9911796707
TMI Blog1963 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian National Press, Bombay, which is a Private Ltd. Co. are respondents 1 and 2 respectively in the present appeal. Appellant No. 2 was appointed on the staff of the second respondent on a salary of ₹ 500 p.m. with effect from 1st January, 1955. On the 30th November, 1957, she was served with -- notice of termination of her services with effect from 1st December, 1957. The notice recited the fact that the management in Consultation with the Editor had decided to retrench her services. Appellant No. 3 Mr. Thomas who was employed as a Sub-Editor in the Free Press Journal some time in 1953, was similarly served with a notice of retrenchment dated the 30th November, 1957 by which his services were terminated as from the 1st December, 1957. In both the notices the two appellants respectively were told that their services had been retrenched under section 3(2) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, and that in lieu of notice they would be paid their salaries for three months. Both the appellants collected their salaries for the month of November and ceased to work for respondent No. 2 as from the 1st December, 1957. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dispute to the Industrial Tribunal under s. 12(5) of the Act was illegal, and so, they prayed that the High Court should issue a writ directing respondent No. 1 to consider the matter afresh and decide whether a reference should be made or not. This writ petition was heard by a single Judge of the said High Court and was ultimately dismissed. The appellants challenged the correctness of the said decision by a Letters Patent Appeal before a Division Bench of the High Court. The Division Bench agreed with the view taken by the learned single Judge, and so, the appeal was dismissed. It is against this decision that the appellants have come to this Court by special leave. The first contention which has been raised before us by Mr. Bishan Narain on behalf of the appellants is that the reasons given by respondent No. 1 in refusing to make a reference show that respondent No. 1 considered the merits of the dispute and came to the conclusion that the reference would not be justified; and Mr. Bishan Narain contends that in dealing with the merits of the dispute, while deciding the question as to whether a reference should be made or not under s.,12(5) of the Act respondent No. 1 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cide whether making a reference would be expedient or not. It is true that if the dispute in question raise questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under s. 10(1) read with s.12(5), or not. if the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employs in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore be held that a prima facie examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to -the argument urged by the appellants that respondent No. 2 s failure to serve a notice on respondent No. 1 before retrenchment was effected introduced an infirmity in the order ;of retrenchment. Rule 80 framed by respondent No. 1 was itself an answer to the said plea, and so, respondent No. 1 -may well have thought that it was unnecessary to give that reason in its communication to the appellants. Besides, in dealing with this contention, it is necessary to remember that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under s. 10(1) read with s. 12(5), the Court is not sitting in appeal over the order and is not entitled to ,consider the propriety or the satisfactory character of the reasons given by the said Government. It would be idle to suggest that in giving reasons to a party for refusing to make a reference under s. 12(5), the appropriate Government has to write an elaborate order indicating exhaustively -all the reasons that weighed in its mind in refusing to make -a reference. It is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no reference is made, bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a condition precedent. Likewise, it appears that in the case of The Workmen of Subong Tea Estate v. The Outgoing Management of Subong Tea Estate Anr. ((1964 1 L.L.J. 333).) recently decided by this Court, it has been incidentally stated that the three conditions prescribed by clauses (a), (b) and (c) of s. 25F appear prima facie to constitute conditions precedent before an industrial workman can be validly retrenched. In that case, no question arose about the construction and effect of the provisions of s. 25F and the observations are clearly in the nature of obiter observations and even then they indicate that the Court thought that prima facie the three conditions may be similar. No decision of this Court has been cited before us where this question has been directly considered and decided. Mr. Bishan Narain, however, urges, and with some force, that the nomal rule of construction requires that if clauses (a) and (b) of s. 25F constitute conditions precedent, clause (c) in the context must also receive the same construction. Prima facie, this argument is no doubt attractive; but a closer examination of the section shows that clause(c) of s. 25F cannot receive the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he use of the word until is complied with even on the view we are inclined to take about the nature of the condition prescribed by clause (c), because after the retrenchment is effected, the employer has to comply with the condition of giving notice about the said retrenchment to the appropriate Government, and that is where the provision in clause (c) that the notice has to be served in +,he prescribed manner assumes significance. Rules have been framed by the Central Government and the State Governments in respect of this notice and, stated broadly, it does appear that these Rules do not require a notice to be served in every case before retrenchment is effected. In regard to retrenchment effected on paying the workman his wages in lieu of notice, the Rules seem to provide that the notice in that behalf should be served within the specified period prescribed by them; that is to say, under the Rules, notice in such a case has to be served not before the retrenchment, but after the retrenchment within the specified period. Mr. Bishan Narain no doubt contends that if his construction of s. 25F(c) is correct, the Rules would be invalid and that is true; but on the view we are incli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be achieved by clauses (a) (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) (b), is not a condition precedent. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that s. 25F(c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narain s contention that a writ of mandamus should be issued against respondent No. 1. A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent No. 1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of s. 25F(c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of s. 25F(c), it does not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
