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2026 DAILYLAW 16689 (HP)

Rajeev Gupta v. State of H. P

2026-02-28

Jyotsna Rewal Dua

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JUDGMENT : Jyotsna Rewal Dua, J. Reference under Section 10(1) of the Industrial Disputes Act, 1947 was answered against the petitioner by the learned Labour Court-cum- Industrial Tribunal, Dharamshala, H.P. Petitioner feels aggrieved against the aforesaid award and hence, has preferred the instant writ petition. 2. Following reference was sent by the appropriate Government for adjudication to the learned Labour Court- cum-Industrial Tribunal:- “Whether the termination of services of Shri Rajeev Gupta s/o Shri Kedar Nath Gupta, Data Entry Operator by the Deputy Commissioner, Kangra at Dharamshala, District Kangra, H.P. w.e.f. after serving him 24 hours notice dated 20.04.2002 (copy enclosed) alongwith draft of Rs.2700/- in lieu of one month notice after paying him retrenchment compensation amounting to Rs.12,150/- is legal and justified? If not, to what back wages, service benefits and relief the above aggrieved workman is entitled to?” Petitioner claimed before the learned Labour Court that his name was sponsored by the Employment Exchange, Dharamshala on 17.07.1992 for the post of Data Entry Computer Operator (Mark A). Petitioner qualified the written examination as also the interview. On the basis of result, his name was recommended and appointment was accordingly offered to him on 28.03.1993 (Mark B) as Data Entry Computer Operator by the Additional Deputy Commissioner, Kangra at Dharamshala. The petitioner accepted the offer and joined as such on 03.04.1993 (Mark C). Petitioner contended that as Data Entry Operator, he served to the best of his ability and was never found lacking in any manner by his superiors. From April, 1993 to November, 1994, he was given the wages on piece rate basis as per terms and conditions of his appointment letter dated 28.03.1993. From December, 1994, he was paid on daily wage basis as per notification issued by the State Government from time to time. However, no separate appointment letter was issued reflecting petitioner’s service being on daily wage basis. Though petitioner continued to work for more than 240 days in each calendar year of his service yet his services were not regularized despite repeated requests. He was compelled to institute Original Application No. 3199/2001 before the erstwhile State Administrative Tribunal inter alia seeking regularization. The original application was disposed of as CWP(T) No.8138/2008 on 4.8.2009 reserving liberty to the petitioner to take up plea of regularization while assailing notice of termination of his service. He was compelled to institute Original Application No. 3199/2001 before the erstwhile State Administrative Tribunal inter alia seeking regularization. The original application was disposed of as CWP(T) No.8138/2008 on 4.8.2009 reserving liberty to the petitioner to take up plea of regularization while assailing notice of termination of his service. This was ordered as the petitioner was shifted to the office of District Planning Officer, Kangra at Dharamshala in the year 1997 where he continued to serve till his service was retrenched by the respondent on 19.04.2002. It was urged for the petitioner that the respondents had changed his services conditions illegally by transferring him from the office of Deputy Commissioner, Kangra at Dharamshala to District Planning Office, Kangra. There was no question of petitioner having been appointed on contract basis w.e.f. September, 1997 in Planning Branch as he was serving on daily wage basis in the office of Deputy Commissioner, Kangra. The petitioner also alleged violation of Section 25-F (c) of the Industrial Disputes Act. 3. Respondents contested the claim on several grounds. According to them, petitioner was not a workman. He was initially engaged as piece rated Data Entry Operator and w.e.f. September, 1997 his remuneration payment manner was changed to daily wages. Petitioner’s services were liable to be terminated with closure of the project. Since petitioner was not engaged against a regular cadre post, his services could not be regularized. Respondents denied violation of any provisions of the Act. Further according to them, petitioner’s services had been engaged on contract basis in September, 1997 in the Planning Department on co-terminus basis and it is for this reason, he has been paid retrenchment compensation for the period by construing his effective service from the year 1997 upto 2002 i.e. in the Planing Department. Learned Labour Court after considering the pleadings, evidence and submissions of the parties, decided the reference petition and dismissed the claim petition on 03.10.2012. In the aforesaid circumstances, the petitioner has moved this Court. 4. Heard learned counsel for the parties and considered the case file. An argument was raised for the petitioner before the Learned Tribunal that Section 25-F (c) of the Industrial Disputes Act had been violated by the respondents. The Section reads as under:- “25F. In the aforesaid circumstances, the petitioner has moved this Court. 4. Heard learned counsel for the parties and considered the case file. An argument was raised for the petitioner before the Learned Tribunal that Section 25-F (c) of the Industrial Disputes Act had been violated by the respondents. The Section reads as under:- “25F. 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; * * * * * (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 continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.” Learned Tribunal has though returned the factual findings in the impugned award that copy of termination notice was not served in the prescribed manner on the appropriate ground by the respondents as envisaged under Section 25-F (c) of the Act but has held that the same will not come to the advantage to the petitioner as aforesaid conditions is not mandatory. Learned counsel for the petitioner has relied upon Mackinnon Mackenzie and Company limited versus Mackinnon Employees Union, 2015) 4 SCC 544 wherein Hon’ble Apex Court in the given facts held that “Appellant company had not complied with the conditions precedent to the retrenchment as per Section 25-F Clause (a) & (c) of the Industrial Disputes Act which are mandatory in law. Relevant paras read as under:- 34. Further, with regard to the allegation against the appellant-Company that its action of retrenchment of the concerned workmen is in contravention with the provisions of Section 25F clauses (a), (b) and (c) of the I.D. Act. Relevant paras read as under:- 34. Further, with regard to the allegation against the appellant-Company that its action of retrenchment of the concerned workmen is in contravention with the provisions of Section 25F clauses (a), (b) and (c) of the I.D. Act. Section 25F clause (a) states that no workmen employed in continuous service for not less than one year under an employer shall be retrenched until 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 notice. In the case on hand, the workman were served with the retrenchment notice on 27.07.1992 stating that their services stand retrenched from the close of business hours on 04.08.1992 in terms of the reasons appended to the said notice and further stated the amount of retrenchment compensation and one month’s salary in lieu of notices that would be due to the concerned workmen. However, no cogent evidence has been brought before us by the appellant-Company to prove that the above referred one month’s salary of the concerned workmen in lieu of the retrenchment notice has been actually paid to them. Further, the concerned workmen were given notice of retrenchment with Statement of Reasons appended therewith by the appellant-Company only on 27.07.1992 which was effective from 4.08.1992. Therefore, one month notice was not given to the concerned workmen before their retrenchment came into effect nor one month’s salary in lieu of the retrenchment notice was paid to the concerned workmen. Therefore, the said action by the appellant-Company is a clear cut breach of the above said provision of condition precedent for retrenchment of the workmen as provided under Section 25F clause (a) of the I.D. Act. The Industrial Court after examining the facts and evidence on record has rightly answered the question of breach of Section 25F clause (b) in the negative since no evidence has been produced by the respondent-Union to prove the same and further no calculation is brought to our notice as to the amount received by way of retrenchment compensation and also the actual amount sought to have been paid to the retrenched workmen. Further, with regard to the provision of Section 25F clause (c), the appellant- Company has not been able to produce cogent evidence that notice in the prescribed manner has been served by it to the State Government prior to the retrenchment of the concerned workmen. Therefore, we have to hold that the appellant-Company has not complied with the conditions precedent to retrenchment as per Section 25F clauses (a) and (c) of the I.D. Act which are mandatory in law.” The above view was reiterated in Raj Kumar versus Director of Education and others, (2016) 6 SCC 541 . Relevant paras read as under:- 33. On the other hand, Mr. S.S. Ray, the learned counsel appearing on behalf of the respondent-School contends that the reason for the retrenchment of the appellant has been explained in detail in the notice dated 07.01.2003. The respondent school had only one car left, while there were three drivers, as the two other cars had been rendered unfit for use. That being the case, the respondent school required the services of only one driver and accordingly, the two junior most drivers were retrenched from service, the present appellant being the junior most driver. It is submitted that all the mandatory conditions as laid down under Section 25-F of the ID Act were complied with, including the payment of retrenchment compensation to the appellant. 34. We are unable to agree with the reasoning adopted by the Tribunal as well as the High Court in the instant case. Admittedly, the notice under Section 25- F(c) of the ID Act has not been served upon the Delhi State Government. In support of the justification for not sending notice to the State Government reliance has been placed upon the decision of this Court in the case of Bombay Journalists (supra). This decision was rendered in the year 1963 and it was held in the said case that the provisions of Section 25-F(c) of the ID Act is directory and not mandatory in nature. What has been ignored by the Tribunal as well as the High Court is that subsequently, the Parliament enacted the Industrial Disputes (Amendment) Act, 1964. This decision was rendered in the year 1963 and it was held in the said case that the provisions of Section 25-F(c) of the ID Act is directory and not mandatory in nature. What has been ignored by the Tribunal as well as the High Court is that subsequently, the Parliament enacted the Industrial Disputes (Amendment) Act, 1964. Section 25- F (c) of the ID Act was amended to include the words: “25-F.(c)....or such authority as may be specified by the appropriate Government by notification in the Official Gazette” The statement of objects and reasons provides: “Opportunity has been availed of to propose a few other essential amendments which are mainly of a formal or clarificatory nature” 35. Nothing was done on part of the legislature to indicate that it intended Section 25-F(c) of the ID Act to be a directory provision, when the other two sub- sections of the same section are mandatory in nature. The amendment was enacted which seeks to make it administratively easier for notice to be served on any other authority as specified. 36. Further, even the decision in the case of Bombay Journalists (supra) does not come to the rescue of the respondents. On the issue of interpretation of Section 25-F(c) of the ID Act, it was held as under: (IR p. 1624, para 12) “12.....The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government to keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provision prescribed by clause (c) a condition precedent as in the case of clauses (a) & (b). There does not appear to be present any compelling consideration which would justify the making of the provision prescribed by clause (c) a condition precedent as in the case of clauses (a) & (b). Therefore, having regard to the object which is intended to be achieved by clauses (a) & (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) & (b), is not a condition precedent.” (emphasis laid by this Court) Thus, this Court read the ID Act and the relevant Rules thereunder together and arrived at the conclusion that Section 25-F(c) is not a condition precedent for retrenchment. By no stretch of imagination can this decision be said to have held that there is no need for industries to comply with this condition at all. At the most, it can be held that Section 25-F(c) is a condition subsequent, but is still a mandatory condition required to be fulfilled by the employers before the order of retrenchment of the workman is passed. 37. This Court in the case of Mackinon Mackenzie & Company Ltd. v.Mackinnon Employees Union held as under: (SCC p.560, para 34) “34......Further, with regard to the provision of Section 25-F Clause (c), the Appellant-Company has not been able to produce cogent evidence that notice in the prescribed manner has been served by it to the State Government prior to the retrenchment of the concerned workmen. Therefore, we have to hold that the Appellant-Company has not complied with the conditions precedent to retrenchment as per Section 25-F Clauses (a) and (c) of the I.D. Act which are mandatory in law.” 39. That being the case, it is clear that in the instant case, the mandatory conditions of Section 25F of the ID Act to retrench a workman have not been complied with. The notice of retrenchment dated 07.01.2003 and the order of retrenchment dated 25.07.2003 are liable to be set aside and accordingly set aside.” Learned counsel for the petitioner also urges that petitioner was engaged pursuant to sponsoring of his name by the Employment Exchange, Dharmashala. Consequently, he was offered appointment on 28.03.1993 as Data Entry Computer Operator by the Additional Deputy Commissioner, Kangra at Dharamshala where he joined as such on 03.04.1993. The petitioner was transferred in 1997 to the Planning Branch. Consequently, he was offered appointment on 28.03.1993 as Data Entry Computer Operator by the Additional Deputy Commissioner, Kangra at Dharamshala where he joined as such on 03.04.1993. The petitioner was transferred in 1997 to the Planning Branch. The respondents had illegally & unlawfully changed the service conditions of the petitioner without his concurrence. Retrenchment compensation had also been paid to the petitioner only for the service rendered by him in the Planning Department and not for the period when he served in the office of Deputy Commissioner. Even in the office of Deputy Commissioner, Kangra, the service conditions of the petitioner had been changed after one year. The aforesaid aspects have not been properly appreciated by the learned Labour Court. There is no effective discussion on the above factual aspects. The law laid by Hon’ble Apex Court in Mackinnon Mackenzie2 & Raj Kumar3 is also required to be considered vis-a-vis plea of violation of Section 25-F(c) taken by the petitioner in accordance with law. Hence, for the aforesaid reasons, the impugned award dated 03.10.2012 in reference titled as Rajeev Gupta versus Deputy Commissioner, Kangra Dharamshala (Annexure PA), passed by the Industrial Tribunal-cum- Labour Court, Kangra at Dharmashala is quashed and set- aside. Matter is remanded for afresh decision to the learned Labour Court. Keeping in view the age of the case, it is hoped and expected that decision shall be arrived at expeditiously as possible preferably within six months. Petition is accordingly disposed of Pending miscellaneous application(s), if any, shall also stand disposed of.