HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.815 OF 2002 Dt.7.12.2010 Between: M/s.Hindustan Zinc Ltd., Rep. by its General Manager, Visakhapatnam ..Petitioner And Industrial Tribunal-cum- Labour Court, Visakhapatnam and another ..Respondents HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.815 OF 2002 ORDER: This writ petition is filed by the petitioner company seeking for issue of writ of prohibition prohibiting the 1st respondent Tribunal from proceeding further with the I.D.No.59 of 2001 filed by the 2nd respondent workman. The facts that are leading to filing of this writ petition as per the affidavit filed by the petitioner are that the petitioner company known as Hindustan Zinc Limited (hereinafter for short referred to as ‘the company’) is a Government of India undertaking. The company is a major producer of Zinc and Lead in India. Vizag Lead Plant was commissioned in January, 1978 with a capacity of 10,000 TPA Lead and subsequently in 1983, the smelting capacity was increased to 22,000 TPA. At the time of commissioning of the plant, there were only few industries with meager population/villages around. Subsequently, many medium and large-scale industries like Coastal Chemicals, Coromandal Fertilizers, HPCL and lately Vizag Steel Plant were established. As a result of spurt of industries, subsequent increase in business activities, permanent and floating population residential colonies and market complexes had grown up very fast, especially around the smelter. The gaseous and liquid emissions from various industries, which were set up around this area, and also from the Lead Plant generated pollution. The A.P. Pollution Control Board made its study in the area. The Pollution Control Board issued an order on 16.3.1999 under Section 31(A) of Air (Prevention and Control of Pollution) Act 1987 and Section 33(A) of Water (Prevention and Control of Pollution) Act, 1988 with certain directions. The position was again reviewed and the Pollution Control Board was constrained to pass an order, dated 7.6.1999 directing that the Lead Plant should be stopped with immediate effect. Accordingly, the Lead Plant operations were stopped. Pursuant to the said order and also because of the fact that the company was incurring losses due to low market price as compared to cost of production, the petitioner made an application on 20.10.2000 for closure of the Lead Plant at Visakhapatnam as per the provisions of the Industrial Disputes Act, 1947 (hereinafter for short referred to as ‘the Act’) to the Government of India contending that the Lead Smelter Plant had not been in operation from June, 1999 and that the idle wages are being paid to the workers though various efforts were made to upgrade the technology of the plant and to control pollution, the unit was not found to be feasible and viable. As per the provisions of the Act, the Ministry of Labour, Government of India fixed hearing on 11.12.2000 in which all registered union’s representatives were called for the said meeting. During the course of discussion, the Joint Secretary raised a question as to whether redeployment in other operational unit is possible. Based on this, a committee consisting of Director (Smelting Operations), Executive Director (Personnel & Administration) and General Manager (MS) was constituted on 12.12.2000. The Committee considered the cases of 172 employees of Lead Plant (Process) for redeployment/adjustment in other smelting plants of the company. The report, which was signed by members of the committee on 20.12.2000, was placed before the Competent Authority on 21.12.2000. It is further stated that the Government of India passed an order on 22.12.2000 permitting closure of the unit with effect from 24.1.2001. Thereafter, the petitioner company issued a circular on 26.12.2000 advising all the concerned workmen to give their option for voluntary retirement in accordance with the Government Order dated 22.12.2000. Against the said circular, the unions gave a strike notice on 5.1.2001, which was subsequently withdrawn by the union after conciliation proceedings held on 11.1.2001 before the Assistant Commissioner of Labour (Central), Visakhapatnam. Against the circular and individual letters 172 employees opted for voluntary retirement under SVRS-II by submitting application form with the declaration claiming compensation as per the scheme including the 2nd respondent. It is stated that the 2nd respondent’s application for voluntary retirement was accepted. After accepting the voluntary retirement scheme and fixing the payment, which was due as per the scheme, the same was made over to each of the workmen by organizing a farewell function. The management presented the cheques for entire amount and also a memento, which includes a gold coin and a wristwatch. All the workmen attended the function except a few in whose case the company had given a public notice in the local daily newspaper Eenadu. The amount of voluntary retirement scheme compensation and other final settlements in respect of the employees have been credited to the savings bank account in the Union Commercial Bank, Hindustan Zinc Smelter Factory Branch, Gajuwaka, wherein the salaries were regularly being credited and they were also informed about the same. The 2nd respondent did not attend the function and his voluntary retirement scheme compensation and final settlement amount was deposited in his savings bank account. The amounts were encashed by each of the workers. The 2nd respondent also encashed his cheques bearing Nos.686847 and 686746 dated 24.1.2001. The amount was debited to the petitioner’s company account on 27.1.2001 and subsequently the amount was even withdrawn by the 2nd respondent. The 2nd respondent also collected his memento of gold coin and wristwatch subsequently from the office. The petitioner’s company complied with all the requirements of the closure order passed by the Government of India in its letter, dated 22.12.2000. The 2nd respondent accepted even an amount of Rs.2,000/- which was the difference of gift amount i.e., different between Rs.3,000/- initially paid and after enhancement to Rs.5,000/-. The employees including 2nd respondent also received the arrears amount of salary revision. The 2nd respondent issued a telegram to the petitioner company on 27.7.2001 requesting the management to take back VRS amounts and insisted for employment to which the petitioner company gave a reply on 30.7.2001 stating that such a course of action is neither permissible nor possible in the circumstances of the case. It is further stated that 66 workmen including the 2nd respondent filed W.P.No.375 of 2001 and 9 workmen filed W.P.No.520 of 2001 challenging the said circular dated 26.12.2000 for consequential relief. Both the writ petitions were dismissed by this Court by a common order dated 19.1.2001 at the admission stage. The basic contention before this Court was that the circular of Voluntary Retirement Scheme dated 26.12.2000 was issued without application of mind and the decision of the company declining to re-deploy should be considered inconsistent and that it is the obligation as given in the letter of Government of India dated 22.12.2000. It is also contended further that the workmen had a remedy of going for proceedings under the Act and that the same will have to be undertaken only after reference by the Government of India which will normally take some time and meanwhile, time for making application for Voluntary Retirement Scheme would come to close and the employees will have to face termination and even benefits of Voluntary Retirement Scheme would be denied. This Court rejected the contentions of the petitioner in the said writ petitions when the petitioners urged that the respondent company may be directed to accept and process their Voluntary Retirement Scheme applications without prejudice to their rights to approach Industrial Tribunal and depending on the outcome of adjudication therein. The petitioner’s company later processed the application for Voluntary Retirement Scheme where no conditions were imposed. The acceptance of Voluntary Retirement Scheme application was done unconditionally. By virtue of acting on the same the events of offer and acceptance have been concluded. The Government of India have passed an order under Section 10 of the Act on 2.5.2001 making a reference as to whether the demand of the Zinc Smelter Mazdoor Sangh, Visakhapatnam for redeployment of Lead Plant Workers who were retrenched on closure of the plant to other units is justified and, if so, to what relief union is entitled. The dispute is before the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D.No.44 of 2001. Questioning the same, the petitioner company filed W.P.No.18437 of 2001 and obtained stay of the proceedings in W.P.M.P. No.23119 of 2001 on 5.9.2001. While so, the 2nd respondent filed independent application under Section 2(A)(2) of the Act which is numbered as I.D.No.59 of 2001 on the file of the Industrial Tribunal-cum-Labour Court, Visakhapatnam, seeking to declare that the forced and coerced resignation dated 24.1.2001 as retrenchment which is illegal and cannot be justified and therefore direct the management to take him back into employment with continuity of service with all other benefits. It is stated that the petition is wholly an abuse of the process of Court having voluntarily accept the VRS Scheme-II and taking all the benefits reckless allegations have been made which have no basis and they are factually incorrect and legally untenable. The petitioner company received notice in the proceedings on 13.9.2001 and when the matter is being adjourned from time to time, this writ petition is filed. Learned counsel for the petitioner contended that Section 2(A) of the Act has no application to the facts of the case as the 2nd respondent was not discharged, dismissed, retrenched or otherwise terminated from service. Section 2(OO) of the Act defines retrenchment and it does not include voluntary retirement of the workman and therefore the Tribunal has no jurisdiction to entertain such an application filed by the 2nd respondent under Section 2(A) of the Act. It is also contended that when the Central Government passed an order under Section 25-O of the Act, it has become final and implemented, acted upon by the workman as well as the management. It is also contended that the petitioner company is a Central Government undertaking and Section 2(A) of the Act is not attracted as it was brought in by A.P. State amendment for the purpose of State Industries. Though the learned counsel for the petitioner submitted that similar writ petitions filed by the workmen had been disposed of by this Court, but he has not placed any copy of the order before this Court. But, however, he has brought to the notice of this Court of a decision reported in I.L.Naidu v. Union of India[1] (W.P.Nos.25745 of 2001 and batch, dated 18.2.2003). Before going to the merits of the case, it is to be seen under what circumstances writ of prohibition can be issued. The writ of prohibition is of great antiquity, forming part of the process by which the King’s courts restrict courts of inferior jurisdiction from exceeding their powers – per Akin LJ in R v. Electricity Commissioners [(1924) 1 K.B. 171]. The writ of prohibition is more ancient than the writ of Certiorari and is contemporaneous with the origin of English law. It was conceived and formulated for the purpose of preventing usurpation of jurisdiction. Prohibition is a preventive remedy and generally lies before the challenged proceedings have culminated in a decision. Prohibition is a remedy for want of jurisdiction in an inferior Tribunal or court. Traditionally mere peripheral want of jurisdiction was not considered sufficient; a decision was considered to be a nullity for the purpose of prohibition only if the want of jurisdiction appears on its face – see London Corporation v. Cox [(1867) LR 2 HL 239. Dixon J, in Parisienne Basket Shoes Proprietary Ltd v. Whyte [(1938) 59 CLR 369] stated – “when prohibition is based upon want of jurisdiction it means that the proceedings are coram non judice, that a judgment or order when given or made, would be void”. In its ordinary application a writ of prohibition is issued before the inferior tribunal has made its decision. In such cases, the remedy cannot, of course, be used as a means of challenge to the ‘merits of the case’, i.e., the correctness of the decision. The order can be issued only when it is apparent, already at this stage, that the lower court had no jurisdiction. It also lies where a defect in procedure has occurred but the defect must be ‘so vicious as to violate some fundamental principle of jurisdiction’. Section 2-A of the Act deals with dismissal etc., of an individual workman to be deemed to be an industrial dispute. Section 2-A(2) of the Act reads as follows: “Notwithstanding anything in Section 10, any such workman as is specified in sub-section (1) may, make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to pending before it, in accordance with the provisions of this Act; and accordingly all the provisions of this Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute.” (A.P. Act 32 of 1987 w.e.f. 27.7.1987. Section 2-A(2) of the Act introduced by A.P. amendment in 1987, is not inconsistent with Section 10 of the Act. They operate in different fields under different circumstances. Section 10 of the Act operates where the union or other workmen espouse the cause of a workman while Section 2-A(2) operates in cases where the union does not espouse the cause of an individual workman who is discharged or dismissed or retrenched from service or terminated. In the instant case, the petitioner sought writ of prohibition prohibiting the 1st respondent Tribunal from proceeding further with I.D.No.59 of 2001 filed by the 2nd respondent. In writ petitions seeking writs in the nature of Prohibition, the management seeks interdiction of the entertainment and continuance of the industrial disputes by the Tribunal, preferred by the workmen under Section 2-A(2) of the Act. This Court in I.L.Naidu v. Union of India (supra) at para 72 held as follows: (i) The petitioner – company being a Central Government Undertaking, Section 2-A(2) of the Act has no application as this provision was introduced into the Act by the Andhra Pradesh Amendment Act 32 of 1987, for the purpose of State industries. (ii) Each of the applications preferred by the workmen under Sec.2-A(2) of the Act is an abuse of the process of the court. Having voluntarily accepted VRS-II and having taken the benefits under the same, the workmen disentitled to seek the reliefs claimed. (iii) As none of the employees was discharged, dismissed, retrenched or otherwise terminated from service but have voluntarily gone out of employment, by accepting voluntary retirement under a special scheme envisaged for the purpose, no claim is maintainable under Section 2-A(2). (iv) In view of the reference of a specified dispute by the Central Government by its order of reference dt.2.5.2001, the individual disputes under Sec.2-A(2) are not maintainable. (v) After the order of the Central Government dt.22.12.2000 granting permission for closure of the undertaking under Section 25-O of the Act and after such order was acted upon by the Management and the workmen – the latter by accepting VRS and taking the benefits thereunder, the Industrial Tribunal has no jurisdiction to entertain an application under Section 2-A(2) of the Act. This Court in the aforesaid judgment at para 92 held as follows: “In the circumstances, no useful purpose is served by recourse to the ritual of relegating the petitioner – Hindustan Zinc Ltd., in W.P.26575/01 and batch, to put forth its objections to the exercise of jurisdiction by the Tribunal or on the merits of the claims of the respondents/workmen. Therefore, though on the basis of precedents, this court is satisfied that in respect of contentions (ii), (iii) and (v) of the petitioner, the Tribunal has jurisdiction to adjudicate, as these contentions have already been considered and answered against the workmen, in W.P.25745 of 2001, nothing remains for the Tribunal to decide, on the claims of the workmen.” Having regard to the aforesaid facts and circumstances of the case, the subject matter of this writ petition is squarely covered by the aforesaid judgment of this Court. The writ petition is accordingly disposed of in terms of the said judgment. No order as to costs. ________________ G.CHANDRAIAH, J. 7.12.2010 kpr [1] 2003 (2) ALT 470