Decided on July 07,1967



- (1.) I do not read Section 25f of the Industrial Disputes Act as meaning that a workman, who has actually been retrenched in contravention of the provisions of that section, must be deemed to be still in service so that he continues to earn wages notwithstanding the termination of his employment Indeed, by its very wording prohibiting retrenchment unless and until certain conditions are satisfied, the section contemplates that there can, in fact, be a retrenchment without the conditions having been satisfied. Such a retrenchment would be illegal, and therefore, invalid, but that is not to say that is non est. It would doubtless attract the penalty in Section 31 (2) of the Act (which, of course it would not, if it were non est) and its unlawful nature would justify an order for reinstatement with continuity of service and the right to back wages by competent authority. As I understand it, the decision in Workman of Subong Tea Estats v. Subong Tea estate, (1964) 1 Lab LJ 333= (AIR 1967 SC 420) says no more than that; it does not say that such a retrenchment is non est and that the workman concerned must be deemed to be still in service; on the contrary what it says is that the retrenchment is bad in law. This presupposes that there is factually a retrenchment, and, indeed, the entire decision proceeds on that basis. So also state of Bombay v. Hospital Mazdoor Sabha, (1960) 1 Lab LJ 251 : (AIR 1960 SC 610) which only lays down that such retrenchment is invalid, not that it is non est, although it does casually use the word, "inoperative" with reference to the order of retrenchment, doubtless in the sense that the order is inoperative to effect a valid retrenchment. When a statute prohibits the doing of a thing without certain conditions being satisfied, it necessarily contemplates that the thing can actually be done, though not lawfully done, without the conditions being satisfied. If I drive a motor car without a driving licence in disobdience of a statute that says that no one shall drive a motor car unless he is in possession of a driving licence, I do not suppose it could be said that I have not, in fact, driven the car in which case, of course, I could say that I have not disobeyed the statute for the simple reason that in the eye of the law my driving is non est. The true position is that I have driven the car, but unlawfully. Likewise, in the case of retrenchment in violation of section 25f of the Industrial Disputes Act, there is a retrenchment but an unlawful retrenchment. The conditions in the section are conditions precedent to valid retrenchment, not conditions precedent to the act of retrenchment. And, even if it can be said that discharge otherwise than in accordance with Section 25f is not retrenchment within the meaning of the Industrial Disputes Act, I do not suppose a workman so discharged can claim wages for any period subsequent to the discharge until the discharge is set aside by competent authority and reinstatement ordered with a right to back wages.
(2.) ALL this apart, it is clear that, on 19-1-1963, when the application under Section 15 (2) of the Payment of Wages Act was made, there were no wages overdue, the workmen concerned, who are admittedly monthly paid workmen having been paid the wages due up to the 31-12-1952 on which date they were discharged. Their application for wages for the month of January 1963 was, for this reason, and for the reason stated in the preceding paragraph, rightly dismissed by the original authority. And so was their appeal from that dismissal, though the reasons stated for the dismissal might be different.
(3.) I dismiss with costs this Revision Petition against the order made by the District court in appeal. .;

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