Civil Appeal No 2307 of 1969 Appeal by Special leave from the Award dated the 1st April 1969 of the Addl
Industrial Tribunal Delhi in I D No 83 of 1968 and Civil Appeals Nos
1857 185970
Appeals by Special Leave from the Judgment and order dated the 17th November 1969 of the Addl
Labour Court Madras in claim Petition Nos
627 and 629 of 1968
M K Ramamurthi and Jitendra Sharma and Janardan Sharma for the appellants in both the appeals
371 section N Andley Rameshwar Nath and B R Mehta in CAs 1857 A 5970 for respondents in both the appeals
The Judgment of the Court was delivered by UNTWALIA J
As the main question for determination in these appeals by special leave is common they have been heard together and are being disposed of by this judgment
Civil Appeal No 2307 of 1969 The respondent company in this appeal has its Head office at Bombay
It manufactures tyres at its Bombay factory and sells the tyres and other accessories in the markets throughout the country
The company has a Distribution office at Nicholson Road Delhi
There was a strike in the Bombay factory from 3rd March 1967 to 16th May 1967 and again from 4th October 1967
As a result of the strike there was a short supply of tyres etc
to the Distribution office
In the Delhi office there were 30 employees at the relevant time
17 workmen out of 30 were laid off by the management as per their notice dated the 3rd February 1968 which was to the following effect Management is unable to give employment to the following workmen due to much reduced production in the company s factory resulting from strike in one of the factory departments
These workmen are therefore laid off in accordance with law with effect from 5th February 1968 The lay off of the 17 workmen whose names were mentioned in the notice was recalled by the management on the 22nd April 1968
The workmen were not given their wages or compensation for the period of lay off
An industrial dispute was raised and referred by the Delhi Administration on the 17th April 1968 even when the layoff was in operation
The reference was in the following terms Whether the action of the management to lay off  17 workmen with effect from 5th Feb 1968 is illegal andor unjustified and if so to what relief are these workmen entitled The Presiding officer of the Additional Industrial Tribunal Delhi has held that the workmen are not entitled to any lay off compensation
Hence this is an appeal by their Union
We were informed at the Bar that some of the workmen out of the batch of 17 have settled their disputes with the management and their cases were not represented by the Union in this appeal
Hence this judgment will not affect the compromise or the settlement arrived at between the management and some of the workmen
The question which for our determination is whether the management had a right to lay off their workmen and whether the workmen are entitled to claim wages or compensation
372 The simple dictionary meaning according to the Concise oxford Dictionary of the term lay off  is period during which a workman is temporarily discharged
 The term lay off  has been well known in the industrial arena
Disputes were often raised in relation to the lay off  of the workmen in various industries
Sometime compensation was awarded for the period of lay off but many a time when the lay off was found to be justified workmen were not found entitled to any wages or compensation
In Gaya Cotton  Jute Mills Ltd vs Gaya Cotton  Jute Mills Labour Unionl the standing order of the company provided that the company could under certain circumstances stop any machine or machines or department or departments wholly or partially for any period or periods without notice or without compensation in lieu of notice In such a situation for the closure of the factory for a certain period no claim for compensation was allowed by the Labour Appellate Tribunal of India
We are aware of the distinction betwen a lay off and a closure
But just to point out the history of the law we have referred to this case
Then came an amendment in the hereinafter referred to as the Act by Act 43 of 1953
In section 2 clause kkk was added to say lay off with its grammatical variations and cognate expressions means the failure refusal or inability of an employer on account of shortage of coal power or raw materials or the accumulation of stocks or the break down of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched Explanation Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid off for that day within the meaning of this clause Provided that if the workman instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then he shall be deemed to have been laid off only for one half of that day Provided further that if he is not given any such employment even after so presenting himself he shall not be deemed to have been laid off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day  1 1952 II Labour Law Journal 37
373 By the same Amending Act Chapter VA was introduced in the Act to provide for lay off and retrenchment compensation
Section 25A excluded the Industrial Establishment in which less than 50 workmen on an average per working day had been employed in the preceding calendar month from the application of Sections 25C to 25E Section 25 C provides for the right of laid off workmen for compensation and broadly speaking compensation allowable is 50 of the total of the basic wages and dearness allowance that would have been payable 13 to the workman had he not been laid off
It would be noticed that the sections dealing with the matters of lay off in Chapter VA are not applicable to certain types of Industrial Establishments
The respondent is one such Establishment because it employed only 30 workmen at its Delhi office at the relevant time
In such a situation the question beset with difficulty of solution is whether the laid off workmen were entitled to any compensation if so what  We shall now read section 25 J
It says 1 The provisions of this Chapter shall have effect not withstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment Standing orders Act 1946 Provided that where under the provisions of any other Act or Rules orders or notifications issued thereunder or under any standing orders or under any award contract of service or otherwise a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act the workman shall continue to be entitled to the more favourable benefits in respect of that matter notwithstanding that he receives benefits in respect of other matters under this Act
For the removal of doubts it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes but the rights and liabilities of employers and workmen in so far as they relate to layoff and retrenchment shall be determined in accordance with the provisions of this Chapter
 The effect of the provisions aforesaid is that for the period of lay off in an Industrial Establishment to which the said provisions apply compensation will have to be paid in accordance with section 25C
But if a workman is entitled to benefits which are more favourable to him than those provided in the Act he shall continue to be entitled to the more favourable benefits
The rights and liabilities of employers and workmen in so far as it relate to lay off and retrenchment except as provided in section 25J have got to be determined in accordance with the provisions of Chapter VA
The ticklish question which does not admit of an easy answer is as to the source of the power of management to lay off a workman
The employer has a right to terminate the services of a workman
Therefore his power to retrench presents no difficulty as retrenchment means the termination by the employer of the service of a workman for any reason whatsoever as mentioned in clause oo of section 2 of the 374 Act
But lay off means the failure refusal or inability of employer on account of contingencies mentioned in clause kkk to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment
It has been called a temporary discharge of the workman or a temporary suspension of his contract of service
Strictly speaking it is not so
It is merely a fact of temporary unemployment of the workman in the work of the Industrial Establishment
Mr section N Andley submitted with reference to the explanation and the provisions appended to clause kkk that the power to lay off a workman is inherent in the definition
We do not find any words in the definition clause to indicate the conferment of any power on the employer to lay off a workman
His failure or inability to give employment by itself militates against the theory of conferment of power
The power to lay off for the failure or inability to give employment has to be searched somewhere else
No section in the Act confers this power
There are two small matters which present some difficulty in the solution of the problem
In explanation 1 appended to sub section  2 of section 25B the words used are he has been laid off under an agreement or as permitted by standing order made under the Industrial Employment Standing orders Act 1946 or under this Act or under any other law applicable to the industrial establishment
 indicating that a workman can be laid off under the also
But it is strange to find that no section in Chapter VA in express language or by necessary implication confers any power even on the management of the Industrial Establishment to which the relevant provisions are applicable to lay off a workman
Clause ii of section 25E says No compensation shall be paid to a workman who has been laid off If he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day This indicates that there is neither a temporary discharge of the work man nor a temporary suspension of his contract of service
Under the general law of Master and Servants an employer may discharge an employee either temporarily or permanently but that cannot be without adequate notice
Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in clause kkk of section 2 is not a temporary discharge of the work man
Such a power therefore must be found out from the terms of contract of service or the Standing orders governing the establishment
In the instant case the number of workmen being only 30 there were no Standing orders certified under the Industrial employment Standing orders Act 1946
Nor was there any term of contract of service conferring any such right of lay off
In such a situation the conclusion seems to be inescapable that the workmen were laid off without any authority of law or the power in the management under the contract of service
In Industrial Establishments where there is a power in the management to lay off a workman and to which the 375 provisions of Chapter VA apply the question of payment of compensation will be governed and determined by the said provisions
Otherwise Chapter VA is not a complete Code as was argued on behalf of the respondent company in the matter of payment of lay off compensation
This case therefore goes out of Chapter VA
Ordinarily and generally the workmen would be entitled to their full wages but in a reference made under section 10l of the Act it is open to the Tribunal or the Court to award a lesser sum finding the justifiability of the lay off
 In The Management of Hotel Imperial New Delhi  others vs Hotel Workers  Unionl in a case of suspension of a workman it was said by Wanchoo J as he then was delivering the judgment on behalf of the Court at page 482 Ordinarily therefore the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work
he will have to pay wages during the so called period of suspension
Where however
there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that  the servant is not bound to render service and the master is not bound to pay
 The same principle was reiterated in V P Gindroniya vs State of Madhya Pradesh  Ors2 We have referred to the suspension cases because in our opinion the principles governing the case of lay off are very akin to those applicable to a suspension case
In Veiyra M A vs Fernandez C P and another3 a Bench of the Bombay High Court opined that under the general law the employer was free to dispense with the services of a workman but under the he was under an obligation to lay him off that being so the action of lay off by the employer could not 
be questioned as being ultra vires
We do not think that the view expressed by the Bomby High Court is correct
There is an important decision of this Court in Workmen of Dewan Tea Estate and ors
vs The Management4 on which reliance was placed heavily by Mr M K Ramamurti appearing for the appellant and also by Mr Andley for the respondent
One of the question for consideration was whether section 25C of the Act recognises the common law right of the management to declare a lay off for reasons other than those specified in the relevant clause of the Standing order
While considering this question Gajendragadkar J as he then was
said at page 554 The question which we are concerned with at this stage is whether it can be said that s25C recognises a common law 1  2 1970 3 SCR 448
3 1956 I Labour Law Journal 547
4 964 S SCR 548
376 right of the industrial employer to lay off his workmen
This question must in our opinion be answered in the negative
When the laying off of the workmen is referred to in section 25C it is the laying off as defined by section 2 kkk and so workmen who can claim the benefit of section 25C must be workmen who are laid off and laid off for reasons contemplated by section 2 kkk that is all that section 25C means
Then follows a sentence which was pressed into service by the respondent
It says If any case is not covered by the Standing orders it will necessarily be governed by the provisions of the Act and layoff would be permissible only where one or the other of the factors mentioned by section 2 kkk is present and for such lay off compensation would be awarded under section 25C In our opinion in the context the sentence aforesaid means that if the power of lay off is there in the Standing orders but the grounds of lay off are not covered by them rather are governed by the provisions of the Act then lay off would be permissible only on one or the other of the factors mentioned in clause kkk
Subsequent discussions at pages 558 and 559 lend ample support to the appellant s argument that there is no provision in the Act specifically providing that an employer would be entitled to lay off his workmen for the reasons prescribed by section 2 kkk
Mr Andley placed strong reliance upon the decision of this Court in Sanjhi Jeevraj Ghewar Chand  Ors
vs Secretary Madras Chillies Grains Kirana Merchants Workers  Union  Anrl The statute under consideration in this case was the and it was held that the Act was intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus of the persons to whom it should apply
The Bonus Act was not to apply to certain Establishments
Argument before the Court was that bonus was payable de hors the Act in such establishment also
This argument was repe11ed and in that connection it was observed at page 381 It will be noticed that though the confers substantive rights on workmen with regard to lay off retrenchment compensation etc it does not create or confer any such statutory right as to payment to bonus
Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for 
investigation and settlement of disputes raised thereunder
There was therefore no question of Parliament having to delete or modify item S in the Third Schedule to or any such provision in any corresponding Act or its having to exclude any right to bonus thereunder by any categorical exclusion in the present case And finally it was held at page 385 Considering the history of the legislation the background and the circumstances in which the Act was enacted the 1 1969 I SCC 366
377 object of the Act and its scheme it is not possible to accept A the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through Industrial adjudication under the or other corresponding law
 In a case of compensation for lay off the position is quite distinct and different
If the term of contract of service or the statutory terms engrafted in the Standing orders do not give the power of lay off to the employer the employer will be bound to pay compensation for the period of lay off which ordinarily and generally would be equal to the full wages of the concerned workmen
If however the terms of r employment confer a right of lay off on the management then in the case of an industrial establishment which is governed by Chapter VA compensation will be payable in accordance with the provisions contained therein
But compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply and it will be so as per the terms of the employment
In Kanhaiya Lal Gupta vs Ajeet Kumar Dey and othersl a learned single Judge of the Allahabad High Court seem to have rightly held that in the absence of any term in the contract of service or in the statute or in the statutory rules or standing orders an employer has no right to lay off a workman without paying him wages
A learned single Judge of the Punjab and Haryana High Court took an identical view in the case of Steel and General Mills Co Ltd vs Additional District Judge Rohtak and others
2 The majority view of the Bombay High Court in K T Rolling Mills Private Ltd and another vs M R Meher and other8 that it is not open to the Industrial Tribunal under the Act to award lay off compensation to workmen employed in an Industrial Establishment  to which section 25 C does not apply is not correct
The source of the power of the employer to lay off workmen does not seem to have been canvassed or discussed by the Bombay High Court in the said judgment
In the case of the Delhi office of the respondent the Tribunal has held that the lay off was justified
It was open to the Tribunal to award a lesser amount of compensation than the full wages
Instead of sending back the case to the Tribunal we direct that 75 the basic wages and dearness allowance would be paid to the workmen concerned for the period of lay off
As we have said above this will not cover the case of those workmen who have settled or compromised their disputes with the management
Civil Appeals 1857 1859 NL of 1970 In these appeals the facts are identical to those in the other appeal
There were only 33 employees in the Madras office of the respondent company
Certain workmen were laid off for identical reasons from the 1 1967 II Labour Law Journal 761
2 1972 1 Labour Law Journal 284
3 AIR 1963 Bombay 146
378 5th February 1968
The lay off was lifted on the 29th April 1968
The concerned workmen filed petitions under section 33C 2 of the Act for computation of their wages for the period of lay off
Holding that the lay off was justified and valid the Presiding officer of the Additional Labour Court Madras has dismissed their applications for salary and allowances for the period of lay off
Hence these appeals
In a reference under section 10 1 of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance
But no such power exists in the Labour Court under section 33C 2 of the Act
only the money due has got to be quantified
If the lay off could be held to be in accordance with the terms of the contract of service no compensation at all could be allowed under section 33C 2 of the Act while in the reference some compensation could be allowed
Similarly on the view expressed above that the respondent company had no power to lay off any workmen there is no escape from the position that the entire sum payable to the laid off workmen except the workmen who have settled or compromised has got to be computed and quantified under section 33C2 of the Act for the period of lay off
For the reasons stated above all the appeals are allowed
In Civil Appeal No 23071969 in place of the order of the Tribunal an order is made on the lines indicated above
And in Civil Appeals 1857 to 18591970 the orders of the Labour Court are set aside and the cases of the appellants are remitted back to that Court for computation and quantification of the sums payable to the concerned workmen for the period of lay off
There will be no order as to costs in any of the appeals
SR Appeals allowed Orders in CA 230769 modified  CAs 1857 185970 remitted hock to the Tribunal


Summary:
The respondent company manufacturing tyres in Bombay due to the general strike in its factory between the period 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lay off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office
The workmen in the Delhi and Madras offices were called back to duty on 22nd April 1968 and 29th April 1968 respectively
The workmen were not given their wages or compensation for the period of lay off
An industrial dispute was raised and referred to the tribunal by the Delhi Administration even when the lay off was in operation
The Presiding officer of the Additional Industrial Tribunal Delhi held that the workmen were not entitled to any layoff compensation
The workmen in Madras filed petitions under section 33C2 of the for computation of their wages for the period of their lay off
The Presiding officer of the Additional Labour Court Madras holding that the lay off was justified dismissed their applications
on appeal to this Court by special leave  HELD I The simple dictionary meaning according to the concise oxford Dictionary of the term lay ofF  is period during which a workman is temporarily discharged
Lay off means the failure refusal or inability of employer on account of contingencies mentioned in cl
kkk of section 2 of the  to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment
It has been called a temporary discharge of the workmen or a temporary suspension of his contract of service
Strictly speaking it is not so
It is merely a fact of temporary unemployment of the workman in the work of the lndustrial Establihment
Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in cl
kkk of section 2 is not a temporary discharge of the workman
372A 374A B G Gaya Cotton  Jute Mills Ltd vs Gaya Cotton  lute Mills Labour Union 1952 II Labour Law Journal 37 referred to
2i That the power to lay off a workman is inherent in the definition in cl
kkk of section 2 is not correct since no words in the definition clause to indicate the conferment of any power on the employer to lay off a workman can be found
His failure or inability to give employment by itself militates against the theory of conferment of power
No section in Chapter VA in express language or by necessary implication confers any power even on the management of the Industrial Establishment to which the relevant provisions are applicable to lay off a workman
There is no provision in the Act specifically providing that an employer would be entitled to lay off his workmen 370 for the reasons prescribed by section 2 kkk
Such a power therefore must be found out from the terms of contract of service or the Standing orders governing the Establishment
374 B G ii In the instant case the number of workmen being only 3 there being no Standing orders certified under the Industrial Employment Standing orders Act Act 20 of 1946 1946 and there being no contract of service conferring any such right of lay off the inescapable conclusion is that the workmen were laid off without any authority of law or the power in the management under the contract of service
374 G H The Management of Hotel Imperial New Delhi  others vs Hotel Workers Union  and V P Gindroniya vs State of Madhya Pradesh  ors
1970 3 SCR 448 referred to
Veiyra MA  Fernandez CP and another 1956 1 Labour Law Journal
547 reversed
Workmen of Dewan Tea Estate and ors
vs The Management 19641 S SCR 548 applied
Sanghi Jeevaraj Ghewar Chand  ors vs Secretary Madras Challies Grains Kirana Merchants Workers Union and Anr  distinguished
3 If the terms of a contract of service or the statutory terms engrafted in the Standing orders do not give the power to lay off to the employer the employer would be bound to pay compensation for the period of lay off which ordinarily and general would be equal to the full wages of the concerned V workman
If however the terms of employment confer a right of lay off on the management then in the case of an Industrial Establishment which is governed by Chapter VA compensation will be payable in accordance with the provisions contained therein
But compensation or no compensation will be payable in the case of an Industrial Establishment to which the provisions of Chapter VA do not apply and it will be so as per the terms of employment
377 B D Kanhaiya Lal Gupta vs Ajeet Kumar Dey and others 1967 II Labour Law Journal
761 and Steel and General Mills Co Ltd v Additional District judge Rohtak and others 1972 1 Labour Law Journal 2847 approved
K T Rolling Mills Private Ltd and another vs M R Meher and others AIR 1963 Bombay 146
reversed
4 In a reference under section 10l of the Act
it is open to the tribunal or court to award compensation which may not be equal to the full amount of basic wages and dearness allowance
But no such power exists in the Labour Court under section 33C2 of the Act
Only the money due has to be quantified
If the lay off could be held to be in accordance with the terms of contract of service
no compensation at all could be allowed under section 33C2 of the Act while in the reference some compensation could be allowed
378 B Cl In the instant case as regards the workmen in the Delhi case
the court held 75 of the basic wages and dearness allowance would be the adequate compensation for the lay off period