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Wednesday, October 23, 2013

Industrial Disputes Act sec. 25F,25FF sec.25N and Section 17B of I.D. Act - Estopel - State of Maharashtra & Anr. … Appellants Versus Sarva Shramik Sangh, Sangli & Ors. … Respondents = http://judis.nic.in/supremecourt/imgst.aspx?filename=40894

Industrial Disputes Act sec. 25F,25FF  sec.25N and Section 17B of I.D. Act - Estopel - Already decided case attained finality - and same was applied with some suitable modifications = Retrenchment of labours temporary having serice of more than 10 years of service with out sufficient notice and with out payment of damages on the trasfer of Unit - are entitled for reinstatement with back wages at 25%
The  process
of  pumping  water  is  specifically  covered  under   the   definition   of
“manufacturing process” under Section 2 (k)(ii) of The Factories Act,  1948.
 Thus, the workmen concerned were  engaged  in  a  “manufacturing  process”.
Once that is established, it follows that the activity  of  the  undertaking
in which they were working, constituted a “factory” within  the  meaning  of
Section 2(m) of the said Act.
(ii)  The explanation (i) to Section 25A  of  I.D.  Act,  1947,  covers  the
“factories” within the definition  of  an  “industrial  establishment”,  and
therefore Chapter VA  of  the  I.D.  Act,  1947  applies  to  “manufacturing
process” of pumping water. Hence, it cannot be denied that  the  undertaking
in  which  the  workmen  concerned  were  employed  was  covered  under  the
provisions of I.D. Act.
20.         It is, however, contended on behalf of the  appellant  that  the
said undertaking was being run by the irrigation  department  of  the  first
appellant, and the activities of the  irrigation  department  could  not  be
considered to be an “industry” within the definition of  the  concept  under
Section 2(j) of the I.D. Act.  
As noted earlier, the reconsideration of  the
wide interpretation of the concept of “industry” in Bangalore  Water  Supply
and Sewerage Board (supra) is pending before a larger bench of  this  Court.
However, as of now  we  will  have  to  follow  the  interpretation  of  law
presently holding the field as per the  approach  taken  by  this  Court  in
State  of  Orissa  v.  Dandasi  Sahu  (supra),  referred   to   above. 
  The
determination of the present  pending  industrial  dispute  cannot  be  kept
undecided until the judgment of the larger bench is received.
In the  facts  and  circumstances  of  the  present  case  also,
accepting that the termination did result on  account  of  transfer  of  the
undertaking, the relief to be given to the workmen will have to  be  moulded
to be somewhat similar to that given to the other group of 10  workmen.
 It
will not be just and proper to restrict it to the  rigours  of  the  limited
relief under Section 25FF read with 25F  of  the  I.D.  Act.
 Prior  to  the
termination of their services on 30.6.1985, many of  the  workmen  concerned
had put in a service of about 10 years.
Inasmuch  as  so  many  years  have
gone since then, most of them must have reached the age  of  superannuation.
In the circumstances, there cannot be any order of  reinstatement.
However,
they will be entitled to continuity of service, and although they have  been
receiving last drawn wages under S 17 B of the I.D Act, 1947, they  will  be
entitled to 25% backwages and retirement benefits on par with the  other  10
workmen.  Award  of  25%  backwages  in  their   case   will   be   adequate
compensation.
In the circumstances, we dispose of the two appeals against  the
impugned judgment and order of the learned Single Judge of the  Bombay  High
Court, dated 14.9.2004, in Writ Petition No.2699  of  1993,  which  is  left
undisturbed by the Division Bench, by passing the following order:-

 (i)    The 163 workmen concerned in the present matter, will be placed  into
three categories, i.e., 
(a) those  who  have  already  reached  the  age  of superannuation; 
(b) those who are yet to reach the  age  of  superannuation;
and 
(c) those who have expired.  
They will be entitled  to  the  reliefs  in
the following manner.
(ii)   The benefits to the workmen in category (a) will be till the date  of
their superannuation,
 for category (b) till the date of this  judgment,  and
for those in category (c) till the date of expiry of the workman concerned.
(iii)  The  workmen  of  all  the  three  categories  will  be  entitled  to
continuity of service until the date of superannuation, or  until  the  date
of this judgment, or until the date  on  which  the  workman  concerned  has
expired, as the case maybe.
(iv)   All the workmen will be entitled to 25% backwages over and above  the
last drawn wages that they have received under Section 17B of I.D. Act.  
The
back wages shall be calculated until the date as mentioned  in  clause  (iii)
above.
(v)   All the workmen will be entitled to the same retirement  benefits,  if
any (depending on their eligibility), as given to  the  other  group  of  10
workmen viz. Pandurang Vishnu Sandage and others.
(vi)  All the aforesaid payments shall  be  made  directly  to  the  workmen
concerned or their heirs, as the case maybe, within three  months  from  the
date of this judgment.
(vii) There shall not be any order of reinstatement.
(viii)      The appellants will, thereafter, file  a  compliance  report  in
the Labour Court at Sangli, with a copy thereof  to  the  Registry  of  this
Court.
(ix)  Order accordingly.
(x)   Registry to send a copy of this judgment to the Labour Court,  Sangli.

30.         Both the appeals and all the I.As. moved therein stand  disposed

off as above, with no order as to costs.

                                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 2565 OF 2006

State of Maharashtra & Anr.                        …   Appellants

                                    Versus

Sarva Shramik Sangh, Sangli & Ors.                 …   Respondents


                                    WITH

                        CIVIL APPEAL NO.2566 OF 2006

Sarva Shramik Sangh, Sangli                        …   Appellant

                                   Versus

State of Maharashtra & Ors.                        …   Respondents




                          J  U  D  G  E  M  E  N  T


H.L. Gokhale J.


             Civil Appeal No.2565 of 2006 seeks to  challenge  the  judgment
and order dated 12.9.2005 passed by a Division  Bench  of  the  Bombay  High
Court in Letter Patents Appeal No.184 of 2005, as well as the  judgment  and
order dated 14.9.2004 passed by a Single Judge of that High  Court  in  Writ
Petition No.2699 of 1993, wherefrom the said
Letters  Patent  Appeal  arose.
The said Writ Petition had been filed by the respondents  to  challenge  the
award dated 21.5.1992 rendered by the  Labour  Court,  Sangli,  in  a  group
Reference under the Industrial Disputes Act, 1947  (I.D.  Act,  for  short).
The learned Single Judge had allowed the said Writ Petition,  by  the  above
referred  order,  and  the  Division  Bench  had  left  the  said   decision
undisturbed.
2.           The  State  of   Maharashtra   through   Secretary   Irrigation
Department, and Executive Engineer Irrigation Department,  Sangli,  are  the
appellants herein, whereas  Sarva  Shramik  Sangh,  Sangli,  a  Trade  Union
representing the workmen concerned, and two of the workmen in the  concerned
Industrial Establishment are the respondents to this appeal.
Facts leading to this appeal are this wise:-

3.          The Government of Maharashtra established  a  corporation  named
as the Irrigation Development Corporation of Maharashtra Limited,  sometimes
in  December  1973.
This  Corporation  was  a  Government  of  Maharashtra
undertaking.  It set up 25 lift irrigation schemes to provide free  services
to farmers.  
The corporation was established in the aftermath of a  terrible
drought which afflicted the State in the year 1972.
Some 256  workmen  were
employed to work on the irrigation schemes of the said Corporation.   Though
it was claimed that the workmen were casual and temporary, the fact  remains
that many of them had put in about  10  years  of  service  when  they  were
served with notices of termination by the appellant No.2 on 15.5.1985.   
The
notice sought to terminate their  services  w.e.f.  30.6.1985,  and offered them 15  days  compensation  for  every  completed  year  of  service.   
The
retrenchment was being effected because  according  to  the  appellants  the
lift irrigation schemes, on which these workmen  were  working,  were  being
transferred to a sugar factory  viz.  Vasantdada  Shetkari  Sahakari  Sakhar
Karkhana, Sangli.
4.          It is not  disputed  that  some  of  the  workmen  accepted  the
retrenchment compensation, though a large number of them did not.
 Some  163
out of them filed Writ Petition bearing No.2376 of 1985, through  the  first
respondent Trade Union, against  the  above  referred  Corporation  and  the
appellants, seeking to  restrain  the  transfer  of  the  undertaking.
The
petition was dismissed by the Bombay High Court and hence, a  Special  Leave
Petition was preferred to  this  Court  being  SLP  No.1386  of  1986.  
 The
appellants defended the said petition  by  pointing  out  that  the  workmen
concerned were not employees of the Corporation, but were employees  of  the State.  
This Court, therefore, dismissed the said SLP  by  its  order  dated
11.11.1986 by observing as follows:-
                 “Having regard to the statement in the counter affidavit of
           the Executive engineer,  the  State  of  Maharashtra,  that  the
           Petitioners were employees of the State and not the Corporation,
           we do not see how the reliefs sought against the Corporation can
           be granted in this petition.  If the Petitioners desire to  seek
           any reliefs against the State Government and if such  relief  is
           permissible, the Petitioners are at liberty to seek  appropriate
           legal remedy in the matter.  The SLP is, therefore, disposed  of
           accordingly.”


5.          This led  the  workmen  to  seek  Reference  of  the  Industrial Dispute under the I.D. Act.
These References  were  numbered  as  Ref.  I.D.
Nos.27 to 40, 42 to 70, 72 to 99/97, 1/88 to 35, 54, 63, 65, 72 to  92,  106
to 118/88, 17 to 29/89, 37, 38, 40 to 44/89 covering 163 applicants.
6.          In these References, it was contended on behalf of  the  workmen
that their retrenchment was illegal, inasmuch  as  the  requirement  of  the
adequate statutory notice as required under the I.D. Act, was  not  complied
with.
On the face of it, there was a shortfall of a few days in giving  the
notice.
The learned Labour Court Judge noted that the notices  were  issued
on 25.6.1985, and  the  services  were  terminated  w.e.f.  30.6.1985.   
The
workmen contended  that  the  lift  irrigation  schemes  wherein  they  were
working, were in fact Industrial Establishments, and that inasmuch  as  more
than 100 workmen were employed therein, the provision of Section 25N of  the
I.D. Act (which requires three months’ advance notice prior to  termination)
was applicable, but had not been complied with.   
The learned Judge  of  the
Labour Court did not deal with that submission, but held that  in  any  case
there was a violation of Section 25F of the I.D. Act, inasmuch as  not  even
one month’s notice had been given and hence the termination was illegal.
7.          In the Written Statement filed by the appellant No.2 before  the
Labour Court, it was stated  in  paragraph  3,  that  various  schemes  were
carried out by the State Government at its own expense.  
In paragraph  4  it
was  contended  that  the  workmen  concerned  were  the  employees  of  the
Irrigation Department.  
In paragraph 14 thereof, it  was  stated  that  “the
termination is not by way of victimization but as the irrigation scheme  has
been  transferred  to  Shetkari  Sahakari  Sakhar  Karkhana,   Sangli,   the
employees are not entitled to retain in the services without any work.”
8.          In the written statement there  was  no  specific  reference  to
Section 25FF of the I.D. Act which deals with the transfer of  undertakings.
 There was no reference to the said section in the judgment of  the  learned
Judge either.
We may however note that the learned  Judge  has  noted  this
submission of the appellants in paragraph 8 of her order  in  the  following
words:-
                 “8.…..However, in the present case, it is  clear  that  all
           those schemes where the Second Party workmen were  working  were
           sold by the State Government to the Vasantdada Shetkari Sahakari
           Sakhar Karkhana Ltd., Sangli and on said reason  their  services
           were terminated.  As such, it is clear that  those  schemes  are
           transferred to the Sugar Industry.  Hence, there is  no  control
           of the First Party employer on those schemes…….”

9.          The learned Judge, however, noted that  workmen  concerned  were
 employed on a temporary basis.  Having noted that, the learned Judge relied
 upon a judgment of Karnataka High Court between Workmen of  Karnataka  Agro
 Protines Ltd. v. Karnataka Agro Proteins Ltd. and Ors. reported in 1992 LLJ
 page 712, on the application of Section 25F and 25FF,  and  held  that  the
 only claim that the workmen could make was for compensation.
The  Karnataka
 High Court had referred to and followed the law laid down in Anakapalle Co-
 operative Agricultural and Industrial Society  Ltd.  v.  Workmen  and  Ors.
 reported in AIR 1963 SC 1489, and also  the  subsequent  judgment  of  this
 court in Central Inland Water Corporation Ltd. v. The Workmen  and  another
 reported in (1974) 4  SCC  696  to  the  same  effect.
The  Labour  Court,
 therefore, directed that there would not  be  any  reinstatement,  but  the
 workmen will be given the compensation in accordance with  Section  25F  of
 the I.D. Act.  
The Award of the Labour Court reads as follows:-
                 “Award:


              I) The claim is partly allowed.


             II) All the employees are entitled to receive the  retrenchment
                 compensation under Section 25F of Industrial Disputes  Act,
                 1947 after calculating their service period with the  First
                 Party.  The remaining claim stands rejected.


            III) However,  the  First  Party  is  hereby  directed  to  give
                 preference to all those employees whenever some  additional
                 work to new project are started or work is available.


             IV) It is informed that some employees have died.   In  respect
                 of such employees their legal heirs are entitled to receive
                 the compensation amount.


              V) The award be implemented within in a month from the date of
                 publication of this Award.

             VI) No order as to costs.”

10.         Being aggrieved by that  judgment  and  order,  the  respondents
filed Writ Petition bearing No.2699 of 1993 before a  Single  Judge  of  the
Bombay High Court invoking Article 227 of the Constitution  of  India.   The
learned Single Judge who heard the matter took the view that
  the process  of
pumping  water  wherein  the  workmen   were   employed,   amounted   to   a
‘manufacturing process’ under Section 2(k) of the Factories Act,  1948,  and
therefore, the lift irrigation schemes were in the nature of a ‘factory’  as
defined under Section 2(m) of  the  said  Act,  and  hence,  an  ‘Industrial
Establishment’ to which the I.D. Act applied.
11.         The learned Single Judge then held that since according  to  the
State Government, the workmen were employed by  the  Irrigation  Department,
the plea that their services were required to be terminated  on  account  of
the  transfer of the undertaking could not be accepted.   This  was  on  the
footing since the other activities of the  Irrigation  Department  continued
even after  the  transfer  of  the  lift  irrigation  schemes,  the  workmen
concerned  could  certainly  be  absorbed  into  other  activities  of   the
irrigation department.
12.         The  learned  Single  Judge  observed  that  the  plea  invoking
Section 25FF could not  be  permitted  to  be  raised  in  the  High  Court,
inasmuch as transfer was a mixed question of facts  and  law.  According  to
the learned Judge, it was a case of breach of Section 25N,  and  not  merely
25F of the I.D. Act.
Section 25N lays  down  the  conditions  precedent  to
retrenchment of workmen from Industrial  Establishments  wherein  more  than
100 workmen are employed, and sub-section (1)(a) thereof provides for  three
months’ notice or pay in lieu thereof in  the  event  of  retrenchment.
The
learned Judge, therefore, set-aside the award, since three  months’  advance
notice or pay was not given, and held that  the  workmen  were  entitled  to
reinstatement with continuity of service.  The  learned  Judge  awarded  25%
backwages to the workmen.  
The operative part of the order  of  the  learned
Judge as contained in paragraphs 11 to 14 of the judgment reads as follows:-

                 “11. 
The award dated 21st May 1992  passed  by  the  Labour
           Court, Sangli is  set  aside.   
The  workmen  concerned  in  the
           References are entitled  to  reinstatement  with  continuity  of
           service and 25% backwages.  
All workmen who  are  interested  in
           employment must report for duty within two months from the  date
           of this order.  
The Respondents will  give  them  employment  by
           reinstating them with  continuity  of  service  within  a  month
           thereafter.  
Backwages shall be paid to the workmen, computed at
           25% within three months of their reinstatement in service.
                 
12.   There are some workmen  who  have  been  absorbed  in
           other departments  of  the  State  Government  or  have  secured
           employment elsewhere.  
These workmen shall be paid 25% backwages
           till the date they secured employment  within  six  months  from
           today.
                 
13.   A  few  workmen  have  already  reached  the  age  of
           superannuation during the pendency of these  proceedings.   
They
           shall be paid the backwages computed at 25% till the  date  they
           attained the age of  superannuation  within  three  months  from
           today.
                 
14.   I am informed that some workmen have  expired  during
           the pendency of the proceedings in court.  
The Respondents shall
           pay to the heirs of these workmen 25% of  back  wages  upto  the
           date of death of these workmen within three months from today.”

13.         It is this order which was  challenged  in  the  Letters  Patent
Appeal.  The Division Bench, however, took the view that  a  Letters  Patent
Appeal was not available against an order passed on the Wirt Petition  filed
under Article 227 of the Constitution of India, and therefore dismissed  the
said Letters Patent Appeal.
 Being aggrieved by this order of  the  Division
Bench as well as of the learned Single Judge, this appeal  has  been  filed.
Leave was granted in this matter on  8.5.2006,  and  the  operation  of  the
impugned order was stayed subject to the compliance  of  the  provisions  of
Section 17B of the I.D. Act, 1947.
The appeal has been pending since  then,
and a number of I.As have been filed  by  both  parties.   When  the  appeal
reached for final hearing, Ms. Madhavi Diwan, learned counsel  appeared  for
the appellants, and Mr. Vinay  Navare,  learned  counsel  appeared  for  the
respondents.
Submissions on behalf of the appellants:-
14.         The principal submission of Ms. Madhavi Diwan,  learned  counsel
for the appellants is that this is a case of  transfer  of  an  undertaking.
That was the very plea taken in paragraph 14 of  the  written  statement  as
noted above, and also reflected in the judgment of the  Labour  Court.   The
learned Single Judge had clearly erred in ignoring  this  fact.   Ms.  Diwan
submitted that in fact it was also the case of  the  respondents  themselves
that retrenchment of their services took place because of  the  transfer  of
the undertaking.  She submits that the lift irrigation  schemes  constituted
an undertaking, and the ownership of the management of the  undertaking  was
being transferred, and it  was  not  relevant  that  the  ownership  of  the
Irrigation Department Corporation was not being transferred.  Therefore,  in
her submission it is the Section 25FF which applies  to  the  present  case,
and neither Section 25N nor Section 25F.
Besides, Section 25F  would  apply
only as a measure of compensation that is to be provided  for,  and  nothing
more as laid down by a  Constitution  Bench  of  this  Court  in  Anakapalle
Society’s  case  (supra).   
In  that  matter  this  Court  has  observed  in
paragraph 16 as follows:-
               “16. The Solicitor-General contends that the question in the
          present appeal has now to  be  determined  not  in  the  light  of
          general principles of industrial adjudication, but by reference to
          the specific provisions of s. 25FF itself. He argues, and we think
          rightly, that the first part of the section postulates that  on  a
          transfer of the ownership or management  of  an  undertaking,  the
          employment of workmen engaged by the said undertaking comes to  an
          end, and it provides for the payment of compensation to  the  said
          employees because of  the  said  termination  of  their  services,
          provided, of course, they satisfied the  test  of  the  length  of
          service prescribed by the section. The said part further  provides
          the manner in which and the extent to which the said  compensation
          has  to  be  paid.  Workmen  shall  be  entitled  to  notice   and
          compensation in accordance with the provisions  of  s. 25-F,  says
          the section, as if they  had  been  retrenched.  The  last  clause
          clearly brings out the fact that the termination of  the  services
          of the employees does not in law amount to retrenchment  and  that
          is consistent with the decision  of  this  Court  in  Hariprasad's
          case  [1957]1SCR121 : AIR 1957 SC 121. The  Legislature,  however,
          wanted  to  provide  that  though  such  termination  may  not  be
          retrenchment technically so-called,  as  decided  by  this  Court,
          nevertheless  the  employees  in  question  whose   services   are
          terminated by the transfer of the undertaking should  be  entitled
          to  compensation,  and  so,   s. 25-FF provides   that   on   such
          termination compensation would be paid to  them  as  if  the  said
          termination was retrenchment. 
The words  "as  if"  bring  out  the
          legal distinction between retrenchment defined by  s. 2(oo) as  it
          was  interpreted  by  this  Court  and  termination  of   services
          consequent upon transfer with which it deals.
 In other words,  the
          section provides that though termination of services  on  transfer
          may not be retrenchment, the workmen  concerned  are  entitled  to
          compensation as if the said  termination  was  retrenchment.  
This
          provision has been made for the purpose of calculating the  amount
          of compensation payable to such workmen; rather than  provide  for
          the measure of compensation over again, s. 25FF makes a  reference
          to s. 25-F for that limited purpose, and, 
therefore, in all  cases
          to which s. 25FF applies, the only claim which  the  employees  of
          the transferred concern can  legitimately  make  is  a  claim  for
          compensation against their employers. 
No claim can be made against
          the transferee of the said concern.”


This  judgment  in  Anakapalle  (supra)  has  been   consistently   followed
thereafter, including in a recent judgment of this  Court  in  Maruti  Udyog
Ltd. v. Ram Lal and Ors. reported in 2005 (2) SCC 638.
Reply on behalf of the respondents:-
15.         As far as the respondents are concerned, they  have  principally
contended that Section 25FF has no application to the present case, and  the
learned Single Judge of the High Court has rightly held that this is a  case
which is covered under Section  25N.  
It  is  submitted  that  in  view  of
Section 25N(1)(a), the workmen had to be given three  months’  prior  notice
or notice pay.  That having not been done, and the  prior  permission  under
25N(1)(b) of  the   appropriate  government  not  having  been  sought,  the
retrenchment will have to held illegal under sub-Section (7)  of  25N.
The
learned Judge of the Labour Court had in any case held that it  was  a  case
of breach of Section 25F, and the High Court had held that it was a case  of
breach  of  Section  25N.  
Either   of   those   findings   justified   the reinstatement with full backwages.
Reliance was placed in  this  behalf  on
the judgment of this Court in Anoop Sharma  v.  Executive  Engineer,  Public
Health Division No.1, Panipat (Haryana) reported in 2010 (5) SCC 497.
16.         However, more than that, the respondents have pointed  out  that
another set of 10 workmen (Pandurang Vishnu Sandage and  9  others)  working
on  the  same  lift  irrigation  schemes  had  subsequently  filed  separate
References in the Labour Court bearing Ref. (I.D.A.) No.37  to  45  of  1991
and 1 of 1992, and the Labour Court gave an award on 30.12.1996, that  those
10 workmen were entitled to reinstatement with 25% backwages.
That  judgment
was challenged by the State of Maharashtra by filing Writ  Petition  No.2729
of 1997.  The said Writ Petition was dismissed by a Single Judge  of  Bombay
High Court, relying upon the decision in Writ Petition No.2699  of  1993  in
the present matter.  An appeal was filed by  the  appellants  by  preferring
SLP (C) No.773 of 2006.  This Hon’ble Court dismissed the said  SLP  on  the
ground of delay.  A Review Petition  (Civil)  bearing  No.379  of  2006  was
filed. That was dismissed by the order passed on  26.9.2006.   Thereafter  a
Curative Petition No.164 of 2007 was filed. That also came to  be  dismissed
on 21.2.2008.  
It was, therefore, submitted that the  appellants  are  bound
by the decision in the aforesaid case of 10 workmen, and in  any  case  this
Court should not allow the present appeal as it will  lead  to  a  different
result in the case of workmen who are similarly situated.   
The  respondents
relied upon an order of this Court in the case of Warlu v.  Gangotribai  and
Anr. reported in 1995 (Supp) 1 SCC 37.
 It was  a  matter  relating  to  the
tenancy rights of the appellant,  concerning  the  land  spread  over  three
survey numbers, which belonged to the Respondent no.1. Three writ  petitions
arising out of the revenue proceedings filed by him were  dismissed  by  the
High Court.  Two SLPs therefrom were found to be time barred  and  therefore
dismissed.  As far as the third SLP is concerned,  this  Court  declined  to
entertain the same for the sole  reason  that  any  such  interference  will
result in making conflicting orders regarding tenancy  rights  in  the  same
land.  It was therefore, submitted by Mr. Navare, the  learned  counsel  for
the respondent that  the  appellants  should  suffer  by  the  principle  of
estoppel by record.
17.         In support of the contention that  the  orders  passed  by  this
Court in the case of the other 10 workmen should be followed in the  present
case, reliance was placed on paragraph 21 of  a  judgment  in  the  case  of
Nirmal Jeet Singh Hoon v. Irtiza Hussain and Ors. reported in 2010 (14)  SCC
564.
The judgment impugned in that matter directing eviction of tenant  had
already been upheld in an earlier SLP, wherein the  Petitioner  was  also  a
party.  
Entertaining the  second  petition,  on  his  behalf,  would  have
amounted  to  reviewing  the  earlier  order  of  this  Court.
 This  Court
dismissed  the  petition  by  observing
 “The  law  does  not   permit   two
contradictory and inconsistent orders in the same case  in  respect  of  the
same subject matter”.
 It was therefore submitted  that  the  order  of  the
Labour Court in the case of the other 10 workmen had attained finality,  and
the appellants cannot be permitted to  take  a  different  position  in  the
present  matter  when  the  workmen  in  both  the  matters  were  similarly
situated.
18.         The appellants had submitted that the Irrigation  Department  is
not an industry.  In that behalf, it  was  pointed  out  on  behalf  of  the
workmen that it is too  late  to  raise  this  submission  in  view  of  the
judgment of this Court in Bangalore Water Supply and Sewerage  Board  v.  A.
Rajappa & Ors. reported in 1978 (2) SCC 213.
As against that,  the  counsel
for the appellants pointed out that the judgment in Bangalore  Water  Supply
(supra) is pending for re-consideration before a larger bench of this  Court
in view of the order passed by the Constitution Bench in
State  of  U.P.  v. Jai Bir Singh reported  in  2005  (5)  SCC  1.
The  respondents,  however,
submitted that in the meanwhile  the  judgment  in  Bangalore  Water  Supply
(supra)  will  have  to  be  followed  until  it  is  overruled,  since  the
proposition therein continues to hold good.
 Reliance  is  placed  in  that
behalf, on the approach adopted by this Court in  such  a  situation,  in  a
matter concerning Arbitration in State of Orissa v.  Dandasi  Sahu  reported
in 1988 (4) SCC 12.  In  that  matter  this  Court  has  held  that  in  the
exercise of this Court’s discretion under  Article  136,  it  would  not  be
justified to allow a party to further prolong or upset adjudication  of  old
and stale disputes till the decision of the larger bench is received.
Consideration of the rival submissions:-
19.         (i)  To begin with, we must  note  that  the  workmen  concerned
were engaged as pump operators and chowkidars etc.  on  25  lift  irrigation
schemes, which were carrying out the process of pumping water.
The  process
of  pumping  water  is  specifically  covered  under   the   definition   of
“manufacturing process” under Section 2 (k)(ii) of The Factories Act,  1948.
 Thus, the workmen concerned were  engaged  in  a  “manufacturing  process”.
Once that is established, it follows that the activity  of  the  undertaking
in which they were working, constituted a “factory” within  the  meaning  of
Section 2(m) of the said Act.
(ii)  The explanation (i) to Section 25A  of  I.D.  Act,  1947,  covers  the
“factories” within the definition  of  an  “industrial  establishment”,  and
therefore Chapter VA  of  the  I.D.  Act,  1947  applies  to  “manufacturing
process” of pumping water. Hence, it cannot be denied that  the  undertaking
in  which  the  workmen  concerned  were  employed  was  covered  under  the
provisions of I.D. Act.
20.         It is, however, contended on behalf of the  appellant  that  the
said undertaking was being run by the irrigation  department  of  the  first
appellant, and the activities of the  irrigation  department  could  not  be
considered to be an “industry” within the definition of  the  concept  under
Section 2(j) of the I.D. Act.
As noted earlier, the reconsideration of  the
wide interpretation of the concept of “industry” in Bangalore  Water  Supply
and Sewerage Board (supra) is pending before a larger bench of  this  Court.
However, as of now  we  will  have  to  follow  the  interpretation  of  law
presently holding the field as per the  approach  taken  by  this  Court  in
State  of  Orissa  v.  Dandasi  Sahu  (supra),  referred   to   above. 
  The
determination of the present  pending  industrial  dispute  cannot  be  kept
undecided until the judgment of the larger bench is received.
21.          Having  stated  that  however,  the  objection  raised  by  the
appellants to the judgment rendered by the Single Judge of the  Bombay  High
Court is required to be looked into viz. that the appellants had effected  a
transfer of an undertaking which resulted into termination  of  services  of
the workmen concerned,  and  that  this  was  not  a  case  of  retrenchment
simpliciter.  It was submitted  that  the  25  lift  irrigation  schemes  by
themselves constitute an undertaking.  It may be that all the activities  of
irrigation department may not have been transferred,  but  a  separate  unit
thereof, consisting of these 25 lift irrigation  schemes,  has  come  to  be
transferred to a  sugar  factory.  As  held  in  Anakapalle  Society’s  case
(supra), in such a  matter  the  only  claim  which  the  employees  of  the
transferor concern can  legitimately  make,  is  a  claim  for  compensation
against the previous employer, since they are not being absorbed  under  the
new employer.  22.     Having stated this, we have also to note the  conduct
of the appellants.  It appears that  many  of  the  workmen  concerned  were
engaged  for  a  period  of  about  10  years.  Section  25FF   contemplates
compensation to be paid to the workmen on  account  of  their  retrenchment,
resulting from transfer of the undertaking.  The retrenchment,  however,  is
required to be effected only if the previous employer is not continuing  the
workmen concerned in any of his activities or establishments, or  when  they
are not being absorbed under the  new  employer.   Continuation  of  service
under the existing employer, or re-engagement under the new one,  should  be
the preferred  approach,  when  such  an  occasion  arises.  Termination  of
services should normally be the last resort. In the instant case, the  first
appellant – State Government, does not  appear  to  have  made  any  efforts
either to absorb  these  workmen  in  other  activities  of  the  irrigation
department, or to have insisted upon the sugar factory to absorb them.  This
is because the lift irrigation schemes were going to  be  continued  by  the
transferee sugar factory, and in any case the Irrigation  department  has  a
very large number of activities,  wherein  these  workmen  could  have  been
absorbed.  When the State Government is in  the  picture,  we  do  expect  a
little better attitude than the one which is often displayed  by  a  private
sector employer. It is possible  that,  in  a  given  situation,  the  State
Government may have its own economic compulsions which  justify  termination
of services. But, there must be either an  effort  to  absorb  such  surplus
workmen, or in  any  case  the  difficulties  of  the  Government,  if  any,
necessitating the termination, ought to be explained. We  do  not  find  any
such efforts or explanation placed on record.
23.         It is also material to note that the Labour Court  had  directed
the State Government to consider  the  absorption  of  these  workmen.   The
respondents have placed it on record  that  in  pursuance  of  a  subsequent
advertisement  for  employment  in  the  irrigation  department,  the  first
respondent-union had written to the authorities concerned  to  absorb  these
workmen, but the Government took  a  bureaucratic  attitude  to  inform  the
Union that no such decision could be taken, since the matter was pending  in
the Supreme Court.  This attitude was not expected from a Welfare State.
24.         In any case, having noted that another  petition  concerning  10
other workmen from the same lift irrigation schemes was dismissed,  and  SLP
and Curative Petitions, therefrom, were also dismissed,  a  question  arises
for this Court to consider that assuming this was  a  case  of  transfer  of
undertaking, should the relief to the affected workmen  be  restricted  only
to the compensation under Section 25F as required by S 25 FF.
25.         The learned counsel for the respondents has referred  to  a  few
cases arising out of revenue proceedings and the rent act,  indicating  what
should be the approach in such a  situation.   These  163  workmen  and  the
other 10 workmen viz. Pandurang Vishnu Sandage and others  were  working  on
the same lift irrigation schemes.  Those 10 workmen also  got  an  award  of
reinstatement with 25% backwages.   The  writ  petition  of  the  appellants
challenging that award was dismissed by the Bombay High Court, relying  upon
the judgment of the Single Judge in the present  mater.   The  SLP  and  the
Curative Petitions therefrom also came to  be  dismissed,  although  on  the
ground of gross delay.  The fact, however, remains that as far as  those  10
workmen are concerned, the order of relief in their case viz.  reinstatement
with  25%  backwages  and  continuity  in  service  was  left   undisturbed.
Therefore, a question arises - should the Government having  been  lethargic
in  the  case  of  those  10  workmen,  where  it  suffered  an   order   of
reinstatement with 25% backwages, be now permitted to insist  that  when  it
comes to these 163 workmen, who are similarly situated,  they  be  denied  a
comparable relief?
And in any case, should 
this Court treat  the  two  sets
of workmen differently, in the  matter  of  relief,  only  because  the  SLP
against some of them got dismissed on account  of  delay,  
whereas  the  SLP
concerning the others survived for final arguments?
26.         This Court has the authority to pass  an  appropriate  order  in
exercise of its jurisdiction for doing complete justice in a matter  pending
before it.  This authority under Article 142 of the Constitution  will  also
have to be read as coupled with a duty to do complete  justice  in  a  given
case.  In Food Corporation of India Worker’s Union v.  Food  Corporation  of
India & Anr. reported in 1996 (9) SCC 439,
this  Court  was  faced  with  a
situation where there was a delay in reinstatement of the specified  workmen
despite this Court’s earlier order.  This  was  because  of  long  delay  of
about 6 years in determining their identity, in the  proceeding  before  the
Industrial Tribunal.  Therefore, in view of the ‘human problem’ involved  in
the matter, the Court laid  down  a  procedure  for  identification  of  the
workmen with a view to do complete justice, and also directed  reinstatement
with backwages @ 70% of the ‘normal earnings’ of the workmen at piece  rate,
till their reinstatement.
In
L. Parameswaran v. Chief Personal Officer and ors. reported in 2008 (3)  SCC
649, 
the appellant had worked in an ex-cadre post for a very long time,  and
was reverted to his parent post, though  not  immediately  when  the  policy
decision to repatriate ex-cadre employees was taken.   Working  in  the  ex-
cadre post for a long time did not confer any  right  to  continue  in  that
post or for pay protection.  Considering, however, the long  time  spent  in
the ex-cadre post, this Court specifically invoked Article 142 to grant  him
protection of pay.
27.         In the  facts  and  circumstances  of  the  present  case  also,
accepting that the termination did result on  account  of  transfer  of  the
undertaking, the relief to be given to the workmen will have to  be  moulded
to be somewhat similar to that given to the other group of 10  workmen.
 It
will not be just and proper to restrict it to the  rigours  of  the  limited
relief under Section 25FF read with 25F  of  the  I.D.  Act.
 Prior  to  the
termination of their services on 30.6.1985, many of  the  workmen  concerned
had put in a service of about 10 years.
Inasmuch  as  so  many  years  have
gone since then, most of them must have reached the age  of  superannuation.
In the circumstances, there cannot be any order of  reinstatement.
However,
they will be entitled to continuity of service, and although they have  been
receiving last drawn wages under S 17 B of the I.D Act, 1947, they  will  be
entitled to 25% backwages and retirement benefits on par with the  other  10
workmen.  Award  of  25%  backwages  in  their   case   will   be   adequate
compensation.
28.         Civil Appeal No.2566  of  2006  has  been  filed  by  the  above
referred Trade Union, the  respondent  in  Civil  Appeal  No.2565  of  2006,
against the same two judgments of the Single Judge and  the  Division  Bench
of Bombay High Court.
The Union is aggrieved  by  the  award  of  only  25%
backwages to the workmen, and seeks an order of 100%  backwages,  contending
that if the retrenchment is held to be bad in law, the backwages  could  not
be restricted  to  anything  less  than  100%  backwages.
 Mr.  Navare  has
appeared in support of this appeal, and Ms. Diwan  has  appeared  to  oppose
the same.  
As can be seen from the narration of facts above, 
 the  Union  is
claiming reliefs for the present group of workmen on  the  basis  of  parity
with the other group  of  10  workmen  viz.  Pandurang  Vishnu  Sandage  and
others, and that submission has been accepted  by  us.  
Those  workmen  have been awarded only 25% backwages.   
That  being  so,  the  present  group  of
workmen cannot be awarded back wages more than what have been awarded to  the
other  10  workmen.   
The  claim  for  award  of  higher  backwages  cannot, therefore, be entertained.
29.         In the circumstances, we dispose of the two appeals against  the
impugned judgment and order of the learned Single Judge of the  Bombay  High
Court, dated 14.9.2004, in Writ Petition No.2699  of  1993,  which  is  left
undisturbed by the Division Bench, by passing the following order:-
(i)    The 163 workmen concerned in the present matter, will be placed  into
three categories, i.e., (a) those  who  have  already  reached  the  age  of
superannuation; (b) those who are yet to reach the  age  of  superannuation;
and (c) those who have expired.  They will be entitled  to  the  reliefs  in
the following manner.
(ii)   The benefits to the workmen in category (a) will be till the date  of
their superannuation, for category (b) till the date of this  judgment,  and
for those in category (c) till the date of expiry of the workman concerned.
(iii)  The  workmen  of  all  the  three  categories  will  be  entitled  to
continuity of service until the date of superannuation, or  until  the  date
of this judgment, or until the date  on  which  the  workman  concerned  has
expired, as the case maybe.
(iv)   All the workmen will be entitled to 25% backwages over and above  the
last drawn wages that they have received under Section 17B of I.D. Act.  The
backwages shall be calculated until the date as mentioned  in  clause  (iii)
above.
(v)   All the workmen will be entitled to the same retirement  benefits,  if
any (depending on their eligibility), as given to  the  other  group  of  10
workmen viz. Pandurang Vishnu Sandage and others.
(vi)  All the aforesaid payments shall  be  made  directly  to  the  workmen
concerned or their heirs, as the case maybe, within three  months  from  the
date of this judgment.
(vii) There shall not be any order of reinstatement.
(viii)      The appellants will, thereafter, file  a  compliance  report  in
the Labour Court at Sangli, with a copy thereof  to  the  Registry  of  this
Court.
(ix)  Order accordingly.
(x)   Registry to send a copy of this judgment to the Labour Court,  Sangli.

30.         Both the appeals and all the I.As. moved therein stand  disposed
off as above, with no order as to costs.

                                       …………..…………………..J.
                                       [  H.L. Gokhale  ]


                                               ……………………………J.

                                        [ Ranjan Gogoi]

New Delhi
Dated : October 21, 2013



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