BABAJI CHARAN SWAIN AND TWO ORS. Vs. UNION OF INDIA (UOI) AND ORS.
LAWS(ORI)-1973-3-22
HIGH COURT OF ORISSA
Decided on March 02,1973

Babaji Charan Swain And Two Ors. Appellant
VERSUS
UNION OF INDIA (UOI) AND ORS. Respondents

JUDGEMENT

G.K. Misra, J. - (1.) THE writ application has been confined to Petitioner No. 1. He is a railway employee. He has been retrenched. Though in the writ application reference was made, to Section 25 -F(a) and (b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) at the time of hearing Mr. Das frankly conceded that in the writ application absolutely no averment of fact has been made making out a case of contravention of Clause (b).
(2.) THE argument is confined to contravention of Clause (a) which runs thus: 25 -F. Conditions precedent to retrenchment of workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until - (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice: Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service. The proviso has no application to this case inasmuch as it is not the case of the Petitioner that the retrenchment was under an agreement which specifies the date for the termination of the service. The only contention raised by the Petitioner is that one month 's notice in writing indicating the reasons for retrenchment had not been served on him and as such there was contravention of Clause (a). In the counter filed by the opposite parties it is admitted that no notice in writing was served on the Petitioner. It is, however, asserted that the second part of Clause (a) has been complied with inasmuch as the Petitioner had been offered, in lieu of such notice, wages for the period of the notice, which he did not accept. The only question for consideration, therefore, is whether the two parts of Clause (a) are In the alternative or whether service of one month 's notice in writing indicating the reasons for retrenchment is mandatory even if in accordance with the second part one month 's wages had been paid. The language of the clause is plain and suggests that the two parts are completely independent. In other words, the employer has to either give one month 's notice in writing indicating the reasons for retrenchment and the retrenchment takes effect after the period of notice has expired, or without resorting to such a course it is open to the employer to make payment of wages in lieu of such notice. The expression "in lieu of such notice" is significant. "Such notice" means the notice referred to in the first part of Clause (a) which prescribes that it should be in writing indicating the reasons for retrenchment. The first part of Clause (a) ends with a comma. We are, therefore, unable to accept the contention of Mr. Das that even if one month 's wages are paid in lieu of the notice, still notice containing the reasons is mandatory.
(3.) APART from the plain language of the clause, the matter is concluded by several authorities, and no contrary decision has been brought to our notice. In Workmen, S.H. Electric Ltd. v. State of Assam and Ors., A.I.R. 1964 Gau 66, their Lordships observed thus: In fact when one month 's salary is allowed in lieu of the notice, no notice need be given. This in very clear terms supports the contention that both the parts of Clause (a) are in the alternative. The same view has been taken in Bombay Union of Journalists and Ors. v. The State of Bombay and Anr. : A.I.R. 1964 S.C. 1617. In Paragraph 10 their Lordships said that Section 25 -F(a) provides that the workman can be paid, in lieu of such notice, wages for the said period. The same view has been taken in National Iron & Steel Company Ltd and Ors. v. The State of West Bengal and Anr., A.I.R. 1967 S.C. 1206 and Viney Kumar Majoo v. State and Ors. In Paragraph 14 of the Rajasthan case the following passage occurs: One month 's notice pay is required to be paid when an employer does not wish to serve the advance notice as required, but in lieu thereof he chooses to pay one month 's wages. Now it may be open to an employer not to give a notice, but in that event it will be incumbent on his to pay one month 's wages in lieu of notice, that is, for the period of the notice. This is to be done before the actual retrenchment. It is to precede the retrenchment and not to follow it.;


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