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Annasaheb Raghunathrao Bhosle Vs. Syndicate of Nagpore (Umrer Pauni) Motor Union - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 70 of 1957
Judge
Reported in(1958)60BOMLR1244; (1959)ILLJ114Bom
ActsIndustrial Disputes Act, 1947 - Sections 16, 25F, 33 and 33A
AppellantAnnasaheb Raghunathrao Bhosle
RespondentSyndicate of Nagpore (Umrer Pauni) Motor Union
Excerpt:
.....by way of retrenchment.;automobile products of india v. rukmaji bala [1955] a.i.r.s.c. 258 referred to. - - that is entirely a different thing and in our opinion the observations of their lordships have no application to a provision like..........under s. 25f(b) of the central act. in their application the petitioners had also asked for reinstatement but the state industrial court did not grant reinstatement. it is against this part of the order of the state industrial court that the petitioners feel aggrieved. respondents 1 to 3 are content with the order. 2. on behalf of the petitioners it is contended that it was not open to the state industrial court to grant compensation under the central act because that court was not functioning under that act. it is also contended that the proper relief which the state industrial court could have granted was the relief of reinstatement. on behalf of the petitioners it was argued before the state industrial court and it is argued before us that in view of the decision of the bombay.....
Judgment:

Mudholkar, J.

1. The petitioners were employed as checkers by respondent 1 which carries on the business of running a stage carriage service in Nagpur and Chanda districts. On 31 May, 1955, Sri Lokre, who was the then chairman of respondent 1, served a notice on each of the checkers individually to the effect that the services of the checkers will not be required from 1 July, 1955, as it was decided to close the checkers' department an from that date. On the same date, respondents 1 to 3 gave another notice under S. 31 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, to the Labour Officer, Labour Commissioner, and the Secretary, Madhya Pradesh Rashtriya Kamgar Union, which in a recognized union under the Act, to the same effect. Eventually, certain conciliation proceedings took place between respondents 1 to 3 on the one hand and the checkers on the other but no conciliation was effected. Thereafter, respondents 1 to 3 gave a notice to the checkers terminating their services from a certain date, and gave each of them one month's salary in lieu of notice. It is common ground that excepting in the matter of paying compensation under S. 25F(b) of the Industrial Disputes Act, 1947, the respondents complied with all the requirements of Chap. V-A of that Act. The petitioners thereafter made an application to the State Industrial Court under S. 41 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, complaining of an illegal change. The State Industrial Court after hearing the parties held that there was an illegal change and granted compensation to the petitioners and other checkers under S. 25F(b) of the Central Act. In their application the petitioners had also asked for reinstatement but the State Industrial Court did not grant reinstatement. It is against this part of the order of the State Industrial Court that the petitioners feel aggrieved. Respondents 1 to 3 are content with the order.

2. On behalf of the petitioners it is contended that it was not open to the State Industrial Court to grant compensation under the Central Act because that Court was not functioning under that Act. It is also contended that the proper relief which the State Industrial Court could have granted was the relief of reinstatement. On behalf of the petitioners it was argued before the State Industrial Court and it is argued before us that in view of the decision of the Bombay High Court in Hospital Mazdoor Sabha v. Bombay State 1957 I L.L.J. 55 payment of compensation under S. 25F(b) of the Central Act is a condition precedent to retrenchment and that where retrenchment has been effected without complying with that condition the only relief which could be granted is the relief of reinstatement.

3. In the first place, the State Industrial Court could not grant any relief whatsoever under the Central Act. Its jurisdiction was invoked under S. 41 of the local Act and its powers were confined to doing such things as were permitted by the provisions of that Act. What we have, therefore, to consider is whether under S. 41 of the local Act, the State Industrial Court upon its finding that the change effected by the employer is illegal could order reinstatement of the employees whose services had been terminated by way of retrenchment. Section 41 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, reads thus :

'The State Industrial Court or a District Industrial Court shall, on a reference made by the State Government, and may, on an application by any employer or employee concerned or by a representative of the employees concerned or by the Labour Officer, decide whether any strike or lock-out or any change of which notice has been given or which has taken place is illegal.'

4. Thus, what this section provides in terms is the grant of a declaration and nothing more. It does not confer upon the State Industrial Court a power to do anything more than make a declaration. If we compare that provision with S. 16 of the Act this point will appear clear. Under S. 16, the Labour Commissioner is given the power to order compensation or order reinstatement or to order both. Under the general law of master and servant there is no power in any tribunal to order reinstatement of a servant even though that servant was wrongfully dismissed. That law, no doubt, has been greatly altered by legislation, particularly, the industrial legislation, and there are provisions in some statutes providing for reinstatement. All the same, the relief of reinstatement must be confined to those provisions which permit such a relief being granted and it cannot be regarded that reinstatement has now become a relief which could be awarded by any tribunal and in every case of wrongful dismissal. Reinstatement being merely a creation of the statute could only be claimed by complying with particular provisions of the statute which provide for making a reinstatement. Under the local Act, not only reinstatement but compensation also could be granted by the Labour Commissioner alone under S. 16. The State Industrial Court has no jurisdiction to grant either relief. Reliance is, however, placed by the learned counsel for the petitioners on the decision of their lordships of the Supreme Court in Automobile Products of India v. Rukmaji Bala : (1955)ILLJ346SC . In that case their lordships observed :

'The extreme contention that under S. 33A of the 1947 Act, on a finding that there has been a contravention of the provisions of S. 33, the tribunal's duty is only to make a declaration to that effect leaving the workmen to take such steps under the Act as they may be advised to do, has been negativated by the Labour Appellate Tribunal in Serampore Belting Mazdoor Union v. Serampore Belting Co., Ltd. 1951 II L.L.J. 341 and by the Bombay High Court in Batuk K. Vyas v. Surat Borough Municipality, 1952 II L.L.J. 178. The same principle has been accepted and applied by a Full Bench of the Labour Appellate Tribunal to a case under S. 23 of the 1950 Act in Raj Narain v. Employer's Association of Northern India 1952 I L.L.J. 381.

We find ourselves in agreement with the construction placed upon S. 33A of the 1947 Act and S. 23 of the 1950 Act, by these decisions.'

5. Section 33 of the Industrial Disputes Act, 1947, is in the following terms :

'Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. - (1) During the pendency of any conciliation proceeding before a . . . tribunal in respect of an industrial dispute, no employer shall

(a) . . . alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before commencement of such proceeding; or

(b) . . . discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be.'

6. Then follows S. 33A, which reads thus :

'Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings. - Where an employer contravenes the provisions of S. 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention may make a complaint in writing, in the prescribed manner to such tribunal and on receipt of such complaint that tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly.'

7. It will be clear that these provisions are much wider in their amplitude than S. 41 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. Whereas the latter provision is confined to making a declaration, the two former provisions contemplate maintenance of status quo during the pendency of certain proceedings. Now, status quo cannot be maintained if it has been disturbed, unless the disturbance is removed, that is to say, where the status quo has been altered by dispensing with the services of the employees, that status quo cannot be restored without reinstating them. Their lordships, therefore, appear to have come to the conclusion that though the word 'reinstatement' has not actually been used in either of these provisions, it must be regarded as being there by implication. That is entirely a different thing and in our opinion the observations of their lordships have no application to a provision like S. 41 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. In our opinion, therefore, the State Industrial Court was right in holding that the petitioners were not entitled to reinstatement.

8. The learned counsel for the petitioners wants us to set aside the directions of the State Industrial Court granting compensation to the petitioners. As a matter of fact, the petitioners have actually obtained some relief. But since the petitioners want to have the direction regarding compensation set aside and since we are of the view that the State Industrial Court had no power to grant this relief either, we quash its order in this respect.

9. With this modification, the petition is dismissed with costs.


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