Bombay High Court
Babu Bhikaji Shinde vs Maharashtra State Handlooms ... on 7 August, 2007
Equivalent citations: (2007)IIILLJ978BOM
Author: R.M. Borde
Bench: R.M. Borde
JUDGMENT R.M. Borde, J.
1. Petitioner, in this petition, is challenging order dated February 11, 1991 ordering petitioner's retrenchment from services of respondent-Corporation with effect from February 15, 1991. By the impugned order, petitioner was offered one month's wages amounting to Rs. 1180/- in lieu of notice and further an amount of Rs. 5310/- towards full and final settlement of the compensation for retrenchment.
2. Petitioner contends that initially he was appointed by the respondent-Corporation as a 'Mazdoor' at Wholesale Depot Aurangabad. By a subsequent order, issued on February 12, 1982, ex post facto sanction was accorded to the appointment of the petitioner by the Corporation. Petitioner was directed to appear before the Establishment Sub Committee of the Corporation on June 28, 1984 for the purpose of interview and after holding interview of the petitioner, he was appointedas a labourer in the pay scale of Rs. 150-225 and was posted at Chiplun. The initial appointment of the petitioner was on probation and after satisfactory completion of the probationary period, he was issued a certificate to that effect on December 19, 1986. It is further contention of the petitioner that the designation of the post of petitioner was changed as Shop Assistant in the same pay scale by a communication dated August 20, 1987. In the year 1991, along with other employees, petitioner's services came to be terminated on account of retrenchment, which order is impugned in this petition.
3. Petitioner challenges the order of termination mainly on the ground that he has been singled out for the purpose of being identified as surplus and for ordering his retrenchment from services of Respondent Corporation. Petitioner also contends that the procedure prescribed by law has not been adopted while directing retrenchment of services of the petitioner. Petitioner further contends that his services can not be brought to an end by issuing one month's notice, however, in accordance with Rule 28 of the Maharashtra State Handlooms Corporation Ltd., Recruitment, Appointment, etc. Rules, 1977, minimum three months' notice or payment in lieu thereof is an essential prerequisite. Petitioner further contends that he is placed in junior management cadre in view of scale of pay which he was drawing at relevant time and as such his services cannot be brought to an end. unless a notice of minimum period of three 5 months' is issued in view of the provisions of relevant Rules.
4. Another ground of attack, which has been raised by the petitioner, is that the procedure, as laid down under Section 25-N of the Industrial Disputes Act, 1947 (for short 'Act of 1947') has not been followed, inasmuch as, notice in prescribed manner has not been served by the employer and prior permission of the appropriate Government or such authority, as specified by the Government in Official Gazette, is not obtained.
5. Petitioner further contends that while admitting the petition, his services are protected by virtue of interim orders passed by this Court and as such considering the long time gap between admission of the matter and pendency thereof, petitioner's services are required to be protected and the order of retrenchment is required to be quashed.
6. Respondent-Corporation has controverted contentions raised by the petitioner by filing an affidavit-in-reply and also an additional affidavit. Respondent-Corporation has raised a preliminary objection the effect that petitioner raises disputed questions of fact which cannot be dealt with in this petition and an alternate remedy, which has been provided in the statute, is required to be availed. It is contended by the Corporation that the employees, who were similarly placed, have approached the Labour Court by filing Complaints and after decision by the Labour Court, Corporation had preferred Revision Applications, which were allowed partly and the matters are carried further in writ petitions, which are pending before Nagpur Bench of this Court. It is contended that there are about 38 petitions, wherein similar questions are raised, filed either by employees or the employer, which are pending. It is contended that the petitioner has not made out any special case for entertainment of his petition without availing efficacious alternate remedy.
7. Respondent Corporation controverts allegation in respect of non observance of the procedure laid down under statute for ordering retrenchment of an employee. It is contended that there are no pleadings set out in the petition as regards non compliance of provisions of Section 25-G of the Act of 1947. It is further contended by the Respondent that in the instant case, provisions of Section 25-F are attracted and the case of the petitioner is not covered by provisions of Section 25-N. As mandated by Section 25-F, petitioner is offered one month's wages in lieu of notice, which is a sufficient compliance. It is further contended that in view of definition provided in Section 2(ka)(a) of the Act of 1947, the establishment, wherein petitioner is employed, shall be deemed to be a separate industrial establishment and the said unit does not employ more than 100 workmen on an average daily working day. It is further contended that in the instant case, provisions of Chapter V-B of the Act of 1947 are not attracted. It is further contention of the Respondent-Corporation that the establishment is not an industrial establishment within the meaning of Section 25-L of the Act. It is further contended that as the provisions of Section 25-N are not attracted, there is no warrant to issue a prior notice of three months or to offer; wages in lieu of notice.
8. The Respondent has drawn our attention to Exhibit R-13 which provides a list of posts in the Handloom Corporation which are included in the Management and Non Management Cadres. So far as the post held by the petitioner, being that of shop Assistant carrying pay scale or Rs. 750-870 (revised pay scale), the same is considered as non-management cadre post. It is contended that in view of applicability of extending benefits, as provided by 4th Pay Commission to the employees, the pay structure of employees was required to be revised and there occurred upward transition in the pay scale, which is given effect retrospectively from January 1, 1986. Petitioner, therefore, cannot contend that on the basis of pay scale applicable to his post, he is deemed to be included in management cadre. Respondent-Corporation further contends that the contentions raised by the petitioner and controverted by the Respondent give rise to, disputed questions of fact, which are required to be dealt with by an appropriate forum created under the relevant Labour Legislation and as such, the writ petition is not maintainable.
9. We have heard arguments advanced by; Shri D.P. Bakshi, learned Counsel for the petitioner and Shri S.V. Dankh, learned Counsel appearing for Respondent-Corporation.
10. That so far as argument advanced by the petitioner that proper procedure has not been followed while directing retrenchment of the petitioner, the same is not supported by pleadings in the petition. Petitioner has not specifically pointed out as to what are the violations in issuing the retrenchment order, which amounts to non compliance of revisions of Section 25-G of the Industrial disputes Act. It would be evident, on perusal of the record, that the Corporation has arrived at the conclusion that there are 160 surplus employees who are required to be retrenched. The conclusion has been reached by the Corporation on the basis of report of expert consultant appointed by the Corporation for the said purpose. Along with petitioner about 27 other employees were retrenched and none of the employees, who are junior to the petitioner, are retained in employment. It was brought to our notice that employees at Sr. Nos. 101 to 136 enlisted in the list at page 85 of the compilation are retrenched. There does not appear any force in the argument advanced by the learned Counsel for the petitioner that junior employees to the petitioner are retained. There does not appear question of giving discriminatory treatment in the matter of employment.
11. That so far as argument advanced by the petitioner that petitioner is required to be considered as an employee from amongst junior management cadre, the same is not worthy to be accepted. Petitioner is holding the post which carries nay scale, at the relevant time, as Rs. : 650-740. Petitioner contends that as per Rule 9 of the Recruitment Rules framed by the Corporation, posts carrying scale above Rs. 350 and less than Rs. 740 are considered as junior management posts. However, it is required to, be considered that there is revision of pay scale in view of extending benefits of 4th Pay Commission whereby there is upward revision in the pay scale. What is required to be considered is whether the post falls within the bracket of junior management cadre. On perusal of the list of posts, annexed with xhibit-R-13 at page 171, it is evident that the petitioner is placed at Sr. No. 7D and the pay scale prescribed is Rs. 750-870, which is lowest in the cadre of employees. The pay scales prescribed for employees falling within the bracket of junior management cadre are above Rs. 1400 and up to Rs. 3200. Therefore, the argument advanced by the petitioner, on the basis of his categorisation in junior management cadre, is prima facie not acceptable and the petitioner cannot be termed s as an employee belonging to junior management cadre.
12. That so far as the question of applicability of provisions of either Section 25-F or 25-N is concerned, the said question is also a mixed question of fact and law which requires certain amount of investigation. According to the learned Counsel for respondent-Corporation, each unit of the Corporation is required to be considered as a separate unit within the meaning of provisions of Section 2(ka)(a) of the Act of 1947. Whether this contention can be accepted or not is also a matter to be dealt with in an appropriate trial.
13. Respondent-Corporation has also 2 raised question of applicability of Chapter V-B of the Act of 1947. The respondent has canvassed that in view of applicability of provisions of Section 25-F, the act of the Corporation of offering wages in lieu of one month's notice is a sufficient compliance, is also a factor required to be dealt with by the appropriate forum. Although, in preceding paragraphs, we have considered the issue raised by the petitioner in respect of his inclusion in junior management cadre, the observations, as 3 stated earlier, are of prima facie nature, which can only be dealt with in an appropriate trial. So also, the question regarding compliance of provisions of Section 25-G of the Act, is also a mixed question of fact and law, which cannot be effectively gone into by this Court in exercise of powers under Article 226 of the Constitution.
14. The learned Counsel for Respondent Corporation has drawn our attention to judgment in Writ Petition No. 1806/1992 which 4 was filed by Maharashtra Rajya Hatmag Mahamandal Karmchari Va Vinkar Union before Nagpur Bench of this Court, challenging similar action of retrenchment of services of employees. It was permitted to be withdrawn so as to avail remedy of challenging the order before an appropriate forum. The respondent has also placed on record copies or orders passed in Writ Petitions No. 1446/1996, 2981/2001, 2209/2001 and 1103/2002. Said petitions are admitted and are said to be pending 5 before the Nagpur Bench of this Court.
15. The respondent has also placed on record copy of the judgment in Revision LJLP No. 344/1999 and in batch of complaints in Revision ULP Nos. 199 to 212/1998 decided by the Industrial Court at Nagpur. Revisions were filed by the Corporation challenging orders passed by the Labour Court. The orders under challenge before the Labour Court were of the similar nature as in the instant petition. The issues canvassed in this petition were also 1 considered in detail by the Industrial Court and the Industrial Court was pleased to direct enhancement in the amount of retrenchment compensation while maintaining the orders 06 retrenchment issued by the Corporation.
16. The counsel for the Respondent has also made a statement that there are about 38 petitions pending before the Nagpur Bench and few matters, raising similar challenge, before this Bench. It was also pointed out that some matters of similar nature are also pending at various Labour Courts. In this view of the matter, it is contended that it cannot be said that the petitioner has made out any special case for entertaining the petition without availing alternate remedy before an appropriate forum.
17. Reliance is placed on a reported judgment in the case of Uttaranchal Forest Development Corporation and Anr. v. Jabar Singh and Ors. , wherein it has been laid down that:
In the instant case, the workmen have not made out any exceptional circumstances to knock the door of the High Court straightway without availing the effective alternative remedy available under the Industrial Disputes Act. But the dispute relates to enforcement of a right or obligation under the statute and a specific remedy is, therefore, provided under the statute. The High Court should not deviate from the general view and interfere under Article 226 of the Constitution except when a very strong case is made out for making a departure. There are several decisions to the same effect. The respondents have not made out any strong case for making a departure. Accordingly, the conclusion is inevitable that the High Court was not justified in entertaining the writ petition.
We are, therefore, of the opinion that the writ petitioners (the respondents herein) who have not invoked the jurisdiction of the Tribunal are not entitled to any relief of reinstatement, back wages and continuity of service in view of our finding that the appellant Corporation is an industrial establishment and that provisions of Section 25-N of the Industrial Disputes Act are attracted.
18. Further reliance is placed on a judgment in the case of U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. , wherein it has been observed at p. 259 of LLJ:
16. In a catena of decisions it has been held that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out.
19. Learned Counsel for the petitioner has invited our attention to a reported judgment in' the case of Hanumansingh s/o Laxmansingh Thakur v. Municipal Council, Malkapur and Ors. 1989 I CLR 696 (Bom) and more particularly to the observations made in para 15 of the judgment, which reads:
It is true that normally the High Court does not in its discretion entertain a writ petition under Article 226 of the Constitution where there exists an adequate alternative remedy., The question, therefore, has to be decided in the facts of each case in regard to the exercise of the discretion by the High Court under Article 226 on the question whether parties should be relegated to their statutory remedies or whether the High Court should; entertain the writ petition and decide the same.
20. In view of the reasons set out above, we are of the considered opinion that the instant petition raises disputed questions of fact. The question, whether the procedure, as mandated by Section 25-G of the Act of 1947, has been followed before issuing order of retrenchment, is a question to be dealt with on appreciation of evidence which can be led by the parties to prove the point. So also, the question regarding applicability of provisions of either Section 25-N or Section 25-F and so also whether the establishment at Aurangabad, where the petitioner was employed, can be considered as an independent unit within the meaning of Section 2(ka)(a) of the Act of 1947, is a question to be dealt with in a trial before the appropriate forum. The argument canvassed by the petitioner, whether an employee can be considered as falling within the definition of junior management cadre, which fact has been controverted by the Respondent-Corporation, is also a matter worthy to be considered on appreciation of evidence and on appreciation of rival contentions to be raised in an appropriate trial. We are of the opinion that the petitioner has not made out any special case for entertainment of this writ petition without availing an alternate efficacious remedy provided under relevant industrial law.
21. In view of the observations made by the Supreme Court in above cited judgments, we are of the opinion that the petitioner is required to be relegated to an appropriate alternate forum. In view of the reasons set out above; we do not find it appropriate to entertain .the dispute raised by the petitioner in this petition in exercise of our powers under Article 226 of the Constitution of India. As such, petition is required to be dismissed.
22. It is apparent from record that the, petition was presented in the year 1991 and 'while admitting the petition, petitioner's services were protected by virtue of interim orders passed by this Court on April 3,1991 and the petitioner is in employment of Respondent-Corporation since then. At this stage, while we 5 are relegating the petitioner to an alternate forum for availing statutory remedy for challenging the impugned order, we deem it appropriate to continue the interim order, passed by this Court on April 3, 1991, for a period of two months so as to facilitate the petitioner to approach appropriate alternate forum. We also direct that in the event petitioner files a complaint/dispute before the alternate forum, the complaint/dispute shall not be dismissed on the ground of limitation. In this view of the matter, Petition stands dismissed. Rule discharged. No costs.