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Silver Cloud Estate Vs. Labour Court and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1960)IILLJ571Mad
AppellantSilver Cloud Estate
RespondentLabour Court and ors.
Cases ReferredIn Hariprasad v. A.D. Divelkar
Excerpt:
- - i am of opinion that, in the circumstances of this case, the learned counsel is well founded in his first contention. to derive assistance from the proviso to the section as well as from the provisions of section 9a of the act......conditions of service. section 33(2)(a) refers only to the alteration in regard to conditions of service. a retrenchment cannot ordinarily amount to alteration in the conditions of service, but rather termination of the same. it may be that in certain cases a retrenchment may result in the alteration of conditions of the service of other workers. for instance, if, for doing a piece of work, 40 people are employed, and if 20 out of them are retrenched., the entire work will fall on the shoulder of the other 20, with the result that they would be obliged to do more work than they have been doing. that may, in certain circumstances, amount to alteration of the service of the service of the remaining 20 workers. but that; is not the case hers. it is not stated on behalf of the workmen that.....
Judgment:

Ramachandra Ayyar, J.

1. During the time when an industrial dispute (Industrial Dispute No. 1 of 1954) was pending before the Special Industrial Tribunal for Plantations (Labour Court, Coimbatore), the management of Silver Cloud Estate, Gudalur, found a necessity to effect a retrenchment of certain number of workers. It is not disputed that the workmen affected by the retrenchment were not directly concerned in the industrial dispute. Nor was the retrenchment otherwise than bona fide. The management, however, sought to obtain previous sanction of the labour court for effecting retrenchment in Petition No. 113 of 1957. It is said that the application was withdrawn, on a view expressed by the labour court during the course of hearing that the proper procedure for the management was to effect, the retrenchment first and then seek approval of the Court under Section 33(2) of the Act. The retrenchment was then effected in purported conformity with the rules and compensation paid to the workers. There is no complaint by the concerned workers against the procedure adopted. There had been no application by them under Section 33A of the Act. The management filed Petition No. 11 of 1958 under Section 33(2) of the Industrial Disputes Act for approval of its action in the matter of the retrenchment of the workers. The labour court, Coimbatore, held that the financial condition of the management did not justify the retrenchment, and in that view, rejected the application. The validity of that order is questioned in the present petition under Article 226 of the Constitution.

2. Mr. Narayanaswami, the learned Counsel for the petitioner, has raised three contentions in regard to the jurisdiction of the labour court to pass the order it did. The learned Counsel first contended that the application itself was an unnecessary one, as the retrenchment, not being effected by way of punishment for any misconduct on the part of the workers, was outside the purview of Section 33(2) of the Act, and, therefore, it was not necessary for the management to obtain either the previous or ex post facto sanction of the Court. Secondly, it was contended that the labour court erred in proceeding to adjudicate on the merits of the retrenchment, and while functioning under Section 32(1) the only question for consideration was whether there was a prima facie case for discharging the workmen and whether there was no improper motive which actuated (?) the management in regard to the same. Thirdly, it was contended that the order of the Court contained certain obvious errors on the face of the record, which would merit the quashing of the order under Article 226 of the Constitution.

3. It is unnecessary to deal with the points 2 and 3 mentioned above or to consider whether in the instant case the conduct of the management in employing part-time workers after discharging1 the permanent workmen from its plantation was a device adopted by it for effecting retrenchment, such not being the case of the workers. I am of opinion that, in the circumstances of this case, the learned Counsel is well founded in his first contention.

4. Before dealing with that contention, it is necessary to refer to the provisions of Section 33(2) of the Industrial Disputes Act:

33. (2) During the pendency of any such proceedings in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute,

(a) alter, in regard to any matter not connected With the dispute, the conditions of service applicable to that workman, immediately before the commencement of such proceedings; or

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

The plea urged on behalf of the management is that a bona fide retrenchment of a worker cannot come under any of the clauses stated above. In the definition of the term 'retrenchment' in Section 2(oo) there is no element of misconduct involved. Section 2(oo) states:

'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(c) termination of the service of a workman on the ground of continued ill-health:

5. In Hariprasad v. A.D. Divelkar 1957 I L.L.J. 243 the Supreme Court observed at p. 252:

that retrenchment as defined in Section 2(oo) and used in Section 25F has no wider meaning than the ordinary, accepted connotation of the word; it moans the discharge of surplus labour or staff toy the employer for any reasons whatsoever, otherwise than as a punishment inflicted, by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a, real and bona fids closure of business.

It would follow that a retrenchment effected bona fide for reasons other than punishment cannot come within, the meaning of Section 33(2)(b) and that there will not be any necessity for obtaining sanction of the Court, while an industrial dispute is pending.

6. Mr. Sankaran, who appeared for the respondent 2, however, contended that the present case would come within Section 33(2)(a), as 'retrenchment' would amount to alteration of the conditions of service. Section 33(2)(a) refers only to the alteration in regard to conditions of service. A retrenchment cannot ordinarily amount to alteration in the conditions of service, but rather termination of the same. It may be that in certain cases a retrenchment may result in the alteration of conditions of the service of other workers. For instance, if, for doing a piece of work, 40 people are employed, and if 20 out of them are retrenched., the entire work will fall on the shoulder of the other 20, with the result that they would be obliged to do more work than they have been doing. That may, in certain circumstances, amount to alteration of the service of the service of the remaining 20 workers. But that; is not the case hers. It is not stated on behalf of the workmen that the discharge of the retrenched personnel have, in any way, affected the existing workmen. Mr. Sankaran has sought; to derive assistance from the proviso to the section as well as from the provisions of Section 9A of the Act. From the fact that the proviso refers to the discharge of workmen it is contended that the main part of Section 33(2)(a) should also comprehend a case of discharge from service. Section 33(2)(a) deals with alteration of conditions of service, and excepting the case referred to by me by way of illustration retrenchment of workers cannot come under that section. Section 9A refers to change in the conditions of service, as specified in Schedule IV to the Act. Item 11 of Schedule IV mentions:

Any increase or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, not due to force majeure (?) as one of the conditions of service.

This, as I have stated already, should be read as applying to the case where the reduction will involve a change in working conditions on the unretrenched personnel. Item 11 would include a case of retrenchment in all cases. I am, therefore, of opinion that Clause (a) of Section 33(2) will not apply to the present case, as it is not the case of any party that the retrenchment effected by the management affected the other workmen to any extent. It follows that the management was not obliged, in the circumstances of this case, to obtain sanction of the labour court for the retrenchment effected by it, while I.D. No. 1 of 1954 was pending.

7. There is one difficulty however in issuing a writ in the circumstances of this case. The petitioner himself invoked the jurisdiction of the labour court for its sanction, and has come up to this Court only when it has refused to grant the same. It is a matter for consideration whether this Court, exercising its jurisdiction under Article 226 of the Constitution, could issue, in its discretion, the writ that is now sought. The fact that the petitioner invoked the jurisdiction of the labour court could not clothe it with the jurisdiction under Section 33(2), if under the statute it has no power. Nor can it be said that the petitioner is in any way stopped from applying to this Court under Article 226 of the Constitution. As I have stated above, the retrenched workmen have accepted the compensation paid to them, and they have no complaint. In the circumstances, I do not think that this Court should decline to Issue a writ.

8. Rule nisi is made absolute. The order of the labour court in Petition No. 11 of 1958 in I.D. No. 1 of 1954 is quashed. There will be no order as to costs.


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