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Judgment
G. Mehrotra, C.J.—This is a petition under Article 226 of the Constitution on behalf of the workmen of the Shillong Hydro Electric Limited. The petitioner is a registered trace union with its head officel at Shillong, Assam and represents the workmen of the Shillong Hydro Electric Limitee. Sri Ganesh Chandra Das, Mechanic and Sri Pijusr Kumar Guha Roy. Operator who were workmen of the said company and members of the trade union, were retrenched with effect from the 1st October 1960. they raised on jection to their retrenchment and the following two points were referred for adjudication to the Labour Court by me State of Assam:�
(1) whether the management of Shillong Hidro Electric Co. Ltd. are justified in retrenching sri Ganesh Chandra Das, Mechanic and Sri Pijush Kumar Guha Roy, uperator?
(ii) If not; are they entitled to re-instatement or any other relief in lieu thereof?
The Labour Court by Its award held that the (sic) was Justified and granted them retrenchment compensation. It is the validity of this award which has been challenged by means of the present petition.
Two points have been mainly urged by the petitioners. First of all it is contended that the manuatory requirement of section 25 H (a) of the industrial disputes Act (hereinafter called the Act''), namely that before retrenchment there should be one month''s notice, has not been complied with by the company. (sic) it is urged that the notice which was given to the Government u/s 25 F (c) of The Act is not a valid notice both in Its contents and in its form of service. The Labour Court repelled the contention of the petitioners that the condition precedent was not followed in the present case.
Section 25-F of the Act provides as follows:--
25F. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall he 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 snail be necessary it 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.
Under sub-section (a) the workman has to be given one month''s notice in writing indicating the reasons for retrenchment and when the notice period has (sic) the workman can be retrenched, ft is open, however, to the employer not to give notice under sub-section (a) and retrench him after giving him his salary for one month in lieu of the notice. in the present case the notice was given to the workmen in which it was stated that their services are retrenched from 1st October I960 and they should take Their pay for the month of October. We co not think that there is any force in this contention. The notice was given. The only defect if at all, that can be pointed out in the notice given to the workmen is that the notice did not indicate that the retrenchment is to commence from 1st November, 1960. On the contrary it stated that it was to commence from 1st October 1960 but in the notice the workmen were given one month''s pay in lieu of the notice.
In fact when one month''s salary is allowed In lieu of the notice, no notice need be given. But as in the pre-sent case one month''s salary was being offered the management indicated in the notice that their services are retrenched with effect from 1st October 1960. The direct thus cannot be said to vitiate the notice at all, particularly when payment of salary was made at the rate of fifteen days for every year of service.
The next point is that the notice which was given to the Government is neither valid in its contents nor to the form of the service. The notice admittedly was given in the form ''P'' as prescribed under the rules. The only defect pointed out in the contents of the nonce is that it is not stated therein that the retrenchment was to take effect from 1st Nov. 1960 and instead it is stated that the workmen were to be given, on the 1st and 3rd October 1960 one months pay in lieu of notice and the retrenchment was to take effect from 1st October 1960. only that portion of the form has been retained and the rest has been cut out which applies to facts of this case. It cannot, mere tore, fie said that with regard to the contents the notice was not a valid notice.
The contention mainly of the petitioners is that the notice which was given to the Government was not in the prescribed manner. Rule 79 of the Assam industrial Dispute Rules, 1958 provides as follows�
Notice of retrenchment. If any employer desires to retrench any workman employed in his industrial establishment who has been in continuous service for not less than one year under him (hereinafter referred to as ''workman'' in this rule and in Rules 80 and 81) he shall give notice of such retrenchment as in Form ''P'' to the state Government and such notice shall be served on that Government by registered post in the following manner:--
(a) Where notice is given to the workman notice or retrenchment shall be sent within three days from the date on which notice is given to the workman.
(b) Where no notice is given to the workman and he is paid one month''s wages in lieu thereof, notice of retrenchment shall be sent within three days from the date on which such wages are paid; and
(c) Where retrenchment is carried out under an agreement which specifies a date for the termination or service, notice of retrenchment shall be sent so as to reach the State Government at least one month before such date:
Provided that if the date of termination of service agreed upon is within 30 days of the agreement, the notice of retrenchment shall be sent to the State Government within 3 days of the agreement.
It is urged that the notices were given on the 11th October 1960 to the Government, it is contended that if retrenchment was by notice to the workmen and not by payment of any salary for one month, then in that case the notice is to be given to the Government within three days of the date on which notice is given to the workmen and as the notice in the present case was given to the workmen on the 27th September 1960, the notice sent to the Government was not in conformity with the provisions of rule 79 (a). It, however, it is considered that the retrenchment was made by giving one month''s salary in lieu of the notice, then the notice should have been given to the Government within 3 days of the date of payment. the date of the payment was 1st October and notice was given beyond 3 days and thus, the mandatory provisions of Rule 79 were not complied with. This point does not seem to have been taken before the Labour court. If the point had been taken before the Labour Court, then the Labour Court would have examined the point and could have come to the conclusion whether the management had compelled with rule 79.
It Is true that the Labour Court said that the payment was made on 1st October 1960, presumably this observation is made on the assertion that the otter was made in the notice given to the workman, by the employer that he should get his salary on 1st October 1960. the point not having been taken before the Labour Court, cannot now be allowed to be taken in proceedings under Article 220 of the Constitution. It is difficult also to say that me provisions of rule 79 are mandatory so as to vitiate me entire proceedings. Section 25-F (c) of the Act provides that notice in the presented, manner is to be served on the appropriate Government. What the rule thus has to provide is the manner of service on the appropriate Government. Rule 79 no doubt says that the retrenchment notice In form ''P'' is to be served on the state Government by registered notice in the following manner and therein it is stated that it must be given within three days of the date of notice to the workman and thus it is contended that the manner has been provided for in rule 79 which is a mandatory requirement.
The whole purpose of service of notice to government within three days of the date of payment or the date of notice to the workman is to enable the workman to raise any objection before the Government if he so desires, in the present case it is not said that the workmen were prejudiced in filing their objection before the Government. If the payment is made and it is accepted by the workmen, it is difficult to raise the question of the want of notice, which is the only point raised before us. It, however, the money is not accepted by the workmen, in that case the notice is to be given and after the expiry of the period of the notice the retrenchment Becomes effective, in that event one month''s notice is to be given and to enable the workmen to file objection within that period three days time is provided for. But so long as the workmen are not prejudiced, it cannot be said that any of their rights have been affected and thus the provisions are not really mandatory.
As I have already pointed out, if the point had been taken before the Labour court, the matter would have been examined and the court would have found as to whether the notice has or has not been given within three days of the date of notice given to the workmen or of the payment
In the result, therefore, there is no force in this petition and it is rejected. But we make no order as to cost.