ORDER
1. This writ petition is for issue of a writ of Certiorari to call for the records on the file of the first respondent in I.D.No.1109/91 dated 5.5.1994 to quash the same.
2. The petitioner was an employee under the second respondent. He was working in the company in the Package Division. He joined as Godown-in-charge originally. After a long number of years, on 31.7.1991, the second respondent issued a letter, terminating the services of the petitioner. He was not informed about the closure of Package Section earlier. Therefore, an industrial dispute was raised by the petitioner before the Labour Court in I.D.No.1109 of 1991. The Labour Court, after recording the evidence and considering the arguments of both sides, passed an award, holding that the termination of the petitioner was legal, and therefore, this writ petition has been filed, challenging the award of the Labour Court.
3. The learned counsel for the petitioner submitted that the termination of the agreement between the second respondent-firm and another firm is not correct inasmuch as in both the partnership firms, the partners are one and the same, and therefore, that cannot be a ground to terminate the employees. Further, it is submitted that this termination amounts to retrenchment and that the Package Division was not closed at all. He has also preferred an application before the Labour Court that in his place, a person by name Ramachandran of Nanganallur was appointed after his termination. Therefore, there is no actual closure of Package Section.
4. According to Section 2(cc) of the Industrial Disputes Act, closure means permanent closure of the business and it does not mean temporary closure. The contention that subsequently somebody else was appointed goes to prove that there was no closure at all. He relies on the decision in EXPRESS NEWSPAPERS (P.) LTD. V. THE WORKERS , wherein, the Supreme Court has held that closure, as defined under Section 29(cc) of the Industrial Disputes Act means closure of business and not closure of a particular place of business.
5. The counsel contended that the Labour Court has relied upon the evidence of the Labour Inspector, who is said to have inspected the premises on 13.9.1992 and has stated that at the time of his visit, the Package Section was closed and there were no employees in that Section. He further contends that the termination of the petitioner was made on 31.7.1991 and that the inspection was made more than one year thereafter, i.e, on 13.9.1992.
6. It is contended that the Labour Officer had come to the conclusion that the Package Division, which was said to have been closed in July, 1991, was still kept under lock and key in September, 1992. If really the Package Section had been closed, a closure notice should have been given, which has not been done. Therefore, it appears that the evidence of the Labour Inspector cannot be relied upon to come to a conclusion that the Package Section was closed even with effect from 31.7.1991 onwards.
7. The learned counsel for the petitioner contends that the Labour Court has mainly relied upon the evidence of the Labour Inspector to come to the conclusion that the that the Section was closed from 31.7.1991. This conclusion arrived at cannot be said to be based on evidence, and therefore, it is liable to be set aside.
8. Further, the learned counsel for the petitioner submitted that the claim of the second respondent is that they decided to rationalise their business. He referred to the Fourth Schedule of the Industrial Disputes Act, in which, Entry No.10 refers to rationalisation. Therefore, when rationalisation is done, it is required to be done under Section 9-A of the Industrial Disputes Act. Section 9-A of the Industrial Disputes Act reads as follows:
” Section 9-A Notice of change:– No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,–
(a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any such change–
a) where the change is effected in pursuance of any settlement or award; or
(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply. ”
9. Therefore, rationalisation cannot be done, except after giving notice, as contemplated under the Industrial Disputes Act. Admittedly, no notice was given before termination of the employee. Under Section 9-A of the Industrial Disputes Act, a notice has to be given to the workmen who are likely to be affected by the change prescribed. Admittedly, no notice was given to the petitioner before termination. Therefore, the mandatory provisions of Section 9-A of the Industrial Disputes Act has not been complied with, and on that ground alone, this writ petition is liable to be allowed.
10. The learned counsel for the second respondent argued that this ground was not raised before the Labour Court or argued at any point of time, and now the same has been raised, and therefore, such a ground is not available. This argument of the learned counsel for the second respondent is not acceptable inasmuch as it is a mandatory provision of law, which confers a right on the employee, and the non-compliance of the mandatory provisions vitiates the order, and therefore, merely because that point was not raised before the labour Court, it does not prevent or prohibit the learned counsel for the petitioner to argue that point now, inasmuch as the mandatory provisions of Section 9-A of the Industrial Disputes Act was not followed and notice of retrenchment or rationalisation was not given to the petitioner herein. The termination has to be set aside on the ground of violation of Section 9-A of the Industrial Disputes Act.
11. The learned counsel for the second respondent argued that the Supreme Court, in MUKUNDA V. BANGSHIDAR , has laid down the principle as to under what circumstances the award of the labour Court can be set aside by the High Court under Article 226 of the Constitution of India. He referred to Paragraph 16 of the said order, wherein, the Supreme Court has held that “the High Court, in the exercise of its special jurisdiction does not act as a Court of appeal. It interferes only when there is a jurisdictional error apparent on the face of the record committed by the domestic tribunal. A finding based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice, may be said to suffer from an error of law.” Therefore, the award falls within the ambit of error of law, in view of the decision referred to, as held by the Supreme Court, and hence, it is set aside.
12. Considering the facts of the case that the writ petitioner, at the time of termination of service, was aged about 62 and it is more than 8 years now since the writ petition is of the year 1994 and the petitioner is aged about 70 years, this Court suggested the parties to arrive at a settlement. In spite of the best efforts made by the counsel for both sides, it was not possible to arrive at any settlement, and therefore, this decision is now given on merits.
13. In the case of employment such as this, there is no age of retirement, and therefore, the petitioner cannot be compelled to retire even at the age of 70. He can work as long as he is able to work, and therefore, the order of termination is set aside and he is directed to be reinstated with back-wages.
In the result, this writ petition is allowed.
