# Tribunal must nevertheless award some rehabilitation on a v. Its Workmen

- **Citation:** [1964] 6 S.C.R. 22
- **Court:** Supreme Court of India
- **Decided:** 1963-12-19
- **Case number:** Civil Appeal No. 497 of 1963
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das ' Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tribunal-must-nevertheless-award-some-rehabilitation-on-a-v-its-workmen-3069
- **Pages:** 14

## Headnote

Industrial Dispute-Reference by Government-Discretion of Govern·
ment-Industrial Disputes Act (XIV of 1947), s. 25F-Scope of-Duty
of Government to make a reference.
The appellants 2 and 3 were working journalists and they 14-:re
retrenched on payment of three months salary in lieu of notice. The
first appellant took up their case and alleged that the retrenchment was
not bona fi.de and they were in fact victimised. On the failure of conci·
liation procee'din.gs a report was submitted to the
State Government
(respondent No. I). After hearing the parties concerned the Govema111t pup<! aa order rofusi•I to refor Iha dispute. The reasons given
J
..
6 S.C.R.
SUPREME COURT REPORTS
·for the refusal were that the termination of service was retrenchment
a.i.d the management did not appear to have acted mala fide. Thereupon
the appel1ants filed a petition under Art. 226 •f the Constitution praying
ior the issue of a writ of mandamus directing the Government to consider
the matter afresh. The single Judge who heard the petition dismissed
it and after appealing to a Division Bench witbOut success tla.e present
appeal was filed by special leave granted by this Court.
It was contended on behalf of the appellants that the Gove~mment
while deciding whether a reference should be made has in fact decided
the merits of the case and therefore the order of refusal to refer was
illegal. The other contention was that t}t'e service of notice as required
un'der s. 25F(c) of the Act was mandatory and the management not
having served such a notice the Government ought to have taken this
failure into consideration which the Government has not done.
Held: When the appropriate Government considers the question as
to whether any industrial dispute should be referred for adjudication or
not, it may consider, prima jacie, the merits of the dispute and take
into ac.count other relevant considerations which would help it to tlecide
whether making a reference would be expedient or not. If the disput.e
in question raises a question of law, or disputed questions of fact the
Government should not purport to reach
final
conclusions
because
these are matters whic.h would normally be within the jurisdictiOn of the
Industrial Tribunal. If the claim made is patently frivolous or is clearly
belated or if the impact of the claim on the general relations between
the employers and the employees in the region is likely to be adverse
the Government may refuse to make a reference.
The State of Bombay v. K. P. Krishnan, [1961] 1 S.C.R. 2'l:T.
(ii)
Clause (c) of s. 25F of the Act cannot be s•id to constitute
a
condition
precedent
which
has
to be
fulfilled
before
retrenchment can be validly effected even though that clause bas been
included under s. 25F along with els. (a) and (b) which prescribe conditions precedent.
The observations in the following cases to the effect
that s. 25F (c) is mandatory are clearly in the nature of obiter dicta.
State of Bombay v. The Hospital MazdMr Sabha, [1960] 2 S.C.R.
366, The District Labour Association, Calcutta v. Ex-Empluyee1 of Tea
Districts Labour Association, [1960] 3 S.C.R. 206 and
Workmen .of
Subhong Tea Estate v. The Outgoing Management of Suhhong T~a Estate,
[1964] I L.L.J. 333
(iii) Even ifs. 25F(c) was constituted a condition precedent it would
not necessarily follow that a writ of niandamus should be issued against
the Government. The breach of s. 25F(c) by the Management is a
serious matter and the Government normaHy would refer such a dispute
for adjudication.
But the provision of s. 10(1) read with s. 12(5)
clearly shows that even where there is a breach of s. 25F(c) the ~em
meot may have to consi'der the expediency of making a reference. But
1963
Bombay Union of
Journalists.
v.
The Stall of
Bombay.
24
SUPREME COURT REPORTS
[1964]
1963
if the Government refuses to make a reference for irrelevant consiBomb;Qnion of der~tions, or on extran~ous grounds or acts mala fide a paity would be
Journalists.
entitled to move the High Court

## Text

22
SUPREME COURT REPORTS
[rg64J
196J
justify his claim for rehabilitation and the Tribunal is inPodar Pla.<tics (P) clined to reject the evidence which has been adduced, the
Ltd.
Tribunal must nevertheless award some rehabilitation on a
v.
Its Workmen
purely hypothetical and imaginary ad hoc basis.
In such
.Gai•nd-;;;,dkar J. a case all that the Tribunal can do is to safeguard the position of the employer by giving him opportunity to adduce
better evidence in future, and that is what the Tribunal has
done in the present case.
An attempt was then made by the learned Addi. Solicitor-General to make a claim for the deduction of the wealth
tax.
It has been consistently held by this Court that in
bonus calculations the employer is entitled to claim a deduction of the income-tax as well as wealth tax; but, in the
present case, there is no material to determine what the
amount of wealth tax charged or paid is, and so, no relief
can be granted to the appellant on that account.
In the result, the appeal fails and is dismissed wi!h
costs.
Appeal dismissed.
BOMBAY UNION OF JOURNALISTS & ORS.
v.
THE STATE OF BOMBAY & ANR.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO AND K. C. DAS
'
GUPTA JJ.)
Industrial Dispute-Reference by Government-Discretion of Govern·
ment-Industrial Disputes Act (XIV of 1947), s. 25F-Scope of-Duty
of Government to make a reference.
The appellants 2 and 3 were working journalists and they 14-:re
retrenched on payment of three months salary in lieu of notice. The
first appellant took up their case and alleged that the retrenchment was
not bona fi.de and they were in fact victimised. On the failure of conci·
liation procee'din.gs a report was submitted to the
State Government
(respondent No. I). After hearing the parties concerned the Govema111t pup<! aa order rofusi•I to refor Iha dispute. The reasons given
J
..
6 S.C.R.
SUPREME COURT REPORTS
·for the refusal were that the termination of service was retrenchment
a.i.d the management did not appear to have acted mala fide. Thereupon
the appel1ants filed a petition under Art. 226 •f the Constitution praying
ior the issue of a writ of mandamus directing the Government to consider
the matter afresh. The single Judge who heard the petition dismissed
it and after appealing to a Division Bench witbOut success tla.e present
appeal was filed by special leave granted by this Court.
It was contended on behalf of the appellants that the Gove~mment
while deciding whether a reference should be made has in fact decided
the merits of the case and therefore the order of refusal to refer was
illegal. The other contention was that t}t'e service of notice as required
un'der s. 25F(c) of the Act was mandatory and the management not
having served such a notice the Government ought to have taken this
failure into consideration which the Government has not done.
Held: When the appropriate Government considers the question as
to whether any industrial dispute should be referred for adjudication or
not, it may consider, prima jacie, the merits of the dispute and take
into ac.count other relevant considerations which would help it to tlecide
whether making a reference would be expedient or not. If the disput.e
in question raises a question of law, or disputed questions of fact the
Government should not purport to reach
final
conclusions
because
these are matters whic.h would normally be within the jurisdictiOn of the
Industrial Tribunal. If the claim made is patently frivolous or is clearly
belated or if the impact of the claim on the general relations between
the employers and the employees in the region is likely to be adverse
the Government may refuse to make a reference.
The State of Bombay v. K. P. Krishnan, [1961] 1 S.C.R. 2'l:T.
(ii)
Clause (c) of s. 25F of the Act cannot be s•id to constitute
a
condition
precedent
which
has
to be
fulfilled
before
retrenchment can be validly effected even though that clause bas been
included under s. 25F along with els. (a) and (b) which prescribe conditions precedent.
The observations in the following cases to the effect
that s. 25F (c) is mandatory are clearly in the nature of obiter dicta.
State of Bombay v. The Hospital MazdMr Sabha, [1960] 2 S.C.R.
366, The District Labour Association, Calcutta v. Ex-Empluyee1 of Tea
Districts Labour Association, [1960] 3 S.C.R. 206 and
Workmen .of
Subhong Tea Estate v. The Outgoing Management of Suhhong T~a Estate,
[1964] I L.L.J. 333
(iii) Even ifs. 25F(c) was constituted a condition precedent it would
not necessarily follow that a writ of niandamus should be issued against
the Government. The breach of s. 25F(c) by the Management is a
serious matter and the Government normaHy would refer such a dispute
for adjudication.
But the provision of s. 10(1) read with s. 12(5)
clearly shows that even where there is a breach of s. 25F(c) the ~em
meot may have to consi'der the expediency of making a reference. But
1963
Bombay Union of
Journalists.
v.
The Stall of
Bombay.
24
SUPREME COURT REPORTS
[1964]
1963
if the Government refuses to make a reference for irrelevant consiBomb;Qnion of der~tions, or on extran~ous grounds or acts mala fide a paity would be
Journalists.
entitled to move the High Court for a writ of mandamus.
v.
The
State
Bomhay. -
of
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 497
of 1963.
Appeal by &pecial leave from the judgment and order
dated September 10, 1960, of the Bombay High Court m
Appeal No. 10 of 1959.
Bishan Narain and I. N. Shroff, for the appellant.
H. N. Sanyal, Solicitor General of India, V. S. Sawhney
and R.H. Dhebar, for respondent No. 1.
S. V. Gupte, Additional Solicitor-General of India, J. B.
Dadachanji, 0. C. Mathur and Ravinder Narain, for respondent No. 2.
December 19, 1963.-The Judgment of the Court was
delivered by
Gajendragadkar J.
GAJENDRAGADKAR J.- The principal point of Jaw
which this appeal raises for our decision relates to the construction of section 25F ( c) of the Industrial Disputes Act,
1947 (No. 14 of 1947) (hereinafter called the Act). The
Bombay Union of Journalists which is the Trade Union registered under the Trade Unions Act, 1926, Mrs. Aruna
Mukherji, and Mr. M. T. Thomas are appellants 1 to 3; and
the State of Bombay, and the Indian National Press, Bombay, which is a Private Ltd. Co. are respondents 1 and 2
respectively in the present appeal.
Appellant No. 2 was
appointed on the staff of the second respondent on a salary
,
of Rs. 500 p.m. with effect from 1st January, 1955. On
the 30th November, 1957, she was served with a notice of
tennination of her services with effect from 1st December,
1957. The notice recited the fact that the management in
consultation with the Editor had decided to retrench her
services. Appellant No. 3 Mr. Thomas who was employed
as a Sub-Editor in the 'Free Press Journal' some time in
•
•
6 S.C.R.
SUPREME COURT REPORTS
25
1953, was similarly served with a notice of retrenchment
1963
dated the 30th November, 1957 by which his services were Bombay Union ot
terminated as from the 1st December, 1957. In both the
Journalists.
notices the two appellants respectively were told that their The
;iate
of
services had been retrenched under section 3 ( 2) of
the
Bombay.
Working Journalists (Conditions of Service)
and Miscel- Gajendragadkar 1.
laneous Provisions Act, 1955, and that in lieu of notice they
would be paid their salaries for three months.
Both
the
appellants collected their salaries for the month of November and ceased to work for respondent No. 2 as from the
1st December, 1957.
It appears that appellant No. 1 took up their cause on
the 3rd December, 1957 and wrote to the Director-in-charge
of the second respondent complaining that the action taken
by the 2nd respondent smacked of vindictiveness
against
appellants 2 and 3, and demanded that the notices issued
should be withdrawn forthwith and they should be reinstated in their original posts. Respondent No. 2 did not concede the said demand; thereupon, appellant No. 1 moved
the Labour Commissioner of respondent No. 1 for taking
further action in the matter.
At that stage, the Conciliation Officer intervened and called the parties before him.
As a result of the discussion held before the Conciliation
Officer, it was discovered that no settlement was possible,
and so, the Conciliation Officer submitted a failure report
under s. 12(4) of the Act on the 15th April, 1958. In this
report, the Conciliation Officer expressed his opinion that
in view of the stand taken by the parties, there was no possibility of any settlement, and so, he was compelled to record a failure.
After the matter was thus reported to respondent No. 1
by its Conciliation Officer, both the parties filed their respective statements before respondent No. I .
Respondent
No. 1 considered the said statements and the report submitted by the Conciliation Officer and came to the conclusion
that it was not necessary to refer the dispute to a Tribunal
under s. 12 ( 5) of the Act. This decision was communicated to the appellants by the Dy. Secretary, Labour and Social
Welfare Department of respondent No. 1 by his letter dated
lst July, 1958. It is necessary to set out the reasons given
SUPREME COURT REPORTS
1963
in this letter for not referring the dispute to the Tribunal.
Bomba;u,.ian of These reasons were set out in the letter in these terms:-
Journali'sts.
~
v.
The
State
of
Bombay,
Gajendragadkar J.
"(1) The termination of services of Shrimati Aruna
Mukherji and Shri M. T. Thomas appears to
be an act of retrenchment on the part of the
management for which the management is willing to pay all the legal dues to the retrenched
persons; and
(2) in effecting the said termination the management
does not appear to have acted ma/a
fide
or
vindictively nor practised
victimisation
for
trade union activities."
The appellants then moved
the Bombay High Court
under Art. 226 of the Constitution for a writ of mandamus
against respondent No. I. It was urged. on their
behalf
that the refusal of respondent No. 1 to refer the dispute to
the Industrial Tribunal under s. 12 ( 5)
of the Act was
illegal, and so, they prayed that the High Court should
issue a writ directing respondent No. 1 to consider the
matter afresh and decide whether a reference should
be
made or not.
This writ petition was heard by a single Judge
of the said High Court and was ultimately dismissed. The
appellants challenged the correctness of the said decision
by a Letters Patent Appeal before a Division Bench of the
High Court. The Division Bench agreed with the
view
taken by the learned single Judge, and so, the appeal was
dismissed. It is against this decision that the appellants
have come to this Court by special leave.
The first contention which has been raised before us by
Mr. Bishan Narain on behalf of the appellants is that the
reasons given by respondent No. 1 in refusing to make a
reference show that respondent No. 1 considered the merits
of the dispute and came to the conclusion that the referen~e
would not be justified; and Mr. Bishan Narain contends that
in dealing with the merits of the di8Jlute, while deciding the
question as to whether a reference should be made or not
under s. · 12(5) of the Act respondent No. 1 has acted illegal-
•
ly and improperly. The relevant scheme of the Act as dis-
'
closed bys. 12 is clear. When any industrial dii>pute exists or
..
1
6 S.C.R.
SUPREME COURT REPORTS
27
ls apprehended, the Conciliation Officer may hold conciliation
1963
proceedings in the manner prescribed by s. 12. If the Con- Bombay Union of
dliation Officer's efforts to bring out a settlement of the
Journalists.
y.
dispute fail, then he makes a failure report under s. 12( 4); The
State
of
.ands. 12(5) provides, inter alia, that if on a consideration
Bombay
of the report referred to in sub-section ( 4) the appropriate GajendrRgadkar /.
Government is satisfied that there is a case for reference to
the Tribunal, it may make such reference. It, however, adds
that where the appropriate Government does not make such
.a reference, it shall record and communicate to the parties
~oncerned its reasons therefor.
The argument
is that s.
12(5) imposes an obligation on respondent No. 1 to record
reasons for refusing to make a reference; and the reasons
given by respondent No. 1 in the present case indicate that
respondent No. 1 acted beyond its jurisdiction in proceeding to consider the merits of the dispute while deciding whether the reference should be made or not.
This argument must be rejected, because when the appropriate Government considers the question as to whether
a reference should be made under s. 12(5), it has to act
under s. 10(1) of the Act, ands. 10(1) confer.> discretion
on the appropriate Government either to refer the dispute,
or not to refer it, for industrial adjudication according as it
is of the opinion that it is expedient to do so or not.
In
other words, in dealing with an industrial dispute in respect
of which a failure report has been submitted under s. 12( 4)
the appropriate Government ultimately exercises its power
under f 10(1), subj,ect to this thats. 12(5) imposes an
obligation on it to record reasons for not making the reference
when the dispute has gone through conciliation and a failure
report has been made under s. 12 ( 4). This question has
been considered by this Court in the case of the State of
Bombay v. K. P. Krishnan & Others ('). The decision in
that case clearly shows that when the appropriate Government
considers the question as to whether any industrial dispute
should be referred for adjudication or not, it may consider,
prima facie, the merits of the dispute and take into account
other relevant considt,rations which would help it to decide
whether making a reference wollld be expedient or not. It
is true that if the dispute in question raise questions of law,
(') [1961] I S.C.R. 227.
28
SUPREME COURT REPORTS
[1964}
1963
the appropriate Government should not purport to reach a
Bombay Union of final decision on the said questions of law, because that
Journalists.
would normally lie within the jurisdiction of the Industrial
v.
The
State
of Tribunal. Similarly, on disputed q!lestions of fact, the apBombay.
propriate Government cannot purport to reach final
conGajendragadkar J. clusions, for that again would be the province of the Industrial Tribunal.
But it would not be possible to accept the
plea that the appropriate Government is precluded
from
considering even prima facie the merits of the dispute when
it decides the question as to whether its power to make a
reference should be exercised under s. 10 (l )
read with
s. 12(5), or not. 'If the claim made is patently frivolous, or
is clearly belated, the appropriate Government mny refuse
to make a reference. Likewise, if the impa~t of the claim
on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate
Government may take that into account in deciding whether
a reference should be made or not.
It must, therefore be
held that a prima facie examination of the merits cannot be
said to be foreign to the
enquiry which the appropriate
Government is entitled to make in dealing with a dispute
under s. 10(1 ), and so, the argument that the appropriate
Government exceeded its jurisdiction in expressing its prima
facie view on the nature of the termination of services of
appellants 2 and 3. cannot be accepted.
Mr. Bishan Narain has then urged that the main point
of controversy between the parties was in regard to
the
failure of respondent No. 2 to comply with the provi,ions
of s. 25F(c) of the Act and that has not b~en considered by
respondent No. I while refusing to make a reference in the
present case.
Section 25F ( c) provides that no workm~n
to which the said provision applies shall be retrenched bv
the employer until notice in the prescribed mnnncr i' served
on the appropriate Government. It is common ground th:it
notice had not been served by respondent No. 2 on respondent No. 1 as required by s. 25F( c) prior to the termination of services of appellants 2 & 3; and the argument is that
the reasons mentioned by respondent No. 1 in its communication to appellant No. 1 indicating its refusal to make a
'
reference, show that this aspect of the matter has not been
..
•
6 S.C R.
SUPREiVlt'~ COURT REPORTS
29
.~onsidered by respondent No. 1 and that, it is urged, in1963
troduces a serious infirmity in the said reasons and calls for Bombay Union of
a writ of mandamus requiring respondent l\o. l to rectify
Journalists.
the said omission.
There is no substance in this argument. The
St~te
of
It appears that the Rules framed by respondent No. 1 t~nder
Bombay.
the Act indicate that respondent No. 1 has construed the G . d-dk
1
· ·
f
25F · )
b ·
d'
,
a1en raga
ar
•
prov1S1on o s.
(c
as
emg irectory r.nu not as constituting a condition precedent for the validity of retrenchment under s. 25F. Rule 80 of the
said Rules clearly
shows that where the employer has retrenched the employee
by offering to pay him the requisite amount of remuneration
i.n lieu of notice prescribed by s. 25F(a), the employer
is
required to serve the notice of the ~aid retrenchment within seven days of the date of retrenchment, and that means
that in such a case, the notice has not to be served on the
Government before retrenchment is effected. In other words,
R. 80, it is concedi:d, treats the notice prescribed by
s.
25F ( c) as condition subsequent and not a condition precedent. In view of the Rule framed by itself respondent No. 1
must not have thought it necessary to make any reference to
the argument urged by the appellants that respondent No.
2's failure to serve a notice on respondent No. 1 before retrenchment was effected introduced an infirmity in the order
·Of retrenchment. Rule 80 framed by respondent No. 1 was
itself an answer to the said plea, and so, respondent No. 1
may well have thought that it was unnecessary to give that
reason in its communication to the appellants.
Besides, in dea:ting with this contention, it is necessary
to remember that in entertaining an application for a writ of
mandamus against an order made by the appropriate Government under s. 10(1) read with s. 12(5), the Court
is
not sitting in appeal over the order and is not entitled to
consider the propriety or the satisfactory character of the
reasons given by the said Government.
It would be idle
to suggest that in giving reasons to a party for refusing: to
make a reference under s. 12(5), the appropri:~tc Government has to write an elaborate order indicating exhaustively
all the reasons that weighed in its mind in refusing to make
a reference. It is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no
reference is made, because the object of s. 12(5) appears
SUPREME COURT REPORTS
[1g64J
1963
to be to require the appropriate Government to 'state its
Bomba-;-u;ion of reasons for refusing to make a reference, so that the reasons
Journalists.
should stand public scrutiny· but that does not mean that a
~
y.
'
The
State
of party challenging the validity of the Government's decision
Bomi:.::_
not to make a reference can require the Court in writ proGaiendragadkar J. ceedings to examine the propriety or correctness of the said
reasons.
If it ap?ears that the reasons given show that the
appropriate Government took into account a consideration
which was irrelevant or foreign, that no doubt, may justify
the claim for a writ of mandamus. But the argument that
of the pleas raised by the appellants two have been considered and not the third, would not necessarily entitle the party
~
to claim a writ under Art. 226.
That takes us to the
main point which has been
strenuously argued before us by Mr. Bishan Narain with regard to the construction of s. 25F ( c). His contention
is.
that just ass. 25F(a) and (b) are both mandatory and
constitute conditions 'precedent for valid retrenchment, so is
s. 25F ( c) mandatory and a condition precedent. The prohibition contained in s. 25F is put in the negative form and
it is coupled with the condition that no retrenchment can be
effected until the three conditions sr,iecified by clauses (a),
(b) and ( c) are satisfied.
The negative form adopted by
the provision cou'pled with the use of the word "until" which
introduces the three conditions, indicates that the conditions
must be first satisfied before retrenchment can be validly
effected.
In this connection,
Mr. Bishan Narain has referred to the decision of this Court in the State of Bombay
& Others v. The Hospital Ma::door Sabha & Ors. (1 ) where
it has been held that the requirement prescribed by s. 25F-
(b) is mandatory and has to be complied with before an industrial employee can be
retrenched.
Dealing
with
s.
25F(b), it was observed in that judgment that clauses (a)
and ( c) of the said section prescribed similar conditions,
though it was expressly added that the Court was then not
concerned to construe them.
Mr. Bishan Narain has also
invited our attention to the fact that in Tea Districts Labour
Association, Calcutta
v. Ex-Employees of Tea Districts
--·-· ------·-
-(1)
(196o] 2 S.C.R. 866.
-
t> S.C.R
SUPREME COURT REPORTS
31
Labour Association and Anr. (1 ), it was conceded that the
1963
requirement as to notice
prescribed by s. 25F ( c)
was Bombay Union of
~ mandatory and amounted to a condition precedent. LikeJournalists.
wise, it appears that in the case of The Workmen of S11bong The
Iiate
of
f
Tea Estate v. The Outgoing Management of Subong Tea
Bombay.
Estate & Anr. (") recently decided by this Court, it has been GaimJ;;;;;;dkar 1.
incidentally stated that the three conditions prescribed by
clauses (a), (b) and (c) of s. 25F appear prima facie to
constitute conditions precedent before an industrial workman can be validly retrenched. In that case, no question
arose about the construction and effect of the provisions of
s. 25F and the ob~ervations are clearly in the riature of
obiter observations and even then they indicate tha,.t the
Court thought that prima facie the three conditions may be
similar. No decision of this Court has been cited before us
where this question has been directly considered and
decided.
Mr. Bishan Narain, however,
urges, and with some
force, that the nomal rule of construction requires that if
clauses (a) and (b) of s. 25F constitute conditions precedent, clause ( c) in the context must also receive the same
construction.
Prima facie, this argument is no doubt attractive; but a closer examination of the section shows that clause
( c) of s. 25F cannot receive the same construction as clauses
(a) and (b) of s. 25F. Section 25F(a) requires that the
workman has to be given one month's notice in
writing.
indicating the reasons for retrenchment, and the period of
notice has to expire before the retrenchment takes place. It
also provides that the workman can be paid in lieu of such
notice wages for the said period. It is rhe latter provision of
clause (a) which requires careful consideration in dealing
with the character of the
requirement prescribed
by
s.
25F(c). This latter provision allows the employer to retrench the workman on paying him his wages in lieu of
notice for one month prescribed by the earlier part of clause
(a), and that means that if the employer decides to retrench
a workman, he need not give one month's notice in writing
and wait for the expiration of the said period before he
(1) [196o] 3 S.C.R. 207.
(') (1!)64 I L.L.J · 333).
32
SUPREME COURT REPORTS
1963
retrenches him; he can proceed to retrench him straightBombay Union of away on paying him his wages in lieu of the said notice.
Journalists.
Take a case where retrenchment is effected under this latter
The
Ii~re
of provision of clause (a); how would the
requirement
of
Bombay.
clause ( c) operate in such a case? If it is held that the
Bajendragadkar 1. notice in the prescribed manner has to be served by the
employer on the appropriate Government before retrenching the employee in such a case, it would mean that even in
a case where retrenchment is effected on payment of wages
in lieu of notice it cannot be valid unless the requisite notice
is served on the appropriate Government; and th<il does not
appear to be logical or reasonable. Reading the latter part
of clause (a) and clause (c) together, it seems to follow that
in cases falling under the latter part of cl. (a) the notice
prescribed by cl. ( c) has to be given not before retrenchment, but after retrenchment; otherwise the option given to
the employer to bring about immediate retrenchment of the
workman on paying him wages in lieu of notice would be
rendered nugatory.
Therefore, it seems that clause
( c)
cannot be held to be a condition precedent even though it
has been included under s. 25F along with clauses (a) and
(b) which prescribe conditions precedent.
The argument based on the negative form in which the
provision is enacted and the use of the word "until" no doubt
are in favour of the appellant's contention, but the context
seems to require a different treatment to the provision contained in clause ( c).
B~sides, the requirement introduced
by the use of the word "until" is complied with even on the
view we are inclined to take about the nature of the condition
prescribed by clause ( c), because; after the retrenchment is
effected, the employer has to comply with the condition of
giving notice about the said retrenchment to the appropriate
Government, and that is where the provision in clause ( c)
that the notice has to be served in the prescribed manner
assumes significance. Rules have been framed by the Central Government and the State Governments in respect of
this notice and, stated broadly, it does appear that these
Rules do not require a notice to be served in every case before
retrenchment is effected.
In regard to retrenchment
effected on paying the workman his wages in lieu
of notice, the Rules seem to provide that the
notice
in
r
•
o S.C.R.
SUPREME COURT REPORTS
33
that behalf should be served within the specified period pres1963
cribed by them; that is to say, under the Rules, notice in Bomba)I Union of
such a case has to be served not before the retrenchment,
Journalists.
but after the retrenchment within the specified period. Mr. The
;,~,.
if
Bish an Narain no doubt contends that if his construction of
Bombay
s. 25F(c) is correct, the Rules would be invalid and that is Gajendragadkar 1.
true; but on the view we are inclined to take, the Rules framed by the Government appear to be consistent with the policy
underlying the provision prescribed bys. 25F(c). We are,
therefore, satisfied that s. 25F(c) cannot be said to constitute a condition precedent which has to be fulfiiled before
retrenchment can be validly effected.
In this connection, the;e is
one more consideration
which is relevant. We have already seen the requirement of
s. 25F(a). There is a proviso to s. 25F(a) which
lays
down that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the
. termination of services.
Clause (a) of s. 25F, therefore,
affords a safeguard in the interests of the retrenched employee; it requires the employer either to give
him
one
month's notice or to pay him wages in lieu thereof before
he is retrenched.
Similarly, clause (b) provides that the
workman has to be paid at the time of retrenchment, compensation which shall be equivalent to l 5 days' average pay
for every completed year of service, or any part thereof in
excess of six m011ths. It would be noticed that this payment
has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman; he must be given one month's notice or wages in lieu
thereof and he must get retrenchment compensation as prescribed by clause (b). The object which the Legi,lature had
in mind in making these two conditions obligatory and
in
constituting them into conditions prcc~dent is obvious. These
provisions have to be satisfied before a workman
c~m lie
retrenched.
The hardship resulting from retrenchment ];a,
been partially redressed by these two clauses. and so, there
is every justification for making them conditions precedent.
The same cannot be said about the requirement as to clause
( c). Clause ( c) is not intended to protect the interests of
the workman as such. It is only intended to give intimation
to the appropriate Government about the retrenchment, and
134-159 S.C.-3.
34
SUPREME COURT REPORTS
[rg64]
1116J
that only helps the Government to keep itself informed
Bombay un1oa of about the conditions of employment in the different induslournalf4tl.
tries within its region. There does not appear to be present
tTlw
]iat•
of any compelling consideration which would justify the makBolltbtq ·
ing of the provision prescribed by clause ( c) a condition
GaJ.U,.,,..,,Jlrar I. precedent as in the case of clauses (a) & ( b) . Therefore,
·
having regard to the object which is intended to be achieved
by clauses (a) & (b) as distinguished from the object which
clause ( c) has in mind, it would not be unreasonable to
hold that clause ( c), unlike clauses (a) & (b), is not a
condition precedent.
There is one more point which ought to be mentioned
before we part with this appeal. Even if we had held that
s. 25F ( c) constitutes a condition precedent, it would not
have been easy to accept Mr. Bishan Narain's contention
that a writ of mandamus should be issued against respondent No. 1. A writ of mandamus could be validly issued in
~uch a 9ase if it was established that it was the duty and the
0bligation of respondent No. 1 to refer for adjudication an
industrial dispute where the employee
contends that the
retrenchment effected by the
employer contravenes the
provisions of s. 25F ( c). Can it be said that the appropriate
Government is bound to refer an industrial dispute
even
though one of the points raised in the dispute is in regard to
the contravention of a mandatory provision of the Act? Jo
our opinion, the answer to this question cannot be in the
affirmative.
Even if the employer r~trenches the workman
contrary to the provisions of s. 25F(c), it does not follow
that a dispute resulting from such retrenchment must necessarily be referred for industrial adjudication.
The breach
of section 25F is no doubt a seriom matter and normally the
appropriate Government would refer a dispute of this kind
for industrial adjudication; but the provision contained in
s. 10 (1) read with s. 12 ( 5) clearly shows that even where
a breach of s. 25F is alleged, the appropriate Government
may have to consider the expediency of making a reference
and if after considering all the relevant fact the appropriate
Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it
to refuse to make such a reference. We ought to add that
when we are discussing this legal position, we are necessarily
·6 S.C.R.
SUPREME COURT REPORTS
35
assuming that the appropriate Government acts honestly
J96J
and bona fide. If the appropriate Government refuses to
-
make a reference for irrelevant considerations, or on ex80"'i~!i't:: of
traneous grounds, or acts mala fide, that, of course, would
•·
be another matter; in such a case a party would be entitled T'Boml::,at•
of
to move the High Court for a writ of mandamus.
The result is, the appeal fails and is dismissed.
would be no order as to costs.
There
Appeal dismissed.
STATE OF BHOPAL AND ORS.
v.
CHAMPALAL AND ORS.
(B. P. SINHA, C. J., K. N. WANCHOO, RAGHUBAR DAYAL,
N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR JJ.)
Bhopal .Reclamation and Development of Land (Eradication of Kans)
Act (Bhopal Xlll of 1954) ss. 4, 7-lf s. 4 is violative of Art. 19(1)(/)
of the Constitution-Possession by Reclamation officer-If taking p-OSse,..
sion within Art. 31(2) of the Constitution-Demand for contribution--
Legality.
Ga/tndragadlr:ar /.
The respondents are owners of agricultural land in Bhopal. Their
1 ands were taken possession of by the appellant
under
a notification
under s. 4 of the Bhopal Reclamation and Development of Land (Eradication of Kans J Act. The object of this Act was to eradicate by tleep
tractorisation Kans weeds which are harmful to the productivity of land.
The Act provides for the taking possession of the land infested with kans,
after issuing notifications ·under s. 4 of the Act, and for the deep ploughing of the land by tractors. The expenses incurred by the Government
were to be apportioned among the owners in the area whose lands had
been occupied an(i ploughed.
Demands were made on the respondents
whose lands were occupied and tractorised to pay the costs so apportioned.
Thereupon they filed writ petitions before the Judicial Commissioner challenging the legality of the Act "' well as the legality of the
levy, even assuming that the Act was valid. The Judicial Commissioner
allowed the petitions. Thereupon the State appealed to this Court with
certificate ol' fitness under Art. 133(l)(c) of the Constitution.
In the appeals before this Court the same contentions as those which
were raised before the Judicial Commisisoner were canvassed.