AGARWAL, C. J. - (1.) THIS special appeal has been preferred against the order dated. 16. 1. 92 passed by learned Single Judge allowing the writ petition of the respondent and setting aside the order by which his services were terminated. The learned Single Judge also directed that the respondent would be deemed to be in service and would be taken back on his job with all the consequential reliefs.
(2.) RESPONDENT Mohan Singh was initially appointed on daily wages basis and subsequently given permanent appointment in the Rajasthan State Road Transport Corporation (RSRTC) on the post of Conductor. By an order dated 12. 04. 1989, he was retrenched from service. No notice prior to issuing of the above mentioned order was given to him u/s 9a. Aggrieved by the retrenchment, the respondent filed a writ petition which was registered as SB Civil Writ Petition No. 1488/89 in this Court and sought the relief of quashing the retrenchment order and his reinstatement. The ground taken by the respondent was that since he had not been given any notice under Sec. 9-A of the Industrial Disputes Act, 1947 (for short, 'the Act'), the retrenchment was invalid. Learned Single Judge negatived the case of the respondent regarding applicability of Sec. 25 (A ). However, he held that on account of non-compliance of Sec. 9-A of the Act, the retrenchment was invalid. He relied on item No. 11 of IVth Schedule of the Act which provides that any increase or reduction in the number of persons employed or to be employed in any occupation shall also amount to change of conditions to which the provisions of Sec. 9-A would apply. In the opinion of the learned Single Judge, Sec. 9-A of the Act was mandatory and as several persons junior to respondent have been retained in service, the respondent had been discriminated and thus, was entitled to the reliefs claimed. The learned Single Judge found that as per item No. 11 of IVth Schedule, provisions of Sec. 9-A of the Act were applicable and it was obligatory on the part of the RSRTC to have given notice to the respondent of 21 days regarding termination of his services. The termination, according to the learned Single Judge, constituted a change in the conditions of service of the respondent as specified in items No. 10 and 11 of the IVth Schedule under Sec. 9-A of the Act. On this finding, the writ petition was allowed. The relevant portion of Sec. , 9-A reads as under: - "notice of change: No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change - (a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or (b) within twenty-one days of giving such notice : Provided that no notice shall be required for effecting any such change- (a) where the change is effected pursuance of any settlement or award. " The IV Schedule describes, in detail, the conditions of service, for change of which notice is to be given. The relevant items No. 10 and 11 are as under: - "10. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen ; "11. Any increase or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department of shift not occasioned by circumstances over which the employer has no control. " Mr. C. N. Sharma, learned counsel for the appellant urged that the disputed brought by means of the writ petition before this Court involved questions of fact, adjudication of which was not possible under Article 226 of the Constitution of India. Article 226 of the Constitution, according to the learned counsel, is supervisory in nature and do not require exercise of original jurisdiction to quash an order of termination, which could not be done without taking evidence of the parties. The power under Article 226, although, is wide but courts are in circumspect in exercising the power where there is a disputed question of fact. Sec. 9-A makes a proposal by the employer to effect a change in the conditions of services of a workman affected thereby, the proposal must be made by a notice stating the nature of the change desired, that the change mentioned in the notice can be effected only on the expiry of 21 days. The procedure is to be followed in respect of the matters specified in IVth Schedule only. The argument made on behalf of the appellant was that curtailment of strength of workmen, as they were in excess of the requirement, would not amount to change within the meaning of Sec. 9-A. The word, 'change' means to make different in some particular but short of conversion into something else. The point argued by the appellant's counsel is debatable. The respondent could get the relief on the establishment of the ground or foundation which attracted Items No. 10 and 11 of IVth Schedule. For bringing a case under Item 10, it is necessary to establish that there was some rationalisation, standardisation or improvement of work or technique. If that would have been so, Sec. 9-A intended three weeks' notice. Similarly, a case under Item 11 could entitle the reduction due to circumstances over which the employer had no control. Certainly not instant case would come under item 10 as there was no scheme for standardisation or rationalisation. So far as Item 11 is concerned, the evidence was required from the parties in the case as to whether the circumstances were such over which the employer had any control or not. In the absence of factual finding being recorded in respect of the same, no relief could be given to the respondent. In L. Robert D'souza vs. The Executive Engineer, Southern Railway and another (1) the Supreme Court has held that if the change proposed does not cover any matter in Fourth Schedule, Sec. 9-A is not attracted and no notice is necessary. The observations of the Supreme Court are as under : - "in order to attract Sec. 9-A the change proposed must be in the conditions of service applicable to the workman in respect of any matters specified in the Fourth Schedule. If the proposed change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescribed manner and waiting for 21 days after giving such notice. When a workman is retrenched it cannot be said that change in his conditions of service is effected. The conditions of service are set out in Fourth Schedule. No item in Fourth Schedule covers the case of retrenchment. In fact, retrenchment is specifically covered by Item 10 of the Third Schedule. Now, if retrenchment which connotes termination of service, cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule, S. 9-A would not be attracted. If the change proposed does not cover any matter in Fourth Schedule Sec. 9 A is not attracted and no notice is necessary. It is, therefore, futile to urge that even if termination of the service of the petitioner constitutes retrenchment it would nevertheless be valid because the notice contemplated by S. 25-F would be dispensed with in view of the provision contained in Sec. 9-A, proviso (b ). " To us, it appears that the respondent should have raised an industrial dispute by filing a claim petition before the Industrial Tribunal.
(3.) COUNSEL for the respondent urged that making of a reference to the Industrial Tribunal was within the discretion of the State or Central authority and it could very conveniently refuse to refer being made without fear of quashing of the order of reference. That is true that making of a reference or not to do so is a matter of discretion of the Government concerned, but discretion has to be exercised for the purpose conferred and not arbitrarily. Hence, the argument of the respondent that the reference could not likely be made, is a plea without any substance. The question was of getting the relief for the respondent, and if his case was based on Item No. 11 of Fourth Schedule, he should have gone to the Industrial Tribunal. We are aware that a court of appeal should not normally interfere with the order of a learned Single Judge once writ has been issued. But here in the instant case, we find it difficult to affirm his judgment on the fundamental fact being lacking. ;