WPMS/655/2012
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IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
     ON THE 21ST DAY OF SEPTEMBER, 2021
                            BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


       Writ Petition (M/S) No. 655 of 2012

BETWEEN:

Pushpa Tiwari.                                      ....Petitioner
      (By Mr. Pankaj Miglani, Advocate)


AND:

BHEL Ladies Club.                                ...Respondent
       (By Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli,
       Advocate)


                          JUDGMENT

Petitioner was engaged as Typist in ladies club of BHEL at Haridwar. She was retrenched from service, vide order dated 13.08.1998 against which she raised an industrial dispute, which was referred for adjudication to Labour Court, Dehradun vide order dated 25.05.2005 and was registered as Adjudication Case No. 122 of 2005.

2. After creation of separate Labour Court at Haridwar, the aforesaid case was transferred to Labour Court, Haridwar and was re-numbered as Adjudication Case No. 435 of 2009. Learned Presiding Officer, Labour Court, Haridwar has decided the reference against petitioner, vide

award dated 21.07.2011, which is under challenge in this writ petition. The impugned award is on record as Annexure No.-9 to the writ petition.

3. Learned Labour Court had framed two points for adjudication, which are as follows:-

"1. Whether the workman had worked for 240 days in a year or in twelve calendar months.

2. Whether the employer has adopted the procedure as prescribed under law before the termination of workman's service."

4. The finding recorded on point no. 1 is that petitioner had worked for more than 240 days in a calendar year, however, the reference was decided against the petitioner based on finding returned on point no. 2 that procedure, as prescribed under Section 6(N) of Uttar Pradesh Industrial Disputes Act, 1947, was followed while terminating petitioner's services.

5. I have gone through the entire award. The only discussion in support of finding on point no. 2 is in the last page of the impugned award, which reads as under:-

"I perused the file and I do not any find force in the submission of workman because the employer has contradicted these ground in his Written Statement/Rejoinder. There is substantive evidence on record to show that the employer has followed these rules. As such, the workman is not entitled to get the benefit of the above noted ground.

Considering all the facts and circumstances of the case and evidence as discussed above, I am of the view that workman has proved that the had worked for more than 240 days in a calendar year with the employer but before his termination, the employer has followed and adopted the procedure as prescribed by Section 6(N) of the Act 1947 and Rule 42 of the Rules 1957."

6. Section 6 (N) of Uttar Pradesh Industrial Disputes Act, 1947, which lays down the procedure for retrenchment, reads as under:-

"[6N. 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;

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 State Government.]"

7. From perusal of the aforesaid provision, it is apparent that before retrenchment of a workman, the employer has to fulfil certain conditions, which are enumerated in clause (a), (b) & (c) of the said Section. In the absence of fulfilment of these conditions, the retrenchment of an employee would be a nullity, as held by Hon'ble supreme Court in the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd., reported in (2014) 11 SCC 85. Relevant extract of the said judgment is reproduced below:-

"33. Section 6-N of the U.P. ID Act which is in pari materia with Section 25-N of the ID Act reads thus:

"6-N. 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 notice:

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies the date of termination of service;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen day's 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 State Government."

34. Evidently, the abovesaid mandatory procedure has not been followed in the present case. Further, it has been held by this Court in Anoop Sharma v. Public Health Divisionas under:

"16. ... 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 renders the retrenchment of an employee nullity--State of Bombay v. Hospital Mazdoor Sabha, Bombay Union of

Journalists v. State of Bombay, SBI v. N. Sundara Money, Santosh Gupta v. State Bank of Patiala, Mohan Lal v. Bharat Electronics Ltd., L. Robert D'Souza v. Southern Railway, Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, Gammon India Ltd. v. Niranjan Das, Gurmail Singh v. State of Punjab and Pramod Jha v. State of Bihar.

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. (emphasis supplied)

34.1. Therefore, in the light of the law provided in the ID Act and its State counterpart through the U.P. ID Act and also on the basis of the legal principle laid down by this Court, we hold that the termination of service of the appellant was illegal and void ab initio."

8. In the present case, although a specific point for determination was formulated as to whether procedure prescribed under law was followed while terminating petitioner's services, however, there is no discussion on the aforesaid point in the impugned award. Learned Labour Court has merely observed that there is substantive evidence on record to show that the procedure, as prescribed in the statute was followed.

9. Since the finding on point no. 2 is absolutely cryptic, therefore, it cannot be sustained in the eyes of law.

10. In such view of the matter, the impugned award dated 21.07.2011 passed by learned Labour Court, Haridwar in Adjudication Case No. 435 of 2009 is set-aside. Accordingly, the writ petition is allowed and the matter is remanded back to learned Labour Court, Haridwar for re-hearing on second point for determination.

11. Since the reference was made in the year 2005, therefore, this Court hopes and expects that decision on point no. 2 shall be taken by learned Labour Court, in accordance with law, as early as possible, preferably, within six months from the date of production of certified copy of this order.

(MANOJ KUMAR TIWARI, J.) Navin