Constitutional Writ Jurisdiction v. Eastern Chemofarb Pvt. Ltd. Permanent Worker‟s Union & Anr.

15. The Tribunal finally on taking evidence and on hearing the parties and considering the materials on record ordered as follows:- “ORDERED that the instant referred case under section -10 of Industrial Dispute Act, 1947 framing the issues therein forwarded to this Industrial Tribunal under Letter No. Labr/647/(LC-IR)/22015(16)/29/2022 dated 29/06/2022 issued by the Joint Secretary to the Government of West 5 Bengal, Labour Department be and the same is considered, adjudicated and allowed on contest against the M/s Eastern Chemofarb Pvt. Ltd. and it’s Management and without any cost and/or costs. Accordingly, it is declared that the Suspension of work in M/S Eastern Chemofarb Pvt. Ltd., Village-Damda, P.O.- Simulia, Dist.- Purulia with effect from 13/07/2021 issued by the notice of suspension of work by the Management and its Employer, M/S Eastern Chemofarb Pvt. Ltd. is unjustified. It is further directed the M/S Eastern Chemofarb Pvt. Ltd. And it’s Management to allow the workmen to resume their duty and effect from 13/07/2021 along with all their service benefits which they are entitled to receive accordance with law. The Employer, M/S Eastern Chemofarb Pvt. Ltd and it’s Management are directed to release all the service benefits of the workmen form 13/07/2021 till the date/dates of their respective joining in the factory immediately within 1 (one) month from the date of communication of the award to Employer by the appropriate Government. A copy of this award be sent to the Secretary, Labour Department, Government of West Bengal for their information and taking necessary action in accordance with law. Thus, this case hereby stands disposed of. 6 Sd/- Judge, 9th Industrial Tribunal, Durgapur”

16. The contention of the petitioner praying for setting aside of the award under challenge is that the learned Tribunal passed an erroneous award, as Section 25-(O) of the Industrial Disputes Act would not be applicable to the present case as the factory was not closed and it was only a suspension of work and also because at the material point of time, the management had not employed 100 or more workmen at the factory. It is further submitted that suspension of work as declared was not illegal, as it is not prohibited by law and as such it is stated that the learned Tribunal wrongly applied the provision of Section 25(O)(1) of the Industrial Disputes Act and held that the suspension of work is unjustified.

17. The specific reason for not implementing the award under challenge is that there is no sufficient number of workmen remaining in the factory after superannuation/retirement of majority of the workers and that the machines have now become dysfunctional because of factory being closed for a long period.

18. Written notes has been submitted by the petitioner but there is no representation on behalf of the respondents. It appears that the learned Tribunal held that onus was upon the employer to prove the cause of suspension and it‟s justification.

19. It is the petitioner‟s case that it is the party which challenges the justifiability of suspension of work must prove the same. 7

20. The petitioner has relied upon the following judgments in support of their case:- i) Collector of Customs, Calcutta and ors. –vs- Biswanath Mukherjee, in FMA 435 of 1970 passed on

20.12.1974; ii) Management of Express Newspapers (Pvt.) Ltd., Madras vs. The Workers and others, reported in AIR 1963 SC 569; iii) Management of Rodio Foundation Engineering Ltd. And anr. –vs- State of Bihar and others, reported in 1969 SCC Online Pat 44.

21. From the materials on record and the relevant provisions of the Act it is evident that the tribunal decided the reference on the following findings:- i. The Employer/Eastern Chemofarb Pvt. Ltd. has failed to prove the fact before this Industrial Tribunal that the notice of suspension of work was issued by the Management of Employer that due to recision of market, diminishing the production of goods, excessive employees sitting in idle and suffering from financial crunch by the employer in running the factory open month by month and year after year by adducing sufficient and cogent evidence. ii. The company has not submitted any statement of financial loss and profit of the company to come to a finding that the company was suffering from financial crunch in running the 8 factory or the intention of the employer is to take the factory to closing down of the factory. iii. That the case of the company that they had lack of work/orders, which led to the suspension, was demolished by way of evidence when the tribunal found that in their (company) cross examination (opw-1), it came before the Court that the company had received bulk order of good after issuance of notice of suspension of work.

22. The tribunal on holding that the suspension of work in this case amounted to „lock-out‟ under Section 2(l) of the Industrial Dispute Act, applied Section 25(O)(1) of the Act and held as follows:- “………..In view of the aforesaid definition of the Section -25(O)(1) of the Act, 1947, I am of the the Employer/Eastern considered Chemofarb Pvt. Ltd. or it’s Management has not produced any application of prior permission from the Industrial appropriate Government before Tribunal before the closure of the factory and issuance of notice of suspension of work that the Employer had made an application in the prescribed format to the appropriate Government for prior permission at least ninety days before the date on which the intended closure i.e 13-07-2021 is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and service of a copy of such application simultaneously on the representatives of the workmen in the prescribed manner……………”

23. The following definitions in the Industrial Dispute Act, 1947 are relevant in this case:- Section 2(cc) of the Industrial Dispute Act, lays down:- 9 “"closure" means the permanent closing down of a place of employment or part thereof;” Section 2(kkk) of the Industrial Dispute Act, lays down:- “"lay-off" (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break-down of machinery [or natural calamity or for any other connected reason] to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.” to give employment Section 2(l) of the Industrial Dispute Act, lays down:- “"lock-out" means the [temporary closing of a place of employment] or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him;”

24. Section 22 of the Act provides for prior notice in an establishment which is involved in public utility service before the employees can go on strike or the employers can declare a lock out.

25. Admittedly, the petitioners herein is a manufacturer of “lac” and thus do not run a public utility service.

26. The Industrial Dispute Act, 1947, doesn‟t provide the definition of „suspension‟. The word „suspension of work‟ is mentioned in the definition of “lock out” under Section 2(l) of the Act. As such the tribunal rightly held the suspension „Notice‟ issued by the petitioner to be a „lock out‟.

27. But, the tribunal was wrong in applying the provision under Section 25(O)(1) of the Act, as admittedly the company does not provide, nor 10 is involved in any public utility service and as such in view of Section 22 of the Act, the tribunal wrongly applied Section 25(O)(1) of the Act.

28. The petitioner/company in this case could have taken recourse to Section 2(kkk) of the Act which defines „lay off‟ which provides for such Act in certain situations including “shortage of raw materials”, which was one of the reasons given by the petitioner/company for issuing the “suspension of Notice”.

29. As such, the findings of the tribunal to the extent that the petitioner/company could not prove that there was sufficient justifiable reasons for „suspension of work‟, being in accordance with law, requires no interference.

30. Thus, the reference has been answered in accordance with law by the tribunal in it‟s award under challenge.

31. WPA 12164 of 2025 is dismissed.

32. Pending applications, if any, stands disposed of.

33. Interim order, if any, stands vacated.

34. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities. (Shampa Dutt (Paul), J.)