ORDER S.P. Srivastava, J.
1. The Executive Engineer of the Electricity Distribution Division, Bhadohi, Varanasi published a notice in the Daily Newspaper 'AAJ' dated April 27, 1992 with the information that services of all the persons who had been employed in the Electricity Distribution Division, Bhadohi on daily wage basis shall stand terminated from the afternoon of April 25, 1992 on the ground that they had been appointed on irregular basis and further that their services were no longer required. The aforesaid employees were further advised that they could get all the payments which were due under the rules from the concerned Sub-Divisional Officer or Assistant Engineer (Revenue) or the Cashier (works) on April 26, 1992 or April 27, 1992 otherwise the amount due to them will be sent to them by money order after deducting the money order charges on April 28,1992.
2. It may be noticed that an office order had been issued by the Executive Engineer, Electricity Distribution Division, Bhadohi on September 25, 1992 whereunder the services of petitioners No. 2 to 13 had been terminated from the afternoon of April 25, 1992 indicating that their services were no longer required. The aforesaid office order provided that these employees will be entitled to one month's pay along with other dues with immediate effect and were advised that they could take dues either on April 25, 1992 during the period 4 p.m. to 6 p.m. or on April 26, 1992 during the period 11 a.m. to 1 p.m. or ort April 27, 1992 during the period 10 a.m. to 12 a.m. and in case they do not receive the amount it will be sent to them by money order on April 28,1992.
3. A similar office order was issued on the same date terminating the services of petitioners No. 14 to 24 with the same provision. In this order, however, it was indicated that the same was being issued pursuant to the order of the Executive Engineer dated April 24, 1992. A third office order was issued on the same date indicating that it was being issued pursuant to the direction of the Executive Engineer contained in his letter dated April 24, 1992 terminating the services of petitioners No.25 to 44 with the same provisions. A fourth office order in identical terms was issued on April 25, 1992 terminating the services of Petitioners No.45 to 57. Fifth office order of the same date was issued to the same effect terminating the services of Petitioners Nos.58 and 59.
4. Being aggrieved, the Petitioners No.2 to 59 along with the U.P.Vidyut Mazdoor Sangh as Petitioner No.l have approached this Court seeking redress praying for a direction requiring the respondents not to prevent the petitioners from discharging their duties pursuant to the notice published in daily newspaper "AAJ" dated April 27, 1992 and the office orders re-
ferred to herein above.
5. They have also prayed for a direction re quiring the respondent to pay to the petitioner No.2 to 59 wages which they have earned.
They have also prayed for a direction requiring the respondent to regularise the appointment of the Petitioners No.2 to 59 and place them in the time scale of pay admissible to the appointees on the similar posts as held by the petitioners, who had been appointed on regular basis. Dur ing the pendency of the writ petition an applica tion was filed by the petitioners praying that the supplementary affidavit filed along with that application be accepted and a ground to the ef fect that the termination of the services of the Petitioners No.20 to 59 was not in compliance with the provisions of law contained in Section 25N of the Central Act be allowed to be incor porated in the petition. :
6. A Division Bench of this Court vide its order dated August 4,1992 allowed the said application and accepting the supplementary affidavit directing that it will form part of the record.
7. A copy of the aforesaid application and the affidavit has been served on the counsel representing the respondents on May 14, 1992. The respondents, however, did not file any counter- affidavit denying or controverting the insertions made in the supplementary affidavit filed along with the application which had been allowed on August 4, 1992. The assertions in regard to the facts made in the aforesaid supplementary affidavit remain uncontroverted or refuted in any manner.
8. It may be noticed that the respondents had filed a short counter-affidavit on May 18, 1992 and again another counter- affidavit on November 28, 1995. Inspite of full opportunity to rebut the assertions made in the supplementary affidavit referred to hereinabove, nothing was brought on record which could indicate in any manner that the assertion of facts made in the supplementary counter-affidavit were incorrect. In the aforesaid circumstances it can be safely presumed that the facts asserted by the petitioners in the supplementary affidavit repre-
sented the true state of affairs and there does not exist any dispute about the correctness of the aforesaid allegations.
9. The facts in brief as brought on record shorn of details and necessary for the disposal of this writ petition lie in a narrow compass. In the Electricity Distribution Division, Bhadohi, at the relevant time the working strength of the employees there including the Petitioners Nos. 2 to 59 was 267. The Petitioners Nos.2 to 59 were engaged on daily,wage basis for discharging the duties of routine grade clerks, drivers, tracers, sub-station operators, skilled coofic, peon, Daffadar, Chowkidar or Cooiie/Shramik. Although the petitioners had been engaged on daily wage basis at the rate of Rs.20 and Rs.25/-per day, the payment to them was made at the end of the month. These payments ranged between Rs.600/- per month to Rs.750/- per month. The persons employed on regular basis against the posts indicated hereinabove were, however, paid salary in the time scales of pay which ranged between Rs.1,100/- to Rs.1,575/-, Rs.1200/- to Rs.l800/-&Rs.900/-toRs.I190.
10. Inparagraph 20 of the short counter-affidavit filed on May 18,1992 by the respondents, it has been stated that the Petitioners Nos. 2 to 59 having worked for more than 240 days, it was obvious that they could not have been discontinued without complying with the procedure laid down in Section 6-N of the U.P.Industrial Disputes Act even if their employment was irregular or contrary to the Board's regulations. It has been further asserted that consequently it was decided by the Board that so long as the services of the Petitioners Nos.2 to 59 were not terminated in accordance with Section 6-N of the Act they were liable to be treated in the employment of the answering respondents and were also entitled to their due wages.
11. It has further been asserted in the aforesaid counter- affidavit that the answering respondents took steps in accordance with the provisions contained in Section 6-N of the U.P. Industrial Disputes Act for retrenchment and vide the notice dated April 25, 1992, the services of the Petitioners Nos. 2 to 59 were terminated and they were directed to collect one month's notice pay and other dues which included retrenchment compensation on the same day i.e. April 25, 1992 between 4 p.m. to 6 p,m. and on April 26, 1992 and April 27, 1992 whereafter it was clearly stated that the amount payable to the Petitioners Nos.2 to 59 shall be sent to their residential address by money-order. It has also been asserted that on April 28, 1992 and onwards the notice pay, retrenchment compensation and other dues like arrears ot'l wages etc., from June, 1991 to April 25, 1992 were sent to the Petitioners Nos.2 to 59 by money orders and demand drafts.
12. The respondents have further asserted 1 that they had also sent a notice dated April 25, 1992 by registered post to the State Government as contemplated under Section 6-N(c) of the U.P.Industrial Disputes Act. Assertion further is that the Petitioners No.2 to 59 have been re trenched by the answering respondents by com plying with the provisions contained under Section 6-N of the Industrial Disputes Act and hence the termination of their services is legal, valid and in accordance with law.
13. From the pleading of the parties and the documentary evidence brought on record, it is apparent that indisputedly the impugned action amounts to a retrenchment as contemplated under the provisions of the U.P. Industrial Disputes Act. The claim of the respondents is that the retrenchment has been effected in accordance with law but the petitioners assert that even taking into consideration the assertion made by the respondent themselves, the impugned retrenchments is patently illegal and the mandatory requirement contemplated under Section 25N of the Central Act and Section 6-N of the U.P. Industrial Disputes Act could not be taken to have been complied with and since the pre-requisite conditions which must stand satisfied before any retrenchment is made effective, had not, in fact, been satisfied or complied with at all, the impugned retrenchment is void-ab-initio, with the result that the Petitioners No. 2 to 59 have to be treated to be continuing in the service.
14. I have heard Sri. K.P. Agrawal, Senior Advocate in support of the writ petition and Sri Sudhir Agrawal, learned counsel representing the respondents and have carefully perused the record.
15. The learned counsel for the respondents has vehemently urged that the petitioners have an efficacious alternative remedy for the redres-sal of their grievances in the forum provided for under the provisions of (he U.P. Industrial Disputes Act and, therefore, this Court while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India should decline to interfere leaving it open to the petitioners to avail the statutory alternative remedy for the redressal of their grievances. The learned counsel for the petitioners, however, has urged that the writ petition was entertained by this Court long back in the year 1992 and since no investigation into any disputed question of fact is involved and further when, even on the facts asserted in the counter-affidavit filed by the respondents the impugned retrenchment is ex-fade without jurisdiction and manifestly illegal and liable to be ignored altogether being non-est the discretion vested in this Court as contemplated under Article 226 of the Constitution of India deserves to be exercised in favour of the petitioners without relegating them to the alternative remedy which is a time consuming alternative remedy. It has been urged that the existence of the alternative remedy in such circumstances will only result in the prolonging of the harassment of the Petitioners No.2 to 59.
16. Learned counsel for the respondents in support of his submission has placed reliance upon the Full Bench decision of this Court in the case ofChandramaSingh v. Managing Director U, P. Cooperative Union, Lucknow reported in 1991 2 UPLBEC 898. The Full Bench of this. Court after noticing various observations made by the Apex Court in its decisions indicating that where a statute provides a complete machinery for obtaining relief against the orders passed by the authorities. A petitioner cannot be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, emphasised that where a complete machinery/remedy for obtaining relief is provided in a statute and such machinery and remedy fiilly covers the grievances of the petitioner then unless extraordinary or exceptional circumstances exist or the machinery/remedy does not cover the grievances of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be inadequate or inefficacious the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of India for the redressal of his grievances.
17. It was also observed by the Full Bench that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious or if it is not established from the material on record that there exist/exceptional or extra-ordinary circumstances to deviate from the well settled normal rule of relegating the petitioner to avail alternative remedy and permit him to by-pass the alternative remedy.
18. It was also pointed out that the hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that there is no other equally efficacious or alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India emphasising that the petitioner must furnish material facts and particulars to sustain such a plea.
19. The learned counsel for the petitioners, however, has referred to the decision of the Apex Court in Civil Misc. Writ Petition No.5322/1983 (Dharmnath Singh v. General Railway Manager, Gorakhpur) decided on May 2, 1983. This case, it has been pointed out arose from Civil Misc. Writ Petition No.355/1976 decided on January 22, 1979 by a learned single Judge of this Court. The aforesaid writ petition had been dismissed on the ground of the availability of the alternative remedy under the provisions of the Industrial Disputes Act. The Apex Court while reversing that order observed that "we do not think that this is a valid ground on which the writ petition should have been dismissed without going into the merits." The Apex Court allowed the appeal and setting aside the order of this Court remanded the writ petition for disposal on merits in accordance with law.
20. The question for consideration, therefore, is as to whether the present one is a fit case where the Petitioners No. 2 to 59 should be relegated to the alternative remedy as they are claiming relief on the basis of the rights created under the Industrial Disputes Act and, therefore, should take resort to the provisions of the said Act for the redressal of their grievances declining to interfere in the present proceedings leaving it open to them to pursue the alternative remedy. The jurisdiction of this Court under Article 226 of the Constitution of India is a different kind of jurisdiction. It is well established that an alternative remedy is never an absolute bar to the exercise of the jurisdiction by the High Court. It may depend upon the facts and circumstances of the particular case as to whether this Court will choose to exercise its discretionary jurisdiction under Article 226 of the Constitution despite the availability of the alternative remedy. Ordinarily it will be appropriate that the workman who claims the relief on the basis of the right created under the Industrial Disputes Act should approach the forum provided under the Industrial Disputes Act itself for the redressal of his grievance but in appropriate cases it is always open to the High Court to consider the matter and for justified reasons it may entertain a petition directly for the enforcement of the rights of a workman under Industrial Disputes Act.
21.1 am of the considered opinion that when there is no dispute on material questions of fact and no enquiry or investigation into facts is involved or called for and on admitted or uncpntrovertible or irrefutable facts, ex-fade the impugned action ig demonstrated to be without jurisdiction null and void and further where the matter is entertained for consideration by this Court and kept pending for a long period the relegating of the petitioners to the alternative remedy for the redressal of their grievances in such a case will not be a proper exercise of discretion envisaged under Article 226 of the Con-
stitution of India.
22. A three Judge Bench of Hon'ble Supreme Court in Century Spinning and Manufacturing Company Ltd. v. The Vlhasnagar Municipal Council, reported in AIR 1971 SC 1021 observed as under in para 8:
"That High Court may, in exercise of its discretion, decline to exercise its extra-ordi-: nary jurisdiction under Article 226 of the Constitution. But the discretion is judicial. If the petitioner makes a claim which is frivolous, vexatious, or prima-facie unjust, or may not appropriately be tried in a petition invoking extraordinary jurisdiction the Court may decline to entertain the petition. But a party claiming to be aggrieved by the action of a police body or authority on the plea that the action is unlawful, highhanded, arbitrary or unjust is entitled to a hearing of its petition on the merits. Apparently, the petition filed by the Company did not raise any complicated question of fact for determination, and the claim could not be characterised as frivolous, vexatious or unjust. The High Court has given no reasons for dismissing the petition in timine, and on a consideration of the averments in the petition and the materials placed before the Court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima-facie unjust, tried."
23. Drawing support from the above observations of the Apex Court a learned Single Judge of this Court in the decision in the case of Bank Employees Union v. District Cooperative Bank Ltd., reported in 1992 1 UPLBEC 159 observed that the correct position is that it has to be determined on facts of every case as to whether a petitioner should be relegated to the alternative remedy or he can be permitted to assert his rights in the proceedings under Article 226 of the Constitution of India emphasising that there may be circumstances where inspite of the existence of an alternative remedy a writ petition can be entertained and decided on merits.
24. The provision contained in Article 226 of the Constitution of India vests the High Court with a very wide discretion in the matter of framing its writs to meet the exigencies of a particular case and if on facts admitted, or un-controverted or irrefutable or established on record, the parties are found entitled to a particular relief the same can always be granted to ensure compliance of the mandate of law or discharging of a duty which stands statutorily cast upon a party or authority. This jurisdiction which is a special jurisdiction for the enforcement of fundamental rights conferred by part III of the Constitution or for any other purpose ought to be exercised or permitted to be invoked only where circumstances are exceptional and do warrant the exercise of such power. It is not, I may hasten to add, intended to provide an additional remedy which is otherwise available and is adequate to meet the needs of the case. In a case, however, where on the irrefutable or un~ controvertible facts brought on record the conclusion even in the alternative proceedings if initiated to be the same, then in such a case in view of the inescapable conclusion it will be futile to relegate the petitioner to seek redress availing the alternative remedy which will only result in the postponement of the grant of relief prolonging the continuance of the oreach of law and in such a case it will not be appropriate to decline the entertainment of the writ petition for consideration on merits.
25. A Division Bench of this Court in its decision in the case of Jai Kishun v. U.P, Cooperative Bank Limited, Lucknow, reported in 1989 (2) UPLBEC 144 had observed that if an order is null and void it has no existence in the eyes of law and for this reason an alternative remedy would be no bar in entertaining a petition under Article 226 of the Constitution of India. Support for the above view was drawn from the decision of the Apex Court in the case of Dr.fSmt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidayalaya, Sitapur reported in AIR 1987 SC 2186. In the aforesaid case observing that an alternative remedy is not an absolute bar to the maintainability of the writ petition finding that the impugned order was a nullity, the Apex Court had pointed out that such an order could very well be challenged in the High Court and the High Court was not jus-
titled in dismissing the writ petition on the ground of alternative remedy. The Division Bench of this Court in the case of Jai Kishun (supra) clearly observed that if an order is void and the petition does not involve controversial question of facts the High Court may not refuse to exercise its jurisdiction. The pendency of the writ petition for several years in the High Court was also taken to be a justifiable ground for not relegating the petitioners to get their grievances redressed under the provisions of the Industrial Disputes Act holding that in such a circumstance it will not in any manner advance the cause of justice if after the lapse of several years this Court is to tell the workmen to go to the Labour Court for seeking redressal ot their grievances more so in a case where there was no controversy over the relevant facts. Support for the aforesaid view was drawn by the Division Bench from the observations made by the Apex: Court in its decision in the case of Hirday Narain v. Income-Tax. Officer, Bareilly, reported in AIR 1971 SC 33.
26. In the present case taking into considera-: tion the pleadings of the parties, the admitted and established facts which are either uncon-troverted or stand admitted and further taking into account that there is no controversy in regard to the material facts and further almost seven years have gone by during which period this writ petition has remained pending in this Court for consideration, I am of the clear opinion that it will not be appropriate at all to decline to exercise the discretion in favour of the petitioners relegating them to the alternative remedy for the redressal of their grievances in the time consuming process in the forum provided for under the provisions of the Industrial Disputes Act. The contention made in this regard by the learned counsel for the respondent is, therefore, rejected.
27. A Division Bench of this Court in the case of Jai Kishun (supra) after noticing the im-plicatioas arising under the various amendments in the Industrial Disputes Act (Central Act) and the U.P. Industrial Disputes Act as well as Article 254 of the Constitution had clarified that in the matters relating to rights and liabilities of employers and workmen a case of retrenchment, the provisions of Section 6-N of the U.P. Act will be applicable. It was further clarified that in the matters relating to retrenchment it is the definition of the word 'retrenchment' as provided under the U.P. Act will be applicable. It was also indicated that cessation of employment brought about without complying with the mandatory requirements stipulated in regard to 'retrenchment* as defined under Section 2(s) of the Industrial Disputes Act will be illegal and void.
28. It would be beneficial to have the definition of the word 'retrenchment' under the two Acts. The word 'retrenchment' has been defined under Section 2(s) of the U.P. Act which reads as follows:
"2(s) 'Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include,
(i) Voluntary retirement of the workmen, or
(ii) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf;"
Similarly, it has been defined under Section 2(op) of the Industrial Disputes Act (Central) which reads as follows as amended in 1984:
"2(oo) 'retrenchment' means the termination by the employer of the service of workman for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include,
(a) voluntary retirement of the workmen; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health".
29. The provision contained in Section 6-N of the U.P.Industrial Disputes Act is to the following effect:
"6-N Conditions precedent to retrenchment of workman - 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;
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specified a date for the termination of service;
(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 service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the State Government."
30. It will be noticed that the aforesaid provisions imposed certain pre-conditions before retrenchment is resorted to which are statutorily to be complied with by the employer. These prerequisite conditions, are giving of one month's notice or wages in lieu thereof, the workman has to be paid retrenchment compensation and notice in prescribed manner has to be served on the State Government.
31. The provision regulating retrenchment as contained in Section 25F of the Industrial Disputes Act (Central) is to the following effect:-
"25-F 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 reaspas 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;
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;
(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."
32. In its decision in the case of Bombay Union of Journalists v. State of Bombay, reported in (1964-I-LLJ-351), the Apex Court had observed that the requirement of Section 25F provides that no such notice shall be necessary if retrenchment is under the agreement which specified the date for the termination of service but as provided under clause (b) of Section 25F the workman has to be paid at the time of retrenchment compensation which shall be 1 equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months. This payment it was emphasised had to be made at the time of retrenchment and conditions stipulated under Sections 25(a) and (b) were obligatory and in fact constituted precedent for effecting retrenchment and must be satisfied before a workman could be retrenched.
33-34. Reiterating its decision in the case of Bombay Union of Journalists (supra), the Apex Court in the decision in the case of M/s.Na-tionallron and Steel Company Limited v. State of West Bengal reported in (1967-II-LLJ-23) had observed that 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 period of notice had expired or the workman had been paid in lieu of such notice wages for the period of the notice. In that case the notice was dated November 15, 1958 and the addressed services were terminated with effect from November 17, 1958 providing 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 within working hours. In such a situation, the Apex Court observed that the mandatory requirement of Section 25F of the Act had not been complied with under which it was incumbent on the employer to pay the workmen the wages for the period of notice in lieu of the notice, that is to say if the workman 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.
35. In its decision in the case of Gammon India Limited v. NiranjanDas, reported in (1984-I-LLJ-233), it was pointed out by the Apex Court that the retrenchment bringing about the termination will be ab initio void in the absence of the compliance with the prerequisites as laid down under Section 25F of the Industrial Disputes Act. It is, therefore, obvious that cessation of employment for whatsoever reason amounts to retrenchment and compliance with the provision providing for payment of retrenchment compensation etc., is essential failing which the termination of employment is rendered illegal and void. If an order is null and void, it has no existence in the eyes of law. It is non-est,
36. In the aforesaid view of the matter it is apparent that an order dispensing with the services of a workman purporting to terminate the relationship of master and servant taking recourse to a retrenchment which is rendered ab initio void cannot be taken to have any effect and the workman concerned has to be taken to be continuing in service/employment inspite of the order terminating his services and it should be deemed that his service was never terminated. In its decision in the case of Hindustan Tin Works Private Limited v. The Employees of Mis. Hindustan Tin Works Pvt. Ltd., reported in (1978-II-LLJ-474) (SC), it was clarified that it is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service and even the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid as the employer cannot take away illegally the right to work of the workman contrary to the relevant law and deprive the workman of his earnings. Ordinarily, therefore a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness, but there cannot be a straitjacket formula for awarding relief of back wages and the party objecting to it must establish the circumstances necessitating departure.
37. In the present case as has already been noticed herein above under all the office orders dated April 25, 1992 issued from the office of the Executive Engineer, Electricity Distribution Division, Bhadohi the services of the petitioners were terminated from the afternoon of April 25, 1992 disclosing the reason therefor to be that their services were no longer required. It was also indicated that the employees will be entitled to one month's salary and other dues in accordance with the rules with immediate effect, which they could collect during the period 4p.m. to 6 p.m. on April 25, 1992 or 11 a.m. to 1 p.m. on April 26, 1992 or 10 a.m. to 12 p.m. on April 27, 1992 otherwise the amount will be sent to them by money order.
38. However, the aforesaid office orders were superseded by another order published in the daily newspaper 'AAJ' dated April 27, 1992. In the aforesaid order the reasons disclosed were that these workmen/employees had been appointed in a wholly irregular manner and their services were no longer required. It was also indicated that the workman could collect all their dues from the concerned Up Khand Adhikari or Assistant Engineer (Revenue) or Sri S.N.Pandey, Cashier (Works) on April 26, 1992 between the period 11 a.m. to 1 p.m. or on April27,1992between 10a.m. to5p.ni. otherwise, their dues will be sent to them through money order on April 28,1992.
39. In the writ petition, it has been asserted that no individual notice had been served upon the Petitioners No.2 to 59 and they came to know of the termination of their services by the notice published in the daily newspaper 'AAJ' on April 27, 1992. It has further been asserted that they were not being given work from April 27, 1992. It is also asserted that subsequent to April 27, 1992 the petitioners came to know that on the file of the respondents the office orders dated April 25, 1992 have been placed and office orders were not even displayed on the notice-board nor the same had been served individually.
40. In the short counter-affidavit filed by the respondents on May 18, 1992, the assertions made by the petitioners in paragraphs 23 and 24 of their writ petition were not controverted and intact there is no reply to them at all. In the other counter- affidavit filed on November 26, 1995 in paragraph 15 thereof a reply was given to the assertions made in paragraphs 22 to 25 of the writ petition. It was stated that the contents of paragraphs 22 to 25 of the writ petition were incorrect and denied. It was further stated that the answering respondents had followed full procedure before retrenching the petitioners and the notice terminating the services of the Petitioners No.2 to 59 was issued on April 25, 1992 directing them to collect their retrenchment compensation, one month's notice pay and other dues from the concerned office on the same day during office hours and thereafter the entire dues were sent by money order to the concerned parties who could not and did not collect the same.
41. A perusal of paragraph 15 of the counter-affidavit referred to above indicates that there is no special denial of the assertion made by the petitioners that no individual notice had been served upon the Petitioners No.2 to 59 and that they came to know of the termination of their services only by the notice published in the daily newspaper 'AAJ' on April 27, 1992. There is further no denial to the assertions of the petitioners that they were not being given work since April 27, 1992 and that the office orders remained on the files and were never even displayed on the notice board.
42. In paragraph 15 of the counter-affidavit what has been stated is that the notice terminating the services of the Petitioners No.2 to 59 was issued on April 25, 1992. If that was so then there could be no occasion for publishing the notice in the daily newspaper 'AAJ' on April 27, 1992. Further the office orders contained a reason for the termination of service which was supplemented with further reasons in the notice published in the daily newspaper 'AAJ' on April 27, 1992. The mandatory requirement contained in Section 6-N (a) of the U.P.Industrial Disputes Act is that 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. The office orders referred to herein above in my considered opinion could not be taken to be notice in writing which is required to be given to a workman indicating the reasons for the retrenchment specially when the employer-respondent himself had superseded the office orders published a notice in the daily newspaper 'AAJ' giving reasons other than those which had been indicated in the office orders . The assertion of the petitioners that the office orders remained there on the files and never even placed on the notice board appears to be i correct as the employer-respondent has not denied in the counter-affidavit the assertion that they had stopped giving work to the petitioners from April 27, 1992 and further their action in publishing the notice with different reasons for the retrenchment supports the assertion of the petitioners that the office orders had not in fact, 1 been served at all and had been superseded by the fresh notice published on April 27,1992.
43. A perusal of the notice claimed to have been issued by publication in daily newspaper 1 'AAJ' on April 27, 1992 indicates that under the aforesaid notice the services of the petitioners had been terminated with effect from April 25, 1992 and the petitioners were required to collect their dues on April 26,1992 or April 27, ] 1992. To such a notice the ratio of the decision of the Apex Court in the case of M/s. National Iron and Steel Company Limited (supra) stands clearly attracted. In the circumstances, therefore, the mandatory requirements contemplated-under the provisions contained in Section 6-N of the U.P.Industrial Disputes Act cannot be taken to have been complied with which made it incumbent on the employer to pay the workmen the wages for the period of notice in lieu of the: notice that is to say that if he was asked to go on April 25, 1992 he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards.
44. There is yet another aspect of the matter which cannot be lost sight of. In the supplementary affidavit filed on August 4, 1992 to which a reference has already been made hereinabove it has been clearly stated that in the Electricity Distribution Division, Bhadohi the working strength of the employees was 267 including the Petitioners No, 2 to 59. The correctness of the assertion to this effect made by the petitioners has not been disputed or controverted by the respondent-employer. It is, therefore, obvious that the employer-had to comply with mandatory requirements contained in Section 25N of the Industrial Disputes Act, 1947 (Central Act).
45. The relevant portion of Section 25N of the Industrial Disputes Act, 1947 (Central Act) is as follows:
"25-N. Conditions precedent to retrenchment of workman (1) no workman employed in any industrial establishment to which this chapter applies, 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 three months' 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:
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specified a date for termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days, average pay for every complete 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 and the permission of such Government or authority is obtained under sub- section (2).
(2) on receipt of a notice under clause (c) of Sub-section (1) of the appropriate Government or authority may, after making such enquiry as such Government or authority thinks fit, grant or refuse, for reasons to be recorded in writing, the permission for retrenchment to which the notice relates:
(3) Where the Government or authority does not communicate the permission or refusal to grant the permission to the employer within three months of the date of service of the notice under clause (c) of Sub-section (1) the Government or authority shall be deemed to have granted permission for such retrenchment on the expiration of the said period of three months.
(4) to (7).......... ............"
46. As provided under Section 25N(1) referred to above retrenchment of a workman stands prohibited unless the workman had been ; given three months' 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 provisions contained in Sec-' tion 25N(1)(c) farther requires service of a notice in the prescribed manner on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the official Gazette and the permission of! such Government or authority is obtained under Sub-section (2). Section 25N(2) provides that on receipt of the notice under clause (c) of subsection (1) the appropriate Government or authority may after making such enquiry as-such Government or authority thinks fit grant or refuse, for reasons to be recorded in writing the permission for the retrenchment to which the notice relates. However, Section 25N(3) provided that where the Government or authority 'does not communicate the permission or refusal to grant the permission to the employer within three months of the date of service of the notice under clause (c) of Sub-section (1) the Government or authority is to be deemed to have: granted permission for such retrenchment on the expiration of the said period of three months.
47. In the present case, there is nothing on the record to indicate that the aforesaid mandatory requirement envisaged under Section 25N of the Industrial Disputes Act, 1947 (Central) were complied with. On the own showing of the respondents, neither three months notice was given nor the workman had been paid or offered wages in lieu of notice for the period of the notice. It is, therefore, obvious that even on the aforesaid count the impugned retrenchment could not be taken to have become effective or operative as the mandatory requirements of Section 25N of the Act and the pre-requisite conditions contemplated therein had not been satisfied or complied with while taking recourse to the retrenchment in question.
48. Learned counsel for the petitioner has strenuously urged that in any view of the matter the Electricity Distribution Division, Bhadohi where the petitioner has been working could not be taken to be an industry so as to attract the provisions of the Industrial Disputes Act. In this connection, it may be noticed that as observed by the Apex Court in its decision in the case of State of Bombay v. Hospital Mazdopr Sabha reported in (1960-I-LLJ-251), an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material service to the community at large or a part of such community with the help of the employees in an undertaking. Such an activity generally involves the cooperation of the employer and the employee and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It was further emphasised that the manner in which the activity is organised or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which the provisions contained in the Act defining 'industry' applies.
49. The question as to what is 'industry' and who is a workman has been deliberated by the Apex Court on many occasions. The tests for finding out as to whether a particular undertaking falls within the ambit of industry as contemplated under the provisions of the Industrial Disputes Act appear to be that the undertaking must carry on a systematic activity, organised by cooperation between employer and em-ployee with substantial element of commercial activity for the production and/or distribution of goods and service calculated to satisfy human wants and wishes which is neither spiritual nor religious. Profit motive and gainful object is irrelevant and no distinction can be drawn between the public, joint, private or other sector.
50. The activity of the undertaking in question in the present case which is the electricity distribution division clearly bears resemblance to what is ultimate in trade or business.
51. The definition of industry as given in the U. P. Industrial Disputes Act is as follows;
"Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen.
This definition is of a very wide amplitude in i its import.
52. In my considered opinion applying the three tests namely (1) systematic activity (2) organised by cooperation between employer and employees with substantial element of commercial activity and (3) for the production and/or distribution of goods and service calculated to satisfy human wants and wishes which is neither spiritual nor religious there can be no man-: ner of doubt that the undertaking in question has to be taken as an industry as contemplated under the provisions of the U.P.Industrial Disputes Act
53. It seems to me that in fact the respondent employer is not entitled to be heard in support of the plea now raised as noticed herein above. In paragraph 20 of the short counter-affidavit it has been categorically admitted by the respondents that the services of the Petitioners Nos. 2 to 59 could not have been discontinued without complying with the procedure laid down in Section 6-N of the U.P.Industrial Disputes Act. In face of the assertion to the aforesaid effect the entertainment of such a plea will clearly amount to voke-face which cannot be permitted.
Having themselves decided that the petition-
ers No.2 to 59 were entitled to the protection of the provisions contained in U.P.Industrial Disputes Act they cannot now turn around and claim that the provisions of the Act are not applicable. In fact in paragraph 29 of the aforesaid counter-affidavit the respondents have referred to the decision of the Board in this regard which in unmistakable terms indicates that the petitioners were entitled to the protection envisaged under the U.P.Industrial Disputes Act. This could only be if the undertaking in question fell within the category of an 'industry' as contemplated under the aforesaid Act. Once the Board itself had taken the decision that the undertaking fell within the ambit of the expression 'industry' as contained in the U.P.Indus-trial Disputes Act, I find absolutely no justification for entertaining such a plea. The contention urged on behalf of the respondent in this connection is totally misconceived and is not at all acceptable.
54. In the result, in view of my conclusions indicated herein above, this writ petition succeeds in part, with the direction that the Petitioners No.2 to 59 shall be deemed to be continuing in service unaffected by the impugned retrenchment and this order shall be sufficient authority for proceeding under Section 6-H of the U.P.Industrial Disputes Act for recovery of the amount due to the petitioner workmen which shall be determined in accordance with law in the aforesaid proceedings. It shall, however, be open to the respondents to take recourse to retrenchment of the Petitioners No.2 to 59 in accordance with law hereafter.
55. There shall, however, be no order as to costs.