Manohar Bhatia vs P.K. Raghavan
2004 Latest Caselaw 419 Bom

JUDGMENT

S.U. Kamdar, J.

1. By the present petition, the petitioner is challenging the award passed on 11-3-2002 by the learned Presiding Officer of 4th Labour Court in which the petitioner was directed to reinstate the respondent in service with continuity of service and full backwages with effect from 5-2-1998. The brief facts of the case are as under :--

2. The respondent was appointed as a Stenographer in the petitioner company and he was in employment with effect from 14-1-1993. On 5-1-1998, it is the case of the petitioner that the company issued a notice to the respondent for retrenchment on the ground of poor business and gave a 30 days notice in compliance with the provisions of Section 25FA of the Industrial Disputes Act, 1947. On 13-2-1998 the respondent was offered the dues of his retrenchment compensation of sum of Rs. 10,437.50 in accordance with the provisions of Section 25FB of the Industrial Disputes Act, 1947. On 27-4-1998 the respondent returned the said cheque and contested the case of retrenchment from the job.

3. Pursuant thereto the respondent has invoked the provisions of the Industrial Disputes Act and has raised a reference being Reference (EDA) No. 383 of 1999, inter alia seeking that his termination by a letter dated 5-1-1998 be set aside and he be reinstated in service with effect therefrom. He has also sought the demand as and by way of backwages from the date of his termination. In the said reference, it was inter alia contended by the respondent that there was an unlawful termination by notice dated 5-1-1998 and that the petitioner company has not complied with the provisions of Section 25F of the Industrial Disputes Act, 1947 insofar as it pertains to retrenchment of an employee from service. It was also the case of the respondent that prior to his removal from service, the petitioner appointed one R. Lakshmanan on 12-12-1997 on a lesser salary as a Stenographer in service of the petitioner company. On the aforesaid basis, he has sought the relief as stated hereinabove. The said reference was resisted by the petitioner herein inter alia contending that they have complied with the provisions of Section 25F of the Industrial Disputes Act, 1947 inasmuch as they have given 30 days notice and have tendered the compensation for retrenchment as contemplated under the provisions of the said Act. It has been therefore contended by the petitioner before the Labour Court that there is no removal or termination of services of the respondent from the company but due to poor business the said respondent has been retrenched in accordance with the provisions of the Industrial Disputes Act, 1947. The learned Labour Court has considered the said reference after giving opportunity to both the parties to lead oral as well as documentary evidence. The learned Labour Court in its order has come to the conclusion that there has been a breach of the provisions of Section 25F of the Industrial Disputes Act, 1947 inasmuch as the letter dated 5-1-1998 is not a retrenchment notice as contemplated therein. In paragraph 15 of the said Award the Labour Court has held as under :--

"15. As I have stated above, the termination letter does not specify anything about the retrenchment and retrenchment compensation it can be inferred that no retrenchment compensation was offered to the workman at the time of his termination. From the termination letter it is clear that it was termination of services of the workman and not retrenchment as alleged by the management. I, therefore, hold that second party proved that first party has terminated his services without following due process of law. I, therefore, answer this issue in the affirmative."

It has been further held by the Labour Court that it is an admitted position that there has been an appointment of Mr. Laxshmanan in the said firm as a Stenographer which is prior to the so-called termination of the respondent from the service. In paragraph 9 of the Award, the learned Labour Court has held as under :--

"The management also admitted the appointment of Mr. Laxmanan in their firm. According to the workman he is appointed as stenographer while according to the management he is appointed as a typist. When his appointment is admitted by the management it was their duty to show that he was not appointed as stenographer but only as a typist."

It is therefore held that there was termination of the respondent without conducting any enquiry of any nature whatsoever. The termination dated 5-1-1998 is illegal and bad in law and on the aforesaid finding the learned Labour Court has reinstated the respondent in service.

4. The learned counsel appearing for the petitioner has contended before me that in fact and in substance the provisions of Section 25F of the Industrial Disputes Act, 1947 have been complied with. It has been contended that the termination by a letter dated 5-1-1998 satisfies the definition of Section 2(oo) of the Industrial Disputes Act, 1947 where the retrenchment has been defined as termination by the employer of the service of the workman for any reason whatsoever. The said Section 2(oo) reads as under :--

(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include --

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, or

[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under stipulation in that behalf contained therein; or]

(c) termination of the service of a workman on the ground of continued ill-health."

It is further contended that once the definition of the word "retrenchment" is looked into in light of Section 2(oo) then obviously the provisions of Section 25F, particularly sub Clause (a) thereof would be deemed to be satisfied by the letter dated 5-1-1998 and, therefore, the finding of the learned Labour Court insofar as holding that the petitioner has not complied with the retrenchment provision as contained in Section 25-F of the Industrial Disputes Act, 1947 is erroneous and illegal and is liable to be quashed and set aside. The said Section 25F of the Industrial Disputes Act, 1947 reads as under :

"25F. Conditions precedent to retrenchment of workmen.-- 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;

(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 continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government [for such authority as may be specified by the appropriate Government by notification in the Official Gazette]."

The learned counsel for the petitioner has further contended before me that it is not an admitted position as observed by the Labour Court in his judgment pertaining to the appointment of Mr. R. Laxmanan as a Stenographer prior to the termination of the respondent herein and the said finding being erroneous and incorrect it has been further contended that R. Laxmanan is not a Stenographer of the petitioner company but is in employment of one of the sister concerns of the petitioner company. It is further argued that since there is only one steno with the petitioner the question of putting up seniority list does not arise. It is therefore, argued that the finding of the learned Presiding Officer of the Labour Court that there is a breach of the procedure of retrenchment by not putting the seniority list is erroneous and incorrect and, therefore, there is no breach of the provisions of Section 25G of the Industrial Disputes Act, 1947. The said provisions of Section 25G of the Industrial Disputes Act, 1947 read as under :--

"25G. Procedure for retrenchment.-- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."

5. On the other hand, the learned counsel for the respondent has contended that the finding of the Labour Court insofar as it pertains to the recording of the admission is concerned the same is correct. The learned counsel for respondent has taken me through the oral evidence which has been recorded before the Labour Court to demonstrate the aforesaid position. It is further contended by the learned counsel appearing for the respondent that there has been breach of provisions of Section 25F of the Industrial Disputes Act, 1947 firstly because the notice dated 5-1-1998 does not conform to a retrenchment notice as required under the law. It has been further contended that in any event there is also a breach of the provisions of Section 25FFB of the said Act and, therefore, the finding of the learned Presiding Officer of the Labour Court should not be interfered with.

6. Both the parties before me have cited various judgments pertaining to the interpretation of Section 25F of the Industrial Disputes Act, 1947. The said judgments are as under :--

7. The learned counsel for the petitioner has cited the judgment of the Supreme Court in the case of Workmen of Coimbatore Pioneer "B" Mills Ltd. v. Labour Court and Ors., reported in 1980 (1) LLJ page 503. While considering Section 25F, the Hon'ble Supreme Court has condoned the delay of one day in tendering the retrenchment compensation and relying upon the said judgment it has been argued that the liberal view must be taken while interpreting the provisions of Section 25F of the said Act. The relevant portion of the said judgment reads as under :--

"3. The Special leave to appeal under Article 136 was granted by this Court confined to "the question of backwages payable and compensation in lieu of reinstatement and other directions regarding absorption of the workmen when there is scope for re-absorption". Thus the validity of the retrenchment as such is no longer open to question in this appeal. After hearing learned counsel on both sides, we think it fair and reasonable to raise the compensation payable to each of the 40 workers, in lieu of reinstatement, by another sum of Rs. 750. With regard to workman No. 40, Smt. Meenakshi, it has been stated at the Bar that she has since died. The amount payable to her shall be paid to her legal representatives as ascertained by the Labour Court, Coimbatore. The additional amount directed by us shall be deposited in the Labour Court, Coimbatore, within six weeks from today, which deposit shall be disbursed by the Labour Court to the individual workers including the legal representatives of Smt. Meenakshi, as directed above. The costs of this Court, which are assessed at Rs. 1,000/- shall be paid to the counsel for the appellants or deposited in this Court to the credit of the appellants, within two weeks from today. The appeal thus stands partly allowed."

The learned counsel for the petitioner has also cited the judgment of the Division Bench of this Court in the case of Shri Dattaram Narayan Raul v. M/s Raptakos Brett and Co. Ltd., and ors., reported in 1987 (II) CLR 28 in which while considering the question of reduction in the payment of backwages the Court has directed a modification of the award and has contended that this Court also should make necessary modification in the award passed by the Labour Court and direct a payment of the lumpsum compensation to the respondent in place of reinstatement and backwages. The learned counsel for the petitioner has relied upon paragraph 8 of the said judgment which reads as under :--

8. Accordingly, as far as the Rule is concerned, we modify the Award of the Labour Court in the matter of backwages as under :--

The Company i.e. M/s Raptakos Brett and Co. Ltd., i.e. the first respondent before us, will pay to the petitioner 25% backwages from the date of termination till 31st May, 1986 and 100% of wages from 1st June 1986 till the date of actual reinstatement. In addition, on the amount of aggregate backwages, as computed upto 31st May, 1986, the first respondent will pay to the Writ Petitioner workman simple interest at the rate of 6% p.a. from 1st June, 1986 till the date of actual payment. These payments must be made on or before 15th June, 1987.

Although the petitioner has succeeded, bearing in mind the facts of this case and the fact that it is a dispute between an employee and employer, we direct the parties to bear their respective costs of the Writ Petition.

It is clarified that the wages will be calculated as if the employee had remained in service.

It is further clarified that the wages will include all allowances payable to the workman."

Thereafter the learned counsel for the petitioner has sought to rely upon the judgment of a Division Bench of the Madhya Pradesh High Court in the case of Prakash Dravid and Ors., reported in 2000 (II) LLJ 1511 where while considering the provisions of Section 25F the Court has also considered the grant of compensation to the workmen in the case of retrenchment. Paragraph 6 of the said judgment reads as under :--

"6. In view of this, in the opinion of this Court, it would be just and proper if a direction is given to the respondents to decide the question as to whether the appellants/petitioners had worked for more than 240 days in a year. If it is found that they had worked for more than 240 days, then the benefit of Section 25F of the Act shall be granted to them in accordance with law. The respondents shall hear the appellants/ petitioners and pass a speaking order as early as possible, preferably, within two months from the date of production of a certified copy of this order by the appellants before them. The appellants, if aggrieved by the order that would be passed by the respondents, will be entitled to challenge it before the appropriate forum in accordance with law."

8. Thereafter the learned counsel for the petitioner has cited the judgment of a Division Bench of the Calcutta High Court in the case of Parry's (Cal) Employees' Union and Anr. v. Third Industrial Tribunal, West Bengal and Ors. reported in 2001 (I) CLR 777 and while considering the question of payment of retrenchment compensation, the said Court has held that sending of money by an A/c Payee Cheque by registered post with acknowledgment due on the date of retrenchment is sufficient compliance of the provisions of Section 25F of the said Act. In the aforesaid judgment, the Court has held as under:--

As regards the second contention of Mr. Bandopadhyay, the same is equally devoid of any substance. Once on July 8, 1983, the date of retrenchment, an A/c Payee cheque by registered post with acknowledgment due has been sent, it amounts to payment notwithstanding the fact that actual amount has been received subsequently. I am not at all impressed by the contention of Mr. Bandopadhyay the 'actual payment' must be made on that date or at least the money should be sent by money order. It is rightly pointed out by Mr. Sengupta that once the A/c Payee cheque has been sent by registered post with acknowledgment due, the employer had no control over the money so dispatched unless of course the cheque is dishonoured, which is not the case before us and under such circumstances sending of cheque by registered post amounts to payment within the meaning of Section 25F of the Act. Moreover, all the employees have encashed the cheques. In this connection reference may be made to the decision of the Karnataka High Court in the case of Ramesh v. Labour Court, Hubli, reported in FJR-Vol. 66 page 468 wherein it was held that sending of money by cheque or Bank draft was sufficient compliance of the provision contained in Section 25F of the Act."

9. The petitioner's counsel has thereafter cited a judgment of the learned Single Judge of this Court in the case of Vaccum Plant Kamgar Sanghtana v. Vaccum Plant and Instruments Manufacturing Co. P. Ltd., and Anr. reported in 1999 (II) CLR 530 in which the Court has held as under :--

"10. However, the learned Counsel for the respondent, when pointed out this legal position, immediately made an offer to make good the said deduction and also expressed that respondent is prepared to pay something more than that as it was a bona fide mistake. However the learned Counsel for the petitioners was not prepared for this. The award requires to be set aside on the ground that there was non-compliance of the mandatory provision of Section 25F. However, the question remains is what relief should be granted to the petitioners, it has been pointed out by the learned Counsel for the respondent that presently 160 workmen are working. If all 65 workmen are to be reinstated then the entire company would be required to be closed down, shortly and this would affect those 160 workmen severely. He has also pointed out that retrenchment was found to be bona fide and justified by the Industrial Tribunal and the Industrial Tribunal has accepted the contention that there was no malice or victimization in making the retrenchment. The Industrial Tribunal has found that the position of the company has gone from bad to worst in 1983. Many of the customers have not taken its delivery of the goods and many have not paid the dues and there was no cash flow in the hand of the company. The quantity of products manufactured in that year was negligible compared with licenced capacity and the installed capacity. The respondent has failed to pay sales tax dues and therefore attachment orders had been issued and the Bank accounts were sealed. From all this, it is evident that the financial position of the respondent had gone from bad to worse. Because of this Company required to lay-off employees. The evidence also showed that employees union was made aware of this position from time to time. Ultimately instead of closing down the concern, a decision was taken by the board to retrench those 93 employees. I find that the conclusion drawn by the learned Member of the Industrial Tribunal that the retrenchment was bona fide and justified for economic and financial reasons and there were compelling reason for retrenchment was right. Similarly the conclusion recorded by the Tribunal that there was no malice or victimisation was also right. In this background, in my opinion, reinstatement would not be proper to grant. However, the question remains how the present petitioners are to be compensated. The learned Counsel for the parties have relied upon various judgments in this respect. I am making short reference to them. The learned Counsel for the petitioners relied upon the judgment reported in 1992 LIC p. 1362 Auro Engg. P. Ltd., Nashik v. R.V. Gadekar, Member, Industrial Court, Nashik and Ors. In the said case while making payment of retrenchment compensation, the increment due and payable during lay-off was not taken into consideration. The learned single Judge of this Court held that there was non-compliance of Section 25F by the employer. The company was finally closed down. It was held that employees were entitled to full backwages from the date of retrenchment till the industry was closed. First it is to be noted that it was the case of hardly, 4 employees and the company was running for about a year after the retrenchment. The other judgment relied by the learned Counsel for the petitioners is Mohan Lal v. The Management of M/s Bharat Electronics Ltd. It was the case of retrenchment of one employee. In the said case the company contended that the employee was on probation and hence termination was rightly effected. However, it was the case of employee that there was retrenchment. It was held to be retrenchment without payment of any compensation and hence violative of Section 25F. It was observed as : "We hold that the termination of service of the appellant was ab initio void and inoperative and a declaration is made that he continues to be in service with all consequential benefits, namely, back wages in full and other benefits, if any. However, as the Award is to be made by the Labour Court, we remit the case to the Labour Court to make an appropriate Award in the light of the findings of this Court". The learned Counsel for petitioners also relied upon 1978 LIC 1667, M/s Hindustan Tin Works P. Ltd., v. The Employees of M/s Hindustan Tin Works P. Ltd., and Ors.

The Apex Court held that ordinarily a workman whose service has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to full backwages except to the extent he was gainfully employed during the enforce illness. In that case it was held that considering Company's financial position, 75% backwages would be proper.

11. As against this the learned Counsel for the respondent relied upon the judgment , Surendra Kumar Verma etc. v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Anr. The Apex Court in para 6 observed as under. "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. It is as if the order has never been and so it must ordinarily lead to backwages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full backwages. For instance, the industry might have closed down or might be in severe financial doldrums, the workmen concerned might have secured better or other employment elsewhere and so on. In such situation there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full backwages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full backwages.

The learned Counsel for the respondent also relied upon judgment of Mr. Justice Bharucha (as he then was) in Writ Petition No. 653 of 1980, M/s International Industries v. K.G. Sawant, Hasmabhai Jetha Chawl and Ors. It was held that mere non-compliance of Section 25F in non-payment of retrenchment compensation itself cannot result in reinstatement of the workman. It was the case of about 4 employees who were employed only for a short duration. The retrenchment was found to be bona fide. The retrenchment compensation was offered one day late. In that event it was held that Rs. 750/- would be proper compensation. It seems that in the present case majority of them are employed for pretty long time. 12. In my opinion, in the present case it would be proper to remand the matter to the Industrial Tribunal, Pune to find out what would be the proper compensation/backwages payable to the 65 petitioners. In view of this I pass the following order:

"Rule is made absolute partly.

The matter is remanded to the Industrial Tribunal to find out what would be proper compensation/backwages payable to each of 65 petitioners. The parties shall be at liberty to lead evidence on the point.

The Industrial Tribunal, Pune to decide and dispose of the same as early as possible and expeditiously."

10. As against this, the learned counsel for the respondent has cited the judgment of the Hon'ble Supreme Court in the case of Sain Steel Products v. Nalpal Singh and Ors. reported in 2001 LLR 566 in which it has been held as under:--

"2. In this Court the learned Counsel for the appellant raised several contentions of which two are important in relation to termination of the services of the respondent. Firstly, he contended that the appointment of the respondent was for a period and if it is for a period, his termination was in terms of Section 2(oo) proviso (bb); that on being brought to his notice that on the date of his termination of the services of respondent the said provision was not available, he did not pursue with this line of argument.

Secondly, he contended that the termination of services of the respondent was in terms of Section 25F of the Act as the order of termination disclosed 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 The Straw Board Manufacturing Co. Ltd., Saharanpur v. Govind, 1962 (4) FLR 403 (SC) and Management of Delhi Transport Undertaking v. Industrial Tribunal, Delhi and Anr., 1965 (10) FLR 236 (SC), to contend that even an offer of payment is as good as payment itself in terms of Section 25F of the Act. However, a reading of the letter dated 8-9-1995 on which reliance is placed, it is clear that all this 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 Section 25F or not. In these circumstances we cannot take this sentence to be making an offer in terms of Section 25F of the Act to comply with the terms thereof. 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."

11. The learned counsel for the respondent has thereafter cited the judgment of the Andhra Pradesh High Court in the case of Management of Oasis School, Hyderabad v. Labour Court, Himayatnagar, Hyderabad and Ors., reported in 1990 (II) CLR page 506 which reads thus :--

"17. In the light of the above discussion, my answer to the two questions which I have formulated above are :--

1. That it is competent for the retrenched employee to challenge the validity of the retrenchment even after receiving retrenchment compensation during the course of conciliation proceedings. The invalidity of the retrenchment was not cured by subsequent payment of the amounts due under Section 25F of the Industrial Disputes Act, nor did such receipt disentitle the workman to claim reinstatement if the retrenchment was found to be invalid when it was effected; and

2. That the normal relief in a case where retrenchment was found to be invalid for non-compliance with Section 25F of the Industrial Disputes Act is reinstatement, except in exceptional cases involving extraordinary circumstance which render it impossible or inequitable to direct such reinstatement."

12. The learned Counsel for the respondent has further cited a Division Bench Judgment of the Punjab and Haryana High Court in the case of Mani Ram v. Presiding Officer, Labour Court, Ambala, reported in 1997 (II) CLR 868 in which it has been held as under :--

"4. A perusal of the provisions of Section 25F would reveal that these provisos are mandatory in nature and Clause (b) of Section 25F postulates that no workman shall be retrenched until he has been paid compensation at the time of retrenchment. This Section contains mandate that the employer shall not retrench a workman unless retrenchment compensation has been paid prior or at the time of the retrenchment. In the present case the condition postulated in Section 25F(b) has not been complied with. It is no doubt correct that the workmen were directed to collect the retrenchment compensation on Feb. 17 and 18, 1983 but by this letter the management is not exonerated of its statutory liability. Also the management is not exonerated nor it can be said that it has complied with the provisions of Section 25F by sending the money order, which was sent after the relevant date, i.e., Feb. 20, 1983. Even the letter dated February 25, 1983 is not a compliance of the provisions of Section 25F of the Act. The learned Labour Court while passing the award has not correctly appreciated or interpreted the legal effect of the statutory provisions of Section 25F of the Act. The erroneous approach of the Labour Court while applying the provisions of Section 25F to the facts has caused miscarriage of justice to each of the workmen and which finding of the learned Labour Court cannot be upheld. It has been held in Shri Mohan Lal v. The Management of M/s Bharat Electronics Ltd., 1981 (II) LLJ 70 (S.C.), that it is well settled that where pre-requisite for valid retrenchment as laid down in Section 25F has not been complied with, retrenchment bringing about termination of service is ab initio void. Similar view was also taken in State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors. 1960 (1) LLJ 251 (S.C.), that failure to comply with the requirement of Section 25F which prescribes a condition precedent for a valid retrenchment renders the order of retrenchment invalid and inoperative. In other words it does not bring about cessation of service of the workman. The workman continues to be in service."

13. The learned counsel for the respondent has thereafter cited the judgment of the learned Single Judge of this Court in the case of R.D. Pillay v. Indian Dye stuff Industries Ltd., reported in 1992 (1) CLR 1005 in which it has been inter alia held as under :--

"11. While assessing the evidence before it regarding the allegation that the reason for termination of the workman's service was his bad performance and unsatisfactory work, the Labour Court failed to bear in mind the reason expressly alleged by the employer in the order of termination of service as the reason for termination of the workman's service. This the Labour Court utterly lost sight of. The Labour Court accepted the evidence of Barodawala and Kapadia as sufficient material to show that the performance and working of the workman was unsatisfactory. Here again, it is difficult to appreciate the line of reasoning adopted by the Labour Court. Kapadia was the Foreman directly under- whom the workman was working. One would have expected Kapadia to depose as to the unsatisfactory nature of the workman's work. All that he says is that he had 'an occasion' to observe the work of the workman and that the other workmen in the Fabrication Department used to say that the performance of the workman was not good. It is true that both Barodawala and Kapadia maintained that they had orally informed the workman to improve his performance, and that there was no such improvement shown by the workman. It is in this background that the Labour Court had to come to a conclusion as to whether the workman's job performance was unsatisfactory, as alleged. When an employer terminates the service of a workman without assigning any reason therefor or assigns the reason therefor, which is inconsistent with what he pleads before the Labour Court, the Labour Court ought to be more vigilant in scrutinizing the evidence on record, for it is not inconceivable that the material in support of reasons which were not indicated or inconsistent with the indicated reasons, could have been obtained post facto. If we scrutinize the evidence on record in this perspective, it would be difficult to take the view that the evidence on record justifies the finding that the work and performance of the workman were unsatisfactory, as made out. Obviously, it was an afterthought, and judicial discretion had to be exercised carefully when scrutinizing material produced in support of an after-thought. For this reason, I am of the view that the finding as to unsatisfactory nature of the workman's work is perverse, and needs to be interfered with."

14. The learned counsel for the respondent has cited the judgment of the Hon'ble Supreme Court of India in the case of Syed Yakoob v. K.S. Radhakrishnan and Ors., pertaining to the scope and power and exercise of jurisdiction under Article 226 of the Constitution of India by this Court.

15. A perusal of the documents and evidence on record I find that the finding of the learned Presiding Officer of the Labour Court is legal and valid. Firstly, the letter dated 5-1-1998 is a letter of simpliciter termination and nowhere it indicates any reason on the part of the petitioner for retrenchment of the respondent from service. Though it is undoubtedly true that Section 2(oo) of the Industrial Disputes Act, 1947 covers termination of various kinds for the purpose of treating the same as retrenchment but reading of the said provision of Section 2(oo) along with Section 25F of the Industrial Disputes Act, 1947, and in particular the judgment of the learned Single Judge of this Court in the case of R.D. Pillay v. Indian Dyestuff Industries reported in 1992 (1) CLR 1005 referred to above, it is clear that the termination letter must indicate in some manner that what is indicated by the petitioner is a retrenchment under the provisions of Section 25F of the Industrial Disputes Act, 1947 and the notice is intended to be issued under the provisions of Section 25FA of the Industrial Disputes Act, 1947. From the plain reading of the said notice dated 5-1-1998, I do not find any such intention of the petitioner company. I find that there is no compliance with the provisions of Section 25FA of the Industrial Disputes Act, 1947. It was thereafter contended that a letter dated 13-2-1998 which was sent to the respondent should be read along with the letter dated 5-1-1998 to make intention of the petitioner clear that what was intended by the petitioner was to retrench the employee and not to terminate his services. This argument does not impress me firstly because the said letter dated 13-2-1998 is not forming the part of the record before the learned Presiding Officer of the Labour Court as the same was not produced in evidence though there is some reference of the same in the course of the oral evidence. Secondly because the letter dated 13-2-1998 is issued much after a period of 30 days which is prescribed for a notice under Section 25FA of the said Act. The said letter dated 13-2-1998 do not refer to in any manner the said termination notice which has been issued on 5-1-1998. In the aforesaid circumstances, I find that the provisions of Section 25FA have not been complied with by the petitioner and there is breach thereof. Furthermore, I find that it is an admitted position on the evidence before the Labour Court insofar as employment of R. Laxmanan is concerned. The evidence which was led by both the parties before the Labour Court pertaining to the said appointment is briefly stated is as under. The evidence of Prem Dayaldas Bhatia, partner of M/s Manohar Brothers, inter alia, reads as under :--

Mr. Laxman is working at present with Manohar Bros. (Capacities) Pvt. Ltd., The second party was only working for Manohar Brothers. No other person is working in place of second party workman at present."

In cross-examination of Mr. R.K. Raghavan it has been stated as under :--

"There is a difference between the work of a stenographer and typist. It is not true to say that Mr. Laxman was only doing job of typist. Premchand Bhatia was giving dictation to Mr. Laxman."

16. Apart from the aforesaid position on evidence, I also find that the statement of claim filed by the respondent before the Labour Court in Paragraph 8(a) it has been specifically averred, particularly pertaining to the appointment of Laxman as under :--

8 (a) The workman further says and submits that prior to the termination of his services by the said principal partner, another Stenographer namely Shri R. Lakshmanan was appointed in the Company on 15th December 1997 at a lesser salary and the said Stenographer was in the services of the Company when the workman's services were terminated."

I also find that the written statement was also filed and in the said written statement there was no denial pertaining to the appointment of the said Mr. R. Lakshmanan. The only case of the petitioner before the Labour Court was that he was not appointed as a Stenographer but was appointed as a typist. Whether a person is appointed as a Stenographer or Typist falls in the same category and therefore it appears that there is a breach of Section 25G of the Industrial Disputes Act prescribing the procedure for retrenchment of the employees. Insofar as final reliefs is concerned, it was argued that the firm of M/s Manohar Brothers is suffering the business problem and is running into losses. It has been further contended that the said partnership business has also been dissolved and, therefore, it is not possible for the petitioner to reinstate the respondent in service. It has been further contended by the learned counsel for the petitioner that either this Court can exercise jurisdiction under Article 226 of the Constitution of India and fix the amount of compensation to be paid to the respondent in lieu of his reinstatement and backwages or alternatively remand the matter back to the Industrial Tribunal for adjudication of the aforesaid computation of compensation. In support of this contention that such power do exist in the writ Court under Article 226 of the Constitution of India various aforesaid judgments have been cited by the learned counsel for the petitioner. I do not desire to exercise such power under Article 226 of the Constitution of India at present for two reasons. Firstly, even if the petitioner is reinstated in service as directed by the 4th Labour Court, it will be still open to the petitioner to retrench him by following the procedure prescribed under the provisions of Section 25F of the Industrial Disputes Act, 1947 and, therefore, the said right to retrench him from service is still intact and is not taken away. Secondly, I find that there is a serious dispute between the parties about quantum of amount to be fixed for payment of compensation. I adjourned the matter so as to enable the parties to work out a settlement in respect of the quantum of the amount but both parties have reported failure on the said aspect on the basis that compensation sought and compensation offered there is a much difference in the amount. In the circumstances I find it inappropriate to exercise writ jurisdiction under Article 226 of the Constitution of India either to fix the compensation amount as contended by the parties. In the aforesaid circumstances, I find that there is no merit in the writ petition and the writ petition is accordingly dismissed with no order as to costs.

Parties to act on ordinary copy of this order duly authenticated by the Private Secretary of this Court.