BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) SHORN of all technicalities and embellishment, the substantive case of the petitioner is that he was employed in the Municipality as daily rated workman in the year 1991-92. He was paid salary upto August, 1993 and thereafter when he demanded for salary in the regular pay-scale of Peon plus Dearness Allowance, his services were unceremoniously terminated on 2. 12. 93 without complying with the provisions of Section 25-F of the Industrial Disputes Act that is to say neither one month notice was given before termination nor one month salary as remuneration in lieu of notice was paid to him at the time of retrenchment nor any retrenchment compensation was paid to him at the time of retrenchment. It was also alleged that the respondents were not obliged to pay their employees minimum pay as per the Minimum Wages Act. The respondents admitted the case of retrenchment, however, it was stated that the retrenchment took place w. e. f. 01. 12. 1993 and the petitioner was in service upto 30. 11. 93 only. However, this does not make any difference about the validity or invalidity of the retrenchment on admitted facts. Though in the reply it was stated that the petitioners were offered payment at the time of retrenchment, however, the material placed on record by the respondents does not support this contention. Admitted case of the respondent is that the petitioners were appointed on muster roll which does not supports a plea of fixed term appointment. Admittedly, no written notice of termination was issued by the respondent and therefore, there is nothing to support that any payment was offered by the respondents which is a matter of right to the retrenched employee at the time of retrenchment. On the other hand, the respondents have placed on record, two documents that in-fact the amount payable to the number of employees already retrenched for salary in lieu of required notice period was computed and drawn by preparing a bill only on 20. 12. 93 (Annex.-R/2/2) clearly stating that the amount of Rs. 5,811/- was drawn by Cheque No. 750983 dated 20. 12. 93 to be dibursed amongst seven employees, who have already been retrenched. In the present case petitioner Kailash Chandra, according to the respondent came to be retrenched on 30. 11. 1993 whereas the amount sought to be paid to him in lieu of retrenchment was withdrawn on 20. 12. 93 much after the effective date of retrenchment. Similarly compensation required to be paid at the time of retrenchment was also withdrawn by cheque No. 668246 dt. 24. 2. 94 (Annex.-R/2/3) in respect of the seven retrenched employee and it carries with it the sanction of payment for retrenchment compensation calculated at the rate of 15 days wages for each completed year of service in terms of Section 25-F and the cheque has been addressed to the petitioner only on 22. 12. 93. Annexure-R/2/4, nowhere states that the petitioner was offered salary in lieu of notice at the time of retrenchment but it is now sent to him on his failure to accept the same. On the contrary, it clearly states that the retrenchment has already taken place and the salary in lieu of notice is being sent in terms of Section 25-F of the Act now. Moreover had the wages in lieu of salary and retrenchment compensation, both ought to precede point of retrenchment were offered at the time of before retrenchment, the payment in lieu of notice and retrenchment compensation would not have been made on separate dates separated by two months. Thus, clearly on admitted facts, neither the salary in lieu of notice nor retrenchment compensation was offered at the time of retrenchment. The fact of want of notice of the requisite period prior to retrenchment is undisputed. Learned counsel for the respondents has urged that since the petitioner challenged the validity of retrenchment which could be a subject matter of industrial dispute under the Industrial Disputes Act, 1947 which provides an adequate alternate efficacious remedy, the petitioner should be relegated to the alternate remedy. Ordinarily, in the matter which relates to the settling the Industrial Disputes and concerns rights of persons arising under Industrial Disputes Act, 1947 are not required to be made a subject matter of Articles 226 and 227 of the Constitution of India. In the cases of availability of equally efficacious alternative remedy, this Court would not ordinarily invoke its extra ordinary jurisdiction to intervene and leave the parties to avail the remedies available to them in the regular course. But at the same time, it is a rule of judicious discretion and not rule against maintainability of the writ petition or a restriction on the discretion of the Court to entertain a petition even if the circumstances of the case so warrants.
(3.) THE decision relied on the learned counsel for the respondents also does not laid down the law differently. In the present case, the petition was filed in the year 1993 and is pending for last 12 years. On admitted facts, if the issue can be decided, in my opinion, no judicial pronouncement prevents from doing so. Therefore, the preliminary objection cannot be sustained. The law is settled by number of decisions that the compliance of Sec. 25-F is a condition precedent before retrenchment becomes effective. Both the conditions stated in Sec. 25-F of the Industrial Disputes Act, 1947 are conditions precedent and not condition subsequent which could be complied with after effecting retrenchment. The first condition for effecting a valid retrenchment is that the workman sought to be retrenched, must be given one months notice before retrenchment is to become effective in case the services are required to be terminated immediately or before the expiry of one month, the employer is required to pay salary/wages in lieu of one months notice before retrenchment is effected. ;