Bombay High Court
Pwd Sc, St And Obc Employees Council And ... vs State Of Maharashtra And Ors. on 16 July, 1993
Equivalent citations: (1994)IILLJ1192BOM
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT V.S. Sirpurkar, J.
1. This judgment shall govern Writ Petition Nos. 2039/91, 1415/91 and 2459/91. These three petitions have been filed at the instance of the workmen and/ or their Union challenging the common judgment passed by the Industrial Court dismissing Revision Nos. 97/90, 98/90 and 99/90 and confirming the order passed by the Labour Court by which order the Labour Court has dismissed the complaints filed by the workmen challenging the notice of retrenchment given to these workmen working with the three divisions of the Public Works Department.
2. Shortly stated, the facts are like this: The original petitioners are the Unions and the workmen. All these workmen were daily rated workmen on the establishment of Public Works Department of the State of Maharashtra. It is an admitted position that though they were daily rated workers, they were being paid monthly. Their seniority list was being maintained by the P.W.D. (Public Works Department) has three divisions viz. Division No. I, Division No. II and the Integrated Medical Unit. A policy decision was taken that the workers who were employed after April 1, 1982 and those who had not completed 5 years of service should be retrenched in view of the work not being available and the workmen having become surplus. This policy decision was probably arrived at because of the introduction of Zero Budget. It was, therefore, decided that such workers who had completed five years of service should be given permanency and such who had become surplus should be retrenched. It was decided that, these workers were to be retrenched strictly following their seniority and following the principle 'last come first go'. In all 336 workers came to be retrenched by giving notice. They consisted of 292 workers of Division No. I, 8 workers of Division No. II and 36 workers of Integrated Medical Unit. All those workers were admittedly working from or after April 1, 1982. All these workers came to be retrenched by giving notice. This action on the part of the respondents came to be challenged firstly under three complaints which were registered as ULP (Complaint) No. 170/87, ULP (Complaint) No. 920/89 and ULP (Complaint) No. 1151/88. It was inter alia contended in these complaints firstly that the complainant viz. Union, was a representative Union representing various workers who were the members of such Union. It was then contended that the concerned workers had completed 240 days in the last preceding year and as such were workmen within the meaning of provisions of Section 2(s) of the Industrial Disputes Act. It was further contended that such workmen were on the technical posts like carpenter, driver, plumbers, cleaners, oilman, helper, Muster Clerks etc. Their lists were attached with the complaints. It was then contended that the decision to terminate them by notice dated January 30, 1987 was an arbitrary decision and in fact was a colourable exercise of power as in fact work was available with the Government which was evident from the fact that the Government was giving work to the contractors. It was stated that there was non-compliance of the provisions of Section 25(F),(G) and (N) of the Industrial Disputes Act, as the said notices were not in fact served to number of workers. The salaries were not paid on the date when the notices were served. In a number of cases, the compensation was also not paid on the dates the notices were served and apart from that, there was also violation of principle of 'last come first go'. It was also contended that in fact there was breach of Section 25(N) as not one month notice but 3 months notice was required to be given and in the absence of such notice of three months, these retrenchments had become illegal and by effecting such retrenchments the employer had engaged into unfair labour practices as covered under Schedule IV, items I(a), (b), (d) and (f). It was further pointed that in fact' these workers were governed by Kalelkar Award and since Kalelkar Award had become out-dated, a notice of 42 demands was served upon the Government and the reconciliation proceedings were also pending before the Government. It was, therefore, contended that the termination of the workers was clearly against the provisions of Section 33(i) of the Industrial Disputes Act as during the pendency of the conciliation, the workers could not be terminated or retrenched. On the basis of these complaints, notices were issued and the State-respondents appeared and raised a plea that the complaints were not maintainable. The defence raised by the respondents was that they were not acting arbitrarily in any way nor were they acting in the colourable exercise of their powers. It was submitted in the written statement inter alia that retrenchment was legal and was effected after following all the norms of law applicable in that behalf. It was denied that there was no compliance of Sections 25(F), (G) and (N) of the Industrial Disputes Act. It was also denied that the said retrenchment attracted provisions of Section 33(i) of the Industrial Disputes Act. It was denied that it was necessary to give three months notice in pursuance of Section 25(N) of the Act. The charge that Section 25(F) was not complied with was also seriously disputed. It was contended that the Government had laid down certain criteria and guidelines for deciding that such workmen had become surplus and, therefore, needed to be retrenched. The allegation made in the complaint that there was non-compliance of Rule 81 of the Industrial Disputes (Bombay) Rules was also traversed. It was pointed out that because of the economic scarcity austerity measures were taken and making reassessment of the available work with the Department, the real need was properly evaluated and only those workers who had become surplus were being retrenched in pursuance of a definite policy that such workers who had not completed 5 years would only be taken up for retrenchment in keeping with their seniority. The parties went to the evidence on the basis of these pleadings in all the three cases. The Labour Court framed issues to the effect as to whether the employees had become surplus and whether there was no breach of the provisions of law while retrenching the said workers. The Labour Court practically on all issues found against the workers. It found that in fact the workers had become surplus. It also went on to hold that the action in retrenching the workers was not arbitrary. It also proceeded to hold that this was not deliberate action on the part of the employer with a view to deprive the workmen of their right to get permanency. It also held that though the conciliation proceedings were pending, it did not affect the legality of the termination. On the question of applicability of Section 25(N), it found that the same was not applicable as the provisions of Chapter VB were not applicable to the present establishment. On the question of Sections 25(E) and (G) as also on the question of Rule 81, the Labour Court found against the workmen. In the result, it dismissed the three complaints by two separate judgments. Both the judgments are almost identical.
2A. The matters thereafter reached the Industrial Court by way of revision which were registered as Revisions Nos. 97/90, 98/90 and 99/90. All these revisions were filed by the Union as well as the workmen. They were disposed of by the Industrial Court by a common order and all the three revisions came to be dismissed by the Industrial Court. This common order is the subject matter of the present petitions before this Court.
3. Shri Phadnis and Shri Kaptan appearing on behalf of the petitioners invited my attention to the order passed by the Industrial Court and the findings thereunder. The learned Counsel urged that in fact the Industrial Court has given a clear-
cut finding that Section 25(N) was applicable to the establishment, though such findings has been arrived at on the basis of the ruling of this Court in Writ Petition No, 1918/87 in Amraoti District B & C Kamgar Sanghatana v. State of Maharashtra, decided on October 9, 1988. It is the contention of the learned Counsel that the Industrial Court had thus concluded that the whole action was illegal as retrenchment itself was in breach of the mandatory provisions of Section 25(N), whereby not one months notice but 3 months notice was required to be given and admittedly such notices were not given. The learned Counsel further contends that on that issue itself the whole retrenchment was liable to be declared illegal and the revisions were liable to allowed but the learned Industrial Court went a step further and found on technical ground that the complaints as well as the revisions before the Industrial Court were not filed by proper person meaning thereby that the Union which filed these complaints and the revisions had in fact failed to prove that they were the representative of the workmen concerned and as such they had no right to prefer the complaints as well as the revisions. The learned Counsel, therefore, contends that the findings of the Industrial Court on this question is shocking in view of the fact that all the workmen who were sought to be represented by the Union have whole-heartedly supported the complaints and none has so far raised a voice that the concerned workmen were not the members of that Union or the said Union had no authority in law to represent the cause of such workmen. The learned Counsel further contends that if the finding of the Industrial Court on the maintainability of the complaints and the revisions at the instance of the Union is incorrect, then the necessary results must follow and in pursuance of the findings of the Industrial Court given on the question of Section 25(N), the complaints will have to be allowed and the order of the Labour Court as well as the Industrial Court will have to be set aside.
4. Shri Deshpande and Shri Dhote, learned Counsel on behalf of the respondents, however, point out that the finding of the Industrial Court on the question of non-compliance of Section 25(N) is wholly incorrect; particularly in view of the fact that the decision of the High Court on the basis of which such finding is returned has not become final and is pending a review and this court itself has stayed the effect and operation of the said judgment. Shri Deshpande further argued that in fact there is no material on record to show that the respondents can be termed as the Industrial establishment within the meaning of Section 25(L) of the Industrial Disputes Act. At last the counsel further contends that the Courts below and more particularly the Industrial Court has not considered the question on the basis of the facts laid down before the trial court showing non-application of mind.
5. The learned counsel for the petitioner also points out that the judgment of the Industrial Court is slip-shod and the whole order is vitiated because of the patent non-application of mind on the part of the Industrial Court and the non-consideration of material piece of evidence on record. The counsel points out further that though the issues regarding the non-compliance of Sections 25(F), (G) and (N) and Rule 81 of the Industrial Disputes Act as also Section 33-A of the Act also, the Industrial Court has not bothered even to mention, leave apart consider, these pleas. The counsel contends that the Industrial Court has taken a comfortable short-cut by firstly handing out a finding in favour of the workmen on the question of Section 25(N) and then dismissing the complaints on the ground that the proper representative had not filed the same. The counsel, therefore, seriously assailed the orders of the Industrial Court on the ground that the orders suffer from non-application of mind and the so-called findings handed out by the Industrial Court have no basis whatsoever. The criticism is really justified. Firstly, the Industrial Court has paraphrased the findings of the Labour Court along with the pleas raised by the rival parties. The Industrial Court has spent first six paragraphs only for narration of facts. Thereafter in para 7 instead of considering the issues raised and canvassed before it, has handed out a finding that since in the decision of this Court in Writ Petition No. 1918/87, the applicability of Section 25(N) is finalized, Section 25(L) would apply to the respondents and the respondents would be taken to be the industrial establishment within the meaning of Section . The Industrial Court further went on to hold that admittedly there is no compliance of Section 25(N) in the sense that there is no notice of three months issued to any of the workmen and, therefore, on this ground alone the complaints as also the revisions were liable to be allowed. The Court, however, thereafter has observed in the following terms:
"I would have allowed the complainants' Revision had the Revisions and complaints filed by the complainant are maintainable. Since it was pointed out to me during the course of arguments that the complaints and also the Revisions are not maintainable, I am not inclined to allow the Revisions as I am also satisfied that the complaints and Revisions are not filed by competent persons."
Before making these observations a stray observation has been made by the Industrial Court to the effect that from the evidence on record, the Court was satisfied that the respondents did comply with the provisions of Sections 25(F) and (G) of the Industrial Disputes Act. Shri Phadnis very seriously assailed this part of the order. His contention is that firstly the Court had erred in holding that the complaints as well as revisions were most maintainable. His further contention is that this finding of the Court regarding the non-maintainability has no basis whatsoever in the evidence. He further contends that the finding regarding Sections 25(F) and (G) also does not have any basis as the Revisional Court has not bothered to discuss the same at all. Shri Deshpande contends that in fact while supporting the order of the Revisional Court, he could also assail the finding regarding Section 25(N) and show that the finding regarding non-compliance of Section 25(N) of Industrial Disputes Act is not correct. Let us first take the question regarding the applicability of Section 25(N). In fact, the learned trial Court has referred to the judgment in, Writ Petition No. 1918/87 dated 9th Septemeber 1988. The contention of Shri Deshpande is that the Revisional Court has not examined the provision of Sections 25(L) and (N) in detail for the Revisional Court has given a factual finding that considering the definition of the term, "industrial establishment", the respondents herein come with in that definition. According to him, before corning to the conclusion that there is a noncompliance of Section 25(N), it was essential for the Labour Court first to hold that respondents are an industrial establishment within the meaning of Section 25(L) on the basis of the evidence as laid before the Labour Court. Indeed, the sole basis for the finding appears to be the judgment of the Division Bench of this Court. It will not be necessary for me to comment upon the judgment of the Division Bench. Firstly the judgment has not become final because of the pendency of review petition and the interim orders thereon. However, one thing is certain that the learned Industrial Court has not bothered even to discuss the judgment or to appreciate the same. In fact, he had gone by the last operative part of the judgment without bothering to consider the factual aspect of that judgment. He has not shown or discussed as to whether the judgment is applicable to the facts as establishes by the evidence in the present case. The judgment of Division Bench in fact proceeds on factual presumption (without mentioning so) that the employer therein was "Industrial establishment". Such is not the position here. For application of Section 25(N) the employer must be not only "industry" but further has to be an "Industrial establishment". The two terms are wholly distinct and have been differently defined in Industrial Disputes Act. There may be cases where an employer may be an industry but not an "Industrial establishment". The term "Industrial establishment" is defined as under:-
"25(L) (a) "Industrial establishment" means (i) a factory as defined in Clause (m) of Section 2 of the Factories Act, 1948, (ii) a mine as defined in Clause (j) of Sub-section (2) of the Mines Act, 1952; or (iii) a plantation as defined in Clause (f) of Section 2 of the Plantation Labour Act, 1951; (b) not withstanding anything contained in Subclause (ii) of Clause (a) of Section 2(i) in relation to any company in which not less than fifty-one percent of the paid-up share capital is held by the Central Govt., or (ii) in relation to any corporation (not being a corporation referred to in Sub-clause (i) of Clause (a) of Section 2) established by or under any law made by Parliament; the Central Govt. shall be appropriate Government."
Now unless the employer is a "factory" or "mine" or "plantation" as defined in Clauses (i), (ii) and (iii) respectively or unless the employer is covered under Clause 'B' the status of the "Industrial establishment" cannot be bestowed upon such employer. Indeed factual evidence would be required for deciding whether the employer is covered in the definition of factory, mine or plantation and only after such finding is arrived at on the basis of evidence, that the further enquiry can be made regarding the compliance of Section 25(N). On this aspect, the facts in the Division Bench decision are clearly distinguishable. Moreover, the question, whether firstly the employer therein was an "industrial establishment" or not was never gone into by the Division Bench probably because the same was never raised. The Industrial Court has not made any effort to search for such evidence before holding that the employer in this case was "Industrial establishment" and further there is a non-compliance of Section 25(N) because of a short notice or absence of prior permission of the appropriate Govt. is wanting in the revisional order. In arriving at a finding that there is a non-compliance of Section 25(N), the Learned Court should have first seen the evidence, appreciated the same and then should have found out and decided as to whether firstly respondents do come within the definition of "Industrial establishment" as per Section 25(L) of the Industrial Disputes Act. The enquiry should have been made qua each division as to whether the whole division could be termed to be the "Industrial establishment" particularly each division should be termed as the "Industrial establishment" within the meaning of the Act. It is only after such finding to the effect that the respondents and more particularly as the "Industrial establishment", then alone the Court could have further gone into the question of applicability or otherwise breach of Section 25(N), the language of which is clear. Nothing of the sort has been done by the Industrial Court. Shri Phadnis tried to argue that the respondents would not be able to assail the finding of the Industrial Court particularly because the respondents have not challenged this finding by a separate petition. This, of course, is not correct for even to support an order, the finding recorded against can be assailed. Shri Deshpande is, therefore, right in contending that the Revisional Court has not in any manner considered as to whether the respondents are the industrial establishment and in fact there is a breach and non-compliance of Section 25(N). The whole order is nothing but a plain repetition of the observations made by this Court in Writ Petition No. 1918/87 without even a semblance of efforts on the part of the Court to show that the facts in the present proceedings and the law laid down in that decision can really be made applicable to the facts established by the evidence in the present proceedings. Such finding cannot be allowed to be sustained and the matter will have to be sent to the Revisional Court for reconsideration of this issue.
6. As regards the finding on the non maintainability, the situation is more or less the same. The Industrial Court could not have gone into this technical aspect merely on the basis of some surmise here and some inferences there without adverting to the evidence in this respect. I have seen the evidence myself to see whether in fact the representative Union had the necessary authority to represent the cause of the workers. There has indeed been no effort on the part of the Industrial Court while recording a finding that the Union had no such power. The Industrial Court is, therefore, directed to examine this question also and more particularly in the light of the provisions of Sections 20, 21, 22 of the Unfair Labour Practices Act. Some submissions were tried to be made in respect of other provisions of the Act. The Industrial Court shall take into consideration all the necessary provisions and will then examine as to whether the Union has necessary power to represent the cause of the workers.
7. Shri Phadnis has invited our attention to the fact that there is not even a whisper regarding the contention of the workmen that there has been a non-compliance with Sections 25(F), (G) and Rule 81 of the Industrial Disputes Act, as also Section 33(1)(a) of the Industrial Disputes Act. I have perused the order carefully. Shri Deshpande as well as Shri Dhote appearing on behalf of the Government have made feeble efforts to show that the evidence was considered by the Industrial Court while making a sweeping observation at the end of para 7 to the effect that the Court was satisfied that the respondents had complied with the provisions of Sections 25(F) and (G). Indeed there appears to be no effort worth the name on the part of the Industrial Court to consider the points regarding the compliance of Sections 25(F) and (G), Rule 81 and Section 33(1)(a) of the Industrial Disputes Act. There is no reference whatsover to the evidence which was led by either side on this question. In fact, voluminous evidence has come on record, according to Mr. Phadnis, in support of the non-compliance of Section 25(F). All the factual aspects were, therefore, completely ignored by the Industrial Court while making a sweeping observation that the respondents had complied with these provisions. For that matter, the Industrial Court has not even bothered to mention the objection raised on behalf of the workmen regarding the noncompliance of Rule 81 and Section 33(1)(a). Indeed it was the duty of the Revisional Court to firstly discuss the whole evidence and then to arrive at a factual finding regarding these important questions raised by the Union. Ordinarily, this Court would not have remanded the matter considering the fact that the workers are without job for such a long period. However, the order of the Industrial Court is completely silent on these important aspects. Therefore, considering the width of the controversy, the importance of question involved and also considering the number of persons who are to be affected by this decision, there is no other go left but to remand the matter for a fresh consideration by the Revision Court on all these aspects.
8. Shri Phadnis also points out that the number of workers have already been reinstated by the respondents under the arious orders of the Courts. In the present proceedings, we are not concerned with that. However, a direction is hereby given to the respondents to accommodate such workers as could be accommodated strictly in keeping with the seniority of such workers if any vacancy arises during the pendency of the present proceedings/Only such workers who are presently concerned in these three matters shall be accommodated first. With these directions, the following order will have to be passed:
The writ petitions are partly allowed. The common judgment of the Industrial Court dated May 2, 1991 is set aside and the Industrial Court is directed to reconsider all the issues involved on merits on the basis of the evidence in the light of the observations made earlier in this judgment. The Industrial Court is directed to dispose of the revisions under any ircumstances, within six weeks from today.