syndicate Pvt. v. 25F though appointed on non-sanctioned post. 1975 II LLJ 499 : 1975 II LLN 210 : 1975 LIC 1556 (Raj. 25F Termination – is invalid.O. Nirsa Area of M/s. Workmen. Mohindergarh Central Co-op.503.DB) If terminated when the total service becomes 240 days after adding Sundays and holidays in a year. Bajaj Electricals Ltd. Mohindergarh v.. 25F – contravened when workman terminated for non-compliance of Sec..DB) ¥ 5A. Presiding Officer. State of Rajasthan & Ors. Janba Dupare. Ltd. Ltd. Maroti S/o. Executive Engineer..HC) Probationer – if rendered 240 days service. 2007 II LLN 807 : 2007 I CLR 555 : 2007 LLR 418 (Bom.HC) Termination – without complying with Sec. 2006 (108) FLR 814 : 2006 III LLN 207 : 2006 LLR 764 (All.HC) Prakash Budhaji Jadhav v.. Ltd. Rewa v.528 The retrenchment of the workman being invalid due to non–compliance of Sec. Indian Oil Corporation Ltd.HC) Termination – illegal – when probationer worked more than 12 months – confirmed as per Model Standing Order. DB) “Admittedly in the……….” (Page: 215.529 Termination of services of workman being in violation of Sec. N.” (Page: 238. 1987 II LLJ 237 : 1987 I LLN 517 (AP. Shri Adaishwar Lal v.DB) “Therefore………. v.533 When an order of retrenchment is passed without paying retrenchment compensation as provided in Sec..Act. Delhi & Ors.” (Page: 214/215.fail. Satyendra Singh Rathore v. since compliance of Sec.. Krishna District Cooperative Marketing Society Ltd. in the instant case. 25F of the Act is a condition precedent to the termination of service. Delhi Cantonment Baord v. Remedies for violation of the section a) Workman can elect his remedy either by challenging retrenchment or claiming retrenchment compensation by accepting retrenchment (Del. Para: 6) “The amount………. 25F. 1970 LIC 936 (Del.532 Sec. 25F of the Act has to be complied with if the workman has put in 240 days of service in the year prior to the date of termination of service.powers.531 Non-compliance of Sec. 25F and 25G of the Industrial Disputes Act and hence retrenchment is set aside and employer is directed to comply with these provisions. Elpro International Ltd...V.fail. Para: 7) “So far………. K. termination of service of such workmen was illegal. 1989 II LLJ 289 : 1989 (58) FLR 507 : 1989 II LLN 272 : 1989 I CLR 806 (Raj. it is optional for the concerned workman either to challenge the order of retrenchment as invalid and inoperative and claim reinstatement and consequential reliefs or to accept the fact of retrenchment and claim retrenchment compensation computed in accordance with the provision in Clause (b) of Sec. Jaipur. 2006 LIC 1140 : 2006 LLR 835 : 2006 III LLJ 752 (Del. v. Para: 8) ¥ 5A. Central Government Industrial Tribunal & Ors. Para: 9) ¥ 5A. Purnachandra Rao & Ors. Vijayawada & Ors.Sec. 25F is held to be ab initio void. Para: 5) ¥ 5A. Rajasthan Rajya Pathya Pustak Mandal.HC) ¥ 5A. 25F renders the termination void and reinstatement with back wages is ordered. Joshi & Ors.DB) ¥ 5A.DB) IX.” (Page: 293.” (Page: 214.DB) “In fact……….inoperative.530 The Appellate Authority has u/s.HC) . 1987 II LLJ 210 : 1987 (54) FLR 428 : 1987 I LLN 695 : 1987 LIC 1468 : 1987 I CLR 266 (Bom.. 25F. The Labour Court.B. 41 of the Andhra Pradesh Shops and Establishments Act has the jurisdiction to determine whether retrenchment of employees was in accordance with Sec. Hence. 25F Remedies for violation of the section 2483 b) Termination becomes void (Bom. ” (Page: 24.P.” (Page: 1156.. Ltd.DB) “Since the petitioner……….petition. Howrah Zila Kharkhana mazdoor Congress. 1991 II LLJ 347 : 1989 (59) FLR 620 : 1989 LIC 2276 : 1990 I LLN 334 : 1990 I CLR 159 (All. Para: 5) ¥ 5A.a writ petition.537 Court.” (Page: 348. & Ors. 1989 (59) FLR 244 (All.” (Page: 1158. 1956 I LLJ 679 (LAT) c) Proper forum is under Industrial Disputes Act but not under writ jurisdiction (All. Midnapore Municipality v. Para: 4) “Whether a writ………. Uttar Pradesh Scheduled Caste Finance & Development Corpn.has yet arisen.” (Page: 247. Para: 11) “Although Mr.534 The right of workman to receive compensation is a statutory right conferred u/s. Banda & Ors.” (Page: 1158. Para: 25) . K. 1992 (64) FLR 20 (All.DB) “Regarding………. 25F. malafide etc. proceedings under Industrial Dispute Act for remedy are maintainable Nathaniel Masih v. 25F.Labour Court. exercising discretion. Dutta………. 25F the proper forum is Labour Wajeeh Ullah v. High Court refused to entertain writ petition filed by worker on the ground that effective remedy under Industrial Disputes Act was available where Industrial Court could consider whether termination in question was camouflage.speedy and appropriate.536 If termination is in violation of principle of natural justice and in non-compliance of provisions of Sec. Prabir Kumar Nag & Ors. This right became rested in the workmen on fulfilment of the conditions laid down u/s.. Uptron India Ltd.2484 Chapter VA – Lay-Off and Retrenchment Sec. Therefore held that the dues due to them should be paid to their heirs-at-law.DB) ¥ 5A.. Dass and Co Ltd v..538 Remedy for temporary workmen appointed on contract basis apprehending their termination without compliance with Sec. Para: 24) “A disputed question………. Rakesh Kumar v. Para: 5) ¥ 5A. 226.535 Where workman alleged that he was illegally retrenched due to contravention of Sec. In case of termination of services in violation of Sec. 2001 II LLJ 1153 : 2001 LIC 1946 (Cal. & Ors. 25F and the case of the employer was that the termination was automatic due to efflux of time. The said right having been descended upon the heirs-at-law of the said workmen.” (Page: 247.DB) “The writ petitioners………. which cannot be possibly decided u/Art. 25F.DB) “So far as………. 25F is not a writ application but to raise an industrial disputes specially when no cause of action has yet arisen. they are entitled to enforce the claim to recover the amount from the company and this right cannot be easily dismissed on the ground that the workmen entitled to it have died.of the programme………. 25F b) Legal heirs can enforce the claim for retrenchment compensation and the right survives even though the workman dies (LAT) ¥ 5A. District Assistant Registrar Coop Societies.into that controversy. Para: 7) ¥ 5A. Chairman. 541 Jurisdiction of Labour Court to decide whether Termination is in violation of Sec.to do so. R. 1999 IV LLN 589 (P&H. The State of U. he will be deemed to have acquiesced to it including findings recorded therein.” (Page: 658. Singh Son of Shri V.respondent No. it was not proper for Labour Court to deny relief because delay of 4½ years did not cause any prejudice to employer and it could not be said that the claim was stale one. Labour Court is not barred by Haryana State Co-op. in view………. Jaipur v. Bhuna v.DB) ¥ 5A. the workman moved Labour Court for reinstatement as Sec. Para: 3) e) Employer deemed acquiesced into findings of award when he never challenged award which thus becomes final (All.” (Page: 251.542 On being terminated. Para: 3) “Suffice it to……….. & Anr..540 As employer in any manner never challenged award of Labour Court which had held termination of workman without compliance with Sec. Para: 2) “……….justified and legal.made on 5–7–1980……….DB) “The respondent No……….Sec. Para: 10) 2.539 Services of Workman were terminated in contravention of Sec.DB) ¥ 5A.DB) ¥ 5A.DB) “………. 25F Remedies for violation of the section 2485 d) Workman on his reappointment for one month which does not include his previous service can challenge his previous termination in violation of Sec. State of Haryana & Anr. Through the Secretary. Presiding Offier.DB) ¥ 5A. High Court held that where the Labour Court found that the workman completed 293 days service. Industrial Tribunal-cum-Labour Court.” (Page: 251. 1990 (60) FLR 250 (Raj.the learned Judge………. Labour Department.by the Tribunal………. 25F was not complied with. Para: 6) f) Scope of powers of the Tribuna/Labour Court under Industrial Disputes Act 1. Industrial Tribunal & Ors. 25F (Raj. 1997 (76) FLR 657 : 1998 LLR 573 : 1998 LLR 1001 (All. Lucknow & Ors.DB) “Thus.full back wages……….B. Labour Court refused to grant any relief in view of delay of 4½ years. Societies Act order passed by Labour Court for reinstatement with 25% back wages was held sustainable.The employer has………. 102 of Haryana State Co-op.. Societies Act to grant relief (P&H.P.DB) . 2005 III LLJ 1098 : 2005 (106) FLR 838 : 2005 IV LLN 290 : 2005 LLR 979 (P&H. Rajasthan Rajya Pathya Pustak Mandal.. 25F and Tribunal directed reinstatement with full back wages Court held that since his subsequent reappointment for one month does not continue his earlier service with out breaks it does not validate termination and hence which still working under subsequent appointment order it will not estop workman from challenging his earlier termination.B.” (Page: 591. Bhuna Co-operative Sugar Mill. Anil Kumar v. Hissar. Delay cannot be ground for Labour Court to decline relief to workman (P&H.3. thus award becomes final. 25F or not being not excluded by provisions of Sec. Singh v.The clinching………. 25F was illegal retrenchment.” (Page: 658. ” (Page: 981. & Ors. State of Punjab & Ors.terminated is valid. award passed is contrary to law.2486 Chapter VA – Lay-Off and Retrenchment Sec. v.ample opportunity………. Tribunal cannot interfere with termination if union fails to submit evidence despite ample opportunities (Raj. 15. Para: 6) “Since the union………. 1974 (29) FLR 244 (Ori.543 Where a workman has completed 240 days of continuous service in a year.provisions of law.of the workmen……….547 Where dispute raised by workman was that his termination of service was retrenchment. 2005 (104) FLR 584 (All.HC) “………. Smt.The management of………. 25F ¥ 5A. 25F (HP.HC) 3.DB) 5..” (Page: 981.P. Iqbal Singh & Anr. held the award of Labour Court holding the termination valid requires no interference. State of Orissa & Ors.546 The award of Labour Court upholding the retrenchment of 27 workmen working in composing sections is challenged by the union that opportunity was denied to submit evidence hence.544 Right of the management to effect retrenchment cannot normally be questioned when a dispute arises before an Industrial Court in regard to validity of any retrenchment but the adjudicator has to consider whether the retrenchment was justified for proper reasons.DB) . 25F Industrial Tribunal alone but not Administrative Tribunal has jurisdiction to adjudicate the dispute. Para: 5) “Mr. Durga Ram v.HC) ¥ 5A. Industrial Tribunal but not Administrative Tribunal can adjudicate on termination in violation of Sec. 25F(b) should be complied with if the workman is to be retrenched. Para: 2) “The award dated………. Para: 10) 6..000 as back wages was modified on the ground that Delay and laches had to be examined on the facts and circumstances of each case and therefore full back wages with reinstatement was granted. Adikanda Biswal v. Sec.” (Page: 981. Labour Court to give positive finding on justification of termination failing which award stands vitiated (Ori. with no positive finding regarding nature of termination was held as vitiated in law. Industrial Tribunal (III). the award passed by the Labour Court granting lump sum amount of Rs.” (Page: 981. 2006 LIC 314 : 2006 I CLR 653 (HP.DB) ¥ 5A. Kala appeary………. Judge Industrial Tribunal. Para: 7) “In view of the……….. Rajasthan Samachar Patra Karmachari Sangh v. State of H.HC) 4. 2004 (105) FJR 980 (Raj.545 In case of termination of service in violation to Sec.. Labour Court cannot question management’s right to retrench but to examine whether the same is justified (All. Therefore.dated 5-1-1996. award of Labour Court justifying termination order.HC) ¥ 5A. Kanpur & Ors. Reeta Pandey v. 2002 I CLR 678 (P&H. High Court on being satisfied by the order sheets of Labour Court produced by management which states that ample opportunity was afforded to union to submit the evidence.DB) ¥ 5A.” (Page: 980. it was held by the High Court that delay in approaching the Court or making a reference cannot be a ground to decline the relief to the workman. Bharat Heavy Electricals Ltd. He did not report on duty and afterwards he applied for re-employment.HC) ¥ 5A. in law.. 25F Remedies for violation of the section 2487 “. Para: 7) “Since the order………. State of Maharashtra v..551 Once the termination order of probationer was held as legal on merits by the High Court in a writ petition...548 Workman was employed on daily wages as an unskilled labourer.HC) ¥ 5A.V. On raising industrial dispute against the removal. The decision of High Court though was a summary dismissal operates as res judicata against the same cause of action for the same relief before Labour Court (P&H. R...P. which was denied. Labour Court must find out whether employee is a workman and he has completed 240 days of service to decide the question of retrenchment compensation (Karn.. Nagappa Hanumanthappa Lamani v. Dyaneshwar Rakmaji Aher & Anr. the task before the Labour Court was to find out whether the employee was a workman u/s... 25F of the Act. when workman claimed re-employment (Bom.DB) ¥ 5A. Management of Sericulture Department.. principle of resjudicata u/s. P. 1998 I LLJ 716 : 1998 (78) FLR 953 : 1998 II LLN 694 : 1998 I CLR 522 : 1998 LLR 494 (Bom.HC) 9.If the High………...... 1993 II LLJ 260 (P&H. Labour Court not justified in granting reinstatement.HC) 8.HC) ¥ 5A. so his claim cannot be accepted. & Ors..Sec..HC) 10.549 In a case.cannot be sustained... Workman kept silent for 5 years to put up action without suitable reason... Boroda v.” (Page: 262. Para: 9) . 2002 (101) FJR 581 : 2002 (94) FLR 1183 : 2002 III LLN 1026 : 2002 III CLR 219 : 2002 III CLR 322 : 2002 LLR 1145 (Karn. The Punjab State Co-operative Bank Ltd. where in while terminating the services of a workman retrenchment compensation was not paid.the Labour Court……….550 On violation of Sec. v. High Court set aside Labour Court’s award holding that it would result in miscarriage of justice because workman had only applied for re-employment and not for reinstatement in service and it was proved that there was no dispute of wrongful termination.. State of U.vitiated...HC) 7. State Road Transport Corporation through General Manager v.. though it was summary dismissal.. Labour Court granted reinstatement to the workman. 1989 (59) FLR (Sum) 30 : 1989 II LLN 381 : 1989 LIC 1914 : 1989 II CLR 112 : 1990 I LLJ 87 : 1990 (76) FJR 190 : 1990 LLR 252 (Guj. 1947 and whether he has put in continuous services of 240 days before the day of termination and if these two conditions were fulfilled then he is entitled to have compliance u/s.O. 25F.. Labour Court & Ors.” (Page: 262.The admission of. 1986 (52) FLR 116 : 1986 I LLN 719 (All.. 11 of Civil Procedure Code applies and approaching Labour Court on same cause of action and for same relief is debarred and hence the order of reinstatement by the Labour Court with 60% back wages was quashed.. 2(s) of the Industrial Disputes Act..DB) “………. Krishnarao. Para: 4) Note: also refer to the following case U. Tribunal to give declaration that workman terminated has continued in service when termination becomes void and non-est (Guj.P.” (Page: 246. the act of termination of service becomes void and non-est and therefore a declaration is to be given that the workman concerned has continued in service. if provided under the Act. General Manager. Bhimarao Laxman Patil & Ors.PanalKar v.2488 Chapter VA – Lay-Off and Retrenchment Sec.553 Award of reinstatement with full back wages passed by the Industrial Tribunal can only be set aside by a forum with proper hierarchy which has the power of superintendence over the Industrial Court and therefore the CAT was not held to have jurisdiction to set aside the award passed by the Industrial Court.3J) F 5A.In our view………. Management of Pune Telecom Department. 1981 (59) FJR 281 : 1981 II LLN 500 : 1981 LIC (Sum) 152 (All.” (Page: 171. 33C for recovery of money. 1980 (40) FLR 325 (All.. Hence remedy available to him was by making an application u/s. 1998 II LLJ 170 : 1999 LIC 221 : 1998 SCC (L&S) 224 : 1999 AIR (SC) 538 : 1997 (11) SCC 469 (S. v. 25F of the Industrial Disputes Act. Ltd. Nippani Electricity Co. That decision could be upset only by the Court within that hierarchy and could not have been brushed aside by invoking the jurisdiction of the Central Administrative Tribunal and having the said Tribunal decide that the Department was not an industry may be based on a judgment of this Court. 1969 I LLJ 268 : 1968 (34) FJR 385 : 1968 (17) FLR 281 : 1968 LIC 1571 (Mys.” (Page: 643. v.HC) Note: also refer to the following case Union of India v. & Anr. v. Kanpur Industrial Development Co-operative Estate Ltd.C. Civil Court is not proper forum for recovery of retrenchment compensation and remedy lies u/s.C.554 The petitioner who seeks relief against termination in violation of Sec.552 Employee who was retrenched was not paid retrenchment compensation as per Sec. Magma Area Eastern Coalfields Ltd.HC) ¥ 5A..constitutions.. 21 of the constitution. 2000 III LLN 641 : 1999 (82) FLR 530 : 2000 I LLR 353 (Cal. 25F shall approach the forum under the Act but not the Writ Court on the ground that the termination also amounts to violation of Art.DB) “……….3J) “The principal question is whether the CAT could entertain the application particularly after the Industrial Tribunal had ruled that the respondent was a workman within the meaning of the Industrial Disputes Act and was entitled to retrenchment compensation under Section25-F and since the same was not paid he was entitled to reinstatement with full back wages. 33C(2) of Industrial Disputes Act (All.HC) h) Remedy under Central Administative Tribunal 1. Vinod Kumar Srivastava. Phirangi. The Central Administrative Tribunal also skirted the issue whether it had jurisdiction in the circumstances of the case. Gopal Chandra Mondal & Ors. The learned counsel appearing for the respondent-Department was not able to satisfy us as to how the Central Administrative Tribunal could assume jurisdiction so long as the decision of the Industrial Tribunal and the Award made by that body stood unaltered………. Para: 5) ¥ 5A. Ajay D. Pvt. Para: 5) . 25F g) Remedy under civil jurisdiction 1. Civil Court cannot interfere. CAT cannot interfere with the relief granted by the Tribunal since not vested with power of superintendence over the latter (S.HC) Civil Court – cannot prevent an establishment from retrenching. However Chapter V-A does not deal with disputes referable to them and in the instant case.HC) iii) High Court not barred by availability of alternate remedy to grant relief for retrenchment u/Art. However. 10 (All. v.HC) ¥ 5A. 1996 I LLJ 823:1996 (89) FJR 678:1996 (73) FLR 1548:1996 I LLN 845:1996 LLR 855 (Mad. Asst.555 Where the workman challenged the notice of retrenchment in writ petition and management resisted the writ contending that the High Court has no jurisdiction to adjudicate the validity of the notice of retrenchment because the Industrial Disputes Act is a complete code and all disputes under it can only be decided by Courts or Tribunals constituted under it. Para: 4) . S.. 226 and allowed the petition.R. Union of India & Ors. Para: 4) “Under……….illegal.. 25F 1.” (Page: 257.HC) ¥ 5A. Ramachandran & Ors.Reference of industrial……….availed of. 10 will not bar the petition. 226 instead of approaching forums constituted under Industrial Disputes Act because violation of the said provision amount to violation of natural justice. High Court has jurisdiction and quashed the notice of retrenchment. Rly Olvakkot v.be sustained.” (Page: 362.DB) “It has……….557 A temporary railway servant who had worked for more than one year was retrenched without paying retrenchment compensation hence order was held to be not sustainable and Writ Court rejected the ground of alternate remedy. 1977 (34) FLR 359 (Cal. Jaydev Mandal & Ors.42nd Amendment Act. 1978 II LLJ 254 : 1978 LIC 394 : 1977 (35) FLR 439 (Ker.DB) “Termination in this……….. Sec.Sec. is correct. 25F is violated since it amounts to violation of natural justice (Mad.. Kalicharan v. 10. 25F Remedies for violation of the section 2489 i) Remedy under writ jurisdiction for violation of Sec. The Workshop Electrical Engineer & Ors. it is not a bar to exercise jurisdiction u/Art. 25F and it was also held that availability of remedy u/s. rejecting it’s contention High Court held that theTribunals or Courts have exclusive jurisdiction only when any dispute exists or apprehended and referred to them u/s.T. Union of India & Ors. Para: 3) “……….558 Termination of casual railway employee was held as illegal retrenchment due to non-compliance of Sec. 25F is in question that falls in Chapter V-A therefore. 1976 (32) FLR 428 : 1976 LIC 1426 (All. P.HC) ii) High Court can entertain dispute of termination if Sec.DB) ¥ 5A. 25F would make the order of termination void ab-initio and the workman could move directly to High Court under Art. v. Para: 1) ¥ 5A. Anthony. K. 1973 LIC 172 (All.” (Page: 362. 226 (Cal.556 Non-compliance of Sec.” (Page: 257. When can be i) High Court can directly entertain writ over matters falling under Chapter V-A since it does not contain disputes referable to Labour Court or Tribunal u/s. Personnel Officer.HC) Note: also refer o the following case/s Hardayal & Ors. Tamil Nadu Water Supply & Drainage Board & Ors. v. 7.. 2002 LLR 793 : 2002 LIC 1546 (Guj. 25F if industry is closed or is in severe financial condition (Bom. Tapan Kumar Jana v. 25F iv) When contravention of Sec.HC) 2. 25F. This award was challenged in the High Court by filing writ petition.2490 Chapter VA – Lay-Off and Retrenchment Sec. 25F is illegal. 1980 II LLN 334 : 1980 LIC 508 (Cal. 25F when the Industry might have closed down or is in severe financial difficulty or the workman may have secured better employment then the Court may deny reinstatement with back wages. Rajkot v. Para: 3) “In that case………. 25B of Industrial Disputes Act had been satisfied but Sec.1985 to 31.10. Ltd. According to him he worked from 24. 25F of the Act was not complied with Labour Court granted reinstatement without back wages to the workman who had worked for more than 240 days.HC) ii) High Court cannot decide questions of fact like whether or not the workman completed 240 days of service (All. Industrial Tribunal accepted his contention. 226. Therefore High Court held the award valid and workman was directed to be reinstated with continuity of service without back wages till the date of the award but with full back wages from date of award till actual reinstatement.563 Employee raised an industrial dispute when his services came to be terminated. Orissa State Electricity Board & Ors. termination of his services without complying with Sec.HC) vi) High Court can modify the relief granted u/s. Calcutta Telephones & Ors. Vacuum Plant Kamgar Sanghtana v. When cannot be i) High Court cannot interfere where no jurisdictional error/procedural irregularity is committed (Guj. Gujarat Housing Board.DB) “………. & Anr.The orders………. v.HC) ¥ 5A. 1993 III LLJ 724 : 1989 LIC (Sum) 111 : 1989 I CLR 598 (Ori.562 In the instant case. Rajendra Prasad Jena & Anr.DB) ¥ 5A. as Sec.” (Page: 725.1986 and therefore.” (Page: 726. Meenakshiben Bhanushankar Bhatt.559 Where dispute is not related to adjudication of question of fact but is based on admitted position as to contravention of Sec.HC) ¥ 5A.561 High Court can modify the relief granted u/s.. P.no substance. Employer-Corporation filed a writ petition submitting that the employee had not completed 240 days of service. High Court could not interfere with the award. 1999 II CLR 530 (Bom..HC) ¥ 5A. General manager. High Court was of the opinion that where there was no jurisdictional error and no procedural irregularity committed. writ petition by employee was held to be maintainable.retrenchments. High Court held that the Industrial Tribunal has found as a fact that the employee . 25F is an admitted fact but not a dispute for adjudication (Ori.560 When services of casual workers were terminated on completion of work and there was no written order of termination.HC) ¥ 5A. Vacuum Plant & Instruments Fanufacturing Co. Para: 4) v) When services of casual workers were terminated on completion of work without any written order (Cal. then High Court can exercise jurisdiction u/Art. 25F. 2001 III LLJ 296 : 2000 (86) FLR 72 : 2000 III LLN 402 : 2000 II LLR 1003 (Pat. Lucknow v. Petitioner v. as remedy was available under Industrial Disputes Act.O. State of M. Durgesh Kumar. State of Rajasthan & Ors. They preferred to file writ petition after their case was not accepted favourably by the Labour Court. 1994 II LLJ 1059 (Raj. N. State of Rajasthan and others.HC) Shanker Lal Mali. Senior Branch Manager.. Respondents. 25F unless there is proof of legal injury or infringement of legal right of the employee (Pat.P.. This finding of fact based on evidence on record cannot be interfered with by the High Court.. Para: 8) “For the………. 1981 LIC 697 (Raj.the Court. 25F and as such the findings of the Industrial Tribunal is upheld. The P.Sec. v.. Head Quarters. Pratibha Badlani & Ors. Ram Chandra Shah & Ors.HC) ..564 Services of a daily wager.565 The workman has been retrenched in violation of Sec. Hindustan Times Ltd. Union of India & Ors. 1976 (33) FLR 365 : 1977 I LLN 52 (All. 25F was not complied with and demanding retrenchment compensation.HC) iii) When alternate remedy is available under Industrial Disputes Act (All. Labour Court held that the termination was illegal.the Constitution.HC) ¥ 5A. that there is violation of Sec. Central Government Industrial Tribunal-cum-Labour Court.DB) “In our opinion……….. the employees cannot prefer an action in exercise of writ jurisdiction. 25F. 1997 I LLN 155 : 1997 I CLR 427 (All.HC) Reserve Bank of India v. Divisional Engineer. 1999 II CLR 1021 (Karn.HC) Nazir Singh v.HC) Note: also refer to the following cases in he above context R. Life Insurance Corporation of India.DB) ¥ 5A. Sankaran v. 25F Remedies for violation of the section 2491 had worked for 240 days and more and that the finding of fact cannot be questioned in the writ petition. Mukul Kumar Shukla v. who was in continuous service was terminated without complying with the provision of Sec.HC) Note: also refer to the following case/s in the above context Moinuddin & Ors. The High Court held that when the employees failed to demonstrate any legal injury to them or any infringement of legal right in them to warrant interference with the impugned order. Mani & Ors.. v. High Court denied exercising its discretion.” (Page: 369. 2002 (95) FLR 944 : 2002 III CLR 677 : 2003 LLR 91 (Del.567 Daily wage employees were retrenched from service in accordance with Sec. 2002 (95) FLR 1161 (MP. Para: 19) ¥ 5A.HC) ¥ 5A.” (Page: 375..R. 1980 LIC 964 (Raj. 25F and remedy is available to him in the provisions of the Industrial Disputes Act and hence writ jurisdiction of the High Court cannot be invoked until such remedy has been exhausted.566 Order of termination was challenged by way of a writ petition on the ground that Sec. Kanpur v. v. Additional Labour Court. State of Bihar & Ors. Kanpur & Anr. Madras & Anr. Km.HC) iv) Writ not maintainable in case of non-compliance of Sec. 1977 (50) FJR 28 : 1977 I LLN 94 : 1977 LIC 1338 (Mad. S. High Court set aside the petition stating that said issue couldn’t be raised at this stage.2492 Chapter VA – Lay-Off and Retrenchment Sec. 25F v) When writ involves pure question of facts like whether employee worked for 240 days (S.2J) “The Tribunal by its award after considering the evidence adduced by the parties. Oil & Natural Gas Corporation Ltd. Whether a person has worked for more than 240 days or not is a disputed question of fact which is not to be examined by the High Court. 2006 I LLJ 419 : 2006 I LLN 91 : 2006 LIC 130 : 2006 I CLR 18 : 2006 LLR 70 : 2006 AIR (SC) 392 : 2006 SCC (L&S) 113 : 2006 (1) SCC 337 (S. On writ petition in the High Court. Tribunal granted benefits of permanency to those who had completed 240 days and also directed employer to make seniority list.12. Tribunal rejected all other demands.HC) ¥ 5A.” (Page: 423. we find no merit in this appeal and the same is dismissed. Para: 13) vi) When fresh issues were raised before High Court but not before Industrial Tribunal (Guj.” (Page: 643. Chairman. Management of CCW v. Madan Gopal. It set aside as the judgment and made a direction to Government to makes a reference to Labour Court.HC) . v. Conservator of Forest v.C.568 Where the Industrial Tribunal had come to a finding that the workman had worked for 240 days.569 An employee was terminated from service without following provisions of Sec. 25F. Supreme Court can’t entertain it. has given specific finding that the respondent workman has worked for 240 days continuously from 1.HC) ¥ 5A. Processing Manager.571 The Industrial Tribunal held that the workman was in continuous services for more than 240 days and was illegally terminated since he was not given any show cause notice nor any enquiry was held as required by Sec. it would be appropriate if the matter is decided by the forum provided under the Act. Shramjivi General Workers Union 2001 (89) FLR 213 : 2001 II LLN 1054 : 2001 LIC (Sum) 46 (Guj. This finding of fact has been accepted by the learned Single Judge as well as by the Division Bench in the writ petition and the LPA respectively. found no scope of interfering with the decision of the Tribunal. As in the instant case the legal position has not been analysed in the proper perspective.C. 2006 SCC (L&S) 643 (S. Proper remedy for the person making such a claim is to raise an industrial dispute under the Act so that the evidence can be analysed and conclusion can be arrived at. which was also subsequently upheld by the High Court.5.570 Union on behalf of daily wagers made reference. Para: 2) F 5A.2J) F 5A.C.HC) vii) Cannot be for contesting ex-parte award when employer failed to contest the reference before Tribunal (Del. Employer filed a writ petition on the ground that Industrial Tribunal did not frame any issue. Partap Sing. Exp.1986 till 17.1987. This being a pure question of fact. The High Court. The High Court dismissed the writ petition filed by the employer and held that the petitioner was an ‘industry’ and the respondent was a ‘workman’ and if the employer had not contested the reference before the Industrial Tribunal it was at its own peril.2J) “………. the Supreme Court dismissed the special leave petition holding that since it was a pure question of fact.High Courts should n6t entertain writ petitions directly when claim of service of more than 240 days in a year is raised. Shyamal Chandra Bhowmik. Dy. 2005 II LLJ 146 : 2005 (105) FLR 227 : 2005 LLR 230 (Del. therefore. the employee succeeded. 25F of the Act 1947 and the order of reinstatement of the workman was passed ex-parte accordingly. Oriental Handloom v. On further appeal the Supreme Court held that there was a dispute whether the employee had worked for more than 240 days in one year or not which is a question of fact and should not have been entertained by the HighCourt in the writ petition directly but the proper remedy was to refer it to the Labour Court. In the absence of any such information the Division Bench in the second writ appeal noted that the challenge in the said writ appeal was against the direction of the learned Single Judge granting reinstatement of the appellant-workman as also against the benefit of continuity of service and other consequential benefits granted. that order being inter parties. 4374 of 1998. the employee’s writ came to be allowed with all benefits but the employer’s writ was dismissed.” (Page: 257.Sec. Lal Singh Ram Singh Rajput v. is factually incorrect because the question of any challenge by the management against the reinstatement order made by the labour court as affirmed by the learned Single Judge and by the Division Bench by dismissal of appeal. On the said basis it set aside the award of the Labour Court as well as the order of the learned Single Judge with a direction that the wages. In that background. On the writ being filed by both the employee and employer. already paid to the workman should not be recovered. Against this order the employee preferred appeal to Supreme Court. obviously the second Division Bench hearing the second writ appeal of the management was unaware of the judgment of another Division Bench made in writ appeal No.3J) F 5A. reversed the decision of the Labour Court and also the Single Judge of High Court. unaware of the dismissal of the writ by management in earlier appeal. Assistant Executive Engineer. 25F as the issue was already decided earlier in the dismissed writ petition of the management and that acted as res judicata. Hence the Supreme Court set aside the impugned order of the Division Bench of High Court and up held has order of single judge. As noticed hereinabove that issue stood concluded by the judgment of the Division Bench made in writ appeal 8794 of 1998 holding that there was no compliance of Section 25(F) of the Act by the respondent-management when the appellant’s services were terminated. This writ appeal which could have been only against the order of the Single Judge granting continuity of service came to be entertained by another Division Bench of the High Court.3J) “The appellant-management filed another writ appeal against the order of the learned Single Judge in the writ petition filed by the workman seeking enhanced relief. Para: 6) “It is against this order of the Division Bench of the High Court the appellant is before us in this appeal.572 Labour Court came to the conclusion that termination of service was not in compliance with Sec. 25F Remedies for violation of the section 2493 viii) When order dismissing the writ against Labour Court’s order of reinstatement operates as resjudicata in the subsequent writ appeal filed by management against writ for back wages by workman (S. On management filing appeal it came to be rejected ex-parte at the admission stage itself. which question as stated above . The Division Bench in their order. very much after its earlier writ appeal had been dismissed. 25F hence granted reinstatement but did not grant other benefits like back-wages etc. The management also filed writ appeal against the order in the writ by the employee. This. This was done by way of a writ appeal No. Para: 4) “Proceeding on that erroneous basis the Division Bench of the High Court considering the grounds raised by the appellant afresh and contrary to the view taken by the Division Bench in the earlier writ appeal reversed the findings of the Labour Court and came to the conclusion that the evidence produced by the appellant-workman in regard to his continuous work for 240 days in the management establishment was unacceptable.C. and there being no further challenge to the said order. could not have been the subject matter of a second appeal before the High Court. 8318 of 1999. as stated above. on this ground by the respondent to the order of reinstatement made by the Labour Court is hit by the principle of res judicata. We do not think it is necessary for us to consider the grounds on which the High Court in the impugned order came to the conclusion that the appellant is not entitled to the benefit of Section 25(F) of the Act because the challenge. It is because of the fault committed by the management in not bringing to the notice of the second Division Bench the factum of its earlier appeal being dismissed that misled the High Court in the Second writ appeal into going to the question of validity of the order of termination.” (Page: 257. the management was precluded from questioning the said reinstatement in the second writ appeal.C. 2005 II LLJ 256 : 2005 (105) FLR 376 : 2005 II LLN 991 : 2005 II CLR 116 : 2005 SCC (L&S) 868 (S. if any. if any. Obviously in the second writ appeal the management did not disclose the fact that its earlier writ appeal challenging the award had already been dismissed. notice of which was issued to the workman who had no knowledge of the earlier writ appeal being dismissed. which concluded that it is not necessary to consider the grounds upon which the High Court held that the employee was not entitled to the benefits u/s. e.” (Page: 1086. he was possessing higher qualification than the maximum qualification prescribed for the post. But the fact situation is entirely different here. 25F which was the main issue involved proceeded to analyse the nature of misrepresentation and hence remitted the matter to Single Judge to decide the matter on point of main issue.573 Some casual labourer had remained absent for a period of six months. 2006 I LLJ 1085 : 2006 (108) FLR 1153 : 2006 SCC (L&S) 420 (S. 25F already stood concluded in favour of the workman.2494 Chapter VA – Lay-Off and Retrenchment Sec. Central Government Industrial Tribunal & Anr.” (Page: 257. Para: 6) “A perusal of the factual scenario as noted above clearly indicates that the writ petition was not belated as was observed by the High Court. Para: 7) ix) High Court cannot dismiss a writ on grounds of delay without ascertaining facts for delay like agitating in wrong forum ignorantly (S. was not a question available for the second Division Bench to be considered afresh.1998. The Labour Court held that this meant that there was in fact. the question whether the workman had established that he had put in 240 days of continuous work immediately prior to his dismissal. Presiding Officer. Telegraph. inter alia observed as follows: Nothing in this order shall however. v. preclude the applicant from seeking redressal of his grievances from an appropriate forum. Hence. all relevant details were indicated. Feeling aggrieved. however.2J) “………. Sub–Divisional Officer. It was. General Manager. On rejoining they were not given any benefit for past services and they were treated as having joined afresh..” (Page: 1086. the Court can decline to entertain it on the ground of laches. termination since Sec. On writ petition the High Court dismissed the case stating that it was filed belatedly. Presiding Officer. Central Government Industrial Tribunal–Cum–Labour Court.1997 CAT disposed of the matter holding that the proceedings before it were not maintainable. 25F was not complied with and awarded reinstatement and back wages. In reference. 25F was not complied with the Single Judge held that advertisement issued by employer was unconstitutional. employer moved Division Bench which set aside the order of Single Judge holding that Single Judge instead of considering the applicability of Sec. Had the High Court applied its mind to the factual background facts it could not have come to the conclusions as arrived at. and when it came to light that it was wrong forum ordered that the matter be taken up before the right forum. Para: 6) x) Single Judge cannot analyse the issue whether qualification was misrepresented to obtain employment but only to examine applicability of the section (Raj. 2006 II LLJ 399 : 2006 I CLR 606 (Raj.574 The services of a Peon were terminated on the ground that he obtained employment by misrepresentation i.2J) F 5A. if there is abnormal delay in filing a writ petition and there is no plausible explanation for the same. On that ground alone impugned order of the High Court is liable to be set aside.C.C. The Supreme Court held that the High Court was in error in not taking not of the factual position as was clearly mentioned in the writ petition and set aside the order of High Court and remitted the same to it for decision on merit.DB) ¥ 5A. It is unfortunate that the High Court did not take note of the relevant factors and the intervening circumstances and by a cryptic order dismissed the writ application holding that it was highly belated. Unfortunately.” (Page: 1086.By order dated 17. Kanpur. Bijnor v. Bank of Baroda & Ors.12. Para: 5) “The writ application was filed in February. Labour Court held his termination was illegal because he had completed 240 days of service and Sec. The employer by an error filed an original application before the Central Administrative tribunal. the High Court has not taken note of that. It is true. In paragraphs 47 to 50 of the writ petition filed before the High Court. 1998 and has been dismissed as afore-noted by order dated 30.DB) .4. Para: 12) “………. On appeal the Supreme Court set aside the order of High Court and remitted the matter to Division Bench of High Court for hearing on merit and passing speaking orders after hearing the parties. The order passed by the Division Bench.575 The employee contested his termination being illegal contending continuous service of not less than 240 days in the year. we set aside the same and remit the matter to the Division Bench of the High Court for fresh disposal and passing a speaking order after hearing the respective parties. Ram Charan. Nagar Panchayat. Rajasthan v. in our view.B. 25F of the Act and therefore reinstated him with 25% back-wages.576 The dispute involved questions of facts regarding appointment on vacancy and violation of rules and denial of benefits u/s.C..” (Page: 1426. State.Sec. 2000 II LLJ 1425 (MP. 25F Remedies for violation of the section 2495 3. However. Para: 13) i) Remedy of Letters patent appeal a) Not a proper remedy to decide questions of appointment on vacancy and violation of rules and benefits u/s. the High Court also dismissed the appeal on the ground that there was no merit therein.2J) F 5A.C. without even adverting to the grounds raised in the appeal challenging the said direction. goes to show that there is absolutely no discussion about the merit of the rival contentions made by the parties. The Division Bench. 33C of the Act. 2006 II LLJ 1035 : 2006 (109) FLR 1207 : 2006 III LLN 845 : 2006 (5) SCC 272 : 2006 SCC (L&S) 1089 (S. Para: 6) j) Prosecution 1. High Court to pass speaking order while upholding order of reinstatement (S.DB) “Having………of fact………. the Division Bench is also not correct in affirming the presumption made by the Labour Court regarding 240 days of service rendered by the respondent. Can be initiated for violation of Sec. The employee on raising a dispute. Likewise. 25F (MP. Dhaneshwar Sharma v.DB) ¥ 5A.2J) “The learned Judges of the Division Bench dismissed the appeal on the ground of laches in approaching the High Court by 321 days.HC) .HC) ¥ 5A. v. Employer unsuccessfully contested in High Court up to Division Bench which upheld the award purportedly on merits but gave no speaking order. 25F(b) of the Act can be prosecuted even before the retrenchment compensation due to the concerned workman is computed under the provisions of Sec. Mahadev Prasad Gupata & Anr. 25F and as the same could not be decided in a Letters Patent Appeal therefore parties were directed to approach the proper forum. is not justified in dismissing the appeal on merit without having discussed the merits of the rival claims. In conciliation proceedings employer proved 197 days service only leading to rejection of his contention. is not sustainable as it is not a speaking order.” (Page: 1037. without adverting to the material placed before it by the parties. 25F (Ori. restore the D. We. reference was made to Labour Court. A perusal of the order passed by the Division Bench of the High Court.” (Page: 1038. 2004 to the file of the High Court and request the Division Bench to dispose of the same afresh on merit and in accordance with law. without being influenced by any of the observations made by us in this judgment. Special Civil Appeal No. 85.Since the order of the Division Bench is not a speaking one. Jaura & Ors. which made a presumption of continuous service of 240 days and held termination is in violation of Sec. 1964 II LLJ 546 (Ori. in our view. The High Court also dismissed the appeal by holding that the Labour Court was right in directing the reinstatement of the respondent in service with 25% back-wages. therefore. Assistant Engineer.577 Employer if does not comply with the provisions of Sec. 1964. v. 1970 II LLJ 564 : 1970 (37) FJR 451 : 1970 (21) FLR 278 (P&H.” (Page: 163. In the absence of requisite pleadings having been raised and documents having been brought on record. 1957 II LLJ 266 : 1957-58 (12) FJR 117 (Mad.DB) ¥ 5A. B. the Appropriate Government has got no power to determine such disputed question and direct recovery of the compensation u/s. Pramod Jha and Ors. Rawalpindi Victory Transport Co. the learned counsel for the State has pointed out that the controversy in this case is confined only to 55 workers and therefore the submission based on Section 25-N of the Act is totally irrelevant and devoid of any merit………. 25F of the Act. Section 25-N is placed in Chapter V-B of the Act which according to Section 25-K has an application only to industrial establishment in which not less than 100 workmen were employed on an average working day for the preceding 12 months.580 Since the plea of non compliance of section by retrenched workmen was not raised before High Court nor was it taken even in SLP rather it was sought to be taken only at the time of hearing before Apex Court it was held as not maintainable on grounds of no requisite pleadings being raised or documents brought on record and also considering that the controversy was only confined to 55 workers. Para: 16) . 25-I also right to recover retrenchment compensation under the provisions of Sec. Para: 3) b) Plea of non-compliance of section to be raised before the lower Courts but not before Higher Courts (S. The infirmity in retrenchment by reference to Section 25-N cannot be ventured to be found out without laying factual foundation attracting applicability of the provision. Pleadings by either party-what can be and appropriate forum where can be made a) Pleading as to non-payment or inadequacy of compensation to be made to challenge retrenchment (P&H.B. C.2J) “Faced with this situation.578 In a Claim by a discharged workman for retrenchment compensation u/s.2496 Chapter VA – Lay-Off and Retrenchment Sec.. Singh. 9 of Civil Procedure Court. v. submission based on Sec. Gian Chand & Anr. It was sought to be taken only at the time of hearing.579 Where a workman has refused to accept the Money Order sent by employer as retrenchment compensation. he cannot challenge the same on the ground that amount sent was not full and proper amount of retrenchment compensation unless it is based on pleading and evidence.2J) F 5A.DB) “What has been………. Ekambaram & Anr.” (Page: 566. 25F k) Appropriate Government-whether competent to determine workman’s claim 1.R. Ltd. On the contrary.HC) ¥ 5A.C.. Cannot determine the question of retrenchment compensation claimed by discharged workman (Mad. Ratnam & Co.unexceptional. v. we are not persuaded to entertain the plea. 25N of the Act for non-compliance was held as irrelevant. 2003 II LLJ 159 : 2003 (97) FLR 110 : 2003 III LLN 34 : 2003 LIC 1449 : 2003 LLR 419 : 2003 SCC (L&S) 545 : 2003 AIR (SC) 1872 : 2003 (4) SCC 619 (S. The plea was not raised before the High Court. X.12.. The plea need not detain us any longer. a last effort was made by the learned senior counsel for the appellants urging for relief being allowed on the ground of non-compliance with the provision of Section 25-N of the Act. It is not even taken in the special leave petitions.HC) Note: The pertains prior to the insertion of Section 33C to F 19. 25F of the Act as it is a civil right within the meaning of Sec.B.C. State of Bihar and Ors. D. It is basically a question of fact. Mr. The first contention is.583 High Court held that in the present case. The Administrative Officer. therefore.2J) F 5A. 1998 to 31. High Court dismissed the petition and upheld the Labour Court’s order since the employer did not raise the said contention before Labour Court and held that under writ jurisdiction the High Court could not go into the mixed question of law and fact. Para: 11) e) Workman to specifically plead that he put in 240 days or more in preceding 12 months to claim relief (Bom. The appellant can not raise such a contention for the first time before us.H.581 The employer moved High Court against the order of Labour Court..HC) ¥ 5A. 25F.1999 and that the termination was on account of now renewal of such contract. 1997 (77) FLR 619 : 1997 IV LLN 638 : 1997 II CLR 649 (Bom. Smt.8.HC) f) Pleading that employment is tenure based cannot be taken by the employer for the first time in the appeal before Apex Court (S. The Supreme Court however modified the award reinstateting him as computer helper as clerical grade and not as programmer and upheld the award in all other respects.8. 25F was raised for first time in writ appeal and hence it was held as untenable. his services were later came to be terminated upon challenge the Labour Court held that Sec. 25F is not attracted as the employee has neither specifically pleaded nor proved that he had put in uninterrupted service of 240 days or more in 12 months preceding the alleged termination of his services. Sugar Mills Ltd. Para: 6) . E. S. v. which held that the ‘Forest Department’ was an industry and ordered reinstatement of a workman on the ground that the employer did not comply Sec.HC) ¥ 5A.1998 to 31.The appellant never contended before the Labour Court or the High Court that the appointment was contractual for a specific term from 1.DB) ¥ 5A. Principal Chief Conservator of Forests v.” (Page: 689/690.C.HC) d) Plea of probationer that he was workman and completed 240 days raised for first time in writ appeal is untenable (AP.1999.2J) “……….8. Nor was it pleaded or proved that Respondent was informed at the time of appointment that appointment was contractual up to 31. Ltd. Rakesh Kumar.582 Since plea of probationer that he was workman and had completed 240 days and hence his termination is hit by Sec. Jadhav & Anr. Paramjit Kaur. the Supreme Court held that such a contention was never raised by the employer before Labour Court or High Court and therefore he can not raise the same before Supreme Court for the first time. Kelkar & co. rejected. 25F Pleadings by either party-what can be and appropriate forum where can be made 2497 c) Plea disputing the status of employer as an industry to be taken before Labour Court but not before High Court for first time (P&H. Sec. 1996 LIC 2154 (AP.DB) “The further ground………. The appeal of the employer before High Court against the decision was dismissed. The employee also did not plead and prove that the workman was suitably informed about the contractual nature of service at the time of appointment and this also can not be raised for the first time. Khashaba K.” (Page: 2157. 25F was violated as no notice or compensation was paid to him and he was reinstated as a computer programmer with full back wages and continuity of service. Rejecting the plea.7.in the appeal………. Employer moved Supreme Court contending that the workman was appointed contractual basis for a specific term from July 1st. 1996 I LLJ 643 : 1996 I LLN 963 (P&H.C. The pleadings and evidence clearly show that the termination is ‘retrenchment’. 2006 I LLJ 688 : 2006 (108) FLR 592 : 2006 I LLN 850 : 2006 I CLR 277 : 2006 LLR 161 : 2006 SCC (L&S) 1496 (S.584 Where a workman was appointed as computer helper. v.1999 and his termination was for non-renewal of contract. Ramesh Kumar v. Sonepat Co-Op.Sec. the finding recorded by the Labour Court that the respondent was employed on daily wage basis and had worked for more than 240 days during the period of 12 months before the date of termination.HC) ¥ 5A.HC) . therefore it could not be raised before High Court under Art.585 Labour Court awarded reinstatement of the workman with back wages and continuity of service as employer failed to comply with Sec. Para: 7) “………. Termination of casual workmen amounts to retrenchment. Smt.1999 and specifically admitted that as per the Attendance Register. but not as a manual labourer.O. did not call for interference.The Respondent did not produce any document to show that he was appointed as a ‘Programmer’. the respondent had worked continuously between the said period and further admitted that the respondent had worked for more than 240 days in a period of one year prior to respondent’s termination.586 If a plea of closure of department is not taken before Labour Court then the same cannot be taken in High Court.8. The Pilot Pen Co. As the records clearly show that he was appointed in a non-manual clerical post in the computer department his reinstatement shall be as Helper involving clerical work (not necessarily in the computer section). In view of it there was a clear violation of Section 25F and we find no error in the direction for reinstatement. Ltd.” (Page: 690. 226 or 227 of the Constitution of India.587 The services of workman were terminated for alleged misconduct.” (Page: 690. Madras & Anr. termination was unjustified as Sec. Time Keeper as MW-2 who had produced the Attendance Register for the period 1. be only as a helper and not as ‘Computer Programmer’. as he was appointed as a Helper in the Computer Department. Labour Court held termination as invalid in the absence of enquiry and granted reinstatement without backwages. 1997 I LLN 1009 : 1997 LLR 368 (Raj. The reinstatement can. K. v. Lassi & Anr. 25B and hence provisions of Sec. Writ was filed by the employer against reinstatement of the workman as he had not completed 240 days as per Sec. 25F “From the evidence led before the Labour Court. therefore. 1971 I LLJ 241 : 1971 (22) FLR 337 (Mad. (India) Pvt. Para: 9) g) Plea that employee was irregular to be taken to justify termination before Labour Court (Raj.HC) ¥ 5A. 2004 (107) FJR 996 (P&H. Labour Court.. In this case.1998 to 31.2498 Chapter VA – Lay-Off and Retrenchment Sec. Though employer contended that the appointment of the workman was irregular but High Court held that such plea was never raised before Labour Court. Rahoorianwali Co-operative Agriculture Service Society Ltd. The P. State of Rajasthan v. The appellant had examined one Randhir Singh. The Labour Court was not justified in directing that the respondent should be reinstated as a Computer Programmer.HC) h) Plea that department is closed is to be taken before Labour Court but not High Court (Mad. there is no need to interfere with the said order. he merely stated that he was engaged to work in the computer department and grayed that he may be reinstated into service. 25F were not violated and questioned the jurisdiction of Labour Court. the award of reinstatement is upheld. Presiding Officer.7. 25F and employer failed to adduce any evidence before Labour Court to justify termination.HC) ¥ 5A. Additional Labour Court. 25F was not complied. v. High Court held that since the above matters were not brought before competent authority and Labour Court. Thus.. In the demand notice under Section 2A. we might have been inclined to explore the tenability of the plea. as such employer did not pay compensation at the time of retrenchment. months after April 1. Para: 4) k) Plea that calculation of compensation was as per previous wages instead of wage board award to be raised initially before Tribunal (S. 1966 i.HC) ¥ 5A.P. The Management of Jorehaut Tea Co.paid compensation..Sec. 1966.order of termination. The workman moved High Court against the said rejection and contended that he was terminated in August and compensation was paid in October. Shri Mridul argued that the amount paid by way of retrenchment compensation envisaged in S.. Shri Mridul stated that the compensation had been computed on the basis of wages previously paid and in derogation of the Wage Board Award which had been implemented by the Management with effect from 1-4-1966.588 Workman obtaining stay immediately on service of notice of retrenchment cannot subsequently complain that retrenchment compensation was not paid to them. High Court upheld the order of Labour Court as the workman had admitted that at the time of termination he received compensation and dismissed workman’s petition. It must be remembered.C.when probed further as to how S. 2000 III LLJ 1473 : 2000 I LLR 196 (Raj.rejected. This spinal flaw rendered the tender of compensation insufficient and. In the High Court this new plea based on the facts was not permitted. v.” (Page: 1474. Gangadhar Prasad & Anr. Ltd.589 The workman was appointed as a chowkidar on daily wages. 1986 (53) FLR 209 (Pat. State of Bihar & Anr.G.N. the revised pay-scales as per the Wage Board Award should have been adopted in calculating the retrenchment compensation. 25F fell short of what was legally due and hence there was non-compliance.HC) j) Plea of non-payment of compensation at the time of retrenchment not sustainable once the fact of receiving is admitted by the workman (Raj. 1980 II LLJ 124 : 1980 (56) FJR 513 : 1980 (40) FLR 474 : 1980 II LLN 151 : 1980 LIC 742 : 1980 SCC (L&S) 427 : 1980 AIR (SC) 1454 : 1980 (3) SCC 406 (S. Para: 2) “It is contended………. Ltd. e. There is no hint of it in the Award. especially because there is no dispute about the Wage Board Award and the fact that it had been given effect to from 1-4-1966 and the further fact that in the retrenchment notice the wages were not calculated according to the Wage Board’s Award.” (Page: 1474. Therefore.” (Page: 1474. Labour Court rejected the application since from records it was found that the workman admitted the fact that he received compensation at the time of termination.2J) F 5A. Had there been some foundation laid at least in the written statement of the workmen. Workmen of Sudder Workshop of Jorehaut Tea Co. the retrenchment itself was invalid………. On termination.The fact is that before the Tribunal the contention pressed before us was neither pleaded nor proved. & Anr. he moved Labour Court contending the termination was illegal as no retrenchment compensation was paid to him simultaneous with termination. that the Wage Board’s Award was subsequent to the retrenchment although retrospectively applied and the workmen had accepted the retrenchment compensation on the . Sukha Ram v.C.HC) ¥ 5A. v. however. 25F had been violated. Para: 3) “In view of……….590 As the employees did not raise the plea before tribunal that retrenchment compensation was computed not as per the wage board award but as per wages existing before the award the employees cannot raise this ground for challenging validity of termination but Supreme Court held that the employees were entitled to difference in payments from date of implementation of award till termination.HC) “The necessary………. The retrenchment was on November 5. Under more searching interrogation. Respondent and vice versa. 25F Pleadings by either party-what can be and appropriate forum where can be made 2499 i) Plea of non-payment of retrenchment compensation can not be raised by employee who obtained stay on the service of notice of retrenchment (Pat. Executive Engineer.. I. therefore.2J) “………. agreeing with the High Court. In our view. Dinesh Kumar v. to the effect that the grounds given in the retrenchment notice were all false and cooked up. Para: 3) l) Plea of non-compliance of Sec. dismiss the appeal. Their Workmen & Ors. will be paid the difference for the period between 1-4-1966 to 5-11-1966.appeal. But the 16 workmen being eligible admittedly for the Wage Board scale.C. as we hold on these two points in .” (Page: 199/200. invalid and Shri Naidu was held entitled to be reinstated. Para: 7) “We have………. 2000 II LLJ 1466 : 2000 LIC 2503 (Raj. The Tribunal. v. in our opinion. Rajendra Kumar Sharma v.. 25F and on appeal the Division Bench rejected the argument of the employer that in an appeal against order of Single Judge the plea regarding non compliance of Sec.” (Page: 125. to enable them to meet it. however. therefore.” (Page: 1468.593 In order to challenge the infirmity in retrenchment notice. Para: 3) “In our view. The general plea could not serve the object of putting the appellant on guard about the precise case to be met at the trial and tell the management the precise nature of the plea with respect to the defect in the notice.HC) n) Plea of infirmity in notice to be specific and precise and not in the form of a general plea (S. Union of India & Ors. 25F can be raised by workman in writ appeal though not raised in writ petition since it involves question of law (Raj. Shri Setalvad was fully justified in submitting that the management had been taken by surprise and that the Tribunal was in error in holding the general ground in the written statement to cover the specific plea of infirmity of the notice because of its being conditional.2500 Chapter VA – Lay-Off and Retrenchment Sec.HC) ¥ 5A. which was sent by registered post. 25F workman can approach the necessary forum for relief.DB) “At this………. 1993 (66) FLR (sum) 43 : 1993 LIC 678 (Raj. it is necessary that grounds given are not general but specific and precise so as to enable the appellant to meet it.” (Page: 1468.. cannot contend that there was no tender of notice pay and retrenchment compensation u/s. allowed the objection of the notice Ex. Para: 11) m) Plea of non-service of notice and non-payment of retrenchment compensation cannot be raised by workman who avoids to take drafts (Raj.591 Single Judge dismissed petition of employee against order of termination on ground that services of employee were terminated after complying with Sec.3J) “It is also clear that the respondent had not specifically raised any plea of defect in the notice given to Shri Naidu. State of Rajasthan & Ors.petition. In the absence of any basis for this new plea we are unable to reopen an ancient matter of 1966 and.DB) ¥ 5A. 25F cannot be raised by the employee. 25F wages prevalent at the time of the retrenchment. as it was not raised in the writ petition and observed that since writ appeal is a continuation of the proceedings in writ petition and the question being a question of law plea was entertainable and held that as dispute was regarding non-compliance of Sec.C.592 The workman by avoiding to take the requisite amount through bank drafts. On this view the notice was held to be conditional and. have been reasonably specific and precise so as to enable the appellant to meet it.3J) F 5A.. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the objection was covered by the general plea in the written statement filed on behalf of Shri Naidu.the act. if Clause (b) of Section 25-F is excluded from consideration and the plea relating to infirmity of the notice is ruled out. 25F(b). Management of Hindustan Steel Ltd. 1973 (43) FJR 192 : 1973 (26) FLR 136 : 1973 I LLN 208 : 1973 LIC 461 : 1973 SCC (L&S) 195 : 1973 AIR (SC) 878 : 1973 (3) SCC 564 (S. The plea of the statutory defect in the notice should.” (Page: 1468. Para: 8) “We are………. ” (Page: 841/842. cannot go back on the order of retrenchment on the plea that it is invalid and so deny his liability to pay retrenchment compensation.” (Page: 839.is dismissed. Shakuntala Export House (P) Ltd. Para: 6) “The only question………. 226 of constitution of India.” (Page: 52. then. Para: 4) . Para: 3) “When these is an………. v. Calama Industries Pvt. & Ors. it was held that management cannot subsequently adduce evidence in this behalf before Tribunal. Tambe. We are.under section 25F.594 Two women Employees were unlawfully terminated because the management was annoyed that they had complained to the Labour inspector for non-maintenance of their service records. Further there was no inquiry held in respect of abandonment. therefore..” (Page: 843.DB) “The Labour Court……….cannot be defeated.DB) ¥ 5A.. P. Industrial Tribunal.Sec. Para: 3) “In the instant case……….O. Muniswami. The Labour Court has rightly precluded the employer from questioning the validity of the retrenchment in contravention of Sec. v. 25F.” (Page: 842.before the Tribunal.under law.” (Page: 841.” (Page: 842/843. Maharashtra. 1966 I LLJ 838 : 1965-66 (29) FJR 404 : 1966 (12) FLR 55 (Mys. set aside the impugned award and hold that the retrenchment of Shri Naidu was proper and justified………. 33C(2). Para: 1) o) Pleadings by management as to abandonment of services and retrenchment being inconsistent not acceptable (Del.DB) ¥ 5A. It was held by the Labour Court that the two pleas of the management one of.595 Where union specifically pleaded non-compliance of Sec. D. Para: 4) “In view of section 25F……….. Ltd. 25F Pleadings by either party-what can be and appropriate forum where can be made 2501 agreement with Shri Setalvad.retrenchment compensation. Mahadev v. cannot stand together especially when no evidence as to any final settlement of dues is adduced. On writ petition by the employer the High Court held the above are findings of facts and do not warrant any interference under Art. the impugned order is clearly insupportable.” (Page: 200. 2005 II LLJ 389 : 2005 III LLN 576 (Del.DB) “As held by………. 25F and granted retrenchment compensation to the workman. The mere fact that conditions precedent to retrenchment were not fulfilled will not take away the workman’s right to retrenchment compensation and he was entitled to claim the amount u/s. constrained to allow the appeal. Para: 6) q) Plea of invalidity of retrenchment cannot be taken by employer to deny his liability to pay it (Mys. Labour Court X & Anr.HC) ¥ 5A. B. 1981 (42) FLR 50 : 1981 II LLN 255 (Bom.invalid retrenchment.596 The employer who has purported to retrench the workman without complying with the provisions of Sec. K. Para: 8) “For the reasons………. 25F(b) in statement of claim and Management in it’s reply failed to make an averment that requisite amount was offered.B.. abandonment of services and the other of notice pay and retrenchment compensation.HC) p) Management cannot adduce evidence as to payment of retrenchment compensation if no averment made to that effect in it’s reply (Bom. .was illegal. 25F can be claimed only by employees who were employed for 240 days and reinstatement can be granted only on existence of vacancies.DB) “The………. Legal heirs in case of death of the workman (Del. Reliefs available for violation of the sections a) Who can claim 1. he was entitled to benefit of Sec. Para: 3) “In view………. Labour Court. 25F because they worked in different units under different employers Sarvajanik Nirman Mazdoor Sangh.HC) 3. 2000 II LLJ 1511 : 2000 (86) FLR 472 : 2001 IV LLN 494 (MP.” (Page: 1512.” (Page: 776. Kanti Weekly v. v. 25B if the workman had worked for 240 days during a period of 12 calendar months preceding termination to which the calculation is made. 2003 II CLR 886 (Del. Gupta & Ors. v.” (Page: 1512. Prakash Dravid & Ors...1947……….Having fought……….HC) ¥ 5A.DB) ¥ 5A. Para: 6) 2. Para: 16) “………. State of Madhya Pradesh & Ors.HC) “………. Para: 2) “In these………. Bhilwara & Ors.with law………. from the date of retrenchment till death of workman.2502 Chapter VA – Lay-Off and Retrenchment Sec. Para: 17) b) Who cannot claim 1. Thus.HC) ¥ 5A. Held that as per Sec. there is no fault in the order of Labour Court ordering reinstatement. since the workman has died.DB) . the heirs of deceased would be entitled to arrears of salary.reinstatement. Only aggrieved employees (MP. Municipal Copo of Delhi v.598 Labour Court granted reinstatement with back wages and continuity of service and the award of the Labour Court was challenged. 25F XI.DB) ¥ 5A.597 Relief u/s.” (Page: 1511.599 Having found the retrenchment of the workman illegal for non-compliance of Sec.. he would be deemed to be in continuous service and where the workman had worked for 288 days. But in the instant case. Employees who worked for 240 days during the period of 12 calendar months preceding termination (Del. Jai Veer & Anr.” (Page: 776. Udaipur & Ors. 2005 III LLJ 149 : 2005 IV LLN 784 (Raj.is not possible………. 1983 I LLN 771 (Del.600 Workmen working in different units who did not complete 240 days service in any one unit could not seek benefit under Sec.He passed away………. 25F. Workmen working in different units under different employers if failed to complete 240 days in any of the units (Raj.D. it would be illegal to tell the workman that he is not entitled to reinstatement because management has abolished the post. Judge. 25F of the Act. D. 604 Casual workman.” (Page: 112. M/s. Hence. The expression “deemed to be in service” in the award means reinstatement (Ker.HC) ¥ 5A. T. v.. 2001 I LLJ 742 : 2001 (88) FLR 508 : 2001 III LLN 820 : 2001 LLR 312 : 2002 SCC (L&S) 1010 : 2001 (10) SCC 606 (S. when an employee had put in service for more than 240 days in each year for several years whether his services can be put to an end to without following the procedure prescribed under section 25-F of the Industrial Disputes Act.Sec. Transporting & General Worker Union & Ors. The High Court held that conditional offer is invalid amd the employee deserves full back wages had he challenged the grant of 50% back wages since he has not challenged it no interfear was made in the award.602 Where the employer offered conditional reinstatement to the employee with out continuity of service and backwages. Since the Tribunal had found that the workmen were retrenched in violation of Sec. the Labour Court upon challenge reinstated him with 50% back wages. Deep Chandra v. Para: 10) . If there has been violation thereof in his original service on the same terms and conditions in which he was working earlier.The High Court lost sight of the point in issue that is. M. worked continuously for 5 years Sec.DB) “The judgement………. La yard Food Ltd. 1998 I LLJ 109 : 1998 I LLN 127 : 1998 LLR (Sum) 576 (AP..601 The Industrial Court ordered that the employees would be allowed to be in service as the retrenchment was found to be in violation of Sec.HC) 2. Para: 2) ii) When a workman even a casual one worked for 5 years (AP.2J) F 5A. The employee applied u/s. Conditional Reinstatement by employer is invalid and he cannot contend the same against grant of 50% back wages (Bom. The High Court held that the order of the Industrial Court though not explicit. State of U. Smt. we fail to understand as to how the High Court could have interfered with the award made by the Labour Court.the award. the High Court allowed the application u/s. We set aside the order made by the Labour Court. 2006 I LLJ 1152 : 2006 (109) FLR 686 : 2005 LIC 4030 (Ker. 25F was held to be attracted and hence termination in violation thereof was set aside and reinstatement was granted. v. employed under contract of service. 25F Reliefs available for violation of the sections 2503 c) Relief of Reinstatement 1.HC) ¥ 5A..DB) ¥ 5A.P. meant that the employees should be reinstated.C.HC) 3. Verghese & Ors.M.2J) “………. The appeal is allowed accordingly. Palmon Fashions & Ors.C. National Remote Sensing Agency & Anr. Yadamma v.603 Reinstatement with full backwages was upheld by Supreme Court as there was non compliance of the section while terminating the employee who had completed 240 days of service. 1993 III LLJ (Sum) 683 : 1987 II CLR 411 (Bom. 25F it directed that the workmen would be “deemed to be in service”. & Anr. If this is the position in law.. 17B by the workmen and ordered payment of wages during the pendency of the writ petition. The employer challenged the grant of back wages as not tenable since he had offered him reinstatement voluntatraily. 17B for payment of their wages. When can be i) When workman proved having worked 240 days with the help of muster roll (S. 25F.” (Page: 743. & Anr.608 Termination of service of an employee who though did not work for one year but had completed 240 days of service in a period of 12 months amounts to retrenchment and in view of non-compliance of Sec. the High Court was justified in dismissing the challenge to the award and confirming the same.L. Management. 1983 (47) FLR 246 : 1984 I LLN 395 : 1984 LIC 206 (Pat. 25F Note: also refer to the following case Reinstatatement – is to be when employment continued for months. 2000 (87) FLR 248 : 2000 III LLN 991 : 2000 LIC 1758 : 2000 III CLR 60 : 2001 LLR 18 (Mad. General Manager..DB) “……….” (Page: 120. Ltd. 25F.” (Page: 249. State of Bihar.only.25-B of the act.All these petitioners……….” (Page: 120. Employees’ Co-operative Thrift & Credit Society Ltd.O. 1972 I LLJ 95 : 1972 LIC 81 (Ori. Labour Court. Labour Court & Anr. Ltd. Management of Orissa Road Transport Co. 2002 III LLJ 119 : 2002 (94) FLR 192 : 2002 (100) FJR 865 (P&H.C. in our opinion. wages/salary though as Badlee worker paid on monthly basis.607 Termination of services of an employee sponsored by employment exchange and without assigning any reason and in violation of the secton is illegal and hence reinstatement ordered.. Para: 2) “the argument………. Rudhan Singh & Anr. That being the case. P. Para: 2/3) ¥ 5A.DB) iii) When workman after 240 days of continuous service terminated in non-compliance of Sec. Para: 12) “……….The petitioner Nos………. Gurdaspur whereby the Labour Court directed the reinstatement of the respondent with full back wages on the ground that the respondent had completed 240 days of continuous service in the given year.. v. Berhampur & Anr. State of Punjab & Ors. N. Para: 15) ¥ 5A. Jamshedpur v. v.3J) F 5A.” (Page: 250.” (Page: 397. 8120 of 2002 of the Punjab and Haryana High Court challenging the award made by the Presiding Officer.C.” (Page: 120.3J) “This appeal is directed against the judgment and order dated 23-5-2002 in CWP No. Labour Court awarded reinstatement. Ltd.DB) “The respondent……….606 Where 240 days continuous service has been rendered termination of workmen’s services as per standing orders and not for misconduct in non-compliance of Sec. 25F is null and void and their reinstatement with back wages was directed.2504 Chapter VA – Lay-Off and Retrenchment Sec.services were terminated………. Haryana Roadways v.eyes of law. 2006 SCC (L&S) 396 (S. Para: 3) After considering……….605 Labour Court. Para: 5) . directed reinstatement with back wages and the employer has not produced material that could have rebutted the claim of workman even though same was available with him. Berhampur (Ganjam) v. 25F (S.1947. on it’s finding that workman had completed 240 days of service. Workmen of Orissa Road Transport Co.C. On this background Supreme Court held that High Court is justified in confirming the award of Labour Court. This finding of the Labour Court is based on material that was placed before it and also on the basis of the fact that the material which could have rebutted the claim of the respondent was not produced by the appellant even though the same was available with it. Tata Engineering & Locomotive Co.DB) ¥ 5A. We find no error to interfere in this appeal. Babita Kumari. .HC) U. 2003 (96) FLR 268 : 2002 III CLR 838 : 2002 LIC 2659 (Guj. Bokaro & Anr.HC) Medical Officer. Para: 23) “………..was not bona–fide..the industrial establishment. General Secretary.P.HC) Raj Kumar College Karmachari Union v..DB) .” (Page: 695. Raipur & Anr. State of West Bengal & Ors. State of Rajasthan. modified the award accordingly. Mines & Geology Department. Nagabhushanam & Ors.P. State of Punjab & Ors.610 The workman was terminated for unauthorised absence without complying Sec.accepted. The P. the consequential relief would have been reinstatement with all consequential benefits but the Division Bench denied back wages for the period workman remained out of service.HC) If 240 days completed without compliance with Sec. Labour Court. 25F and 25H would render termination of workmen’s services illegal and hence Court held that the workmen would be entitled to reinstatement. Nand Kishore Singh v.HC) Dharamveer Singh v.DB) Note: In the following cases reinstatement was awarded for termination in violation of Sec.HC) Tata Consulting Engineers v. Bhopal & Ors.. 1979 I LLJ 168 : 1979 (54) FJR 127 : 1979 II LLN 63 : 1979 LIC 499 (Cal. Grindlays Bank Employees Union & Ors. & Ors. 2003 II LLJ 692 : 2003 (97) FLR 963 : 2003 LLR 687 (AP. 1997 II LLN 291 (P&H.. Labour Court. if production section where workman was employed stopped functioning.609 Non-fulfillment of provisions of Sec. 25F Reliefs available for violation of the sections 2505 “In view………. v.” (Page: 697. Labour Court ordered re-appointment of workman for non-compliance. Ltd. Labour Court. Presiding Officer.. 2002 (95) FLR 582 (MP. Therefore. 1986 (53) FLR 678 (All.workman entitled to reinstatement with back-wages. v.HC) Mining Engineer.1987 (55) FLR 93 : 1987 II LLN 573 (MP. 25F. 2005 LIC 3094 (Jhar. Para: 8) ¥ 5A. 2001 II LLJ 1168 : 2001 (89) FLR 994 (Raj. M. State of Rajashthan & Ors. 25F Reinstatement-cannot be denied...” (Page: 251.M. Workman moved High Court for back wages and other benefits but Single Judge declined to grant any relief since workman accepted order of re-appointment. & Ors. State of Madhya Pradesh v. Para: 13) “In the instant case………. 2001 I LLJ 1238 : 2001 (89) FLR 375 : 2001 II LLN 692 : 2001 LIC 3563 : 2001 I CLR 570 : 2001 LLR 428 (Bom.HC) B.We are of………. 1998 I LLN 525 : 1998 LLR 66 : 1997 II CLR 1099 (Bom. Raj Kumar College. Virnarpinder Singh & Ors. District Health Centre & Anr. Ms. v. Valsala K. reinstatement of employee is a must. 25F.HC) Management of Oasis School. Smt. Savjibhai Trikambhai Kansagra.DB) “The learned single………. 1992 I LLJ 210 : 1991 (78) FJR 314 : 1991 LIC 428 : 1990 II LLN 954 : 1990 II CLR 506 (AP. Nair & Ors. Twin Cities Steel Re-rolling Mills Pvt. 25F. Tola v. Hyderabad & Ors.. Gupta v. Himayatnagar. State Road Transport Corporation v.O. 1999 III LLN 1166 : 1999 II CLR 502 : 1999 II LLR 1145 (Raj. Government of Rajasthan v. Para: 34) ¥ 5A. v. 2005 (104) FLR 1054 : 2005 LIC 1395 (Raj.Labour Court. Division Bench held that once termination was held to be illegal for non-compliance with Sec.HC) Termination when illegal.HC) ANZ Grindlays Bank v.Sec.. 2005 (105) FLR 338 : 2005 LLR 578 (Raj. State of Rajasthan & Ors.” (Page: 121. Jaisa Ram & Anr. Hyderabad v.HC) State of Rajasthan & Ors. State of U. Industrial Disputes Act 1947. Coimbatore v. N. 25F was not complied with. employee is liable to be reinstated and therefore Labour Court’s order awarding compensation in lieu of reinstatement was not held to be proper. Para: 8) “……….DB) ¥ 5A.” (Page: 259.612 Once it was shown that workman had actually worked for 240 days during period of 12 calendar months.DB) “In the instant……….DB) ¥ 5A. Management of Seeranaickenpalayam Weaver’s Co-op.” (Page: 257.DB) ¥ 5A..the workman was………. 1993 (66) FLR 1080 : 1993 I LLN 379 (Guj. Para: 29) vi) When termination of employees is due to closure of mechanical work shop since it is not a separate undertaking being adjunct to manufacturing activity (Guj.” (Page: 257. both conditions u/s. Para: 4) “The Tribunal found……….e. Production & Sales Soc.1947. v. 25F was rightly set aside by Labour Court and Single judge and reinstatement with 40% backwages was upheld. Mahendra Joshi & Anr.. v.” (Page: 257. Para: 27) “If the……….” (Page: 668. salary of a few employees were raised therefore retrenchment was not held to be bonafide and also as Sec. Para: 9) v) When there is violation of the section though the appointment is dehors the Act (Raj.the termination was………. 25B i. Selvaraj & Anr.DB) “………. Para: 6) “……….not justified. 2003 I LLJ 256 : 2002 (95) FLR 595 : 2003 III LLN 484 (Raj. 25F terminated employees were entitled to reinstatement with full back wages as they were not gainfully employed. Umakant C.of the Act. termination must conform to the law and hence termination in violation of Sec.retrenchment. State of Rajasthan & Ors.611 Subsequent to retrenchment.. 25F iv) When retrenchment not bonafide as effected to enable employer subsequently to raise salaries of other employees (Mad.dispute about that. Ltd.50% backwages. Para: 10) “The special circumstances………. Acharya & Ors. 25 FFF and hence in absence of any compliance with mandatory provisions of Sec.” (Page: 260. 25G was not required to be adhered and it was held that even if appointment was dehors the Act.DB) “The……….613 Mechanical workshop adjunct to main manufacturing activity is not a separate undertaking hence termination of services of all workshop employees will not fall u/s.2506 Chapter VA – Lay-Off and Retrenchment Sec.by the learned judge………. Para: 2) . Saurashtra Cement & Chemical Industries Ltd.There is ample……….any ground whatever. 2003 I LLJ 666 (Mad.” (Page: 669.. Para: 26) “Learned……….” (Page: 259. service for 240 days and employment for 12 months were fulfilled and also the employer failed to prove the special circumstances as claimed by him in which principle of last come first go u/s.” (Page: 1086. 25F is a condition precedent to retrenchment therefore before any action under aforesaid Standing Orders could be taken Sec.DB) ¥ 5A. Regarding the contention that the undertaking was not an industry. Para: 3) “……….DB) Note: also refer to the following cases The Director.11. Babulal Bishnoi v. 2005 III LLJ 389 : 2005 IV LLN 760 (Raj. Devidayal Nanackchand Sharma v. Tribunal refused to grant any relief. Helath & Family Welfare. 25F had to be complied with and since there was non compliance of the same Court directed reinstatement of the workman upholding decision of the Tribunal. When he was discontinued he moved Administrative Tribunal seeking reinstatement in view of Sec. State Industrial Court. On raising a dispute by the workman the matter was adjudicated in his favour. Chandigarh & Ors. The appointment was on 89 days basis but extended from time to time and requirement of Sec.we allow the……….614 Irrespective of contention of management that dismissal was under Standing Orders which did not require any opportunity to be given to concerned workman to show cause against his termination Court held that since observance of requirements of Sec. management had led no evidence to substantiate that plea before the Labour Court.dismissed from service.1990 to 15.Sec.DB) ¥ 5A.. he moved Division Bench which granted reinstatement of workman with 50% back wages since 240 days service was rendered by workman. 2006 (110) FLR 571 : 2006 II CLR 963 : 2006 LLR 997 : 2006 III LLJ 644 (P&H. 1961 I LLJ 167 (Bom. Chandigarh & Anr. it was held that despite having framed an issue. Nagpur & Ors.1996..HC) . Para: 7) “……….” (Page: 169. Para: 2) “……….” (Page: 168.reinstate the petitioner……….DB) “On behalf of………. 1996 LLR 493 (P&H.of standing order 23. Union of India & Ors. Balwinder Kaur & Anr. In a year the employer used to terminate and reappoint the workman in four spells... 25F was not complied with.” (Page: 168. v.7.the heading of section 25-F………. v.616 The workman was initially appointed for 89 days on daily wages. Para: 3) viii) Reinstatement proper if employee completed 240 days in a year though in spells of 89 days (P&H.” (Page: 170.section 25F of………. Being aggrieved. 25F Reliefs available for violation of the sections 2507 vii) Reinstatement is the relief for non-compliance of Sec.615 The services of a Bulldozer operator was terminated although he worked from 1.DB) ¥ 5A.conditions are satisfied………. Gurmail Singh & Anr. 25F. 25F though services were terminated under standing orders (Bom. The High Court upon a writ petition upheld the finding of Labour Court and held that the attendance register tendered by the management was incomplete and hence no inference could be drawn therefrom that the employee was not working for 240 days in a year. Chief Soil Conservator for Punjab. Para: 9) “……….” (Page: 620. India Book House & Ors.such dismissed………. Para: 13) “………. Manibhai D.HC) ¥ 5A.February 1988……….Therefore according……….2508 Chapter VA – Lay-Off and Retrenchment Sec. Para: 15) “………. On reference. workman must be deemed to be in service and further observed since workman was appointed for a specific post and not in any specific place and merely because the branch in which the workman was working was closed. 25G was not followed but instead of reinstatement granted compensation on the ground that company had closed its entire business.Therefore on both these……….618 The workman was terminated on the ground of non-availability of work.O.619 In case of wrongful retrenchment.” (Page: 608.” (Page: 615. strained relationship between management and retrenched workman could not be a ground for denying reinstatement to retrenched employee.Appointment of the……….is bad……….from 1-3-1988………. 1977 (50) FJR 28 : 1977 I LLN 94 : 1977 LIC 1338 (Mad.According to the……….” (Page: 619.in 1986………. Para: 2) “……….HC) ¥ 5A. 25F. v.) Ltd. it would not adversely affect the legal right of workman to get reinstatement and the same is upheld by High Court.HC) .legally entitled. Bhojani.HC) xi) Reinstatement cannot be denied on the ground of strained relationship between management and retrenched workman (Mad.to the petition……….” (Page: 611.617 Services of a probationer were terminated on the grounds of unsuitability and unsatisfactory work without complying with the mandatory provisions of Sec.is x) Reinstatement cannot be denied on the ground of closure when the same not pleaded by the employer (Bom. Madras & Anr. 2004 (105) FJR 604 : 2004 (102) FLR (Sum) 50 (Guj. The P. 25F. Sec.Therefore looking……….any error.. Labour Court held that the termination was illegal since Sec. 25F (Guj.” (Page: 609.HC) “In the present petition………. Sankaran v. Para: 3) “………. 1993 II LLN 905 : 1993 LLR 803 (Bom.The Tribunal has not……….This Court cannot……….In fact the reality………. 25F ix) Reinstatement proper when workman terminated for unsatisfactory work in violation of Sec.HC) ¥ 5A.Therefore the aspect……….not disputed………. High Court ordered reinstatement of workman since in the written statement of employer the fact of closure was not pleaded nor the Labour Court discussed any evidence to indicate whether the entire activity of the establishment was closed or not.specific post. Labour Court held the allegation not proved hence. Additional Labour Court.service of the………. Damodar Totaram Khairnar v.. Branch Manager. On appeal. Para: 18) award………. R. Para: 6) “………. Commercial Clearing Agnecies (P.” (Page: 617. Padam Chandra Jain v. 25F Reliefs available for violation of the sections 2509 xii) Reinstatement proper when one workman not taken back while other delinquent workmen were taken back after strike (Del.622 Even though there has been an unexplained delay in raising dispute.. On a reference. 25F as he rendered service of 22 years (P&H.O. 1991 (63) FLR 49 : 1991 I LLN 876 : 1991 LIC 633 (Pat. Anil Kumar v. The High Court held that when the Labour Court had given a clear finding that the services of the workman was illegally terminated then the Labour Court should have passed an award of reinstatement with 50% back wages. 2 & Anr. his claim of wrongful termination was rejected. the workman would be entitled to reinstatement whenever there is a violation of Sec. He was terminated on the ground that the employer sold the only truck he had with him. the employer moved High Court and contended that the workman was appointed as probationer and was never confirmed as per service rules.HC) ¥ 5A. The Chairman Industrial II.Sec.620 The services of a workman who was appointed as lab technician were terminated as he participated in the strike.HC) ¥ 5A.” (Page: 570. 2000 (84) FLR 522 : 2000 LLR 142 (Del. wherein.000 as retrenchment compensation.623 A writ petition was preferred by the workman against the award.HC) ¥ 5A. 2004 II LLJ 569 (Del. 2768/986. Labour Court & Ors. High Court upheld the said order on the ground that the workman was not taken back while other delinquent workmen were taken back resulting in discrimination..The respondent………. Delhi Jal Board v..HC) “……….1996 I LLJ 644 : 1995 (87) FJR 41:1995 (71) FLR 370:1995 II LLN 418:1995 LLR 510 (P&H. Labour Court No.HC) ¥ 5A.HC) xv) Reinstatement cannot be denied when Labour Court gave a clear finding that termination was illegal (Del.621 The workman was engaged as a truck driver. Central Dhanbad & Ors. The P.proceeding in CWP No. 25F were complied with and it ordered reinstatement with full back wages. The question before the Labour Court was whether employee’s services were terminated illegally or whether he had abandoned his services.. 50. Labour Court held that the termination was illegal as the retrenchment compensation which was paid to the workman was less and directed employer to pay Rs. Being aggrieved. Labour Court quashed the termination as bad since neither chargesheet was given to the workman nor the conditions of Sec. Para: 1) xiii) Reinstatement proper when probationer terminated in violation of Sec.HC) xiv) Reinstatement cannot be denied on the ground of delay even if it is unexplained (Pat. Presiding officer and Anr. where as the workmen had put 22 year service when he was terminated.HC) . Gidderbha Co-operative Marketing-Cum-Processing Society v. 25F. High Court upheld the order of Labour Court since no employee could be continued for more than 2 years on probation as per service rules. Dharamveer Singh v.1991 I LLN 138 : 1991 LIC 929 : 1991 LLR 252 (Cal. Lucknow & Ors.HC) ¥ 5A.He is granted………. Para: 12) 4. Ahmed Ullah Siddique v.625 Where the Labour Court awarded compensation in lieu of reinstatement upon a finding that the termination of the daily wage workman was void-ab-initio.of Rs.early as possible.” (Page: 1170. 2(oo) (All. the High Court in appeal. when the……….. When reinstatement cannot be Note: For more cases where reinstatement is denied. and it is also not proved that respondent workman was retrenched by the department. 25F as a measure of pruning (Cal. 25F xvi) Reinstatement proper when workman was terminated in violation of Sec.624 The award of reinstatement with all benefits was not implemented by the employer and despite it the employee agreed to forgo a part of his legal / legitimate claim which was awarded by Industrial Tribunal if he was reinstated before a certain date.000.O. Labour Court had no jurisdiction to pass an order of reinstatement and quashed set aside the order. readers are requested to refer sub-head with title ‘Compensation in lieu of reinstatement’ given below as well as subject index on ‘reinstatement’ i) Reinstatement cannot be of casual workman in the absence of proof of retrenchment or appointment letter or completion of 240 days (Guj. Desai. and workman was not given any appointment order and no proof was produced regarding service of 240 days. 2001 II LLJ 1168 : 2001 (89) FLR 994 (Raj.HC) ¥ 5A. Phanindra Chandra Roy v.HC) . Para: 7) “……….627 A casual driver who was asked to perform his duty when need of a driver arose.. and was asked to give his services till regular driver is recruited and who was not appointed as per rules was terminated from services. Ashokbhai J. Labour Court awarded reinstatement without any benefit for the intervening period despite the finding that workman failed to prove that after his termination someone else is appointed in his place.DB) ¥ 5A.” (Page: 1169.HC) xvii) Reinstatement cannot be denied when termination does not fall within the purview of exceptions u/s.DB) “Ordinarily. 2004 (105) FJR 1050 (Guj. 2(oo).626 Ordinarily the order of compensation by Labour Court instead of reinstatement with back wages is not interfered with but since in instant case a duly appointed employee having worked for more than 240 days in calendar year was terminated by oral order whereas other employees appointed along with him were continued. set aside the dismissal and payment of arrears within a month from the date of receipt of the award. P. State of Rajasthan.HC) xviii) When a workman’s services are terminated even after completion of 240 days by oral orders while that of similarly placed employees were continued (Raj. Labour Court. Calcutta State Transport Corporation & Ors.1990 I LLJ 109 : 1989 (59) FLR 265 : 1989 II LLN 564 (All. the normal relief of reinstatement should be given and quashed the award of Labour Court. held that when the termination does not fall within the exclusive part of the Sec. Whereas High Court directed the employer to give the employee all reliefs as granted by Industrial Tribunal that is to reinstate. 20.HC) ¥ 5A.2510 Chapter VA – Lay-Off and Retrenchment Sec. High Court set aside the Labour Court’s order on the ground that when it has found that there was no retrenchment. Labour Courts award of only compensation instead of reinstatement with back wages merely on grounds of delay of 4 years was substituted by reinstatement without back wages. Executive Engineer v. State if Rajasthan which pertains to the validity of the Rajasthan (Regularisation of Employment to Public Services and Rationalization of Staff) Act. Para: 8) “……….when the Labour Court………. In an appeal by management.628 The Labour Court directed the management to pay the compensation of Rs. The Labour Court refused reinstatement on the ground of non-availability of work.by the Department. 15. New Delhi & Anr. 15. State of Rajasthan v. 15. and so it must ordinarily lead to back wages too.” (Page: 1052. It is as if the order has never been. Naresh Subey.” (Page: 1056. Para: 3) “After considering……….He was appointed……….2J) “The Industrial Tribunal before whom the dispute was raised by the respondent workman. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. In such situations.. High Court in a writ by aggrieved workman. In a writ petition filed by the aggrieved workman.No costs. Para: 7) “In the above view……….000 in lieu of his reinstatement.C.C. Para: 3) iii) Reinstatement cannot be in case of closure of business or severe financial constraints or in case of better employment of workman elsewhere (S. after considering the material on record. Accordingly by the award dated 13-3-2000 directed the appellant State to pay the compensation of Rs. For instance.” (Page: 389. Surendra Kumar Verma etc. the industries might have closed down or might be in severe financial doldrums.” (Page: 1052.regular driver. the workmen concerned might have secured better or other employment elsewhere and so on.set aside……….Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen.C.3J) “………. came to the conclusion that it was appropriate that he be compensated rather than directing reinstatement.” (Page: 1052.” (Page: 977.However………. the High Court by the impugned order relying on the judgment of the said High Court in the case of Bhawanisingh v. 1999 held that the respondent workman was entitled to reinstatement without even considering the alternative prayer of the respondent workman himself regarding compensation in lieu of reinstatement.629 Removal of an order terminating the services of workmen must ordinarily lead to the reinstatement with back wages but in exceptional circumstances like closure of the industry or severe financial problem in the industry or if workmen has secured better or other employment. 1981 I LLJ 386 : 1980 (57) FJR 67 : 1980 II LLN 456 : 1980 LIC 1292 : 1981 SCC (L&S) 16 : 1981 AIR (SC) 422 : 1980 (4) SCC 443 (S. Court has discretion to deny the above said relief.000. Therefore. came to the conclusion that the appellant had completed 240 days in a calendar year immediately prior to his removal from service. we are in agreement with the Labour Court that reinstatement is not the proper remedy.intervening period. But taking into consideration the facts and circumstances of the case. Para: 14) ii) Reinstatement unjustified when no work is available (S. 25F Reliefs available for violation of the sections 2511 “……….Sec. Para: 6) . there is a vestige of discretion left in the Court to make appropriate consequential orders. directed the management to reinstate him. Para: 5) “………. the Supreme Court upheld Labour Court’s award holding that it was justified on the ground of non-availability of work however.000 to Rs.2J) F 5A. v.” (Page: 676/677.” (Page: 1053. 2006 SCC (L&S) 676 (S. it enhanced the compensation amount from Rs.C. The Central Government Industrial Tribunal-cum-Labour Court. Para: 2) “We have heard learned counsel for the parties and perused the records.000 in lieu of reinstatement to a workmen after taking into consideration the facts and circumstances of the case.3J) F 5A. 25. 2J) “The respondent has not worked for 240 days in one calendar year which is the condition precedent for attracting provisions of Section 25F of the Industrial Disputes Act. Labour Court held that the termination of the services of the workman amounted to retrenchment u/s. 25F the termination from service was illegal and directed to reinstate him with 50% back wages.2J) “We are unable to appreciate the approach made by the Labour Court in calculating the statutory period of 240 days in a year.12.2J) F 5A.” (Page: 153. Para: 6) F 5A. 2007 II LLJ 467 : 2007 (113) FLR 669 : 2007 III LLN 188 : 2007 I CLR 846 : 2007 LLR 779 : 2007 (1) BCR 188 : 2007 (1) Mah. 25F ¥ 5A. v. In our opinion. the learned Single Judge as also the learned Judges of the Division Bench of the High Court have committed a mistake of law in ordering reinstatement with back wages etc. Rajasthan Tourism Development Corporation Ltd. Intejam Ali Zafri.. Hence. This apart. This apart. 2006 III CLR 813 (Bom. In the instant case. the workman has not established that he has served the appellant for the statutory period of 240 days. As already noticed. 2(oo) of the Act and since the retrenchment had been effected without complying with the provisions of Sec.e. v. 2006 III LLJ 152 : 2006 (110) FLR 767 : 2006 LLR 947 : 2006 (5) SCC 764 : 2006 SCC (L&S) 1193 (S. Jagmal Singh. This apart. The fact remains that the respondent has not worked for the statutory period of 240 days which has been clearly established by the appellant. the provisions of Section 25F of the Industrial Disputes Act are not attracted in the instant case for the reason that the respondent worked only for 227 days in about 4 years period from the date of his initial appointment i. Infomedia India Ltd. there should be working of 240 days in one calendar year. 25F was not complied with Single Judge and Division Bench refused to interfere with the award.C. Single Judge denied back wages but as the establishment was closed it was held that relief of reinstatement is not warranted in this case and offer of employer of voluntary retirement benefits should be awarded which is just and proper. 1947..2512 Chapter VA – Lay-Off and Retrenchment Sec.1992.02. This fact has been overlooked by the Labour Court and also by the High Court. High Court also dismissed the writ petition filed against the order. evidence has been led to the said fact before the Labour Court but still the issue of attendance of the respondent has been decided in his favour. In our opinion. As per the provisions of Section 25(B) of the Industrial Disputes Act.e.HC) Note: also refer to the following case Ravindra Gopal Shinde v.LJ 193 (Bom.632 Workman was reinstated by Labour Court as Sec. Suhas Shripad Gadre & Anr. 28. On appeal Supreme Court set aside the award of Labour Court because records revealed that the workman did not complete 240 days continuous service.C. Para: 3) .630 The services of Machine operater terminated as per Standing Order on not joining duty on completion of 5 months after sanctioned leave on which workman raised industrial dispute. Supreme Court set aside the Labour Court’s order since records revealed that workmen completed only 227 days service in a period of 4 years and held the Single Judge and Division Bench committed error of law on the face of the record in ordering reinstatement.C.631 The Labour Court reinstated the workman as Sec. It is settled law that the workman has to prove that he had worked for 240 days. On being challenged. 25F was not complied with.HC) iv) Reinstatement cannot be when workman did not complete 240 days (S. Huda v. the workman was a causal house assistant who never worked for 240 days continuously in one calendar year. the order passed by the Division Bench is also non-speaking.1987 to the date of termination i. both the Labour Court and the High Court have failed to appreciate the fact that the respondent has failed to complete the statutory period of 240 days in a year to entitle him for claiming any benefits whatsoever.” (Page: 153. the respondent was appointed only as a daily wage earner and not as a permanent employee of the appellant and hence the respondent cannot claim any right to the post in question and that no right has accrued to him to claim any benefits from the appellant. & Anr. 2006 III LLJ 155 : 2006 (110) FLR 773 : 2006 III LLN 829 : 2006 LLR 942 : 2006 (6) SCC 275 : 2006 SCC (L&S) 1314 (S. National Textile Corporation (South Maharashtra) Limited & Ors. 07. P.In the instant case………. Agra & Ors.HC) v) When termination though violative of Sec. because.” (Page: 463.634 Where the employer loses confidence in his employee he has completed 240 days of continuous service like the Bus conductor in the present case it is held that there is no fault in denying reinstatement instead granting compensation only is held not invalid. v. 2002 (95) FLR 533 (All.DB) ¥ 5A.” (Page: 463.Regulations.. 1995 III LLJ 356 : 1987 II LLN 711 : 1987 II CLR 279 (Bom.HC) Reinstatement – Cannot be granted. Para: 6) “In this context………. then that is justified ground for not awarding reinstatement with back wages even if his retrenchment on loss of confidence is made in violation of Sec.DB) “The second respondent……….” (Page: 465/466. Para: 9) vi) When workman is found to be indulging in smuggling activities (Bom. v. Crystal Electrical v.follow.” (Page: 359. State of Punjab & Ors. The Presiding Officer & Anr. Modh. Labour Court. Air India & Ors. not entitled to relief u/s. Suraj Pal Singh v. Para: 6) “……….” (Page: 358. he did not render service for 240 days.” (Page: 358. 1990 II LLN 462 (Bom..” (Page: 358.O.It is no doubt……….the benefits received……….633 On dismissal. Shrihari Padmakar Dharmadhikari.31 March 1979. 25F. Para: 8) “In the circumstances………. Labour Court held that he was not entitled to any relief.DB) Note: Also refer to he following cases in the above context Reinstatement – cannot be granted as it is not established employee worked for more than 240 days.DB) ¥ 5A.Sec.1998 II LLJ 643 (Mad.Disputes Act. 2006 II LLJ 335 : 2006 (108) FLR 865 : 2006 I CLR 217 : 2006 LIC 601 (Del. service in the proceeding 12 monhs.order.writ petition.1998 II LLJ 417 (P&H. Para: 5) “……….DB) “Shri Dharmadhikari………. 25F.” (Page: 465.Award. 25F is for loss of confidence that is justified (Bom. Para: 5) “……….25F of the Act. Para: 1) “The Labour Court………. and award was upheld by the High Court. Maharashtra State Road Transport Corporation Nagpur v.” (Page: 466. III Additional Labour Court & Anr. Islam v.. Air Corporation Employees Union & Ors.O. P. Divisional controller. if workman has not completed 240 days of service in a year...similar. Management of Connemara Hotel.635 Where workman is found to be indulging in smuggling activities. the workman moved Labour Court claiming reinstatement as he rendered continuous service of 240 days in a year. Spencer International Hotels Ltd. 25F Reliefs available for violation of the sections 2513 ¥ 5A.In an opinion………. Para: 6) . Para: 3) “……….HC) Termination – As workman absents himself 240 days not completed. v.” (Page: 684.LJ 63 : 2007 (2) BCR 206 (Bom. Lobo & Anr.The order of……….636 Non-compliance of the provision in non–payment of the retrenchment compensation shall not result into reinstatement where Labour Court has found impairment in his capacity to work. he was awarded full back wages in terms of revised pay and other benefits but not reinstatement. 1984 (49) FLR 326 (Ori.DB) “It is not………. Lal Chand & Anr. 1982 (45) FLR 280 : 1982 II LLN 716 (Bom.” (Page: 282. he had crossed the age of superannuation and was not appointed by due process of selection. Para: 8) viii) When employee is superannuated during pendency of proceedings (Ori. The Management Utkal Ayurvedic Co-operative Pharmacy..of service. Nawroji & Co.HC) . 2006 (108) FLR 1206 (Raj.HC) ¥ 5A.and back wages. Para: 2) “The Labour Court………. M/s. Mubareek Khan v. v.637 Termination due to absence without leave under standing order was held to be retrenchment and the termination was invalid for non compliance of Sec. High Court modified the award by increasing compensation taking into consideration the fact that 8 years had passed and workman has crossed age of superannuation long back.” (Page: 330.. Shankar Krishna Nikam v. 25F vii) When workman’s capacity to work is impaired (Bom. Ltd & Anr. 25F but as the employee was superannuated. Para: 12) Note: also refer to the following cases in the above context Compensation-was granted instead of reinstatement as workman reached age of superannuation.” (Page: 331.other benefits………. Para: 10) “The next……….No costs. State of Rajasthan & Ors.DB) “Coming to……….DB) ¥ 5A. Brajabandhu Panigrahi v. Also.this writ petition.638 A driver was retrenched without following provisions of Sec.” (Page: 686. during pendency of proceedings. 2004 (106) FJR 682 : 2004 (100) FLR 784 : 2005 I LLN 400 (Raj.HC) “The facts and………. Para: 5) “………. Francis E. Union of India & Ors. Bhide & Sons Pvt.DB) ¥ 5A. Ltd. Engineering & Founders & Anr. Para: 12) ix) Reinstatement cannot be granted when workman worked for short period and attained the age of superannuation on date of retrenchment (Raj. 25F and Labour Court held that retrenchment was illegal but awarded compensation instead of reinstatement taking into consideration the fact that he had worked for a very short period and had attained the age of 55 years on the date of retrenchment. 2007 (112) FLR 605 : 2007 II LLN 354 : 2007 LIC 290 : 2007 LLR 305 : 2007 (1) Mah.2514 Chapter VA – Lay-Off and Retrenchment Sec..” (Page: 684.HC) R.this judgement... HC) ¥ 5A. Raptakos Bratt & Co. Single Judge set aside the award. & Anr. Management of Connemara Hotel.Sec.HC) Compensation in lieu of reinstatement granted. Ravichandramoorthy & Ors. 25F Reliefs available for violation of the sections 2515 x) Reinstatement not justified when tribunal did not decide the question of voluntarily leaving the job when raised by the employer (Raj. v. 2006 III CLR 482 (Raj. 2002 (93) FLR 928 (Guj. 25F since the posts they worked on were not sanctioned (Mad. 1998 II LLJ 643 (Mad. Thus the Labour Court’s award was held as proper but the award of compensation was increased. State of Rajasthan & Ors. 2003 I LLJ 729 : 2003 (96) FLR 459 : 2002 IV LLN 465 (Mad. Salem & Ors. Madras. the question of delay definitely becomes relevant and Labour Court should have gone into this question and therefore.HC) Note: also refer to the following case State of Gujarat v.. Workemen. v. Madan Singh v. Reichold Chemicals India Ltd v.641 Termination of the services of the employees who worked as ad-hoc employees for 2 years were challenged by them for non-compliance of Sec.O. 25F. Ltd. Erode.. upheld the judgement of Single Judge. Bharuch.DB) Note: also refer to he following cases Compensation granted instead of reinstatement if workmen were casual workers.DB) ¥ 5A. Division Bench held that when the Management had the plea that workman had left the job on his own and that his services were not terminated.O.DB) xi) Reinstatement not proper for casual workmen when not entitled to regular post and not completed 240 days (Bom.640 The workmen appointed as casual workmen on their simple discharge from service for their joining union without retrenchment compensation raised a dispute that they were permanent workmen and Labour Court’s order holding termination proper was affirmed by both Single Judge and Division Bench on the ground that from muster roll it was clear that workmen had not completed 240 days service and they were terminated before their joining the union and the workmen though employed in place of regular workmen could not be deemed to be permanent workmen merely because of their engagement in regular post. 1997 II LLJ 1008 : 1997 (76) FLR 877 : 1997 II LLN 268 : 1997 LLR 675 (Mad. R. Labour Court held the termination to be illegal but awarded compensation in lieu of reinstatement. 2006 II LLJ 683 : 2006 (108) FLR 1182 : 2006 I CLR 312 (Bom. against which a special appeal was filed. Spencer International Hotels Ltd. When challenged the High Court held that many of the posts in which these persons were working do not find a place in the sanctioned strength of the employer’s institute and in such a case it would not be in the interest of the institute to take back the employees on permanent basis. Maharashtra General Kamgar Union v. Labour Court. Tribunal granted him reinstatement for non-compliance of of Sec..HC) . Second Additional Labour Court. Kalidas kuberbhai Machhi..639 Workman raised dispute over termination of his service after 12 years. Reichold Chemicals India Ltd. On writ petition filed by Management. 25F of the Act. P.DB) ¥ 5A. & Management of Institute of Road Transport & Tenchology (represented by its Principal).. III Additional Labour Court & Anr.HC) xii) Reinstatement cannot be of daily wagers though terminated in violation of Sec. P. The Management of State Bank of India. Vijay Kumar & Anr. 1995 (71) FLR 272 : 1996 I LLN 136 (Mad. On employee’s application. High Court quashed the order of the Labour Court stating that he was not been terminated but he himself has abandoned the service as such he was not entitled to reinstatement with full back-wages..” (Page: 91.HC) ¥ 5A. Faridabad.Shingote. Para: 2) “However as the offer……….” (Page: 92.642 The employee of bank was dismissed in violation to Sec. 2002 II LLN 665 : 2002 LIC 685 (P&H.HC) ¥ 5A. 25F xiii) Reinstatement cannot be if there was unexplained delay of 13 years on the part of workman (Mad. High Court set aside the award of reinstatement on the ground that offer made by the employer in writing to join duty was refused by the workman and hence he lost plea of reinstatement from the date of such offer.646 An employee was working as casual worker for more than 2½ year was terminated from his services.HC) . Para: 5) xvi) Reinstatement cannot be awarded on the ground of workman completing 240 days without discussing the evidence on record (P&H. Director. N.O. 2003 I LLN 91 : 2004 LIC 214 (Bom. 25F of the Industrial Dispute Act moved Labour Court which awarded him reinstatement with full back wages as he had completed one year of continuous service by rejecting the contention of the employer that the workman himself abandoned the employment. Krishnamurthy v.645 On termination workman by invoking provisions of Sec. & Anr.back wages at all.643 When service of workman is terminated by accepting voluntary resignation.HC) xv) When workman abandons service of his own volition (Raj..constitution of India. Thus.R. 2002 (93) FLR 875 (Raj.HC) ¥ 5A. However Labour Court awarded reinstatement on the ground that he had completed 240 days in the period of 2½ year of services which was arrived at without discussing the evidence on record as such High Court held. award was perverse and liable to be set aside. The employer contended that during the period of 21/2 year he never completed 240 days in the period of 12 calendar month and as such he cannot be protected under the Industrial Disputes Act. Maharastra State Road Transport Corporation v. Ltd. Sonal Garments v.HC) xiv) If termination is by way of acceptance of voluntary resignation (Bom. Para: 4) “The award is……….set aside……….HC) ¥ 5A. v.” (Page: 92. 2001 (88) FLR 375 : 2000 LIC 2474 : 2000 IV LLN 167 : 2001 LLR 341 (Bom. 25F. P.2516 Chapter VA – Lay-Off and Retrenchment Sec.644 The dispute is with regards to removal of the workmen by the employer from the service. Trimbak Shankar Karve.. The Tribunal held that he had completed 240 days of service and as such ordered reinstatement with full back-wages and continuity in service. C. High Court refused to grant any relief to employees because there was 13 years un-explained delay on the part of workman. award of Labour Court granting reinstatement was quashed. Directorate of Millets Development v.HC) ¥ 5A. Palwal Co-operative Sugar Mills. Labour Court.HC) “Accordingly to the respondent………. M/s. he is not entitled to reinstatement. M6 and lay off compensation for 30 days agreed to before the labour officer. 1970. and. it increased it to Rs. by another sum of Rs. therefore. 750. Workmen of Coimbatore Pioneer “B” Mills Ltd. the retrenchment was not valid. 504. Thus the validity of the retrenchment as such is no longer open to question in this appeal. the Labour Court held the retrenchment invalid and yet refused to grant reinstatement as on facts the retrenchment was found valid and bonafide and instead awarded one month additional payment in lieu of reinstatement over and above what the employer granted as provided in Sec. in lieu of reinstatement. In the result while refusing reinstatement. Coimbatore and other.648 Where the employer upon retrenchment of workmen failed to pay the retrenchment compensation notice pay simultaneously as provided u/s.2J) “………. 47 accepted the compensation and went away.. The High Court on appeal hiked the compensation in lieu of retrenchment by another months wages thus in place of Rs. In other words. 25F.” (Page: 504.The retrenchment was announced on October 19. 1971 that the retrenchment was bona fide and that the reason given for such retrenchment were also legal and valid. the High Court awarded Rs. But the notice further stated that “the workers concerned have been. Para: 3) .HC) xviii) When retrenchment is valid on facts though Sec.C. 2003 IV LLN 946 (Raj.647 awarded. Labour Court. After hearing learned counsel on both sides we think it fair and reasonable to raise the compensation payable to each of the 40 workers. 1980 I LLJ 503 : 1982 (61) FJR 180 : 1980 (40) FLR 371 : 1981 I LLN 561 : 1981 LIC (Sum) 12 : 1980 AIR (SC) 1871 : 1980 (1) SCC 698 (S. Para: 1) “On appeal.” (Page.” (Page: 504. v. 39) a month’s wages in lieu of reinstatement apart from the amounts specified in Ex. but simultaneously with the announcement of the retrenchment. The remaining 40 workers raised an industrial dispute which was referred to the Labour Court for adjudication. The Supreme Court while up holding the decisions not to reinstate raised the compensation further in lieu there of by another Rs. 750 per month to each workman. 25F Reliefs available for violation of the sections 2517 xvii) Reinstatement not proper when employment is for fixed period (Raj. 1970. 1947” (hereinafter referred to as the Act).HC) ¥ 5A.2J) F 5A. When the appointment of an employee was for a fixed period reinstatementcannot be State of Rajasthan & Ors. 375 to each of the said workers over and above the amounts directed to be paid by the Labour Court.C. the High Court upheld the Labour Court’s refusal to grant reinstatement of the workers. 375 to each workman. compensation was not tendered. The Presiding Officer. Richpal Singh & Anr. The retrenchment compensation was in fact paid on October 20. but modified the Labour Court’s award by substituting “two months’ pay” for “a month’s pay” payable to the workers in lieu of reinstatement apart from other amounts awarded by the Labour Court. v. 25F of the Act.Sec. 25F violated as retrenchment compensation was not paid (S. 1970. Will be paid compensation as required by and in accordance with clause (b) of Section 25-F of the Industrial Disputes Act. But it further held that there was non-compliance with the provisions of clause (b) of Section 25-F inasmuch as the retrenchment compensation and notice pay was not aid before or simultaneously with the notice of retrenchment on October 19. 750 to each of the 40 workmen. Para: 2) “The special leave to appeal under Article 136 was granted by this Court confined to “the question of back wages payable and compensation in lieu of reinstatement and other directions regarding absorption of the workmen when there is scope for re-absorption”. the Labour Court awarded to each of the 39 workers (excepting No. The Labour Court held by its judgment dated November 18. Out of the said 87 workers. which has to be taken into consideration. which our experience shows is often quite large.e. adhoc short term. any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages.2J) “………. Para: 6) . Full and partial back wages depend further on his age and qualification and possibility of his getting another employment and where the total length of service rendered is very small or negligible. nature of appointment. daily wage. intermitent daily wage is not comparable with regular permanent character for back wages.C. whether ad hoc. which the workman had rendered with the employer.2518 Chapter VA – Lay-Off and Retrenchment Sec. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year. Haryana Roadways v. Post Graduate Institute of Medical Education & Research. Raj Kumar & Ors.C. One of the important factors. namely. is the length of service. 25F d) Relief of back wages Note: For more ratios on quantum of back wages. One of the important factors for consideration is the length of service rendered. which requires to be taken into consideration is the nature of employment. please refer to relevant heads u/s.C.” (Page: 8.” (Page: 547. would be wholly inappropriate. High Court was in error in setting aside the same without any reasons. i. the award of back wages for the complete period. daily wage.. nature of appointment viz. A host of factors like the manner and method of selection and appointment.e.3J) F 5A.. Same is the case of nature of employment i. temporary or permanent in character and special qualification and possible requirement for the job if any and these are to be weighed and balanced for a decision in this regard. he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. temporary or permanent in character. 2001 I LLJ 546 : 2001 (98) FJR 180 : 2001 (88) FLR 688 : 2001 I LLN 804 : 2001 LIC 476 : 2001 I CLR 1055 : 2001 LLR 255 : 2001 AIR (SC) 479 : 2001 (2) SCC 54 (S.650 When Sec. Another important factor. If the workman has rendered a considerable period of service and his services are wrongfully terminated. 11A and subject index on back wages 1. i. Rudhan Singh. General Manager. where the total length of service rendered by a workman is very small.3J) “There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of services was in violation of Section 25-F of the Act. whether after proper advertisement of the vacancy or inviting applications from the employment exchange. 2005 III LLJ 4 : 2005 LLR 849 : 2005 (5) SCC 591 : 2005 SCC (L&S) 716 (S. grant of back wages from date of award to date of reinstatement does not arise being inappropriate.Labour Court. entire back wages should be awarded.e a short. chandigarh v. from the date of termination till the date of the award. Chandigarh came to a finding that the services of Raj Kumar were illegally terminated by the appellant and as such declared his entitlement for reinstatement in service with benefit of continuity of service but awarding only 60% of the back wages. General principles to determine quantum of back wages i) There is no starightjacket formula to grant back wages and Labour Court has discretion to decide the qunatum on facts and circumstances (S. 25F is not complied with full backwages is to be granted subject to the Court’s discretion therefore where the Labour Court in its discretion after considering facts and circumstances of the case awarded 60% backwages. 17B & Sec. Para: 8) F 5A.. However.649 The Supreme Court held that a host of factors govern for grant of back wages upon reinstatement like the manner and method of selection and appointment ie whether after proper advertisement of the vacancy or inviting applications from employment exchange. short term. But now with the passage of time. All relevant considerations will enter the verdict.” (Page: 2032. That he had been sitting idle or not obtained any other employment.” Allahabad Jal Sansthan v. & Anr. vague and fanciful but legal and regular.2J) “In the very nature of things there cannot be a straitjacket formula for awarding relief of back wages. There ought to be available in the judgment itself a finding about the perversity or the erroneous approach of the Labour Court and it is only upon recording therewith the High Court has the authority to interfere. it would be a motion addressed to the discretion of the Tribunal. it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all. employment and appointment. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure.. that something is to be done according to the rules of reason and justice. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. employment and appointment (Raj.” (Page: 547. The Court therefore urged that it is necessary to develop a pragmatic approach to problems dogging industrial relations. But the discretion must be exercised in a judicial and judicious manner. No just solution can be offered but a golden mean may be arrived at. 2000 I LLJ 330 (Raj. It is not to be arbitrary. according to law and not humour. but the High Court found no justification for awarding back wages from the date of termination to the concerned workman who worked from Feb.C.651 A law in absolute terms cannot be laid down as to in which cases and under what circumstances full back wages can be granted or denied. 1985 to Jan. the judgment in our view cannot stand the scrutiny of otherwise being reasonable. the reasoning before however denouncing a judgment of an inferior Tribunal. 25F of the Act was confirmed by the High Court. Unfortunately. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. 1986.652 Labour Court directing reinstatement to a workman on account of non-compliance of Sec. In the event however the High Court’s interference is sought for there exists an obligation on the part of the High Court to record in the judgment. in the absence of which. When it is said that something is to be done within the discretion of the authority.HC) ¥ 5A. The High Court allowed wages from the date of the award only. Para: 2) “The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having read to the facts and circumstances of the matter in the issue upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. Sushila Smt.C. 2005 II LLJ 847 : 2005 LIC 2030 : 2005 SCC (L&S) 631 : 2005 AIR (SC) 2371 : 2005 (5) SCC 124 (S. Kota v. Para: 11) iii) Quantum of back wages to be determined on the basis of nature of work. looking at the nature of work.HC) .2J) F 5A.. but was spent unproductively. Daya Shankar Rai & Anr.Sec. Further there has been a fundamental change in the dicta of recent judgments of Supreme Court in this respect where full back wages upon reinstatement is no more the rule. More or less. the High Court did not feel it expedient to record any reason far less any appreciable reason before denouncing the judgment. For granting any back wages workmen has to raise a plea in his written statement. in the interregnum. Municipal Corporation. Para: 14) ii) No law in absolute terms can be laid down to grant full back wages but it is not automatic since industry cannot be compelled to pay for the period during which the employee contributed nothing (S. 25F Reliefs available for violation of the sections 2519 “The High Court in the matters under appeal did interfere with the order of the Labour Court in a petition under Article 226 principally on the ground that the Labour Court was in error in the matter of grant of restricted back wages to the extent of 60% and the High Court has modified the order of the Tribunal and directed entitlement in its entirety……….” (Page: 549. P. 1947.But on the peculiar facts of this appeal. we hold that the period for which the back burden to be claimed. Although earlier view of Supreme Court was that it was for the employer to raise the plea of alternative employment but now having regard to Sec.HC) ¥ 5A. back wages was denied due to delay in instituting the dispute and it was held that as delay occurred due to employee firstly approaching CAT and the same was pending for five years the delay was neither due to employee’s nor employer’s fault and therefore apportioning the burden of back wages on both parties. Merely because the employer did not plead any thing before the Labour Court so as to debar the workman for his claim for full back wages. 25F iv) Quantum of back wages to be determined having regard to financial implications on public functionary (All.” (Page: 209. Anil Kumar Puri v.when his termination dated 20. Therefore.HC) ¥ 5A. he was wrongly denied back wages on the ground that he had raised the industrial dispute after a period of more than five years. Ram Lal & Anr.1989 was set aside by the Labour Court on account of the finding that there was breach of Section 25-F of the Industrial Disputes Act. it cannot be said that there was deliberate delay on the part of the appellant-workman in raising an industrial dispute……….is maintained………. State of U.2J) “……….655 Back wages upon reinstatement is not automatic. Para: 3) vi) Labour Court to record the basis of evidence for granting back wages and mere absence of plea of employer raising objection to back wages does not entitle workman to back wages (Del.the post……….654 Dismissal was set aside for non compliance of 25F. v..” (Page: 1406. on the part of respondent-Management.C. 106 of Evidence Act or provisions analogous thereto such a plea should be raised by the workman.P.HC) “Now coming to the……….daily wage appointment……….In the facts………. therefore. Whenever back wages are awarded. the Labour Court is bound to record the basis .2520 Chapter VA – Lay-Off and Retrenchment Sec. Presiding Officer. He did not approach the employer for providing employment and later alleged that he was illegally retrenched without complying with Sec. 2004 (103) FLR 204 (All. direct by partly allowing this appeal that the appellant will be entitled to 50% back wages from the date of termination till he was actually reinstated………. awarded 50% back wages. Chandigarh & Anr. should require the burden to be equally borne by both the sides. Labour Court. We.2J) F 5A.C. Labour Court awarded reinstatement with back wages on the ground that there was lot of carelessness on part of the State while conducting the dispute.by this Court. it cannot entitle the workman for full back wages. 2000 II LLJ 1406 : 2000 IV LLN 605 : 2000 SCC (L&S) 874 : 2000 (9) SCC 129 (S. especially when the respondent-Management was not responsible for the delay before the Central Administrative Tribunal. His case is that in the meantime he had promptly approached the Central Administrative Tribunal and the matter was admitted and remained pending for five years before the Central Administrative Tribunal. The Central Administrative Tribunal ultimately took the view that it had on jurisdiction to entertain the dispute. Para: 11) v) Quantum of back wages to be determined on the basis of apportionability of burden due to delay not attributable to either party (S.to an end………. Para: 10) “At last it has been……….10..” (Page: 209.653 The workman was appointed on daily wage basis in a Social Forestry Scheme and when the scheme came to an end he was assigned with another work which was abandoned by him. High Court modified the award with 50% back wages considering the large-scale financial implication on the public functionary.” (Page: 208.as a rule………. Industrial Disputes Act. Para: 9) “Here in the present………. 6N of U. Hari Mohan Rastogi v. direct that the appellant shall be re-posted as Town-in-charge forthwith and not later than a fortnight from today. Mata Sundari College v.. Para: 6) viii) Back wages to be at the rate commensurate to the status of a daily rated workman but not at the scale of the post i. Manager.3J) F 5A. and for computation of back wages the salary and allowances applicable to the post of Town in Charge is to be considered and not what was payable for the post of sub station assistant in which he was employed afresh and accordingly directed to make payment of back wages upon re-posting him as town-in-charge.3J) “ ……….000/which would be paid to the appellant within one month from today………” (Page: 33.3J) .C.656 Termination of employee who was working as town-in-charge was held to be invalid as prequisites for valid retrenchment were not complied with and meanwhile he was appointed afresh as Sub-station Asst.HC) ix) The factor of gainful employment of the workman to be considered while examining the admissibility of back wages or deciding quantum of back wages (S.C. Therefore. to be as per scale of a driver. We direct the Labour Court to compute the back-wages payable by respondent to the appellant pursuant to this decision and this computation may be both of monetary benefits and non-monetary benefits to which the appellant is entitled after giving credit for the amount of Rs. it ordered. the Supreme Court upheld the finding of Tribunal that usually workmen of sugar factories are engaged in agricultural operations for the portion of off season and therefore justified the limiting of back-wages to 50% only. 25F Reliefs available for violation of the sections 2521 under which the quantum of back wages was awarded.the appellant continues to be in service as Town-in charge. while working out the monetary benefit with regard to the arrears of back-wages and other monetary benefits. 1961 I LLJ 649 : 1961-62 (20) FJR 34 : 1991 (3) FLR 83 : 1967 AIR (SC) 513 (S.e. Shri Badri Prasad & Anr. State of Assam & Ors. therefore.HC) ¥ 5A. Issabheel Tea Estate v. credit will have to be given for what the appellant has received as and by way of salary and all other allowances.C. 2007 I LLJ 838 : 2007 LLR 660 (Gau.. the Tribunal exceeded the term of reference and instead ordered to pay the back wages as admissible to permanent daily rated garden workers. The High Court while upholding the finding and award of industrial tribunal however held that by directing the employer to pay back wages as per scale of a driver.” (Page: 33. Labour Court & Anr.C.3J) F 5A.. Padam Kant Saxena & Ors.657 Where the services of a permanent daily rated workman was terminated without holding domestic enquiry and violating the provisions of Sec. 13. he will be entitled to arrears of salary and other benefits which can be computed in terms of money. 1968 and was confirmed in that post. One peculiar feature of this case is that the appellant was re-employed afresh as Sub-station Assistant on December 4. 1984 I LLJ 32 : 1984 (48) FLR 294 : 1984 I LLN 89 : 1983 LIC 1906 : 1985 SCC (L&S) 152 : 1984 AIR (SC) 502 : 1984 Suppl. SCC 428 (S.658 In a claim for back wages for the period of their enforced unemployment though there was no evidence that workmen were not employed else where.. But the back wages. Jaswant Sugar Mills Ltd.Sec. driver (Gau. 25F. While rendering his service as Sub-Station Assistant he was in receipt of monthly salary. 2007 LLR 370 (Del. The matter was remanded back to Labour Court to decide this issue only by providing opportunities to the parties to adduce evidence so as to arrive at the quantum of back wages on the basis of evidence and not on the basis of reinstatement. the industrial tribunal held the termination illegal for violation of the principles of natural justice and for non-compliance of the provisions of the Act and hence directed his reinstatement with back wages.. Para: 3) “We.HC) vii) Reinstatement entitles employee to wages of the post from which he was terminated but not of fresh post to be considered (S. Meerut v. General Manager. the respondent again abstained from duty without any prior intimation.In these circumstances. The Supreme Court held that while granting full back wages. therefore. at all. We request the High Court to consider the matter afresh on the question of back wages only. that usually workmen in sugar factories are employed in agricultural operations for portions of off-season. within 30 days from 8-9-1992. in our opinion. ordering full back wages to the respondent by the High Court without considering the merits of the claim by the Bank is not correct and that the approach made by the High Court in ordering full back wages cannot. he is deemed to be in continuous service from the date of termination without back wages since it requires enquiry as to his gainful employment by appropriate forum. The High Court. remit the matter to the High Court to consider the question of payment of back wages for the period in question. he was not permitted by the Bank since he had not joined duty on 8-10-1992 i.” (Page: 328. 1999 II LLJ 21 : 1999 III LLN 266 (MP. the Bank issued second notice to the respondent. Municipal Corporation. The Appellate Tribunal rightly pointed out.660 When the termination of service of a workman who completed 240 days of work is void ab-initio. the High Court. a clerk in the Bank remained absent for a long period of 4 years. He protested against the termination. the matter was referred to the Industrial Tribunal. Para: 3) F 5A. We do not see any justification to interfere with this order.” (Page: 651. Within ten days i. Since the matter is remitted to the High Court on the question of back wages only. According to the respondent. the respondent reported back to duty.e.standing orders. Vijaya Bank & Anr. The Tribunal in para 12 of its order has held as under………. Para: 11) . when he reported for duty on 12-10-1992. Para: 5) “We. On 13-5-1992. Para: 9) ¥ 5A. he abstained from duty without any leave application on 12-9-1991. Para: 1) “The High Court directed the appellant Bank to reinstate the respondent on the post held by him with continuity in service and that the respondent shall also be entitled to other consequential benefits to which he is entitled to in accordance with law.He has also now shown any acceptable material that he was not gainfully employed and. The said notice dated 8-9-1992 was received by the respondent on 14-9-1992.e. Para: 10) “As the appellant………. is not correct………. Pawan Kumar Srivastava v. his services were terminated but the High Court reinstated him with full back wages. the Bank issued notice directing him to report for duty in 30 days’ time. on 21-6-1992. the case of the management appears to be correct that the workman concerned was gainfully employed in other trade or business and had no intention to join duties of the Bank.” (Page: 327.DB) “In view………. A copy of the said notice was also pasted on the notice board. Thereafter.appellant. Pramod Kumar Gupta. 25F “As regards the claim for back wages the position was that there was no evidence on either side that for the period during which they were not employed by the company they found employment elsewhere. On 11-6-1992. the respondent will not be entitled for payment of any back wages during the period in question………. without considering the relevant issue has ordered full back wages with all other consequential benefits which. Having regard to this it ordered the payment of 50 per cent of their wages for the period of their enforced unemployment by the company till their reinstatement. and the decision of the Bank that he had relinquished and abandoned the service of the Bank appears to be fully justified.2522 Chapter VA – Lay-Off and Retrenchment Sec. be countenanced in the facts and circumstances of this case.” (Page: 325. in our opinion. 2006 (111) FLR 325 : 2006 III LLJ 971 : 2006 IV LLN 780 : 2006 (7) SCC 379 : 2006 SCC (L&S) 1659 (S. The appellant Bank is also free to hold any departmental enquiry against the respondent workman for his absence from duty during the relevant period. however. under these circumstances.2J) “The appellant before us is the General Manager of Vijaya Bank. On 8-9-1992. The respondent after four years raised a dispute on 1-4-1996. v.” (Page: 25.C. The respondent was employed in the Bank as a clerk.659 When an employee.” (Page: 25. has not considered the question of his gainful employment and therefore remitted the matter for fresh consideration of High Court while still upholding the decision of reinstatement. According to the Bank. Onkar Nath Singh v.HC) 2.C.. Presiding Officer..service. Aggrieved.HC) Back wages ..was reduced from 70% to 50%. v. It has to be kept in view that when termination is found to be violative of Section 25-F of the Act. Labour Court. High Court held that he was not entitled to back-wages as he was paid wages throughout the period he worked and thereafter he did not turn up for work. Bhubaneshwar & Anr.Sec.. 2007 I LLJ 413 : 2006 (111) FLR 135 : 2007 II LLN 766 (Ori.” (Page: 27.HC) xi) The principle of ‘no work-no pay’ to be considered to decide the quantum of back wages (Ori.662 Services of a watchman were terminated by striking off his name from the muster roll as he did not turn up for work. Samal v. unless there is a clear evidence of gainful employment in the meantime.routine. 2000 III LLJ 1678 (S. 2001 III LLJ 14 (Guj.2J) “………. the respondent could not have been denied back wages to any extent. The result would be that the workman concerned would be deemed to be in service throughout as has rightly been held by the Labour Court in his favour.2J) F 5A.HC) x) The factor of delay to be considered in determinig the quantum of back wages (Guj. Deputy Executive Engineer Panchayat Sub-Division 2 v. Para: 22) Note: also refer to the following case Back wages – a plea from the side of workman that he was not gainfully employed is important. it would be void as condition precedent would be found to be lacking for passing such order. Labour Court. Once that conclusion is reached. back wages of only 20% granted. Para: 4) . Mandavia & Anr. Navinchandra L. 25F and unless there is clear evidence of gainful employment. Chandigarh v. his services could not be terminated without following the principles of natural Justice and the provisions of the Industrial Dispute Act and set aside his termination and directed reinstatement with back-wages.HC) ¥ 5A. State of Gujarat & Ors. Post Graduate Institute of Medical Education and Research. Para: 22) “As a result……….C.661 Delay of seven years. Quantum of back wages when can be in full/when can be reduced i) Back wages in full payable if gainful employment of workman not proved (S.” (Page: 27. Executive Engineer Camps & Buildings Division. Presiding Officer. workman cannot be denied back wages to any extent hence Supreme Court upheld High Court’s decision to grant full back wages instead of 40% as directed by Labour Court. management moved High Court.663 When termination was found to be violative of Sec. as normally a driver cannot remain out of work. 25F Reliefs available for violation of the sections 2523 “As the order………. Vinod Krishan Sharma & Anr.” (Page: 1680. The dispute was referred for adjudication to Labour Court which held that since he had served continuously for a period exceeding 240 days in a calendar year. 2002 (95) FLR 445 : 2002 II LLN 600 : 2002 I CLR 816 : 2002 LLR 429 : 2002 LIC 1598 (Guj. Jitendrakumar Ranchhodbhai Bhatt.. Agra & Anr.wages. 2007 (112) FLR 1203 (All.HC) ¥ 5A. we hold that………. it is contended that the tribunal did not make an issue of gainful employment of the workman it is held that it was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence.DB) “The provisions of……….3J) “The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone.665 Where the issue of backwages upon reinstatement was decided in favour of the workman. Sonepat & Anr. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. Shambhu Nath Goyal v.C. Rohtak Camp Court.O. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course.to any back wages. 25F ¥ 5A. 25F but refused back wages on the ground that neither in the statement of claim nor in the affidavit. 25F are mandatory and their non-compliance by employer would result in reinstatement with continuity of service and back wages. it was mentioned that he was not employed elsewhere after termination of his services. High Court held that the award of the Labour Court refusing back wages on this ground was not justified as it is for the employer to show that petitioner was gainfully employed during this period..3J) F 5A.” (Page: 126. Para: 22) ii) Burden of proof as to gainful employment a) Is on the employer to have the issue of gainful employment framed by the Tribunal to determine admissibility of back wages (S. it cannot take such a course later on and the workman was not expected to prove the negative. Para: 10) “………. S.2524 Chapter VA – Lay-Off and Retrenchment Sec. Para: 13) Note: For latest view to the contrary refer the case of Kendriya Vidyalaya Sanghatana v.664 Provisions of Sec.666 The services of chowkidar was terminated.The order of……….” (Page: 224.C. Para: 12) “………. 2005 II LLJ 153 : 2005 (2) SCC 363 : 2005 AIR (SC) 768 (S. Ltd.” (Page: 222. Labour Court ordered reinstatement on the ground of non-compliance with provisions of Sec.” (Page: 422/423. P. The workman can only be asked to furnish such information at the earliest stage and where the management has not resorted to that course.face of the record.HC) “The petitioner………. Labour Court.adjudication to Labour Court.of section 25–F………. & Ors. 1986 (53) FLR 126 (Raj.. 2002 II LLJ 218 : 2002 (100) FJR 876 : 2002 (94) FLR 446 : 2002 I CLR 681 : 2002 LLR 459 (P&H.The Courts have………. Para: 1) .” “The Labour Court………. Roopa v. The management appears to have come forward with the grievance for the first time only in the High Court. Sharma. otherwise it can be construed that the employer has deliberately omitted to take that issue at a later stage to the disadvantage of the workman.. There is no material on record to show that the workman was gainfully employed anywhere. The workman was not expected to prove the negative.C. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time.” (Page: 224. 1983 II LLJ 415 : 1983 (47) FLR 438 : 1983 LIC 1697 : 1984 (64) FJR 37 : 1984 I LLN 8 : 1984 SCC (L&S) 1 : 1984 AIR (SC) 289 : 1983 (4) SCC 491 (S.2J) ¥ 5A.Court is restored………. Ajit Singh v.to be mandatory………. Bank of Baroda & Anr. Hence held that the petitioner was entitled to back wages.C. Rajasthan Tourism Development Corp. ” (Page: 658. 25F Reliefs available for violation of the sections 2525 “In view………. M.C. 1993 II LLJ 22 (P&H.2J) iii) Plea of gainful employment to be raised before Tribunal by employer but not before Writ Court (Chh. 25F and denied reinstatement but single judge set aside the same and granted reinstatement with full back wages and it was upheld by divisional bench as once termination was held unjustified necessary corollary is that workman is entitled to reinstatement with full back wages.for adjudication. Food & Supplies Controller & Ors. The initial burden is on him. Labour Court.” (Page: 659. Hence there is no merit in the petition hence liable to be dismissed. Anjad (Barwani) v. Bilaspur v. 2005 II LLJ 153 : 2005 (2) SCC 363 : 2005 AIR (SC) 768 (S.single judge. Bilaspur was………. 2003 III LLJ 555 : 2003 (98) FLR 379 : 2003 II LLN 156 : 2003 LLR 417 (MP.D. Baijnath Shukla. Para: 6) Note: This dicta is no more the rule as could be seen in the case of Kendriya Vidyalaya Sanghatana v.C.669 Termination of workman was held to be unjustified but Labour Court awarded compensation u/s. the employee has to show that he was not gainfully employed.reinstatement. Krishi Upaj Mandi Samiti..667 When the question of determining the entitlement of a person to back wages.HC) Subhash Mekurenkar v. 1998 I LLJ 1142 : 1998 (79) FLR (Sum) 30 : 1998 III LLN 513 (P&H. Para: 5) “In the result……….M. 25G of Industrial Disputes Act and directed reinstatement with full back-wages. Labour Court held that removal was in utter violation of Sec.P.668 Workman was removed from service as no longer required.HC) “Municipal Corporation. Aditya S/o. High Court held that the plea was not raised before Labour Court. S. the employer can bring on record materials to rebut his claim.. v.HC) Sachiv. Mohammed Farookh & Anr. After and if he places materials in that regard. The Dt. Mehar Chand & Anr.” (Page: 128.. Kendriya Vidyalaya Sanghatana v.” (Page: 128.first respondent workman.DB) “………. 2006 (111) FLR 658 : 2007 LLR 85 (Chh. Para: 3) .Sec.HC) Chairman. v. Patiala Central Co-operative Bank Ltd. Sharma. awarding the same is held not appropriate.HC) ¥ 5A. Krishi Utpadan Mandi Samiti & Anr. Para: 1) “The findings of the Labour Court……….2J) b) On the employee to prove that he is not gainfully employed (S. v. Para: 3) Note: Further citations on back wages granted for no gainful employment Amrik Singh & Ors.petitioner. Municipal Corporation. 2005 (105) FLR 955 : 2005 LIC 3057 : 2005 LLR 424 (MP.” (Page: 1143.the learned………. 1993 III LLJ (Sum) 764 : 1992 (64) FLR 412 : 1992 LIC 1934 : 1992 I CLR 972 : 1992 LLR 266 (All. On reference. Sharma.. Where the workman failed to so plead or place materials in support for awarding back wages. Rajya Krishi Kripnon Board.2J) F 5A.C.C. S. DB) ¥ 5A. 2005 II LLJ 153 : 2005 (2) SCC 363 : 2005 AIR (SC) 768 (S.C. Corporation challenged the said award contending that Labour Court granted full back-wages without considering that workman was gainfully employed during the period between removal and reinstatement. Allahabad & Ors.HC) iv) Full back wages payable when the Labour Court fails to furnish reasons for reducing them to 50% (P&H. Para: 11) vi) Back wages cannot be denied on the plea that it would affect public exchequer for payment of back wages (Guj.HC) ¥ 5A.The Labour Court………. Baldev Singh v. 2004 (100) FLR 174 : 2003 III LLN 1050 (Guj.of back wages.HC) ¥ 5A.DB) ¥ 5A.2526 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 177.is removed………. and ordered half back wages without assigning reasons. Para: 1) “The law in this………. In this case Labour Court found order of termination in breach of Sec. he deserved to be paid full back-wages. 25F.the workmen have been………. Para: 2) “In the present case……….. was terminated for absence from duty.” (Page: 946. State Brassware Corpn.Common order………. Para: 10) “………. 2006 III CLR 946 (Bom.” (Page: 185.HC) “……….” (Page: 947. 25F was not complied with and there was nothing to establish that during that time they were gainfully employed.. Ltd. Labour Court that full back wages will be the normal rule and any party contending departure must establish necessary circumstances or reasons. Para: 14) .P.HC) Note: For contrary decision refer case of U. Para: 12) “………. Surjit Singh v. 1991 II LLJ 534 (P&H.2J) v) Back wages in full payable when the workman even after termination made a representation to the employer to allow him to work (Bom.. Para: 8) “………. Chandrakant Harilal Rokholiya. 25F ¥ 5A.to be dismissed.normal rule………. Central Railway. and the High Court allowed the back-wages on the plea that the workman after termination did represent requesting to permit him to perform his duties which was not allowed by the employer and therefore.” (Page: 175. 2006 I LLJ 496 : 2006 (108) FLR 201 : 2006 I LLN 125 : 2006 I CLR 39 : 2006 LLR 214 : 2006 (1) SCC 479 : 2006 AIR (SC) 586 : 2006 SCC (L&S) 250 (S. High Court held that employer being a public body should act and behave like a model employer and found no irregularity in the award of Labour Court hence upheld the same.672 When the services of an employee. Mumbai & Ors. 1998 (92) FJR 277 (P&H. State of Punjab & Ors. In absence of reasons.wages to the petitioner. Chhotelal Badriprasad Yadav.670 It was held in Hari Palace Ambalo v.” (Page: 182.Ordinarily therefore………. a monthly rated casual Labourer.” (Page: 947. Para: 9) “For the reasons stated………. normal rule must be followed. Chandigarh & Anr.therefore rejected.are hereby confirmed.DB) “The instant writ petition………. Labour Court. Chief Officer Keshad Municipality v. Union of India through General Manager.consequential benefit………. v.Accordingly to may………. By rejecting the plea of employer that they being a public body and award of back wages would affect the public exchequer.673 Services of daily wagers were orally terminated. Udai Narain Pandey.671 Labour Court can not deny back wages without offering cogent reasons and no material was shown to prove that the employee was gainfully employed and the Labour Court’s direction to adjust his leave against his absence not tenable since the termination is illegal and hence High Court directed payment of back wages. Labour Court by way of a common order reinstated them with back wages on the ground that mandatory provision of Sec.” (Page: 180.plea that the………. & Anr. Akola v.C. he was reinstated without back-wages by the Tribunal. P. & Anr. Jeedimetla. Labour Court held termination illegal as it was without complying with Sec.” (Page: 876. 2004 II LLJ 569 (Del. Ltd. Goodlass Nerolac Paints Ltd. 2006 III CLR 503 (Guj. 1981 I LLJ 363 : 1981 I LLN 553 : 1981 LIC 59 (Cal. 25F of Industrial Dispute Act and granted reinstatement with 40% back-wages. Rejecting the contention High Court upheld the order of Labour Court modifying 40% back-wages in to lump sum nominal amount payable for back-wages. The Nagar Palika challenged the same on the ground that workman was not appointed as per recruitment rules and had not completed continuous service of 240 days. The P.O.. 2006 III CLR 875 : 2007 LIC 301 (Bom. Shihor Nagar Palika through Chief Officer v.HC) Back-wages – Employee entitled on illegal termination.HC) Nirmal Kumar Sharma v. Metal Equipment. 2002 (95) FLR 371 (Bom. Patiala.” (Page: 882. Municipal Board. Labour Court. 2002 (95) FLR 582 (MP.HC) Uttam Singh v.HC) Delhi Jal Board v. On challenge.” (Page: 504. Mustafa Ansari & Ors. 2002 III CLR 420 (AP.” (Page: 876. 2002 (92) FLR 762 : 2002 I CLR 132 (P&H.675 When the services of an employee was terminated.HC) ¥ 5A.Sec.. Hyderabad v. Para: 2) “By its order dated……….being an interim period.HC) State of Madhya Pradesh v. Pancham Singh v..HC) ¥ 5A.HC) “In this group petition……….HC) Ramani Mohan Industries Pvt. Venkateswar Rao & Ors..674 The services of daily workman were terminated. 25F Reliefs available for violation of the sections 2527 Note: also refer to the following cases on full back wages Back wages cannot be denied by the employer on grounds of sickness of the company or incapacity to pay. Kherthal & Anr. Aurangabad Times & Sham Nama Evening Urdu Daily v.continuity of service. despite working 240 days in the previous year Sec. Second Industrial Tribunal & Ors. 2003 (96) FLR 877 : 2002 LIC 3329 : 2003 LLR 154 (Raj.” (Page: 876/877. The High Court there upon upholding his reinstatement with continuity of service by Industrial Tribunal held that 25% of back-wages instead of full will meet the ends of justice having regard to has gainful employment which may not be substantially better one. Para: 3) “The Industrial Court held that……….and 4th July 1989. Para: 5) “In the present case………. Jamil Ahmed Mohd. State of Haryana & Anr. 25F was not complied with. Presiding officer and Anr... v. Para: 3) “In light of the observations made……….. Anand Shivram Samant & Anr.40% back wages of interim period. Para: 20) ..HC) “The claim of the First………. v.” (Page: 510 Para: 13) viii) 25% granted inspite of gainful employment when the same is not substantially better (Bom.. Labour Court.HC) vii) Back wages as a lumpsum granted when workman is a daily wager (Guj.unfair labour practice. Natvarlal Maganlal Trivedi. 1986 I LLN 911 (P&H. Bhopal & Ors.to the aforesaid extent.HC) The Chief Editor. v. however. 2004 (103) FLR 1069 (Guj. state brassware corporation from 23. U. Industrial Disputes Act. Ltd.” (Page: 220.676 Where the services of workmen appointed in U. reinstatement to him cannot be denied merely because the project being coming to an end during the pendency of the dispute.1987 was subsequently got appointed in non ferrous rolling mills from 8. Para: 45) “The changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy. privatization and outsourcing is evident.2528 Chapter VA – Lay-Off and Retrenchment Sec. Udai Narain Pandey.P.1984 to 8. & Anr. 2006 (108) FLR 201 : 2006 I LLJ 496 : 2006 I LLN 125 : 2006 I CLR 39 : 2006 LLR 214 : 2006 (1) SCC 479 : 2006 AIR (SC) 586 : 2006 SCC (L&S) 250 (S. The Court held that the fact that the workman was already reinstated pursuant to award of Labour Court in other Government Department.C. that the said GO has substantially been implemented.HC) ¥ 5A. the functions of an industrial Court shall lose much of its significance. Rajendra Prasad Shankar Lal Purohit v. Para: 64) “The judgments and orders of the Labour Court and the High Court are set aside and it is directed that the Respondent herein shall be entitled to 25% back wages of the total back-wages payable during the aforesaid period and compensation payable in terms of Section 6-N of the U. In this view of the matter.2J) F 5A. the same shall be adjusted from the amount payable in terms of this judgment.P.” (Page: 220. If.7.P.677 Where the workman was terminated when the project was still going on and he has put up 240 days of continuous work his termination being ab initio void. State Brassware Corpn. The Government now connot raise contention that since the project in which the workman was working has been closed and he can not be reinstated and that since no written appointment order not he was informed while engaging orally that his tenure of appointment is limited to project he can not be considered as project employee and Court reinstated him into 30% back wages in the instant case relying as the case of S. The Supreme Court held that merely because the termination is illegal the employer is not entitled to full back wages. which has been noticed hereinbefore. globalization. It had further been averred.” (Page: 223.2J) “A person is not entitled to get something only because it would be lawful to do so. Para: 65) x) Back wages to the tune of only 30% payable when project workman terminated six years before the project came to an end (Guj. The recent dicta of Supreme Court judgments has laid down not to saddle the employer with burden of full back wages where the employee rendered no work. 25F ix) 25% garnted since employer cannot be saddled with burden of full back wages for no work rendered (S. Executive Engineer. If that principle is applied.” (Page: 223. we are of the opinion that interest of justice would be subserved if the back wages payable to the Respondent for the period 1-4-1987 to 26-3-1993 is confined to 25% of the total back-wages payable during the said period. Nilajkar. 2003 (97) FLR 608 (SC). Para: 46) “The only question is whether the Respondent would be entitled to back-wages from the date of his termination of service till the aforementioned date.1.2.1.HC) . Hence 25% back wages only granted as fair and proper and judgment of Labour Court and High Court set aside.C.M. any sum has been paid by the Appellant herein. The decision to close down the establishment by the State of Uttar Pradesh like other public sector organizations had been taken as far back on 17-11-1990 wherefor a GO had been issued.1987 to 12/13.1987 and was terminated on expiry of tenure giving rise to industrial dispute in which they got reinstated with full back wages by Labour Court and the petition in challenge before High Court was also dismissed. reinstatement with only 50% backwages was granted.December 1999……….HC) Back wages – claim of the workman allowed.He chise to………. Co. unlike other employees.HC) ¥ 5A.project alone……….” (Page: 1070. Para: 10) “In the result……….HC) xii) 50% back wages granted on no work no pay basis though employee was wrongfully denied work by the employer (All. 2000 (87) FLR 339 (Raj. came to the findings that the work for which the employee was appointed was not temporary or contingent . Para: 3) “……….office/project. Chiplun Municipal Council & Anr.HC) “………. N.D. Shri Khanderao A. Mohite v. v.to the employer……….” (Page: 1074. Jodhpur & Anr.” (Page: 1072.. 2000 (86) FLR 18 : 2000 LIC 1331 (Bom.the re was no………. New Standard Engg. Devendra Pandurang Pandore v.Writ Petition No.” (Page: 1074.the Labour Court………. State of Maharashtra through Executive Engineer v. Vijay Pal Singh & Ors. Para: 2) “The employee was………. Labour Court came to the finding that termination was in breach of Sec.The paragraph 12………. Para: 10) 1996………. High Court in the interest of justice granted 50% back wages from the date of filing statement of claim till pronouncement of award by Labour Court. Para: 3) “………. 2002 LLR 1155 (Bom.Therefore according………. The Chief Executive Officer. the Labour Court considering the pleading of the parties.HC) Backwages – 50% denied by High Court considering facts and circumstances of case and passage of time.Therefore considering……….allowed………” (Page: 1158.back wages………. His services were orally terminated and he raised a dispute in the year 1993.for all “………. 2004 II LLJ 607 : 2004 V LLN (Sum) 240 (Del. 25F and 25G of the Act and granted reinstatement but for delay in filing the application. Para: 11) xi) Only 50% back wages admissible from the date of filing claim statement till passing of award in view of delay in raising the dispute (Bom.679 An employee was working as sheet writing clerk in a seasonal work during the crushing season 1971-1972.HC) Employee filing the complaint belatedly.question was closed……….June purposed………..” (Page: 1158. Labour Court.issuing within under……….. Para: 7) “……….C. On reference.” (Page: 1156.of reinstatement. & Anr. Sarvajanik Bankdhkam Vibhag.statement of claim……….Sec.M. 4759………. Para: 5) “Writ Petition 4759………. Para: 6) Note: also refer to the following cases where back wages were reduced or denied on account of delay Back wages refused as the dispute was raised after 15 years and workman was also occupying the company’s quarter for 15 days.On 14th March 1989……….as directed earlier……….. Sayyedlal Gani Sayyed AND Sayed Lal v.in my considered……….Labour Court……….considering the legal………. Bhika Ram v. but he was denied work in the crushing season of 1972-1973.” (Page: 1073.678 Workman was employed during 1983-1987 for doing the work of maintenance and repair of the road. it denied of back wages.HC) ¥ 5A. 2 years wages deducted due to delay.” (Page: 1156.Hence in the………. 2005 (104) FLR 536 : 2004 III CLR 666 (Bom. 25F Reliefs available for violation of the sections 2529 “………. Para: 4) xiii) Backwages of 50% granted since employer is public instituition and the employee was not employed after termination (Mad.P. As regards back wages it was held that order of full back wages is modified to 60% back wages from date of reference to date of award and full back wages from then onward till reinstatement. Therefore. he was entitled for show cause notice. therefore. it would be proper to allow 50% of the last drawn wages as interim relief. 2(oo) (bb) is not applicable. He was terminated because of misconduct without enquiry and hence Labour Court was right in setting aside the termination.2530 Chapter VA – Lay-Off and Retrenchment Sec..HC) xv) 60% granted to probationer who was terminated for misconduct without enquiry and terminated without enquiry (Guj. The High Court dismissed the writ petition filed by the employer stating that it would not interfere with the findings of the Labour Court but decided to award half the emoluments on the principle of ‘no work no pay’ from the date of termination to the date of reinstatement in the coming season and just modified the award of Labour Court reducing it to the extent of 50%. 25F of the Act also should have been complied with. v. High Court held that as workman not rendering service to the management and even after reinstatement the workman may not be entitled to full back-wages.681 An Assistant Secretary was terminated as he was not recruited through Employment Exchange.HC) xiv) Only 50% backwages granted as the employer being the State cannot be saddled with full back wages (Guj. as per recent pronouncement of Supreme Court.680 The order passed to give full last drawn wages to the workman till final award was challenged before High Court.HC) ¥ 5A. 2002 III CLR 439 : 2002 LIC 3214 (Guj. M/s. Om Prakash. The High Court found that Sec.683 Workman was retained after completion of the probationary period. was challenged. Vellore & Anr. Jayantibhai Chhimabhai. Chefair Hotel Corporation of India Ltd.HC) ¥ 5A. P. Sec.O. v.” (Page: 1068. Executive Engineer.HC) “In the present case………. order of termination is violative of Sec. U. & Anr..682 Award of Labour Court holding the workman’s termination of services valid and refusing to grant relief holding Sec. 25F regarding retrenchment were not complied with. Gramya Marg Vikas Yojna Vibhag. Labour Court. 25F is clearly applicable as workman had put in continuous service of one year.P. 2006 LLR 1066 (Del. Poori @ Bhoopathi v. 25F and provisions of Sec. he was reinstated with 50% of back wages. as full back wages cannot be granted as the employer being the State should not be saddled with liability of full back wages. Rajendraprasad Shanklal Purohit v.HC) ¥ 5A. U.wages as interim relief. 25F is not applicable.HC) ¥ 5A. thus Sec. Deputy Executive Engineer v. 2002 (95) FLR 624 : 2002 III LLN 1099 (Mad. R. As he had worked for more than 240 days. State Sugar Corporation Ltd. 25F and High Court held workman entitled to relief of reinstatement with back wages up to 50%. The Labour Court. 2005 LIC 951 (All.HC) Note: Other citations where quantum of back wages were reduced are given below . 2001 (89) FLR 446 : 2001 II LLN 1077 (Guj. The management shall be liable to pay 50% of the back wages as it was a public institution and also the secretary had not been working after the date of termination of service. Sec. daily wage.HC) ¥ 5A. One of the important factors.. 2004 LIC 1602 (Jhar.2. 2005 III LLJ 4 : 2005 LLR 849 : 2005 (5) SCC 591 : 2005 SCC (L&S) 716 (S. Deputy Executive Engineer v.684 Termination of services of a temporary clerk without complying with Sec. nature of appointment. v. whether after proper advertisement of the vacancy or inviting applications from the employment exchange. Faridabad & Ors. is the length of service. Chandra Kant & Anr. Pandya.HC) xvi) Full back wages from the date of termination to the date of reference not admissible since not appropriate to burden the exchequer meant for public benefit and 60% back wages permissible for the period of pendency of reference since employee is not at fault (Guj. from the date of termination to the date of reference since the employer is a public body and it is not appropriate to burden Exchequer meant for public benefit with full back wages and granted 60% back wages from the date of reference to the date of award and disallowed any backwages from date of termination to date of reference but full backwages from date of award and till date of reinstatement as the employer is not at fault for pendency of adjudication for 13 years.C.DB) Termination – without complying with Sec. 2007 I LLJ 350 : 2006 III CLR 934 : 2007 LLR 138 (P&H. Judge.3.685 Where are employee worked only 264 days in his short employment from 16. 2006 (108) FLR 331 : 2006 I CLR 344 (Raj. Employer in relation of Management of Central Planning & Design Institute Ltd. 2003 (97) FLR 445 (Raj. he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment.1988 to 28.. Dausa v. 25F will be violated if he is terminated without its compliance. A host of factors like the manner and method of selection and appointment. Dhani Ram & Ors. whether ad hoc. i.HC) 3. General Manager. A plea of employment only for a fixed period cannot be taken before Supreme Court unless taken before Courts below and a claim for a for backwages is not tenable when the employee only works for very short period as in the present case and disallowed payment any backwages and set aside the 50% back wages granted by Labour Court in this regard. v. where the total length of service rendered by a .C. Union of India & Ors. temporary or permanent in character.HC) Back wages 40% granted when terminated in violation of Sec. which has to be taken into consideration. Rudhan Singh. 25F is illegal and he was entitled to reinstatement. 2000 III LLJ 1066 : 2000 (86) FLR 841 : 2000 II CLR 881 : 2000 LLR 940 (Guj.e.. State of Rajasthan & Anr. 25F and 25G. 25F Reliefs available for violation of the sections 2531 Back wages – 50% granted. Labour Court-II. However.3J) F 5A. but the High Court found no justification for granting full back wages. Labour Court. Labour Court’s order grants full backwages was modified accordingly. 25F. Presiding Officer. v.. Chief Medical & Health Officer.3J) “There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act. Haryana Roadways v. Jaipur & Anr. entire back wages should be awarded. namely.HC) Back wagest – 40% Casual workers employed on a permanent nature of job having put in long period of service are covered. illegal – 25% granted. Jiviben V. short term.1989 still Sec. which the workman had rendered with the employer. Back wages when can be denied i) Back wages not payable in case of a daily wager who completed only 264 days in his short employment under a year (S. any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. If the workman has rendered a considerable period of service and his services are wrongfully terminated. Quader v. As the employee has already been reinstated. Bhubaneshwar & Anr. the award of back wages for the complete period. which was less than one year. Samal v.E.” (Page: 138. Para: 2) “On the basis of……….HC) iii) Back wages denied for unauthorized absence on the principle of no work-no pay (Ori. Even during this period there were breaks in service and he had been given short term appointments on daily wage basis in different capacities. Employer reinstated the workman but denied to pay back-wages.687 Services of the workman were terminated without enquiry for remaining absent. (Operation). The Labour Court held that she remained absent without bonafide reasons and therefore is entitled to only reinstatement without wages as provision of Sec. 2006 (111) FLR 135 : 2007 I LLJ 413 : 2007 II LLN 766 (Ori. 2002 (95) FLR 782 (AP. Camps & Buildings Division. After repeated communications being sent by the employer. The respondent is not a technically trained person.to his reinstatement.HC) ¥ 5A. 25F (Bom.HC) Ravindrakumar B. Presiding Officer. A. High Court held that the workman was not entitled to back-wages automatically on the non-compliance of Sec. Para: 11) ii) Back wages not payable since the employee remained absent without bonafide reasons though reinstated for non-compliance of Sec. i. According to the finding of the Industrial Tribunal-cum-Labour Court plenty of work of the same nature.. 25F are not attracted.2532 Chapter VA – Lay-Off and Retrenchment Sec.should be applicable. 1997 LIC 207 (Guj. which the respondent was doing.. Executive Engineer. v. Hyderabad & Anr.B.in this Writ application. In such circumstances we are of the opinion that the respondent is not entitled to payment of any back wages. 25F workman is very small. v. 25F of Industrial Dispute Act as it depends upon several factors and since in the present case there was deliberate abstention from work the principle of ‘No work No Pay’ would be applicable. National Dairy Development Board.HC) ¥ 5A.1998 I LLJ 463 : 1997 (77) FLR 926 : 1997 IV LLN 430 : 1997 II CLR 926 (Bom... which requires to be taken into consideration is the nature of employment. Para: 8) “In the case in hand the respondent had worked for a very short period with the appellant. would be wholly inappropriate.P. Nafisa Shabbir Hussain Mashraqui & Ors. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year.S. her services were terminated as no reply was received. Para: 4) “Law is well settled that………. Labour Court ordered for reinstatement with back-wages.” (Page: 9. After 4 months she returned and claimed that the termination was illegal and she was not given opportunity of being heard. from the date of termination till the date of the award. the Court would not disturb the status quo and the petitions are disposed off.” (Page: 136. A request was made for extension of leave which was not granted and the employee failed to communicate whether she could resume duty.HC) “The award dated……….686 An employee was granted 3 months leave on an undertaking being given that if she failed to resume work on the said date. also the undertaking was detained under duress..” (Page: 8. but was working on a class IV post. Another important factor. Patel & Anr.for adjudication………. was available in the District of Rohtak. Blow Plast Ltd. Labour Court. which our experience shows is often quite large. On challenging this.” (Page: 137. Para: 7) Note: also refer to the following case where back wages denied for absence S.HC) . 25F were not complied with by the employer. the services would be terminated. Superintending Engineer. The High Court held that employee is not entitled to be reinstated and provisions of Sec.” (Page: 137/138 Para: 6) “In the result……….A.e. Labour Court’s award was set aside accordingly. 800 p. S. Government of NCT of Delhi & Ors. but back wages were disallowed on two grounds. (1) long delay in raising the dispute and (2) employee is in employment on salary of Rs.3J) . The High Court on writ petition held that the workman cannot be reinstated because he was already superannuated and secondly he was also denied the backwages on the ground that the allegations were of fairly serious in nature and he could not have worked with the company during the pendency of the criminal proceedings. from 1988 onwards at Parel. Mohamed Hussain & Anr..3J) F 5A.awarded to him. Air France v.690 Labour Court holding termination of services of an employee to be illegal. 800 p.m.C.HC) ¥ 5A. Para: 14/17) vi) Back wages denied for long delay in raising dispute and employee earning Rs..HC) e) Relief of re-employment can be 1.688 When the termination order passed by the employer is set aside. When new recruitment was made by employer subsequent to termination of the workman (S.HC) ¥ 5A.689 A workman was discharged from service in October 1975 in view of his alleged involvement in smuggling under the Customs Act. Hence this writ petition.C. He sought reference of dispute but the same was rejected by the Delhi Administration. if an employee does not report for duty within reasonable time the Court cannot allow the claim for back wages especially when that employee is found working elsewhere soon after the order of re-instatement was passed.m. (Bom..” (Page: 1144. Ratnagiri & Ors.. v.HC) “The grievance……….Sec. 1968 LIC 1143 (Mad. So the relief was granted to the employee.691 Direction by industrial tribunal to give re-employment to retrenched workman was held justified as subsequent to retrenchment new employment was made and thereby employer violated provisions of Sec. Telecom District Engineer.HC) v) Back wages not payable merely on acquittal of criminal charges when they are fairly serious and employee did not work during pendency of criminal proceedings (Del. it is the duty of the employee concerned to join the service within a reasonable time or to give a notice that he should be re-instated.. Subsequently. The Labour Court granted reinstatement and back wages to the workman even though he was superannuated well before the award. The High Court observed that the management has not made out a case for not granting relief of reinstatement with continuity of service. 1961 II LLJ 110 : 1961 (3) FLR 237 : 1967 AIR (SC) 667 (S.for this period. Kanpur v. criminal proceedings initiated against the workman under Customs Act were quashed. Cawnpore Tannery Ltd. 25F Reliefs available for violation of the sections 2533 iv) Back wages not payable when employee is not joining duty on reinstatement but working elsewhere (Mad. Peer Mohamed & Co. failed to grant normal relief of reinstatement and back wages. Parshuram Yallapa Kotekar v. Para: 1) “So far as……….HC) ¥ 5A. He sought reference of dispute for a second time and the same was allowed. Guha & Anr. 2005 I LLJ 1142 : 2005 II LLN 557 : 2005 I CLR 307 (Del.” (Page: 1143. 2002 (93) FLR 1181 : 2002 II CLR 78 : 2002 LLR 825 (Bom. 25H which was although not in force but added later on and yet it is held that the principle was recognised by Tribunal in industrial adjudication. above O. before the Act was amended. the Government employee with continuity of service and back wages.In our opinion. v. Sen is justified in contending that the order passed in the present proceedings against the appellant is contrary to industrial law. however in compliance with Sec. Even before 25-H was added to the Act industrial adjudication generally recognised the principle that if an employer retrenched the services of an employee on the ground that the employee in question had become surplus.T. It would be noticed that the principle which was applied to the case of an employer who re-opened his business which had been closed by him is substantially the same principle which requires the employer to give an opportunity to his retrenched workman when he has occasion to engage another servant. 1949-1 Lab LJ 111: (IT-West Bengal) . That is why the Labour appellate Tribunal has observed that the principle now statutorily recognised by Section 25-H was. Para: 12) “With these………. All). 1950-2 Lab LJ 125 (IT-West Bengal) and Sri Annapurna Mil1s v..” (Page: 112.” (Page: 1124.DB) ¥ 5A. It is true that in the case of Annapurna Mills the discharge of the workmen was the result of the fact that the employer had closed his business and it was held that with improvement in circumstances if the employer re-opened his business it was necessary that he should take back in his employment his old employees. This principle was regarded as of general application in industrial adjudication on the ground that it was based on considerations of fairplay and justice. The Corporation of Cochin & Ors.HC) ¥ 5A.I.the industry.A. Employees are not liable for reappointment as against Public Service Commission recruits. V..This position is now made perfectly clear by the present definition of “workmen” which includes a person who had been dismissed.692 When provisional employees are retrenched and in their place candidates selected by the Public Service Commission are appointed. Their Employees. Jalaja & Ors. and MacNeill and Co.2534 Chapter VA – Lay-Off and Retrenchment Sec. v. Guha as well as the propriety of the appellant’s conduct in not giving him an opportunity to be re-employed when an occasion for the employment when an occasion for the employment of an additional clerk arose.P. recognised by industrial adjudicators in dealing with such question. Cannot be when provisional employees were retrenched and replaced by Public Service Commission recruits (Ker. 25F be complied with as regards such retrenchment. (1953) 1 Lab LJ 43 (L. 25F “………. it was necessary that whenever the employer had occasion to employ another hand the retrenched workman should be given an opportunity to join service. Kilburn and Co. Para: 1) f) Relief of re-appointment whether can be 1. Continuity of service means i) The intervening period to count for seniority and back wages on pay revised during the intervening period (Raj.. Para: 2) “………. Therefore. it is necessary that the provisions of Sec. vide Shri Vishuddananda Saraswathi Hospital v. this argument is misconceived.693 Where the Labour Court by an award reinstated.S. Certain Workmen. discharged or retrenched. Para: 8) “An employer……….alternative relief. the definition of the term “industrial dispute” is wide enough to justify the Union of which Mr.DB) “We are clear………. Para: 13) g) Relief of continuity of service 1. we do not think that Mr. That is the view taken by the Labour Appellate Tribunal and we are not satisfied that the said conclusion is erroneous in law so as to justify our interference. Their Employees.” (Page: 112. Besides. 25F retrenchment compensation is directed to be paid to them. 1985 LIC 1121 : 1984 I LLJ 526 : 1984 I LLN 685 (Ker.” (Page: 1123. the State Government considered the same among other things stating that the workman is entitled for back wages on the scale of pay he was entitled at the time of termination implying there by that he was not entitled to the revised wages whereas the .” (Page: 1124/1125. 695 Non-compliance whether with Clause (a) of Sec. Labour Court.1981 during the intervening period of the award.P. Labour Court. v. 1994 III LLJ 252 : 1988 (57) FLR 218 : 1988 II CLR 220 : 1989 SCC (L&S) 565 : 1989 Suppl. Chheharta v. increments falling due during the period of employment to be paid along with wages (P&H. The conclusion therefore. When can be i) When retrenchment and suspension are declared void employee entitled to be in continuous service (P&H.C. 1986 I LLN 189 : 1985 LIC 1770 (Ori.. Rabindra Kumar Prusty & Ors. is that the workmen. 25F of the Act then the order of termination is void ab-initio and employee is entitled to continuity of service with back wages. Bhatinda. void and inoperative.accordingly.2J) .DB) ¥ 5A. whose suspension and retrenchment orders are found by a competent Court or Tribunal to be illegal workman entitled to be treated to be continuing in service. 2007 (112) FLR 968 (Raj. Labour Court.1976 and 1. P.694 Workman who was terminated and reinstated by management was entitled to increments along with wages for the a period during which he would have been entitled to had he not been out of employment. Presiding Officer. 25F is deemed to be non-est or void ab-initio (S.HC) ii) If reinstated pending final result of writ petition. Gorakhpur & Ors.9.HC) ¥ 5A. Kundan Iron & Steel Industries.O. State Sugar Corporation Ltd.HC) ¥ 5A.C.. The P. 2005 LIC 2222 (All.DB) “In view………. (2) SCC 97 (S. 1972 (25) FLR 50 : 1971 LIC 1213 (P&H. This therefore can be computed u/s. Government of Orissa & Ors.2J) F 5A. Harish Chandra Sharma & Ors. P.Sec. 25F Reliefs available for violation of the sections 2535 High Court held that since the continuity of service has been granted which is not only for seniority but also for the entitlement for intervening period and therefore the workman is entitled for fixation of pay at least at the minimum of revised pay scales or fixation due from 1.696 Termination of workman without giving notice or wages in lieu of notice being made in violation of Sec...HC) ii) When workman without giving notice or wages in lieu of it is terminated (Ori. v. 25F or with Clause (b) thereof will equally render a retrenchment invalid. Punjab State Electricity Board v. 1995 I LLJ 666 : 1995 I LLN 194 (P&H. v. State of Rajastan & Ors.O. Workmen of M/s.9. A void order has in law to be treated as having never been passed. 33C(2) of the Act. Narotam Chopra v. Jullundur & Anr. Para: 14) iii) When termination in violation of Sec.HC) 2. Labour Court. U. U.P.HC) Note: also refer the following case M/s.” (Page: 195.O. 25F was set aside and directed to be continued in employment.697 If the service of an employee is terminated in contraventions of Sec. State of M. therefore. He admittedly worked in different departments of the State. For acquiring that status and for obtaining the constitutional protection in terms of Article 311 of the Constitution of India. while appointing the respondent. all appointments must be made in conformity with the Constitutional Scheme as laid down under Articles 14 and 16 of the Constitution of India as well as the rules made in terms of the proviso to Article 309 of the Constitution of India or in terms of a Legislative Act. governed by the terms of the contract and/or the provisions of the statute applicable in relation thereto.” (Page: 252/253.C. thus. National Bicycle Corporation of India Ltd. 1947. 15. The rights and liabilities of the parties are. The award of the Labour Court as also the judgment of the High Court are set aside.” (Page: 107. Ranchi. 2002 (95) FLR 751 (Bom. & Ors. When can be i) When termination is as a result of closure of unit (S.000 is granted to him instead of full back wages. But the Supreme Court held that since he was appointed as a daily wager he does not hold any post in Government for protection under Art.HC) h) Relief of Compensation in lieu of reinstatement is proper 1.. On raising a dispute Labour Court reinstated him with full back-wages for violation of the section which was affirmed by High Court. Keluskar & Ors. true that while terminating the services of the respondent the appellants had not complied with the mandatory requirements of Section 25F of the Industrial Disputes Act and.10. 2004 IV LLN 1073 (Jhar. 2001 II LLJ 309 : 2002 (92) FLR 211 : 2001 III LLN 1036 : 2001 LLR 1037 (Del. Para: 5) “Keeping in view the fact that the services of the respondent were terminated on the ground that the production unit in which he was working itself had been closed. His last posting was in the production division of Forest Department in the District of Guna which as noticed above stood abolished.e.699 The services of Chowkidar appointed as a daily wager without any appointment letter and worked from August 1984 to July. Concededly. v. 311 of the constitution nor was he entitled to reinstatement since the unit was closed despite violation of Sec. goes without saying that he would be entitled to the wages for the period he had actually worked pursuant to or in furtherance of the order of the Labour Court and as also of the High Court upon his reinstatement. 1992 was terminated on closure of production unit.HC) Rajendra Bhagat & Ors.DB) Note: also refer the following cases where continuity of service was awarded by the Courts Amalgamated Machines Corporation v. 2006 II LLJ 104 : 2006 (109) FLR 156 : 2006 II LLN 842 : 2006 LIC 1319 : 2006 LLR 381 : 2006 (2) SCC 711 : 2006 SCC (L&S) 429 (S. 25F of the Act and interest of justice would be met if monetary compensation of Rs. The Forest Department is a wing of the State. we are of the opinion that interest of justice would be sub-served if a monetary compensation of Rs. Its employees hold a status. Niranjan Dass MANU/SC/0237/1983. & Anr. the workman could have been directed to be reinstated with or without back wages.698 When termination is violative of Sec.C. Para: 10) .2J) F 5A. 25F. it is deemed to be non-est and hence the workman was deemed to be in service on the appointed day i.2J) “It is beyond any doubt or dispute that a daily wager does not hold a post.1980 and consequently entitled to continue in service in the Government company after nationalisation. We accordingly allow the appeal and set aside the order of the High Court and modify the Award of the Labour Court and we further direct that the appellant is entitled to reinstatement with full backwages and other allowances………. the order of termination is rendered ab initio void and the employee would be entitled to continuity of service along with his backwages. ordinarily.” (Page: 105/106. P. 10. It. however. Industial Tribunal & Ors. 10. Para: 3) ¥ 5A.P. v. 25F “It is now well settled that if the services of an employee are terminated in violation of Section 25(F) of the Industrial Disputes Act. v. but it is also well. Arjunlal Rajak. v.000/. It is. The respondent was not given any offer of appointment in writing. Labour Court. see Gammon India Ltd. Gopal B. the constitutional provision or the statutory provisions had not been followed.is granted to him..O. however.2536 Chapter VA – Lay-Off and Retrenchment Sec. Man Singh.3J) F 5A. It may be true that in an appropriate case. On employer’s appeal. Management of Central P & D Inst. Principal.e. Union of India & Anr.P. Division Bench held that the award by Tribunal was justified but in view of the closure of establishment granted compensation instead of reinstatement. interest of justice would be subserved if the appellant is directed to pay a sum of Rs.HC) ii) When employee worked only for one year and not appointed as per recruitment rules (S.702 The employee working as a typist was discharged from service without payment of compensation in terms of Sec. 50.000/. 25000 and that it is not mandatory to order reinstatement in all cases of non-compliance of the conditions prescribed in Sec. Government College of Education and Ors.. On raising industrial Dispute in 1986 Labour Court granted reinstatement with full back-wages from the year 1986. Therefore. The Tribunal held her discharge as illegal and ordered her reinstatement with 50% back-wages. 25F despite her working continuously for a period of 240 days during the relevant year.701 The workman was terminated in violation to Sec.2J) F 5A. In any event. But the discretionary relief.” (Page: 754.C. Keeping in view the fact that the respondent was appointed on a temporary basis. to direct reinstatement of the respondent in service. The Supreme Court held that considering the fact that the employee is not interested in continuing the job even after her reinstatement. 2005 III LLJ 434 : 2005 (106) FLR 735 : 2005 III LLN 414 : 2005 II CLR 679 (Bom. In the normal course we would not have .DB) Note: also refer to the following case in the above context Shivshankar S. The appeal before Division Bench against this order is dismissed. Unfortunately. 25F. The appellant is a statutory Corporation. it would be wholly unjust at this distance of time i. she be paid compensation of Rs. Pathak & etc. Ltd.C. 2000 (9) SCC 496. after a period of about 12 years.C. Supreme Court set aside the award of Labour Court and granted compensation instead of reinstatement because the workman was employed only for a period of one year. 2005 (104) FLR 373 : 2005 I LLN 653 : 2005 LIC 2251 : 2005 I CLR 494 : 2005 LLR 132 : 2005 AIR (SC) 633 (S. High Court refused to interfere with the award. as has been done by the Labour Court. it was unlikely that he remained unemployed for such a long time.Sec. v. in our opinion. the Labour Court or the High Court did not consider these aspects of the matter. rep. after a period of more than 30 years.3J) “But it is to be noticed that it is not always mandatory for the Courts to order reinstatement in cases where there has been violation of Section 25F of the Act (Chapter 5 A of the Standing Orders) which can be substituted for good reasons by awarding compensation. DBH International Ltd. 25F Reliefs available for violation of the sections 2537 ¥ 5A. Single Judge dismissed the application filed by employer. delay in raising the dispute would have resulted in rejection of his claim for back-wages for the period during which the workman remains absent as has been held by this Court in Gurmal Singh v. v. 25F of Industrial Disputes Act. Employers. By Transport and Dock Workers’ Union and Anr..e. State of Gujarat & Ors. i.C. must be granted upon taking into consideration all attending circumstances.700 The employer calculated retrenchment compensation with divider of 30 instead of 26. 2006 (111) FLR 323 : 2006 (7) SCC 752 : 2006 III LLJ 1058 (S.” (Page: 754.to him………. State Road Transport Corporation v. U. Para: 7) “Keeping in view the peculiar facts and circumstances of this case. Their Workmen. Tribunal directed reinstatement of the workman for short payment. we are of the opinion that in stead and place of the direction for reinstatement of the respondent together with back-wages from 1986. further dispute was raised with a delay of twelve years. v..2J) “The respondent admittedly raised a dispute in 1986. Para: 8) iii) When the employee is not interested in continuing the job (S.. 1997 LIC 3280 (Guj. there was nothing on record to show that he was employed in accordance with recruitment rules not any material to show that the post was regular. The Single Judge also confirmed her reinstatement but ordered no back-wages. DB) ¥ 5A.compensation. Para: 10) ¥ 5A.706 Reinstatement is not a mandatory relief in case of breach of Sec. non-compliance of the requirement of Chapter 5A of the Standing Orders by the appellant cannot be condoned.25.DB) “From……….O. Para: 5) v) When retrenchment is bonafide though in violation of Sec.. 25F interfered with the order of reinstatement directed by the Industrial Court.2538 Chapter VA – Lay-Off and Retrenchment Sec. 1985 II LLJ 505 : 1985 (67) FJR 60 : 1985 I LLN 801 (Mad. From the material on record and the submission of the learned counsel for the appellant it is clear that the employee has not joined duty as directed by the Industrial Tribunal probably because she is otherwise settled in some other job. P.DB) “……….DB) . Vishwas Bhimrao Dhumal v. In this case we think the concerned work-person is not interested in going back to her duty on terms and conditions as were applicable to her on the date of her discharge which according to the record was as a daily wager. Management of Coimbatore Pioneer B. 1993 III LLJ 772 : 1988 (57) FLR 107 : 1988 II LLN 385 : 1988 I CLR 569 (Bom. 15000 was held adequate relief in lieu of reinstatement.of the Labour Court.DB) “………. 25F and 25G hence compensation awarded by Labour Court in lieu of reinstatement on finding that employee does not have prescribed qualification to carry out or discharge duties of the post was held to be justified. compensation in lieu of reinstatement was held proper and can be so awarded by the Labour Court inspite of violation of the section and hence the award of reinstatement was set aside with the direction to pass orders fixing suitable compensation..” (Page: 2252. Kopargaon Nagarpalika & Ors. Labour Court.” (Page: 661.workmen.705 When retrenchment is bona fide and justified.” (Page: 508. Labour Court awarded compensation in lieu of reinstatement on the facts of the case and it was held to be justified. compensation of Rs.O.000 as compensation to the said employee Miss Aleyamma Samuel.703 Where termination of services is due to abolition of post on account of financial loss. 2000 (84) FLR 114 : 2000 I LLN 172 : 1999 II CLR 993 : 2000 I LLR 20 (Bom.” (Page: 45. & Ors.We have………. v.” (Page: 2252. Coimbatore & Ors.DB) ¥ 5A. Madras & Anr. Second Additional Labour Court. Bhubaneswar.DB) ¥ 5A. Bharat Kumar Sekhar v.HC) vi) When employee does not have prescribed qualification to carry out or discharge duties of the post (Bom.. Para: 7) Note: also refer to the following cases Shashikant Bhagwant Kulkarni v. Para: 7) “Be that as it may. Therefore in substitution of the order of reinstatement directed by the Industrial tribunal as confirmed by the High Court below we order that the appellant pay a sum of Rs.It is not………. 1993 III LLJ 659 : 1988 II LLN 767 : 1988 LIC 1261 (Ori.704 Retrenchment was bonafide but made without compliance of Sec. Labour Court. Mount Mettur Pharmaceuticals Ltd. Indian Red Cross Society. P. 25F.. Para: 8) iv) When post itself is abolished (Ori.. 25F (Mad. Solapur & Anr. Mills v. 1979 I LLJ 41 : 1979 (54) FJR 236 : 1979 (39) FLR 236 : 1979 I LLN 81 (Mad. The Labour………. the Appellate Tribunal was wrong in giving retrenchment compensation as well as compensation for unjustified and premature termination of employment. Para: 9) viii) When termination is set aside on technical reason of miscalculation of compensation and since 14 years lapsed (S.” (Page: 774. Mohinder Singh & Ors. however. In the circumstances we see no reason to interfere. therefore. 1997 IV LLN 364 (P&H. in a case of proper retrenchment law allows compensation at the rate of fifteen days average pay for each completed year of service. Anglo-American Direct Tea Trading Co.of justice. Ltd. Para: 6) “The learned………. Therefore.C.DB) ¥ 5A. v. Para: 6) vii) When workman offered to take employment afresh through selection process and he worked only for 230 days (P&H. though the order of the Appellate Tribunal may not be quite correct in form and though some of the words used in the last part of the decision seem to suggest that the Appellate Tribunal was punishing that the appellant which it should not and could not do. 25F Reliefs available for violation of the sections 2539 “The labour………. the Supreme Court increased the compensation for unjustified and premature termination of service by another 15 days per year making it one month compensation for a year of service. it stands to reason that where a workman loses his job on account of unjustified and premature termination of employment. 1961 II LLJ 625 : 1961-62 (20) FJR 523 : 1962 (4) FLR 65 (S.. awarded compensation and the same was upheld since workman were given an opportunity to take employment afresh by participating in selection process also they had worked for 230 days.3J) F 5A. Ropar Central Co-op. Bank.C. What it could and should have given was compensation only for unjustified and premature termination of employment. the order as whole giving one month’s average pay for each completed year of service as compensation does not seem to us unreasonable or unjust. however. 25F but instead of granting reinstatement. the order of the Appellate Tribunal works our to giving one month’s average pay for each year of completed service for unjustified and premature termination of employment in this case.708 In a case of dismissal held wrongful.DB) “………. he should get something more than what he would have got as compensation if it was a proper case of retrenchment.707 Labour Court held that termination was unjustified as it was not as per Sec. there would have been no reason or interfering with its order if it had given compensation for unjustified and premature termination of employment at the rate of one month’s average pay per completed year of service. quantum of compensation was modified. We feel that though the Appellate Tribunal was wrong in splitting up the compensation in two parts as it did.each case. Para: 3) . In such a case we do not think that the award of one month’s average pay for each completed year of service would be an excessive compensation for unjustified and premature termination of employment.qualification. Para: 9) “Since………. for there is no question of any retrenchment as such where the tribunal decides not to pass an order of reinstatement but to give compensation instead. compensation is awarded to such workman in lieu of that relief. 25F for such unjustified and premature termination of employment must be held inadequate instead of that proper compensation for unjustified and premature termination of employment should have been given and this compensation ought to have been something more than what he would have got as retrenchment compensation in a proper case. Ropar. There is.” (Page: 367.” (Page: 367.Sec. Workmen of Nahortoli Tea Estate.faulted with. no scope for allowing retrenchment compensation in a case of this kind. Ltd.” (Page: 774. Accordingly while setting aside the retrenchment compensation of 15 days for each completed year of service granted to him by the Appellate Tribunal. Strictly speaking. Now.3J) “It is not disputed that where a workman is entitled to reinstatement but for some reason the tribunal does not consider it proper to give that relief.” (Page: 628/629. In effect. it is held that award of retrenchment compensation u/s. v. 2000 (85) FLR 137 (Raj.. 25F taking into account 1 year service of workman on regular pay-scale. The High Court in the writ petition filed by the appellant refused to interfere therewith.07.000 as it is unlikely that he remained unemployed for such long period.e. State of Rajasthan & Ors. It may be true that in an appropriate case. 25F and set aside the order of termination and granted back-wages from 1986. He is said to have been paid one month’s salary in lieu of notice. Unfortunately. Para: 5) “Keeping in view the peculiar facts and circumstances of this case.P. after a period of about 12 years. Ramesh Kumar & Anr.DB) Note: also refer o the following case Nehru Yuva Kendra Sangathan v. the Labour Court or the High Court did not consider these aspects of the matter. Employer terminated him as per Sec.2J) F 5A. 2001 I LLJ 191 : 2000 (86) FLR 450 : 2000 LIC 2306 : 2000 II LLR 776 (Del. delay in raising the dispute would have resulted in rejection of his claim for back-wages for the period during which the workman remains absent as has been held by this Court in Gurmal Singh v.. The appellant is a statutory Corporation. 25F ¥ 5A.” (Page: 325. 20. ordered reinstatement of the workman. On committing misconduct he was terminated in 1975.. in our opinion.4. Para: 3) “The respondent admittedly raised a dispute in 1986.C. Labour Court held that the dismissal was bad as two year service of workman as casual was not taken into consideration while calculating compensation. 1947. Keeping in view that reinstatement was granted after a period of 30 years and back-wages from 1986.e.709 The workman worked for 2 years as casual workman followed by 1 year on regular pay-scale.” (Page: 324. In any event. U. But the discretionary relief. Keeping in view the fact that the respondent was appointed on a temporary basis. 2005 IV LLN 770 (Raj. On reference. On appeal. Man Singh. it was unlikely that he remained unemployed for such a long time. High Court held that interests of justice would be subserved if it is directed to pay him a sum of Rs. Some allegations had also been made that he committed misconduct. His services were terminated on 23.2540 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 325. v. Government College of Education and Ors. interest of justice would be subserved if the appellant is directed to pay a sum of Rs. On which Industrial Dispute was raised in 1986. the Labour Court although set aside the order of termination of the services of the respondent but granted back-wages only from 1986.1974 on temporary basis.C. 2006 (111) FLR 323 : 2006 III LLJ 1058 : 2006 III CLR 698 : 2006 LLR 1151 : 2006 SCC (L&S) 1776 : 2006 (7) SCC 752 (S.” (Page: 324.1975. after a period of more than 30 years. Union of India & Ors.2J) “The appellant before us is a Corporation constituted under the Road Transport Corporation Act. The respondent was appointed w. 2000 (9) SCC 496. Therefore. it would be wholly unjust at this distance of time i. Labour Court found that employer had not complied with mandatory provision of Sec. State of Rajasthan & Ors. 50. we are of the opinion that in stead and place of the direction for reinstatement of the respondent together with back-wages from 1986.f. Para: 6) .000/. i. Single Judge upheld Labour Court’s order.710 Workman was appointed in 1974 on temporary basis. On appeal High Court refused to interfere as Labour Court has indisputable jurisdiction to grant award but while exercising the power it should have taken into consideration relevant factors. as has been done by the Labour Court.to him……….e. Division Bench modified the order of Labour Court and awarded compensation instead of reinstatement because termination was set aside on a technical ground and 14 years passed after termination.HC) Dharamveer Singh v. must be granted upon taking into consideration all attending circumstances. State Road Transport Corporation v. Para: 1) “On a finding that in retrenching the respondent the appellant failed to comply with the mandatory requirements of Section 25F of the Industrial Disputes Act.HC) ix) When there is lapse of longer period after retrenchment more so when work man was appointed on temporary basis/daily wage basis/adhoc basis and also they can be gainfully employed (S. to direct reinstatement of the respondent in service. 50. Principal. 2003 (97) FLR 888 : 2003 LLR 722 (Raj. v. Murari Lal Sharma v. Pramod Kumar & Anr. Roy v. v..2.HC) District Red Cross Society v.. Ranchi & Ors. Hindustan Insecticides Ltd.N. Amar Singh & Anr. 2007 LIC 798 : 2007 I CLR 1052 : 2007 LLR 252 (Raj. Labour Court No. Bhardwaj v. as he will only to be reinstated on daily wages basis also he may be gainfully employed by now and his reinstatement may create complications also and hence one time settlement was ordered.713 A workman had been terminated without complying with Sec. Labour Court. 2002 (95) FLR 648 : 2003 LIC (sum) 27 (Jhar.HC) The Management of the Chief Engineer Transmission Project Grid Corporation of Orissa Ltd.HC) Compensation in lieu of reinstatement – adequate for violation if dispute is 16 years old. Municipal Board v. Advance Engineering Corporation v.1994.5. 25F is a fit case for lump sum compensation instead of reinstatement. Food Corporation of India v. 2004 LIC 1885 (Raj. 2007 (113) FLR 337 : 2007 LLR 591 (Jhar.1990 to 17.. and he was engaged in an independent work. State of Orissa & Ors.. 2007 (112) FLR 524 : 2007 LIC 807 : 2007 LLR 198 (Del. 25F of the Act as he had continuously worked from 1.DB) ¥ 5A.. Amritsar Transport Workers Employees Union (Regd. Labour Court & Ors. P. v. 2005 LIC 3441 (Ori. Sudipta Rai @ S. The Division Bench by modification ordered a lump sum payment of Rs. M/s. such termination was held to be illegal and void. The employer contested the same in Division Bench.711 The termination of a guard.. 2003 III LLN 1160 (P&H.HC) J. Taking into consideration the plea taken by the Corporation before the Tribunal that only a skeleton consultant office was functioning at Ranchi and more than 12 years had been passed after the retrenchment.DB) Workman was terminated 21 years ago. Union of India & Anr.DB) ¥ 5A.HC) Lorrik Yadav v... 1 lac.HC) Lumpsum compensation – granted to workman instead of reinstatement and 20% back-wages as the employee had delayed coming to the Court and there was now a delay of 29 years after his termination. v.Sec. Surjit Kaur & Anr. Labour Court & Ors.HC) Termination occurred 20 year back without complying with Sec. 2006 (108) FLR 727 (Raj. 50..712 Considering that the employee had barely worked in the establishment as accounts clerk for a period of 240 days when his services were terminated in view of his work and conduct as an ad hoc employee and that his services were not regularised and thirteen years had passed since his termination Bench held that Single Judge was right in directing payment of compensation instead of reinstatement with backwages.HC) Rajinder Singh C/o..HC) Note: also refer to the following cases which were similarly decided When workman terminated is a daily wager and the post was manned by a duly recruited person. Presiding Officer. 2000 I LLJ 299 : 2000 (96) FJR 23 : 2000 (84) FLR 556 : 1999 II LLN 494 (P&H.000 in lien of reinstatement since nine years elapsed and employee will not be benefited. on daily wages was contested in High Court for non-compliance of Sec. State of Punjab & Ors. the workman was allowed 50% of the arrears of wages as lump sum payment. 2002 (93) FLR 919 : 2002 II CLR 480 : 2002 LLR 464 (Del.HC) .) v. granted lumpsum compensation of Rs.. 1995 LLR 998 (Del. The Single Judge allowed the petition. State of Rajasthan & Ors. II & Anr. 25F of the Act. 2006 I LLJ 158 : 2006 I LLN 254 : 2006 LIC 76 : 2006 LLR 302 (Del. Presiding Officer & Anr. State of Rajasthan & Anr. 25F Reliefs available for violation of the sections 2541 ¥ 5A.O. Nehru Yuva Kendra Sangathan. Rashid Mohammed. instead of reinstatement. 2003 LLR 893 : 2003 (99) FLR 303 (Del..HC) Nagar Palika. The Presiding Officer. Chennai & Ors.HC) Lala Ram v. v.3J) F 5A.C. as relief was granted after a lapse of 25 years. M/s. when shall they be deemed to have ceased to be in service for drawal of terminal benefits? Their discharge orders having been quashed.HC) R. Fifth Industrial Tribunal. We direct this step with a view to pragmatise the situation in working out the equities.N.HC) Compensation in lieu of reinstatement with back-wages may be appropriate. Lalsot v. We concluded the arguments on Aug. 2003 I LLJ 700 : 2003 (96) FLR 75 : 2002 IV LLN 518 (Mad..K. We... 2003 (97) FLR 895 (All. Gujarat Steel Tubes Mazdoor Sabha & Anr.HC) Compensation – can be granted in lieu of reinstatement since workman is a daily wager and worked for four years. v. Auto Care Centre.HC) B..C. Elias & Co. Baskar & Ors.O.HC) Reinstatement after a prolonged period of termination is not a suitable relief than lump sum compensation Vikash Adhikari & Anr. These 100 will draw all terminal benefits .. Labour Court & Anr. Ltd. 3. Madras.. The Sub-Divisional Officer (Land Conversion) & Ors. Judge. held proper. Bikaner & Anr. P. consider August 3. they remain in service until today. M/s. casual worker if terminated L&T. 2007 (113) FLR 37 (Raj. State of Rajasthan & Anr. State of Rajasthan & Ors.O. Madras v.. 2001 II LLJ 1655 : 2001 III LLN 807 (Mad. 1979 and on the eve of the closure of counsel’s submissions certain inconclusive settlement proposals were discussed. 25F to 100 permanent workmen who were held illegally terminated but not reinstated in as much as they are employed elsewhere but ordered 50% back-wages to remaining 239 permanent workmen similarly terminated but were not employed with orders for their reinstatement.. R. The Employer.HC) Sushil Kumar Mathur v. v.O.HC) x) When workmen terminated were casual employees and did not work for 240 days (S. Kanpur v.HC) University of Delhi v. West Bengal & Ors.HC) Compensation – in lieu of reinstatement. Kanpur & Ors. v. etc. Gujarat Steel Tubes Ltd. Central Government Industrial Tribunal-cum-Labour Court. 2004 (101) FLR 121 : 2004 III LLN 419 (Raj. Madras. v. 1980 I LLJ 137 : 1980 (56) FJR 137 : 1980 (40) FLR 152 : 1980 I LLN 230 : 1980 LIC 1004 : 1980 SCC (L&S) 197 : 1980 AIR (SC) 1896 : 1980 (2) SCC 593 (S. 2006 LLR 1122 (Del.HC) Note: also refer to the following case on the above lines in case of casual workers R. Sharma & Ors..2542 Chapter VA – Lay-Off and Retrenchment Sec. 2001 III LLJ 286 : 2001 I LLN 429 : 2000 LIC 2756 : 2001 I CLR 214 (Raj.714 The Supreme Court granted 75% back-wages with benefit of Sec. Baskar & Ors. We direct that the 100 workmen for whom reinstatement is being refused will be treated as in service until August 3. 1965 II LLJ 324 : 1961 II LLJ 14 : 1965-66 (28) FJR 257 (Cal. Madras & Anr.. in Relation to the Management of Central Bank of India. Babu Ram Sagar v. First Additional Labour Court. 2002 I CLR 421 : 2001 LLR 802 (Raj.. The difference in back-wages was explained as flowing from the fact of reinstatement or its absence. Auto Care Centre. McNeil Ltd. 25F Compensation – in lieu of reinstatement is proper when the workman did not serve for 14 years when the dispute was pending. Similarly casual employees 74 in number with service more than nine months were reinstated but 57 with less than 240 days of service were not in accordance with the Industrial law but awarded flat rate of compensation. (2) P. (2) P. P. Babu Lal & Ors. 2003 I LLJ 700 : 2003 (96) FLR 75 : 2002 IV LLN 518 (Mad.O... therefore. First Additional Labour Court. Labour Court. Devi Prasad v. Principal Labour Court.. 1979 on which date they will be deemed to have been retrenched. 2002 II CLR 1045 (Raj.3J) “While reinstatement is refused for these 100 workmen. Chennai & Ors. Pvt. 1979 as a pivotal point the calendar with reference to which the final relief may be moulded. Chandigarh & Anr. etc. in addition.T. Writ petition against the award was rejected. we vary the High Court’s order.716 The workman was terminated without complying with Sec. We decline reinstatement of these 57 hands. The casuals with less than nine months service are 57 in number and we do not think that this fugitive service should qualify for reinstatement especially when we find a number intermediate recruits. Presiding Officer. all mortals are casuals but in the legal sense. 25F was not complied with and compensation in lieu of reinstatement granted to him. Additional Labour Court & Anr. Hyderabad & Anr. the policy of the Act draws a distinction between those with service of 240 days and more and others with less. those with a record of 240 days on the rolls. The case of the hundred stands on a slightly different footing. 2006 LIC 26 : 2006 I CLR 663 (AP. 25F but instead of reinstatement compensation was granted as he had reached the age of superannuation.” (Page: 176. they will be entitled to retrenchment benefits under S. The long years and the large sum payable also persuade us to make this minor cut. Md.000 to Rs. Mohinder Singh Sohan Pal v. have to be baled out. Labour Court found that termination was in contravention of provisions of Sec.Sec. The other 74 must be reinstated although notionally but wrongly they are shown as casual. Para: 154) “We have disposed of the case of the permanent workmen except to clarify that in their case continuity of service will be maintained and accrual of benefits on that footing reckoned. In the ‘life’ sense. Para: 153) “The remaining 139 will be awarded 50 per cent of the back wages since we are restoring them.H.” (Page: 176. Industrial Tribunal-II. This scaling down of back pay is consistent with the assumption that somewhere in the past they had secured alternative employment. 4. Para: 155) xi) When employee was a daily wager and the company is engaged in manufacture of missiles which is a sensitive one requiring verification of antecedents (AP. compensation alone was the proper relief . The computation of the wages will be such as they would have drawn had they continued in service and on that the cut directed will be applied. 2006 I LLJ 556 : 2006 IV LLN 975 : 2005 III CLR 1036 : 2006 LLR 159 (P&H. which upheld order of compensation and enhanced the amount of compensation from Rs. are a class who have rights under industrial law. Single Judge held that as the workman had been appointed for a specific period and assuming that there had been a violation of the provisions of Sec. Labour Court.. 25F Reliefs available for violation of the sections 2543 plus 75 per cent of the back wages. 2004 II LLJ 877 : 2004 (106) FJR 943 : 2004 (101) FLR 518 : 2004 II LLN 657 : 2004 LIC 1401 : 2004 LLR 409 (Del.000. We direct the 74 long-term casuals aforesaid to be reinstated but not the 57 short-term ones. To this extent. his services were terminated as per terms and condition of letter of appointment. 20. Hyder & Ors.HC) xii) When worlkman reached superannuation (P&H. Claiming reinstatement workman moved High Court which upheld the order of Labour Court as the employer engaged in manufacture of missiles which was very much sensitive and reinstatement would require verification of workman’s antecedents.HC) ¥ 5A. 25F of the Act” (Page: 175/176. 25F. U..715 The workman was appointed as helper on daily wages.HC) ¥ 5A.DB) ¥ 5A. The next category relates to casual employees. because some compensation in lieu of refusal of reinstatement is due to them and that also has entered our reckoning while fixing 75 per cent for them. Pandhi v. The High Court has adopted this measure and so we do not depart from it. v. Of course. 4000 in lieu of reinstatement.DB) Note: also refer to the following case K. with longer though untenable service. hence workman approached Division Bench. 131 in number of whom 57 have less than nine months’ service. His termination was held bad by Tribunal since Sec. Presiding Officer.. 25F of the Act and granted compensation of Rs.717 Technician was appointed on ad hoc basis. ” (Page: 975. stated workman would have been gainfully employed after his services had been terminated.000 holding the same clearly inadequate. 2006 (108) FLR 725 (Raj.HC) xiv) When reinstatement is not insisted by workman in his petition (Raj. Nagaraja Powerloom Factory & Anr.718 A temporary civil supervisor was terminated without compliance with Sec. 11.DB) Note: also refer to the following case similarly decided R. Chandigarh & Anr. the question of reinstatement does not arise. 1.000 was granted which could be paid in three instalment.2544 Chapter VA – Lay-Off and Retrenchment Sec. increased the amount of compensation from Rs.from Rs. (Primary Education).000. 20.C. Para: 3) xiii) When workman is a temporary supervisor and termination is illegal for mere technical violation of the section by non-payment of retrenchment compensation (Bom.000 holding the termination illegal being in contravention of Sec. 1987 (71) FJR 160 : 1988 I LLN 219 (Karn.500 as compensation.” (Page: 975. 25F under the circumstances. R.Shivanna v.V.HC) ¥ 5A. ………All of them continued as daily–wage employees and their services were terminated as early as 1991.learned Single Judge. 2001 III LLJ 937 : 2001 (88) FLR 235 : 2000 IV LLN 994 : 2001 I CLR 143 (Bom. Fakir chand & Ors.. v.DB) “The workman-appellant……….50. Para: 1) “We too are of the opinion………. Banswara & Ors. M. 4000 to 20.HC) xv) When the job performed by employees in fast food centers is such that they can easily find other jobs (S.DB) ¥ 5A.P.000 to each of the workman in lieu of reinstatement Haryana Tourism Corporation Ltd. 4000 to Rs. Mohinder Singh Sohan Pal v. As he has attained the age of superannuation.720 Employee employed in fast food centers and tourist complexes of corporation which were closed and were handed over to the bus stands of transport dept in compliance of policy decision of State Government as they were running into loss. Labour Court. 25F though working continuously for a period of six years. Industrial Court.719 When the services of the employee was terminated without compliance of Sec. The Division Bench enhanced the compensation to Rs. 25F of the Act as reinstatement was not insisted. Division Bench upheld the order. Presiding Officer.. 75.T. Court considered the fact that retrenched employees were daily wagers not recruited through the employment exchange etc. nor regularized in service and their work of cooking. The High Court held that the termination was technically illegal hence the compensation of Rs..C. 2006 IV LLN 975 : 2006 I LLJ 556 : 2005 III CLR 1036 : 2006 LLR 159 (P&H.2J) “The respondents herein were engaged to work on dialy–wage basis. However.. Vikram Singh v. The Labour Court did not grant reinstatement and back-wages but ordered payment of Rs. District Education Officer.2J) F 5A. 25F of Industrial Disputes Act and no retrenchment compensation was paid. the matter came to be referred to Labour Court. cleaning are of such a nature that they can be easily employed anywhere hence reinstatement after a lapse of some years is unjustified and ordered the payment of a sum of Rs. 2004 I LLN 14 : 2004 I LLJ 195 : 2003 (99) FLR 821 : 2003 LIC 3678 : 2004 SCC (L&S) 36 : 2003 AIR (SC) 4465 : 2003 (8) SCC 248 (S. Sharad Dinkar Dongare v. Para: 4) .” (Page: 15. Member. 70.. Solapur & Ors. U. Ingale. ” (Page: 877. Labour Court & Anr. 25F and during the pendency of the dispute regarding the retrenchment. Babu Lal v. Para: 2) “The petitioner……….of the Hostel………. Labour Court held that termination was illegal but awarded compensation only and refused reinstatement as the workman was a part-timer and irregular also. the society had no obligation to offer alternate employment but compensation with interest was payable. 2004 II LLN 872 : 2004 (105) FJR 837 : 2004 LLR (Sum) 287 (Raj. Presiding Officer. Para: 5) “Having regard to the above facts.” (Page: 15. High Court modified the award of Labour Court and held that Labour Court was erred in granting re-employment since the ‘sale’ was not a sham transaction and the sale was a bonafide completed transaction and upheld the award to the extent it was related to compensations and back wages. 25F but the truck which he was driving was sold. however.DB) xvii) Compensation is proper when establishment was sold out (Karn. to be noted that these respondents had obtained an award for reinstatement as the appellant Corporation did not raise appropriate contention before the Labour Court. Labour Court. It was submitted that if these respondents are directed to be reinstated. as the workman was irregular in job. as stated earlier. 1997 (91) FJR 552 : 1998 (78) FLR 680 : 1998 I CLR 291 (Karn. However. Jodhpur & Ors.000 to each of these respondents by way of compensation in lieu of reinstatement……….. 25F Reliefs available for violation of the sections 2545 “It is submitted on behalf of the appellant Corporation that some of the fast food centres and tourist complexes of the appellant Corporation are still being run by incurring losses and that there are a large number of workers already available for running them.” “………. He was discharged for poor attendance. sweeper and gardener etc.723 The workman was employed as a part-time ‘Chowkidar’ in a hostel. Para: 12) . and by the nature of their work. Para: 7) xvi) Mere compensation for truck driver proper when the truck driven by him was sold (P&H.722 The employer retrenched the workmen without complying with Sec. Para: 3) “Though the management………. they must have been doing similar work elsewhere if not regularly.The Labour Court………. v. we feel that the appellant Corporation can be directed to pay a sum of Rs. were mostly working as cook.” (Page: 873. we do not think that the direction to reinstate them would be a just and equitable solution at this distance of time.DB) ¥ 5A. it would only lead to excess manpower..of reinstatement. Before High Court the workman contended that there was no special circumstances for awarding compensation alone and he was entitled to reinstatement with full back-wages.721 Society employed truck driver and terminated his services without compliance of Sec. disproportionate to the actual requirement.HC) ¥ 5A. it is clear that in other cases the Labour Court accepted the plea raised by the appellant Corporation.” (Page: 874. 11. High Court upheld the award of Labour Court.HC) ¥ 5A. Smt.. HMP Cement Ltd. employer and the purchaser moved High Court. 70. Ranjit Singh v. It is.” (Page: 15. These respondents.. Shivamma & Ors. Labour Court while adjudicating the dispute came to a finding that the termination was illegal and directed the employer as well as the purchaser to re-employ the workman with 50% back wages.Rs. 2006 III LLJ 72 : 2006 (110) FLR 412 : 2006 II LLN 817 (P&H. ACC Ltd. Being aggrieved.Sec.000. cleaner.HC) xviii) When workman is part-timer and irregular in attendance (Raj.” (Page: 15. at least intermittently after their services were terminated. Para: 6) “In the above circumstances and taking into account the amount of daily wages that were being paid by them. sold the establishment to another.of reinstatement……….HC) “The factual………. Rohtak. 25F but instead of reinstatement. 2004 (101) FLR 1232 : 2005 IV LLN 787 (Raj. 15. Appointment on daily wages does not give right of regularization.HC) ¥ 5A.727 Workmen who were appointed as part time employees in the class IV group raised claim for regularization and reinstatement.” (Page: 1235..2546 Chapter VA – Lay-Off and Retrenchment Sec. Para: 11) “In these instant………. Md.” (Page: 1234.HC) xx) Proper when establishment is running into losses (P&H. Para: 6) “In State of Rajastan………. etc. & Ors.000 to the workman.HC) ¥ 5A. It held termination to be illegal.. 25F on ground that he had not completed 240 days. “2003 (99) FLR 1151 : 2003 IV LLN 383 : 2003 III CLR 636” (P&H. Banswara v. Hyder & Ors.726 The services of the workmen were terminated on the ground of closure of unit. Hyderabad & Anr. Even High Court upheld the decision. Para: 12) ..HC) xxii) Mere compensation proper when appointment itself is not as per relevant rules (Raj. Thus.O. 2006 LIC 26 : 2006 I CLR 663 (AP. High Court held that workmen were appointed as part time employees without following provisions of relevant rules.them compensation.725 Service of the employee who was transferred from Haryana State Federation of Consumer Co-operative Wholesale Stores. Labour Court held that the termination was illegal as the unit was being run in another name but denied reinstatement as workmen got engaged elsewhere on termination of services and allowed retrenchment compensation. it amounted to flagrant violation of rules and procedures. Para: 2) “There is no………. was terminated without complying Sec. awarded compensation in lieu of reinstatement as the society was running in loss. (CONFED) to Kohla Co-operative Agricultural Credit Society Ltd. 25F xix) Proper for just reasons like establishment is a defence establishment (AP.HC) ¥ 5A.” (Page: 1235. On workman’s appeal.. v. v. Industrial Tribunal-II. but workmen moved Labour Court contending that the termination really was a case of retrenchment. 25F is not followed and awarded compensation of Rs.liable to be dismissed. Labour Court. Bapu Lal & Anr.HC) xxi) When workman is engaged elsewhere after termination (P&H. Labour Court has not committed any illegality in denying regularization to workman. High Court upheld the Labour Courts since Labour Court denied reinstatement on the ground that establishment was a defence establishment and it was also held that Labour Court can grant reinstatement or compensation in lieu of reinstatement for just and fair reason. P. 1997 (91) FJR 618 : 1998 (79) FLR 184 : 1998 I LLN 307 : 1998 LLR (Sum) 288 (P&H. it granted compensation.” (Page: 1232. 25F. Labour Court held that appointment of employee cannot be treated as a fresh or de novo appointment. Nagesh Hosiery Mills v. Labour Court held termination is illegal since provisions of Sec. Ltd.part time employee.HC) “The facts and………. District Education Officer (EE).724 The Labour Court found that the casual workman employed by employer was terminated in violation to Sec. State of Punjab & Ors. Kitab Singh & Ors. being in violation of Sec.hence the writ petition.HC) ¥ 5A. 2J) F 5A. which should be construed to be one time lump sum payment made in his favour in the interests of justice.2J) “Having heard the learned counsel for the parties.729 When the Labour Court ordered reinstatement of workers who were in continuous service for several years but the workers not interested to be reinstated to the post last held therefore Labour Court ordered compensation instead of reinstatement. 50. First Additional Labour Court. Sudipta Rai @ S.O. The Labour Court had directed payment of compensation keeping in view the fact that the respondent was a project employee and was not in service since June. Therefore. Jayant Dhirajlal Kachalia v. 2003 I LLJ 700 : 2003 (96) FLR 75 : 2002 IV LLN 518 (Mad. (2) P. v. M/s. Chennai & Ors.C. the Single Judge allowing the petition substituted the reinstatement by compensation to the extent of Rs.HC) ¥ 5A.000 as compensation and held that the High Court should not have interfered with the award of Labour Court. the Supreme Court modified the order and instead directed to pay a sum of Rs.O. 000. 50. High Court affirmed the orders of Labour Court and enhanced the amount of compensation in modification of the award. Auto Care Centre. 2007 (113) FLR 158 : 2007 I CLR 807 : 2007 LLR 416 (Bom.HC) xxv) Mere compensation proper in case of termination of project employee though illegal (S. 25F Reliefs available for violation of the sections 2547 xxiii) Proper when only consultant office was functioning at skeletal level (Jhar. 25F to be illegal and allowed 50% of arrears of wages in lieu of reinstatement. State of Rahasthan & Anr. P. Ghyanchand. 1990. Ranchi & Ors.728 In this case the employer pleaded after 12 years that only it’s skeletal consultant office was functioning at Ranchi.731 Where the Labour Court held the termination of commercial Artist unjustified and ordered his reinstatement without back wages.730 When the High Court interfering with the award of Labour Court gave a relief of reinstatement with 50% back-wages. Roy v.HC) ¥ 5A. 2002 (95) FLR 648 : 2003 LIC (sum) 27 (Jhar..C. Labour Court. to a project employee.DB) . 2006 SCC (L&S) 1779 : 2007 I LLJ 228 : 2007 (112) FLR 1066 : 2007 I CLR 1077 : 2007 LLR 557 (Sum) (S. Para: 2) xxvi) When employer cannot provide continuous work (Bom..DB) ¥ 5A. The Division Bench upholding the same observed that the workman was appointed in 1976 for 5 years and from 1981 the employer could not provide continuous work to him and there was hardly any possibility of continuous work and hence the award of compensation in lieu of reinstatement was held just proper reasonable as it is a settled position in like circumstances.. the petition was dismissed. R. Baskar & Ors.Sec.HC) xxiv) Proper when workers are not interested to be reinstated to the post last held (Mad. We do not find any justification for the High Court to arrive at a conclusion that reinstatement with 50% back wages will meet the ends of justice. v. The High Court held that the termination of services of the employee in violation of Sec. we are of the opinion that the High Court should not have interfered with the quantum of damages awarded by the Labour Court in exercise of its jurisdiction under Section 11-A of the Industrial Disputes Act. Madras.” (Page: 1779. Dowells Electro Works & Anr. HC) ¥ 5A. the period during which the workman remained unemployed and also compensation of Rs. National Insurance Co. Apex Court held that there is error apparent in award but instead of reinstatement granted back wages for 12 years i. O. UCO Bank v. 25F was as per service rules (S.P. Zonal Manager.C. 1985 AIR (SC) 617 : 1985 II LLJ 19 : 1985 (67) FJR 89 : 1985 (50) FLR 452 : 1985 II LLN 42 : 1985 LIC 810 : 1985 I CLR 306 : 1985 (2) SCC 349 (S.HC) Note: also refer to the following case When the employee is a casual workman and lost confidence. v. Hyderabad v. Ram Prakash Prajapati..735 The workman was terminated in violation of Sec.’ There is thus an error apparent on the face of the record of the case inasmuch as if the termination of service was according to service rules and was bona fide it could not be simultaneously held to be illegal and invalid. 25F. 10000 in lieu of reinstatement.734 Workman working on daily rate basis covered by Sec. it was held to be sufficient for the employer to say he has lost confidence in the concerned employee. Kalivarthan v. 2007 II LLJ 664 : 2007 (114) FLR 314 : 2007 LIC 1229 : 2007 II CLR 65 : 2007 LLR 1007 (Raj. 25F but Labour Court held that workman was terminated as per service rule.000 since employer lost his confidence on the workman and reinstatement under an unwilling employer is not desirable..HC) ¥ 5A.2J) “The Labour Court while declining to grant the relief of reinstatement which should have ordinarily followed.HC) xxviii) When employer loses confidence in the concerned employee when employer loses a customer by the conduct of workman (AP.C. Ltd.732 Employee who had worked for 240 continuous days terminated for unsatisfactory work in contravention of Sec. It was held that payment of compensation with out reinstatement was valid. 2002 I LLJ 443 : 2002 I LLN 397 : 2001 LIC 3475 (Mad. Labour Court awarded Rs..733 When an employer was exposed to the risk of losing a valuable customer due to the conduct of employee.HC) xxx) When employer lost his confidence and termination though violative of Sec. 2(s) of the Act was transferred to another place where he did not join for 8-9 months without giving any justification for not joining... & Anr. 2001 III LLJ 692 : 2000 IV LLN 177 : 2000 LIC 2315 (Bom.e. Manohar Shankar Sahastrabudhe & Ors. Viswanath & Anr. Pondicherry. Therefore the discretion was exercised on irrelevant and extraneous considerations or considerations not germane to the determination………. 25F xxvii) When terminated for unsatisfactory work (Bom. 25F was violated if worker abandons service by not joining at the place of transfer (Mad. P.2548 Chapter VA – Lay-Off and Retrenchment Sec. Singla & Anr.HC) ¥ 5A. It was held that worker abandoned services on his own but he was awarded compensation as Sec.DB) xxix) Mere compensation proper though Sec. P.2J) F 5A. consequent upon its finding that the termination of service was bad and illegal. 1979 I LLJ 16 : 1978 (52) FJR 441 : 1977 I LLN 228 : 1977 LIC 242 (AP. M. in exercise of its discretion awarded one year’s wages as compensation in lieu of reinstatement on the ground that ‘the termination of service of each of the appellant was bona fide and not a colourable exercise of power in accordance with service rules.” (Page: 618. 25F of the Act was not complied with but other benefits were not given. 50. Second Additional District Judge. Para: 5) . Sant Raj & Anr.O. Samarth Samaj v. hence awarded compensation of one year’s wages in lieu of reinstatement. If it was not so justified. 7. Court considered that since employee was in Firefighting Branch and had suffered from paralysis of right leg and awarded compensation of Rs. 2 lacs in lieu of reinstatement was held appropriate. roughly for a period of 12 years. proceeded to examine as to what relief should be given and reached a ludicrous conclusion that a compensation in the amount of Rs. Para: 7) xxxi) When reinstatement is not possible due to peculiar circumstances like cancellation of work permit which is necessary to enter port area (S. loss of confidence if it is to be considered a relevant factor would have hardly impressed us. 2.e.(Rupees fifteen thousand only) would be adequate and would meet the ends of justice. Cursetjee & Sons. Chitley gave us.00. though disagreeing with the reasons given by the Labour Court for declining to grant the normal relief of reinstatement. Para: 6) “Dr.000/.Sec.C.As the petitioner……….C.” (Page: 160.737 After holding that termination of employee was illegal retrenchment. Chitley. Marmeswar Das v. Para: 15) .(Rupees two lacs) as and by way of compensation to the appellant………. In this far-fetched hierarchical relationship. Naval Kishore (Workman) v. the monthly pay packet of each workman appears to be around Rs. information about the last wages drawn by each of the workmen. learned counsel who appeared for the respondents attempted to take us through the evidence with a view to persuading us that the employer even if it acted contrary to law. an adequate compensation of Rs.00. However.000/.” (Page: 474. we direct that the respondents shall pay Rs.DB) ¥ 5A. The employer is a foreign air-transport company. Therefore.The Industrial dispute referred to the tribunal was ‘whether the action of the respondent Management directing the termination of the services of the appellant with effect from March 1. reinstatement with full back wages should have been awarded………..Now the Tribunal after recording finding that the termination of the service of the appellant was not justified. as the workmen are out of job from August 30. 1. Adding to it the compensation in lieu of reinstatement in the amount of Rs.000 towards backwages.000. 1980 is justified.736 The Industrial Court came to the conclusion that the termination of the employee was unjustified and yet awarded compensation of paltry Rs.” (Page: 474. 1984 II LLN 156 : 1984 LIC 837 (Gau. Para: 2) “Having heard both sides we are of the opinion that in the special facts of this case and the subsequent developments we agree with the Tribunal that the compensation would be an adequate relief.regarded as illegal. Para: 4) xxxii) When employee suffered from paralysis (Gau. Messrs Darbshaw B. 2.000 instead of reinstatement. therefore Supreme Court held that when termination was found to be illegal.000. Having regard to all the circumstances. 1973 i.DB) “……….000/to each appellant would meet the ends of justice. Each one was therefore entitled to get Rs. in the special facts and circumstances of this case. reinstatement with full back wages ought to have been awarded but considering the special facts and subsequent developments in which Bombay Port Trust had refused to grant the said employee permission to enter the port premises. Each one of them is entitled to backwages in full for a period of 12 years. Ordinarily on the finding that termination of service was not justified. Para: 14) “………. 25F Reliefs available for violation of the sections 2549 “Dr.3J) F 5A.50. Para: 1) “………. adequate compensation would meet the ends of justice. Each one of them was a loader which means doing manual job. what relief the appellant would be entitled for?” (Page: 474. should not be burdened with reinstatement because it had lost confidence in the appellants. That does not take care of over-time allowance or bonus or other benefits that they enjoy roughly. The workmen were loaders posted at Delhi Airport. 50. SCC 384 (S.on this count.” (Page: 618. Labour Court & Ors.” (Page: 160. 15. we uphold the same but the meagre compensation awarded by the Labour Court namely one year’s wages requires to be adequately and properly modified.3J) “………. we are of the opinion that a total compensation in the amount of Rs.we are satisfied………. 15000.” (Page: 618. it is in their own interest. 1984 II LLJ 473 : 1984 (49) FLR 355 : 1985 I LLN 4 : 1984 LIC 1558 : 1984 AIR (SC) 1892 : 1984 Suppl. 1. that instead of reinstatement in service under an unwilling if not a hostile employer. Delhi Cloth and General Mills Ltd. Physical reinstatement becoming impossible. & Anr. We accept this submission……….DB) .Once it has………. he must be paid his wages till the date of his death. 1985 I LLJ 36 : 1985 I LLN 1 : 1984 LIC 1743 : 1985 LIC 897 : 1985 (SC) AIR 141 : 1984 Suppl.738 Death of workmen during pendency of proceedings.HC) ¥ 5A. Para: 10) 2.” (Page: 38. Sub-Divisional Engineer. Dham Unnati Dhraran (Pipri)... Sudhakar Bapurao Bhagat. Para: 8) ii) When granted without any cogent reasons by diluting it’s own findings (Mad. Moulding of appropriate relief in lieu of reinstatement. etc.DB) ¥ 5A. Compensation in lieu of reinstatement when not proper i) Ten times the retrenchment compensation not proper when retrenchment compensation was duly sent and termination is lawful (Bom.” (Page: 38. Orissa Construction Corpn Ltd.741 Workmen who did not complete 240 days service could not claim any benefit under Industrial Dispute Act. Production & Sales Soc.C.B. Management of Seeranaickenpalayam Weaver’s Co-op. Para: 9) “……….HC) ¥ 5A. grant of amount by Single Judge which was 10 times the amount of compensation was held unsustainable. On workman’s appeal High Court set aside the order of Labour Court and granted reinstatement with all other consequential benefits because Labour Court tried to dilute it’s own finding given earlier and tried to justify the award of compensation in an unreasonable manner. 1997 LIC 2213 (Ori. SCC 534 (S. Coimbatore. v. Raj Rani v..739 In absence of any illegality in terminating services and in view of the fact that retrenchment compensation was duly sent.HC) iii) When work man did not complete 240 days (Del. 25F xxxiii) When employee dies during pendency of proceedings (S. Dhananjaya Sahoo & Anr.. the employer was bound to physcially reinstate the respondent workman in service and he would have been entitled to serve till the date of his death.742 When temporary workers were retrenched following the procedure under the section. N. Shambhu Nath Mukherjee. Ltd.C. no direction for their regularisation can be given in the absence of any posts. Wardha v. 2003 II LLJ 786 : 2003 (97) FLR 1130 : 2003 III LLN 137 (Bom. 1947.2J) F 5A. 25F.2J) “………. he must be paid wages till his death.2550 Chapter VA – Lay-Off and Retrenchment Sec. Managing Directors. v.Hospital & Anr. Labour Court held that the termination was illegal but instead of reinstatement it granted compensation.DB) “……….” (Page: 787.HC) iv) Regularization cannot be a) In the absence of any posts (Ori.740 The workman was retrenched without complying with Sec.T.the respondent workman. G.Accordingly.DB) ¥ 5A. 2005 (105) FLR 187 : 2005 LLR 250 (Del. 1997 I LLJ 830 : 1997 LLR 500 (Mad. Selvaraj v.once the finding of the Labour Court is accepted that there was no valid rule of service prescribing retirement by superannuation at the age of 58 years. The Management of State Bank of India.” (Page: 2216.their services………. Birmhum Zila Parishad & Ors.The question of consideration………. 1995 LIC 2533 (Mad.of the Tribunal……….. 25F Reliefs available for violation of the sections 2551 “Situated thus………. East Asiastic & Allied Co. 1997 III LLJ 1293 : 1997 (75) FLR 482 : 1996 II LLN 906 (Cal. Para: 1) “……….21 November 1956……….DB) ¥ 5A. 25 F.upon the appellant……….fourth Industrial Tribunal……….it has to keep………. (India) Pvt. Ltd. v. therefore a casual employee who has completed 240 days of service is not entitled for absorption but to only benefits of Sec.743 Zila Parishad being State under Art.said Act.HC) i) Relief of bonus 1.DB) “As a State……….employment.therefore very wide………. Para: 2) “……….cost law………. Sundara Money (AIR 1976 SC 1111) the State Bank called back it’s 18 temporary employees who were terminated by the bank and absorbed them on permanent post.” (Page: 2215.” (Page: 722. Fourth Industrial Tribunal West Bengal & Ors.service………. Respondent.cost……….By a notice dated………. 1961 I LLJ 720 : 1961-62 (20) FLR 309 (Cal. On the ground of this absorption.HC) ¥ 5A.DB) “………. Can be granted to the retrenched workmen for the period prior to their retrenchment (Cal..744 In view of the case of Shri N.detenorating………. Para: 1) c) Cannot be when workman agitated for the relief after a delay of 12 years (Mad. the temporary watchman of the bank who was terminated on 1972 applied High Court in the year 1984 for his absorption and contended that he was discriminated by the employer. Court dismissed challenge to the validity of reference by the management and held that definition of ‘Industrial Dispute’ is very wide and as workmen raising dispute in instant case have community of interest with retrenched workmen in general interest of labour because they put forward a claim that under circumstances similar to the present case they are entitled to claim bonus and also since the claim for bonus was not barred by Sec. 25F or 25H as the relief claimed was not relief under the Act but relief under declaration made by company and upheld the validity of reference made for the claim of bonus by retrenched workmen. Sundaram v. Nitya Hari Chaterjee & Ors. company issued a notification declaring additional profit bonus for financial year prior to such retrenchment and dispute regarding claim for bonus by retrenched employees was taken up by other workmen of establishment through their union. Para: 17) b) Cannot be of a casual employee in a local body if Government instructions prohibit it (Cal. Para: 4) .” (Page: 1294.It is not possible……….” (Page: 2216. High Court rejecting the said contention refused to grant any relief since the workman did not have any reasonable explanation for a long delay of 12 years. 12 is bound to comply with State Government circular which stipulates that all recruitments to local bodies should be made either through Public Service Commission or through Employment Exchange. v.” (Page: 722. R. Para: 16) “In view of……….” (Page: 723.Sec.745 Subsequent to retrenchment of certain workers and dismissal of one workman.By an award published……….However……….DB) ¥ 5A. Para: 15) “Coming to the case in hand………. there is no unanimity as to the number of days to be considered to arrive at one day wage for the purpose of computing retrenchment compensation.C. Settled law on the issues under this section a) Retrenchment compensation to be calculated on the basis of 30 days instead of 26 days (S.2J) Note: As observed from decisions of some High Courts. However the Apex Court in the recent case of Guru Jambheshwar University v.COM 59( see supra) has settled the issue by holding that the number of working days to be considered is 30 days but not 26 days. AND National Textile Corpn. Scope object and applicability of section a) Transfer does not end workmen’s contract of service (S. and all that the workmen were entitled to was the notice and compensation from the textile . 2007 I LLJ 1006 : 2007 (112) FLR 880 : 2007 I LLN 740 : 2007 LIC 956 : 2007 I CLR 931 : 2007 LLR 297 : 2007 (1) SCC (L&S) 792 : 2007 AIR (SC) 1040 : 2007 (2) SCC 265 : 2007 (3) Mah. wages and all fringe benefits as if he was still in employment till the employer tenders the due amount of gratuity to him. AND National Textile Corporation ltd. 25FF put on end to contract of employment on transfer was held to be a wrong presumption of law.HC) XII.HC) ¥ 5A.C. Dehradun & Anr. v.. corporation’s contention that provisions of Sec. AND N.C. Deoband v. Para: 4) “……….” (Page: 724. (South Maharashtra) Ltd. Rashtriya Mill Mazdoor Sangh and Ors. N. Mohite. Ltd.O.. Dharam Pal Regisrar2007 SCCL. Rashtriya Mill Mazdoor Sangh and Anr.LJ 63 : 2007 SCCL. 25FF nor transfer by itself has the effect of putting an end to contract of employment of workmen the section in fact envisages the continuation of employment and only provides for compensation to workmen if such transfer results in termination of the contract of employment hence in instant case where corporation took over textile undertakings.T. Vijay Kumar Agarwal and Ors. Vithal S.2J) Issue – Retrenchment compensation to be calculated on the basis of 30 days instead of 26 days Case law – Guru Jambeshwar University.” (Page: 724. Para: 5) “Sri Chowdhury also argued……….of the appeal fails. Compensation to workmen in case of transfer of undertaking . 25FF I.T.2J) “The learned Attorney General contended that the provisions of Section 25–FF in effect terminated the contract of employment of the workmen on account of the transfer of management of the textile mills to the appellants. v.C.the appellant company……….Sec. Workman deemed to be in employment and entitled to all the benefits till employer tenders the due amount of gratuity (All.2552 Chapter VA – Lay-Off and Retrenchment Sec.746 Where the termination of services of an employee were held illegal the Labour Court held that the workman was entitled for gratuity/arrears of gratuity. H.I have come………is an Industrial Dispute……….” (Page: 724. Hisar v. High Court upheld the decision. v. P.C.747 Neither Sec.COM 59 (S. M/s. 25FF “In the case before………. Ltd.2J) F 5A.C. 2003 (98) FLR 1004 (All. v.. Dharam Pal. Gangeshwar Ltd. Labour Court. Para: 7) j) Relief of fringe benefits and gratuity 1. 1993 I LLJ 954 : 1993 (82) FJR 462 : 1993 SCC (L&S) 178 : 1993 (1) SCC 217 (S. ownership or management of the undertaking.e.3J) “………. we are afraid that the same proceeds on a wrong presumption of the law. the workmen would not be entitled to notice and retrenchment compensation under Section 25–F from the transferor–employer. different considerations would come into play. It is only if there is a transfer of the undertaking and the said three conditions are not satisfied that a workman would be entitled to such notice and retrenchment compensation from the transferor–employer. Para: 15) “It is. The Workmen as represented by Madho Ram and Sons Employees’ Union. further make it abundantly clear that by itself neither Section 25–FF nor the transfer of the undertaking as such. These provisions show that where the employment continues in spite of the transfer of the undertaking. cannot be considered to be a transfer of separate undertaking or establishment for purposes of Sec. The Supreme Court therefore upheld the contention of Tribunal that transfer does not attract Sec.” (Page: 959. Para: 16) b) Inter-departmental transfers are not within the ambit of the section (S. puts an end to the contract of employment. 1964 I LLJ 366 : 1964 (8) FLR 117 : 1963–64 (25) FJR 294 : 1964 AIR (SC) 645 (S. In the present case.The fact that one undertaking runs these businesses would not necessarily exclude the application of Section 25FF solely on the ground that all the businesses or industries run by the said undertaking have not been transferred………. & Ors. will depend upon either the terms of the agreement of transfer or on the provisions of the law which effects the transfer. and in any case not with the appellants. In the payment of bonus all the employees were treated as constituting one unit and there was thus both the unity of employment and the identity of the terms and conditions of . only if the transfer results in the termination of the contract of employment. Though the transferor conducted several branches of business which are more or less allied. 25FF the entire business requires to be transferred i. Whether the transfer results in the termination of the contract of employment or not.C. the muster roll showing the list of employees was common in regard to all the departments of business run by the transferor firm. The Management of R.” (Page: 369. The workmen could not remain in service in continuance of the contract of employment after the transfer. Act as if the workmen were retrenched. but were liable to be transferred from one branch to another. In fact.Sec. Para: 2) “But where the undertaking runs several allied businesses in the same place or places. It is not disputed that the terms and conditions of service were the same for all the employees and what is most significant is the fact that the employees could be transferred from one department run by the transferor firm to another department. There is nothing in the said provisions to indicate such a consequence on the transfer of the undertaking. 25FFand the proviso to it. The section in terms states that if the terms of the agreement or the provisions of the law have the effect of terminating the contract of employment. Act. the services of the employees were not confined to any one business.contention which is based on the provisions of Section 25–FF of the I. The section only provides for compensation to the workmen if such transfer aliunde results in the termination of the contract of employment. In other words to attract Sec. and makes provision for the compensation. the section by itself does not put an end to the contract of employment on the transfer of the ownership or management of the undertaking to the new employer. 25FF. Hence.3J) F 5A.The three conditions under which the workman becomes ineligible to the notice and retrenchment compensation under Section 25–F.” (Page: 959. the section envisages the continuation of employment. every workman in employment in the transferor undertaking would be entitled to notice and compensation in accordance with the provisions of Section 25–F as if the workmen had been retrenched……….S. Para: 11) “……….” (Page: 957.D. 25FF Scope object and applicability of section 2553 mills in accordance with the provisions of Section 25–F of the I. there was no obligation on the appellants to continue the services of the workmen after the takeover of the management………. Madho Ram and Sons (Agencies) Private Ltd. more than clear that neither Section 25–FF nor the transfer by itself has the effect of putting an end to the contract of employment of the workmen. common muster roll for all employees who were governed by the same service condition and who were liable to be transferred from one department to another and were treated as one unit for purposes of bonus and were not employed for any particular branch or line of business.C. As is clear from the provisions of the said section which are reproduced above. by a firm having many combined parts of business at same place. therefore. v.D.748 Transfer of all the workmen of a retail business department to another dept. Director. The transfer which has been effected by the firm in favour of the appellant does not. 2002 I LLJ 173 : 2001 (91) FLR : 2002 I LLN 721 : 2001 III CLR 230 : 2002 LLR 52 (Bom. In fact. it appears to us to be very difficult to accept Mr.. The Andhra Prabha Ltd. 25FF does not compel employees to accept transfer but only ensures compensation to them (Bom. & Anr. 25FF and the proviso to it did not apply to the present case.” (Page: 20/21. Para: 3) e) Sec.2J) Note: Please see related ratio/s under the above citation in this section .750 When a verbal assurance by chairman of the company that there would be no shifting of venue of 2 publications for specified period cannot be inferred from circumstances of case in absence of any oral and documentary evidence. it only ensures payment of retrenchment compensation in case of transfer of undertaking.” (Page: 370. Barnagar Electric Supply & Industrial Co. 1968 I LLJ 15 : 1967-68 (33) FJR 318 : 1967 (15) FLR 435 : 1967 AIR (SC) 1869 (S. The Tribunal further held that an assurance of the nature could not be inferred from the circumstances of the case with the result that the first part of the first issue was answered in the affirmative with the necessary consequence that the workers could not be held entitled to any relief because of the transfer of these two publications. amount to the transfer of the ownership or management of an undertaking and so. whether Ramnath Goenka had given a verbal assurance in November 1958 that there would be no shifting of the venue of the publication of any of the papers from Madras to Vijayawada for 2 ½ years. in our opinion.749 Employees of transferor undertaking are not compelled u/s.HC) d) Transfer of undertaking cannot be assumed but to be proved on evidence (S. Madras Union of Journalists & Ors.HC) ¥ 5A. & Anr. Para: 3) “No attempt was made before us to show that the Tribunal’s conclusion about the absence of the verbal assurance or the inference to be drawn in respect thereof from the circumstances was wrong………..” (Page: 369/370. The Tribunal scrutinized the evidence both oral and documentary in great detail and observed that it was not satisfied that Ramnath Goenka had given any verbal assurance imputed to him.C. v.2J) F 5A. 25FF does not stipulate notice or payment of compensation as condition precedent to transfer nor any time limit for their payment (S. it is purely a matter of accident that the 57 workmen with whose transfer we are concerned in the present appeal happened to be engaged in retail business which was the subject-matter of the transfer between the firm and the company These 57 employees had not been appointed solely for the purpose of the retail business but were in charge of the retail business as a mere matter of accident. Ujjain v. The Secretary. Setalvad’s argument that because the retail business has an identity of its own it should be treated as an independent and distinct business run by the firm and as such.C.C.2J) “………..” (Page: 21. Rallis Group Employees Union v. and hence workers would not be entitled to any relief because of the transfer of 2 publication. Para: 1) c) Sec.we are satisfied that the appellant cannot claim to be a successor-in-interest of the firm so as to attract the provisions of S. Under these circumstances. Surajmal Mehta. 1969 I LLJ 762 : 1969 (35) FJR 232 : 1969 (18) FLR 284 : 1969 LIC 867 : 1969 AIR (SC) 590 (S. Ltd. Rallis India Limited & Ors. Para: 3) “……….2554 Chapter VA – Lay-Off and Retrenchment Sec. 25FF service.2J) Payment of Wages Inspector. 25FF of the Act to accept transfer of their services to transferee undertaking.. 25FF………. 25FF of the Act. the transfer should be deemed to have constituted the company into a successor-in-interest of the transferor firm for the purpose of S.The central question with regard to the first issue was.C. the Tribunal was right in holding that S. When the legislation has taken care to make that section applicable to the undertaking governed by the Chapter V-B also. 1995 LIC 801 : 1999 III LLJ 1505 (Pat. Ltd.” (Page: 32. HC) h) Section not applicable to take over of undertakings if it is not for acquiring ownership (Pat..this case……….Sec. 25FF has no application at all as there is no change of ownership thus resulting in continuity of service under same terms and hence question of compensation does not arise. Negativing the claim of employees for retrenchment compensation against undertaking it was held as workers were not discharged as ‘surplus Labour’ there was no retrenchment u/s. Guntur Power & Light.HC) ¥ 5A. Para: 3) “The Next Point……….if follows that………. 4 September 1956 after the claim of workmen arose on 1 May 1956 the said section would be inapplicable.CB) .. 1993 I LLJ 1211 : 1993 II LLN 173 : 1993 II CLR 31 : 1993 LLR 697 (Mad.CB) F 5A.” (Page: 804.DB) ¥ 5A. 25FF and also since Sec. Ex-Employees’ Union. That is the only section dealing with compensation to workmen in case of transfer of undertaking in the entire Act.Electricity Supply undertakings………. Workmen of Deccan Sugars v. Anakapalle Co–operative Agricultural & Industrial Society Ltd.appeal is sustained………. Sec. 1961 I LLJ 30 : 1960-61 (19) FJR 492 (AP. it is futile to contend that Sec. 25FF is expressly made applicable to all undertakings whether they fall within Chapter V-A or V-B. & Ors. Ltd. Their Workmen & Ors.e. Para: 1) “At the outset……….f. Para: 5) “From the provisions………. Para: 1) g) Applicable to all undertakings covered both under Chapter VA and VB (Mad.DB) “……….754 In case where transfer of an industrial concern is fictitious or ‘benamidar’. Bihar State Financial Corporation v. Para: 4) “……….752 Sec. Para: 2) “Indisputably all the………. Guntur Power & Light.” (Page: 32.DB) “It appears………. 25N would apply to termination of employment on transfer of undertaking also even though the section does not refer to it and on the other hand it refers only to retrenchment. v. Para: 17) i) Sec. 1963 AIR (SC) 1489 : 1962 II LLJ 621 : 1963-64 (24) FJR 101 : 1963 (6) FLR 1(S.C.company in question………. 25FF came into force w.” (Page: 33.undertaking. Jute Mill Mazdoor Sabha & Ors. 25FF has no application in case where transfer of an industrial concern is fictitious or ‘benamidar’ (S.751 Undertaking was taken over by State Government and all the employees were retained but without continuity of service. v.the same employer. Nava Bharat Ferro Alloys Ltd.753 The provisions of this section are not applicable to State Financial Corporation which took over the Jute Mill for the purpose of recovering the loan but not for acquiring ownership and running it since no employer–employee relationship can be inferred in the case of the former.C.” (Page: 803.by the Government.DB) ¥ 5A..” (Page: 32..” (Page: 30.to the present case. 25FF Scope object and applicability of section 2555 f) Section is applicable prospectively (AP. 3J) F 5A.” (Page: 1495. v. there was a division of functions between M /s. Mahesh Transport Co. and the appellants..” (Page: 596/597. Para: 18) II. The workers continued to do the same work and receive the same payment without any change in their employment. 25-FF has no application at all. That is not the case here.HC) . v. and did not know the internal relationship between these two firms.C. there came into existence the partnership firm of the appellants………. In fact the workers had not even agreed by a separate contract to work for the appellants. Para: 5) “………. i. Management of Mettur Beardsell Ltd.756 In order to enter into a partnership business.The workers were working as the employees of M /s.C. the doctrine of common employment would not arise in this circumstance as the change in the constitution was created by the two employers themselves and there is no role of employees in these divisions and therefore it was held that the reference of dispute to implement the recommendations of wage board for interim relief was held valid. S. Therefore.. perhaps. there has been no change of ownership or management and despite an apparent transfer. without the latters’ mutual agreement. they had thought that they were the employees of only M /s. In fact. apply where the workers contract separately to serve two employers. the transferor employer continues to be the real employer and there has to be continuity of service under the same terms and conditions of service as before and there can be no question of compensation.” (Page: 597/598. Krishna Commercial Co. They continued to work. after the Wage Board’s recommendations were accepted by the Government of India.e. M/s. The Transport and Dock Workers’ Union. 25FF “………. for M /s.It is common ground that if a transfer is fictitious or ‘benami’. As to whether the doctrine of common employment is unknown to Industrial law it is not necessary for us to decide in this case. Transfer of Undertaking vis-a-vis splitting of existing firm into two firms-Whether to be considered to be two different employers a) It cannot be two different employers if company is split dividing functions and liabilities between them when workmen are not aware of such split or contracted separately with them and there is no change in their service conditions (S. If what the two firms had done created a situation of common employment that was not of the seeking of the workers. Krishna Commercial Co.The workers were not interested as to whether the one firm or the other bore the total responsibility for paying for the work which they were doing. the consent of employees to such transfer was held not required in as much as legally there takes place no transfer but consent is required when the firm withdraws from the so called transfer. After the creation of the new firm of the appellants. The change was merely in the constitution of the employers. however. & Ors. and if the two firms agree that they have so shared the liability both would be regarded as the employers of the workmen. Krishna Commercial Co.2556 Chapter VA – Lay-Off and Retrenchment Sec.HC) ¥ 5A. there is no substance in the contention that on the finding of the Tribunal it should be held that this was a case of common employment.Transfer of undertaking–Entering into partnership-whether same a) Entering into a partnership business requires no consent of employees and legally no transfer takes place (Mad.755 When a company itself merely split into two between themselves and divides functions and shares liability to pay and workmen of company were not aware of this interrelationship nor agreed by any contract to work for the new firm but continue to do the same work and receive same pay without any change in their employment. however. as they were accustomed to do. Workmen of Mettur Beardsell Ltd. Krishna Commercial Co.3J) “On 1-8-1965. The doctrine of common employment may. on the other………. In such a case. But the latter shared its liability to pay the workers with a new firm of the appellants after 1-8-1965. on the one hand. 1992 I LLJ 1 : 1992 I LLN 279 (Mad. Para: 7) III. 1974 LIC 595 : 1974 (28) FLR 280 : 1974 II LLN 131 : 1974 SCC (L&S) 310 : 1974 AIR (SC) 868 : 1974 (4) SCC 355 (S. Quashing order of retrenchment it was ordered that the employer is under legal obligation to regularize and pay the same salary as they have worked for more than 240 days. Umesh Chandra Pandey & Ors.C. Sale of a bus together with the permit since it involves transfer of ownership (Mad.HC) IV. In other words the business carried on by transferor must if so facto be carried on by the transferee.M.R. Supreme Court set aside the High Court’s . Khadar Hussain Sahib B.761 The workmen were transferred due to transfer of the undertaking and there was no change in their conditions of service. 25FF of the Act and the same was challenged. it was clear that employer has not ceased to operate the business but entered into an agreement for better functioning of the organization and to avail technical know-how and expertise in the trade. 1966 I LLJ 564 (Mad. But the Single Judge as well as Division Bench held that the transfers were illegal as no consent of employees was taken by employer before such transfer.J..757 Sec. the identity of business of transferor and transferee company must not change. The other establishment was to provide the technical know-how and technical services to joint company. & Ors.760 In a valid transfer. Transfer of undertaking a) Includes 1. The employees were retrenched as per Sec. 1991 LIC 1449 : 1991 LLR 638 (All. Joint venture between two companies for better functioning and technical cooperation (All.HC) ¥ 5A. On appeal. 1958 I LLJ 36 (Bom. the retrenchment in question was illegal and was not consequent upon transfer. 25FF not applicable to a change of constitution of partnership firm or conversion of partnership firm into a proprietorship firm (Mad...HC) V. Tribunal held that there was no dispute. A. A. High Court observed that from the admitted facts. Chellappan & Anr. Chavan v. P.P. v. v.2J) F 5A. 1962 I LLJ 361 : 1962 (5) FLR 249 (Mad. Sawarkar. State of U.HC) ¥ 5A.758 The transfer of one bus together with the permit would amount to transfer of its ownership or of the undertaking even though the seller might still be the owner of the other buses and might still be continuing the business of a bus owner by plying other buses for profit because on the sale of bus along with the permit. Mohamed Sheriff & Anr. 25FF Transfer is valid 2557 b) Sec. 25FF will have no operation where there is a change of constitution of a partnership firm or the partnership firm was dissolved to convert the same into a proprietorship firm.P. Transfer is valid a) When business of transferor and transferee is the same (Bom. the management of the bus and the ownership of bus would change hands. They moved Tribunal contending that by transfer the management practiced fraud upon them.Sec.D.DB) ¥ 5A.HC) ¥ 5A.DB) b) Though workmen’s consent is absent (S.759 The establishment entered into an agreement with other establishment according to which a joint sector was created for float glass project. N.HC) b) Excludes 1. Sundararajan v. Thus. M. It is not necessary to obtain the consent of the workmen in order to transfer such undertaking.P. Conductor.we have no hesitation in holding that after the advent of Section 25–FF of the I. on the ground that consent of the workmen had not been obtained………. the letter of consent of the individual employee cannot be a ground to invalidate the action. 25FF.D. Tirupathi. 1975.The relief sought for in W. within the meaning of Section 25–FF of the I. The rights of the employees of such undertakings are envisaged u/s.” (Page: 373. Therefore.DB) “……….We have noticed the fact that both the second respondent – Company as well as the Purchaser had given notice to the workers individually making it clear that all the three conditions of the proviso to Section 25–FF of the I.DB) “………. The employee was removed from service after a domestic enquiry for the misconduct of violating the rule of ‘Issue and Start’. The said transport undertaking was taken over by the Andhra Pradesh state Road Transport Corporation in pursuance of the agreement dated August 8. Act. v.Therefore.C.762 Denying the contention of workmen it was held that absence of the consent of workmen does not invalidate transfer of ownership or management of an undertaking. whether by agreement for by operation of law.HC) c) When workmen had tacitly consented to it (Mad.O. The P. Para: 10) ¥ 5A. 1997 I LLJ 362 : 1996 (89) FJR 728 : 1997 LLR 189 (Mad. the workmen therein can be taken over by the transferee undertaking.V.. Industrial Tribunal & Ors. v. State Road Transport Corporatin.DB) ¥ 5A.There is nothing in the wording of Section 25FF even remotely to suggest that consent is a pre-requisite for transfer. However. Act there is no scope for invalidating the transfer of the ownership or management of an undertaking.P.D. Management. he moved the High Court contending that he was not the employee of the APSRTC and therefore. nor the workmen had able to establish any element of fraud as they contended. Tirupati.763 Employee was working as a bus conductor in the transport wing of the Tirumala Tirupati Devasthanam (TTD). & Anr.2J) “………. not bound by the terms of the agreement between the APSRTC and TTD because the employees of the erstwhile transport wing are not the parties to the bipartite agreement dated August 8. Aggrieved. 15742 of 1993 by the appellant–workmen against the .764 In view of the facts that the Transferor as well as transferee sent individual notices to workmen that conditions of proviso to the section were complied with and service conditions were to remain unchanged and workmen never questioned transfer on the ground that their consent was not obtained and sought relief against Transferee against stoppage of work. Act were being complied with and the workmen were assured that the same conditions of service will prevail and even the settlement dated September 18. 25FF order as there was nothing in the wording of Sec. Depot Manager. on the first point framed by us we hold against the workmen that no consent is necessary for validating the transfer of ownership or management of an undertaking. Tirupathi I Depot v. The P. Spencer Group Aerated Water Factory Employees’ Union & Anr.. Sec. 1997 I LLJ 362 : 1996 (89) FJR 728 : 1997 LLR 189 (Mad. Mettur Beardsell Ltd. 25FF of the Industrial Disputes Act is attracted. Industrial Tribunal & Ors. 1975..D. Reddy. G. Workmen of Mettur Beardsell Ltd. 25FF to suggest that consent was a condition precedent for transfer. The underlying purpose of Section 25FF is to establish a continuity of service and to secure benefits otherwise not available to a workman if a break in service to another employer was accepted. Spencer Group Aerated Water Factory Employees’ Union & Anr.2558 Chapter VA – Lay-Off and Retrenchment Sec. 2006 II LLJ 899 : 2006 (109) FLR 1057 : 2006 III LLN 687 : 2006 LIC 2230 : 2006 LLR 868 : 2006 AIR (SC) 2056 (S. v. 1989 would be adhered to……….O. Para: 24) ¥ 5A. 1993 I LLJ 549 : 1994 II LLJ 861 : 1993 (66) FLR 782 : 1993 I CLR 948 : 1993 LLR 252 (AP. A. the High Court rejected the contention and upheld the removal on the ground that in case of transfer of undertakings. the workman had tacitly consented to transfer and hence cannot contend that their consent was not obtained. In such a case.”(Page: 902. 1996 II LLJ 852 : 1996 LIC 18 : 1995 I LLN 473 (Mad.Sec. (represented by its Attorney S. In this view of the matter. Transfer is not valid a) If there is no express consent of the workmen (Bom.of CIDCO. Madras v.” (Page: 374. Para: 25) d) When factory sold is functioning as a separate undertaking (Mad. Ltd.. & Anr.C. Para: 29) VI..of service.766 In case of transfer of undertaking. 1997 I LLJ 362 : 1996 (89) FJR 728 : 1997 LLR 189 (Mad.DB) ¥ 5A. Gharat & Ors.767 Petitioner transferred its Aerated Water Factory along with it’s workmen to the new employer without obtaining the consent of workmen working therein. Bombay Metropolitan Transport Corpn. v. we hold that by their conduct the workmen had tacitly accepted the change in the management. Spencer Group Aerated Water Factory Employees’ Union & Anr. Bannerjee).” (Page: 373/374.2J) . 1987 (54) FLR 343 (Bom.undertaking or not…………” (Page: 376. v. Spencer Group Aerated Water Factory Employees’ Union (represented by its General Secretary).O. Workmen of Mettur Beardsell Ltd. Madras. Para: 27) “We do not……….DB) ¥ 5A. was sold as a going concern to the third respondent……….HC) Note: Refer to the case of Management. Para: 8) “Having……….. v.factual aspects make it clear beyond any reasonable doubt that the entire Aerated Water Factory Unit with all the employees.” (Page: 345.” (Page: 346.DB) “………. Hasuram G.765 It was held on facts that entire aerated water factory was sold as a going concern and was functioning as a separate undertaking.N. to reopen the factory or in the alternative to pay the workmen wages due to them. services of employees cannot be transferred unilaterally. The P. Industrial Tribunal. 2006 II LLJ 899 : 2006 (109) FLR 1057 : 2006 III LLN 687 : 2006 LIC 2230 : 2006 LLR 868 : 2006 AIR (SC) 2056 (S. Mettur Beardsell Ltd. The workmen worked for several months after transfer but were continuously protesting and hence they cannot be said to have given any implied consent. Vishwadarshan Distributors. General Manager. 25FF Transfer is not valid 2559 Purchaser–3rd respondent. Ltd. Para: 8) ¥ 5A. It was held that their transfer without their consent was not justified.DB) “We have………. and as the transfer of service was made without consent was held to be no transfer at all and employee deemed to be continued as an employee of transferee company. Spencer Consumer Products & Service. Plant and Machinery. remand by Single Judge for establishing whether the transfer was of ‘undertaking’ was unnecessary. Madras.. was a clear indicator of the fact that the appellant–workmen by their positive conduct did consent to the transfer of the undertaking by the second respondent to the third respondent. Industrial Tribunal & Ors. 1956 I LLJ 227 : 1955-56 (9) FJR 419 : 1956 AIR (SC) 231 (S. 33A is maintainable. is bound to affect its all round working and.” (Page: 350.be attracted.. Para: 6) “By implication………. 33(2)(b) and application u/s.K.” (Page: 352. Thomas Paul v.” (Page: 229.768 The tribunal held that the transfer of the Hoop mill to Calcutta could be a ground for retrenching employees at the most in that department alone and retrenchment of employees of other department is not justified but it was observed by Supreme Court that the Tribunal has overlooked the view that departments are functionally interdependent on one another and closure or transfer of one materially affects the functioning of other and results in surplusage of workmen in other departments also and thus one cannot confine retrenchment of staff merely to the closed or transferred department alone and to this extent the Tribunal’s view is narrow and cannot sustain.C. hence relief of reinstatement with back wages granted by Tribunal was held to be justified. therefore. Kanpur.” (Page: 234. Kanpur v.” (Page: 238. 1977 (35) FLR 345 : 1978 LIC 267 (Ker.emphasised. Para: 5) c) If resorted to as a colourable exercise of power to discharge workmen (Ker..DB) ¥ 5A. Industrial Tribunal Kozhikode. & Ors. Para: 4) “This is one of the findings attacked before us by the Company on the ground that the Tribunal has failed to realise that the Company’s operations must be considered as a whole and that because of the interdependence of its various departments a closure of one section. Para: 5) “Next. That is not a decision “given in accordance with the Act” and is as much open to objection on that score as the award of the Adjudicator.3J) “The Tribunal also upheld the finding that the Hoop Mill was in the course of transfer to Calcutta consequent on the orders of Government. J. Para: 2) “The award and the decision of the Labour Appellate Tribunal are set aside and the case is remitted to the Labour Appellate Tribunal for a re-hearing of the appeals filed before it and for a fresh decision in the light of the foregoing observations. We will deal with this later. Para: 10) . but they held that there was nothing on the record to show which of the 105 persons (it should be 102) whose cases they were considering were “specifically engaged in the Hoop Mills and had become surplus by reason of the transfer to Calcutta”. coupled with a shortage of materials in another. 25FF b) When the transfer is inter-departmental and departments are interdependent (S. Para: 41) “………. Ltd. it agreed that that would have been a good ground for retrenching those who were specifically engaged in the Hoop Mill but not the others. Iron and Steel Co. But this takes an impossibly narrow view and ignores the over-all working of a business concern and the repercussions that a transfer of this kind would have on other parts of the business. It totally ignores the pleadings of the parties and like the adjudicators.we are of opinion that the Adjudicator and the Labour Appellate Tribunal had adopted the attitude of benevolent despots and have based their conclusions on irrelevant considerations and have ignored the real question that arose for decision and the issues that arose out of the pleadings of the parties.769 Action u/s. 25FF resulting in the discharge or termination of the workman if found to be colorable exercise of power and act of victimization.” (Page: 229. will attract Sec. The Iron and Steel Mazdoor Union.” (Page: 234.3J) F 5A. the question of retrenchment cannot be looked at from the narrow point of view of only one department but must be viewed in its all round setting.DB) “We see……….. bases its conclusion on some airy view of what it considers would be a good thing for the workmen.C.2560 Chapter VA – Lay-Off and Retrenchment Sec. when the Appellate Tribunal turned its attention to the transfer of the Hoop Mill to Calcutta. . as here. State Government and the Corporation and issue appropriate directions.3J) “………. Para: 5) . the transferee and transferor being virtually the same. Union of India MANU/SC/0005/1988 and the cases cited therein. etc. in such a case.. Of course. We do not quite agree with this contention but. The arbitrariness smacks in the face by excluding their past services and deprivation of all resultant benefits and therefore in such cases the Court is held to be bound to direct the state to do what it failed to do by judicial review by verifying the terms of conditions of transfer as an exception to the application of Sec.. the transfer cannot be valid in the eyes of law. Palmer.). Industrial Tribunal (1953) 1 Lab LJ 14 (Bom). Section 25FF has no application at all. Company Law. “there has been no change of ownership or management and despite an apparent transfer. If the object of transfer is to insulate from the losses. Ltd. certainly. We think that. 25FF Transfer is not valid 2561 d) If transfer is fictitious or benami or despite transfer. the transferor and or transferee is a State or a State instrumentality. paras 8 and 10 and the decision in Kapur v.” (Page: 350/351. 23rd Edn. These exceptions to the above rules. Gurmail Singh & Anr. we may turn to a third category of cases. Similarly where there is a transfer both in form and law. This is where. would still be operative. viz.C. v.3J) F 5A. the transfer in the eyes of law being non-est.770 Where the transfer is fictitious or benami with no change of ownership or management and despite an apparent transfer.Sec. 1993 (82) FJR 332 : 1991 II LLJ 76 : 1991 (62) FLR 458 : 1991 I LLN 587 : 1993 LIC 428 : 1991 I CLR 637 : 1991 SCC (L&S) 147 : 1993 AIR (SC) 1388 : 1991 (1) SCC 189 (S. we think. The third category of case as an exception to Sec. 25FF arises in the context where the transferor and transferee is State or State instrumentality which is expected to act fairly and not arbitrarily as in the instant case. it was held that Sec.The Supreme Court itself has visualised such a case and made it clear that if a transfer is fictitious or benami. (1954) 2 Lab LJ 424 (Mad).T.A. (see. this aspect is not very material and need not be further discussed. and Artisan Press v. of a succession in interest but the management continues to be in the hands of the same set of persons organized differently. 25FF. then the Government should have decided to cut off itself once the tube wells were transferred from all liabilities but that the Government did not do so but continued to bear the losses and while so doing abridged the rights of the employees by choosing to retrench 498 tube well operators and arranging simultaneously to absorb them as fresh recruits in the new corporation. the tubewells. the transferor employer continues to be the real employer. 25FF has no application at all. In such cases. such directions could be issued even if the elements of the transfer in the present case fall short of a complete succession to the business or undertaking of the State by the Corporation. Indeed. cited therein). which we think would also fall as an exception to the principle behind Section 25FF. the transferee and transferor are virtually the same and the overriding principle should be that no one should be able to frustrate the intent and purpose of the law by drawing a corporate veil across the eyes of the Court. v. which is required to act fairly and not arbitrarily (see the recent pronouncement in Mahabir Auto Stores v. as the principle sought to be applied is a constitutional principle flowing from the contours of Article 14 of the Constitution which the State and Corporation are obliged to adhere to. in such circumstances it will be open to this Court to review the arrangement between the. We are making this observation because it was attempted to be argued on behalf of the State and the Corporation that only certain assets of the State ‘industry’. particularly as there is a catena of cases which do not approve of such identification (see Accountant and Secretarial Services P. and the Court has a say as to whether the terms and conditions on which it proposes to hand over or take over an industrial undertaking embody the requisite of “fairness inaction” and could be upheld. A second type of cases which comes to mind is one in which there is in form. and perhaps also in law. pages 200-201. in view of the approach we propose to adopt.C. v.etc. Leaving this out of account then. But it is not necessary here to decide whether this principle will help us to identify the corporation with the State Government in the present case for the present purposes. Sheilds (1976) 1 WLR 131. State of Punjab & Anr. a succession but the management continues to be in the hands of the same set of persons organised differently such as in Bombay Garage Ltd. were taken over by the latter and nothing more. the transferor employer continues to be the real employer and there has to be continuity of service under the same terms and conditions of service as before and there can be no question of compensation”. the overriding principle being that no one should be able to frustrate the intent and purpose of law by drawing corporate veil across the eyes of the Court. Indian Oil Corporation MANU/SC/0191/1990. L. the management continues to be in the same set of persons organised differently (S. is the business purchased is the same or similar.CB) “The question as to whether a purchaser of an industrial concern can be held to be a successor-in-interest of the vendor will have to be decided on a consideration of several relevant facts. v. it would be unreasonable to exaggerate the importance of any one of these facts or to adopt the inflexible dale that the presence or absence of any one of in them is decisive of the matter one way or the other………. neither presence nor absence of any of them is decisive.. v.” (Page: 1492/1493. hence the purchaser i. (S. Anakapalle Co–operative Agricultural & Industrial Society Ltd. nature. Their Workmen & Ors. we are inclined to take the view that having regard to all the relevant facts in this case. Anakapalle Co–operative Agricultural & Industrial Society Ltd. Did the purchaser purchase the whole of the business? Was the business purchased a going concern at the time of the sale transaction? Is the business purchased carried on at the same place as before? Is the business carried on without a substantial break in time? Is the business purchased carried in at the same or similar to the business in the hands of the vendor? If there has been a break in the continuity of the business. without an appreciable break.2562 Chapter VA – Lay-Off and Retrenchment Sec.. A purchaser can be when he carries on same business without appreciable break at same place and it’s very object of sale transaction was to carry on business of vendor company (S.771 The question as to whether a purchaser of industrial concern is successor-in-interest of vendor should be decided considering several relevant facts such as whether whole business was purchased. whether good will is purchased. 1963 AIR (SC) 1489 : 1962 II LLJ 621 : 1963-64 (24) FJR 101 : 1963 (6) FLR 1 (S.C.the appellant has carried on the business of the Co. what is the nature of the break and what were the reasons responsible for it? What is the length of the break? Has goodwill been purchased? Is the purchase only of some parts and the purchaser having purchased the said parts purchased some other new parts and started a business of his own which is not the same as the old business but is similar to it? These and all other relevant factors have to be borne in mind in deciding the question as to whether the purchaser can be said to be a successor-in-interest of the vendor for the purpose of industrial adjudication. It is hardly necessary to emphasise in this connection that though all the facts to which we have referred by way of illustration are relevant.CB) F 5A.e.CB) F 5A. the tribunal was right in law in coming to the conclusion that the appellant is a successor-in-interest of the Company.C. was the business purchased a going concern at time of sale transaction. Para: 9) b) Who can be Successor-in-interest 1. reasons and length of any break in continuity of business. Para: 10) . if purchase is only of some parts and purchaser starts new business similar to old after purchasing some other new parts and such decision cannot be reached by treating any one fact as of overriding or conclusive significance.772 Since purchaser carried on same business without appreciable break at the same place and it’s very object of entering into sale transaction was to carry on business of vendor company which manufactured sugar. 1963 AIR (SC) 1489 : 1962 II LLJ 621 : 1963-64 (24) FJR 101 : 1963 (6) FLR 1 (S..C.C. Successor-in-interest a) No single conclusive factor but to be determined by various factors like whether whole business was purchased or is it a going concern etc.” (Page: 1493. the place of business is the same. and the very object of entering into the sale transaction was to enable the local cane growers to carry on the business of the Company. the business thus carried on is the same as that of the Co. Their Workmen & Ors. Therefore. 25FF VII..CB) “………. local cane growers society was held to be a successor-in-interest of vendor for purposes of demand of re-employment of workmen of vendor company. Thus the Board is not a necessary party to the dispute and the order of the Tribunal impleading it as a party is set aside. A new company can be when the same business was carried on by new company and identity of business is not destroyed by interruption (Ker. 1960 II LLJ 341 (Ker. Central Inland Water Transporat Corporation Ltd.in the case………. A transferee company is not when it took over only assets but not liabilities and sale was free from encumbrances (Bom. 1910.Sec.1965 II LLJ 458 (Bom..” (Page: 347.as a whole.” (Page: 163.electricity Act. Maharashtra State Electricity Board v. it cannot be said that the Board was a successor-in-interest of the company. 25FF and 25F on the termination of their services and were not entitled to claim reinstatement from the transferee board as transfer was not fictitious.. Para: 1) “……….775 The license of the electricity supply undertaking was revoked during the pendency of adjudication proceedings in regard to disputes with the workmen and substantial portion of assets was taken over by the State Electricity Board at prices determined under the State Electricity Act but the liabilities of the company including staff liabilities were not taken over and the undertaking was sold free from encumbrances. Para: 17) 2.DB) “It would………the same. In these circumstances.become its successor……….” (Page: 466/467. Para: 10) c) Who cannot be a successor-in-interest 1. hence new company will be successor in interest. Para: 1) “The Board was not liable………. 25FF Successor-in-interest 2563 2. Industrial Tribunal & Ors.interruption of or gaps………. it was held that the claim by such employee against the transferee company is not maintainable since it is not a successor of the company so far as the employees who were not taken in employment and hence the Tribunal has no jurisdiction to decide the said question.the substance of the………. Para: 1) .774 Government Corporation took over a shipping company running into financial loss under a scheme sanctioned by the High Court. On a writ petition filed by the Corporation challenging the order of the tribunal holding the reference of the dispute about the termination of an employee as valid inspite of corporation’s objection that the claimant was not it’s employee nor was it the successor of the company.” (Page: 468. v. West Bengal & Ors.of the undertaking.DB) ¥ 5A.” (Page: 467. Clause 7 of the scheme granted the Corporation the liberty to absorb only those who were found suitable but not all employees.DB) ¥ 5A. A transferee company cannot be in respect of an employee whose services were terminated at the time of transfer if it has liberty not to absorb all (Cal.DB) “……….DB) “……….a fresh lease.Once the licence……….773 Where the same factories were being worked with same goodwill in discharge of the obligation to employ workmen who had been thrown out of employment and with loan aid given to old company. Musaliar Industries Pvt..DB) ¥ 5A. Ltd. State of Kerala & Ors. The employees were paid retrenchment compensation u/s. 1983 I LLJ 157 : 1983 I LLN 366 : 1983 LIC 31 (Cal. v. Seventh Indsutrial Tribunal. it can be inferred that same business was carried on by new company and identity of business is not destroyed by interruption or time gap between incoming and outgoing management and it is immaterial that new management begins to carry on same business on fresh lease. On October 5.3J) “We are in agreement with the contentions of the learned Solicitor General that the view of the Labour Court. is perfectly justified.” (Page: 469. nor can he be considered to claim through the Receiver or Liquidator and their claim will have to be adjudicated in accordance with Sec. admittedly.. What was purchased. on July 27.HC) ¥ 5A. Purchaser of equity redemption of assets cannot be as it does not amount to transfer or it being transferee (S.776 The tea estate terminated the services of all the workmen on 21st August 1961 and thereafter Court receiver was appointed on 5th October 1961 whereas reference of dispute was made on 27th July 1962 and sale deed was executed on 11th August 1962 whereby equity redemption in part of he assets was purchased by the 1st respondent and liquidator was still functioning hence it was held that the first respondent cannot be considered to be a successor-in-interest of the Tea Company. was not in the picture on these various dates.” (Page: 471. 1961. it will be seen that the claims of the workmen will have to be considered. the High Court had appointed a Receiver. under instructions from the Receiver. 25FF if the claim is based on the ground of transfer of business and in either case. as against the Tea Company. (1963) Supp 1 SCR 730 = (AIR 1963 SC 1489). The 1st respondent. It cannot also be stated. From the various facts. for the Tea Gardens. in the suit Transfer Company Suit No. 1962. it will clearly be seen that the order terminating the services of the workmen was made on August 21. laid down by this Court. 1993 I LLJ 73 : 1992 (80) FJR 281 : 1992 (64) FLR 1162 : 1992 I LLN 817 : 1992 LIC 1127 : 1992 II CLR 252 : 1992 LLR 929 (Karn. Para: 2) “But when the transfer……….” (Page: 691. Where the business is not so taken over and only the land and buildings are purchased for starting together a new business and leaves plants and machinery to the vendor’s disposal. 25FF “On an evaluation………. Workmen.C.L: 9) 4. nor can he be considered to claim through the Receiver or Liquidator. Incoming Management of Brahmputra Tea Estates & Anr. the learned Solicitor General is perfectly justified in his contention that the first respondent cannot be considered to be a successor-in-interest of the Tea Company.C. B. V. contained in the sale deed. v. and considered. Additional Industrial Tribunal. Even on the basis that the first respondent is considered to be a person. 25F of the Act if it is a retrenchment and u/s. when its proviso cannot be invoked. given above. that the first respondent is not liable to answer any of the claims of the workmen concerned. in respect of which the Official Liquidator was still functioning. Job the Superintendent of the Tea Gardens. Bangalore & Anr. by the first respondent. PSI Data Systems Ltd.1969 II LLJ 685 : 1967-68 (33) FJR 348 : 1967 (15) FLR 390 : 1968 LIC 521 : 1968 AIR (SC) 514 (S.3J) F 5A. it is for the Labour Court to properly adjudicate upon the case and the First respondent is not answerable to the claims of workmen under any of the sections. Para: 1) “……….in our view………. 1961. in accordance with Section 25FF of the Act. appointed by the Jorhat Court. was only the equity of redemption in a part of the assets of the Tea Company.the workmen. as separate from the Tea Company.” (Page: 469. in the light of the principles. in the mortgage suit. The order. in Anakapalle Co-operative Agricultural and Industrial Society Ltd. 7 of l962. dated August 11.HC) . the purchaser can not be held to be successor in interest.2564 Chapter VA – Lay-Off and Retrenchment Sec. that the first respondent is the successor-in-interest of the Tea Company. Therefore. having due regard to the various recitals. referring the dispute to the Labour Court was made.. Workmen of Brahmputra Tea Estates v. Purchaser cannot be where the business is not taken over but only land and buildings were purchased to start a new business (Karn. Para: 3/4) 3.777 A purchaser can be called as successor in interest only if the prior business is taken over as a going concern with all its assets and liabilities.cannot be sustained. to whom the ownership of the undertaking has been transferred. (sic) 1962. by the Government.to be set aside. This provision has been made for the purpose of calculating the amount of compensation payable to such workmen..” (Page: 490. 25FF applies the only claim workmen can make is for compensation against their employer (transferor) and not against transferee and the words “as if” u/s. 25-FF provides that on such termination compensation would be paid to them as if the said termination was retrenchment.. No claim can be made against the transferee of the said concern. 25-FF makes a reference to S.CB) “………. 1983 II LLN 487 : 1983 LIC 1224 (Pat. Union of India & Ors. Their Workmen & Ors.Therefore.780 Employees cannot claim re-employment or compensation from transferee undertaking.The Legislature.” (Page: 64. v. 2(oo) workmen are entitled to compensation as if termination was retrenchment.undertaking. the workmen concerned are entitled to compensation as if the said termination was retrenchment.779 As per the section employees are entitled to compensation in case of interruption in their services and the same can be sought only against the transferor and not the transferee therefore the former employees of the company who were not absorbed by the corporation were entitled to claim compensation from the transferor company. Choudhary Sao & Ors.DB) “If we go………. Para: 9) . The scheme further shows that the Company was to be put in possession of funds by the Government of India for satisfying liabilities to the workers.Sec. 25FF. Nor is there any term in the transfer agreement or the scheme which passed over to the Corporation any responsibility in respect of the workmen………. Anakapalle Co–operative Agricultural & Industrial Society Ltd. the only claim which the employees of the transferred concern can legitimately make is a claim for compensation against their employers. The Corporation. not against the Corporation. it appears. in all cases to which S. prima facie. Obligations of Transferor a) Transferor is liable to pay compensation u/s. 1974 (29) FLR 56 : 1974 (46) FJR 1 : 1974 II LLN 78 : 1974 LIC 1018 : 1974 SCC (L&S) 421 : 1974 AIR (SC) 1604 : 1974 (4) SCC 696 (S. They were in all 512. 25FF provide that though termination of services on transfer may not be retrenchment u/s. the Corporation did not employ these workmen after the Company’s undertaking was transferred to it. Para: 1) ¥ 5A. Out of these.778 In all cases to which Sec. As a matter of fact the scheme itself shows that the employees of the Company who were not taken over by the Corporation were to be paid by the Company all money due to them under the law. rather than provide for the measure of compensation over again. The rest of them virtually claimed reemployment or at least some benefits on the basis of their alleged right to be re-employed. 1967. in due course. In other words. v.. 2(oo) as it was interpreted by this Court and termination of services consequent upon transfer with which it deals. S. 24 were re-employed by the Corporation later on. Para: 16) F 5A.The old Company closed its business on May 3. directed.CB) F 5A. Compensation can be claimed from the transferor undertaking u/s.” (Page: 1495. 25FF Obligations of Transferor 2565 VIII. The words “as if” bring out the legal distinction between retrenchment defined by S. 1963 AIR (SC) 1489 : 1962 II LLJ 621 : 1963-64 (24) FJR 101 : 1963 (6) FLR 1 (S. appointed a large number of the Company’s employees by fresh letters of appointments. 25FF. but against the Company of which they were formerly the employees. Central Inland Water Transport Corporation Ltd. as decided by this Court.C. The scheme of transfer did not compel the Corporation to employ the workmen. 25FF (S. nevertheless the employees in question whose services are terminated by the transfer of the undertaking should be entitled to compensation. however. however.2J) “………. v. In actual fact. 25-FF applies. and therefore. The reference was made on behalf of the employees mentioned in Lists I and II.C. wanted to provide that though such termination may not be retrenchment technically so-called. S.C. the claim of the workman would be for compensation u/s. The Workmen & Anr. and so. 25-F for that limited purpose. the section provides that though termination of services on transfer may not be retrenchment. but it could not absorb all of them. Since Sections 25FF and 25FFF do not contain any conditions precedent. Employee for claiming the said benefit can make a application u/s. The compensation payable u/s. 2(vi)(d) of the Payment of Wages Act. therefore. & Anr. whether there was any interruption in the employment of the workmen. It may be that there may conceiveably be cases of claims of compensation which are either admitted or which cannot be disputed which by reason of its falling under the definition of wages the Authority may have jurisdiction to try and determine. nor can it fall under the class of delayed wages as envisaged by Sections 4 and 5 of the Act. and transfer and closure can validly take place without notice or payment of a month’s wages in lieu thereof or payment of compensation.782 Since Sec. 25F and therefore transfer and closure can validly be effected without notice or payment of a month’s wages in lieu thereof or payment of compensation. viz. of fact and of law. State of Rajasthan. 25FF and 25FFF do not contain any condition precedent unlike Sec. the Authority would inevitably have to enter into questions arising under the proviso to Section 25FF.2J) “………. Director. 25FF does not stipulate notice or payment of compensation as condition precedent to transfer nor any time limit for their payment (S.C.C. Court held that as there was no agreement between the previous and present employer regarding liability of retrenchment benefits. Payment of Wages Inspector. 25FF can be said not to have provided any time within which such compensation is to be paid. it is the former employer who is liable to pay retrenchment compensation.2566 Chapter VA – Lay-Off and Retrenchment Sec. in view of the defence taken by Respondent 1. But we do not think that a claim for compensation u/s. therefore Sec. 1980 (40) FLR 149 (Raj. the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act.781 Municipal Board running and managing a powerhouse was transferred to the Rajasthan State Electricity Board. When the definition of wages was expanded to include cases of sums . of which all the conditions were fulfilled. The Court held that it is well established that the words “in accordance with the provision 25F in Sec. 33C(2) after the lapse of 1 year. 15(1) of Payment of Wages Act on the authority.. whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board. had become liable to pay compensation to the workmen if there was retrenchment in the future.. is one such claim which can fall within the ambit of Section 15(2). Ujjain v. as the new employer. Para: 2) “………the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage-periods and the time of payment fixed under Sections 4 and 5 of the Act. and employer contends that the compensation is defeated by virtue of proviso of that section. Surajmal Mehta. 1969 I LLJ 762 : 1969 (35) FJR 232 : 1969 (18) FLR 284 : 1969 LIC 867 : 1969 AIR (SC) 590 (S. 25FF and 25FFF are used only as a measure of compensation and are not used for laying down any time limit within which the employer must pay the compensation. In the second place. 25FF b) Transferor liable to pay retrenchment compensation in the absence of any agreement between him and the transferee on the liability to pay the same (Raj. However. 25FF which is denied by the employer on the ground that it was defeated by the proviso to that section. 33C(2) can exercise jurisdiction instead of the very limited jurisdiction cast u/s. 25FF and 25FFF read with 25F would be “wages” within the meaning of Sec.HC) c) Sec. It is well established that the words “in accordance with the provisions of Section 25F” in Sections 25FF and 25FFF are used only as a measure of compensation and are not used for laying down any time within which the employer must pay the compensation. It would.” (Page: 766. Section 25FF can be said not to have provided any time within which such compensation is to be paid. Besides. where the employer disputes the claim of the workman by invoking the proviso to 25FF and where complicated question of fact and law arises. Ltd. appear that compensation payable under Sections 25FF and 25FFF read with Section 25F would be ‘wages’ within the meaning of Section 2(vi)(d) of the Act. On the said transfer the question arose as to who would be liable to pay retrenchment compensation to the employee. it is held that the Labour Court u/s. Municipal Board v.2J) F 5A. as in the case of retrenchment under Section 25F.HC) ¥ 5A. Barnagar Electric Supply & Industrial Co. Such an inquiry would necessarily be a prolonged inquiry involving questions. the matter………” (Page: 826. 2002 (100) FJR 222 (AP. the appellant herein is aggrieved by the jurisdictional error committed by the first respondent herein in so far as it directed the appellant to reinstate the workmen with full back–wages. Dahingeapar Tea Estate. nor any action of transferee being challenged before authority under Shops Act.783 Refusal by transferee company to absorb retrenched employees is legal. Ltd. But. Bhavnagar Municipal Corpn.DB) ¥ 5A.” (Page: 769. No doubt under sub–section (3) of section 48 of the Act. in view of the decisions of the Apex Court. Such a finding of fact has been arrived at. direction of the authority to the transferee to reinstate employees terminated by transferor was illegal and without jurisdiction and a writ petition is maintainable against the order. in our opinion. Para: 3) . Nor could the Authority have been intended to try as matters incidental to such a claim questions arising under the proviso to Section 25FF. The first respondent..decisive. 2001 I LLJ 823 : 2001 (88) FLR 830 : 2000 LIC 3017 : 2001 I CLR 49 (Guj.” (Page: 827.DB) ¥ 5A.allowed………. Para: 6) “………. Para: 11) “In view of………. Rights of Transferee a) Transferee not liable to absorb retrenched workmen (Guj. Kumar G. availability of alternative remedy not being absolute bar.. Having regard to the fact that an appeal in terms of sub–section (2) section 48 of the Act lies against the employer.since the order of the authority was clearly without jurisdiction. It is not a case where the relief could be directed to be moulded as no action of the appellant herein was under challenge before the first respondent. a second appeal lies against any decision of the authority under sub–section (2). 1958 II LLJ 498 : 1958-59 (15) FJR 77 : 1958 AIR (SC) 1026 (S. therefore. it would not be proper not to entertain the writ petitions in exercise of the discretionary jurisdiction of this Court………. must be held to have acted wholly illegally and without jurisdiction and in such a case.” (Page: 242.In the instant………. Hindustan Coca-coal Beverages Pvt. it would not be proper to direct the parties to avail of the alternative remedy. v. 25FF Rights of Transferee 2567 payable under a contract. as noticed hereinbefore. Para: 1) IX.CB) b) Transferee not liable to reinstate employees of transferor when no such relief is prayed (AP. instrument or a law it could not have been intended that such a claim for compensation which is denied on grounds which inevitably would have to be inquired into and which might entail prolonged inquiry into questions of fact as well as law was one which should be summarily determined by the Authority under Section 15.784 In the absence of any pleading or prayer for relief against transferee.DB) “……….” (Page: 827.In the instant………. In our view it would be the Labour Court in such cases which would be the proper forum which can determine such questions under Section 330(2) of the Industrial Disputes Act which also possesses power to appoint a commissioner to take evidence where question of facts require detailed evidence………. Assistant Commissioner of Labour & Ors.DB) “The question which survives for consideration is as to whether alternative remedy is available to the appellant? The answer to the said question must be rendered in the negative. Mehta & Anr. v. the employer itself is an aggrieved person. Para: 10) “……….Sec.” (Page: 238/239.C. Para: 12) Note: The following cases may be referred in the above context Workmen of Dahingeapar Tea Estate v. without any pleading or even no relief has been prayed for against the appellant and despite the same such a relief has been granted. On dispute being referred regarding termination of service and application was moved u/s.HC) . the writ is allowed and the issue be decided afresh after giving opportunity to the new employer. M. It is true that the company practically took over the business of Messrs.” (Page: 8. when Messrs. Rajendra Rahi v. as pointed out by the Appellate Tribunal. after withdrawal of their provident fund.. C. it was rejected and order was passed in favour of the workman for reinstatement with full back-wages.HC) ¥ 5A.G. and the appeal of the workmen must also fail. M. 18(3) before the Tribunal with prayer to implead the new employer as a party in the proceedings. Ispahani Ltd. Eastern Coalfields Ltd. when it came into existence in September 1947. M. transferred their head-office from Calcutta to Chittagong.O. 2003 (98) FLR 861 : 2003 LLR (Sum) 1023 (Jhar.C. Ispahani employees’ Union. Thus.. 1987 (55) FLR 31 (Del. AND Workmen Represented by their Secretary. 1.HC) d) Transferee entitled to cross-examine witnesses when impleaded as a party to the proceedings before the Tribunal (Del. Ispahani. M. whose services were likely to be terminated. There was no express or implied undertaking given by the company regarding continuity of service and the employees joined the provident fund of the company afresh. v. On a writ being filed.I. Central Government Industrial Tribunal-cum-Labour Court & Ors. Ispahani Ltd. by the company. the company.T. agreed to employ those employees of Messrs. and also received all arrears of salary from them. 1959 II LLJ 4 : 1959-60 (16) FJR 366 : 1959 AIR (SC) 1147 (S. Employers in relation to the Management of Nirsa Area. 25FF c) In the absence of any express or implied undertaking.2568 Chapter VA – Lay-Off and Retrenchment Sec. transferee entitled to treat the discharged employees on their absorption as fresh hands (S. Ispahani Ltd.785 When the business of a company for all practical purposes were taken over by a new company and the services of employees were terminated but the new company agreed to employ the workmen with no express or implied undertaking regarding their continuity of service and after so joining the company they have become fresh members of Provident Fund and in this background the decision of Appellate Tribunal to hold the employees as fresh hands without continuity of service is held valid.3J) “Turning now to the appeal of the workmen on the question of benefits. Calcutta v. P. M. we are of opinion that the decision of the Appellate Tribunal on this question also is correct. and therefore obtained settlement of their claims for provident fund. Dhanbad & Anr. Para: 4) Note: the following case may also be referred in the above context Employers in relation to the Management of Nirsa Area of M/s. P.C. The earlier order rejecting application for cross-examination is erroneous and is vitiated. No. which was done. Also the order of reinstatement of workman with full back-wages is quashed. M. When the new employer made an application for cross examination of workman and his witnesses. M.786 A bank was taken over under an agreement by the new employer without any liability in respect of employees whose services had been terminated by the bank. it was held that principles of natural justice require that any person who is impleaded as a party in the proceeding should be given an opportunity to cross-examine witnesses. But. the question arose of retrenching those employees who were not willing to go to Chittagong in view of the expected partition of India. M. United Bank of India v. Ispahani Ltd. In these circumstances. In the circumstances the decision of the Appellate Tribunal on this question is correct.O.3J) F 5A. Ltd. These employees apparently agreed to the termination of their services with Messrs. They were thereafter appointed. .” (Page: 144.790 Road Transport authority set up in the place of Rajya transport authority was empowered to exercise all powers and functions performed by the earlier transport including the administrative management of undertaking.. & Ors. Para: 25) “……….788 Undertaking given by the transferor company to employees of its subsidiaries will be binding on transferee company. 1970 II LLJ 138 : 1971 (40) FJR 571 : 1970 (21) FLR 11 : 1970 LIC 1040 : 1970 AIR (SC) 1217 : 1970 (1) SCC 490 (S.C.DB) ¥ 5A. Spencer Group Aerated Water Factory Employees’ Union & Anr. 1996 (88) FJR 129 : 1996 I LLN 529 (Bom.789 In instant case of legal transfer as transferor and transferee both had established that conditions mentioned in proviso to Sec. transferor was absolved of any obligation towards workmen and hence workmen now being transferee’s employees can claim regarding conditions of service only from transferee. Para: 31) c) Employee illegally terminated liable to be reinstated by the transferee since he was deemed to continue in service on the date transferee corporation came into existence (S. Transferee despite being successor-in-interest was not liable to pay same wages to workman in case of re-employment.HC) X. Workmen of the Punjab State Electricity Board v. Hindustan Lever Ltd. regulating their service conditions disciplinary action etc.Sec. Haryana State Electricity Board. hence being a successor in interest is liable to reinstate the workmen of Rajya transport authority who was deemed to be on the rolls due to their illegal termination on the day when corporation took over the employees.We have noticed………. transferor stands absolved of obligations. Para: 2) b) If all the conditions in the proviso to Sec.would be adhered to………. v.we hold that………third respondent-Purchaser. the employment of staff. 25FF were complied.DB) “It is pertinent………on HLL.C.” (Page: 373/374. 25FF Obligations of transferee 2569 e) Transferee when not undertaken to retain workmen of the transferor is not liable to pay the same wages drawn prior to transfer to workmen in case of re-employment (P&H. The P.O. 1981 LIC 1586 (P&H.. Obligations of transferee a) Undertaking given by transferor company to employees of it’s subsidiaries are binding on transferee (Bom. all the functions which were till then exercised and performed by the Rajya Transport Authority.DB) ¥ 5A. Chandigarh & Ors. It is manifest that the powers and functions of the Rajya Transport Authority were to . 1997 I LLJ 362 : 1996 (89) FJR 728 : 1997 LLR 189 (Mad.2J) F 5A. Bihar State Road Transport Corpn. Hindustan Lever Employees’ Union v. v.Under clause 2 of that notification the appellant corporation was empowered to exercise all the powers and perform. State of Bihar & Ors.2J) “………. transferee liable to employees about their conditions of service (Mad.HC) ¥ 5A.787 Undertaking was transferred and the transferee did not undertake the obligation to retain workmen thus employment of workmen with the transferor came to an end.” (Page: 377.DB) “……….. Industrial Tribunal & Ors.. 25FF complied. Madras & Ors. By reason of the order discharging him from service being illegal. Labour Court.HC) ¥ 5A. on a proper construction of the said averment. Employment of such a staff and regulating their conditions of service. 1959 in the service of the Rajya Transport Authority. were deemed in law to be on the rolls. if the termination of the services of respondent 3 was invalid. If respondent 3 continued in law to be in the service. and therefore. 1959. continued and still continues to be in the service of the appellant corporation since May 1. It is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names.HC) ¥ 5A.792 Claims to certain benefits like wages dearness allowance. Ltd. Para: 10) d) If made a party to the dispute. would be deemed to be continuing in the service of the Rajya Transport Authority on May 1. therefore.2570 Chapter VA – Lay-Off and Retrenchment Sec.HC) . the corporation in clear terms averred that it had taken over as from May 1. including disciplinary action. on its rolls. 25FF carry on and conduct the transport undertaking. the appellant corporation must be deemed to have taken over the services of respondent 3. and therefore. For the period from February to April the Rajya Transport Authority was liable to pay his wages and other emoluments. the erstwhile employees of the Corporation had become employees of the Board and the Board can have only one category of employees and since on the date of vesting the control in the Board. it makes little difference whether his name actually figured in the rolls or not. The argument. The corporation. For that purpose its principal function would be the administration and management of that undertaking which would necessitate the employment of an adequate staff of employees. the employee-employer relationship had snapped so far as the Corporation is concerned and hence it is only the Board that is liable. which power or function was also to be exercised and performed by the appellant corporation under the said notification.791 Where the transferee of an undertaking has joined as a party in a dispute between transferor. respondent 3 was and must be regarded to be in the service of the said Authority. Para: 9) “Apart. though not physically on the rolls. As rightly observed by the High Court.” (Page: 142. it never became operative and respondent 3. the corporation was bound to pay his wages including all the emoluments to which he was entitled as from May 1. 1978 I LLJ 229 : 1978 I LLN 153 (Mad. in para 5 of the writ petition filed by the appellant corporation in the High Court. 1998 I LLN 277 : 1998 LIC 448 (Guj. It was held that only Board was liable as on the date of transfer. Gujarat Mazdoor Kranti Union & Anr. if any. therefore.HC) e) Transferee taking over transferor corporation liable to pay the benefits to which employees were entitled (Mad. 1959 such of the employees of the Rajya Transport Authority into its service who were on the rolls of the said Authority on the date it came into existence. as successor-in-title of the said Authority. from the question of the appellant corporation being the successor-in-title of the said Authority. was that the true meaning of the said averment was that only those of the employees of the Rajya Transport Authority who were actually on its rolls were taken over and not those who were deemed to be on its rolls. Furthermore..employer and his employees about termination it was held that the transferee would be liable to reinstate the workman if the retrenchment was illegal Udaipur Phosphates & Fertilizers. however. in the absence of any valid termination of his services. The expression “on the rolls” must mean those who were on May 1. would clearly be one of the powers or functions of the Rajya Transport Authority. house rent allowance and other benefits made by employees of Electricity Corporation which was taken over by the State Electricity Board was referred to the Labour Court u/s. and therefore. he would be one of those whose services were taken over by the appellant corporation. In that view. transferee liable to reinstate the workmen if retrenchment is illegal (Guj. to which he was entitled. v. v. respondent 3. Benefits were available from a date anterior to the transfer. 1959.” (Page: 142. became liable to pay the said wages for the said period and not from February to September 1959 as directed by the Labour Court. Vellore Electricity Corporation Ltd. 33(C).. 1959. Industrial Tribunal. High Court upheld the Industrial Court’s order that the transferee company would have been liable to reinstate the employee until the date of surrender of the lease deed.” (Page: 505. The dismissal order was set aside by the Labour Court as it was illegal and reinstatement was granted without back-wages.CB) F 5A.. Administrator. however. 1949 FCR 321: (AIR 1949 FC 111) (B). 1958 II LLJ 498 : 1958-59 (15) FJR 77 : 1958 AIR (SC) 1026 (S. The third circumstances was that the Industrial Tribunal found that the conditions which the incoming management sought to impose were intended to discriminate between ‘workmen’ and most likely to create industrial unrest. the person or persons regarding whose employment or non-employment the dispute is raised need not be. but the question before the Industrial tribunal was as to how it would operate against the workmen in the context of the industrial dispute referred to it for adjudication. The lease was surrendered and the transferee company was reverted to the transferor company. Even then they were persons in whose employment or non-employment the actual workmen of the Dahingeapar Tea Estate were directly interested. The clause in the memorandum of agreement or the sale deed which gave the respondent a discretion to employ or not employ members of the staff or to give them fresh employment was indeed found by the Appellate Tribunal to be a bona fide clause as between the vendor and purchaser. and the other was that in spite of the notice all the members of the staff were allowed to continue in service till 4-1-1954. This fact did not.HC) ¥ 5A. the lease agreement was revoked. Saswad Mali Sahakari Karkhana Ltd. In the case before us as between the vendor and the discharged workmen. By a subsequent agreement lease was extended by 30 years. Workmen of Dahingeapar Tea Estate v. Automobile Association v. Hence u/s.C.” (Page: 503. Suresh Baburao Bhandare v.794 During the pendency of a dispute under conciliation. Malinagar & Anr.CB) “………. In the circumstances of the present case the Industrial Tribunal found that it operated to their prejudice. 1958-1 Lab LJ 500: (AIR 1958 SC 353) (A) the present dispute is undoubtedly an industrial dispute within the meaning of the Act. 33 of the Act. 25FF Obligations of transferee 2571 f) Transferee company liable to give notice pay and compensation to workman whose dismissal it effected was set aside even after retransfer to original owner if bound by an agreement (Bom. the ratio of the Western India. That decision lays down that where the workmen raise a dispute as against their employer. Therefore. one was that the notice of discharge was given by the outgoing management during the dispute and pendency of conciliation proceedings and was hit by S. Dahingeapar Tea Estate. Management of Dimakuchi Tea Estate.This line of reasoning overlooked two essential circumstances. Col: II) . and we are not satisfied that the Appellate Tribunal has given cogent reasons for going behind that finding. a transfer of undertaking inserting a clause in memorandum of agreement or the sale deed giving discretion to the purchaser to employ or not to employ members of the staff or give them fresh employment was held to be a clause which operated to the prejudice of the workmen and cannot be considered as bonafide.HC) g) Clause in memorandum of agreement or the sale deed giving discretion to the purchaser to employ or not to employ or give fresh employment to workmen is prejudicial to the workmen and cannot be considered as bonafide (S.793 A company entered into a lease agreement with the transferee company and the management along with the employees were transferred to it for 2 years.. strictly speaking ‘workmen’ within the meaning of the Act but must be persons in whose employment or non-employment the ‘workmen’ as a class have a direct or substantial interest.C. Col: II) “On the majority decision of this Court in the Workmen of Dimakuchi Tea Estate v. 25FF of the Act it was the transferee company who had to give notice pay and compensation and also back-wages from the date of termination till the date of surrender of the deed. 1995 III LLJ (Sum) 270 : 1992 (65) FLR 702 : 1992 I CLR 309 : 1993 I LLN 562 (Bom. An employee was dismissed by the transferee company and during the pendency of reference before the Labour Court. make them workmen of the purchaser. and the dispute was clearly an industrial dispute within the meaning of the Act. Bombay. It was agreed that the transferee company would bear the liabilities in respect of the employees. the latter came within the definition of ‘workmen’ as they were discharged during the pendency of conciliation proceedings.Sec. as also of the later decision in workmen of the Dimakuchi Tea Estate (supra) applied. succession in business……….C. The only question that falls for determination in respect of the first point raised by Mr..2J) F 5A. Effect of transfer of undertaking a) Workman entitled to receive retrenchment compensation as per legal fiction envisaged under the section (S.C. whether by agreement or by operation of law. Para: 3) “If the new………. who presented the applications under Section 33-C(2) of the Act. P.” (Page: 506.” (Page: 344. 25FF cannot be claimed if transfer of undertaking is not proved (Mad. Tribunal would be within its jurisdiction to give effect to such an obligation by directing new employer to do something. 25FF cannot be claimed. Madras & Ors.DB) ¥ 5A.2J) “The principal clause of this section clearly confers a right on every workman. 25FF XI. under the Madras Act. 1960 II LLJ 341 (Ker. Para: 14) “As the necessary………. Consequently.797 If new employer is burdened with obligations of old employer.796 Where a section of establishment is transferred but there is no transfer of ownership then in absence of any proof of transfer of undertaking.DB) ¥ 5A.” (Page: 507.O. Ambattur.we do not………. Para: 15) “………. Ltd. to receive retrenchment compensation in accordance with the provisions of Section 25-F of the Act as if the workman had been retrenched whenever the ownership or management of the undertaking is transferred. The right under this principal clause is conferred on the basis of the legal fiction that the workmen are to be deemed to have been retrenched unless their services are continued in accordance with the conditions laid down in the proviso. in the present case. the employees. clearly became entitled to receive retrenchment compensation in accordance with Section 25-F of the Act when.2572 Chapter VA – Lay-Off and Retrenchment Sec. v. who has been employed continuously for not less than one year in any undertaking. Musaliar Industries Pvt. South Arcot Electricity Distributing Co. State of Kerala & Ors.K. Mohammed Khan & Ors. Gupte thus is whether the right which accused to the workmen under the principal clause was defeated because of the compliance of the conditions laid down in the proviso……….DB) “In this case……….” (Page: 47/48. Para: 12) .795 Workman entitled to receive retrenchment compensation in view of the legal fiction envisaged that those rights would accrue to thimas if he had been retrenched... N. v. this undertaking stood transferred to the State Government from the company. Madras v. Para: 17) c) Tribunal has jurisdiction to give effect to obligations arising out of transfer (Ker. 1970 II LLJ 44 : 1971 (40) FJR 1 : 1970 (21) FLR 174 (S.reinstatement is wrong.Section 25FF. Para: 3) b) Benefits of Sec.Industrial Disputes Act……….be employed therein………. benefit of Sec..” (Page: 348.DB) “………. 2003 II LLJ 502 : 2003 (97) FLR 927 : 2003 II LLN 887 : 2003 LLR 727 (Mad. Management of Best & Crompton Engineering Ltd. It could direct the old employer to do because such an order of Tribunal would be bound not on contractual relation between new employer and employees but on obligations of new employer due to succession in business.” (Page: 506.grounds taken for………are that………as there was………. Ltd. I Additional Labour Court. and it accrues irrespective of the fact that the workmen had not actually been retrenched. This would be the legal right vesting in the workman if the proviso does not apply to their cases. 1995 III LLJ 397 : 1989 II LLN 843 (Bom.directed.thus.” “Whereas the………. 25FF Effect of transfer of undertaking 2573 d) Relationship between transferor and workmen gets terminated by reason of deemed retrenchment and discretion to continue employees lies with transferee as per agreement (Bom.” (Page: 755.” (Page: 754.798 There was transfer of business via surrender of lease from co-operative factory (lessee) to a company (original lessor) and there was clear mention in deed of surrender and also in a subsequent agreement under Bombay Industrial Relation Act between company and union providing for absorption of erstwhile employees of co-operative factory. Para: 7) “……….The petitioner……….arise………. 25FF employees were held not entitled to continuity of service in fact or in law.. Para: 13) “Having………such transfer. Para: 17) “It is therefore………. Para: 15) “If under No……….On the same day……….workers. The Saswad Mali Sugar Factory Ltd. Para: 25) .” (Page: 404.reached……….DB) “………. Para: 3) “In the light……….. Para: 5) “……….in continuous service. Para: 4) “Despite the facts that the said judgement………. the relationship between the transferor and the workmen gets terminated by reason of the deemed retrenchment and compensation provided by the section.Court. Para: 7) “As indicated………. & Ors.” (Page: 756.. they would be taken only as fresh appointees and all liabilities of prior employment would be borne by co-operative factory itself and hence considering Sec. Ltd. Para: 6) “The petitioner……….an agreement was………. Para: 2) “The learned Single Judge………. Government of A.” (Page: 754.The transferor……….” (Page: 759. Para: 18) ¥ 5A.thereof.” (Page: 757.DB) “……….” (Page: 400.factory itself. & Ors. Bharat Coca-Cola Bottling South East Pvt.extent………. 10B should have been the transferor Company namely the Vijayawada Bottling Company Ltd.” (Page: 754. was held not competent.maintainable.being………. and the liability to continue their employment will be at the discretion of the Transferee Company and governed by the terms of transfer and since the transferee Bharat Coca-Cola bottling Company agreed to re-employ only 73 permanent workmen but not casual workers thereby indicating non.” (Page: 756. and not the transferee Company and the reference having not impleaded the necessary party.” (Page: 755.transferor. The Malshiras Taluka Rashtriya Sakhar Kamgar Sangh v. Vijayawada v.P.799 Once there is a transfer of undertaking resulting in the change of employer.In the deed……….DB) ¥ 5A.existence of any relationship between the transferee Company and the casual workmen and hence the necessary party to be impleaded in the reference made u/s. 2002 I LLJ 753 (AP.their Management.” (Page: 755.Sec. Para: 14) “The change……….” (Page: 756. ” (Page: 504. the Industrial Tribunal could not deal with those questions as mere abstract questions of law.C. 1948. It was not disputed that by the Regulations framed under S. Kanpur & Anr.C. 13B of the Industrial employment (Standing Order) Act 1946 as per regulations framed u/s. age of retirement was fixed at 58 or 60 years and that those Regulations were notified on 28-5-1972 under S. Much of the controversy in this case. according to Supreme Court.” (Page: 1451. retirement age and the same was notified u/s. Workers in Puspa Talkies & Anr. 1984 AIR (SC) 1450 : 1984 I LLJ 28 : 1983 (63) FJR 253 : 1983 (47) FLR 435 : 1983 II LLN 723 : 1983 LIC 1520 : 1984 (1) SCC 147 (S. 25FF Note: The following case may also be referred in the above context Workmen of Dahingeapar Tea Estate v. to decide the abstract question of law whether on a transfer of management consequent on a sale. Col: II) e) Employee opting to serve transferee is bound by transferee’s service conditions (S. 79 (c) of the Electricity (Supply) Act. the services of workmen . The Tribunal should instead of dealing with abstract question of law should go to the root of the matter concerning diverse circumstances relating to and arising out of contractual relations between the parties since it answers the said question. The Labour Court (I) U. conditions of service. it is held to be binding on them and therefore the retirement on attaining the age of 58 years is legal even though as per the Government assurance the employees were assured of service till they were physically fit.are automatically put an end to. Dahingeapar Tea Estate. v.CB) The Management of Puspa Talkies. 13B of the Industrial Employment (Standing orders) Act. Workmen of Dahingeapar Tea Estate v. 1948 and that once the employees being informed that their service conditions will be governed by the regulation so opted to serve the board. 1948 fixing age of retirement as 58 years in regard to workmen like the second respondent who were originally employees of . Tribunal not to focus on automatic end of service since it is an abstract question of law but on diverse issues arising out of contractual relations between parties since it answers the said question (S.801 Subsequent to the take over of the Kanpur Electric Supply Corporation by the Government the electricity board was formed and the employees were taken in by the board which framed regulation regarding their allowance.3J) F 5A.800 The mere abstract question of law u/s.The only point argued before this Court………. Para: 4) “………..CB) “………. and we doubt if they could answer them as such. 25FF as to the automatic end of service of workmen upon transfer of management on a sale.be they members of the staff or labourers .P. 79(c) of Electricity (Supply) Act.In our opinion. 1958 II LLJ 498 : 1958-59 (15) FJR 77 : 1958 AIR (SC) 1026 (S.was as to the binding nature of the Regulations framed by the Electricity Board under S.3J) “The Labour Court found that the second respondent joined service as a cooly under the Kanpur Electricity Supply Corporation Limited on 11-5-1945 and he became the State Government’s employee on 16-9-1947 when that establishment was taken over by Kanpur Electricity Supply Administration and the employees of that Administration became the employees of the State Electricity Board when it took over that Undertaking after that Board was constituted on 1-4-1959. State Electricity Board & Anr. Dahingeapar Tea Estate. 1961 (3) FLR 485 (Mad. 1 has been approached.P. and we go further and say that we doubt if it was the function of the Industrial Tribunal. 1946………. and perhaps a good part of the difference of opinion between the Industrial Tribunal and the Labour Appellate Tribunal and also between the two members of the latter body inter se have arisen by reason of the different standpoints from which question No. Tiruppur v. 1958 II LLJ 498 : 1958-59 (15) FJR 77 : 1958 AIR (SC) 1026 (S.2574 Chapter VA – Lay-Off and Retrenchment Sec.C. The answer to such an abstract question must depend on diverse circumstances relating to and arising out of the contractual relation between the parties……….C. U.CB) F 5A.. 79 (c) of the Electricity (Supply) Act. We do not think that it was necessary.C. need not be a function for adjudication by the Tribunal.HC) 1. P. 25FF Effect of transfer of undertaking 2575 the Kanpur Electricity Supply Corporation Limited………. 1948 from time to time.” (Page: 225. 79 (c) of the Electricity (Supply) Act.Although the appellant herein had no liability to takeover the services of the employees of respondents Nos.” (Page: 1452. In the enquiry.DB) “………. bound by the Regulation by which the age of retirement has been fixed in regard to employees like him at 58 years………. 13B of the Industrial Employment (Standing Orders) Act. The appeal is accordingly allowed and the order of the appellant retiring the second respondent with effect from 31-3-1979 is upheld………. could not have and in fact did not terminate the services of the employees. Para: 6) “………. 1948 have been notified by the Government under S. was not maintainable………. Para: 4) “………. 1999……….. State Electricity Board had informed the Government employee.The appeal provided for under section 48 must be in relation to termination of service of an employee.” (Page: 231. employees terminated by transferor cannot claim reinstatement or compensation from transferee (AP. Ltd.The Member Secretary of the U. But.Sec.” (Page: 230/231. would not have any jurisdiction whatsoever in the matter………. appended to the proviso to section 49 of the Act………. Consequently. allowances and other conditions of service shall be governed by Regulations made by the Board under S. 3 and 4. was one of such employees against whom disciplinary proceedings had been initiated or pending at the relevant time. whose services had been lent to the Board on deputation that their salary. The appeal against it ex facie. postulates a liability on the part of a new employer to make himself legally liable to pay the employees service compensation on the basis that his employment has been continued and has not been interrupted by reason of transfer. Hindustan Coca-coal Beverages Pvt. 2 in each of the respective writ petitions herein. all the employees were found guilty of the charges or misappropriation. The second respondent is.(c). therefore.” (Page: 231. therefore. An exception to the same can be brought about only either by reason of operation of a statute or agreement. It is not and could not be the case of the employees that the transfer had been taken place by reason of any statute………. State Electricity Board. v. 79 (c) of the Electricity (Supply) Act. Termination of service of an employee can be effected by an employer which clearly implies that there must exist relationship of employer and employee.Condition No. Para: 5) “………. Para: 6) f) In the absence of uninterrupted service. Para: 5) . P. where such relationship does not exist.The appellant before us being not the employer of the concerned employees. the parties to the lis. 2002 (100) FJR 222 (AP. they were dismissed from service by orders dated August 25. it was held that in absence of uninterrupted service or any employer-employee relation with transferee. 1946 we hold that the second respondent is bound by those regulations in which the age of retirement has been admittedly fixed at 58 years and that the has no reason to complain against his retirement on that basis with effect from 31-3-1979.” (Page: 1452. they agreed to takeover on its rolls only such of those employees who had no adverse remarks against them or employees against whom no disciplinary proceedings had been initiated or pending as on the date of takeover of the firms. employees terminated by transferor cannot claim reinstatement or compensation from transferee and their appeal u/s.802 Considering the agreement of transfer of undertaking wherein the transferee accepted employees of transferor except those facing disciplinary action and suspension. the authority in terms of the provisions of the said Act. Assistant Commissioner of Labour & Ors. who has been arrayed as respondent No.DB) ¥ 5A. therefore. Para: 2) “Clause (c) aforementioned. The concerned employee. 48(1) of Shops Act is not maintainable.In view of the admitted fact that the regulations framed by the Board under S. It is not disputed that the second respondent had thereafter exercised his option to serve in the U. nor where a relief has been sought for against a third party. service of workman were terminated in compliance of Sec.” (Page: 47/48. Under clause (b) the requirement is that the terms and condition of service applicable to the Workmen after the transfer must not in any way be less favourable than those applicable to him immediately before the transfer.C. 25FF of the Act. so that condition (a) was clearly satisfied. Bowen & Anr.V. Management of William Goodacre & Sons Ltd. K.HC) ¥ 5A. H. Neelakandan & Ors..K. Mohammed Khan & Ors. Para: 17) “The Labour………. 25FF. South Arcot Electricity Distributing Co.Disputes Act. itself introduce a condition of service which was less favorable to the Workmen than the condition applicable when they were .805 Subsequent to transfer of undertaking of company to the State Government the condition of employment being less favourable to the workmen. Electric Supply Co. Ltd.The only question that falls for determination in respect of the first point raised by Mr. Ltd.” (Page: 1042.because it is very clear that condition (b) of the proviso is certainly not satisfied. 25F because of the right accruing to them u/s. It has however. Ammandivilal v. (2) Tac Floor Company.other relief.P. the Workmen would be entitled to the same compensation which he would have received from the Company if he had been retrenched in accordance with the provision of section 25-F of the Act.. (b) and (e) each of which has to be satisfied before it can be held that the right conferred by the principle clause does not accrue to the Workmen.DB) “In conclusion………. 25FF and 25F. 1970 II LLJ 44 : 1971 (40) FJR 1 : 1970 (21) FLR 174 (S.the award. Ltd.. who presented the applications under section 33-C(2) of the Act. Para: I) “………. Para: 12) h) The employee becomes entitled for retrenchment compensation and need wait for the formal orders of termination (All. Para: 5) “In our opinion………. 25FF when services terminated prior to transfer (Mad.DB) ¥ 5A. v. v.. the employees.C. been found by the High Court that condition (b) and (c) of the proviso had not been satisfied. the employee of transferor company becomes entitled for retrenchment compensation and it is not necessary that they need wait for the formal orders of termination. 25FF g) Workmen of transferor company have no claim barring right to compensation u/s. 25FF and it was held that 25FF workmen of transferor company have no claim barring right to compensation u/s. 25F is payable when conditions of Proviso not satisfied as service conditions of transferee are less favourable (S.803 Before the transfer of unit. it is manifest that the terms and condition of service of the Workmen have not remained as favourable under the State Government or the Electricity Board as they were the Workmen were employed by the company. 1968 LIC 326 (All.It does not appear that. they were held entitled by the Labour Court. 1998 I LLJ 1038 : 2000 (96) FJR 310 : 1997 III LLN 327 (Mad.” (Page: 1043. In our opinion……….2J) F 5A. On examination of the Madras Act and the rules. if the Government were to terminate the service of the same Workmen under section 15(1) of the Madras Act. U. In the present case. clause (1) of section 15 of the Madras Act.Consequently in the present case.804 As soon as an undertaking is transferred u/s. N. High Court and Apex Court to retrenchment compensation as per legal fiction envisaged u/s. Gupte thus is whether under the principle clause was defeated because if the compliance of the condition laid down in the proviso lay down three condition in clauses (a).2J) “……….” (Page: 1040.HC) i) Compensation at the rate provided in Sec.2576 Chapter VA – Lay-Off and Retrenchment Sec. Thus. there is no doubt that the services of the workmen had not been interrupted by the transfer. clearly became entitled to receive retrenchment compensation in accordance with section 25-F of the Act………. owned by Alleppey Co. Bhola Nath Mukherjee & Ors.1979. The workmen. 1997 II LLJ 59 : 1997 (75) FLR 95 : 1997 I LLN 523 : 1997 SCC (L&S) 734 : 1997 (1) SCC 562 (S.C.806 West Bengal Government by notification revoked the license of Asansol Electricity Supply Co. Nor do they have any right to claim to be in continuous employment on same terms and conditions. The employees of the company were allowed to continue in the service of the board.” (Page: 63.Rule 17 of the rule further shows that immediately on the vesting of the undertaking in the State Government. Bhola Nath Mukherjee & Ors. And West Bengal State Electricity Board & Ors. the requirements of the proviso to section 25-FF of the Act are obviously not satisfied and that proviso cannot be invoked by the Company for the purpose of defeating the claim made by the Workmen under the principle clause of that section. On April 5.” (Page: 48. The Labour Court and the High Court were. Para: 1) j) Compensation under the section is payable by the transferor only when employees are reemployed afresh by transferee (S. Therefore. 25FF Effect of transfer of undertaking 2577 employed by the Company. 25FF to claim any compensation from the Board. the services of the workmen were interrupted and board had given them employment as fresh employees and purchase money paid by the erstwhile employer was sufficient to pay the compensation u/s. was a licensee under the Indian Electricity Act. These are instances of a number of condition of service which become less favorable to the Workmen on their becoming employees of the State Government when the undertaking vested in the Government by transfer form the Company In these circumstances.2J) “Asansol Electricity Supply Co Ltd. 1979. The workmen accepted the offer. and directed to sell the company to the West Bengal State Electricity Board and in terms of transfer of the undertaking to the board. 25FF to the workmen and hence board was not liable to pay and the action of the board was justified. Para: 1) “………. The same rule also show that the employees would not be entitled to bonus or other concessions not allowed to be servants of the Governments.: II) “……….” (Page: 60. The assertion of the Board that the purchase money was more than adequate to pay retrenchment compensation to the employees has not been denied.2J) F 5A. But the High Court was in error in holding that the Board even after payment of the purchase price to the transferor-Company was liable to pay retrenchment compensation to the employees. Similarly.no such liability of changes conditions of service of the Workmen while they were employed under the company.Sec. 1979 west Bengal Government in exercise of its powers under Section 4(1) of the Indian Electricity Act. 1910 and was engaged in the business of generation and distribution of the electricity. v. The Workmen also became liable to transfer to any other place or post in the Government Electricity Department depending on exigencies of service..The service of the workmen has been interrupted. The High Court in appeal was right in holding that the employees were entitled to retrenchment compensation under the provisions of Section 25FF. therefore. the service of the Workmen retained by the Government become provisional and the subsequent permanent employment of those Workmen in the undertaking is dependent on the condition laid down in that rule. the employees have no right u/s. Government of West Bengal and Ors. Under that principle clause the Workmen become entitled to receive retrenchment compensation in accordance with the provisions of section 25-F of the Act on the basis of the legal fiction envisaged that those rights would accrue to them as if the Workmen had been retrenched. Pursuant to the order the deputy chief engineer took over the said undertaking on behalf of the board on April 16. Fresh employment has been offered by the transferee. even if the Workmen were entitled to the bonus and the concessions from the Company. right in holding that the Workmen were entitled to claim retrenchment compensation in accordance with the provisions of section 25-F of the Act because of the right accruing to them under section25-FF of the Act. This liability imposed on the Workmen is clearly disadvantageous to those Workmen who were in the permanent employ of the Company . who had previously been permanently employed were offered temporary employment by the Board. Col.C. v. clause (2) of section 15 of the Madras Act………. 1910 revoked the license of the company and directed the company to sell the undertaking to the West Bengal State Electricity Board on April 16. Para: 12) . There is no legal obligation cast upon the Board under the terms of the transfer or otherwise to pay any retrenchment compensation to the workmen.” (Page: 49. even after the purchase of the undertaking by the Board. Ltd.C. was neither listed as one of their employees among the employees of the company for purposes of transfer nor the transferee company has taken over the said dismissed employee. 1966 I LLJ 730 : 1966 (12) FLR 231 (S.Both the sub-section and the proviso apply to the undertakings which close down.under S.809 In absence of any provision in a statute governing the right to compensation for earned leave not availed of by workmen before closure or transfer of undertaking. He was so retrenched by the action of the company and his case. 25F. The result was that Sharma stood retrenched on 5 May 1959 when the undertaking changed hands.DB) ¥ 5A. 25F.. Ltd.Labour Court. Para: 1) m) No compensation is payable for benefit of earned leave not availed before the transfer (S. 25FFF (1). 25F. 25F and not u/s. 25FF is payable to workmen since it is not closure but transfer as the company is taken by MPEB (MP. the compensation payable to him invariably fall u/s. Bilaspur v.” (Page: 844.. 25FF and granted full compensation claimed which was upheld by the Court which opined that Labour Court could award retrenchment compensation u/s. it was obliged to give facility for enjoying .C. 25 F (1)………. Workmen of Uttar Pradesh State Electricity Board & Anr. 25FF or 25FFF when the illegally terminated employee was either transferred to the Electricity Board as employee of the transferor or the company never closed down but continued on transfer (S. P. Upper Ganges Valley Electricity Supply Co. Central India Electric Supply Co. District Labour Court. 33C(2) claiming compensation u/s. R. Jabalpur. Sharma. So long as the Company was carrying on its business. But the undertaking never closed down.. 25FFF. Para: 2) “Lastly it is………. Shukla & Anr. K. 33C(2) which was payable u/s..The tribunal treats the matter as falling within the proviso to S.807 When the illegally terminated employee.2J) F 5A. therefore. All that happened was that the company having unlawfully terminated the service of Sharma did not transfer him to the board as one of the employees in the undertaking and the board also did not accept him on its service rolls.We have………. Para: 2) l) Compensation u/s.CB) F 5A.2578 Chapter VA – Lay-Off and Retrenchment Sec. the proviso last quoted would undoubtedly have applied to his case. 25F only.CB) “………. 25F (b)………. v. Gorakhpur Ward. & Ors.under S. (In Voluntary liquidation) v. On application by workmen u/s. 25FF or 25FFF for that matter because the company never closed down but continued with transferee company and therefore it is held that the transferor company is liable to pay compensation that also u/s. But we do not think that any such compensation is statutorily payable.” (Page: 843. 1969 II LLJ 728 : 1969 (36) FJR : 1969 (19) FLR 268 :1970 LIC 276 : 1970 AIR (SC) 237 : 1996 (2) SCC 400 (S.DB) “The company was ………….2J) “Finally it was contended-and that contention relates only to the cases of 56 workmen in the Lucknow undertaking-that the workmen who had not availed themselves of earned leave were entitled to compensation equal to thirty days wages. 25F” (Page: 844. on the other hand. falls squarely within the rule indicated in S. Para: 2) “………. such compensation was not held to be payable after the company closed its business. the Labour Court held that the case was not of closure but of transfer of undertaking by operation of law u/s.” (Page: 734. 1969 I LLJ 840 : 1969 (18) FLR 22 : 1969 LIC 1204 (MP. 25F of the Act and not either u/s. 25FF k) Compensation payable is as per Sec. claims under S. P. U. It continued in the hands of the board. Electric Supply Co. If Sharma had continued in service with the company and the undertaking had closed down.808 The power company has been taken over by the M.C. upon transfer of an undertaking. Electricity Board on expiry of its license and services of workmen were terminated on payment of compensation u/s. & Ors.C.O.P. Para: 17) “………… the appellants should be entitled to count their past service with the Government for the purpose of computation of their salary. in such circumstances it will be open to this Court to review the arrangement between the State Government and the Corporation and issue appropriate directions. to give appropriate directions to ensure that no injustice results from the change-over.C. the parties to the transfer are a State on the one hand and a fully owned State Corporation on the other.. 1990-3 S. the Court has a right of judicial review over all aspects of transfer of the undertaking. Indeed. In the present case. as here. we do not think that any such compensation is payable.C. Gurmail Singh & Anr.” (Page: 738. 14 of the constitution which the state and the corporation are obliged to adhere to and the Court in the instant case. This. it could not obviously give any earned leave to those workmen. In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure or transfer of an undertaking. however. 25FF Effect of transfer of undertaking 2579 earned leave to its workmen. Such a step would have preserved to the appellants their rightful dues and retirement benefits…………” (Page: 89/90. But after the Company closed its business. as the principle sought to be applied is a constitutional principle flowing from the contours or Article 14 of the Constitution which the State and Corporation are obliged to adhere to………. Para: 2) Note: Provision regarding leave is amended under Factories Act n) Claim of seniority over transferee’s employees is not maintainable (S. in such a situation. held that it being Government is not expected to function like a private party by depriving the tube well employees upon absorption into the new corporation their continuity of service which would have led to their better salary. the Court ordered continuity of service and all benefits arising their with the to the employees of the transfer tube well work under the Government to the corporation except seniority to the employees affected by the transfer.. we are unable to see why the Government stopped short of giving the appellants the benefit of their past services with the Government when thus absorbed by the Corporation.where. 1991 II LLJ 76 : 1993 (82) FJR 332 : 1991 (62) FLR 458 : 1991 I LLN 587 : 1993 LIC 428 : 1991 I CLR 637 : 1991 SCC (L&S) 147 : 1993 AIR (SC) 1388 : 1991 (1) SCC 189 (S. Therefore in the instant case.810 Where in the matter of transfer of an undertaking functioning under the state to a corporation fully owned by the same State Government and it is held that the state is expected to act fairly and not arbitrarily and it is held that in all such cases the Court has a right of judicial review notwithstanding the fact that the case is not falling under complete succession and that this requirement of judicial review flows from the contours of Art.” (Page: 88/89. nor could the workmen claim any compensation for not availing themselves of the leave. Indian Oil Corporation.C. the transferor and/or transferee is a State or a State Instrumentality.. v.. 752) and the Court has a say as to whether the terms and conditions on which it proposes to hand over or take over an industrial undertaking embody the requisite of “fairness in action” and could be upheld. We think that. Para: 21) . That is why we have examined the terms and conditions of the transfer and give appropriate directions to meet the needs of the situation………. State of Punjab & Anr. length of service and retirement benefits with the Corporation.. Since it is a case of transfer the Court held that they are entitled either for compensation u/s. Para: 16) “……….3J) “……….Sec. length of service and retirement benefits in the corporation. such directions could be issued even if the elements of the transfer in the present case fall short of a complete succession to the business or undertaking of State by the Corporation.C. should not result in the appellants’ claiming any seniority over the staff which the Corporation has otherwise engaged right from its commencement in 1970…………. Para: 18) “……….3J) F 5A.” (Page: 91. etc. 25FF or continuity of service with attendant benefits but not both. It is open to a Court. certainly. in a case where one or both of the parties is a State instrumentality. having obligations under the Constitution. which is required to act fairly and not arbitrarily (see the recent pronouncement in Mahabir Auto Stores v.” (Page: 90. subsequently the undertaking was transferred to Electricity Board and all employees except certain specified categories were transferred to Board but the dismissed employee was not mentioned in employees transfer list. The workmen in question have been retrenched long before the colliery was taken over by the respondents and. therefore.C. The words “all staff” are cut down by the exception and really mean that such of the staff as do not fall within the exception were transferred form the Company to the board. if any.” (Page: 732/733.2J) “Shri Sinha submitted that as soon as transfer had been effected under section 25-FF of the Act all the employees became entitled to claim compensation will not be entitled to claim re-employment under section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and. etc.811 Despite being acquitted by High Court in criminal charge the dismissed employee was denied reinstatement. Ltd.812 Rejecting the contention of the employer that as soon as the transfer had been effected. The order made by the High Court deserves to be set aside and the Award made by the Tribunal will have to be restored. Para: 1) “………. v. will be transferred to the electricity board and will continue to be paid the same scales of salary including dear-food allowance.CB) F 5A. re-employment u/s.CB) “………. & Ors. must fall upon the Company in liquidation because Sharma was not an employee of the managing agents and had never been accepted by the board……….It was decided by the Tribunal that the responsibility. the company did not show him in the list of the staff taken over from the company by the board………. except those specified by the company or who wish to resign or who in the opinion of the electricity board are not suitable. the principle stated in Anakapalle Co-operative Agricultural and Industrial Society Ltd.” (Page: 733.The board took over the staff of the company subject to certain conditions. 1966 I LLJ 730 : 1966 (12) FLR 231 (S. 25F and hence upheld the orders Tribunal directing re-employment when any re-employment is done. (surpa) in this regard cannot be applied at all. Workmen of Uttar Pradesh State Electricity Board& Anr. Para: 9) . 25F of the Act.” (Page: 1403.. all workmen are entitled for compensation u/s. 25H can be sought when employees were retrenched prior to the transfer and not paid compensation u/s. he could not be said to have been automatically transferred because he would be hit either by the first exception or by the second or both. but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case.2J) F 5A. we do not think that the line upon which the High Court has proceeded is correct. It is no doubt true that this argument sounds good.2580 Chapter VA – Lay-Off and Retrenchment Sec. E 3/1 which is described as “schedule of procedure for handing over the company’s undertaking. 25FF but u/s. 25F (S. & Ors.” As Sharma had not been reinstated despite his acquittal.the language of the paragraph is not very happy. 2001 I LLJ 1400 : 2001 (98) FJR 652 : 2001 (89) FLR 552 : 2001 II CLR 1 : 2001 II LLN 819 : 2001 LIC 1397 : 2001 SCC (L&S) 641 : 2001 AIR (SC) 1994 : 2001 SCC (4) 55 (S. 25FF o) Reinstatement of employee not maintainable if there is agreement not to transfer the employees concerned (S.. Upper Ganges Valley Electricity Supply Co.C. Employers in relation to Management of Industry colliery of Bharat Coking Coal. Para: 2) p) Re-employment u/s. The workmen had been paid compensation only under section 25-F and not under section 25-FF of the Act on transfer of the colliery to the present management..” Paragraph 4 of this schedue reads: “All staff.C. The Tribunal has taken the same view of the matter and in our opinion rightly………. Workmen (represented by Akhil Bhartiya Koyla Kamgar Union) v. Supreme Court held that they were retrenched long before the colliery was taken over by the management and they were not paid u/s. 25FF but u/s. That case has not been pleaded or established.. therefore.C. These conditions are contained in Ex. he could not be said to have been automatically transferred and hence Tribunal’s decision that the Company in liquidation and not the board was liable for employee’s claim for retrenchment compensation u/s. fair entitled to such conferment of double benefit. Hence. therefore. Sharma was not in the list prepared by the Company and accepted by the board and. 25FF and since employee who had been paid the compensation. 25H is not allowed. Since the employee was not in the list prepared by the Company and accepted by the board. as hitherto and the same shall not be less favorable than those on which they are at present employed. (1) SCC 326 (S.termination was retrenchment. v.the order of……….CB) F 5A. Kanaka Durga……….Sec. Para: 14) “Though Smt. v. 1962 II LLJ 621 : 1963-64 (24) FJR 101 : 1963 (6) FLR 1 : 1963 AIR (SC) 1489 (S.. Para: 12) r) Workman entitled to retrenchment compensation as per Sec. it is submitted on behalf of the appellant that the appellant is at liberty not to absorb or accept the respondents in the appellant’s concern. is without any substance whatsoever.C. 25FF and immediate re-employment is not based on considerations of fair play and justice. Kanaka………. 25H not envisaged by the section in case of genuine transfer (S.” (Page: 69. Cotton Growers’ Marketing Federation the permanent employees were to be absorbed by the new organization in the same status and therefore the organization’s refusal to absorb such employees not as permanent employees but as seasonal employees without reasons was held to be without substance.” (Page: 70.the section provides………. Para: 15) s) Double benefit of compensation and re-employment u/s. Their Workmen & Ors.815 Sec. Azamabad (represented by General Manager) & Ors. 1985.C. (1) Shripati Pandurang Khade & Anr. Para: 12) “………. (2) Vijay Madhavrao Patil & Anr. 1980 I LLN 65 (AP. Hyderabad Construction Company.. Para: 13) “……….” (Page: 69. 25FF though reinstated for invalid retrenchment (AP. 25H is not applicable to cases of genuine transfer of establishment neither can the general principles underlying provisions of Sec. 1989 AIR (SC) 485 : 1989 I LLJ 57 : 1987 (74) FJR 115 : 1988 (57) FLR 779 : 1989 I LLN 563 : 1989 LIC 1040 : 1989 SCC (L&S) 318 : 1989 Suppl.CB) Note: Please see related ratio/s under the above citation u/s. Acetic Acid Plant. 1985. Anakapalle Co–operative Agricultural & Industrial Society Ltd. Ltd. notice………. (3) Dattatraya Beruji Hake & Anr.2J) F 5A.to the company………. Labour Court.2J) “On the basis of the directions in paragraph 2 extracted above.of her reinstatement. Hyderabad & Ors. So far as the respondents are concerned. Para: 11) “We.C.” (Page: 70.813 Subsequent to the transfer of the cotton agency from the Marketing Federation to a new organization State Co-op.C...of the Act………. The appellant cannot refuse to absorb or accept a permanent employee of the Marketing Federation without any reason whatsoever..” (Page: 488. we do not find any reason why the appellant should not accept them as its permanent employees.of the Act. 25FF. in our opinion.” (Page: 70. however. Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd.DB) ¥ 5A.Smt. 25FF Effect of transfer of undertaking 2581 q) Permanent employees are entitled to be absorbed subsequent to the transfer in the same status when so directed (S. v.DB) “………. 25H be invoked when dealing with claim of re-employment of transferor’s workmen against transferee’s concern because double benefit in form of compensation u/s.814 Workman though reinstated for invalid retrenchment after the transfer of management yet the workman is entitled to retrenchment compensation as per Sec. The High Court has rightly directed the appellant and the Marketing Federation to process the cases of the respondents on the basis that they have put in more than 240 days of service and grant them all the benefits under the circular letter dated January 18. This contention. 25H .. There is a specific direction that the appellant shall finally absorb the staff of the Marketing Federation after scrutiny as on January 1. and the management of Subong Tea Estate represented by respondents 1 and 2.2. 25FF. 25 F and not u/s. on February 17.C.1959 both the parties agreed to sell the tea estate and transferee was put in de facto possession on 17. 2. the Company was legally bound to reinstate these workers as early as from 25-3-1971. been functioning in Belgaum. the Vendee was put in possession of the tea garden. Para: 1) “………. Subong Tea Estate & Anr. 1964 I LLJ 333 : 1964-65 (26) FJR 18 : 1964 (8) FLR 91 : 1967 AIR (SC) 420 (S. 25FF t) Reinstatement can be claimed when no notice or compensation paid as their services are deemed to have been not interrupted by transfer (S. Nevertheless. 1. these workers made themselves available for work. every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Section 25-F thereof.C.12. The said approval was accorded on July 15.2J) F 5A. Had the Amalgamated Electricity Company Ltd. & Anr. 1959. 25F and not termination as per Sec. M/s.2582 Chapter VA – Lay-Off and Retrenchment Sec. 1947.C.2J) “It is true that these workmen were not working in the Amalgamated Company at the time when the management of the Company was taken over on 18-12-1974 as they were illegally denied employment. This agreement was subject to the approval of the Reserve Bank of India. Court held that workers who had completed one year of service were not given any compensation or notice as per Sec. Workmen of Subong Tea Estate (Indian Tea Employees’ Union) v. These facts are not in dispute. it would take effect from January 1. 25F in compliance of Sec. and the conveyance was actually executed on December 28. Respondent No.C. where the ownership or management of an undertaking is transferred. from the employer in relation to that undertaking to a new employer.816 Where the workmen were illegally denied employment despite the fact that they produced themselves for employment both before the company and the Board which had taken over company. 1959. The Karnataka Electricity Board being the successor-in-interest is bound to reinstate these workers as per the award passed by the Tribunal. These workers were not paid any such compensation as per Section 25-F.” (Page: 334.It was agreed between the parties that when the agreement was completed. Their services should be deemed to have been not interrupted by such transfer. Ltd and Ors. v. M/s. the said Company would have been legally bound to engage these workers as their workmen by virtue of the award passed by the Tribunal.. 2001 (88) FLR 729 : 2001 I LLJ 556 : 2001 III LLN 705 : 2001 LIC 406/2140 : 2001 I CLR 708 : 2001 LLR 413 (Sum) 9 : 2001 SCC (L&S) 278 : 2001 SCC (1) 586 : 2001 AIR (SC) 291 (S.. has transferred the said estate to respondent No. Co.. When the Karnataka Electricity Board took-over the management of the Amalgamated Electricity Company. The Amalgamated Elec. but they were not allowed to join duty by the Karnataka Electricity Board. The award of the Tribunal shows that they were illegally denied employment with effect from 25-3-1971. 1959. 25FF before such transfer.1959 subject to certain conditions of transfer and during this period transferee was taking all the decisions in consultation with transferor hence it was held that the transferee was the real owner and employer and retrenchment of eight employees by transferee has been held as retrenchment as per Sec. The entire assets and liabilities of the Amalgamated Electricity Company were taken over by the Karnataka Electricity Board. Gungaram Tarachand otherwise known as Hindustan Tea Company………. Karnataka Power Transmission Corporation Ltd. Pending the execution of the conveyance. the workmen of Snbong Tea Estate. 25FF (S.2J) F 5A.817 By virtue of agreement dated 28. 1959. whether by agreement or by operation of law. their services should be deemed to have not been interrupted by such transfer and they are entitled for reinstatement by Board being a successor in interest of the company. Macneill and Barry Ltd. Even as per Section 25FF of the Industrial Disputes Act. Para: 1) .” (Page: 335.” (Page: 731. who managed the Subong Tea Estate. Para: 6) u) Transferee becomes real owner if in de facto possession of tea estate and termination by him is retrenchment u/s.2J) “The industrial dispute which has given rise to this appeal arose between the appellants. as from the latter date it would be impossible to accept the Vendee’s case that it continued manage the property as the Agent of the Vendor. On September 1.C. satisfied that at least from July 15. the Manager of the Vendor Company served notices on the 8 employees in question intimating to them that their services would be terminated with effect from October 1. Even taking into account the fact that the approval of the Reserve Prank was a condition precedent. therefore. Smt. Ltd. Shivamma & Ors. the tea estate was in the possession and management of the Vendee as an owner and that the conduct of the parties clearly shows that the Vendee was the employer and the workmen working in the garden including the 8 retrenched workmen were the Vendee’s employees. 1959. As a result a dispute was raised and during the pendency of the proceedings. it was agreed to take effect from January 1. to July 15. 25F. Para: 1) “………. This order was challenged by the seller and purchaser and the High Court held that the workers are entitled to wages till the date of transfer and to compensation from the seller u/s. 1959. Smt. We have already noticed that the main stipulation in the conveyance was that whenever the conveyance may be actually registered.It is conceded that if the retrenchment is held to be effected by the Vendee. Therefore.” (Page: 335. The Labour Court held that the order of termination be set aside and both the seller and the purchaser are liable to reinstate workers with 50% back-wages and two workers who have attained the age of superannuation are entitled to retirement benefits. Shivamma & Ors.. 1959………. and so would the failure to comply with S..” (Page: 341. The purchasers were also impleaded to the proceedings. 1959. 1959. the eight employees were paid retrenchment compensation due to them on August 31. and there can be little doubt that failure to comply with S. That is one important point which cannot be ignored.His case is that the transfer which is evidenced by the conveyance executed between the parties on December 28.” (Page: 340. the Union representing the said employees protested against the retrenchment in question………. the industrial establishment was transferred. 1959. there can be little doubt that after July 15. be taken to attract the operation of S.1998 (78) FLR 38 : 1998 LLR (Sum) 284 : 1998 I LLN 299 (Karn. 25FF as if they were retrenched including those who have reached the age of superannuation. 1959. AND HMP Cements.” (Page: 341.In pursuance of these notices. 25FF at all.HC) ¥ 5A. 1959. the Vendee became the owner of the property. Para: 3) “………. 25F would make the retrenchment invalid.Sec. Since these two conditions can be treated as conditions precedent to the transfer there can be no question of the transfer of the undertaking having taken place before the date of retrenchment. 1959 the Vendee accepted the employees as its workmen and became answerable to them in that character. The impugned retrenchment cannot.C. the operative clause in the conveyance came into play and the Vendee who had already obtained possession of the estate became the owner of the property and his possession became the possession of the owner. it has not complied with S.. workers entitled to wages till the date of transfer and compensation from seller (transferor) u/s. Mr. because no reasons have been recorded by the Vendee for departing from the rule prescribed by S.We are therefore. whatever may be the character of the Vendee’s possession from February 17. there can be no escape from the conclusion that after the approval was obtained. 25G……….818 The services of the workmen were terminated without complying with the provisions of Sec. If that be so. It is not retrenchment consequent upon transfer. 1959. 25FF (Karn.HC) . 25G of the Act.” (Page: 339. the essential condition precedent having been satisfied. it had to receive the sanction of the Reserve Bank and the Vendee held made it clear that the staff whom the Vendee regarded as surplus had to be retrenched by the Vendor before the Vendee could take over the undertaking as an owner. it is retrenchment effected after the transfer was made………. Hammond. A. v. Para: 2) “Shri Sastri for the vender………. 25G. the approval of the Reserve Bank was obtained. 25FF Effect of transfer of undertaking 2583 “On August 31. Para: 3) “………. 1959. v. 25F or S. whether or not the transfer of management took place on February 17. and so. 1959 clearly shows that it was subject to two C0nditions. Ltd.It is common ground that on July 15. Para: 3) v) Transfer of undertaking when affected during the pendency of a dispute about termination. there can he no doubt whatever that as from July 15. Ujjain v. where there is a dispute between the two employers..2J) F 5A. had become liable to pay compensation to the workmen if there was retrenchment in the future. Mohammed Khan & Ors. the workmen had to be deemed to be retrenched from service. . N. whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board. 15(2) of Payment of Wages Act since such denial cannot be termed as unauthorized deduction nor delayed payment and hence High Court’s decision that authority u/s. In the present case. In these circumstances. Para: 2) b) Remedy lies u/s. The employment under the new employer could only commence from the time when the ownership or the management of the undertaking vested in the State Government. the Authority would inevitably have to enter into questions arising under the proviso to Section 25FF.C.819 In a transfer of business. which has to be deemed to have become effective on the date of vesting of the undertaking in the State Government. for purposes of determining who has retrenched the workmen and who is liable to pay the retrenchment compensation. Barnagar Electric Supply & Industrial Co. Ltd. but.2J) “………. be deemed to have been made only by the previous employer. v. In the second place.. The clause lays down that every workman mentioned therein shall be entitled to notice and compensation in accordance with the provisions of Section 25-F as if the workman had been retrenched. Surajmal Mehta.C. it would be that previous employer who would be competent to give the notice in accordance with the provisions of Section 25-F of the Act. that date would be the 1st of June. when the undertaking of the company was taken over by the Government of Madras under the Madras Act. 15(2) of Payment of Wages Act had no jurisdiction to try applications was upheld hence only Labour Court would be proper forum u/s. Director. Ltd.2584 Chapter VA – Lay-Off and Retrenchment Sec. Gupte was that the principal clause of Section 25-FF of the Act does not lay down which of the two employers mentioned therein is liable to pay the retrenchment compensation and. 25FF on ground that proviso to section was applicable.2J) F 5A. 1969 I LLJ 762 : 1969 (35) FJR 232 : 1969 (18) FLR 284 : 1969 LIC 867 : 1969 AIR (SC) 590 (S. an additional point urged by Mr. an application for computation of the benefit under Section 25-FF of the Act cannot be competently entertained and decided by a Labour Court. as the new employer. It is implicit in the language of that clause. Such an inquiry would necessarily be a prolonged inquiry involving questions of fact and of law. Further. in such a case. simultaneously with this vesting. & Anr.K.the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage periods and the time of payment fixed under Sections 4 and 5 of the Act. consequently. 25FF XII. the workmen could not become the employees of the new employer. it must be a right to receive that compensation from the previous employer who was the owner up to the date of transfer. 33C (2) for recovery of compensation (S. If the workmen’s services are to be deemed to be retrenched on that very date. the conclusion is irresistible that the claim under Section 25-FF of the Act to compensation accrues to the workmen against the previous employer under whom he was employed until the date of transfer………. Payment of Wages Inspector.820 Denial by employer to pay compensation u/s. South Arcot Electricity Distributing Co. viz.2J) “In this connection. The notice of retrenchment.C. will not fall within the ambit of Sec. whether there was any interruption in the employment of the workmen. if the right to retrenchment compensation accrues under it. if the right to retrenchment compensation is exercisable it is not against the transferee company but accrues against the owner at the time of actual transfer. 1957. It appears to us that the language of that principal clause makes it perfectly clear that. therefore. could not possibly be given by the State Government.C. the date of the deemed retrenchment would be the date when the ownership or management of the undertaking stands transferred to the new employer. Obviously. 1970 II LLJ 44 : 1971 (40) FJR 1 : 1970 (21) FLR 174 (S. Remedy for violation of the section a) Right to retrenchment compensation is exercisable not against the transferee company but accrues against the owner at the time of actual transfer (S. 33C(2) Industrial Dispute Act to entertain such claims. in view of the defence taken by Respondent 1. it is clear that.” (Page: 49. That retrenchment could.. Para: 4) . the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act. 1979 LIC 70 (Cal. Para: 3) I. 25FFA and 25-O since imposed in public interest. 25–O requires Appropriate Government’s permission for closure and such restriction being imposed in the interests of general public.The object……….DB) “The next finding……….821 The object of 60 days notice is to prevent sudden closure and to enable the Government to take any measure including reference and hence in the absence of any limitation of time in the Act for Government action. failure to give such notice though punishable u/s. P. Sixty day’s notice to be given of intention to close down any undertaking – Sec.……….we agree with the High Court that the Authority had no jurisdiction under Section 15 (2) of the Act to try these applications……….. 30A will not make closure non est or illegal and hence finding of Tribunal that closure was illegal was set aside. 25FFA I.” (Page: 308.822 Purpose of giving notice to Government is to prevent sudden closure so that Government may take appropriate measure for intended closure. State of Gujrat.DB) ¥ 5A.O. 1990 II LLN 587 : 1990 II LLJ 55 : 1990 LLR 461 : 1990 II CLR 358 (Ori.” (Page: 590. v. The State of Maharashtra & Ors. v.823 While Sec. Para: 4) Note: also refer to the Commercial Ahmedabad Mills Co.” (Page: 72.” (Page: 768/769. Wolford Transport Ltd. Para: 1) “………. Para: 4) “………. 19(1) (g) or 14. 1994 III LLJ 306 : 1989 (58) FLR 902 : 1989 I LLN 345 : 1989 I CLR 147 (Bom. Ltd.reference……….reference……….Sec.In our view it would be the Labour Court in such cases which would be the proper forum which can determine such questions under Section 33C(2) of the Industrial Disputes Act………. Scope and Object a) The object of 60 days notice is to prevent sudden closure and to enable the Government to take any measure including reference (Cal. the reference of the question about the validity of closure made by the Government even after the expiry of 60 days was held valid.DB) “There is no……….” (Page: 309. State of West Bengal & Ors. Labour Court & Anr. The Management of M/s.public……….Radhakisan Lolya v.. nor can it fall under the class of delayed wages as envisaged by Ss..DB) ¥ 5A. 4 and 5 of the Act………. Cuttack v. is not violative of Art. Para: 2) “………. Para: 10) b) Provisions of Sec. Town Bidi Factory.involved……….” (Page: 71.or non est.DB) “There is………. 25FFA Scope and Object 2585 Besides. are not unconstitutional (Bom. 25FFA merely requires 60 days notice for closure.” (Page: 769. Para: 3) “We are………. Bamwari Lolya S/o. 1988 (56) FLR18 (Guj.HC) ¥ 5A.” (Page: 769. apply. Para: 8) “Viewed from………. 25-O which only applies to establishments employing 100 or more workmen and since the establishment in the instant case employed less than 100 workmen. v. Circumstances………. S.DB) “………. the reference of S. 25-FFA has no application in the present case. Management of BASF India Ltd.Act. 25-O under Chapter VB then all the procedure laid down in Chapter VB will be applicable.It means……….DB) Note: Please see related ratio/s under the above citation in this section II. &Union of India & Ors. Once an application has been moved under S.DB) ¥ 5A. the reference of the question about the validity of closure made by the Government even after the expiry of 60 days was held valid. Applicability a) Applicable only to establishments employing less than 100 employees (Jhar.DB) ¥ 5A.825 Since a provision for reference with regard to justifiability is made u/s. WITH MAMC Employees’ Union & Ors v. 25-O (Cal.The submission of the learned counsel with reference to section 25-FFA is totally meaningless because the management has moved the Appropriate Government under S. only Sec.25-O Act………. for prior permission at least ninety days before the date on which the intended closure is to become effective before the Appropriate Government.. Therefore.824 The object of 60 days notice is to prevent sudden closure and to enable the Government to take any measure including reference and hence in the absence of any limitation of time in the Act for Government action. hence prior permission of 90 days and not 60 days is required to make closure effective.and patently. 25-O is concerned. 25FFA is attracted which requires the employer to serve only 60 days notice but not to seek any permission from the Government for closure. then provisions of chapter V-B will be applicable and not 25FFA.DB) ¥ 5A.closure………. Para: 13) Note: also refer to the case of Bamwari Lolya v. 25-O of the Act and therefore the provisions under Chapter VB shall apply and in Chapter VB no reference of section 25 FFA appears nor it has any applicability whatsoever.” (Page: 394. 25FFA c) Expiry of 60 days will not render reference made thereafter as to validity of closure invalid since no limitation for the same stipulated in the Act (Cal. State of Bihar & Ors.. S.The only……….Tribunal of therefore………. 2002 I LLJ 389 : 2002 (93) FLR 1019 : 2001 III CLR 1034 (Jhar. Wolford Transport Ltd. 2002 (94) FLR 570 : 2002 II LLJ 735 : 2002 II CLR 364 (Cal.DB) “………. Whereas the period prescribed under section 25-FFA is sixty days for application before the Appropriate Government.attracted………. v. Union of India & Ors.2586 Chapter VA – Lay-Off and Retrenchment Sec. in the prescribed manner. It clearly lays down whenever an employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall.. 1979 LIC 70 (Cal. MAMC Sramajibi Union & Anr. In the present case we are governed by Chapter VB which is a . State of Maharastra & others 1989 (58) FLR 902 Bom HC 1989 I LLN 345 b) Section not applicable to cases falling u/s. Therefore.” (Page: 397.workman doubtedly……….Section 25-K………. 25-O which appears in Chapter VB clearly lays down the complete procedure for closing down the undertaking and for that the Appropriate Government is the Central Government. 25-O. the reference by the Government about the justifiability of the closure was held bad and hence the order of the Single Judge directing the Tribunal to adjudicate on the reference was quashed. 25-FFA has no application as far as S.826 Application if made u/s. State of West Bengal & Ors.the appellant………. Ahmedabad v. 25FFA of a sugar factory was held justified and valid by the tribunal and yet it was refused by the Tribunal on grounds that closure would adversely affect not only a large number of workmen but also producers of sugarcane thereby bringing unemployment to a sizeable population in the locality and holding that with 925 workers and staff. As such the argument is totally misconceived. 25FFA mandatory failing which closure becomes invalid (Bom. 30A.Sec. (Central) Bombay & Anr.3J) F 5A. Para: 6) “……….” (Page: 265.” (Page. 25FFA and the employer has rendered itself liable for the penalty contemplated by Sec. Para: 19) III.the consequences by way………. Ahmedabad.C. Glass Containers Pvt. Para: 7) “As we have………. (3) Union of India & Ors. 1983 I LLJ 326 : 1983 I LLN 157 (Bom. (2) D. Notice of closure a) Closure will not result in termination of services unless notice of closure was given and compensation paid (Guj. of the mills which had closed down had applied to the Regional Provident Fund Commissioner for settlement of the dues of the deceased workmen under the Employees Deposit Linked Insurance Scheme which was refused by him on the ground that the services of the deceased workmen were terminated due to closure but Court held that closure of the business. which was not done in this case and hence the deceased workmen were members of the Fund on the date of their death and direction to pay the insurance benefits with interest is given.matter beyond controversy..benefit claimed. Ahmedabad & Ors. Intervener.to suffer costs. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. Regional Provident Fund Commissioner. Hathising Manufacturing Co.” (Page: 266. in the present case Chapter VB is applicable and S. 25FFA is clearly mandatory. Gujarat State. 25FFA and compensation u/s.C.S. 25-FFA has no relevance as far as this submission is concerned. Vasavada. 25FFA Notice of closure 2587 complete code in itself where special definition has been given of the Appropriate Government. Para: 11) “The petition succeeds……….. The cases cited by the learned counsel with reference to S. & Anr.of service.827 Dependents of the deceased workmen. Therefore.retrenchment. (4) P.” (Page: 584.DB) “Any person……….828 The language of Sec. Para: 10) “For the……….DB) ¥ 5A. Ltd.. P. Ltd. Jamnagar & Anr. Ranchoddas.829 Although closure notice u/s. Textile Labour Association. v. 25-FFA has no application whatsoever. There is a clear violation in the instant case by the employer of the requirements contemplated by Sec.” (Page: 266. Maharashtra General Kamgar Union v. Para: 12) Note: Please see related ratio/s under the above citation in this section The Apex Court in M/s. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S. (1) Union of India & Anr. 1985 I LLJ 263 : 1985 (51) FLR 308 : 1985 I LLN 629 (Guj. (2) Regional Labour Commr. 25FFF has been paid. R.. will not result in termination of service of employees unless notice of closure has been given as per Sec. . D.HC) c) Though notice was issued closure will not be justified when it results in the unemployment to sizeable number of workmen and affects producers of Sugarcane (S. 266.HC) ¥ 5A.” (Page: 266.CB) b) Notice u/s. Parry (India) Ltd. likely to bring about unemployment to a sizeable population in the locality. & Anr.” (Page: 754. Para: 5) “………. & Anr.2588 Chapter VA – Lay-Off and Retrenchment Sec. Glass Containers Pvt. without compliance with the requirements of Sec. 25FFA must be held to be devoid of legal effect. It was held that due to non-compliance of intended notice to be served u/s. 25FFA Sec.HC) ¥ 5A.3J) “In course of hearing we were impressed by the fact that the factory was almost a century and a half old and appeared to be the most ancient as also the premier industry of the area. the factory could run. that with a viable unit of 925 workers. 25-L.we record our appreciation of the co-operation shown by counsel for all the parties in the matter of keeping the Factory going. 25FFA calls up on an employer who intends to close down his undertaking to serve a notice of sixty days before the intended closure in the prescribed format on the Appropriate Government. The section is applicable to undertakings employing not less than fifty workmen in the preceding twelve months. but it only entitles the workmen to 60 days wages and not reinstatement.HC) ¥ 5A.HC) Note: Author’s comments on the notice u/s. & Anr. In view of the fact that the factory required a sizeable quantity of sugarcane for its business. Closure of the factory was not only going to affect adversely the workmen but also the producers of sugarcane and was.” (Page: 756.DB) Note: Please see related ratio/s under the above citation in this section c) Does not render closure illegal but workman is entitled to 60 days wages (Bom. including staff. professionals and even practitioners of labour laws that the service of notice of closure u/s. 25FFA of Industrial Disputes Act it cannot be held that closure is illegal. Maharashtra General Kamgar Union v. v.HC) b) Closure will not result in termination of service of employees unless notice of closure has been given (Guj. However it is to be noted that the section used the expression .. 25FFA is imperative only in case of factories employing between fifty and less than hundred workmen.830 A closure effected in fact.831 Employer effected closure without giving notice of 60 days of the intended closure to the Government. v.C.. Effect of violation of Section a) Closure becomes invalid when requirements of Sec. The workmen claimed reinstatement alleging that the closure was not valid. it has largely been the view of the employers. We found that if the factory was not closing down and was to operate. Though the Tribunal came to hold that the closure notice was valid and justified. Crown Silk Weaving Industries & Ors. apart from providing a ready market for the sugarcane growers. E. D. I. 25-O are applicable to industrial establishments as defined in Sec. Since the provisions relating to closer u/s. Para: 8) IV. 25FFA are not fulfilled (Bom. SCC 31 (S. State of T. 1985 AIR (SC) 753 : 1985 (51) FLR 231 : 1985 II LLN 58 : 1985 LIC 887 : 1985 Suppl. Poonvasi & Ors. people in the locality had been growing sugarcane and the Tribunal had found that a lot of sugarcane was standing in the fields. 1994 (69) FLR 341 : 1994 I LLN 126 : 1994 I CLR 1047 : 1994 LLR 888 (Bom. it also recorded a finding pursuant to the direction of this Court dated August 10. 1983 I LLJ 326 : 1983 I LLN 157 (Bom. Ltd. rendered surplus and jobless and gave other directions to strengthen the company and for the progressive welfare of the workmen and the staff. 1983. 25FFA the unit can be viable and factory can run Supreme Court directed the company to create a fund for the rehabilitation of workmen. provision for employment of at least 925 people would be made……….N. invalid and illegal.. therefore. v. 226 has same meaning as laid down in Sec. Para: 7) “………. 1994 (69) FLR 341 : 1994 I LLN 126 : 1994 I CLR 1047 : 1994 LLR 888 (Bom. 3(42) of General Clauses Act as provided under Art. Thus while Chapter VB is applicable only to factories (or industrial establishments u/s.Even though………. Glass Containers Pvt. 2(ka) of the Industrial Disputes Act as one in which any industry is carried on.Nos. State of Gujarat & Ors. It is therefore prudent for every business employing not less than fifty workmen to serve a sixty day notice as per Sec. 25FFA and 25FFF were already complied with. was quashed and reinstatement with full back wages and continuity in service was directed. 3 and 6………. The only instance where an undertaking falls outside the purview of Sec. Ahmedabad. 25N is attracted and workmen are entitled for another two months’ wages.HC) that payment of sixty fays wages in lieu of notice saves the closure from becoming illegal.on the other………. Remedy for violation of Sec. Crown Silk Weaving Industries & Ors. 25FFA and 25FFF which are complied with by the company.832 The term ‘person’ u/Art. & Anr.S. 1985 I LLJ 263 : 1985 (51) FLR 308 : 1985 I LLN 629 (Guj. 25-O as the former covers undertakings other than factories.DB) “………. workmen are not entitled to any relief.833 Company decided to close down due to continuous loss suffered by it and State Government granted exemption from complying with the provision of Sec. therefore such notice was held as null and void. 25FFA 2589 ‘undertaking’ but not ‘industrial establishment’. 2(j) is wide enough to include any business trade undertaking manufacture or calling of employers. High Court setting aside order held that Sec.. 25FFA complied since termination due to closure excludes retrenchment (S. the scope Sec. 367 hence a writ of mandamus would lie against a private company since mass termination of entire working force by a notice without complying with provisions u/s. Para: 25) b) Workman not entitled to any other relief u/s. 25FFA of the Act. An undertaking is defined u/s. Regional Provident Fund Commissioner. 25-L) employing not less than one hundred workmen. Sec. Miscellancous Mazdoor Sabha v. 2001 III LLJ 1413 : 1996 SCC(L&S) 470 : 1996 (7) SCC 139 (S. 2(oo) does not cover retrenchment due to closer or transfer of an undertaking and since Sec.C. 25-L) and employs not less than 100 workmen in which case it is governed by Sec..2J) . Thus in author’s opinion.P.. Supreme Court upholding the order stated that retrenchment u/s. petition filed in High Court by both the parties.” (Page: 691. and Ors. V.25-O or where it employs less than fifty workmen. 25FFA on the Government failing which the employer is likely to run the risk of closure being declared illegal as was held in the case of Maharashtra General Kamgar Union v. Ahmedabad v.and 25 FFF. Company issued order for closure and services of employee were terminated giving one month’s wage in lieu of notice.” (Page: 690.DB) notwithstanding the decision of the Bombay High Court in Poonvasi & Ors.C.HC) or the termination of workmen consequent up on closer being declared void as in the case of D. State of H. hence workmen are not entitled to any relief. 25FFA and 25FFF amounts to injury of public nature. Then the expression ‘industry’ u/s.Sec. Para: 24-A) “It therefore……….P. Vasavada. H.. Aggrieved. 25FFA a) Writ of Mandamus will lie even against a private company (Guj.DB) ¥ 5A. 25FFA is wider than Sec.2J) F 5A. Gujarat State. Textile Labour Association. Union raised industrial dispute on which Tribunal held that Sec. 25FFA Remedy for violation of Sec.1983 I LLJ 326 : 1983 I LLN 157 (Bom. 25N is not applicable and workmen were only entitled for protection u/s. Ltd.question is whether……….25FFA is where such an undertaking is a factory (or industrial establishment u/s. 25FFA is applicable to every undertaking whether or not it is a factory and employs not less than fifty workmen. Mineral and Industrial Development Corporation Employees’ Union v. 1995 III LLJ 677 : 1992 (65) FLR (Sum) 37 : 1992 II LLN 694 : 1992 II CLR 754 : 1993 LLR 763 (Guj. 25-N once Sec.” (Page: 679. 835 The management decided to close down the establishment as heavy loss occurred due to stoppage of work and strike by workmen year by year. Para: 7) c) Functional integrality of unit with the factory to be determined before deciding applicability of Sec. the compensation payable to the workmen whose services are terminated as a result of such closure. v. 25FFA “ From the aforementioned observations. or whether management revived the operation within two years of closure and it started operation under BIFR scheme. Principal Labour Court & Ors. Though it referred to the closure notice as well as it’s acknowledgments and also the closure compensation received by workmen without demure. Section 25-N imposed restriction in the matter of retrenchment of workmen employed in large undertakings while Section 25-O deal with the procedure for closing down such undertaking.cannot be sustained. We are. Division Bench set aside the order. 2002 (93) FLR 1095 : 2002 (100) FJR 332 (Mad.HC) . The workmen raised industrial dispute that their services were illegally terminated. Management. 32 of 1976 whereby Chapter V-B was introduced in the Act. unable to uphold the contention of Shri Sharma that Section 25-N was applicable in the present case and was obligatory for the Management of the respondent-Company to give three months’ notice as required by Section 25-N. In that view of the matter Section 25-N which deals with retrenchment cannot apply to the present case where termination of the services of the workmen was brought about as a result of the closure of the undertaking.O. violation of which made closure void. The striking down of Section 25-O would not ipso facto. The Management of M/s.O. Since Section 25-O was not available on account of the said provision having been struck down by this Court the only protection that was available to the workmen whose services were terminated as a result of closure was that contained in Sections 25-FFA and 25-FFF of the Act. Section 25-N and 25-O were inserted in the Act by Act. the inference by the Labour Court that it was illegal termination was factually not correct. Town Bidi Factory. Sec.. It is not disputed that both these provisions have been complied with in the present case. No. Labour Court & Anr.”(Page: 591. Para: 11) d) Labour Court cannot draw inference as to closure without recording findings on the factum of closure on the basis of evidence (Mad.HC) ¥ 5A. 25 FFA applied. Labour Court ordered reinstatement on the ground that there could be no closure when a charter of demands was pending without arriving at any finding whether closure was valid or not or whether it was a case of retrenchment or illegal termination. P. 1990 II LLN 587 : 1990 II LLJ 55 : 1990 LLR 461 : 1990 II CLR 358 (Ori. but as it failed to decide whether rolling unit was an integral part of Town Bidi factory.834 Industrial tribunal concluded that since more than 50 persons were employed in Town Bidi Factory at the time of closure of bidi rolling unit. namely. Cuttack v.” (Page: 1415/1416. Wavin India Ltd. Para: 6) “There is one more reason why Section 25-N cannot be made applicable to the workmen in the present case. result in enlargement of the ambit of Section 25-N so as to cover termination of services of workmen as a result of closure which was otherwise outside the ambit of Section 25-N. therefore.” (Page: 1416. 25FFA (Ori.DB) ¥ 5A. Section 25-O was held to be unconstitutional by this Court in Excel Wear case (supra). P.DB) “Section 25 FFA of………. it is evident that the definition of ‘retrenchment’ as defined in Section 2(oo) of the Act has to be read in the context of Section 25-FF and 25-FFF of the Act and if thus read ‘retrenchment’ under Section 2(oo) does not cover the service as a result of closure or transfer of an undertaking though such termination has been assimilated to retrenchment for certain purposes.. Hence the award is quashed and matter is remitted for fresh consideration.2590 Chapter VA – Lay-Off and Retrenchment Sec. to industry. P. 2(cc) & 25-O for additional ratios on closure I. v. Ahmedabad & Ors. because they were completed before the date on which the Act was enacted. Hathising Manufacturing Co.CB) F 5A.C. By South Eastern Roadways Workmen’s Union & Anr. v.” (Page: 549. Payment of Wages Authority. (3) Union of India & Ors.DB) J. Rajkumar Singh v. 28. Intervener. The power of the legislature to impose civil liability in respect of transactions .837 The object of the provisions contained in Sec. a sense of security in a worker and to standardize his right in relation to industry (MP. M/s.836 When out of 53 workmen. it evidently makes a distinction between those transactions which are covered by the Act and those which are not covered by the Act. Ujjan & Anr.Sec. 49 have received their closer compensation and the four did not receive it. does not amount to discrimination which is liable to be struck down under Art. 1956 (retrospective date of operation of section) and not in respect of closures effected before aforementioned date. and those who close their undertakings after that date………. 25FFF Scope of the section 2591 e) Employer liable to pay interest on the closer compensation due to workmen (Cal. (ii) To create a sense of security in a worker to a reasonable extent that in case he sticks to his work he will not be thrown out in case his employment is terminated in eventualities such as closure on grounds of expediency among others.DB) “It is beyond doubt………. (2) D.. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S. and hence is not discriminatory and does not violate Article 14 of the constitution.. (1) Union of India & Anr. Para: 18) II.838 Imposition of civil liability is in respect of closure of undertakings on and after Nov.. 14. 2005 II LLJ 1020 : 2005 (105) FLR 395 (Cal. (4) P. Scope of the section a) Retrospective application of amendment of the section is not unconstitutional (S. Para: 17) “The object of the provision………. This differentiation. (iii) To raise the position and status of Labour and to standardize its right in relation to industry. Jamnagar & Anr. however. 1960 II LLJ 543 : 1960-61 (19) FJR 77 (MP. (Central) Bombay & Anr. the High Court directed that the sane may be paid in accordance with law in terms of Sec.” (Page: 549.DB) ¥ 5A.. R. Ranchoddas.general public.When Parliament enacts a law imposing a liability as flowing from certain transactions prospectively. Compensation to workmen in case of closing down of undertaking – Sec. 25FFF or for that matter Sec. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd.C. Object of the Section a) To provide for involuntary unemployment. (2) Regional Labour Commr. 25FFA within a periods of two months together with interest calculated at the simple rate of 6% per annum Workmen Rep. 25F and 25FF is (i) To provide for involuntary unemployment. VIII Industrial Tribunal & Ors. Ltd. 25FFF Note: also refer to Secs.DB) ¥ 5A..CB) “Article 14 of the Constitution is not violated by making by law a distinction between employers who closed their undertakings on or before November 27 1956. 20 (1) may be attracted. 1956 (retrospective date of operation of section). 31 (2) does not apply.839 Though liability to pay compensation arises for all undertakings closed on or after Nov. (2) Regional Labour Commr. The protection of Art. The amending Act was.” (Page: 11. But. and liability to pay compensation arises in respect of all undertakings closed on or after November 28. 25FFF(1) as liability is not condition precedent to closure and hence would not constitute an offence therefore will not attract Article 20 (1) of the constitution.. v. by failing to discharge the liability to pay compensation and wages in lieu of notice. disobedience thereof will amount to contravention of the statute. Principal Labour Court & Ors. if liability to pay compensation is not a condition precedent to closure. But S. discrimination will arise between transactions which will be covered by the law after its coming into force and transactions before the law came into force which will not naturally be hit by it………. The section only creates a right in the employees : it does not enjoin the employers to do anything before closure.C.Article 14 strikes at discrimination in the application of the laws between persons similarly circumstanced.. Undoubtedly for failure to discharge liability to pay compensation. 20(1) since non-payment of compensation does not amount to an offence (S.. the employer does not contravene S. But there being no prohibition against closure of business without payment of compensation. P.C. 2004 (106) FJR 903 : 2004 III LLN 1241 : 2004 LIC 3222 : 2004 III CLR 1 : 2004 LLR 881 : 2004 SCC (L&S) 1105 : 2004 AIR (SC) 4124 : 2004 (8) SCC 90 (S. 33 (c). 25FFF completed even before the date on which the Act is enacted does not appear to be restricted……….payment of compensation and wages in lieu of notice under the impugned section are not made conditions precedent to effect termination of employment.CB) “………. it does not strike at a differentiation which may result by the enactment of a law between transactions governed thereby and those which are not governed thereby.CB) F 5A.840 The workmen who were paid compensation and all other dues admissible under law on account of genuine closure were held not entitled to any additional compensation in the form of ex-gratia which is not payable under law and hence the award of the Labour Court. 1956. every law which imposes civil liability will be liable to be struck down under Art.C. (3) Union of India & Ors. liability to pay compensation may be enforced by coercive process. granting additional compensation on the principle of social justice was set-aside. Jamnagar & Anr.. By S. Ranchoddas. it is true.2J) . Para: 2) c) No additional compensation like ex-gratia is payable when not payable under law (S. If the argument that discrimination results when by statute a civil liability is imposed upon transactions which were otherwise subject to such liability be accepted. under the statute providing for recovery of the amount e. Section 31 (2) of the Act which imposes penal liability for contravention of the provisions of the Act can therefore have no application to failure to make payment of compensation and wages for the period of notice under S. an offence. (Central) Bombay & Anr. A statute may prohibit or command an act and in either case. Intervener. S. M/s. Presiding Officer. Ltd. 20 (1) avails only against punishment for an act which is treated as an offence.2592 Chapter VA – Lay-Off and Retrenchment Sec.2J) F 5A. 25FFF (1) imposes neither a prohibition nor a command………. 25FFF (1). v. 14 even if it comes into operation on the date on which it is passed. R. unless the statute expressly so provides. If the statute fixes criminal liability for contravention of the prohibition or the command which is made applicable to transactions which have taken place before the date of its enactment the protection of Art.C.. (4) P. but that again does not amount to infringement of Art. 28. Para: 4) b) Retrospective application of the section by an amendment is not violative of Art. Ltd. 20 (1) of the Constitution. (2) D. which when done was not an offence. Management of Gordon Woodrofe Agencies Pvt. Hathising Manufacturing Co.” (Page: 12. a person may be imprisoned. Ahmedabad & Ors. 25FFF (1). Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. (1) Union of India & Anr.g. because immediately on its coming into operation. but failure to discharge a civil liability is not. passed in June 1957. by failing to discharge such liability employer does not contravene Sec. the Bombay Land Revenue Code. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S. It is also the case of the appellant that the closure being genuine. it directed the appellant-management. Ltd.” (Page: 905. 31.CB) F 5A. 3.1985 came to the definite conclusion that the closure of the appellant’s establishment cannot be held to be invalid or unjustified.” Thus. At that time the appellant had less than 50 workmen.” (Page: 907. (4) P. gratuity etc.f. R. 25FFF Scope of the section 2593 “The appellant before us was a trading agency being managed under the name and style of ‘Gordon Wardrobe Agencies P. Ranchoddas.CB) . Para: 13) d) Liability under the section is not violative of Art. Para: 1) “……….Sec.841 A law which creates a civil liability in respect of a transaction which has taken place before the date of its enactment such as in instant case Act 40 of 1957 makes employers who close their under takings after 27th Nov. Para: 3) “Having come to the above conclusion. primarily contending that they were entitled to alternate employment in a sister concern………. P. to pay to the respondent-workmen ex gratia amounts in addition to closure compensation and other legal entitlements to which they are entitled. 1956 liable to pay compensation u/s. In other words. does not arise. the Labour Court directed a consolidated sum of Rs. which by its order dated 18.S. the principle of social justice cannot be invoked since the Legislature would have already taken note of the same while fixing the compensation payable.Principal Labour Court. Hathising Manufacturing Co. the respondent workmen herein alone chose not to receive the same. 19(1)(g). In such a situation. does not per se impose unreasonable restriction on freedom guaranteed by Art. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. Said company came to be closed w. it is illegal and cannot be enforced.5. This Court in the case of N. due to the workmen………. v. Ltd. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S.C. therefore.3. M/s. Jamnagar & Anr. the Labour Court held that the closure was genuine and justified in law………. (1) Union of India & Anr. In the instant case also.” (Page: 904/905.’ at the then Madras now known as Chennai.they were only entitled to the closure compensation and……….. Intervener. closure compensation as prescribed by law and other legal entitlements like provident fund.. at the rate of 15 days’ wages on the last drawn salary for the remaining years of service till the date of superannuation by treating 6 months or more as one year of service.. the question of paying any additional ex gratia compensation which is not contemplated under the statute. Madras. all other statutory dues which some of the employees collected without demur and in the case of respondent-workmen even though the same were offered on time. the Labour Court came to the conclusion that on the facts of this case.The appellant in regard to this claim of the respondent workmen had contended that Gordon Woodrofe Ltd. (Central) Bombay & Anr. Ahmedabad & Ors. the Labour Court came to the conclusion that the closure of the establishment was legally justifiable and the management had as required under the law. Over and above this.000 payable as solatium to each one of them. 25FFF(1). Giri (supra) held : “An award under the Industrial Disputes Act cannot be inconsistent with the law laid down by the Legislature or by the Supreme Court and if it does so. (3) Union of India & Ors. there was substantial ground for awarding enhanced compensation to the respondent workmen on compassionate grounds by applying the principle of social justice which according to the Labour Court is linked with industrial adjudication. (2) Regional Labour Commr. Therefore. contrary to the statute. 19(1)(g) (S. they did not accept it.1984 because it had incurred heavy losses in its business.e. it is clear from the pronouncements of this Court that the Labour Court or for that matter the High Court had no authority in law to direct payment of any additional sum by way of ex gratia payment otherwise than what is provided under the statute when the act of the management in closing down the establishment is found to be valid and all legally payable amounts have been paid or offered in time.However.” (Page: 905. the ratio laid down in the above case clearly applies to the facts of this case. apart from the closure compensation and other legally payable amounts offered to the workmen. (2) D. it offered to all its workmen. was a separate company and the question of providing alternate employment in the said company………. offered apart from the compensation payable for the closure.C. Para: 4) “In our opinion. . Hathising Manufacturing Co.C. Para: 3) f) Standardisation of compensation is not in violation of Art.. (4) P.” (Page: 7. (Central) Bombay & Anr. (3) Union of India & Ors. (Central) Bombay & Anr. cannot also be sustained. (1) Union of India & Anr. R. are made liable to pay compensation under S.C.” (Page: 8. v. Ranchoddas. Para: 1) “By Act 40 of 1957.2594 Chapter VA – Lay-Off and Retrenchment Sec. 19(1)(g).CB) F 5A.. 25FFF (1) at the prescribed rates. (3) Union of India & Ors. Para: 4) . Intervener. employers who close their undertakings after November 27. and therefore the Parliament has thought it proper to provide for payment of additional compensation besides wages in lieu of notice. (2) Regional Labour Commr. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. and thereby a definite standard for payment of compensation related to readily ascertainable data is prescribed. The provision for payment of such compensation in addition to wages in lieu of notice cannot therefore be characterized as unreasonable. M/s. and this liability evidently arises even in respect of undertakings closed before the date of the enactment of the impugned section. it would be difficult for the workman thrown out of employment to secure employment similar to the one terminated within one month. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. v. 19(1)(g) (S. Jamnagar & Anr. (2) D.CB) F 5A. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S. the Parliament has standardized the compensation by relating it to the length of service of the employee. Jamnagar & Anr. Ahmedabad & Ors.. Ltd. 25FFF “………. Standardization of compensation which dispenses with recourse to a judicial tribunal for assessing the quantum is a recognized method of awarding compensation especially where large numbers of workmen are involved in a similar situation. 19(1)(g) (S. (2) Regional Labour Commr.” (Page: 7.CB) “The plea of unreasonableness of the restriction imposed as flowing from the provision which standardizes compensation and does not leave it to be ascertained by a judicial tribunal in the light of the capacity of the employer and the loss suffered by the employees on termination of employment. the interest of the general public sought to be secured by imposing the restriction and the reasonableness of the quality and extent of the fetter upon the right. Having regard to the prevailing conditions in the employment market. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S.. P. 19 (1) (g) amounts to a reasonable restriction imposed in the interest of the general public must be adjudged not in the background of any theoretical standards or predeterminate patterns. but in the light of the nature and incidents of the right. R. Ahmedabad & Ors.C. (1) Union of India & Anr. Intervener. Para: 2) e) Compensation in addition to wages does not violate Art.C. Instead of leaving the question to be decided in each individual case in the context of a variety of circumstances having a bearing on the amount of compensation to be awarded. (4) P. 1956. Hathising Manufacturing Co.” (Page: 8.CB) “Wages in lieu of notice are normally inadequate compensation for loss of employment in an industrial undertaking. P. A law which creates a civil liability in respect of a transaction which has taken place before the date on which the Act was enacted does not per se impose an unreasonable restriction………. M/s.842 Provision for payment of compensation in addition to wages in lieu of notice is not unreasonable since the latter are normally inadequate compensation for loss of employment due to closure of establishment and hence such provision does not violate Art. Ltd. Ranchoddas. Absence of a provision for a judicial verdict on the quantum of compensation payable does not therefore make the law unreasonable.Whether an impugned provision imposing a fetter on the exercise of the fundamental right guaranteed by Art..843 Standardization of compensation on termination of employment which dispenses with recourse to judicial tribunal for assessing the quantum in the light of employer’s capacity to pay and loss suffered by employer is a recognized method specially where large number of workmen are involved in similar situation and hence it is not unreasonable and violative of Article 19 (1) (g). (2) D. Sec. 25F but would be deemed retrenchment u/s.” (Page: 78. 14 of constitution considering that object of legislation is for benefit of workman and balances the right of labour and obligation of industry.HC) b) Applicable to termination of temporarily appointed workman appointed for definite period (MP. 1977 II LLJ 524 : 1977 (51) FJR 184 : 1978 (36) FLR 53 : 1977 II LLN 513 : 1977 LIC 1633 (Del. 25FFF. Para: 2) “……….S.The petitioner did………. Hindustan Fertilizers Corpn. Ujjan & Anr. 2(oo) attracting Sec.hereby dismissed.upon that right.DB) “………. Para: 3) “The petition is………. 19(1)(g) nor classification involved in provisions of the section is arbitrary so as to violate Art. Para: 9) . the closure even though a partial closure must be of such part of undertaking as is independent. Para: 8) “……….. Para: 4) III.844 Dismissing the petition filed by employer challenging constitutional validity of the section.need not interfere.the proportion of……….” (Page: 86. Applicability a) Applicable to cases where there is closure of independent undertaking (Del.” (Page: 195. Raj Hans Press v. Payment of Wages Authority. Pramod Kumar Tiwari v.it appears from………. 1995 I LLJ 192 (MP. & K..” (Page: 87. Ltd.account of non–payment.be as indicated above………. Court held that restrictions imposed on the fundamental right of employer to close down business under the section are neither unreasonable so as to violate Art. 25FFF Applicability 2595 g) Restrictions u/s.DB) ¥ 5A.the object of all………. Delhi & Ors.846 On facts it was held that workman was temporarily appointed for a definite period on a project hence his termination on completion of project would not amount to retrenchment u/s. 1960-61 (19) FJR 77 : 1960 II LLJ 543 (MP.sympathetically considered.845 For a case to fall within the jurisdiction of Sec.” (Page: 87.. 25FFF on the right of employer to close down his business are not unreasonable nor violative of Constitution (MP.as section 25-FFF………. Para: 1) “for these reasons……….” (Page: 195. 25FFF and hence employer was directed to pay compensation as per said section and to consider his claim for absorption on sympathetic grounds.The petitioner had……….DB) “The only question raised………. Rajkumar Singh v.or industrial activity………. Sidhu & Ors. Labour Court.HC) ¥ 5A.DB) ¥ 5A. there was……….of the Act.3J) F 5A.in terms. 25F and as also no prejudice was shown to have been caused to the employer by such omission. 1984 I LLJ 233 : 1984 (64) FJR 60 : 1984 (48) FLR 310 : 1984 I LLN 90 : 1983 LIC 1865 : 1984 SCC (L&S) 144 : 1984 AIR (SC) 500 : 1984 (1) SCC 509 (S.two application” (i) ………. Owners of Ekra Enineering Works.the Management………. Tara Kishore Prasad……….money” “On the basis……….847 When the dispute pertains to the applicability of proviso to Sec. (v) ……… “It was then urged………. services of the respondent would no more be required………. Sri Niranjan Dass. 1967.August 1964………. Para: 1) “………. 25FFF meant for closure is not attracted to the case in point. v.Hence it held………. the services of the respondent would not be required………. Para: 6) d) Not applicable when notice indicating termination cites recession and not closure as reason (S.2596 Chapter VA – Lay-Off and Retrenchment Sec.Respondent continued to serve in that capacity when on September 14. 25FFF since the Sec. 25F (Pat.Section 25 F of the Act………. 25FFF itself refers to retrenchment compensation payable u/s. he was served with a notice terminating his services.There is not even a whisper in the notice that as the Delhi office is being closed down.” (Page: 1425.” (Page: 1426.The question. III/Di-606……….25F of Industrial Disputes Act………. 1969 LIC 1424 (Pat.benefits……….” (iii) ………. merely because it refers to the entitlement of workmen to receive compensation u/s. Bansjora v. the notification referring the dispute does not become wholly inaccurate. Ranch & Ors. who interfered with the award of the Tribunal was justified in coming to the conclusion that the case was one of closure covered by SEC.” (Page: 1425. is whether the learned Single Judge.irregularity. Chota Nagpur.The Management………. Gammon India Ltd.factory……….C. and no where in the notice. Bharat Collieries Ltd. 25FFF.DB) “The Petitioner employer is………. 25FF but not u/s.” (Page: 234.C.” (Page: 234. Para: 3) “Mr.Section 33 C (2) of the Act………. 25F as if retrenchment of surplus Labour and therefore held that Sec. 25FFF or the Industrial Tribunal was right in holding that it is a case of retrenchment covered by S. and this may be treated as statutory notice of one month of termination of your service………. (ii) As there was No………. 1967.3J) “………. Labour Court. it is shown or even a word there of was mentioned stating that the termination was occasioned due to the closure of one unit of business. M/s. Para: 2) . 25FFF c) Reference as to applicability of proviso to Sec.The notice as a whole recites that as a result of recession in the volume of work of the company. (iv) ……….O. The notice reads as under: “Due to the reduction in the volume of business of the company as a result of the recession in (sic) services will not be required by the company after the 14th October.848 The Supreme Court held that the notice mentioned the cause of termination as due to recession in volume of work. Para: 2) “notification” “No. P. 25FFF does not become inaccurate merely because it refers to entitlement of compensation u/s.. however. the Court held that such termination is deemed to fall u/s.DB) ¥ 5A. hence payment of compensation and wages for notice period are not conditions precedent to closure. Even apart from this. 25FFF and hence the termination without complying Sec. the termination of service for the reasons mentioned in the notice is not covered by any of the clauses (a).HC) ¥ 5A. 25FFF(2) and Sec. Dehradun & Ors. P. Para: 2) e) Not applicable to an undertaking where there are only 14 workmen (All. provisions of Sec.HC) IV. Banjarwala Tea Estate v.Sec. and petitioner-employee was employed temporarily for that project and the work of the said project is already completed and also there is no functional integrality with the said project and ITIL. Ahmedabad & Ors.. therefore.V... High Court held that the ITIL’s main business is manufacturing and selling telecommunication instruments and also undertaking independent project of temporary nature for installing those instruments including civil works like construction of buildings etc. (3) Union of India & Ors.HC) ¥ 5A. Dist. Union of India & Ors. S. (ITIL) which has more than 1000 workmen.2(oo) which defines retrenchment and it is by now well-settled that where the termination of service does not fall within any of the excluded categories. (b) and (c) of S. It was held that the pilot project was not a separate or distinct activity so as to attract Sec. (2) Regional Labour Commr. (1) Union of India & Anr.HC) f) Not applicable if a specific project is discontinued which is not a separate and distinct activity (Bom. the termination would be ipso facto retrenchment. 25F and 25FFF are not pari materia (S. 1995 II LLJ 541 : 1995 (71) FLR 236 : 1995 I CLR 680 (Bom..CB) F 5A. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. Ranchoddas.852 u/s. 1981 I LLN 371 : 1981 LIC 370 (All. Kotnis & Ors. Hathising Manufacturing Co. It was held that the amount claimed by workmen amounted to wages and not compensation and hence authorities under Payment of Wages Act have jurisdiction and also the number of workmen being only 14. Dinesh Kumar v. 25FFF Attributes of the section 2597 “………. 25N not applicable. Ltd. v.851 On termination of services the employee who was working for Installation and Maintenance Unit (IMU) at Jodhpur. M/s.The recitals and averments in the notice leave no room for doubt that the service of the respondent was terminated for the reason that on account of recession and reduction in the volume of work of the company. 25FFF(1) termination of employment on closure without payment of compensation and without service of notice or paying wages in lieu of notice is not prohibited. 25FF a prohibition is imposed on retrenchment until conditions prescribed by section are fulfilled but u/s. Shriram Sahakari Sakhar Karkhana Kamgar Union & Ors.850 Sugar Factory implemented pilot project for which it employed 6 employees specifically and after some time discontinued the project.HC) g) Applicable to an independent project which is completed since it amounts to bonafide closure (Raj. closure is bonafide and he is only entitled to notice and compensation u/s. It is there indisputably a case of retrenchment” (Page: 236. Attributes of the section a) Paying compensation and notice are not pre-conditions for the section since Sec.C.849 Company was closed without proper notice to all its 14 workmen who claimed wages for the period they were kept out of employment. 25FFF of the Industrial Dispute Act did not apply.C. (Central) Bombay & Anr. v. 1993 (66) FLR(sum) 43: 1993 LIC 678 (Raj. 25M and 25G of Industrial Disputes Act is illegal. (2) D. (4) P. It was not even attempted to be urged that the case of the respondent would fall in any of the excluded categories. challenged the same on the ground that Sec. R. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S. Jamnagar & Anr.CB) . Judge.HC) ¥ 5A.. 25F.. respondent has become surplus. Intervener. 25N was violated as IMU Jodhpur is an unit of India Telephone Industries Ltd. since retrenchment in the ordinary sense connotes discharge of staff as surplusage only in a running industry. 25F. Ltd. Hence it is held that no breach of Sec.But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as the retrenchment. Whereas by S. Though there is discharge in retrenchment and closure. Ltd. but Mr. Labour Appellate Tribunal (S) A I R 1956 All 498 (D). Payment of compensation and payment of wages for the period of notice are not therefore conditions precedent to closure. 2 (00) of the Industrial Disputes Act.. 25F.2598 Chapter VA – Lay-Off and Retrenchment Sec. the clause does not seek to make closure effective upon payment of compensation and upon service of notice or payment of wages in lieu of notice.FB) ¥ 5A. the right to notice and compensation for termination of employment flows from closure of the undertaking.By the plain intendment of SEC. 25FFF (1) a significant difference in phraseology. but by the use of the words “as if the workman had been retrenched” the legislature has not sought to place closure of an undertaking on the same footing as retrenchment under S. in the matter of termination it was also intimated to the workmen that the compensation together with one month’s salary in lieu of notice had been kept ready together with other legal dues and the legal dues were collected subsequently. K.e. v.CB) “It was next contended by Mr. Lal Bavta Hotel Aur Bakery Mazdoor Union v. 25FFF “as if the workmen had been retrenched” cannot be placed on the same footing as the requirement u/s. 25FFF(1). and that under S. 25FFA and 25FFF occasioned merely because the dues were collected subsequently. is. upon closure of an undertaking the settled position of law as laid down by the Constitution Bench in the case of Hathi Singh Manufacturing Co. Pipraich Sugar Mills.” (Page: 6/7. 2 (00) does not comprehend discharge on the closure of business. 25-F. Para: 3) Note: also refer to the following case Sunder Singh & Anr. a prohibition against retrenchment until the conditions prescribed by that section are fulfilled is imposed. Pipraich Sugar Mills’ Mazdoor Union. termination of employment on closure of the undertaking without payment of compensation and without either serving notice or paying wages in lieu of notice.LJ 426 (Bom. the workmen are undoubtedly entitled to notice and compensation in accordance with S. i. In the instant case. 25FFF (1). 25F and SEC. 2007 III LLJ 201 : 2007 (113) FLR 568 : 2007 II LLN 810 : 2007 I CLR 907 : 2007 LLR 637 : 2007 (3) Mah. It is however contended by Mr.C.1978 (52) FJR 484 : 1978 (37) FLR 187 : 1979 LIC 12 (Pat. 25FFF. treating it as retrenchment. (1) of Sec. Tribunal can award compensation for termination of their services. An employer proposing to close his undertaking may serve notice of termination of employment and if he fails to do so. not prohibited.854 Discharge of workmen consequent upon closure is not retrenchment. Umrigar………. Ritz Private Ltd. compensation awarded under the law is not for discharge as such but for discharge on retrenchment and since retrenchment is discharge of surplus it cannot include discharge on closure hence Court overruled the contention that though there was no concluded agreement to pay workmen a share of profits on sale transaction. 25F the constitution validity whereof does not fall to be determined in these petitions certain conditions precedent to retrenchment of workmen are prescribed. Beas Construction Board. & Anr. Hosiery Factory v. compensation could be awarded……….CB) F 5A. 25FFF “There is between the text of S. by SEC. Umrigar that the definition of retrenchment in S. where it was held that retrenchment as defined in S.Our attention has been invited on behalf of the appellant to the decision in J. New Delhi & Ors. On closure of an undertaking.DB) b) Discharge due to closure is not due to surplusage (S. SEC. 1957 I LLJ 235 : 1956-57 (11) FJR 262 : 1957 AIR (SC) 95 (S. By S. 25F as if they had been retrenched. is that the requirement of paying compensation and issuing notice or wages in lieu there of under sub-Sec.853 In matters of paying compensation. The observance of the requirement is not a condition precedent to a valid action of closure of an establishment u/s. he becomes liable to pay wages for the period of notice. 1947 (14 of 1947) is wide enough to include discharge consequent on the closure of business. the workmen are entitled beside compensation to a month’s notice or wages in lieu of such notice. 25F. v.C. 25FFF (1) merely imposes liability to give notice and to pay compensation on closure of an undertaking which results in termination of employment of the workmen……….. . We do not consider it necessary to decide this question as the definition of “retrenchment” in S. Labour Court (II) Kanpur & Ors. The Kanpur Bottling Co. 25-F therein were inserted by the Industrial Disputes (Amendment) Act. Para: 10) “Sections 25-FFA…………. Para: 2) “We are unable to agree with these observations. 14 of 1947 and S.Sec. Mandal & Co.perfectly legal” (Page: 364. 1973 (27) FLR 460 : 1974 LIC 417 (Pat. Pvt. 25FFF Attributes of the section 2599 Umrigar contends that it is erroneous. retrenchment means in ordinary parlance. Para: 2) Note: This case arose prior to the amendment of Sec.” (Page: 364. not for discharge as such but for discharge on retrenchment. as is conceded. 25FFF.DB) ¥ 5A. 25FFF. which must be real and genuine and not malafide and hence termination made on account of closure being not a retrenchment.” (Page: 464.. 25F and it does not render termination on closure of undertaking as retrenchment and hence second proviso to Sec.no ground. termination without payment of retrenchment compensation was held to be justified.undertaking. M/s.workmen. 2 (00) of act. discharge of the surplus.DB) “There are………. Para: 20) e) Closure leads to severance of employer employee relationship and employee cannot be treated as continued in service even if undertaking is restarted (All.” (Page: 365. 1979 (38) FLR 398 : 1979 LIC (Sum) 117 (All. Ltd. D. ………. Calcutta v.” (Page: 241/242. 25F is limited only to issuance of notice or payment of wages in lieu of notice as specified u/s. Though tree is discharge of workmen both when there is retrenchment and closure of business. Para: 17) “………. hence Labour Court has erred in awarding to the workmen. it cannot include discharge on closure of business. the compensation is to be awarded under the law.” (Page: 366. Management of Junkundar Colliery of M/s..” (Page: 242.DB) “The Retrenchment………. 25FFF as to applicability of provisions of Sec.855 The legal fiction envisaged u/s. therefore. State of Rajasthan & Ors.DB) ¥ 5A. Rajasthan Small Scale Industries Employees’ union v. employee is entitled only to notice pay and compensation as per Sec. Para: 8) d) Closure may be of part of undertaking and not whole business (Raj. Their Workman (C) (supra) that this Act has no retrospective operation. 1953 (43 of l953) and we have held in Burn and Co. Para: 14) “The position……….857 Closure of an undertaking leads to severance of the relationship between employer and employee and employee cannot be treated as continued in service after closure even if undertaking is restarted. Sahdeo Thakur & Ors.. 25F is limited only to notice or payment of wages in lieu of notice and does not render termination as retrenchment (Pat.in this case.We are……….. The rights of the parties to the present appeal must. be decided in accordance with the law as it stood on 21-3-1951 when the workmen were discharged.DB) ¥ 5A. wages beyond the statutory provision and its award is quashed. 1993 III LLJ 361 : 1990 (61) FLR 157 : 1990 II LLN 888 : 1990 LIC 1668 : 1990 II CLR 485 (Raj. 2(oo) by the amending Act XLIII of 1953 c) The legal fiction envisaged as to applicability of Sec. v. Ltd. 25C does not apply in case of Sec.DB) .856 Closure of undertaking implies closure of part of the business and not the whole business. and if. v. any dispute arising with reference thereto would. 25-O for more ratios and subject index on closure/closer compensation a) Winding up the company and transferring machinery are not determinative of closure (S. where the business has been closed and it is either admitted or found that the closure is real and bona fide. 1977 Court held that deceased was an employee till his death as contract of service will not automatically terminate on stoppage of manufacturing activities and hence rejection of the claim of nominee of deceased for benefit under Employees Deposit linked Insurance Scheme was held unjustified. if a dispute arises .C.It thus appears………. 1982 LIC 1036 (Guj. Para: 1) “………. L: 49 to Page: 401. (1005 of 1963 (SC) there had neither been winding up of the entire business nor had the machinery or the factory been disposed of and actually the Mills had been reopened only after an interval of a few months and yet it was held that there had been a closure.therefore be allowed.3J) F 5A. 1977.quashed. And that will a fortiori be so. v.” (Page: 239. Para: 3) . Ahmedabad. 25FFF “………. N.3J) “……….858 Though manufacturing activities were stopped on August 12.2600 Chapter VA – Lay-Off and Retrenchment Sec. Criteria determinative for closure Note: also refer to Sec.” (Page: 1037.CB) “Therefore.CB) F 5A.It is difficult to accede to the contention of Mr..Assurance benefit was………. fall outside the purview of the Industrial Disputes Act.C. Pipraich Sugar Mills Ltd v. 1977 and considering these facts and that concerned employee died on September 11.1957 I LLJ 235 : 1956-57 (11) FJR 262 : 1957 AIR (SC) 95 (S. The State of Madras (supra).” (Page: 565.after the closure of the business between the quondam employer and employees. 1……….C.” (Page: 564.per Annexure ‘E’……….if one such can be conceived . Imambhai Gulamhusen Shaikh v. notice of termination had been issued to employees only on November 15. Padmanabha Ayyar v.DB) ¥ 5A. 2(cc) and also Sec. L: 20) f) Closure does not automatically terminate contract of service and hence nominees can claim benefits under Employees Deposit Linked Insurance Scheme (Guj. Para: 2) V.860 To be a closure it should be real and bonafide and then only it travels outside the purview of industrial dispute Act for any type of reference there to. Ltd. as held in K.” (Page: 1036.C.Respondent no. Para: 3) “It is significant that in the case of the Workers of the Pudukottahi Textile Mills. Para: 1) b) Closure should be real and bonafide (S.DB) “………. Civil Appeal No. Their Workmen.859 Winding up of a company and transfer of the machinery are not the criteria to determine the fact whether there has been a closure or not. Kalinga Tubes. Govind Das that the Company must be wound up or that there should have been a transfer of the machinery or the factory before it could be said that the undertaking had been closed down. 1969 I LLJ 557 : 1968 (34) FJR 393 : 1968 (17) FLR 311 : 1969 LIC 90 : 1969 AIR (SC) 90 (S. The Regional Provident Fund Commissioner.” (Page: 400. Pipraich Sugar Mills’ Mazdoor Union. 1963 (7) FLR 389 : 1963 II LLJ 739 (Mad.861 The order for winding up of the company was expressly stayed by Appellate Court considering a scheme for leasing and the lessee continued to run the mill with old employees barring few and there was no evidence that they were recruited afresh and hence it was held that there was no scope to conclude that workers were discharged u/s. Bajeynagar & Ors.DB) ¥ 5A.” (Page: 49.of the Act………. Haryana Seeds Development Corpn. Para: 10) “As regards the……….the permanent workers………..of the mill………. v.DB) ¥ 5A. Official Liquidator & Anr. Para: 5) b) Effect of absence of notice on validity of termination 1. 25FFF.Sec.order of the……….. Jayajothi & Co.the workmen retrenched……….DB) “The official liquidator who………. v. Para: 3) could……….The Mill was………. 25FFF.The tribunal………. Para: 13) . 25F also challenge by the workman to his termination that as per his appointment order he was entitled to three months notice was dismissed on the ground that since chapter VA was applicable workman was entitled to only a month’s notice as was given to him and hence order of Single Judge allowing the writ petition by workman was reversed. 25FFF Notice of closure (Sec. Scheme of leasing (Mad.DB) ¥ 5A.In the present………. 445(3) of Companies Act which provides that winding order once made shall be deemed to be a notice of discharge to employees of the company and hence workers were not entitled to closure compensation u/s. Para: 3) “………. Notice of closure (Sec.” (Page: 395. & Ors. Para: 12) “……….” (Page: 50. 1963 II LLJ 47 (Raj. Bijey Cotton Mill Ltd.workman is dismissed……….” (Page: 55. 25FFF.not complied with. 25FFF(1)) 2601 VI.” (Page: 55.they are “We find that……….” (Page: 50.Sec.” (Page: 55.lieu of notice……….view taken by………. 25FFF and hence order granting 50 percent of wages as compensation to workmen by the tribunal on the ground that closure of mill was without a valid notice and workers should be deemed to be in service was invalid in view of Sec. 25FFF(1)) a) Excludes 1. When Chapter V-A is applicable to the workman he is entitled to one month’s notice & not 3 months’ notice on closure (P&H. Absence of notice does not affect validity of termination (Raj. Rajapalayam v. Pohap Singh & Anr.863 Closure of an entire unit was neither challenged nor shown to be wrong therefore it was held that no exception can be taken to the order of retrenchment on the ground of non compliance with Sec.DB) “………. Para: 4) c) When notice is required 1.three month’s notice. Rashtriya Mill Mazdoor Sangh.It cannot be said………. Para: 3) “……….862 Absence of notice in case of closure does not affect validity of termination of workmen and claim of retrenchment compensation should be determined u/s.is accordingly set aside………..DB) “……….” (Page: 50. 1994 II LLJ 53 (P&H. Ltd. Compensation on closure a) Attributes of closure compensation 1. 25FFF 2. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions. (3) Union of India & Ors. as if the workman had been retrenched”.. & Reclamation Corpn.CB) “For the purpose of harmonious construction………..2602 Chapter VA – Lay-Off and Retrenchment Sec. Notice of closure required even in case of closure due to ‘Force Majeure’ (Ker. 25H but only grants the benefits of notice and compensation as per Sec.C..DB) ¥ 5A. Expression ‘as if the workman had been retrenched’ means workmen are entitled to compensation and notice pay and not re-employment (S. (1) Union of India & Anr.C.In our view. 1978 (52) FJR 451 (P&H. as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with Section 25-F. Raghubir Singh & Anr. 1990 II LLJ 70 : 1990 (77) FJR 17 : 1990 (61) FLR 73 : 1990 I LLN 1054 : 1990 LLR 410 : 1990 II CLR 1 : 1990 (3) SCC 682 : 1991 SCC (L&S) 71 (S. and several Ors.” (Page: 454. Labour Court. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S. Alleppey.. Para: 76) 2. (2) Regional Labour Commr.Section 25-FF provides for compensation to workmen in case of transfer of undertakings………. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. (a) of Sec. Chandigarh etc and several Ors. P. 25F. it would be inconsistent to read into the provisions a right given to workman “deemed to be retrenched” a right to claim re-employment as provided in Section 25-H.866 Discharge order of a workman u/s.the project. (4) P. v. The Punjab Land Devt. Jamnagar & Anr. (Central) Bombay & Anr. Kerala Cashew Staff & Workers Union v.864 Where closure was due to ‘Force Majeure’ workman are still entitled to one month’s notice or wages in lieu thereof as provided in cl. Ranchoddas. Ltd. (2) D. Para: 2) Note: Please see related ratio/s under the above citation in this section The Apex Court in M/s. 1979 I LLJ 485 : 1979 I LLN 604 (Ker. the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections. v. Chandigarh etc. In such cases. be entitled to notice and compensation in accordance with the provisions of Section 25-F.Very briefly stated Section 25-FFF which has been already discussed lays down that “where an undertaking is closed down for any reason whatsoever. Ahmedabad & Ors. v. every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall. Compensation to accompany order of discharge of workman (P&H. Industrial Tribunal.DB) “We are not………. the benefit specifically given to the workmen is “as if the workmen had been retrenched” and this benefit is restricted to notice and compensation in accordance with the provisions of Section 25-F..CB) held that notice and payment of closure compensation are not preconditions to closure which view is reflected in the following ratio .HC) VII. R. Beas Construction Board & Ors. 25F. subject to the provisions of sub–section (2). 25FFF does not confer any right on the workmen in case of genuine closure to re-employment under Sec.. Section 25-H provides for re-employment of retrenched workmen………. Presiding Officer. Hathising Manufacturing Co. (Emphasis supplied).. Intervener.CB) F 5A.HC) ¥ 5A.C.” (Page: 93. 25FFF shall be accompanied by retrenchment compensation and shall indicate amount of compensation payable.865 The words “as if the workman had been retrenched” used in Sec. All the provisions relating to lay off in ss. in the meantime the factory re-opened and it published notice in the newspaper about re-opening of the factory but the workmen were not taken back by the management because none of the workers came forward for re employment and it is held that individual in termination by Regd.DB) 4.” (Page: 249. 1993 III LLJ 361 : 1990 (61) FLR 157 : 1990 II LLN 888 : 1990 LIC 1668 : 1990 II CLR 485 (Raj. State of Rajasthan & Ors. Para: 2) “We are not………. Payment is not a condition precedent to closure u/s. it is by way of equitable relief (S. 1957 I LLJ 243 : 1956-57 (11) FJR 317 :1957 AIR (SC) 121 (S. v.. Haryana Breweries Ltd. N. Thereafter the workmen were paid compensation. Sunder Singh & Anr.Sec.FB) ¥ 5A. A.FB) “In my view………. AND Barsi Light Railway Co. Para: 2) . 1978 (52) FJR 484 : 1978 (37) FLR 187 : 1979 LIC 12 (Pat. 25FFF and need not be paid with discharge notice (Pat. almost in their entirety. & Anr.870 Though compensation was awarded in cases of closure it was by way of equitable relief and enactment of Sec.DB) “There is……….discharge notice. payment of compensation is condition precedent whereas in case of closure it is not a condition precedent but can be made after closure. 25F. Divelkar & Anr. New Delhi & Ors.C.CB) F 5A. Sec.the closure.868 In case of retrenchment. deal with an existing or continuing industry.C. 25-O and Government granted permission on terms and condition that the workmen be given compensation and in the event of restarting the unit the workers who were in employment will be given preference. 25FFF. 25F is a yardstick for standardizing compensation while u/s.” (Page: 489. Hariprasad Shivshankar Shukla & Anr.CB) “………. On failure of conciliation proceeding the failure report was sent to Government. when the closure is real and bona fide ? The point to be emphasised in that connection is that there is no provision (except perhaps s.867 Payment of retrenchment compensation is not a condition precedent for invoking Sec. 25A to 25E are also inappropriate in a dead business. 2007 LLR 257 : 2007 (112) FLR 256 (P&H.. But workmen raised dispute and one of their grievances was that they have not been paid compensation on closure date but paid subsequently which is in violation of Sec. K. Para: 1) ¥ 5A. 25FFF Compensation on closure 2603 3. There was no stipulation that the payment of compensation would be a condition precedent to the closure. The claim of the workmen have been dismissed by the Labour Court which was challenged in writ. Para: 22) ¥ 5A.the project.869 On issuance of notification regarding imposition of liquor prohibition. Ombir Singh & Ors. does the definition clause cover cases of closure of business. Beas Construction Board. D. Joglekar & Anr. 25FF inserted in 1956 by Act XLI of 1956 to which we shall presently refer) which can be said to bring a closed or dead industry within the purview of the Act. Hence it was held that the did not violate any of the provision of Sec.. the establishment sought to close its unit in accordance to Sec. 25FFF and it need not be paid along with discharge notice given by employer on completion of work undertaken by them.” (Page: 366.D.. v. V. 25FFF. 25F by legislature was for standardizing payment of compensation by using a simple yardstick to retrenched employees in a continuing industry.But the fundamental question at issue is. Rajasthan Small Scale Industries Employees’ union v.. A. The provisions of the Act. is not required. 25F of the Act. from the language of the section it is clear that the payment of compensation was not a condition precedent to closure as contained in Sec. v. High Court held that.” (Page: 489. Ltd. HC) ¥ 5A. 1 only was outside its jurisdiction. K. 1970 (38) FJR 144 (Ker. because there was no business for which the workmen could be required. If closure is not due to fraud but for circumstances beyond control of employer. Guntur v. Authority under Payment of Wages Act.” (Page: 347.2604 Chapter VA – Lay-Off and Retrenchment Sec. In these circumstances all that the workmen could claim was compensation for loss of their service and in that respect..HC) . Ltd. holding that Issue No. 25FFF and not u/s. Sathiarthy & Ors. the workmen have received adequate compensation. Ltd.C.872 Where the depots/ branches being part of business are closed and the same is real and genuine and also it is established that the business is not carried elsewhere tribunal has jurisdiction to decide about the relief to be granted to the workmen in the form of compensation hence in the instant case Tribunal was justified in denying to set aside retrenchment on closure and refuse to give direction for reinstatement and what the workmen under the Act entitled was compensation which the company had complied with.” (Page: 363. no question could arise of the retrenchment being set aside by the Tribunal. 1 as a whole was beyond its jurisdiction. when dealing with the preliminary issue. an Industrial Tribunal will be fully competent to adjudicate on it. 25FFF. Para: 10) 7. are quashed. Para: 7) “………. Such compensation does not fall within the definition of wages under the Payment of Wages Act and hence the authority under the Payment of Wages Act has no jurisdiction to adjudicate the claims u/s. it is clear that the Tribunal on that reasoning only came to the conclusion that it was not competent to direct reopening of the 8 depots which had been closed. Guntur.C.” (Page: 363.873 Where a company has been closed down under the orders of the Court and such orders were not as a result of fraud or collusion. the Tribunal expressed its decision in the interim award in general words.3J) “Of course.871 The compensation payable to the workman u/s. the question can always arise as to the relief to which the workmen of that branch or depot are entitled and if such a question arises and becomes the subject-matter of an industrial dispute. 25F. 25FFF on account of closure is by virtue of the fiction created by the statutory provision and not due to termination of services. 25FFF 5. came to the finding that the closure of these depots was real and genuine………. v. Para: 1) “………. Compensation but not reinstatement is the relief to workmen in case of genuine closure (S. 1970 I LLJ 343 : 1970 (37) FJR 231 : 1970 (20) FLR 269 : 1970 LIC 755 : 1970 AIR (SC) 860 (S. Fajale Hussain v.the orders passed by the………. If the reasoning in the interim award is taken into account.. so that the Tribunal should have held that the first part of Issue No. it must be held that the business of the company was closed down under the circumstances beyond it’s control and the workmen of the company would be entitled only to the benefits laid down u/s. It is unfortunate that. Ltb.are also quashed.disputes Act.. compensation u/s. The Tribunal could not ask the Company to re-employ or reinstate the workmen. The Management of Indian Leaf Tobacco Development Co. Workmen of the Indian Leaf Tobacco Development Co. New Era Manufacturing Co.3J) F 5A.” (Page: 346.on the finding that there was a genuine closure of the business that used to be carried on at the depots. if a Company closes down a branch or a depot.DB) “The compensation payable………. though under a different guise……….If the same business had been continued. as we have indicated above. thus. The orders passed by the Payment of Wages authority as well as the decisions in the appeals by the Additional District Judge affirming them. 25FFF and not u/s. 25F (Ker. Compensation does not fall within the definition of wages u/Payment of Wages Act & authority thereunder cannot adjudicate claims (MP.DB) ¥ 5A. Para: 2) 6. in this case.The Tribunal. 1966 I LLJ 361 (MP. accepted meaning of the word ‘retrenchment’. AND Barsi Light Railway Co. Joglekar & Anr. cannot be treated as expenditure incurred by assessee company for the purpose of business hence not allowed to be deducted from profit of the relevant years. Commissioner Income-Tax.DB) “If goes without saying………. Ltd.Sec. If the intention of the legislature was to given statutory effect to those decisions which awarded compensation on real and bona fid closure of business.” (Page: 250.” (Page: 463. Chandigarh v.” (Page: 102. Para: 2) “The decision………. Coimbatore Premier Corpn. Hariprasad Shivshankar Shukla & Anr.” (Page: 461. Para: 6) . 37(1) of Income Tax Act.876 Retrenchment compensation payable on closure of undertaking being not an expenditure incurred for carrying on business held to be not an admissible deduction u/s. the legislature standardized the payment of compensation to workmen retrenched in the normal or ordinary sense in an existing or continuing industry. Chandigarh & Ors. 1957 I LLJ 243 : 1956-57 (11) FJR 317 :1957 AIR (SC) 121 (S. 25F does not bring closure within the purview of retrenchment since it is awarded as an equitable relief adopting the simple yardstick of length of service to standardize the amount of compensation. though a number of Labour Appellate Tribunals awarded compensation to workmen on closure of business as an equitable relief for a variety of reasons. Commissioner of Income-Tax. v.Pvt. 25FFF Compensation on closure 2605 8. Amravati v.C. Not being business expenditure cannot be deducted from profit of the relevant year (Mad.. Presiding Officer..the assesses.CB) F 5A. AND Divisional Controller. Para: 4) ¥ 5A.accordingly.C. Para: 1) Note: See also The Punjab Land Development & Reclamation Corporation Ltd. 1977 (51) FJR 314 (Mad. v. Madras-II. Commissioner of Income-Tax.. Srinivasan………. Divelkar & Anr.. 1961..of the Act. every requirement of which is fulfilled by the ordinary. N. K. it had acquired no special meaning so as to include discharge of workmen on bona fide closure of business.DB) ¥ 5A. Ltd. the legislature would have said so instead of being content by merely adding a definition clause.. v.874 Mere payment of compensation on closure as per Sec.” (Page: 465. Para: 1) ¥ 5A. Ltd.DB) “Mr. It is reasonable to assume that in enacting S. Ganesan Pvt. the legislature did away with the perplexing variety of factors for determining the appropriate relief in such cases and adopted a simple yard stick of the length of service of the retrenched workmen. P.877 Closure compensation not deductible u/ Income Tax Act as it is not to be treated as revenue expenditure.” (Page: 316. Closure compensation as per Sec. 25-F. 25F will not make termination as retrenchment since procedure u/s.N. 2000 (97) FJR 100 (Mad.such closure. 1992 (65) FLR 460 (Mad. Chandrashekhar Maribhau Dehmukh & Anr. (In Liquidation) v.CB) which rubs the field today 9.CB) “……….the business.DB) “under……….875 Closure compensation being payable only when business is closed. Para: 3) “Applying………. AND 1990 II LLJ 70 : 1990 (77) FJR 17 : 1990 (61) FLR 73 : 1990 I LLN 1054 : 1990 LLR 410 : 1990 II CLR 1 : 1990 (3) SCC 682 : 1991 SCC (L&S) 71 (S.C. 25F adopted as a yardstick to compute closure compensation (S. Venkates Color Works v. Maharashtra State Road Transport Corporation. D. A.Retrenchment means discharge of surplus workmen in an existing or continuing business. Labour Court. K. Parthasarathy & Anr. Para: 3) “The Writ application……….. the legislature has related the compensation payable on termination of employment to the period of service of the employee. Hathising Manufacturing Co. Bijaynagar & Ors. Para: 3) .879 Whether an employee has been in continuous service for one year from the date of entry is to be determined before he can be held to be entitled for compensation u/s. 25F. 1965 II LLJ 83 : 1965-66 (28) FJR 489 (Raj. v. A. Para: 2) “By his continued employment. Management of Standard Motors Products of India Ltd..CB) F 5A.provisions of S. Rashtriya Mill Mazdoor Sangh. may have to compete for employment at a lower level in branches to which he may be by experience or aptitude. not fitted. v. Hence the part of the award of the Tribunal granting compensation u/s.. Para: 4) b) Continuous service is to be determined before workman can be held entitled to compensation (Mad. (2) Regional Labour Commr. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S.” (Page: 91/92. it cannot be held that doing so was unreasonable and violative of Art. Shri A. (Central) Bombay & Anr. in the light of these considerations..” (Page: 92.880 As legislature’s intention in relating the compensation payable on closure of undertaking to length of service was to assist workmen who on termination of services would have to compete for employment at lower level for which he may not be fit or to seek employment in a similar job but at lower level.DB) ¥ 5A. 19(1)(g). Computation of period of service for purpose of compensation a) Definition of Continuous service u/s. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. (2) D.is maintained.. An employee remaining employed in an industry for an appreciable length of time acquires experience and some degree of aptitude in the branch in which he is employed and his experience in that branch qualifies him to promotion and to receive wages at a higher level.C. 25B applicable in case of closure (Raj. If. or to seek employment in a job similar to the one terminated at a lower level. 25FFF and compliance with other conditions of continuous service and period of illegal strike cannot be considered.2606 Chapter VA – Lay-Off and Retrenchment Sec.C. R. M/s. Ltd.. P.2J) c) Length of service to be the basis for compensation to compensate the workman who is to be content with jobs at lower level after termination (S.and SEC.CB) “Compensation related to the length of service of the employee is also not unreasonable. 25FFF. 25FFF VIII. 1986 I LLJ 34 : 1985 (67) FJR 417 : 1985 (51) FLR 459 : 1985 II LLN 830 : 1986 LIC 101 : 1986 AIR (SC) 462 : 1985 (4) SCC 78 (S. 1979 LIC (Sum) 136 (Mad.C. Ltd.878 The definition of continuous service u/s. he reaches seniority in the cadre of employment. Jamnagar & Anr. (1) Union of India & Anr. Intervener. is maintained.” (Page: 8. Ahmedabad & Ors. 25FF and 25FFF as these sections introduced by an amendment are to be read as a whole with Sec. with chances of promotion.DB) Note: Refer to the case of The Management of Standard Motors Products of India Ltd.” (Page: 91.DB) ¥ 5A. (4) P. v. v. & Anr. (3) Union of India & Ors. the provision cannot be regarded as unreasonable.” (Page: 8. Shri Bijay Cotton Mills.25. Para: 3) “It is significant………. Parthasarathi & Anr. on termination of employment. 25FFF to workmen who had completed 240 days services prior to the second closure. 25B applies also to Sec. Ranchoddas.DB) “It is obvious that………. the benefit of which he loses by sudden termination of employment. The workman. The High Court in a writ quashed the award and held that the findings of first award would operate as resjudicata as that award had held that the workmen would only be taken as fresh hands upon reopening and as such the Industrial Tribunal should not have gone to the question of compensation by counting the services prior to first closure also.fresh decision. rejected the demand for compensation as Sec. Bijaynagar & Ors.883 The textile mill was closed on 1. 25FFF Computation of period of service for purpose of compensation 2607 d) Period of illegal strike to be excluded in computing 240 days (S. workers should be given priority with regards to payment of wages. Shri Bijay Cotton Mills. v. Textile Labour Assoication v.5.DB) “We have knowing quoted………. Para: 3) “The Second I..881 The workmen continued strike even after being prohibited by the Government and hence it was closed.it is debarred from giving fresh decisions on the point covered by the principles of resjudiata.T………. Official Liquidator of Jubilee Mills Ltd. Period of closure to be included in length of service for calculating retrenchment compensation.” (Page: 35. they were entitled to closure compensation irrespective of they being on illegal strike. 25FFF had not come into force then. Upon adjudication the Tribunal ignoring the binding effect and finality reached of the first award directed to take into account the services even that of the period prior to first closure for computing continuous service while paying compensation u/s. Interest on the above dues not to be granted for period after relevant date unless realization of assets produces surplus and interest for the prior period due to be governed by the terms of contract.” (Page: 89.6.DB) ¥ 5A.882 During the winding up of an undertaking. retrenchment compensation and gratuity. the period of service rendered by an employee prior to first closure cannot be considered for computing continuous service for the purpose of compensation on second closure (Raj.2J) F 5A. 2000 (96) FJR 159 (Guj.. The mill was reopened on 15. Notice pay and bonus are not covered for priority payment as the same is excluded in definition of “wages” under Industrial Dispute Act.1954 and old workmen were taken as fresh hands. even if the period of illegal strike is excluded. Ltd. In adjudication of the dispute the Tribunal held the closure real and bonafide and rejected the demand for reinstatement as a permanent hand upon reopening of the Mill in future and also.1957. Para: 5) . 1965 II LLJ 83 : 1965-66 (28) FJR 489 (Raj.1953.HC) ¥ 5A.C.4.2J) “………. 1986 I LLJ 34 : 1985 (67) FJR 417 : 1985 (51) FLR 459 : 1985 II LLN 830 : 1986 LIC 101 : 1986 AIR (SC) 462 : 1985 (4) SCC 78 (S.In the present case. the number of days during which the workman actually worked tinder the employer would be found to be more than 240 days. 25FFF. Shri A. Para: 2) e) Period of closure is to be included in length of service for calculation of closure compensation (Guj.. Relevant date for computation of dues would be the date of 1st appointment of liquidator or the date of winding up order. v.” (Page: 88.C.HC) f) When an establishment was closed twice. Parthasarathy & Anr. Rashtriya Mill Mazdoor Sangh. Since the workmen who have completed 240 days immediately before the closure excluding the period of illegal strike were deemed to be in continuous service. The Mill was closed again on 23. The Management of Standard Motors Products of India Ltd. That being so it has to be held that the workmen were in continuous service for a period of one year immediately before the date of closure……….Sec. 25FFF.C.. 25FFF becoming enforceable (Punj. b) Payable as per first part of Sec. Labour Court.. 25FFF being made retrospectively enforceable from 28th Nov. Amritsar v. 1957 were entitled to compensation as if they had been retrenched subject to the limitations of Sec.when we………. S. On workmen’s application Single Judge ordered the employer to pay compensation to the workmen as per first part of Sec. The Presiding Officer. As soon as this is done he becomes entitled to notice and compensation in accordance with the provisions of S. Para: 2) “The case on……….1962 I LLJ 565 : 1961 (3) FLR 23 (Punj. the workmen who were discharged on account of the closure of the mill from 10th Jan. the workman has to only establish that he has worked for not less than 240 days immediately before closure but not 240 days in each year during the period preceeding closure. A Shanmugam & Ors. 1956. In our opinion the issue had been properly framed. Ramakrishna Ramnath v. on Page:……………….. Closure compensation when payable a) When date of discharge is after date of Sec.” (Page: 314.of the employer.C. Burden of proof in respect of claim for closure compensation a) Is on the workman 1. Nagpur & Anr. No notice of closure nor any compensation paid to workmen as per Industrial Disputes Act.to receive.” (Page: 1209. The dispute between employer and workmen regarding payment of compensation is an industrial dispute and could be referred to a tribunal for adjudication. To prove 240 days of service in a year immediately preceding closure (S.886 The employer closed the company as the financing bank stopped giving money to him and for accumulation of stocks. v. Maharaja Weaving Mills.as prayed for.” (Page: 1222. 25FFF would apply.DB) ¥ 5A. Anthony Raj & Anr.DB) “The learned……….DB) ¥ 5A. 25–F as if he had been retrenched subject to the provisions of sub–s.884 In order to claim the benefit of notice and compensation on closure. (2)……….2608 Chapter VA – Lay-Off and Retrenchment Sec. 25FFF but not as per proviso where establishment is not closed for circumstances beyond the control of employer (Mad. Para: 19) X..885 The provisions of Sec. 1995 II LLJ 1208 : 1995 (70) FLR 508 (Mad. 25FFF IX. Division Bench upheld the order of Single Judge since the reasons of closure were not due to unavoidable circumstances which was beyond the control of employer. 25FFF but not as per proviso.of the Act………. Para: 27) . 1970 II LLJ 306 : 1972 (41) FJR 209 : 1970 (21) FLR 159 : 1973 LIC 87 : 1970 (3) SCC 67 (S.” (Page: 1222.DB) Note: For Text please refer Ratio No:………. Para: 26) “In the circumstances………. Section 25–FFF lays down that in order that a workman may claim the benefit of the provision he must establish that he has been in continuous service for not less than one year in that undertaking immediately before the closure.2J) “The contention that a workman has to establish that he had worked for 240 days in all the years for each year the compensation was claimed is without force. It is significant to note that by the first issue before the Labour Court the applicant was only called upon to prove that she had been in continuous service of the appellant for not less than 240 days immediately before the closure.2J) F 5A. Being aggrieved.. The State of Punjab & Ors. employer appealed to Division Bench contending that second part of Sec. .DB) d) When there is mere gherao but no threatening speech or physical injury as proof of circumstances beyond control to carry business (S.DB) “A statutory closure……….3J) F 5A.” (Page: 128. there was nothing to furnish justification that the working of the factory would involve unusual exertion or expense nor was any officer of the company produced before the Tribunal to give any other facts and circumstances from which it could be inferred that it appeared to the management that it was not possible to carry on the business it cannot be held that the closure was due to unavoidable circumstances beyond the control of the appellant.888 In absence of any incident involving physical violence during gherao or any period preceding gherao and any speech threatening or inciting bodily injury and with the exception of gherao. Kalinga Tubes.further orders. Para: Last) “After considering the entire facts and circumstances of the present case we are not satisfied that the closure of the undertaking was due to unavoidable circumstances beyond the control of the appellant.compensation.DB) ¥ 5A. N. Offical Liquidator. Calcutta. Para: 1) “The circumstances which had been proved in the Calcutta case were much stronger than the present case in which there had certain been a gherao for the period mentioned previously but there.” (Page: 565. the employee whose services have been terminated upon such closure can claim compensation u/s. L: 2) Note: also refer to the following cases-for text and ratio see infra Ram Hari Dev v. State of Orissa & Anr. v. 1970 (38) FJR 123 : 1970 (21) FLR 169 : 1970 LIC 856 (Ori. therefore.887 When the Khadi Board which is an industry is dissolved. 1967 nor any Director or other principal officer of the company was produced by the Management before the Tribunal to give any other facts and circumstances from which it could be inferred that it appeared to the Management that it was not possible to carry on the business by acting in a business-like way and without unusual exertion. Para: II) “Mr. 25FFF and he can seek appropriate remedy under the Industrial Disputes Act. High Court. Thus compensation would be payable as if the undertaking was closed own “for any reason whatsoever” within Section 25FFF (1) of the Act. L: 38 to Page: 129. Chaudhury quite properly and fairly accepts…………. had been no incidents involving physical violence nor a series of incidents of any kind for any length of period preceding the gherao. 1969 I LLJ 557 : 1968 (34) FJR 393 : 1968 (17) FLR 311 : 1969 LIC 90 : 1969 AIR (SC) 90 (S.3J) “The only question which now remains to be determined is whether the undertaking was closed for “any reason whatsover” or it was “on account of unavoidable circumstances” beyond the control of the employer……….” (Page: 128.” (Page: 565.” (Page: 565.” (Page: 567. Mahapatra.In the notice served by the Management in the present case it was claimed that the undertaking had been closed down under the proviso to sub-section (1) and actually compensation has been paid to the 613 workers in accordance with the porviso.C. No speech had been delivered by any of the representative of the workers threatening or inciting bodily injury. 1965 II LLJ 230 : 1965-66 (28) FJR 300 (Cal. Their Workmen. L: 12 to 16) “We therefore………. the Manager (Administration) who had issued the notice dated October 3. 25FFF Closure compensation when payable 2609 c) When services of an employee were terminated on dissolution of Khadi Board (Ori. Ltd. 25FFF(1) of the Act and not under proviso to the section.C. Thus compensation would be payable as if the undertaking was closed down “for any reason whatsoever” within Sec. Sisir Kumar Mohanty v. K. With the exception of the gherao. there was nothing to furnish justification for the Management for thinking that the working of the factory would involve unusual exertion or expense.Sec. Para: 2) .. 2J) F 5A. held that the appellants are entitled to payment of compensation in accordance with Section 25F(b) of the Industrial Disputes Act………. 25FFF e) If workman has worked for 240 days of service and after deducting illegal strike period (S. but they even used force against other Workmen to prevent them from working in the factory... Para: 2) “It is not disputed that at the time when the services of the appellants were retrenched. they in a writ petition before High Court held entitled for compensation in accordance with Sec. he was held to be entitled to closure compensation. Para: 7) g) When society goes into liquidation (S.2J) “……….C. Para: 2) f) Payable under Proviso to Sec. & Anr. v. K. Societies Act went into liquidation and workmen were retrenched.P. Coop.890 When worker refused to work and prevented others from working and factory is closed for unavoidable reason and the compensation is paid as per the proviso to Sec.” (Page: 35.L. Sur Iron & Steel Co. the Tribunal was again right in holding that the case of closure of the factory by the Company fell within the scope of the provision had already been paid to the Workmen. 1971 I LLJ 570 : 1969 (18) FLR 223 : 1970 (3) SCC 618 (S. Ltd. The Society had gone into liquidation under Section 64 of the Act and a Liquidator was appointed.C.. 25FFF even if closed for unavoidable circumstances/reasons beyond employer’s control (S.2J) “………. If. 1683.2J) F 5A.2610 Chapter VA – Lay-Off and Retrenchment Sec.891 Where a society registered under A..C. Pvt. no compensation as required under Section 25F(b) of the Industrial Disputes Act was given to the appellants……….” (Page: 575. the Society retrenched the services of the appellants by order dated October 9. the closure was quite clearly for reasons beyond their control Consequently. 25FFF.In the present case. Sur Iron & Steel Co. took the step of refusing to work themselves & prevented other Workmen who were willing to abide by the settlement & to join duty in order to enable the factory to carry on its work.C. 2001 I LLJ 1682 : 2002 LIC 119 : 2004 SSC(L&S) 271 : 2003 (10) SCC 260 (S. Shri A. Not only did they thus start a strike.P. Under such circumstances.” (Page: 1683. v. 25F(b) of the Act and in S. Sai Sharma & Ors. they were not entitled to any relief. Para: 3) “The High Court while disposing of the writ petition. the number of days during which the workman actually worked under the employer would be found to be more than 240 days.889 If a workman who was on illegal strike.C. Parthasarathy & Anr. even if the period of illegal strike is excluded.R. That being so it has to be held that the workmen were in continuous service for a period of one year immediately before the date of closure……….P. Para: 4) . 1986 I LLJ 34 : 1985 (67) FJR 417 : 1985 (51) FLR 459 : 1985 II LLN 830 : 1986 LIC 101 : 1986 AIR (SC) 462 : 1985 (4) SCC 78 (S. conciliation or adjudication. v.The Workmen instead of seeking redress by raising an Industrial Dispute. Government of A..” (Page.. workmen are not entitled to any other relief. the Supreme Court ordered in terms agreed between the parties that 3 months salary to be paid within a period of 3 months.H.2J) “It is not disputed that the appellants herein were its employees. the management felt that it was not possible to carry on the work & to run the factory & decided to close it. & Ors.. M/s.” (Page: 1683. in these circumstances. worked for 240 days preceding the date of closure even after deducting the period of illegal strike. Ltd. Pvt.2J) F 5A.C. Workmen of M/s. The Management of Standard Motors Products of India Ltd. (sic) 1991. Ltd..Act by virtue of the provisions of S.P. v.. v. Act and the Central Act and the beneficent provisions of the latter Act can be availed of by labour even in their absence in the U. AND Ramchandra Tukaram Jadhav & Ors. 25FFF(1). v. v. Para: 32) “Section 6-N of the U.P. Section 25-J of the Central Act advisedly leaves no scope for controversy in the matter……….. Ltd.DB) John v. v.. The Tribunal was.. Coir Yarn Textiles.. Fifth Industrial Tribunal & Ors..P.3J) “The next crucial question that will then arise for consideration is whether the concerned employees are entitled to relief under Section 25-FFF of the Central Act since there is no similar provision in the U. 1994 II LLJ 564 : 1993 (66) FLR 815 : 1992 II LLN 658 : 1993 II CLR 99 (Cal.. 25FF F which section has supplied the lacuna for absence of similar provision under U. including U. Act and therefore there is no repugnancy between U. Ltd.Sec. Belapur Sugar Mills Ltd. 1966 II LLJ 59 : 1965-66 (29) FJR 447 : 1966 (12) FLR 69 (Cal. Fourth Industrial Tribunal & Ors.P. 25-F of the Central Act………. 25FFF or the proviso there to so as to determine the quantum of compensation including the onus on employer to justify payment of lesser compensation under the proviso to Sec. Ltd. 1960 I LLJ 304 (Ker. Workmen of the Straw Board Manufacturing Co.P. 25-FFF did not apply to the employees concerned. Ltd. 25J of Industrial Disputes Act and hence it was held that it was not correct for the tribunal to hold that workmen were not entitled to compensation u/s. 1960 II LLJ 140 (IT) Daya Shankar Pandey v. 25FFF Closure compensation when payable 2611 “When the matter was taken up today. therefore.. 1980 (40) FLR 298 : 1982 LIC 27 : 1981 I LLN 87 (Bom.” (Page: 511.. Bhattacharjee Rubber Works Workers Union & Ors.. (1) of Sec. v.P.HC) Bhattacharjee Rubber Works Pvt. Belapur Sugar Mills Ltd. Ltd.892 Workmen whose services were terminated consequent upon the closure of a unit are entitled to compensation u/s. 3 is agreeable to pay 3 months’ salary to each of the appellants within a period of 3 months from today. Para: 7) Note: the following cases may also be referred in this context. Act and Central Act in view of Sec. 1960 II LLJ 198 : 1960-61 (18) FJR 215 (Cal. 25-FFF(1) of the Central Act. 25-FFF (1) of the Act. 1966 II LLJ 59 : 1965-66 (29) FJR 447 : 1966 (12) FLR 69 (Cal.” (Page: 1683.. Act does not make any provision for compensation in the case of closure and the Central Act has supplied the lacuna. Act……….Since the U. & Anr. learned Counsel for respondent No. Their Workmen. For ratios and text Please see related ratio/s under the above citation in this section Said & Son Pvt. Act. Ltd v. & Anr. Even if there may be the slightest doubt in the matter.P.HC) Presidency Jute Mills Co. not correct in holding that S. 25FFF and therefore the matter was remanded back to the Tribunal for adjudication of applicability of sub-Sec.DB) Ramchandra Keshav Gadhave & Ors. 25J (S. Fourth Industrial Tribunal & Ors.C. 1974 I LLJ 499 : 1974 (28) FLR 357 : 1974 (45) FJR 266 : 1974 II LLN 102 : 1974 LIC 730 : 1974 SCC (L&S) 406 : 1974 AIR (SC) 1132 (S.DB) h) Payable even in the absence of provision for closure compensation in the State Act by virtue of Sec.P. Straw Board Manufacturing Co. Act is identical with S. Alleppey. as already noted. 1964 I LLJ 137 : 1963 (7) FLR 18 (Cal.” (Page: 510/511. State of West Bengal & Ors.HC) Trisul Biri Factory v. 3 stated that respondent No. compensation to their employees under S. Indeed the management has paid. which is acceptable to the appellants. M/s.DB) Haji Ismail Said & Son Pvt. The Central Act applies to the whole of India. Para: 33) .C. there is no repugnancy between the U.3J) F 5A. Para: 3) “As a consequence .. Act it will be proper for the Labour Court to examine the claims under section 25-FFF of the I.. 1967 with different conditions of service and there was break in the condition of service.. admitting the writ petition. Haryana Seeds Development Corpn.894 Subsequent to scheme of arrangement to close down the company.2J) F 5A..So far as the claim against the Corporation is concerned this Court made it clear that the workers who were taken over by the Corporation were given fresh appointments from June 5.2J) “………... v. The Managing Director.. The Presiding Officer & Anr.. v. Act.. if an application is made by the workmen or by the union on their behalf before a Labour Court under section 33-C (2) of the I.In case where an undertaking is closed down by reason of financial difficulties as was the position in the present case. the transferee even as a successor would be liable neither to pay compensation not to re-employ the workmen whose employment stood automatically terminated on the transfer.2J) “The admitted position . of each of these workmen and award compensation accordingly which shall be payable by the Union of India and to those proceedings the erstwhile company and the Union of India shall be parties. conclusion could be drawn that the Corporation is a successor that matter will not be settled because. the view taken by the Tribunal that the Corporation is not liable to pay either compensation or to absorb the Workmen in question is unexceptionable...D. Therefore..2J) F 5A.” (Page: 824. 1997 II LLJ 823 : 1997 (91) FJR 539 : 1997 (77) FLR 21 : 1997 IV LLN 111 : 1997 LIC 2912 : 1997 II CLR 395 : 1997 LLR 806 : 1997 AIR (SC) 3086 : 1997 (10) SCC 727 (S. etc.C. though statutorily binding on the transferee as a successor.893 Because of closure of seeds sales counter of Haryana Seeds Development Corp.D. Here there has been no transfer of the undertaking form the Company to the corporation as found by the Tribunal and upheld by the High Court because by order made by the Company Court the scheme of arrangement was to close down the Company and what was taken over by the Corporation was a separate arrangement………. Ltd. 2001 I LLJ 730 : 2001 (99) FJR 140 : 2001 (88) FLR 976 : 2001 II LLN 620 : 2001 I CLR 695 : 2001 SCC (L&S) 513 : 2001 SCC (3) 47 (S.. Sch 3 Item 10 j) If closure is due to financial difficulties which is not beyond employer’s control (S.. it was taken over by the corporation which absorbed some of the workers as fresh employees and in a claim by workmen not absorbed by the corporation.. 25FFF i) When termination is due to closure of department but not amounting to retrenchment (S..C.C.. the termination of services of workmen has been held as not amounting to retrenchment but due to closure u/s. Para: 10) . Therefore.. Even assuming that on such investigation. 25FF whereas the Apex Court held that it was not a transfer but closure due to financial difficulty which is not beyond the control of management and hence workers are entitled to compensation u/s. it cannot be deemed to have been closed down on accounts of unavoidable circumstances beyond the control of the employer. 25FFF and they are entitled to closure compensation only.. Union of India & Ors.. Ltd..2612 Chapter VA – Lay-Off and Retrenchment Sec...” (Page: 734/735.. Where by operation of law the employment of Workmen stands terminated.” (Page: 824. As rightly held by the High Court. it may be difficult to sustain it on the basis of term in a settlement prohibiting retrenchment. Inland Steam Navigation Workers Union & Anr. the Labour Court and High Court held that they are entitled to compensation u/s. 25FFF(1). by special leave.C. the Workmen in question are entitled to compensation in case of closing down of an undertaking. Para: 5) Note: Please see related ratio/s under the above citation u/s. Indian Railway Construction Co. 1998 II LLJ 40 : 1998 SCC (L&S) 329 : 1999 AIR (SC) 1532 : 1997 (11) SCC 641 (S.2J) “Since this was a project for construction of some railway lines. v.” (Page: 787.Sec. Ltd.” (Page: 786. Once the project is completed the service of the incumbent comes to an end. 2007 I LLJ 773 : 2007 (112) FLR 847 : 2007 II LLN 31 : 2007 LIC 2783 : 2007 I CLR 688 : 2007 (1) SCC (L&S) 725 : 2007 AIR (SC) 2230 : 2007 (2) SCC 513 (S..896 Where the compensation u/s.C. it is held that in such circumstance one cannot find any fault with the employer. 1973 (43) FJR 192 : 1973 (26) FLR 136 : 1973 I LLN 208 : 1973 LIC 461 : 1973 SCC (L&S) 195 : 1973 AIR (SC) 878 : 1973 (3) SCC 564 (S.HC) Note: Please see related ratio/s under the above citation in this section .2J) Management of Dandakaranya Project. 25FFF(2) but not regularisation. State of West Bengal Ors. Para: 19) m) Closure compensation when deemed paid 1. 25FFF was offered following closure of the establishment to the workmen. v.C. & Ors.895 When workmen employed in a project meant for constructing a railway line were terminated on the completion of the project. the only relief they are entitled to compensation as provided u/s. But the legislature in its wisdom has provided relief for such class of workmen………. therefore. Their Workmen & Ors. Para: 17) “………So far as the termination of the incumbents is concerned after completion of the project they have no right to continue.C. 1997 I LLJ 833 : 1997 (90) FJR 299 : 1997 (75) FLR 357 : 1997 II LLN 39 : 1997 LIC 858 : 1997 II CLR 42 : 1997 LLR 193 : 1997 SCC (L&S) 434 : 1997 AIR (SC) 852 : 1997 (2) SCC 296 (S.HC) Waxpol Industries Ltd. one cannot find fault with the employer……….3J) Management of Hindustan Steel Ltd. Koreput v. Workmen through Rehabilitation Employees Union & Ors. Indian Railway Construction Co. & Ors. the rigour of Sub-section (1) for seeking a permission of Government is not required in the present case. That is a different matter altogether. 2006 (111) FLR 732 : 2006 III CLR 298 (Cal.3J) “………. Lal Mohammad & Ors..Counsel for the workmen stated that some of them have not accepted the compensation.. Workmen of State Trading Corpn.C. 25FFF Closure compensation when payable 2613 k) Payable even if single unit is closed since the word ‘undertaking’ covers even closure of a single unit (S. Para: 6) n) Effect of payment of closure compensation 1. AND Ravindra Nath Mishra v.3J) F 5A. Shortfall of period of notice or compensation will not render termination bad on that count.2J) Note: Please see related ratio/s under the above citation in this section F 5A.” (Page: 42. Government of India v. If the compensation has been offered and not accepted. v. Ltd. Employer-employee relationship comes to an end (Cal.C.C.. When workmen offered though refused to accept it (S.C.. They are only entitled to notice and compensation to be determined under Section 25-F. but they refused to accept the same. & Anr.3J) Note: Please see related ratio/s under the above citation in this section l) Payable when project work comes to an end (S.. C. So.e.f 1st September 1955 and Sec. The compensation is not meant for them as the blow has not fallen on them.DB) XI.. Closure compensation when not payable a) When workmen were retrenched before Sec.There after the petitioners………. Eighth Industrial Tribunal & Ors. Para: 1) “……….898 As workmen were retrenched w.” (Page: 107. Para: 1) “……….DB) “………. Both Labour Court and Single Judge affirmed the closure. High Court upheld the closure and held that the same would not render the closure illegal or invalid and directed employer to pay compensation to the workman within 2 months. Being aggrieved.This aspect requires close scrutiny. Para: 2) .It appears that……….The question then is: who are the employees who lost their employment as a result of the closure? The Deputy Labour Commissioner must identity them i. Para: 3) b) On termination or retrenchment but not when employee is continued de facto in other section (S.2J) “……….this application………” (Page: 446. 1982 SCC (L&S) 107 : 1982 (1) SCC 493 (S.” (Page: 444.1 September 1955……….DB) ¥ 5A.C.. State of Bihar & Ors.897 Employer after giving statutory notice of 60 days and after paying the statutory compensation closed the establishment.2614 Chapter VA – Lay-Off and Retrenchment Sec. not a superficial paper verification. 25FFF came into force (Pat.” (Page: 443. The enquiry there is not as to how many were shown on the attendance rolls or registers of the section on the date of closure. 33C(2) to compute retrenchment compensation is ultra vires. but no compensation is payable to those who were de facto continued in other section and merely being on rolls on date of closure does not entitle payment for compensation and hence the matter was remanded for investigation as the right for compensation rests on those who really suffered the real blow of closure and not every employee who otherwise not a victim there of.” (Page: 444. Closure does not become illegal by non-payment of compensation to four out of 59 workmen (Cal.. Workmen.899 Compensation due to closure was payable to those employees who due to the closing down of the section of the factory lost their employment and also to those who were retrenched due to closure but given fresh employment in other unit. illegal and void. 25FFF o) Effect of non-payment of closure compensation 1. merely because they were on the roster of the locked–out unit on the closure date they were not entitled to compensation………. M/s.DB) ¥ 5A. V.the workmen concerned………. 4 workmen out of 59 workmen moved High Court contending that the closure was bad since they had not received compensation.e. Balwant Motors v.in may 1955………. Madan Lal Budhia & Ors. for some might have been given alternative jobs in some other section of the factory. 2006 II LLN 580 (Cal.2J) F 5A. those who became victims of the closure. v. Para: 1) “We accordingly………. Workmen (represented by South Eastern Roadways Workmen’s Union) & Anr.1 September 1955………. 25FFF came into force with retrospective effect from 28th November 1958 concerned workmen are not entitled to claim compensation and hence Government notification constituting Labour Court u/s.1960 II LLJ 443 (Pat. It might even be that while formally terminating their employment in the closed section they might have been de facto continued in another section. consequently.Sec.DB) Note: Please see related ratio/s under the above citation in this section e) Though Letter Press Section was closed since it is not an independent part of the establishment as workmen were interchangeable between Letter Press section and Offset Press unit (Del.S. Para: 14) “The position………. the Company may take in a Badli workman for the purpose. they are not entitled to any compensation for the closure. Sidhu & Ors.HC) Note: Please see related ratio/s under the above citation in this section f) When claimant is a badli workman (S. 1977 II LLJ 524 : 1977 (51) FJR 184 : 1978 (36) FLR 53 : 1977 II LLN 513 : 1977 LIC 1633 (Del. Labour Court. termination without payment of retrenchment compensation was held justified. the order of Industrial Court directing compensation to them is set aside.900 Closure of undertaking implies closure of part of the business and not necessarily the whole business.. 1987 I LLJ 97 : 1986 (69) FJR 254 : 1986 (53) FLR 310 : 1986 II LLN 459 : 1986 LIC 1361 : 1986 SCC (L&S) 682 : 1986 AIR (SC) 1514 : 1986 (3) SCC 588 (S. Official Liquidator & Anr. Adoptiong the principle engrafted to Sec. Indeed. and that they do not have any guaranteed right of employment.C. 25FFF Closure compensation when not payable 2615 c) When closure is genuine and not malafide (Raj.” (Page: 365. of regular employees.We are………. 25FFF has not been made before the closure.DB) ¥ 5A.2J) F 5A. 1963 II LLJ 739 : 1963 (7) FLR 389 (Mad.901 Badli workmen have no right to claim or entitled to any compensation on account of closure. 1993 III LLJ 361 : 1990 (61) FLR 157 : 1990 II LLN 888 : 1990 LIC 1668 : 1990 II CLR 485 (Raj. if there be some jobs to be performed and the employee concerned is absent. State of Rajasthan & Ors.” (Page: 366. In any particular case. Rajasthan Small Scale Industries Employees’ union v. Indeed. the Industrial Court directed payment of . It has been rightly submitted by the learned Counsel for the appellant that the Badli employees could not be said to have been deprived of any work to which they had no right and..undertaking. the Industrial Court has itself observed that to allow the claim of Badli workmen would be tantamount to penalising the appellant.workmen.C. Para: 10) “Sections 25-FFA…………. Their names are not borne on the muster rolls of the establishment concerned. Para: 20) d) When undertaking is leased out as a going concern and employer continued to have ownership (Mad.HC) Raj Hans Press v.perfectly legal” (Page: 364.. 25C of Industrial Disputes Act which excludes a Badli workman or a Casual workman from the benefit of compensation in case of lay off. In spite of the said observation. Rajapalayam v.no ground.2J) “The next question that remains to be considered is whether the Industrial Court is justified in directing payment of compensation to some of the Badli workmen. temporary or otherwise.DB) Jayajothi & Co. It is not in dispute that Badli workmen get work only in the absence. Delhi & Ors. Badli workmen are really casual employees without any right to be employed.” (Page: 364.The Rashtriya mills mazdoor sanga. Para: 17) “………. The closure is not bad because the payment mentioned in Sec. The closure must be real and genuine and not malafide and hence termination made on account of closure being not a retrenchment.DB) “The Retrenchment………. Prakash cotton mills (p) Ltd v. & K. a Badli workman has no right to claim employment in place of any absentee employee.. 1996 II LLJ 1114 : 1996 III LLN : 1996 LIC 2694 (Guj.e. 14) “In the circumstances. Central Fisheries Corp.902 An employee of Fisheries Corporation was retrenched and paid compensation.J. we hold that Badli workmen have no right to claim compensation on account of closure………. Whether any other compensation can be set off against closer compensation a) Employer can set off any compensation paid to workman against closure compensation (Ker. It may be that the Company may not have to pay closure compensation to the three categories of employees. It was challenged on the ground that the State Government did not have power to make reference because. Fisheries Corporation opposed his appointment on the ground that employee was not entitled to join duty in the Dairy Corporation till he refunded the terminal benefits paid to him by the Fisheries Corporation on termination of his services and that he may be allowed to join the Dairy Corporation only on production of clearance certificate from the Fisheries Corporation. Closure compensation whether refundable a) Closer compensation not to be refunded. In other words. 1959 II LLJ 760 (Ker. Biswas. 25FFF. such Badli workmen. we are unable to subscribe to the view that the compensation which would have been payable to the three categories of employees.. Chudasma v.HC) ¥ 5A. The Tribunal passed an award directing the management to pay retrenchment compensation at the rate of 15 days average pay for every completed year of service together with one month’s notice pay.” (Page: 101. 25FFF even in case of closure of business. should be paid to the Badli workmen. but that does not mean that the Company has to pay compensation to the Badli workmen in place of these categories of employees.G. he filed the writ petition. it was a dead industry. when fresh employment is not at the instance of undertaking closing down (Guj. v. Ravikrishna Weaving Mills Pvt.” (Page: 101/102. as noticed already.903 The employer issued one month’s notice for retrenchment as it was decided to close down the business on account of accumulation of stock and financial difficulties. Fisheries Corporation. High Court held that since the employee was getting appointment in Dairy Corporation as a fresh employee and not at the instance of undertaking closed down i. 25F.HC) ¥ 5A. Ltd. the employer has right to set off any compensation paid to a workman for having been laid off during the preceding 12 months as against the retrenchment compensation payable as per Sec. he was not bound to refund the amount given as compensation u/s. 1947 which excludes a Badli workman or a casual workman from the benefit of compensation in the case of layoff. Para. In this connection. & Ors. on this basis. State of Kerala & two Ors. Also. we may refer to Section 25C of the Industrial Disputes Act. as mentioned by the Industrial Court. The High Court held that it cannot be said to be a dead industry because employer-employee relationship existed and the management has been taking the position that they were retrenching workmen by giving one month’s notice u/s. although we uphold the order of the Industrial Court for payment of compensation to the regular employees of the appellant at the rate fixed by it.2616 Chapter VA – Lay-Off and Retrenchment Sec. Thus. D. admittedly. Managing Director. 25FFF compensation to the Badli workmen in place of certain categories of regular employees. We fail to understand how the Industrial Court can direct payment of compensation to the Badli workmen when. M. The employer was liable to pay retrenchment compensation as per Sec. Aggrieved. Ltd..HC) . Para: 15) XII. even the Dairy Corporation did not permit the employee to join the service and insisted upon production of clearance certificate from the Fisheries Corporation. 25C. Thereafter he got an appointment in Dairy Corporation.HC) XIII. have no right to be employed. v.2J) “………. Closure on account of “unavoidable circumstances beyond the control” Sec.C. there was complete lawlessness prevailing in the undertaking over a course of years. (4) P. According to the management. Shri Rameshwar Dass & Ors. in the course of the seven years. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd.C.CB) “………. (2) D. in that category are not to be included employers compelled to close down their undertakings merely because of financial difficulties or accumulation of undisposed of stocks. Ramchandra Keshav Gadhave & Ors. Para: 3) c) Tribunal to determine whether closure was due to unavoidable circumstances beyond employer’s control (S.. Intervener. It was also said that whenever any dispute was referred to an Industrial Tribunal. the workmen would refuse to cooperate and would not appear before the Industrial Tribunal. Closure of an undertaking attributable merely to financial difficulties or accumulation of undisposed of stocks. State of Haryana & Ors. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S. R. we are unable to say that the circumstances were not “unavoidable circumstances beyond the control of the employer. 1980 (40) FLR 298 : 1982 LIC 27 : 1981 I LLN 87 (Bom. Ranchoddas. Jamnagar & Anr. according to the management. hence entitled to look into causes which led to financial losses or accumulation of stocks and decide whether closure was on account of circumstances beyond the control of employer. Hathising Manufacturing Co. (2) Regional Labour Commr. closure of an undertaking due to financial difficulties or accumulation of undisposed stocks which otherwise is excluded from application of proviso of Sec. excluded from the benefit of restricted liability.………. would attract the benefit of restricted liability of the proviso and hence Tribunal was called upon to decide whether particular case is covered by proviso. M/s.” (Page: 515/516. 25FFA of the Act a notice of closure was given by undertaking on the ground of complete lawlessness causing heavy loss. is by the explanation.If as alleged by the management.904 Negativing the contention of employee that non availability of sugar cane should be treated as case of financial difficulty mentioned in explanation to the proviso. 25FFF(1) Proviso a) To claim benefit of proviso employer to act with mere diligence but need not put extra effort or incur extraordinary expenses to prevent closure (Bom. there has been continuous industrial strife marked by the strikes and lockouts and marred invariably by acts of violence. there was a continuous state of lawlessness prevailing in that undertaking over the last several years resulting in the undertaking suffering heavy losses since 1977………. but coupled with other circumstances.DB) ¥ 5A.The proviso restricts the liability of employers who are compelled to close down their undertakings on account of unavoidable circumstances beyond their control. . but in the view of the Parliament.DB) b) The issue whether complete lawlessness in industry is a “circumstance beyond the control” cannot be decided in writ (S.CB) F 5A. Ltd. (3) Union of India & Ors.. v. Court also observed that in order to claim benefit of proviso employer is only required to act with ordinary diligence and need not go out of his way or put extra effort or incur unusual extraordinary expenses to prevent closure on account of unavoidable circumstances. the question whether ‘complete lawlessness in undertaking’ would be unavoidable circumstances beyond control of employer’ can be decided only in a properly raised industrial dispute and therefore dismissed the petition. 1987 I LLJ 514 : 1987 (70) FJR 309 : 1987 (54) FLR 445 : 1987 I LLN 425 : 1987 LIC 713 : 1987 I CLR 450 : 1988 SCC (L&S) 355 (S.. & Anr. (Central) Bombay & Anr.C. Ahmedabad & Ors..C. Belapur Sugar Mills Ltd. 25FFF(1).Sec. P.906 It was held that coupled with other circumstances.But in the present case. AND Ramchandra Tukaram Jadhav & Ors.905 U/s. Belapur Sugar Mills Ltd. v. (1) Union of India & Anr. v. 25FFF Closure for “unavoidable Circumstances beyond the control” 2617 XIV.2J) F 5A.. & Anr. 1969 I LLJ 557 : 1968 (34) FJR 393 : 1968 (17) FLR 311 : 1969 LIC 90 : 1969 AIR (SC) 90 (S.C. 1967 nor any Director or other principal Officer of the company was produced llbyb the Management before the Tribunal to give any other facts and circumstances from which it could be inferred that it appeared to the Management that it was not possible to carry on the business by acting in a business like way and without unusual exertion. it was not pleaded that employees were not transferable to other units and place of work. (1) of Sec.HC) ¥ 5A. It is significant that neither N. Punjab State Electricity Board v. the fact that the employer has suffered financial losses or there is accumulation of stocks is not required by the legislature to be excluded from consideration. the Manager (Administration).3J) F 5A.3J) “Sri chaudhuri quite properly and fairly accepts that the burden was on the company to bring the case within the proviso and to prove that the circumstances were unavoidable and were also beyond the control of the company for closing down the undertaking. and in assessing whether the circumstances were beyond the control of the employer. 1984 (64) FJR 416 : 1984 II LLN 176 (P&H. (1) of Sec. v. 25FFF would attract to the case. The tribunal called upon to decide whether the case of an employer is covered by the proviso will certainly be entitled to look into the causes which led to the financial losses or the accumulation of stocks and ascertain whether the closure was merely on account of financial losses or accumulation of stocks or was on account of circumstances beyond the control of the employer. Para: 1) Note: Section is amended by Act 45 of 1971 w.K. Labour Court granted reinstatement with backwages as provisions of Sec. It did not plead that the thermal plant was a separate and independent entity and workman was employed only at the said plant. Labour Court. Para: 2) . Ltd. and may still not be entitled to the benefit of the proviso. Mahapatra. 15-12-71 d) Benefit of proviso cannot be availed unless evidence of circumstances beyond control placed before Labour Court (P&H. Thus. High Court held that it was not placed before the Labour Court that the plant was closed on account of unavoidable circumstances beyond the control of the State Electricity Board.907 Services of an employee were terminated on closure of the thermal plant. 25FFF financial difficulties or accumulation of undisposed of stocks may justify the view that the closure is due to unavoidable circumstances beyond the control of the employer. because of persistent losses or accumulation of stocks find themselves unable to carry on the business.2618 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 11.. the earlier order is upheld.C. 25FFF. certain persons may.e. and attract the application of the proviso notwithstanding the explanation.” (Page: 566. Para: 1) “By the explanation. 25F and 25G had not been complied with.HC) e) Burden of proof in respect of unavoidable circumstances beyond employer’s control 1. Kalinga Tubes. Also. Patiala. but that will not be a ground for holding that the explanation is unreasonable. & Anr. 25FFF and to prove that circumstance were unavoidable and beyond the control of the company is upon the company and as in the instant case management failed to produce any evidence in proof of their contention and therefore the Supreme Court held that the employer shall be liable to pay compensation under the principal part of the sub-Sec. Thus. who had issued the notice dated 3rd October. 25FF of the Act in as much as it was for the employer to make an all out effort like a prudent man of business in the matter of tiding over difficulties for saving his business and in the absence of any such proof sub-Sec. Is on the employer (S.” (Page: 10.f. it cannot take advantage of proviso to Sec.908 Burden to bring their case of closure as due to unavoidable circumstance within the proviso to Sec. Furthermore such a determination has to be objective on such evidence as may be placed on the record. Their Workmen. but they even used force against other Workmen to prevent them from working in the factory.” (Page: 1429. workmen are not entitled to any other relief.” (Page: 1428.e.” (Page: 1427. Para: 14) “In reply……….explanation.2J) “………. M/s.The burden………. Workmen of M/s. finally leading to accumulation of loss were held only as contributory causes to the financial difficulties but not causes independent of it and therefore the employer was held not entitled to invoke the proviso.911 Standing Orders of distillery provided that services of workmen could be terminated by giving a month’s notice or payment in lieu of notice and it was held that termination of workmen under aforesaid Standing order for reasons beyond the control of the employer i. Government’s refusal to grant license to manufacture spirit and supply raw material (Cal.If the employer………. delayed deliveries and defective workmanship which led to decline in orders. the closure was quite clearly for reasons beyond their control Consequently. Sur Iron & Steel Co. Sur Iron & Steel Co.workmen………. B. Pvt.O. Bansjora v. 25FFF. in these circumstances. P. Thus compensation would be payable as if the undertaking was closed down “for any reason whatsoever” within section 25-FFF (1) of the Act. Para: 14) f) ‘Unavoidable circumstances beyond the control’ includes 1. & Anr. took the step of refusing to work themselves & prevented other Workmen who were willing to abide by the settlement & to join duty in order to enable the factory to carry on its work. Bharat Collieries Ltd.the workshop……….” (Page: 567.” (Page: 1429. Not only did they thus start a strike.. Ranch & Ors.stocks……….workers………. refusal of the Government to grant license to manufacture spirit and to supply raw material i. conciliation or adjudication.DB) ¥ 5A.C. 1971 I LLJ 570 : 1969 (18) FLR 223 : 1970 (3) SCC 618 (S.2J) F 5A. Refusal of a workman to work and preventing others from working (S. Para: 10) “………. Chota Nagpur. Pvt. the Tribunal was again right in holding that the case of closure of the factory by the Company fell within the scope of the provision had already been paid to the Workmen. Labour Court.” (Page: 1428.L. If.jurisdiction.910 When worker refused to work and prevented others from working and factory is closed for unavoidable reason and the compensation is paid as per the proviso to Sec.contents……….explanation.to be a bar. Para: 7) 2.Sec.The Workmen instead of seeking redress by raising an Industrial Dispute. 1969 LIC 1424 (Pat.” (Page: 575. Ltd.e. molasses and .” (Page: 1429. v. the management felt that it was not possible to carry on the work & to run the factory & decided to close it. they were not entitled to any relief.. Para: 11) “There are………. 25FFF Closure for “unavoidable Circumstances beyond the control” 2619 “After considering the entire facts and circumstances of the present case we are not satisfied that the closure of the undertaking was due to unavoidable circumstances beyond the control of the appellant.DB) “I now take up………. Owners of Ekra Enineering Works.resources”………. Para: 13) “Secondly………closure. Para: 10) “The contention……….909 The burden of proving that the closure is due to unavoidable circumstances to attract the proviso is on the employer and mere financial difficulties or accumulation of undisposed stocks cannot be treated as unavoidable circumstances within the purview of the proviso and there shall be other circumstances independent of the cause of financial difficulties and they shall be beyond the control of the employer and hence the workers’ trouble and indiscipline. Ltd.: 10) ¥ 5A.C. The Tribunal appears………. 25FFF of Industrial Dispute Act. Para: 7) Note: The following case may also be referred Venkatarama Naidu v.unfair Labour practice………. Haji Ismail Said & Son Pvt. Closure of business was held justified on account of factor beyond control of employers. Para: 6) “For these reasons………. Alleppey. Para: 2) “………. concerned workmen held entitled to retrenchment compensation under the proviso of Sec.DB) “………. 25FFF when bonafide attempts made by employer to run business failed. Industrial Tribunal adjudicating the dispute relating to closure.914 Where workmen in a factory divided themselves into 2 camps. v. Ltd. 1960 II LLJ 140 (IT) 5. Adverse trade conditions like restrictions imposed by importing countries (Ker. John v. 1979 (54) FJR 364 : 1980 LIC 923 : 1979 I LLN 504 (Mad. would not amount to ‘retrenchment’ and even in case it was retrenchment proviso to sub-Sec. held that closure was beyond control of employer and was due to unavoidable circumstances within the meaning of the proviso to Sec.2620 Chapter VA – Lay-Off and Retrenchment Sec. Their Workmen.Industrial Disputes Act. Bhattacharjee Rubber Works Workers Union & Ors.HC) ¥ 5A. 1966 II LLJ 59 : 1965-66 (29) FJR 447 : 1966 (12) FLR 69 (Cal. 1960 I LLJ 304 (Ker. (1) of Sec. Trisul Biri Factory v.” (Page: 70. (1) there of. Labour Court.Industrial Dispute Act………” (Page: 67..HC) ¥ 5A. Bhattacharjee Rubber Works Pvt.all the workers” (Page: 62..the learned Judge………. The workmen’s claim for compensation for retrenchment was rejected by liquidator.the Industrial Tribunal……….912 Company engaged in business of coir and on account of adverse trade conditions like restrictions imposed by importing countries decided to wind up.HC) 4. Madurai & Anr. Ltd.DB) 3. The High Court allowing company’s petition to quash such award. Para: 1) “In the instant………. Para: 3) “………. throwing hand bombs. 25FFF of the Act for closure of business up to maximum limit mentioned in the proviso to the said section and held it to be closure due to unavoidable circumstances.913 Company running a bidi factory in a rented premises was forced to close down as the company was asked to vacate the premises and no alternative accommodation was available. throwing hand bombs and indulging in go-slow tactics (Cal. 25FFF would have applied and hence award of retrenchment compensation by Tribunal was set aside. Ltd v.” (Page: 69. Division of workers into two camps indulging in mutual assault. and were involved in assault and go-slow tactics. hence the Court held that workmen are entitled to retrenchment compensation u/s.. Para: 5) “If we had come………. 1960 II LLJ 198 : 1960-61 (18) FJR 215 (Cal. Compulsive vacation of rented premises by company running bidi factory (IT) ¥ 5A... awarded full retrenchment compensation. The liquidator retrenched some workmen and later the remaining in 2 stages. Fourth Industrial Tribunal & Ors..Here the notice……….HC) .” (Page: 63. Coir Yarn Textiles.” (Page: 63.Sub Sec. 25FFF(1). the management decided to close down despite making profits. The company was wound up under order of High Court. New Era Manufacturing Co. closure would be governed by proviso to Sec. 1965 (10) FLR 98 : 1966 I LLJ 533 (Ker..” to a case of termination of agency and therefore.918 Only in cases where closure is attributable merely to financial difficulties or accumulation of undisposed stocks. Para: 2) . 25FFF(1) is attracted but where many other reasons are also assigned for closure such as increase in production costs. Palai Central Bank Ltd.DB) ¥ 5A.1967-68 (32) FJR 315 :1967 (15) FLR 430 : 1966 II LLJ 827 (Bom. Venkatarama Naidu v. Termination of agency as in the case of a petrol pump compelling retrenchment of a salesman (Mad.either. 25FFF(1) and not its explanation. 25FFF Closure for “unavoidable Circumstances beyond the control” 2621 6. v. Palai Central Bank Employees’ Union v.” (Page: 445. Industrial and General Engineering Company v.HC) 7. General Secretary. Madurai & Anr. the provisions of Clause (iii) of the Explanation to Sec.undisposed by stocks. The High Court in writ proceedings held that there was absolutely no justification for extending. 1970 (38) FJR 144 (Ker.to that subsection. the closure was held to be due to unavoidable circumstances beyond the control of the directors and the question that the winding up was brought about by misconduct or mismanagement was irrelevant.. the award of the Labour Court was correct.Sec. Want of accommodation for running factory (Cal. 25F(6) subject of cause to the terms of proviso limiting the amount of compensation u/s.” (Page: 446.HC) 9. Ltd..DB) ¥ 5A. 1964 II LLJ 438 : 1963-64 (25) FJR 264 (Mys. Daya Shankar Pandey v. Para: 3) “………. total disappearance of orders and business and refusal by workmen to do work besides financial difficulties (Mys.917 Where the Bank was closed due to winding up order imposed on it by Court.DB) “It is true that that……….even in cases in………. 1974 (46) FJR 188 : 1975 LIC 1226 : 1974 II LLN 342 (Mad. by way of analogy. 1964 I LLJ 137 : 1963 (7) FLR 18 (Cal. Official Liquidator..HC) 8. 25FFF of the Act. Their Workmen & Anr. Closure due to increase in production costs. Sathiarthy & Ors. 25FFF(1).DB) “He second objection……….. which provides that the expiry of lease or license shall not be taken to be an “unavoidable circumstance beyond the control of employer. Closure of bank due to winding up order of Court (Ker.HC) ¥ 5A. Labour Court. 25F(6) where the proviso is attracted and upheld the award of the Tribunal..915 Where the employer challenged the award of the Tribunal granting one months notice pay in addition to closure compensation under the proviso to Sec.HC) ¥ 5A. the High Court held that the workman in such bonafide closure is entitled to notice for wages in lieu of notice in addition to compensation in accordance with the provision of Sec. explanation to Sec. total disappearance of orders and business and refusal by workmen to do work.” (Page: 99.916 Where an employer retrenched the salesman employed in his petrol pump on account of termination of agency by a petrol company and the Labour Court held that the closure was proper because it was unavoidable circumstance beyond the control of the employer and awarded three months wages to workman. State of West Bengal & Ors.HC) Inre :Shree Madhav Mills Ltd. Para: 2) Note: also refer to the following case in the above context K. . Para: 7) .e. 1966 II LLJ 59 : 1965-66 (29) FJR 447 : 1966 (12) FLR 69 (Cal.. v.DB) ¥ 5A. Government’s refusal to grant license to manufacture spirit and to supply raw material i....there is no.Industrial Disputes Act. & Anr... Para: 3) “……….Section 25–FFF(1)………..” (Page: 63..DB) “……….. 25FFF and hence award of payment of retrenchment compensation by Tribunal and Single Judge was set aside..DB) ¥ 5A. Fourth Industrial Tribunal & Ors. Obstructive activities of workmen compelling closure (Cal. Para: 6) “For these reasons………... Para: 5) “………... 1994 II LLJ 564 : 1993 (66) FLR 815 : 1992 II LLN 658 : 1993 II CLR 99 (Cal..” (Page: 307.Here the notice………. AND Ramchandra Tukaram Jadhav & Ors. Para: 1) “………. v.. (1) thereof.. 1980 (40) FLR 298 : 1982 LIC 27 : 1981 I LLN 87 (Bom.. therefore……….. Ltd.unfair labour practice………...” (Page: 70. & Anr.The main defence………. molasses etc. Haji Ismail Said & Son Pvt.all the workmen.. closure was held to be beyond the control of employer hence setting aside order of Labour Court and Single Judge it was held that workman were entitled to compensation only under proviso to Sec. Presidency Jute Mills Co...the industrial tribunal………..e.and are dismissed. Ltd.. Para: 5) “.the Standing Orders……….” (Page: 62..” (Page: 63. Closure of sugar factory due to non-availability of sugarcane (Bom.Industrial Disputes Act……….2622 Chapter VA – Lay-Off and Retrenchment Sec. v. (Cal.. Para: 5) 12. (1) of Sec. the case will fall under the proviso of sub-Sec. Belapur Sugar Mills Ltd.” (Page: 69. molasses and when bonafide attempts made by employer to run business failed. Para: 2) “In the instant………..919 After considering that company had not intended closure initially but wanted rationalisation but was compelled to effect closure on account of obstructive activities of workmen preventing the company from implementing the scheme of rationalisation. Court also observed that in order to claim benefit of proviso employer is only required to act with ordinary diligence and need not go out of his way or put extra effort or incur unusual extraordinary expenses to prevent closure on account of unavoidable circumstances. 33C(2) Court held that closure of sugar factory on account of non availability of sugar cane was clearly a circumstance beyond employer’s control and proper compensation payable was under proviso to Sec.DB) “.921 Government refused to grant license to manufacture spirit and to supply raw material i.DB) ¥ 5A.the learned judge……….. Para: 5) “If we had come………...... Fifth Industrial Tribunal & Ors.920 Dismissing petition of worker and upholding order of Labour Court passed pursuant to workers application u/s. Para: 29) “We are..Sub sec. Belapur Sugar Mills Ltd.” (Page: 65... Ramchandra Keshav Gadhave & Ors. 25FFF(1) and negativing the contention of employee that non availability of sugar cane should be treated as case of financial difficulty mentioned in explanation to the proviso. 25FFF(1).... v...of the section.” (Page: 67.” (Page: 305.DB) “Having arrived at……….... Para: 34) 11.it is not. 25FFF 10.Section 25FFF(1)..” (Page: 572.” (Page: 571.The tribunal appears………. Inability to produce standardized products with available machinery compelling closure (Mad. closure compensation is payable 1.DB) Engineering Metal & General Worker’s Union v. Gherao and mere threatening speech without any evidence of physical injury (S. 1979 (54) FJR 36 : 1979 (39) FLR 109 : 1979 I LLN 148 (Mad. Ltd.3J) Kalinga Tubes.HC) g) Unavoidable circumstances excludes Note: In all these following cases under this sub-head. Industrial Tribunal.. a substantial corpus of the Trust has to be sold to clear liabilities of several lakhs. Financial difficulties resulting in the company being taken over by corporation (S. & Ors. 1975 (48) FJR 212 : 1975 (31) FLR 329 : 1975 II LLN 413 (Mad.C. 7(5) of the Official Trustees Act on the Official Trustees carrying on any business and also the Trust did not provide for carrying on printing business.C. Vavilla Press (by Official Trustee) v. 1981 I LLJ 317 : 1980 (57) FJR 111 : 1981 I LLN 124 (Mad. Madras & Ors. Madras & Ors.2J) Note: Please see related ratio/s under the above citation in this section . Union of India & Ors.2J) Inland Steam Navigation Workers Union & Anr. 25FFF Closure for “unavoidable Circumstances beyond the control” 2623 13. Jeevanlal (1929) Ltd.DB) Note: Please see related ratio/s under the above citation in this section Note: the following case may also be referred Jeewanlal (1929) Ltd. closure of the undertaking was not merely on the ground of financial difficulties but also due to unavoidable circumstance beyond the control of the Trustee as such workmen were entitled only to the closure compensation under the proviso to Sec. 1969 I LLJ 557 : 1968 (34) FJR 393 : 1968 (17) FLR 311 : 1969 LIC 90 : 1969 AIR (SC) 90 (S. 2001 I LLJ 730 : 2001 (99) FJR 140 : 2001 (88) FLR 976 : 2001 II LLN 620 : 2001 I CLR 695 : 2001 SCC (L&S) 513 : 2001 SCC (3) 47 (S.3J) Note: Please see related ratio/s under the above citation in this section 2. Secondly.HC) 14.. M... 25FFF(1).Sec. Their Workmen. High Court held that in addition to the fact that if the printing business had to be carried on.HC) ¥ 5A. v. Labour Court.922 Workmen of the Trust filed a claim petition to compute the money value of their benefit on closure. Statutory prohibition on Trust to carry on any business coupled with financial compulsion of substantial corpus of the Trust to clear liabilities (Mad. v. v.C.C. there was a prohibition u/s. Their Workmen. 1960 II LLJ 1 : 1960–61 (18) FJR 181 : 1960 (1) FLR 402 : 1960 AIR (SC) 923 (S. Bansjora v. referred to by the Tribunal.CB) F 5A. Chota Nagpur. (1) Union of India & Anr. Para: 2) Note: Now this is covered by explanation to proviso as inserted in the year 1971by way of amendment F 5A. 1969 LIC 1424 (Pat.DB) ¥ 5A. delayed deliveries and defective workmanship contributing to the financial difficulties by causing decline in orders (Pat.” (Page: 553. it may be brought about by past mismanagement directly attributable to the employer or may even be deliberately brought about. (2) Regional Labour Commr. Cassad (3) Shri Digvijayshinji Spinning and Weaving Mills Ltd. P. (4) P.923 The employer closed the company as the financing bank stopped giving money to him and for accumulation of stocks.C. 25FFF would apply. 1971 I LLJ 549 : 1972 (24) FLR 140 : 1972 LIC 1151 (S.DB) Note: Please see related ratio/s under the above citation in this section 4. is not decisive of the question whether it imposes a reasonable restriction………. by reason merely of financial difficulties (including financial losses).2624 Chapter VA – Lay-Off and Retrenchment Sec. employer appealed to Division Bench contending that second part of Sec. beyond the control of the employer. it is clear that the undertaking has been closed down by reason merely of financial losses. Hathising Manufacturing Co. Ltd. (1) of the Sec.O. Ahmedabad & Ors. Workers’ indiscipline.DB) Note: Please see related ratio/s under the above citation in this section 5. (Central) Bombay & Anr. On workmen’s application Single Judge ordered the employer to pay compensation to the workmen as per first part of Sec. No notice of closure nor any compensation paid to workmen as per Industrial Disputes Act. M/s. 25FFF 3.. v. 1995 II LLJ 1208 : 1995 (70) FLR 508 (Mad. The explanation to sub-s. M/s. The closure on account of financial difficulties or accumulation of undisposed of stocks is accordingly not necessarily the result of unavoidable circumstances beyond the control of the employer. P.CB) “A state of financial difficulties or accumulation of undisposed of stocks may be temporary. Division Bench upheld the order of Single Judge since the reasons of closure were not due to unavoidable circumstances which was beyond the control of employer.924 Since state of financial difficulties or accumulation of undisposed stock may be temporary and a result of past mismanagement. R. (1) of Sec. S. Closure due to financial difficulties and mismanagement (S. (2) D. Para: 23) . 25FFF. Being aggrieved. Ranch & Ors. v. 25FFF.DB) Bharat Collieries Ltd. Anthony Raj & Anr... shall not be deemed to have been closed down on account of unavoidable circumstances. Hence the company will not therefore be entitled to claim the benefit of the proviso to sub-Sec. The explanation to sub-Sec.3J) “Having due regard to the balance sheets. a statute may impose restrictions which will be irksome and may be so regarded by certain citizens as unreasonable. Labour Court. Stopping of credit by financing bank and accumulation of stocks (Mad. in certain events.C. Intervener.. 25FFF makes it clear that an undertaking which is closed down. West Jamuria Coal Co. A Shanmugam & Ors. 25FFF makes it clear that an undertaking which is closed down by reason merely of financial difficulties (including financial losses) shall not be deemed to have been closed down on account of unavoidable circumstances.” (Page: 10. Ltd.C.925 The undertaking has been closed down by reason merely of financial losses. (1) of Sec. That. (3) Union of India & Ors. Ranchoddas. v.. closure is accordingly not result of unavoidable circumstances beyond the control of employer and hence restrictions imposed are not unreasonable and violative of constitution. Owners of Ekra Enineering Works. Jamnagar & Anr. beyond the control of the employer. Para: 24) F 5A. Closure brought about by the pressure of workmen for leasing it out to another company due to financial losses and shortage of raw nuts (Ker. (1) of Sec. 25F of the Act. Karunagappilly Taluk Cashewnut Workers’ Union v. Ramakrishna Ramnath v. If so. This is so particularly in relation to clause 6 of the notification. Pvt. 25FFF (1) the closure must be on account of unavoidable circumstances beyond the control of employer... 25FFF(1).HC) ¥ 5A. Shyamsunder v.HC) 7. 11 of the Standing Orders.HC) ¥ 5A. & Ors. Against the said award workers filed a writ petition where High Court held that the Tribunal erred in ordering payment after the lease period and quashed the decision that the factory was closed on account of unavoidable circumstances beyond the control of the employer.” (Page: 308. 25FFF.. Nagpur & Anr. Therefore such personal disease not a reason connected with the business and therefore the proviso is not attracted and therefore the workmen are entitled to full compensation upon closure. therefore.1979 I LLJ 406 : 1979 (54) FJR 404 : 1979 (38) FLR 285 : 1979 (39) FLR 86 : 1979 I LLN 470 : 1979 LIC 1165 (Ker. 25FFF Closure for “unavoidable Circumstances beyond the control” 2625 “The appellant will not therefore be entitled to claim the benefit of the proviso to sub-s. (1) of Sec. Labour Court. it follows that the award of the Industrial Tribunal holding that the appellant is liable to pay compensation. Kumaran & Ors. Tribunal held that factory was closed down because of the pressure of the workman for leasing it to Cashew development Corporation on account of financial losses and shortage of raw nuts terming it as reason beyond the control of management and awarded compensation as per Sec. P. 1978 II LLJ 244 (Ker. 25FFF. However affliction from Tuberculosis is a circumstance not connected with the functioning of the undertaking. hence matter remanded to Tribunal for disposal in accordance with law. The Presiding Officer.O.HC) . employer suffering from a disease due to which he is unable to run business is not contemplated by Sec. Thus the changes introduced by the notification . ‘chhat’ and other matters are such as to attract the provisions of cl.926 Financial impossibility to carry on business citing Government notification on minimum wages as excessive and unworkable by the management excludes the proviso to Sec.928 In order to fall within the proviso of Sec. 25FFF(1) and hence liability to pay compensation would not be limited to 3 months wages but should be in accordance with Sec.V. under the principal part of sub-s.. Serious illness since it is not a reason connected with the running of the business (Bom.2. P..HC) ¥ 5A. It is only his personal difficulty. Labour Court.1971 and another term states that adjudication to be sought on compensation..927 Closure of an undertaking must be for unavoidable circumstances which must have nexus with the functioning of the undertaking. regarding wages. Minerva Cashew Co.”(Page: 554.Sec.” (Page:314.C. 1970 II LLJ 306 : 1972 (41) FJR 209 : 1970 (21) FLR 159 : 1973 LIC 87 : 1970 (3) SCC 67 (S.929 Management leased out factory to the corporation and settlement was agreed between the management and workmen of which one term states that the factory shall be deemed closed with effect from 28. Kuttancherry Ouseph Antony v. 25-FFF. Para 1) 6. Para 3) “On the facts of this case we find ourselves unable to hold that the undertaking was closed down on account of the unavoidable circumstances beyond the control of the employer within the meaning of S. Ltd..2J) “The minimum rate/rates of wages made payable as from 1st July. is correct. 1958 are so excessive and unworkable that it is impossible for any employer to give effect to them. 1986 LIC 767 (Bom. 25FFF(1) and held that payment be made after lease period of 5 years.. Amravati & Ors. C 2J) ¥ 5A.1967-68 (32) FJR 315 :1967 (15) FLR 430 : 1966 II LLJ 827 (Bom. 1. no other creditor of the pawnor has any right to take away the goods or its price.2J) F 5A. Non-availability of orders for supply of goods and non co-operation of workmen and high percentage of rejection (S. 1947. (3) non-cooperation from the workmen in standardisation of the working force and for reduction of the high percentage of rejection.” (Page: 351. The Tribunal has gone into the oral and documentary evidence adduced by the parties and reached the conclusion that the closure of the business was not due to unavoidable circumstances beyond the control of the appellant. Their Workmen.930 Closure due to financial condition of the employer.000 to Cane Commissioner and only the balance to the Pawnee Bank. We see no reason for interfering with the finding of the Tribunal on this aspect of the case. is that the workmen are entitled to compensation under the main clause of Section 25FFF of the Industrial Disputes Act. The result. Winding up order of the Court resulting in closure when it is due to non-repayment of debts (Bom. 1970 I LLJ 348 : 1970 (38) FJR 16 : 1970 (20) FLR 115 : 1970 LIC 1420 : 1970 AIR (SC) 1960 : 1969 (3) SCC 464 (S. it cannot and does not justify the conclusion that the undertaking of the company was closed down on account of unavoidable circumstances beyond the control of the employer because petitions in most of the cases for winding up are based on the companies failure to dischange their debts in due course of business. 25FFF 8. 33C on behalf of workmen employed in the sugar mills passed orders for recovery of amount due leading to take possession of stock of sugar by recovery authority forcibly when the writ petition against the orders of Labour and Cane Commissioners was pending. Rights of workmen to dues over those of other creditors of the company – whether protected in the absence of liquidation proceedings a) Rights of pledgee/pawnee of goods of sugar mill will prevail over rights of workmen u/s.2J) “The Tribunal has found that the appellant was not right in its contention that the closure was due to unavoidable circumstances beyond its control.00. 173 of Contract Act.932 Where a sugar mill obtained credit from a Bank and pledged its goods as security.C.HC) ¥ 5A. Para 5) 9. The Cane Commissioner and workman are only. the right of the pawnee is safeguarded to retain the goods for payment of debt and interest and for other expenses. that also subject to sanction of BIFR.000 to Labour Commissioner for dues of workmen and Rs.400 a sum of Rs 4. Ltd. Hence the Court held before bringing them under the proviso proper investigation is imperative. 33C since they rank as secured creditors in the absence of liquidation proceedings (S. Therefore orders are challenged before Supreme Court. at the most to be regarded as unsecured .. 25FFF(1) Tatanagar Foundry Co.50. (2) non-availability of orders for supply of goods. The Supreme Court setting aside the order of High Court held both the Cane Commissioner and Labour Commissioner or for that matter workmen in the absence of liquidation stand only as unsecured creditors and their rights can not prevail over the rights of pawnee of the goods so long as his claim is not satisfied. non availability of orders for supply of goods and non co-operation from the workmen in standardization of the working force and for reduction of the high percentage of rejection were held not to constitute unavoidable circumstances beyond the control of the employer so as to fall within the proviso to Sec.HC) XV..2626 Chapter VA – Lay-Off and Retrenchment Sec. The Government was bound to reimburse the pawnee the amount to which he was entitled to by realization in ordinary course.C.30. u/s. According to the appellant the main reasons for the closure are: (1) financial condition of the appellant. The High Court by interim order directed to sell the sugar stocks and disburse out of proceeds of Rs. the Cane Commissioner on behalf of Sugar Cane growers and Labour Commissioner u/s. it is well settled that such lender or pledgee has a right to retain the chattel until a proper tender of the amount due is made. v.53.931 The Court held that in every case of winding up order under Companies Act merely because there is an intervention of the Court. However disregarding these laid down and settled law. 6. therefore. In re: Shree Madhav Mills Ltd. the High Court ought not to have passed such an interim order of consequence especially in the light of the legal principles settled by this Court. It may also due to hazards or danger to staff or members of management in running the business. Closure when valid Note: also refer to Sec. It may be financial or purely for business reasons. is to retain the chattle until a proper tender of the amount due is made. the factum of closure by whatever reasons irrespective of motive is the focal point of consideration. Kalinga Tubes. As the act of the Govenrment resulted in deprivation of the amount to which the plaintiff was entitled it was bound to reimburse the plaintiff for such amount which the plaintiff in ordinary course would have realized by sale of goods pledged with it on the pawnor making a default in payment of debt.3J) F 5A. There is no dispute that the sugar was pledged with the appellant bank for securing a loan of the first respondent and the loan had not been repaid. therefore. & Ors. Central Bank of India v. v. The order of the High Court. But by a mere act of lawful seizure the Government could not deprive the plaintiff of the amount which was secured by the pledge of the goods to it. In essence. They become secured creditors only when there is winding up. cannot be sustained and calls for interference.” (Page: 923.C. Cousins) Under Section 173 of the Contract Act. or pledgee. Siriguppa Sugars and Chemicals Ltd. 25FFF Closure when valid 2627 creditors. stand only as unsecured creditors and their rights cannot prevail over the rights of the pawnee of the goods. 2007 (2) SCC (L&S) 919 (S. Ltd. the rights of the appellant-bank as pawnee cannot be affected by the orders of the Cane Commissioner or the demands made by him or the demands made on behalf of the workmen.3J) . The goods were forcibly taken possession of at the instance of the revenue recovery authority from the custody of the pawnee. 1969 I LLJ 557 : 1968 (34) FJR 393 : 1968 (17) FLR 311 : 1969 LIC 90 : 1969 AIR (SC) 90 (S. in error in passing an interim order to pay parts of the proceeds to the Cane Commissioner and to the Labour Commissioner for disbursal to the cane growers and to the employees.Sec.C 2J) “The right of the lender. Para: 7) “In our judgment the High Court is in error in considering that the rights of the pawnee who had parted with money in favour of the pawnor on the security of the goods can be defeated by the goods being lawfully seized by the Government and the money being made available to other creditors of the pawnor without the claim of the pawnee being fully satisfied. Para: 17) “We are also of the view that pending the writ appeals. Both the Cane Commissioner and the workmen in the absence of a liquidation.” (Page: 926.” (Page: 925/926. propounded by this Court there cannot be any doubt that the rights of the appellant-bank over the pawned sugar had precedence over the claims of the Cane Commissioner and that of the workmen.933 The entire set of facts leading to the closure is always deserved to be taken into account and no one fact or set of facts in isolation alone need be considered for determination of a factum of closure. (See The Law of Mortgages by Edward F. a pawnee has the right to retain the goods pledged for payment of the debt including interest on the debt and all necessary expenses incurred by the pawnee in respect of the possession or for the preservation of the goods pledged………. going by the principles governing the matter.. the appellant-bank. The High Court was. Para: 18) XVI.” (Page: 922. In view of the fact that the goods were validly pawned to the appellant bank. therefore. shall be the focal point of consideration by Courts (S. 2(cc) for more ratios on validity of closure a) The factum of closure by whatever reasons – financial. After the goods had been seized by the Government it was bound to pay the amount due to the plaintiff and the balance could have been made available to satisfy the claim of other creditors of the pawner. Their workmen.C. Para: 6) “Thus. business or hazards to staff or management etc. The pawnee has special property and a lien which is not of ordinary nature on the goods and so long as his claim is not satisfied no other creditor of the pawnor has any right to take away the goods or its price. Where no liquidation of the company had taken place the right of cane growers and workmen cannot precede the pawnee to appropriate the sale proceeds. In another case it may decide in favour of closure when faced with a situation in which it is considered either dangerous or hazardous from the point of view of the safety of the Administrative staff or members of the Management or even the employees themselves to carry on the business. Separate Office was apparently set up for this venture and on the completion of the project or enterprise that undertaking was closed down.2628 Chapter VA – Lay-Off and Retrenchment Sec. project or business undertaking and hence closure of even a single unit would be covered under the section therefore as the employee who was employed on a project and terminated on completion of the project can seek compensation nothing more than that in terms of the provision of Sec. Management of Hindustan Steel Ltd.3J) “The word undertaking as used in SEC. Its . There are a number of supplement facts which show that the Management was faced with a situation in which it could well take a decision to close down the undertaking………. Their Workmen & Ors. 25FFF of the section was held to cover not just the entire undertaking but also any work.” (Page: 564. 25FFF only. The essence of the matter therefore. Their Workmen. Para: 2) b) Closure is valid when effected due to gherao endangering the safety of the staff continued for several hours (S.It is not possible to say in categorical terms that closure in the aforesaid background and circumstances would not be genuine or that a great deal of suspicion would attach to the action taken simply because the Company was a profitable and going concern. is the factum of closure by whatever reasons motivated. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the appellant and it had a distinct beginning and an end.. Para: 4) “……….3J) F 5A. Supreme Court held that the danger and hazard associated with such type of activity is also a ground which renders the closure justified. Para: 2) c) Closure is valid even if a single unit is closed since the word ‘undertaking’ covers even closure of a single unit (S. in fact. 25FFF seems to us to have been used in its ordinary sense connoting thereby any work. in fact. project or business undertaking. v.C. In one case the Management may deride to close down an undertaking because of financial or purely business reasons.C.C. 1973 (43) FJR 192 : 1973 (26) FLR 136 : 1973 I LLN 208 : 1973 LIC 461 : 1973 SCC (L&S) 195 : 1973 AIR (SC) 878 : 1973 (3) SCC 564 (S. Para: 1) “There can be no manner of doubt from what has been found by the Tribunal itself that a large number of workers about 150 of them virtually staged a gherao during the several hours preceding the declaration of closure………. is the factum of closure by whatever reasons motivated. 25FFF “The discussion of the above decisions yields the result that the entire set of circumstances and facts have to be taken into account while endeavouring to find out if.3J) F 5A. enterprise. there has been a closure and the Tribunal or the Court is not confined to any particular fact or set of facts or circumstances. In another case it may decide in favour of closure when faced with a situation in which it is considered either dangerous or hazardous from the point of view of the safety of the Administrative staff or members of the Management or even the employees themselves to carry on the business.3J) “The discussion of the above decisions yields the result that the entire set of circumstances and facts have to be taken into account while endeavouring to find out if. enterprise. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section.” (Page: 563. The Tribunal has actually so found.935 The expression ‘Undertaking’ in Sec. The question has indeed to be decided on the facts of each case.C. there has been a closure and the Tribunal or the Court is not confined to any particular fact or set of facts or circumstances. Ltd. In one case the Management may decide to close down an undertaking because of financial or purely business reasons.” (Page: 563.934 Factum of the closure by whatever reason motivated is essential to determine whether there was a closure or not hence considering the facts of the case in the instant case where workmen staged a gherao in administration building for several hours which was dangerous to the safety of the staff and management. Kalinga Tubes.” (Page: 563. 1969 I LLJ 557 : 1968 (34) FJR 393 : 1968 (17) FLR 311 : 1969 LIC 90 : 1969 AIR (SC) 90 (S. v. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. The essence of the matter therefore. it was because the Company had put its own trademark on some of those articles sold by it subsequently that the witness on behalf of the Union stated that the Company was manufacturing those very goods at some other places……. Sur Iron & Steel Co. after closure of the factory obtains articles manufactured by others which it was manufacturing earlier.” (Page: 199. even though it did not amount to closure of the business could not be interfered with by an Industrial Tribunal. 25FFF Closure when valid 2629 conclusion has not been shown to be wrong and were have no hesitation in agreeing with its view.. (1973) 3 SCR 303: (AIR 1973 SC 878) this Court has held that the word ‘undertaking’ used in S. & Anr. Retrenchment notice. On these facts. because it is very clear that the Company is not carrying on . after the closure of the factory. On behalf of the respondent. that the closure was for reasons beyond the control of the management………. Guntur v.. 1968.On the behalf of the Workmen. 25-FFF seems to have been used in its ordinary sense connoting thereby any work. Workmen of M/s. was notice and compensation in accordance with the provisions of Section 25-F as if he had been retrenched. Ltd. in case Clause (b) is held inapplicable. There is no cogent ground for reopening the Tribunal’s conclusion under Article 136 of the Constitution……….. a case was put forward & was sought to be supported by the evidence of some witnesses to the effect that the Company had set up factories at four different places where it was carrying on the work of manufacture of the same articles which it was manufacturing earlier in this factory.On the face of it. Bombay v. further. Ltd. 1987 I LLJ 427 : 1987 (71) FJR 11 : 1987 (54) FLR 454 : 1987 I LLN 741 : 1987 LIC 1028 : 1987 I CLR 232 : 1987 SCC (L&S) 91 : 1987 AIR (SC) 1478 : 1987 (2) SCC 203 (S. It appears that. Para: 5) “………. v. 7. the Company started doing another type of business & that was to obtain articles manufactured by other manufactures of the same type which the Company was earlier manufacturing.” (Page: 199. 1971 I LLJ 570 : 1969 (18) FLR 223 : 1970 (3) SCC 618 (S. dated June 29.2J) F 5A.C. Sur Iron & Steel Co. Guntur (1969) 2 SCR 282: (AIR 1970 SC 860). the Tribunal recorded the conclusion that the closure was genuine & bona fide. Bombay & Anr. Para: 2) d) Closure is valid though all branches are not closed down (S. In Management of Hindustan Steel Ltd.937 If the company. Ltd. Ltd.2J) “……….” (Page: 575. It is not intended to cover the entire industry or business of the employer. Pvt. enterprise. 25FFF (1) which creates a statutory fiction. as already noticed.2J) F 5A. it cannot be said it was continuing the manufacturing process and the closure cannot be challenged as sham on the ground of such out-sourcing of the manufacturing activity and hence the finding of the Tribunal that the closure was genuine was upheld.The Tribunal has fully discussed the evidence on this question & has recorded the finding that there is no proof that the Company has set up any other manufacturing undertaking. & to sell those articles in the market. In deciding the above case this Court relied upon its earlier decision in Workmen of the Indian Leaf Tobacco Development Co.2J) “It is not necessary that in order to effect closure of business the management should close down all the branches of its business. to stamp them with its own trade-mark . all that Shri Naidu was entitled to. that finding could not be challenged. quite clearly complies with this requirement.936 To effect closure it is not necessary that management should close down all the branches of the business. Isha Steel Treatment. under Sec. M/s. The Court further observed that no Industrial Tribunal could interfere with the discretion exercised in such a matter.C..” (Page: 432. The Workmen. Pvt. Management of the Indian Leaf Tobacco Development Co. project or business undertaking. it is not disputed that there has been no failure to give notice as required by Section 25F. Para: 1) “Now. In that case the Court observed that a genuine closure of depots or branches. In fact. Even the closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by the said provision. v.Sec. Para: 8) e) Closure is valid even if products are outsourced after closure (S.. It further held that the closure was stoppage of part of the activity or business of the management and such stoppage is an act of management which is entirely in the discretion of the management.C.C. Association of Engineering Workers. Ex. stamps them with it’s own trade mark and sells them in the market. In this application events which took place after the publication of the award are relied on as going to show that the discontinuance of the Publications from Madras was a mere ruse and a device adopted by the company to coerce and intimidate the employees and that publication of the newspapers had been commenced soon after the publication of the award. workmen of subsidiary section (workshop)..DB) “………. as………. Para: 1) g) Closure of tool workshop is valid when closure of main section is bonafide (Mys. Para: 6) “………. Industrial and General Engineering Company v. Para: 6) f) Closure is valid even though the same activity is resumed after some time (S. & Anr. Para: 2) “In the view………Is accordingly quashed. v.the workshop was a………. Para: 7) .938 Resumption of publication of newspapers subsequent to award and after lapse of four years cannot be made a basis to carry out a probe as to whether prior closure was real or a mere devise to coerce and intimidate employees. We do not think it necessary to go into this matter at any length because a break of over four years had intervened in between and what the company does after the lapse of this long period cannot and ought not to be taken into consideration in order to find out whether the closure was a real one or was a mere device as suggested by the employees. Para: 2) “……….would be uneconomical……….939 After closure of main Bobbins section on account of becoming uneconomical. 1962.C.and if.Government porcelain factory………. closure of workshop will be natural and hence it cannot conclude that there was unjustified lockout in workshop section just because employer had used services of a contractor to fulfill order of one solitary customer and award of Labour Court granting back wages along with compensation u/s.an illegal lockout. Their Workmen & Anr.” (Page: 440.” (Page: 442. maintained for manufacture of tools for and repair of main section struck work demanding reinstatement of main section workers thus resulting in closure of workshop also.2J) “On behalf of the employees an application has been made for leading additional evidence.The award made by………. Madras Union of Journalists & Ors.Petitioner decided to………. The evidence on record shows that Ramnath Goenka’s plan was not to give up the business of newspaper publications altogether but he wanted to distribute his business to different places.the bobbins section……. Whatever may be the motive behind such plan. The Secretary. The Andhra Prabha Ltd. The closure was bona fide in the sense that the Company in fact ceased to carry on that industry & the step taken of the closure was not a cloack for a lock-out or for carrying on the business under some other disguise.DB) ¥ 5A.2J) F 5A. it was held where Labour Court had found that closure of main section was bona fide.2630 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 444.” (Page: 574.…” (Page: 440.” (Page: 25. Para: 1) “……….C. 1964 II LLJ 438 : 1963-64 (25) FJR 264 (Mys. 25FFF was quashed.. 1968 I LLJ 15 : 1967-68 (33) FJR 318 : 1967 (15) FLR 435 : 1967 AIR (SC) 1869 (S.” (Page: 440. he had only carried out that plan into effect after the publication of the award and this cannot lead us to the conclusion that the closure was an assumed one……….a dozen workmen who………. 25FFF any manufacturing business at all since 22nd April..this writ petitioner. Offical Liquidator.. 1965 II LLJ 230 : 1965-66 (28) FJR 300 (Cal. T. 445(3) of the Companies Act and the discharge of the employees on compulsory liquidation cannot be considered as retrenchment.DB) “In this case……….of order.940 The business of the bank was closed as a result of winding up order u/s.” (Page: 236/237. Labour Court. Hence the closure being bonafide.not otherwise. Para: 4) “The result is……….Article 226.that of retrenchment. Venkatarama Naidu v. Ram Hari Dev v.Sec.Court below. Madurai & Anr.closure of business.Act. High Court. The employees are however entitled to claim compensation u/s. compensation paid to workman will not exceed amount provided u/s. L: 39 to Page: 369. Para: 3) “………. M. Hence the employees will not be entitled to claim the amounts agreed upon in the tripartite agreement between the parties.941 Closure effected due to inability to produce standard products conforming to ISI Standard and Essential Commodities Act with available machinery held to be beyond the control of employer and hence bonafide. Para: 20/21) j) Closure is valid when due to unavoidable circumstances of stoppage of raw material supply (Mad.DB) ¥ 5A.the So called tripartite……….” (Page: 326.” (Page: 325. & Ors..L: 24) .management. Calcutta. Jeevanlal (1929) Ltd. 25FFF. 25FFF the official liquidator is directed to decide the claims.DB) ¥ 5A.” (Page: 326. Para: 20) “As a matter……….” (Page: 233.DB) ¥ 5A..” (Page: 368. 1981 I LLJ 317 : 1980 (57) FJR 111 : 1981 I LLN 124 (Mad.world.the meaning of……….” (Page: 234.” (Page: 369.L: 18 to B. 1947. Para: 3) “It will be observed………. L: 12) “In these………. Para: 19) “We are………. Para: 1) “……….to costs.DB) “But in………. 1979 (54) FJR 364 : 1980 LIC 923 : 1979 I LLN 504 (Mad. Engineering Metal & General Worker’s Union v. 25FFF Closure when valid 2631 h) Closure of the bank valid when it is due to compulsory liquidation (Cal.DB) “The tripartite agreement……….” (Page: 232.942 Closure of the employer’s business has been due to unavoidable circumstances of stoppage of supply of raw material and not due to any acts of the employer. Para: last) i) Closure is valid when due to inability to produce standardized products with available machinery (Mad.” (Page: 233. 2007 III LLJ 777 : 2007 (114) FLR 1040 : 2007 IV LLN 199 : 2007 III CLR 325 : 2007 LLR 1125 : 2007 (2) SCC (L&S) 631 : 2007 AIR (SC) 2879 (S.2632 Chapter VA – Lay-Off and Retrenchment Sec. Workman contended that the closure was a pretence and there was functional integrality between two firms. Due to financial stringency. hence closure is held valid. viz.944 After 3 to 4 months closure.O. 2000 I LLJ 303 (Mad. Drug De-Addiction. Industrial Tribunal. ESI and there was no evidence that two firms were under common management or that there was financial inter-relationship from which it could be inferred that there was functional integrality. The Maternity Hospital was functioning as a distinct entity. well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking. v.cum-Rehabilitation Centre. the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which Page 3283 has to be calculated in accordance with Section 25F of the Act.. resulting in the termination of services of a nurse who contended that the closure is not legal as other units are functioning.C.HC) l) Closure valid though machinery is leased out to sister concern which is a separate unit (Mad.2J) F 5A. Labour Court & Anr. The Maternity Hospital was then closed due to depletion of donations.943 When an employer closed down an undertaking paying closure compensation to the workman as it was unable to produce articles which could be marketed in accordance with the standard specification. District Red Cross Society v. Family Planning Centre and Viklang Kendra are receiving grants from Government and are functioning as separate entities and the mere fact that they have not been closed down. P. tribunal held that the matter had gone beyond the employer’s hand and as such he was justified in closing the undertaking and awarding closure compensation which was upheld by High Court as well as Supreme Court. I Addl.HC) ¥ 5A. Para: 9) .945 Red Cross Society was running a maternity hospital on the basis of donations without the help of any grant from Government unlike its other units such as drug de-addication centre.HC) m) Closure of maternity hospital run by Red Cross society valid despite running other centres like Family Planning and Vikalang Centre when there is no functional integrality among them (S. therefore. Babita Arora & Ors. Workmen of Bharat Skin Corporation v. Apex Court held that there is no functional integrality among the units and the word ‘undertaking’ is not to cover the entire business/industry of the employer but can even cover an independent unit of it. the machinery of the firm leased out to a sister concern. The other three units.. 25FFF k) When employer was unable to produce goods that can be marketed (Mad. High Court upheld the award of Labour Court holding that merely leasing of machineries after keeping them idle for several months could not warrant the conclusion that there was in fact no closure or closure effected earlier was unreal.C. Family Planning Centre and Viklang Kendra were functioning..2J) “The position in law is. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non-compliance of the provisions of Section 25F of the Act” (Page: 778. family planning centre and Vikalang centre which run on Government aid. separate registration under Sales Tax. Madras & Ors. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre.HC) ¥ 5A. which was rejected by the Labour Court as they had separate factory license. 1975 (48) FJR 212 : 1975 (31) FLR 329 : 1975 II LLN 413 (Mad. the Maternity Hospital had to be closed down.. the termination of services of the respondent would amount to retrenchment. Jeewanlal (1929) Ltd. PF. It would thus appear that each of the works or construction projects undertaken by the appellant represent distinct establishments and did not constitute units of a single establishment. N. In such a case. 25FFF Closure when valid 2633 “In view of the findings recorded above.3J) F 5A. Its job is to undertake construction works both in India and abroad. 25F of the Act.. mere unity of ownership. Employees Union Hyderabad & Anr. There is no proximity between the several units/works undertaken by the appellant. 1987 II LLJ 482 : 1988 (57) FLR 17 : 1987 II LLN 243 (AP. The construction works are not permanent works in the sense that as soon as the construction work is over. the conclusion is inevitable that the units at Hyderabad were distinct establishments. they are spread all over India.P.Sec. Para: 16) o) Closure valid inspite of non-compliance since it merely entitles workmen to notice and compensation (AP. the respondent would be entitled to compensation only in accordance with Section 25FFF of the Act and the award for reinstatement in service with back wages passed by the Tribunal which was affirmed by the High Court cannot be sustained and must be set aside. In our opinion. Hyderabad and Visakhapatnam were under the same administrative control and that when they were separated the workers were not asked to exercise their option to remain in one or the other unit. Hindustan Steel Works Construction Ltd. Commissioner of Industries. 25FFF. let us look at the appellant-Company. the establishment comes to an end at that place.3J) “It has been held repeatedly that all the tests evolved in the several decisions of this Court need not all be satisfied in every case. In the case of a construction company like the appellant which undertakes construction works wherever awarded. that indeed. The nature of the construction work may also differ from work to work or place to place.C.HC) ¥ 5A. & Anr. The Division Bench. Narasimhalu & Ors. One has also to look to the nature and character of the undertaking while deciding the question. v. the fact that the Management reserved to itself the liberty of transferring the employees from one place to another did not mean that all the units of the appellant constituted one single establishment. It is not suggested that closure of one leads to the closure of others. 25FFF implies that the workers are entitled to notice and compensation as laid down u/s. indeed all over the world.” (Page: 1603. forty three out of hundred workers concerned herein were brought to Hyderabad on transfer from other places and (iii) initially. Now. Hindustan Steel Workers Construction Ltd. The tests evolved are merely to serve as guidelines. It is a Government company wholly owned and controlled by the Government of India. Having regard to the facts and circumstances of this case and the material on record. (1) of Sec. & Ors. does that work and winds up its establishment there and particularly where a number of local persons have to be and are appointed for the purpose of a particular work. however. as the case may be. Once this is so. workmen of the said unit had no right to demand absorption in other units on the Hyderabad units completing their job. (ii) the orders of appointment say that the employees are liable to be transferred to one place to other. Para: 10) n) Closure of unit of an establishment which is distinct from and does not enjoy functional integrality with other units is valid (S. A.946 Where the company is undertaking construction work spread all over India.C.947 Non-compliance of Sec.” (Page: 778. 25FFF of the Act does not render closure illegal as sub-Sec. Mere unity of ownership management and control are not of much significance and that by the facts the Hyderabad Unit was held to be a separate unit with no functional integrality with other units and therefore upon closure of the same the employees had no right to demand absorption in other unit except compensation in terms of Sec. management and control are not of much significance. may be all over the world there is no proximity between the several units and therefore each unit is distinct establishment and merely because the management reserved the liberty of transferring employees from one place to another it will not make all the units into a single establishment. v.HC) . was influenced by the fact that (i) when the workers are transferred from one unit to other unit they carried their seniority with them.. however. functional integrality assumes significance. 1995 LIC 1590 : 1995 (70) FLR 946 : 1995 I LLN 792 : 1995 SCC (L&S) 702 : 1995 AIR (SC) 1163 : 1995 (3) SCC 474 (S. It is not even suggested by the respondent-Union that there is any functional integrality between the several units or several construction works undertaken by the appellant. 33C(2) claiming compensation u/s.C. Closure excludes a) Taking over of a power company by MPEB on expiry of it’s licence (MP. the finding of malafides can not justify conclusion that branches should be deemed to continue. With respect we do not read the observations as laying down an unqualified and categorical proposition of law that wherever a closure is mala fide it must be deemed to be unreal and non-existent.2J) “As we have already indicated the conclusion of the tribunal on this point is based on the observations of this Court in the case of Banaras Ice Factory Ltd. 25FFF p) Closure valid despite fraught with malafides since it does not render the closure unreal (S. It appears that during the pendency of an appeal before the Labour Appellate Tribunal the appellant Company decided to close down its business and gave notice to all the workmen that their services would be terminated upon the expiry of 30 days from July 16. (1957 I LLJ 253) that if there is no real closure but of a mere pretence of closure or if it is malafide. That led to the complaint under s. 23 of the Act”.C has held that the observation made by the Constitution Bench in the case of Banaras Ice Factory Ltd. be necessary to examine those observations and decide whether they really justify the conclusion of the tribunal. when the employer has the right to close his business and bona fide does so. It conceded that the appellant had the right to close its business for bona fide reasons.2J) F 5A. v. 1952. The Labour Appellate Tribunal had found that the closure was bona fide. 25F. It is on this latter observation that the Tribunal has founded its decision. hereafter called the Act. Tea Districts Labour Association. XLVIII of 1950).949 The power company has been taken over by the M. Ex-employees of Tea Districts Labour Association & Anr. In dealing with the scope and effect of s. therefore. That is why according to it the appellant was guilty of contravening s.. 22. 25FFF of the Industrial Disputes Act. There has been a closure and the agencies have been closed and their business had been wound up. But in the present case the facts are not in dispute. 23 this Court observed : “There is hardly any occasion for praying for permission to lift the ban imposed by s. In doing so. as we have already indicated even the finding about the mala fides of the closure is itself open to serious doubt. On application by workmen u/s. 1960 I LLJ 802 : 1960-61 (18) FJR 298 : 1960 AIR (SC) 815 (S. It will. Besides. with the result that the industry itself ceases to exist”. the true scope and effect of S. P. 22 of the Industrial Disputes (Appellate Tribunal) Act (Act No.2634 Chapter VA – Lay-Off and Retrenchment Sec.C.948 The two judge bench of S. 22 of the said Act had been contravened. Para 4) XVII.” (Page: 806. 23 of the Act on the allegation that s. In that case this Court was dealing with the decision of the Labour Appellate Tribunal on a complaint filed before it under s. there is no closure in the eye of law. Then it was added : “If there is no real closure but a mere pretence of a closure or it is mala fide. Thus the position was that the closure was bona fide and that the appellant had committed no breach of s. when the two Branch offices are closed. there is no closure in the eye of the law and the workmen can raise an industrial dispute and may even claim under s. 22(b) of the Act. If it is found that the closure was not bona fide the consequences would be the liability of the employer to pay the higher compensation under Sec. 22 and 23 of the Act were considered and it was held that if the impugned closure was bona fide then neither of the two sections came into operation. Calcutta v.R. 1947. 25FFF. But is difficult to see how when the two agencies have in fact been closed the finding about mala fides can justify the conclusion that the said two agencies should be deemed to continue and how the award can make an order on that basis. the Labour Court held that . 22(b) of the Act.DB) ¥ 5A. Its Workmen ((1957) S. 23 of the Act with which the Court was dealing a mala fide closure may conceivably be treated as falling in the same class as a pretence of closure. This decision was reversed by this Court. 143). but nevertheless it took the view that permission should have been obtained before the said closure. What this Court has said is that in cases of pretence of closure no closure in fact has taken place and for the purpose of s. it must be deemed to be unreal or non existent & held that in the instant case. can not be said as laying down an unqualified and categorical propostion of law that wherever a closure is malafide.C. In our opinion the said finding is based on mere surmises and is entirely opposed to the weight of evidence adduced in this case. Electricity Board on expiry of its licence and services of workmen were terminated on payment of compensation u/s. 1963 (7) FLR 389 : 1963 II LLJ 739 (Mad. Para: 2) “Lastly it is……….retrenchment of lay-off………. District Labour Court. present case was not of retrenchment.Labour Court. Para: 2) “………. 25FF and granted full compensation claimed. these conditions regarding closure of a unit. Textile Labour Association v.” (Page: 396. And the benefit of the scheme should not be extended to workers who were not on the pay roll of the mill at the time of closure. Para: 1) “………. 25F.” (Page: 844. which was upheld by the Court which opined that Labour Court could award retrenchment compensation u/s. 2001 II LLJ 838 (Guj. By allowing the petition.950 Undertaking was leased as a going concern and employer continued to have title to and owned the undertaking and same old employees were engaged under a scheme and setting aside the order of official liquidator admitting the claims of workers for closure compensation it was held that as there was no discharge contemplated under the scheme. Para: 1) “………. directed to pay the workers the benefit of the above said scheme called Textile Workers Rehabilitation Fund Scheme. arbitrary. 25F. Para: 3) “The sum up……….under S. Para: 1) b) Leasing of undertaking as going concern and employer continued to have ownership (Mad. 1969 I LLJ 840 : 1969 (18) FLR 22 : 1969 LIC 1204 (MP.on the matter.the claim of the………. Further.under S.We have……….DB) “The company was ………….” (Page: 394.The workers were……….” (Page: 395.” (Page: 394.O. 25FFF Closure excludes 2635 the case was not of closure but of transfer of undertaking by operation of law u/s. if the closure of the unit were effected by an illegal strike by workmen. also there was no transfer of business because good will of company continued and since the workers and staff continued to be employed there was no closure and though under the circumstances the stoppage of service might be termed as lay-off the workers were not entitled to any closure compensation.DB) ¥ 5A. P.” (Page: 390.Sec. 25F” (Page: 841. Union of India.” (Page: 395. Bilaspur v.. Para: 3) “the question then is……….. 33C(2) which was payable u/s.951 The writ petition filed by the textile labour association for granting relief from the insertion of conditions regarding closure of a textile unit as laid down by the scheme which provided that in order to claim the relief under the scheme the unit should have been declared to be closed u/s. Para: 1) c) Closure which is subjected to conditions stipulated in a scheme that are discriminatory and arbitrary (Guj.as a going concern……….” (Page: 843.HC) ¥ 5A. and offending Articles 14 and 16(1) of the Constitution. Central India Electric Supply Co. Jabalpur. Official Liquidator & Anr. Further. Jayajothi & Co. Para: 3) “………. Gorakhpur Ward. Rajapalayam v.. & Ors.is accordingly set aside………. Ltd. as discriminatory.under the circumstances………. it would not entitle workmen to claim the benefit of the scheme.DB) “These appeals arise out……….HC) .paid by lessee………. 25-O of the Act or an official liquidator should have been appointed in the process of winding up. High Court held.hereafter as the company………. Labour & Ors.953 Considering established facts that there was common recruitment to the head office and other retailing branches of whole sale co–operative stores as well as common conditions of service.C. Para: 1) “In the present………. Its Workmen. Delhi Consumers Co-operative Wholesale Stores Ltd.) Ltd. When closure is not genuine or not valid a) Workmen continue to be workmen as before (S.” (Page: 22. Having regard to the material findings of fact recorded by the tribunal in the present case.” (Page: 21.of the stores. Para: 3) . It is in the light of these findings that the tribunal made its final award.Fund scheme………. 25F.Act of 1947………. has come to the conclusion that the workmen in question have been improperly locked out and are entitled to reinstatement. Sastri before us.DB) ¥ 5A.A valid reference was made to the tribunal in regard to an industrial dispute between the appellant and respondent 1 and the tribunal.time of closure………. common joint seniority list of all the staff. Kays Construction Co..2636 Chapter VA – Lay-Off and Retrenchment Sec. Para: 1) “In the result………. having consideration the relevant facts.Such a unit should have………. was not fully and genuinely closed nor a proper retrenchment was made but an uncalled for lockout was made. the Supreme Court held that the finding in such cases cannot be interfered with at the stage of the special leave and Tribunal is justified in it’s award that the workmen continue to be workmen as before and never ceased to be the employees of the company and their non-employment was illegal and therefore entitled to reinstatement.952 Where the finding of the Tribunal suggests that the business of proprietorship Co.said condition……….” (Page: 22. there were inter transfers between various branches and head office which were made by General Manager and work at the branches was same.” (Page: 838. workmen would be ‘retrenched’ so as to attract provisions of Sec.DB) “……….of this judgment.for each Coop.would not entitle………. Allahabad.3J) F 5A. 25FFF “The present petition……….” (Page: 664. 25F is violated.3J) “Thus. 1958 II LLJ 660 : 1958-59 (15) FJR 231 : 1959 AIR (SC) 208 (S. Para: 3) “There were inter……….” (Page: 841.Office and branches………. 25F and since Sec. The workmen continue to be workmen. having considered the whole of the evidence adduced before it. (P. Court refused the contention of the Management that a branch retail outlet was a separate distinct undertaking and upheld the award of Labour Court that it is an integral whole and therefore the employer has to abide by the provision of Sec. the award of reinstatement with back wages was upheld and hence upon it’s closure. Para: 2) b) When branch retail outlet which is functionally integral with head office and other branches is closed (Del. 25FFF is not attracted and Sec.the recruitment was………. Para: 3) “………. v. the tribunal observed that enough has been said to show that there is neither full nor genuine closure of Kays Construction Company. Secretary. Ram Baug.not complied with……….The work at……….as under………. Para: 9) XVIII.C. v. we do not think that the validity of the award can be challenged by the appellant on abstract legal grounds sought to be raised by Mr. 1983 (63) FJR 14 : 1983 II LLN 552 : 1983 LIC 1652 (Del.” (Page: 666. nor a proper retrenchment but only an uncalled-for lockout of the workmen. Saurashtra Cement & Chemical Industries Ltd.time of closure………. arbitrary.would not entitle……….Such a unit should have………. as discriminatory. Union of India.as under……….Act of 1947………. And the benefit of the scheme should not be extended to workers who were not on the pay roll of the mill at the time of closure. the same cannot be interfered with and its award was upheld.HC) “The present petition………. 1977 II LLJ 524 : 1977 (51) FJR 184 : 1978 (36) FLR 53 : 1977 II LLN 513 : 1977 LIC 1633 (Del. directed to pay the workers the benefit of the above said scheme called Textile Workers Rehabilitation Fund Scheme. 1990 II LLJ 55 : 1990 II LLN 587 : 1990 LLR 461 : 1990 II CLR 358 (Ori.DB) e) When Letter Press Section is closed since it is not an independent part of establishment as workmen were interchangeable between Letter Press section and Offset Press Unit (Del.. 1993 (66) FLR 1080 : 1993 I LLN 379 (Guj.HC) f) When closure is subjected to conditions stipulated in a scheme that are discriminatory and arbitrary (Guj.of this judgment. Cuttack v.Fund scheme……….957 The writ petition filed by the textile labour association for granting relief from the insertion of conditions regarding closure of a textile unit as laid down by the scheme which provided that in order to claim the relief under the scheme the unit should have been declared to be closed u/s.DB) ¥ 5A. and offending Articles 14 and 16(1) of the Constitution. Para: 1) “In the result………. Para: 2) d) When closure is without any grounds being established for it (Ori.” (Page: 838. the closure of letter press section cannot be said to be closure of an independent part of the establishment as the workers were interchangeable and thus the tribunal was correct in its finding that it was a case of retrenchment and not closure. v.of the Act. Further. these conditions regarding closure of a unit.S.” (Page: 1086.HC) ¥ 5A. High Court held.said condition………. Town Bidi Factory.” (Page: 841.956 A printing press carried on both printing by offset press and by letter press. Acharya & Ors. Textile Labour Association v.DB) “In the instant………. Delhi & Ors. Para: 9) .955 As finding of Tribunal holding closure as void was based on evidence that management failed to establish any ground for closure and in fact there was no closure. Further.. 25-O of the Act or an official liquidator should have been appointed in the process of winding up. 25 FFF and hence in absence of any compliance with mandatory provisions of Sec. if the closure of the unit were effected by an illegal strike by workmen. 2001 II LLJ 838 (Guj. it would not entitle workmen to claim the benefit of the scheme. Labour Court & Anr. Umakant C. 25F terminated employees were entitled to reinstatement with full back wages as they were not gainfully employed. Sidhu & Ors. Raj Hans Press v.O.954 Mechanical workshop adjunct to main manufacturing activity is not a separate undertaking hence termination of services of all workshop employees will not fall u/s. & K. 25FFF When closure is not genuine or not valid 2637 c) When mechanical workshop is closed since not being a separate undertaking but being adjunct to main manufacturing activity (Guj.DB) ¥ 5A.Sec. By allowing the petition..HC) ¥ 5A. The Management of M/s. P. Labour Court. C. Madras Union of Journalists & Ors.. it appears that a large ..C.959 There is no point in the contention of the employees and the finding of the Tribunal to pinpoint to the conclusion that what had actually happened was a mere lock out in the guise of closure and not a real closure because there was no evidence that the action taken in issuing a notice of closure by Manager (Admn. the failure to inform the Provident Fund authorities was an omission but that cannot mean that the workers continued to be in the service of the company or were meant to be taken back into its service as soon as they became submissive to Ramnath Goenka. As a matter of fact.958 The fact that the company i.It must be remembered that the notice which was served by the Management in the matter of closure contained an affirmative declaration not only about the closing down of the factory but also that compensation would be payable under the proviso to Section 25-FFF (1).. & Anr.We have to bear in mind that the company i.C.3J) “………. v.3J) F 5A.2J) F 5A.” (Page: 24. Express Newspapers (P) Ltd. 1969 I LLJ 557 : 1968 (34) FJR 393 : 1968 (17) FLR 311 : 1969 LIC 90 : 1969 AIR (SC) 90 (S.2638 Chapter VA – Lay-Off and Retrenchment Sec.) was not ratified or accepted by the Board of Directors or any other officer who was competent to accord approval and all evidence strengthens the act of closure like termination of all staff even in the branches except a few and no orders were obtained or executed in the matter of sales and that the Supreme Court held that it is not necessary that company should be wound up and machinery of the company should be transferred for an effective closure. 25FFF XIX. 25FFF(1) for whatever reason. we were told that it had been paid for up to a certain date and the fact that the Madurai and Vijayawada companies used the teleprinter service till the end of October 1959 would not either by itself or taken in conjunction with the other circumstances. 1968 I LLJ 15 : 1967-68 (33) FJR 318 : 1967 (15) FLR 435 : 1967 AIR (SC) 1869 (S. There is no evidence that the action taken by the Manager (Administration) was not ratified or accepted by the Board of Directors or any other officer who was competent to accord approval. The Supreme Court therefore overruled the Tribunal’s contention that it is a lock out in the guise of closure but held that it is a closure within Sec.e. Ltd. 2(cc) & 2(l) for connected ratios on this subject b) Closure is not lock-out when board of directors ratified notice of closure and employees discharged in large numbers retaining a few permanent employees and no orders executed in the matter of sales (S. The Secretary. Express News Papers did not come to an end in April 1959 but only it’s business of publishing several weeklies and news papers was closed as inferred from the presence of valuable property on it’s hands after April 1959 and the retaining of some persons including a reporter to look after the property and use of machinery like teleprinter service up to October 1959 cannot be construed as to mean that there was no closure but only lock-out between the two dates and hence it was held that closure was effective from April 1959 but not from November 1959 The Andhra Prabha Ltd. It had very valuable property on its hands after April 1959 and some persons had to be retained in service to look after the property.C. v. Their Workmen. It only closed its undertaking of publishing several newspapers and weeklies. the business of the company was closed from April 29………. Kalinga Tubes. did not come to an end in April 1959. With regard to the teleprinter service. Para: 1) “To all intents and purposes. Further.e. Para: 2) Note: also refer to Sec. It was open to the respondents to ask for production of any resolution passed the Board of Directors or other form decision taken by the Management and if any such attempt had been made and the necessary documents had not been produced adverse inferences could have been legitimately drawn against the Company.and we see no reason to hold with the Tribunal that the closure became effective sometime in November 1959.2J) “……….” (Page: 24. Closure Lock-out distinction a) Closure though effected in stages will not amount to lock-out (S. The fact that one of them was a reporter cannot lead to the inference that the company did not close down its business but could take it up whenever it wanted to. justify the conclusion that the company retained the teleprinter service for its own use. if necessary. 2J) XXI. union filed a complaint in the Court alleging that the employer restarted manufacturing activity at Pune employing some previous employees and the respondent workmen too similarly be employed. Ltd. Straw Board Manufacturing Co.3J) . 25H does not confer automatic employment on the complaint. There is no indication that after the closing down of the factory. 2007 II CLR 637 : 2007 AIR (Bom. page 164 of the printed record). After majority of workmen accepted the dues and compensation in 1982.C... 33C(2) in such cases of closure and hence refusal of the Tribunal to address this issue is not justified. the validity of closure was agitated by the union again in the Industrial Court.. as a corollary is required to decide the closure compensation and the same is not barred by Chapter V-A or u/s. The complaint was allowed which was challenged in the High Court..961 The Tribunal while deciding the issue of closure. Appellant v.C. Pune v. 25FFF Remedy for violation of the section – Jurisdiction of Courts 2639 number of employees at Calcutta and Madras offices as also at the Choudwar Office had been discharged from service or notices of termination of service had been served on them (vide Ex. 25FFF and hence it cannot decline the same nor it is correct to plead that the jurisdiction of the Tribunal can only be invoked u/s. The Apex Court upheld the validity of closure.HC) ¥ 5A.Sec. Bhandari & Ors. 25H which was opposed by the employer. Subsequently. v. C. Ltd.HC) 95 (Bom.. any orders were being obtained or executed in the matter of sales.960 The employer was a manufacturer of rubber products and issued notice of closure in November 1980 due to bad financial condition. 25H a) Retrenched workers though after a valid closure are entitled to be re-employed if the same employer restarts manufacturing activity even after a lapse of thirteen years (Bom. 25H Note: Also refer to the case of Maruti Udyog Ltd. The High Court held that where the same company which was closed.” (Page: 564. It is difficult to accede to the contention of Mr. Closure and it’s effect on workman’s right to re-employment u/s. Somayya S. 33 that only a very small staff of officers and workers had been retained in service out of the permanent cadre. 25H. 29 and the statement of Management witness No. The workman sought re-employment u/s. It appears from Ex. M/s.C. had started it’s manufacturing activities at a different place (at Pune) more so during the pendency of SLP on the question of validity of closure and the legal entity which existed at the time of closure continuous to be in existence when the manufacturing activity restarted.. Para: 2) XX. However the order of reinstatement of the complaints with 50% back wages was set aside as Sec. 4 G. Workmen of the Straw Board Manufacturing Co. Remedy for violation of the section – Jurisdiction of Courts a) Tribunal can decide issue of closure compensation while adjudicating on closure (S. the employer is under an obligation to offer re-employment u/s. Ram Lal & Ors. The union filed a complaint for unfair labour practice which was dismissed by the Industrial Court holding that the closure is legal and valid. Govind Das that the Company must be wound up or that there should have been a transfer of the machinery or the factory before it could be said that the undertaking had been closed down.. Oriental Rubber Industries Ltd. High Court and finally by an SLP in Supreme Court between 1982 to 1995. Rath. 2005 I LLJ 853 : 2005 (104) FLR 820 : 2005 I LLN 1033 : 2005 LIC 864 : 2005 I CLR 964 : 2005 SCC (L&S) 308 : 2005 AIR (SC) 851 : 2005 (2) SCC 638 (S.3J) F 5A. 1974 I LLJ 499 : 1974 (28) FLR 357 : 1974 (45) FJR 266 : 1974 II LLN 102 : 1974 LIC 730 : 1974 SCC (L&S) 406 : 1974 AIR (SC) 1132 (S.HC) Note: Please see related ratio/s under the above citation in Sec. The Tribunal. Mesllamani). 25FFF “We may now deal with another submission of Mr. be the duty of the Tribunal to afford adequate opportunity to the parties to establish their respective pleas on the point. Para: 37) “………. The employees after accepting the dues and all claims of closure still raised the dispute that the closure was not genuine.It will now.963 The employer was compelled to close his undertaking as there was devastating fire. which appertains to the domain of the second issue in the reference.The Tribunal committed a clear error of jurisdiction in not undertaking that enquiry……….HC) ¥ 5A. Madras v. 33-C of the Central Act and that the Industrial Tribunal. We are not impressed by this argument. The submission of the learned counsel is devoid of substance.The reference stands restored to the file of the Tribunal for adjudicating only the question of applicability or non-applicability of the proviso to Section 25-FFF (1) of the Central Act……….. 25FFF and that the employees should have challenged the closure immediately on receipt of notice of closure. Apart from that there is no legal bar to refer to the Tribunal to determine the compensation on closure of an undertaking. State of West Bengal Ors. the question of compensation cannot be gone into by the Tribunal on account of closure of the Mill as found by the Tribunal. According to the learned counsel. Para: 35) “………. Waxpol Industries Ltd.Indeed on the explicit terms of the reference. estoppel or election.HC) . however.2640 Chapter VA – Lay-Off and Retrenchment Sec. The High Court also held that the Limitation Act though not applicable as far as writ petition is concerned the period fixed by the particular Act for filing a suit for corresponding relief should be considered and also though it was not possible to interfere with the order of the Tribunal it was possible to examine whether the award was based on any evidence or not and whether all issues were addressed. The High Court held the Tribunal’s order favouring the employees was not correct as the employees cannot challenge the closure after accepting the dues and compensation under closure and that the employer-employee relation ceased to exit after acceptance of compensation under Sec. therefore. has no jurisdiction to grant appropriate relief in that behalf. Para: 39) b) Workman receiving closure compensation in full and final settlement of claims deemed to have waived his right to remedy (Mad. v. did not address itself to this aspect of the matter as according to it “since it was a legitimate closure the question of compensation could not be determined by it”. Additional Labour Court. The matter. was not at all considered by the Tribunal and the parties were also not allowed to adduce any evidence with regard to the applicability or otherwise of the said proviso before the Tribunal……….” (Page: 512. Hence. Chitaley.A.HC) ¥ 5A. Andhra Laundry (preprietor.. Para: 38) “………. 25-FFF.” (Page: 512.” (Page: 512/513. Madras & Ors. it is not possible to contend that the subject-matter referred to is not an industrial dispute.” (Page: 512. 1968 I LLJ 356 : 1967-68 (33) FJR 431 : 1968 (17) FLR 335 : 1969 LIC 227 (Mad. after accepting the dues and compensation since employer-employee relation comes to an end (Cal. as urged by the learned counsel. does not necessarily indicate that a claim under the said section can be made only under S. in a reference. R. therefore. the order of the Tribunal was quashed.962 The passing of individual receipts by the erstwhile employees in full and final settlement of their claims amounts in law to an act of waiver. 2006 (111) FLR 732 : 2006 III CLR 298 (Cal. The scheme of Chapter V-A or even the language of S.HC) c) Closure cannot be challenged. 25FFA and 25FFF (Guj. Para: 9) “……….is dismissed……….966 An industrial dispute regarding the closure of an establishment was referred to Industrial Tribunal. 1995 III LLJ 677 : 1992 (65) FLR (Sum) 37 : 1992 II LLN 694 : 1992 II CLR 754 : 1993 LLR 763 (Guj. 1973 (27) FLR 460 : 1974 LIC 417 (Pat. Mandal & Co. Ashok Biri Factory & Ors.DB) “………. Act……….DB) “I have no………. employees moved High Court.. 1982 LIC 1574 (Cal. 367 hence a writ of mandamus would lie against a private company since wholesale termination of entire work force by a notice without complying with provisions of Sec. 25F in terms of Sec. 2(s) and entitled to compensation u/s.DB) ¥ 5A. State of West Bengal & Ors.HC) ¥ 5A. Para: 4) e) Tribunal’s findings on the fact of closure not to be interfered with since it involves mixed questions of law and fact (Cal.The question whether………. 25F and 25FFF. 25FFF the case falls.HC) g) Writ of mandamus can lie against a private company when resorted to wholesale termination of work force in violation of Secs.” (Page: 462.the appeal………. Subrata Majumdar v. 3(42) of General Clauses Act as provided u/Art. 33C(2) for determination of closure compensation without raising industrial dispute and Court while determining the same can incidentally determine in which part of the Sec. Sahdeo Thakur & Ors.of the Act. I. 226 has same meaning as laid down in Sec. Miscellancous Mazdoor Sabha v. was quashed and reinstatement with full back wages and continuity in service was directed.” (Page: 1575.964 Workman discharged on closure of undertaking can directly apply to Labour Court u/s. Para: 6) “………. Para: 5) “………. Para: 10) f) Tribunal to determine the status of employees as workmen and their entitlement to compensation while adjudicating on justifiability of closure (Cal. Aggrieved. 33C(2) for compensation without raising dispute (Pat. State of Gujarat & Ors. v. finding of Tribunal cannot be interfered u/Art.the Tribunal came……….967 The term ‘person’ u/Art.” (Page: 1575.25F.DB) ¥ 5A.DB) . The Tribunal held that the closure was justified but did not consider the question about the compensation to concerned workmen u/s. D.the instant case………. 1964 II LLJ 340 : 1964 (9) FLR 56 (Cal. Workmen of Ashok Biri Factory v.any evidence what so ever……….965 Question regarding closure being a mixed question of law and fact. The High Court quashed the award on the ground that it is eminently desirable that the Tribunal shall on evidence on record come to the conclusion as to whether the employees were workmen u/s. 25F and 25FFF and remanded back the matter to Tribunal. 25FFA and 25FFF amounts to injury of public nature.Sec. The reference also included the question as to what relief the concerned workmen were entitled to.In our opinion………. 25FFF was upheld while dismissing petition.. Management of Junkundar Colliery of M/s. therefore such notice was held as null and void. 226 unless it is shown to be a finding without evidence and hence finding on facts by Tribunal that there was a closure entitling workman to the benefit of Sec.” (Page: 1576..” (Page: 1576. 25FFF Remedy for violation of the section – Jurisdiction of Courts 2641 d) Discharged workmen can apply to Labour Court u/s..DB) ¥ 5A.D. Sitaram Kashiram Konde. Cement Corporation of India Ltd.2J) F 5A. Hence the order of the Appellate Court quashing the trial Court’s decree which dismissed the suit for want of jurisdiction.C. B.impliedly barred.Relief Act.2J) “From the narration of the facts it is clear that the services of respondent No.L.” (Page: 691.” (Page: 76. Presiding Officer. T. which paid off the compensation on closure of the Company and whose management was taken up by the corporation subsequently.” (Page: 75.” (Page: 679.L. were available to him u/s.and 25FFF. v. 25FFF “……….” (Page: 73.” (Page: 690. Para: 25) h) Civil Court is barred from adjudicating claim of workman removed on closure of factory. T.. 1969 (19) FLR 71 (Bom.” (Page: 77.” (Page: 74. 2 made an application in terms of Section 17 of the Dalmia Dadri Cement Ltd.e.DB) “In our opinion………. Para: 6) . Industrial Tribunal-cum-Labour Court & Anr. Para: 7) “……….impliedly barred. but not involving an industrial dispute impliedly bar the jurisdiction of the Civil Court. The reliefs which fall within the scope of Chapter V-A. and that such amount was received by him. T.” (Page: 232.C. a fresh agreement appears to have been entered into between appellant management of the workmen to recruit ex-employment of the erstwhile Dalmia Dadri Cement Ltd.” (Page: 232.Even though……….present suit.Nos. 1981 wherein he made a claim that compensation as provided under Section 25-F and 25-FFF of the Industrial Disputes Act which was adjudicated by the Commissioner of the payment for Dalmia Dadri Cement Ltd. 2001 II LLJ 231 : 2002 (94) FLR 455 (S. 2 stood terminated from the erstwhile Dalmia Dadri Cement Ltd.969 Cement corporation of India is not liable to grant any benefit of increment or higher salary to the workmen who was re-employed by way of fresh appointment letter for service rendered in the erstwhile employer i. Para: 5) “Thereafter.” (Page: 75.of the Act.on the other………. (Acquisition and Transfer of undertaking) Act. factory on certain terms and conditions in the light of Section 25-H of the Industrial Disputes Act.. is set aside.question is whether……….: 9) “Whether a suit………. 25FFF and 25H of the Industrial Disputes Act.2642 Chapter VA – Lay-Off and Retrenchment Sec.DB) ¥ 5A.: 11) “It is therefore………. Pigment Lakes & Chemical Manufacturing Co. 3 and 6……….L.to support.968 The relief claimed in a civil suit by the workman who had been illegally removed on closure of the factory and had not been re-employed on it’s restarting. Para: 3) “In view of………. when relief is available under Chapter V-A (Bom. Para: 2) “The Industrial………. Dadri Cement Ltd. Ltd.: 20) i) On fresh employment subsequent to closure. v. Para: 24-A) “It therefore……….L. Pvt. on his closure and in fact the respondent No.: 8) “Thus the Act………. increment and higher salary cannot be claimed (S. P. Para: 7) j) Re-employment of Government servants can be on same terms as per directions consequent up on termination (S. 6Q of U. State of U.2J) F 5A.3J) F 5A.C.P. 2 has retired form service now. Thus.R workers who have been working in the project continuously for more than 240 days. In that view of the matter the order made by the Labour Court shall stand quashed to that extent only.P. Para: 1) k) Employee terminated on closure in violation of Sec.HC) ¥ 5A.. SCC 651 (S. State Governments of Orissa and Madhya Pradesh but affidavit has been filed indicating how they failed in their attempt to get these NMR workers absorbed on regular basis and we have already held that attempt was made bona fide made and yet the authority failed to get these NMR workers absorbed on regular basis.” (Page: 232. Industrial Disputes Act. workers for regular absorption yet issued the direction requiring the project authorize to find out the work for the N. Ltd.C.R.50 lacs per month which is undoubtedly an unnecessary financial strain on the public exchequer.970 Employees of A. 25FFF.. 25FFF entitled to re-employment (All. 1988 I LLJ 328 : 1988 II LLN 348 : 1988 LIC 110 : 1987 SCC (L&S) 71 : 1987 AIR (SC) 1801 : 1986 Suppl. it is clear that the respondent No. 1997 I LLJ 833 : 1997 (90) FJR 299 : 1997 (75) FLR 357 : 1997 II LLN 39 : 1997 LIC 858 : 1997 II CLR 42 : 1997 LLR 193 : 1997 SCC (L&S) 434 : 1997 AIR (SC) 852 : 1997 (2) SCC 296 (S. Koreput v.R. He may have been given benefit of certain increments with higher start of salary but that circumstances would not confer any right upon him to make any claim for any advantage for period of service rendered in the erstwhile employment from which he was retrenched. Para: 11) . Therefore the Labour Court could not order payment of three additional increments. State Construction Corpn Ltd. Saroop Vegetable Product Industries Ltd. However. whatever payments may have been made to him need not be recovered………. 25FFF Remedy for violation of the section – Jurisdiction of Courts 2643 “In the circumstances.……. G. State Construction Corporation. Govinda Rajulu v. 1986 (53) FLR 218 : 1986 II LLN 835 : 1987 LIC 1286 (All. termination amounted to retrenchment and they were entitled to re-employment as per Sec. & Anr.C. v. Management of Dandakaranya Project.” (Page: 837.. A dispute was raised as management refused to take back the workmen and Labour Court held that closure in pursuance of notice issued was not in accordance with Sec.Sec. since Responded No.R. we direct that the employees of the Andhra Pradesh State Construction Corporation Limited whose services were sought to be terminated on account of the closure of the Corporation shall be continued in service on the same terms and conditions either in the Government departments or in the Government Corporations.HC) l) No relief of regularization when compensation as per section is paid (S. Workmen through Rehabilitation Employees Union & Ors.3J) “We have carefully considered the matter and after hearing learned counsel for the parties.C.. & Ors. were terminated on account of closure were directed to be employed in Government Department or corporation on same terms and condition.972 On the closure of Dandakaranya Project the Apex Court held that the employees who were working since 1958 are to be paid compensation in accordance with the Act and order of tribunal directing the project authority to regularize 425 NMR workers was set aside. The A. 1981.971 Workmen resigned after they were informed that employer had decided to close down the factory but it was restarted after two years.2J) “Even after coming to the conclusion that the project has been wound up and there is no employment facilities for these N.P. It may be stated tht even though the project has been wound up and its assets and liabilities have been transferred to the State of Orissa and State of Madhya Pradesh yet on account of an interim order passed by this Court the 425 workers are sitting idle and getting wages to the tune of 1. The High Court upheld Labour Court’s order. 2 started a fresh career under the appellant on being appointed with effect from December 18.” (Page: 328.. that it did not have any functional integrality with the II Unit and that there was no victimisation of workmen for their trade union activities. however. ……. Hence the official liquidator was directed to look in the justifiability of the departure and remove in justice if any done to their if the past record was clean.” (Page: 837/838. so far as it relates to 425 N. 25FF F of the industrial Disputes Act.973 The termination of the services of the employees was held not retrenchment but termination of services on the closure of the Industry and the principle last come first go of Sec. workers would have been otherwise retrenched but the for the interim order of this Court in consequence of which the project authorities have been paying every month to these workers to the tune of Rs. the principle of ‘first come last go’ u/s. Isha Steel Treatment. workers stands vacated. Chandrasekharan v.the termination of the services………. The interim order passed by this Court in relation to these N.he adjusted accordingly.C. therefore. 25G not applicable to termination due to closure since it is not retrenchment (Ker. Bombay v..” (Page: 844/845. 25-G of the Act which is applicable to a case of retrenchment would not arise.DB) ¥ 5A. merely he is senior.2644 Chapter VA – Lay-Off and Retrenchment Sec. Para: 12) “In the circumstances we hold that the direction issued by………. Para: 7) “………. was held bonafide.R. 25G is not applicable when closure of a unit was genuine having no functional integrality to other units (S. Para: 1) n) Sec. On going through the award passed by the Tribunal we feel that it had not committed any error in recording the said findings……….DB) “……….On the admitted position that the Dandakaranya Project has been completely wound up since 1990 and these N. workers should be entitled to compensation as provided u/s. workers is accordingly set aside and we hold that these N. Official Liquidator & Anr. During the pendency of this appeal on behalf of the Union a Scheme has been framed seeking 100 months’ full pay as compensation. 1. Association of Engineering Workers.M.R.” (Page: 837. we think that any direction to pay compensation in terms of the Scheme will not be in the interest of justice. 25G has to be followed by the official liquidator as a general rule emphasizing the principle of justice equity and good conscience.R.M.The question of application of S. 1966 I LLJ 844 (Ker.Hence if the case is one of genuine closure then the question of applying S.50 lacs without getting them engaged in any work. The appeal is accordingly allowed……….C.. 25-G of the Act arises only when the services of the workmen are retrenched………. 25FF F of the Industrial Disputes Act.2J) F 5A. 1987 I LLJ 427 : 1987 (71) FJR 11 : 1987 (54) FLR 454 : 1987 I LLN 741 : 1987 LIC 1028 : 1987 I CLR 232 : 1987 SCC (L&S) 91 : 1987 AIR (SC) 1478 : 1987 (2) SCC 203 (S.” (Page: 432.R. 25FF F of the Industrial Disputes Act.M. 25FFF “Under the Industrial Disputes Act if an Industry is closed the employees thereof are entitled to compensation as provided u/s. Bombay & Anr.” (Page: 432.M. Para: 11) .2J) “……….974 In instant case since closure of one unit which did not have any functional integrality with the II unit. 25G which is applicable to a case of retrenchment was held to be inapplicable. the workers would be entitled to their rightful dues on account of closure of the project as envisaged u/s. cannot assert his right in preference to his efficient juniors. However an inefficient unreliable a habitually irregular employee.the Tribunal had reached the conclusion that the closure of the I Unit was bona fide.. Para: 13) m) Principle of last come first go of Sec.” (Page: 433. But. set aside the judgments of the Division Bench and of the learned single Judge and restore the award passed by the Tribunal.The award of the Industrial Tribunal. Para: 10) “We. P.C.HC) District Transport manager (Admn. Procedure for Retrenchment – Sec. Hotels v. victimisation or unfair labour practice it is not intended to deny freedom to the employer to depart from the said rule for sufficient and valid reasons and hence the Industrial Tribunal shall be satisfied that the departure from the rule was made for sound and valid reasons.DB) Note: Please see related ratio/s under the above citation in this section . 1996 II LLJ 1063 : 1996 (5) SCC 522 (SC)(S. Goods Transport Co. Object and Scope a) To safeguard the workmen against discrimination. RPF Commissioner. 1998 (2) WLC (Raj. 2002 I LLJ 224 (Karn. M/s. Ltd. Their Workmen..HC) U. v. Swadesamitran Limited Madras v. Dilip Kumar Nayak & Anr.975 Although the principle of ‘last come-first go’ is intended to safeguard the workmen against discrimination.C.C. v.) O. Regional Provident Fund Commissioner.3J) F 5A. 21 and hence the writ Court cannot decline to interfere with them on the ground that they are domestic disputes under private law..C.. 2003 AIR (SC) 1561 : 2003 (3) SCC 524 Times publishing House Ltd. 1996 (88) FJR 323 (Ker. 1997 AIR (SC) 58 : 1996 (4) SCC 454 : 1996 II LLJ 662(S. Straw Board Manufacturing Co. State of Rajasthan.HC) Regional Provident Fund Commissioner.R. and hence the burden of proof lies on the employer and where the employer fails to discharge the said burden and justify the departure. Ltd.3J) Sadhana Lodh v.T.C. Naraini Udyog & Ors. M/s. National Insurance Co.3J) Note: Please see related ratio/s under the above citation in this section b) Sec. v. 25G and 25F are regarding statutory rights & right to livelihood u/Art. Pancha Mayurakashi Cotton Mills Employees Union & Ors.2J) Aditya Synthetics v. v. Orissa v.. 1974 I LLJ 499 : 1974 (28) FLR 357 : 1974 (45) FJR 266 : 1974 II LLN 102 : 1974 LIC 730 : 1974 SCC (L&S) 406 : 1974 AIR (SC) 1132 (S. 1997 II LLJ 382 : 1997 (90) FJR 289 : 1997 II LLN 10 : 1997 I CLR 354 : 1997 (9) SCC 296 : 1997 SCC (L&S) 1297 : 1997 (10) SCC 260 (S. Union of India.. Ltd...HC) Workmen of the Straw Board Manufacturing Co. retrenchment so made was held to be malafide and as a result of ulterior consideration and therefore amount to unfair labour practice and victimization.976 Disputes about termination of service in violation of Sec.2J) Pai Sales Corporation v. Regional Provident Fund commissioner and others 2007 III LLJ 1068 (Raj. 25F and 25G are not cases to enforce private rights or contractual rights or obligations but statutory rights and also right to livelihood u/art.C.C. M/s.. victimisation and unfair labour practice (S. 21 (Cal.K. from the rule. State of West Bengal & Ors.RPF Commissioner. 25G I.2J) Rajasthan P.Sec.HC) K. 25G Object and Scope 2645 Note: Please also refer to the following cases of closure of establishments in the context of functional integrality Hotel Mahaveer v. 1995 I LLN 1222 : 1996 LIC 328 : 1995 LLR 749 (Cal. 1960 I LLJ 504 : 1960-61 (19) FJR 46 : 1960 (1) FLR 337 : 1960 AIR (SC) 762 (S.DB) ¥ 5A. like efficiency or trust worthy character of the employees etc.S. Jaipur v. 1994 II LLJ 76 (Raj. 2646 Chapter VA – Lay-Off and Retrenchment Sec. M.DB) Note: Please see related ratio/s under the above citation in this section II.S. 25F (Bom. Navbharat Shramik Sangha.. 1966 I LLJ 844 (Ker.DB) “………. & Anr.. Bhopal & Ors. Shyam Lal & Ors.979 The termination of the services of the employees was held not retrenchment but termination of services on account of closure of the industry and the principle of ‘last come first go’ of Sec.” (Page: 844/845.Act also. Dattatraya Shankarrao Kharde.the termination of the services………. Chandrasekharan v. 25G. Para: 54) “It has……….B.e. Municipal Corporation of Delhi v. Madhya Pradesh Pollution Control Board. Arun Tukaram Wankhede v.. illegal and non-est.under appeal. employer should commence with latest recruitee and progressively retrench workmen higher up in seniority list.E.he adjusted accordingly..977 Sec. Para: 17) “It is thus clear……….DB) Navbharat. 25F.” (Page: 412. Maharashtra State Electricity Board & Ors. 25G & 25F form implied part of Contract of Service (Bom..HC) 2. Chief Gate Erection Unit No.DB) ¥ 5A.accepted. 25G c) Sec. 25G has to be followed by the official liquidator on the principles of justice. 1984 II LLN 132 : 1984 LIC 445 (Bom. Principle of last come first go a) When applicable 1. Pune v.DB) “Turning then……….HC) ¥ 5A.HC) Termination – without complying with Sec. equity and good conscience but it can only be deviated on grounds of efficiency and trustworthy character of the employees who is directed to review the termination of services of employees already made and the rights of the employees are to be adjusted accordingly. Executive Engineer. 25F and 25G of the Industrial Disputes Act would form implied terms of contract of service of the appellants and failure to comply with the same amounts to breach of agreement within the meaning of item 9 of Sch. 1998 III LLJ (Sum) 293 : 1995 II CLR 588 (Bom.HC) Note: also refer to the following cases Ram Sahay Patel v. 1994 I LLJ 395 : 1994 I LLN 297 (Bom. Workers Federation. IV of MRTU and PULP Act 1971.978 While ordering retrenchment the accepted principle of “last come first go” should be applied i. 25G is independent of Sec. 2003 II LLN 155 (MP. Official Liquidator & Anr. 1994 II LLN 1144 : 1995 I CLR 315 (Del.DB) ¥ 5A. Applicable when employees are retrenched (Del.” (Page: 411. Para: 1) . Hindi Daily. Nagpur v. Nagpur.” (Page: 400. Applicable while terminating employees even on closure of industry (Ker. Para: 57) d) Sec.2. DB) “………. 25B (Raj. This posits that there is one code governing the grades of workmen and their scales of wages and that is ordinarily possible only when the establishment is functioning at a given place.C. v. N. Sec. Tribunal found that workman had rendered only 79 days service but granted him reinstatement as Sec.. Ltd. Indian Cable Co.we hold that………. Applicable not only to permanent employees but also to temporary reserve conductors (Ker.the legislative intent………. On appeal.C. v. 25G Principle of last come first go 2647 Note: The Apex Court in Hariprasad Shivshankar Shukla & Anr.. 25H are independent provisions and applicable to all cases of retrenchment and completion of 240 days service was not a necessary condition for applying the said provision.Sec.. 1957 I LLJ 243 : 1956-57 (11) FJR 317 :1957 AIR (SC) 121 (S.O. 25G was held applicable not just to permanent employees satisfying Sec. P.& Anr. 25G would be incapable of compliance unless all the branches have one scale of wages and the rules provide for automatic transfer from place to place having regard to the seniority and grades.” (Page: 114. Para: 1) 4. the conclusion would appear to be inescapable that each branch of a company should normally be regarded as a distinct industrial establishment. Ltd.HC) .. 25G is an independent provision and is applicable even where an employee did not complete 240 days of service or put in continuous service in terms of Sec.HC) ¥ 5A. Para: 1) “……….” (Page: 115.regarded as valid………. Workman raised a dispute contending that he was wrongfully terminated. therefore unless rules provide for automatic transfer from place to place with regard to seniority and grades the section is not attracted in case of different branches having different pay scales and categories of workmen hence in instant case each branch of the company is to be treated as a separate industrial establishment.CB) “Then again on the terms of Sec. Para: 5) 5. A.982 The workman was appointed on a leave vacancy for a fixed term and he was automatically terminated after the expiry of the said period.C.” or to the limitation of relief under S. 25G. Prabhakaran & Ors. 25H violated. Joglekar & Anr. Thus whether we have regard to the popular sense of the words “industrial establishment. High Court upheld the order of the Tribunal and held that both Sec.981 Sec.” (Page: 115. v. the rule laid down in Sec.25G to workmen in the same category.CB) F 5A. v.” (Page: 417. General Manager. Applicable to workmen within the same category of the same establishment and not of different branches unless inter-transfer of workmen is permissible among them (S. 1994 II LLJ 770 : 1993 (66) FLR (sum) 27 : 1993 I LLN 316 : 1993 I CLR 205 (Raj.CB) held that the principle is applicable only to continuing industry and hence not applicable to industry in case of closure 3. Central Government Industrial Tribunal & Anr. Oriental Bank of Commerce v. 25G.Another point advanced………. D. P. Para: 3) “………. Divelkar & Anr. K.petitioners before us. 25F but is also applicable in case of proposed termination of temporary reserve conductors not in continuous service for one year. AND Barsi Light Railway Co. 1962 I LLJ 409 : 1962-63 (22) FJR 262 : 1962 (4) FLR 444 (S.DB) ¥ 5A.by Section 25F………. 1981 (42) FLR 113 / 222 : 1981 I LLN 510 (Ker. If there are different branches in different places and there are different scales of wages. 25G and Sec. the relief provided therein is to be granted with in the category of workmen who are proposed to be discharged. Kerala State Road Transport Corporation . Its workmen.980 Relief under the section is granted only to workmen within the category of workmen proposed to be discharged. Act read with Section 2(z) of the U. 6P (corresponding to Sec. 25B of the Act is not necessary before he was retrenched so far as statutory requirements u/s.. & Anr.C. Jaipur Development Authority v. Presiding Officer in a matter which arose under this very Section 6-P of the U. Act which defines workman. in the absence of any agreement between the employer and the workmen in this behalf the employer shall ordinarily retrench the workmen who was the last person to be employed in that category. Act (which corresponds to Section 25G of the Central Act of 1947) states that where any workman in an industrial establishment is to be retrenched and he belongs to a particular category of workmen in that establishment. 6P which is pari materia to Sec.P. M. In Kamlesh Singh v. it was so held. Act which is pari materia to Sec. Act. 6N (corresponding to Sec.P.2648 Chapter VA – Lay-Off and Retrenchment Sec.D. Now this provision is not controlled by conditions as to length of service contained in Section 6-N (which corresponds to Section 25F of the Industrial Disputes Act. the directions issued by the Labour Court could be treated as valid. 2003 III CLR 1016 (Del. 25G and High Court also was wrong when it held that no rule of seniority was applicable to daily wagers.P. Hyderabad. The principle applies only to a case of surplusage.D.C. 25G is applicable though the workman is not in a continuous service within the meaning of Sec.2J) “Mr. Jain appears to be right when he submits that continuous work in terms of Section 25B of the Act is not necessary in so far as statutory requirements under Sections 25G and 25H are concerned.. Mallaiah Pvt.984 Continuous work in terms of Sec. Supreme Court held that the High Court was wrong in relying on the fact that the appellant had put in only 3 ½ months of service and in denying relief u/s. 25G and 25H are concerned Sec. Section 6-P of the U. & Ors. Act..” (Page: 524. 25G Note: also refer to the following case/s Gopal v. 25G does not require any particular period of continuous service as required by Sec. There is no such restriction in Section 6-P of the U. 6N of U.983 Since Sec. Etawah & Anr. I. unless for reasons to be recorded. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. 2007 (1) SCC (L&S) 518 : 2007 I LLJ 429 : 2006 (111) FLR 1178 : 2007 I LLN 78 : 2007 LIC 274 : 2007 I CLR 221 : 2007 LLR 92 (S.2J) F 5A. City Board.985 Principle of “last come first go” cannot be applied to each and every form of termination of service. 6N of U. Applicable only in the case of surplusage (AP. Para: 24) “We shall next deal with the point whether. 1999 I LLJ 1012 : 1999 (81) FLR 746 : 1999 II LLN 1 : 1999 LIC 1125 : 1999 I LLR 460 : 1999 SCC (L&S) 592 : 1999 AIR (SC) 1056 : 1999 (3) SCC 14 (S. 25F F 5A.2J) Note: Please see related ratio/s under the above citation u/s. 6P of U. Section 6-P does not require any particular period of continuous service as required by Section 6-N. 25F of the Central Act) it does not become applicable only on completion of any particular period of continuous service and hence it was held that High Court was erroneous in rejecting relief to a worker terminated in violation of ‘last come first go’ principle on the ground that only three and half month’s service was rendered Samishta Dube v.HC) 6. Sec. 1983 I LLN 613 (AP.P.C. Ram Sahai & Anr. Andhra Bank (by Assistant General Manager). Para: 26) 7. 25G of Central Act) is not subject to any conditions as to length of service contained in Sec.HC) . I. Hence. The said question appears to have been considered by this Court in some decisions” (Page: 524.D. the employer retrenches any other person. v.P. Para: 26) “Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers.P. Act (S.HC) ¥ 5A.” (Page: 524.C.P. 1947). in case employees junior to the appellant were retained. gratuity and bonus and service conditions in general are applicable to the employees of the company in all its branches. Therefore. 25G of the Act in as much as there is no functional integrality between various Branches. v.986 The daily wager of Bihar State Schedule Caste Co-Operative Development Corporation were terminated as per Sec. there can be no . Applicable to daily wagers also (Pat. the finding is that the rules of the company relating to provident fund.” (Page: 417. Para: 1) “Now the facts on which the above conclusion was reached may be classed into two categories-those which have reference to the management of the Industry and those which bear on the service conditions of the workmen. prepares a consolidated balance sheet and rules regarding provident fund.987 Where the scales of pay were different for different branches with different categories of workmen and their services are not transferable from one branch to another and the branch was not geographically proximate to the Head Office and each had separate accounts. It does not lead to the inference that all the branches were treated as one. But High Court observed that “Last come first go” rule was not followed and similarly placed workmen were reinstated by an order of High Court. that the six respondents were appointed not by the Ambala branch but by the company and that they were discharged on 8 May 1958 by the company. Indian Cable Co. the company has its own consolidated annual balance-sheet as required by the provisions of the Companies Act. industrial labour union.” On this evidence. State of Bihar & Ors. 2001 (91) FLR 262 : 2001 III LLN 296 (Pat. Dealing with the former. Para: 2) “We are of the opinion that the facts stated above do not support the conclusion of the tribunal that all the branches form one unit of industrial establishment. the tribunal finds that it is the company with its registered office at Calcutta that controls and runs all the branches. Its workmen. that the branches do not prepare each its own individual annual balance-sheet.In this situation the course which we propose to adopt is first to determine whether the branch at Ambala is a separate Industrial establishment within S. W. 25G. Ltd.C.” (Page: 418. termination was set aside and reinstatement directed. but that it is only the company that prepares its annual balance-sheet. gratuity..” (Page: 417. the control of these branches must necessarily vest in it. bonus and similar benefits.HC) 9.CB) F 5A. of the Act. Para: 3) “It is therefore clear that while the branches have their own separate accounts.Sec. Shankar Prasad v. 25F. In our opinion. and then decide the rights of the parties in accordance therewith. there cab be only one annual balance-sheet for the whole company……….C.” (Page: 416. If a company establishes several branches. 1962 I LLJ 409 : 1962-63 (22) FJR 262 : 1962 (4) FLR 444 (S. Applicability to be examined with reference to each branch as a seperate entity but not with reference to the whole establishment as one entity when there does not exist functional integrality (S. 25G.HC) ¥ 5A. could be applied. What is material for the purpose of the present discussion is whether the same rules relating to the category of workmen and their scales of wages are in force in all the branches. banking accounts. the facts stated above do not necessarily lead to the conclusion that the head office and the branches must all be regarded as forming one Industrial establishment………. But this again appears to us to be not of much consequence. that it is the company that employs the workmen and dismisses them. It only signifies that all the employees of the company were treated alike in the matter of provident funds. including therein the accounts of all the branches and that it is the company that meets the financial requirements of the branches………. On that the uncontradicted evidence of R. bonus are applicable to the employees in all the branches and as control of branches rests in company and only one annual balance sheet for company was prepared and therefore each of the branches is to be regarded as independent for the purposes of Sec.CB) “………. 25G Principle of last come first go 2649 8. 1 is that “the Indian Cable Company has different scales of pay for different branches. Para: 2) “Turning next to the facts relating to service conditions of the workmen. and under the provisions of the Indian companies Act. the branch at Ambala was held to be a distinct industrial establishment. and it is immaterial that the Head Office appoints and dismisses employees. It is only then that S. ” (Page: 116. High Court held that there was functional integrality between workmen at Vizag unit and units at Hyderabad and hence setting aside order of Single Judge which affirmed decision of Tribunal. see Section 2(ka) and 25FFF 10.” (Page: 419. Tulsidas Khimji v. Para: 1) “………. Para: 4) “………. workers were liable to serve in any part of India.2650 Chapter VA – Lay-Off and Retrenchment Sec.. Vizag etc. Para: 2) “The Tribunal held……….. Para: 3) “The appellant also contends that each branch has its own labour union. Para: 38) . 1986 LIC 107 (AP.” (Page: 418.” (Page: 116.And in this case the branches are located in different places and there is also a lack of functional intergrality. Para: 37) “Viewed from any………. (1) clearing and shipping Agency (2) Insurance Agency (3) Godown keeping and (4) Cotton supervisors and controllers and they were distinct and complete units carrying on different lines of business.e.the said order………. that workmen were transferred freely from one unit to another and their seniority at new unit was fixed as per length of service in old unit and as per their appointment order. v. Secunderabad & etc. Para: 1) ¥ 5A.the four departments of………. Para: 6) Note: for more ratios on functional integrality. Hyderabad. that the Balance Sheet of the Company was consolidation of accounts of all the units together.DB) “From the evidence………. All units to be considered as one entity for the purpose of applicability of Sec.Industrial establishment and……….” (Page: 43. Employees Union.e. Hindustan Steel Works Construction Ltd.” (Page: 49.DB) ¥ 5A.” (Page: 49.the contention urged……….to be reinstated………. 25G and hence tribunals award holding so was set aside. 1961 I LLJ 42 : 1960-61 (19) FJR 396 (Bom. that conditions of service. gratuity etc.the retrenchment was………..” (Page: 115. the establishment in each branch must be treated as a separate entity………..989 After considering the fact that accounts of all units of the Company i. employees belonged exclusively to that staff and as rule not transferable and seniority of employees being department wise. though separately prepared were consolidated in corporate office and were published and put before the Board of Directors. 25G when functional integrality exists among them (AP.” (Page: 419. Jeejeebhoy. having separate and independent management. in consequence.passed by respondent. pay scales. retrenchment of workmen of Hyderabad unit in violation of Sec. Hyderabad & Anr.against the respondents. 25G question of integrating workmen retrenched in one branch to another branch and. each department employed it’s own staff. in all the units were uniform.the said respective departments………. We are of opinion that each branch is a separate Industrial establishment.govern the situation………. Para: 32) “From the foregoing……….DB) “The petitioners are a………. F.Tribunal is confirmed. Para: 5) “……….988 Since there was no unity of employment and conditions of service between four departments i. it was held that for retrenchment of employees of one department all the departments cannot be treated as one single establishments for purpose of applying Sec. maintains its own accounts and has its own banking accounts and that those facts go to show that each branch is a distinct Industrial establishment.” (Page: 44. 25G by retaining workmen junior to them at Vizag unit was held illegal and void Hindustan Steel Works Construction Ltd. 991 The cognate Sec.C. Hariprasad Shivshankar Shukla & Anr. Indian Cable Co. AND Barsi Light Railway Co. Goswami’s contention is………. All the provisions relating to lay off in Ss. Labour Court. 25G was violated in relation to whole establishment and followed only in relation to flavour branch and thus the retrenchment of flavour branch scientist was unjustified. no difficulty is presented by Ss. 25G and 25H apply only to an existing or continuing industry hence these Sections would not apply in cases of closure. who has appeared for the principal respondent in one of the appeals. 25G does not arise unless the closure itself is impugned as bad on the ground not bonafide. As such it was held that the affected employees are not entitled to any relief under that section.CB) F 5A. v. has pointed out that if the definition clause covers the case of termination of service in a continuing business as also termination of service on a closure of business. Divelkar & Anr.was not justified……….-G and 25-H. We agree that if it is conceded that definition clause includes cases closure of business.” (Page: 319. v.Principle last come first go – when not applicable a) Not applicable in case of closure of establishment (S. is closed down and such unit was held to be separate and independent having no functional integrality. almost in their entirety. supervision and control.992 When a branch of an establishment situated outside the state. unity of finance and employment.25-G and 25-H provide for some instances of retrenchment only is no ground for holding that they exhaust all possible cases of retrenchment or that S.C.CB) “Two other cognate Sections to which our attention has been drawn are Ss 25.C. the decision of the Labour Court that Flavour branch was not a separate industrial establishment but a department of Tocklai Experimental Station was upheld and thus in not considering service of other people in the establishment while retrenching the biochemist of the Flavour branch.the rule of “first come last go” u/s. K..” (Page: 317.CB) .HC) Note: Please see related ratio/s under the above citation in this section III. does definition clause cover cases of closure of business. to a running business only. Ltd. Para: 2) Note: for more ratios on functional integrality. when the closure is real and bona fide? The point to be egmphasised in that connection is that there is no provision (except perhaps S 25-FF inserted in 1956 by Act 41 of 1956 to which we shall presently refer) which can be said to bring a closed or dead industry within the purview of the Act. Joglekar & Anr.. see Section 2(ka) and 25-FFF 11. The provisions of the Act.Tocklai Experimental station. the circumstances that Ss.I. 1992 (65) FLR 1014 : 1992 II CLR 730 (Cal. They are applicable. The learned Attorney-General. N. A. 1962 I LLJ 409 : 1962-63 (22) FJR 262 : 1962 (4) FLR 444 (S. labour. 25G Principle last come first go – when not applicable 2651 ¥ 5A. Food Corporration of India & Anr.990 In the instant case since there was unity of management. Applicable to F.C. conditions of service. Assam & Ors.Mr.” (Page: 249.. Ltd. Para: 1) “……….C. v. Para: 2) “In our opinion……….HC) F.DB) “………. it was held that the question of applicability of Sec.I godown since industry (Cal. Workers Union & Anr. clearly enough.25-F must also be restricted to a running business only. deal with an existing or continuing industry. 1957 I LLJ 243 : 1956-57 (11) FJR 317 :1957 AIR (SC) 121 (S.There is unity of management……….. 25-G and 25-H. v. Para: 2) F 5A. functional integrality and general unity of purpose and geographical proximity between activity of flavour branch which was closed and the establishment (Tocklai Experimental Station). D. Its workmen.in the present case. 25-A to 25-E are also inappropriate in a dead business. But the fundamental question at issue is. Tocklai Experimental Station v. 1966-67 (30) FJR 311 (Ass.Sec.” (Page: 315. the principle of “last come first go” is applicable to a case where on account of reduction of work or shrinkage of cadre. & Ors.993 A person reappointed under the condition that break in service would be treated as leave without service.” (Page: 419.3J) F 5A. therefore. efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service.2652 Chapter VA – Lay-Off and Retrenchment Sec. On the admitted set of facts.” (Page: 493. 25G “On this finding it follows that the dispute of the respondents in an Industrial Dispute as defined in Sec. State of U. But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with the terms and conditions of his service. the order of termination in the instant case could not be rendered illegal or unjustified on the ground of juniors being retained in service.C. cannot claim seniority over other person who got benefit of seniority as a result of said persons resignation on application of rule of ‘last come. Mahaveer Singh & Anr. are not entitled to any relief under that Section. Para: 1) “………. Rajasthan State Road Transport Corporation v.The fact remains………. Trivandrum & Ors. there is no question of violation of Sec. Industrial Tribunal. it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service..In our opinion.when so re–appointing………. Para: 1) c) Not applicable to termination of temporary Government employee (S. Para: 4) “………. If this principle is not accepted there would be discrimination and the order of termination of a junior employee would be unreasonable and discriminatory. 1961.C.3J) “……….” (Page: 492. 25H of the Act.HC) .treating the break………. 1961 was extended to enable him to complete his apprenticeship training as per one of the clauses of the agreement under Apprenticeship Act. v. Association of Planters. applicable under which senior in service is retained while the junior’s services are terminated. 25G not available in case of break-in-service (Ker.” (Page: 353. But as the establishment has been closed and the closure itself is no impugned as bad on the ground that it is colorable and not bonafide. Kaushal Kishore Shukla. Para: Last) b) Protection of seniority u/s.P.1 October 1949………. 1991 (62) FLR 350 : 1991 (78) FJR 441 : 1991 I LLN 343 : 1991 I CLR 732 : 1991 SCC (L&S) 587 : 1991 (1) SCC 691 (S. 1962 I LLJ 491 : 1961-62 (21) FJR 514 : 1962 (4) FLR 16 (Ker. 14 and 16 of the Constitution and cannot be held to be illegal. as that has been raised by the majority of the workmen of the Ambala branch which is an Industrial establishment. retrenchment takes place and the services of employees are terminated on account of retrenchement. 1999 II LLN 609 (Raj. Kerala v. 25G and Sec. If a junior employee is hard working. The view taken by the High Court is not sustainable in law. 2(k). It was held that in such a case he cannot be treated as a workman even after one year’s training.994 It is held that the temporary Government employee who does not hold a post can be terminated any time without enquiry in terms of condition of service and rules framed there under and the principle of “last come-first go” does not apply to such cases where the work and conduct of temporary employee although senior. the termination of senior temporary employee was held does not violate the principle of equality enshrined u/Art.and fresh employment………. In the event of retrenchment the principle of “last come first go” is. Thus.” (Page: 492. 25G has no application and the respondents.. Sec. If out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct.favour of John……….995 Training period of an apprentice u/ Apprenticeship Act. enshrined under articles 14 and 16 of the Constitution.DB) ¥ 5A. Such a procedure does not violate the principle of equality. was found to be unsuitable while junior employee was found suitable.DB) “………. Para: 1) d) To an apprentice appointed under Apprenticeship Act even though his apprenticeship training is extended as per the terms of agreement (Raj.HC) ¥ 5A. first go’. however.2J) “However. 1983 I LLN 613 (AP. 25G not applicable to termination on account of loss of confidence. Para: 10) b) Seniority List to be common for workers of both the yards when they have same pay scales and their services were transferable between the two (Pat. Harmesh Kumar.HC) IV. The said provisions. Para: 26) Note: please refer to Sec. of workmen of the Siliguri yard due to it’s closure on account of completion of work without adhering to the principle of ‘last come first go’ on the basis of common seniority list for both the yards was held violative of the mandatory provision of the Section and hence illegal.998 In view of the fact that the casual labour at Siliguri yard have come from Katihar yard where they were working previously and some of the workmen on completion of the work at Siliguri Yard. & Ors. since it is also required to be maintained so as to enable the employer to offer services to the retrenched employees maintaining the order of seniority but said provisions.DB) ¥ 5A. Uni Abex Alloy Products. 1994 III LLJ 684 : 1988 I LLN 239 : 1988 I CLR 26 (Bom.” (Page: 193.2J) F 5A. Hyderabad.DB) “In the present……….997 Category-wise seniority is required to be maintained by an employer when different categories of workmen are appointed so as to apply the principle of “last come first go”. 2007 I LLJ 488 : 2006 (111) FLR 1202 : 2007 I LLN 95 : 2007 I CLR 227 : 2007 LLR 183 : 2007 AIR (SC) 288 (S.HC) ¥ 5A. have no application in a case where Sec. Bhogpur Co-op. Mallaiah Pvt. 2(ka) and 25-FFF for ratios on functional integrality 1970 II LLJ . the two yards could be regarded as one establishment though seperated by distance and hence the retrenchment by Railways. Andhra Bank (by Assistant General Manager)... Ltd. A seniority list is also required to be maintained so as to enable the employer to offer services to the retrenched employees maintaining the order of seniority. Somu Kumar Chatterjee & Anr. were transferred back to Katihar Yard and also. 25G Procedure for implementing ‘last come-firstgo’ principle 2653 e) Not applicable when retrenched employee is the only employee of the department (Bom. however. Sugar Mills Ltd.DB) Arvind Anand Gaikwad v. Procedure for implementing ‘last come-first go’ principle a) Employer to maintain category wise seniority list when different categories of workmen were appointed (S. 179 : 1970 (21) FLR 37 : 1970 LIC 629 (Pat. v. would have no application in a case where Section 2(oo)(bb) of the Act is attracted.struck down. District Signal Tele-Communication Engineer & Anr. of the fact that the pay scales of the casual workmen at both the yards were same.C..Sec. v.DB) Note: Please see related ratio/s under the above citation in this section f) Not applicable to termination on loss of confidence (AP.” (Page: 490.996 Sec.C. & Ors. v. category-wise seniority is required to be maintained when different categories of workmen are appointed so as to apply the principle of ‘last-cum-first go’. 2(oo)(bb) of Industrial Disputes Act is a attracted. 1995 I LLJ 1245 : 1995 (70) FLR 541 : 1995 I LLN 235 : 1995 I CLR 157 : 1995 LLR 234 (Bom. Their Workmen.1003 Two units were owned by the same employer. The Divisional Supdt.e. G. Hari Narain Gole & Ors. Associated Cement Co.R.2654 Chapter VA – Lay-Off and Retrenchment Sec. Lachhman Dass v. Ltd.HC) ¥ 5A..HC) e) Reason for departure of seniority principle must be shown on the face of order. India Tyre & Rubber Co. Shinde v. 25G for the purpose of retrenchment K. (India) Pvt.any force.2. 1957 II LLJ 506 : 1957-58 (13) FJR 108 (Mad. 10. Abdul Rahiman & Ors. Mistry & Co.HC) ¥ 5A. 1992 LIC 1997 (P&H. 25G must be shown on the face of order and merely presence of reasons in the file of employer is not sufficient. located at two different localities workers were transferred from one unit to other.. 25G of the Act.HC) g) Combined seniority of two units owned by the same employer to be considered if transfer of employees from one unit is permitted to another unit (Bom.HC) f) Each branch of the company/concern to be a separate establishment.HC) ¥ 5A. Para: 4) d) Seniority of watchman promoted to the post of driver is to be computed from the date of confirmation in that post (Bom. while junior watchmen were in service. 1980 II LLN 392 : 1981 LIC 217 (Ker.divisions. Southern Rly. and workmen employed at the concerned branch alone must be taken into consideration and not the entire strength of that category of workmen at all it’s branches. 25G c) Seniority list maintained by Divisional Executive Engineer to include service only at divisional level but not entire period of service is proper (P&H.f. hence the length of service of vehicle driver can only be calculated from the date he was confirmed. seniority list maintained by him at the divisional level by considering service rendered by them at divisional level and not entire period of service rendered by them in project was held justified.1983.” (Page: 1999.HC) ¥ 5A.999 Since Executive Engineer of a project is the employer in relation to daily rated workers in their respective divisions. Para: 6) “Admittedly……….1001 Retrenchment not following rule stated in Sec. 1984 (48) FLR 14 : 1983 II LLN 946 (Bom. v. It was held that he ceased to be watchman after he was confirmed on the post of vehicle driver. v..D. Para: 5) “The last………. & Ors. Bhakra Beas Management Board & Ors..DB) “It is therefore………. mere recording reason in the file of employer is not sufficient (Ker.DB) ¥ 5A. as held by High Court.” (Page: 1999. each branch is considered to be separate industrial establishment for purpose of Sec.11. Ltd.” (Page: 1999. The condition of transfer from one unit to other conclusively establishes that two units constituted same Industrial Establishment and thus the employers were bound to take into consideration employees of both the units to determine the seniority u/s.HC) Note: also refer to Sections 2(ka) and 25FFF for additional ratios on functional integrality . Services were terminated from w.D.1002 In case of a Concern having branches at more than one place. hence seniority of workmen employed in a particular branch but not at all branches to be considered (Mad..1000 Workman was appointed as a watchman from 1976 and was promoted to the post of vehicle driver from 1982. Olavakode & Ors.. v. 2J) Jaipur Development Authority v. 2007 LLR 257 : 2007 (112) FLR 256 (P&H. Dabhoi Nagarpalika v. P. Samishta Bube v.. State of Haryana & Ors. Sharma v.HC) ¥ 5A. Etawah & Anr.DB) .1004 Employer can deviate from the principle of ‘first come last go’ by virtue of the use of the expression “ordinarily” in the Section in case of lack of efficiency or loss of confidence etc.C. 2006 (111) FLR 1178 : 2007 I LLJ 429 : 2007 I LLN 78 : 2007 LIC 274 : 2007 I CLR 221 : 2007 LLR 92 : 2007 (1) SCC (L&S) 518 (S. The Board of Directors took decision to retain a skeletal staff in the capacity of caretaker staff till the liquidator is appointed. v.C..C. Haryana Breweries Ltd.1005 On application by workmen Labour Court held that the retrenchment was illegal and awarded reinstatement with back wages on the ground that ‘last come.1006 Government decided to wind up corporation due to continuous loss and all the employees should be retrenched. Ram Sahai & Anr. 2000 III LLJ 461 (Guj. 1999 I LLJ 1012 : 1999 (81) FLR 746 : 1999 II LLN 1 : 1999 LIC 1125 : 1999 I LLR 460 : 1999 SCC (L&S) 592 : 1999 AIR (SC) 1056 : 1999 (3) SCC 14 (S.. High Court set aside the award of Labour Court and remitted the matter back to Labour Court as Sec.C.HC) Note: also refer to the follwing case Ombir Singh & Ors.Sec. & Anr. Omkarbhai Somabhai Patel & Ors. Hence. The High Court held that the Corporation had the right to avail of the services of such persons who had the working knowledge of different activities of the Corporation irrespective of the original cadre.2J) Note: Please see related ratio/s under the above citation in this section d) When services of an employee well versed with the activities of a corporation and working knowledge is retained at the time of winding up of company (P&H.2J) F 5A. City Board.HC) c) Reasons for deviation from the principle to be recoded (S. Deviation of principle last-come first go – when can be a) Expression ‘ordinarily’ in the Section allows deviation for justified reasons (S.2J) Note: Please see related ratio/s under the above citation in this section b) Principle not absolute and can be deviated on valid grounds (Guj. 25G itself contained that for valid reason rule could be departed from and the rule is not an absolute rule and the workmen were not placed in the same category as that of their juniors. Notice of retrenchment was challenged by one employee claiming to be entitled to retain in the service in preference to other employee. the petition was dismissed. 2002 (95) FLR 1172 : 2002 IV LLN 333 : 2002 II CLR 916 (P&H. So the question of seniority does not arise in such a situation. and burden is on him to justify such deviation.HC) ¥ 5A..first go’ was not followed and persons juniors to the workmen were retained.. 25G Deviation of principle last-come-first go – when can be 2655 V.C. The High Court found that the decision of the Corporation to retain such staff was for the purpose of utility and in the new arrangement post of Private Secretary was not there. DB) M/s.1007 Although the principle of ‘last come-first go’ is intended to safeguard the workmen against discrimination.C. Mariappan & Ors. Ltd.. M. 25G e) Deviation can be justified when employees belong to ‘any special category’ (Cal. Labour Court & Ors. F.C.C. 1966 II LLJ 324 : 1965-66 (29) FJR 69 : 1966 (13) FLR 7 : 1966 AIR (SC) 1657 (S. 1983 LIC 1425 (Cal.DB) Note: Please see related ratio/s under the above citation in this section f) When there is lack of efficiency on the part of employee and loss of confidence in him (S. Is on employer i) To prove that the deviation is based on sound and valid reasons (S.HC) g) When special skills. Jeejeebhoy & Anr. 1970 (37) FJR 225 : 1970 (20) FLR 284 (MP. it is not intended to deny freedom to the employer to depart from the said rule for sufficient and valid reasons and hence the Industrial Tribunal shall be satisfied that the departure from the rule was made for sound and valid reasons.3J) Note: Please see related ratio/s under the above citation in this section h) When female workers in mines are terminated due to working conditions & statutory provisions (MP.3J) M/s. and hence the burden of proof lies on the employer and where the employer fails to discharge the said burden and justify the departure from the rule. Their Workmen. Their Workmen. M/s. Ltd.HC) Note: Please see related ratio/s under the above citation in this section j) Burden of proof in case of deviation 1.2656 Chapter VA – Lay-Off and Retrenchment Sec. Etawah & Anr.C..C.HC) Mineral Area Development Authority v. v. 1970 I LLJ 90 (Mad. 2006 (110) FLR 270 : 2006 LLR 737 (Jhar. 1960 AIR (SC) 762 : 1960 I LLJ 504 : 1960-61 (19) FJR 46 : 1960 (1) FLR 337 (S. State of West Bengal & Ors.C. aptitude and specific experience justify deviation (S. v.. Swadesamitran Limited Madras v.2J) Samishta Bube v. Delhi v. City Board. like efficiency or trust worthy character of the employees etc. Coimbatore Pvt. Presiding Officer.2J) Note: for Text and RatioPlease see related ratio/s under the above citation in this section and also refer to the following case Tamilnad Transports.3J) . Gladstone Lyall & Co.DB) Note: Please see related ratio/s under the above citation in this section i) When workman whose appointment itself is void ab initio is terminated (Jhar. Om Oil and Oil Seeds exchange.DB) Nowrozabad Colliery Mazdoor Sangh v. victimisation or unfair labour practice. 1999 I LLJ 1012 : 1999 (81) FLR 746 : 1999 II LLN 1 : 1999 LIC 1125 : 1999 I LLR 460 : 1999 SCC (L&S) 592 : 1999 AIR (SC) 1056 : 1999 (3) SCC 14 (S.3J) F 5A. Ltd. retrenchment so made was held to be malafide and as a result of ulterior consideration and therefore amounts to unfair labour practice and victimization... ii) To prove the existence of special circumstances (Raj. The employer may take into account considerations of efficiency and trustworthy character of the employees. he should be able to justify the departure before the industrial tribunal whenever an industrial dispute is raised by retrenched workmen on the ground that their impugned retrenchment amounts to unfair labour practice of victimisation. Ayyangar and the Press Manager Mr. termination must conform to the law and hence termination in violation of Sec. and the tribunal was also not satisfied that it was likely that the witness should have any personal knowledge in regard to the said defects………. reliable and regular though they may be junior in service to the retrenchment workmen………. Lakshminarasimhan……….DB) “………. add that when it is stated that other things being equal the rule ‘last come first go’ must be applied..He stated that he was having a personal supervision of the entire work and that when retrenchment was actually effected a committee was appointed consisting of himself. 25F was rightly set aside by Labour Court and Single judge and reinstatement with 40% backwages was upheld. and in support of his oral testimony he filed two statements T-1 and T-2 giving material particulars in respect of all the said workmen. Rajagopala Ayyangar.In dealing with case of retrenchment it is essential to remember that the industrial rule of ‘last come first go’ is intended to afford a very healthy safeguard against discrimination of workmen in the matter of retrenchment. v.In holding an enquiry about the validity or reasonableness of retrenchment of certain specified persons the appellate tribunal has trespassed on the management function and as such has exceeded its jurisdiction……….that retrenchment is and must be held to be a normal management function and privilege………. Para: 12) Note: The case of Swadesamitran Limited settles the issue of burden of proof in case of deviation of the principle of ‘last come-first go’.We must. Para: 4) “The Tribunal found………….the workman was…………50% backwages” (Page: 257.e. Para: 6) “….The witness gave evidence about the defects in the cases of the 39 workmen who were retrenched. though the employer may depart from the rule. however..Sec. Para: 9) “………. and so.It is not as if industrial tribunals insist inexorably upon compliance with the industrial rule of retrenchment. The tribunal has held that having regard to the nature of the defects attributed to the several workmen to which the witness deposed it was impossible to accept his testimony as satisfactory.any ground whatever” (Page: 259. it is not intended to deny freedom to the employer to depart from the said rule for sufficient and valid reasons.He works as an Assistant Editor………. 2003 I LLJ 256 : 2002 (95) FLR 595 : 2003 III LLN 484 (Raj. unreliable or habitually irregular in the discharge of his duties. State of Rajasthan & Ors.. It is admitted that no records were made at the time when the cases of these workmen were examined.In such a case we do not see how in the present appeal the appellant can successfully challenge the correctness of the conclusion that in substance the retrenchment of the 15 workmen amounts to an unfair labour practice and victimisation. Mahendra Joshi & Anr.In fact it is clear from the record that at the original enquiry no evidence has been led by the appellant to justify the departure from the rule even though it was conceded that the rule had not been followed……….the termination was………Industrial Disputes Act 1947” (Page: 257.” (Page: 765/766. 25G Deviation of principle last-come-first go – when can be 2657 “It is then urged that in entertaining the grievance of the respondents against their order of retrenchment the Labour Appellate Tribunal has exceeded its jurisdiction………. Para: 26) . Para: 10) “The special circumstances………. 25G was not required to be adhered and it was held that even if appointment was de hors the Act.1008 Once it was shown that workman had actually worked for 240 days during period of 12 calendar months..This evidence consists of the testimony of Mr.. service for 240 days and employment for 12 months were fulfilled and also the employer failed to prove the special circumstances as claimed by him in which principle of last come first go u/s.” (Page: 767. At the time of the enquiry the Manager was dead………. and if he is satisfied that a person with a long service is inefficient.DB) ¥ 5A. what they insist on is on their being satisfied that wherever the rule is departed from the departure is justified by sound and valid reasons……….dispute about that” (Page: 257. and so the witness was driven to give evidence merely from memory. both conditions u/s. it would be open to him to retrench his services while retaining in his employment employees who are more efficient. 25B i. the Manager Mr. In that order it is mentioned that the services of the petitioner are no longer required. The Himachal Pradesh Tourism Development Corporation Ltd.HC) 2. Deviation that junior was retained is to be pleaded in the written statement (S.C. 1970 I LLJ 90 (Mad. they are terminated. 14 and 16 of the Constitution……….Incidentally it may also be pointed out that the retrenchment of Sushil does not seem to be otherwise justified in that following the principle of ‘last come first to go’. Ltd.. 25G) when violated a) When juniors retained as against seniors (S. the learned counsel also questioned the termination order from another angle. first to go’ was justified when a retrenched workman raises an industrial dispute.1011 Termination order which mentioned that the employees services were no longer required was held to be bad in view of the fact that employees junior to the employee so terminated were retained in service. The Tribunal rejected this contention on the ground that this plea had not been put forward in the written statements of the company and we do not see any reason why we should take a different view. Para: 27) “If the………. Para: 1) VI.HC) ¥ 5A. Para: 29) iii) To prove lack of efficiency and trustworthy character of the employee (Mad. Om Prakash Goel.1010 Retrenchment of employee was not held to be justified on grounds of non-observance of the principle of ‘first come last go’ and as the management’s plea that as the junior employee was rendering a special service he was retained.. junior to Sushil. 1992 I LLJ 469 : 1993 (82) FJR 47 : 1991 (63) FLR 245 : 1991 II LLN 420 : 1991 LIC 1414 : 1991 AIR (SC) 1490 : 1991 (3) SCC 291 (S.. tried to make out a case in his oral evidence that Joy Kishen was retained in service because he was doing a special job at the time while Sushil was not.retrenchment. the Labour Officer.3J) F 5A. 25G “Learned………. Ltd.1947.2J) “In this context.” (Page: 471/472..After a careful perusal of the record we are satisfied that the juniors to the petitioner are retained. The employer may take into account considerations of efficiency and trustworthy character of the employee. & Ors. M. M/s. Jha.C. Coimbatore Pvt.” (Page: 260.2658 Chapter VA – Lay-Off and Retrenchment Sec. v.2J) F 5A. National Iron & Steel Co.1009 The onus is on the employer to satisfy the Labour Court or Tribunal that the departure from the principle ‘last to come. State of West Bengal & Anr. 1967 II LLJ 23 : 1966-67 (31) FJR 425 : 1967 (14) FLR 356 : 1967 AIR (SC) 1206 (S. In the affidavit it is clearly mentioned that juniors whose names are given there are retained in service in violation of Arts. Another employee by name Joy Kishen. Para: 6) . Tamilnad Transports. Mariappan & Ors. Last come first go (Sec. Sushil could not be called upon to leave the company’s service.” (Page: 259. was retained in service.C. Petitioner v. Shimla & Anr.3J) “……….” (Page: 30. But from the record it is clear that juniors to the petitioner are retained and they are continuing in service. No doubt. therefore.C. Therefore on this ground also the termination order is liable to be quashed. the Tribunal rejected the contention which was upheld by Supreme Court. v. was not mentioned in the written statement. 25F but the principle of ‘last come first go’ was not followed. 2005 III LLJ 1070 : 2005 LLR 1209 (Guj. Gladstone Lyall & Co. or evidence brought before the Tribunal like showing ‘any special category’ within the category of employees to justify retention of juniors. Labour Court ordered reinstatement of workman with back wages but Single Judge set aside Labour Court’s order. Wajeeh Ullah v. 1977 (50) FJR 28 : 1977 I LLN 94 : 1977 LIC 1338 (Mad.We are………. such as keeping junior employees without giving reasons while terminating senior employees. 1997 I LLN 457 (P&H.HC) Ishwar Chand and Ors. P.of the services……….Industrial Disputes Act. Para: 19) ¥ 5A. 25G Last come first go (Sec.. Madras & Ors. Para: 16) c) When deviation cannot be justified in the absence of evidence as to ‘any special category’ within the category of employees to justify retention of juniors (Cal. M/s. workman moved Division Bench which upheld Labour Court’s order since it was clear from the record that workman was senior to two other workmen. State of Haryana.HC) Municipal Corporation of Delhi v. Being aggrieved.. Ram Chandra v.1012 Retrenchment of the workman while retaining his juniors in service. Banda & Ors. Labour Court. recorded in support thereof.The facts………. Para: 7) ¥ 5A. 1997 LLR 366 (Raj. Khacheru & Anr. Mohanbhai Ramjibhai Keratra v.O.DB) ¥ 5A.DB) Note: also refer to the following case/s Satya Pal & Anr. Jabalpur. v. 1992 (64) FLR 20 (All. Madras & Anr.” (Page: 1426/1427.HC) b) When casual workers completing 240 days service with artificial breaks terminated in violation of principle of ‘last come first go’ (Raj. 2001 II LLJ 431 : 2001 (90) FLR 55 : 2001 LLR 1034 : 2002 LLR (Sum) 104 : 2002 LIC 1077 (Raj. Additional Labour Court..1013 Services of Temporary employees can be terminated at any time but not arbitrarily.DB) ¥ 5A. Para: 7) . v.1014 The workman was terminated as per Sec. 25G) when violated 2659 ¥ 5A. 1983 LIC 1425 (Cal. 25G and hence invalid.” (Page: 143.” (Page: 433.1016 The departure from the principle of “last come first go” cannot be held justified in the absence of any reasons. State of West Bengal & Ors. Rani Durgawati Vishwavidyalaya. Rajnish Kumar Tripathi & Omprakash Yadav v.HC) R. 2002 III LLN 983 : 2002 LLR 658 (MP. 1993 I LLJ 351 : 1993 I LLN 370 : 1994 (84) FJR 196 (Del.. Manager Dalmia Dairy Industries AND Management M/s.facts make it……….DB) “………. 1977 II LLJ 137 : 1977 (34) FLR 403 : 1977 I LLN 607 (Mad.DB) “The petitioner’s………. State of Rajasthan & Ors.” (Page: 433.Sec.. Sankaran v. Ltd. dalmia Dairy industries Ltd v.HC) Alok Kumar Pathak & Anr.. Para: 8) “………. Management of Industrial Chemicals Ltd.” (Page: 24.perverse……….DB) “………. 25F and 25G is illegal. Surendranagar District Panchayat. Union of India & Ors.O.it is declared………. Vice Chancellor. v. v. without proper reasons is in violation of Sec.Sustained. The P.is invalid.DB) “………. District Assistant Registrar Coop Societies...1015 Termination of casual workers completing 240 days of service in one calendar year with artificial breaks of a day or two without complying with Sec. 2660 Chapter VA – Lay-Off and Retrenchment Sec. 25G d) When casual labour employed in normal course were retrenched and those employed out of turn were retained without valid reasons (Ker.HC) ¥ 5A.1017 Casual labour with same terms of employment were employed in ‘normal course’ while their juniors were recruited “out of turn” and form a separate class and were preferred over the casual labour employed in normal course for the purpose of regularisation. Order retrenching labourers engaged in normal course and retaining ‘out-of-turn’ labourers though junior to those retrenched without stating reasons violates rule u/s. 25G. Abdul Rahiman & Ors. v. The Divisional Supdt., Southern Rly. Olavakode & Ors., 1980 II LLN 392 : 1981 LIC 217 (Ker.HC) e) If one employee retrenched and other retained when both were doing clerical job and not having technical skill (Cal.HC) ¥ 5A.1018 The employer contended that the store keeper and stock clerk belong to different categories to avoid applicability of Sec. 25G of the Act to one of them. Industrial Tribunal was justified in holding that the two workmen who were retrenched belong to the same category as both their functions were clerical and required no technical skill, hence Sec. 25G of the Act was applicable. B.N. Elias & Co. Pvt. Ltd. v. Fifth Industrial Tribunal , West Bengal & Ors., 1965 II LLJ 324 : 1961 II LLJ 14 : 1965-66 (28) FJR 257 (Cal.HC) f) When workman in a hospital run by Municipal Corporation terminated without considering seniority of workmen of all hospitals run by it (Del.HC) ¥ 5A.1019 Workman retrenched was working in a hospital run by Municipal Corporation. There was no junior to him in the said hospital but while considering seniority of workmen all workmen working in all the hospitals run by the Municipal Corporation on daily wages have to be taken into account. Since that was not done, retrenchment was held illegal. Municipal Corporation of Delhi v. Shyam Lal & Ors., 1994 II LLN 1144 : 1995 I CLR 315 (Del.HC) g) When junior most employee spared on the ground of being in a different grade when the employees placed in different grades only on the basis of pay scales do the same work (S.C.2J) Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. v. The Management of Jorehaut Tea Co. Ltd., Respondent and vice versa, 1980 II LLJ 124 : 1980 (56) FJR 513 : 1980 (40) FLR 474 : 1980 II LLN 151 : 1980 LIC 742 : 1980 SCC (L&S) 427 : 1980 AIR (SC) 1454 : 1980 (3) SCC 406 (S.C.2J) Note: Please see related ratio/s under the above citation in this section VII. Burden of proof in case of allegation of violation a) Lies on the workman (Del.HC) ¥ 5A.1020 In the present case, the plea was that the juniors were retained and the service of the senior workmen had been terminated. In such case the onus of proof would be on workman while tribunal wrongly held that onus of proof was on Management. Indian Refrigeration Industries & Anr. v. R.K. Baweja & Ors., 1981 (42) FLR 381 : 1981 II LLN 177 (Del.HC) Sec. 25G Effect of violation 2661 VIII. Effect of violation a) Renders bad termination of services of temporary railway employee (Del.DB) ¥ 5A.1021 The termination of services of the Railway Employee employed on a temporary basis under the Indian Railway Establishment code was held to be retrenchment within the meaning of Sec. 2(oo) of the Industrial Disputes Act and it is bad in law as the provisions of Sec. 25F and 25G have not been complied with. Order of termination is quashed. Malkhan Singh v. Union of India & Ors., 1981 II LLJ 174 : 1981 (42) FLR 401 : 1981 II LLN 670 : 1981 LIC 1633 (Del.DB) “The petitioners……….violated.” (Page: 177, Para: 8) “In the present……….invalid.” (Page: 178, Para: 11) “In the present……….retrenchment.” (Page: 178, Para: 13) “The inevitable……….invalid.” (Page: 181, Para: 32) b) Retrenchment can be held as invalid (Bom.DB) ¥ 5A.1022 As Sec. 25F and 25G are independent of each other, Tribunal after having found that Sec. 25F was substantially complied with by employer can hold retrenchment as invalid on failure to comply with provisions of Sec. 25G and in instant case as employer contravened mandatory Rule 81, finding of Tribunal that retrenchment was illegal due to non compliance of Sec. 25G and Rule 81 was upheld. Navbharat, Hindi Daily, Nagpur v. Navbharat Shramik Sangha, 1984 II LLN 132 : 1984 LIC 445 (Bom.DB) “……….it can never……….under the Act.” (Page: 138, Para: 16) “It was next……….the retrenchment invalid.” (Page: 138, Para: 18) “……….failure to……….illegal and invalid……….” (Page: 139, Para: 19) Note: the following case/s may be referred Nalinkumar A. Thakar & Ors. v. Gujarat State Civil Supplies Corporation Ltd. & Ors., 2003 I CLR 278 (Guj.HC) Nirmaldan Nigam Gadhvi v. Narmada Nigam Ltd., 2004 (106) FJR 698 (Guj.HC) ¥ 5A.1023 The workmen of the Food Corporation of India are employees because Central Warehousing Corporation merely acts as an agent and receive supervising charges. The provisions of Sec. 25G and 25N apply not only to a factory but all industrial establishments, and as go-down is covered under the definition of an industry, the said Sections are applicable to it. The retrenchment notices issued without compliance with the said provisions cannot be sustained in law. F.C.I. Workers Union & Anr. v. Food Corporration of India & Anr., 1992 (65) FLR 1014 : 1992 II CLR 730 (Cal.HC) 2662 Chapter VA – Lay-Off and Retrenchment Sec. 25G IX. Last come first go (Sec. 25G) when not violated a) When there is no proof that juniors were continued in service (Ori.DB) ¥ 5A.1024 In the absence of any proof that workman had worked for more than 240 days in preceding 12 months and that his juniors were continued in service, his termination was held as proper. Gangadhar Labala v. P.O. Labour Court & Ors., 2002 I CLR 812 : 2002 I LLJ 484 : 2002 I LLN 452 (Ori.DB) “……….The petitioner has not……….had rendered service.” (Page: 815, Para: 5) “……….The fact that Sri……….not been established.” (Page: 815, Para: 6) “……….We do not……….calling for interference……….” (Page: 815, Para: 7) b) When reasons for deviation from the principle are recorded (S.C.2J) F 5A.1025 It was held that when Sec. 25G introduced the rule of last come-first go, it is not a rule imperative in nature and the said rule would be applicable when a workman belonged to a particular category of workmen. However the employer may retrench any other workman in departure of the rule by recording reasons. Jaipur Development Authority v. Ram Sahai & Anr., 2006 (111) FLR 1178 : 2007 I LLJ 429 : 2007 I LLN 78 : 2007 LIC 274 : 2007 I CLR 221 : 2007 LLR 92 : 2007 (1) SCC (L&S) 518 (S.C.2J) “Appellant herein is a State within the meaning of Article 12 of the Constitution of India. It is created under the Jaipur Development Authority Act. Respondent was appointed on daily-wage basis from September, 1986 to June, 1987. His services were dispensed with, with effect from 1.7.1987. He raised an industrial dispute and on receipt of failure report dated 26.4.1988 of the Conciliation Officer, the Government of Rajasthan made a reference for adjudication of the following dispute to the Presiding Officer, Labour Court at Jaipur, in exercise of its power under Section 10(1)(c) of the Industrial Disputes Act, 1947.” (Page: 1179, Para: 1) “By reason of an Award dated 22.3.1999, the Presiding Officer, Labour Court held that the termination of services of the workman was not legal. He was directed to be reinstated in service with full back-wages. It was held: The termination of workman Ramsahai son of Shri Chhotu Ram by the respondents w.e.f. 1.7.87 is not reasonable and legal. He is reinstated back in service. His continuity in service is maintained, and from the date of his termination till the date of award he is awarded all back wages along with other benefits which he would have received while in continuous service and from the date of award the workman shall receive the wages and other benefits which other similarly situated workmen junior to him are receiving today.” (Page: 1180, Para: 2) “The fact that Respondent was appointed on daily wages and he has not completed 240 days, is not in dispute. Retrenchment of Respondent by Appellant, therefore, did not require compliance of the provisions of Section 25F of the Act. Section 25G introduces the rule of ‘last come first go’. It is not a rule which is imperative in nature. The said rule would be applicable when a workman belongs to a particular category of workman. An employer would, in terms thereof, is ordinarily required to retrench the workman who was the last person to be employed in that category. However, for reasons to be recorded, the employer may retrench any other workman. Section 25H provides for re-employment of retrenched workman, which will apply in case where the employer proposes to take into employment any person, an opportunity has to be given to him to offer himself for re-employment.” (Page: 1180/1181, Para: 4) Sec. 25G Last come first go (Sec. 25G) when not violated 2663 c) When retrenched employee is the only employee of the Department (Bom.DB) ¥ 5A.1026 Retrenched employee being the only person employed as “special fitter” in the department, the principle of ‘last come first go’ becomes inapplicable when the department ceases to function. Arvind Anand Gaikwad v. Uni Abex Alloy Products, Ltd., & Ors., 1994 III LLJ 684 : 1988 I LLN 239 : 1988 I CLR 26 (Bom.DB) “Mr. Ganguli then……….retrench the appellant.” (Page: 687, Para: 6) d) When list is prepared category-wise and not for whole project (All.DB) ¥ 5A.1027 Even though the seniority list for the project has been prepared category wise, there is no breach of Rule 77 regarding seniority list and the principle of ‘last come first go’ has been followed and the Court rejected employee’s contention that seniority list should have been for the whole project. Ravindra Kumar Srivastava v. Union of India & Ors., 1982 II LLN 427 : 1982 (45) FLR 214 : 1982 LIC 1739 (All.DB) “Rule 77……….argument.” (Page: 434, Para: 19) e) When Seniority list of only the division closed is considered since it is separate from other division having no functional integrality (AP.DB) ¥ 5A.1028 When two establishments of Hyderabad division of Hindustan Aeronautics Ltd. have different trades are separate, there is no functional integrality between them and thus there cannot be any violation of Sec. 25G if workmen were terminated on the basis of seniority list of the Begum Pet establishment that was closed and some of them having requisite qualifications subject to vacancy position in Hyderabad division were also absorbed Mohammed Yousuf & Ors. v. The Industrial Tribunal & Anr., 1978 II LLJ 329 : 1978 LIC (Sum) 55 (AP.DB) “Having regard……….closure.” (Page: 332/333, Para: 6) “Having gone……….seniority.” (Page: 334, Para: 10) “Before any……….before it.” (Page: 336, Para: 12) Note: for additional ratios on functional integrality, see Section 2(ka) f) When the termination of workmen of a department was due to closure for economic reasons and it’s work distributed among other employees (S.C.3J) F 5A.1029 There is no contravention of the principle of ‘last come first go’ u/s. 25G where in the special department for painting, whitewashing and upholstering was closed for effecting economy of expenditure resulting in the termination of employees and their work has been distributed among other existing employees and hence it is held that the action cannot be characterized as improper or amounting to unfair labour practice. Hotel Ambassador v. Its workmen & Ors., 1963 II LLJ 87 : 1963 (7) FLR 140 (S.C.3J) “……….The appellant’s case was that he had abolished this department and members of the staff. The Tribunal, in fact, has found that in addition to their other work Budhram and Bhagat Singh are now doing the work which the retrenched workmen use to do before……….It however, held that Bhagat Singh might have been retrenched and not Ram Singh I……….Mr. Ram Lal Anand points out that the Tribunal was in error because like Budharm, Bhagat Singh was a senior employees and could not have been 2664 Chapter VA – Lay-Off and Retrenchment Sec. 25G retrenched in preference to Ram Singh I. Evidence show that both Budhram and Bhagat Singh were drawing time, and so, what applies to Budhram applies equally to Bhagat Singh. In our opinion, this contention is well-founded and must be upheld.” (Page: 88, Para: 2) “……….The tribunal, in fact, has found that in addition to their other work Budhram and Bhagat Singh are now doing the work which the retrenched workmen used to do before, and it has held that since Budhram was a senior employee, it could not be said that the appellant was in error in retaining him in preference to the three retrenched employees. It, however, held that Bhagat Singh might have been retrenched and not Ram Singh I. It is on this ground that the tribunal has directed the reinstatement of Ram Singh I……….” (Page: 88, Para: 2) “Mr. Janardhan Sharma for the respondents attempted to support the finding of the Tribunal that the appellant had acted improperly in not applying the principle of S. 25G of the Industrial Disputes Act, 1947 (Act 14 of 1947) Section 25 G requires that the retrenchment should be effected category-wise; and that in effecting retrenchment, the principle of the last come first go must be applied. The difficulty in accepting this arguments, however, is that in the present case the appellant has altogether closed the special department for painting, whitewashing and polishing upholstering work, and it is not possible to find fault with the appellant because one of the ways in which economy in expenditure could be effected obviously was to close this department and distribute the work of the said department among some of the pre-existing employees. That being so, it is not possible to hold that S. 25G has been contravened. Once it is conceded that there was an occasion for effecting economy, the conclusion is inescapable that the conduct of the appellant in closing the department and dividing its work amongst its other employees cannot be reasonably characterized as improper, or as amounting to an unfair labour practice……….” (Page: 88, Para: 3) g) When there is lack of efficiency on the part of employee and loss of confidence in him (S.C.2J) F 5A.1030 Employer can deviate from the principle of ‘first come last go’ by virtue of use of word “ordinarily” in the Section in case of lack of efficiency or loss of confidence etc. and burden is on him to justify such deviation. Samishta Bube v. City Board, Etawah & Anr., 1999 I LLJ 1012 : 1999 (81) FLR 746 : 1999 II LLN 1 : 1999 LIC 1125 : 1999 I LLR 460 : 1999 SCC (L&S) 592 : 1999 AIR (SC) 1056 : 1999 (3) SCC 14 (S.C.2J) “It is true that the rule of ‘first come, last go’, in Section 6-P could be deviated from by an employer because the Section uses the work ‘ordinarily’. It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence etc. as held in M/s. Swadesamitran Limited, Madras v. Their Workmen, (1960 I LLJ 504) (SC). But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act” (Page: 1015, Para: 9) h) When special skills aptitude and specific experience justify deviation (S.C.3J) F 5A.1031 Though the principle of “first come last go” should be generally followed in ordering retrenchment, it is not immutable and can be departed from for valid reasons, in the instant case where management retained clerks for their special skills and aptitude besides experience in a particular branch of business and passed resolution setting out reasons for retention, it was held that Labour Court was wrong in reinstating employees after inferring that for mere departure from the rule retrenchment was malafide and unjustified. M/s. Om Oil and Oil Seeds exchange, Ltd., Delhi v. Their Workmen, 1966 II LLJ 324 : 1965-66 (29) FJR 69 : 1966 (13) FLR 7 : 1966 AIR (SC) 1657 (S.C.3J) “It is an accepted principle of Industrial law that in ordering retrenchment, ordinarily, the management should commence with the latest recruit, and progressively retrench employees higher up in the list of seniority. But the rule is not immutable, and for valid reasons may be departed form……….The Tribunal has to determine in each case whether the management has in ordering retrenchment acted fairly and properly and not with any ulterior motive: It cannot assume from the rule that the management was Sec. 25G Last come first go (Sec. 25G) when not violated 2665 actuated by improper motive or that the management was actuated had acted in a manner amounting to an unfair labour practice. Nor has the Tribunal authority to sit in appeal over the justifiable reasons the management if for valid and justifiable reasons the management has departed form the rule that the senior employee may be retrenched before his junior in employment.” (Page: 327, Para: 2) “The management of the appellant has recorded a resolution which sets out the reasons for retention of the employees……….The rule has to be applied where other things are equal. The management of the business must Act fairly to the employees; where however the management bona fide retains staff possessing special aptitude in the interests of the business, it cannot be assumed to have acted unfairly merely because the rule “first come, last go” is not observed……….” (Page: 327/328, Para: 2) “In the present case the four clerks retained had, beside, experience, special skill and aptitude in the particuar branch of the business of the appellant they were attending to and the management had retained them because of that skill or aptitude. The Labour Court inferred mala fides merely because the management departed from the rule “first come, last go’’. Whether the management in departing from the rule has acted mala fide, must depend upon the circumstances of the case; it cannot be inferred merely from departure from the rule.” (Page: 329, Para: 2) “……….The order of reinstatement of Tara Shanker and Om Prakash will stand vacated.” (Page: 329, Para: 1) Note: also refer to the following case Municipal Corporation of Delhi v. Shri Khacheru, Through Municipal Employees Union & Ors., 1993 (66) FLR 42 : 1993 I CLR 357 : 1993 LLR 5 (Del.HC) i) When female workers in mines terminated due to adverse working conditions and statutory provisions (MP.DB) ¥ 5A.1032 The termination of services of female workers who were not junior-most after preparing separate list of male and female workers, was not in violation of Sec. 25G as the company had done so in view of the working conditions such as underground work and shift rotation and statutory provisions under the Mines Act viz. disabilities under the law to employ females in underground work and their further disability to be rotated in shifts and hence the departure from the rule in the circumstances of the case was justified. Nowrozabad Colliery Mazdoor Sangh v. F. Jeejeebhoy & Anr., 1970 (37) FJR 225 : 1970 (20) FLR 284 (MP.DB) “In preparing……….rule.” (Page: 230, L: 10 to 20) “The interest……….the case.” (Page: 230, L: 28 to Page: 231, L: 4) j) When workman terminated was due to his appointment being void ab initio though other illegal appointees retained (Jhar.HC) ¥ 5A.1033 The employee was terminated from service on the ground of illegal appointment. On reference, Labour Court held termination as illegal and awarded reinstatement with full back wages, which was challenged in High Court. High Court held that since illegal appointment is void abinitio, workman cannot claim any benefit merely because other appointees were retained in service though their appointment is also illegal and quashed the impugned award. Mineral Area Development Authority v. Presiding Officer, Labour Court & Ors., 2006 (110) FLR 270 : 2006 LLR 737 (Jhar.HC) 2666 Chapter VA – Lay-Off and Retrenchment Sec. 25G k) If employee terminated was selected not through regular selection process and the junior employee retained was appointed through selection process (Raj.HC) ¥ 5A.1034 Termination of service of a person was on the ground that he is neither selected through regular selection nor through the test held for regularization. A plea was raised by the person for violation of Sec. 25G of Industrial Disputes Act and the principle of retaining a person junior in service while dispensing with services of seniors which was contended to be arbitrary and discriminatory. It was held that Sec. 25G of Industrial Disputes Act will not be attracted as person who has been retained in service, have been selected through selection process. Dilip Bhatnagar & Ors.etc. v. Rajasthan Agriculture University., 1994 LIC 1914 (Raj.HC) l) When termination is on the expiry of the period of contract (All.HC) ¥ 5A.1035 Employee worked in bank for a period of 80 days from 20.9.1982 to 8.12.1982. No order of termination was passed. Labour Court held the termination to be illegal for not following Sec. 25G “Last Come First Go” rule and also for violation of Section 25-H. Held that Sec. 25G is not applicable when there is an agreement between the parties for a fixed period of service. On the expiry of the said period the services come to an end. Therefore award was set aside. Management of State Bank of Bikaner & Jaipur v. Santosh Kumar Mishra & Anr., 2003 III LLJ 607 : 2003 (96) FLR 885 (All.HC) m) When employee terminated due to bad performance (Raj.HC) ¥ 5A.1036 If the service of the employee has been dispensed with on the basis of his performance, the same cannot be challenged on the ground of violation of the rule of “last come first go” as the rule cannot be said to be immutable. It’s departure for valid reason is definitely permissible and certain amount of freedom to the employer to use his best judgment and discretion in the absence of allegation of mala fide cannot be held as arbitrary. Vikas Bunkar /son of Manshiram Balai v. Rajasthan State Handloom Development Corporation Ltd., 1996 (74) FLR 2105 : 1996 I LLN 986 : 1996 LIC 808 : 1996 II CLR 182 (Raj.HC) Note: the following case also decided on the above principle Jaipur, & through its Managing Director, Chomu House, Jaipur., 1996 (74) FLR 2105 : 1996 I LLN 986 : 1996 LIC 808 : 1996 II CLR 182 (Raj.HC) n) When seniority list is prepared as per grades and not as per category but in accordance with the settlement with the union and accepted by the employees (Bom.HC) ¥ 5A.1037 Employee’s grievance was that there is violation of Sec. 25G as the seniority list was prepared in accordance with the grades and not in accordance with the category which resulted in retaining a junior workman while retrenching a senior. The High Court observed that the said list was prepared on the basis of both the category and the grade within the category. It was not the basis of only grade or only category. Also the seniority list was prepared in accordance with the settlement with the union and was displayed 23 days in advance from the date of retrenchment and it was not alleged that such a list was wrong, therefore, in such cases Sec. 25G cannot be held to be violative. Janata Mazdoor Union v. Tas Engineering Pvt. Ltd. & Ors., 2002 (95) FLR 739 : 2002 IV LLN 772 : 2002 LIC 2873 : 2003 LLR (Sum) 107 (Bom.HC) Sec. 25G Reliefs for violation 2667 o) If terminated on the basis of seniority list published if it’s correctness was not disputed by union (Cal.HC) ¥ 5A.1038 Principle of last come first go was not followed after retrenchment. Correctness of seniority list published by the company was not disputed by the employees-union. It was held that as the correctness of seniority list was not disputed, the said rule may be departed from. Parry’s (Cal) Employees’ Union & Anr. v. Third Industrial Tribunal, West Bengal & Ors., 2001 II LLJ 39 : 2001 (89) FLR 192 : 2001 LLR 462 : 2001 II LLN 743 : 2001 I CLR 777 (Cal.HC) p) When the departure is made for the sake of efficiency and trustworthy character of the employee (Mad.HC) ¥ 5A.1039 The onus is on the employer to satisfy the Labour Court or Tribunal that the departure from the principle ‘last to come, first to go’ was justified when a retrenched workman raises an industrial dispute. The employer may take into account considerations of efficiency and trustworthy character of the employee. Tamilnad Transports, Coimbatore Pvt. Ltd. v. M. Mariappan & Ors., 1970 I LLJ 90 (Mad.HC) q) When establishment was closed some juniors were retained as caretaker staff since they have knowledge of different activities (P&H.DB) ¥ 5A.1040 When workmen raised dispute that their juniors are retained in service, it was held that this plea does not stand to reason. There was a closure in the unit pursuant to the permission granted by the Appropriate Government and in that situation there was no need or requirement to continue with the workers. And if care taker staff retained in these circumstances the management was within their right to avail the services of such persons who had the working knowledge of different activities irrespective of their seniority. Ombir Singh & Ors. V. Haryana Breweries Ltd. & Anr., 2007 LLR 257 : 2007 (112) FLR 256 (P&H.DB) “The petitioners……….of employment.” (Page: 258, Para: 1) “This plea……….25F of the Act.” (Page: 260, Para: 8) X. Reliefs for violation a) Who cannot claim 1. Employee who worked with intermittent breaks cannot when similarly situated other employees were also terminated (Raj.DB) ¥ 5A.1041 Employee who has worked for 93 days, though with intermittent breaks was not entitled to relief under the Section and as employees appointed along with him were also terminated there can be no breach of Sec. 25G. Raj Vimal v. State of Rajasthan & Ors., 2003 (97) FLR 1199 : 2003 III LLJ 86 (Raj.DB) “However……….their service.” (Page: 1200, Para: 6) 2. Employee who had failed to prove violation of Sec. 25H and 25G (Raj.DB) ¥ 5A.1042 As employee had worked for less than 240 days and failed to prove violation of Sec. 25H and 25G employee was not held to be entitled for any relief. Ram Gopal Saini v. Labour Court No. II, Jaipur & Ors., 2001 I LLJ 1230 : 2001 (89) FLR 778 : 2001 LIC 610 : 2001 I CLR 907 : 2001 LLR 747 (Raj.DB) 2668 Chapter VA – Lay-Off and Retrenchment Sec. 25G “In this……….employee.” (Page: 1230, Para: 2) “We are……….the purpose……….” (Page: 1231, Para: 8) 3. Government servants employed temporarily in construction division (Ori.DB) ¥ 5A.1043 The benefit of Sec. 25G is not available to Government servants and hence the workman employed on a temporary basis in Rourkela construction division and subsequently terminated from service, will not be entitled to any relief under this Section. Panchanan Sabat v. State of Orissa & Anr., 1973 II LLN 413 (Ori.DB) “……….the observations……….Present Case.” (Page: 415, Para: 4) b) Relief of reinstatement 1. When can be granted i) Reinstatement of workman with 240 days service is justified when principle is violated (S.C.2J) F 5A.1044 Supreme Court upheld the Labour Court’s order that as the workmen had completed 240 days of service thereby violated Sec. 25F and also as the principle of ‘last come first go’ was not followed their termination was held to be bad and were directed to be reinstated. Incharge Government Hide Flaying Centre & Anr. v. Rama Ram & Anr., 2003 III LLJ 1081 : 2003 (94) FLR 909 : 2003 SCC (L&S) 1170 : 2003 (9) SCC 163 (S.C.2J) “The appellants are calling in question the award made by the Labour Court-cum-Industrial Tribunal, Hissar by which the termination of services of certain employees was held to be bad and they were directed to be reinstated with back wages and continuity of service and all other consequential benefits arising therein……….” (Page: 1082, Para: 1) “……….each of the employees have worked for more than 240 days and their services were sought to be put to an end to without following the due procedure under Section 25-F of the Industrial Disputes Act. This finding of fact cannot be seriously assailed. However, it may be pointed out that in the evidence adduced before the Tribunal, the claimants before the Tribunal established that they were seniors to those who have been continued in service and were described to be regular employees and that position is neither challenged nor rebutted. Thus the principle of “last-come-first-go” was given a go-by. In these circumstances we think that the order of the Tribunal, as affirmed by the High Court, is just and proper……….” (Page: 1082, Para: 3) Note: also refer to the following case Rajkot Municipal Corporation v. Kishor Govind of Sidik Akbar & etc., 1997 III LLJ (Sum) 408 : 1996 II LLN 1126 : 1996 LIC 1685 (Guj.HC) ii) If workman is terminated in violation of seniority norm even if he did not complete 240 days (Raj.HC) ¥ 5A.1045 A workman whose services were terminated in violation of the provision of the Industrial Disputes Act approached Labour Court where it was found that the employer had not maintained any seniority list required as per Rule 77 of the Rajasthan Industrial Disputes Rule 1957. Labour Court ordered reinstatement with full back-wages from the date of termination though the workmen had not completed 240 days service. High Court dismissed the petition of the employer ordering that the award should be complied within 3 months if it had not already been complied with. State v. Harchad, 2001 II LLJ 1593 : 2001 (90) FLR 744 : 2001 LLR 1064 (Raj.HC) 2001 II LLJ 1993 (Raj. Para: 4) .” (Page: 408/409. Their Federations have hardly been of any assistance. 2002 (93) FLR 79 : 2002 II LLN 700 (Raj.O.C. Harchand. To illustrate. 2002 II LLJ 493 : 2002 (93) FLR 990 : 2002 (95) FLR 299 : 2002 LLR 790 (Ker. The P. If they are otherwise similarly situated. Therefore.1047 Termination of service of temporary conductor was made in violation of Sec. State of Punjab & Anr. Kashmir Singh & Anr.. for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous Court’s order. v. Apex Court modified date of applicability of the scheme to those in service on 1st Jan 1981 so as to avoid discrimination between those retrenched workers who continued in service under orders of stay and those retrenched workers who did not get any stay and even those who failed to come to Court. 25G reinstatement was held to be justified. They can ill afford to rush to Court. Union of India & Ors. they would be treated in service on 1st January. 1984.. P. Therefore. Aroor. It is a Hobson’s choice. There is another area where discrimination is likely to rear its ugly head.with costs. Inder Pal Yadav & Ors.HC) Unnikrishna Pillai R. 1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the Scheme. Padinjareplapparambil.1046 In a scheme by ministry of Railways to absorb retrenched project casual labour in service as on 1st Jan 1984. Para: 2) “No other……….HC) State of Rajasthan v. P.” (Page: 565.” (Page: 566. v.to him. 1984 to 1st January.DB) ¥ 5A. in some matters. those who could not come to the Court need not be at a comparative disadvantage to those who rushed in here. Choice in such a situation. Central Industrial Tribunal. etc... Burdened by all these relevant considerations and keeping in view all the aspects of the matter.HC) iii) Reinstatement can be of retrenched casual labour when the scheme of railways permits absorption (S. 1985 II LLJ 406 : 1985 (51) FLR 138 : 1986 I LLN 18 : 1985 SCC (L&S) 526 : 1985 (2) SCC 648 (S.. the Court granted interim stay before the workmen could be retrenched while some other were not so fortunate. With this modification and consequent rescheduling in absorption from that date onward.O. we would modify part 5. Para: 5) iv) Reinstatement can be of temporary conductor terminated in breach of rule (P&H. the Scheme framed by Railway Ministry is accepted………. 25G Reliefs for violation 2669 Note: also refer to the following case Anavali Kshetirya Gramin Bank v. even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. they are entitled to similar treatment.2J) F 5A.O. Those in respect of whom the Court granted interim relief by stay / suspension of the order of retrenchment. 1993 III LLJ 565 : 1989 LIC 1596 : 1989 II CLR 800 (P&H. These workmen come from the lowest grade of railway service. Jaipur & Ors. 1981.C. Labour Court & Anr. v. They had individually to collect money and rush to Court which in case of some may be beyond their reach. if not by anyone else at the hands of this Court.Sec. some of the retrenched workmen failed to knock at the doors of the Court of justice because these doors do not open unless huge expenses are incurred.2J) “The scheme envisages that it would be applicable to casual labour on projects who were in service as on January 1.1 (a)(i) by modifying the date from 1st January. The choice of this date does not commend to us.DB) “His services………. etc. 25 G and Rule 18 to make it legal. High Court upheld the said order stating that termination order needs to be in consonance with provisions of Sec.Constitution of India. It . therefore. Kopargaon Nagarpalika & Ors. Akbakhan Havaldarkhan. 12 of the constitution.” (Page: 354.” (Page: 353. 25G v) Reinstatement with 50% back wages proper even if workmen who refused to accept new posting on transfer were terminated in violation of the Section (Guj.1050 A mere violation of Sec.2J) “We would. The workman must be employed by a State within the meaning of Article 12 of the Constitution of India. 25 F. having regard to the doctrine of public employment.000 instead of reinstatement was held proper.faulted with. 25G and H of the Act does not warrant reinstatement in public employment when job was not of perennial in nature (S.bad in law..qualification. proceed on the basis that there had been a violation of Sections 25G and 25H of the Act.) Ltd. Hence petition is dismissed. 25G of Industrial Disputes Act r/w R. 25G and H of the Act does not warrant reinstatement of a workman who was not employed within the meaning of Art. 25F & 25G when employee does not have prescribed qualification (Bom.Before the Labour Court……….DB) ¥ 5A.C. Therefore compensation of Rs. Para: 4) “………. 2007 SCC (L&S) 518 : 2007 I LLJ 429 : 2006 (111) FLR 1178 : 2007 I LLN 78 : 2007 LIC 274 : 2007 I CLR 221 : 2007 LLR 92 (S.1048 Due to reduction in the work in tracing department workmen were offered alternative work in the new project department but they refused to work after receiving the order of transfer to the new department. 2004 (105) FJR 346 : 2004 LLR 524 (Guj.” (Page: 774. would not mean that the Labour Court should have passed an Award of re-instatement with entire back wages.Labour Court……….” (Page: 349.2J) F 5A. Para: 6) “The learned………. 81 of Industrial Disputes (Gujarat) Rules.” (Page: 774.HC) “………. 75. The grant of 50% back wages is proper since employer has not produced any evidence to show that workmen were earning during the intervening period. in our opinion.by this Court. having regard to the doctrine of public employment and whose job was not of perennial in nature.compliance with it need not be challenged by such employee.HC) ¥ 5A. Jaipur Development Authority v. 25 G needs to be complied with by the employer before retrenching any employee and non.such findings. Labour Court held that termination was not legal and ordered reinstatement with 50% back wages since the employer had violated Sec. Sec.If the non implementation………. When cannot be granted i) Reinstatement is not mandatory relief in case of breach of Sec. the same by itself.2670 Chapter VA – Lay-Off and Retrenchment Sec.1049 Reinstatement is not a mandatory relief in case of breach of Sec. 25F and 25G hence compensation awarded by Labour Court in lieu of reinstatement on finding that employee does not have prescribed qualification to carry out or discharge duties of the post was held to be justified. Gurjargruvers (P. Para: 6) ii) Mere violation of Sec. v. Ram Sahai & Anr. Para: 7) 2. The Supreme Court held that the Labour Court in the instant case should have probed deeper before reinstating him with full back wages. 1993 III LLJ 772 : 1988 (57) FLR 107 : 1988 II LLN 385 : 1988 I CLR 569 (Bom. but. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. Vishwas Bhimrao Dhumal v.C. Para: 1) “……….” (Page: 352.. Para: 4) “……….Thus bare perusal……….DB) “The labour………. 1966. Para: 28) iii) When workman was appointed under a scheme and the scheme itself came to an end (S. The Apex Court concurring with Labour Court and High Court held that though for the purpose of pay scales there was gradation of employees it does not put the remaining 7 workmen in different categories and as there is no trade test to mark efficiency.9.000/. Ltd.. a sum of Rs. 25G or 25H of the Act. although ordinarily would have set aside the impugned award and consequently the judgment of the High Court……….Sec.C. Sarjeet Singh & Anr. That is to say. The Scheme was to be completed upto 7. He filed an application for his regularization of his services as a pump driver before the Labour Welfare and Conciliation Officer. 1. State of Rajasthan v. 25G negativing the contention of the management that the seven fell in different category. had been retained. hence relief was moulded and as the establishment was no longer in existence instead of reinstatement compensation of 1 year wages was awarded. those who fall in the same category shall suffer retrenchment only in accordance with the principle of last come first go. His services were dispensed with as early as in 1987.C.C. no grade wise allocation of duties within the same category. the services of Respondent No. Para: 1) “In terminating the services of Respondent No.2J) “It must be remembered that the above provision which we have quoted insists on the rule being applied category-wise. The Management of Jorehaut Tea Co.1997. the same would not mean that the Labour Court should have automatically passed an award of reinstatement in service with back wages. Proper when establishment is not in existence (S. We. Para: 9) c) Relief of compensation in lieu of reinstatement 1. concurred in by the High Court is that they fell in the same category………. The finding of the Tribunal. v. but in any event. therefore the 7 workmen fall in the same category and hence as the principle of last come first go was not followed it was in violation.C.” (Page: 525. 25G Reliefs for violation 2671 is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. there is a violation of Sec. it does not entitle the Labour Court to direct reinstatement of the employee automatically because here apart from the appointment being under the scheme. The job was not of perennial nature. 25G was followed and those of the remaining seven were set aside by the Tribunal for violation of Sec.. when his services were terminated any person who was junior to him in the same category.11.2J) “……….instatement of his services.1997. however. The term of his appointment was extended from time to time.” (Page: 912. We. 1 remained employed was from 19.He was initially appointed for a period of six months. termination of 16 employees was upheld as retrenchment compensation was paid and Sec.11. therefore. 2006 (111) FLR 908 : 2007 I LLJ 236 : 2007 I LLN 122 : 2007 I CLR 126 : 2007 LLR 7 : 2006 SCC (L&S) 2032 : 2006 (8) SCC 508 (S. 1980 II LLJ 124 : 1980 (56) FJR 513 : 1980 (40) FLR 474 : 1980 II LLN 151 : 1980 LIC 742 : 1980 SCC (L&S) 427 : 1980 AIR (SC) 1454 : 1980 (3) SCC 406 (S.1052 Out of termination of 23 employees. Ltd.2J) F 5A. the very scheme had come to an end on completion of the project.is awarded to Respondent by way of compensation as has been done by this Court in a number of its judgments. 1 were terminated. There was nothing to show that he. are of the opinion that interest of justice would be sub-served if instead and in place of re. there is no basis for placing the workmen in different grades and when all the workmen of the same . the Public Health & Engineering Department of the State inter alia contended that Respondent No. 75.1051 Even where.2J) F 5A. Respondent had not regularly served Appellant. In reply to the notice issued by the said authority.It will be seen that when there is no trade test or anything to mark efficiency. The total period during which Respondent No. we would assume that violation of Sections 25-G or 25-H occurred (although there is no factual basis therefor). It would not be proper to direct his reinstatement with back wages. The short point raised is that the seven workmen are not in the same category. Indragarh “ (Page : 908/909. 1 had never been appointed by it and in fact was appointed by the Sarpanch of the Gram Panchayat. Hanumagarh. Workmen of Sudder Workshop of Jorehaut Tea Co. Respondent and vice versa. As the Scheme came to an end.1996 to 7. When workman failed to prove that juniors are retained (Del. v.any relief.The Tribunal had evidence before it of at least two workers of the Barakar factory having been transferred in the past to other places.DB) ¥ 5A.2672 Chapter VA – Lay-Off and Retrenchment Sec. VII & Anr. It is not disputed that no such plea was taken in the written . R.” (Page: 127.C.HC) XI. Sri Mridul. 1969 I LLJ 242 : 1968 (34) FJR 232 : 1968 (17) FLR 145 : 1968 LIC 1229 : 1968 AIR (SC) 1002 (S.. Jabalpur & Anr. states that a just solution by the Court in the given circumstances is acceptable.DB) “………. Jurisdiction and procedural issues connected with the disputes under the Section a) Tribunal to arrive at conclusion on compliance after examining lists and verifying documentary evidence (Pat. for each such workman be paid………. are evolved..C. Indian Hume Pipe Co.. Para: 10) 2. 2001 I LLJ 420 (Del. there is nothing to distinguish one workman of one grade from another workman of another grade inasmuch as there is no allocation of duties amongst the workmen of different grades in the category………. Mugum & Ors. 25G category are to do the same work inasmuch as by the management’s own evidence there is no gradewise allocation of duty within the same category. P. It was the discretion of Labour Court which could be exercised as per the facts and circumstances of the case.O.1054 The Tribunal had rightly concluded that the provisions of Sec. M/s. Labour Court No. Labour Court could deny relief of reinstatement and award compensation instead. We direct that.HC) ¥ 5A. Para: 7) “Counsel contends that the Workshop is not in existence now and reinstatement is physically impossible.With respect to………. Supreme Court held that Tribunal was not competent to go into that question.1055 Since the question whether the principle of “Last come. Para: 2 & 3) b) Tribunal cannot decide violation if same is not disputed (S. one year’s wages. The result is that the Award must hold good in regard to the illegally retrenched seven workmen. for the workmen. On the basis of this evidence. first go” should be observed in respect of retrenched employees was not raised before the tribunal by the union. 25H was violated and it was held that even in cases of illegal termination. Central Government Industrial Tribunal-cum-Labour Court. In the circumstances of the case it cannot be said that the management’s selection of persons to be retrenched leaving the juniormost in same category was justified and the reason now adduced for deviating from the principle cannot be accepted in the absence of the reason being not recorded at the time of retrenchment. Although in the evidence the Management wanted to justify their departure from the principle of ‘last come first go’ there is nothing to show that such a reason was recorded for deviating from the principle. The High Court has avoided the pitfall and we decline to accept the submission. This fallacy has been rightly negatived by a detailed discussion in the Award. that process amounts to creation of separate categories. Their Workmen. calculated on the scale sanctioned be the Wage Board recommendations.1053 Labour Court’s award of granting compensation instead of reinstatement with back wages was upheld by High Court as the workman failed to prove that juniors to the workman were retained in service or Sec. 25G had been complied with after examining the lists filed by the employer and also verifying other documentary evidence. Workmen of Pure Kustore Colliery (represented by Khan Mazdoor Congress) v. v. in lieu of reinstatement. the Tribunal went into the question as to whether the company even ii it decided to effect a retrenchment of the 12 workmen should have applied the principle ‘last come first go’ and found out whether these workmen could be transferred to other places if they were senior to those retained. Ltd.2J) “……….” (Page: 128.2J) F 5A. Further it will be also noticed that although there is classification of workmen into grades (?) within the category.” (Page: 128.It is a confusion or unwarranted circumvention to contend that within the same category if grades for scales of pay based on length of service etc. 1969 I LLJ 126 : 1969 (18) FLR 297 (Pat. 1057 The Appellate Authority has u/s.P Shops Act (AP. hence Labour Court in proceedings under the Section was wrong in deciding the dispute as to whether retrenchment of employee was in accordance with Sec.in Section 25 G.” (Page: 532.The approach adopted………. Para: 22) . Vijayawada & Ors. 25F & 25G as they are regarding statutory rights and right to livelihood involving factual investigation (Ori.DB) ¥ 5A.1058 Court refused to decide the question as to whether there was any violation of principle of ‘last come first go’ by corporation while retrenching employees. 25F & 25G. v. not possible for Court exercising writ jurisdiction. N.DB) ¥ 5A. 1987 II LLJ 237 : 1987 I LLN 517 (AP.” (Page: 402. 33C (Mys.come first go………. 1992 I LLJ 397 : 1990 LIC 1378 (Ori. 33C deals with the recovery of money as proceedings under the said Section are proceedings in nature of execution.” (Page: 531. Para: 4) “………. Orissa State Road.V.” (Page: 411. 41 of the Andhra Pradesh Shops and Establishments Act. The nearest units to the Barakar factory were the one at Konnagore and the other at Patna at a distance of 200 miles from Barakar.” (Page: 531.. Para: 1) “The dispute between the………. can be determined by appellate authority u/A. President Athani Municipality & Anr. There is no evidence here as to the terms of employment of the workers in other units of the factory.” (Page: 246.No factual investigation………. Para: 8) “………. Para: 2) “There is No……….” (Page: 531. 25F and 25G of the Industrial Disputes Act and hence retrenchment is set aside and employer is directed to comply with these provisions. Para: 5) e) Writ Court cannot decline to interfere with disputes as to violation of Sec. Para: 2) d) Retrenchment whether as per Sec.under Section 33 C. The point not having been raised by the union and without going into the question as to whether it was feasible for the appellant to effect such transfers. State Transport Accounts Association & etc.” (Page: 238. since determination of such question involved factual investigation by adjudicating authority. 1965-66 (28) FJR 530 : 1964 I LLJ 691 : 1964 (9) FLR 289 (Mys.point is warranted. Purnachandra Rao & Ors. 25G cannot be decided in proceedings u/s. 25G Vithal Parappa Murari v.Sec.DB) “………..Act.1056 Entire Sec.DB) ¥ 5A. v.25 G or not.33 C (2) of the Act………..Is the retrenchment………. Para: 1) c) Dispute as to whether retrenchment was as per Sec. 25G Jurisdiction and procedural issues connected with the disputes under the Section 2673 statement of the union and with all respect to the Tribunal it was not competent to go into that question at all. the jurisdiction to determine whether retrenchment of employees was in accordance with Sec.DB) “In fact……….DB) “The petitioner was a………. Krishna District Cooperative Marketing Society Ltd. the Tribunal should not have attempted to apply the principle of ‘last come first go’. Supreme Court held that tribunal was not competent to go into that question. 25F and 25G are not cases to enforce private rights or contractual rights or obligations but statutory rights and also right to livelihood u/Art.” (Page: 246. 25G and 25H. nor the employee ever raised a plea of violation of Sec. State of West Bengal & Ors. v. 1995 I LLN 1222 : 1996 LIC 328 : 1995 LLR 749 (Cal. It is not disputed that no such plea was taken in the written statement of the union and with all respect to the Tribunal it was not competent to go into that question at all. The Tribunal held termination illegal holding violation of Sec. Indian Hume Pipe Co.” (Page: 1490. His only case . 21 and hence the writ Court cannot decline to interfere with them on the ground that they are domestic disputes under private law.1062 Where the services of a messenger who worked for a period of 87 days. 25G ¥ 5A. The nearest units to the Barakar factory were the one at Konnagore and the other at Patna at a distance of 200 miles from Barakar. Ltd. Mani Ram & Anr. it was held that an adverse inference could be drawn by Court and hence order of reinstatement with back wages by Labour Court after finding that workman was terminated while his juniors were retained was upheld.2J) F 5A. was terminated he filed a claim for wages not paid for some holidays and Sundays u/s. Para: 1) ¥ 5A.writ jurisdiction………. 25G when the reference does not contain the said question (S. On the basis of this evidence. 25G nor the Tribunal noticed the fact that the two persons were not appointed after termination of the respondent for the post of messenger nor the fact that the employee did not respond to several advertisements offering reemployment to retrenched employees.1061 Where Management failed to produce any documentary evidence nor cross examined workmen who alleged that principle of “last come first go” was violated. 2001 II LLJ 1489 : 2001 LIC 2563 (P&H..In our view……….. 25H none to 25G.The Tribunal had evidence before it of at least two workers of the Barakar factory having been transferred in the past to other places.1059 Disputes about termination of service in violation of Sec. After a year he raised a dispute alleging illegality in his termination.DB) “……….C.pleases.2J) F 5A. v. The Central Government referred the dispute to Tribunal in which there is only a reference to Sec. M/s. Para: 12) f) Labour Court can draw adverse inference when management failed to produce documentary evidence or cross examine workmen (S. Pancha Mayurakashi Cotton Mills Employees Union & Ors.2674 Chapter VA – Lay-Off and Retrenchment Sec. The High Court upheld the award.2J) “……….” (Page: 1226/1227. 33C(2) which was allowed as full and final settlement. The point not having been raised by the union and without going into the question as to whether it was feasible for the appellant to effect such transfers. Their Workmen. The Supreme Court set aside the judgments of Courts below for the reason that the reference was not made for Sec.DB) “The Labour Court………. There is no evidence here as to the terms of employment of the workers in other units of the factory. the Tribunal should not have attempted to apply the principle of ‘last come first go’. 1969 I LLJ 242 : 1968 (34) FJR 232 : 1968 (17) FLR 145 : 1968 LIC 1229 : 1968 AIR (SC) 1002 (S.C. State of Haryana v.C. 25G.1060 Since the question whether the principle of “Last come first go” should be observed in respect of retrenched employees was not raised before the tribunal by the union.” (Page: 1228. Para: 4) g) Tribunal cannot set aside termination as violative of Sec. the Tribunal went into the question as to whether the company even if it decided to effect a retrenchment of the 12 workmen should have applied the principle ‘last come first go’ and found out whether these workmen could be transferred to other places if they were senior to those retained.. Para: 8) “That apart……….against the petitioner………. if the employer wishes to re-employ any employee. in the second appeal admittedly several persons had been appointed prior to the respondent on a temporary basis. Indeed the order of reference by the Central Government did not also refer to Section 25-G but only to Section 25-H. In the circumstances. In the circumstances. 2006 I LLJ 748 : 2006 (108) FLR 733 : : 2006 I LLN 898 : 2006 LIC 883 : 2006 I CLR 395 : 2006 LLR 209 : 2006 (1) SCC 530 : 2006 SCC (L&S) 143 (S. the High Court upheld the decision of the Tribunal as if the Tribunal had proceeded under Section 25-H. The two Sections viz. the respondent had raised no allegation of violation of Section 25-G in his statement of claim before the Industrial Tribunal. 1960 I LLJ 504 : 1960-61 (19) FJR 46 : 1960 (1) FLR 337 : 1960 AIR (SC) 762 (S. Sections 25-G and 25-H therefore operate in different fields and deal with two contradictory fact situations.” (Page: 754. he must offer to employ retrenched workmen first and give them preference over others. Para: 15) “Besides. In the circumstances it was not open to the Tribunal to “fly off at a tangent” and conclude that the termination of service of the respondent was invalid because of any violation of Section 25-G by the appellant. They would have prior rights to re-employment over the respondent on the basis of the principles contained in Section 25-G or 25-H.3J) Issue – Burden of proof to justify deviation of principle of ‘Last come first go’ is on the employer who has to furnish valid and sound reasons Caes Law – M/s. His only case was that Section 25-H of the Act had been violated. Para: 26) “The Tribunal also failed to deal with the issue raised by the appellant in the first appeal that no grievance had been made nor any demand raised by the respondent either in his application under Section 33-C(2) or otherwise that his services had been illegally terminated.” (Page: 752. nevertheless non-raising of the issue earlier was a factor which the Tribunal should have taken into consideration in weighing the evidence.C. It may be that the principles of res judicata may not disqualify the respondent from contending that his termination was invalid. Therefore. he must offer to employ retrenched workmen first and give them preference over others.Sec. Settled law on the issues under this section a) Burden of proof to justify deviation of principle of ‘Last come first go’ is on the employer (S. the High Court’s view that the termination was invalid under Section 25-H cannot in any event be sustained. The two Sections viz. Significantly. In the circumstances it was not open to the Tribunal to “fly off at a tangent” and conclude that the termination of service of the respondent was invalid because of any violation of Section 25-G by the appellant. if the employer wishes to re-employ any employee. The Tribunal ignored the fact that there was no pleading by the respondent in support of an alleged violation of Section 25-G.2J) “In the first appeal. His only case was that Section 25-H of the Act had been violated. 25G Settled law on the issues under this section 2675 was that Sec. Rakesh Kumar Tewari. Tribunal therefore has no jurisdiction to ‘go on a tangent’ and declare violation of Sec.C. Their Workmen. SBI v. Section 25-H unlike Section 25-G deals with a situation where the retrenchment is assumed to have been validly made.C. Sections 25-G and 25-H therefore operate in different fields and deal with two contradictory fact situations. the respondent had raised no allegation of violation of Section 25-G in his statement of claim before the Industrial Tribunal. The view therefore that his services were wrongfully terminated was set aside on multiple grounds besides that of 25G. 1-3-1960 Please see related ratio/s under the above citation in this section Note: The case of Swadesimitran Limited settles the issue of burden of proof incase of deviation of the principle of ‘last come-first go’ . Section 25-H unlike Section 25-G deals with a situation where the retrenchment is assumed to have been validly made. As we have said Section 25-H proceeds on the assumption that the retrenchment has been validly made.3J) CA 483 of 1958 dt. Swadesamitran Limited Madras v.” (Page: 753. Regional Manager. Para: 15) “In the first appeal. Para: 18) XII. The Tribunal ignored the fact that there was no pleading by the respondent in support of an alleged violation of Section 25-G. 25G.” (Page: 752. 25H was violated. Indeed the order of reference by the Central Government did not also refer to Section 25-G but only to Section 25-H. 25H was added industrial adjudication generally recognised the principle that even if retrenchment was made as a result of surplus it was necessary that employer should re-employ the workman when such occasion arises and hence Tribunal’s award directing reemployment of concerned workman was held justified. In our opinion. therefore. S. 25H or it’s principles would not be applicable for disputes prior to it’s enactment and hence it was held that Tribunal acted without jurisdiction when it granted benefits of the said section on ground of social justice to workmen retrenched before the provision came into force and Tribunal’s award confirmed by Labour Appellate Tribunal and High Court was quashed. Wide though the powers of an Industrial Tribunal are while adjudicating upon industrial disputes.C. 1 thereof that “it shall be deemed to have come into force on the 24th of October. Section 25-H provides for re-employment of retrenched workmen in certain circumstances in preference to newcomers.3J) “………. 1953. company employed three clerks.CB) “We will. But Act 43 of 1953 which enacted this provision clearly provides in sub-sec.C.3J) F 5A. 25H I. Para: 2) . 1961 II LLJ 110 : 1961 (3) FLR 237 : 1967 AIR (SC) 667 (S. it cannot arrogate to itself powers which the legislature alone can confer or do something which the legislature has not permitted to be done. The legislature did not intend the provisions to come into force before October 24. Sen argues that though under S.CB) F 5A. at the relevant time this provision was not in the statute book and it was erroneous in law to have virtually given effect to the said statutory provision retrospectively. it was necessary that whenever the employer had occasion to employ another hand the retrenched workman should be given an opportunity to join service. Para: 2) “………. Guha & Anr. (2) of S.” Clearly. Para: 3) Note: This judgment was given prior to introduction of Chap.1064 Sec. the provisions of this section cannot apply to workmen who had been retrenched before this provision came into force. V-A in the Act b) Benefit granted by the section is prospective and not retrospective (S.. When that is the mandate of the legislature no Tribunal has jurisdiction on the basis of its own conception of social justice to ignore it and apply the provisions or its underlying “principle” to a dispute which arose before the provisions came into force.” (Page: 67/68. say a word about the ground upon which the Tribunal thought it fit to give the retrenched workers the benefit of the provisions of S. This principle was regarded as of general application in industrial adjudication on the ground that it was based on considerations of fair play and justice……….” (Page: 68.. Attributes of the section a) Re-employment is the generally recognized principle of the Courts even prior to introduction of chapter V-A (S. Even before 25-H was added to the Act industrial adjudication generally recognized the principle that if an employer retrenched the services of an employee on the ground that the employee in question had become surplus.C.2676 Chapter VA – Lay-Off and Retrenchment Sec.” (Page: 112.1063 Subsequent to retrenchment of an assistant storekeeper whose work was substantially clerical in nature. Sen is justified in contending that the order passed in the present proceedings against the appellant is contrary to industrial law.C. Re-employment of retrenched workmen – Sec. Kanpur v.we allow the appeal and quash the award of the Industrial Tribunal………. 25-H of the Industrial Disputes Act the principle has now been statutorily recognized that a retrenched workman must be given an opportunity of re-employment when the employer has to employ an additional hand.Mr. 25-H on the ground of social justice. we do not think that Mr.Therefore.. Rai Sahib Ramdayal Ghasiram Oil Mills and Partnership Firm v.. 25H L. Retrenchment and appointment of clerks took place prior to introduction of Chapter V-A of the Act It was held that even before Sec. this argument is misconceived. however. 1963 II LLJ 65 : 1963–64 (24) FJR 266 : 1963 (6) FLR 266 : 1964 AIR (SC) 567 (S. Cawnpore Tannery Ltd. 1953. The Labour Appellate Tribunal & Anr. ” (Page: 404. we may notice that in respect of properties that vested in the Central Government.the employment.2J) “………. On examination of the provisions thereof. the Labour Court has erred in awarding him the wages claimed at the rate previously received by him.:25H only gives………. 33 of Nationalisation Act pertains only to pecuniary obligation and not to other matters where as Sec.” (Page: 404. we may relate all those items that have been mentioned in Section 9 to Section 23 of the Nationalisation Act. Chapter VI provides for appointment of Commissioner of Payments who has an obligation to deal with the claims made under Section 23 of the said Act to persons who make a claim before the Commissioner within 30 days from the specified date. Para: 5/6) e) Section does not bar claim by workmen for bonus declared by company after their retrenchment (Cal. v. 9 to Sec. Court dismissed challenge to the validity of reference by the management and held that definition of ‘Industrial Dispute’ is very wide and as workmen raising dispute in instant case have community of interest with retrenched workmen in . 25H Attributes of the section 2677 c) Section prevails over Nationalization Act (S.DB) ¥ 5A. 25H contains no provision stipulating that re-employment should be on the former terms and conditions (Bom. The claim made in the present case is one relating to employment under Section 25-H of the Act which merely creates an obligation that a retrenched workman will have preference when fresh appointments are made and an opportunity will have to be given to them to offer themselves for re-employment..Sec. Such an obligation does not fall within the scope of Section 9 of the Nationalisation Act. Employers in relation to Management of Industry colliery of Bharat Coking Coal. 25H of Industrial Disputes Act merely creates an obligation to provide preference in reemployment to retrenched workman. Ltd. Para: 1) “………. When the retrenched workman had been re-employed and paid wages as a new entrant at a rate lower than that which he previously received. Para: 2) “All that S. company issued a notification declaring additional profit bonus for financial year prior to such retrenchment and dispute regarding claim for bonus by retrenched employees was taken up by other workmen of establishment through their union. They all pertain to pecuniary or commercial obligations and not to other matters. as provided under Sections 8 and 9. Workmen (represented by Akhil Bhartiya Koyla Kamgar Union) v.2J) F 5A. Ltd.DB) “Sec.” (Page: 1996.” (Page: 404. Chapter III of the Nationalisation Act provides for payment of amount under that Chapter. Indian Hume Pipe Company.1067 Subsequent to retrenchment of certain workers and dismissal of one workman.1066 Sec.Conditions of Service.the Labour Court.C. 25H provides………. Bhimarao Baliram Gajbhiya.if we examine the scope of the Nationalisation Act. 25H of Industrial Disputes Act is not affected by Sec. 25H provides for preference to retrenched workmen in the matter of re-employment but there is no provision which states that such re-employment should be on the previous terms and conditions of service since it entails inclusion of such previous service for computation of retrenchment compensation if he is again retrenched after re-employment which is not the intention of the legislature. 2001 AIR (SC) 1994 : 2001 I LLJ 1400 : 2001 (98) FJR 652 : 2001 (89) FLR 552 : 2001 II CLR 1 : 2001 II LLN 819 : 2001 LIC 1397 : 2001 SCC (L&S) 641 : 2001 SCC (4) 55 (S.1065 The obligations of employer as contemplated in Sec. Para: 6) d) Sec.The only right………. 9 of Nationalisation Act and also since Sec. The award is set aside. such obligation does not fall u/s.C. 25H made by employees retrenched before Nationalisation Act was enacted was held maintainable.DB) ¥ 5A. 1965 II LLJ 402 : 1966-67 (30) FJR 486 : 1967 (14) FLR 92 (Bom. 9 of Nationalisation Act hence claim u/s. and Ors. the Nationalisation Act provides immunity to the Central Government or its company from prior liabilities. 25F or 25H as the relief claimed was not relief under the Act but relief under declaration made by the company.fourth Industrial Tribunal……….1068 The question whether the claim of an employee declared surplus and was retrenched survives for re-employment u/s.HC) II.” (Page: 722.of the appeal fails.DB) g) Retrenched employees to be preferred over others in re-employment but not entitled to reinstatement with back-wages (P&H.DB) “………. 25H has only prospective in effect and not applicable to retrenchment effected prior to introduction of the section (Cal. they are entitled to claim bonus and also since claim for bonus was not barred by Sec. East Asiastic & Allied Co. v. 25H. 1961 II LLJ 23 : 1960-61 (18) FJR 295 (Cal. employer not bound to comply with its provisions. The Secretary. Co-Operative Societies. Para: 4) “In the case before………. Para: 1) “………. M/s. v. Peirce Leslie India Ltd. 25H has no such limit.. 25H of The Industrial Disputes Act after a period of one year.1069 As per Sec. (India) Pvt.” (Page: 723. 25H general interest of labour because they put forward a claim which is similar as in the present case. as this section is prospective and not retrospective..2678 Chapter VA – Lay-Off and Retrenchment Sec. Both retrenchment and re employment of retrenched workmen have to take place after operation of Sec. 25H of the Act. Ltd. 25H of the Act.21 November 1956……….HC) .the appellant company……….upon the appellant………. Ltd. & Ors. Para: 4) “……….” (Page: 724. came for decision in the light of the sub rule (3) of rule 78 of Kerala Industrial Dispute Rules 1957 which does not allow the same beyond a period of one year. & etc.” (Page: 724.1070 Retrenchment of certain workmen was effected prior to introduction of Sec. 1992 II LLJ 177 : 1992 LIC 549 : 1992 II CLR 707 (P&H. 1961 I LLJ 720 : 1961-62 (20) FLR 309 (Cal. it being a statutory and substantive right u/s. retrenched employees are to be preferred over others but that does not give them any right to be reinstated with back wages. Striking down the said rule.The question of consideration……….” (Page: 724.I have come………is an Industrial Dispute………. West Bengal Metal Workers’ Union v. 25H of the Act.By an award published……….therefore very wide………. Para: 7) f) Sec. Applicability a) Sec. Kanpur & Anr.DB) ¥ 5A.. v.By a notice dated………. it cannot be circunscribed by limiting the liability of the employer.HC) ¥ 5A. 25H does not prescribe any time limit for employment (Ker. The Registrar. Chandigarh & Anr. Jeewanlal. Punjab Udyog Bldg. Para: 2) “……….. the High Court held that it is ultra vires and void to the parent Act in which Sec.HC) ¥ 5A. Para: 5) “Sri Chowdhury also argued………. Fourth Industrial Tribunal West Bengal & Ors. 2006 (109) FLR 929 : 2007 II LLN 955 : 2006 LIC 725 (Ker.” (Page: 722. Jaswinder Singh Passai & Ors. Centre of Indian Trade Unions.of the Tribunal………. Para: 9) Note: The following case/s may also be referred B.The High Court next considered whether the respondent is a successor-in-interest of the colliery and on examination of Section 9 of the Nationalisation Act.2J) . v. and as long as there is identity of business itself and retains its identity. v.2J) “………. the writ petition was allowed and the Award of the Tribunal is quashed………. Bharat Coking coal Ltd. it must be held that the respondent is also a successor-in-interest to that extent………. The workmen in question have been retrenched long before the colliery was taken over by the respondents and. section 17 makes the necessary provisions. the rights and obligations that existed between the old management and their workers continue to exist vis-à-vis the new management after the date of the transfer provided there is continuity of service and identity of business.C. Industrial Tribunal directed the new Government owned company to re-employ these workmen u/s. For purpose of continuity of service. took the view that the Government or the respondent cannot be considered to be successor-in-interest of the Old business inasmuch as only the right.. 9 and 17 of Nationalisation Act previous liabilities were not to be taken over by the new management whereas the Apex Court held that unlike in civil law. Para: 3) “We have already adverted to the decision of this Court in Workmen v. 25H Applicability 2679 b) Section applies to the transferee even if employee receives retrenchment compensation prior to transfer of undertaking (S. the principle stated in Anakapalle Co-operative Agricultural and Industrial Society Ltd. The Chairman..2J) F 5A. The workmen had been paid compensation only under section 25-F and not under section 25-FF of the Act on transfer of the colliery to the present management. 25H since business of the erstwhile company is continued and retained identity of business. & Ors. That case has not been pleaded or established. the industriual law takes a different view with regard to successor and where there is transfer of business from one owner to another. that as long as both assets and liabilities have not been acquired. Where there is transfer of business from one owner to another. it cannot be stated to be a successor-in-interest in question unless statute provides for the same………. & Ors.” (Page: 1401.. Thus a person on such transfer becomes the owner of the concern and the employer of the employees of the establishment. 25FF they are still entitled to re-employment u/s. therefore. Industrial law takes a different view with regard to as to who is the successor who runs the said industry subsequently.On reaching these conclusions. Unlike civil law. Workmen (represented by Akhil Bhartiya Koyla Kamgar Union) v. (surpa) in this regard cannot be applied at all. Ram Lal & Ors.” (Page: 1403.C. we do not think that the line upon which the High Court has proceeded is correct. 25H whereas High Court denied this benefit because as per Sec.” (Page: 1403. Para: 3) “Shri Sinha submitted that as soon as transfer had been effected under section 25-FF of the Act all the employees became entitled to claim compensation will not be entitled to claim re-employment under section 25-H of the Act…….C. Hence. (surpa) which examines the scope of section 9 of the Nationalisation Act….. 2005 I LLJ 853 : 2005 (104) FLR 820 : 2005 I LLN 1033 : 005 LIC 864 : 2005 I CLR 964 : 2005 SCC (L&S) 308 : 2005 AIR (SC) 851 : 2005 (2) SCC 638 (S. 25F much before the transfer but not under Sec.Sec. title and interest of the Coking coal mines have been acquired by the Government under the Nationalisation Act free from all encumbrances..1071 Demand of the workmen who were retrenched by bhugatdih colliery long before it was taken over under Coking Coal mines Act.. 25H. The order made by the High Court deserves to be set aside and the Award made by the Tribunal will have to be restored. Food Corporation of India & Ors. the rights and obligations that existed between the old management and their workers continue to exist vis-à-vis the new management after the date of the transfer provided there is continuity of service and identity of business which is a fact in the instant case and also since the workmen were paid compensation u/s. Ashok Ors. 2001 I LLJ 1400 : 2001 (98) FJR 652 : 2001 (89) FLR 552 : 2001 II CLR 1 : 2001 II LLN 819 : 2001 LIC 1397 : 2001 SCC (L&S) 641 : 2001 AIR (SC) 1994 : 2001 SCC (4) 55 (S. Employers in relation to Management of Industry colliery of Bharat Coking Coal..HC) and also refer to the case of Maruti Udyog Ltd. 1972 to be re-employed as per Sec.. 1996 LIC 2808 (AP. Ltd.. I shall maintain a list of the workmen who offer to accept the reemployment and porceed to give them the benefit of reemployment without any claim for backwages or seniority if they approach the Board within three months from now. v.. State Electricity Board & Anr.C. Section 28-F also uses the word ‘retrenchment’ but qualifies it by use of the further words ‘workman………. Electricity Board. 1990 LIC 1676 : 1990 AIR (SC) 2139 (S.Satyam & Ors.C. Central Bank of India v.P. It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year. 25F but to all cases of retrenchment not covered by Sec. P. In other words.2680 Chapter VA – Lay-Off and Retrenchment Sec.. v.. in a dead business.who has been in continuous service for not less than one year’.C. The ordinary meaning of the expression ‘retrenched workmen’ must relate to the wide meaning of ‘retrenchment’ given in Section 2 (oo). 25G and 25H apply only to an existing or continuing industry hence these sections would not apply in cases of closure.CB) F 5A.who has been in continuous service for not less than one year’... There will be no order as to costs. Joglekar & Anr.C.” (Page: 826.1074 The Apex Court held that the Sec. Para: 9) . Para: 4) “The plain language of Section 25-H speaks only of re-employment of ‘retrenched workmen’.3J) F 5A. 25F (S. like the respondents?………. Divelkar & Anr...” (Page: 249. A..2J) F 5A. 25F merely qualifies the category to whom that section applies and therefore Sec. section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words ‘workman………. 1957 I LLJ 243 : 1956-57 (11) FJR 317 :1957 AIR (SC) 121 (S.1072 Termination of workmen completing 240 days of continuous work could be treated as retrenchment and hence the employer was directed to maintain a list of workmen who offered to accept re-employment and proceed to give them the benefit of re-employment without any claim for backwages or seniority.2J) “………. U.. Para: 2) Note: Please see related ratio/s under the above citation u/s.. Hariprasad Shivshankar Shukla & Anr. 25H c) Applicable to retrenched employee having 240 days of continuous service (S. Ltd.. Para: 4) d) Applicable to continuing industries (S.. 25H cannot be restricted to cases of Sec. 1996 II LLJ 820 : 1997 (90) FJR 106 : 1996 (74) FLR 2063 : 1997 II LLN 31 : 1996 LIC 2248 : 1996 II CLR 1095 : 1996 SCC(L&S) 1273 : 1996 AIR (SC) 2526 : 1996 (5) SCC 419 (S. respondent No. U. 25F also. is the provision for re-employment of retrenched workmen confined only to the category covered by Section 25-F and cannot be extended to all retrenched workmen including those not covered by Section 25-F.C.3J) “It is not in dispute that workmen had completed 240 days of continuous work and could-be treated as retrenched workmen.Chapter V-A deals with all retrenchment while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year………. We dispose of these appeals with the direction that the U. and it does not restrict or curtail the meaning of retrenchment……….1073 The cognate Sec.C. 25H merely mentions re. v. AND Barsi Light Railway Co.employment of retrenched workmen but it must relate to a wide meaning of the term ‘retrenchment’ to include all kinds of retrenchment mentioned in Chapter V A and Sec. S.The question is whether there is any reason to curtail this definition of ‘retrenchment’ while construing the meaning of the expression ‘retrenched workmen’ in Section 25-H. K.” (Page: 1676.. Thus.” (Page: 823.P.CB) “Two other cognate . Bijli Karamchari Sangh & Anr.. 25G e) Section is not restricted to retrenchment only under Sec. N. D. 25H Applicability 2681 “Chapter V-A providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25-F applies but for all cases of retrenchment and. Nawanshahr Central Co-operative Bank Ltd. v. 1994 II LLJ 770 : 1993 (66) FLR (sum) 27 : 1993 I LLN 316 : 1993 I CLR 205 (Raj. The term “as if” used in Sec. Maruti Udyog Ltd. Labour Court. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing therefrom..11.C.O. 2007 I LLJ 429 : 2006 (111) FLR 1178 : 2007 I LLN 78 : 2007 LIC 274 : 2007 I CLR 221 : 2007 LLR 92 : 2007 (1) SCC (L&S) 518 (S. This contention is. The Labour Court gave an award supporting the claim.4.2J) F 5A. in case of transfer or closure of the undertaking. 1991 Jaipur Development Authority v. 25H of Industrial Disputes Act.1075 Sec. P. Para: 21) .2J) “The Respondents herein who are three in number were appointed by Maruti Limited as Electrician. These sections are introduced only for a limited purpose and this legal fiction cannot be pushed too far.1974 respectively. But the Division Bench upheld and restored the award.1076 The services of three workmen of Maruti Ltd came to an end with the closure of the undertaking in 1977.1977 as a result of closure of the factory………. title and interest vested with a new company known as Maruti Udyog Ltd. 25FF and 25FFF of the Act and in such an event Sec.1973 and 8.” (Page: 854.C. Once a valid transfer or a valid closure comes into effect.2J) f) Applicable to retrenched temporary workmen (P&H. therefore. unable to accept the contention of Shri Pai that a restricted meaning should be given to the word ‘retrenchment’ in Section 25-H. The Supreme Court while setting aside the judgment of the Division Bench held that the workmen in question ceased to be in the employment of the company before the appointed date of acquisition.HC) ¥ 5A. It clarified that Sec. Para: 11) Note: also refer to the following case/s Oriental Bank of Commerce v. They are retrenched and paid one month’s compensation under a settlement. The Single Judge set aside the award... 25F (S. The expression “as if” used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose. 20. The three retrenched employees there upon claimed re-employment u/s. 1980 (57) FJR 206 (P&H.Sec.HC) 4732 of 1991 dt. Jullundur & Anr. We are.” (Page: 858/859.. Employer cannot contend that a retrenched temporary workman was not entitled to the benefit of Sec. 25FF and 25FFF merely envisages computation of compensation and not the other consequences flowing there from. 25F will have no application in a case of transfer of an undertaking or closure thereof as contemplated in Sec.C. 25H will have no application. Ram Sahai & Anr. Central Government Industrial Tribunal & Anr. the relationship of employer and employee does not survive and ceases to exist.” (Page: 827. therefore. rejected. 8. 25H is wide enough as it covers the case of retrenched workman who had been recruited temporarily for a specific period on an adhoc basis. there is no reason to restrict application of Section 25-H therein only to one category of retrenched workmen. Para: 2) “How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. Helper and Assistant Fitter with effect from 274 1974. Their services stood terminated by the said company on or about 25/26.8. v. Both Section 25FF and Section 25FFF provide for payment of compensation only. Sep. Ram Lal & Ors. After the lapse of three years in 1980 it was taken over by the Central Government and it’s right. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. 25H when regular workmen have been recruited. therefore.HC) g) Not attracted in case of termination on account of closure since the compensation paid is not one u/s. 2005 I LLJ 853 : 2005 (104) FLR 820 : 2005 I LLN 1033 : 2005 LIC 864 : 2005 I CLR 964 : 2005 SCC (L&S) 308 : 2005 AIR (SC) 851 : 2005 (2) SCC 638 (S. . M/s. 10. 25H would not be applicable since closure was never challenged by workmen and they received compensation for such closure. Nagpur & Ors.workmen.CB) Anakapalle Co–operative Agricultural & Industrial Society Ltd. However. 25F.1078 On closure of the undertaking the workmen received compensation as per as Sec. Principal Labour Court. Bhandari & Ors. & etc. v..1079 So far as reemployment of the workmen retrenched on account of closure of the establishment is concerned u/s. Somayya S. The Secretary. Para: 2) “……….is incorrect. Their Workmen & Ors. Centre of Indian Trade Unions. Dau Dayal Bhatnagar & Ors. Chennai & Anr.2682 Chapter VA – Lay-Off and Retrenchment Sec. 2005 I LLJ 853 : 2005 (104) FLR 820 : 2005 I LLN 1033 : 2005 LIC 864 : 2005 I CLR 964 : 2005 SCC (L&S) 308 : 2005 AIR (SC) 851 : 2005 (2) SCC 638 (S. Peirce Leslie India Ltd. Management of Wavin India Ltd.C.. Kanpur & Anr.C.DB) Note: also refer to the following case Kalinga Tubes Ltd.There it was………. 18(1) of the Act.HC) h) Not applicable unless the offer of reemployment is clear and unambiguous (Bom. On refusal by employer.. Chennai v... On appeal.000 as an adhoc amount to each workmen. v. 1962 II LLJ 621 : 1963-64 (24) FJR 101 : 1963 (6) FLR 1 : 1963 AIR (SC) 1489 (S.. it was held that Sec. Pune v.C. the relationship of employer and employee does not survive. Para: 25) ¥ 5A.2J) . 25FFF of the Act once such valid closure comes into effect under an agreement u/s. v. v. notification for employment was issued but some workmen were not employed. 25H “Once it is held that Section 25F will have no application in a case of transfer of an undertaking or closure thereof as contemplated in Section 25F and 25FFF of the 1947 Act. Division Bench set aside the order of the Single Judge and Labour Court and held that Sec.” (Page: 859. 2005 III LLJ 152 : 2005 (106) FLR 557 : 2005 III LLN 288 : 2005 LLR 931 (Mad. 1972 (42) FJR 450 : 1972 LLN 536 (Ori. 1999 (82) FLR 533 : 1999 II LLN 145 : 1999 I CLR 880 (Bom. 25H is not applicable in case of bonafide closure. 25H cannot be invoked for reemployment.DB) ¥ 5A. 25FFF r/w. matter gone to Labour Court. Para: 3) ¥ 5A.DB) Note: The Bombay High Court held a different view in the case of Oriental Rubber Industries Ltd. & Ors.HC) i) Not applicable in case of genuine transfer of establishment where workmen are paid compensation (S.. workmen were paid statutory compensation under Industrial Disputes Act.1077 On closure... Single Judge remitted the matter to Labour Court.HC) Vasanta Kundlik Kumbhare & Ors.” (Page: 436. Presiding Officer. Choudwar v. State of Orrisa & Ors.HC) 95 (Bom. 2007 II CLR 637 : 2007 AIR (Bom. later the undertaking started operating under BIFR scheme and the workmen claimed re-employment in the undertaking. 2006 (109) FLR 929 : 2007 II LLN 955 : 2006 LIC 725 (Ker. v. 1978 (37) FLR 435 : 1979 LIC (Sum) 36 (All. Industrial Court (Maharashtra) Nagpur Bench.” (Page: 436. Ram Lal & Ors. which ordered reinstatement of workmen. it was re-started. Under such closure they are only entitled for compensation and that Sec. the logical corollary would be that in such an event Section 25H will have no application. Sec.CB) Note: Please see related ratio/s under the above citation in this section Note: also refer to the case of Maruti Udyog Ltd. directing employer to pay Rs. Raza Textiles Ltd.DB) “It is true………. subsequently after 2 years. Their Workmen. but resumption of work by employees who desired to resume work and whose employment had been stopped .re-employment within the meaning……….DB) “………. the notice when it said that the services of all other workers shall be deemed to be discharged with effect from the date of the lock-out really meant that the Company refused to employ the respondent workmen during the period when the place of employment was closed. then in the concluding portion the notice states.3J) “……….“The services of all other workers shall be deemed to be discharged with effect from Monday. Bamapada Mukherjee & Anr. Bihar Sugar Works Pachrukhi v. Ltd. 1953. 1961. 1969 LIC 1430 (Pat.” (Page: 1431.1081 Since re-employment u/s.the same conclusion………. A ‘lock’out’.. or the refusal by an employer to continue to employ any number of persons employed by him”. M/s. 1953. AND M/s. Indian Iron and Steel Co. 1953.C. Re-employment means a) Taking back a retrenched worker in same category to which he belonged before retrenchment (Pat.. Prasad & Ors. The second notice dated September 17.” (Page: 1432/1434. Rajasthan State Road Transport Corporation v. Thus. 25G and Sec. AND Akka Hussain & Anr.sixteen workmen were………. Ltd. Mahaveer Singh & Anr. 1957–58 (13) FJR 377 : 1958 I LLJ 260 : 1958 AIR (SC) 130 (S. Para: 2) b) Does not mean resumption of work by workmen after discharge during lock-out (S. it was held that Sec. the Management has no option but to declare a lock-out of the entire Works except some special shifts with effect from Monday August 24. August 24.DB) ¥ 5A. 1947.1082 Where notice of the lockout interalia provides for discharge of workmen and a subsequent notice of lifting of lockout and direction to all those workmen desirous to resume their work would be construed to mean discharge for lockout period only and resumption of work in response to such subsequent notice will not mean re-employment..1080 Training period of an apprentice under Apprenticeship Act. It was held that in such a case he cannot be treated as a workman even after one year’s training.in a particular………. S. 25H of the Act.Industrial Disputes Act. 25H Re-employment means 2683 j) Not applicable to an apprentice appointed under Apprenticeship Act even though his apprenticeship training is extended as per the terms of agreement (Raj.The expressions used in the second notice clearly show that the intention was not re-employment of discharged workmen. & Anr.3J) F 5A. v.HC) ¥ 5A. such an expression is neither usually employed nor apt to effectuate an intention to terminate the services of the workmen altogether. 1999 II LLN 609 (Raj. means the “closing of a place of employment..The case of………. M/s. and Rules 79 and 80 of Industrial Disputes (Bihar) Rules also support this conclusion.Tribunal for adjudication……….G.. there is no question of violation of Sec. according to the definition in the Industrial Disputes Act. Ltd. Indian Iron and Steel Co. Para: 2) “………. Abdul Samad Khan & Anr. 25H is not applicable in the instant case where concerned workmen were re-employed in other category and hence Court quashed the award of the Tribunal granting the workers same wages which they were getting before retrenchment and remitted the matter for reconsideration... places the matter beyond any doubt…….under Rule 79………. & Anr.. Indian Iron and Steel Co.C.It is worthy of note that the first notice states inter alia that in consequence of the illegal strikes which took place on several previous dates.Sec..support this conclusion……….” The expression “shall be deemed to be discharged” has to be read in the context of the declaration of a lock-out.of Section 25-H………. v. or the suspension of work. v. In this context.HC) III. 1961 was extended to enable him to complete his apprenticeship training as per one of the clauses of the agreement under Apprenticeship Act. & Anr. 25H means taking back a retrenched worker in same category to which he belonged before retrenchment. Kilburn and Co.I. General Manager. Krishnankutty & Ors. and MacNeill and Co. v. vide Shri Vishuddananda Saraswathi Hospital v.HC) . Certain Workmen.2684 Chapter VA – Lay-Off and Retrenchment Sec.3J) F 5A.C.1083 Employees were recruited through Employment Exchange by the corporation and their services were terminated whereas other employees were employed on the same posts. Para: 1) IV. & Ors. viz. 25H on account of the lock-out. The third notice dated September 23. this argument is misconceived. 25H which was although not in force but recognised by Tribunal in industrial adjudication. v... It is true that in the case of Annapurna Mills the discharge of the workmen was the result of the fact that the employer had closed his business and it was held that with improvement in circumstances if the employer re-opened his business it was necessary that he should take back in his employment his old employees. (1953) 1 Lab LJ 43 (L. This principle was regarded as of general application in industrial adjudication on the ground that it was based on considerations of fairplay and justice. S. the only reasonable construction is the one adopted by the Tribunals. Cawnpore Tannery Ltd.A.C.3J) “………. Even High Court held that they can be re-employed on the same post as management failed to comply with the provisions of Sec. 25G by following the principle of last in 1st go.” (Page: 383/384. that the employees whose employment had been refused during the lockout were permitted to resume work without any conditions if they reported for duty by a particular date. 1998 II LLJ 112 : 1997 (76) FLR 393 : 1997 LLR 462 (All. Trivandrum. When Sec.HC) ¥ 5A. it was necessary that whenever the employer had occasion to employ another hand the retrenched workman should be given an opportunity to join service.. Kanpur v. 1950-2 Lab LJ 125 (IT-West Bengal) and Sri Annapurna Mil1s v. 1949-1 Lab LJ 111: (IT-West Bengal). Therefore.If the three notices referred to above are read together against the background of events which had happened prior to August 23. new employment was made and thereby employer violated provisions of Sec. Sen is justified in contending that the order passed in the present proceedings against the appellant is contrary to industrial law. That is why the Labour appellate Tribunal has observed that the principle now statutorily recognised by Section 25-H was. 25H attracted a) When workmen terminated in violation of the seniority principle (Ker. and on fulfilment of a condition if they reported for duty after that date.HC) b) When new employment was made subsequent to retrenchment (S. Para: 1) Note: refer to the following case also Oriental Bank of Commerce v. 1982 I LLN 369 (Ker.1084 Direction by Industrial Tribunal to give re-employment to retrenched workman was held justified as subsequent to retrenchment. It would be noticed that the principle which was applied to the case of an employer who re-opened his business which had been closed by him is substantially the same principle which requires the employer to give an opportunity to his retrenched workman when he has occasion to engage another servant.. Labour Court upheld their contention.T.. 1953………. Even before 25-H was added to the Act industrial adjudication generally recognised the principle that if an employer retrenched the services of an employee on the ground that the employee in question had become surplus. All). we do not think that Mr. 1953. The employees challenged their termination on the basis that they should have been re-employed in accordance with Sec. 25H. Guha & Anr. Kerala State Road Transport Corporation. before the Act was amended..” (Page: 112. Their Employees. Their Employees. 1961 II LLJ 110 : 1961 (3) FLR 237 : 1967 AIR (SC) 667 (S. recognised by industrial adjudicators in dealing with such question.In our opinion. Union of India & Ors. State of Rajasthan & Anr.. as and when the vacancies arise.DB) “Accordingly………. Sufal Jha & Ors. Central Warehosing Corporation & Anr.” (Page: 564. arbitrary.” (Page: 1128. Para: 3) e) When workmen worked for 240 days terminated and vacancy is available (MP.C. Union of India & Ors. Pandey.reinstatement. 1995 (87) FJR 494 : 1996 (72) FLR (Sum) 29 (P&H. We record the statements of the learned counsel for the parties and dispose of the special leave petition in the terms as noticed above………. Mr.1087 available.HC) d) When vacancy arises in other projects for the retrenched project employee and the same is not offered to him (S. as noticed hereinabove. and improper on the ground that after terminating the workman employer retained similarly placed workmen and appointed new candidates with similar education qualification as that of terminated workman and held that the termination was a colourable exercise of power. Para: 10) .of termination.. the termination of workman was held illegal.” (Page: 885. learned counsel for the petitioners submits that this petition may be disposed of as settled with the direction that for considering the offer of appointments to the petitioners herein. whose names figure in the panel.In the present……….is set aside………. Jaura & Anr..2J) “After considering this affidavit and submission. Para: 3) “In the result……….C. they may be offered appointments in any of the projects in Madhya Pradesh. v. 25H When Sec.2J) F 5A. Ziley Singh v..HC) ¥ 5A. learned counsel appearing for the respondents does not object to that course being adopted. Para: 4) Note: The following case/s may also be referred Manohar Lal v.1085 Though the workman was appointed on temporary basis. v.HC) “……….Sec.1086 By considering the affidavit and submission of the employer the special leave petition was disposed off by directing the company to offer appointment to the project employee retrenched due to the closure of the project whose names figured in the panel prepared by company in any project as and where vacancies arise as per the principle of “first come last go”.DB) ¥ 5A.” (Page: 886. The workmen who worked for 240 days are entitled to reinstatement if vacancy is Nagar Panchayat. 2002 SCC (L&S) 1127 : 2002 IV LLJ 1039 : 2002 (9) SCC 693 (S. 25H attracted 2685 c) If employer after termination retained similarly placed employees and appointed new candidates with similar qualifications (Raj. Ashok Kumar Gupta & Ors. of course based on the date of the retrenchment of the employees concerned. 2000 (86) FLR 560 : 2000 II LLR 1204 (MP. 1997 LIC 884 (Raj. Act. B.2686 Chapter VA – Lay-Off and Retrenchment Sec.DB) ¥ 5A.” (Page: 881.HC) i) When liquidation of the establishment leading to termination of employees set aside (Raj. Employer contended that workmen were appointed for fixed term. Ltd. 25H. 1994 III LLJ 848 : 1987 (55) FLR 527 : 1987 I LLN 714 : 1987 LIC 1361 : 1988 I CLR 24 (Guj.. Para: 5) h) When employer failed to prove that workman’s tenure is fixed and new appointments were made subsequent to his termination (MP.1091 Workmen whose services were terminated on liquidation of Bhandar were held entitled to be reinstated from the date of setting aside of liquidation with continuity of service and 50% back wages. It was held that the employer should re-consider the case as the new post did not require technical skill and also that the employee had put considerable length of service before retrenchment. as others who were terminated were taken back by the employer and new appointments were made.The argument………. they moved Labour Court. 1996 (77) FLR 2063 even the workmen not covered by Sec. On termination. 25F were held entitled to benefits of Sec. Desai. 1997 (76) FLR 569 : 1997 II LLN 830 : 1997 II CLR 509 : 1997 LLR 628 (Del.1090 The workmen had rendered 5 years of service.DB) “Because of the reason………. Balbir Singh & Ors.Whether a workman………. Labour Court awarded reinstatement as fixed term employment was not proved by employer nor any reason was shown as to why they were not re-employed. Deepak J.DB) ¥ 5A. & Ors. High Court upheld the award of Labour Court..DB) “………. 25H even if not made. Para: 1) “……….1088 In view of Supreme Court judgement in Central Bank of India v. Para: 6) j) Re-employment for want of required qualification cannot be denied when the new post does not require any technical qualification considering his length of service (AP. of Delhi v.That without………. Government of N.1092 Employer denied re-absorption of the retrenched employee as he did not possess prescribed educational qualification. (Guj.HC) . v. Para: 1) g) Even though no pleading as to violation of 25H is made. 2005 LLR 694 (MP.DB) “………. 1997 III LLJ 879 : 1997 LIC 322 : 1997 II CLR 140 (Raj.1089 denied. 25H f) Even though the termination of the workmen does not fall under Sec.long period.C. v.” (Page: 850.. Food Corporation of India & Ors.” (Page: 570. Pleading as to violation of Sec.. 1996 LIC 2808 (AP. Ashok Ors. Pramod Chand v.dispute Act………. The Chairman.” (Page: 849. State of Rajasthan & Ors. S. benefit of section cannot be Gujarat State Machine Tools Corp. Satyam & Ors. Secretary General.DB) ¥ 5A.HC) ¥ 5A. Family Planning Association.Section 25-F……….HC) ¥ 5A. v.. 25F (Del. Rajesh Kumar & Anr.T. v.K. it was held to be in violation of 25H hence reinstatement was granted.DB) ¥ 5A. Ganga v.. 2002 (94) FLR 460 : 2002 II CLR 713 : 2002 LLR 709 (AP.HC) l) If Termination is due to closure consequent to financial difficulties but not due to unavoidable circumstances (Bom.DB) “The appellant………. Desai. Indian Refrigeration Industries & Anr. Industrial Court (Maharashtra) Nagpur Bench. 1994 III LLJ 848 : 1987 (55) FLR 527 : 1987 I LLN 714 : 1987 LIC 1361 : 1988 I CLR 24 (Guj. v..1093 Employment in regular vacancy in preference to outsiders was sought by the employee (petitioner) who was a part time sweeper working on his job for 10 years. Bachu Badia. 25H attracted 2687 k) Part-time sweeper who worked for ten years shall have preference in regular vacancy to the outsiders (AP. Indian Bank. 1990 II LLJ 408 : 1990 (60) FLR 267 (Raj. The High Court held that in view of the provisions of Sec.. 25H When Sec. Rajasthan State Road Transport Corpn. Deepak J. Vasanta Kundlik Kumbhare & Ors.HC) Ram Chandra Yadav & Anr. v.1096 Temporary workman was discharged from duty without complying with statutory requirement and fresh advertisement was issued to recruit fresh hands. Held that u/s. & Anr. Zonal Manager.” (Page: 1099. 1947. State pf Haryana & Ors.HC) n) When fresh advertisement was issued to recruit fresh hands while temporary workman was discharged from duty in vioation of section (Guj. Sec.HC) ¥ 5A. 2002 I LLN 1098 (Guj. 1981 (42) FLR 381 : 1981 II LLN 177 (Del. Para: 4) o) When retrenched workers are not intimated of vacancy and juniors are employed instead (Guj. v. Ltd.re-employed. 25H of the Act.HC) ¥ 5A. Nagpur & Ors. Para: 5) Note: Also refer to the following case in the above context When new workmen recruited in place of retrenched workmen.DB) . Gujarat State Machine Tools Corp. Baweja & Ors. it is incumbent upon Bank to offer it first to the employee who was terminated. two persons were appointed for the said post on contract basis and then they were regularized.1097 Re-employing juniors and failure to intimate vacancy to the workman retrenched is violative of Sec.1094 Where the closure is effected due to financial difficulties and not by reason of unavoidable circumstances beyond the control of employer.DB) ¥ 5A.” (Page: 850. 25H will have an application.1095 Services of the technical assistant of a Bank was terminated on the ground that there was no vacant post. Union of India & Anr. Hyderabad & Ors.in service. Later on. Direction was given to reinstate the employee. 25H of the Industrial Disputes Act. 1999 (82) FLR 533 : 1999 II LLN 145 : 1999 I CLR 880 (Bom. 25H. 2002 I LLJ 1041 : 2001 LIC 3427 (P&H. Sangeet Karla v.. M.DB) “It is evened……….. R.Sec.HC) m) When an employee terminated and others were appointed on the same post subsequently (P&H. v.HC) ¥ 5A. he is entitled to have preference over other persons in case of filling up of the future vacancies. present case.complaint……….Satyam & Ors.workmen.” (Page: 639. Para: 29) “He only question………. The High Court held that where the same company which was closed. The Apex Court upheld the validity of closure. Para: 1) Note: also refer to Central Bank of India v. v. the employer is under an obligation to offer re-employment u/s.C.” (Page: 640.Taking……….DB) ¥ 5A. Para: 2) “Thereafter………. Bhandari & Ors. Delhi.” (Page: 648. 2005 I LLJ 853 : 2005 (104) FLR 820 : 2005 I LLN 1033 : 2005 LIC 864 : 2005 I CLR 964 : 2005 SCC (L&S) 308 : 2005 AIR (SC) 851 : 2005 (2) SCC 638 (S. Subsequently. Para: 6) “………. 25H does not confer automatic employment on the complaint. 25F and hence a workman who did not serve for one year is also entitled to the benefit of re-employment.1098 The employer was a manufacturer of rubber products and issued notice of closure in November 1980 due to bad financial condition.respondents.” (Page: 516. 25F.” (Page: 649. Para: 7) “In my view……….section 25F. (Bom. Government of N.activity afresh.HC) 95 (Bom.This point……….on 8-3-1999………. of Delhi v.. However the order of reinstatement of the complaints with 50% back wages was set aside as Sec.Court………. Pune v.1099 The benefit of re-employment under the section is available in all cases of retrenchment and not only in case of those covered by Sec..2688 Chapter VA – Lay-Off and Retrenchment Sec.set aside……….HC) 2007 II CLR 637 : 2007 AIR “The petitioner………. Hospital Employees Union. 25H p) When retrenched workers though after a valid closure were not re-employed by the same employer when he restarted manufacturing activity even after a lapse of thirteen years (Bom. 25H which was opposed by the employer.” (Page: 640. Ram Lal & Ors. After majority of workmen accepted the dues and compensation in 1982. Para: 34) Note: Also refer to the case of Maruti Udyog Ltd. 25H is not restricted to cases falling u/s. The complaint was allowed which was challenged in the High Court..” (Page: 648. 1996 II LLJ 820 : 1997 (90) FJR 106 : 1996 (74) FLR 2063 : 1997 II LLN 31 : 1996 LIC 2248 : 1996 II CLR 1095 : 1996 SCC(L&S) 1273 : 1996 AIR (SC) 2526 : 1996 (5) SCC 419 (S. union filed a complaint in the Court alleging that the employer restarted manufacturing activity at Pune employing some previous employees and the respondent workmen too similarly be employed.” (Page: 647. 1997 II LLJ 516 (Del. Para: 32) “In view……….similarly………. had started it’s manufacturing activities at a different place (at Pune) more so during the pendency of SLP on the question of validity of closure and the legal entity which existed at the time of closure continuous to be in existence when the manufacturing activity restarted. Somayya S. Para: 28) “Another……….wages. The union filed a complaint for unfair labour practice which was dismissed by the Industrial Court holding that the closure is legal and valid.back wages.. Oriental Rubber Industries Ltd. the validity of closure was agitated by the union again in the Industrial Court.T. Para: 26) “………. S.2J) q) Even though the workman who did not serve for one year since it covers all cases of retrenchment (Del.DB) “………. 25H. .thereafter……….HC) ¥ 5A.C.C.” (Page: 648 & 649. High Court and finally by an SLP in Supreme Court between 1982 to 1995.application……….2J) which lays down that Sec. The workman sought re-employment u/s. Chari then argues that though in terms Section 25-H may not apply to the present case. Fair play and justice obviously mean fair play and social justice to both the parties. The contention that in cases of this kind. Therefore. not be fair that the vendor should pay compensation to his employees on the ground that the transfer brings about the termination of their services. 25H of the Act. the general principle underlying the provisions of the said section should be invoked in dealing with the claim made………. As soon as the transfer is effected under Section 25-FF. Union Bank of India.HC) ¥ 5A.C. Para: 20) b) When new persons were appointed as per rules but not to posts identical to that of daily wagers who were retrenched (Raj. Mukhopadhyaya.DB) . the position is entirely different. Termination of daily wagers as a consequence of regular appointment made according to the rules does not amount to such violation. 25FF in the hands of transferor and immediate re-employment is not based on considerations of fair play and justice. v. Chief Commissioner (Central) Dhanbad & Ors. the retrenched workman was held entitled to opportunity of reemployment only in cases where appointments are made identical to that held by him.C.1100 Sec.DB) ¥ 5A. When not attracted/not violated a) When compensation is paid consequent up on transfer (S. 1963 AIR (SC) 1489 : 1962 II LLJ 621 : 1963-64 (24) FJR 101 : 1963 (6) FLR 1 (S. however. Anakapalle Co–operative Agricultural & Industrial Society Ltd.1101 Fresh recruitment while terminating the services of a workman was challenged and the Tribunal favoured the bank. 25H When not attracted/not violated 2689 V. 2003 (98) FLR 1174 : 2003 III LLJ 1082 : 2004 V LLN (Sum) 55 : 2004 V LLN (Sum) 56 : 2004 I CLR 224 (Jhar. these workmen who have been paid compensation are immediately entitled to claim re-employment from the transferee. and if Mr. 25H is not applicable to cases of genuine transfer of establishment nor general principles underlying provisions of Sec.. Their Workmen & Ors. award of the arbitrator directing their re-employment was held to be illegal. v. 2003 (96) FLR 48 : 2002 IV LLN 1063 (Raj. Once we reach the conclusion that in the case of a transfer of any undertaking the Legislature has by Section 25-FF provided for payment of compensation to the employees on the clear and distinct basis that their services have been terminated by such transfer. it is difficult to see how any questions of fair play or social justice would justify the claim by the respondents that they ought to be re-employed by the appellant………. of course. in the form of compensation u/s. rather they are only entitled to get compensation as provided by legislature as a measure of social justice. S.In the present case. all employees are entitled to claim compensation. It would we think.if the transfer or is by statute required to pay retrenchment compensation to his workmen it would be anomalous to suggest that the workmen who received compensation are entitled to claim immediate re-employment in the concern at the hands of the transferee.HC) c) When workmen unable to prove that management re-employed others in their category (Jhar. and the vendee should be asked to take them back on the ground that the principles of social justice require him to do so………. Chari is right. The High Court observed that there is no violation of Sec.. this argument is misconceived.K. It is held that the claim of retrenchment compensation and re-employment simultaneously is inconsistent. This double benefit in the form of payment of compensation and immediate re-employment cannot be said to be based on any considerations of fair play or justice.CB) “Mr. unless.” (Page: 1496/1497. Arbitrator & Dy.Sec. Union Bank Employees Association v. 25H can be invoked when dealing with claim of re–employment of transferor’s workmen by the transferee’s concern because double benefit. since workmen were unable to prove that Management has reemployed persons in their category. the case of transfer falls under the proviso.CB) F 5A.In our opinion. Eastern Coalfields Ltd. the workmen must get retrenchment compensation and re-employment almost simulataneously is inconsistent with the very basis of the concept of retrenchment compensation……….1102 In a claim for reemployment under the section. K.” (Page: 119.by the union………. 2(oo) and in the instant case where a factory partially resumed production after some months of closure the employment came to an end as a result of closure i. 18 (Karn. M/s. In law. including workmen. if so desired.e.make the reference. Para: 2) “We are satisfied……….HC) d) When workmen give up their right to re-employment on revival of the undertaking by virtue of a settlement u/s..” (Page: 1177. State of Orrisa & Ors. Arbitrator & Deputy Chief Commissioner. it has to be held that the Tribunal has seriously erred in passing the award in their favour. Such a waiver even pursuant to agreement with the employer cannot be said to be void as offending any public policy or statutory provision.DB) Netaji Subhash Institute of Technology v. wherein workmen forgo their right of re-employment in case of revival of undertaking in lieu of ex-gratia payment. Para: 12) Note: also refer to the following case Eastern Coalfield Ltd. 25H does not apply on contingency of partial resumption of work therefore the claim of old workmen to be reemployed u/s.1103 Subsequent to closure.” (Page: 1177. v. Systems Manufacturing Ltd. Neither the Tribunal nor this Court could have held that the terms of the settlement touching upon this aspect were void and null.DB) “The question referred……….” (Page: 453.” (Page: 1178. 25H is applicable only when workmen are retrenched u/s. Dilkhush Bairwa & Anr. even if it be presumed that the manufacturing unit at Bangalore had been restarted.has no application……….” (Page: 119/120.” (Page: 453.Relief claimed………. Mukhopadhyaya. It lies within his volition to either exercise the right of re–employment or waive the same. Para: 35) “………. 2006 (110) FLR 719 : 2006 LLR 847 (Del. Para: 5) .quash that order………. Para: 10) “Here in this……….Disputes Act 1947………. Choudwar v. this settlement could not have been avoided by the parties to it. it is case of termination and not discharge of surplus labour and hence Sec. Waiver can be for various reasons and considerations.DB) ¥ 5A. 2001 II LLJ 112 : 2001 LIC 939 (Karn. 25H “The workmen claimed……….the workmen had entered into industrial settlement waiving their rights of seeking re–employment for a valuable consideration.We are of………. still the present workmen could not have claimed any right of re–employment in terms of Section 25–H of the Act.DB) “A bare reading of Section 25–H of the Act clearly shows that this section has been engrafted for the benefit of retrenched workmen who. This section though cast a statutory obligation on the employer to offer re–employment to a retrenched workman but it does not bind the workman to necessarily avail the right of re–employment conferred on him. Kalinga Tubes Ltd. 25H is untenable and thus reference made by State Government on the matter being without jurisdiction was quashed. a valid settlement between the management and the workmen. We are of the considered opinion that in view of the settlement between the parties to which they were statutorily bound..2690 Chapter VA – Lay-Off and Retrenchment Sec.set aside. S.” (Page: 451. Para: 11) “………. 2003 (98) FLR 1174 : 2003 III LLJ 1082 : 2004 V LLN (Sum) 55 : 2004 V LLN (Sum) 56 : 2004 I CLR 224 (Jhar. will have a right of re–employment in case the management intends to employ any other person for its purpose.1104 Sec. 1972 (42) FJR 450 : 1972 LLN 536 (Ori. Accordingly.DB) ¥ 5A. Systems Employee’s Association. since as per Section 18 of the Act it is binding on them. Para: 2) “The legal position………. Para: 36) e) When employees retrenched consequent upon closure (Ori. v.to such a contingency. is not void or against public policy and also operates as a bar for re-employment.. DB) “Therefore. Trichirapalli & Anr. Sebastian. II. 25H and 25G employee was not held to be entitled for any relief.1108 A lower division clerk was appointed on daily wage on a temporary basis for a fixed period. Jaipur & Ors.1107 Where service of workman is terminated due to non-renewal of contract of service. Indian Airlines Ltd.” (Page: 1230.S. Satyam & Ors. S. Para: 2) “We are………. his services were terminated on expiry of contractual period. 25F g) When workman terminated due to non-renewal of contract of service (Mad. Para: 12) h) If employee appointed on fixed tenure was terminated on expiry of term (Raj..HC) .” (Page: 503. Asservadham & Ors. 2001 I LLJ 1230 : 2001 (89) FLR 778 : 2001 LIC 610 : 2001 I CLR 907 : 2001 LLR 747 (Raj. 25H When not attracted/not violated 2691 Note: The Bombay High Court held a different view in the case of Oriental Rubber Industries Ltd. he cannot claim legal right of continuity in preference over other employees sponsored by employment exchange. Somayya S. 25H Indian Airlines v.. Bhandari & Ors.employee. if………. Pune v. Presiding Officer. Para: 15) Note: The following case may be referred in the above context S. The State of Rajasthan & Anr.HC) ¥ 5A.2J) which lays down that Sec.unsustainable. Labour Court.DB) ¥ 5A.” (Page: 1094. HC) Also refer to Central Bank of India v. v. moreover the name was also not sponsored by employment exchange and hence. 2003 I LLJ 1091 : 2003 (102) FJR 209 : 2003 (97) FLR 313 (Mad. Labour Court No. 25H and 25G (Raj.1106 Workman who had worked for not more than 89 days claimed retrenchment compensation since they were not in continuous service of 240 days.DB) ¥ 5A. Ram Gopal Saini v. v. Selvaraj v. Para: 8) “In our opinion………. he is not entitled to seek re-employment u/s. 1996 I LLN 222 : 1995 LIC 2316 (Raj.” (Page: 506. 256. 2007 II CLR 637 : 2007 AIR (Bom.2J)held a different view f) When workmen who had not completed 240 days of service failed to prove violation of Sec. Para: 8) ¥ 5A.1105 As employee had worked for less than 240 days and failed to prove violation of Sec..HC) but Apex Court in the case of Maruti Udyog Ltd. as per Sec. 25B were held not entitled retrenchment compensation and benefit of Sec. Ram Lal & Ors.of their service.. 25H.DB) “Thus it is………. 2005 I LLJ 853 : 2005 (104) FLR 820 : 2005 I LLN 1033 : 2005 LIC 864 : 2005 I CLR 964 : 2005 SCC (L&S) 308 : 2005 AIR (SC) 851 : 2005 (2) SCC 638 (S.C..C. 1996 II LLJ 820 : 1997 (90) FJR 106 : 1996 (74) FLR 2063 : 1997 II LLN 31 : 1996 LIC 2248 : 1996 II CLR 1095 : 1996 SCC (L&S) 1273 : 1996 AIR (SC) 2526 : 1996 (5) SCC 419 (S. it was held that termination was not retrenchment.HC) 95 (Bom. hence the question of re-employment does not arise.2006 LIC 4183 (Mad. In this case.DB) “In this……….Sec.the purpose……….. 1994 III LLJ 498 : 1991 (62) FLR 755 : 1991 I LLN 247 : 1991 I CLR 43 : 1991 LLR 488 (Ker.. 25H is not restricted to cases falling u/s.” (Page: 1231.. Chagan Lal Sethi v. C.DB) ¥ 5A. Procedure for re-employment a) Offer of re-employment to be clear and unambiguous (Bom. 2005 I LLJ 853 : 2005 (104) FLR 820 : 2005 I LLN 1033 : 2005 LIC 864 : 2005 I CLR 964 : 2005 SCC (L&S) 308 : 2005 AIR (SC) 851 : 2005 (2) SCC 638 (S. 25H.HC) . Para: 17) j) Re-employment cannot be claimed against successor-in-interest when workman ceased to be in employment prior to the date of acquisition (S. Haryana Breweries Ltd.” (Page: 41. 1983 I LLJ 30 : 1982 (61) FJR 207 : 1983 I LLN 205 (Karn. Hence offer cannot be said to be clear and unambiguous offer within the meaning of Sec..2692 Chapter VA – Lay-Off and Retrenchment Sec. Factory was re-opened after 8 months.1109 vacancies.1112 Undertaking was closed in 1993 and re-opened in 1995. 2003 II LLJ 966 : 2003 (98) FLR 872 : 2003 II LLN 961 (Del. 25H. High Court held that in order that it should be an offer within the meaning of Sec. There cannot be any violation of any rule if the public notice is given to the ex-employees in newspaper.2J) Note: Please see related ratio/s under the above citation in this section k) When consequent upon closure employer-employee relationship is severed (Del.HC) l) When intimation to ex-employees is given in newspapers when it is not practical to intimate each worker through registered post (P&H.. 1998 III LLJ (Sum) 143 : 1996 I CLR 724 : 1996 LLR 61 (Raj.C. Karnataka State Road Transport Corporation & Ors.. Industrial Court dismissed the complaint considering pendency of dispute regarding legality of closure. Hindi and English. 1999 (82) FLR 533 : 1999 II LLN 145 : 1999 I CLR 880 (Bom. & Anr.HC) . In Hindi version. The Hindi version does not refer to re-employment on the same terms and conditions prevailing at the time of closure which is at variance with English version. 25H Note: also refer to the following case Rajveer Singh v. Sec. 25H is not attracted.. Workmen retrenched on ground of unsuitability need not be preferred for future Hutchiah v.suitability.1111 On reopening of an industrial establishment after one and half year of it’s closure. Labour Court & Anr. v. Pac Workers Union (Regd. v. Secretary (Labour) & Ors.. relationship of master and servant was agreed to be terminated. ¥ 5A.1110 On closure of factory workman were paid closure compensation and the management entered into settlement with workman whereby they accepted benefits including compensation. there was no reference to the offer that employment would be given on the same terms and conditions as existed at the time of closure and workers were asked to sign them but refused to give copy of the same. 2007 (112) FLR 256 : 2007 LLR 257 (P&H. Held that by settlement.DB) VI.) v..DB) “That being………. Ram Lal & Ors. Industrial Court (Maharashtra) Nagpur Bench.2J) Maruti Udyog Ltd. Nagpur & Ors. it must be clear and unambiguous offer.DB) ¥ 5A.HC) ¥ 5A. There was dispute with regard to wages offered on reemployment. Ombir Singh & Ors.HC) i) When workman is terminated for unsuitability for employment (Karn. Therefore they will not be entitled to re-employment. Notice of re-employment given in two versions. it would have not be practically possible to intimate each and every ex-worker through Registered Post. Vasanta Kundlik Kumbhare & Ors. Hence. v. 2J) F 5A. 25F before transfer of management but not u/s... Etc. Sudarsan Barik & Ors. 2006 LIC 2928 : 2007 I LLJ 111 (Ori. 2001 I LLJ 1400 : 2001 (98) FJR 652 : 2001 (89) FLR 552 : 2001 II CLR 1 : 2001 II LLN 819 : 2001 LIC 1397 : 2001 SCC (L&S) 641 : 2001 AIR (SC) 1994 : 2001 SCC (4) 55 (S.. in fairness to the respondents whose services were terminated on the principal of “last come first go.2J) Workmen (represented by Akhil Bhartiya Koyla Kamgar Union) v.. The High Court upheld the decision of Labour Court.11. 1961 II LLJ 110 : 1961 (3) FLR 237 : 1967 AIR (SC) 667 (S. Employers in relation to Management of Industry colliery of Bharat Coking Coal.HC) c) Workmen on labour register to be preferred to outsiders for engaging them as casual labour (Ori. For Text and Ratio please see related ratio/s under the above citation in this section f) Re-employment cannot be granted by Labour Court where the reference is about determination of violation of the section (S. A reference was made to Industrial Tribunal.1114 Where employer issued advertisement for outsiders for engaging them as casual labour and did not consider the casual workers named in the live casual labour Register.C. In the absence of any instructions. learned counsel for the appellant is not in a position to state before us if this is so and the circumstances in which such appointments have been made.94. 1992 (81) FJR 107 : 1992 (65) FLR 584 (Pat. Para: 4) Note: please refer to the following case Krishna Murari Prasad & Anr. Guha & Anr.1113 Applying the principle of ‘last come first go’ it was held that the casual employees who were terminated should be considered for appointment in preference to others.” (Page: 629. He alleged that in his place his junior was appointed.8.94 to 17.3J) Note: this judgement was given prior to introduction of Chap. v. 25H Procedure for re-employmentd 2693 b) Casual employees who were terminated to be given preference (S. Municipal Corporation. High Court held that the workman on the register be preferred over others and directed employer to consider their absorption.Sec.. He raised an industrial dispute u/s. The Tribunal gave on award reinstating him with 50% back wages on the ground that the employer failed to keep proper seniority register of workman. Ltd. Kanpur v.C.2J) Note: Please see related ratio/s under the above citation u/s.1115 The service of the employee was terminated after working from 6. S. v.C. 25FF (S.3J) Cawnpore Tannery Ltd. Allahabad Bank & Ors. & Ors. v. Union of India & Ors.2J) “It is further urged by the respondents that recently the appellant Corporation has appointed some employees on daily wages.C.DB) ¥ 5A.C. 1998 II LLJ 627 : 1998 (80) FLR 847 : 1998 SCC (L&S) 1178 : 1998 (9) SCC 258 (S.C. The Supreme Court set aside the award and held that it had exceeded it’s jurisdiction in which it passed an award going beyond the .” they should be considered for appointment on daily wages in preference to others by waiving the age bar (if necessary) if they are otherwise qualified and eligible for the post. 25H of the Act.DB) d) Right of re-employment accrues to workmen when terminated u/s. Veer Singh Rajput & Ors. 25FF e) Re-employment to be as per the category of work performed by the employee but not as per the designation born by him (S. & Anr.C. But if casual workers or daily rated workers are now being appointed by the appellant Corporation..2J) F 5A. V-A in the Act. The learned Single Judge proceeded on the premise that the High Court. clearly fell in error in refusing to exercise its jurisdiction. v. In any event.1117 Sec. if the Labour Court exceeds its jurisdiction.” (Page: 1049. 25H does not prescribe any order in which the workmen are to be re-employed and employer not bound to offer re-employment on the basis of length of the service or seniority of retrenched workmen (IC) ¥ 5A. related to the dispute as regards violation of Section 25H of the Act.C. Para: 14) g) Workman need not fulfill age criterion on re-employment if he was within the prescribed age limit at initial recruitment (AP. 25G states that employer shall ordinarily retrench the workman who was the last person to be employed in that category. 25H does not prescrine any order in which the employer is required to offer employment.2J) “………. which appears on the face of the record. The Chairman. Also employer is not bound to offer re-employment according to seniority of retrenched workmen as employer is under obligation to employ those retrenched workmen who offer them for employment above other persons. referred for determination by the Labour Court. State Bank of Bikaner & Jaipur v.” (Page: 1049. If the said provisions had not been found to be violated. 2006 II LLJ 1046 : 2006 (109) FLR 1203 : 2006 III LLN 766 : 2006 LLR 747 : 2006 (5) SCC 123 : 2006 SCC (L&S) 930 (S. Sec. Nurmohmed Ismail v. the Labour Court did not arrive at a finding that the termination of services of the appellant was illegal. Ltd. but then. The provisions of Article 226 and 227 of the Constitution of India would be attracted if the inferior Tribunal has. Consequently. The award is set aside to the extent of order of reinstatement with back wages………. cannot sit in appeal over the Award of the Labour Court. The Award and the judgment of the High Court. Ashok Ors. B. It could not have passed an order going beyond the terms of the reference. Om Prakash Sharma. He had not completed 240 days of service. 1996 LIC 2808 (AP.HC) ¥ 5A. The termination of the workman was not in issue. 1947 was not required to be complied with. committed a jurisdictional error. Para: 11) “The specific issue which was.2694 Chapter VA – Lay-Off and Retrenchment Sec.HC) h) Sec. Calico Mills Company. in regard to the orders passed by an inferior Tribunal is no longer a res integra. inter alia. the Award of the Labour Court suffers from an illegality. The learned Single Judge was right. 1957 II LLJ 89 (IC) . Calla. cannot be sustained. only because the employer did not maintain and preserve register it would not mean that the employee would be entitled to be reinstated without establishing the violation of Sec. therefore. 25 of Industrial Dispute Act 1947 was not required to be complied with. While passing the Award. the Award must be held to be suffering from a jurisdictional error. The High Court. In that view of the matter. the question of setting aside the order of termination by the Labour Court did not and could not arise. the same by itself would not mean that the respondent herein would be entitled to be reinstated in service with back wages without establishing that the provision of Section 25H was violated.Rule 77 may be mandatory in character as was urged by Mr. 25H. The issue here is not termination but determination of the violation of Sec. The jurisdiction of the Labour Court emanated from the order of the reference. it would not mean that even a jurisdictional error could not have been corrected. the provisions of Section 25F of the Industrial Disputes Act.” (Page: 1049. only because the jurisdiction of the High Court. Food Corporation of India & Ors. Para: 12) “In the instant case. while exercising of its power of judicial review was limited. 25H was not violated the provisions of Sec. therefore. only because the appellant herein did not maintain the prescribed register. in exercise of its writ jurisdiction.. 25H terms of reference. What would be the ground for judicial review. therefore. but. 25H of the Act and in any event Labour Court did not arrive at a finding that the termination of services of the appellant was illegally and when Sec. the appeal is allowed and the judgment of the High Court is set aside.1116 The question of applying for age qualification at the time of re-absorption into service does not arise if an employee is well within the prescribed age limit at the time of initial recruitment. but does not confer any right upon a worker to get re-employed according to the length of their service on the date of retrenchment. It was capable of being corrected by the High Court in exercise of its power of judicial review. 2J) F 5A. Chief Commissioner (Central) Dhanbad & Ors. However. Eastern Coalfields Ltd. Indian Hume Pipe Co.” (Page: 339. He may have been given benefit of certain increments with higher start of salary but that circumstances would not confer any right upon him to make any claim for any advantage for period of service rendered in the erstwhile employment from which he was retrenched. 2001 II LLJ 231 : 2002 (94) FLR 455 (S. Para: 4) “………. Para: 6) “In the circumstances.DB) ¥ 5A. v. Para: 7) b) Retrenched workers are entitled to emoluments prevailing at the time of retrenchment (AP.DB) ¥ 5A.to retrenched workmen………. Para: 14) . Presiding Officer. Industrial Tribunal-cum-Labour Court & Anr.2J) “Thereafter. Admissibility of Benefits on re-employment a) Higher salary of past employment is not admissible when re-employment is on fresh conditions (S. 2 started a fresh career under the appellant on being appointed with effect from December 18..” (Page: 339. v.C. a fresh agreement appears to have been entered into between appellant management of the workmen to recruit ex-employees of the erstwhile Dalmia Dadri Cement Ltd. Andhra Pradesh. 1963-64 (24) FJR 333 : 1963 I LLJ 770 (AP. Arbitrator & Dy.Labour Court held………were getting before………. Para: 2) “We are afraid……….Sec. Para: 1) c) Back wages not admissible on re-employment (Jhar.” (Page: 232. factory on certain terms and conditions in the light of Section 25-H of the Industrial Disputes Act. it was held when retrenched workers are reemployed they are entitled to same emoluments as at the time of re-employment because considering the dictionary meaning of ‘re-employment’ and also considering that the object of Act requires liberal construction as obligation of employer to employ workmen on same emoluments is implicit in concept of re-employment and therefore in instant case award of Labour Court as upheld by Single Judge that management was not justified in offering wages at lower scale (scale of unskilled workers) than what they were getting at time of retrenchment (Skilled and Semi Skilled scale) was upheld. Ltd. it is clear that the respondent No..” (Page: 232.1118 Where the employee was appointed by way of fresh appointment letter.1119 Even though Sec. 25H Admissibility of Benefits on re-employment 2695 VII.. S. 25H does not specifically provide for payment of same wages that prevailed prior to retrenchment.structure at his will………. v.The vital question……….” (Page: 336. 2 has retired form service now.it follows that………. Para: 3) “……….1120 Workmen reemployed under the section cannot claim back wages. whatever payments may have been made to him need not be recovered………. & Ors. 1981. Cement Corporation of India Ltd.the Labour Court. Therefore the Labour Court could not order payment of three additional increments. Labour Court. since responded No. 2003 (98) FLR 1174 : 2003 III LLJ 1082 : 2004 V LLN (Sum) 55 : 2004 V LLN (Sum) 56 : 2004 I CLR 224 (Jhar. Mukhopadhyaya.equated with ‘re–instatement.” (Page: 1178.” (Page: 340.DB) “A retrenched employee………. In that view of the matter the order made by the Labour Court shall stand quashed to that extent only. he cannot claim any benefit of increment or higher salary as a matter of right for service rendered in the erstwhile employment.DB) “……….K.C. Guha. because Mr. Para: 2) Note: this judgement was given prior to introduction of Chap. Indian Hume Pipe Co. Guha had been retrenched as long ago as May 1951. 25H he can raise an industrial dispute regarding his reemployment and also regarding rates of wages on which he should be re-employed and hence finding of the Labour Court that reference was in order was upheld. That is the view taken by the Labour Appellate Tribunal and we are not satisfied that the said conclusion is erroneous in law so as to justify our interference. Guha was retrenched.” (Page: 341.” (Page: 340.3J) F 5A. 1963-64 (24) FJR 333 : 1963 I LLJ 770 (AP.DB) .even if the………...1123 ‘Industrial Dispute’ u/s. Labour Court.” (Page: 1178. it would have been open to the Union of which Mr. Guha as well as the propriety of the appellant’s conduct in not giving him an opportunity to be re-employed when an occasion for the employment when an occasion for the employment of an additional clerk arose. v. Kanpur v.the definition of the term “industrial dispute” is wide enough to justify the Union of which Mr.3J) “Mr.DB) ¥ 5A. Para: 15) “………. & Ors. & Ors. Andhra Pradesh. Para: 3) “……….1122 Definition of ‘Industrial Dispute’ is wide enough to justify the union of which a retrenched workman is a member to raise a dispute regarding propriety of retrenchment as well as propriety of management’s conduct by not reemploying him when the occasion arose. Guha & Anr.” (Page: 1178.has no merit. 2(k) includes disputes connected with the employment or condition of labour of any person and where a retrenched worker is denied re-employment u/s. Labour Court.” (Page: 341. Ltd. S.C. 1961 II LLJ 110 : 1961 (3) FLR 237 : 1967 AIR (SC) 667 (S. Ltd. Para: 16) d) Back wages not admissible when workers refrained from joining work of their own accord due to lower wages (AP.The Labour Court did……….. Andhra Pradesh. there is no substance in this contention.. v. Indian Hume Pipe Co. workmen refrained from taking up work on their own accord because they were offered lower wages than those at the time of retrenchment the grant of back wages by Labour Court was quashed because workmen could have resumed work and then raised an ‘industrial dispute’ regarding wages. Para: 1) “It is not stated………. Sen for the appellant has urged before us three points. Remedy for violation of the section a) Workman aggrieved can raise an industrial dispute (S.we are of……….remarks made by us……….not joining service……….not resuming their work……….respect to the wage structure……….1121 In case of re-employment whether workmen are entitled to back wages (for the period of non-employment) depends on whether employer was in any way responsible for workmen not joining service and in the instant case. V-A in the Act ¥ 5A.without deciding that question………. Even after Mr.2696 Chapter VA – Lay-Off and Retrenchment Sec.C. and had ceased to be the workman of the appellant. Para: 2) VIII.” (Page: 112.DB) “The question whether………. 25H “………. Cawnpore Tannery Ltd. 1963-64 (24) FJR 333 : 1963 I LLJ 770 (AP. In our opinion. Guha was a member to raise a dispute about his non-employment……….the same category. He contends that there was and could be no industrial dispute between the appellant and the respondents in regard to the retrenchment of Mr. 1125 Rejection of reference on ground of no dispute exists was set aside in view of clear finding by conciliation officer that service of workmen were terminated in violation of Sec.Bihar. Union of India & Ors.Sec.HC) c) Reference cannot be rejected when there is clear finding of conciliation officer that section was violated (Pat.” (Page: 336.section 10(1) of the Act……….(annexure–5).” (Page: 297.read with section 2(k) of the Act………. 77 and 78 of Industrial Dispute Rules 1957. Para: 8) “We find it difficult……….appointing proceedings.” (Page: 293. 76A.under section Industrial Dispute of the Act.” (Page: 203.. Ltd.DB) “The grievance………. Para: 1) “……….DB) ¥ 5A.1124 In view of failure report by Conciliation Officer mentioning violation of Sec.earlier days.Flag) & Anr.DB) “………. Para: 17) “After………. High Court directed Government to refer the dispute for adjudication. v. Para: 2) Note: also refer to the following case/s Delta Wires Pvt. 25H by the Bank while terminating services of temporary workmen and also violating Rules 77 and 78 and resorting to unfair labour practice of dispensing with the services of workmen appointed for short time and making fresh appointments on same job. Union of India & Ors.recruited by them. Para: 5) “In our judgement.” (Page: 203. v. 1995 II LLJ 287 : 1996 (72) FLR 26 : 1995 (87) FJR 410 : 1995 II LLN 962 : 1995 LIC 103 (Bom. the………. Para: 20) .the Labour Court……….” (Page: 337.” (Page: 337. Para: 3) “In order to………. Giridhar Gopal Tiwary & Ors..of conciliation “After having………. Para: 6) b) High Court can direct reference of the dispute if conciliation report fails to mention violation of the section (Pat. Para: 3) fresh hands………. Para: 16) “After considering……….” (Page: 297.The terms of employment and………. 25H Remedy for violation of the section 2697 “……….In the present………. 25H since employer did not comply with Rule 76.” (Page: 198.today.gathered from section 25-H……….DB) ¥ 5A.” (Page: 339.” (Page: 206. Gridhar Gopal Tiwary & Ors.was in order……….what is contended………. General Labour Union (Reg.as “the Act”.The main question………. 1992 (81) FJR 197 : 1992 (65) FLR 519 : 1992 I LLN 654 :1992 LIC 1616 : 1992 I CLR 992 : 1992 LLR 767 (Pat.” (Page: 298. Para: 4) “………. v. Para: 2) “According to rules………. 1993 III LLJ 293 (Pat.” (Page: 336.Industrial Tribunal……….After the……….. Para: 8) “………. 2698 Chapter VA – Lay-Off and Retrenchment Sec. 25H d) Writ will not lie when employees did not respond to employer’s advertisement and delayed in applying for writ (Pat.DB) ¥ 5A.1126 As the employees did not file applications pursuant to the advertisement regarding recruitment and also as there was a delay in filing writ application by which time selection process was completed; no writ of mandamus, as sought by temporary employees with 240 days continuous service, could be issued for seeking preferential appointment as per Sec. 25H. Achyutanand Singh & Ors. v. Union of India & Ors., 1996 III LLJ 1208 : 1996 (88) FJR 63 : 1996 (73) FLR 1415 : 1996 I LLN 213 (Pat.DB) “The petitioners in……….of 12 months……….” (Page: 1208, Para: 1) “There cannot……….of mandamus.” (Page: 1210, Para: 18) “The petitioners……….Act.” (Page: 1210, Para: 19) e) Workmen entitled to reinstatement since termination of workmen’s services become illegal if Sec. 25F and 25H violated (AP.DB) ¥ 5A.1127 Non-fulfillment of provisions of Sec. 25F and 25H would render termination of services of workmen services illegal and hence Court held that the workmen would be entitled to reinstatement. M. Nagabhushanam & Ors. v. Twin Cities Steel Re-rolling Mills Pvt. Ltd. & Ors., 2003 II LLJ 692 : 2003 (97) FLR 963 : 2003 LLR 687 (AP.DB) “The learned single……….was not bona–fide.” (Page: 695, Para: 23) “……….We are of……….the industrial establishment.” (Page: 697, Para: 34) f) Does not entitle workman appointed under a scheme to reinstatement when scheme itself came to an end (S.C.2J) State of Rajasthan v. Sarjeet Singh & Anr., 2007 I LLJ 236 : 2006 (111) FLR 908 : 2007 I LLN 122 : 2007 I CLR 126 : 2007 LLR 7 : 2006 SCC (L&S) 2032 : 2006 (8) SCC 508 (S.C.2J) Note: Please see related ratio/s under the above citation in Sec. 25G IX. Issues pertaining to jurisdiction and proceedings under the Section a) Proceedings regarding validity of retrenchment would not operate as res judicata in the complaint of unfair labour practice (Bom.DB) ¥ 5A.1128 Question as to whether retrenchment was valid or not and whether retrenched workman had to be offered employment, was rejected by the Court in earlier proceeding it was held this would not operate as resjudicata in the complaint of unfair labour practice against employer in not reemploying retrenched workman on restarting manufacturing activities and hence dismissal of complaint by industrial Court on ground of res judicata was held incorrect. Maharashtra General Kamgar Union, Ghatkopar (East), Bombay v. Universal Dyeing & Printing Works & Anr., 1997 II LLJ 1097 : 1996 III LLN 453 : 1996 LIC 1705 : 1996 LLR 833 (Bom.DB) “Once the……….in correct.” (Page: 1100, Para: 5) Sec. 25J Scope and ambit of the section 2699 b) Civil Court has no jurisdiction to give relief to illegally removed workman, which is available under Chapter VA (Bom.DB) ¥ 5A.1129 The relief claimed in a civil suit by the workman who had been illegally removed on closure of the factory and had not been re-employed on it’s restarting, were available to him u/s. 25FFF and 25H of the Industrial Disputes Act. The reliefs which fall within the scope of Chapter VA but not involving an industrial dispute impliedly bar the jurisdiction of the Civil Court.Hence the order of the appellate Court quashing the trial Courts decree which dismissed the suit for want of jurisdiction, is set aside. Pigment Lakes & Chemical Manufacturing Co. Pvt. Ltd. v. Sitaram Kashiram Konde, 1969 (19) FLR 71 (Bom.DB) “In our opinion……….Relief Act.” (Page: 73, Para: 3) “In view of……….present suit.” (Page: 74, T.L.: 8) “Thus the Act……….impliedly barred.” (Page: 75, T.L.: 11) “It is therefore……….of the Act.” (Page: 75, B.L.: 9) “Whether a suit……….impliedly barred.” (Page: 76, Para: 2) “The Industrial……….to support.” (Page: 77, T.L.: 20) M. Recovery of Moneys due from employers under this Chapter Sec. 25-I N. Effect of laws inconsistent with this chapter – Sec. 25J I. Scope and ambit of the section a) Provisions of the chapter prevail over rules made under Article 309 (MP.DB) ¥ 5A.1130 Since Sec. 25J provides that provisions of chapter will prevail over any law, inconsistent therewith though service rules are made u/Art. 309 of the Constitution, provisions of the chapter will prevail over it. Union of India v. P.O. Central Industrial Tribunal, Jabalpur & Ors., 1996 (74) FLR 2222 (MP.DB) “……….it was contended……….employees.” (Page: 2223, Para: 3) b) Central Act overrides Sec. 2(s) of U.P. Industrial Disputes Act (S.C.2J) F 5A.1131 Placing reliance on Sec. 2(s) of U.P. Industrial Disputes Act instead of Sec. 2(oo) which clearly includes termination due to ill-health was held improper since by virtue of Sec. 25J of the Central Act providing for the overriding effect of Central Act on the State Act. Hindalco Industries Ltd. v. Labour Court, Varanasi & Anr., 2002 SCC (L&S) 187 : 2002 IV LLJ 837 : 2001 (9) SCC 178 (S.C.2J) “Learned counsel of the respondent workman submitted at the outset that the workman has crossed the age of superannuation long back and therefore, no interference under Article 136 of the Constitution is called for with the High Court’s order granting relief to this workman. Learned counsel for the respondent in all fairness did not dispute the fact that the provision of Section 25-J in the Industrial Dispute Act, 1947 was overlooked by the High Court which makes it clear that the definition of 2700 Chapter VA – Lay-Off and Retrenchment Sec. 25J “retrenchment” contained in the Central Act, i.e., Section 2(oo) of the Industrial Dispute Act, 1947 is to be the basis for deciding the controversy in the present case. The definition of “retrenchment” contained in Section 2(oo) clearly says that retrenchment does not include “termination of the service of a workman on the ground of continued ill health”. It cannot be disputed that the unfitness of the respondent on medical ground to function as a driver of a motor vehicle on account of failing eyesight could not therefore, be treated as retrenchment to permit grant of the relief which the High Court has given to him. It is necessary to say so for the purpose of correcting the conclusion reached by the High Court on this question of law.” (Page: 187, Para: 2) “……….The High Court accepted the above finding of fact about the medical unfitness of the respondent to function as driver of a motor vehicle, but placing reliance on the definition of “retrenchment” contained in Section 2(s) of the U.P. Industrial Disputes Act, 1947 instead of the definition contained in Section 2(oo) of the Industrial Dispute Act, 1947, it has held that such a termination amounts to retrenchment. Accordingly, the High Court has granted the relief of reinstatement with full back wages to the respondent. This appeal by special leave is against that judgment “(Page: 187, Para: 1) “Having said as above, we are inclined to accept the submission of learned counsel for the respondent that the relief granted by way of payment already received by the respondent may not be set aside since he has already crossed the age of superannuation on account of which the question of his continuance in service does not arise……….” (Page: 188, Para: 3) c) Government instructions contrary to the provisions of Chapter V-A cannot sustain (P&H.DB) ¥ 5A.1132 The Government instructions being inconsistent with the substantive provisions of law i.e. Sec. 25F of the Act such instructions will not have the force of law and therefore cannot override Sec. 25F. In fact u/s. 25J of the Act, the provisions of Chapter V-A shall have effect not withstanding anything inconsistent therewith contained in any other law. Therefore when the workman has completed 240 days in 12 calendar months preceding the date of termination, his services cannot be terminated without complying with the provisions of Sec. 25F of the Act. Senior Medical Officer, Incharge, Primary Health Centre, Dudhan Sadan, Patiala v. Sukhwinder Singh & Anr., 2007 (112) FLR 1135 : 2007 LLR 484 (P&H.DB) d) Sec. 25J does not grant compensation in addition to gratuity in the nature of retrenchment compensation payable under a scheme (S.C.3J) F 5A.1133 Construing proviso to Sec. 25J(1) it was held that provisions of the section was only intended to ensure that compensation under any award is not reduced to the level provided u/s. 25F, and it was not the intention of the legislature that workmen on retrenchment should get compensation twice, once under the Act and again also under the scheme in force providing for compensation in the name of gratuity for retrenchment and Appellate Tribunal’s award granting compensation twice was set aside and Tribunal’s order restored. M/s. The Brahmachari Research Institute, Calcutta v. Their workmen, 1959 II LLJ 840 : 1959-60 (17) FJR 282 : 1960 AIR (SC) 257 (S.C.3J) “……….a proviso to sub-s. (1), which says that nothing contained in the Act shall have effect to derogate from any right which a workman has under any award for the time being in operation or any contract with the employer. This clearly means that if by any award or contract a workman is entitled to something more as retrenchment compensation than is provided by S. 25F, the workman will be entitled to get that and the provisions of S. 25F will not derogate from that right of the workman, i.e., will not reduce the compensation provided under the award or contract to the level provided under S. 25F. It is obvious that it was not the intention of the legislature that a workman on retrenchment should get compensation twice, i.e., once under the Act and once under the scheme in force providing for retrenchment compensation, by whatever name the payment might have been called. We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under S. 25F of the Act. The Appellate Tribunal seems to have been carried away by the word “gratuity” used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment. We are of opinion that this is not correct. Whether it is called Sec. 25J Applicability 2701 “gratuity” or “compensation”, it is in substance a payment to the workman on account of retrenchment; and if a scheme like the present specifically provides payment for retrenchment as defined in S. 2(oo), we see no justification for compelling that payment twice over, once under S. 25F and again under the scheme in force in the concern……….it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under S. 25F of the Act, and the workmen are only entitled to one or the other, whichever is more advantageous to them in view of S. 25J……….We therefore allow the appeal, set aside, the decision of the Appellate Tribunal and restore that of the Industrial Tribunal in this matter……….” (Page: 843/844, Para: 1) e) Non-obstante clause is not applicable to the whole of Chapter VB (S.C.2J) F 5A.1134 Non-obstante clause in Sec. 25J does not apply to entire Chapter VB and though Chapter VA’s applicability in relation to establishments covered by Chap.V–B is permissible, it cannot make Sec. 25-O of Central Act prevail over State Act. Engineering Kamgar Union v. Electro Steels Castings Ltd., 2004 II LLJ 815 : 2004 (101) FLR 1086 : 2004 LIC 2356 : 2004 SCC (L&S) 782 : 2004 AIR (SC) 2401 : 2004 (6) SCC 36 (S.C.2J) “……….Section 25–J is not a part of Chapter V–B. By reason of Section 25–S, the provisions of Chapter V–A were made applicable only in relation to certain establishments referred to in Chapter V–B. The Parliament has deliberately used the words “so far as may be” which would also indicate that provisions of Chapter V–B were to apply to the industrial establishments mentioned in Chapter V–A. The non obstante clause contained in Section 25–J does not apply to the entire Chapter V–B. Applicability of Chapter V–A in relation to the industrial establishments covered by Chapter V–B in terms of Section 25–J vis–a–vis Section 25–S is permissible but the contention cannot be taken any further so as to make Section 25–O of the Central Act prevail over the State Act by taking recourse to the non obstante clause. Non obstante clause contained in Section 25–J is, thus, required to be kept confined to Chapter V–A only and in that view of the matter we have no hesitation in holding that Chapter V–B does not have an overriding effect over the State Act.” (Page: 826, Para: 39) II. Applicability a) Chapter VA applies to cases of retrenchment under A.P. Shops and Establishment Act (S.C.2J) F 5A.1135 By virtue of Sec. 25J(2) of Industrial Disputes Act 1947 u/s. 41(1) and (3) of Andhra Pradesh Shop and Establishment Act 1966, Chapter V-A of Central Act will be applicable to decide rights and liabilities arising out of retrenchment. The Krishna Dist. Co-operative Marketing Society Ltd., Vijayawada, Petitioner v. N.V. Purnachandra Rao & Anr., 1987 II LLJ 365 : 1987 (71) FJR 482 : 1987 (55) FLR 498 : 1987 II LLN 671 : 1987 LIC 1651 : 1987 AIR (SC) 1960 : 1987 (4) SCC 99 (S.C.2J) “We respectfully agree with the rule of construction expounded in the above passage. By enacting Section 25J (2) Parliament, perhaps, intended that the rights and liabilities arising out of lay-off and retrenchment should be uniform throughout India where the Central Act was in force and did not wish that the States should have their own laws inconsistent with the Central law. If really the State Legislature intended that it should have a law of its own regarding the rights and liabilities arising out of retrenchment it would have expressly provided for it and submitted the Bill for the assent of the President. The State Legislature has not done so in this case. Section 40 of the State Act deals with terminations of service generally. In the above situation we cannot agree with the contention based on Article 254 (2) of the Constitution since it is not made out that there is any implied repugnancy between the Central law and the State law.” (Page: 372, Para: 9) “……….It is thus seen that Section 41 (1) and Section 41(3) of the State Act prescribed alternative authorities to settle a dispute arising out of a retrenchment. Those authorities may exercise their jurisdiction under the State Act but they have to decide such dispute in accordance with the provisions of Chapter V-A………. Sub-section (2) of Section 25J of the Central Act which makes the procedure for securing relief under Section 41(1) and (3) of the State Act available to a workman emphasises that the rights and liabilities arising out of retrenchment shall be decided in accordance with Chapter V-A of the 2702 Chapter VA – Lay-Off and Retrenchment Sec. 25J Central Act. The said rights can be enforced by a workman personally by himself filing an appeal under Section 41 (1) of the State Act. It is not necessary that a reference should be sought under the Central Act by collective action of workers. The effect of Section 25J(2) of the Central Act……….” (Page: 371, Para: 6) b) Section renders Chapter VA applicable to retrenchment and lay-off benefits to temporary employees (S.C.3J) F 5A.1136 Since workmen of Beas project were employed on temporary basis they were not entitled to any relief under Payment of Gratuity Act, Employees State Insurance Scheme or any retrenchment benefits but Supreme Court held that these work charged employees have right as industrial employees and provisions of chapter VA “ Lay-off and retrenchment “ shall have applicability in their case. Jaswant Singh & Ors. v. Union of India & Ors., 1979 II LLJ 371 : 1980 I LLN 44 : 1979 LIC 1362 : 1980 SCC (L&S) 36 : 1980 AIR (SC) 115 : 1979 (4) SCC 440 (S.C.3J) “The entire strength of Labour employed for the purposes of the Beas Project was work-charged. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. They do not get any relief under the payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurance Scheme.” (Page: 382, Para: 43) “But though the work-charged employees are denied these benefits, they are industrial workers and are entitled to the benefits of the provisions contained in the Industrial Disputes Act……….” (Page: 382, Para: 44) “………. In fact the work-charged employees possess a unique right as industrial employees since, by reasons of S.25 J (1) of the Industrial Disputes Act, the provisions of Chapter VA, “Lay-off and retrenchment “, have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act, 1946.” (Page: 382, Para: 45) c) Section extends the benefits of retrenchment and lay-off to establishments covered by Bombay Industrial Relations Act (Bom.HC) ¥ 5A.1137 The workman was terminated in violation of Sec. 25F. Labour Court refused to grant any relief on the ground that establishment was covered by BIR Act, thus workman could not invoke provisions of Industrial Disputes Act. High Court set aside the order of Industrial Court and upheld the order of Labour Court since as per Sec. 25J provisions of Industrial Disputes Act would apply in cases of lay-off and retrenchment notwithstanding anything inconsistent contained in any other law and held that Sec. 25F was applicable in the instant case. Pramod Prabhakar Kulkarni v. Balasaheb Desai Sahakari Sakhar Karkhana Ltd & Anr., 2006 I LLJ 616 : 2005 III CLR 482 (Bom.HC) d) Does not apply if termination is due to retirement as per Standing Orders (S.C.2J) F 5A.1138 While employing canteen employees, letter of appointment and Standing Orders inter-alia provided that service could be terminated by payment of one month wages to the employee and all employees in statutory canteen are temporary employees, subsequently Clause 3A was introduced in standing orders fixing age of retirement at 60 years and maximum permissible service at 15 years, the services of concerned workmen were relinquished on completion of 15 years and it was held that termination is valid and not in violation of Sec. 25J since chapter VA does not provide for the period of service of employees, hence Sec. 25J has no application. Harmohinder Singh v. Kharga Canteen, 2001 (99) FJR 416 : 2001 (90) FLR 548 : 2001 III LLN 715 : 2001 LIC 2391 : 2001 II CLR 927 : 2001 LLR 849 : 2001 SCC (5) 540 : 2001 AIR (SC) 2681 (S.C.2J) Sec. 25J Expressions and meanings 2703 “……….The appellant was appointed as a salesman by the respondent canteen on 1st June, 1974 and subsequently as a cashier on 9th August, 1975. The letter of appointment and the Standing Orders, inter alia, provided that the service of the appellant could be terminated by one month’s notice by either party. The Standing Orders also provided that the “services of all canteen employees will be on temporary basis extendable on six monthly basis”.” (Page: 418, Para: 1) “In 1988 Para 3-A was introduced in the Standing Orders of the respondent. It provided “a) Maximum age limit for an employee is 60 years. b) Maximum permissible service for an employee is 15 years. c) The service of an employee will be automatically relinquished based on completion of age limit or maximum permissible service whichever occurs first. d) One month pay and allowance will be given to the individual once his services are relinquished.” As the appellant had joined service in June, 1974 notice was issued to him on 15th May, 1989 to the effect that his service would be “relinquished” (sic) with effect from 30th June, 1989 as he would complete 15 years of service……….” (Page: 418, Para: 2) “The Labour Court rejected the claim of the appellant and held that Para 3-A of the Standing Orders of the respondent was binding on the appellant and the termination of the appellant’s service after the contractual period was valid……….The High Court dismissed the writ petition……….” (Page: 419, Para: 3) “As far as Section 25J is concerned………. There is no substantive provision in Chapter V-A of the Act which pertains to the period of service of an employee. Consequently, Section 25J has no application at all to the present case. We have already held that Paragraph 3-A of the Standing Orders of the respondent was binding on the appellant and it is nobody’s case that the termination was not in terms thereof.” (Page: 422, T.L.: 13) III. Expressions and meanings a) Expression ‘Any other law’ in the section does not include any other provisions of the Industrial Disputes Act (S.C.2J) F 5A.1139 The word “Any other law” contained in the section will not include any other provisions of Industrial Disputes Act and if the legislation had intended to include other provisions of Industrial Dispute Act in the section then it would have specifically mentioned “in any other part of this Act” which is not given in the section. P. Virudhachalam & Ors. v. The Management of Lotus Mills & Anr., 1998 I LLJ 389 : 1998 (92) FJR 562 : 1998 (78) FLR 107 : 1998 I LLN 977 : 1998 LIC 834 : 1998 I CLR 1 : 1998 LLR 240 : 1998 SCC (L&S) 342 : 1998 AIR (SC) 554 : 1998 (1) SCC 650 (S.C.2J) “It is difficult to appreciate how the said proviso can be of any assistance to the appelants. All that is stated is that anything inconsistent with the provisions of Chapter VA found to have been laid down by any other law including standing orders etc. will have no effect. Even Sub-section (2) of Section 25-J is to the same effect. Therefore, section 25-J overrides any inconsistent provision of any other law or otherwise binding rule of conduct and makes. The provisions of Chapter VA operative of their own. The submission of learned Counsel for the appellants in this connection was to the effect that “any other law” as provided in Section 25-J(1) would include even the Industrial Disputes Act, specially the provisions contained in Section 18 thereof. It is difficult to agree. Section nowhere provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent contained in any other chapter of the Industrial Disputes Act as well as in any other law. Such a provision is conspicuously absent in Section 25-J (1). If 2704 Chapter VA – Lay-Off and Retrenchment Sec. 25J submission of learned Counsel for the appellant is accepted, Section 25-J (1) will have to be re-written by introducting the additional words therein “in any other part of this Act or” before the words ‘any other law” as mentioned therein. On the Express language of the said provisions, therefore, such an exercise is contra-indicated and is totally impermissible.” (Page: 397, Para: 13) IV. Consequence of Sec. 25J a) Lay-off and retrenchment compensation payable u/Central Act when the State Act does not make provision for lay-off and retrenchment compensation (S.C.CB) F 5A.1140 The provision of Sec. 33C(1) provides for claim of money dues and Chapter VA provides for lay off and retrenchment compensation and as there is no such provision under the C.P. and Berar Industrial Disputes Act for recovery of lay off compensation and as Sec. 25J expressly provides that such claims to be heard under the central Act therefore Appropriate Government or it’s delegate i.e. Labour Court had jurisdiction under Industrial Dispute to hear such claims. The Sawatram Ramprasad Mills Co. Ltd. Akola v. Baliram Ukandaji & Anr., (Babu Lal-Intervener), 1966 AIR (SC) 616 : 1966 I LLJ 41 : 1968 (34) FJR 420 : 1965 (11) FLR 394 (S.C.CB) “……….The contention on behalf of the Mills, however, is that the Industrial Disputes Act. 1947 does not apply to the present matter but the C. P. and Berar Industrial Disputes (Settlement) Act does. This argument is put in two ways. By one argument the application of the Industrial Disputes Act is sought to be evaded and by the second the C. P. and Berar Industrial Disputes (Settlement) Act is sought to be applied. We shall examine these two arguments in the same order. The attempt to oust the Central Act is based upon S. 31 of the 1956 (Amendment) Act and the opening part of S. 25-J. Section 31 can have no application because S. 33-C has been included for the purpose, among others, of enabling the workmen to claim any money due from their employers under the provisions of Chapter V-A. This is expressly so stated in that section. Chapter 5-A is the only Chapter in which there is provision regarding lay off or compensation for lay off. The C. P. and Berar Act contains no provision either for the recovery of money or for compensation for lay off. It is thus obvious that if a workman has a claim for lay off it can only come up for decision under the Industrial Disputes Act, 1947 and, indeed, S. 25-J (2) says so in express terms. The attempt to keep out the provisions of the Industrial disputes Act, particularly Chapter V-A and S. 33-C must, therefore, fail. The next attempt, namely, that the C. P. and Berar Act applies is also ineffective……….Next, even if Ss. 31 and 25-J save the application of the C. P. and Berar Act they do so subject to the condition that question of lay off must be decided in accordance with Chapter V-A and S. 33-C clearly provides that a dispute for any money due under Chapter V-A has to go before the Appropriate Government or its delegate……….” (Page: 618, Para: 4) b) Lay-off compensation u/s. 25C to be given but not as per Standing Orders since the Central Act prevails over Standing Orders (All.HC) ¥ 5A.1141 The High Court held that the workmen are entitled to only compensation as per the provisions of Sec. 25C which has already been paid because Sec. 25J provides that Sec. 25C supersedes the standing orders of the establishment. British India Corporation, Ltd., Kanpur v. B.P. Singh, P.O. Labour Court, Kanpur, & Ors.,1964 I LLJ 601 : 1964 (8) FLR 256 (All.HC) Sec. 25J Consequence of Sec. 25J 2705 c) Standing Orders providing for lesser lay-off compensation will not prevail over the Central Act (S.C.CB) F 5A.1142 Even though the Standing Orders of the company provide for lay-off due to fire etc. and fix the quantum of compensation, the same cannot be invoked if the compensation is lesser than that under the provision of Ch. V-A as the latter will prevail over the former by virtue of Sec. 25J. R.B. Bansilal Abirchand Mills Co. Pvt. Ltd. v. The Labour Court, Nagpur & Anr., etc., 1972 I LLJ 231 : 1972 (41) FJR 249 : 1972 (24) FLR 169 : 1972 LIC 285 : 1972 AIR (SC) 451 : 1972 (1) SCC 154 (S.C.CB) “The last point urged was that in view of standing Orders 19 and 21 the quantum of compensation had to be scaled down or measured in terms of the Standing Orders. Under Standing Order 19 the employer could, in the event of fire, breakdown of machinery etc. stop any machine or machines or department or departments wholly or partially or the whole or a part of the establishment for any period, without notice and without compensation in lieu of notice. Under standing Order 21, any operative played (sic) off under Standing Order 19 was not to be considered as dismissed from service but as temporarily unemployed and was not to be entitled to wages during such unemployment except to the extent mentioned in Standing Order No. 19. The High Court rightly turned down the contention in view of S. 25-J of the Act under which the provisions of Chapter V-A are to have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946.” (Page: 239, Para: 27) d) Provisions of Chapter VA prevail over Sec. 7 of Andhra Pradesh Act, 1994 in the matter of regularization hence daily wage workman who is protected under Chapter VA cannot be terminated under A.P. Act, 1994 though the latter bars regularization (AP.DB) ¥ 5A.1143 In view of Sec. 25J of Industrial Disputes Act the daily wage workman was protected under Chapter V-A of Industrial Disputes Act she could not be terminated u/s. 7 of Andhra Pradesh Civil Regulation of Appointment of Public Services and Rationalisation of Staff pattern and Pay Structure Act 1994 which bars regularisation of daily wager and hence order of Single Judge granting her substantive appointment was upheld as the Industrial Disputes Act prevails over the Andhra Act. Maize Beedar Agriculture Research Station Hyderabad & Anr. v. Smt. Silar Bee, 1996 LIC 1776 (AP.DB) “……….we clear some……….No. 17738 of 1988……….” (Page: 1776/1777, Para: 1) “……….No ordinary law……….to do so……….Section 7 of……….of services……….taking advantage of……….the said Chapter……….The provisions under……….to the workmen……….” (Page: 1777, Para: 1) “……….learned Single Judge……….act accordingly……….” (Page: 1779, Para: 2) 2706 Chapter VA – Lay-Off and Retrenchment Sec. 25J e) Sec. 25F has overriding effect over REC (Railway Establishment Code) provisions on retrenchment of railway workman (All.DB) ¥ 5A.1144 Termination of service of workman who was in employment of Railways for more than a year amounts to retrenchment and provisions of Sec. 25F are applicable, overriding the provisions of the Railway Establishment Code. Order of termination in contravention of Sec. 25F is quashed. Nand Lall v. The Union of India & Anr., 1978 LIC 1267 (All.DB) “Sec. 25J……….Section.” (Page: 1268, Para: 5) “From the……….be quashed.” (Page: 1269, Para: 6) f) Benefits of Sec. 25F, 25G and 25H available to employees of shops and establishments even after commencement of Punjab Shops & Commercial Establishments Act (P&H.DB) ¥ 5A.1145 On a conjoint reading of Sec. 25J of Industrial Disputes Act and Sec. 33 of Punjab Shops and Commercial Establishments Act 1958 it implies that benefits of Sec. 25F, 25G and 25H will continue to be available to employees of shops and commercial establishment even after commencement of 1958 Act. Ram Sumer v. P.O. Industrial-cum-Labour Court-I, Faridabad & Ors., 1998 III LLJ 1151 : 1997 LIC 232 (P&H.DB) “……….However………1958 Act.” (Page: 1157, Para: 16) V. Proviso to sub-Section (1) of Sec. 25J a) Benefits favourable under the Standing Orders will prevail over the Central and State Acts (S.C.CB) F 5A.1146 The Standing Orders relating to lay off and retrenchment which are more favourable shall prevail over those of the State Act or Central Act by virtue of Sec. 25J(1)(2). Rohtak & Hissar Districts Electric Supply Co. Ltd. & Anr. v. State of Uttar Pradesh & Ors., 1966 II LLJ 330 : 1965-66 (29) FJR 76 : 1966 (12) FLR 290 : 1966 AIR (SC) 1471 (S.C.CB) “Then as regards Standing Order No. 30, Mr. Setalvad’s contention is that this Standing Order conflicts with S. 6-K of the U. P. Act. This section deals with the right of workmen laid-off for compensation……….” (Page: 340, Para: 1) ” (Page: 340/341. P. he shall continue. 25-J (1). 6-K and 6-R of the U.HC) . therefore.” (Page: 340. 25J 2707 “Section 6-R (1) provides that the provisions from Ss. 25-J of the Central Act……….HC) ¥ 5A. will prevail over the provisions of the Central Act………. notwithstanding Ss. Act. The position. 25J(1) of the Industrial Dispute Act. Para: 2) “It is thus clear that the last part of S. the rate of minimum wages fixed under the provisions of the Minimum Wages Act will prevail over the rate of wages fixed under an award passed by the Industrial Tribunal under the Industrial Dispute Act in the case when the latter rates gof wages are lower than the rates fixed under the provisions of Minimum Wages Act. But the difficulty in accepting Mr. 1946………. 24-Parganas (Authority under the Minimum Wages Act) 1963 II LLJ 184 (Cal. we have to go the proviso to S. Shib Prasad Ghosh v. 25-J (2) categorically provides that the rights and liabilities of the employers and workmen in relation to lay-off shall be determined in accordance with the provisions of Ch. V-A of the Central Act………. 25-J(2) is the proviso to S. District Judge. to be entitled to the more favourable benefits in respect of that matter. inter alia. a workman is entitled to benefits in respect of any matter covered by Ch. 6-J to 6-Q shall have effect notwithstanding anything inconsistent therewith contained in any other law (including Standing Orders) made under the Industrial Employment (Standing Orders) Act. even during the period during which the award is in force.1147 Because of Sec. notwithstanding that he receives benefits in respect of other matters under this Act. and this proviso clearly and unambiguously lays down. Setalvad had to be decided solely by reference to the provisions of Ss. Para: 5) b) Wages under Minimum Wages Act to be granted but not those fixed under an award since the wages under the latter are lower (Cal. 25-J(1) under which the Standing Orders which give more favourable benefits to the employees in respect of compensation for lay-off. Setalvad’s argument is created by the provisions of S. V-A which are more favourable to him than those to which he would be entitled under this Act.” (Page: 340. there would have been considerable force in his argument. if the point raised by Mr. 25J Proviso to sub-Section (1) of Sec.Sec. is that S.so. Para: 3) “Once we reach this stage. that where under any Standing Orders. 6-K and 6-R. and amongst the provisions thus made applicable by S. 25-J (2) makes Chapter V-A of the Central Act applicable to disputes in relation to compensation for lay-off. Rights and liabilities of employers and workmen relating to lay-off and retrenchment compensation to be as per Chapter VA a) Agreement between employer and employees not to be dehors the provisions of Chapter VA (Mad.2708 Chapter VA – Lay-Off and Retrenchment Sec. 33C(2) for lay. Therefore it cannot be contended that an agreement de hors the provisions of the Act can be pressed into service in a claim u/s.off compensation.. The mandate is imperative and it imports an implied avoidance of any arrangement outside the provisions of that chapter between the employer and the workmen.1148 Sec. v. Labour Court. 1970 (37) FJR 249 : 1970 (21) FLR 94 (Mad. 25J VI.HC) . Coimbatore & Ors.HC) ¥ 5A. Also held that the agreement referred only to badli workmen but not to permanent workmen. 25J(2) makes it clear that the provisions of Chapter VA ought to and will prevail when the question relating to lay-off or retrenchment compensation payable by an employer arises. Sree Rajendra Mills Ltd.