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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