Failure Of Corporation To Comply With Sec 25F ID Act While Putting End To Services Of Employee Amounts To Retrenchment: J&K&L High Court

Finding that the way the first respondent was not adjusted by the petitioner corporation after the Centre at Wathoora was closed, amounts to his retrenchment, the Jammu & Kashmir & Ladakh High Court held that petitioner has not fulfilled the requirement of Section 25F of the Industrial Disputes Act while putting an end to the services of first respondent.

Therefore, the High Court refused to interfere in the award passed by the Tribunal, holding that the Tribunal was well within its jurisdiction to direct reinstatement of the first respondent.

A Single Bench of Justice Sanjay Dhar observed that “even though there is no specific order of termination issued by the petitioner corporation but having regard to the conduct of the said corporation in not allowing respondent No.1 to be posted at one of its centers' as was done in respect of his other colleagues would certainly amount to retrenchment”.

Dy. AG Raees-ud-Din Ganai appeared for the Petitioner, whereas Advocate M. A. Qayoom appeared for the Respondent.

The brief facts of the case were that in the year 1982, the first respondent was engaged as Assistant Craftsman for a period of 18 months by the petitioner in terms of engagement order. Initially first respondent was posted at Aalikadal and later on he was transferred to Training Centre, Wathoora. When the said Training Centre was closed, the first respondent approached the the authorities of the petitioner to adjust him as had been done in the case of his other colleagues. Ultimately, first respondent served a legal notice along with an application requesting the petitioner that his case be considered on sympathetic basis. Later, the respondent approached the Assistant Labour Commissioner, who observed that services of respondent have been terminated without adhering to the relevant provisions of Industrial Disputes Act. Resultantly, the Government of J&K made a reference of industrial dispute to the Tribunal which held that that termination of respondent from service is illegal and that he is entitled to reinstatement with notional benefits.

After considering the submissions and the definition of retrenchment as it stood at the relevant time, the Bench observed that termination of services of a workman for any reason whatsoever excepting on account of voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation or termination of service of a workman on the ground of his ill health, every situation of cessation of service of a workman would come within the embrace of the definition of retrenchment.

The Bench found that first respondent was appointed on contract basis as Assistant Craftsman along with 24 more persons for a period of 18 months and his service was purely temporary in nature terminable at any time even before the expiry of the said period without any formal notice and without assigning any reason.

The Bench also noted that it is admitted case of the parties that the Training Centre at Wathoora, where first respondent was last posted, was closed well before the period of his contractual service was to expire.

“It is also admitted case of the parties that respondent No.1 and his other colleagues were asked by the petitioner corporation to report to the head office. There is no dispute to the fact that other persons who were appointed along with respondent No.1 were later adjusted in the petitioner corporation and it is only respondent No.1 who was left out”, added the Bench.

The High Court elucidated that the first respondent has kept on attending the head office and requesting the authorities to issue adjustment orders in his favour but his requests fell on deaf ears, which compelled him to serve a legal notice upon the petitioner in the year 1988.

“It is an admitted case of the petitioner Corporation that no order of termination was issued by it against respondent No.1 and obviously the provisions of Section 25F of the Act were not followed but the stand of the petitioner Corporation is that there was no necessity of issuing termination order because as per the terms of engagement of respondent No.1, his services would have otherwise come to an end after one and a half years because there was no stipulation with regard to renewal of the contract of his service. In this regard reliance has been placed upon the provisions contained in Clause (bb) of Section 2 (oo) of the Act”, added the Court.

Thus, the Bench concluded that the first respondent has not voluntarily abandoned his services but it was the action/omission of the petitioner of not issuing the orders of his adjustment that prevented him from discharging his functions.

Cause Title: Managing Director, J&K Handicrafts v. AGA Syed Mustafa and Anr.

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