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PETITIONER: AMRIT BANASPATI CO.  LTD.

       Vs.

RESPONDENT: S.   TAKI BILGRAMI & ORS.

DATE OF JUDGMENT12/08/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. MITTER, G.K. REDDY, P. JAGANMOHAN

CITATION:  1972 AIR  306            1972 SCR  (1) 145  1971 SCC  (2) 633

ACT: Bombay  Industrial  Relations Act (11 of 1947),  ss.  42(1), 46(2)   and  Schedule  II  item  1-Closing  of   shift   and terminating  employment  of surplus  staff-If  reduction  of posts.

HEADNOTE: The  appellant company was the proprietor of certain  mills, which  was working three shifts in some of its  departments. The  third  shift  was closed and  the  appellant  issued  a month’s  notice to three clerks terminating their  services. The  subordinate tribunals and the High Court held  that  it was a case of reduction of posts of clerks without following the procedure prescribed by the Bombay Industrial  Relations Act 1946, namely, giving of notice of change as required  by s. 42, and thus committed an illegal change in contravention of  s. 46, in respect of an industrial matter in item  1  of Schedule 11 of the Act. Allowing the appeal to this Court, HELD  :  (1) The reply sent, by  the  management  justifying their action, to the Union of workers, indicates, that  they had  only  effected  a  retrenchment  of  clerks  whom  they considered to be surplus.  There was no admission that  they had effected a reduction in the posts of clerks.  Read as  a whole,  the  letter  only shows  that  the  termination  was necessitated by the closure of the third shift and that  the reduction  in the clerical strength in consequence  of  such termination did not result in any increase in the work  load of others. [155 B-D] (2)  Unless there is a reduction in posts item 1 of Sech. 11 will,  have  no application.  The item refers  to  reduction intended  to be of permanent or semi-permanent character  in the  number of persons to be employed in a shift,  that  is, the  shift is not abolished but is working and the  employer effects  a  reduction in the number of persons  employed  in them  shift  in consequence of which the work  load  on  the remaining persons may be more.  Under such a contingency  it may be considered that the employer has effected a reduction in  the  posts occupied by the persons whose  services  have been  terminated.  But when the working of the entire  shift is stopped there is no question of a reduction in the number

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of persons employed in a shift.  On the other hand, it is  a case  of  termination  of  employment  of  all  the  persons employed in the shift which has been stopped. ] 1 56 A-H] Chaganlal  Textile  Mills Private Ltd. v.  Chatisgoan  Girni Kamgar Union, A.I.R. 1959 S.C. 722, followed. (3)  In the present case, on the closure of the third  shift what the employer did was to retrench the employees  working in that shift 146 they were found to be surplus in the establishment.  It  was a  case  of  reduction of persons employed and  not  one  of reduction of the number of persons employed.  Hence, it  was not a case of reduction of posts. [1 57 F-H]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1922  of 1966. Appeal  by special leave from the judgment and order  ,dated January  5, 1965 of the Bombay High Court in  Special  Civil Application No. 1261 of 1963. K.   K. Jain and H.  K. Puri for the appellant. B.   P. Maheshwari and S. M. Jain for respondent No.2 G.   L.- Sanghi and P. N. Tiwari, for respondent No. 3. The Judgment of the Court was delivered by Vaidialingam,   J.-The  short  question  that   arises   for consideration  in this appeal, by special leave, is  whether by terminating the services of the three clerks in question, the appellant Company had made any illegal change within the meaning  of  S. 46 of the Bombay Industrial  Relations  Act, 1946 (Bombay Act XI of 1947) (herein,after to be referred as the Act). The  facts  leading  up to the appeal may  be  stated.   The appellant  Company  was  the former proprietor  of  the  New Pralhad Mills, Bombay.  At the material time, namely,  1957, the  mills  were  working  three shifts  in  some  of  their departments.   On  December  8, 1957, the  third  shift  was closed.  On January 7, 1958 the appellant issued notices  to the  three clerks Nayak, Kelwalkar and Mhatre, with whom  we are   concerned  in  these  proceedings  terminating   their services with effect from February 8, 1958. The  second  respondent  herein, the Union  of  the  workers employed  in the  mills, by their letter dated  February  7, 1958   requested  the  management  to  cancel  the   notices terminating the services of the clerks.  The management sent a  reply to the Union on February 10, 1958 justifying  their action and declining to accede to the request of the  Union. The exact terms of the notices dated January 7, 1958 as well as the reply dated 147 February  10,  1958 will be adverted to later.   There  was. another clerk Dhuri against whom a notice of termination  of service had also been issued.  But we are not concerned with that clerk in these proceedings. The  Union filed four applications before the Second  Labour Court at Bombay, challenging the termination of the services of  the four clerks, referred to above, on the  ground  that the  appellant  had  reduced the clerical  strength  of  the Company  without following the procedure prescribed  in  the Act  and  as  such the appellant had  committed  an  illegal change.   In consequence the Union prayed for a  declaration that  the appellant Company had committed an illegal  change and further prayed for the reinstatement of the clerks after

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directing the management to withdraw the illegal change,  An additional, ground for reinstatement was also urged.  It was urged that the management had also contravened s. 25G of the Industrial  Disputes Act, 1947.  On these  allegations  the, Union  after  praying for the reinstatement of  the  clerks, desired  also  payment  of compensation from  the  date.  of termination of their services till their reinstatement. The main defence of the appellant was that no illegal change has been made and hence the Labour Court had no jurisdiction to  entertain  the applications.  They further  denied  that there has been any contravention of s. 25G of the Industrial Disputes  Act,  1947 inasmuch as no clerks junior  to  those whose services were terminated had been retained in service. According  to the. appellant the clerks were  retrenched  as they were surplus, to the requirement of the mills. The  Labour  Court,  on a consideration  of  the  materials. produced before it, held that by terminating the services of the  clerks, the appellant has really effected a  reduction. in  three  clerical posts.  It is the further  view  of  the Labour  Court that as this reduction of posts had been  done without giving a notice of change under the Act, its  action was  illegal  and  that the Company  was  guilty  of  making illegal  change in contravention of s. 46 of the  Act.   The Labour Court further held that so far as Nayak and Kelwalkar were  concerned  the  principles of  "last  come  first  go" embodied  in s. 257 of the Industrial Disputes Act had  been contravened as those two clerks were 148 senior to several others who were still retained in service. As regards the third clerk Mhatre, the Labour Court accepted the appellant’s plea that he was only a temporary clerk for the  third  shift and that with the stoppage ,of  the  third shift  his termination was justified.  In consequence,  the Labour Court passed an order, on June 19, 1959 directing the appellant  to withdraw the illegal change introduced  by  it and  reinstate Nayak and Kelwalkar and also to pay them  50% of their wages including Dearness Allowance till the date of reinstatement.   The Union’s application, so far  as  Mhatre was concerned, was ,dismissed. The  appellant  appealed to the Industrial Court  at  Bombay against the decision of the Labour Court regarding Nayak and Kelwalkar.   The  Union  also filed an  appeal  against  the decision  of  the Labour Court refusing to grant  relief  to Mhatre.   The two appeals were (I.C.) Nos. 182 of  1959  and 188 of 1959 respectively. The Industrial Court did not agree with the findings of  the Labour   Court   that  Mhatre  had  been   appointed only temporarily for the third shift.  On the other hand it  held that  Mhatre  was in the permanent employ of  the  ,Company. The Industrial Court held that the appellant had contravened the provisions of S. 25G. when it terminated the services of Nayak,  Kelwalkar and Mhatre.  It did not consider the  main question  whether  the appellant had committed  an.  illegal change  when it terminated the services of the clerks’.   On the basis of its findings regarding contravention of S. 25G, the  Industrial Court, by its order dated January, 30,  1960 affirmed  the  decision of the Labour Court  with  a  slight variation  regarding  payment  of  compensation,  wages  and Dearness  Allowance.  At this stage we may say that  Mhatre, whose  ,claim  was rejected by the Labour  Court,  was  also granted  the  same relief that was given to  the  other  two clerks by the Labour Court.  The result was that the manage- ment’s appeal No. 1. C. 182 of 1958 stood dismissed and  the appeal of the Union, No. 1.C. 188 of 1959 was allowed. Aggrieved  by  these  orders of  the  Industrial  Court  the

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appellant  filed  in  the Bombay High  Court  Special  Civil Application  No 368 of 1960 under Arts. 226 and 227  of  the Constitution.  This writ petition was dismissed in 149 limine  by the High Court on March 22, 1960.  The  appellant came by special leave to this Court in Civil Appeal No.  230 of 1962. Before  this Court the counsel for the Union  conceded  that the  appellant  has not violated s. 25G  of  the  Industrial Disputes  Act.  But nevertheless it was urged by  the  Union that  the  order  of the  industrial  Court  confirming  the decision of the Labour Court was correct, as the latter  has recorded a finding that the appellant had reduced the number of  posts  of clerks and thus committed  an  illegal  change without  issuing the necessary notice under the  Act.   This Court was of the opinion that the main basis of the decision of  the Industrial-Court was that s. 25G of  the  Industrial Disputes  Act  had  been  violated.   That  finding  of  the tribunal  was  clearly erroneous in view of  the  concession made on behalf of the Union.  This Court was further of  the view  that  the  Industrial Court  has  not  considered  the correctness  or  ,otherwise of the more  important  question decided by the Labour Court against the management,  namely, whether  the  appellant had committed an illegal  change  in contravention of the Act.  In view of this serious infirmity in  the order of the Industrial Court, by its  judgment  and order  dated  January  14  1963  this  Court  remanded   the proceedings  to the Industrial Court to adjudicate  upon  on the  above  mentioned  aspect.  This Court  further  gave  a direction   that  if  the  Industrial  Court  came  to   the conclusion   that  any  illegal  change  was  made  by   the management, it was to give appropriate relief to the workmen concerned  and  that  on  the other hand,  it  came  to  the conclusion  that  no  illegal change  had  :been  made,  the applications filed by the Union had to be dismissed. On  remand the Industrial Court by its order dated July  18, 1963  has agreed with the findings of the labour Court  that by  termination  of  the services of  the  three  clerks  in question, the Company has reduced its clerical strength  and thus  has effected a reduction in the posts of clerks.   For coming  to this conclusion the Industrial Court  has  placed considerable  reliance an the reply dated February 10,  1958 sent  by the appellant to the Union.  It is the view of  the Industrial Court that in this 1 5 0 letter, the appellant has indicated in very clear terms  its intention when it terminated the services of the clerks.  In the  end  the industrial Court held that the  appellant  had committed  an  illegal change under S. 46 by  not  giving  a notice of change under S. 42 (1) of the Act.  The Industrial Court  also gave certain consequential directions  regarding the amount of compensation to be paid to the workmen. The  appellant  filed before the Bombay High  Court  Special Civil  Application  No. 1261 of 1963 under Art. 227  of  the Constitution  challenging  the decision  of  the  Industrial Court.   The  High  Court by its judgment  and  order  dated January,  5,  1965,  after  a  reference  to  the   material provisions of the Act, ’ as well as the terms of the  notice dated January 7, 1958 issued to the clerks and the reply  "’ dated February 10, 1958 sent by the management to the Union, agreed  with  the conclusion arrived at  by  the  Industrial Court that the appellant had committed an illegal change  in an  industrial matter referred to in item 1 of  Schedule  11 without  giving the notice of change as required by  S.  42. It is against this judgment and order of the High Court that

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the appellant has come to this Court by special leave. Before we proceed to set out the contentions of the  learned counsel, it may be stated that the appellant Company,  which was  formerly the proprietor of New Pralhad Mills  had  sold the same to the third respondent on September 8, 1962.   The third  respondent was not a party to the proceedings  before the  Industrial Court when it passed its order dated May  3, 1963.   Though  the  appellant does  not  claim  any  relief against  the  third respondent, it had been impleaded  as  a party in these proceedings. Mr. K. K. Jain, learned counsel appearing for the appellant, urged that by terminating the services of the three  clerks, in  view of the closure of the third shift, the Company  has only effected a retrenchment of surplus hands in the  employ of  the  company.  There has been no reduction of  posts  of clerks  and  no  such reduction can be  considered  to  have happened  in  law in the particular circumstances  of  this case  when the third shift-itself was closed.   The  notices had been issued to,  151 the clerks terminating their services as they were found  to be surplus.  The counsel further urged that there. has  been no  reduction  of  posts of clerks when  it  terminated  the services of the clerks in consequence of the closure of the third   shift.    The  question  of   illegal   change   and contravention of the Act will arise only when there has been a reduction in the posts of the clerks.  He also pointed out that  the  Union  does not dispute the  fact  regarding  the closure  of  the third shift with effect  from  December  8, 1957.   The counsel further urged that the third  shift  was resumed  on November 1, 1959 and notices were issued to  the three  clerks  to join the Company, which they did  not  do. The  counsel further pointed that the letter dated  February 10,   1958  sent  by  the  appellant  has  been   completely misunderstood by the, High Court   and    the    subordinate tribunals.  He contended that there has been no admission of reduction of posts made  by the appellant in the said letter as wrongly assumed by the High Court and the two subordinate tribunals.  This error has vitiated the decision of the High Court.   This contention of Mr. Jain has been  supported  by Mr.  G. L. Sanghi, learned counsel appearing for  the  third respondent. On the other hand Mr. B. P.’ Maheshwari, learned counsel for the Union, supported in full the decision of the High  Court confirming the orders of the two subordinate tribunals.  The counsel  pointed out that the appellant, by terminating  the services of the three clerks has really effected a reduction in the clerical, strength of the Company.  Such a reduction, according. to the counsel, amounts in law to a reduction  of clerical  posts attracting the previsions of ss. 42  and  46 read  with  Item  1 of Schedule 11 of the Act.   It  is  his further  contention that the finding that there has  been  a reduction of posts of clerks is one of fact concurrently re- corded by the two tribunals and affirmed by the High, Court. On  that  finding, the counsel urged, the view of  the  High Court  that the appellant is guilty of effecting an  illegal change without giving notice of change is justified. In order to appreciate the contention of the learned counsel on both sides, it is pertinent to refer to the relevant M1245Sup.CI/71 152 provisions of the Act.  Before we refer to those provisions, it  should  be  stated that it is  common  ground  that  the working of the third shift was stopped on December 8,  1957. According to the management the work of the third shift  was

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again  resumed on November 1, 1958.  It is the further  case of  the  management  that  the  three  clerks  were  offered employment,  but  they declined to accept  the  offer,  as, according  to,  them,  the offer was made  subject  to  the condition that the Union withdraws the applications that had already  been filed before the Labour Court.  At  any  rate, one  thing is ,clear namely, that the working of  the  third shift which was closed on December 8, 1957 was resumed  only on November 1, 1958 and an offer of employment was then made to the three workmen.  Another aspect to be noted is that it was  represented before us that no standing orders  relating to the appellant’s industry had been framed or had come into operation  at  the  material  time.   Therefore,  the  model standing orders notified by the Government were operative. The notices issued to, the workmen on January 7, 1958 was as follows              "Dear Sir,               We  regret  to inform you that  your  services               will no longer be required from 8th  February,               1958.   This  may be treated  as  one  month’s               notice.                                        Yours faithfully                                      for New Prahlad Mills,                                             Sd/-                                        Superintendent               The letter dated February 10, 1958 sent by the               appellant to the Union was as follows        "Dear Sir,               Re:   No. N. D. 5090/57,d/7-2-1958 application               under  rule  53 of B. 1. R. Act,  Shri  S.  A.               Nayek.                153               With reference to the above we have to  inform               you that Shri Nayak’s services were terminated               with a month’s notice, owing to closure of 3rd               shift,  which necessitated a reduction in  our               clerical  strength.   We may  point  out  that               clerks have been reduced from all departments,               according to juniority and further reductions    are               still  contemplated and      the   cases    of               other      juniors like Shri Sharma  and  Shah               are also under  consideration.     As     such               reduction  has  not effected any  increase  in               work  load, and as the individual  clerks  who               are reduced are offered all their legal  dues,               we  submit  that  notice  of  change  is   not               necessary.               We  submit that whatever is done is legal  and               proper  and regret we cannot comply with  your               request.                                            Yours faithfully                                                 Sd/-                                      for New Pralhad Mills,                                           Manager.               Now  we will refer to the material  provisions               of  the  Act.   Section  35  (1)  of  the  Act               provides for the procedures for  framing  of               standing orders in regard to matters mentioned               in  Schedule 1 of the Act.  Under  sub-s.  (5)               the  model  standing orders  notified  by  the               Government  would apply till  standing  orders               framed under the section come into  operation.               We  have  already referred to  the  fact  that               there  are  no standing orders framed  by  the               appellant Company relating to its industry  at

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             the  material time.  Section 40  (1)  provides               that  standing  orders for the time  being  in               operation   shall  be  determinative  of   the               relations   between  the  employer   and   his               employee  in regard to all industrial  matters               referred to in Schedule 1. Item 3 of  Schedule               I deals with:               "Shift working including notice to be given to               employees    of   starting,   alteration    or               discontinuance  of  two or more  shifts  in  a               department or departments".               Item 10 in the same Schedule again relates  to               :               "Termination of employment including notice to               be’ given by employer and employee." 154 The model standing order 8 (1) (c) provided that whenever an additional shift is started, altered or discontinued,  seven day notice has to be given, but one month’s notice will have to be given if as a result of the the discontinuance of  the shift  any  permanent employee is likely to  be  discharged. There  is  no  grievance  in the case  before  us  that  the requisite  notice regarding the stoppage of the third  shift has  not  been  given.  Similarly,  standing  order  23  (1) provided  that  employment of a permanent  employee  may  be terminated  by  one  month’s notice or  on  payment  of  one month’s  wages (including all allowance in lieu of  notice). We have referred to these provisions in order to  appreciate the  contents  of Item 1 of Schedule 11 with  which  we  are concerned in this appeal. Section 42 (1) of the Act provides for an employer intending to  effect  any change in respect of  an  industrial  matter specified in Schedule 11 to give notice of such intention in the prescribed form to the representatives of the employees. The other authorities to whom a copy of such notice is to be given  as  well as the publication to be given to  the  said notice are also contained therein.  A notice under S. 42 (1) is  called "notice of change".  Section 46 (2) prohibits  an employer  from  making any change in any  industrial  matter mentioned  in  Schedule  11, without giving  the  notice  of change  as required by the provisions of sub-section (1)  of S. 42.  Item 1 of Schedule 11 runs as follows Schedule 11               (1)   Reductions  intended to be of  permanent               or  semipermanent character in the  number  of               persons  employed  or to be  employed  in  any               occupation   or  process  or   department   or               departments  or  in a shift not due  to  forie               majeure." We  have  already indicated that the  industrial  Court,  in particular,  has  placed very great reliance on  the  letter dated February 10 1958, for holding that by terminating  the services of the clerks, the appellant has really effected  a reduction  in  the clerical strength  of  the  establishment which  has the effect of reducing the posts of  clerks.   In fact the Industrial Court goes  155 further  and  holds  that  there  is  an  admission  by  the management itself in the said letter regarding their  having effected   reduction   in   the  posts   of   clerks.    The interpretation has found favour with the High Court. We  are not  inclined to agree with the learned Judges of  the  High Court  in  the  interpretation placed  on  the  letter  date February  10,  1958.  The letter which has to be read  as  a whole clearly indicates that the termination of the services

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of  the clerks was necessitated owing to the closure of  the third shift and that the reduction in the clerical  strength in  consequence of such termination has not resulted in  any increase  in the work load of others.  This  itself  clearly shows that the appellant have not effected any reduction  in the  posts  of clerks.  On the other hand,  they  have  only effected a retrenchment of the clerks, whom they  considered to  be surplus, in consequence of the closure of  the  third shift.   There  is a marked difference between  the  matters dealt with under Items 3 and 10 of Schedule I and Item 1  of Schedule 11. Item 1 of Schedule 11 has come, up for consideration  before this  Court  in  Chaganlal Textile Mills  Private  Ltd.,  v. Chalisgaon Girni kamgar Union (1).  After an analysis of the contents  of  Items  3 and 10 of Schedule 1 and  Item  1  of Schedule  11, it has been held that Item 1 relates  only  to posts and not to the personnel occupying the posts.  Dealing with  item  No.  1 of Schedule 11  this  Court  observes  as follows:               "Furthermore,  the language of Item No.  1  of               Schedule  1 clearly refers to a  reduction  in               posts.   It  deals with the reduction  not  of               persons  employed  but  with  the  number   of               persons   employed.   Therefore   it   clearly               contemplates  posts.   Again, this  item  also               refers  to  the number of persons  to  be  em-               ployed.  That of course has nothing to do with               the retrenchment of persons actually employed.               Again,  when a notice of change in respect  of               Item  No. 1 of Schedule 11 is to be given,  it               is not to be given to any employee but to  the               representative  of the employees  which  would               include a union of employees.  It could hardly               have been intended that when employees were to               be  retrenched  they would not  be  given  any               notice." (1)  A.I.R. 1959 S.C. 722 156 From  the above observations, it is clear that unless  there is a reduction in posts.  Item 1 of Schedule 11 will have no application and in consequence there is no necessity to give a  notice of change under S. 46 (2) read with S. 42  (1)  of the  Act.   In  the light of the  above  principles,  if  we examine the facts of the case before us, it is clear that on the closure of the third shift what the employer did was  to retrench  the employees working in that shift as  they  were found to be surplus in the establishment.  Therefore, it was a  case  of  reduction of persons employed and  not  one  of reduction  of the number of persons employed.  Hence  it  is not a case of reduction of posts. The  matter  also can be considered from  another  point  of view.   Item No. 1 of Schedule 11 leaving out  the  portions which are not necessary for the present case refers to:               "reduction  intended  to be  of  permanent  or               semipermanent  character.  in  the  number  of               persons to be employed in a shift." If  read  in that manner it is clear that the shift  is  not abolished  but  is  working  and  the  employer  effects   a reduction  in the number of persons employed in  the  shift. Under  such  a  contingency it may be  considered  that  the employer  has effected a reduction in the posts occupied  by the  persons whose services have been terminated,  in  which case  it  will be an illegal change unless notice  has  been given  under S. 42 (1) as contemplated by S. 46 (2)  of  the Act.  That is, for instance twenty persons occupying  twenty

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posts  are necessary to work is a shift and if five  persons are sent out, that will amount to a reduction of five posts, in  consequence  of  which the work load  on  the  remaining fifteen persons may be more.  In these circumstances the act provides  for giving a notice of change and under S. 42  (1) copies  of  such  notice have to be given  apart,  from  the representative  of employees, to the Chief  Conciliator  and other  officers mentioned therein.  That will be a  case  of reduction  of  posts.  But when the working  of  the  entire shift is stopped there is no question of a reduction in  the number of persons employed in a shift.  On the other hand it is  a case of termination of employment of all  the  persons employed in that shift which has been stopped.  Such  157 a  case will not attract Item No. 1 of Schedule 11. To  the employees  whose services have been so terminated,  as  the consequence  of  the closure of the  entire  shift.   Though other remedies are available to them in law, but they cannot invoke Item No. 1 of Schedule 11. We may also refer briefly to the facts of the case  reported in Chaganlal Mills Textile Private Ltd., v. Chalisgoan Girni Kamgar  Union (1) On July 9, 1957 the Company  therein  gave notice  that the working of the second shift in  their  mill would be discontinued after one month. On August 9,    1957 the second shift was actually closed in terms of the notice. Fourteen employees, who were not workmen in the second shift but whose services were necessary to make all  arrangements ready  for  the second shift to start working,  were  served with  the  notice on September 1, 1957 that  their  services were  terminated.  They were paid retrenchment  compensation and  other dues according to law.  On November 9,  1957  the Company  gave  a notice called "notice of  change"  that  it wished  to abolish 27 posts including the posts held by  the 14  employees, whose services were terminated by the  notice dated November 1, 1957.  Even under those circumstances this Court  held  that  the  notice given  on  November  1,  1957 terminating the services of 14 employees was only by way  of retrenchment and was legal.  It was further emphasised  that as  the  said notice was legal, it did not cease  to  be  so because within eight days a notice of change was also given. In  the  case before us it is not contended that  the  three clerks to whom notice had been given on January 7, 1958 were not  given proper notice and that their dues have  not  been paid.   Nor is it contended that after the admitted  closure of  the  third shift with effect from December 8,  1957  the services of these three clerks did not become surplus to the appellant.   We are satisfied that the notice dated  January 7,  1958 is only a notice of retrenchment of surplus  staff. By that notice: the appellant has not effected any reduction in  posts so as to attract Item No. 1 of Schedule  11,  read with  ss. 42 (1) and 46 (2) of the Act.  If that is  so,  it follows  that  by  terminating the  services  of  the  three clerks, the appellant has not made any illegal change within the meaning of S. 46 of the Act. (1)  A.I.R. 1959 S.C. 722. 158 In consequence, the judgment and order of the High Court are set aside and the applications filed on behalf of the  three clerks  before the Labour Court will stand  dismissed.   The appeal is allowed.  Parties will bear their own costs. V.P.S.                                 Appeal allowed. 159