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Rai Sahib Ramdayal Ghasiramoil Mills Vs. The Labour Tribunal & ANR [1962] INSC 355 (10 December 1962)

MUDHOLKAR, J.R.

IMAM, SYED JAFFER KAPUR, J.L.

SUBBARAO, K.

CITATION: 1964 AIR 567 1963 SCR Supl. (2) 845

ACT:

Industrial Dispute-Closure of the Mill on the ground of loss-Workmen awarded retrenchment benefit-Mill reopened -Only some of the former workers re-employed-Wages reducedReference made to single member Tribunal-Another single member Tribunal after his retirement-No fresh reference made-Whether new Tribunal has jurisdiction to adjudicateConstitution of India, Art. 226-Industrial Disputes Act 1947 (14 of 1947), ss. 7 (1), 8 (2), 10 (1) (c)-Industrial Disputes Act, 1947, as amended by Industrial Disputes (Amendment) Act 1953, s. 25 (H).

HEADNOTE:

The appellant concern was closed on tile ground that it incurred heavy losses. Thereupon the workmen raised an industrial dispute and they were awarded retrenchment benefits. About two years later the appellant concern was reopened. But only some of the former workers re-employee along with some new recruits. The wages were lower than before. The workers put forward certain damands including for the demand for absorption of those of the workmen who were not re-employed when the mill was reopened and for payment to them of compensation for unemployment from the date of reopening. An industrial dispute having arisen the Government constituted a single Member Tribunal and made a reference of the disputes to that Tribunal. Thereafter the Member retired. The Government then purporting to act under s. 7 (1) of the Industrial Dispute Act, 1947 and in super-cession of the previous notification constituted a single Member Tribunal. This Tribunal to which no fresh reference was made proceeded with the adjudication of the dispute. Apart from the demands already made the workers contended before the Tribunal that they were entitled to the benefits under s. 25 (H) of the Industrial Disputes Act, as amended by the Industrial Disputes (Amendment) Act, 1953.

The appellant contended that the Tribunal had no jurisdiction to adjudicate upon the dispute 846 and that s. 25 (H) was not available to the former workmen who had been retrenched. The first contention of the appellant was rejected. Even though the second contention was accepted the tribunal made an order in favour of the workmen on the ground that though they cannot claim the statutory benefits of s. 25 (H) the principle of social justice underlying that section entitled them to receive salaries and allowances from the date of reopening the mill. The appellant preferred an appeal to the Industrial Appellate Tribunal. On the dismissal of that appeal the appellant filed a writ petition before the High Court of Bombay. The High Court summarily dismissed that petition but a certificate was granted to appeal to this Court.

The appellant reiterated before this Court the two contentions stated above.

Held, that sub-s. (1) of s. 7 of the Industrial Disputes Act empowers the Government to constitute a Tribunal. But merely constituting a Tribunal for adjudication of disputes is not enough. It has also to act under s. 10 and make a specific reference to it of each dispute for adjudication.

Without such a reference the Tribunal does not get any jurisdiction to adjudicate upon any dispute.

The provisions of s. 25 (H) cannot apply to workmen who had been retrenched before this section came into force. The provision not being retrospective no tribunal has jurisdiction on the basis of its own conception of social justice to apply it or its underlying "principle" to a dispute which arose before the provision came into force.

CIVIL APPELLATE JURSIDICTION : Civil Appeal No. 593/1960.

Appeal from the order dated October 15, 1956, of the Bombay High Court in special Civil Application No. 2832 of 1956.

Bishan Narain and K. L. Mehta, for the appellant.

The respondent did not appear.

1962. December 10. The judgment of the Court was delivered by 847 MUDHOLKAR, J.-This is an appeal by a certificate from the summary dismissal by the' Bombay High Court of a writ petition under Arts. 226 and 227 of the Constitution. The relevant facts are these :

Rai Sahib Ramdayal Ghasiram Oil Mills (hereinafter referred to as the Mills) were closed on September 1, 1952 on the ground that they had sustained heavy 'losses. The closure was found to be bona fide and the workmen were awarded retrenchment benefit. The mills, however, reopened on November 14, 1954, though their operations were carried on a reduced scale for avoiding further losses. Some of the retrenched workmen were reemployed by the Mills but evidently at lower wages than before. It was said on behalf of the Mills that all the former workmen could not be absorbed but it would appear that they had in fact employed some new hands as well. An industrial dispute having been raised by the respondent-union because of the non-absorption of 11 workmen, the State Government constituted an Industrial Tribunal consisting of Mr. Kurian, under s. 7 of the Industrial Disputes Act, as it stood on that date, on May 1.3, 1955 and referred the following dispute to him :

"Whether the retrenched workmen referred to in the Annexures A, B and C of the Award of the Industrial Triuunal, in the Industrial dispute between the workmen and employers of Rai Sahib Ramdayal Ghasiram Rice, Ginning and Oil Mills, Peddapally dated 1., January, 1953 are entitled for reinstatement and compensation for unemployment after reopening of the said Mills." It may be mentioned that shortly after the Tribunal was constituted and reference made to it, Mr. Kurian retired in consequence of which the 848 Government of Hyderabad made the following notification on June 2, 1955 "In exercise of the powers conferred by sub section (1) of section 7 of the Industrial Disputes Act 1947 (XIV of 1947) and in supersession of the Labour Department Notification No. B. 189/54/134 dated 15-10-1954 the Rajapramukh hereby constitutes an Industrial Tribunal consisting of Shri Bhikaji Patil as its sole member for the adjudication of industrial disputes in accordance with the provisions of the said Act, with immediate effect." The respondents' case before the Tribunal was that after the reopening of the Mills all the former employees were entitled to be given preference over others and were also entitled to re-employment on the same wages as obtained at the date of closure. This claim was based upon the award made by the Industrial Tribunal on January 1, 1953 in the dispute which arose between the Mills and the respondents in consequence of the closure of the Mills in September, 1952.

Para 24, cl. 6 of the Award on the basis of which this claim was made by the Union runs thus :

"'In the event of the factory being reopened within one year from the date of award becomes enforceable the employers will give first preference to those workmen in Annexures A, B and C, that is, no workmen will be employed in the factory other than those employed at present without giving them first opportunity for employment and that on terms as to basic wage and allowances that were in force on July 29, 1952." The grievance of the respondents was that only a few of the former workers were re-employed and that too at lower wages and some new hands had been recruited disregarding the claim of some 849 former employees. They also claimed the benefit of the provisions of s. 25 (H) of the Industrial Disputes Act which were added to the Act by the Industrial Disputes (Amendment) Act, 1953.

Several contentions were raised by the appellant before the Tribunal but we need only refer to those which are now urged before us. One contention was that the Tribunal as it stood constituted on June 2, 1955 had no jurisdiction to adjudicate upon the dispute and the other was that the provisions of s. 25 (H) of the Industrial Disputes Act as amended by Act 43 of 1953 were not available to the former workmen who had been retrenched. The first contention and other contentions to which we have not made any mention were rejected by the Tribunal but the contention that the provisions of s. 25 (H) were not available to the retrenched workmen was upheld by it. The Tribunal, however, made an order in favour of those workmen in the following terms :

"'Though the workers cannot claim statutory benefits they cannot be denied social justice which is the underlying principle of section 25 (H) and the rights that they had obtained under the previous award of 1952. I.. therefore, order that the workers from Annexures A, B and C who are not taken back in service by the employers be re-employed and they should be paid their salaries and allowances from the date of the reopening of the mills, i.e., 14-11-1954. Their salaries would be the same as they were in force at the time of the closure of the mills." An appeal was preferred by the appellants from the decision of the Tribunal before the Labour Appellate Tribunal, Bombay. That appeal having been dismissed, the appellants preferred a writ petition before the High Court of Bombay which, as already stated, rejected it in limine.

850 It seems to us that the contention of the appellant that the Industrial Tribunal consisting of Mr. Patil had no jurisdiction to adjudicate upon the dispute is correct and must be upheld. Sub-s. (1) of s. 7 as it then stood empowered the appropriate Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Such a Tribunal was to consist of such number of members as the _appropriate Government thought fit. Subs. (2) of s. 8 of the Act, as it then stood, provided that where a Tribunal consists of one person only and his services ceased to be available the appropriate Government may appoint another independent person in his place, and the proceedings shall be continued before the person so appointed. That being the legal position, the appropriate thing for the Government to do was to take action under sub-s. (2) of s. 8 after Mr. Kurian's services ceased to be available. Instead of doing that the Government took action under s. 7 sub-s. (1) of the Act "'in supersession" of its previous notification and constituted a fresh Industrial Tribunal consisting of Mr. Patil as its sole member. We need not consider here whether the old Tribunal still continued to exist and there was merely a vacancy therein and therefore there was no occassion to constitute a fresh Tribunal under sub-s. (1) of s. 7 because' having constituted a fresh Tribunal, the Government failed to refer the dispute in question to it under sub-s. (1) (c) of s. 10 of the Act. Apparently, the law advisors and the Government thought that a mere notification under sub-s. (1) of s. 7 would meet the requirements of law and there was Do necessity to make a fresh notification under s. 10 (1) (c) referring the particular dispute for adjudication to the Tribunal. No doubt, sub-s. (1) of s. 7 empowers the Government to constitute a Tribunal for adjudicating industrial disputes in accordance with the provisions of the Act. But merely constituting a Tribunal for such a purpose is 851 not enough. It has also to act under s. 10 and make a specific reference to it of each dispute for adjudication.

Without such a reference the Tribunal does not get any jurisdiction to adjudicate upon any dispute. On this short ground the appeal must be allowed.

We will, however, say a word about the ground upon which the Tribunal thought it fit to give the retrenched workers the benefit of the provisions of s. 25 (H) on the ground of social justice. Wide though the powers of an Industrial Tribunal are while adjudicating upon industrial disputes, it cannot arrogate to itself powers which the legislature alone can confer or do something which the legislature has not permitted to be done. Section 25 (H) provides for reemployment of retrenched workmen in certain circumstances in preference to newcomer,-. But Act 43 of 1953 which enacted this provision clearly provides in sub-s. (2) of s. 1 thereof' that "it shall be deemed to have come into force on October 24, 1953." Clearly therefore, the provisions of this section cannot apply to workmen who had been retrenched before this provision came into force. The legislature did not intend the provisions to come into force before October 24, 1953. When that is the mandate of the legislature no Tribuual has jurisdiction on the basis of its own conception of social justice to ignore it and apply the provisions or its underlying "principle" to a dispute which arose before the provisions came into force.

For both these reasons, we allow the appeal and quash the award of the Industrial Tribunal. There will be no order as to costs as the respondents have not put in an appearance.

Appeal allowed.

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