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Workmen Represented by West Bengal Metal Workers Union Vs. Jeewanlal (1929) Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1696 of 1958
Judge
Reported inAIR1960Cal556,64CWN708,[1960(1)FLR487],(1961)IILLJ23Cal
ActsIndustrial Disputes Act, 1947 - Section 25H
AppellantWorkmen Represented by West Bengal Metal Workers Union
RespondentJeewanlal (1929) Ltd. and ors.
Appellant AdvocateSanat Kumar Mukherjee and ;Amiya Lal Chatterjee, Advs.
Respondent AdvocateB.C. Ghose Roy, Adv. for Opposite Party No. 1 and ;Additional Government Pleader for Opposite Party No. 3
Cases ReferredM. D. Thakar v. Labour Appellate Tribunal
Excerpt:
- .....gazette of the 26th december, 1957.2. the only point for decision is whether section 25-h of the industrial disputes act is retrospective or not. there is no decision on this particular section although there are decisions on the other sections in chapter va of the industrial disputes act containing sections 25a to 25j.3. the workmen in this case were retrenched between the 15th and 23rd of july, 1952, when section 25-h was not in operation. the counter-part of section 25-h appears first in an ordinance dated the 24th february, 1953 and was subsequently embodied in this section 25-h of the act on 24-10-1953. the point now is that from january 1954, the company started taking some of these retrenched people and the question arises whether section 25-h can at all be applied to the.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by the West Bengal Metal Workers Union under Article 226 of the Constitution for a writ of certiorari against the decision of the Industrial Tribunal made on the 3rd December, 1957 and published in the Calcutta Gazette of the 26th December, 1957.

2. The only point for decision is whether Section 25-H of the Industrial Disputes Act is retrospective or not. There is no decision on this particular section although there are decisions on the other sections in Chapter VA of the Industrial Disputes Act containing Sections 25A to 25J.

3. The workmen in this case were retrenched between the 15th and 23rd of July, 1952, when Section 25-H was not in operation. The counter-part of Section 25-H appears first in an ordinance dated the 24th February, 1953 and was subsequently embodied in this Section 25-H of the Act on 24-10-1953. The point now is that from January 1954, the Company started taking some of these retrenched people and the question arises whether Section 25-H can at all be applied to the re-employment of such retrench-e3 workers. The order of Reference to the Industrial Tribunal in this case was made on the 27th June, 1957. The Tribunal held that Section 25-H of the Industrial Disputes Act had no retrospective operation and, therefore, upheld the objection taken by the Management and decided the issue against the workers. The present petition is directed against that award of the Industrial Tribunal.

4. Section 25-H of the Industrial Disputes Act reads as follows :

'25-H -- Re-employment of retrenched workmen. Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen to offer themselves for re-employment, and the retrenched workmen who offer themselves for re-employment shall have preference over other persons.'

The language of Section 25-H uses the words 'are retrenched', 'proposes to take into his employ' and 'shall give an opportunity'. They indicate that the section is prospective and is neither retrospective nor retroactive. Therefore both the retrenchment and the re-employment of the retrenched workmen have to take place after the operation of Section 25-H. If the retrenchment had taken place before, and the employment of persons after, the operation of Section 25-H even then the section cannot be attracted. Retrenchment and re-employment of retrenched workmen are by Section 25-H correlated. The correlates therefore can only be recognised after Section 25-H comes into operation. The right of a retrenched workman in the case of re-employment is for the first time recognised in Section 25-H of the Act. Such a right of a retrenched workman to be considered for re-employment in preference to others was not recognised before and is created for the first time by Section 25-H of the Statute. It is no doubt true that even before the introduction of Section 25-H, retrenchment was an industrial concept arising out of conditions of employment and which was the subject-matter of industrial disputes and industrial decisions under the Industrial Disputes Act. But the specific right of a retrenched workman to offer himself for re-employment with added right of preference over others, in case the employer proposes to take into his employ any person is a new right created by the new statutory provision in Section 25-H. It will, therefore, be inappropriate, in my view, to make such rights which are entirely creatures of statute, -- retrospective or retroactive. Section 25-H was introduced by Act 43 of 1953 which was passed on the 23rd December, 1953, giving it a limited retrospective operation expressly from the 24th October 1953. Therefore, it is only proper to consider that Parliament had before its mind the question of retrospective operation of the Act and gave only a limited retrospect. It will, therefore, be improper to extend further that retrospect. It is well-settled that a statute is ordinarily to be read as prospective unless expressly or by necessary implication, it is made retrospective. Here, apart from the fact that there is no express language to indicate retrospective operation of Section 25-H, such language as has been used and which I have indicated above, makes it rather expressly or in any event impliedly prospective. That fact taken with the limited retrospective operation when the Act on the 23rd December, 1953 gave it effect from a prior date, namely, the 24th October, 1953, should, in my view, conclude this question.

5. Before I conclude I shall make a brief reference to the case cited at the Bar. In J. K. Hosiery Factory v. Labour Appellate Tribunal of India, reported in (S) : (1956)IILLJ4All , Desai J. held Section 25F of the Industrial Disputes Act under this new Chapter VA not to be retrospective. Of the same view was Rajagopala Ayyangar J. in Managing Director of Newtone Studio Ltd. v. General Secretary, Madras State Cinema and Studio Employees Union, : (1957)IILLJ270Mad , on Section 25F.

6. The Supreme Court in Pipraich Sugar Mills Ltd. v. Their Mazdoor Union, reported in : (1957)ILLJ235SC , also held that Section 25F of the Industrial Disputes Act had no retrospective operation following the previous decision of the Supreme Court in Messrs. Burn and Co. Ltd. v. Their Workmen, : (1957)ILLJ226SC . The decision of the Travancore Cochin High Court in General Produce Ltd., Alleppey v. Ambalapuzha Taluk Head Load Conveyance Workers Union, Alleppey, AIR 1957 Trav-Co. 268, also is in favour of a prospective operation of Section 25F of the Act.

7. On behalf of the petitioner, reference was made to a decision of a Division Bench of the Bombay High Court in M. D. Thakar v. Labour Appellate Tribunal, : AIR1957Bom46 , where it is said that when the only question that the Tribunal has to consider is whether a Company has made out a prima facie case for retrenching its employees and, being satisfied with that prima facie case, the Tribunal gives permission to retrench and the employees are retrenched, then whatever rights they may have under Section 25-H, remain unaffected by that decision. This authority does not help the petitioner. It does not say that Section 25-H is retrospective or that it can be applied when the retrenchment took place before and the re-employment after Section 25-H.

8. Therefore, both for reasons of construction as well as on the weight of authorities, I must hold that Section 25-H of the Industrial Disputes Act is not retrospective. In order to avail of the right under Section 25-H of the Act, both the retrenchment as well as the re-employment have to be after Section 25-H comes into operation.

9. I, therefore, discharge the Rule. Therewill be no order as to costs.


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