Case: Delhi Cloth and General Mills Limited Vs. Shambhu Nath Mukherjee and Others

because of a Full Bench decision of the Delhi High Court but that does not satisfy the basic factual requirement for the objection that it was actually case of an individual dispute under S. 2A unespoused by the union, which was referred by the Administration under S. 10(1)(c) of the Act. 9. We have to state the above facts in some detail as the appellant on the second day of the argument submitted before us that since he was raising the vires of S. 2A on the ground of legislative incompetency the appeal had to be heard by a Bench of Seven Judges under Art. 144A which was introduced by the 42nd Amendment of the Constitution. Before this constitutional question could be raised it must be manifest on the records that the question arose on the facts disclosed. As we have pointed out, there was no allegation by stating appropriate facts that the dispute of the workman had not been espoused by the union or by a substantial number of workmen. There is nothing to show on the face of the reference that the Administration was considering the case on the basis of S.2A of the Act. Even though recital of S. 2A was not there in the reference it was open to the management to raise the issue before the Labour Court as to whether in fact it was a dispute which was referred by the Administration merely on the application of the workman. On the other hand, we find that the reference was made by the Lieutenant Governor under S. 10(1)(c) read with S.12(5) of the Act. There is nothing to show that even before the Conciliation officer any objection was taken by the management that it was not an industrial dispute within the meaning of S.2(k) of the Act. Nothing prevented the management from raising such an issue even before the Conciliation Officer. We are, therefore, clearly of opinion that this is not a case where litigation can be allowed to be dragged on by allowing the management to raise this question for the first time in this Court without any basis. We, therefore, decline to accede to the request that this is at all a fit appeal for reference to a Bench of seven Judges. There is no basis for considering the provision of S. 2A in this appeal. 10. With regard to the objection on the score of Art. 14 of the Constitution, it is sufficient to state that the matter is concluded by the principle laid down by this Court in Niemla Textile Finishing Mills Ltd. v. The 2nd Punjab Industrial Tribunal, [1957-I L.L.J. 460]; (1957) S.C.R. 335. In that case a challenge was made, inter alia, to S.10 of the Act as being invalid on the ground of violation of Art. 14 of the Constitution. In an exhaustive judgment, this Court repelled the contention. 11. It is submitted by Mr. Dial that in that decision this Court was only required to consider the objection raised on the score of Art. 14 on a ground which is different from the one he would like to take before us. We are, however, unable to accept this submission. If this Court held S. 10 as intra vires and repelled the objection under Art. 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that S.10 of the Act does not violate Art. 14 of the Constitution. The ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Art. 14 of the Constitution in respect of the present reference under S. 10(1)(c) of the Act. The submission of the learned counsel is, therefore, devoid of substance 12. The question then arises whether the High Court was right in refusing to interfere with the award under Art. 226 of the Constitution. There is no manifest error of law on the face of the award and none could be pointed out by the learned counsel. Neither is there any error of jurisdiction. The issue before the Labour Court was one of reinstatement of the workman and the Labour Court was entitled to go into the whole question which it did. We do not find any infirmity in the award. 13. On the face of it, the order striking off the name of the workman from the rolls on August 24, 1965, is clearly erroneous. No order, even under S. 27(c) of the standing orders, could have been passed on that date. The clause in the standing orders reads as follows :"If any workman absents for more than eight consecutive days his services shall be terminated and shall be treated having left the service without notice". 14. The workman last attended work on 14th August, 1965. 15th August was a public holiday. He was, therefore, absent from work only from 16th of August. So even under the standing orders the workman was not absent for "more than eight consecutive days" on 24th August, 1965. The order is, therefore, clearly untenable even on the basis of the standing orders. It is not necessary to express any opinion in this appeal whether "eight consecutive days" in the standing orders mean eight consecutive working days. 15. Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of S.2(oo) of the Act. There is nothing to show that the provisions of S. 25F (a) and (b) were complied with by the management in this case. The provisions of S. 25F (a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid.

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

Explanation:
0[ds]6. It is clear from the above that no objection was taken by the management to the effect that the case of the workman had not been espoused by other workman or by any union.It is true that in the grounds taken in the High Court it was stated "that S.2A of the Industrial Disputes Act is ultra vires the powers of the Legislature under Item 22 List III to Schedule VII of the Constitution of India", but this objection can only be, as is now made clear by the appellant, on the basis that the dispute relating to the workman had not been espoused by other workman or by a union. A perusal of the reference under S. 10(1)(c) does not ex facie show that it was a reference of an individual disputes under S. 2A. That being the position, if the appellant wanted to raise this question before the Labour Court it was necessary for it to raise a triable issue by stating the facts that the dispute relating to the termination of service of the workman was not espoused by the union. Merely taking a ground in the writ application does not dispense with the requirement of stating facts in order to support the legal ground. If the ground were taken by making appropriate allegations it would have been necessary for the Labour Court to call for a report from the administration and it would have been possible for the workman to show that his case was in fact espoused by a substantial number of workmen or by a union7. From the judgment of the learned single Judge it does not appear that this question of the vires of S. 2A had been urged before him. It was only urged that S. 2A was invalid since it offended Art. 14 of the ConstitutionAs we have pointed out, there was no allegation by stating appropriate facts that the dispute of the workman had not been espoused by the union or by a substantial number of workmen. There is nothing to show on the face of the reference that the Administration was considering the case on the basis of S.2A of the Act. Even though recital of S. 2A was not there in the reference it was open to the management to raise the issue before the Labour Court as to whether in fact it was a dispute which was referred by the Administration merely on the application of the workman. On the other hand, we find that the reference was made by the Lieutenant Governor under S. 10(1)(c) read with S.12(5) of the Act. There is nothing to show that even before the Conciliation officer any objection was taken by the management that it was not an industrial dispute within the meaning of S.2(k) of the Act. Nothing prevented the management from raising such an issue even before the Conciliation Officer. We are, therefore, clearly of opinion that this is not a case where litigation can be allowed to be dragged on by allowing the management to raise this question for the first time in this Court without any basis. We, therefore, decline to accede to the request that this is at all a fit appeal for reference to a Bench of seven Judges. There is no basis for considering the provision of S. 2A in this appealIf this Court held S. 10 as intra vires and repelled the objection under Art. 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that S.10 of the Act does not violate Art. 14 of the Constitution. The ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Art. 14 of the Constitution in respect of the present reference under S. 10(1)(c) of the Act. The submission of the learned counsel is, therefore, devoid of substanceThere is no manifest error of law on the face of the award and none could be pointed out by the learned counsel. Neither is there any error of jurisdiction. The issue before the Labour Court was one of reinstatement of the workman and the Labour Court was entitled to go into the whole question which it did. We do not find any infirmity in the award13. On the face of it, the order striking off the name of the workman from the rolls on August 24, 1965, is clearly erroneous14. The workman last attended work on 14th August, 1965. 15th August was a public holiday. He was, therefore, absent from work only from 16th of August. So even under the standing orders the workman was not absent for "more than eight consecutive days" on 24th August, 1965. The order is, therefore, clearly untenable even on the basis of the standing orders. It is not necessary to express any opinion in this appeal whether "eight consecutive days" in the standing orders mean eight consecutive working days15. Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of S.2(oo) of the Act. There is nothing to show that the provisions of S. 25F (a) and (b) were complied with by the management in this case. The provisions of S. 25F (a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid.