Case: Narkeshari Prakashan Limited Vs. Nagpur Press Kamgar Sangh and Another

Perusal of the list of such employees filed as Annexure V of the reply by the respondent/Union before the State Government, would show that some of them are only employed upon the work relating to photo composing machines. The above list of employees is filed in answer to the information supplied by the appellant upon Item No. 16 of the prescribed proforma to the State Government in seeking permission for retrenchment.52.The above referred reply of the respondent/Union shows that, according to it, Tarun Bharat Printers and Processors Ltd., is interconnected company of the appellant. It further shows that there were originally 35 employees working in the said company as hand compositors, out of whom during the period from 1986 to 1990 i.e. after installation of photo composing machines, 21 employees were absorbed by the appellant leaving these 19 employees concerned who were sought to be and are retrenched. The submission thus is that these 19 employees of the appellant could have been offered the above jobs upon which the employees of Tarun Bharat Printers and Processors Ltd., were transferred.53.As regards these jobs and in particular regarding the jobs in relation to the photo composing machines, the appellant has pointed out in the return filed in the instant writ petition preferred by the respondent/Union that these photo composing machines are highly sophisticated and expensive requiring thorough and extensive training, and it is only after inviting application to give opportunities to all its employees including its compositors for giving the necessary training that the appointments were made in the jobs relating to photo composing machines. However, according to the appellant, none of these hand compositors responded to the said notice. It cannot be disputed that if the job is a skilled job no absorption as of right can be claimed in the said job without obtaining necessary training for the said job.54.The respondent/Union has, however, denied the notice having been displayed upon them by notice board by the appellant about training being given for the jobs in question. The learned Counsel for the appellant has in this regard brought to our notice the copy of the said notice annexed as Annexure R-1 of the return filed by it and the endorsement upon the said notice which would show that the said notice was pasted upon the notice board of the appellants Press. The conduct of the appellant in this case does not show that they were bent upon retrenching the workmen concerned at any cost because even earlier when the Mono and Lino Composing Machines were installed, no retrenchment was effected although, according to it, it was found at that time that the hand compositors with their meagre education and moderate background were not in a position to cope up with the technical work of these machines. Moreover, when the said photo composing machines were introduced because of which, according to the respondent/Union, there was likelihood of retrenchment of the hand-compositors concerned, it is difficult to believe that they would not enquire about what would happen to them in case the work of composing was done upon the said machines. In fact it would appear that since they continued to get hand composing work of "Yugdharm", they did not show any interest in doing the work upon the photo composing machines. In these circumstances, we cannot accept the submission on behalf of the respondent/Union that the notice about training for the jobs in question was not displayed upon the notice board.55.Be that as it may, the fact remains that the work upon these machines was highly technical and a skilled one and the machines could not be operated without any proper training to the hand compositors if the jobs upon such machines were to be offered to them. The said jobs could not therefore be claimed by these workers without any training. It is not shown to us that if the workers from Tarun Bharat Printers and Processors Ltd. were transferred upon these jobs, they did not possess any knowledge about the same or had not undergone any training for the same. Moreover, the aforesaid list of the said employees incorporated in Annexure V of the reply of the respondent/Union does not show actually as to at what time these employees from Tarun Bharat Printers and Processors Ltd. were transferred to the appellant because the question of retrenchment of the hand compositors concerned had actually arisen in June, 1991.55-A.As regards the other jobs except the appointment as peon, it does not appear by merely reading the said list (Annexure V) that the jobs shown therein could be done by these hand compositors, such as the work of Accountant, Cameraman, Machineman etc. Even as regards the question of appointment as peon, it is not stated when the person concerned was appointed as peon. The above list (Annexure V) is thus of no assistance to assess what job was available for absorption of the hand compositors concerned at that time when they were sought to be retrenched after the composing work of "Yugdharm" stopped coming to the appellants Press and when the application was made on 7-5-1991 for their retrenchment because of the aforesaid reason.56.It is not thus possible for us to accept the contention raised on behalf of the respondent/Union that the Secretary has not applied his mind to these factors.57.It is, however, clear as hereinbefore referred to from the talks of settlement between the management and the respondent/Union that the Management has offered that it is possible for them as on today to absorb 7 of these workmen concerned. According to the management, it would do so on the basis of the test of seniority-cum-suitability of the workmen concerned for the jobs to be offered to them. The permission thus will have to be granted for retrenchment of 12 of the workmen concerned, the discretion for absorption of 7 persons being left with the Management, because their absorption depends upon their suitability for the jobs available for them in the appellants concern.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]26.On the other hand, the learned Counsel appearing for the respondent Union has heavily relied upon the judgment of the Division Bench of this Court in the case of Nav Bharat, Hindi Daily, Nagpur v. Navbharat Sharamik Sangha, 1984 Mh. L.J.483. The facts in the said case would show that mono composing machine was installed in the Nav Bharat press in March 1973 and soon thereafter in May 1973 the services of the 33 compositors were terminated on the ground that there was no work for them. In the light of these facts, the Division Bench of this Court held that installation of mono composing machine in a press, being a rationalised machinery was likely to lead to retrenchment of workmen, and therefore Item No. 10 of the Fourth Schedule of the Act was directly attracted. Thus, according to the said judgment, it was imperative on the part of the employer to serve a notice of change under sectionof the Act, failing which it would vitiate the retrenchment resulting from the operation of such a machine.27.It is clear from the facts in the above case that retrenchment of workmen therein was a direct out come of installation of mono composing machine as there was proximity of time between the installation of the machine and the consequent retrenchment of the workmen concerned, which factor heavily weighed with the Division Bench in arriving at the conclusion in the said case that installation of rationalised machine by the Nav Bharat Press was likely to lead to retrenchment which in fact had immediately taken place within two months because of which in the absence of notice of change under sectionof the Act, it held that the retrenchment of workmen in the said case was vitiated. It is, however, pertinent to see that unlike as in the instant case no other reason was pointed out for retrenchment of workmen in the saidlearned Counsel appearing for the respondent/Union has then relied upon the judgment of the Supreme Court in the case of M/s Tata Iron and Steel Co. Ltd. v. Workmen of M/s Tata IronSteel Co. Ltd. and others, A.I.R. 1972 S.C.1917. The facts in the said case would show that the question involved therein was relating to Item 8 of the Fourth Scheduleof the Act.Sunday, which was originally fixed as a weekly day of rest was changed and some other day was fixed as day of rest. It was held in the said case that fixation of Sunday as weekly rest day having been founded on usage and practice and the same being treated as a customary privilege, changing it to some other day of rest would fall within the scope of Item 8 of the Fourth Schedule of the Act necessiating the notice of change to be given under sectionthereof. The said case thus clearly turns upon the facts therein. It cannot be disputed that if a matter directly falls within any of the entries in the Fourth Schedule, notice of change under sectionof the Act, is a must, failing which introduction of such a change by the employer is illegal and ineffective. (See para 15 of theneed not be any two opinions about the above object of enacting sectionof the Act.The question, however, is whether the retrenchment of the workmen concerned in the instant case is covered by any item of the Fourth Schedule of the Act particularly when the Supreme Court in L. Robert Desouzass case cited supra has held to the contrary and has observed that there is no change in conditions of service involved in effecting retrenchment and that notice under sectionand notice under sectionare two different aspects of notice, having no corelation with each other.32.Examining the rival submissions on facts in the light of the principles laid down in the above judgments, what has to be seen is whether the rationalisation introduced by installation of four photo composing machines in the press of the appellant was likely to lead to retrenchment. It is material to see that according to the appellant the said machines were installed in 1980 and thework could be actually extracted from these machines fromonwards. The respondent Union has denied the said fact and has stated that said machines were installed in 1985.33.Be that as it may, there is, however, no dispute between the parties that at the time of installation of these machines there was no retrenchment of the workmen concerned i.e. the hand compositors effected by the appellant Company, the reason being that although after introduction of these machines, the work ofof the Daily Tarun Bharat owned by the appellant was not available, the hand compositors in Tarun Bharat were doing the work of composing of "Yugdharm" mainly and a small quantity of work of composing of advertisement of Tarun Bharat was also given to them. As regards the hand composing work of "Yugdharm", there was no reason to believe as is clear from the facts hereinafter referred to that the said work was fortuitous or temporary in nature so that in short time there was likelihood of retrenchment of theof the appellant doing the said work.34.It is pertinent to see from the facts hereinbefore narrated that originally the newspaper "Yugdharm" was a newspaper started in about 1953 or 1954 owned and published by the appellant. It was run by a separate legal entity only from 1971 when Rashtriya Vichar Sadhana, a society registered under the Societies Registration Act, 1860, was formed and took over its ownership and management. However, in spite of the change of ownership and management, the composing work of "Yugdharm" still continued with the appellant. Onthe aforesaid society, Rashtriya Vichar Sadhana, transferred the ownership and management of "Yugdharm" to "Yugdharm Newspapers Pvt. Ltd.", a company registered under the Companies Act. What is material to be seen is that inspite of the ownership and management being transferred to the newly formed company, the composing work of "Yugdharm" still continued with the appellant. It is only when, in June 1989 the said company installed its own Desk Top Publishing System for the work of composing that it stopped giving the work of composing of "Yugdharm" to the appellant. Consequently, the appellant was not thereafter in a position to give any composing work to its hand compositors i.e. the workmen concerned and it had therefore no other alternative but to retrench their services.35.It is clear from the above facts that this is not a case where some additional temporary job work was undertaken by the appellant after installation of four photo composing machines to maintain thein question and to avoid their retrenchment temporarily. It is further clear from the above facts that initially as its own work as owner and thereafter as the work of its sister concern, the work of composing of "Yugdharm" always continued with the appellant till the time i.e. June 1989 when the Desk Top Publishing System was introduced by "Yugadharm Newspaper Pvt. Ltd." for doing the composing work of "Yugdharm". In terms of period of time, the work of composing of "Yugdharm" continued with the appellant, for about 15 or 16 years. Even after the introduction of the photo composing machines in Tarun Bharat, the work of composing of ""Yugdharm"" continued with the appellant for about a period of 7 or 8 years or even assuming that the said machines were introduced in 1985 as urged on behalf of the the respondent Union, for a period of about 4 years. The said work of composing of ""Yugdharm"" stopped not because the photo composing machines were introduced in Tarun Bharat by the appellant, but, because after a long time ""Yugdharm"" installed its own Desk Top Publishing System.36.In the conspectus of the above facts and circumstances, the question which arises for consideration is whether it could be predicated at the time of installation of the photo composing machines in the appellants press that the said installation was likely to result in retrenchment or in other words the work of composing of "Yugdharm" was likely to be discontinued when it had been done by the hand compositors of the appellant for a long time till then. The answer is obviously in the negative. There is also no material placed on record to show that at the time of installation of the photo composing machines in the appellants Press, there was plan with the management of "Yugdharm" to introduce such machines to get its composing work done through them. On the contrary; even after introduction of the photo composing machines, the work of composing of "Yugdharm" continued with the appellant for an appreciable period i.e. for about 7 or 8 years, according to the appellant, and for about 4 years even according to thecannot be said in the above facts and circumstances of this case that the introduction of photo composing machines in the appellant Press was likely to lead to retrenchment of its hand compositors because as hereinbefore shown, since many years prior to and after the installation of the said photo composing machines, the work of "Yugdharm" initially as its own concern and thereafter as its sister concern continued with theitself. In other words, it cannot be inferred in the above facts and circumstances of the instant case that the retrenchment of the workmen concerned is a direct result or out come of the installation of photo composing machines by the appellant. There was thus no question of giving any notice of change under sectionof the Act when the photo composing machines were installed because it is not in dispute that at the time of the installation or in reasonable period thereafter, there was no retrenchment made by the appellant of its handreason given for the proposed retrenchment in column No. 22 of the proforma is that the work of composing of daily "Yugdharm" was stopped from June 1989 when ""Yugdharm"" made its own arrangement of composing by installation of Desk Top Publishing System. It is then clear from column No. 24 that although there was no work of Tarun Bharat as such for theof the appellant, they were not retrenched but they were doing the work of composing of "Yugdharm" which as shown above was being given to them. As is made clear, it is only when in June, 1989 the said ""Yugdharm"" had introduced D.T.P. system that the composing work of "Yugdharm" could not be given to these hand compositors concerned. It is also stated in the said column No. 24 that the appellant is required to incur the expenditure of about Rs. 50,000/per month upon the salary of these workmen concerned.40.It is thus clear even from the information given in the prescribed proforma by the appellant that simpliciter by installation of the photo composing machines, the workmen concerned did not become surplus and were required to be retrenched, but the real reason for retrenchment of the workmen concerned was theof work of "Yugdharm" which was stopped after the D.T.P. system was introduced in "Yugdharm" itself in June, 1989. We cannot thus accept the above submission made on behalf of thethat even according to the appellant, since there was adoption of new technology in composing by all the newspapers there was no work for hand compositors in Tarun Bharat.41.Even otherwise, assuming that notice of change under sectionof the Act was necessary for introducing the photo composing machines, it would not mean that the retrenchment of workmen concerned in the instant case without giving the notice of change under sectionof the Act would be illegal because as held by the Supreme Court in L. Desouzas case cited supra, retrenchment as such is not covered by any item in the Fourth Schedule of the Act and therefore no notice of change is necessary before effecting retrenchment. It is clerly held in the said case that retrenchment does not constitute any change in the conditions of service in respect of any item in the Fourth Schedule of the Act and that notice of change under sectionand notice under sectionfor effecting retrenchment are entirely two different aspects having no corelation with each other.42.It may then be seen that retrenchment is a matter originally regulated by the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 by virtue of item 8 of the schedule to the said Act relating to "termination of service" which includes retrenchment in its genetic sense. However, after enactment of Chapter VA and VB in the Act by amendment, retrenchment is regulated according to the provisions of the said Chapters as may be applicable to the Industrial establishments in question and before effecting retrenchment, it is necessary for the employer to comply with the provisions therein and not the procedure under sectionof the Act.A similar view is taken by the Supreme Court in the case of Chhaganlal Textile Mills and the case of Amrut Banaspati Co. cited supra upon substantiallyprovisions of the B.I.R. Act . We do not therefore agree with the contention raised on behalf of thethat in the absence of notice of change under sectionof the Act, retrenchment of the workmen concerned by the appellant is illegal and void.43.It is then necessary to see that if it was the apprehension of the respondent/Union or the workmen concerned that there was likelihood of retrenchment due to installation of the said photo composing machines, it was open to them to raise, at the time of installation of such machines or immediately thereafter, an industrial dispute under the Act on the question whether the appellant had introduced a change which necessitated notice of change under sectionof the Act and which was, therefore, in its absence illegal and ineffective. If such a dispute was raised and if it was found by the Industrial Tribunal that there was likelihood of retrenchment, it could have laid down appropriate norms to safeguard the interests of the workmen concerned imposing certain conditions upon the appellant for allowing it to do its work of composing with the aid of the new photo composing machines installed byour view, the question was not whether actually the retrenchment was effected or not, but the question was whether there was likelihood of retrenchment on introduction of the new rationalised machinery for which it was necessary for them to get necessary norms laid down through an award of the Industrial Tribunal which has in industrial adjudication wider power to create new obligations upon the parties. As observed by Ludwig Teller in his Book on "Labour Disputes and Collective Bargaining" Volume I at page 536, "industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existingour view, the question is not one of any cause of action but of getting the norms laid down in case the change introduced or sought to be introduced by the appellant Management in installation of the photo composing machines is illegal. However, as we have held that the facts in these cases do not show that there was likelihood of retrenchment by reason of the installation of the above machines, the above discussion is reallyour view, the question is not one of any cause of action but of getting the norms laid down in case the change introduced or sought to be introduced by the appellant Management in installation of the photo composing machines is illegal. However, as we have held that the facts in these cases do not show that there was likelihood of retrenchment by reason of the installation of the above machines, the above discussion is reallyt question which arises for consideration in these letters patent appeals, is whether the Secretary of the Labour Department exercising the powers of the State Government under sectionof the Act, has applied his mind to all the relevant factors regarding the question of retrenchment as required by(3) of sectionof the Act.Perusal of the said provision i.e. section(3) of the Act would show that the State Government has to consider the question of granting permission for retrenchment having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant factors. Under Ruleof the Rules framed under the Act, the employer has to give information in formwhich reveals that there are annexures to the said form giving the particulars about which the information has to be given by the employer. Perusal of the said annexures would show that the information demanded from the employer thereunder has bearing upon the question of consideration of the relevant factors in granting permission for retrenchment.47.Thelearned Counsel for the respondent/Union has urged before us that the Secretary of the Government who decided the application for permission for retrenchment, has not applied his mind to the factors relating to the interests of the workmen and the norms or conventions laid down about rationalisation. According to him, the norms or conventions about rationalisation, are considered by the National Commission on Labour headed by Dr. Gajendragadkar, J., in para 18.16 at page 261 of itsreport. Perusal of the said para 18.16 shows that the model tripartite agreement adopted at the 15th Indian Labour Conference (1957) on rationalisation, laid down that there should be no retrenchment or loss of earning of the existing employees i.e. the full complement required for the operations before rationalisation should be maintained except for cases of natural separation or wastage. According to it, workers could, however, be provided with suitable alternative jobs in the same establishment or under the same employer subject to agreement between the employer and the workers. The other matters considered in the said agreement are equitable sharing of benefits of rationalisation as between the community, the employer and the worker and a proper assessment ofmade by an expert or experts which factors have no relevance to the question of actual retrenchment of the workers concerned, although they may have bearing upon the workmen who are continued in employment or who are actually working on the rationalised machines.48.As regards the factor that there should be no retrenchment, the Secretary of the State Government, has in his order applied his mind to the said factor. He has held, and it is not in dispute also, that after introduction or installation of the rationalised machines by the appellant, there was no retrenchment effected by the appellant of the employees doing hand composing work. As regards the retrenched employees concerned, the case of the management as set out in Column No. 23 of the Annexure C is that they tried to obtain the job work for these workmen but since hand composing was out of demand, it could not get sufficient job work in market to offer to them. Further, according to it, it had also asked the employees concerned that they can also find out whether there is any job work for them but the said offer was not acceptable to them.49.However, as regards the question of absorption of some of the workmen concerned, during the hearing of these letters patent appeals, we had asked the Management to consider the said question. In particular, we had asked the parties to find out whether the matter as a whole can be settled amicably. The learned Counsel for the appellant has stated before us that taking into consideration the requirement as on today, the work can be found for 7 from amongst these 19 workmen concerned. It is pertinent to see that about two years have elapsed since the permission was sought for retrenchment of these workers. Therefore, at the time of their retrenchment, the case of the Management cannot be faulted because they can find work today for some of them. Even otherwise, as pointed out by us hereinbefore, retrenchment is not due to rationalisation as such, but retrenchment is because the work which these hand compositors were doing, is not available since "Yugdharm" has installed its own D.T.P. system for its composing work.50.Perusal of the impugned order of the Secretary of the State Government would show that in para 5 he has considered the question of absorption of these workmen. In para 4 also he has observed that originally the retrenchment was to be of about 28 persons but 8 persons were actually absorbed by the Management in other job, which would show that the retrenchment sought to be effected is not mala fide but is genuine. It cannot thus be said that there is no application of mind to these factors by the Secretary of the State Government who granted permission to the appellant for retrenchment of the workmen concerned.51.Itis, however, urged on behalf of thethat in fact the work upon these photo composing machines itself should have been given to these hand compositors but instead of giving them the said work, the appellant had sought to make appointments of the workers of Tarun Bharat Printers and Processors Ltd. who were transferred from the said company to the appellant Company. It is further sought to be shown that out of the 27 persons brought in the appellant company, some have retired and some have resigned and therefore, in their vacancies at least the workmen concerned could bePerusal of the list of such employees filed as Annexure V of the reply by the respondent/Union before the State Government, would show that some of them are only employed upon the work relating to photo composing machines. The above list of employees is filed in answer to the information supplied by the appellant upon Item No. 16 of the prescribed proforma to the State Government in seeking permission for retrenchment.52.The above referred reply of the respondent/Union shows that, according to it, Tarun Bharat Printers and Processors Ltd., is interconnected companyof the appellant.It further shows that there were originally 35 employees working in the said company as hand compositors, out of whom during the period from 1986 to 1990 i.e. after installation of photo composing machines, 21 employees were absorbed by the appellant leaving these 19 employees concerned who were sought to be and are retrenched. The submission thus is that these 19 employees of the appellant could have been offered the above jobs upon which the employees of Tarun Bharat Printers and Processors Ltd., were transferred.53.As regards these jobs and in particular regarding the jobs in relation to the photo composing machines, the appellant has pointed out in the return filed in the instant writ petition preferred by the respondent/Union that these photo composing machines are highly sophisticated and expensive requiring thorough and extensive training, and it is only after inviting application to give opportunities to all its employees including its compositors for giving the necessary training that the appointments were made in the jobs relating to photo composing machines. However, according to the appellant, none of these hand compositors responded to the said notice. It cannot be disputed that if the job is a skilled job no absorption as of right can be claimed in the said job without obtaining necessary training for the said job.54.The respondent/Union has, however, denied the notice having been displayed upon them by notice board by the appellant about training being given for the jobs in question. The learned Counsel for the appellant has in this regard brought to our notice the copy of the said notice annexed as Annexureof the return filed by it and the endorsement upon the said notice which would show that the said notice was pasted upon the notice board of the appellants Press. The conduct of the appellant in this case does not show that they were bent upon retrenching the workmen concerned at any cost because even earlier when the Mono and Lino Composing Machines were installed, no retrenchment was effected although, according to it, it was found at that time that the hand compositors with their meagre education and moderate background were not in a position to cope up with the technical work of these machines. Moreover, when the said photo composing machines were introduced because of which, according to the respondent/Union, there was likelihood of retrenchment of theconcerned, it is difficult to believe that they would not enquire about what would happen to them in case the work of composing was done upon the said machines. In fact it would appear that since they continued to get hand composing work of "Yugdharm", they did not show any interest in doing the work upon the photo composing machines. In these circumstances, we cannot accept the submission on behalf of the respondent/Union that the notice about training for the jobs in question was not displayed upon the notice board.55.Be that as it may, the fact remains that the work upon these machines was highly technical and a skilled one and the machines could not be operated without any proper training to the hand compositors if the jobs upon such machines were to be offered to them. The said jobs could not therefore be claimed by these workers without any training. It is not shown to us that if the workers from Tarun Bharat Printers and Processors Ltd. were transferred upon these jobs, they did not possess any knowledge about the same or had not undergone any training for the same. Moreover, the aforesaid list of the said employees incorporated in Annexure V of the reply of the respondent/Union does not show actually as to at what time these employees from Tarun Bharat Printers and Processors Ltd. were transferred to the appellant because the question of retrenchment of the hand compositors concerned had actually arisen in June,regards the other jobs except the appointment as peon, it does not appear by merely reading the said list (Annexure V) that the jobs shown therein could be done by these hand compositors, such as the work of Accountant, Cameraman, Machineman etc. Even as regards the question of appointment as peon, it is not stated when the person concerned was appointed as peon. The above list (Annexure V) is thus of no assistance to assess what job was available for absorption of the hand compositors concerned at that time when they were sought to be retrenched after the composing work of "Yugdharm" stopped coming to the appellants Press and when the application was made onfor their retrenchment because of the aforesaid reason.56.It is not thus possible for us to accept the contention raised on behalf of the respondent/Union that the Secretary has not applied his mind to these factors.57.It is, however, clear as hereinbefore referred to from the talks of settlement between the management and the respondent/Union that the Management has offered that it is possible for them as on today to absorb 7 of these workmen concerned. According to the management, it would do so on the basis of the test ofof the workmen concerned for the jobs to be offered to them. The permission thus will have to be granted for retrenchment of 12 of the workmen concerned, the discretion for absorption of 7 persons being left with the Management, because their absorption depends upon their suitability for the jobs available for them in the appellants concern.