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Nav Bharat Hindi Daily, Nagpur Vs. Nav Bharat Shramik Sangha and Another - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 602/77
Judge
Reported in[1982]134ITR655a(Bom); (1985)ILLJ474Bom; 1984MhLJ483
Acts Industrial Disputes Act, 1947 - Sections 2, 9, 25F and 25G
AppellantNav Bharat Hindi Daily, Nagpur
RespondentNav Bharat Shramik Sangha and Another
Excerpt:
.....as provided under section 25g also not complied with - termination not justified. - - a preliminary objection was also raised that the reference in question was bad in law and without jurisdiction, inasmuch as there was no industrial dispute as contemplated by s. it was also argued that the additional mono composing machine that was installed by the petitioner was according to them a rationalised machinery and consequent retrenchment was inevitable with the result that item 10 of fourth schedule was clearly attracted. failure to do so would render the action of the petitioner wholly invalid. failure to comply either s. we are even unable to accept this contention of the petitioner since failure to comply with s. we, however, refrain from going into these questions for the simple..........& steel co. ltd. : (1972)iillj259sc : in the said case it was held that omission to give notice of change to workmen in respect of change in weekly days of rest from sunday to some other day would render the change ineffective. shri dhabe also relied upon another case of the management of indian oil corporation ltd. v. its workmen : (1975)iillj319sc , wherein withdrawal of compensatory allowance unilaterally was held to be ineffective since it was a change which would materially and adversely affect the workmen in their condition of serve and hence a notice under s. 9a of the act was a must.7. these two case cited above by shri dhabe and the principles laid therein would apply only in case it is found that the tribunal was competent to clinch the issue on the basis of pleadings made by.....
Judgment:

Patel, J.

1. The petitioner 'Navbharat' Hind daily, Nagpur, was being published by 'Navbharat Press', Nagpur, a registered partnership firm. Respondent No. 1, hereinafter referred to as the respondent was at the relevant time a registered trade union of workmen engaged in Navbharat Press. Till the year 1968-69 the work of composing was mainly done by hand compositors. In the same year the petitioner purchased one mono composing machine and after its installation the work of composing was partly done by that machine and partly by hand. The petitioner installed an additional mono composing machine in March 1973. Soon thereafter in May, 1973, the services of the thirteen compositors came to be terminated on the ground that they have been retrenched from the service.

2. Whereupon the President of the respondent addressed a letter dated 8th May, 1973 to the Deputy Commissioner of Labour, Nagpur, which is said to have been delivered in the office on 10th May, 1973. On the same day the Deputy Commissioner of Labour wrote to the Secretary, Industries and Labour Department, Government of Maharashtra, Bombay. By letter dated 25th May, 1973, the petitioner received an information from the State Government that an industrial dispute between the petitioner and its workmen exists in the matter of retrenchment of thirteen compositors and the Government has referred the said dispute for adjudication to the Industrial Tribunal, respondent No. 2, in this petition. In pursuance to this Order a reference came to be registered as Reference (I.D.) Case No. 8/73.

3. Before the Industrial Tribunal it was the case of the respondent that thirteen Compositors were in employment for last 18 to 20 years with the petitioner and were fighting for their rights to get the minimum wages and other conditions of employment. According to the respondent all thirteen compositors were dismissed from service on 3rd May, 1973, since their minimum wage cases were decided some days earlier. The termination of the services of the workmen was not bona fide and in fact it was a dismissal under the garb of termination for creating panic amongst the workers. The respondent further submitted that even presuming that thirteen compositors were retrenched the procedure prescribed by Chapter V-A of the Industrial Disputes Act (hereinafter referred to as 'the Act'), was not followed. According to the respondent the retrenchment was illegal, mala fide, and unjustifiable. Whereas it was the case of the petitioner that mono composing machine could perform the job of about ten to twelve compositors, and with the installation of second machine the petitioner faced problem of excess labour in the composing department. It was also the case of the petitioner that they were constrained to retrench thirteen compositors out of total number of twenty-five compositors. The petitioners also submitted that while effecting retrenchment they had followed the principle of 'last come first go', in accordance with the provisions contained in S. 25G of the Act. Individual notices were also served to retrench workmen and all conditions precedent for retrenchment were also complied with. The petitioner also stated that their action was bona fide, legal and proper and called for no interference by the Industrial Tribunal. A preliminary objection was also raised that the reference in question was bad in law and without jurisdiction, inasmuch as there was no industrial dispute as contemplated by S. 2(k) of the Act.

4. The Industrial Tribunal made an award on 22nd February, 1977 and it actually found that the petitioner had substantially complied with the conditions precedent of retrenchment as provided in S. 25F of the Act. However, it held that (i) it was imperative for the petitioner to give a notice of change under S. 9A of the Act, before installing the additional mono composing machine leading to retrenchment of large number of compositors; (ii) that the petitioner while effecting retrenchment had committed infraction of mandatory provisions as contained in S. 25G of the Act; (iii) that the decision of the management to retrench as many as thirteen compositors was arbitrary and thoughtless; (iv) that retrenchment of workmen was mala fide amounting to victimisation for legitimate trade union activities and (v) that the reference was proper and legal. In short the Industrial Tribunal found that the retrenchment of thirteen compositors was mala fide, unjustified and illegal. It, therefore, directed that all the thirteen compositors be reinstated in service but without payment of back wages. The petitioner, feeling aggrieved by the said award has filed this petition under Art. 226 and Art. 227 of the Constitution.

5. At the outset, the learned counsel for the petitioner, Shri M. G. Bhangde, submitted that the finding of the Industrial Tribunal on the question of non-compliance of S. 9A of the Act was totally wrong and erroneous inasmuch as the Tribunal was not competent to give such a finding in the absence of any such pleadings being made in the statement of claim by the respondent. Not having raised such a ground, the petitioners were taken by surprise. In this connection, the petitioner relied upon the Supreme Court decision in Shankar Chakravarti v. Britannia Biscuit Co. Ltd. : (1979)IILLJ194SC . Our attention was invited to para 31, which in clear terms, states that the rule of fair play demands that where a party who seeks to establish a contention to deny the relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading, there is no question of proving something which is not pleaded. Shri Bhangde also relied upon another decision of the Supreme Court in J. K. Iron & Steel Co. Ltd., Kanpur v. Iron & Steel Mazdoor Union, Kanpur : (1956)ILLJ227SC , where it held that it was not open for the Tribunal to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper. According to the petitioner, the Industrial Tribunal has given the findings without any pleadings on the point which was in excess of its jurisdiction. It was hence urged before us that the Industrial Tribunal could not have come to the conclusion that it was imperative on the part of the petitioner to have given a notice of charge before installation of additional mono composing machine.

6. Shri C. S. Dhabe, the learned counsel appearing for the respondent, tried to urge that the pleadings were sufficient to put the petitioner on guard when it was the specific case of the respondent that the retrenchment resorted to by the petitioner was illegal and unjustified. He further contended that it was for the petitioner to establish that they had complied with the mandatory provisions of S. 9A of the Act. It was also argued that the additional mono composing machine that was installed by the petitioner was according to them a rationalised machinery and consequent retrenchment was inevitable with the result that item 10 of fourth schedule was clearly attracted. For this proposition, Shri Dhabe relied upon a Supreme Court decision in Tata Iron & Steel Co. Ltd. v. Workmen of Tata Iron & Steel Co. Ltd. : (1972)IILLJ259SC : In the said case it was held that omission to give notice of change to workmen in respect of change in weekly days of rest from Sunday to some other day would render the change ineffective. Shri Dhabe also relied upon another case of the Management of Indian Oil Corporation Ltd. v. Its Workmen : (1975)IILLJ319SC , wherein withdrawal of compensatory allowance unilaterally was held to be ineffective since it was a change which would materially and adversely affect the workmen in their condition of serve and hence a notice under S. 9A of the Act was a must.

7. These two case cited above by Shri Dhabe and the principles laid therein would apply only in case it is found that the Tribunal was competent to clinch the issue on the basis of pleadings made by the parties. To accept the argument of Shri Dhabe that the pleadings were sufficient would be extremely difficult for us in the face of the rulings (cited supra), by Shri Bhangde on the point. Mere statement that the retrenchment was illegal and unjustified cannot in our opinion include the legality or otherwise of the installation of new mono composing machine which has ultimately led to retrenchment of 13 compositors. There is no other pleading in the statement of claim which the respondent could rely upon. It is very true that the petitioners were taken by surprise when the issue was raised probably for the first time during evidence before the Industrial Tribunal. In normal circumstances we would remand the case for proper pleadings in the reference and clinching of issues with a view to allow both the parties an opportunity over again. But when the petitioners were pointedly asked about the fact of compliance of S. 9A of the Act, the counsel Shri Bhangde very fairly and frankly conceded that no such notice was given. In the circumstances, we do not feel that any purpose would be served by remanding the case back to the Industrial Tribunal. The fact remains that no notice of change was served by the petitioner under the provisions of S. 9A of the Act before installing the additional mono composing machine, leading to retrenchment of large number of workmen.

8. On behalf of the petitioner, it was further contended that S. 9A was not applicable in view of the decision of the Supreme Court in L Robert D'Souza v. Executive Engineer, Southern Railway : (1982)ILLJ330SC . In the said case it has been held that in order to attract S. 9A the change proposed must be in the conditions of service applicable to the workmen in respect of matters specified in the fourth Schedule. When, however, a workman is retrenched, it cannot constitute a change in the condition of service specified in that Schedule. It was, therefore, submitted by Shri Bangde that while retrenching compositors. It was not necessary for the petitioner to comply with the provisions of S. 9A of the Act. In our opinion, this case does not support the case of the petitioner at all. What it purports to decide is that no notice of change is required in the case of retrenchment of employees since it does not affect the conditions of service applicable to workman in respect of industrial matters specified in the fourth Schedule. At the same time, it does rule that if the proposed change in respect of conditions of service applicable to workman in respect of industrial matters is specified in the fourth Schedule, S. 9A is attracted. We will shortly point out that in the instant case S. 9A is attracted.

9. Needless to say that installation of the mono composing machine was a rationalised machinery. It is the case of the petitioners themselves that the retrenchment of 13 workmen flows as a result of installation of the said machine. In a way, the respondent would be justified in showing to the Industrial Tribunal that the very installation of the machine was without the compliance of S. 9A of the Act. Be that so as it may, the fact remains that the installation of the mono composing machine being rationalised machinery likely to lead to retrenchment of workmen item 10 of the fourth Schedule is directly attracted. It was hence imperative on the part of the petitioner to serve a notice of change under S. 9A of the Act. Omission to do so would necessarily vitiate the retrenchment resulting from the operation of such machine. We, therefore, find no reason to interfere with the findings arrived at by the Industrial Tribunal on this count.

10. It was lastly contended on behalf of the petitioners that S. 9A of the Act was only directory in nature and casts no obligation on the petitioner to serve a notice of change under S. 9A of the Act. Shri Dhabe, the learned counsel for the respondent only relied upon the decisions cited supra and urged that the provisions are mandatory in nature and must be followed.

11. In this connection the Supreme Court had an occasion to consider whether the provisions of S. 25F(c) of the Act were mandatory or directory in nature. In the case of Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC . This decision lays down that unlike Clauses (a) and (b) of S. 25F which provide for payment of notice pay or wages in lieu thereof and retrenchment compensation, Clause (c) of that Section is neither condition precedent nor that Clause is obligatory. The test laid down for drawing such a conclusion was the intention of the legislature behind enacting each of the clauses, namely, whether it protects the interest of the workmen. Whereas Clauses (a) and (b) of S. 25F provide a safeguard in the interest of workmen, Clause (c) of that Section was not so intended. This clause was enacted only for the purpose of giving intimation to the appropriate Government about retrenchment with a view to keep itself informed about the conditions of employment of different industries in the region. It was in this context, the Supreme Court found that Clauses (a) and (b) of S. 25F are obligatory and constituting them into condition precedent.

12. It is, thus, apparent that in order to construe a particular provision to be obligatory or directory, the intention behind framing a Section or a Clause is a relevant consideration. That intention must be to protect the interest of the workmen as such. For this purpose, it is necessary to find out the intention behind enacting Section 9A of the Act.

13. Any employer who proposes to effect change in the conditions of service applicable to the workmen in respect of any matter specified in the fourth Schedule, can effect a change only after giving the workmen, likely to be affected by such change, a notice in a prescribed manner and after waiting for 21 days, the proposed change can be brought about. The intention behind the notice appears to be that the workman affected has a chance to raise a dispute by approaching proper authorities. The said dispute can also mature into a reference if the parties do not arrive at an amicable settlement. It is, thus, apparent that S. 9A was enacted with a view to protect the interest of workman who may be affected by a proposed change of the employer. In these circumstances, it would be difficult for us to hold that the provisions of S. 9A are not mandatory. In the instant case, the installation of the additional mono composing machine, which was admittedly a rationalised machine, it was bound to affect the workmen concerned and it was incumbent upon the petitioner to have complied with S. 9A of the Act. Failure to do so would render the action of the petitioner wholly invalid. Even presuming that the provisions of S. 9A of the Act to be directory, on the admission of the petitioner that there is not even a substantial compliance of the provisions, this contention of the petitioner has to be rejected.

14. The other finding attacked by the petitioner was about the infraction of the procedure prescribed for effecting retrenchment. It was argued on behalf of the petitioner that once the Tribunal holds that S. 25F was properly complied with, it was improper for the said Tribunal to hold otherwise in respect of S. 25G of the said Act. Even otherwise, it was submitted on behalf of the petitioner that Rule 81 framed under the Act, which prescribes for exhibiting the seniority list at least seven days in advance, cannot affect the retrenchment as long as the principles enunciated under S. 25G of the Act were strictly followed. It was lastly contended that in any eventuality only two compositors out of 13 retrenched would be affected due to the alleged contravention of the principal of 'last come first go', thereby suggesting that the retrenchment in respect of others should be upheld.

15. Shri C. S. Dhabe, the learned counsel for the respondent, relying upon the decision of the Supreme Court in the Workmen of Sudder Workshop of Jorehaut & Co. v. Management of Jorehaut Tea Co. Ltd. : (1980)IILLJ124SC , urged that the doctrine of 'last come fist go' must ordinarily be followed though departure therefrom is permissible under certain circumstances narrated in the Section itself. According to him since those circumstances do not exit in the present case, it was necessary for the petitioner to strictly comply with the rule of 'last come first go' before effecting retrenchment. It was the submission of the respondent that even non-compliance of Rule 81 of the Bombay Rules, inasmuch as the petitioner not having prepared the list of compositors according to seniority of service for exhibiting the same on the notice board, the retrenchment resorted to stands completely vitiated.

16. In order to appreciate the rival contentions of the parties we propose to deal with Rule 81 framed under the Act which is quoted below :

'The maintenance of seniority list of workmen - The employer shall prepare a list of workmen in the particular category from which retrenchment is contemplated, arranged according to the seniority of their service in that category, and cause a copy thereof to be posted on the notice board in a conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment.'

It is an accepted principal of industrial law that in ordering retrenchment, ordinarily the management should commence with the latest recruit and progressively retrench employees higher up in the list of seniority. In order to achieve this principle, the seniority list has to be prepared by an employer in accordance with Rule 81 of the Act. The intention behind exhibiting such a list is with a view to allow workmen to object to the said list and thereby avoid hardship which may result as a consequence of retrenchment. The list to be exhibited in accordance with the rule obviously is for the reason to protect the interest of workman. It further provides the safeguard against contravention of the Rule of 'last come first go', which is ordinarily required to be followed. In these circumstances it can never be said that the rule does not cast any obligation on the employer to strictly follow the said rule. In the instant case no such list was exhibited by the petitioner and, therefore, the Industrial Tribunal was right in coming to the conclusion that the petitioner had contravened Rule 81 of the Bombay Rules framed under the Act.

17. Though the petitioner had not complied with Rule 81, it was even otherwise obligatory upon the petitioner to have at least complied with the Rule of 'last come first go'. A list purporting to be a seniority list was filed by the petitioner before the Tribunal at the last stage if evidence, alleged to have been prepared from documents available with them. The oral evidence of the petitioner was not accepted by the Industrial Tribunal in the face to contrary evidence on record. As a matter of fact, the Tribunal did not rely upon the list since the documents from which the list came to be prepared were not filed. The refusal to accept the evidence by the Tribunal cannot be interfered with while exercising extraordinary jurisdiction under Arts. 226 and 227 of the Constitution, unless it is shown that such a refusal was baseless and totally perverse. We see no reason to disturb the findings arrived at on the point by the Industrial Tribunal.

18. It was next contended that the Tribunal having found that the petitioner having followed conditions precedent, as provided for in S. 25F, could not have come to an adverse conclusion in respect of S. 25G of the Act. This contention is equally devoid of any merits. Both these sections are independent of each other and either of them have to be complied with at the time of effecting retrenchment. Whereas S. 25F stipulates conditions precedent to be complied with while effecting retrenchment, S. 25G casts an obligation to follow the procedure prescribed therein. Failure to comply either S. 25F or follow S. 25G will, in our opinion, render the retrenchment invalid.

19. It was lastly contended that if at all there was a contravention of Rule of 'last come first go', it was only in respect of two compositors, thereby suggesting that the retrenchment in respect of other eleven compositors must be sustained. We are even unable to accept this contention of the petitioner since failure to comply with S. 25G and Rule 81 of the Bombay Rules would render the whole action of retrenchment illegal and invalid. The Industrial Tribunal was, therefore, right in holding that the petitioner while effecting retrenchment, had committed infraction of the mandatory provisions as contained in S. 25G of the Act.

20. It was argued on behalf of the petitioner that the decision of the management to retrench as many as 13 compositors could not be arbitrary and thoughtless, as has been held by the Industrial Tribunal. According to the petitioner, the decision solely rests with the management and falls within the purview of managerial functions. Even otherwise it was contended that there is sufficient evidence on record to hold that the outturn given by one mono composing machine was equivalent to about 12 to 13 compositors. Similarly, the petitioners tried to contend that the finding of the Industrial Tribunal on the point of mala fides and victimisation was erroneous and perverse, being contrary to the facts and circumstances brought on record. Both the points were argued by the petitioners at length. We, however, refrain from going into these questions for the simple reason that even if the petitioner succeeds on both the counts, the petition is bound to fail in view of our findings above. To deal with these points would only be an exercise in futility and would serve no purpose.

21. The question relating to the right of the State Government to make this reference to the Industrial Tribunal in respect of the industrial dispute was not argued before us.

22. In the aforesaid circumstances the petition fails and is hereby dismissed. There shall, however, be no order as to costs.


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