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

       Vs.

RESPONDENT: SHANKARPRASAD

DATE OF JUDGMENT:       19/07/1999

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

JUDGMENT:

S.B.Majmudar, J.

Leave granted.

     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

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of The Maharashtra [Recognition of Trade Unions & Prevention 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

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the  provisions of Schedule IV, item no.1 of the Maharashtra 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 respondents  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 respondents 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 respondents 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 respondents 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 Courts 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.

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     It  is,  therefore,  obvious that  the  Writ  Petition invoking  jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for  High  Courts  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  Courts  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  appellants concern at Nagpur by  setting  up photo-type  machine for carrying out the work of  composing,

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resulting  in substantial reduction in the work of composing 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  respondents  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 appellants  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 respondents 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 appellants 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

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whether  the  impugned  retrenchment  order  was  passed  on 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

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end to the appropriate Government would obviously have taken 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

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published  under  Section 17, as the case may be ;   or  (c) 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

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pendency of proceedings is a concept which is different from 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

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Bihar and Others (AIR 1955 SC 661 at 680).  Das, Actg.  C.J. 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 (222) Asansol v.  New Beerbhoom Coal Co., Ltd., 1952 Lab AC 219

     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

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impugned retrenchment order must be held to be illegal being contrary to the aforesaid provision of the 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 find   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

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that they may not be retrenched because of the new scheme of rationalisation etc.  which is in the offing and can suggest 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

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under :

     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  appellants 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

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22.6.82  that  the proceedings started on the basis of  this notice   have  proved  unsuccessful   and,  therefore,   the 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

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already worked for some time and is required to be continued 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

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the arrangement of words and phrases in that item shows that 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  appellants 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

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the  nature of the change proposed to be effected and within 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

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listed  number  of heads of unfair labour practices  which 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  employers   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

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category   of  discharge  orders.    Therefore,   the   word 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 employers  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

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utter  disregard of the principles of natural justice but so 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, respondents  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

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word  discharge is a general word.  It is followed by  the 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

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dismissal  or  removal  from service within the  meaning  of 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 picture.  clause (a) of item no.1  of  Schedule  IV  is out of  Parameters  of  the  term@@                                    IIIIIIIIIIIIIIIIIIIIIIIII victimisation  have been considered by a three Judge Bench@@ IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 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

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(a)  of Schedule IV, therefore, does not apply to the  facts of the present case.

     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 employers 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 respondents  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 respondents complaint but for  the fact  that  the  fourth leg of  the  respondents  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

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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. 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 5O 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,

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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 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 Courts 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 respondents 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.

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

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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 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 respondents 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 respondents  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

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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, 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 Judges 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-workmans 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

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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 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.