Rai Sahib Ramdayal Ghasiram Oil Mills v. the Labour Appellate Tribunal and Another

Judgment

RAI SAHIB RAMDAYAL GHASIRAM OIL MILLS THE LABOUR APPELLATE TRIBUNAL AND ANOTHER (S. J. IMAM, J. L. KAPUR, K. SUBBA RAo and J. R. MuDHOLKAR, JJ.) 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-Wag" reduced-Reference made to single member Tribunal-Another sinyle member Tribunal after /&is retirement-No fresh reference made-Whether neio Tri'bunal hao jurisdiction to adjndicate- Constitution of India, Art. 226-Industrial Disputes .let 1947 (14 of 1947), ss. 7 (1), 8 (2), 10 (1) (c)-lndustrial Dis- 1iutes Act, 1947, as amended by Industrial Disputes (Amendment) Act 1953, s. 25 (H). The appelhnt concern was closed on the ground that it incurred heavy losses. Thereupon the workmen raised an industria1 dispute and they were awarded rctrcnclunent benefits. About.two years later the appellant concern was reopened.

But only some of the former wor werekers re-employed along with some new recruits. The wages were lower than before. The workers put forward certain damar.ds 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 une1nployment 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 Governmeut then purporting to act under s. 7 (I) of the Industrial Dispute Act, 1947 and in supercessio.n of the pre~ vious notification constituted a single ~1ember 'fribunal. This 'fribunal to which no fresh reference was n1ade proceeded with the adjmlication of the dispute. Apart· from the demands already made the workers conlendcd before the Tribunal that they were entitled to the benefits under s;

25 (H) of the Industrial Dispules Act, as amended by the Industrial Dhputcs (Amendment) Act, 1953. Thr, appellant contended that the Tribunal had no jurisdiction to adjudicate upon the dispute J96f Rlli SaW Ramdayal G. asiram Oil Mills The Labour AJ,pellate Tribunal and that s. 25 (H) wa• not available to the fvrmer workmen who had been retrenched. The first contention of the appellant was rejected. Even though the second contention was accepted the r[ rih11naJ made an order in favour of the \.\'Orkmcn on the ground that though they cannot clain1 the statutory benefits of s. 25 (H) the principle of sucialjusticc 11n<lcrlyi11g that section entitled them to receive s.-ila.ries au<l allowances from the date of reopening the mill. The appellaut preferred an appeal to the Industrial Appellate Tribunal. On the dismissal of that appeal the appellant filed a writ petition before the High Conrt of Bombay.

The High Court sununarily dismissed that petition but a c·crtificatc was granted to appeal tu this Court. The appellant reitrated before this Court the two contcutiuus stated abvve. Held, that snb-s. (I) of s. 7 of the Industrial Disputes Act empowers the Government to constitute a Tribunal. But n1ercly constituting a Tribunal tOr adjudicaiion of disputes is 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 'fribunal docs not get any jurisdiction to adjudicate upou any dispute. The provisions of s. 25 (H) caunut apply to workmen \vho had been retrenched before thls section came into force. 'fhe provision not Ueing retrospective no tribunal h<is jurisdiction 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 cainc into force. CIVIL APPELLATEjURSIDICTION: Civil Appeal No. 593/1960.

Appeal from the order dated October HI, 1956, of 'the Bombay High Court in special Civil Application No. 2832 of 1956. Bi11lian N um-in and K. L. JJf eh tu, for the appellant. The respondent did not appear. 1962. December JO. The Judgment of the Court· was delivered by MUDHOLKAit, 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 arc these: Rai Sahib Ramdayal Ghasiram Oil .l\1ills (hereinafter referred to as the Mills) were closed on September 1, 1!)52 on the ground that they h.td sustained heavy losses. The closure was found to be /Jonri fide and the workmen were awarded retrenchment benefit. The mills, however, reopened on November H, l !154, 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 lndusttial Tribunal consist· ing of Mr. Kurian, under s. 7 of the Industrial Disputes Act, as it stood on that date, on May 13, 1955 and referred the following dispute to him : ''Whether the retrenched workmen referred t~n the Annexures A, Band 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, l!J53 are entitled for reinstatement and compensation for unemployment after reopening of the said Mills." lt may be mentioned that •hortly after the Tribunal was constituted and reference made to it, .l\1r.

Kurian retired in consequence of which the Roi Sahio Rmniayal Gtr.siram Oil Mills The Labour AppellOle Tribunal Mudholkar, J, Rai Sailib Ramdayal Ghasiram Oil Mills Thi Lafour Appellate Triiunal Mudholkar, J, Government of Hyderabad made the following notification on June 2, 1955 : "In exercise of the powers conferred by sub· section ( l) of section 7 of the Industrial Disputes Act l!J-17 (XIV of l!J47) and in supersession of the Labour Department Notification No. B. 189/54/134 dated 15-10·1954 the Rajapramukh hereby consti· tutes 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 entiled to re·employment on the same wages as obtained at the date of closure.

This claim was based upon the award made by the In· dustrial Tribunal on January l, 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 om' year from the date of award becomes en· forceablc 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 2!J, l!J52." 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 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 con· tention 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 amend· ed by Act 43 of 1953 were not available to the former workmen who had been retrenched. The first contention and other contetnions to which we have not made any mention were rejected by the Tribunal but the contention that the provisions of s. 25 (ll) 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 clai~ 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." 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. ll.ai ~tzhib Ramda'lal Gha.riram Oil Mills . The Lubour Appellat1 Tribunal Mutlholkar, I. Roi Sahib Jlaminofol Ghasrrom vii Mills The Labour APP<llak Tribunal Mudholkar, J. It seems to us that the contention of the appe· llant 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 Tribunalsfor 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 indepedent 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 Govern· ment took action under s. 7 sub-s. (I) of the Act "in supersession" of its previous uotification and constitu· ted 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 mere! y a vacancy therein and therefore there was no occassion to constitute a fresh Tribunal under sub-s. (I) of s. 7 because, having constituted a fresh Tribunal, the Government failed to refer the dispute in question to it under sub-s. (I) (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 no necessity to make a fresh notifi· cation under s. 10 (1) (c) referring the particular dis· pute 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 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 newcomen. 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 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 allowerl. Rai Sahib Ramdayal Ghasir.,;m Oil Mills The Labour Appellate Tribunal Mudlwlkar, J,