Multi Expeller Works, Kota v. Labour Court, Kota — 1980 DIGILAW 316 (RAJ)

G.M. LODHA, J.—An Industrial dispute about the termination of Kishan Lal by Multi Expeller works, Kota, resulted in an award of the Labour Court, dated 20th September, 1979. The termination was held illegal and the labour court reinstated the employee and also allowed full wages for the period of termination. 2. Mr. Jain appearing for the petitioner has challenged this award under article 226 of the Constitution. It was argued that the Labour Court has committed serious illegality and error of law in holding it retrenchment even though there was no element of surplus-age and therefore, it was not covered by the definition of retrenchment as held by series of cases of the Supreme Court. Mr. Jain pointed out that even this court has made a reference in respect of interpretation of the term retrenchment as used in sec. 2 (oo) of the Industrial Dispute Act and therefore this case should be admitted on this point alone. 3. It was pointed out by Mr. Bandhu that after reference was made by this Court the Honble Supreme Court in Santosh Gupta vs. State Bank of India (1), has expressly over-ruled the judgment of this Court of R.S.E.B. vs. Labour Court (2), which happened to be of Division Bench. In Santosh Guptas case the Honble Supreme Court has considered in details the implications of the judgment of Hari Prasad Shivshanker Shukla vs. A.D. Divakar(3) on which strongly reliance has been-placed by Mr. Jain and held that the parliament intervened and made amendment to cover the lacuna contemplated in Section 2(oo) by Hari Prashad Shivshankers decision. The Honble Court has observed as under: "This came to be realised as a result of the decision of the Court in Hariprasad Shivshanker Shukla vs. A.D. Divakar, (supra). The Parliament then stepped in and introduced Ss. 25 FF and 25 FFF by providing that compensation shall be payable to workman in case of transfer of undertaking or closure of undertaking as if the workman had been retrenched. We may rightly say that the termination of the service of a workman on the transfer or closure of an undertaking was treated by Parliament as "deemed retrenchment". 25 FF and 25 FFF by providing that compensation shall be payable to workman in case of transfer of undertaking or closure of undertaking as if the workman had been retrenched. We may rightly say that the termination of the service of a workman on the transfer or closure of an undertaking was treated by Parliament as "deemed retrenchment". The effect was that every case of termination of service by act of a employer even if such termination was a consequence of transfer or closure of the undertaking was to be treated as "retrenchment", for the purposes of notice, compensation, etc. Whatever doubts might have existed before Parliament enacted S. 25 FF and 25 FFF about the width of S. 25 F there cannot be any doubt that the expression "termination of service for any reason whatsoever now covers every kind of termination of service except those not expressly included in S. 25 F or not expressly provided for by other provisions of the Act such as Ss. 25 FF and 25 FFF." The Supreme Court then discussed the Judgment of Indian Hume Pipe Col. Ltd. vs. the Workman (4). 4. In para 8 to 14 the Supreme Court then considered the following cases in order to make a comprehensive study of the case laws of the Supreme Court, which has been commented at the bar as expressing conflicting view on the point :— (i) Hariprasad Shivshanker Shukla vs. A.D. Divakar (supra,) (ii) Management of M/s Willcox Buckell India Ltd. vs. Jagannath (5), State Bank of India vs. Shri M. Sundara Money(6) and Hindustan Steel Ltd. vs. The Presiding Officer, Labour Court, Orissa(7). 5. In para 13 the Supreme Court again considered whether there was any conflict between Hariprasad Shivshanker Shukla vs. A. D. Divakar and State Bank of India vs. M Sundara Money decisions and observed as under:— "There was also a request that M. Sundara Moneys case (Supra) conflicted with the decision in Hariprasad Shivshanker Shukla vs. A.D. Divakar and therefore, required reconsideration. A Bench of three judges of this Court consisting of Chandrachud, J. (as he then was), Goswami, J. and Gupta, J. held that there was nothing in Hariprasad Shivshanker Shukla vs. A. D. Divakar (Supra) which was inconsistent with the decision in M. Sundara Moneys case. A Bench of three judges of this Court consisting of Chandrachud, J. (as he then was), Goswami, J. and Gupta, J. held that there was nothing in Hariprasad Shivshanker Shukla vs. A. D. Divakar (Supra) which was inconsistent with the decision in M. Sundara Moneys case. They held that the decision in Hariprasad Shivshankers case was that the words "for any reason whatsoever" used in the definition of retrenchment would not include a bonafide closure of the whole business because it would be against the entire scheme of the Act. The learned Judges then observed that, on the facts before them to give full effect to the word "for any reason whatsoever" would be consistant with the scope and purpose of Set. 25 of the Industrial Disputes Act and not contrary to the scheme of the Act. In Delhi Cloth & General Mills Ltd. vs. Shambhu Nath Mukherjee, (1978-I L.L.J.). (1978) 1 S.C.R. 591 . Goswami, Shinghal and Jaswant Singh, J J.J. held that striking off the name of workman from the rolls by the management was termination of service which was retrenchment within the meaning of Section 2(00) of the Industrial Dispute Act." 6. In para 14 the Supreme Court then considered the Judgment of the Kerala High Court and Rajasthan High Court and other High Court and finally held as under:— "We hold, as a result of our discussion, that the discharge of the workman on the ground she did not pass the test, which would have enabled her to be confirmed was "retrenchment" within the meaning of Sec. 2(00) and, therefore, the requirements of Sec. 25 F had to be complied with. The order of the Presiding Officer, Central Government Industrial Tribunal cum-Labour Court, New Delhi, are set-aside and the appellant is directed to be reinstated with full back wages. The appellant is entitled to her costs." The Judgment of the Rajasthan High Court was thus overruled and so also of Kerala and Delhi High Courts mentioned in para 14 referred to above. 7. Inspite of all this Mr. Jain insists that this Court should bold that the judgment of Hariprasad Shivshanker Shukla being of more than two Judges, is binding even though it is against the view taken by the Supreme Court in Santosh Guptas case. In substance. Mr. Jain wants this Court to become more pious than the Pope himself. 7. Inspite of all this Mr. Jain insists that this Court should bold that the judgment of Hariprasad Shivshanker Shukla being of more than two Judges, is binding even though it is against the view taken by the Supreme Court in Santosh Guptas case. In substance. Mr. Jain wants this Court to become more pious than the Pope himself. I cannot sit over the judgment of the Supreme Court in Santosh Guptas case in order to spell out whether whatever they have said about the consequences which are to be follow from Hariprasad Shivshanker Shuklas case, are not correct. 8. Mr. Jain wants this Court to hold that even though on 29th April, 1980 the Supreme Court in Santosh Guptas case has clearly laid down that discharge of a workman in order to become retrenchment need not be confined to the reasons having element of surplus-age only, as per the definition of section 2(00), yet sitting in the High Court I must hold that this view of the Supreme Court is in conflict with the earlier view of five Judges and I should further hold that since the Supreme Court has not held it to be so. in Santosh Guptas case, the Judgment of Santosh Guptas case is not to be followed by this court, because it fails to take notice of the real implications of Hariprasad Shivshanker Shuklas Judgment. 9. The submission of Mr. Jain taken to its legal and logical conclusion would be violative of article 141 of the Constitution on the theory of the precedents, which I am unable to do. I would therefore, refuse to be drawn in the detailed debate about the principle of the precedents sought to be enuntiated by Mr Jain, based on the judgment of State of U.P. vs. Ram Chandra(8). It would be sufficient to mention, that all said and done, it would be most uncharitable, in addition to it being unwarranted encroachment on the jurisdiction of the Supreme Court. If I am persuaded to consider that Honble Justices Iyer and Beddi decided Santosh Guptas case in ignorance about the principles of the precedents. 10. The point convassed by Mr. Jain to say the least is preposterous to be accepted and is hereby rejected. 11. Confronted with the above, Mr. If I am persuaded to consider that Honble Justices Iyer and Beddi decided Santosh Guptas case in ignorance about the principles of the precedents. 10. The point convassed by Mr. Jain to say the least is preposterous to be accepted and is hereby rejected. 11. Confronted with the above, Mr. Jain submitted that the workman concerned was governed by the provisions of Shope and Commercial Establishment Act, 1958 and therefore, no reference could have been made under the Industrial Dispute Act. When I asked him to point out the relevant discussion from the Award, Mr. Jain submitted that this question goes to root of jurisdiction, and the question, whether it was taken before the Labour Court or not, is irrelevant. Exercising the jurisdiction under Article 226, which is an equitable jurisdiction and discretionary one in that sense, I am of the view that management having adduced into full-fledged evidence before the Labour Court and taken a chance of favourable decision, cannot be allowed to agitates such points may be of jurisdiction to displace and oust an employee who was earlier displaced in 1977 by the management. True, in a given case, this court may allow the points of jurisdiction raised for the first time, if justice and equity warrants, it, but I am firmly of the opinion that in the facts and circumstances of this case, justice and equity would be broken on the wheels of law, if I permit this question to be raised for the first time before this Court. That being so, the petitioner cannot succeed on this also. 12. As a last limb of submissions, Mr. Jain pointed out that the Tribunal committed an error of jurisdiction in granting back wages to the workman because neither there was any issue on this point nor the evidence led was properly appreciated including the question of burden of proof. Reliance was also placed on the judgment of 1976 (33) F.L.R., 1980, L.L.J. 35, 76 and 85. I am of the opinion that when evidence was led by both the parties, the question of burden of proof becomes immaterial and at-least, in any case, it looses importance in as much as no interference can be made under Article 226 at least, solely on that ground. I am of the opinion that when evidence was led by both the parties, the question of burden of proof becomes immaterial and at-least, in any case, it looses importance in as much as no interference can be made under Article 226 at least, solely on that ground. Similarly, whether issue was framed or not, is absolutely immaterial, once the party with full knowledge and with eyes open have led evidence to prove that the petitioner was in the employment of one M/s Visha Industry. 13. During the cross-examination not a single question was asked to Kishan on this aspect of the matter. The Labour Court was of the view that non-production of proprietor and employee of Visha Industry was also not without significance. May be, the two views can be taken in respect of this particular aspect of the case and sitting in appeal. I might have been persuaded to take different view. However, the Legislature in its wisdom has not provided any appeal and rightly so, because the Industrial Dispute Act being social welfare legislation is primarily intended to provide relief to the workmen who are handicapped against management. The legislature thought that prolonged litigation by way of appeals should be avoided and speedy justice in final form should be given to the workman. This principle is well in consonance with the established principles of social justice enunciated by the Supreme Court in a series of cases on Labour Legislation. That being so, I would not permit this court to probe into controversy of appreciation of evidence, on this aspect of the case also, even if the Labour Court has appreciated the evidence by committing mistake or error. 14. The writ application, therefore, fails with costs and is dismissed as such.