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PETITIONER: M/S. LOKMAT NEWSPAPERS PVT. LTD.

       Vs.

RESPONDENT: SHANKARPRASAD

DATE OF JUDGMENT:       19/07/1999

BENCH: S.B.Majumdar, Syed Shah Mohammed Quadri

JUDGMENT:

S.B.Majmudar, J.

Leave granted. L.....I.........T.......T.......T.......T.......T.......T..A

     We  have heard learned counsel for the parties finally   in this appeal.  It is being disposed of by this judgment.

     The  question involved in this appeal at the  instance     of the appellant-management pertains to the legality and     validity of the discharge of the respondent-employee and also calls for the decision as to whether the said discharge    order amounted to ‘unfair labour practice’ on the part of     the management.  A few relevant facts are required to be    noted at the outset.  Introductory facts:  The respondent  was working in the composing department of the appellant at           Nagpur in Maharashtra State when his services were terminated.  He was a foreman in the composing department of    the appellant.  The appellant is a company engaged in the          publication of a Marathi daily named ‘Lokmat’.  The  appellant has its registered office at Nagpur and Lokmat is            being published therefrom.  In the year 1976, the    appellant-company decided to start publication of Jalgaon     Edition of the said paper and for that purpose set up an          establishment at Jalgaon in the eastern district of     Maharashtra State.  The Jalgaon Edition was composed and   printed at Nagpur and was taken to Jalgaon.  The composing of both the Editions was done by hand composing and printing was done on rotary printing machine.  In 1978, the appellant     decided to have composed and printed part of the Jalgaon      Edition at Jalgaon.  Since then the Jalgaon Edition was composed and printed partly at Jalgaon and partly at Nagpur.         Then in 1981, the appellant installed two photo type   composing machines at Nagpur.  According to the appellant,   it was a new technique of rationalisation, standardisation  and improvement of plant or technique.  It appears that the said machine was operated on experimental basis for sometime               but by October 1981 it became fully operative.  Consequently, the respondent along with 24 other employees,     who were working in the hand composing department became redundant.  Therefore, they were sought to be transferred to   Jalgaon District in the State of Maharashtra where another establishment of the appellant was located.  The said orders       of transfer were challenged by the respodent and other   employees before the Industrial Court under the provisions of The Maharashtra [Recognition of Trade Unions & Prevention

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of Unfair Labour Practices] Act, 1971 (hereinafter referred   to as ‘the Maharashtra Act’).  The Industrial Court, after    hearing the parties, took the view that the said transfer    orders amounted to change in the conditions of service of          the complainants which resulted into ‘unfair labour   practice’ on the part of the appellant.  The said decision of the Industrial Court was rendered on 12th February, 1982.      The order of the Industrial Court was challenged by the  appellant before the High Court by filing Writ Petition No. 630/82.  It appears that subsequently the said Writ Petition    was withdrawn.  Consequently, the order of the Industrial  Tribunal calling upon the appellant to withdraw the illegal      transfers of the respondent and others remained a final        order.  Having realised that the respondent and other   workmen could not be transferred out of Nagpur even though    they had become surplus on account of introduction of the    aforesaid photo composing machine, the appellant issued a          notice on 25th March, 1982 under Section 9-A of the Industrial Disputes Act, 1947 (for short the ‘I.D.  Act’) to   the respondent inter alia, stating that as a result of the   installation of photo composing machine, there was no work    available with the appellant so as to provide the same to                          the respondent and other employees.

     The  respondent  and other employees opposed the  said        notice and consequently the Conciliation Officer held  conciliation proceedings under Section 12 of the I.D.  Act.  Parties were heard and efforts were made in conciliation to         enable them to amicably settle the dispute but those     proceedings ultimately failed.  The Conciliation Officer    closed the proceedings on 22.6.1982 and subsequently sent     failure report to the State Government.  The said report   reached the State Government on 13th August, 1982.  In the meantime, once the conciliation proceedings were closed, the     appellant issued the impugned discharge order dated 22nd  June,1982 terminating the services of the respondent.  As a      consequence thereof, the services of the respondent and  other employees were terminated by following the provisions                            of Section 25-F of the I.D.  Act.

     Immediately  after  the discharge order was served  on the respondent, he filed a complaint on 25.6.1982 before the         Labour Court under Section 28 of the Maharashtra Act      alleging that the respondent indulged in ‘unfair labour  practice’ which falls within the provisions of Schedule -IV    item no.  1 (a), (b), (d) and (f) of the Maharashtra Act.    The appellant resisted the said proceedings and contended     that it has not resorted to any ‘unfair labour practice’         against the respondent.  During the pendency of this       complaint, the State Government, acting on the failure  report of the Conciliation Officer, made a reference of the   Industrial dispute under Section 10 of the I.D.  Act.  The   appellant raised an objection before the Industrial Court,   Nagpur, that the reference proceedings under Section 10 of   the I.D.  Act were incompetent and barred by Section 59 of    the Maharashtra Act.  As the respondent had already filed     complaint under the Maharashtra Act challenging the very    same discharge order, these objections were upheld by the   Industrial Court, Nagpur and reference under Section 10 of                               the I.D.  Act was disposed of.

     The complaint filed by the respondent was dismissed by  the Labour Court by its order dated 30.1.1990.  It was held  that the impugned retrenchment order did not attract any of  the provisions of Schedule IV, item no.1 of the Maharashtra

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  Act and that the respondent was not guilty of any ‘unfair    labour practice’ when it passed the impugned retrenchment                                order against the respondent.

     The  respondent  filed a Revision Petition before  the Industrial Tribunal, Nagpur.  The said Revision Petition was   dismissed by the Tribunal on 22nd November, 1990 upholding the findings of the Labour Court that the respondent had not                     engaged in any ‘unfair labour practice’.

     The  respondent  then filed Writ Petition No.   70  of 1991 under Articles 226 and 227 of the Constitution of India  challenging the decision rendered by both the Courts below.      The said Writ Petition was also rejected by the learned     Single Judge on 25th April, 1991.  Respondent thereafter   preferred Letters Patent Appeal No.  24 of 1991 before the   Division Bench of the High Court at Nagpur under Clause 15     of the Letters Patent.  The said appeal was heard by the Division Bench on merits.  The Division Bench, by its orders      dated 6.11.1996, held that the appellant had engaged in  ‘unfair labour practice’ under item 1 (a), (b), (d) and (f)       of Schedule IV of the Maharashtra Act and hence it was         directed to pay back-wages and other benefits to the   respondent from the date of the order of retrenchment i.e. 22.6.1982 till the date of his retirement as he had also got   superannuated in the meantime.  This order of the Division Bench of the High Court has been brought in challenge by the    appellant- management by way of present appeal on special        leave under Article 136 of the Constitution of India.

     Learned  counsel  appearing for the appellant, at  the        outset, submitted that the Writ Petition filed by the      respondent before the High Court was in substance under   Article 227 of the Constitution of India and hence was not   maintainable under Clause 15 of the Letters Patent Appeal.       In order to support this contention, he took us to the relevant averments in the Writ Petition as well as the order of the learned Single Judge.  He also relied on judgments of          this Court to which we will refer hereinafter.  His   submission was that the learned Single Judge had exercised  his jurisdiction under Article 227 of the Constitution only            and, therefore, the Letters Patent Appeal was not  maintainable.  On merits, it was submitted that even if the      appeal was maintainable the Division Bench had patently    erred in taking the view that notice under Section 9-A of      the I.D.  Act was illegal and inoperative.  It was also       contended that the decision of the Division Bench that  respondent’s complaint was maintainable and that by passing    the impugned order of the retrenchment, the appellant had resorted to ‘unfair labour practice’, was erroneous.  It was       further submitted that the Division Bench had erred in   holding that the impugned discharge order was violative of        Section 33 of the I.D.  Act and that in any case pure   finding of fact of courts below that the appellant was not     guilty of any ‘unfair labour practice’ ought not to have    been interfered with by the Division Bench in the Letters                                               Patent Appeal.

     On  the other hand, learned counsel for the respondent tried to support the decision rendered by the Division Bench   of the High Court on the points on which the Bench decided     in favour of the respondent.  He also submitted that the             appeal under Clause 15 of the Letters Patent was                      maintainable before the Division Bench.

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     Learned  Counsel  for  the   respondent  invited   our  attention to a number of decisions of this Court in support  of the respondent’s case on merits.  We shall refer to them in latter part of this judgment when we shall consider these                                       contentions on merits.

     In  the light of the aforesaid rival contentions,  the  following points arise for our consideration :  1.  Whether the respondent’s Letters Patent Appeal was maintainable;  2.   If yes, whether the Division Bench was right in taking the   view that the impugned retrenchment order was violative of Section 33 (1) of the I.D.  Act;  3.  Whether the appellant,    in issuing the said order, had violated the provisions of      Section 9-A of the I.D.  Act;  4.  Whether the impugned     retrenchment order amounted to the commission of ‘unfair labour practice’ by the appellant as per Schedule IV items 1   (a), (b), (d) and (f) of the Maharashtra Act;  5.  Whether     the Division Bench was justified in interfering with the  findings of fact arrived at by the authorities below and as     confirmed by the learned Single Judge while deciding the      aforesaid question of ‘unfair labour practice’;  and 6.          What final order ?  We shall deal with these points            seriatim.  Point No.1:  So far as the question of       maintainability of Letters Patent appeal is concerned,   it has to be noted that the Revisional Order was passed by  the Labour Court on respondent’s complaint under Section 28 of the Maharashtra Act.  The said order was confirmed by the  Industrial Tribunal under Section 44 of the same Act.  Both the courts held that retrenchment of the respondent does not    amount to any ‘unfair labour practice’ on the part of the   appellant.  These orders were challenged by the respondent    by filing Writ Petition under Articles 226 and 227 of the Constitution of India before the High Court of Judicature at    Bombay, Nagpur Bench.  The learned Single Judge dismissed   the said Writ Petition, but his order itself shows that he    was considering the Writ Petition of the respondent which  was moved before him invoking the High Court’s Jurisdiction under Articles 226 and 227 of the Constitution of India.  In     the said Writ Petition under Articles 226 and 227 of the     Constitution, the respondent requested the High Court to call for the record and proceedings of Revision Petition No.   70 of 1990 and after perusal thereof to be further pleased   to quash and set aside the Order dated 30.1.1990 passed by     the Second Labour Court, Nagpur in Complaint No.  262 of    1982 and order dated 20.11.1990 passed in Revision by the                                            Industrial Court.

     When  we  turn to the relevant paragraph of  the  Writ    Petition, we find averments to the effect that the Courts        below, while interpreting the provisions contained in     Sections 9-A, 20 and 33 and other provisions of the I.D.  Act, 1947 and the rules framed thereunder, had totally lost  sight of the object and purpose of these provisions and had  put an interpretation alien to industrial jurisprudence and had thus committed serious error of law apparent on the face       of the record which resulted in serious miscarriage of     justice and also in failure to exercise the jurisdiction       vested in the courts below under the provisions of the     Maharashtra Act.  In para 9 of the Writ Petition, it was     averred that the impugned orders of the Courts below had     further resulted in infraction of his fundamental rights   guaranteed to him under Articles 14, 21 and other Articles                   as enshrined in the Constitution of India.

     It  is,  therefore,  obvious that  the  Writ  Petition

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invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case         for High Court’s interference seeking issuance of an      appropriate Writ of Certiorari under Article 226 of the    Constitution of India.  Basic averments for invoking such   jurisdiction were already pleaded in the Writ Petition for     High Court’s consideration.  It is true, as submitted by     learned counsel for the appellant, that the order of the       learned Single Judge nowhere stated that the Court was       considering the Writ Petition under Article 226 of the  Constitution of India.  It is equally true that the learned   Single Judge dismissed the Writ Petition by observing that         the Courts below had appreciated the contentions and     rejected the complaint.  But the said observation of the       learned Single Judge did not necessarily mean that the    learned Judge did not inclined to interfere under article 227 of the Constitution of India only.  The said observation   equally supports the conclusion that the learned Judge was    not inclined to interfere under Articles 226 and 227.  As     seen earlier, that he was considering the aforesaid Writ      Petition moved under Articles 226 as well as 227 of the Constitution of India.  Under these circumstances, it is not possible to agree with the contention of learned counsel for   the appellant that the learned Single Judge had refused to      interfere only under Article 227 of the Constitution of India when he dismissed the Writ Petition of the respondent.   In this connection, it is profitable to have a look at the   decision of this Court in the case of Umaji Keshao Meshram and Others vs.  Radhikabai, widow of Anandrao Banapurkar and Anr., [(1986) Supp SCC 401].  In that case O.Chinnappa Reddy and D.P.Madon, JJ., considered the very same question in the       light of clause 15 of the Letters Patent Appeal of the Bombay High Court.  Madon J., speaking for the Court in para  107 of the Report at page 473, made the following pertinent                                               observations :

     "Petitions  are at times filed both under Articles 226 and 227 of the Constitution.  The case of Hari Vishnu Kamath v.  Syed Ahmad Ishaque before this Court was of such a type. Rule 18 provides that where such petitions are filed against  orders of the tribunals or authorities specified in Rule 18       of Chapter XVII of the Appellate Side Rules or against     decrees or orders of courts specified in that rule, they    shall be heard and finally disposed of by a Single Judge.         The question is whether an appeal would lie from the         decision of the Single Judge in such a case.  In our       opinion,  where the facts justify a party in filing an           application either under Article 226 or 227 of the  Constitution, and the party chooses to file his application   under both these articles, in fairness and justice to such  party and in order not to deprive him of the valuable right  of appeal the court ought to treat the application as being    made under Article 226, and if in deciding the matter, in   the final order the court gives ancillary directions which     may pertain to Article 227, this ought not to be held to    deprive a party of the right of appeal under Clause 15 of   the Letters Patent where the substantial part of the order    sought to be appealed against is under Article 226.  Such      was the view taken by the Allahabad High court in Aidal    Singh v.  Karan Singh and by the Punjab High Court in Raj      Kishan Jain v.  Tulsi Dass and Barham Dutt v.  Peoples’ Co-operative Transport Society Ltd., New Delhi and we are in                                          agreement with it."

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     The  aforesaid decision squarely gets attracted on the facts of the present case.  It was open to the respondent to    invoke jurisdiction of the High Court both under Articles         226 and 227 of the Constitution of India.  Once such      jurisdiction was invoked and when his Writ Petition was      dismissed on merits, it cannot be said that the learned       Single Judge had exercised his jurisdiction only under   Article 226 of the Constitution of India.  This conclusion  directly flows from the relevant averments made in the Writ       Petition and the nature of jurisdiction invoked by the       respondent as noted by the learned Single Judge in his    Judgment, as seen earlier.  Consequently, it could not be  said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned Single      Judge.  It is also necessary to note that the appellant   being respondent in Letters Patent Appeal joined issues on       merits and did not take up the contention that Letters  Patent Appeal was not maintainable.  For all these reasons,   therefore, the primary objection to the maintainability of    the Letters Patent Appeal as canvassed by learned counsel       for the appellant, has to be repelled.  Point no.1 is, therefore, answered in affirmative against the appellant and             in favour of the respondent.  It takes us to the  consideration of points arising for our decision on merits.

     Point  No.2:   The  question of violation  of  Section      33(1) of the I.D.  Act requires to be considered in the   light of the relevant statutory provisions.  Section 33 as       found in Chapter VII of the I.D.  Act, sub-section (1) thereof, which is relevant for our present discussion, reads     as under :  "33.  Conditions of service, etc., to remain     unchanged under certain circumstances during pendency of    proceedings.- (1) During the pendency of any conciliation  proceeding before [an arbitrator or] a conciliation officer     or a Board or of any proceeding before a Labour Court or    Tribunal or National Tribunal in respect of an industrial                                 dispute, no employer shall,-

     (a)  in  regard  to  any  matter  connected  with  the dispute, alter, to the prejudice of the workmen concerned in   such dispute, the conditions of service applicable to them  immediately before the commencement of such proceeding;  or

     (b)  for  any misconduct connected with  the  dispute,  discharge or punish, whether by dismissal or otherwise, any                           workman concerned in such dispute;

     save  with  the express permission in writing  of  the           authority before which the proceeding is pending."

     Now  it  must be stated that the impugned  termination      order was passed against the respondent-workman on 22nd       June, 1982.  Within three days thereof, the respondent     raised an industrial dispute by filing a complaint under Section 28 of the Maharashtra Act alleging that the impugned      termination order amounted to ‘unfair labour practice’.      Before the impugned termination order was passed by the management, it had already served a notice under Section 9-A of the I.D.  Act to the respondents union to the effect that       it proposed to introduce a change in the conditions of  service of the respondent and other members of the union on the ground that it was proposing to rationalise the printing      work at the appellant’s concern at Nagpur by setting up   photo-type machine for carrying out the work of composing,  resulting in substantial reduction in the work of composing

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by hand.  It may be stated that the respondent was employed         as a foreman in the hand-composing department of the      appellant at the relevant time.  The respondent’s union     objected to the said notice of change and approached the    Conciliation Officer under Section 12(1) of the I.D.  Act         which reads as under :- "12.  Duties of Conciliation      Officers.- (1) Where an industrial dispute exists or is      apprehended, the conciliation officer may, or where the     dispute relates to a public utility service and a notice     under Section 22 has been given shall, hold conciliation                       proceedings in the prescribed manner."

     The   Conciliation  Officer  took   the   dispute   in            conciliation within his discretion even though as  appellant’s concern was not a public utility service it was          not mandatory for the Conciliation Officer to start conciliation proceedings.  As the report of the Conciliation  Officer submitted to the State Government shows, he invited    the management and the respondent’s union for preliminary    discussions on 14.4.1982 in his office and thereafter the  matter was adjourned during conciliation from time to time.

     It  can,  therefore, be said that by 14th April,  1982       the matter was taken up for investigation and thus the     conciliation proceedings had commenced.  It is also well established on the record of the case that the parties could      not come to any settlement with the result that on 22nd  June, 1982 the investigation was closed by the Conciliation Officer at 4.35 p.m.  at Nagpur.  Immediately thereafter the   appellant passed the impugned order of termination against      the respondent and others on the very same day i.e.  on     22.6.1982 at 5.00 p.m.  The said order was placed on the      notice board of the appellant’s office at Nagpur on the       evening of that day.  It is not in dispute between the   parties that thereafter the Conciliation Officer submitted         his report to the Government which reached the State                                     Government on 13.8.1982.

     On  the  aforesaid facts, the question arises  whether    the impugned termination order dated 22.6.1982 was passed  during the pendency of the conciliation proceedings.  It is  not in dispute between the parties that before passing such    an order no express permission in writing was obtained by     the appellant from the Conciliation Officer.  The Labour  Court, the Industrial Court and the learned Single Judge of              the High Court have taken the view that because investigation was closed by the conciliator by 4.35 p.m.  on           22.6.1982, immediately thereafter the conciliation proceedings could be said to have ended and were not pending     before him.  Consequently at 5.00 p.m.  on that very day     when the appellant issued the impugned order, it did not    violate Section 33 of the I.D.  Act.  While, on the other   hand, the Division Bench of the High Court in the impugned          judgment has taken the view that merely because the       conciliator closed the investigation in the evening of   22.6.1982 till he prepared his report as per Section 12(4)            of the I.D.  Act and till that report reached the     Government, conciliation proceedings were deemed to have  continued and had not got terminated till 13th August, 1982            and as in the meantime on 22.6.1982, the impugned termination order was passed without following the procedure    of Section 33(1) of the I.D.  Act it got vitiated in law.

     Under  these  circumstances,  a moot  question  arises        whether the impugned retrenchment order was passed on

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 22.6.1982 during the pendency of conciliation proceedings.   It cannot be disputed that the impugned order was directly connected with the matter in dispute before the Conciliation     Officer wherein the question of legality of notice under Section 9-A of the I.D.  Act was under consideration for the purpose of arriving at any settlement between the parties in  this connection.  The impugned order had definitely altered         to the prejudice of the respondent his conditions of  service.  It was not a case of retrenchment simpliciter but  was a consequential retrenchment on the introduction of the     scheme of rationalisation as contemplated by Section 9-A            read with Schedule IV item no.1 of the I.D.  Act.

     We  shall refer to these provisions in greater  detail       later on while considering the question of legality of     notice under Section 9-A of the I.D.  Act.  For the time         being, it is sufficient to note that the question of     violation of Section 33(1) of the I.D.  Act has a direct    nexus with the further question whether on 22.6.1982 when      the impugned termination order was passed, conciliation        proceedings were pending before the authority or not.

     In order to answer these questions, it is necessary to   note sub- section (4) of Section 12 of the I.D.  Act which  reads as under :  "(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after      the close of the investigation, send to the appropriate    Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to     the dispute and for bringing about a settlement thereof,             together with a full statement of such facts and   circumstances, and the reasons on account of which, in his              opinion, a settlement could not be arrived at."

     A  mere  look  at  this provision shows  that  if  the   Conciliation Officer finds during conciliation proceedings       that no settlement is arrived at between the disputing     parties, then after closing the investigation he has, as soon as practicable, to send to the appropriate Government a         full report setting forth the steps taken by him for     ascertaining the facts and circumstances relating to the         dispute and has also to mention all other details as   required to be mentioned in the report under Section 12(4)                                              of the I.D.Act.

     The aforesaid statutory requirements leave no room for  doubt that after closing the investigation and after having     arrived at the conclusion that no settlement is possible   between the parties, the Conciliation Officer has to spend some more time before submitting his detailed written report about failure of consideration for information and necessary       action by the State Government.  In the very nature of     things, therefore, such requirement will take at least a       couple of days, if not more, for the conciliator after           closing the investigation to enable him to send an          appropriate report to the State Government.  It is,       therefore, obvious that on 22.6.1982 when by 4.35 p.m.    the Conciliation Officer declared that settlement was not               possible between the parties and he closed the   investigation, neither his statutory function did not come            to an end nor did he become functus officio.  His jurisdiction had to continue till he submitted his report as  per Section 12(4) to the appropriate Government.  Even such   preparation of the report and sending of the same from his end to the appropriate Government would obviously have taken

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at least a few days after 22.6.1982.  It must, therefore, be          held that the conciliator remained in charge of the conciliation proceedings at least for a couple of days after    22.6.1982.  It is, therefore, difficult to appreciate how    within half an hour after the closing of investigation by the conciliator and before his getting even a breathing time      to prepare his detailed written report about failure of     conciliation to be sent to the Government as per Section   12(4), the appellant could persuade itself to presume that    conciliation proceedings had ended and, therefore, it was    not required to follow the procedure of Section 33(1) and   straightaway could pass the impugned order of retrenchment within 25 minutes of the closing of the investigation by the        conciliator on the very same day.  It is difficult to  appreciate the reasoning of the Labour Court that after the       closer of investigation the conciliator became functus officio and the management could not have approached him for   express written permission to pass the impugned order.  It      is easy to visualise that even on the same day i.e.  on    22.6.1982 or even on the next day, before the conciliator   had time even to start writing his report, such an express permission could have been asked for by the appellant as the     conciliator by then could not be said to have washed his     hand off the conciliation proceedings.  He remained very  much seized of these proceedings till at least the time the  report left his end apart from the further question whether     conciliation proceedings could be said to have continued  till the report reached the State Government.  Thus, on the          express language of Section 12(4) the conclusion is     inevitable that closer of investigation by 4.35 p.m.  on      22.6.1982 did not amount to termination of conciliation      proceedings by that very time.  The argument of learned   counsel for the appellant was that closer of investigation        automatically amounted to termination of conciliation proceedings.  This argument proceeds on a wrong premise that    closer of investigation by the conciliator is the same as   closer of conciliation proceedings.  The legislature while   enacting Section 12(4) has deliberately not used the words ‘closer of conciliation’ but, on the contrary, provided that after closer of investigation something more was required to  be done by the conciliator as laid down under Section 12(4)    before he can be said to have done away with conciliation    proceedings earlier initiated by him.  On this conclusion     alone the decision rendered by the Division Bench of the      High Court that the impugned order of termination dated  22.6.1982 was issued by the appellant without following the        procedure of Section 33(1) of the I.D.  Act has to be                                                   sustained.

     But  even  that  apart, sub-sections (1)  and  (2)  of     Section 20 of the I.D.  Act also become relevant in this         connection.  They read as under :- "Commencement and     conclusion of proceedings- (1) A conciliation proceeding     shall be deemed to have commenced on the date on which a notice of strike or lock-out under Section 22 is received by         the conciliation officer or on the date of the order        referring the dispute to a Board, as the case may be.

     (2)  A conciliation proceeding shall be deemed to have      concluded- (a) where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the    dispute;  (b) where no settlement is arrived at, when the        report of the conciliation officer is received by the    appropriate Government or when the report of the Board is     published under Section 17, as the case may be ;  or (c)

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when a reference is made to a Court, [Labour Court, Tribunal   or National Tribunal] under Section 10 during the pendency                                 of conciliation proceedings.

     (Emphasis                                    supplied)

     A  mere look at the aforesaid provisions shows that in   cases of public utility services referred to in Section 22  (2) of the I.D.  Act, the conciliation proceedings shall be    deemed to have commenced on the date on which a notice of        strike or lockout under Section 22 is received by the       Conciliation Officer.  That deals with commencement of   mandatory conciliation proceedings as laid down by Section  12(1) read with Section 20(1).  But when we come to Section           20(2), it becomes obvious that the legislature has            introduced by way of legal fiction an irrebutable       presumption  as  per sub-clause (b) of  Section  20(2)   that when during conciliation proceedings no settlement is arrived at between the parties, the conciliation proceedings shall be deemed to have concluded when the failure report of      the Conciliation Officer is received by the appropriate Government.  Consequently, the legislative intention becomes  clear that conciliation proceedings initiated under Section    12(1) whether of a discretionary nature or of a mandatory   nature shall be treated to have continued and only to have    concluded when the failure report reaches the appropriate  Government.  As noted earlier, it is not in dispute between        the parties that after the closer of investigation on   22.6.1982 when the conciliator sent the failure report, it  reached the State Government only on 13.8.1982.  Therefore,   it has to be held that the conciliation proceedings in the   present case had not got terminated and got concluded only      on 13.8.1982 as per the aforesaid statutory presumption   created by the legal fiction provided in Section 20(2)(b).    Therefore, as a necessary corollary, it must be held that  these conciliation proceedings were pending till 13.8.1982.      It is axiomatic that conciliation proceedings which are          deemed not to have concluded must be deemed to have  continued or remained pending.  That which is not concluded  is pending, equally that which is pending cannot be said to                                                be concluded.

     Learned counsel for the appellant tried to salvage the  situation by submitting that the deeming fiction created by       Section 20(2) of the I.D.  Act referred to only deemed    conclusion of the proceedings, but had nothing to do with          the pendency of the proceedings.  To highlight this submission, he invited our attention to Section 22(1)(d) and  Section 22(2)(d) as well as Section 23(b) of the I.D.  Act.     We fail to appreciate how these provisions can be of any              avail to him.  Section 22(1)(d) reads as under:

     "during  the pendency of any conciliation  proceedings       before a conciliation officer and seven days after the                             conclusion of such proceedings."

     Similar  is the wording of Section 22(2)(d).   Section     23(b) contains similar phrase in connection with pending    proceedings before the Labour Court or the Tribunal.  All            these provisions show that even after the pending      proceedings are concluded for further period of time no strikes or lock- outs can be permitted to take place between   the parties.  But the said provisions do not indicate that pendency of proceedings is a concept which is different from

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  the conclusion of such proceedings.  On the contrary, the     conclusion of proceedings puts an end to the pendency of      such proceedings.  Learned counsel for the appellant in    support of his contention seeking a dichotomy between the      concept of pendency and concept of deemed conclusion of     proceedings placed strong reliance on a decision of this  Court in Chemicals & Fibres of India Ltd.  vs.  D.G.  Bhoir   & Ors.  [(1975) (4) SCC 332].  In that case this Court was  concerned with entirely a different situation under Section      2A of the I.D.  Act after it was brought on the Statute   Book.  As per this provision, an individual dispute raised by workman who had suffered dismissal from service was to be  considered as an ‘industrial dispute’ within the meaning of    the relevant provisions of the Act so that such a dispute   could be conciliated upon, arbitrated or could be referred for adjudication before competent authorities under the Act.     For that limited purpose, an individual workman could be     said to have raised an industrial dispute.  The question   before this Court was whether raising of such a dispute by     an individual workman which was not sponsored by a large    body of workmen could attract Section 33 of the I.D.  Act       even qua other workmen who had nothing to do with this  individual dispute.  Answering the question in negative, it   was held by this Court that the fiction created by Section  2A had a limited effect and could not be pressed in service        for applicability of Section 33(1) in connection with   lock-out qua other workmen who were not the parties to the   said industrial dispute.  In that case during the pendency of such individual dispute the appellant company before this     Court discharged about 312 of its employees and filed 12  applications before the Industrial Tribunal for approval of  such a discharge on the ground that a reference was pending before it.  The question was whether these applications were       maintainable for approval under Section 33(1) when the dispute which was pending before the Industrial Tribunal was  one under Section 2A of the I.D.  Act.  In this connection,  it was held by this Court that the legal fiction created by   Section 2A had a limited effect and those workmen who were     not parties to such a dispute, if had gone on strike, it could not be said that their strike was necessarily illegal.               In para-5 of the report, it was observed that:

     "..While  there  is  justification  for  preventing  a   strike when a dispute between the employer and the general    body of workmen is pending adjudication or resolution, it    would be too much to expect that the Legislature intended     that a lid should be put on all strikes just because the           case of a single workman was pending.." We fail to    appreciate how this decision can be pressed in service by   learned counsel for the appellant while construing Section 20(2) of the I.D.  Act.  That Section, as noted earlier, has   created an irrebutable presumption by way of legal fiction     and that presumption covers the very question as to when  conciliation proceedings once commenced can be said to have    concluded.  In other words, when they can be said to have not remained in pending.  As seen earlier, the legal fiction which is created for that purpose by Section 20(2) has to be  given its full effect.  As it is well- settled while giving  effect to the legal fiction for the purpose for which it is      created by Legislature it has to be given full play for fructifying the said legislative intention.  We cannot allow  our imagination to boggle on that score.  It is, of course,  true as laid down by the Constitutional Bench of this Court      in the case of Bengal Immunity Co.  Ltd., vs.  State of Bihar and Others (AIR 1955 SC 661 at 680).  Das, Actg.  C.J.

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  speaking for the Court in Para 31 of the report, made the     following pertinent observations :  ".Legal fictions are created only for some definite purpose.  Xxxxxx xxxxx xxxxxx a legal fiction is to be limited to the purpose for which it           was created and should not be extended beyond that                                          legitimate field.."

     However,  as  noted earlier, legal fiction created  by   Section 20(2) is for the purpose of laying down as to till        what stage conciliation proceedings can be said to be     pending and when they can be said to have concluded.  On  that basis if it is held that conciliation proceedings once  validly started under Section 12(1) of the I.D.  Act can by         way of an irrevocable presumption be treated to have    continued till the failure report reached the appropriate         Government, during the interregnum of necessity such       conciliation proceedings have to be treated as pending  before the conciliation officer.  In fact, on these aspects   of the matter, we have a decision of this Court in Andheri     Marol Kurla Bus Service & Anr.  vs.  The State of Bombay    [AIR 1959 SC 841].  In that case a Bench of two judges of           this Court had to consider the question as to when conciliation proceedings can be said to have concluded under      the relevant provisions of this very Act.  In that case during the admitted pendency of conciliation proceedings the          management had dismissed the workman bus conductor.    However, the submission on the part of the management was that such dismissal was after the expiry of statutory period    of 14 days within which the conciliation proceedings once started had to be concluded and as 14 days were already over the dismissal did not attract Section 33(1) and consequently the management could not be penalised under Section 31(1) of   the I.D.  Act which lays down as under:  "Any employer who contravenes the provisions of Section 33 shall be punishable  with imprisonment for a term which may extend to six months     or with fine which may extend to one thousand rupees, or                                                  with both."

     In  the  aforesaid  factual matrix of the  case,  this      Court in Andheri Marol Kurla Bus Service & Anr vs.  The        State of Bombay, (supra) had to consider the scope of     Section 33(1) read with Section 20(2)(b).  On a conjoint reading of these relevant provisions at page 841, paragraphs 4 & 5 of the report, J.L.  Kapur J., speaking for the Court,          made the following pertinent observations :  "..The        provisions of sub-s.  20(2) apply to all conciliation       proceedings  whether in regard to utility services  or          otherwise.  All conciliation proceedings under this    sub-section shall be deemed to have concluded in the case       where no settlement is reached, when the report of the          Conciliation Officer is received by the appropriate   Government.  The conciliation proceedings therefore do not             end when the report under S.12(6) is made by the Conciliation Officer but when that report is received by the           appropriate Government.  It was contended that the    conciliation proceedings should be held to terminate when    the Conciliation Officer is required under S.12(6) of the Act to submit his report but the provisions of the Act above  quoted do not support this contention as the termination of    the conciliation proceedings is deemed to take place when  the report is received by the appropriate Government.  That is how S.20(2)(b) was interpreted in Workers of the Industry    Colliery Dhanbad v.  Management of the Industry Colliery,                             1953 SCR 428:  (AIR 1953 SC 88).

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     It  was next contended that on this interpretation the conciliation proceedings could be prolonged much beyond what was contemplated by the Act and the termination would depend        upon how soon a report is received by the appropriate Government.  It is true that S.12(6) of the Act contemplates     the submission of the report by the Conciliation Officer  within 14 days but that does not affect the pendency of the          conciliation proceedings and if for some reason the Conciliation Officer delays the submission of his report his     action may be reprehensible but that will not affect the  interpretation to be put on S.20(2)(b) of the Act.  Section  12 lays down the duties of the Conciliation Officer.  He is   required to bring about settlement between the parties and         must begin his investigation without delay and if no   settlement is arrived at he is to submit his report to the appropriate Government.  No doubt S.12 contemplates that the    report should be made and the proceedings closed within a  fortnight and if proceedings are not closed but are carried on, as they were in the present case, or if the Conciliation    Officer does not make his report within 14 days he may be guilty of a breach of duty but in law the proceedings do not          automatically come to an end after 14 days but only   terminate as provided in S.20(2)(b) of the Act.  (Colliery   Mazdoor Congress Asansol v.  New Beerbhoom Coal Co., Ltd.,                                       1952 Lab AC 219 (222)"

     The  aforesaid  decision, therefore, has  settled  the      controversy on this aspect by holding that conciliation      proceedings would terminate only as provided by Section      20(2)(b) of the Act.  Meaning thereby, till the failure             report reaches the appropriate State Government,  conciliation proceedings cannot be said to have terminated.   Hence, breach of Section 33(1) during the pendency of such    proceedings could attract penal liability of the employer     under Section 31(1) of the Act.  Learned counsel for the    appellant tried to submit that the aforesaid decision had    not considered the legal effect of the fiction created by      Section 20(2)(b) and its limited scope regarding deemed         conclusion of the conciliation proceedings which was         different from actual pendency of the proceedings as       required  by  Section  33(1).   It  is  difficult   to    appreciate this contention for the simple reason that the    relevant provisions of the Act to which our attention was    drawn by learned counsel for the appellant for submitting  that there was a difference between pendency and conclusion  of proceedings do not advance the case of the appellant, as   we have seen earlier, nor can it be said that any relevant provisions of the Act were not noticed by the Division Bench     of this Court which decided the case referred in Andheri     Marol Kurla Bus Service & Anr.  vs.  The State of Bombay        (supra).  On the contrary, we find that the aforesaid  decision has taken a correct view on the question posed for       our consideration in the present case.  In view of the    aforesaid discussion, therefore, there was no escape from   the conclusion to which the Division Bench in the impugned         judgment reached that on 22.6.1982 when the order of          retrenchment was passed against the respondent, the       appellant-management  had committed breach of  Section         33(1) of the Act by not passing the said order after      obtaining express previous permission in writing of the            Conciliation Officer before whom the conciliation     proceedings must be held to be pending in the evening of  22.6.1982.  The impugned retrenchment order must be held to  be illegal being contrary to the aforesaid provision of the

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          I.D.  Act.  Point No.2 is, therefore, answered in       affirmative against the appellant and in favour of the respondent.  Point No.3:  So far as this point is concerned,       we have to turn to Section 9- A of the I.D.  Act.  The      relevant provision thereof reads as under :  "Notice of    change.-No employer, who proposes to effect any change in       the conditions of service applicable to any workman in      respect of any matter specified in the Fourth Schedule, shall effect such change,- (a) without giving to the workman         likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be     effected ;  or (b) within twenty-one days of giving such                                                     notice’’

     A  mere look at the aforesaid provision shows that  if  an employer proposes to effect any change in the conditions       of service applicable to any workman in respect of any  matter specified in the Fourth Schedule, such change has to  be preceded by the procedure laid down in the said section.

     When  we turn to the Fourth Schedule of the I.D.  Act,   we find mentioned therein various conditions of service of   workmen.  The said schedule with all of its items reads as                                                    follows :

     "CONDITIONS  OF SERVICE FOR CHANGE OF WHICH NOTICE  IS                                                  TO BE GIVEN

     1.   Wages, including the period and mode of  payment;    2.  Contribution paid, or payable, by the employer to any     provident fund or pension fund or for the benefit of the       workmen under any law for the time being in force;  3.    Compensatory and other allowances;  4.  Hours of work and      rest intervals;  5.  Leave with wages and holidays;  6.      Starting, alteration or discontinuance of shift working       otherwise than in accordance with standing orders;  7.   Classification by grades;  8.  Withdrawal of any customary              concession or privilege or change in usage;  9.    Introduction of new rules of discipline, or alteration of        existing rules except insofar as they are provided in   standing orders;  10.  Rationalisation, standardisation or improvement of plant or technique which is likely to lead to    retrenchment of workmen;  11.  Any increases or reduction  (other than casual) in the number of persons employed or to    be employed in any occupation or process or department or        shift [not occasioned by circumstances over which the                                    employer has no control]"

     So  far  as  item  nos.1-9 and 11  are  concerned,  it becomes obvious that before any such change in conditions of service of the workmen is to be effected, as a pre-condition for such proposed change, notice under Section 9-A has to be      issued;  without complying with such a pre-condition of          notice, proposed change would not legally come into   operation.  We are directly concerned with item no.  10 of   this Schedule.  It, therefore, becomes obvious that before any rationalisation, standardisation or improvement of plant    or technique is to be resorted to by any management if by        such an exercise retrenchment of workmen is likely to        result, then before introducing such rationalisation,       standardisation  or improvement of plant or technique,   as the case may be, a prior notice under Section 9-A is to  be issued to the workmen who can get an opportunity to show that they may not be retrenched because of the new scheme of rationalisation etc.  which is in the offing and can suggest

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   ways and means available to the management to avoid such            proposed retrenchment of the workmen despite such introduction of a new scheme.  Consequently, it must be held  on the very wordings of Section 9-A read with item no.10 of          Fourth Schedule "that any management which seeks to  introduce a new working pattern for its existing work force  by any future scheme of rationalisation, standardisation or    improvement of plant or technique which has a tendency to    lead to future retrenchment of workmen" has to give prior  notice of proposed change.  Therefore, it must be held that    notice under Section 9-A must precede the introduction of rationalisation concerned, it cannot follow the introduction   of such a rationalisation.  In the present case, it is not         in dispute between the parties that in the composing         department of the appellant where the respondent was       working, composing work was earlier being done by hand  i.e.  manually.  That was the existing condition of service  of the respondent.  By substitution of that type of work by      mechanical work having resort to photo type composition  through machine, the then existing service condition of the               respondent was bound to be affected adversely.        Consequently, before introducing such a change in the       condition  of service of the respondent by  installing      photo type composing machine, introduction of which was directly likely to lead to retrenchment of the respondent, a     notice under Section 9-A was a must before commissioning           such a photo type machine at the work place of the    appellant.  It is not in dispute between the parties that       such a photo type machine was already installed by the          appellant in January 1981.  Learned counsel for the       appellant seeks to contend that it was installed on an     experimental basis.  Even granting that, the evidence on record clearly established that by November, 1981 because of   the successful working of the photo type composing machine       it was felt by the appellant that respondent and other    compositors working in the hand composing department were  rendered surplus.  Of course, the appellant on humanitarian         ground tried to shift them to its another concern at    Jalgaon, but those transfer orders were held to amount to   ‘unfair labour practice’ on the part of the appellant when   the Industrial Court on the complaints of these transferee       workmen held that such transfer orders would amount to     ‘unfair labour practice’ being illegal at law.  Thus the       attempt on the part of the appellant to transfer these  excess workmen from November, 1981 on the admitted position   that they had become surplus in the composition department at Nagpur because of the successful installation and working  of the photo type composing machine at the premises, became             abortive.  Consequently, from November, 1981 the   installation of the photo type machine ceased to remain an     experimental measure but became a stark reality and this   machine had necessarily a tendency to displace the workmen   who were earlier working in the hand composing department. Thus, at least from November, 1981 scheme of rationalisation   had come to stay in composing department of the appellant.  Under these circumstances, even accepting the contention of learned counsel for the appellant that the likelihood of the respondent and other workmen being retrenched because of the        aforesaid machine was not a realised possibility from      January, 1981 at last became a certainty from November,   1981.  In fact the Labour Court has also come to this very       conclusion in paragraph 13 of its judgment wherein the  Labour Court on the admitted position on record has held as                                                      under :

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     ".The  management  had  transferred   about  11   hand    compositors including the complainant to Jalgaon by order        dated 4.11.81.  It appears that at that time only the       management was ready to get the work of composing done exclusively by that photo type setting machine and hence the      services of hand compositors were no longer required at     Nagpur.  In fact at least that time the notice of change       ought to have been given by the respondent because the        services of hand compositors were not useful and were transferred only in November 1981 obviously because the work   of composing was done on the photo type setting machines."

     The  aforesaid finding of fact which was confirmed  by  the Revisional Court as well as the learned Single Judge of    the High Court leaves no room for doubt that by 4.11.1981    the scheme of rationalisation had already come into force            and that scheme had a direct nexus and a realised       possibility of making the respondent and other workmen  surplus liable to retrenchment as surplus staff.  Once that happened, it becomes obvious that there remained no occasion thereafter for the appellant-management to resort to Section  9-A of the Act belatedly by giving notice of change only in February, 1982.  The appellant in this connection had missed  the bus.  It was a futile attempt to lock the stables after                                           horses had bolted.

     As  noted  earlier, on the scheme of Section 9-A  read with item 10 of the Fourth Schedule, before introducing such a new scheme of rationalisation which had a likelihood and a    tendency to affect the existing service conditions of the       workmen, a notice under Section 9-A was required to be      issued prior to the installation of the photo composing machine.  Such a notice could have been sent before January,   1981 when such a machine was brought in the premises as an   experimental measure or at least before 4.11.1981 when the  same was continued to be installed as a confirmed necessary       component of machinery for printing at the appellant’s       premises at Nagpur.  If such a notice was given to the    respondent - workman and other workmen similarly situated     they could have persuaded the appellant to resort to any  other type of rationalisation or to absorb them on suitable     jobs in the same premises in any other department of the        appellant at Nagpur.  That opportunity was never made        available to the respondent.  Therefore, notice under       Section  9-A issued after installation of the  machine and after bringing into force the rationalisation scheme was  ex facie a stillborn and incompetent notice and was clearly  violative of the provisions of Section 9-A of the Act which      amounted to putting the cart before the horse.  Such an   incompetent and illegal notice under Section 9-A could not    legally enable the appellant to terminate the services of       the respondent.  We may mention at this stage that the   impugned termination order dated 22.6.1982 clearly recites                                                 as follows :

     "In  the  notice  given  on 25th  March,  1982,  under        Section 9-A of the Industrial Disputes Act, 1947, the        Management had noted that it may require to reduce 25       workmen  from  service for the purpose of  introducing                     new technology in the composing section.

     The  Conciliation Officer has noted in his order dated    22.6.82 that the proceedings started on the basis of this          notice have proved unsuccessful and, therefore, the

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     Management has now decided to terminate with immediate                             effect the following 25 workmen.

     Name  of  Workmen  Post  1.   Shri  Maniram  Choudhary      Foreman 2.  Shri Shankarprasad Pathak Foreman 3.  to 25                                              Xxxxxxxxxxxxxx" ---------------------------------------------------------------------------------

     That   is  how  the   listed  workmen,  including  the         respondent herein, were sought to be discharged from       service.  Thus the foundation of the impugned order of  discharge is the notice under Section 9-A dated 25th March,   1982.  Once that foundation is knocked off as incompetent,  illegal and uncalled for the entire edifice of retrenchment            order against the respondent falls to the ground.

     It  may  also  be  noted at this  stage  that  by  two  decisions rendered by Bench of three learned Judges of this     Court in connection with the time for issuance of notice   under Section 9-A read with item 10 Schedule IV with which     we are concerned in the present case it has been clearly      ruled that such notice must precede the introduction of    rationalisation scheme.  We may usefully refer to them at this stage.  In the case of M/s.  North Brook Jute Co.  Ltd.   & Anr.  vs.  Their Workmen (1960 (3) S.C.R.  364), a three       Judge Bench of this Court had to consider the question    whether in a reference regarding proposed introduction of    rationalisation scheme which was preceded by notice under         Section 9-A of the I.D.  Act, such a scheme could be        actually introduced pending reference proceedings and       whether  such  an  act on the part of  the  management         could be treated to be illegal entitling the workmen   affected by such an introduction to go on strike and still   earn wages for the strike period.  Answering this question   in affirmative it was held by this Court that after notice          under Section 9-A of the I.D.  Act when a scheme of        rationalisation was said to be introduced but was not       actually  introduced  it could not be introduced  till         the dispute regarding such proposed introduction was resolved by the competent Court.  Dealing with the scheme of       proposed rationalisation as envisaged by item no.10 of          Schedule IV of the I.D.  Act it was observed that :      "Rationalisation which was introduced had therefore two    effects- first that some workers would become surplus and would face discharge;  and secondly, the other workmen would        have to carry more workload.  The introduction of the   rationalisation scheme was therefore clearly an alteration    of conditions of service to the prejudice of the workmen. The alteration was made on the 16th December, when reference  as regards the scheme had already been made and was pending  before the Industrial Tribunal.  The Tribunal has therefore   rightly held that this introduction was a contravention of                                                     s.  33."

     The  aforesaid decision, therefore, has clearly  ruled     that introduction of rationalised scheme by itself would amount to alteration of conditions of service of the workmen      to their prejudice.  It, therefore, follows that before effecting such a change, meaning thereby, before introducing such a rationalisation scheme which has a tendency to change   the conditions of service of workmen, notice under Section     9-A as a condition precedent becomes a must.  If learned      counsel for the appellant is right, that machine can be  introduced on experimental basis first or even after it has already worked for some time and is required to be continued

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as a full-fledged machine, as and when the employer decides         to terminate the services of the workmen as a direct     consequence of such introduction of machine, he can give   notice under Section 9-A of the Act at any such time, then    the very scheme of Section 9-A read with Schedule IV item     no.10 of the I.D.  Act would be rendered ineffective and  inoperative.  The purpose of issuing such a notice prior to  the introduction of the scheme of rationalisation would get          frustrated and then there would remain no effective       opportunity for the conciliator to try to arrive at an    amicable settlement regarding the dispute centering round   the proposed introduction of the scheme of rationalisation    which is likely to result in the retrenchment of workmen.      Equally there would remain no opportunity for the State Government on receipt of failure report from the conciliator      to make a reference of such live industrial dispute for        adjudication by the competent Court on merits.  It is        obvious that when such dispute regarding the proposed       introduction of the rationalisation scheme is referred      for adjudication of the competent Court, the said Court   after hearing the parties and considering the evidence can        come to the conclusion whether the proposed scheme is   justified on facts or not and whether any violation of the    provisions of Section 9-A had resulted into illegality of    the consequential orders of retrenchment.  Such competent    Court can also accordingly pass appropriate consequential orders directing the management to withdraw such a scheme of   rationalisation or in any case, can order reinstatement of workmen with proper back-wages if such retrenchment is found       to be illegal on account of failure to comply with the          provisions of Section 9-A of the Act.  The question regarding the stage at which notice under Section 9-A can be issued in connection with proposed scheme of rationalisation   which has likelihood of rendering existing workmen surplus     and liable to retrenchment as mentioned in item no.10 of    Schedule IV of the I.D.  Act was once again examined by a three judge bench of this Court in Hindustan Lever Ltd.  vs.     Ram Mohan Ray & Ors.  (1973 (4) SCC 141).  In that case,    this Court was concerned with a scheme of rationalisation  and re-organisation which were proposed to be introduced by   Hindustan Lever Ltd., appellant before this court, and for    which a prior notice under Section 9-A before introducing   such re- organisation scheme was issued to the workmen but         which had no tendency or likelihood of displacing or retrenching them.  It was the contention of the workmen that      even for such a scheme a notice under Section 9-A was a   must.  Examining the scheme of reorganisation in question, it was held that once the scheme was not likely to result in retrenchment of any workman Section 9-A read with item no.10     of Schedule IV did not get attracted on the facts of the            case.  In this connection the following pertinent     observations on the scheme of Section 9-A read with item     no.10 of Schedule IV were made by Alagiriswami J., while       dealing with the contention of learned counsel for the                                                    workmen :

     "He    also    urged     that   rationalisation    and standardisation per se would fall under item 10 even if they  were not likely to lead to retrenchment of workmen and only    improvement of plant or technique would require that they      should lead to retrenchment of workmen in order to fall         under item 10.  A further submission of his was that   standardisation merely meant standardisation of wages.  We are not able to accept this argument.  It appears to us that the arrangement of words and phrases in that item shows that

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  only rationalisation or standardisation or improvement of  plant or technique, which is likely to lead to retrenchment      of workmen would fall under that item.  In other words,  rationalisation or standardisation by itself would not fall under item 10 unless it is likely to lead to retrenchment of    workmen.  The reference to rationalisation at page 257 of     the report of the Labour Commission and the reference to  standardisation of wages in it are not very helpful in this         connection.  Standardisation can be of anything, not          necessarily of wages.  It may be standardisation of       workload,  standardisation of product, standardisation     of working hours or standardisation of leave privileges.   Indeed in one decision in Alembic Chemical Works Co.  Ltd.    v.  The Workmen, there is reference to standardisation of     conditions of service, standardisation of hours of work,         wage structure.  That case itself was concerned with   standardisation of leave.  The whole question whether this   reorganisation falls under item 10 depends upon whether it              was likely to lead to retrenchment of workmen."

     In  view of the aforesaid decision, it becomes obvious         that if the proposed scheme of rationalisation has a  likelihood of rendering existing workmen surplus and liable        to retrenchment, then item no.10 of Schedule IV would      squarely get attracted and would require as a condition    precedent to introduction of such a scheme a notice to be issued under Section 9-A by the management proposing such an    introduction of the scheme of rationalisation, but if the       proposed scheme is not likely to displace any existing    workmen then mere rationalisation which has no nexus with  the possibility of future retrenchment of workmen would not  attract item no.10 of Schedule IV and would remain a benign scheme of rationalisation having no pernicious effect on the    existing working staff.  In view of the aforesaid settled  legal position, there is no escape from the conclusion that the impugned notice dated 25th March, 1982 under Section 9-A   which was issued long after the actual installation of the photo composing machine had fallen foul on the touchstone of Section 9-A read with Schedule IV item no.10.  Such a notice        in order to become valid and legal must have preceded   introduction of such a machine and could not have followed   the actual installation and effective commission of such a     machine.  The decision rendered by the Division Bench in   this connection is found to be perfectly justified both on      facts and in law.  It must, therefore, be held that the      impugned termination or discharge of the respondent was  violative of the provisions of Section 9-A of the I.D.  Act   and he was discharged from service without the appellant’s   following the mandatory requirements of Section 9-A of the   I.D.  Act.  Effect of non-compliance of Section 9-A of the   I.D.  Act renders the change in conditions of service void  ab initio.  This legal position is well settled in the case        of Workmen of the Food Corporation of India vs.  Food     Corporation of India [(1985) (2) SCC 136], a three Judge   Bench of this Court, speaking through Desai J., in para 19    of the report, laid down as under :- "It is at this stage   necessary to examine the implication of Section 9-A of the   I.D.  Act, 1947.  As hereinbefore pointed out, Section 9-A  makes it obligatory upon an employer who proposes to effect    any change in the conditions of service applicable to any     workman in respect of any matter specified in the Fourth Schedule to give a notice of desired or intended change.  It      cannot do so without giving to the workman likely to be affected by the change, a notice in the prescribed manner of  the nature of the change proposed to be effected and within

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      21 days of giving such notice.  There is a proviso to                     Section 9-A which has no relevance here.

     Xxxxxx    xxxxx    xxxxx     Xxxxxxx    xxxxx    xxxxx

     Therefore,  obviously  a notice of change was  a  must      before introducing the change, otherwise it would be an   illegal change.  Any such illegal change invites a penalty   under Section 31(2) of the I.D.  Act, 1947.  Such a change which is punishable as a criminal offence would obviously be    an illegal change.  It must be held that without anything    more such an illegal change would be wholly ineffective."

     Point  No.3,  therefore,  is answered  in  affirmative       against the appellant and in favour of the respondent.

     Point  No.4:   It  has  to be kept in  view  that  the    present proceedings arise out of a complaint filed by the  respondent-workman alleging ‘unfair labour practice’ on the part of the appellant-management when it passed the impugned                           order of retrenchment against him.

     The  said complaint was moved under Section 28 of  the   Maharashtra Act.  The topic of ‘unfair labour practice’ is dealt with in Chapter VI of the said Act.  Section 26 is the  first section in the said chapter which provides as follows       :  "‘unfair labour practices:- In this Act, unless the   context requires otherwise, ‘unfair labour practices’ mean    any of the practices listed in Schedules II, III and IV."

     Section  27  lays down as follows :   "Prohibition  on   engaging in unfair labour practices:- No employer or union and no employee shall engage in any unfair labour practice."

     Section  28  lays down the procedure for dealing  with            complaints relating to ‘unfair labour practices’.    Sub-section (1) thereof provides as follows :- "(1) Where       any person has engaged in or is engaging in any unfair       labour practice, then any union or any employee or any     employer or any Investigating Officer may, within ninety     days of the occurrence of such ‘unfair labour practice’,     file a complaint before the Court competent to deal with    such complaint either under section 5, or as the case may                            be, under section 7, of this Act:

     Provided  that,  the Court may entertain  a  complaint after the period of ninety days from the date of the alleged  occurrence, if good and sufficient reasons are shown by the           complainant for the late filing of the complaint."

     It  is not in dispute in this case that the respondent       invoked the jurisdiction of the Labour Court which was       competent to deal with his complaint regarding ‘unfair     labour practice’, under items 1 (a), (b), (d) and (f) of    Schedule IV of the Maharashtra Act.  Section 7 of the Act  lays down the duties of Labour Court and states as under :-          "It shall be the duty of the Labour Court to decide  complaints relating to unfair labour practices described in   item 1 of Schedule IV and to try offences punishable under                                                   this Act."

     When we turn to Schedule IV item no.1, we find therein    listed number of heads of ‘unfair labour practice’s which

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can support any complaint thereunder.  The relevant clauses        of item no.1 of Schedule IV which were invoked by the respondent for supporting his complaint against the impugned retrenchment order were clauses (a), (b), (d) and (f).  Item          no.1 with all its sub-clauses reads as under :- "To               discharge or dismiss employees - (a) by way of       victimisation;   (b)  not  in good faith, but  in  the        colourable exercise of the employer’s rights;  (c) by  falsely implicating an employee in a criminal case on false   evidence or on concocted evidence;  (d) for patently false reasons;  (e) on untrue or trumped up allegations of absence  without leave;  (f) in utter disregard of the principles of   natural justice in the conduct of domestic enquiry or with     undue haste;  (g) for misconduct of a minor or technical    character, without having any regard to the nature of the   particular misconduct or the past record of service of the   employee, so as to amount to a shockingly disproportionate                                                 punishment."

     We  have, therefore, to see as to whether in the light    of our findings on point nos.2 and 3 the respondent could   rely upon any of these clauses of item no.1 of Schedule IV         in support of his complaint.  Now a mere look at the       aforesaid provision shows that an employee who makes a     grievance against order of discharge or dismissal passed  against him can invoke any of the listed clauses (a) to (g)        of item no.1 of Schedule IV.  Learned counsel for the appellant was, therefore, right when he contended that first it should be alleged by the complainant-employee that he was     discharged or dismissed from service by the employer and  then he has to further show whether such an order attracted   any of the clauses (a) to (g) of item no.1 of Schedule IV.       Learned counsel for the appellant, in this connection,  vehemently contended that item no.  1 of Schedule IV of the       Maharashtra Act deals with only punitive discharges or        dismissals and not any simpliciter discharge order or  termination order which is not passed by way of punishment. In order to support this contention, learned counsel for the  appellant relied upon principles of interpretation, namely,  the principle of noscitur a sociis as well as the principle        of ejusdem generis.  So far as the first principle of  interpretation is concerned, he referred to "Maxwell on The        Interpretation of Statutes", 12th Edition at page 289 dealing with the question regarding understanding associated     words in common sense.  The learned author in connection         with this principle has made the aforesaid pertinent           observations :  "Where two or more words which are       susceptible of analogous meaning are coupled together, noscuntur a sociis.  They are understood to be used in their     cognate sense.  They take, as it were, their colour from each other, the meaning of the more general being restricted      to a sense analogous to that of the less general.  (One application of this general principle is the ejusdem generis         rule, which is discussed in the next section of this                                                   chapter.)"

     It  becomes,  therefore,  obvious   that  before  this    principle of interpretation can be pressed in service, it  must be shown that both the words ‘discharge and dismissal’  are employed by the Legislature in Schedule IV item no.1 in     the same sense or that they are susceptible of analogous meaning.  This rule of construction in other words lays down  as follows :  "The meaning of a word is to be judged by the                                           company it keeps."

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     As held by this Court in the case of M.K.  Ranganathan & Anr vs.  Govt.  of Madras & Ors.  (AIR 1955 SC 604 at 609)   relying upon Privy Council decision in ‘Angus Robertson v.         George Day’, [(1879) 5 AC 63 at p 69 (E)]:  "It is a  legitimate rule of construction to construe words in an Act     of Parliament with reference to words found in immediate                                       connection with them".

     Keeping  in  view  this   well  settled  principle  of construction of statutes, let us see whether in the settings      of item no.1 clauses (a) to (g) the word ‘discharge’ as employed by the Legislature has meaning analogous to that of    the word ‘dismiss’.  When we have a close look at clauses     (a) to (g) of item no.1 of Schedule IV, we find that the  word ‘discharge’ is not intended by the Legislature to have    the same or analogous meaning as the word ‘dismiss’.  The  reason is obvious.  The word ‘dismiss’ necessarily connotes  an action of the employer who seeks to impose punishment on   his mis- conducting employee.  Such a punishment cannot be  imposed without following the principles of natural justice  and the relevant applicable rules of domestic inquiry.  But   the word ‘discharge’ is not necessarily confined to orders of termination by way of penalty only.  The word ‘discharge’    has wider connotations.  A mis-conducting employee facing      charges in a domestic inquiry may be punished by way of     imposing on him an order of dismissal which may make him  ineligible for any other employment but if it is found that    the charges which are proved are not that serious but the   employee would not deserve to be continued in service then        an order of discharge by way of lesser penalty can be       imposed on him.  Such an order would remain a punitive         discharge.  Thereby the employer wants to punish the  employee for his misconduct but does not want him to become ineligible for employment elsewhere considering less serious        nature of proved charges of misconduct against him in    domestic inquiry.  But that is not the end of the matter.  In service jurisprudence the term ‘discharge’ has assumed a       wider connotation and may include in its fold not only     punitive discharge orders but also simpliciter discharge  orders where the employer seeks to snap the relationship of  employer and employee but without any intention to penalise   the employee.  He does so because of exigencies of service       and employment conditions which may require him to say  goodbye to the employee but without any intention to punish   him.  Such simpliciter discharge orders can be illustrated                                                   as under :

     An  employee,  on  probation, may not be found  to  be       suitable and may not earn sufficient merit so as to be    confirmed in service.  Consequently, his probation may be      terminated and an order of discharge simpliciter can be passed against him.  There may also be other cases of single       discharge under the contract of employment for a fixed            period where an employee on efflux of time may be   terminated.  There may also be cases where an employee may        become surplus and would no longer be required by the       employer.  An order of retrenchment, therefore, may be      passed against him subject, of course, to following the  statutory requirements of Section 25-F and 25-G of the I.D.     Act if they are applicable.  These illustrations are not    exhaustive but they indicate such orders of discharge are        passed by an employer who does not want to punish the employees but still is not in a position to continue them in       service.  Such simpliciter discharge orders are also a           category of discharge orders.  Therefore, the word

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 ‘discharge’ as employed by the Legislature in item no.1 of  Schedule IV cannot necessarily be confined only to punitive   discharges as tried to be submitted by learned counsel for    the appellant.  Once we consider the words ‘discharge’ or  ‘dismissal’ as employed in the opening part of item no.1 by the Legislature in the light of various clauses representing different situations under which such discharge or dismissal orders are said to amount to ‘unfair labour practice’ on the     part of the employers, it becomes at once clear that the    Legislature was not contemplating only punitive discharge orders but was contemplating both types of discharge orders,   namely, punitive as well as non-punitive discharge orders.        The very first item (‘a’) deals with the discharge or        dismissal order passed by way of victimisation of the       employee.   It  is easy to visualise that an  employer   may like to dispense with the services of an employee who,  according to him, is a trouble maker.  He may not have been   involved in any misconduct as such still by way of putting  an end to his service on extraneous reasons, if an order of       discharge is passed it may remain simpliciter order of  discharge but if it is found based on extraneous reasons it    would be by way of victimisation.  Such a discharge order      may not necessarily be a punitive discharge order.  The    employer would not like to punish the employee for any of his misconduct but would not like him to continue in service as according to the employer he may be an undesirable person     not suitable to the management is for example a militant    trade union leader who, according to the employer, is any     how to be required to be sent out of service.  When such  type of discharge orders are passed by way of victimisation   they would be simpliciter discharge orders when not backed         up by relevant reasons.  It cannot be said that such     simpliciter discharge orders are not covered by item ‘1’     clause (‘a’) of Schedule IV.  Similarly clause (‘b’) may    contemplate a discharge order which is not passed in good   faith but in the colourable exercise of employer’s rights.   Thus, the employer may have merely a pretext to put an end to the service of the employee who may not have misconducted     himself at all.  Therefore, there will be no occasion to have any departmental inquiry against him as no charge could    be framed regarding any misconduct on his part.  Still if   such an undesirable employee is to be removed from service   then even though the simpliciter discharge order is passed  if it is shown that it is not in good faith but as a result of malafide intention of the employer, then such a discharge        order can also attract the category of ‘unfair labour  practice’ as enacted by the Legislature in item nos.  (‘a’)   and (‘b’).  Similar Legislature scheme is discernible from       clause (c) of item no.  1 which deals with an order of discharge or dismissal by falsely implicating an employee in  a criminal case on false evidence or on concreted evidence. In such a situation discharge or dismissal order may operate     as a penal order.  Similarly, clause (d) may cover cases which are orders of discharge or dismissal by way of penalty  as well as simpliciter discharge orders based on a patently         false reasons.  Clause (e) referring to discharge or    dismissal may cover both the cases of dismissal by way of    penalty on such grounds or discharge by way of penalty on    such grounds and equally a discharge order simplicitor on   account of false allegations of absence without leave.  So      far as Clause (f) is concerned, the first part squarely covers a case of dismissal or discharge by way of penalty as   it deals with such orders passed after conducting domestic  inquiry about the alleged misconduct of the employee but in  utter disregard of the principles of natural justice but so

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       far as the second part of clause (f) of item no.1 is   concerned, if an employee is dismissed with undue haste it   may be by way of penalty as in domestic inquiry apart from  following the principles of natural justice, sufficient and        reasonable opportunity to defend may be denied to the     employee and with undue haste the dismissal order may be passed.  That would obviously be a penal order but so far as   discharge order is concerned, it may also be passed by way  of penalty with undue haste but the said part of clause (f)           may equally cover those discharge orders which are simpliciter discharge orders not by way of penalty but still    being passed with undue haste on the part of the employer who may not be wishing to punish the employee but wishing to         say goodbye to the employee on the ground that he is  otherwise an unwanted person.  Such discharge orders passed  with undue haste may not necessarily be penal and still may   amount to ‘unfair labour practice’ if they are passed with    undue haste.  Clause (g) of item no.1 obviously refers to only discharge or dismissal orders which are penal in nature         as they have a direct linkage with misconduct of the                                                    employee.

     The  aforesaid resume of various clauses of item  no.1        of Schedule IV leaves no room for doubt that when the Legislature used the words ‘discharge’ or ‘dismissal’ of the   employees under circumstances enumerated in clauses (a) to    (g) in item no.1 of Schedule IV it contemplated dismissal       orders which obviously are penal in nature but it also   contemplated discharge orders which may either be penal or        non- penal in nature and still if any of the relevant clauses of item no.  1 got attracted in connection with such     discharge orders they would make the employer, author of     such discharge orders answerable for the alleged ‘unfair  labour practice’ permeating the passing of such simpliciter     discharge orders.  To recapitulate, in the present case,  respondent’s complaint is not that his discharge was by way  of penalty but his complaint is that the discharge order in his case was a result of victimisation and was not passed in  good faith but was passed on patently false reasons and was                   a result of undue haste on the part of the          appellant-employer.  Whether the said complaint was  justified on merits or not is a different matter but it can        not be said that such a complaint regarding non-penal  discharge order was dehors the scope and ambit of item no.1  of Schedule IV of the Maharashtra Act.  Before parting with    the discussion on this aspect we may mention that learned counsel for the appellant also relied upon the other rule of   interpretation, namely, rule of ejusdem generis.  The said                 rule of interpretation provides as follows :

     "When particular words pertaining to a class, category    or genus are followed by general words, the general words are construed as limited to things of the same kind as those  specified.  This rule which is known as the rule of ejusdem    generis reflects an attempt "to reconcile incompatibility  between the specific and general words in view of the other      rules of interpretation that all words in a statute are  given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be                                                superfluous".

     It  is  difficult to appreciate how this principle  of     interpretation can be invoked by learned counsel for the  appellant in connection with item no.1 of Schedule IV.  The   word ‘discharge’ is a general word.  It is followed by the

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   word ‘dismissal’ which contemplates only one category of cases or situations where penalty is imposed by the employer on the workmen concerned.  The rule of ejusdem generis would           have applied if the word ‘discharge’ represented a   particular species belonging to the genus reflected by the     general word ‘dismiss’.  This is a converse case where a   general word ‘discharge’ is followed by the word ‘dismiss’     which is of a particular nature or pertains to a limited           class or category of penal situations.  Obviously,   therefore, neither of them is a genus and nor of them is a        species of the very same genus.  The word ‘discharge’ connotes an entirely different category of orders comprising   of both simpliciter discharge orders not by way of penalty        as well as discharge orders by way of penalty but not     involving extremely pernicious results flowing from such        orders while the word ‘dismiss’ is purely an order of  penalty and that too of an extreme type.  Consequently, the   aforesaid rule of interpretation cannot be of any avail to  learned senior counsel for the appellant.  On the contrary, as seen by us earlier, the words ‘discharge’ and ‘dismissal’   as employed by the Legislature in item no.1 of Schedule IV      covered different types of situations and circumstances under which they are passed.  It is, therefore, not possible   to agree with the submission of learned senior counsel for   the appellant that unless the respondent shows that he was    discharged by way of penalty, he cannot invoke any of the                         clauses of item no.1 of Schedule IV.

     Before  leaving the discussion on this aspect, we  may   refer to a decision of this Court on which strong reliance     was placed by learned counsel for the appellant.  In the  decision of the Constitutional Bench of this Court in State   of Rajasthan & Anr.  vs.  Sripal Jain, (1964 (1) SCR 742),     this Court was concerned with the interpretation of Rule 244(2) of the Rajasthan Service Rules read with rule 31(vii) (a) of the Rules.  In the light of the said statutory scheme       of these Rules, the Court made the following pertinent                                               observations :

     "Held,  that  compulsory  retirement  provided  in  r.   31(vii)(a) is a compulsory retirement as a penalty and not      compulsory retirement of the other two kinds namely (1) Compulsory retirement on attaining the age of superannuation     and (2) compulsory retirement under r.244(2), neither of                                      which is a punishment."

     It  is  difficult to appreciate how the said  decision   rendered on the special scheme considered by this Court in that case can be of any assistance to learned counsel in the        present case.  The scheme with which we are concerned   contraindicates any such conclusion as tried to be pressed   in service by learned counsel in support of his contention            that the word ‘discharge’ is used synonymously or           analogously by the Legislature along with the word       ‘dismissal’.   It  is also well settled that the  word ‘discharge’ may not only be by way of penalty.  Discharge of  a probationer on unsuitability, as noted earlier, would not be by way of penalty.  Similarly, even in case of compulsory     retirement as laid down by a catena of decisions of this   Court in the context of the relevant statutory rules, this   action may not be penal.  In this connection, we may refer    to a decision of this Court in K.Kandaswamy vs.  Union of    India & Anr., (JT 1995 (7) S.C.  80), wherein it has been    observed that "..Compulsory retirement does not amount to      dismissal or removal from service within the meaning of

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 Article 311 of the Constitution.  It is neither punishment nor visits with loss of retiral benefits ;  nor does it cast                                                     stigma."

     Consequently, it cannot be held that wherever the word      ‘discharge’ is used in any statutory instrument it must         necessarily connote a penal discharge as tried to be submitted by learned counsel for the appellant.  In the case of High Court of Judicature at Patna vs.  Pandey Madan Mohan   Prasad Sinha & Ors.  [(1997) 10 SCC 409], it has been held          by the Bench of this Court that if a probationer is    discharged on the ground of unsuitability, the said order can be challenged only on the ground that it is arbitrary or   punitive.  If it is not punitive then such an order cannot           be challenged at all.  It is further observed that principles of natural justice have no application in case of   termination of services of a probationer during the period    of probation since he has no right to hold that post.  In            such case, it is obvious that discharge of such a probationer on the ground of unsuitability cannot be treated                                  to be a punitive discharge.

     Once  this  ground  is cleared, the arena  of  contest      between the parties becomes well defined.  It has to be pleaded and proved by the respondent-complainant that though   the order of termination or retrenchment was not passed by  way of penalty by the appellant, it attracted all or any of the clauses (a),(b),(d) & (f) of item no.1 of Schedule IV as his complaint was based on these clauses only.  In the light  of the evidence which is on record and on which there is no       dispute between the parties, it becomes clear that the  appellant wanted to switch over to the process of composing   by utilising photo type-setting machine and in the process  the hand composing department engaging respondent and other  workmen had to be wound up.  That naturally resulted in the         employees in the erstwhile hand composing department         becoming excess and surplus.  That is the reason why       impugned notice under Section 9-A of the I.D.  Act was    issued to the respondent and other workmen and ultimately          resulted in the impugned retrenchment order.  It is    difficult to appreciate how such an action on the part of      the appellant can be treated to have been the result of  victimisation.  The respondent was not being victimised for   any extraneous reason.  On the contrary, it was based on a    genuine factual reason.  Hence clause (a) of item no.1 of       Schedule IV is out of picture.  Parameters of the term  ‘victimisation’ have been considered by a three Judge Bench   of this Court in the case of Colour-chem Limited vs.  A.L.    Alaspurkar & Ors.  [1998 (1) Scale 432], where one of us,    S.B.Majmudar J., speaking for the Bench in para 13 of the   report observed that the term ‘victimisation’ is a term of   comprehensive import.  Thus, if a person is made to suffer      by treatment, it would amount to victimisation.  On the  facts of the present case, therefore, it is not possible to hold that the impugned discharge of the respondent was based on non-germane or extraneous reasons or it was passed with a       view to make the respondent suffer for no real reason.

     It  is,  therefore,  not possible to  agree  with  the        reason of the Division Bench of the High Court in the    impugned judgment that the action of the appellant was by    way of victimisation of the respondent.  Item no.1 clause   (a) of Schedule IV, therefore, does not apply to the facts                                         of the present case.

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     On  a  parity of reasoning it has to be held that  the   discharge of the respondent from service cannot be said to       be not in good faith but in the colourable exercise of employer’s rights.  It cannot be gainsaid that the appellant had good reason to discharge the respondent who was rendered          surplus in hand composing department because of the introduction of the machine in question.  It is difficult to impute any bad faith to the appellant as the appellant tried     its best to provide alternative job to the respondent at           Jalgaon but the said offer was not accepted by the  respondent and, on the contrary, the transfer order was got   declared illegal and an act of ‘unfair labour practice’ in  proceedings culminating before the Tribunal.  Clause (b) of   item no.1 of Schedule IV, therefore, is also not attracted        on the facts of the present case.  The third prank of      respondent’s complaint pertains to the applicability of clause (d) of item no.1 of Schedule IV.  The said clause can           be attracted only if it is shown that the impugned termination was for patently false reasons.  It is difficult     to appreciate how the Division Bench persuaded itself to  hold that the said clause was attracted on the facts of the        present case.  The appellant had a genuine reason for           terminating the services of the respondent as hand       composition department had become redundant on account of the introduction of the machine in question.  It is true, as submitted by learned counsel for the respondent, that the  impugned retrenchment order dated 22.6.1982 showed that the  management, as per notice under Section 9-A, had noted that     it may require to reduce 25 workmen from service for the purpose of introducing new technology.  It is also true that  the new technology was already introduced by the management  months prior to the day of the termination order dated 22nd           June, 1982, to be precise from January, 1981 on an   experimental basis as submitted by learned counsel for the appellant and on regular basis at least from November, 1981.    Still it cannot be held that the proposed termination was   not based on real reason or was effected on patently false   reasons.  If no such machine was ever introduced and still   such a ground was made out for passing the impugned order,   then it could have been said that the impugned termination    was passed on patently false reasons.  The patently false    reason would be one which has no existence at all in fact         and is a mere pretext or an excuse.  Such is not the    situation in the present case.  It may be that the reason  given may not be strictly accurate in the sense machine was    already introduced and was not likely to be introduced by  the time notice under Section 9-A was given followed by the         impugned termination order.  That may have effect of   non-compliance of the provisions of Section 9-A.  The said    notice, as we have seen earlier, on that score may become    inoperative or illegal.  Still the reason for termination         cannot be said to be patently false.  We, therefore,    disagree with the conclusion of the Division Bench of the       High Court in view of our aforesaid findings regarding     non-applicability of clauses (a), (b) & (d) of item 1 of         Schedule IV.  On this conclusion, we would have been   required to dismiss the respondent’s complaint but for the       fact that the fourth leg of the respondent’s complaint  invoking clause (f) second part of item no.1 cannot be said    to be non-existent or unjustified or uncalled for.  As we  have already discussed, order of discharge whether punitive  or non-punitive if found to be the result of undue haste on the part of the employer, the inevitable result will be that  the employer would be guilty of ‘unfair labour practice’ as   laid down by Schedule IV item no.1 clause (f) second part.

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 In the facts of the present case, the decision rendered by the Division Bench of the High Court on this score cannot be            found fault with.  It has to be recalled that the proceedings in connection with notice under Section 9-A were           pending in conciliation.  Efforts were made by the  Conciliation Officer for seeing that the parties come to an amicable settlement.  Of course, those efforts failed and on       22nd June, 1982 by 4.35 p.m.  the Conciliation Officer         orally declared that the conciliation had failed and investigation was at an end.  However, as seen earlier, that was not the end of the matter.  The Conciliation Officer did   not become functus officio on that day.  As per Section 12 sub-section (4) of the I.D.  Act thereafter he had to give a         full report setting forth the steps taken by him for     ascertaining the facts and circumstances relating to the         dispute and for bringing about a settlement thereof,             together with a full statement of such facts and       circumstances, and the reasons on account of which, in     his opinion, a settlement could not be arrived at.  That   obviously would have taken a few days, if not more, before     such report could have been prepared by the Conciliation  Officer.  It is, therefore, difficult to appreciate how the   appellant in hot hurry and within almost half an hour from the close of investigation on the very same day by 5’O clock     in the evening could pass the impugned termination order    against the respondent.  It has to be appreciated that in the report which was to follow, the Conciliation Officer was  required to highlight the nature of the dispute between the   parties in the light of the notice under Section 9-A given     by the appellant to the respondent union.  It is easy to visualise that even in such a failure report the conciliator       could have given his prima-facie opinion regarding the nature of the dispute and the reasonableness thereof.  It is    also to be kept in mind that once such report reaches the    State Government, in the light of the report if the State Government finds that the dispute is a genuine dispute which  requires adjudication, it may make an order of reference or   if, on the other hand, the State Government finds from the       report that the dispute is frivolous it may not make a   reference but that stage could reach only after the report  is received and scrutinised by the State Government.  Under   these circumstances, for passing the impugned retrenchment   order within half an hour of the close of investigation by       the Conciliation Officer, the appellant could not have    presumed that the report would necessarily indicate total frivolousness of the dispute and that would not persuade the State to make a reference of the dispute for adjudication by   a competent Court.  Without waiting to see as to what will  be the nature of the report and the contents, the appellant  tried to help itself and in undue hurry passed the impugned      order.  The result was that by one stroke the appellant pre-empted the report of the conciliator on the one hand and    on the other hand even the future objective action of the  State Government on such a report.  It is also important to        note that on the report of the conciliator, the State    Government could have thought it fit to refer the dispute for adjudication and in the present case on the basis of the         said report, reference was in fact made by the State           Government regarding the legality of the scheme of       rationalisation   resulting  in   the  likelihood   of   retrenchment of the workmen concerned.  The said reference        became infructuous only because the appellant, in the     meantime, invoked jurisdiction of the Labour Court under     Section 28 of the Maharashtra Act.  That resulted in the     applicability of Section 59 of the Maharashtra Act which

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 lays down as under :  "If any proceeding in respect of any  matter falling within the purview of this Act is instituted      under this Act, then no proceeding shall at any time be entertained by any authority in respect of that matter under the Central Act or, as the case may be, the Bombay Act;  and        if any proceeding in respect of any matter within the purview of this Act is instituted under the Central Act, or, as the case may be, the Bombay Act, then no proceeding shall at any time be entertained by the Industrial or Labour Court                                             under this Act."

     It is because of the aforesaid provision of Section 59       of the Maharashtra Act that the referred dispute under   Section 10 of the I.D.  Act got disposed of.  However, the     fact remains that on the failure report submitted by the  Conciliation Officer the appropriate Government had thought   it fit to prima facie hold that the dispute was a real one which required adjudication by the competent Court under the        I.D.  Act.  It is also necessary to note that in such    references received by the competent Court under the I.D. Act in appropriate cases, the Court to which such references   are made has ample jurisdiction to pass interim orders and  if the Court had found that the impugned retrenchment order     was required to be stayed even though it had been passed  after conciliation proceedings were over and when there was    no prohibitory order from any authority such retrenchment order could have been stayed.  Further implementation of the   impugned change could have been stayed vide The Management     Hotel Imperial, New Delhi and others vs.  Hotel Workers’       Union (AIR 1959 SC 1342) and The Hind Cycles Ltd.  and                  another vs.  The Workmen (AIR 1974 SC 588).

     It  is  also  to  be noted that in the  facts  of  the       present case, as already held by us on point no.1, the         conciliation proceedings had not terminated when the      impugned order was passed.  The result was that Section     33(1) got violated and the appellant became liable to be   punished as per Section 31(1) of the I.D.  Act incurring a    penalty for being convicted of an offence punishable with imprisonment for a term which may extend to 6 months or with   fine or with both.  Thus the impugned order cannot, but be    held to have been passed with undue haste.  The intention     behind passing such a hurried order was obviously to cut  across and pre-empt the submission of failure report by the     conciliator on the one hand and its consideration by the          State on the other and even for avoiding the future  possibility of a reference under the I.D.  Act and also the     future possibility of the Court’s intervention by way of   interim relief against such order.  But to crown it all by      such undue hurry the appellant made itself liable to be     punished and incurred a criminal liability for the same.        All these consequences unequivocally project only one  picture that the impugned order was passed in a great hurry  and with undue haste.  This conclusion is inevitable on the  aforesaid facts which have remained well established on the record of the present case.  Consequently, agreeing with the  view of the Division Bench in the impugned judgment it must   be held that the respondent’s complaint was well sustained  at least under clause (f) second part of item 1 of Schedule IV and as the impugned order was passed with undue haste the   inevitable result is that by the said act the appellant is  liable to be treated as guilty of ‘unfair labour practice’.

     We  may  also mention in this connection  one  another  facet of this question.  As the Conciliation Officer, after

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   hearing the parties, had declared that investigation was over and settlement had not taken place, at least a few days    were available after 22nd June, 1982 to the appellant for        moving the Conciliation Officer to give the appellant   permission to retrench the respondent.  It is not possible       to agree with the finding of the Labour Court that the       Conciliation Officer could not have entertained such a      request.  He had not even drafted his report, much less submitted the same to the State Government at least within a      few days after 22nd June, 1982.  The very fact that the     report reached the State Government on 13th August, 1982 shows that the conciliator would have despatched the same at         least a couple of days after 22nd June, 1982, having   complied with all the statutory requirements under Section    12(6) for preparation of such a report.  Even on the next   day of 22nd June, 1982 such a request could have been made by the appellant and the conciliator would not have felt any inhibition in recalling both the parties and hearing them on          such a request on the part of the appellant to give   permission to it to pass the impugned termination order as the conciliation had failed.  Even by passing such a legally       permissible and factually feasible course, and without   waiting even for more than half an hour the impugned order    was passed.  It is easy to visualise that it was possible    that if such a request was made by the appellant it could have been granted or it could have been rejected.  If such a request was rejected by the conciliator then, of course, the  impugned order could not have seen the light of the day and    if thereafter the State Government had made the reference after reading the failure report, then the existing position     regarding service condition of the respondent could have            been continued by the reference Court pending the   adjudication of such a dispute.  The appellant with a view to avoid all these uncomfortable situations indulged in self    help and passed the impugned order on the very evening of         22nd June, 1982.  This is an additional facet of the      deliberate undue haste resorted to by the appellant for short circuiting all possible inconvenient situations and to      present the respondent with a fait accompli and also to     placate the Conciliation Officer on the one hand and the   State Government on the other and ultimately the reference  Court also.  Consequently it must be held that the impugned     order was clearly a result of undue haste and, obviously      amounted to ‘unfair labour practice’ on the part of the  appellant as per Schedule IV item 1 clause (f) second part.   Consequently, this point for determination is held against    the appellant and in favour of the respondent only to the          extent of applicability of the aforesaid provision.

     Point  No.5:   So far as this point is  concerned,  we    have already noted that the Labour Court itself has found   that notice under Section 9-A was a belated one and should  have been given at least by November, 1981 when the machine in question became fully operative resulting in displacement   of workers in hand composing department.  Still by curious     reasoning, it has been held that there was nothing wrong          with the notice though given belatedly and that the    termination order was also not offending Section 33(1) of the Act.  These findings show patent errors of law and could  not be sustained.  The Industrial Court, on the other hand, came to an equally erroneous finding on the applicability of    item 10 of Schedule IV of the I.D.  Act when it held that           the said item would apply not at the time when the  rationalisation scheme was introduced, but at the time when the employer desired or decided to terminate the services of

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  the employees.  This reasoning of the Industrial Court is     contrary to the very scheme of item 10 of Schedule IV of    I.D.  Act and totally ignores the term ‘likely to lead to   retrenchment’ as found in the said item.  The reasoning of    the Industrial Court almost amounts to rewriting the said    phrase as "decide to retrench the workmen".  These patent          errors of law committed by the Labour Court and the Industrial Court were totally bypassed by the learned Single    Judge while he dismissed the Writ Petition.  These patent      errors of law, therefore, were rightly set aside by the       Division Bench of the High Court in the Letters Patent  Appeal.  It could not, therefore, be said that the impugned    judgment had tried to interfere with the pure findings of        the fact reached by the authorities below on evidence        against the respondent.  It was perfectly open to the       Appellate  Court  in the hierarchy of  proceedings  to      interfere with such patent errors of law and to correct   them, otherwise it could have been said that it had failed   to discharge its duty and that would have also amounted to failure to exercise jurisdiction on its part.  The aforesaid     point is, therefore, answered in affirmative against the    appellant and in favour of the respondent by holding that   the Appellate Court had corrected patent errors of law and   had not interfered with the pure findings of the facts not connected with the relevant questions of law with which they                                            were intertwined.

     Point  No.6:  Now is the time for us to take stock  of       the situation in view of our aforesaid findings on the   relevant points for determination.  The final order passed         by the High Court in the impugned judgment has to be sustained.  However, one aspect of the matter cannot be lost             sight of while closing the present chapter.  The respondent’s services were terminated on 22nd June, 1982 and     that the termination is found to be amounting to ‘unfair  labour practice’ as per the provisions of Section 30 of the   Maharashtra Act.  On this conclusion, the appellant has to  be asked to withdraw such ‘unfair labour practice’, meaning         thereby, the impugned order has to be set aside and,    thereafter, affirmative action including reinstatement of  the employee with or without back-wages could be ordered by the Labour Court in these proceedings.  However, as the High     Court has noted that reinstatement is out of question as     respondent has reached the age of superannuation, in the       meantime, with effect from 3.5.1995, therefore, at the      highest the respondent is entitled to back-wages for 13  years with gratuity and other retirement benefits.  That is  precisely what is ordered by the High Court in the impugned    judgement.  However, learned counsel for the appellant is  right when he contends that even before the conciliator the    respondent’s union on behalf of its members including the          present respondent who were all facing retrenchment suggested that they were prepared to accept compensation @ 4 months wages per every completed year of service with a view     to settle the dispute.  This suggestion on behalf of the  workmen by their union is noted by the conciliation officer     in his report which reached the State Government on 13th August, 1982.  It may be seen that by that time the impugned  retrenchment order was only two months old as it was passed    on 22nd June, 1982.  It is also noted by the conciliation      officer that this proposal did not find favour with the    management.  If it had been accepted by the management at   that time the respondent-workman would have been satisfied    by way of compensation amounting to only one third of the     back- wages for each year of service.  It is, of course,

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true that years rolled by thereafter and the compromise did  not go through.  It is also true that the value of money in 1982 was much higher than what it is today.  It is also true  that the respondent has been denied not only back-wages but       also interest on the said amount which would have been     available to him years back.  However, one aspect of the  matter cannot be lost sight of.  There is nothing on record    to show that the respondent was gainfully employed or was   not employed in any alternative avocation during all these years.  It is, of course, true that it was for the appellant to point out as to how grant of back-wages should be reduced   on account of the gainful employment of the respondent, in the meantime.  Such an effort was not made by the appellant.      However, still one fact which stares in the face of the  respondent is well established that the appellant has tried        his best to accommodate the respondent in alternative    employment at Jalgaon where hand composing department was working.  If the respondent accepted the said offer he would   have earned his full wages all throughout till retirement.    Thus in a way the respondent also was responsible for the   unfortunate situation in which he found himself during all      these years.  It is also to be noted that the complaint   filed as early as on 25th June, 1982 remained dismissed in   the hierarchy of proceedings from the Labour Court onwards  up to the learned Single Judge’s decision in the High Court          and it is only in the Letters Patent Appeal that he ultimately succeeded.  Considering all these aspects, in our       view, interest of the justice will be served if, while     confirming the final order of the High Court impugned in     this appeal, a modification is made regarding back-wages payable to the respondent.  This is required also in view of the further fact that we disagree with the conclusion of the      Division Bench of the High Court that the appellant was  guilty of ‘unfair labour practice’ under item Nos.1(a), (b)        and (d) of Schedule IV of the Maharashtra Act and the      decision of the High Court is being confirmed regarding    ‘unfair labour practice’ of the appellant only under item      1(f) second part of Schedule IV of the said Act.  While  considering the grant of appropriate back-wages, we deem it   fit to adopt the same yardstick which was suggested by the respondent-workman’s union for all its members including the   respondent that one third of back wages for each completed            year of service would be acceptable to them.  We,    accordingly, deem it fit to modify the final order of the      High Court to the following extent :  The appeal of the       respondent before the High Court will be treated to be         allowed by holding that the appellant management had    indulged in ‘unfair labour practice’ only under item 1(f)   second part of Schedule IV of the Maharashtra Act with the        consequential direction that the appellant was not to       indulge into and shall desist from indulging into such                                      unfair labour practice.

     The  second  modification in the impugned judgment  of      the High Court will be to the extent that the appellant         shall pay to the respondent-workman 1/3rd (i.e.  33% approx.) of back-wages with all other consequential benefits     from 22nd June, 1982 till the date of his superannuation   i.e.  3rd May, 1995.  The said amount shall be paid by the appellant to the respondent within a period of 3 months from  the date of this judgment and in case of failure to pay the   said amount within that time the appellant shall be liable   to pay the said amount with running interest of 12% on the        expiry of 3 months from today till the date of actual      payment.  Subject to the aforesaid modifications in the

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judgment and final order of the High Court impugned in this                         appeal, the appeal stands dismissed.

     In the facts and circumstances of the case, there will  be no order as to costs.