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PETITIONER: DELHI CLOTH & GENERAL MILLS LTD.

       Vs.

RESPONDENT: SHAMBHU NATH MUKHERJEE & ORS.

DATE OF JUDGMENT03/10/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. SHINGAL, P.N. SINGH, JASWANT

CITATION:  1978 AIR    8            1978 SCR  (1) 591  1977 SCC  (4) 415  CITATOR INFO :  F          1980 SC1219  (12)  R          1981 SC1253  (8)  R          1982 SC 854  (5,6,7)  D          1983 SC 865  (6)  RF         1983 SC1320  (11)  R          1984 SC 500  (2)  RF         1986 SC 132  (7)  E&D        1990 SC1808  (5)

ACT: Industrial  Disputes Act, 1947, s. 2-A-Vires  questioned  in writ petition Whether statement of facts in support of legal ground  dispensable-S. 2(OO), whether includes striking  off name  of  workman  from  the  rolls  by  management  without compliance with provisions of s. 25F(a) and (b)-Section  10, whether violates Art. 14 of the Constitution of India.

HEADNOTE: Shri   Mukherjee  was  a  Motion-setter  employed   by   the appellants.  His post was abolished and he was given the job of  a trainee on probation for the post of  Assistant  Line- Fixer (Assistant Grade 1).  The management found him unsuit- able  for the job even after extending his probation  period upto  nine months, and offered him the post of a  fitter  on the same pay which he had received as a Motion-setter.   The letter  stated that unless he accepted the offer within  two days  of  receiving it, his rejection of the same  would  be presumed  and he could then be retrenched.   Shri  Mukherjee wrote  to the management to give him another chance to  show his  efficiency in his job, but instead of replying to  him, the  management struck off his name from the rolls,  without complying  with the provisions of s. 25F(a) and (b)  of  the Industrial Disputes Act.  A dispute between the parties  led to  a  reference to the Labour Court which  resulted  in  an award  in favour of Shri Mukherjee.  The  management’s  writ petition was rejected first by the Single Judge and then  by the Division Bench of the High Court in appeal. Dismissing the appeal by Certificate, the Court, HELD :(1) Merely questioning the vires of s. 2-A in the writ application  does  not  dispense  with  the  requirement  of stating facts in order to support the legal ground.  If  the

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ground  was taken by making the appropriate allegation  that the  dispute relating to the termination of service  of  the workman  was not espoused by the union, it would  have  been necessary for the Labour Court to call for a report from the Administration,  and  it would have been  possible  for  the workman  to show that his case was, in fact, espoused  by  a substantial number of workmen or by a Union. [594 B-C] (2)No  order, even under s. 27(c) of the  Standing  Orders can  be  passed against the workman who is  not  absent  for "more  than eight consecutive days." Striking off  his  name from  the  rolls by the management, is  termination  of  his service  and  such termination of  service  is  retrenchment within  the  meaning of s. 2(00) of the Act.  Any  order  of retrenchment, in violation of the mandatory provisions of s. 25F(a), the proviso apart, and (b), is invalid. [595 H,  596 A.G-D] (3)The  law has been laid down by this Court holding  that s.  10  of  the  Act  does  not  violate  Art.  14  of   the Constitution. [595 E] Niemla  Textile  Finishing  Mills Ltd.  v.  The  2nd  Punjab Industrial Tribunal [1957] SCR 335, applied.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1903  of 1970. From  the  Judgment and Order dated 20-2-1970 of  the  Delhi High Court in L. P. A. No. 66 of 1969. Rameshwar Dial, Adarsh Dial and A. D. Mathur for the  Appell ant. For Respondent No. 1 (In person) 592      The Judgment of the Court was delivered by GOSWAMI, J.-This is a fight between a Goliath and a dwarf in an        Industrial   arena.  The  workman,  who   is   the respondent before us,         was "automatically struck  off the rolls" by the management (appellant) on August 24, 1965. The management has been persistently         fighting    him for  the  last twelve years having lost  before  the  Labour Court,  the single Judge of the Delhi High Court and  lastly before the          Division  Bench of the High Court  until the matter has landed in this           Court             on certificate.           The facts may briefly be stated The workman was recruited as a labourer in the Store in  195 1.        After  about  six  months he  was  promoted  as  a Fitter-Helper and after       about one and a half years  he was  promoted  to the post of Motion Setter  till  1964.  On October  1,  1964,  there was  some  reorganisation  in  the management’s  establishment ;and the post  of  Motion-Setter was abolished. Ordinarily, therefore, the workman would have been           retrenched,  but,  in terms of  a  settlement between the management        and the representatives of the workmen, no employee was retrenched.         On  the   other hand, the management agreed to offer work "on any      other suitable  post."  It  is in that  way  that  the  management offered        to  the  workman  the job  of  a  trainee  on probation for the post of          Assistant      Line-Fixer (Assistant Grade I) without loss of wages. The   management found him unsuitable for this post even after extending  the period of probation upto nine months and, therefore, offered him  the  post  of a fitter on the same pay which  he  as  a Motion-Setter used       to get. This offer was made by  the management by a letter of July          31,   1965,    which

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closed with the following paragraph               "In  case  you agree to the   above  proposal,               then  your acceptance should reach  my  office               within two days of the receipt of this  letter               otherwise  it will be presumed that the  above               proposal  is  not acceptable to you and  as  a               consequence  you  can be retrenched  from  the               service of the Mills. The  workman was on leave and’ this letter was  received  by him       on  August 11, 1965. It is common ground  that  he worked as a         Trainee (Assistant Grade 1) upto  August 14, 1965. August 15 being          a public holiday, on 16th August, 1965, the workman wrote to the       management   to give him a further chance to show his efficiency in    his job and if he failed to improve the would voluntarily tender his  resignation.   The workman closed            letter  as follows :               "So,  I hope that you will be  kind to  inform               me  without delay regarding the  order  served               on me because I am a displaced person of  East               Pakistan  and unable to stay more without  any               job.               Hope  to  get an early reply  at  the  address               given above." The management did not reply to this letter and the workman; also did not report to the management.  It appears from  the letter  written by the management to the workman on  January 19, 1966 that- 593               "your name has been automatically struck  off               the rolls under the provisions of the Standing               Orders with effect from 24-8-65, for continued               absence without any intimation". This  is  the  only reply which the  workman  got  from  the management  to  his letter dated 16th August, 1965.   It  is surprising  that the management did not immediately  send  a reply to the workman informing its inability to agree to his proposal  ’in  which  case the  only  alternative  with  the management  was to retrench his service.  If this were  done on receipt of the workman’s letter of 16th August, 1965, the management   could  have  been  spared  this  tortuous   and expensive litigation which may not affect the management but has  caused immense hardship to the workman.  It Is a  trite saving  that  one  stich  at  a  time  saves  nine  and  the management could have avoided ’all this dispute by writing a two-line  letter  by offering the  appropriate  compensation under  section  25F of the Industrial Disputes.   Act,  1947 (briefly the Act). Thus  a dispute arose which led to conciliation and then  to the  Reference which resulted in an award in favour  of  the workman  on  December 21, 1967, reinstating him  in  service with  full back wages.  The Labour Court, however,  made  it clear  that "if, the management wants to revert or  retrench him  it  should  do  so in accordance  with  the  rules  and regulations  applicable  to  his case  after  taking  proper proceedings according to rules".  Even this reasonable order of  the  Labour Court was not palatable to  the  management. The  management  therefore preferred  an  application  under Article  226 of the Constitution before the High  Court  and the  learned  single  Judge rejected the  same.   A  further appeal  to  the  Division  Bench  met  with  the  same  fate resulting in this appeal by Certificate. Before  the Labour Court an objection was taken  questioning the Reference and the following issue was framed               "Whether the dispute is an industrial  dispute

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             and the reference is bad" ?               The  Labour Court answered the  issue  Against               the management holding as follows:--               "Under  the  newly  added section  2A  of  the               Industrial Disputes Act, any dispute regarding               discharge,    dismissal,    retrenchment    or               termination of services of even an  individual               workman  amounts to an industrial dispute.   I               am therefore unable to accept the argument  of               the  management that the dispute  referred  to               this-Court cannot be treated as an  industrial               dispute  because it relates to  an  individual               workman". It  is clear from the above that objection was taken by  the management  to the effect that the case of the, workman  had not  been espoused by other workmen or by any union.  It  is precisely by raising this factual quest ion that a new point with  regard  to  vires  of section  2A  of  the  Industrial Disputes  Act has been presented before this Court  for  the first  time.   It is true that in the grounds taken  in  the High Court it was stated "that section 2A of the  Industrial Disputes  Act is ultra-vires the powers of  the  Legislature under Item 22 594 List III to Schedule VII of the Constitution of India",  but this  objection  can only be, as is now ’made clear  by  the appellant,  on  the basis that the dispute relating  to  the workman  had  not  been espoused by other workmen  or  by  a union.  A perusal of the Reference under section 10 (1)  (c) does  not’  ex-facie  show that it was  a  Reference  of  an individual  disputes  under  section 2A.   That  being  the, position,  if  the appellant wanted to raise  this  question before  the Labour Court it was necessary for it to raise  a triable issue by stating the facts that the dispute relating to  the  termination  of  service of  the  workman  was  not espoused  by the union.  Merely taking a ground in the  writ application  does  not  dispense  with  the  requirement  of stating facts in order to support the legal ground.  If  the ground were taken by making appropriate allegations it would have  been  necessary  for the Labour Court to  call  for  a report  from  the  Administration and  it  would  have  been possible  for the workman to show that his case was in  fact espoused by a substantial number of workmen or by a union. From  the judgment of the learned single Judge it  does  not appear  that this question of the vires of section  2A had been  urged before him. It was only urged that  section  2A ’was   invalid   since  it  offended  Article  14   of   the Constitution. Another objection was taken before the learned single  Judge "that  there  could  be  no  reference  in  respect  of  the industrial dispute under section 2A which was placed on  the Statute Book after the termination of the employment of  the workman  in this case".  The appellant has not pressed  this point  urged  before  the  learned  single  Judge  but   has addressed us on Article 14 of the Constitution.  Before  the Division  Bench the objection under Article 14 was  repeated but the question of section 2A being ultra vires because  of legislative incompetency was not urged.  It may be that  the point  was not specifically argued because of a  Full  Bench decision  of the Delhi High Court but that does not  satisfy the basic factual requirement for the objection that it  was actually  a case of an individual dispute under section  2A, unespoused   by  the  union,  Which  was  referred  by   the Administration under section 10(1) (c) of the Act. We  have  to  state the above facts in  some  detail  a  the

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appellant  on  the  second day of  the,  argument  submitted before us that since he was raising the vires of section  2A on the ground of legislative incompetency the appeal had  to be heard by a Bench of seven Judges under Article 144A which was  introduced by the 42nd Amendment of  the  Constitution. Before this constitutional question could be raised it  must be  manifest on the records that the question arose  on  the facts  disclosed.   As  we have pointed out,  there  was  no allegation by stating appropriate facts that the dispute  of the  workmen  had  not been espoused by the union  or  by  a substantial number of workmen.  There is nothing to show  on the  face  of  the Reference  that  the  Administration  was considering the case on the basis of section 2A of the  Act. Even  though  recital  of section 2A was not  there  in  the Reference, it was open to the management to raise the  issue before  the  Labour  Court as to whether in fact  it  was  a dispute which was referred, by the Administration merely  on the application 595 of  the  workman.   On  the other hand,  we  find  that  the Reference was made by the Lieutenant Governor under  section 10(1)(c)  read  with  section 12(5) of the  Act.   There  is nothing  to show that even before the  Conciliation  Officer any objection was taken by the management that it was not an industrial dispute within the meaning of section 2(k) of the Act.  Nothing prevented the management from raising such  an issue even before the Conciliation Officer.  We are,  there- fore,  clearly  of  opinion that this is not  a  case  where litigation  can be allowed to be dragged on by allowing  the management to raise this question for the first time in this Court  without any basis.  We, therefore, decline to  accede to  the  request  that  this is at  all  a  fit  appeal  for reference to a Bench of seven Judges.  There is no basis for considering the provision of section 2A in this appeal. With  regard to the objection on the score of Article 14  of the Constitution, it is sufficient to state that the  matter is  concluded  by the principle laid down by this  Court  in Niemla  Textile  Finishing  Mills Ltd.  v.  The  2nd  Punjab Industrial Tribunal(1).  In that case a challenge was  made, inter alia, to section 10 of the Act as being invalid on the ground  of violation of Article 14 of the Constitution.   In an exhaustive judgment, this Court, repelled the contention. It  is  submitted by Mr. Dial that decision this  Court  was only required to consider the objection raised on the  score of  Article 14 on a ground which is different from’ the  one he  would like to ’Lake before us.  We are, however,  unable to accept this submission.  If this Court held section 10 as intra  vires and repelled the objection under Article 14  of the  Constitution it would not be permissible to  raise  the question  again  by submitting that a new  ground  could  be raised  to  sustain the objection. It is certainly  easy  to discover  fresh  grounds  of  attack  to  sustain  the  same objection,  but  that cannot be permitted once the  law  has been laid down by this Court holding that section 10 of  the Act does not violate Article 14 of the.  Constitution.   The ratio  decidendi of Niemla, Textile Finishing Mills  (supra) will apply while dealing with the objection under Article 14 of  the  Constitution in respect of  the  present  reference under  section 10(1) (c) of the Act.  The submission of  the learned counsel is, therefore, devoid of substance. The question then arises whether the High Court was right in refusing  to interfere with the. award under Article 226  of the Constitution.  There is no manifest error of law on- the face  of  the  award and none could be pointed  out  by  the learned   counsel.    Neither   is  there   any   error   of

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jurisdiction.  The issue before the Labour Court was one  of reinstatement  of  the  workman and  the  Labour  Court  was entitled to go into the whole question which it did.  We  do not find any infirmity in the award. On  the face of it, the order striking off the name  of  the workman  from  the  rolls on August  24,  1965,  is  clearly erroneous.   No  order,  even under  section  27(c)  of  the Standing Orders, could have (1)  [1957] SCR 335. 596 been passed on that date.  The clause in the Standing Orders reads as follows :-               "If  any workman absents for more  than  eight               consecutive   days  his  services   shall   be               terminated  and shall be treated  having  left               the service without notice". The  workman last attended work on 14th August,  1965.  15th August was a public holiday.  He was, therefore, absent from work  only from 16th of August.  So even under the  Standing Orders  the  workman  was not absent for  "more  than  eight consecutive  days"  on  24th August, 1965.   The  order  is, therefore,  clearly  untenable  even on  the  basis  of  the Standing Orders.  It is not necessary to express any opinion in  this  appeal  whether "eight consecutive  days"  in  the Standing Orders mean eight consecutive working days. Striking  of the name of the workman from the rolls  by  the management is termination of his service.  Such  termination of  service  is retrenchment within the meaning  of  section 2(00)  of  the  Act.   There is nothing  to  show  that  the provisions of section 25F (a) and (b) were complied with  by the management in this case.  The provisions of section  25F (a), the proviso apart, and (b) are mandatory and any  order of retrenchment, in violation of ’these two peremptory  con- ditions precedent, is invalid. We  do not find any merit in this appeal which is  dismissed with costs. M.R. Appeal dismissed. 930 SCI/77-2,500-22-3-78-GIPF. 597