Case: M/S.Lokmat Newspaper Pvt Ltd Vs. Shankarprasad

S.B. Majmudar, J. 1. Leave granted. 2. We have heard learned counsel for the parties finally in this appeal. It is being disposed of by this judgment. 3. The question involved in this appeal at the instance of the appellant-management pertains to the legality and validity of the discharge of the respondent-employee and also calls for the decision as to whether the said discharge order amounted to `unfair labour practice on the part of the management. A few relevant facts are required to be noted at the outset. Introductory facts : 4. The respondent was working in the composing department of the appellant at Nagpur in Maharashtra State when his services were terminated. He was a foreman in the composing department of the appellant. The appellant is a company engaged in the publication of a Marathi daily named `Lokmat. The appellant has its registered office at Nagpur and Lokmat is being published therefrom. In the year 1976, the appellant-company decided to start publication of Jalgaon Edition of the said paper and for that purpose set up an establishment at Jalgaon in the eastern district of Maharashtra State. The Jalgaon Edition was composed and printed at Nagpur and was taken to Jalgaon. The composing of both the Editions was done by hand composing and printing was done on rotary printing machine. In 1978, the appellant decided to have composed and printed part of the Jalgaon Edition at Jalgaon. Since then the Jalgaon Edition was composed and printed partly at Jalgaon and partly at Nagpur. Then in 1981, the appellant installed two photo type composing machines at Nagpur. According to the appellant, it was a new technique of rationalisation, standardisation and improvement of plant or technique. It appears that the said machine was operated on experimental basis for sometime but by October 1981 it became fully operative. Consequently, the respondent along with 24 other employees, who were working in the hand composing department became redundant. Therefore, they were sought to be transferred to Jalgaon District in the State of Maharashtra where another establishment of the appellant was located. The said orders of transfer were challenged by the respondent and other employees before the Industrial Court under the provisions of The Maharashtra [Recognition of Trade Unions & Prevention of Unfair Labour Practices] Act, 1971 (hereinafter referred to as `the Maharashtra Act). The Industrial Court, after hearing the parties, took the view that the said transfer orders amounted to change in the conditions of service of the complainants which resulted into `unfair labour practice on the part of the appellant. The said decision of the Industrial Court was rendered on 12th February, 1982. The order of the Industrial Court was challenged by the appellant before the High Court by filing Writ Petition No. 630/82. It appears that subsequently the said Writ Petition was withdrawn. Consequently, the order of the Industrial Tribunal calling upon the appellant to withdraw the illegal transfers of the respondent and others remained a final order. Having realised that the respondent and other workmen could not be transferred out of Nagpur even though they had become surplus on account of introduction of the aforesaid photo composing machine, the appellant issued a notice on 25th March, 1982 under Section 9-A of the Industrial Disputes Act, 1947 (for short the `I.D. Act) to the respondent inter alia, stating that as a result of the installation of photo composing machine, there was no work available with the appellant so as to provide the same to the respondent and other employees.5. The respondent and other employees opposed the said notice and consequently the Conciliation Officer held conciliation proceedings under Section 12 of the I.D. Act. Parties were heard and efforts were made in conciliation to enable them to amicably settle the dispute but those proceedings ultimately failed. The Conciliation Officer closed the proceedings on 22.6.1982 and subsequently sent failure report to the State Government. The said report reached the State Government on 13th August, 1982. In the meantime, once the conciliation proceedings were closed, the appellant issued the impugned discharge order dated 22nd June, 1982 terminating the services of the respondent. As a consequence thereof, the services of the respondent and other employees were terminated by following the provisions of Section 25-F of the I.D. Act.6. Immediately after the discharge order was served on the respondent, he filed a complaint on 25.6.1982 before the Labour Court under Section 28 of the Maharashtra Act alleging that the respondent indulged in `unfair labour practice which falls within the provisions of Schedule-IV item No. 1(a), (b), (d) and (f) of the Maharashtra Act. The appellant resisted the said proceedings and contended that it has not resorted to any `unfair labour practice against the respondent. During the pendency of this complaint, the State Government, acting on the failure report of the Conciliation Officer, made a reference of the Industrial dispute under Section 10 of the I.D. Act. The appellant raised an objection before the Industrial Court, Nagpur, that the reference proceedings under Section 10 of the I.D. Act were incompetent and barred by Section 59 of the Maharashtra Act. As the respondent had already filed complaint under the Maharashtra Act challenging the very same discharge order, these objections were upheld by the Industrial Court, Nagpur and reference under Section 10 of the I.D. Act was disposed of.7. The complaint filed by the respondent was dismissed by the Labour Court by its order dated 30.1.1990. It was held that the impugned retrenchment order did not attract any of the provisions of Schedule IV, item No. 1 of the Maharashtra Act and that the respondent was not guilty of any `unfair labour practice when it passed the impugned retrenchment order against the respondent.8. The respondent filed a Revision Petition before the Industrial Tribunal, Nagpur. The said Revision Petition was dismissed by the Tribunal on 22nd November, 1990 upholding the findings of the Labour Court that the respondent had not engaged in any `unfair labour practice.9. The respondent then filed Writ Petition No. 70 of 1991 under Articles 226 and 227 of the Constitution of India challenging the decision rendered by both the Courts below. The said Writ Petition was also rejected by the learned Single Judge on 25th April, 1991. Respondent thereafter preferred Letters Patent Appeal No. 24 of 1991 before the Division Bench of the High Court at Nagpur under Clause 15 of the Letters Patent. The said appeal was heard by the Division Bench on merits. The Division Bench, by its orders dated 6.11.1996, held that the appellant had engaged in `unfair labour practice under item 1(a), (b), (d) and (f) of Schedule IV of the Maharashtra Act and hence it was directed to pay back-wages and other benefits to the respondent from the date of the order of retrenchment i.e. 22.6.1982 till the date of his retirement as he had also got superannuated in the meantime. This order of the Division Bench of the High Court has been brought in challenge by the appellant-management by way of present appeal on special leave under Article 136 of the Constitution of India. 10. Learned counsel appearing for the appellant, at the outset, submitted that the Writ Petition filed by the respondent before the High Court was in substance under Article 227 of the Constitution of India and hence was not maintainable under Clause 15 of the Letters Patent Appeal. In order to support this contention, he took us to the relevant averments in the Writ Petition as well as the order of the learned Single Judge. He also relied on judgments of this Court to which we will refer hereinafter. His submission was that the learned Single Judge had exercised his jurisdiction under Article 227 of the Constitution only and, therefore, the Letters Patent Appeal was not maintainable. On merits, it was submitted that even if the appeal was maintainable the Division Bench had patently erred in taking the view that notice under Section 9-A of the I.D. Act was illegal and inoperative. It was also contended that the decision of the Division Bench that respondents complaint was maintainable and that by passing the impugned order of the retrenchment, the appellant had resorted to `unfair labour practice, was erroneous. It was further submitted that the Division Bench had erred in holding that the impugned discharge order was violative of Section 33 of the I.D. Act and that in any case pure finding of fact of courts below that the appellant was not guilty of any `unfair labour practice ought not to have been interfered with by the Division Bench in the Letters Patent Appeal.11. On the other hand, learned counsel for the respondent tried to support the decision rendered by the Division Bench of the High Court on the points on which the Bench decided in favour of the respondent. He also submitted that the appeal under Clause 15 of the Letters Patent was maintainable before the Division Bench.12. Learned Counsel for the respondent invited our attention to a number of decisions of this Court in support of the respondents case on merits. We shall refer to them in latter part of this judgment when we shall consider these contentions on merits. 13. In the light of the aforesaid rival contentions, the following points arise for our consideration: 1. Whether the respondents Letters Patent Appeal was maintainable;2. If yes, whether the Division Bench was right in taking the view that the impugned retrenchment order was violative of Section 33(1) of the I.D. Act;3. Whether the appellant, in issuing the said order, had violated the provisions of Section 9-A of the I.D. Act;4. Whether the impugned retrenchment order amounted to the commission of `unfair labour practice by the appellant as per Schedule IV items 1(a), (b), (d) and (f) of the Maharashtra Act;5. Whether the Division Bench was justified in interfering with the findings of fact arrived at by the authorities below and as confirmed by the learned Single Judge while deciding the aforesaid question of `unfair labour practice; and6. What final order ? We shall deal with these points seriatim. Point No. 1 : 14. So far as the question of maintainability of Letters Patent appeal is concerned, it has to be noted that the Revisional Order was passed by the Labour Court on respondents complaint under Section 28 of the Maharashtra Act. The said order was confirmed by the Industrial Tribunal under Section 44 of the same Act. Both the courts held that retrenchment of the respondent does not amount to any `unfair labour practice on the part of the appellant. These orders were challenged by the respondent by filing Writ Petition under Articles 226 and 227 of the Constitution of India before the High Court of Judicature at Bombay, Nagpur Bench. The learned Single Judge dismissed the said Writ Petition, but his order itself shows that he was considering the Writ Petition of the respondent which was moved before him invoking the High Courts Jurisdiction under Articles 226 and 227 of the Constitution of India. In the said Writ Petition under Articles 226 and 227 of the Constitution, the respondent requested the High Court to call for the record and proceedings of Revision No. 70 of 1990 and after perusal thereof to be further pleased to quash and set aside the Order dated 30.1.1990 passed by the Second Labour Court, Nagpur in Complaint No. 262 of 1982 and order dated 20.11.1990 passed in Revision by the Industrial Court. 15. When we turn to the relevant paragraph of the Writ Petition, we find averments to the effect that the Courts below, while interpreting the provisions contained in Sections 9-A, 20 and 33 and other provisions of the I.D. Act, 1947 and the rules framed thereunder, had totally lost sight of the object and purpose of these provisions and had put an interpretation alien to industrial jurisprudence and had thus committed serious error of law apparent on the face of the record which resulted in serious miscarriage of justice and also in failure to exercise the jurisdiction vested in the courts below under the provisions of the Maharashtra Act. In para 9 of the Writ Petition, it was averred that the impugned orders of the Courts below had further resulted in infraction of his fundamental rights guaranteed to him under Articles 14, 21 and other Articles as enshrined in the Constitution of India. 16. It is, therefore, obvious that the Writ Petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for High Courts interference seeking issuance of an appropriate Writ of Certiorari under Article 226 of the Constitution of India. Basic averments for invoking such jurisdiction were already pleaded in the Writ Petition for High Courts consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the Writ Petition under Article 226 of the Constitution of India. It is equally true that the learned Single Judge dismissed the Writ Petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned Single Judge did not necessarily mean that the learned Judge did not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, that he was considering the aforesaid Writ Petition moved under Articles 226 as well as 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the Writ Petition of the respondent. In this connection, it is profitable to have a look at the decision of this Court in the case of Umaji Keshao Meshram and others v. Radhikabai, widow of Anandrao Banapurkar and Anr., 1986 Supp. SCC 401 . In that case O. Chinnappa Reddy and D.P. Madon, JJ., considered the very same question in the light of clause 15 of the Letters Patent Appeal of the Bombay High Court. Madon J., speaking for the Court in para 107 of the Report at page 473, made the following pertinent observations : "Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh and by the Punjab High Court in Raj Kishan Jain v. Tulsi Das and Barbam Dutt v. Peoples Co-operative Transport Society Ltd., New Delhi and we are in agreement with it." The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his Writ Petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 of the Constitution of India. This conclusion directly flows from the relevant averments made in the Writ Petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his Judgment, as seen earlier. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned Single Judge. It is also necessary to note that the appellant being respondent in Letters Patent Appeal joined issues on merits and did not take up contention that Letters Patent Appeal was not maintainable.

Decision:
1[ds]Point No. 1aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his Writ Petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 of the Constitution of India. This conclusion directly flows from the relevant averments made in the Writ Petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his Judgment, as seen earlier. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned Single Judge. It is also necessary to note that the appellant being respondent in Letters Patent Appeal joined issues on merits and did not take up contention that Letters Patent Appeal was not0. On the contrary, we find that the aforesaid decision has taken a correct view on the question posed for our consideration in the present case. In view of the aforesaid discussion, therefore, there was no escape from the conclusion to which the Division Bench in the impugned judgment reached that on 22.6.1982 when the order of retrenchment was passed against the respondent, the appellant-management had committed breach of Section 33(1) of the Act by not passing the said order after obtaining express previous permission in writing of the Conciliation Officer before whom the conciliation proceedings must be held to be pending in the evening ofnt No.In view of the aforesaid settled legal position, there is no escape from the conclusion that the impugned notice dated 25th March, 1982 under Section 9-A which was issued long after the actual installation of the photo composing machine had fallen foul on the touchstone of Section 9-A read with Schedule IV item No. 10. Such a notice in order to become valid and legal must have preceded introduction of such a machine and could not have followed the actual installation and effective commission of such a machine. The decision rendered by the Division Bench in this connection is found to be perfectly justified both on facts and in law. It must, therefore, be held that the impugned termination or discharge of the respondent was violative of the provisions of Section 9-A of the I.D. Act and he was discharged from service without the appellants following the mandatory requirements of Section 9-A of the I.D. Act. Effect of non-compliance of Section 9-A of the I.D. Act renders the change in conditions of service void ab1. We may also mention in this connection one another facet of this question. As the Conciliation Officer, after hearing the parties, had declared that investigation was over and settlement had not taken place, at least a few days were available after 22nd June, 1982 to the appellant for moving the Conciliation Officer to give the appellant permission to retrench the respondent. It is not possible to agree with the finding of the Labour Court that the Conciliation Officer could not have entertained such a request. He had not even drafted his report, much less submitted the same to the State Government at least within a few days after 22nd June, 1982. The very fact that the report reached the State Government on 13th August, 1982 shows that the conciliator would have despatched the same at least a couple of days after 22nd June, 1982, having complied with all the statutory requirements under Section 12(6) for preparation of such a report. Even on the next day of 22nd June, 1982 such a request could have been made by the appellant and the conciliator would not have felt any inhibition in recalling both the parties and hearing them on such a request on the part of the appellant to give permission to it to pass the impugned termination order as the conciliation had failed. Even by passing such a legally permissible and factually feasible course, and without waiting even for more than half an hour the impugned order was passed. It is easy to visualise that it was possible that if such a request was made by the appellant it could have been granted or it could have been rejected. If such a request was rejected by the conciliator then, of course, the impugned order could not have seen the light of the day and if thereafter the State Government had made the reference after reading the failure report, then the existing position regarding service condition of the respondent could have been continued by the reference Court pending the adjudication of such a dispute. The appellant with a view to avoid all these uncomfortable situations indulged in self help and passed the impugned order on the very evening of 22nd June, 1982. This is an additional facet of the deliberate undue haste resorted to by the appellant for short circuiting all possible inconvenient situations and to present the respondent with a fait accompli and also to placate the Conciliation Officer on the one hand and the State Government on the other and ultimately the reference Court also. Consequently it must be held that the impugned order was clearly a result of undue haste and, obviously amounted to `unfair labour practice on the part of the appellant as per Schedule IV item 1 clause (f) second2. So far as this point is concerned, we have already noted that the Labour Court itself has found that notice under Section 9-A was a belated one and should have been given at least by November, 1981 when the machine in question became fully operative resulting in displacement of workers in hand composing department. Still by curious reasoning, it has been held that there was nothing wrong with the notice though given belatedly and that the termination order was not offending Section 33(1) of the Act. These findings show patent errors of law and could not be sustained. The Industrial Court, on the other hand, came to an equally erroneous finding on the applicability of item 10 of Schedule IV of the I.D. Act when it held that the said item would apply not at the time when the rationalisation scheme was introduced, but at the time when the employer desired or decided to terminate the services of the employees. This reasoning of the Industrial Court is contrary to the very scheme of item 10 of Schedule IV of I.D. Act and totally ignores the term `likely to lead to retrenchment as found in the said item. The reasoning of the Industrial Court almost amounts to rewriting the said phrase as "decide to retrench the workmen". These patent errors of law committed by the Labour Court and the Industrial Court were totally bypassed by the learned Single Judge while he dismissed the Writ Petition. These patent errors of law, therefore, were rightly set aside by the Division Bench of the High Court in the Letters Patent Appeal. It could not, therefore, be said that the impugned judgment had tried to interfere with the pure findings of the fact reached by the authorities below on evidence against the respondent. It was perfectly open to the Appellate Court in the hierarchy of proceedings to interfere with such patent errors of law and to correct them, otherwise it could have been said that it had failed to discharge its duty and that would have also amounted to failure to exercise jurisdiction on itshe final order passed by the High Court in the impugned judgment has to be sustained. However, one aspect of the matter cannot be lost sight of while closing the present chapter. The respondents service were terminated on 22nd June, 1982 and that the termination is found to be amounting to `unfair labour practice as per the provisions of Section 30 of the Maharashtra Act. On this conclusion, the appellant has to be asked to withdraw such `unfair labour practice, meaning thereby, the impugned order has to be set aside and, thereafter, affirmative action including reinstatement of the employee with or without back-wages could be ordered by the Labour Court in these proceedings. However, as the High Court has noted that reinstatement is out of question as respondent has reached the age of superannuation, in the meantime, with effect from 3.5.1995, therefore, at the highest the respondent is entitled to back-wages for 13 years with gratuity and other retirement benefits. That is precisely what is ordered by the High Court in the impugned judgment. However, learned counsel for the appellant is right when he contends that even before the conciliator the respondents union on behalf of its members including the present respondent who were all facing retrenchment suggested that they were prepared to accept compensation @ 4 months wages per every completed year of service with a view to settle the dispute. This suggestion on behalf of the workmen by their union is noted by the conciliation officer in his report which reached the State Government on 13th August, 1982. It may be seen that by that time the impugned retrenchment order was only two months old as it was passed on 22nd June, 1982. It is also noted by the conciliation officer that this proposal did not find favour with the management. If it had been accepted by the management at that time the respondent-workman would have been satisfied by way of compensation amounting to only one-third of the back-wages for each year of service. It is, of course, true that years rolled by thereafter and the compromise did not go through. It is also true that the value of money in 1982 was much higher than what it is today. It is also true that the respondent has been denied not only back-wages but also interest on the said amount which would have been available to him years back. However, one aspect of the matter cannot be lost sight of. There is nothing on record to show that the respondent was gainfully employed or was not employed in any alternative avocation during all these years. It is, of course, true that it was for the appellant to point out as to how grant of back-wages should be reduced on account of the gainful employment of the respondent, in the meantime. Such an effort was made by the appellant. However, still one fact which stares in the face of the respondent is well established that the appellant has tried his best to accommodate the respondent in alternative employment at Jalgaon where hand composing department was working. If the respondent accepted the said offer he would have earned his full wages all throughout till retirement. Thus in a way the respondent also was responsible for the unfortunate situation in which he found himself during all these years. It is also to be noted that the complaint filed as early as on 25th June, 1982 remained dismissed in the hierarchy of proceedings from the Labour Court onwards up to the learned Single Judges decision in the High Court and it is only in the Letters Patent Appeal that he ultimately succeeded. Considering all these aspects, in our view, interest of the justice will be served if, while confirming the final order of the High Court impugned in this appeal, a modification is made regarding back-wages payable to the respondent. This is required also in view of the further fact that we disagree with the conclusion of the Division Bench of the High Court that the appellant was guilty of `unfair labour practice under item Nos. 1(a), (b) and (d) of Schedule IV of the Maharashtra Act and the decision of the High Court is being confirmed regarding `unfair labour practice of the appellant only under item 1(f) second part of Schedule IV of the said Act. While considering the grant of appropriate back-wages, we deem it fit to adopt the same yardstick which was suggested by the respondent-workmans union for all its members including the respondent that one-third of back wages for each completed year of service would be acceptable to them. We, accordingly, deem it fit to modify the final order of the High Court to the following extentappeal of the respondent before the High Court will be treated to be allowed by holding that the appellant management had indulged in `unfair labour practice only under item 1(f) second part of Schedule IV of the Maharashtra Act with the consequential direction that the appellant was not to indulge into and shall desist from indulging into such unfair labour practice.