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PETITIONER: RAI SAHIB RAMDAYAL GHASIRAMOIL MILLS

       Vs.

RESPONDENT: THE LABOUR APPELLATE TRIBUNALAND ANOTHER

DATE OF JUDGMENT: 10/12/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. IMAM, SYED JAFFER KAPUR, J.L. SUBBARAO, K.

CITATION:  1964 AIR  567            1963 SCR  Supl. (2) 845

ACT: Industrial  Dispute-Closure  of the Mill on  the  ground  of loss-Workmen  awarded  retrenchment  benefit-Mill   reopened -Only some of the former workers re-employed-Wages  reduced- Reference  made  to single  member  Tribunal-Another  single member  Tribunal  after his  retirement-No  fresh  reference made-Whether  new Tribunal has jurisdiction  to  adjudicate- Constitution of India, Art. 226-Industrial Disputes Act 1947 (14  of 1947), ss. 7 (1), 8 (2), 10 (1) (c)-Industrial  Dis- putes  Act, 1947, as amended by Industrial Disputes  (Amend- ment) Act 1953, s. 25 (H).

HEADNOTE: The  appellant  concern was closed on tile  ground  that  it incurred  heavy  losses.  Thereupon the  workmen  raised  an industrial dispute and they were awarded retrenchment  bene- fits.   About two years later the appellant concern was  re- opened.   But only some of the former  werekers  re-employea along  with  some new recruits.  The wages were  lower  than before.   The workers put forward certain damands  including for  the demand for absorption of those of the  workmen  who were  not  re-employed when the mill was  reopened  and  for payment  to them of compensation for unemployment  from  the date of reopening.  An industrial dispute having arisen  the Government  constituted a single Member Tribunal and made  a reference of the disputes to that Tribunal.  Thereafter  the Member retired.  The Government then purporting to act under s.  7  (1)  of  the Industrial  Dispute  Act,  1947  and  in supercession  of  the previous  notification  constituted  a single  Member  Tribunal.  This Tribunal to which  no  fresh reference  was made proceeded with the adjudication  of  the dispute.   Apart from the demands already made  the  workers contended before the Tribunal that they were entitled to the benefits under s. 25 (H) of the Industrial Disputes Act,  as amended  by the Industrial Disputes (Amendment)  Act,  1953. The   appellant   contended  that  the   Tribunal   had   no jurisdiction to adjudicate upon the dispute 846 and  that s. 25 (H) was not available to the former  workmen who had been retrenched.  The first contention of the  appe.

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llant  was rejected.  Even though the second contention  was accepted the tribunal made an order in favour of the workmen on  the ground that though they cannot claim  the  statutory benefits  of  s.  25 (H) the  principle  of  social  justice underying that section entitled them to receive salaries and allowances  from  the  date  of  reopening  the  mill.   The appellant  preferred an appeal to the  Industrial  Appellate Tribunal.   On  the dismissal of that appeal  the  appellant filed a writ petition before the High Court of Bombay.   The High   Court  summarily  dismissed  that  petition   but   a certificate was granted to appeal to this Court. The  appellant  reitrated  before this Court  the  two  con- tentions stated above. Held, that sub-s. (1) of s. 7 of the Industrial Disputes Act empowers  the  Government  to constitute  a  Tribunal.   But merely constituting a Tribunal for adjudication of  disputes is  not enough.  It has also to act under s. 10 and  make  a specific  reference to it of each dispute for  adjudicition. Without  such  a  reference the Tribunal does  not  get  any jurisdiction to adjudicate upon any dispute. The provisions of s. 25 (H) cannot apply to workmen who  had been  retrenched before this section came into  force.   The provision not being retrospective no tribunal has  jurisdic- tion on the basis of its own conception of social justice to apply  it or its underlying "principle" to a  dispute  which arose before the provision came into force.

JUDGMENT: CIVIL APPELLATE JURSIDICTION : Civil Appeal No. 593/1960. Appeal from the order dated October 15, 1956, of the  Bombay High Court in special Civil Application No. 2832 of 1956. Bishan Narain and K. L. Mehta, for the appellant. The respondent did not appear. 1962.  December 10.  The judgment of the Court was delivered by  847 MUDHOLKAR,  J.-This is an appeal by a certificate  from  the summary  dismissal  by  the’ Bombay High  Court  of  a  writ petition  under Arts. 226 and 227 of the Constitution.   The relevant facts are these : Rai Sahib Ramdayal Ghasiram Oil Mills (hereinafter  referred to  as  the Mills) were closed on September 1, 1952  on  the ground  that they had sustained heavy ’losses.  The  closure was  found  to  be bona fide and the  workmen  were  awarded retrenchment  benefit.   The  mills,  however,  reopened  on November 14, 1954, though their operations were carried on a reduced  scale  for avoiding further losses.   Some  of  the retrenched   workmen  were  reemployed  by  the  Mills   but evidently at lower wages than before.  It was said on behalf of  the  Mills  that all the former  workmen  could  not  be absorbed but it would appear that they had in fact  employed some  new hands as well.  An industrial dispute having  been raised by the respondent-union because of the non-absorption of   11  workmen,  the  State  Government   constituted   an Industrial Tribunal consisting of Mr. Kurian, under s. 7  of the  Industrial Disputes Act, as it stood on that  date,  on May 1.3, 1955 and referred the following dispute to him : "Whether the retrenched workmen referred to in the Annexures A,  B and C of the Award of the Industrial Triuunal, in  the Industrial dispute between the workmen and employers of  Rai Sahib  Ramdayal  Ghasiram  Rice,  Ginning  and  Oil   Mills, Peddapally   dated  1.,  January,  1953  are  entitled   for reinstatement   and  compensation  for  unemployment   after

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reopening of the said Mills." It  may  be mentioned that shortly after  the  Tribunal  was constituted and reference made to it, Mr. Kurian retired  in consequence of which the 848 Government of Hyderabad made the following  notification  on June 2, 1955 "In exercise of the powers conferred by sub   section (1) of section 7 of the Industrial Disputes Act 1947 (XIV of  1947) and  in supersession of the Labour  Department  Notification No.  B. 189/54/134 dated 15-10-1954 the  Rajapramukh  hereby constitutes  an  Industrial  Tribunal  consisting  of   Shri Bhikaji  Patil  as its sole member for the  adjudication  of industrial disputes in accordance with the provisions of the said Act, with immediate effect." The respondents’ case before the Tribunal was that after the reopening  of  the  Mills  all  the  former  employees  were entitled  to be given preference over others and  were  also entitled  to re-employment on the same wages as obtained  at the  date of closure.  This claim was based upon  the  award made  by the Industrial Tribunal on January 1, 1953  in  the dispute which arose between the Mills and the respondents in consequence of the closure of the Mills in September,  1952. Para 24, cl. 6 of the Award on the basis of which this claim was made by the Union runs thus : "’In the event of the factory being reopened within one year from  the  date of award becomes enforceable  the  employers will give first preference to those workmen in Annexures  A, B and C, that is, no workmen will be employed in the factory other  than  those employed at present without  giving  them first  opportunity  for employment and that on terms  as  to basic  wage  and allowances that were in force on  July  29, 1952." The grievance of the respondents was that only a few of  the former workers were re-employed and that too at lower  wages and some new hands had been recruited disregarding the claim of some 849 former  employees.   They also claimed the  benefit  of  the provisions of s. 25 (H) of the Industrial Disputes Act which were   added  to  the  Act  by  the   Industrial    Disputes (Amendment) Act, 1953. Several contentions were raised by the appellant before  the Tribunal but we need only refer to those which are now urged before us.  One contention was that the Tribunal as it stood constituted   on  June  2,  1955  had  no  jurisdiction   to adjudicate  upon  the  dispute and the other  was  that  the provisions  of s. 25 (H) of the Industrial Disputes  Act  as amended  by Act 43 of 1953 were not available to the  former workmen  who had been retrenched.  The first contention  and other contentions to which we have not made any mention were rejected  by  the  Tribunal  but  the  contention  that  the provisions of s. 25 (H) were not available to the retrenched workmen  was upheld by it.  The Tribunal, however,  made  an order in favour of those workmen in the following terms : "’Though  the workers cannot claim statutory  benefits  they cannot  be  denied social justice which  is  the  underlying principle  of  section 25 (H) and the rights that  they  had obtained  under the previous award of 1952.  I..  therefore, order that the workers from Annexures A, B and C who are not taken  back in service by the employers be  re-employed  and they  should be paid their salaries and allowances from  the date of the reopening of the mills, i.e., 14-11-1954.  Their salaries would be the same as they were in force at the time of the closure of the mills."

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An appeal was preferred by the appellants from the  decision of  the  Tribunal  before  the  Labour  Appellate  Tribunal, Bombay.   That appeal having been dismissed, the  appellants preferred  a writ petition before the High Court  of  Bombay which, as already stated, rejected it in limine. 850 It seems to us that the contention of the appellant that the Industrial   Tribunal  consisting  of  Mr.  Patil   had   no jurisdiction  to adjudicate upon the dispute is correct  and must  be  upheld.   Sub-s.  (1) of s. 7  as  it  then  stood empowered  the appropriate Government to constitute  one  or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act.  Such a  Tribunal was to consist of such number of members as  the _appropriate  Government thought fit.  Subs. (2) of s. 8  of the  Act, as it then stood, provided that where  a  Tribunal consists  of one person only and his services ceased  to  be available  the  appropriate Government may  appoint  another independent  person in his place, and the proceedings  shall be continued before the person so appointed. That being  the legal position, the appropriate thing for the Government  to do  was  to take action under sub-s. (2) of s. 8  after  Mr. Kurian’s services ceased to be available.  Instead of  doing that the Government took action under s. 7 sub-s. (1) of the Act  "’in  supersession" of its  previous  notification  and constituted  a fresh Industrial Tribunal consisting  of  Mr. Patil as its sole member.  We need not consider here whether the  old  Tribunal still continued to exist  and  there  was merely  a  vacancy  therein  and  therefore  there  was   no occassion to constitute a fresh Tribunal under sub-s. (1) of s.  7  because’  having constituted a  fresh  Tribunal,  the Government  failed  to refer the dispute in question  to  it under  sub-s. (1) (c) of s. 10 of the Act.  Apparently,  the law  advisors  and  the  Government  thought  that  a   mere notification  under  sub-s.  (1)  of s.  7  would  meet  the requirements  of  law and there was Do necessity to  make  a fresh  notification  under  s.  10  (1)  (c)  referring  the particular  dispute  for adjudication to the  Tribunal.   No doubt, sub-s. (1) of s. 7 empowers the Government to consti- tute  a  Tribunal for adjudicating  industrial  disputes  in accordance  with  the  provisions of the  Act.   But  merely constituting a Tribunal for such a purpose is                             851 not  enough.   It  has also to act under s. 10  and  make  a specific  reference to it of each dispute for  adjudication. Without  such  a  reference the Tribunal does  not  get  any jurisdiction to adjudicate upon any dispute.  On this  short ground the appeal must be allowed. We will, however, say a word about the ground upon which the Tribunal  thought it fit to give the retrenched workers  the benefit  of  the provisions of s. 25 (H) on  the  ground  of social  justice.   Wide though the powers of  an  Industrial Tribunal are while adjudicating upon industrial disputes, it cannot arrogate to itself powers which the legislature alone can  confer  or do something which the legislature  has  not permitted  to  be  done.  Section 25 (H)  provides  for  re- employment of retrenched workmen in certain circumstances in preference to newcomer,-.  But Act 43 of 1953 which  enacted this  provision  clearly  provides in sub-s.  (2)  of  s.  1 thereof’ that "it shall be deemed to have come into force on October 24, 1953." Clearly therefore, the provisions of this section  cannot  apply to workmen who  had  been  retrenched before this provision came into force.  The legislature  did not intend the provisions to come into force before  October 24,  1953.  When that is the mandate of the  legislature  no

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Tribuual has jurisdiction on the basis of its own conception of  social justice to ignore it and apply the provisions  or its  underlying "principle" to a dispute which arose  before the provisions came into force. For  both these reasons, we allow the appeal and  quash  the award of the Industrial Tribunal.  There will be no order as to costs as the respondents have not put in an appearance. Appeal allowed. 852