# K.V. ANIL MITHRA & ANR v. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT & ANR

- **Citation:** [2021] 11 S.C.R. 297
- **Court:** Supreme Court of India
- **Decided:** 2021-10-27
- **Case number:** Civil Appeal No.9067 of 2014
- **Bench:** Ajay Rastogi, Abhay S. Oka
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-v-anil-mithra-anr-v-sree-sankaracharya-university-of-sanskrit-anr-34753
- **Pages:** 24

## Headnote

Industrial Disputes Act, 1947 - ss.25F, 25B - Termination -
Retrenchment- Violation of s.25F-Respondent-University
regularized appellants-workmen serving on daily wage basis in nonteaching staff category - Objections raised w.r.t the manner of
regularization- De-regularised and terminated - Order of deregularisation upheld by Division Bench of High Court, question
of non-observance of the provisions of 1947 Act left open - Dispute
raised by appellants - Industrial Tribunal held termination to be in
violation of s.25F, award passed- Set aside by Single Judge - Order
confirmed by Division Bench - On appeal, held: Nature of
employment and the manner in which the workman has been
employed is not significant while invoking the mandatory compliance
of s.25F - In a case where the workman has been in continuous
service for more than 240 days in the preceding 12 months before
the alleged date of terminationas contemplated u/s.25B, the employer
is under an obligation to comply with the twin conditions u/Clauses
(a) and (b) of s.25F- In the present case, the appellants served
from the year 1993-1997, their services were terminated in sequel
to order dtd.24.03.97- Appointments were made on daily wage basis
under the orders of the Vice Chancellor, the competent/appointing
authority- Merely because the appointments were not in accordance
with the procedure prescribed under the Ordinance would not
disentitle the appellants from claiming protection under provisions
of the 1947 Act- Termination of the appellants was in violation of
s.25F - Impugned judgment set aside- Award modified- Sree
Sankaracharya University of Sanskrit Ordinance, 1993.
Industrial Disputes Act, 1947 -ss.2(g), (j), (k), (s), (oo) - Held:
Every termination for any reason whatsoever provided it does not
fall in any of the exception clause of s.2(oo), is a retrenchment.
[2021] 11 S.C.R. 297
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SUPREME COURT REPORTS
[2021] 11 S.C.R.
Industrial Disputes Act, 1947 - Scheme of the Act - Discussed.
Industrial Disputes Act, 1947- s.25F - Non-observance of
mandatory requirement of - Appropriate relief workman is entitled
for - Discussed.
Partly allowing the appeals, the Court
HELD: 1.1 The termination which was given effect to by
the 1st respondent was a retrenchment as defined under Section
2(oo), Industrial Disputes Act, 1947. The term 'retrenchment'
leaves no manner of doubt that the termination of the workman
for any reason whatsoever, otherwise than as punishment inflicted
by way of disciplinary action are being termed as retrenchment
with certain exceptions and it is not dependent upon the nature
of employment and the procedure pursuant to which the workman
has entered into service. In continuation thereof, the condition
precedent for retrenchment has been defined under Section 25F
of the Act 1947 which postulates that workman employed in any
industry who has been in continuous service for not less than
one year can be retrenched by the employer after clauses (a) and
(b) of Section 25F have been complied with and both the clauses
(a) and (b) of Section 25F have been held by this Court to be
mandatory and its non-observance is held to be void ab initio bad
and what is being the continuous service has been defined under
Section 25B of the Act 1947. The scheme of the Act 1947
contemplates that the workman employed even as a daily wager
or in any capacity, if has worked for more than 240 days in the
preceding 12 months from the alleged date of termination and if
the employer wants to terminate the services of such a workman,
his services could be terminated after due compliance of the twin
clauses (a) and (b) of Section 25F of the Act 1947 and to its
non-observance held the termination to be void ab initio bad.
[Para 20, 22 and 23][307-F-G; 308-E-G; 310-C-D]
1.2 The salient fact which has to be considered is whether
the employee who has been retrenched is a workman under
Section 2(s) and is employed in an industry defined under Section
2(j) and who has been in co

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297
K.V. ANIL MITHRA & ANR.
v.
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &
ANR.
(Civil Appeal No(s). 9067 of 2014)
OCTOBER 27, 2021
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Industrial Disputes Act, 1947 - ss.25F, 25B - Termination -
Retrenchment- Violation of s.25F-Respondent-University
regularized appellants-workmen serving on daily wage basis in nonteaching staff category - Objections raised w.r.t the manner of
regularization- De-regularised and terminated - Order of deregularisation upheld by Division Bench of High Court, question
of non-observance of the provisions of 1947 Act left open - Dispute
raised by appellants - Industrial Tribunal held termination to be in
violation of s.25F, award passed- Set aside by Single Judge - Order
confirmed by Division Bench - On appeal, held: Nature of
employment and the manner in which the workman has been
employed is not significant while invoking the mandatory compliance
of s.25F - In a case where the workman has been in continuous
service for more than 240 days in the preceding 12 months before
the alleged date of terminationas contemplated u/s.25B, the employer
is under an obligation to comply with the twin conditions u/Clauses
(a) and (b) of s.25F- In the present case, the appellants served
from the year 1993-1997, their services were terminated in sequel
to order dtd.24.03.97- Appointments were made on daily wage basis
under the orders of the Vice Chancellor, the competent/appointing
authority- Merely because the appointments were not in accordance
with the procedure prescribed under the Ordinance would not
disentitle the appellants from claiming protection under provisions
of the 1947 Act- Termination of the appellants was in violation of
s.25F - Impugned judgment set aside- Award modified- Sree
Sankaracharya University of Sanskrit Ordinance, 1993.
Industrial Disputes Act, 1947 -ss.2(g), (j), (k), (s), (oo) - Held:
Every termination for any reason whatsoever provided it does not
fall in any of the exception clause of s.2(oo), is a retrenchment.
[2021] 11 S.C.R. 297
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[2021] 11 S.C.R.
Industrial Disputes Act, 1947 - Scheme of the Act - Discussed.
Industrial Disputes Act, 1947- s.25F - Non-observance of
mandatory requirement of - Appropriate relief workman is entitled
for - Discussed.
Partly allowing the appeals, the Court
HELD: 1.1 The termination which was given effect to by
the 1st respondent was a retrenchment as defined under Section
2(oo), Industrial Disputes Act, 1947. The term 'retrenchment'
leaves no manner of doubt that the termination of the workman
for any reason whatsoever, otherwise than as punishment inflicted
by way of disciplinary action are being termed as retrenchment
with certain exceptions and it is not dependent upon the nature
of employment and the procedure pursuant to which the workman
has entered into service. In continuation thereof, the condition
precedent for retrenchment has been defined under Section 25F
of the Act 1947 which postulates that workman employed in any
industry who has been in continuous service for not less than
one year can be retrenched by the employer after clauses (a) and
(b) of Section 25F have been complied with and both the clauses
(a) and (b) of Section 25F have been held by this Court to be
mandatory and its non-observance is held to be void ab initio bad
and what is being the continuous service has been defined under
Section 25B of the Act 1947. The scheme of the Act 1947
contemplates that the workman employed even as a daily wager
or in any capacity, if has worked for more than 240 days in the
preceding 12 months from the alleged date of termination and if
the employer wants to terminate the services of such a workman,
his services could be terminated after due compliance of the twin
clauses (a) and (b) of Section 25F of the Act 1947 and to its
non-observance held the termination to be void ab initio bad.
[Para 20, 22 and 23][307-F-G; 308-E-G; 310-C-D]
1.2 The salient fact which has to be considered is whether
the employee who has been retrenched is a workman under
Section 2(s) and is employed in an industry defined under Section
2(j) and who has been in continuous service for more than one
year can be retrenched provided the employer complies with the
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twin conditions provided under clauses (a) and (b) of Section 25F
of the Act 1947 before the retrenchment is given effect to. The
nature of employment and the manner in which the workman has
been employed is not significant for consideration while invoking
the mandatory compliance of Section 25F of the Act 1947. This
can be noticed from the term 'retrenchment' as defined under
Section 2(oo) which in unequivocal terms clearly postulates that
termination of the service of a workman for any reason whatsoever
provided it does not fall in any of the exception clause of Section
2(oo), every termination is a retrenchment and the employer is
under an obligation to comply with the twin conditions of Section
25F of the Act 1947 before the retrenchment is given effect to.
In every retrenchment, the employer is not under an obligation
to comply with the twin conditions referred to under clauses (a)
and (b) of Section 25F of the Act but in a case where the workman
has been in continuous service for more than 240 days in the
preceding 12 months before the alleged date of termination as
contemplated under Section 25B, the employer is under an
obligation to comply with the twin conditions referred to under
clauses (a) and (b) of Section 25F of the Act 1947. Such nonobservance has been termed to be void ab initio bad and
consequence in the ordinary course has to follow by reinstatement
with consequential benefits but it is not held to be automatic and
what alternative relief the workman is entitled for on account of
non-observance of mandatory requirement of Section 25F of the
Act 1947 is open to be considered by the Tribunal/Courts in the
facts and circumstances of each case. In the instant case, the
appellants had served as a daily wager in non-teaching staff
category from the year 1993-1997 and their services were
terminated in sequel to the order dated 24th March, 1997 pursuant
to which their services were de-regularized. [Paras 24, 25, 30,
31 and 34][310-F-H; 311-A; 316-C-E; 318-B]
Punjab Land Development and Reclamation
Corporation Ltd., Chandigarh Vs. Presiding Officer,
Labour Court, Chandigarh and Others 1990 (3) SCC
682 : [1990] 3 SCR 111- followed.
K.V. ANIL MITHRA v. SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT
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State Bank of India Vs. Shri N. Sundara Money 1976
(1) SCC 822 : [1976] 3 SCR 160; L. Robert D'Souza
Vs. Executive Engineer, Southern Railway and Another
1982 (1) SCC 645 : [1982] 3 SCR 251; Bharat Sanchar
Nigam Limited Vs. Bhurumal 2014 (7) SCC 177 : [2013]
(16) SCR 1023 - relied on.
1.3 What has been observed by the Division Bench in its
Judgment in the earlier round of litigation may not have any
relevance so far as the question which has been examined by the
Tribunal in answering the reference in affirmative terms regarding
non-observance of Section 25F of the Act 1947 and its
consequential effect. Appointments are made in the instant case
on daily wage basis under the orders of the Vice Chancellor who
is the competent/appointing authority and merely because their
appointments are not in accordance with the procedure prescribed
under the Ordinance would not disentitle them from claiming
protection under provisions of the Act 1947. [Paras 35, 37]
[318-C-D, H; 319-A]
1.4 In the facts and circumstances of the instant cases and
looking into the nature of service rendered by the appellants as
daily wager for a short period, while upholding the termination of
the appellants being in violation of Section 25F of the Act 1947, a
lumpsum monetary compensation of Rs.2,50,000/- is awardedto
each of the appellants-workmen in full and final satisfaction of
the dispute in lieu of right to claim reinstatement with 50% back
wages as awarded by the Tribunal. The impugned judgment of
the High Court is set aside and the Award of the Industrial
Tribunal is modified to the extent indicated. [Paras 42, 44]
[319-H; 320-A-B, C]
R. Vishwanatha Pillai Vs. State of Kerala and Others
2004 (2) SCC 105 : [2004] (1) SCR 360; Rajasthan
Tourism Development Corporation Ltd. And Another Vs.
Intejam Ali Zafri 2006 (6) SCC 275 : [2006] (3) Suppl.
SCR 533; Satluj Jal Vidyut Nigam Vs. Raj Kumar
Rajinder Singh (Dead) through legal representatives and
Others 2019 (14) SCC 449 : [2018] 12 SCR 282;
Punjab Urban Planning and Development Authority
and Another Vs. Karamjit Singh 2019 (16) SCC 782 :
[2019] (5) SCR 864 - held inapplicable.
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Nagar Mahapalika (Now Municipal Corpn.) Vs. State
of U.P. and Others 2006 (5) SCC 127 : [2006] (1) Suppl.
SCR 681; District Development Officer and Another v.
Satish Kantilal Amralia 2018 (12) SCC 298 : [2017]
(12) SCR 414 - referred to.
Case Law Reference
[1976] 3 SCR 160
relied on
Para 14
[1982] 3 SCR 251
relied on
Para 14
[1990] 3 SCR 111
followed
Para 14
[2006] 1 Suppl. SCR 681
referred to
Para 14
[2004] 1 SCR 360
held inapplicable
Para 17
[2006] 3 Suppl. SCR 533
held inapplicable
Para 17
[2018] 12 SCR 282
held inapplicable
Para 17
2019] 5 SCR 864
held inapplicable
Para 17
[2013] 16 SCR 1023
relied on
Para 32
2017] 12 SCR 414
referred to
Para 33
CIVIL APPELLATE JURISDICTION: Civil Appeal No.9067 of
2014.
From the Judgment and Order dated 04.01.2010 of the High Court
of Kerala at Ernakulam in W.A. No.2881 of 2009.
With
Civil appeal No. 9068 of 2014
R. Basant, Sr. Adv., M. T. George, Mrs. Susy Abrahm, Johns
George, K. Rajeev, E. M. S. Anam, Advs. for the appearing parties.
The Judgment of the Court was delivered by
AJAY RASTOGI, J.
1. The instant appeals have been preferred against the judgment
and order dated 4th January, 2010 setting aside the Award passed by the
Industrial Tribunal dated 14th November, 2005 answering the reference
in affirmative terms holding the termination of the appellants-workmen
to be void being in violation of Section 25F of the Industrial Disputes
K.V. ANIL MITHRA v. SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT
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Act, 1947(hereinafter being referred to as the "Act 1947") with a direction
of treating the workmen deemed to be in service till their services are
validly terminated with 50% back wages.
2. The brief facts culled out and relevant for the purpose are that
the 1st respondent-University was established by an Ordinance viz. Sree
Sankaracharya University of Sanskrit Ordinance, 1993. The appointments
of non-teaching staff in different categories, viz., Watchman, Attenders,
Peons, Sweepers, Assistant Cooks, Assistant Matrons, Drivers, Helpers,
Waiters, Gardeners, Clerical Assistants were made at different points of
time on daily wage basis during the period 1993-1995 under the orders
of the then Vice Chancellor.
3. Their services came to be regularized by the 1st respondent
giving them the status of regular employees by an order dated 7th May,
1996. It appears that as some objections were raised questioning the
manner in which the regularisation had taken place, the 1st respondent
by a later order dated 24th March, 1997 de-regularised the non-teaching
staff/employees and in consequence thereof, their services came to be
terminated. So far as the order of de-regularisation passed by the 1st
respondent dated 24th March, 1997 is concerned, it has attained finality
after the Division Bench of the High Court of Kerala has upheld the
order of de-regularisation dated 24th March, 1997 taking note of the
initial engagement as daily wager and the appointment being without
going through the process of selection as prescribed under the scheme
of University Ordinance recorded a finding that the order of deregularisation passed by the authorities is valid and justified and left the
question of non-observance of the provisions of the Act 1947 open to be
examined in the appropriate proceedings known to law.
4. It may be further noticed that the grievance of the teaching and
non-teaching staff was jointly examined by the Division Bench of the
High Court while deciding the writ appeal under its common impugned
judgment dated 23rd March, 2000. Para 10 of the judgment of the Division
Bench of the High Court dated 23rd March, 2000 relevant for the purpose
is reproduced as under:-
10. Other point raised related to non-observance of the
requirements of the ID Act. As rightly observed by learned single
Judge, same is not to be decided in Article 226 applications since
appellants, if they are so advised and feel that they have a right
under the ID Act, can approach the forum. This position was
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highlighted by apex Court in Basant Kumar Sarkar and Others
Vs. Eagle Rolling Mills Ltd.(AIR 1954 SC 1200) and Rajasthan
State Road Transport Corpn. Vs. Krishna(JT 1005(4) SC 343).
5. The appellants raised an industrial dispute pursuant to which
the appropriate Government made the reference order dated 8th April,
2003 for adjudication by the Industrial Tribunal as under:-
 "Whether the de-regularization of regularized employees in the
Annexure appended and their subsequent termination by the
management of Sree Sankaracharya University of Sanskrit is legal
and justifiable? If not what relief they are entitled to?"
6. It may be noticed that the nature of appointment as a daily
wager was not the subject matter of reference and undisputedly, so far
as the order of de-regularisation dated 24th March, 1997 is concerned,
that was not open to be examined by the Tribunal pursuant to a reference
made as it has attained finality by the judgment of the Division Bench of
the High Court after recording a finding that the 1st respondent-University
was justified in passing the order of de-regularisation of such employees
who were appointed without going through the process of selection
prescribed under the University Ordinance and were appointed on daily
wage basis and such appointments could not have been regularised by
the 1st respondent-University.
7. The limited question in terms of the reference open to be
examined by the Tribunal was as to whether the termination which has
been given effect to by the 1st respondent was legal and justified and if
not, what relief the employee was entitled to.
8. The Industrial Tribunal, after taking into consideration the
material on record, returned a finding that the termination of the appellants
from service is in violation of Section 25F of the Act 1947 and as a
natural consequence held the workman employee to be deemed in service
till their services are validly terminated with 50% back wages. The
relevant para 9 of the Award is as under:-
9. If we go through the pleadings in the written statement, it can
be seen that the service of the workmen which had started in
various dates in the year 1993, 94,95 and 96 had been regularized
by the university later through a proceedings dated 12.4.1996.
From the date of commencement of their service to the date of
de-regularization of their services, all of them were having
K.V. ANIL MITHRA v. SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT [AJAY RASTOGI, J.]
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continuous service. About one year after from 12.4.96, their
services were terminated on the basis of decision of the syndicate
of the university dated 23.3.97. Such a decision was as per the
judgment of the Division Bench of the High Court in the earlier
writ appeal judgment. Therefore, from these admitted facts, it
can be seen that all these workmen were having continuous service
and they had more than 240 days of service to their credit service.
The management does not have any case that the terminations
effected on these workmen concerned in this dispute were in
compliance with Section 25-F of the I.D. Act. On that sole ground
it has to be declared that the terminations effected in the case of
workmen were in violation of Sec. 25-F of the I.D. Act. Therefore,
they would deem to be in service till their services are validly
terminated strictly in accordance with Industrial Disputes Act. In
view of various decisions of the Supreme Court and the settled
position laid thereon, the only relief which can be granted in this
case is by way of declaration that the termination of all workmen
who had to their credit 240 days of continuous as explained in
Sec. 25 were illegal. As a natural consequence, all of such
workmen would deem to be in service till their services are validly
terminated. Because of that they entitled for full back wages also
in the ordinary course. However, such entitlement cannot be
treated as a matter of rule always. I think it will be appropriate, if
all the workmen concerned are given 50% of the backwages.
9. The Award of the Tribunal dated 14th November, 2005 came to
be challenged at the instance of the 1st respondent before the learned
Single Judge of the High Court of Kerala. The learned Single Judge
without disturbing the finding of fact recorded by the Tribunal in its Award
held that each of the workmen has completed more than 240 days of
service in the preceding 12 months from the alleged date of termination
and their services were terminated without observance of Section 25F
of the Act 1947 but further proceeded on the premise that if the order of
appointment of the workmen was not valid and has not been made in
terms of the procedure prescribed under the Ordinance, such irregular
appointments are not entitled to seek protection of the Act 1947 and
further observed that retrenchment referred to under Section 25F applies
to properly employed persons who are in service and set aside the Award
by a judgment dated 25th June, 2009. The relevant part is as under:-
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 "In my view, before proceeding to consider eligibility for relief
under Section 25F, the Tribunal should have considered whether
appointment of employees terminated was properly made. The
Syndicate of the University ordered termination only after finding
that the employees who got appointment was through irregular
ways. Section 25F does not apply to as case of termination of
illegally appointed employees. On the other hand, retrenchment
referred to in Section 25F applies to properly employed persons
who were in service. So much so, the order passed by the Industrial
Tribunal declaring the termination of the employees as illegal is
only to be set aside and I do so. Consequently, the terminated
employees are not entitled to compensation ordered by the Tribunal
under Section 25F. During pendency of the W.P., some of the
terminated employees were granted wages under Section 17B of
the Industrial Disputes Act, under orders of this Court. Besides
this, they are not entitled to any other relief. The W.P. is therefore
allowed setting aside Ext. P14 award of the Industrial Tribunal."
10. That order of the learned Single Judge came to be confirmed
by the Division Bench of the High Court on writ appeal being preferred
at the instance of the present appellants under the impugned judgment
dated 4th January, 2010.
11. Mr. M.T. George, learned counsel for the appellants submits
that the finding of fact recorded by the Tribunal has been confirmed by
the High Court under the impugned judgment and it can be safely noticed
by this Court that the appellants were appointed on daily wage basis in
non-teaching staff category. Indisputedly, their appointments were made
without going through the process of selection as being contemplated
under the University Ordinance but this is not the case of the respondents
that either of the appellants had either misrepresented/misled or committed
fraud or either of them is not eligible in seeking employment in nonteaching category and itis also not being disputed that each of them had
been in continuous service of more than 240 days in the preceding 12
months from the alleged date of termination.
12. Learned counsel submits that admittedly there was a violation
of Section 25F of the Act 1947. In consequence thereof, no error was
committed by the Tribunal in passing an Award treating them to be
deemed in service with 50% back wages unless validly terminated,
obviously after compliance of the mandatory requirement as contemplated
under clauses (a) and (b) of Section 25F of the Act 1947.
K.V. ANIL MITHRA v. SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT [AJAY RASTOGI, J.]
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13. Learned counsel further submits that the finding which has
been recorded by the learned Single Judge and confirmed by the Division
Bench under the impugned judgment that if the appointments are not
being made in accordance with the procedure prescribed by law, such
employees are not entitled to seek protection of the Act 1947, is legally
unsustainable in law as the nature of appointments is not a pre-condition
for compliance of Section 25F andscheme of the Act 1947contemplates
that if the employee who is a workman under Section 2(s) has been
retrenched as contemplated under Section 2(oo) and if was in continuous
service for more than 240 days in the preceding 12 months from the
alleged date of termination as contemplated under Section 25B of the
Act, the employer is under an obligation to comply with the mandatory
requirement of clauses (a) and (b) of Section 25F, its non-observance as
held by this Court, to be void ab initio bad with the consequential order of
reinstatement with full back wages and open for the employer to pass a
fresh order after due compliance in accordance with law.
14. In support of his submissions, learned counsel placed reliance
on the judgments of this Court in State Bank of India Vs. Shri N.
Sundara Money1; L. Robert D'Souza Vs. Executive Engineer,
Southern Railway and Another2; Punjab Land Development and
Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer,
Labour Court, Chandigarh and Others3 and Nagar Mahapalika
(Now Municipal Corpn.) Vs. State of U.P. and Others4.
15. Per contra, Mr. R. Basant, learned senior counsel for the
respondents, while supporting the finding recorded by the Division Bench
of the High Court under the impugned judgment, submits that after the
finding has been recorded by the Division Bench in the earlier round of
litigation holding such appointments being conceived in fraud and deceit
are not entitled to seek protection of Section 25F by those employees
whose appointments have been declared as void ab initio bad.
16. Learned counsel further submits that the term 'retrenchment'
under Section 2(oo) although have been couched with the words "for
any reason whatsoever" but cannot be interpretated to protect those
who secured entry by backdoor and whose appointments are vitiated by
11976(1) SCC 822
21982(1) SCC 645
31990(3) SCC 682
42006(5) SCC 127
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fraud and deceit as being observed by the Division Bench of the High
Court in the earlier round of litigation.
17. In support of his submission, learned counsel placed reliance
on the judgments of this Court in R. Vishwanatha Pillai Vs. State of
Kerala and Others5; Rajasthan Tourism Development Corporation
Ltd. And Another Vs. Intejam Ali Zafri6 followed with recent judgments
in Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh (Dead)
through legal representatives and Others7 and Punjab Urban
Planning and Development Authority and Another Vs. Karamjit
Singh8.
18. In the alternative, learned counsel further submits that assuming
that there was a violation of Section 25F of the Act 1947, still there
cannot be an automatic reinstatement as being considered by this Court
and each of the workmen had worked for a period 1993-1997 and they
were de-regularised by an order dated 24th March 1997, they may be
entitled for reasonable compensation in lieu of reinstatement looking to
the period of service rendered by each of them and further submits that
granting 50% backwages is grossly unfair as each of the workmen,
during pendency of the litigation, under Section 17B has received his last
pay drawn and a total sum of Rs. 36.68 lakhs has been paid to the
contesting appellants-workmen and in the given circumstances, the finding
recorded by the Division Bench does not call for any interference.
19. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
20. It is an admitted case of the parties that Act 1947 is applicable
on the 1st respondent-University and they are under an obligation to
comply with the provisions of the Act 1947. It is also admitted that the
1st respondent is the employer as defined under Section 2(g) and the
dispute which was raised is an industrial dispute as defined under Section
2(k) and the present appellants are the workmen as defined under Section
2(s) and the termination which was given effect to by the 1st respondent
was a retrenchment as defined under Section 2(oo) and it is not the case
of the 1st respondent that their termination falls in any of the exceptions
defined under Section 2(oo) of the Act 1947.
52004(2) SCC 105
62006(6) SCC 275
72019(14) SCC 449
82019(16) SCC 782
K.V. ANIL MITHRA v. SREE SANKARACHARYA UNIVERSITY OF
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21. Section 2(oo) relevant for the purpose is reproduced 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 a stipulation in that
behalf contained therein; or]
(c) termination of the service of a workman on the ground of
continued ill-health;]
22. The term 'retrenchment' leaves no manner of doubt that the
termination of the workman for any reason whatsoever, otherwise than
as punishment inflicted by way of disciplinary action are being termed
as retrenchment with certain exceptions and it is not dependent upon the
nature of employment and the procedure pursuant to which the workman
has entered into service. In continuation thereof, the condition precedent
for retrenchment has been defined under Section 25F of the Act 1947
which postulates that workman employed in any industry who has been
in continuous service for not less than one year can be retrenched by the
employer after clauses (a) and (b) of Section 25F have been complied
with and both the clauses (a) and (b) of Section 25F have been held by
this Court to be mandatory and its non-observance is held to be void ab
initio bad and what is being the continuous service has been defined
under Section 25B of the Act 1947. It may be relevant to quote Section
25B and clause (a) and (b) of Section 25Fof the Act 1947 which are
reproduced as under:-
25B. Definition of continuous service.- For the purposes of this
Chapter
(1) a workman shall be said to be in continuous service for a
period if he is, for that period, in uninterrupted service, including
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service which may be interrupted on account of sickness or
authorised leave or an accident or a strike which is not illegal, or
a lock-out or a cessation of work which is not due to any fault on
the part of the workman;
(2) where a workman is not in continuous service within the
meaning of clause (1) for a period of one year or six months, he
shall be deemed to be in continuous service under an employer-
(a) for a period of one year, if the workman, during a period of
twelve calendar months preceding the date with reference to
which calculation is to be made, has actually worked under the
employer for not less than- (i) one hundred and ninety days
in the case of a workman employed below ground in a mine;
and (ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period
of six calendar months preceding the date with reference to
which calculation is to be made, has actually worked under the
employer for not less than- (i) ninety-five days, in the case of
a workman employed below ground in a mine; and (ii) one
hundred and twenty days, in any other case. Explanation.-
For the purposes of clause (2), the number of days on which a
workman has actually worked under an employer shall include
the days on which- (i) he has been laid-off under an agreement
or as permitted by standing orders made under the Industrial
Employment (Standing Orders) Act, 1946 (20 of 1946), or under
this Act or under any other law applicable to the industrial
establishment; (ii) he has been on leave with full wages, earned
in the previous years; (iii) he has been absent due to temporary
disablement caused by accident arising out of and in the course
of his employment; and (iv) in the case of a female, she has
been on maternity leave; so, however, that the total period of
such maternity leave does not exceed twelve weeks.]
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
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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 [or such authority as may be specified by the
appropriate Government by notification in the Official Gazette].
23. The scheme of the Act 1947 contemplates that the workman
employed even as a daily wager or in any capacity, if has worked for
more than 240 days in the preceding 12 months from the alleged date of
termination and if the employer wants to terminate the services of such
a workman, his services could be terminated after due compliance of
the twin clauses (a) and (b) of Section 25F of the Act 1947 and to its
non-observance held the termination to be void ab initio bad and so far
as the consequential effect of non-observance of the provisions of Section
25F of the Act 1947, may lead to grant of relief of reinstatement with full
back wages and continuity of service in favour of retrenched workman,
the same would not mean that the relief would be granted automatically
but the workman is entitled for appropriate relief for non-observance of
the mandatory requirement of Section 25F of the Act, 1947 in the facts
and circumstances of each case.
24. The salient fact which has to be considered is whether the
employee who has been retrenched is a workman under Section 2(s)
and is employed in an industry defined under Section 2(j) and who has
been in continuous service for more than one year can be retrenched
provided the employer complies with the twin conditions provided under
clauses (a) and (b) of Section 25F of the Act 1947 before the
retrenchment is given effect to. The nature of employment and the
manner in which the workman has been employed is not significant for
consideration while invoking the mandatory compliance of Section 25F
of the Act 1947.
25. This can be noticed from the term 'retrenchment' as defined
under Section 2(oo) which in unequivocal terms clearly postulates that
termination of the service of a workman for any reason whatsoever
provided it does not fall in any of the exception clause of Section 2(oo),
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every termination is a retrenchment and the employer is under an
obligation to comply with the twin conditions of Section 25F of the Act
1947 before the retrenchment is given effect to obviously in reference
to such termination where the workman has served for more than 240
days in the preceding 12 months from the alleged date of termination
given effect to as defined under Section 25B of the Act.
26. This Court in State Bank of India(supra) while examining
the retrenchment of various nature of employments questioning the
interpretation of Section 2(oo) of the Act held as under:-
8. Without further ado, we reach the conclusion that if the workman
swims into the harbour of Section 25-F, he cannot be retrenched
without payment, at the time of retrenchment, compensation
computed as prescribed therein read with Section 25-B(2). But,
argues the appellant, all these obligations flow only out of
retrenchment, not termination outside that species -of snapping
employment. What, then, is retrenchment? The key to this vexed
question is to be found in Section 2(oo) which reads thus:
2. (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
(c)
termination of the service of a workman on the ground of
continued ill-health;"
For any reason whatsoever - very wide and almost admitting
of no exception. Still, the employer urges that when the order of
appointment carries an automatic cessation of service, the period
of employment works itself out by efflux of time, not by act of
employer. Such cases are outside the concept of "retrenchment"
and cannot entail the burdensome conditions of Section 25-F. Of
course, that a one year and ten months "nine-days" employment,
hedged is with an express condition of temporariness and automatic
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cessation, may look like being in a different street (if we may use
a colloquialism) from telling a man off by retrenching him. To
retrench is to cut down. You cannot retrench without trenching or
cutting. But dictionaries are not dictators of statutory construction
where the benignant mood of a law and, more emphatically, the
definition clause furnish a different denotation. Section 2(oo) is
the master of the situation and the Court cannot truncate its
amplitude.
9. A breakdown of Section 2(oo) unmistakably expands the
semantics of retrenchment. Termination ... for any reason
whatsoever are the key words. Whatever the reason, every
termination spells retrenchment. So the sole question is, has the
employee's service been terminated? Verbal apparel apart, the
substance is decisive. A termination takes place where a term
expires either by the active step of the master or the running out
of the stipulated term. To protect the weak against the strong this
policy of comprehensive definition has been effectuated.
Termination embraces not merely the act of termination by the
employer, but the fact of termination howsoever produced. Maybe,
the present may be a hard case, but we can visualise abuses by
employers, by suitable verbal devices, circumventing the armour
of Section 25-F and Section 2(oo). Without speculating on
possibilities, we may agree that "retrenchment" is no longer terra
incognita but area covered by an expansive definition. It means
"to end, conclude, cease". In the present case the employment
ceased, concluded, ended on the expiration of one year ten months
nine days - automatically may be, but cessation all the same.
That to write into the order of appointment the date of termination
confers no moksha from Section 25-F(b) is inferable from the
proviso to Section 25-F(1) [sic 25-F (a)]. True, the section speaks
of retrenchment by the employer and it is urged that some act of
volition by the employer to bring about the termination is essential
to attract Section 25-F and automatic extinguishment of service
by effluxion of time cannot be sufficient. An English
case R. v. Secretary of State3 was relied on, where Lord Denning,
M.R. observed:
"I think that the word 'terminate' or 'termination' is by itself
ambiguous. It can refer to either of two things - either to
termination by notice or to termination by effluxion of time. It
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is often used in that dual sense in landlord and tenant and in
master and servant cases. But there are several indications in
this para to show that it refers here only to termination by
notice."
Buckley, L.J. concurred and said:
"In my judgment the words are not capable of bearing that
meaning. As Counsel for the Secretary of State has pointed
out, the verb 'terminate' can be used either transitively or
intransitively. A contract may be said to terminate when it comes
to an end by effluxion of time, or it may be said to be terminated
when it is determined at notice or otherwise by some act of
one of the parties. Here in my judgment the word 'terminated'
is used in this passage in para 190 in the transitive sense, and it
postulates some act by somebody which is to bring the
appointment to an end, and is not applicable to a case in which
the appointment comes to an end merely by effluxion of time."
Words of multiple import have to be winnowed judicially to suit
the social philosophy of the statute. So screened, we hold that the
transitive and intransitive senses are covered in the current context.
Moreover, an employer terminates employment not merely by
passing an order as the service runs. He can do so by writing a
composite order, one giving employment and the other ending or
limiting it. A separate, subsequent determination is not the sole
magnetic pull of the provision. A pre-emptive provision to terminate
is struck by the same vice as the post-appointment termination.
Dexterity of diction cannot defeat the articulated conscience of
the provision.
27. It was later followed in L. Robert D'Souza (supra) and held
as under:-
25. Assuming we are not right in holding that the appellant had
acquired the status of a temporary railway servant and that he
continued to belong to the category of casual labour, would the
termination of service in the circumstances mentioned by the
Railway Administration constitute retrenchment under the Act?
26. Section 25-F of the Act provides that 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
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employer until the conditions set out in the Act are satisfied. The
expression "workman" is defined as under:
"2.