Case: Workmen of Sudder Workshop of Jorehaut Tea Company Limited Vs. Its Management and Vice-Versa

retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.6. The key-note thought of the provision, even on a bare reading, is evident. The rule is that the employer shall retrench the workman who came last, first, popularly known as last come first go. Of course it is not an inflexible rule and extra-ordinary situations may justify variations. For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is one up is retrenched. There must be a valid reason for this deviation, and obviously, the burden is on the Management to substantiate the special ground for departure from the rule.7. Shri Phadke brought to our notice the decision in M/s Om Oil &Oilseeds Exchange Ltd., Delhi v. Their Workmen to make out that it was not a universal principle which could not be departed from by the Management that the last should go first. The Management had a discretion provided it acted bona fide and on good grounds. Shah, J. in that very ruling, while agreeing that a breach of the rule could not be assumed as prompted by mal a fides or induced by unfair labour practice merely because of a departure or deviation, further observed that the Tribunal had to determine in each case whether the Management had acted fairly and not with ulterior motive. The crucial consideration next mentioned by the learned Judge is that the Managements decision to depart from the rule must be for valid and justifiable reasons, in which case "the senior employee may be retrenched before his junior in employment." Surely, valid and justifiable reasons are for the Management to make out, and if made out, s. 25G will be vindicated and not violated. Indeed, that very decision stresses the necessity for valid and good ground for varying the ordinary rule of last come first go. There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance with s. 25G grade-wise. Absence of mala fides by itself is no absolution from the rule in s. 25G. Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the last come first go principle.8. It must be remembered that the above provision which we have quoted insists on the rule being applied category-wise. That is to say, those who fall in the same category shall suffer retrenchment only in accordance with the principle of last come first go. The short point raised is that the seven workmen are not in the same category. The finding of the Tribunal, concurred in by the High Court is that they fell in the same category. We quote the award:"It will be seen that when there is no trade test or anything to mark efficiency, there is no basis for placing the workmen in different grades and when all the workmen of the same category are to do the same work inasmuch as by the managements own evidence there is no grade wise allocation of duty within the same category. Although in the evidence the Management wanted to justify their departure from the principle of last come first go there is nothing to show that such a reason was recorded for deviating from the principle. In the circumstances of the case it cannot be said that the managements selection of persons to be retrenched leaving the junior most in some category was justified and the reason now adduced for deviating from the principle cannot be accepted in the absence of the reason being not recorded at the time of retrenchment. Further it will be also noticed that although there is classification of workmen into grades (?) within the category, there is nothing to distinguish one workman of one grade from another workman of another Grade inasmuch as there is no allocation of duties amongst the workmen of different Grades in the category."9. The seniority list is the same, which is a telling circumstance to s how that they fell in the same category. Grading for purposes of scales of pay and like considerations will not create new categorisation. It is a contusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories. This fallacy has been rightly negatived by a detailed discussion in the Award. The High Court has avoided the pitfall and we decline to accept the submission. The result is that the Award must hold good in regard to the illegally retrenched seven workmen.10. What remains to be considered is the last submission of Shri Phadke that the engineering establishment wherein these s even workmen are to be reinstated is no longer in existence. Further, he pleads that on account of long lapse of time on account of the pendency of the appeal is this Court the compensation payable by way of full wages may amount to a huge sum disproportionate to the deviance from the law. He, therefore, pleads for moulding the relief less harshly.11. We cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half. Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend t heir pittance. The logistics of litigation for indigent workmen is a burden the Management tried to use by a covert blackmail through the judicial process.12. Misplaced sympathy is mirage justice. We cannot agree. Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court.

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

Explanation:
0[ds]The seniority list is the same, which is a telling circumstance to s how that they fell in the same category. Grading for purposes of scales of pay and like considerations will not create new categorisation. It is a contusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories. This fallacy has been rightly negatived by a detailed discussion in the Award. The High Court has avoided the pitfall and we decline to accept the submission. The result is that the Award must hold good in regard to the illegally retrenched sevenremains to be considered is the last submission of Shri Phadke that the engineering establishment wherein these s even workmen are to be reinstated is no longer in existence. Further, he pleads that on account of long lapse of time on account of the pendency of the appeal is this Court the compensation payable by way of full wages may amount to a huge sum disproportionate to the deviance from the law. He, therefore, pleads for moulding the relief lesscannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half. Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend t heir pittance. The logistics of litigation for indigent workmen is a burden the Management tried to use by a covert blackmail through the judicialsympathy is mirage justice. We cannot agree. Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court.