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TMI Blog1962 (6) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... distributing electric energy in the South Arcot District. The undertaking was taken over by the State Government with effect from 1-6-1957 under Section 4(1) of the Madras Electricity Supply Undertakings (Acquisition) Act, 1954. The Act enables the Government to declare any undertaking not previously taken over by them to vest in itself. On such acquisition, the licencee became entitled to compensation. There are three alternative modes for computing the compensation payable, referred to in Section 5 of the Act as Basis A, B and C, it being left to the option of the licencee to choose on which basis he should be paid. Basis A fixes the compensation payable at twenty times the average net annual profit of the undertaking, the average being arrived at by taking the profits of five years immediately preceding the date of vesting. In this method of awarding compensation, the value of the assets owned by the undertaking and transferred to the Government do not enter into the account; nor does its existing or future liabilities affect the compensation thus calculated. 2. Section 6 of the Act provides inter alia that if compensation were to be paid on basis A, the property belon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with Section 25-FF of the Industrial Disputes Act retrenchment compensation. Since then all the employees have been taken over on a permanent basis by the Madras Electricity Board. It is not disputed that the provisions of the Industrial Disputes Act will apply to the case of their workers vis a vis the Government or the Board and they will be employers within the meaning of that legislation. The company was certainly an employer and the relief claimed in the applications is directed against it alone. Indeed the company alone figured as a respondent in the first instance; it was only later that the Government and the Board were impleaded. 5. The applications of the workers were resisted by all the respondents on the ground that the Labour Court had no jurisdiction to entertain the claim and that even on the merits the same was not sustainable as there was no retrenchment of the workers either in fact or in law. 6. The first of the two questions, namely, whether the Labour Court had jurisdiction to entertain the applications was tried as a preliminary issue in six of the workers' petitions. By its order dated 3-10-1958 the Labour Court overruled the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the company. Justice could be rendered to the parties only if the Labour Court is made competent to decide and apportion the liability as between the Government and the company and as the Labour Court has no power in that behalf, it could not be held entitled to decide the application. 9. We shall consider the objections seriatim. (1) The argument in support of the first point is that a claim under Section 25-FF of the Industrial Disputes Act by its very nature will be a monetary claim and as Section 33-C(2), on its terms will cover only the case of computation of non-monetary benefits, there will be no jurisdiction In the Labour Court under that provision to adjudicate upon the former. The contention that Section 33-C(2) covers only the jurisdiction of a non-monetary claim and not a monetary one depends on the true construction of the provision. We shall therefore set out Section 33-C first: 1. Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Ch. V-A the workman may without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with non-monetary benefits. We can reject the last part of the argument even at the outset for, if the word benefit in Sub-section (2) is taken to comprehend both monetary and non-monetary benefits, the fact that sub-section (3) provides a machinery for assessment of the latter cannot cut down the scope of the provision. 11. The word benefit used in Sub-section (2) means an advantage and will obviously include monetary as well as non-monetary one. In the case of monetary benefits also, computation will sometimes be necessary as in the case of retrenchment compensation which has got to be worked our in accordance with Section 25-F of the Act, although it will be comparatively easy. That cannot mean that it is not a benefit within the meaning of Sub-section (2). In Rajamani Transports Ltd. v. Collector of Tiruchirapalli, 1956 I LLJ 37, Rajagopalan J. while construing a similar provision In Section 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950 held that the expression benefit was wide enough to include within its ambit any benefit which has accrued to the worker under the terms of a valid and enforceable award, pecuniary or otherwise. 12. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is to be determined by the Industrial Tribunal to which reference would be made by the appropriate Government for the purpose. 15. The foregoing observations only mean that a non-monetary benefit will come under that section. That does not mean that a monetary benefit due to a worker will not come within it. The two aspects of the argument, namely, that Section 33-C(1) applies to a power to adjudicate a claim to monetary benefit and that Section 33-C(2) in terms is wide enough to cover a case of monetary benefit as well, was considered by the Supreme Court in a case which arose under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, where Gajendragadkar J. observed: These provisions indicate that where an employee makes a claim for some money by virtue of a benefit to which he is entitled an enquiry into the claim is contemplated by the Labour Court and it is only after the Labour Court has decided the matter that the decision becomes enforceable under Section 33-C(1) by a summary procedure Vide Kasturi and Sons (Private) Ltd. v. Salivateswaran, (1958)ILLJ527SC . The view thus expressed by the Supreme Court will be suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction (see Section 7. A). From this it is argued that any dispute which concerns a question relating to retrenchment should go only before the Industrial Tribunal. This contention fails to take note of the fact that the jurisdictions conferred by Section 7 and Section 7-A are with reference to industrial disputes, collective and not individual. But Ch. V-A creates certain rights in the individual worker. Such rights if disputed cannot be agitated as industrial disputes unless a substantial number of workers espouse the cause and the Government deem it fit to refer it for adjudication. The rights created in favour of industrial workers under Ch. V-A are such, that the individual concerned should have a remedy, irrespective of the fact whether the other workers are prepared to sponsor his case or not. Section 33-C(2) has provided for it i.e., a machinery for enforcing individual rights. The labour Court is thus invested with jurisdiction in regard to such claims. 19. That the Labour Court is not competent to decide any question of indemnity that may arise between the company and the Government in case the former were made t) pay retrenchment compensation is hardly a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore arises on account of the fiction created by the section and not on any factual retrenchment as would be a case under Section 25-F. 22. Section 25-FF was introduced in its original form in to the main Act by an amendment which came into force on 4-9-1956. The circumstances which necessitated the introduction of the amendment has been referred to in Hariprasad v. A.D. Divelkar, AIR 1957 SC 121. Prior to the amendment, every transfer or closure of business and any change of employer or management was regarded as effecting a retrenchment of the employees of the transferor with the consequence they became entitled to retrenchment compensation. The Supreme Court however held in the case cited above that as the true import of the word retrenchment was discharge of surplus labour, a discharge of workers by reason of a bona fide closure or transfer of business from one employer to another would not amount to a retrenchment. The decision was presumably considered by the legislature to cause hardship and requires its intervention. There was perhaps another reason as well. The law if left alone might enable employers to adopt the device of transfer of the business to thwart bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Government. We are however unable to accept that view. For the application of Clause (a) of the proviso, what all is necessary to consider, is whether there has been a factual continuity in the service. The existence of the other conditions in the proviso makes this clear. To hold otherwise would even be to nullify the effect of the entire proviso as no case of transfer would then be exempted. In the present case it is admitted that there has been no factual discontinuity in the service. The first part of the proviso must be held to be satisfied. 2. Whether the terms and conditions of the service wider the Government are no less favourable to the employee compared with those under the company? It is essential for the consideration of this point that we must refer to certain facts attending the taking over of the employees of the company by the Government, immediately on taking the undertaking, the Government (as said before) entertained the employees of the company on a provisional basis and subject to provisions of Section 15 of the Act. That section authorises the Government to terminate the services of any one of the workers under the old management who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one under the licencee. 28. Now what about the conditions of service themselves? The Labour Court has taken great pains to analyse the terms of service obtaining in the company and under the Government after absorption and finding that the service under the Government though more beneficial in certain respects was not so in regard to others, held that proviso (b) could not be said to be satisfied. The Court appears to have been of the view that in order that a case can come under that provision, each one of the terms of service under the Government should either be more advantageous or at least the same, from the point of view of the worker. Mr. Rajah Aiyar contends that this is a wrong approach to the question and that what one has to see is whether the conditions of service compared as a whole could be considered more disadvantageous to the worker. 29. We are of the opinion that neither of the two views is correct. The phrase in any way less favourable to the workmen does not mean, not less favourable to the workman in any one particular. Small infractions in the benefits or conditions of service till then enjoyed by the workman under the former employer woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the former it is said that by virtue of Section 25-FF of the Industrial Disputes Act the company will be liable and by virtue of Section 6 of the Act that liability of the company will stand transferred to the Government. It is further allowed that a liability of the kind created by Section 25-FF is a contingent one arising on transfer of the business and will be comprehended within the term liability in Section 6 which is wide enough to include contingent and statutory liability. 32. Our attention' is then invited to the meaning of the term liability given in Jowitt's Dictionary of English law where it is defined as a condition of being actually or potentially subject to an obligation either generally as including every kind of obligation or in a more special sense to denote inchoate future unascertained or imperfect obligations as opposed to debts the essence of which is that they are ascertained and certain. In Asher v. Beaford Court Estates Ltd., 1950 AC 508 the use of the word liability in a statute was held to have reference to legal obligations. 33. But wide as the meaning of the word liability may be, we are unable to see how it can be said th ..... 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