9911796707
TMI Blog1978 (10) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... bay and the other at Ballabhgarh. The industrial dispute which is the subject-matter of appeal relates to Ballabhgarh factory. According to the appellant this factory, when commissioned in 1962, was divided into two sections, now styled as two separate undertakings: (i) manufacturing section; and (ii) packing material making section. The manufacturing section comprised two sub- sections, viz., the chemical section, i.e. Foam Compound manufacturing section, and the boiler section. The packing material section was again composed of two sub-sections, one manufacturing containers, and the other painting of the containers. Respondents 3 and 4 according to the appellant were employed in the painting section. Around 1964 the appellant decided to buy containers from the market and consequently closed down its packing material making section but continued the painting sub-section. On 13th July 1971 the appellant purported to serve a notice on respondents 3 and 4 and one Mr. Ramni intimating to them that the management has decided to close the painting section effective 13th July 1971 due to unavoidable circumstances and hence the services of the three workmen would no longer be required and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not in order ? (On management). 3. Whether the retrenchment of Sarvashri Mohammed Yamin and Mohammad Yasin was justified and in order ? If not, to what relief they are entitled? The management, in support of its contention covered by issue No. 1, urged before the Tribunal that once the Government declined to make a reference in respect of termination of service of respondents 3 and 4, the Government was not competent to refer the dispute for adjudication at a later date. The Tribunal negatived the contention observing that there is abundant authority in support of the proposition that the Government having once declined to make a reference, is not rendered incompetent from making a reference of the same dispute at a later date. Issue No. 2 was also answered against the appellant but as that contention was not raised before us, we need not go into the details of it. On issue No. 3, the Tribunal held that respondents 3 and 4 were retrenched and the case would squarely fall under s. 25F of the Industrial Disputes Act, 1947 (for short 'the Act') and as the appellant employer has not complied with the pre-condition laid down in s. 25F (a) and (b) of the Act to wit, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t conditions precedent when termination of service is brought about on account of closure of the undertaking. Section 10(1) of the Act confers power on the appropriate Government to refer at any time any industrial dispute which exists or is apprehended to the authorities mentioned in the section for adjudication. The opinion which the appropriate Government is required to form before referring the dispute to the appropriate authority is about the existence of a dispute or even if the dispute has not arisen, it is apprehended as imminent and requires resolution in the interest of industrial peace and harmony. Section 10(1 ) confers a discretionary power and this discretionary power can be exercised on being satisfied that an industrial dispute exists or is apprehended. There must be some material before the Government on the basis of which it forms an opinion that an industrial dispute exists or is apprehended. The power conferred on the appropriate Government is an administrative power and the action of the Government in making the reference is an administrative act. The formation of an opinion as to the factual existence of an industrial dispute as a preliminary step to the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onciliation proceedings in respect of the industrial dispute that exists or is apprehended. It is mandatory for the Conciliation officer to so hold the conciliation proceedings where dispute relates to a public utility service and a strike notice has been served under 6. 22. The conciliation officer must try to promote a settlement between the parties and either he succeeds in bringing the parties to a settlement or fails in his attempt, he must submit a report to the appropriate Government, but this procedure for promoting settlement cannot come in the way of the appropriate Government making a reference even before such a report is received. The only requirement for taking action under s. 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi- judicial function. Merely because the Government rejects a request for a reference or declines to make a reference. it cannot be said that the industrial dispute has ceased to exist, nor coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re ought to be some fresh material before the Government for reconsideration of its earlier decision. The Government may reconsider its decision on account of some new facts brought to its notice or for any other relevant consideration and such other relevant consideration may include the threat to industrial peace by the continued existence of the industrial dispute without any attempt at resolving it and that a reference would at least bring the parties to the talking table. A refusal of the appropriate Government to make a reference is not indicative of an exercise of power under s. 10(1), the exercise of the power would be a positive act of making a reference. Therefore, when the Government declines to make a reference the source of power is neither dried up nor exhausted. It only indicates that the Government for the time being refused to exercise the power but that does not denude the power. The power to make the reference remains intact and can be exercised if the material and relevant considerations for exercise of power are available; they being the continued existence of the dispute and the wisdom of referring it, in the larger interest of industrial peace`and harmony. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant company to consider the demands set out in the notice. The relevant demand for the purpose of present discussion is demand No. 1 which reads as under: That our three (?) companions Mohamed Yamin and Mohamed Yasin who had been working in the above mentioned factory for the last 15/15 years and 8 years, their termination of service and denying their gate- passes are illegal and against the principle of justice, therefore, they be reinstated to their jobs and by giving back the full wages from the date of their termination, injustice be ended, The demand as hereinabove set out appears to be a translation of a demand originally served in Hindi. The substance of the matter is that the Union complained about the termination of service of the two named workmen who are respondents 3 and 4 and one other whose services were terminated by the appellant and which termination was styled as illegal and the crucial industrial dispute was to reinstate them with full back wages and continuity of service. There were seven other demands with which we are not concerned. The appropriate Government while making the reference Annexure P-2, informed the Union that the demands 2 to 9 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l demand was someone other than the one which is now referred to the Industrial Tribunal. The Union had espoused the cause of two specified workmen and one other and the reference is with regard to the termination of service by retrenchment in respect of the same two workmen. The language or the format in which the demand is couched is hardly decisive of the matter The substance of the matter is as to what was the grievance of the workmen complained of by them or espoused by the Union and what the Industrial Tribunal is called upon to adjudicate. Viewed from this angle the demand referred to the Industrial Tribunal for adjudication is the same which was espoused and raised by the Union. Reference was made in this connection to the Sindhu Resettlement Corporation Ltd. v. The Industrial Tribunal of Gujarat ors. ([1968] 1 S.C.R. 515) The appellant-employer in that case contended that the demand raised before the employer was about retrenchment compensation and not about reinstatement of the retrenched workmen and, therefore, the Government was not competent to make a reference as if the demand was one of reinstatement. The demand which was referred to the Tribunal was whether Shri R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges simultaneously with termination of service being not a pre-requisite, the termination would neither be illegal nor invalid. Section 25F prescribes conditions precedent to retrenchment of workmen. The conditions precedent are: (a) giving of one month's 5-817 SCI/78 notice in writing to the workman sought to be retrenched indicating the reasons for retrenchment and the retrenchment can be brought about on the expiry of the notice period or on payment of wages in lieu of such notice for the period of notice; (b) payment of retrenchment compensation as per the formula prescribed therein. No notice to the workman would be necessary if the retrenchment is under an agreement which specifies a date for the termination of service. Section 25FFF prescribes liability of an employer to pay compensation to workmen in case of closing down of undertaking. The relevant portion of s. 25FFF reads as under: 25FFF. (1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that under taking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands the semantics of retrenchment. 'Termination... for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is-has the employee's service been terminated ? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination em braces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of s. 25F and s. 2(oo). Without speculating on possibilities, we may agree that 'retrenchment' is no longer terra incognita hut area covered by an expansive definition. It means 'to end, conclude, cease'. As against this, reference was made to Management of Hindustan Steel Ltd. v. The Workmen Ors.,([1973] 3 S.C.R. 303) wherein the management contended that it is a case of closure and the workmen cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;undertaking' is not defined in the Act. It also finds its place in the definition of the expression 'industry' in s. 2(j). While ascertaining the amplitude of the expression 'undertaking' in the definition of the expression 'industry', noscitur a sociis cannon of construction was invoked and a restricted meaning was assigned to it in Bangalore Sewerage Board v. Rajappa.([1978] 3 S.C.R. 207 at 227) While, thus reading down the expression, in the context of s. 25FFF it must mean a separate and distinct business or commercial or trading or industrial activity. It cannot comprehend an infinitismally small part of a manufacturing process. The Tribunal found that the alleged retrenchment notice was not served upon workmen and that finding was not controverted by pointing out some evidence which may point to the contrary. The notice expressly states that' the workmen are retrenched though it simultaneously states that the action is taken under s. 25FFF. But if the Company had a container making section which was closed way back in 1964 and yet these three workmen who used to paint the containers were retained, it cannot be said that painting section w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
