Madras High Court
The Principal Chief Conservator Of ... vs P.Ganesan on 14 March, 2025
Author: M.Dhandapani
Bench: M. Dhandapani
W.P.No.38009 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.03.2025
CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
W.P.No.38009 of 2015
and
M.P.No.1 of 2015
1.The Principal Chief Conservator of Forests,
Panagal Maligai, Saidapet, Chennai – 15.
2.The Conservator of Forests,
Erode Circle, Roja Nagar,
Veerappansathiram, Erode – 636 004.
3.The District Forest Officer,
Namakkal Forest Division,
Namakkal – 637 001. ... Petitioners
Vs.
1.P.Ganesan
2.R.Chinnusamy
3.N.Ganesan
4.M.Muthu
5.The Deputy Commissioner of Labour,
(The Tribunal Constituted under the Provisions
of the Minimum Wages Act,)
Salem. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari, calling for the records of the fifth
respondent in M.W.No.66/2011 dated 05.01.2015 and quash the same.
Page No.1 of 13
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W.P.No.38009 of 2015
For Petitioner : Mr.S.Rajesh
Government Advocate (Forests)
For Respondents : No appearance [R1 & R4]
Not Ready Notice [R2 & R3]
Mr.K.Surendran
Additional Government Pleader [R5]
*****
ORDER
The petitioners impugned an order passed by the 2nd respondent
directing the petitioners to pay to the respondents 1 to 4 the difference
amount of wages as payable under the Minimum Wages Act, 1948.
2. The issue is no longer res-integra in view of the order passed by
the learned Single Judge of this Court vide order dated 08.08.2011 in
W.P.No.24601 of 2005 etc. and batch. In the said order the learned
Single Judge has rejected the similar contentions raised by the petitioners
therein. The said order was taken on appeal.
3. The learned first Bench vide its order dated 17.10.2012 in
W.A.No.2183 of 2012 etc. and batch confirmed the order passed by the
learned Single Judge and dismissed the writ appeals. The relevant
paragraphs are extracted hereunder :
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''7. It is seen that the primary ground on which
the challenge to the fixation of minimum wages was on
the ground that the authority under the Act condoned the
enormous delay in filing such applications. The learned
Single Judge after referring to the earlier decision of this
Court rightly held that the objection as regards the delay
was not sustainable and has no merits. The learned Single
Judge after referring to the decision of the Supreme Court
in Chandra Bhavan Boarding and Lodging, Bangalore vs.
The State of Mysore and another, 1970 2 LLJ 408, held
that the main object of the Act is to prevent sweated
labour as well as exploitation of unorganised labour and
it is the duty of the State to see that at least minimum
wages are paid to the employees irrespective of the
capacity of the industry or unit to pay the same.
Therefore, the learned Single Judge held that there is no
distinction between private employer and the Government
employer in the matter of payment of minimum wages.
8. The other contention that the workmen
having been paid consolidated wages, cannot claim
anything extra was also rightly rejected by the learned
Single Judge. In the batch of writ petitions filed
challenging the award of the Labour Court which was
regarding the non-employment of social forestry workers,
the learned Single Judge after taking note of the findings
recorded by the Labour Court in paragraph 15 of the
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award, in which findings of fact were recorded held that
the workmen were terminated from their services and the
conditions precedent under Section 25F of the I.D. Act
were not followed before sending them out of the service,
upheld the award.
9. As regards the contention that the appellants
were discharging sovereign function and therefore, were
excluded from the purview of the I.D. Act, the learned
Single Judge rightly rejected the said contention as the
earlier award was implemented by the Government. At
this stage, we may refer to certain findings recorded by
the learned Single Judge, while dismissing the writ
petitions:-
40.If workmen were employed and
their services were no longer required by the
employer and it was transferred to an another
employer, then unless and until their
employment is continued on the same terms
and conditions by the new employer, there is
no obligation for the workmen to go for a new
employer. In such circumstance, the old
employer will have to retrench such unwilling
workers by following the procedure under
Section 25F of the I.D. Act and must pay
retrenchment compensation. This is the essence
of Section 25FF A of the ID Act. In the present
circumstances, the petitioners cannot leave the
workmen in lurch by stating that they should
get employment with Rural Development
Department and they were no way responsible
about the happenings in the Rural development
Department after all the Government is the
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same entity and for the sake of convenience, it
is functioning under two different ministries
and departments. Therefore, the fact that the
workmen's services were deemed to have been
terminated by the petitioners department has to
be accepted without any contradiction.
43.Therefore, in the light of these facts, it must
be held that the workmen were terminated from
their services and the condition precedent
under Section 25F of the I.D. Act was not
followed before sending them out of services. If
the condition under Section 25F was not
followed, the legal consequences have been set
out by the Supreme Court vide judgment in
Anoop Sharma v. Executive Engineer, Public
Health Division No. 1, Panipat (Haryana)
reported in (2010) 5 SCC 497. In paragraphs
16 to 22, it was observed as follows:
"16.An analysis of the above reproduced
provisions shows that no workman employed in
any industry who has been in continuous
service for not less than one year under an
employer can be retrenched by that employer
until the conditions enumerated in clauses (a)
and (b) of Section 25-F of the Act are satisfied.
In terms of clause (a), the employer is required
to give to the workman one month's notice in
writing indicating the reasons for retrenchment
or pay him wages in lieu of the notice. Clause
(b) casts a duty upon the employer to pay to the
workman at the time of retrenchment,
compensation equivalent to fifteen days'
average pay for every completed year of
continuous service or any part thereof in
excess of six months.
17. This Court has repeatedly held that
Sections 25-F(a) and (b) of the Act are
mandatory and non-compliance therewith
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renders the retrenchment of an employee
nullity—State of Bombay v. Hospital Mazdoor
Sabha14, Bombay Union of Journalists v. State
of Bombay15, SBI v. N. Sundara Money16,
Santosh Gupta v. State Bank of Patiala17,
Mohan Lal v. Bharat Electronics Ltd.18, L.
Robert D'Souza v. Southern Railway19,
Surendra Kumar Verma v. Central Govt.
Industrial Tribunal-cum-Labour Court20,
Gammon India Ltd. v. Niranjan Dass21,
Gurmail Singh v. State of Punjab22 and
Pramod Jha v. State of Bihar23.
18. This Court has used different expressions
for describing the consequence of terminating
a workman's service/employment/engagement
by way of retrenchment without complying with
the mandate of Section 25-F of the Act.
Sometimes it has been termed as ab initio void,
sometimes as illegal per se, sometimes as
nullity and sometimes as non est. Leaving aside
the legal semantics, we have no hesitation to
hold that termination of service of an employee
by way of retrenchment without complying with
the requirement of giving one month's notice or
pay in lieu thereof and compensation in terms
of Sections 25-F(a) and (b) has the effect of
rendering the action of the employer as nullity
and the employee is entitled to continue in
employment as if his service was not
terminated.
19. The question whether the offer to pay
wages in lieu of one month's notice and
retrenchment compensation in terms of clauses
(a) and (b) of Section 25-F must accompany
the letter of termination of service by way of
retrenchment or is it sufficient that the
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employer should make a tangible offer to pay
the amount of wages and compensation to the
workman before he is asked to go was
considered in National Iron and Steel Co. Ltd.
v. State of W.B.24 The facts of that case were
that the workman was given notice dated 15-
11-1958 for termination of his service with
effect from 17-11-1958. In the notice, it was
mentioned that the workman would get one
month's wages in lieu of notice and he was
asked to collect his dues from the cash office
on 20-11-1958 or thereafter during the
working hours. The argument of the Additional
Solicitor General that there was sufficient
compliance with Section 25-F was rejected by
this Court by making the following
observations: (AIR p. 1210, para 9)
“9. The third point raised by the Additional
Solicitor General is also not one of substance.
According to him, retrenchment could only be
struck down if it was mala fide or if it was
shown that there was victimisation of the
workman, etc. Learned counsel further argued
that the Tribunal had gone wrong in holding
that the retrenchment was illegal as Section
25-F of the Industrial Disputes Act had not
been complied with. Under that section, a
workman employed in any industry should not
be retrenched until he had been given one
month's notice in writing indicating the
reasons for retrenchment and the period of
notice had expired, or the workman had been
paid in lieu of such notice, wages for the
period of the notice. The notice in this case
bears the date 15-11-1958. It is to the effect
that the addressee's services were terminated
with effect from 17th November and that he
would get one month's wages in lieu of notice
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of termination of his service. The workman was
further asked to collect his dues from the cash
office on 20-11-1958 or thereafter during the
working hours. Manifestly, Section 25-F had
not been complied with under which it was
incumbent on the employer to pay the
workman, the wages for the period of the
notice in lieu of the notice. That is to say, 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. As
there was no compliance with Section 25-F, we
need not consider the other points raised by the
learned counsel.”
20. In SBI v. N. Sundara Money16 the Court
emphasised that the workman cannot be
retrenched without payment, at the time of
retrenchment, compensation computed in terms
of Section 25-F(b).
21. The legal position has been beautifully
summed up in Pramod Jha v. State of Bihar23
in the following words: (SCC pp. 624-25, para
10)
“10. … The underlying object of Section 25-F
is twofold. Firstly, a retrenched employee must
have one month's time available at his disposal
to search for alternate employment, and so,
either he should be given one month's notice of
the proposed termination or he should be paid
wages for the notice period. Secondly, the
workman must be paid retrenchment
compensation at the time of retrenchment, or
before, so that once having been retrenched
there should be no need for him to go to his
employer demanding retrenchment
compensation and the compensation so paid is
not only a reward earned for his previous
services rendered to the employer but is also a
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sustenance to the worker for the period which
may be spent in searching for another
employment. Section 25-F nowhere speaks of
the retrenchment compensation being paid or
tendered to the worker along with one month's
notice; on the contrary, clause (b)
expressly provides for the payment of
compensation being made at the time of
retrenchment and by implication it would be
permissible to pay the same before
retrenchment. Payment or tender of
compensation after the time when the
retrenchment has taken effect would vitiate the
retrenchment and non-compliance with the
mandatory provision which has a beneficial
purpose and a public policy behind it would
result in nullifying the retrenchment.”
(emphasis in original)
22. If the workman is retrenched by an oral
order or communication or he is simply asked
not to come for duty, the employer will be
required to lead tangible and substantive
evidence to prove compliance with clauses (a)
and (b) of Section 25-F of the Act.
45.6.Pursuant to the said notification, the
Government had also fixed minimum wages for
various employments under the Forest
Department by including for the posts of Plot
Watchers and Social Forestry Workers from
time to time. It had also provided dearness
allowance linked to the consumer price index
on variable basis. Further it is only by
G.O.(2D)No.82, Labour and Employment
Department, dated 27.09.2002 by exercise of
power under Section 26(2), the State
Government had excluded the social forestry
workers of the Forest Department employed in
the employment of forestry from the provisions
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of the Minimum Wages Act. The reason for
exclusion was given that the social forestry
workers were likely to be absorbed in regular
posts of the Forest Watcher in the Forest
Department on the basis of seniority. By the
notification, only the social forestry workers
alone were excluded, whereas the other
employment in the Forest were retained. It is
well known fact that the minimum wage can be
notified only for scheduled employment and the
beneficiary of such notified minimum wages
must be an employee within the meaning of
Section 2(i) of the Minimum Wages Act. The
said definition of employee under Section 2(i)
of the Minimum Wages Act had only excluded
the Armed Forces of the Union. The said
definition of employee is more or less in
parameteria with the main part of the
definition of the term "workmen" defined under
Section 2(s) of the I.D. Act.
47.The next substantive contention raised by
the department was that no relief can be given
to the workmen in view of an inordinate delay
in raising the disputes and in such
circumstances, no backwages can be granted.
Even this question is no longer res integra. The
Supreme Court in GM, Haryana Roadways v.
Pawan Kumar reported in (2005) 12 SCC 459
in paragraph 6 had held as follows:
"6.It will appear from the facts stated above
that though the respondent was prevented from
working by the appellant Roadways after
December 1991 he did not raise a dispute till
14-10-1995. It is settled law that the mere
factum of delay in raising a dispute by itself
does not bring the dispute to an end. The delay
in raising the dispute, however, may be taken
into account in the matter of grant of relief."
10. In view of the cogent reasons recorded by
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the learned Single Judge, confirming the order passed by
the authority under the Act as well as the award of the
Labour Court, we find no grounds to interfere with the
concurrent findings so recorded.''
4. Not withstanding defeat both before the Writ Court and
Appellate Court, the petitioners herein approached the Hon'ble Supreme
Court via Special Leave Petition. The said Special Leave Petitions were
also dismissed vide order dated 30.06.2014. Therefore, the dictum laid
down by the learned Single Judge has become final.
5. Following the same, the present writ petition deserves to be
dismissed and it is accordingly, dismissed. No Costs. Consequently,
connected miscellaneous petition is closed.
14.03.2025
Index : Yes / No (5/5)
Speaking order / Non-speaking order
Neutral Citation Case : Yes / No
sp
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To
1.The Principal Chief Conservator of Forests,
Panagal Maligai,
Saidapet, Chennai – 15.
2.The Conservator of Forests,
Erode Circle, Roja Nagar,
Veerappansathiram, Erode – 636 004.
3.The District Forest Officer,
Namakkal Forest Division,
Namakkal – 637 001.
4.The Deputy Commissioner of Labour,
(The Tribunal Constituted under the Provisions
of the Minimum Wages Act,)
Salem.
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M.DHANDAPANI, J.
sp
14.03.2025
(5/5)
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