PETITIONER: RAI SAHIB RAMDAYAL GHASIRAMOIL MILLS Vs. RESPONDENT: THE LABOUR APPELLATE TRIBUNALAND ANOTHER DATE OF JUDGMENT: 10/12/1962 BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. IMAM, SYED JAFFER KAPUR, J.L. SUBBARAO, K. CITATION: 1964 AIR 567 1963 SCR Supl. (2) 845 ACT: 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-Wages reduced- Reference made to single member Tribunal-Another single member Tribunal after his retirement-No fresh reference made-Whether new Tribunal has jurisdiction to adjudicate- Constitution of India, Art. 226-Industrial Disputes Act 1947 (14 of 1947), ss. 7 (1), 8 (2), 10 (1) (c)-Industrial Dis- putes Act, 1947, as amended by Industrial Disputes (Amend- ment) Act 1953, s. 25 (H). HEADNOTE: The appellant concern was closed on tile ground that it incurred heavy losses. Thereupon the workmen raised an industrial dispute and they were awarded retrenchment bene- fits. About two years later the appellant concern was re- opened. But only some of the former werekers re-employea along with some new recruits. The wages were lower than before. The workers put forward certain damands 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 unemployment 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 Government then purporting to act under s. 7 (1) of the Industrial Dispute Act, 1947 and in supercession of the previous notification constituted a single Member Tribunal. This Tribunal to which no fresh reference was made proceeded with the adjudication of the dispute. Apart from the demands already made the workers contended before the Tribunal that they were entitled to the benefits under s. 25 (H) of the Industrial Disputes Act, as amended by the Industrial Disputes (Amendment) Act, 1953. The appellant contended that the Tribunal had no jurisdiction to adjudicate upon the dispute 846 and that s. 25 (H) was not available to the former workmen who had been retrenched. The first contention of the appe. llant was rejected. Even though the second contention was accepted the tribunal made an order in favour of the workmen on the ground that though they cannot claim the statutory benefits of s. 25 (H) the principle of social justice underying that section entitled them to receive salaries and allowances from the date of reopening the mill. The appellant preferred an appeal to the Industrial Appellate Tribunal. On the dismissal of that appeal the appellant filed a writ petition before the High Court of Bombay. The High Court summarily dismissed that petition but a certificate was granted to appeal to this Court. The appellant reitrated before this Court the two con- tentions stated above. Held, that sub-s. (1) of s. 7 of the Industrial Disputes Act empowers the Government to constitute a Tribunal. But merely constituting a Tribunal for adjudication of disputes is not enough. It has also to act under s. 10 and make a specific reference to it of each dispute for adjudicition. Without such a reference the Tribunal does not get any jurisdiction to adjudicate upon any dispute. The provisions of s. 25 (H) cannot apply to workmen who had been retrenched before this section came into force. The provision not being retrospective no tribunal has jurisdic- tion 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 came into force. JUDGMENT:
CIVIL APPELLATE JURSIDICTION : Civil Appeal No. 593/1960.
Appeal from the order dated October 15, 1956, of the Bombay
High Court in special Civil Application No. 2832 of 1956.
Bishan Narain and K. L. Mehta, for the appellant.
The respondent did not appear.
1962. December 10. The judgment of the Court was delivered
by
847
MUDHOLKAR, 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 are these :
Rai Sahib Ramdayal Ghasiram Oil Mills (hereinafter referred
to as the Mills) were closed on September 1, 1952 on the
ground that they had sustained heavy ‘losses. The closure
was found to be bona fide and the workmen were awarded
retrenchment benefit. The mills, however, reopened on
November 14, 1954, 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
Industrial Tribunal consisting of Mr. Kurian, under s. 7 of
the Industrial Disputes Act, as it stood on that date, on
May 1.3, 1955 and referred the following dispute to him :
“Whether the retrenched workmen referred to in the Annexures
A, B and 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, 1953 are entitled for
reinstatement and compensation for unemployment after
reopening of the said Mills.”
It may be mentioned that shortly after the Tribunal was
constituted and reference made to it, Mr. Kurian retired in
consequence of which the
848
Government of Hyderabad made the following notification on
June 2, 1955
“In exercise of the powers conferred by sub section (1) of
section 7 of the Industrial Disputes Act 1947 (XIV of 1947)
and in supersession of the Labour Department Notification
No. B. 189/54/134 dated 15-10-1954 the Rajapramukh hereby
constitutes 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
entitled to re-employment on the same wages as obtained at
the date of closure. This claim was based upon the award
made by the Industrial Tribunal on January 1, 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 one year
from the date of award becomes enforceable 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 29,
1952.”
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
849
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 contention 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
amended by Act 43 of 1953 were not available to the former
workmen who had been retrenched. The first contention and
other contentions to which we have not made any mention were
rejected by the Tribunal but the contention that the
provisions of s. 25 (H) 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 claim 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.
850
It seems to us that the contention of the appellant 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 Tribunals for 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
independent 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 Government took action under s. 7 sub-s. (1) of the
Act “‘in supersession” of its previous notification and
constituted 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
merely a vacancy therein and therefore there was no
occassion to constitute a fresh Tribunal under sub-s. (1) of
s. 7 because’ having constituted a fresh Tribunal, the
Government failed to refer the dispute in question to it
under sub-s. (1) (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 Do necessity to make a
fresh notification under s. 10 (1) (c) referring the
particular dispute 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
851
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 newcomer,-. 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 allowed.
852