JUDGMENT
V.V. Kamat, J.
1. Award dated July 5, 1991, of the Industrial Tribunal, Kollam, in Industrial Dispute No. 118 of 1989, holding that the workers represented by the respondent – workmen are entitled to get full wages for the period from December 3, 1982, to July 27, 1984, is brought, before this Court for” examination and scrutiny, by the petitioner, owner of P.K.D. Cashew Factory, Kollam, under Article 226 of the Constitution of India.
2. Just as the law and the relevant legal provisions rarely offer strait-jacket solutions and have to meet the changing situations and peculiarities of the locations, the cashew industry has its own structural peculiarities in the State. The Principles of social justice introduced into the legislation in their implementation through the courts are also beset with a warning that the court should not add to them on its own over and above the statutory provisions. The Cashew Corporation of India used to allot raw cashewnuts to the factories in the State on certain conditions imposed. The objects and Reasons for the Kerala Cashew Factories (Acquisition) Act, 1974, lay down the factors of necessity to proceed with the Acquisition Act. The factories did not abide by the conditions imposed; the cashewnuts allotted were taken out of the State for processing resulting in large scale unemployment and added to this was also the cancellation of allotment. Thisalso addedtothe seasonal character of the industry.
3. Right from the beginning this Court was alive to these structural peculiarities of the cashew industry. This Court (State Corporation v. C.F.W. federation), 1960 KLT 20 as far back as in 1960, took into consideration that the industry being seasonal in character, lay-off compensation would not be awardable. The rule that lay-off compensation is to be given to the workmen and the exceptions to the rule are all based on the principles of social justice and it is not for the Tribunal or for this Court to add to the statutory provisions on its own. The Court does not get jurisdiction to award compensation in cases not governed by the Industrial Disputes Act, 1947, by circumvention under any other situation of justification in the name of social justice.
4. The annual or seasonal closure of cashew industry by reason of its seasonal character has also been appreciated as a special feature by this Court (O.P. No. 720 of 1960, decided on December 8, 1961) referring the relevant Standing Orders and Section 2(kkk) – “lay off – in relation to the industrial establishment of seasonal character or in which work is performed intermittently. A special definition of the expression “lay off in respect of an industry of a seasonal character finds it difficult to recognise, the claim by whatever name it is called for an identical or similar situation.
5. The Government of Kerala referred the industrial dispute between (1) Managing Director, Kerala State Cashew Workers Apex Industrial Co-op Society Ltd.(CAPEX), Quilon; (2) Mr. K. Damodaran, Proprietor, P.K.D. Cashew Factory, Cashew Exporter, Quilon, on the one hand, and the workmen of the Kerala Cashewnut Factory Workers’ Federation, the above concerns with regard to 18 workmen, in regard to:
(1) Closure of factory from December 3, 1982 to July 31, 1984 and
(2) Denial of employment to 18 workmen listed in the reference order.
6.P.K.D. Cashew Factory was owned by the petitioner, K. Damodaran on March 13, 1981. It was lying idle for more than a year for which period no unemployment compensation was paid or claimed by the workmen. In 1981, the factory worked for 67 days. In 1982, for 42 days. Wages for the said period for these years were paid. In 1982, there was no allotment of cashewnuts by the Government. Due to the strike in 1982, the petitioner suffered loss of Rs. 5 lakhs. The bankers, the Canara Bank, Kollam, did not grant advance. The factory could not function. In pursuance of the acquisition, by the Government under Order G.O. (P) No. 163 of 1984/ID, dated July 26, 1984, the factory was taken over under Section 3 of the Acquisition Act, 1974. The Government referred the dispute by order dated September 25, 1989.
7. The petitioner contended that the industry being a seasonal one, workers cannot claim any lay-off compensation or wages for the period when there was no work for the factory since they have no right to work for any particular period. Only when there is work, it will be given to them and only during the period when the work was given to them, wages could be paid. There is no obligation on the part of the employer to give work in any specific period and hence no amount could be claimed as wages.
8. The Industrial Tribunal, Kollam, by the award dated July 5, 1991, decided I.D. No. 118 of 1989, holding that the workmen are entitled to get full wages from December 3, 1982, 16 July 27, 1984, after adjusting the amount of advance, if any, paid to them. It was held that the workmen are not entitled to any other reliefs claimed. This award granting full wages as above is the subject-matter.
9. The Industrial Tribunal has recorded (paragraph 6) that there is deposition of general secretary of the union (as MW-1) and exhibits W-1 to W-4 on the side of the workmen, whereas for the petitioners (second management), there is evidence of MW-1 and exhibits M-1 to M-9.
10. At first the Tribunal took up for consideration that the reference is incompetent as the factory was acquired on July 27, 1984, and as thereafter the necessary relationship ceased to exist. This aspect is fully covered by the Supreme Court (Bennett Coleman and Co. P. Ltd. v. P.P. Das Gupta, (1969-II-LLJ-554); N.B.C. Corporation v. Pritam Singh Gill (1912) 41 FJR 551, that the powers of the Tribunal are not restricted only to an employee who is only presently employed and not one who is an ex-employee. In view of this position, this aspect needs no further discussion. However, demands were raised in December, 1983.
11. On the main question, as to whether the factory was kept closed purposefully, the discussion needs reproduction:
“As per exhibit W-3 demand the claim is for wages during the period from December 3, 1982 to July 31, 1984. According to the management also reference has been made on the basis of exhibit W-3 demand. But the second management has a contention that the factory has been acquired by the Government as per exhibit M-1 notification dated July 26, 1984. As per this, the factory shall stand transferred to and vested in the Government with effect from July 27, 1984, so the claim can
be considered only upto July 27, 1984. The claim of the factory during the period December 3, 1982, to July 27, 1984, is on the ground that the second management purposely kept the factory idle as an act of vengeance for the strike of the workmen in November, 1982, in question for arrears of wages, leave with wages, etc. It is not disputed that there was a strike which ended as per exhibit M-5 settlement dated November 20, 1982. The management has a contention that the strike in November, 1982 was illegal and exhibit M-5 agreement is not a valid agreement. The legality or justifiability of the strike is not a matter to be considered by this Tribunal. Admittedly, there was a settlement as per exhibit M-5 agreement and it is not established that this agreement is not a legal and valid industrial agreement. As per exhibit M-5 the management has agreed to pay arrears of leave with wages, arrears of wages and assured to resume work. It was also assured to give additional five days work after getting allotment of cashewnuts. Thereafter, the factory was not opened and processing work never started. The explanation of the second management for not reopening the factory as stated in paragraph 13 of the written statement is that the factory could not work in 1983 because the bankers were not willing to extend financial accommodation for the Eravipuram factory, they having been scared by the unruly behaviour and pernicious conduct of the workers during the previous season. The management suffered a heavy loss of more than Rs. 5 lakhs in the factory during the year 1982 and in the end owed a big sum to the bank. But to a pointed question by learned counsel for the second management in his chief examination itself the second management has stated as below.
In 1983 why the factory was not functioning
(Q).
In 1982 due to the strike the management suffered loss.’
Further down second management has deposed that ‘loss increased and hence bank advance was not given. Advance was not given and factory was not functioning. For Eravipuram factory no loan was given.”
12. The Tribunal has found inconsistency, in the pleading and evidence and lack of evidence of bank funds. The observations are as follows:
“The statement in the written statement and the deposition of the second management are inconsistent. Further, there is not even an iota of evidence regarding non-availability of fund from the bank for processing cashewnut in the factory during the year 1983 due to the reasons alleged by the second management. No attempt has been made to prove this aspect by examining anybody from the bank. There is also no evidence before this Tribunal regrading alleged unruly behaviour and pernicious conduct of the workers which resulted in non-availability of financial aid from bank as contended by second management. It is true that as per the balance-sheet, exhibit M-9, produced by the management there was loss during the period. But the fact remains that the factory did not function without any reasonable and satisfactory reasons.”
13. These aspects that the closure was without any satisfactory reasons are under challenge in this petition, there being no dispute that if the closure is without reasons, the award need not be disturbed on the main count of liability. It is urged that the factory was purchased by the petitioner by paying Rs. 3 lakhs and terminal benefits to the workers to be paid later amounting to Rs. 2,69,000. After purchase it functioned only for 67 day in 1981, and 42 days in 1982. In 1983, there was no work in the factory. The petitioner suffered a huge loss of Rs. 5 lakhs in 1982 due to the strike of the workers and it was because of this the bankers did not give any advance for P.K.D. Cashew Factory, Kollam, and hence there was no work. It is urged that the fact that the petitioner could not work the factory since the bank refused to give advance was averred in the written statement and was further proved by evidence on oath of MW-1 and by producing exhibit M-9 balance-sheet ending on March 31, 1983. No centra-evidence was produced or even challenged. It is urged that the Tribunal assumed and freely speculated to enter a finding of purposeful denial of employment, contrary to the law declared by the Supreme Court in Anand Bazaar Patrika v. Their Employees (1963-II-LLJ-429) wherein a caution is given that though adjudication can and must protect industrial employees from mala fides, victimization and unreasonable steps, a finding in regard should be drawn only where the evidence has been laid to justify it. Such a finding should not be made either in a casual manner or light-heartedly. It is submitted that in the instant case not only that there is no centra-evidence nor even is there any independent evidence.
14. It is further submitted that on facts the ground of lack of advance by the bank would have to be understood as “other connected reason” is a failure to give employment, as contemplated in Section 2(kkk) of the Industrial Disputes Act, 1947. Learned counsel also submitted that the award granting full wages for the period from December 3, 1982 to July 27, 1984, when the industry is seasonal is also bad in law.
15. These submissions are required to be considered and decided in the light of the submissions of counsel for the union and workers. It was submitted by reference to Section 25-K(2) of the Act that a decision of the Government (appropriate) is necessary as regards the seasonal character of the industry in question, in the absence of which the provisions of Section 25-K would apply. This was as against the submission of the petitioners as regards non-application of the provisions of Section 25-K of the Act by virtue of the seasonal character of the industry. The seasonal character of cashewnut industry has been undisputedly in continuance for a number of years and is not disputed even otherwise as regards, the State. Apart therefrom, the facts laid in this litigation, undisputed, also present the seasonal character of the industry and for such a broad daylight situation of the seasonal character of its activities, technical resort to Section 25-K(2) of the Act becomes unnecessary and unjustified.
16. It was also submitted that interference on a reappraisal of the material would not be possible in the matter of the situation of lay-off due to financial difficulties pleaded, if it is not possible to hold that the conclusions are not perverse or against the weight of evidence on record. The decision of the Supreme Court in Priya Laxmi Mills v. M.M. Mandal, Baroda (1977-I-LLJ- 22) was pressed into service. The discussion on the finding is exactly reproduced above to show and demonstrate that the finding is based on pure conjectures or what is described as addition of the social justice element on its own by the Tribunal. Evidence of the petitioners given on oath as regards financial difficulties has not been challenged, nor any contra-evidence is laid. In such a situation it is difficult to see any justification in the conclusion that closure was without any reason.
17. It was also urged, placing reliance on the decision of the Supreme Court in Workmen of Firestone Tyre and Rubber Co. of India Pvt. Ltd. v. Firestone Tyre and Rubber Co. India Pvt. Ltd. (1976-I-LLJ-493) wherein the resume is summed up as follows in paragraph 21, at p. 500.
” In a reference under Section 10(1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dear-ness allowance. But no such power exists in the Labour Court under Section 33-C(2) of the Act. Only the money due has got to be quantified. If the lay off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under Section 33-C(2) of the Act, while in the reference some compensation could be allowed. Similarly on the view expressed above that the respondent company had no power to lay-off any workman, there is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under Section 33-C(2) of the Act for the period of lay-off.
18. To contend that ultimately the Tribunal will have to calculate and fix, not the full back wages as awarded for the whole period from December 3, 1982 to July 27, 1984, but on the basis of seasonal working. On facts, it is on record, undisputedly that the cashewnut industry was taken over on July 27, 1984, and if the provisions of Section 10(1) of the Cashew Factories (Acquisition) Act, 1974, are seen it becomes impossible to hold that the closure was a lay-off as a consequence and on facts also it has to be held that the factory did not function or work due to non-availability of bank finance as pleaded. The Tribunal’s finding in regard to this aspect would have to be termed as casual or light- hearted as described by the Supreme Court and would not receive natural finality.
19. The proposition that the Industrial Tribunal has wide jurisdiction in matters of investigation and settlement of industrial disputes for promoting industrial harmony and peace also has to be understood and appreciated that the Tribunal thereby does not get jurisdiction and power to add to and contribute on its own, facets of social justice at the risk of legislating judicially, and in the process has to avoid casual and light-hearted approach and consequent conclusions. In my judgment, the factual matrix of the present petition, if examined and scrutinized, would lead to the factual positions, neatly established on the material on record:
(1) The cashewnut industry in the State is seasonal in character, including the P.K.D. Cashew Factory, Kollam, owned by the petitioner;
(2) In 1981, after purchase it worked for 67 days, in 1982, it worked for 42 days and prior to its purchase by the petitioner, it was lying idle without work, payment or compensation or even claim in regard to thereto:
(3) In 1983, there was no allotment of cashewnuts by the Government and the factory suffered a loss of Rs. 5 lakhs due to workers’ strike and non-availability of loan/funds from the petitioner’s banker, Canara Bank, Kollam, and the factory could not function;
(4) The Factory was taken over under Section 3 of the Kerala Cashew Factories (Acquisition) Act, 1974, by G.O. (P) No. 163/84/ID,
dated July 26, 1984, and consequently the workmen became employees of the Government:
(5) The conclusion that the closure, as alleged, was without any reason or justification is recorded by the Tribunal in a casual and a light-hearted manner.
20. In the light of the above discussion and reasons, the impugned award dated July 5, 1991, of the Industrial Tribunal, Kollam, in Industrial Dispute No. 118 of 1989, gets quashed and set aside. Petition succeeds. The workmen represented by the union are not entitled to award of wages in any way. The parties are directed to suffer their own costs of the petition. Order accordingly.
