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SMT. SUMAN TIWARI AND ANOTHER versus CHAIRMAN

High Court of Judicature at Allahabad

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Smt. Suman Tiwari And Another v. Chairman-Cum-M.D. National Textiles Corp. Ltd And Others - WRIT - A No. 68049 of 2005 [2006] RD-AH 13441 (11 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

      COURT NO.6

Civil Misc. Writ Petition No.68049 of 2005

Suman Tiwari and another.....................................................Petitioners

Vs.

The Chairman-cum-Managing Director

National Textiles Corporation Ltd.....................................Respondents

CONNECTED WITH-

1. Civil Misc. Writ Petition No.68070 of 2005

Har Narayan Choubey...........................................................Petitioner

Vs.

The Chairman-cum-Managing Director

National Textiles Corporation Ltd.....................................Respondents

2. Civil Misc. Writ Petition No. 65816 of 2005

 Brijesh Kumar Singh..........................................................Petitioner

Vs.

 Union of India and others.................................................Respondents

3. Civil Misc. Writ Petition No. 71667 of 2005

  P.C.Gupta............................................................................Petitioner

Vs.

 Union of India and others.................................................Respondents

4. Civil Misc. Writ Petition No. 69012 of 2005

 Vijai Bahadur Lal.................................................................Petitioner

Vs.

 Union of India and others.................................................Respondents

-------------

Hon'ble Tarun Agarwala, J.

Heard Sri Ghanshyam Dwivedi and Sri H.M.Srivastava, the learned counsel for the petitioners and Sri D.P.Singh, the learned counsel for the National Textiles Corporation and its Mills.

The petitioners have challenged the order dated 1.9.2005 whereby the petitioner's were directed to apply for the Modified Voluntary Retirement Scheme (MVRS), failing which, the management would have no option but to retrench their services. It transpires that the petitioners are salesmen/salesgirls working in various  show  rooms  of  National Textile Corporation and  its  Mills.

The said Corporation ran into trouble and its various Mills were closed on account of continuous losses. From time to time, the management came out with voluntarily retirement schemes and, one such scheme was offered to the petitioners and when they did not opt for the said scheme, then as a last resort, the impugned notice was issued to the petitioners to opt for the voluntary retirement scheme, failing which, the management would be compelled to pay the  retrenchment compensation as per the law. The petitioners have challenged this notice on the ground that it was issued without any authority of law and was without jurisdiction and further,  the order was void and non-est, inasmuch as, the provisions of Section 25-F of the Industrial Disputes Act had not been complied with by the Management.

The learned counsel for the petitioners urged that the impugned notice was issued by the Divisional Manager whereas it could only be issued by the Advisor Marketing. In paragraph 42 of the counter affidavit, the respondents have submitted that the Advisor Marketing was not the competent authority and in fact the petitioners were initially engaged on a daily wage basis by an order dated 25.12.1978 issued by the Divisional Manager, Varanasi and thereafter they were appointed on an adhoc basis by an order dated 7.3.1980 which was again issued by the Divisional Manager and subsequently, the Divisional Manager by an order dated 7th May, 1984 regularised their services. Consequently, it was urged  that the Divisional Manager was the competent authority to issue the impugned notice. The petitioners have made a bald denial in paragraph 22 of the rejoinder affidavit. The petitioners have, however, not denied the fact that the original appointment letter appointing them on an ad-hoc basis was not issued by the Divisional Manager.  In view of the aforesaid, the submission of the learned counsel for the petitioners that the impugned order has been issued by an incompetent person is misconceived and bereft of merit.

The learned counsel for the petitioners further submitted that the impugned notice of retrenchment was issued against  the mandatory provisions of Section 25-F of the Industrial Disputes Act which contemplates that before a workman could be retrenched,  one month's notice or pay in lieu thereof and 15 days wages for every year of service towards retrenchment compensation should be offered and paid on or before the actual date of retrenchment which had not been done in the present case and, therefore, the impugned notice was non-est and void. In support of his submission the learned counsel for the petitioners placed reliance in the case of Mohan Lal Vs. Management of M/s Bharat Electronics Ltd., 1981 SCC (L & S) 478, on the proposition that if an employee had been terminated without compliance of Section 25-F, the said order of termination was void abinitio entitling the employee to a declaration for the continuation of his service with full back wages. The learned counsel  further placed reliance upon a decision of the Supreme Court in  the case of Gammon India Limited vs. Niranjan Dass, 1984 SCC (L & S) 144, on the proposition that non-compliance of the provisions of Section 25-F brings the order of termination void abinitio.

Sri H.M.Srivastava, the learned counsel for the petitioners has also placed reliance upon a decision of the Supreme Court in the case of Indian Petrochemicals Corporation Limited and another vs.  Shramik Sena and another, A.I.R. 2001 SC 857,  on the proposition that the order of retrenchment can only be passed in accordance with the provisions of the Industrial Disputes Act.

From a perusal of the counter affidavit, it transpires that out of 89 salesmen/salesgirls, 82 of them had already opted for the Modified Voluntarily Retirement Scheme (MVRS) and that the petitioners are the only employees who had not opted for the scheme till date. It also transpires that pursuant to the notice dated 1.9.2005, the petitioners have received a draft towards one month's pay in lieu of notice and that various notices were issued prior to the impugned notice dated 1.9.2005 requesting them to opt for the Voluntary Retirement Scheme.

In view of the aforesaid, it is clear, that the question as to whether the petitioners were given due notice or not is a question of fact which is required to be adjudicated before an appropriate forum. This being the disputed question of fact, the same cannot be adjudicated in a writ jurisdiction. The proper remedy for the adjudication of such dispute is under Section 10 of the Industrial Disputes Act before an appropriate Labour Court or an Industrial Tribunal. In Hindustan Steel Works Construction Ltd. and another vs. Hindustan Steel Works Construction Ltd. Employees Union, 2005 (6) SCC 725, the Supreme Court held that the High Court should not interfere under Article 226 of the Constitution of India where a dispute relates to an enforcement of a right or of an obligation under a statute especially where a specific remedy was provided under a statue. In the present case the petitioner's contention is that the provisions of Section 25-F of the Industrial Disputes Act has not been complied with by the respondents. The respondents contends that adequate notice was given to them. The enforcement of Section 25-F can only be adjudicated  under Section 10 of the Industrial Disputes Act. The petitioners have an effective remedy under the Industrial Disputes Act, therefore, this Court is not inclined to interfere in a writ jurisdiction. The appropriate remedy for the petitioners is to enforce the statutory obligation under Section 10 of the Industrial Disputes Act.

In view of the aforesaid, this Court is not inclined to interfere in the impugned notice. The writ petition is dismissed. There shall be, however, no order as to cost.

Dated:11.8.2006

AKJ.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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