JUDGMENT
K.S. Radhakrishnan, J.
1. Primarily two questions of law have arisen for consideration in these cases, one is whether the liability of the management to provide re-employment under Section 25H of the Industrial Disputes Act even in the event of a valid retrenchment, would cease on expiry of the time limit of 1 year prescribed under Rule 78 of the Kerala Industrial Disputes Rules, 1957 and another is whether in the case of a closure of an undertaking under Section 25FFF of the I.D.Act the workmen could claim re-employment under Section 25H of the Act. We will deal with the first question first.
Rule 78 of the Kerala Industrial Disputes Rules, 1957
2. Conflicting views have been expressed by two learned Judges of this Court in O.P. 10251 of 1985 and O.P. 6579 of 1986 on this question and hence these matters have been placed before us for an authoritative pronouncement. The view expressed in O.P.10251/85 was that liability of the management to provide re-employment to retrenched workmen under Section 25H would cease on the expiry of the time limit of one year prescribed under Rule 78 of the Kerala Industrial Disputes Rules and the workmen cannot seek any claim to the vacancies which arise after the period of one year as of right. Another view expressed in O.P. 6579/86 was that the mere fact that a workman, retrenched one year prior to the occurrence of vacancy, is not entitled to an individual notice under Rule 78 does not mean that his right to offer himself for re-employment under Section 25H is permanently lost. During the pendency of these cases another learned Single Judge of this Court in Premier Automobiles Ltd. v. Cochin Labour Union 2000-III-LLJ 1138, took the view that Rule 78 which has prescribed that rights could be enforced only for limited period is neither illegal nor arbitrary, which according to the learned Judge was prescribed for the interest of employer as well as the employee.
3. Section 25H of the Industrial Disputes Act, 1947 deals with re-employment of retrenched workmen which says that where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Industrial adjudication generally recognized the principle that if an employer retrenched the services of an employee on the ground that the employee in question had become surplus, it was necessary that whenever the employer had occasion to employ another hand the retrenched workman should be given opportunity to join service. Apex Court in Cawnpore Tannery Ltd. v. Guha & Sons 1961 (II) LLJ 110, had pointed out that his principle was regarded as of general application in industrial adjudication on the ground that it was based on considerations of fair play and justice. Reference may be made to the decisions of the Apex Court in Vishuddananda Saraswathi Hospital v. Their employees 1949 LLJ 111 Kilburn and Co. & Mac Neill & Co. v. Their employees 1950 LLJ 125 and Annapurna Mills v. Certain workmen 1953-I LLJ 43. The above principle was statutorily recognized under Section 25H of the Industrial Disputes Act which is a substantive right of the employees who have been retrenched from employment. Section 38 of the Industrial Disputes Act empowers the appropriate Government to make rules for the purpose of giving effect to the provisions of the Act. Sub-section 2(g) of Section 38 enables the appropriate Government to prescribe rules to give effect to the provisions of the Act. In exercise of powers conferred under Section 38 of the Industrial Disputes Act, 1947 the Central Government framed the Industrial Disputes (Central) Rules, 1957. Rule 78 of the Central rules obliges the employer to display on a notice board at least ten days before the date on which vacancies are to be filled, the details of those vacancies. Further the management is also obliged to give intimation of those vacancies by registered post to every one of all the retrenched workmen eligible to be considered therefor.
4. Section 38 also empowers the State Government to frame rules. In exercise of rule making power State Government have framed the Kerala Industrial Disputes Rules, 1957. Rule 78 is the State Rules relevant for our purpose is extracted hereunder for easy reference.
78. Re-employment of retrenched workmen — (1) At least ten days before the date on which vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also give intimation of those vacancies to every one of all the retrenched workmen, eligible to be considered thereof, to the address given by him at the time of retrenchment or at any time thereafter:
Provided that where the number of such vacancies is less than the number of retrenched workmen, it shall be sufficient if intimation is given by the employer individually to the senior most retrenched workmen in the list referred to in Rule 77 the number of such seniormost workmen being double the number of such vacancies:
Provided further that where the vacancy is of a duration of less than one month, there shall be no obligation on the employer to send intimation of such vacancy to individual retrenched workmen.
(2) Immediately after complying with the provisions of Sub-rule (1), the employer shall also inform the trade unions connected with the industrial establishment of the number of vacancies to be filled and names of the retrenched workmen to whom intimation has been sent under that sub-rule:
Provided that the provisions of this sub-rule need not be complied with by the employer in any case where intimation is sent to every one of the workmen mentioned in the list prepared under Rule 77.
(3) The employer’s liability to send notice of vacancies to the retrenched workmen shall be limited to one year from the date of retrenchment, A retrenched workmen on receipt of the notice of vacancies from the employer shall offer himself for work or sent a reply within a period of 10 days from the date on which the notice is posted and if he fails to do so, he shall lose all his claims for preference in future vacancies and the employer shall be free to fill the vacancies in all case when retrenched persons do not come forward for re-employment.
Controversy centres round Sub-rule (3) of Rule 78. Such a sub-rule is absent in the Central Rules. Sub-rule (3) of Rule 78 states that the employer’s liability to send notice of vacancies to the retrenched workmen shall be limited to one year from the date of retrenchment. Contention was raised by the counsel for the management that on the expiry of one year from the date of retrenchment the employer’s obligation to offer re-employment to the retrenched workmen under Section 25H of the I.D.Act ceases and the employee shall lose all his claims for preference in future vacancies and the employer shall be free to fill up the vacancies de hors Section 25H of the I.D.Act. Counsel for the workmen on the other hand, contended that Sub-rule (3) of Rule 78 cannot take away the substantive right of the retrenched workmen for re-employment under Section 25H of the Act and if that be so, rule will be ultra vires the parent Act and is liable to be struck down.
5. Rule making authority cannot prescribe any rule which is inconsistent with the Act or which restricts the substantive rights conferred on workmen. Delegated authority must exercise its powers strictly within its authority, a principle well settled and accepted by several decisions of the Apex Court. Reference may be made to the decision of the Apex Court in State of M.P. and Anr. v. Bhola alias Bhairon Prasad Raghuvanshi . A delegated legislation can be declared invalid by the Court mainly on two grounds: firstly, that it violates any provision of the Constitution and secondly, it is violative of the enabling Act. Rule making authority if exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act. Reference may also be made to an earlier judgment of the Apex Court in B.B. & D. Mfg. Co. v. E.S.I. Corporation wherein the Apex Court examined the scope of Rule 17 framed by Bombay Government prescribing limitation for filing application under Section 75 of the Employees State Insurance Act, 1948. Section 96(1)(b) of the Employees State Insurance Act confers power on the Government to prescribe period of limitation for claim under Section 75 of the Employees’ State Insurance Act. Sections 68 and 75 of the parent Act never provided any period of limitation of claim by an employee for payment of any benefit under the regulations. Lagislature did not intend to fetter the claim under Section 75(2)(d). Court held that where the legislature clearly intends to provide specifically the period of limitation in respect of claims arising thereunder it cannot be considered to have left such matters in respect of claims under some similar provisions to be provided for by the rules to be made by the Government under its delegated powers to prescribe the procedure to be followed in proceedings before such Court. Court took the view that such a provision affects substantive rights and must therefore be dealt with by the legislature itself and is not to be inferred from the rule making power conferred by regulating the procedure unless that is specifically provided for. Reference may also be made to a Bench decision of this Court in Jayadevan v. State of Kerala 1981 KLT 86 wherein the Court held Rule 3 fixing a time limit for preferring an application under Section 8 of the Kerala Private Forest Vesting and Assignment Act, 1971, is ultra vires and void.
6. Right conferred under Section 25H is a substantive right which statutorily recognizes the right of a retrenched workman for re-employment. If the employer proposes to take into his employ any person he is legally obliged to give an opportunity to the retrenched workmen to offer themselves for re-employment and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Section 25H has not prescribed any time limit for the employer to employ any of his retrenched workmen nor has it prescribed any time limit for the employees to offer themselves for re-employment. Right of the retrenched workmen to offer themselves for re-employment arises only when the employer proposes to take into his employ any person. There is no statutory compulsion on the part of the employer to employ retrenched workmen within a specified time limit. The obligation on the part of the employer to employ his retrenched workmen arises only when the employer proposes to take into his employ any person. Evidently the employer will propose to do so only when need arises, a decision which the employer has to take. Section 25H does not say at what point of time the employer should take into his employ any person which may depend upon several factors like expansion, modernisation or diversification of business etc. demanding more job requirements. Requirement may arise immediately or on a future date, may be within one year or beyond. However, Sub-rule (3) of Rule 78 casts an obligation on the employer to send notice to retrenched workmen if an employer proposes to fill up the vacancies within one year from the date of retrenchment. Neither Section 25H nor Section 38 of the Industrial Disputes Act does confer any power on the appropriate Government to take away the substantive right of the employee to get re-employment under Section 25H of the Act. Further, right of the employee to get re-employment may arise within one year or beyond an year, which cannot be restricted by Sub-rule (3) of Rule 78. Rule making authority has no power to take away the substantive right of a retrenched workman for getting re-employment under Section 25H of the Act by limiting the liability of the employer to one year, which is beyond the scope of rule making power and therefore ultravires the parent Act and void and is accordingly struck down. We therefore fully endorse the view expressed in OP. 6579 of 1986 and disapprove the view expressed in OR 10251 of 1985 and also the view expressed in Premier Automobiles Ltd.’s case.
Judgment inter-partes
7. Counsel for the management Sri. Antony Dominic submitted that rights of two employees by name Alexander and Pavanan have been finally adjudicated by the learned single Judge of this Court in OR 10251 and 10745 of 1985 upholding the claim of the management under Sub-rule (3) of Rule 78 of the Kerala Rules. Consequently, whatever rights those employees had under Section 25H were lost in view of the inter-parte judgment. Counsel for the management submitted that the inter-partes judgment has become final since no appeal was preferred against that judgment and consequently the same point cannot be urged over and again before the Labour Court or before this Court. We find force in the contention of the counsel for the management. There is a clear finding by the learned single Judge against Alexander and Pavanan that even though they are entitled to the benefit of Section 25H the same has been lost in view of Sub-rule (3) of Rule 78, of course on a wrong interpretation of law. Even though we have found that, that decision was rendered on a wrong interpretation of law being an inter-partes judgment it is binding on both the parties. This legal position is well settled by the judgment of this Court in Union of India v. C.A.T. Ernakulam Bench 2002 (1) KLT 840 of which one of us, K.S. Radhakrishnan, J. was a party. Bench took the view judgments inter-partes which have attained finality cannot be nullified and set at naught by subsequent decisions. In a given case, it may be possible for the aggrieved party to get the judgment reviewed but the mere fact that a court of law has subsequently declared the law correctly would not have the effect of taking away substratum of the earlier binding decision between the parties whether it is rendered by the Tribunal or by courts. Applying the above mentioned principle we are of the view, so far as Alexander and Pavanan are concerned their right for re-employment under Section 25H has been lost in view of Ext.P2 judgment and therefore the Labour Court in ID. 55 of 1990 was not justified in ordering reinstatement of two of the above mentioned workmen with backwages. We therefore set aside the order of the Labour Court in ID, 55 of 1990 so far as K.J. Alexander and P. Pavanan are concerned. Claim for re-instatement of K. Subhandhhu, the other employee for re-instatement would be dealt with in later part of this judgment since we have approved the view expressed in OP. 6579/86.
8. We will now examine the claim of the employee which was adjudicated by the Labour Court in ID, 58 of 1991 against which OP. 86 of 1994 was preferred. The Labour Court upheld the demand for re-employment of one Vinod who was previously employed as Store Keeper/Clerical Assistant under the Management. Direction was given to the management to re-employ him immediately. Management was also directed to pay an amount of Rs. 5000/- towards cost. The issue that was referred by the Government under Section 10(1)(c) of the Industrial Disputes Act 1946 was with regard to the demand for re-employment of Vinod. Labour Court noticed that the Management is owning and running several factories in and outside the State of Kerala engaged in manufacturing and production of various kinds of consumer items and other products. Company is engaged in various kinds of business activities including the business of finance. It has also got a cashew factory, travelling agency etc. Management was having a fruit canning factory at Tellicherry. Workman joined in the service of the management on 13-5-1983 as casual employee on daily wages in the cashew division of the Management. After Fruit Production Division started functioning he was posted there as a casual staff. Employee had also worked at times both in the cashew division as well as the fruit canning division. Management thereafter absorbed the workman in the regular service. On completion of the probation period of one year management confirmed the workman in service as per order dated 28-1-1986 with effect from 1-1-1986. In the appointment order it was mentioned that he was posted in the fruit canning as well as in the cashew factory and as per terms of appointment order he was liable to be transferred in any of the companies under the management.
9. Fruit canning factory it was stated had functioned only for a period of three years and owing to trading and economic reasons it was closed down in December 1986. At the instance of the union by name Mercantile Employees Association a settlement was reached between the management and the union representing the workmen by which service of the workmen were terminated including that of Vinod. Settlement was arrived at on 31-12-1986.
Settlement under Section 2(p) and 18(1) of I.D.Act, 1947
10. Clause (2) of the terms of the settlement is relevant which is extracted below for easy reference:
The Management agrees to pay to the employees mentioned in Annexure A, compensation as detailed in Annexure B which includes retrenchment compensation under Section 25F of Industrial Disputes Act; Notice Pay; Encashment of Annual Leave to the credit of the employees and ex-gratia payment.
Clause (4) is also relevant, which is extracted below:
In the event of resumption of activity in the factory at a later date, the employees who have left the services as per this settlement, shall be considered to employment, subject to the requirement of the company and such other conditions that the Management may deem it necessary.
Workman later noticed that the management had appointed several persons, the names of whom have already been given in the award of the Labour Court, and hence made a request to the management for re-employment. Request was rejected by the management not only on the basis of Sub-rule (3) of Rule 78 but also on the basis that the fruit canning factory was never reopened and also on the basis that the workman had voluntarily left the services of the management under Clause (1) of settlement dated 31-12-1986 and therefore it will not come with the definition of retrenchment. Management therefore took up the stand that since the workman had voluntarily left the services of the management he is not entitled to get re-employment under Section 25H of the Act. Further, it was also pointed out that cashew and fruit canning factory are two different and independent factories of the management and since the fruit canning factory was never reopened the workman is not entitled to get re-employment as per the settlement. Further, it was also pointed out by the management that the claim of the workman is being espoused not by the union which was signatory to the agreement but some other union and consequently the workman cannot raise a dispute and that dispute will not come under Section 2A of the Industrial Disputes Act. Management gave oral and documentary evidence before the Labour Court. General Manager of the company was examined as MW-1. Ext.M1 is the letter dt. 29-7-87 issued by the management to the union. On the side of the workman, workman was examined as WW-1. Chairman of the Mercantile Association was examined as WW-2. On the side of the workman W-1 to W-14 were produced. Labour Court after appreciating the oral and documentary evidence came to the conclusion that the termination of employment was by way of “voluntary retirement” cannot be accepted and took the view that the termination of the employee is nothing but retrenchment. Further, Labour Court also rejected the contention of the management that the dispute will not come under the purview of Section 2(K).
11. Counsel appearing for the management Sri. Antony Domenic submitted that Labour Court has committed an error in not properly appreciating the scope of Ext.Pl agreement. Counsel submitted since workman has agreed to leave the service of the company by way of a settlement, it amounts to voluntary retirement and it is not retrenchment as defined under Section 2(oo) of the I.D. Act so as to attract the provisions of Section 25H. Counsel referred to several decisions of the apex court of which we may refer to a recent decision in Maruti Udyog Ltd. v. Ramlal . Counsel submitted on the closure of the undertaking the relationship of the employer and employee does not survive and ceases to exist. Counsel further submitted in the case of closure of an undertaking following provisions of Section 25F the workman is not entitled to get the benefit of Section 25H of the Act. In effect, counsel submitted there is no retrenchment within the meaning of Section 2(oo) of the Act. Counsel submitted, Ext. P1 settlement would indicate that the workman had voluntarily left the institution after receiving compensation as provided under Section 25F of the Act, Counsel also submitted Section 25FF of the Act only enables the workmen to get notice and compensation in accordance with the provisions of Section 25F as if the workmen had been retrenched. Further, they have no other right and they are not entitled to get benefit of Section 25H of the Act. Even on the question of the right of the union to refer the dispute counsel submitted Ext.P1 was signed by the Mercantile Employees Association on behalf of the workman and they had not raised any industrial dispute. The industrial dispute is raised by some other union. The union which had represented the workman is bound by the settlement dated 31-12-1986 which would only safeguard the right for re-employment provided, the factory is reopened. No evidence has been adduced by the workman to show any resumption of activity at the fruit canning factory. Counsel therefore submitted Labour Court has committed an error in ordering reinstatement.
12. Senior counsel appearing for the respondent union Sri. M.K. Damodaran on the other hand, contended that several persons were taken into service by the management after the date of settlement. Counsel submitted workman has got a right for re-employment under Section 25H of the Act. Counsel submitted workers were not given voluntary retirement. But the agreement would indicate that it is retrenchment within the meaning of Section 2(oo) of the I.D. Act. Counsel placed reliance on the decision of the apex court in Central Bank of India v. S. Satyam and Ors. 1996 II LLJ. 216 and contended that Section 25H is couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25F. Counsel submitted it is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman. Counsel also submitted the object and purpose of Section 25H is strictly restricted to weaker sections of the society, a prerequisite for a welfare State. Counsel also submitted even though the union which was a party to the settlement had not espoused the cause of the workman before the Labour Court, petition cannot be dismissed, since the workmen themselves can proceed with the dispute in view of Section 2A of the Act. In any view, counsel submitted Labour Court on appreciation of oral and documentary evidence came to the conclusion that the workman is entitled to get benefit of Section 25H and therefore this Court in this jurisdiction shall not disturb the said finding of fact.
25FFF v. 25H
13. The entire dispute centres round the question as to whether workman is entitled to get benefit of Section 25H of the Act in a case where his services have been terminated on the basis of Ext.P1 memorandum of settlement on closure of the Fruit Canning Factory. The fact that Ext.P1 is a settlement entered into under Section 2(p) and Section 18(1) of the Industrial Disputes Act, 1947 is not disputed. Section 18(1) specifically stipulates that settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. Indisputably the terms and conditions of the agreement are binding on both the parties. It is specifically stated in Clause (4) of the agreement that in the event of resumption of activity in the factory at a later date the employees who have left the services as per the settlement shall be considered for employment subject to the requirement of the company and such other conditions that the management may deem it necessary. There is no case for the union or the employee that the company has re-started the fruit canning factory. As per Clause (2) of the settlement management has paid retrenchment compensation under Section 25F of the Act; notice pay, encashment of annual leave to the credit of the employee and exgratia payment. Closure of undertaking is governed by 25FFF of the Act which says that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of Sub-section (2), be entitled to notice and compensation in accordance with the provisions of Section 25-F, as if the workman had been retrenched. Expression “as if the workman had been retrenched” requires emphasis. Further Section 25F of the Act deals with conditions precedent to retrenchment of workmen. Apex Court in M.D. Haryana Seeds Development Corporation v. Presiding Officer held that in case of closure of an industry, Section 25-F is not attracted and the rigor imposed thereunder stands excluded. Reference may also be made to the decision of the Supreme Court in Pubjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court , The court while dealing with the scope of Section 25F, 25G and 25H of the Act held as follows:
Very briefly stated Section 25-FFF which has been already discussed lays down that “where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of Sub-section (2), be entitled to notice and compensation in accordance with the provisions of Section 25-F, “as if the workman had been retrenched”, Section 25-H provides for re-employment of retrenched workmen. In brief, it provides that where any workmen are retrenched, and the employer proposes to take into his employment any person, he shall give an opportunity to the retrenched workmen to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to workman “deemed to be retrenched” a right to claim re-employment as provided in Section 25-H. In such cases, as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with Section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workmen is “as if the workmen had been retrenched” and this benefit is restricted to notice and compensation in accordance with the provisions of Section 25F.
The above principle has been quoted with approval by a later decision of the apex court in Maruti Udyog Ltd.’s case (supra). The court took the view that the expression “as if used in Section 25FF has limited application and has been employed only for the purpose of computation of quantum of compensation and takes within its purview a case where retrenchment as contained in Section 2(oo) of the 1947 Act has taken place within the meaning of Section 25-F and not in a case falling under Section 25-FF or 25-FFF thereof. The court took the view, once it is held that Section 25-F will have no application in a case of transfer of an undertaking or closure thereof as contemplated in Sections 25-F and 25-FFF of the 1947 Act, the logical corollary would be that in such an event Section 25-H will have no application. The above being the settled position of law, we are of the view, since services of the workman were terminated by closure of undertaking which falls within the meaning of Section 25FFF of the I.D. Act and the mere fact that they were given compensation as if the workmen had been retrenched would not confer any right to those workmen for re-employment under Section 25H of the Act. Once a valid closure comes into effect, the relationship between the employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workmen as a consequence thereof and for no other purpose. We therefore hold once there is a valid closure under Section 25FFF the workman is entitled to get compensation only and cannot raise any claim for re-instatement under Section 25H of the I.D.Act.
14. Ext. P1 is a valid settlement under Section 2(p) read with Section 718 of I.D.Act and amounts to a valid closure of the Fruit Canning Factory within the meaning of Section 25FFF and the only right reserved on the workmen by the settlement is that in the event of resumption of activity in the factory at a later date, the employee would be considered for re-employment. Factory admittedly, has not been re-opened. Workman claims the benefit of Section 25H, for re-employment in other establishment, which the workman is not entitled to since it is not a term of settlement. We therefore reject that claim.
15. We have already found that the workman is not entitled to get the benefit of Section 25H since there was a valid closure under Section 25FFF of the I.D.Act and therefore the other question as to whether the union is competent to raise an individual dispute and whether claim falls under Section 2A of the I.D. Act need not be examined. We are therefore inclined to allow OP. 86 of 1994 and set aside the award of the Labour Court.
16. We have already stated that in OP. 8165 of 1994 the management challenges the award of the Labour Court in I.D. 55 of 1990 and the workmen concerned are K.J. Alexander, P. Pavanan and K. Subhandhu. As far as Alexander and Pavanan are concerned we have already held that earlier judgment in OP. 10251 of 1985 has concluded the issue holding that those petitioners have lost the right under Section 25H of the Act in view of the interpretation given by this Court to sub-rule (3) of Rule 78 of the Kerala Rules. That inter-parte judgment has become final.
17. Then the next question to be considered is as to whether the award could be sustained so far as Subhandhu is concerned. Subhandhu, was appointed on 21-10-1963 and he was retrenched on 30-11-1965. Complaining that the management is not recognising the workman’s right under Section 25H reference was sought to the Labour Court. Claim was resisted by the management contending that unrecognised union cannot represent the cause of the workman and that the dispute is highly belated. Further it was also stated that workman cannot be accommodated in the post of welder. Further it was also stated that the management is bound by the qualifications laid down in the award passed by the Industrial Tribunal as well as the agreement entered into between the unions. Educational qualifications prescribed for the post of welder at the time of release of vacancy advertisement on 11-10-84 was SSLC pass and ITI certificate in the welder trade. Age limit prescribed was below 35 years as on 1-6-1984. On the side of the management M-1 to M-5 documents were produced and on the side of the workman W-1 to W-14 documents were produced.
18. Labour Court though found that the union does not represent the appreciable number of workmen of the management and that union is incompetent to raise an industrial dispute representing the workman took the view that the industrial dispute raised falls under Section 2A of the I.D. Act. Further it was also noticed that the workmen concerned had raised the dispute before the District Labour Officer. Labour Court took the view that the dispute raised by the union and workmen is maintainable under Sections 2A and 10(1) of the I.D.Act and held that the workmen are entitled to get re-employment under Section 25H, The qualification prescribed for the post of welder grade II was SSLC and ITI certificate in welder’s trade. Subhandhu was possessing those qualifications even prior to the year 1984 and he had made several requests before the Management even before 1984. Hence we are of the view there is no justification in denying re-employment to Subhandhu since he was entitled to get re-employment under Section 25H. However, facts would indicate that he was otherwise employed in Grasim Industries Ltd. and therefore direction given by the Labour Court to reinstate him with effect from 11-10-84 the date of vacancy advertisement with full backwages and continuity of service cannot be sustained. The apex court in General Manager v. Haryana Roadways v. Rudhan Singh held that there is no rule of thumb that in every case where the Tribunal gives a finding that termination of service was in violation of Section 25F, entire backwages should be awarded. Court reminded that the order of payment of back wages should not be passed in a mechanical manner. Factors like method and nature of appointment, qualification of workmen, length of service and availability of alternate work etc. would be borne in mind. Subhandhu was gainfully employed. Hence he is not entitled to get any backwages, but only continuity of service since he was otherwise qualified. He is also not entitled to get benefit of Section 17B.
19. We therefore allow O.P.86 of 1994 and set aside the award of the Labour Court, Kannur in ID.58/91. OP. 8165/94 is disposed of setting aside the award of the Labour Court, Ernakulam in ID. 55/90 so far as Alexander and Pavanan are concerned, and so far as Subhandhu is concerned, the award would stand, but without back wages but continuity of service from 11-10-84 onwards.