Bombay High Court
Dinkar Ramchandra Ambonkar vs Photophone Limited And Ors. on 16 October, 1991
Equivalent citations: (1994)IIILLJ1107BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Sri Krishna, J.
1. By this writ petition under Article 227 of the Constitution of India, the petitioner has impugned an Award dated 7th January, 1983, made by the Industrial Tribunal, Bombay, in Reference (IT) No. 23 of 1980 under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act").
2. The petitioner was in the employment of the first respondent as a Miller in the Machine Shop. He joined service on 6th May, 1970 as a casual workman, was appointed on probation as a Miller on 12th October, 1970, and confirmed in service as a Miller on 12th April, 1971. He came to be retrenched from service with effect from 11th August, 1978 by an order of Retrenchment dated 11th August, 1978. The workman, through his union, raised an industrial dispute, demanding reinstatement in service with full back-wages, and the said dispute came to be referred to the Industrial Tribunal, Bombay, and was marked as Reference (IT) No. 23 of 1980.
3. The principal contention of the petitioner before the Tribunal was that, at the material time, though a large number of workmen employed in the first respondent's industrial establishment were members of a trade union known as Bharatiya Kamgar Sena, which had signed a settlement with the first respondent, some of the employees in the Machine Shop, including the petitioner, were members of another union known as Engineering Workers Union, and had refused to subscribe to the said settlement. It was alleged that the petitioner and two other workmen working in the Machine Shop (who are the petitioners in the companion Writ Petition 3388 of 1983 and 3389 of 1983) were active workers of the Union, known as Engineering Workers Union. The petitioner alleged that the refusal of the petitioner and his two companion workmen of the Machine Shop to accept the terms of the settlement signed between the first respondent and Bharatiya Kamgar Sena had caused annoyance to the employer, i.e., the first respondent. The first respondent was, therefore, out to wipe out the remnants of Engineering Workers Union from its establishment, and, pursuant to this design, the first respondent illegally laid off workers of the Machine Shop on a false pretext of lack of work, and followed it up with retrenchment orders issued to the three workmen of the Machine Shop. Though, ostensibly, the retrenchment orders were issued for lack of work as a result of discontinuation of a few products of the Company, the petitioner alleged that this was a mere bogey, and, in fact, plenty of work was available in the Machine Shop to be given to the petitioner and his two companion workmen, who were too staunch loyalists of the Engineering Workers Union. It was, therefore, contended that the retrenchment was by way of victimization. It was, therefore, prayed that the retrenchment order be set aside and the petitioner be given the relief of reinstatement with full back wages and continuity of service.
4. The first respondent contested the reference, and contended, inter alia, that the retrenchment had been effected for bona fide business reasons. It was pointed out that the petitioner had ceased the manufacture of two items of production, viz., P-35 Projectors and Sound Heads, which required a large measure of operations, such as milling, shaping etc. carried out in the machine shop. Consequent to the discontinuation of these two products, the work in the Machine Shop had considerably came down, which led to laying off of the workmen, and, since the lay-off did not provide an effective solution, the workmen of the Machine Shop had to be ultimately retrenched from service. It was also pointed out by the first respondent that, in order not to cause hardship to the workmen, who were being displaced, they were offered alternative employment as Fitters in the Machine Shop itself, but, since the petitioner declined to accept the said offer, the first respondent was left* with no other course but to retrench him from service. The first respondent denied that the retrenchment was by way of victimization in order to give up the membership in Bharatiya Kamgar Sena or to subscribe to the membership in Engineering Workers Union. It was pointed out that the union, known as Bharatiya Kamgar Sena, had been operating in the industrial establishment of the first respondent for about 10 years or so and had arrived at three successive settlements with the first respondent, the last of which was dated 26th June, 1977. It was pointed out that, out of about 147 workmen in the establishment, about 132 had already accepted the benefits flowing from the settlement, and, while the first respondent was prepared to offer the said terms even to the non-members of Bharatiya Kamgar Sena, the petitioner and other members of the Engineering Workers Union had steadfastly refused to accept the said terms. It was denied that a false case of lay-off and retrenchment was made out or that the petitioner had been retrenched from service in order to victimize him.
5. The parties went to trial before the Industrial Tribunal on the aforesaid contentions and led both documentary and oral evidence. Upon appreciation of the evidence recorded by it, the Industrial Tribunal came to the finding that the termination of service of the petitioner by way of retrenchment was both legal and proper. It categorically rejected the contention as to victimization, and held that the retrenchment order in question was not on account of victimization of the petitioner for his legitimate trade union activities. It examined the evidence with regard to the quantum of work and decline thereof, and accepted the case of the first respondent that it was the decrease in work, consequent upon the discontinuation of P-35 Projectors and Sound Heads, which led to the initial lay-off and subsequent retrenchment of workmen in the Machine Shop, including the petitioner. A subsidiary contention raised by the petitioner that his retrenchment from service amounted to contravention of Section 9-A of the Act was also overruled by the Industrial Tribunal. In view of its clear findings of facts, the Tribunal rejected the reference and declined to grant any relief to the workman. It is this award, refusing to grant relief, which has been impugned in the present petition.
6. Mr. Bukhari contended that the Tribunal's finding on the issue of contravention of Section 9-A of the Act was erroneous. He strenuously urged that its finding arose on account of misconstruction of the provision of Section 9-A and the item of industrial matter enumerated in the Fourth Schedule of the Act. The contention was that, in the case of the first respondent at least, there was simultaneous abolition of the post along with retrenchment of three workmen of the Machine Shop, including the petitioner, and that the said action amounted to a change in the condition of service enumerated in item 11 of the Fourth Schedule of the Act, which required the giving of a notice, as contemplated by Section 9-A of the Act. Since it was not in dispute that no such notice under Section, 9-A had been given, the action of retrenchment must be held to be contrary to Section 9-A and must, therefore, be struck down. I am afraid that this contention is no longer res integra, in view of the Judgment of the Supreme Court in L. Robert D'Souza, v. Executive Engineer, Southern Railway 1982-I Lab LJ 330. The Supreme Court in this case, has clearly overruled the very contention raised by Mr. Bukhari and held that retrenchment of workmen by itself does not attract Section 9-A of the Act.
7. Mr. Bukhari then turned his fire towards the factual findings made by the Industrial Tribunal. He contended that, though the Tribunal has written a long award, the reasoning of which appears to be prima facie attractive, closer scrutiny would show that the retrenchment was effected in order to victimize the workmen. With reference to a document annexed to the petition at Exhibit "D", Mr. Bhukari contended that the said document showed that a number of jobs were given to outside parties and a number of such jobs pertained to P-35 Projectors and Sound Heads, which were the two products which were purported to have been discontinued by the first respondent-employer. I am afraid, this attempt has to be discouraged, because this Court is neither recording evidence, nor assessing evidence. In the first place, I do not know what this document at Exhibit "D" is. Though Mr. Bukhari emphatically contended that this document shows details of jobs given to outside parties, this is a matter of dispute and, consequently, of trial. This document ought to have been made the subject-matter of the trial, and the Tribunal ought to have been invited to give its finding with reference to this document. A reading of the Tribunal's award does not disclose any such attempt, and, therefore, I am unable to place any reliance on the document at Exhibit "D" to the petition. This purported to show the jobs given to outsiders. It is, doubtless, true that a contention was raised before the Tribunal that some work was given on contract basis. The first respondent countered it by pointing out that a number of jobs had been given on contract basis over a number of years and that was not a situation which developed newly at or just before the time of retrenchment. Upon scrutiny of the evidence led before it, the Tribunal has atcepted this explanation. Another contention raised was that there was contravention of the provisions of Section 25-F of the Act, inasmuch as the statutory compensation and dues required to be paid under Section 25-F of the Act had not been simultaneously paid to the retrenched workman. In my view, this contention has been rightly negatived by the Tribunal with reference to the documents on record, which clearly showed that there was a sufficient compliance with the provisions of Section 25-F of the Act. The first respondent had written a number of letters to the petitioner, offering him alternative employment as a Fitter, as there was dearth of milling work in the Machine Shop due to discontinuation of the P-35 Projectors and Sound Heads. It is not in dispute that the petitioner categorically refused to accept the alternative employment as a Fitter offered to him. In my view, therefore, the Tribunal was justified in its conclusion that the situation left the first respondent with no other alternative except to resort to retrenchment, as provided by law.
8. Mr. Bukhari tried to contend, with reference to the oral evidence on record, that a careful assessment of the oral evidence on record would disclose that the decline in the volume of work, assuming there was some decline, was not such as would have warranted the retrenchment of the workman. I am afraid that this Court is neither empowered, nor required, to appreciate or re-appreciate the evidence on record, while entertaining a petition under Article 227 of the Constitution of India. Even assuming that another view on the evidence is permissible, that would not justify interference with the findings of fact recorded by the Court of competent original jurisdiction, under Article 227 of the Constitution of India. In any event, as held by the Supreme Court in Parry & Co. Ltd. v. P.C. Pali, Judge of the Second Industrial Tribunal , the assessment of the effective strength of workmen required to meet the contingency of work is a matter which is best left to the employer, who is the most competent person to judge it. The Industrial Tribunal is neither qualified, nor competent, to Judge the same. It is permissible for a Tribunal to interfere with that business Judgment of the employer, when the Tribunal is satisfied that the assessment has been made mala fide or with an oblique motive to victimize the workmen. Unfortunately for the petitioner, the findings on all these issues are against him. Victimization is a serious charge, which has to be made with a sense of responsibility, and must be followed up with cogent material, which, when analysed dispassionately, will only lead to the conclusion that there was victimization. In the petitioner's case, the Tribunal has summarized the evidence on record, carefully sifted it, and in my view, rightly held that the retrenchment was the result of a bona fide business judgment. In the face of these findings, I find it difficult to accede to the contention that the Judgment of the first respondent-employer to retrench three workmen should be faulted. In my view, the award of the Tribunal is well balanced, carefully written, upon appreciation of both the oral and documentary evidence, and I see neither perversity, nor errors apparent, nor lack of jurisdiction, which would warrant interference by this Court, in exercise of its power under Article 227 of the Constitution of India.
9. The result is that the petition fails. Rule is discharged. However, in the circumstances of the case, there will be no order as to costs.