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Judgment
This is an application for the issue of a writ of certiorari to quash the notice No. B-5/1183/92/55, dated 14 March 1956, issued by the Collector, Hyderabad district, also to set aside the attachment of the applicant''s factory made pursuant thereto as being ultra vires and illegal. The petitioner is a public limited company owning a glass factory. The respondent 5 in this case in an employee of the factory till he was discharged on 16 December 1954, according to the petitioner, for negligence and continued inefficiency. Immediately after he was discharged on 20 December 1954, he received a sum of Rs. 78-6-0 for 16 days in December 1954 and 15 days'' notice pay in full and final settlement of his account. The next day after he received this money, viz., on 21 November 1954, he filed a petition before the labour officer, Medak, complaining that he was summarily discharged without being given an opportunity to explain his position and that in spite of 8 1/2 years'' service, the management did not pay him gratuity except 15 days'' notice and leave pay. He, therefore, requested the department to recommend his case to the management to pay him gratuity and one month''s notice pay according to law. On this application the Labour Department by its letter No. 2/4/54/1926/M.C. dated 23 December 1954, stated that the management was required under S.25F(a) of the Industrial Disputes (Amendment) Act, 1953, to give one month''s notice in case of termination of service of any worker and in lieu of notice one month''s wages are to be paid to the worker; that under S.25F(b) of the said Act the management has to pay 15 days'' wages for every completed year of service in such cases; that the worker has been paid only 15 days'' wages, whereas he is still to get 15 days'' wages in lieu of notice as per S. 25F (a) and that he is entitled to gratuity for 8 1/2 years amounting to Rs.405 as required under S.25F(b) of the said Act. The petitioner was directed to pay these amounts immediately to respondent 5 under intimation to the office. The petitioner by their letter dated 2 February 1955 stated that the respondent 5 had received the amounts in full and final settlement and had also signed accordingly. In further informed the Labour Department that though respondent 5''s work was found to be very unsatisfactory and that though there was no improvement in spite of repeated warnings and requests, etc., he was given a last chance some months back and he had then given letter admitting his mistakes and stating that in future if his work is not found satisfactory, his services may be immediately terminated; and that as there was no improvement, his services were terminated. Subsequently the Labour Department again wrote to the petitioner asking it to pay Rs. 450 failing which it was asked to show cause within 15 days from the receipt of the letter why the amount should not be recovered from it as arrears of land revenue under S.25(1) of the Industrial Disputes Act, 1953. Accordingly this was replied to by the petitioner. The Labour Department did not change its view and again informed the petitioner by its letter No. 1/3418, dated 4 August 1955, that the amount of Rs. 450 was due and that the same should be paid within 15 days from the receipt of the notice, to the employee. The petitioner, by their letters No. 7693 dated 10 August 1955 and 7032 dated 22 August 1955, challenged the enquiry made by the Assistant Secretary, Labour Department, and his jurisdiction to hold such enquiry. It thus denied that the worker was retrenched and stated that his services were terminated by way of disciplinary action. A copy of the termination order was enclosed. It appears thereafter that the Labour Department directed the Collector to take proceedings under S.25(I) which was before its deletion in 1956 by Act 36. The notice of termination given by the petitioner is as follows :
"This morning you were instructed to get certain bottles wrapped and packed, also some other instructions were given. This afternoon when we inspected it was found that the instructions were not carried through; not only that you did just the contrary of what you were instructed to. This is not the first time that this is so. Previously also once your services were terminated but on your assurance that such things will not recur, you were given chance of continuance of your services. We now regret that as the assurance has not been kept up, and as it is not the first time that such lapses have occurred and in spite of so many other lapses we have been over-looking the same and warning you from time to time as no proper results have been forthcoming we have perforce regretfully to terminate your services immediately."
From this it is contended that the services of the respondent 5 were terminated for negligence and that he was not retrenched. On the other hand the respondent 1, the Government of Hyderabad in the Labour Department, attempted to show that the worker were retrenched and that under S. 25F read with S. 25I the amount due to such a retrenched worker can be recoverable.
It is contended by the learned advocate for the petitioner that firstly there is no retrenchment within the meaning of S. 25F in this case and that since the question whether the employee has been discharged for negligence or has been retrenched, is itself a matter in dispute, neither the Labour Department nor the Collector could act under S. 25I before its amendments. Sections 25F and 25I are in the following terms :-
"25F : No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given one month''s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation, which shall be equivalent to fifteen days'' average pay for every completed year of service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government.
25I : Any money due from an employer under the provisions of this chapter whether by way of compensation or by way of wages may, without prejudice to any other mode of recovery, be recovered in the same manner as an arrear of land revenue or as a public demand by the appropriate Government on an application made to it by the person entitled to the money."
The very first question which would arise on a reading of these sections is (1) whether the employee was retrenched and (2) if he was, whether any money was due from the employer to the employee. The petitioner challenged these, viz., (1) that the employee was not retrenched but dismissed, and (2) that no amount is due to him, as he has executed a receipt after having received Rs. 78-6-0 in full and final settlement of all dues. In the circumstances, it is said that there is no money which can be said to be due which a Collector can recover under S. 25I. In my view before any money can be said to be due there must be an adjudication of the dispute between the employer and the employee both as to the question of retrenchment as well as to the amount due. The Assistant Secretary, Labour Department, is not the authority who can determine the questions under the Industrial Disputes Act. The learned Government Pleader has not shown me any provision of the Act under which an authority has been conferred upon the said officer. In fact there is no such provision in the Act except S. 10 under which it is possible in the case of dispute between the employer and the workmen to bring the matter to the notice of the Government and to pray for a reference of the dispute to a tribunal under the provisions of the Industrial Disputes Act. In my view the language of S. 25I clearly envisages a predetermination of the amount due before any action can be taken, and when the amount claimed by the workman is challenged by the employer, the Government not being vested with the authority to determine such a dispute, it cannot be said that there has been predetermination of that dispute by fixing the liability to pay, and consequently no amount can be said to be due which can be recovered under S. 25I. The power under S. 25I can only be utilized by the Government, if there is an amount already due to be paid or where it has been predetermined by an authority competent to determine it. In this view I am supported by two judgments : one of the Madras High Court in C.B.R. Ratnam and Co. Vs. D. Ekambaram and Another, and the other a Bench judgment of the Patna High Court in Sree Behariji Mills Ltd. Vs. State of Bihar and Others, : . In the former case Rajagopala Ayyangar, J., at pp. 269-270 observed :
"It is sufficient for the present purpose to say that where a contention is raised that retrenchment compensation is not payable under the terms of S. 25F and if payable the amount would not be that claimed by the workman, neither the labour officer nor the State Government have power to adjudication upon these matters and ascertain the sum due and in the absence of any sum so ascertained by a competent authority the State Government have no power to order recovery of retrenchment compensation under S. 25I."
The Patna High Court following this judgment observed :
"In our opinion the language of S. 25I must be interpreted to mean that there is predetermined or ascertained liability, and on the basis of this predetermined or ascertained liability, the State Government has a right to initiate proceedings for recovery of the amount in the same manner as an arrear of land revenue or as a public demand.
In other words the right of the Government to order recovery springs into existence only where there is an ascertainment of the liability of the employer by competent authority. It is true that there is no machinery provided in the Act for the adjudication of the matter of compensation under S. 25F in the event of a dispute. There is an obvious lacuna in the Act. But it is not the function of a Court of law to go on a voyage of discovery and to fill up the obvious omission or lacuna made by the legislature. It is a well-recognized principle that a Court has power only to interpret and not to add to or amend the law."
On the view I have taken the application must be succeed. It is not as if the respondent 5 is not without any remedy either by way of suit or under S.10 of the Act, which is entirely a matter for him to decide. In so far as the order challenged is concerned, it is passed without jurisdiction and must therefore be quashed. I therefore direct the issue of a writ of certiorari quashing the notice of the Collector dated 14 March, 1956 and further decided the setting aside of the attachment made pursuant to that notice. This writ petition is allowed with costs. Advocate''s fee Rs. 100.