F, though the basic consideration must v. A. D. Divikar

Relying on the decision in /. K. Hosiery Factory v. Labour Appellate Tribunal of India (1) , learned counsel three points before us. for the appellant has urged His fir~t point is that the termination of the services of all workmen on a real and bona fide closure of business is not 'discharge' within the meaning of cl. (b) of s. 22 of the Act. His second point is that if the word 'discharge' in cl. (b ). aforesaid includes termina tion of services of all workmen on bona fide closure of business, then the clause is an unreasonable restriction on the 'fundamental right guaranteed in cl. (g) of Art. 19(1) of the Constitution. His third point is that, any view, the Labour Appellate Tribunal, was not entitled to grant compensation to the workmen, because s .. 23 of the Act did not in terms entitle the Labour (1) A.LR. 1956 All. 498. Banaras 111 FodDrJ Li.mud v. Its Wor.bntia S. K. D., ]. 148 SUPREME COURT REPORTS [1957] Appellate Tribunal to pass an order of compensation. that if the appellant succeeds on We may state here the first point, it becomes unnecessary other two points. to decide For a consideration of the first point, we must first read ss. 22 and 23 of the Act. Section 22 : "During period of thirty days allowed for the filing of an appeal under section IO or during the pendency of any appeal under this Act, no employer shall- ( a) alter, to the prejudice of the workmen con service the conditions of the filing of such appeal, them immediately before cerned applicable such appeal, or (b) discharge or punish, whether by dismissal or concerned in such appeal, the express permission in writing of otherwise, any workmen save with Appell.ate Tribunal." Section 23 : "Where an employer contravenes provisions of section 22 during the pendency of pro ceedings before the Appellate Tribunal, any employee, aggrieved by such contravention, may make a com to such plaint in writing, in the prescribed manner, Appellate • Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending before it, in accordance with the provisions this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly." the word The short question before us is whether 'discharge' occurring in cl. (b) of s. 22 includes all workmen on a real and nation of the services of the employer. It bona fide closure of his business by is true that is not qualified by the word any limitation in cl. (b). We must, however, take the enactment as a whole and consider s. 22 with reference to the provisions of the Industrial Disputes Act, 1947, (XIV of 1947) which is in pari materia with the Act under our consideration. We have had occasion consider recently in two cases the general scheme and 'discharge' 1956 Banar111 lt:JJ FtJ&lory Lilailld v. lls Workmen s. K. DM J. S.C.R. SUPREME COURT REPORTS 149 ensure In Pipraich Industrial Disputes Act, 1947. In Burn scope of the this Court & Co., Calcutta v. T lzeir Employees (1) all labour legislation was observed that the object of fair terms to the workmen and firstly, to prevent disputes between employers and secondly, employees so that production might not be adversely affected and the larger interests of the public might not suffer. Sugar Mills Ltd. v. Pipraiclz Suga,. Mills Mazdoor Union (9 ) it was observed-"The fulfilment objects mentioned above only in an existing and not industry." We the view acceptcJ lndian Metal and Metallurgical Corporation Industrial Tribunal (3 ) Padmanabha Ayyar v. The State of and K. M. Madras (4 Industrial Dis putes Act, 1947, industry and not a dead reiterated in Hariprasad Shivshankar Shukla v. A. D. Divikar (6 ) where we held that 'retrenchment' in cl. ( oo) of s. 2 and termination of the services of s. 25F did not include workmen on bona fide closure of business. industry. The same view was that the provisions of the can have a dead to an existing expressed in applied v. ) to a to exist, industry itself ceases Turning now to s. 22 of the Act, it is clear enough that d. (a) applies running or existing industry only ; when the to talk of alteration of the conditions of service otiose prejudice, because of the workmen an end. The alteration service itself has referred to in cl. (a) must therefore be an alteration the work the conditions of sen•ice to men concerned, existing or running industry. Similarly, the second part of cl. (b) relating to punish running or existing ment can have application to a industry only. exist, there can be no question of punishment of a workman by dismissal or otherwise. We are then left word is, it must, we think, be interpreted in harmony with the general scheme and scope of the Industrial Disputes Act, 1947. Our attention has been drawn to 'discharge'. Unqualified the prejudice of 'Vhen the the word industry though in an ceases itself (1) [1956] s. c. R. 781. (2) [1956J S. C.R. 872. (~) /\.. I. R. 1953 Mad. g8. (4) [1954] I L .. L. J. 469. (5) (1957] S. C.R. 121. Banaras Ice Factory Limilttl v. Its Workmen S. IC Da< ], 150 SUPREME COURT REPORTS [1957] relation to industrial dispute, the definition of 'workman' in cl. (s) of s. 2, which says-" ... for the purposes of any proceeding under this Act in (the definition) includes any person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dis charge or retrenchment has In the said definition clause also, 'discharge' means discharge of a person in a running or continu ing business-not discharge of all workmen when industry itself ceases to exist on a bona fide closure of business. that dispute." the word led to termination It was pointed out The true scope and effect of ss. 22 and 23 of the Act were explaintd in The Authomobile Products of India Ltd. v. Rukmaji Bala( that the object of s. 22 was "to protect the workmen the subject-matter concerned in disputes which formed of pending proceedings against victimisation" and further object was "to ensure that proceedings in con nection with industrial disputes already pending should be brought to a in a peaceful atmosphere and that no employer should during the pendency of take any action of the kind men these proceedings sections which may give rise to fresh tioned in the disputes the already exacerbate the work strained relations between the employer and men." Those objects are in a running or continuing industry only, and not a dead industry. There is hardly any occasion for praying for permission to lift the ban imposed by s. 22, when the employer has the right to close his business and bona fide does so, with the result that the If there is no real closure but a self ceases to exist. mere pretence of a closure or it is mala fide, there is no closure in the eye of law and an industrial dispute and may even complain under s. 23 of the Act. capable of fulfilment the workmen can industry further likely For these reasons, we must uphold the first point The taken before us on behalf of Appellate Tribunal was in error in holding the appellant. _(1) (1955] t S. C.R. i241. Bm1aras let Faaoty Limited Its Workm1• S. JC Dns J. S.C.R. SUPREME COURT REPORTS 151 the appellant's business was not bona appellant had contravened cl. (b) of s. 22 of the Act. find that the closure The Appellate Tribunal did not fide; on the it proceeded on contrary, in awarding compensation, the footing that the appellant was justified in closing reasons stated by it. As its business on account of the 1952, the workmen themselves did not abide by the appellant's right ca'nnot be defeated on that ground. June 15, the agreement of In view of our decision on the first point, it becomes unnecessary to decide the other two points. On the point of construction of s. 22 of the Act, we approve the dicision of the Allahabad High Court /. K. Hosiery Factory v. Labour Appellate Tribunal of India (supra) but we expressing any refrain opinion on the other points decided therein and we must not be understood to have expressed our assent, contrary to the opinion expressed by us in the case of The Automobile Products of India Ltd. (supra) to the vie)V that under s. 23 of the Act, it is not open to an Industrial Tribunal to compensation m an appropriate case. In the result, the appeal is allowed and the decisio!l the Labour Appellate Tribunal dated the 30th the workmen did not there will be no order for costs. We for presenting October 1952 is set appear before us, before us the case of the workmen as amicus curiae. indebted to Mr. Sukumar Ghosh aside. As Appeal allowed. S-76 S. C. Indiaf59