K.L. JOseph, J.
1. The petitioner who was the owner of two buses (KLO 7288 and KL/6286) questions the validity of Ext. P4 award passed by the 2nd respondent Industrial Tribunal, Alleppey, in I.D.No. 31/1988 passed in a dispute between the petitioner and the 1st respondent union representing the workman by name P.M. Muraleedaran Nair in this proceedings under Article 286 of the Constitution of India.
2. According to the petitioner, he purchased this bus KLO 7288 from the previous owner one Shri. Sebastian, who engaged the said Muraleedaran Nair as conductor in the said bus. It is the case of the petitioner that when he purchased the bus from its previous owner, all the of the claims above named Muraleedaran Nair including claim for retrenchment compensation had been paid by the previous owner of the vehicle. According to the petitioner the above named Muraleedaran Nair was employed by him only in a subsequently purchased vehicle by him KLO 6282 for January 1986 and he had decided to dispose of the above buses in October 1985 and thereby decided to retrench the said worker from his service being the junior-most employee under him. According to the petitioner the employee did not have 240 days of continuous service under him. Since the service of the above employee was utilised by the petitioner only for a period of 20 days in a month therefore the service of the said employee was interrupted during the course of his employment. The petitioner further states that consequent to his decision to dispose of the above bus, the matter was informed to all the temporary workers employed in the bus including the employee mentioned above and they were already directed to receive compensation. But it is the further case of the petitioner that though the other workers attached to the said bus had received compensation pursuant to the oral notice that had been given, the said employee did not accept the same and thereafter Ext. W1 notice dated December 27, 1986 was issued by the petitioner to the employee making his service retrenched from his employment. The employee and the union representing the case of the employee did not act pursuant to the said retrenchment notice. They filed Ext. P1 claim statement before the 2nd respondent, Industrial Tribunal requesting the said tribunal for an adjudication of the dispute between the petitioner and 1st respondent union representing the said employee as an industrial dispute and prayed for reinstatement of the workman in the service of the petitioner with all backwages and additional increment of Rs. 50/-
3. On receipt of Ext. P1 claim statement, the petitioner had filed his written objection before the 2nd respondent wherein it stated that the worker P.B. Muraleedaran Nair was one of the junior-most conductors in his establishments. He had also contended that the statement of the worker that his services were taken over by the petitioner on purchase of the vehicle KLO 7288 is incorrect. He has further stated that the claims of the worker at the time of transfer of the vehicle in his favour were settled and thereafter he purchased a new vehicle with Regn. No. KLX 6286, Since the said bus cannot get any pucca permit, he has decided to dispose of the said vehicle and retrench the workers attached to the said bus. Being juniormost crew among the conductors working under the petitioner, he has retrenched the worker Muraleedaran Nair also. According to the petitioner in the written objection it is stated that the worker had only service of an average of 20 days per month and hence he was in-eligible to claim any retrenchment benefit from him. It is also stated in Ext. P2 that the petitioner has reduced his operations and now he has only two bus services, one in the route Pon-mudly Palai and another on Kambilikandam-Ernakulam. He has, therefore, submitted before the Industrial Tribunal that when he disposed of the vehicle he had no other go than to dispense with the service of the juniormost employee.
4. On receipt of Ext. P2 written objection, the 1st respondent union has filed a rejoinder before 2nd respondent Industrial Tribunal on May 3, 1989 reiterating the contentions raised by the union in Ext. P1 claim statement. They had further denied the statement of the petitioner that the worker was the juniormost conductor in the employment of the petitioner. The Union also denied the statement that the worker and other employees were informed by the petitioner about the disposal of the vehicle. According to the union and the worker, after work in the month of November 1986, when the worker reported for duty on December 1, 1986 before the petitioner he was not allowed to do any work and he was directed to report on the next day and this was continued till December 26, 1986, on which date Ext. W1 notice was served on his terminating him service. It is the further case of the 1st respondent union and the worker that no offer was made by the petitioner regarding the retrenchment compensation or notice pay as contemplated under Section 25F of the Industrial Disputes Act and, therefore, the retrenchment of the worker is clearly illegal and unjust. They also reiterated the statement in Ext. P1 that the worker Muraleedaran Nair is not the juniormost conductor in the service of the petitioner and, therefore, the retrenchment effected in violation of Section 25-F of the Industrial Disputes Act is clearly illegal and, therefore, they prayed reinstatement of the worker with all arrears of back-wages.
5. In the light of the above pleadings, the 2nd espondent Industrial Tribunal adjudicated the dispute. Before him 3 witnesses were examined on behalf of the workman and two witnesses were examined on behalf of the petitioner management. Documentary evidence also was produced by both sides before the 2nd respondent Tribunal. After considering the entire matter in great detail, the 2nd respondent came to the conclusion that the employee was employed in the service of the petitioner only from October 18, 1985 and therefore, he is not entitled to get any benefit on the basis of his previous service as conductor with the previous owner. The tribunal also found that the continuous service of the workman started from October 18, 1985, the date on which the petitioner had purchased the vehicle and started operation of the service on the route covered in the permit for the said vehicle. The tribunal further found that after November 16, 1986, the workman did not work: under the employer and he was given retrenchment notice only on December 26, 1986 evidenced by Ext.W1 produced before the Industrial Tribunal. The petitioner's case that before giving Ext.W1 notice, he had given oral notice of retrenchment was not accepted by the industrial Tribunal. The Industrial Tribunal further found in Ext.P4 award that the workman was under the service of the employer (the petitioner herein), immediately after the transfer of the vehicle in his name with effect from October 18, 1985. After considering the practice followed in the industry, the Industrial Tribunal found that the cessation of work in between two duty periods cannot be due to any fault on the part of the operating crew and that it is the usual practice prevailing in the passenger service operator and therefore, he rejected the contention of the petitioner that the workman had not worked for 240 days in a calendar year immediately preceding the date of retrenchment of the worker. Therefore, the Industrial Tribunal held that the workman had rendered service for more than one year under the petitioner and during the period of one year he worked for more than 240 days in the services of the petitioner and, therefore, the Industrial Tribunal further found that the worker is entitled to the retrenchment compensation and notice pay in terms of Section 25-F of the Industrial Disputes Act. Ext. P4 award concluded with the finding of the Industrial Tribunal that Ext. W1 retrenchment notice does not indicate that the workman was offered compensation also along with the offer of one month's wages at the time of retrenchment. The Tribunal further found that since no compensation was either offered or given, it can only be held that the retrenchment was in violation of Section 25 of the Industrial Disputes Act and in that case, the retrenchment is declared as non-est in the eye of law, following the decision reported in Mohanlal v. Management of Bharath Electronics Ltd. (1981-II-LLJ-70), the Industrial Tribunal ordered that the workman will be deemed to be in service, till he is validly retrenched in accordance to the provisions contained in the Industrial Disputes Act. The petitioner challenges the validity of the said Ext. P4 award in this Original Petition.
6. Even though notice was served on the respondents, they did not file any counter affidavit in the case. I heard the learned counsel for the petitioner. According to the learned counsel, there is no justification for the findings arrived by the Industrial Tribunal in Ext. P4 regarding the nature of employment of the employee in his service. According to the learned counsel, the employee did not work 240 days service within a continuous period of 12 months which would entitle him to claim the benefit of retrenchment compensation under Section 25-F of the Industrial Disputes Act. The learned counsel also submits that, at any rate, there is no justification for declaring the termination of service of the employee as illegal and the retrenchment was non-eat. The learned counsel further submitted since the bus in which the employee was employed itself had been disposed of, there is no justification in ordering continuance of the employee in the service and such declaration is clearly illegal and contrary to the provisions contained in Section 25-F of the Industrial Disputes Act.
7. I see no substance in the arguments advanced by learned counsel for the petitioner. The Industrial Tribunal 2nd respondent has come to the conclusion that the employee has rendered service for more than one year under the petitioner and during the period of one year, he worked for more than 240 days also. The Industrial Tribunal after taking into consideration of the evidence of both witnesses examined on behalf of the management including the evidence of the petitioner himself who accepted the case of the union was examined as MW 2. The Industrial Tribunal considered the evidence given by the employee before him that it is the usual practice that a conductor and driver in a bus will work only 15 days in a month. Industrial Tribunal also considered the evidence of the employer in that aspect of the matter, wherein according to the employer the conductor and driver in a bus will work for 20 days in a month and their duration of working hours in a day is 10 to 12 hours and despite these work for more than 6 hours in a day, they are not paid any overtime wages. The Industrial Tribunal also considered the evidence given by the petitioner that although a bus crew will work only in 20 days in a month, they were paid wages for one month on the assumption that they had worked for the whole month.
8. Considering the evidence accepted before the tribunal the Industrial Tribunal came to the conclusion that the off-duty days extending from 10 to 15 days are allowable for all bus crew depending upon their continuous work of 15 to 20 days in a month. The Industrial Tribunal, therefore, found the cessation of work in between two duty periods cannot be due to any fault on the part of the operating crew and that it is the usual practice prevailing in the passengers service operation. In the light of the above finding, the Industrial Tribunal rejected the contention of the petitioner that the workman had not worked for 240 days in a calendar year immediately preceding the date of his retrenchment. The said finding is fully justified in the light of the provisions contained in Section 25-F of the Industrial Disputes Act also.
Therefore, the first contention raised by the learned counsel for the petitioner is not substantiated. The next contention raised by the petitioner is that there is no basis to find that the retrenchment of the worker as 'non-est in the eye of law'. The Industrial Tribunal, on the evidence adduced before it, found that no notice was issued to the worker except Ext. W1 notice dated December 26, 1986. The said notice is not in conformity with Section 25F of the Industrial Disputes Act. A copy of the said notice was made available to me by the learned counsel for the petitioner. The said notice only informed the petitioner to receive wages calculating the amount in the light of the daily wages received by the worker and direct him to relieve himself from the service of the petitioner. The said notice cannot be considered to be a notice contemplated under Section 25-F of the Industrial Disputes Act. The conditions precedent to retrench a worker or retrenchment of a workman had been specifically stated in Section 25-F of the Industrial Disputes Act which reads as follows:-
' 25-F. Conditions precedent to retrenchment of workman - No workman employed in an 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 worker has been given one month's notice in writing including 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.'
9. Therefore, for a proper and legal retrenchment of the workman, he should be given one month's notice indicating the reasons for retrenchment or the workman has been paid in lieu of such notice, wages for the period of the notice and the workman has been paid at the time of retrenchment compensation which had been equivalent to 15 days average pay for every completed year of continuous service or part thereof in excess of six months.
Admittedly, the notice or letter given to the workman dated December 26, 1987 did not satisfy any of these statutory requirements.
There is a statutory liability in a employer to pay compensation to his workman in the event of his being retrenched as contemplated under Section 25F of the Act. Notice of retrenchment is not necessary where the employer pays wages for the notice period. If the workman is retrenched without giving one month's notice, his wages for the period of notice must be paid before he has to go.
Non-compliance with payment of one month's notice pay rendered retrenchment invalid and inoperative and I am justified in arriving at the said conclusions in the light of the decisions of the Supreme Court reported in National Iron & Steel Co. v. State of West Bengal and Anr., (1967-II-LLJ-23) and K.V. Gopinath, Sorter R.M.S. Ernakulam v. Senior Superintendent, RM.S. (1969 K.L.J. 560). Non-compliance of one month's pay and if the termination and retrenchment is illegal, there is neither termination nor cessation of service and it follows that the workman cocerned continues to be in service with all consequential benefits. This has been held so by the Supreme Court in the decision reported in Mohanlal v. Management of Bharath Electronics Ltd. (supra). Again the Supreme Court in its decision reported in State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors.. (1960-I-LLJ-251) it is held that the requirement by Section 25-F(b) of the Act is a condition precedent in the retrenchment of the workmen and non-compliance renders the impugned retrenchment invalid and inoperative.
10. In the light of the above pronouncement of the Supreme Court, it cannot be held that the petitioner has complied with the statutory mandate contained in Section 25F of the Industrial Disputes Act in the matter of retrenchment of theworkman. Such a retrenchment is, therefore, clearly illegal and unjust.
11. It is the case of the respondent union representing the workman that he is not the jun-iormost conductor in the service of the petitioner. Admittedly the petitioner owns two other buses and conducting services with those two buses. This has been stated so in the written objection filed by the petitioner before the Industrial Dispute evidenced by Ext. P2 produced in this case. There is no evidence adduced or considered by the Industrial Tribunal regarding the other conductors remaining in the service of the petitioner and whether they are seniors or juniors to the workman. Since the termination of service of the workman is found to be against the provisions contained in Section 25F of the Act, it must be held that the said order of retrenchment has never been made and it must ordinarily lead to back wages.
I am fortified in arriving at the said finding in the light of the decision reported in S.K. Varma v. Industrial Tribunal-cum- Labour Court, New Delhi (1981-I-LLJ-386 at 389).
12. In the light of the above legal position I see no illegality or irregularity or impropriety in the order passed in Ext.P4 award passed by the Industrial Tribunal, warranting interference in Articles 226 and 227 of the Constitution of India. In Ext. P4, the Industrial Tribunal has found that the workman will be deemed to be in service till he is validly retrenched in accordance with the provisions contained in the Industrial Disputes Act. Therefore, in case the petitioner wants to terminate the service of the workman, it is perfectly open for him to take appropriate action in accordance with the provisions contained in the Industrial Disputes Act. In the light of the above findings, I see no justification to interfere with Ext.P4 award passed by the Industrial Tribunal, There is no merit in the Original Petition and the same is dismissed. But in the circumstances, there will be no order as to costs.