G.C. Mathur, J. - (1.) - The petitioner is a public limited company incorporated under the Indian Companies Act and has its registered office at Lucknow. It is alleged that its financial position in the years 1957/58 was very bad and that with a view to effect economy it decided to reduce the three shifts working in the lino operating department to two. In order to give effect to this decision it became necessary to retrench certain workmen. Accordingly notices dated December 29/30, 1959, were served upon eight workmen informing them that their service would not be required on and from January 1, 1960, and that they should collect all their dues including the retrenchment compensation, notice pay etc. from the Accounts Department immediately. Notices dated January 1, 1960, purporting to be under clause (c) of Section 6N of the U.P. Industrial Act 1947 (hereinafter referred to as the U.P. Act) were dispatched to the authorities specified on January 4, 1960. It is the case of the petitioner that the workmen concerned did not come on December 31, 1959, to collect the one month's wages in lieu of notice and the retrenchment compensation but that they took the amounts sometimes later. By a notification dated May 30, 1961, the State Government referred to adjudication to the Industrial Tribunal, Allahabad, the following matter of dispute: "Whether the employers retrenched their workmen named in the annexure with effect from 1st January, 1960, legally and or justifiably? If not, to what relief are the workmen entitled - In the annexure the names of eight workmen who had been retrenched were set out. It may be mentioned that one of the workmen, namely Sri Abdul Aziz, died before the Tribunal entered upon the reference. The points in controversy between the parties will appear from the following eight issues framed by the Tribunal: (1) Whether retrenchment is a subject on which the Industrial Tribunal is competent to adjudicate? (2) Whether the retrenchment has been based, on the low output by the Lino Operators and is fair? (3) Whether retrenchment in other cases is covered by the rule last come first go? (4) Whether the workmen have given any convent to their retrenchment? If so, is the present dispute by them barred? (5) Whether old age and infirmity is a sufficient ground for retrenchment of a workman? (6) Have the workmen taken their dues in full satisfaction of their claims? If so, are they barred from raising the present dispute? (7) To what relief, if any, are the workmen entitled? (8) Whether the employers have complied with the provisions of Section 6-N of the Industrial Disputes Act? The Tribunal decided only issues Nos. 1 and 8 but did not go into issues Nos. 2 to 7 which really related to the merits of the retrenchment. On issue No. 1 it held that the Tribunal had jurisdiction to adjudicate upon the question of retrenchment. Under issue No. 8 it held that the provisions of rule 42(1) were mandatory, that the employers had not complied with the provisions of that rule and had not fulfilled the conditions precedent to the retrenchment of the workmen laid down in Section 6-N of the U.P. Act and that accordingly the retrenchment was not legally made. It therefore directed the re-instatement of the workmen and further directed that they be paid their wages from January 1, 1960, till the date of re-instatement. This writ petition has been filed praying for the issue of an order, direction or writ in the nature of Certiorari quashing the award of the Tribunal and for the issue of an order, direction or writ in the nature of Mandamus directing the State Government not to implement the aforesaid award.
(2.) It is necessary at this stage to set out the relevant provisions of the U.P. Act and of the rules. Section 6-N of the U.P. Act, which is in the same words as Section 25-F of the Central Industrial Disputes Act, 1947 (hereinafter referred to as the Central Act) runs as follows: "6-N. Conditions precedent to retrenchment of workmen - No workmen 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 the date for the termination of service; (b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months, and (c) notice in the prescribed manner is served on the State Government." Rule 42(1) of the U.P. Industrial Disputes Rules, 1957, runs as follows:- "42. Procedure for retrenchment of workmen - (1) If any employer desires to retrench any workman, employed in his establishment who has been in continuous service under him for not less than one year (hereinafter, referred to as 'workmen' in this rule and in rule 43) he shall give notice of such retrenchment in Form XIX to the Secretary to Government U.P. Labour (A) Department, to the Labour Commissioner, U.P., and to the Conciliation Officer of the area concerned by registered post, in the following manner; (a) Where a notice, as required under Clause (a) of Section 6-N is given to the workmen, notice of retrenchment shall be sent to the same day on which notice is given to the workmen; (b) Where no notice is given to the workmen, and he is paid one month's wages in lieu of notice, notice of retrenchment shall be sent on the same date on which wages are paid to the workmen, and (c) Where retrenchment is or is intended to be carried out under an agreement, which specifies a date for the termination of service, notice of retrenchment shall be sent on the date on which the agreement was made, if the period from the date of the agreement to the date of retrenchment is of less than one month, otherwise not less than one month before the date of retrenchment".
(3.) The contention of the learned counsel for the petitioner is that the Tribunal has wrongly interpreted rule 42(1) in holding that the provisions thereof are mandatory and in holding the retrenchment to be invalid on account of non-compliance with the provisions thereof. In this case there is no dispute that the employers had given to the workmen retrenched one month's wages in lieu of notice and had also paid to them retrenchment compensation provided by law. The only finding which the Tribunal has arrived at against the petitioner is that the notices required to be given under clause (c) of Section 6-N were not given within the time prescribed by rule 42(1) and further that some of the information contained therein was incorrect. The real question which arises for consideration in this case is whether the provisions of rule 42 are mandatory or merely directory. Though in the beginning learned counsel for the petitioner contended that clause (c) of Section 6-N was itself merely directory and not mandatory, he ultimately had give up this extreme position. Indeed, it is clear from the language of Section 6-N itself that it was incumbent upon the employer who desired to retrench his workmen to fulfil the three conditions laid down in clauses (a), (b) and (c) of that section. There can be no doubt whatsoever that the conditions laid down in clauses (a) and (b) are mandatory and no retrenchment could be effected without first complying with them. In the case of State of Bombay v. Hospital Mazdoor Sabha, A.I.R. 1960 S.C. 610 , the Supreme Court has held that clause (b) of Section 25-F of the Central Act. which is equivalent to clause (b) of Section 6-N of the U.P. Act, is mandatory, Clauses (a) and (b) of Section 6-N stand on the same footing and if clause (b) is mandatory clause (a) is also bound to be mandatory. Clauses (a) and (b) being mandatory, it would be proper to construe clause (c) also to be mandatory, as the three clauses are governed by the same words in the main section. It must accordingly be held that the giving of the notice under clause (c) of Section 6-N is a mandatory provision.;