Bombay High Court
Assocn. Of Engineering Workers vs Air Workers (India) Engineering Pvt. ... on 16 June, 1993
Equivalent citations: (1994)ILLJ1136BOM
Author: S.H. Kapadia
Bench: S.H. Kapadia
JUDGMENT S.H. Kapadia, J.
1. By this writ petition the union seeks to challenge Award of the Industrial Tribunal in the matter of reinstatement of 21 retrenched workers dated November 21, 1988. By the said Award, the Reference came to be rejected.
2. The brief facts giving rise to this petition are as follows:
(a) Respondent No. 1-Company is a Partnership Firm, carrying on business of servicing and repairing air-crafts. It also carried on business of air supply drop, Infra and scanning, aerial photography, aerial spraying etc.
(b) During the period 1971 to 1978, 160 workers were engaged by the Company and during that period, the Company was servicing air-crafts belonging to private sector Companies viz. Birla & JK Group, Border Security Force, N.S.R.A., D.G.CA. and I.G.R.O., a Government Organisation. In addition, the Company was also carrying on airlifting activity, regarding perishable cargo to the Gulf Countries.
(c) In August, 1979, however, the 1st respondent-Company lost Border Security Force contract, and D.C.-IV air-craft operations contract for lifting perishable cargo and in May, 1981 it lost flying operations contract given by IGRO. The workload was reduced in 1980-81 by more than 50%. The pilots were also retrenched and the site at which the work was carried out was reduced from two sheds to one shed. In 1982, one of the hangars collapsed. The Company had a Dacota Plane before 1979 which also came to be returned to the Government In 1987, contract of the Company with Mahindra & Mahindra for maintenance of their aeroplanes was also terminated and so also contracts with Birlas and Agro-Air-craft Companies were also terminated.
(d) On June 4, 1981, after reciting the above facts, notice of retrenchment was given by the Company, According to the Petitioner-Union, the said notice was displayed only on June 22, 1981. According to the Union, a list of persons retrenched was not enclosed although notice dated June 4, 1981 says so and according to the Union, the said retrenchment was not on the basis of 'last come first go'.
(e) On June 12, 1981, the Petitioner-Union informed the Management that majority of the workmen had enrolled themselves as members of the Petitioner-Union.
(f) In view of the notice dated June 4, 1981, disputes arose which resulted in Reference (IT) No. 20 of 1982.
(g) In the said Reference, a statement of claim was filed by the Union on April 23, 1982 by which, inter alia, it was contended that retrenchment came to be effected as majority of the workmen joined the Petitioner-Union; that although the notice of retrenchment is dated June 4, 1981, it was displayed on June 22, 1981 which clearly indicated that the retrenchment came to be imposed after the notice was given by the Union regarding the formation of the Union in the Company on June 12, 1981. It was also contended that the retrenchment effected by the Company from July 1981 was contrary to Section 25(F) and (G) of the Industrial Disputes Act. It was also contended that no notice of change was given under Section 9-A of the Industrial Disputes Act and in the circumstances, the said retrenchment was bad in law.
(h) By a written statement filed by the Management, the Company contended that in view of financial deteriorating position, the above retrenchment came to be imposed; that notice dated June 4, 1981 was displayed on that day and it enclosed list of persons to be retrenched; that the seniority list was in accordance with Section 25(G) read with the Rule 81 and, therefore, the retrenchment was validly imposed; that compensation has been paid or offered to the workman and there is due compliance of Section 25(F) of the Industrial Disputes Act It was also submitted that out of 21 employees, 14 to 15 workers had settled their matter and the dispute was, therefore, restricted to about 6 workers. In the circumstances, it was contended by the Management that Reference deserved to be rejected.
(i) After recording of evidence, the impugned Award came to be passed by the Industrial Tribunal in Reference (IT) No. 20 of 1982. By the impugned Award, it was held, inter alia, that the Company had complied with the provisions of Section 25(F) and (G) of the Industrial Disputes Act; that there was no evidence to show that the seniority list was not displayed, as alleged by the workmen, that there is no evidence to show that juniors were retained and seniors were retrenched; that the notice dated June 4, 1981 was issued on June 4, itself and the retrenchment was correctly implemented from July 1, 1981; that there was nothing to indicate that notice was displayed on June 22, 1981; that the said retrenchment was bona fide and it had nothing to do with the formation of the Union. In the circumstances, by the impugned Award, the Tribunal came to the conclusion that the Reference was liable to be dismissed.
(j) Being aggrieved by the said Award, the present writ petition has been filed.
3. Mr. Ganguli, the learned Counsel appearing for the union, stated that notice of retrenchment was issued only after the union informed the Company regarding majority of the workers' decision to join the union and the notice of retrenchment dated June 4, 1981 was displayed only on June 22, 1981. He further submitted that the reasons given in the notice of retrenchment indicated that the reasons were mala fide for the reason that retrenchment came to be effected only after union was formed in the Company. It was further contended that the reasons given in the notice of retrenchment were also not cogent reasons because financial difficulties had arisen much prior to June 4, 1981. Mr. Ganguli, therefore, submitted that the Industrial Tribunal had erred in rejecting the Reference. I do not find any merit in the said contention. The evidence on record shows that during the period of 1979 to 1981, various contracts were terminated by the Birla Group, Mahindra & Mahindra and the Government Companies. The nature of business of the Respondent No. 1 was to carry out service repairs to the private sector air-crafts. The evidence on record indicates that even contracts regarding lifting of perishable cargo came to be terminated during the said period and in the circumstances, the reasons given in the impugned Award starting that retrenchment was bona fide is a correct finding of fact which cannot be interfered with under Article 226 of the Constitution. There is no merit in the connection that retrenchment came to be effected only after notice of formation of the union in the Company was given. The evidence on record indicates that during the period of 1979 to 1981, on account of termination of various contracts, the financial position of the Company had also become precarious. The evidence on record also indicates that even the working sites were reduced from two sheds to one shed. The evidence on record also shows return of aircraft/helicopters given by the Government Agencies for lifting the perishable cargo. In the circumstances, there is no reason to believe that the retrenchment was for mala fide reasons as alleged by the union.
4. Mr. Ganguli next contended that there is non-compliance of Sections 25(F) and (G) of the Industrial Disputes Act inasmuch as no compensation had been paid to the retrenched workmen in accordance with law. He further submitted that the rule of Mast come first go' as mentioned in Section 25-(G) of the Act has not been complied with and, therefore, retrenchment was bad in law. There is no merit in the said contention. The findings recorded by the Industrial Tribunal shows that no evidence was led by the workmen to show that the rule of last come first go has not been followed. In fact, there is nothing to indicate as to who were the persons who were junior to 21 workmen retrenched who were retained vis-a-vis the workmen who were juniors to the said 21 retrenched workmen. The Industrial Tribunal, therefore, came to the conclusion that in the absence of any evidence to show that Section 25(G) was not followed it cannot be held that the seniority list displayed was not correct. The Industrial Court rules that on evidence it is clear that notice of retrenchment was displayed and seniority list was also displayed. There is no evidence from the union to show that the seniority list was not properly prepared and listed on the notice board. With this finding of fact based on evidence on record, no interference is called for under Article 226 of the Constitution. The Industrial Tribunal has also found that the evidence on record led on behalf of the Management indicated due compliance of Section 25(F) of the Industrial Disputes Act. I do not find any error in the finning of the Tribunal. There is no apparent error on the fact of the record and in the circumstances, no interference is called for under Article 226 of the Constitution.
5. Coming to the last contention of the learned counsel for the petitioner, it was contended that under Section 9-A of the Industrial Disputes Act read with Items 10 and 11 of the Schedule IV to the Industrial Disputes Act, no notice of change, as contemplated by the said Section, was given and in the circumstances, the retrenchment was bad in law. I do not find any merit in the said contention. In the present case, there is no plea taken up in the statement of claim filed by the union regarding non-compliance of Section 9-A of the Industrial Disputes Act. Secondly Section 9-A has no application to the facts of the present case. Section 9-A does not apply to the cases of retrenchment. Section 9-A applies to change in service conditions of existing workmen. By way of illustration, if on account of exigency of work the existing workers are required to put in more work on account of increased workload, then certainly Section 9-A would apply, but that is not the case in the matter of retrenchment. In the circumstances the Industrial Tribunal was right in rejecting the said contention advanced on behalf of the union.
6. One more fact may be mentioned that the majority of workers have settled their claim with the Company. Out of 21 workers, 14 to 15 workers have accepted their dues as and by way of settlement Mr. Ramaswamy states that even the remaining 6 workers have been offered their dues by way of settlement and those who have not taken the amount offered by the Company, can even come to the company as the offer made by the Company stands notwithstanding the dismissal of the writ petition.
7. In view of the above circumstances, there is no merit in the writ petition. The writ petition fails and is dismissed with no order as to costs.