The General Manager, Rosin and Turpentine Factory, Distt. Bilaspur, Himachal Pradesh vs The Principal Secretary Labour to the Government of Himachal Pradesh civil Secretariat Shimla-2, Himachal Pradesh, The Presiding Judge Industrial Tribunal-cum-Labour Court, Dharamshala, Himachal Pradesh and Sh. Man Singh

Justice Dharam Chand Chaudhary, Judge

The challenge herein is to the award dated 7.1.2012, passed by the learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala in Reference No. 55/2006, whereby the disengagement of 3rd respondent-workman from service without compliance to the provisions contained u/s 25-F of the Industrial Disputes Act has been held illegal and a direction issued to the petitioner to re-engage him forthwith at the same place and against the same post. He has also been held entitled to seniority and continuity in service from the date of his disengagement.The legality and validity of the impugned award has been assailed on the grounds inter-alia that the present was not a case of non-compliance of the provisions contained u/s 25-F of the Industrial Disputes Act, since a notice as required under the provisions of the section ibid was duly issued to respondent-workman and he was offered the compensation also to the tune of Rs. 5625/- which he allegedly refused to accept. It is also pointed out that his services had to be dispensed with, in view of there being no work available for him.

We have perused the record available at this stage and also taken into consideration the contentions raised by learned counsel representing the petitioner.

Admittedly, respondent-workman was engaged as Driver on 1.9.1999 by the petitioner. He continued to work as such till 10.5.2003. He completed 240 days preceding 12 calendar month from his disengagement. There is again no controversy qua his services were dispensed with thereafter however, allegedly on account of non-availability of work. The stand taken by the petitioner that services of the respondent-workman were dispensed with after observance of the codal formalities provided u/s 25-F of the Act is, however, without any substance for the reason that no notice within the meaning of the provisions contained u/s 25-F was ever served upon the respondent-workman nor simultaneously to his retrenchment, the payment of compensation was made. As a matter of fact, it was obligatory on the part of the employer i.e. the petitioner to have issued one month prior notice to the respondent-workman, showing its intention to dispense with his services for the reasons to be disclosed in the notice. In lieu of the notice, the employer should have resorted to the payment of one month salary in advance. Additionally, the compensation, if any, payable to the respondent-workman was also required to be paid simultaneously i.e. at the time of his disengagement itself. No such procedure has been followed in the case in hand, because the petitioner was disengaged from his employment on 10th May, 2003 instant. The so called notice/order of retrenchment was issued thereafter i.e. on 16.6.2003. Not only this but the cheque dated 31.7.2003 amounting to Rs. 5625/- as per statement Annexure P-4 of Shri Vipin Chand Sharma, factory manager was sent to the respondent-workman vide registered letter No. 614 dated 25.9.2003. The date of issuance of the so called notice and the cheque in question thus belies the stand of the petitioner qua the alleged compliance of the provisions contained u/s 25-F of the Act.

In such a situation, the Industrial Tribunal-cum-Labour Court below, in our considered opinion, has not committed any illegality or irregularity while quashing and setting aside the retrenchment of the respondent-workman and issuing a direction to the petitioner to re-engage him forthwith at the same place and against the same post with seniority and continuity in service from the date of his disengagement.

Much has been said qua the non-availability of work. May it be so, however, the procedure resorted to by the petitioner to get rid of the respondent-workman is not in accordance with the legal provisions discussed hereinabove. We have no hesitation to observe that in case no work is available for the respondent-workman, the petitioner is at liberty to dispense with his services, however, after resorting to the procedure prescribed thereto under the Industrial Disputes Act and in that eventuality, the impugned award, Annexure P-4 will not stand in its way.With these observations, the writ petition being devoid of any merit is dismissed in limine, so also the pending application(s), if any.