JUDGMENT Anjani Kumar, J.
1. This writ petition under Article 226 of the Constitution of India was decided by this Court vide its judgment and order dated 31st August, 2001, whereby this Court allowed the writ petition filed by the petitioner and quashed the award of the Labour Court dated 20th May, 1992.
2. The employer-respondent No. 2 in the present writ petition, aggrieved by the order passed by this Court, preferred a Review Application No. 84200 of 2001. This Court after hearing learned Counsel appearing on behalf of the parties vide its judgment and order dated 22nd April, 2002 rejected the aforesaid application.
3. The employer-respondent No. 2 aggrieved by the order passed by this Court, filed a Special Leave Petition (Civil) Nos. 21145-21146 of 2002 before the Supreme Court. The Supreme Court was pleased to grant leave and decided the Civil Appeal Nos. 7028-7029 of 2003 vide its judgment dated 1st September, 2003. The Supreme Court directed the matter to be decided afresh by this Court, the relevant portion of the order dated 1st September, 2003 is quoted below:--
"When the matter came up before the High Court under Article 226, the High Court appears to have assumed that the respondent is entitled to relief under Section 25F without considering the issue whether the Labour Court's factual finding in respect of Section 25FFF was incorrect and if so why?
All that the High Court has stated even when the matter was drawn to its attention by way of a review petition was, that "from the writ petition as well as from the perusal of the award also it cannot be is said or inferred that the industry in question is closed down". This is no reason at all. Accordingly, the appeals are allowed. The decision of the High Court is set aside and the matter is remanded back to the High Court to decide all issues raised.
There shall be no order as to costs."
4. It is pursuant to the aforesaid direction of the Supreme Court that the matter came up before this Court. The facts leading to the filing of this writ petition are that the petitioner Surendra Prasad Dwivedi, who was employed with the respondent, raised an industrial dispute, which was referred to Industrial Tribunal (I), U.P., Allahabad that his services were terminated by means of an order dated 31st March, 1989 by the employer-respondent No. 2 without complying with the provision of retrenchment as provided under Section 6-N of the U.P. Industrial Disputes Act, 1947, In short 'U.P. Act', and the provision of Section 25F of the Industrial Disputes Act, 1947, In short 'Central Act'.
5. I have heard learned Counsel appearing on behalf of the petitioner as well as learned Counsel appearing on behalf of the employer.
6. The employer recruited the petitioner-workman on 24th March, 1987 on the post of Supervisor and directed the petitioner to work at such places, including Singrauli, where the workman last worked when his services were terminated on 31st March, 1989. It is admitted case of the parties that no letter of appointment was issued to the workman. The following dispute was referred to for adjudication to the Industrial Tribunal (I), U.P., Allahabad :
"KYA SEWAYOJKON DWARA APNE SHRAMIK SRI SURENDRA PRASAD DWIVEDI PUTRA SRI VISHESH DUTT DWIVEDI, SUPERVISOR/KARMCHARI KE SEWAYEN DINANK 31.3.1989 SE CHHATNI KE PHALSWAROOP SAMAPT KIYA JANA UCHIT/VAIDHANIK HAI? YADI NAHI, TO SAMBANDHIT SHRAMIK KYA LABH/ANUTOSH PANE KA ADHIKARI HAI EVAM ANYA KIS VIVRAN KE SATH?"
7. The parties have exchange their pleadings and adduced the evidence after receipt of the notice from the Tribunal and the Tribunal after hearing learned Counsel for the parties answered the reference vide its order dated 20th May, 1992, which reads thus:--
"I think that the termination of Surendra Prasad Dwivedi s/o Sri Vishesh Dutt Dwivedi, Supervisor through the order dated 31.3.1989 is proper and valid in the facts and circumstances of the case. However, he is entitled to the compensation etc. as contemplated by the provisions of Sections 25FFF(1) and (2) of the Industrial Disputes Act."
8. Aggrieved by the aforesaid order, the petitioner-workman challenged the aforesaid award of the Tribunal by means of present writ petition, which as stated above has come up for hearing after the matter has been directed by the Supreme Court to be decided afresh.
9. The petitioner-workman filed written statement before the Tribunal, wherein it is stated that the workman was appointed on 24th March, 1987 as Supervisor by the General Manager of the employer and that at the time of appointment, no letter of appointment had been issued to the workman concerned. It has not been decided at the time of the appointment as to which place the petitioner will work. At the time of appointment, the petitioner was paid Rs. 750/-per month and thereafter Rs. 900/- per month. The workman further states in his written statement that after completion of 240 days, the workman requested the employer that he may now be regularized. This annoyed the employer, the employer by means of notice dated 3rd March, 1989 terminated the services of the workman by saying that due to completion of Rehand NTPC site, the workman's services are no longer required. The notice reads as "....you will be retrenched on 31st March, 1989. The workman has further took up the case that the workman is a Diploma-holder in the Civil Engineering and while terminating the services of the workman, the employers have not followed the principles of Last come First go, as they have retained such employees, who were recruited after the workman concerned and their services have not been terminated. The workman concerned is covered by definition of the 'Workman' under the U.P. Act as well as the Central Act. The aforesaid termination of services of the workman amounts to retrenchment and after retrenching the workman concerned, the employers have not complied with the provision of Section 6-N of the U.P. Act and Section 25FFF of the Central Act.
10. The employers have filed their written statement before the Tribunal and the employers' case was that the employer Company, namely, M/s. Triveni Structural Limited is a Public Limited Company and carries on the business of fabrication, supply and erection of heavy steel structural i.e. towers, pen stock, pressure vessels and building structures etc. through public tender in different parts of India and abroad also. All the contract works undertaken by the Company to be completed within specified time and for the completion of the said contract work at different sites, the Company engages some employees of different category at the site itself on daily rate and these employees are employed till the completion of the work at the site or even earlier as the case may be, but not beyond the completion of the work at the site. It is admitted by the employers that the employees are not given any appointment letter, but they are kept on muster roll and mostly on daily rate. So far as the regular employees are concerned, there is a proper procedure of appointment, such as vacancies are advertised, test/interview of deserving candidates are held by the Selection Committee and after the declaration of result successful candidates are issued offer of appointment in writing giving details of scale of pay and other allowances, including terms and conditions of appointment, but no such appointment was made in case of the workman concerned. The employer's further case is that temporary workman employed at the site for specific period, do not have to undergo the procedure of regular appointment,
11. Coming to the case of the workman concerned, it is stated by the employer that since some contract was going on at Bilaspur site, where the erection work was going on and the workman concerned was appointed as a daily wager on Rs. 25/- per day and he worked only, for about two months i.e. from 24.3.1987 to 22.5.1987 and his services came to end at Bilaspur site and he received his full and final payment on 22nd May, 1987. The employers' further stated that same work was going on at Singrauli site and therefore, the workman was given fresh appointment and he was re-employed on 23rd May, 1987 at Singrauli site at the rate of Rs. 30/- per day, where he worked from 23.5.1987 to 4.4.1989 when the work at Singrauli site was completed in the month of March-April, 1989. The workman concerned was duly informed on 3rd March, 1989 that his services will come to end on 31st March, 1989. The workman concerned has been paid all his dues up to 31st March, 1989, including retrenchment compensation, but he refused to receive the same and ultimately he took only his salary up to 25th April, 1989, but did not receive the retrenchment compensation. The categorical case set up by the employer is that "in case of such contract work taken at the site if it is closed down on account of completion of work within two years, no retrenchment of compensation payable under Section 25F(2) and if it is beyond two years, he is entitled to retrenchment benefit". The employers' further case is that "the closure of an undertaking at the site due to completion of the work and if on account of such closure the services of the employees are terminated, the retrenchment benefits on account of such closure are not condition precedent and the workman is entitled only to the retrenchment benefit in accordance with law". It is further stated by the employer that the workman concerned was also engaged in a particular site at Bilaspur and thereafter at Singrauli and his services came to an end on the completion of work of site. The workman, therefore, cannot claim retrenchment compensation as are paid to the employment of regular employee at the Head Office at Allahabad.
12. On the rival case set up by the workman concerned as well as by the employer, the parties led the evidence and after considering the rival pleadings and evidence, the Tribunal has come to the conclusion that the workman's case is not covered by the retrenchment as it was a case of closure, therefore, the workman concerned is not entitled for the benefit of provision of Section 25F of the Central Act or Section 6-N of the U.P. Act.
13. Before this Court, learned Counsel appearing on behalf of the petitioner-workman has raised a question that in the circumstance of the present case, the case set up by the employer that the termination of services of the workman concerned is in fact termination due to the closure of the undertaking and the same cannot be equated or treated to be retrenchment and at the most, the workman concerned is entitled to the closure compensation and not the retrenchment compensation. It is further contended by learned Counsel for the workman that the Tribunal has erred in holding that the petitioner-workman is not entitled for the retrenchment compensation and that the employers could have terminated the services of the workman concerned without complying with the provision of retrenchment as contemplated under Section 25F of the Central Act or Section 6-N of the U.P. Act. Learned Counsel for the petitioner-workman relied upon three Judges' decision of Supreme Court reported in 1984 (48) FLR 310, Gammon India Limited v. Niranjan Dass, wherein the Supreme Court has dealt with the controversy in the following set of facts, the notice in the case of Gammon India (supra) reads thus:--
"Due to the reduction in the volume of business of the Company as a result of the recession you services will not be required by the Company after the 14th October, 1967, and this may be treated as statutory notice of one month of termination of your service.
Your leave shall run concurrently with the notice period, and you may avail of leave due to you, if any, during the notice period.
Personal Section at Head Office have been advised to settle you, dues, and you may write to them in the matter.
We take this opportunity to thank you for your past services, and it is very unfortunate that the present circumstances have compelled us to issue this notice.
Should it be possible for us to offer you a job at any of our works sites at a later date, we shall make you a fresh offer at that time."
14. On the basis of the aforesaid notice, a reference was made, which was couched in the following language:--
"Whether the retrenchment of Sri Niranjan Dass is unjustified or illegal and if so, what directions are necessary in this respect."
15. The Apex Court has dealt with the controversy with the following words :--
"...The notice recites that as a result of recession in the volume of work of the Company, services of the respondent would no more be required by the Company after 14th October, 1967, and this notice may be treated as a statutory notice as contemplated by Section 25F(a). There is not even a whisper in the notice that as the Delhi office is being closed down, the services of the respondent would not be required. An attempt was made while leading evidence before the Industrial Tribunal to show that the Zonal Office at Delhi was closed on 31st January, 1968, while the Central Zone Office was closed somewhere in October, 1967. If by September, 1967, the appellant-Company had resolved to close the office at Delhi to which the respondent was attached, it is unthinkable that aspect would not be recited in the notice. The necessity for termination of service of the respondent recited in the notice was recession in the work handled by the Company. Not even one word is stated in the notice that the office to which the respondent was attached was in the process of being closed down, so his services would be no more be required. On a true construction of the notice, it would appear that the respondent had become surplus on account of reduction in volume of work and that constitutes retrenchment even in the traditional sense of the term as interpreted in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union, though that view does not hold the field in view of the recent decisions of this Court in State Bank of India v. N. Sondara Money, Hindustan Steel Ltd. v. Labour Court, Orissa, Santosh Gupta v. State Bank of Patiala, Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherjee, Mohan Lal v. Bharat Electronics Ltd. and L. Robert D'Souza v. Executive Engineer Southern Railway. The recitals and averments in the notice leave no room for the doubt that the service of the respondent was terminated for the reason that on account of recession and reduction in the volume of work of the Company, the respondent had become surplus. Even apart from this, the termination of services for the reasons mentioned in the notice is not covered by any of the Clauses (a), (b) and (c) of Section 2(oo), which defines retrenchment, and it is by now well-settled that where the termination of service does not fall within any of the excluded categories, the termination would be ipso facto retrenchment. It was not even attempted to be urged that the case of the respondent would fall in any of the excluded categories. It is, therefore, indisputably a case of retrenchment.
It is not disputed that the pre-requisite for a valid retrenchment as laid down in Section 25F has not been complied with and, therefore, the retrenchment brining about termination of service is ab initio void. Viewed from this angle, the award of the Industrial Tribunal was correct and unassailable and the learned Single Judge was in error in interfering with the same. Undoubtedly, the Division Bench of the High Court has set aside the order of the learned Single Judge and restored the award for reasons of its own. However, for the reasons herein indicated, the decision of the Division Bench in Letters Patent Appeal No. 25 of 1970 is up-held and confirmed and this appeal must, therefore, fail and accordingly it is dismissed."
16. Learned Counsel appearing on behalf of the petitioner-workman submitted that the employers "cannot be permitted to lead evidence in a case, which has not been pleaded by them, as laid down in the case reported in 2004 (100) FLR 1069, Daulat Singh and Ors. v. Railway Employees Co-operative Banking Society Ltd. and Anr.. Paragraph 12 relied upon by learned Counsel for the workman is reproduced below:--
"12. Thus, the learned Division Bench committed serious illegality in reversing the finding of fact recorded by the Prescribed Authority affirmed by the learned Single Judge on a point that was not pleaded by the employer at any stage and was even otherwise untenable."
17. Here in the present case, learned Counsel appearing on behalf of the petitioner-workman led emphasis of Annexure-'2' to the writ petition, the termination notice dated 3rd March, 1989, along with the written statement filed by the employer and submitted that the notice, in the present case, cannot be said to the notice of the case of Gammon India Ltd. (supra) and the employers cannot be permitted to lead evidence beyond their pleadings, therefore, the award of the Tribunal deserves to be set aside and the workman concerned is entitled for reinstatement with full wages and continuity of service.
18. Learned Counsel appearing on behalf of the workman further relied upon a decision reported in AIR 1967 Supreme Court 1206, National Iron and Steel Col. Ltd., and Ors. v. The State of West Bengal and Anr., wherein Paragraph 9 has been relied upon by learned Counsel for the petitioner, which is reproduced below:--
"9. The third point raised by the Additional Solicitor General is also not one of substance. According to him, retrenchment could only be struck down if it was mala fide or if it was shown that there was victimization of the workman etc. Learned Counsel further argued that the Tribunal had gone wrong in holding that the retrenchment was illegal as Section 25F of the Industrial Disputes Act had not been complied with. Under that section, a workman employed in any industry should not be retrenched until he had been given one month's notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lieu of such notice, wages for the period of the notice. The notice in this case bears the date November 15, 1958. It is to the effect that the addressee's services were terminated with effect from the 17th November and that he would get one month's wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. Manifestly, Section 25F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with Section 25F, we need not consider the other points raised by the learned Counsel. This conclusion receives support from the observations of this Court in Bombay Union of Journalists v. State of Bombay, (1964) 6 SCR 22 at pp. 81-82 : AIR 1964 SC 1617 at p. 1623. Incidentally it may also be pointed out that the retrenchment of Sushil does not seen to be otherwise justified in that following the principle of 'last come first to go', Sushil could not be called upon to leave the Company's service. Another employee by name Joy Kishen, junior to Sushil was retained in service. No doubt, the Labour Officer, Jha , to make out a case in his oral evidence the Joy Kishan was retained in service because he was doing a special job at the time while Sushil was not. The Tribunal rejected this contention on the ground that this plea had not been put forward in the written statements of the Company and we do not see any reason why we should take a different view."
19. Learned Counsel for the petitioner further contended that in view of the discussions made above in the case of M/s. National Iron and Steel Co. Ltd and others (supra), the Supreme Court has held that the plea which has not been put forward in the written statement of the Company, cannot be termed to be pleaded by leaving heirs.
20. The aforesaid submissions advanced on behalf of learned Counsel for the petitioner has been replied to by learned Counsel appearing for the respondent-employer, who placed reliance of the case reported in AIR 1960 SC 878, wherein the Constitution Bench of the Supreme Court has held the validity of Section 25FFF of the Central Act. Learned Counsel for the employer has submitted that the present is the case is not of retrenchment, but that of closure, which is covered by Section 25FFF and not by Section 25F of the Central Act. It is admitted case of the parties that there is no pari materia provision to Section 25FFF of the Central Act under the U.P. Act. Learned Counsel for the employer further relied upon a Full Bench decision reported in 1979 LIC (12) 1979, wherein the Full Bench has held that if the retrenchment compensation has not been paid, the discharge notice in the case of the retrenchment will not put the termination at par with the ground of closure.
21. In view of the direction issued by the Supreme Court in the present case, the submission advanced by learned Counsel for the petitioner what this Court to decide, as no further issue has been raised except that in the facts and circumstances of the case, the termination of the services amounts to retrenchment within the meaning of Section 25F of the Central Act and Section 6-N of the U.P. Act and coming the notice of the termination of the services of the workman from the future date on the pretext that the work at the site has completed would not and cannot amount of closure of the undertaking because it is admitted case that the employer is still carrying on their business, couple with the facts of the case that the petitioner was appointed at Allahabad, he was deputed to a site at Bilaspur and thereafter according to the petitioner, he was transferred from Bilaspur to Singrauli and according to the employer, he was re-employed at Singrauli. It is admitted case of both the parties that now the work at Singrauli is also over. It is also admitted case of the employer that the petitioner was appointed at Allahabad where the new office of the Company situate and after his appointment has been transferred to Bilaspur and thereafter to Singrauli. The Tribunal has dealt with the situation in the following words:--
"The concerned workman joined work on 23.5.67 when his employment at Bilaspur was terminated and final payment was made in that connection. The workman appears to taken advantage of writing that he was relieved from Bilaspur site, Even if the concerned workman was relieved from Bilaspur to Singrauli that would not make any difference in the temporary nature of employment enjoined by the concerned workman. There is no dispute between the parties that the concerned workman had worked for more than 240 days in a year. The contention of the learned Counsel for the employer is to the effect that with the closing down of project by the Company, the services of the workman would come to an end. In view of the provisions of Section 25F of the Central Act, the concerned workman will be entitled to only retrenchment compensation. According to him the non-payment of retrenchment compensation will not vitiate the termination orders passed against the workman concerned in the facts and circumstances of the case. The representative of the workman has emphasized that the workman had worked for more than 240 days in a year, therefore, he is entitled to the relief claimed in the statement of the case for non-compliance of the provisions of Section 6-N of the U.P. Industrial Disputes Act. The only suggestion made by the learned Counsel for the employer is to the effect that the provisions of the U.P. Industrial Disputes Act, 1947 will be in-applicable to the case of retrenchment contemplated by the provisions of Section 25FFF of the (Central Act)."
On the basis of the aforesaid observations of the Tribunal, learned Counsel for the petitioner submitted that the these findings are based on misreading of the material on record and the employers cannot be permitted to lead the evidence beyond their pleadings in the written statement. The employer have categorically stated in their written statement before the Tribunal in Paragraphs 8, 9 and 10, which read thus:--
"8. That the temporary workman employed at the site for specified period do not have to undergo the procedure of regular appointment nor they are allotted any personal number by the Company.
9. That at the material time some contract work was going on at Bilaspur site where tower erection was going on. The concerned employee was appointed on daily rate of Rs. 25/- per day and he worked only for about two months i.e. from 24.3.87 to 22.6.87 and his services came on end at Bilaspur site and he received full and final payment on 22.5.87.
10. That some work was going on at Singrauli site and he was given fresh appointment and he was reemployed on 23.5.87 at the site of Rs. 30/-per day and he worked there w.e.f. 23.5.87 to 4.4.89 and the site work at Singrauli was also completed by March/April, 1989.
That the concern employee was duly infirmed on 3.3.89 itself that his services will come to an end on 31.3.89."
22. Learned Counsel for the petitioners states that in view of the averments made in Paragraphs 8, 9 and 10 of the written statement of the employer and in view of the laid down by the Apex Court reported in AIR 1967 SC 1206, the employers cannot be permitted to lead evidence beyond their pleadings and leading of the evidence beyond the pleadings is wholly unwarranted and the conclusions based on such evidence is vitiated in law.
23. Learned Counsel for the petitioner further relied upon a decision reported in JT 2003 (Suppl. 1) SC 383, U.P. Durga and Pharmaceuticals Company Limited v. Ramanuj Yadav and Ors.
24. While remanding back the matter to this Court, Apex Court has directed as under:--
"All that the High Court has stated even when the matter was drawn to its attention by way of a review petition was, that "from the writ petition as well as from the perusal of the award also it cannot be said or inferred that the industry in question is closed down". There is no reason at all. Accordingly, the appeals are allowed. The decision of the High Court is set aside and the matter is remanded back to the High Court to decide all issues raised."
25. This Court, therefore, has to decide all the issues raised by the respective parties. As already stated, no other issues have been raised, except what has already been dealt with. In view of the findings arrived at by the Tribunal to me it appears that as per the recent decision of the Apex Court in the case reported in 2003 (6) SCC 675, Surya Dev Rai v. Ram Chander Rai and Ors., this Court should not undertake the exercise of re-appraising the evidence and the findings arrived at by the Labour Court, unless the findings arrived at are covered by one or the other exceptions mentioned in any of the sub-Paras of Paragraph 38 of the aforesaid judgment of Surya Dev Rai's case (supra). Learned Counsel for the petitioner submitted that present is the case where the workman concerned was employed at a project site and the work at the site has since come to an end, as the work has already been completed. The employment of the workman should also be treated to have come to an end as if the industry itself has been closed down and the view taken by the Labour Court that the workman concerned at the most can be said to be entitled for the compensation under Section 25FFF of the Act (Central Act) and the termination of the workman cannot be said to be violative of Section 25F of the Act, so as to grant relief for re-instatement with continuous service.
26. From the perusal of Annexure-'2' to the writ petition as against this, learned Counsel for the petitioner-workman has submitted that from the perusal of letter of appointment issued by the employer to the workman, it is apparent that the workman was recruited at Allahabad and was deputed to work at a site different from the site from where his services have been terminated, therefore it cannot be case of closure. Learned Counsel for the workman further submitted that neither at the time of the recruitment, nor at any time thereafter, it has been mentioned that the recruitment/appointment of the workman was only till the job of the site concern comes to an end. It is further submitted by learned Counsel for the petitioner that the fact that the employers themselves have transferred the workman from the site where he was deputed after recruitment/appointment at the site from where his services have been terminated clearly demonstrates that his appointment was not subjected to finishing of the project work. The industry is still working/continuing and Company is not closed down. In this circumstance, it is submitted by learned Counsel for the workman that the view taken by the Labour Court that the case of termination of the workman cannot be covered by the provisions of Section 25FFF and is covered by Section 25F of the Act, suffers from the manifest error, of law and deserved to be interfered with by this Court in exercise of power under Article 226 of the Constitution of India.
27. In view of the rival contentions, referred to above, without entering into this question of judging the conditions of appointment letter in the teeth of the findings recorded by the Labour Court, in my opinion, would amount to interfering with the findings as if this Court is exercising the appellate powers of re-appreciating and re-assessing the evidence which a stated above, is contrary to the law laid down by the Apex Court in the case of Surya Dev Rai (supra).
28. In view what has been stated above, I find no ground to interfere in the award of the Labour Court in exercise of power under Article 226 of the Constitution of India. This writ petition, therefore, has no force and is hereby dismissed. The interim order, if any, stands vacated. However, in the facts and circumstances of the case, the parties shall bear their own costs.