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Bombay Union of Journalists and ors. Vs. State of Bombay and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Judge
Reported in(1961)IILLJ727Bom
AppellantBombay Union of Journalists and ors.
RespondentState of Bombay and anr.
Excerpt:
.....notice was given to the government in the prescribed manner. 55, this court has held that for a retrenchment to be valid, it was incumbent upon the employer to fulfil the requirements of clauses (a) and (b) of section 25f, and that it follows from this that where those provisions are not satisfied; therefore, if he complies with this provision, that is, if he sends a notice to the government seven days after the retrenchment of the workman, the retrenchment will be perfectly valid. though we dismiss the appeal, we do not think fit to award costs of appeal to respondent 2, because they had in fact failed to fulfil one of the requirements of section 25f, that is, serve a notice on the government as required by rule 80. we, therefore, direct that costs of this appeal will be borne by the..........as a sub-editor in the free press journal sometime during the year 1953, was also served with a notice of retrenchment and termination of services from 1 december 1957. that notice is likewise dated 30 november 1957. the notice to, him stated that he would get three months' salary in lieu of three months notice. both petitioner 2 and petitioner 3 were requested to collect their dues from the cashier, but they declined to do so. they only collected their salaries, for the month of november and ceased to work for respondent 2 as from the 3 december 1957. the bombay union of journalists wrote to the director-in-charge of respondent 2, alleging that the action taken by the respondent 2smacks of vindictiveness against working journalists in view of the case which is still pending before.....
Judgment:

Mudholkar, Acting C.J.

1. This is an appeal from a judgment of Justice Sri K.K. Desai in Miscellaneous Petition No. 426 of 1958. That was a petition under Article 226 of the Constitution, in which petitioners 2 and 3 had challenged the legality of their retrenchment by respondent 2, the Indian National Press, Bombay (Private), Ltd. The first appellant is the Bombay Union of Journalists and it joined in the petition apparently because a question of principle affecting working journalists as a whole was involved in the petition.

2. The relevant facts are as follows: The second appellant Smt. Mukherji was appointed on the staff of the Indian National Press, Bombay, on a salary of Rs. 500 per month with effect from 1 January 1955. On 30 November 1957 she was served with a notice of termination of services with effect from 1 December 1957. The notice stated that the management in consultation with the editor had decided to retrench her services: It further stated that she would be paid three months salary in lieu of three months' notice. We may mention here that though under the Industrial Disputes Act, 1947, only one month's notice for termination of service is required, under Sub-section (2) of Section 3 of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, the period of notice for retrenchment of a working journalist other than an editor is to be three months. Petitioner 3, Sri Thomas, who was employed as a sub-editor in the Free Press Journal sometime during the year 1953, was also served with a notice of retrenchment and termination of services from 1 December 1957. That notice is likewise dated 30 November 1957. The notice to, him stated that he would get three months' salary in lieu of three months notice. Both petitioner 2 and petitioner 3 were requested to collect their dues from the cashier, but they declined to do so. They only collected their salaries, for the month of November and ceased to work for respondent 2 as from the 3 December 1957. The Bombay Union of Journalists wrote to the Director-in-charge of respondent 2, alleging that the action taken by the respondent 2

smacks of vindictiveness against working journalists in view of the case which is still pending before the Supreme Court in which the Indian National Press, Ltd., is a petitioning party.

and demanded that the notices issued to the two petitioners should be withdrawn forthwith and that they should be reinstated in their original posts. Respondent 2 did not concede the demand and thereupon the union approached the Labour Commissioner of the Government of Bombay for taking further action. Eventually conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947, were commenced. During those proceedings, statements of both the parties, that is, the petitioners and respondent 2, were planed on record. The conciliation officer Sri Durve held a meeting with the disputing parties but could not bring about a conciliation. On 15 April 1958, he therefore 'submitted a report to the Government of Bombay under Section 112(4) of the Act. in his report, amongst other things, he stated that the (management denied the charge of victimization of petitioners 2 and 3. He further stated that the management admitted that they had not followed the provisions of Section 25F(c) of the Act, but that the management contended that the retrenchment was proper and also offered to pay all the legal dues to the petitioners 2 and 3. He concluded by saying:

In view of the stand taken by the parties, there was no possibility of a settlement and hence I recorded a failure.

After the matter went up to the Government, both the parties to the dispute filed their respective statements before them. After considering the statements, as well as the report submitted by the conciliation officer, the Government came, to the conclusion that it was not necessary to refer the dispute to a board or tribunal under Section 12(5) of the Act. This was communicated to the petitioners by a letter, dated 1 July 1968 addressed to them by the Deputy Secretary to Government of Bombay, Labour and Social Welfare Department. The reasons for not referring the dispute to the tribunal are set out thus to that letter:

(1) The termination of the services of, Smt. Aruna Mukherji and Sri M.V. Thomas appears to be an act of retrenchment on the part of the management for which the management is willing to pay all the legal dues to the retrenched persons; and

(2) in effecting the said termination the management does not appear to have acted mala fide or vindictively nor practised victimization for trade union activities.

Thereafter the petitioners waited upon the Chief Minister of the State of Bombay but apparently he did not think it fit to interfere. Eventually, therefore, the petitioners preferred a petition to this Court, out of which this appeal arises.

3. The contention of the petitioners is that the retrenchment of the petitioners 2 and 3 is Illegal because the provisions of Section 25F(c) have not been followed in this case and that therefore the Government were bound to refer the dispute to a tribunal under Section 12(5) of the Act. The further contention of the petitioners is that the reasons given by the Government for not referring the dispute to a tribunal are not germane to the dispute, but are purely extraneous, and that therefore this Court is entitled to issue a writ of mandamus against the Government asking them to deal with the matter according to law.

4. Now, to appreciate the argument advanced by Sri Rajni Patel, who appears for the petitioners, it is necessary to refer to certain provisions of the Industrial Disputes Act. Section 10 of the Act provides that if the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a board or a Court of inquiry or a labour court or a tribunal. Section 11 of the Act lays down the procedure and powers of conciliation officers, board, courts and tribunals constituted under the Act. Section 12 of the Act sets out the duties of conciliation officers. Sub-section (4) of that section provides that if the conciliation officer fails to bring about a conciliation between the parties to an Industrial dispute before him, be should make a report to the 'Government containing a full statement of fact and circumstances of the case and setting out the reasons on account of which in his opinion a settlement could not be arrived at Sub-section (5) provides that if on consideration of the report under Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a board, labour court, tribunal or national tribunal, It may make such reference. It further provides that where the appropriate Government does not make such a reference, It shall record and communicate to the parties concerned its reasons therefore.

5. It is not disputed before us, and Indeed it could not be disputed, that this provision confers a discretion on the Government whether to refer a particular dispute to a board or a tribunal or not. It has been pointed out by this Court in Engineering Staff Union v. State : (1959)ILLJ479Bom that it is only if the Government is satisfied that there is a case for reference that a duty arises to make a reference. It has also been reiterated that the satisfaction of the Government is a condition precedent to the making of the order of reference and that however satisfied the Court may be, the Court cannot place itself in the position of the Government and make a reference by reason of its own satisfaction. In the case before us, the Government has stated in clear terms that they do not regard it as a fit case in which the matter should be referred to a board or a tribunal. According to Sri Patel, however, we are entitled to go behind this satisfaction in the present case, because the Government's satisfaction is apparently based upon extraneous matters. In this connexion he relies upon certain other observations of this Court at p. 494 of the report just cited: There Chief Justice Sri Chagla, after citing two passages from the judgment of Lord Green in Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (1948) J.K.B. 223, stated that the learned Master of the Rolls had enunciated certain principles and summarized those principles as follows:--

If the statute requires the authority to have regard to certain matters, then the authority must have regard to those matters. If the nature of the subject matter and the general interpretation of the Act makes it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.

6. An argument was advanced before Lord Green, M.L. in that case, that discretion conferred upon the authority must be exercised reasonably. With respect to this argument, the Master of the Rolls observed:.but once it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case.

The learned Chief Justice then proceeded to observe:

He concedes that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Court can interfere, but to prove a case of this kind and here the Master of the Rolls gives a necessary warning 'to prove a case of that kind would require something overwhelming' and he again repeats that the decision of the local authority can be upset if it is. proved to be unreasonable. The preposition really means that it must be proved to be unreasonable in the sense that the Court considers it to be a decision which no reasonable body could have come for the sums up the discussion by saying that (p. 230).... The effect of the legislation is not to set up the Court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this Court in my opinion cannot interfere.

These observations apply in their full vigour to the question of the power of the Government that we are considering under Section 12(5). Sri phadke is right that there, may be cases where the Court would come to the conclusion that the action of the Government is unreasonable as disclosed by the reasons given by them. But these cases would be extremely rare and it would require, as the Master of the Rolls said; something overwhelming.

Now, these observations of the learned Chief Justice indicate the very limited powers which this Court has in the matter of the kind which is before us. We have already quoted the reasons given by the Government for not referring the dispute to a board or a tribunal. According to Sri Patel, the first reason is extraneous or is not (?) germane to the matter which was before the Government. According to the Government, termination of the services of petitioners 2 and 3 appeared to be an act of retrenchment on the part of the management for which the management was willing to pay all the legal dues to those persons. The dispute between the parties was regarding the retrenchment of these very persons. It is difficult to appreciate, therefore, how the reason could be said to be extraneous to the dispute. Sri Patel has said that the Government proceeded upon a wrong view of law to the effect that the retrenchment was legal though in fact it was Illegal. We shall presently deal with the question as to whether retrenchment could be regarded as Illegal as contended by Sri Batel. But we would like to point out that if the Government merely proceeds upon an erroneous view of the law and upon that basis exercises its discretion in a particular way we can claim no power under which we could interfere with the exercise of that discretion. This is not a case where the Government had overlooked an appropriate legal provision. Indeed, in the report of the conciliation officer as well as in the statements of the parties, there was a reference to the provisions of Section 25F(c). According to Sri Patel, before a person could be validly retrenched, the provisions of Section 25F had to be complied with. Indeed, according to him, compliance with the provisions of this section was a condition precedent to the retrenchment of a workman. Clause (c) of Section 25F requires that the employer shall serve a notice in the prescribed manner on the appropriate Government. Admittedly this was not done by respondent 2. According to Sri Patel, the Government was in error in Baying that the retrenchment is legal, even though the provisions of Clause (c) of Section 25F were not satisfied, that is, even though no notice was given to the Government in the prescribed manner. Since the Government had before it the provisions of this section and since the Government was also aware of the fact that those provisions were not complied with, we think it was open to the Government to consider the effect of the non-compliance of these provisions on the validity of the retrenchment of petitioners, 2 and 3. Even assuming that the view taken by the Government about the legality of the retrenchment is not correct, we must point out that the Government was entitled to form its own view on this question. Even an erroneous view taken by it on the question is not susceptible of correction by us or by any other Court of law. Apart from that, we are of the opinion that the view taken by the Government is correct. It is no doubt true that in the Hospital Mazdoor Sabha case 1957 I L.L.J. 55, this Court has held that for a retrenchment to be valid, it was incumbent upon the employer to fulfil the requirements of Clauses (a) and (b) of Section 25F, and that it follows from this that where those provisions are not satisfied; the retrenchment effected by the employer would be illegal. In that case, however, this Court was not considering the question of non-compliance with the provisions of Clause (c) of Section 25F. Sri Patel, however, argued that the decision of this Court regarding non-compliance with the provisions of Clauses (a) and (b) is based upon an interpretation placed on the opening words of Section 25F, which are to the effect that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until certain things are done. While it is true that the opening words govern all the clauses, .we have also got to bear in mind the particular provisions of Clause (c). Now, that clause empowers the appropriate Government to prescribe the manner in which a notice is to be served. Sub-rule (1) of Rule 80 of the rules framed under the Act by the Government of Bombay in exercise of rule-making power, which is relevant, reads thus:

80. Notice of retrenchment.--(1) The notice referred to in Clause (c) of Section 25F shall be given in Form XXIV by an employer and be served either by personal service or by registered post, on the Secretary to the Government of Bombay, Labour and Social Welfare Department, Bombay--

(i) not less than twenty-one days before the date of retrenchment, if the notice of retrenchment has been given to a workman;

(ii) within seven days of the date of retrenchment, if no such notice has been given but the workman is paid wages in lieu of notice;

(iii) (a) at least one month before the date of termination of service, if such date is specified in an agreement where the retrenchment is carried out under an agreement; and

(b) on the date of such agreement, where the date of termination la not so specified.

From this sub-rule it is clear that it is open to an employer to retrench a workman and then to send a notice to the State Government within seven days of doing that. Therefore, if he complies with this provision, that is, If he sends a notice to the Government seven days after the retrenchment of the workman, the retrenchment will be perfectly valid. From this it would follow that the service of a notice upon the Government is not a condition precedent to the making of retrenchment. It is merely a condition and nothing more. Non-compliance with a condition of this kind would, therefore, amount not to an illegality, but to an Irregularity, which could be waived. From the stand taken by the Government in this case, it is clear that the Government waived this irregularity. In the circumstances, It must be held that the retrenchment of the petitioners 2 and 3 was not illegal at all.

7. That being the position, we uphold the order of the learned single Judge and dismiss this appeal. Though we dismiss the appeal, we do not think fit to award costs of appeal to respondent 2, because they had in fact failed to fulfil one of the requirements of Section 25F, that is, serve a notice on the Government as required by Rule 80. We, therefore, direct that costs of this appeal will be borne by the parties as incurred.

8. Liberty to the petitioners' attorneys to withdraw the sum deposited in Court.


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