Indian Kanoon - Search engine for Indian Law

6. On appreciation of facts, points of dispute, evidence on record, issues raised and decisions relied upon by both the parties, the Industrial Court held by answering the contentious issue no. 3 that the appellant-Company has committed an unfair labour practice by committing breach of Rule 81 of the Industrial Disputes (Bombay) Rules, 1957, (for short ‘the Bombay Rules’) by not displaying the seniority list of the workmen of the concerned department/unit of the appellant-Company on the notice board prior to the date of issuance of retrenchment notice to the concerned 98 workmen as contemplated by the MRTU & PULP Act, 1971 and the Bombay Rules. It was further held that the appellant-Company had committed an unfair labour practice by committing breach of Section 25G of the I.D. Act read with Rule 81 of the Bombay Rules by not following the principle of ‘last come first go’. Therefore, the Industrial Court held that breach of statutory rules and provisions of the I.D. Act and the Bombay Rules amounted to unfair labour practices as contemplated by item No.9 of the Schedule IV of the MRTU & PULP Act. The breach of the mandatory provisions of Section 25G of the I.D. Act read with Rule 81 of the Bombay Rules was held to have been committed by the appellant-Company. Thus, the Industrial Court answered the points of dispute and relevant contentious issues framed by it in favour of the concerned workmen and set aside the notice of retrenchment served upon them. The Industrial Court held that the rest of the unfair labour practices alleged in the complaint were not proved. The Industrial Court passed an interim order directing the appellant-Company to cease and desist from enjoining the said unfair labour practice and continue the employment of retrenched workmen in service and pay them full wages every month. The appellant-Company was further directed by the Industrial Court after adjudicating the industrial dispute between the parties to pay arrears of all such wages to the retrenched workmen from the date of alleged retrenchment till the date of the said award and also directed the appellant-Company to pay them future wages regularly from the date they are actually allowed or continued to work as per the award of the Industrial Court.

10. With respect to the violation of the principle of ‘last come first go’ under Section 25G of the I.D. Act read with Rule 81 of the Bombay Rules as contended by the respondent-Union on behalf of the concerned workmen that no seniority list of the category wise workmen was put up on the notice board of the appellant-Company in accordance with Section 25G of the I.D. Act read with Rule 81 of the Bombay Rules i.e. ‘last come first go’ and that the same was not done within 7 days of the proposed retrenchment notice, the said contention of the workmen is rebutted by the learned senior counsel for the appellant-Company saying that it is an admitted fact that at the very least, the workers had received the seniority list several days prior to 04.08.1992. They were thus well aware of their inter-se-seniority list displayed before the actual date of closure/retrenchment, whether it was 7 days in advance or not is not relevant for the purpose of finding out whether the action of the appellant-Company is legal and valid or not. Therefore, the concurrent finding of fact recorded by the High Court in the impugned judgment accepting the case of the respondent-Union is not tenable in law and prayed to set aside the same.

(c) and Section 25G of the I.D. Act read with Rule 81 of the Bombay Rules. The contention of the learned senior counsel for the appellant-Company that non-compliance of Section 25FFA (1) in not serving the notice atleast 60 days before the intended date of closure on the State Government is directory but not mandatory for the reason that non-compliance of the same would amount to penalty as provided under Section 30A of the I.D. Act and therefore, the appellant-Company has to face penal action as provided under the above provision of the I.D. Act, since its action could not have been held as void ab initio in law by the Courts below, the said contention is vehemently rebutted by the learned senior counsel for the respondent-Union.

Uttam Manohar Nakate12, in support of his contention, wherein this Court has observed that the complainant must set out in the first instance the deviation to show that the management has committed unfair labour practice and only then the other party be asked to lead evidence to rebut the same.

37. It is very clear from the averments of the appellant-Company in its written statement that its action in retrenching the workmen is sought to be justified before the Industrial Court, which, in fact, is not justified on the basis of evidence on record. It is clear from the pleadings at paragraphs 3 and 4 of the written statement filed by the appellant-Company before the Industrial Court which would clearly show that the action of the appellant-Company is a clear case of mala fide which cannot be sustained in law. Further, there are no valid reasons assigned in the explanatory note to justify the action of the Company in not following the (2005) 2 SCC 489 principle of ‘last come first go’ as mandated under Section 25G of the I.D. Act read with Rule 81 of the Bombay Rules to retrench the concerned workmen who are seniors to the workmen who were retained in the department. At the time of filing written statement by the appellant-Company before the Industrial Court, no reason was assigned in retaining junior workmen to the concerned workmen in the department. For the reasons recorded above, we have to hold that the concurrent finding of fact recorded by the High Court with regard to non-compliance of Section 25G of the I.D. Act by the appellant-Company is also the statutory violation on the part of the appellant-Company in retrenching certain concerned senior workmen. Therefore, the courts below have rightly answered the issue against it. Hence, the same cannot be termed as erroneous for our interference with the.