DELHI CLOTH & GENERAL MILLS LTD v. SHAMBHU NATH MUKHERJEE & Ors.

Thus a dispute arose which lc.d to conciliation. and then to Reference which resulted in an award in favour ol the workman on December 2 l. 1967, reinstating him in service with full back wages. The Labour Court, however, made it clear that "if the management wants to revert or retrench him it should do so in accordance with the rules and regulations applicable to his case after taking proper proceedings according to rules'". Even this reasonable order of the Labour Court was not palatable to the management. The manage ment therefore preferred an application under Article 226 of Constitution before the High Court and the learned single Judge reject- ed the same. A further appeal to the Division Bench met with the same fate resulting in this appeal by certificate. Before the Labour Court an objection was taken questioning the Reference and the following i~suc was framed : - D E "Whether the dispute is an industrial dispute and the refcr.:nce is bad" ? The Labour Court answered the issue against the management holding F as follows : - "Under the newly added section 2A of the Industrial Disputes Act, any dispute regarding.discharge, dismissal, re trenchment or termination of services of even an individual workman amounts to an industrial dispute. I am therefore unable to accept the argument of the management that the dispute referred to this Court cannot be treated as an industrial dispute because it relates to an individual workman". It is clear from the above that no objection was taken by management to the effect that the case of the workman had not been It is precisely hy espoused by other workmen or by any union. raising this factual question that a new point with regard to vires of section 2A of the Industrial Disputes Act has been presented before this Court for the first time. It is true that in the grounds taken in the B:igh Court it was stated "that section 2A of the Industrial Dis putes Act is ultra-vires the powers of the Legislature under Item 22 G " ' -- I 594 SUPREME COURT REPORTS [1978] 1 s.c.R. B A List Ill to Schedule Vll of the Constitution al India", but this objec tion can only be, as is now made clear by the appellant, on the basis that the dispute relating to the workman had not been espoused by other workmen or by a union. A perusal of the Reference under section lO(l)(c) docs not ex-facie show that it was a Reference of an individual disputes under sccfo_n 2A. That being the position, if the appellant wanted to raise this question before the Labour Court it was necessary for it to raise a triable issue by stating the facts that the dispute relating to the termination of service of the workman was not espoused by the union. Merely taking a ground in the writ appli cation docs not dispense with the requirement of stating facts in order td support the legal ground. If the ground were taken by making appropriate allegations it would have been necessary for the Labour Court to call for a report from the Administration and it would have c been possible for the workman to show that his case was in fact espoused by a substantial number of workmen or by a uuion. From the judgment of the learned single Judge it does not appear that this question of the vires of section 2A had been urged before It was only urged that section 2A was invalid since it offendecl him. Article 14 of the Constitution. D E F G H Another objection was taken before the learned single Judge "that there .>ould be no reference in respect of the industrial dispute under section 2A which was placed on the Statute Book after the ter this case". The mination of the employment of the workman appellant has not pressed this point urged before the learned single Judge but has addressed us on Article 14 of the Constitution. Be fore the Division Bench the objection under Article 14 was repeated but the question of section 2A being ultra vires because of legislative It may l;>e that the point was not inrnmpetency was not urged. specifically argued because of a Full Bench decision of the Delhi High Court but that does not satisfy the basic factual requirement for the objection that it was actually a case of an individual dispute under section 2A, unespoused by the union, which was referred by Administration under section 10(1) (c) of the Act. We have to state the above facts in some detail as the appellant on the second day of the argument submitted before us that since he was raising the vires of section 2A on the ground of legislative incompetency the appeal had to be heard by a Bench of seven Judges under Article 144A which was introduced by the 42nd Amendment of the Constitution. Before this constitutional question could be raised it must be manifest on the records that the question arose on the facts disclosed. As we have pointed out, there was no allega tion by stating appropriate facts that the dispute of the workmen had not be.en espoused by the union or by a substantial number of workmen. There is nothing to .show on the face of the Reference that the Administration was conside1ing the case on the basis of section 2A of the Act. Even though recital of section 2A was not there in the Reference, it was open to the management to raise the issue before the Labour Court as to whether in fact it was a dispute which was referred, by the Administration merely on the application D. c. M. v. s. N. MUKHERJEE (Goswami,!.) 59 5 of the workman. On the other hand, we find that the Reference was made by the Lieutenant Governor under section lO(l)(c) read with section 12(5) of the Act. There is nothing to show that even before the Conciliation Officer any objection was taken by the management that it was not an industrial dispute within the meaning of section 2\k) of the Act. Nothing prevented the management from raising such an issue even before the Conciliation Officer. We are, there fore, clearly of opinion that this is not a case where litigation can be allowed to be dragged on by allowing the management to raise this question for the first time in this Court without any basis. We, there fore, decline to accede to the request that this is at all a fit appeal for reference to a Bench of seven Judges. There is no basis for con sidering the provision of section 2A in this appeal. With regard to the objection on the score of Article 14 of the Constitution, it is sufficient to state that the matter is concluded by the principle laid down by this Court in Niem/a Textile Finishing In that case Mills Ltd. v. The 2nd Pu~1jab Industrial Tribunal('). a challenge was made, inter alia, to section 10 of the Act as being invalid on the ground of .violation of Article 14 of the Constitution. In an exhaustive judgment, ,this Court, repelled the contention. A B c J) It is submitted by Mr. Dial that in that decision this Court was only required to consider the objection raised on the score of Article 14 on a ground which is different from the one he would like to take before us. We are, however, unable to accept this submission. If this Court held section 10 as intra vires and repelled the objection under Article 14 of the Constitution it would not be permissible to E raise the question agaiu by submitting that a new ground could be" raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that section 10 of the Act does not violate Article 14 of the Consti tution. Th•e ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Article 14 of the Coru; titution in respect of the present reference under section 10(1) (c) therefore, of th•e Act. The submission of the learned counsel devoid of substance. is, F The question then arises whether the High Court was right refusing to interfere with the award under Article 226 of the Consti tution. There is no manifest error of law on the face of the award and none could be pointed out by the learned counsel. Neither is there any error of jurisdiction. The issue before the Labour Court was one of reinstatement of the workman and the Labour Court was entitled to go into the whole question which it did. We do not find any infirmity in the award. G On the face of it, the order striking off the name of tl1e work- man from the rolls on August 24, 1965, is clearly erroneous. No H order, even under section 27(c) of the Standing Orders, could have (l) [1957] SCR 335. ' 59 6 SUPREME COURT REPORTS [ 19781 1 s.c.R. A been passed on that date. The clause in the Standing Orders reads as follows : - "If any workman absents for more than eight consecu tive days his services shall be terminated and shall be treat ed having left the service without notice". The workman last attended work on, 14th August, 1965. 15th August was a public holiday. He was, therefore, absent from work only from -16th of August. So even under the Standing Orders the \.VorkJnan \vas not absent for "more than eight consecutive days'' on 24th August, 1965. The order is, therefore, clearly untenable even It is not necessary to express on the basis of the Standing Orders. any opinion in this appeal whether "eight consecutive days" in the Stand.ing Orders mean eight consecutive \Vorking days. Striking of the name of the workman from the rolls by the manage is termination of his service. Such termination of service il: retrenchment within the meaning of section 2(00) of the Act. There is nothing to show that the provisions of section 25F (a) and (b) were complied with by the management in this case. The provisions of section 25F (a), the proviso apart. and (b) arc mandatory and any order of retrenchment, it\ violation of these two peremptory con ditions precedent, is invalid. B c D We <lo not find any merit in this appeal which is disrni, sed with costs. M.R. • Appeal dismissed . 930 SCI/77-2,500-22-3-78-GIPF.