DIVISIONAL SUPRINTENDENT SOUTH EASTERN RAILWAY NAGPUR Vs. R SHANKARAM
LAWS(MPH)-1980-4-9
HIGH COURT OF MADHYA PRADESH
Decided on April 25,1980

Divisional Suprintendent South Eastern Railway Nagpur Appellant
VERSUS
R Shankaram Respondents

JUDGEMENT

G.P. Singh, C.J. - (1.)THIS order shall also dispose of Misc. Petition No. 421 of 1979.
(2.)RESPONDENT No. 1 in Misc. Petition No. 421 of 1979 and respondents 1 to 4 in Misc. Petition No. 253 of 1978 were casual or temporary gangman employed by the South Eastern Railway. Their services were retrenched on 18th August 1977. They applied on 1st September 1977 under section 33 -C(2) of the Industrial Disputes Act, 1947, to the Labour Court for recovery of wages on the ground that the retrenchment is void and they continued to be in service. In the applications filed by the respondents it was contended by the Union of India that the Labour Court had no jurisdiction to go into the question of validity of retrenchment. It was also submitted that there was proper compliance of section 25 -F of the Act. The Labour Court by order dated 16th December 1978 allowed the application of the respondent in Misc. Petition No. 421 of 1979. By another order passed on 30th January 1978 the applications of the lour respondents in Misc. Petition No. 253 of 1978 were also allowed. The Labour Court's reasoning is that the retrenchment was void for non -compliance with the conditions of section 25 -F and, therefore, the respondents continued in service. These orders passed by the Labour Court are challenged in these two petitions before us under Article 226 of the Constitution.
The contention of the learned counsel for the petitioners is that the Labour Court had no jurisdiction to go into the question of validity of retrenchment and, therefore, it could not grant wages to the respondents on the footing that they continued in service. The argument of the learned counsel for the respondents on the other hand is that as retrenchment was void for non compliance of section 25 -F, the respondents continued in service and, therefore, the Labour Court was competent to grant them the wages. In our opinion, the contention raised by the learned counsel for the petitioners must be accepted. The jurisdiction of the Labour Court under section 33 -C(2) of the Act is in the nature of an executing Court. The Labour Court acting under that section does not exercise the power of deciding an industrial dispute relating to the validity of termination of employment including retrenchment The order retrenching a person of an employee is an administrative order. If it does not comply with the law, it would be void or may even be called a nullity. But it can be called void or nullity only when it is set aside in a proper proceeding. Unless it is set aside in a proper proceeding, it has to be given effect to as valid. As observed in The New India Assurance Co. Ltd Bhopal v. Dalbir Singh and another M.P. No. 47 of 1978, decided on 17th January 1980, the word 'void' is meaningless in any absolute sense. Its meaning is relative, depending upon the Court's willingness to grant relief in any particular situation. As observed by Professor Wade in Administrative Law, 4th Edition, p. 300 : "The reality the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in truth, valid." The proper remedy of challenging an order of retrenchment is by raising an industrial dispute and by getting it referred under section 10 of the Act. If such a dispute is referred it cannot be laid down as an inviolable rule of law that whenever the Court finds that the conditions of section 25 -F have not been satisfied it would reinstate the workman and grant him the full back wages. It may normally do so, but it has a discretion in the matter. In a proper case, it may refuse to exercise its discretion of granting the relief of reinstatement or back wages. Now if an employee is allowed to ignore an order of retrenchment by filing a proceeding directly under section 33 -C(2) without pursuing the remedy of getting an industrial dispute referred under section 10, the result would be that in every case the Labour Court will have to hold, the moment it is shown that there was contravention of section 25 -F, that the employee continued in service and that he is entitled to full back wages. The Labour Court will thus be virtually granting the reliefs of reinstatement and back wages in every case which in a proper case can be denied by a Court trying an industrial dispute under section 10. In our opinion, under the scheme of the Industrial Disputes Act the Labour Court has no such Jurisdiction. Our conclusion, therefore, is that retrenchment cannot be ignored as void or nullity unless it is set aside and a question relating to its validity cannot be gone into in a proceeding under section 33 -C(2). The respondents thus chose a wrong remedy. It may still be open to them to pursue the remedy under section 10 of the Act.

(3.)THE petitions are allowed - The impugned orders of the Labour Court are quashed. There will be no order as to costs. The amount of security deposit in M.P. No. 253 of 1978 be refunded to the petitioner.


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