Bombay High Court
Chief Engineer,Irrigation ... vs The Member,Industrial ... on 16 November, 2017
Bench: B.P. Dharmadhikari
wp.1203.03+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 1203/2003
AND
WRIT PETITION NO. 1224/2003
AND
WRIT PETITION NO. 1225/2003
W.P.NO. 1203/2003
1) Chief Engineer
Irrigation Department
Amravati.
2) The Superintending Engineer
Yeotmal Irrigation Circle, Yeotmal. .. PETITIONERS
versus
1) The Member
Industrial Court, Yeotmal.
2) Secretary
Rural Development Department
Mantralaya, Mumbai -400 032.
3) The Secretary
Department of irrigation
Mantralaya, Mumbai 400 032.
4) The Secretary
Revenue and Forest Department
Mantralaya, Mumbai -400 032.
5) The Chief Executive officer
Zilla Parishad, Yeotmal.
6) The Executive Engineer
Zilla Parishad, Irrigation Division,
Yeotmal.
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:19:32 :::
wp.1203.03+
2
7) The Sub-Divisional Officer
Zilla Parishad, Irrigation Sub-Division Darwah.
8) The Executive Engineer
Irrigation Division, Yeotmal.
9) Rama s/o Bhojaji Paikrao
Aged about 45 years, R/o Fetri
Tah.Pusad, Dist. Yeotmal. .. RESPONDENTS
...............................................................................................................................................
Mrs. U.A. Patil, Advocate for the petitioners
Mr. V.P.Maldhure, AGP for respondents 1 to 4
Mrs. Mrunal Shesh, Advocate for respondent no.9
................................................................................................................................................
2) W.P.NO. 1224/2003
1) Chief Engineer
Irrigation Department
Amravati.
2) The Superintending Engineer
Yavatmal Irrigation Circle, Yavatmal. .. PETITIONERS
versus
1) The Member
Industrial Court, Yeotmal.
2) Secretary
Rural Development Department
Mantralaya, Mumbai -400 032.
3) The Secretary
Department of Irrigation
Mantralaya, Mumbai 400 032.
4) The Secretary
Revenue and Forest Department
Mantralaya, Mumbai -400 032.
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:19:32 :::
wp.1203.03+
3
5) The Chief Executive officer
Zilla Parishad, Yeotmal.
6) The Executive Engineer
Zilla Parishad, Irrigation Division,
Yeotmal.
7) The Sub-Divisional Officer
Zilla Parishad, Irrigation Sub-Division Darwah.
8) The Executive Engineer
Irrigation Division, Yeotmal.
9) Narayan Laxman Dhulchule
R/o Devthana, Taq.Pusad
Dist. Yavatmal. .. RESPONDENTS
...............................................................................................................................................
Mrs. U.A. Patil, Advocate for the petitioners
Mr. V.P.Maldhure, AGP for respondents 1 to 4
Mrs. Mrunal Shesh, Advocate for respondent no.9
................................................................................................................................................
3) W.P.NO. 1225/2003
1) Chief Engineer
Irrigation Department
Amravati.
2) The Superintending Engineer
Yeotmal Irrigation Circle, Yeotmal. .. PETITIONERS
versus
1) The Member
Industrial Court, Yeotmal.
2) Secretary
Rural Development Department
Mantralaya, Mumbai -400 032.
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:19:32 :::
wp.1203.03+
4
3) The Secretary
Department of irrigation
Mantralaya, Mumbai 400 032.
4) The Secretary
Revenue and Forest Department
Mantralaya, Mumbai -400 032.
5) The Chief Executive officer
Zilla Parishad, Yeotmal.
6) The Executive Engineer
Zilla Parishad, Irrigation Division,
Yeotmal.
7) The Sub-Divisional Officer
Zilla Parishad, Irrigation Sub-Division Darwah.
8) The Executive Engineer
Irrigation Division, Yeotmal.
9) Raju Bapurao Dahake
Aged about 43 years, R/o Shrirampur(Pusad)
Tah.Pusad, Dist. Yeotmal. .. RESPONDENTS
...............................................................................................................................................
Mrs. U.A. Patil, Advocate for the petitioners
Mr. V.P.Maldhure, AGP for respondents 1 to 4
Mrs. Mrunal Shesh, Advocate for respondent no.9
................................................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 16th November, 2017
ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
This Bench has been constituted as larger Bench for placing these
three writ petitions to decide the question, whether Rule 81 of Industrial Disputes
wp.1203.03+
(Bombay) Rules, 1957 is mandatory and whether termination effected in breach
thereof, becomes void and non-est?
2. The above-referred Petitions were placed before the learned single
Judge of this Court on 4th February, 2011. The learned single Judge noticed some
divergence in views taken by respective learned single Judges. The judgments in
which different views appear are mentioned in the order of reference passed by
learned single Judge on 4th February 2011. Those judgments are Prakash Murlidhar
Dalal vs.Tata Engineering and Locomotive Co. Ltd. and others, reported in 1996 Vol.1
Mh.L.J. 654; Chemical Mazdoor Sabha vs. M/s Vital Organics Pvt.Ltd., reported in
1995 Vol.2 Mh.L.J. 602; and, Catalyst (India) Pvt.Ltd.,Thane vs. Banwari alias Banzaru
Mukram Rajbhor, reported in 2008 Vol.3 Mh.L.J. 911.
3. Accordingly, we have heard Advocate (Mrs) U.A. Patil, for employer;
Advocate Shesh for respective workmen. Mr. V.P.Maldhure, learned AGP has
appeared for the Tribunal.
4. We do not wish to delve into factual niceties of the impugned common
order passed by Labour Court, Yavatmal on 27th June 1997 in ULP (Complaint ) No.
129/1996. The question referred to us needs to be decided without adjudication on
facts involved in these petitions.
5. Respective counsel have also invited our attention to judgments of
wp.1203.03+
Hon'ble Apex Court in the case of Mackinon Mackenzie & Co. Ltd. vs. Mackinnon
Employees Union, reported at AIR 2015 SC 1373 and Division Bench judgment of
this Court reported at Mackinon Mackenzie Ltd. vs. G.S. Baj, reported at 2006 Vol.4
Mh.L.J. 492, in addition to three judgments mentioned in reference order.
6. We find it appropriate to refer to all these judgments chronologically.
7. The first judgment in point of time is delivered by learned single Judge
in the case of Chemical Mazdoor Sabha vs. M/s Vital Organics Pvt.ltd. and another
(supra). This judgment also looks into the earlier judgment of Division Bench of this
Court in the case of Nav Bharat Hindi Daily vs. Nav Bharat Shramimk Sangh and
others, reported at 1984 Mh.L.J.483. Perusal of this judgment delivered by learned
single Judge shows that there Award delivered by Industrial Tribunal, Thane was
questioned by employer. The facts mentioned in paragraph 2 show that employer
retrenched 51 workmen out of total 67 on the ground that they had become surplus.
Seniority list as per Rule 81 was displayed simultaneously along with termination
order. In other words, it was not displayed seven days prior to proposed date of
retrenchment as required by Rule 81. The findings of Industrial Court are
mentioned in paragraph 3 and learned single Judge mentions that act of employer in
terminating 51 workmen as surplus, was bona fide. Thereafter, the Industrial Court
proceeded to examine whether there was contravention of provisions of Sections 25F
and 25G of Industrial Disputes Act. The Industrial Court relied upon Division Bench
wp.1203.03+
judgment reported in Nav Bharat Hindi Daily vs. Nav Bharat Shramik Sangh ( supra)
where Division Bench held that Rule 81 was mandatory and non-compliance therewith
would render the retrenchment illegal. This application of mind has been further
evaluated by learned single Judge in paragraph 10 onwards. The relevant part of said
judgment has also been extracted by learned single Judge. Its paragraph 19 has
been reproduced in paragraph 10 and observations of Division Bench that failure to
comply with Section 25G and Rule 81 would not render whole action of retrenchment
illegal and invalid are italicized. At the end of paragraph 11 the comments have been
made upon the judgment of learned single Judge in case of Trade Wings Limited vs.
Prabhakar Dattaram Phodkar of Bombay and others, reported in 1992 Vol.2 CLR 480.
It is observed that this 1992 judgment does not contain any independent reasoning. In
paragraph 14 learned single Judge has applied mind to hypothetical situation by
presuming that requirement of displaying seniority list as mandatory and by posing
a question whether period of seven days was mandatory. We only wish to note that in
this judgment reported in Chemical Mazdoor Sabha (supra), the Industrial Court or
then learned single Judge nowhere record a finding that any junior was retained.
Those observations of Division Bench in Nav Bharat Hindi Daily ( supra), were applied
by Industrial Court to a situation where there was no finding that juniors were
retained.
8. The judgment delivered by learned single Judge in Prakash Dalal
(supra), considers the challenge as presented and provisions of Section 25G of
wp.1203.03+
Industrial Disputes Act as also Rule 81 of the Industrial Disputes (Bombay) Rules,
1957. Consideration in paragraphs 1 5 and 16 reveals mention of facts in that
matter. The observations of Industrial Court, Amravati in paragraph 16 of its order
shows that Industrial Court came to conclusion that complainant-workman was
junior-most at Amravati. Learned single Judge has found that there was no such
unequivocal admission by that workman and the facts show that no seniority list of
watchman was maintained or published as required by Rule 81. Learned single
Judge found that the best possible evidence to bring on record compliance with "last
come-first go" was not produced by employer. In paragraph 15 efforts made by
complainant to bring seniority list on record by giving notice to employer to file
seniority list of watchman and failure of employer to bring it on record also finds
consideration. The learned single Judge found that in this background the Industrial
Court was wrong in observing that employer could not be expected to prove
negatives and no adverse inference could have been drawn against employer
company for not filing seniority list. Thus, provisions of Section 25G and Rule 81 are
appreciated in the backdrop of these facts.
9. Thereafter, Division Bench judgment in the case of Mackinon
Mackenzie Ltd (supra), has been brought to our notice by parties. In this judgment
in paragraph 6, Division Bench has found it to be an admitted position that though
large number of senior workers were retrenched, those who were junior to them were
retained. In paragraph 35 both judgments mentioned supra along with judgment of
wp.1203.03+
Division Bench, in Nav Bharat Hindi Daily (supra) finds mention and consideration.
The action of management of retrenchment is found to be totally illegal and an unfair
labour practice. We need not again comment more on this Division Bench judgment.
10. In reference order dated 4th February 2011, learned single Judge has
not mentioned Division Bench judgment in Mackinon vs.G.S. Baj ( supra). However
a later judgment in the case of Catalyst (India Pvt. Ltd.) (supra) of single Judge
has been mentioned in reference order. In this judgment, learned single Judge has
looked into few judgments which are appreciated by Division Bench though he has not
mentioned this Division Bench judgment at all or then in the earlier Division Bench
judgment in Nav Bharat Hindi Daily (supra). The facts in judgment of learned single
Judge in Catalyst (India) Pvt.Ltd. show contentions of parties in paragraphs 4 and 5.
In Paragraph 6 efforts made by employer to bring on record seniority list category-wise
find mention. Question which arose for adjudication has been mentioned in paragraph
7. The issues arising and consideration thereof appears witness of company Shri
Nagda in his examination-in-chief has stated that seniority list of 43 Helpers was
displayed on notice board and his assertion was not subjected to any cross-
examination. The workmen did not put any question to bring on record fact whether
any junior Helper to second party workmen was retained in service while retrenching
20 Helpers. At the end of paragraph 9, learned single Judge concludes that there was
no reason to hold that such seniority list was ever displayed by employer. In effect
finding is, provisions of Rule 81 of Bombay Rules were not violated. The learned
wp.1203.03+
single Judge has therefore allowed Writ Petition filed by employer.
11. The last judgment to which our attention is drawn is of Hon'ble Apex
Court, in the case of Mackinon Mackenzie & Co. vs. Mackinnon Employees Union
( supra). Hon'ble Apex Court considers provisions of Sections 25-G as also provisions
of Rule 81 and its observation in paragraph 38 of judgment note that appellant-
company had retained certain juniors and no justification for such retention was
observed.
12. When we view the facts of all these judgments, we find that the
question as referred depends on adjudication on facts. The two views looked into by
learned single Judge as mutually inconsistent look into different set of facts. The
learned single Judge in case of Chemical Mazdoor Sabha vs. Vital Organics (supra),
applies law to a situation where there is no finding of retention of any junior. The other
learned single Judge in the case of Prakash Murlidhar Dalal vs. Tata Engineering
( supra) takes note of prejudice caused to workman because of omission of employer
to publish such list and to file it even before Courts despite notice to produce the
same. The third judgment in the case of Catalyst (India) Pvt.Ltd. (supra), again,
considers the facts where evidence tendered by witness for company Shri Nagda
and inference drawn therefrom has been used to set aside the Award passed by
Labour Court at Thane. We, therefore, do not see any inconsistency in any of the
judgments mentioned in reference order.
wp.1203.03+
13. In this proceedings, we cannot record any finding on disputed facts.
The exercise needs to be undertaken and completed by learned single Judge as per
law. We, therefore, find that law as laid down including law as recently considered
by Hon'ble Apex Court in Machinon Co.Ltd. vs. Mackinnon Employees Union (supra)
needs to be applied by learned single Judge after appreciating the facts at hand.
14. Accordingly, we find that reference needs to be answered in above
terms, by holding that facts crystallized need to be viewed and then law as laid
down, can be applied. With this answer, we direct the Registry to list the matters before
learned single Judge as per roster-assignment, for further consideration.
JUDGE JUDGE
sahare
