Case: The Sindhu Resettlement Corporation Ltd Vs. The Industrial Tribunal Of Gujarat &amp; Ors

1. A. S. Ambwaney respondent No. 3, was employed by the Sindhu Resettlement Corporation Ltd., the appellant, as an Accounts Clerk bow Gandhidham on 13th December, 1950 in the payscale of Rs. 150-10-250 on a salary of Rs. 200 plus 20 per cent, as site allowance. This site allowance was discontinued in March, 1952. In the year 1953, the Government of India decided to develop Kandla as a port and a subsidiary company was formed by the appellant under the name of Makenzies Heinrich Bulzer (India) Ltd., in which one of the principal share-holders was the appellant. This Company later came to be known as Sindhu Hotchief (India) Ltd. For convenience, both Makenzies Heinrich Bulzer (India) Ltd. and Sindhu Hotchief (India) Ltd. shall hereinafter be referred to as "Sindhu Hotchief". This subsidiary Company, Sindhu Hotchief, wanted some trained employees and, amongst others, the services of respondent No.3 were placed at its disposal by the appellant. The case of respondent No. 3 was that he was told orally by the officers of the appellant on 2nd September, 1953 that he was to work in the subsidiary company. Respondent No. 3 was appointed in Sindhu Hotchief by its order dated 5th September, 1953 on a salary of Rs. 240 p.m. as an Accounts Clerk on the conditions of service laid down in that order. It appears that, just about this time, the father of respondent No. 3 died and he was granted leave by the appellant for the period from 2nd September to 17th September, 1953. With effect from 18th September 1953, his service were placed at the disposal of Sindhu Hotchief and an order to that effect was issued in writing on behalf of the appellant on 24th September, 1953. Respondent No.3 worked with Sindhu Hotchief up to 20th February, 1958 when his services were terminated after payment of retrenchment compensation and all other dues payable to him. On 21st February, 1958, respondent No. 3 went to the office of the appellant, reported himself for duty and requested that he might be given posting order in the appellant Corporation. The appellant informed respondent No. 3 of its inability to re-employ him on the ground that the post, which he had been occupying in 1953, had been permanently filled up. Thereupon, respondent No. 3 demanded retrenchment compensation from the appellant also. This was also refused. His case was taken up by Mazdoor Mahajan Sangh, Gandhidham, Kutch, respondent No. 2. The Secretary of respondent No.2 also wrote a letter to management of the appellant asking for payment of retrenchment compensation to respondent No. 3 on the ground that the appellant had refused to take him back in its employment. It seems that, thereafter, there were some conciliation proceedings and, subsequently, on the report of the Conciliation Officer, the Government of the State of Gujarat by its, notification dated 15th November, 1960, referred the dispute to the Industrial Tribunal, Gujarat for adjudication. The matter referred for adjudication was described in the notification as follows :-"Demand No. 1: Shri R. S. Ambwaney should be reinstated in the service of M/s. Sindhu Resettlement Corporation Ltd. and he should be paid his wages from 21st February, 1958."The Tribunal, after hearing the parties, gave its Award on 10th August. 1961, directing reinstatement of respondent No. 3 and payment of back wages from 21st February, 1958. The appellant challenged this award before the High Court of Gujarat by a petition under Articles 226 and 227 of the Constitution, but the petition was dismissed. Consequently, the appellant has come up to this Court in this appeal by special leave.

Reasoning:
It is true that the form in which it was urged before the High Court was slightly different. There, the point raised was that a demand for reinstatement, when there had been retrenchment only and no discharge or dismissal, could not be held to constitute an industrial dispute. On the facts of the case as they appeared from the material before the Tribunal, it is now urged that, in fact, the demand, which was being pressed with the management by both the respondents, was in respect of retrenchment compensation and not reinstatement. The demand for reinstatement seems to have been given up, because the respondents realised that the services of respondent No. 3 had not been terminated by discharge or dismissal, but by retrenchment only and that retrenchment not being the result of any unfair labour practice or victimisation, respondent No. 3 could only claim retrenchment compensation. In the evidence given before the Tribunal, there were included two letters written by the two respondents containing the demand for retrenchment compensation. We have already referred to one of these letters which was sent on 7th March, 1958 by respondent No. 3 to the Administrative Officer of the appellant. The other letter was sent on 10th July, 1958 by the General Secretary of respondent No 2 in which again it was stated that Sindhu Hotchief had paid retrenchment; dues to respondent No. 3 in respect of the services he had rendered in that Company, but the appellant Corporation was responsible for his retrenchment dues for the service which had been rendered by respondent No. 3 in the appellant Corporation. The prayer was that, as the appellant had refused him re-employment, arrangement should be made to pay his retrenchment dues according to Section 25-F of the Industrial Disputes Act, 1947. Thus, both the respondents, in their claims put forward before the management of the appellant, requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. Since no such dispute about reinstatement was raised by either of the respondents before the management of the appellant, it is clear that the State Government was not competent to refer a question of reinstatement as an industrial dispute for adjudication by the Tribunal. The dispute that the State Government could have referred competently was the dispute relating to payment of retrenchment compensation by the appellant to respondent No. 3 which had been refused. No doubt, the order of the State Government making the reference mentions that the Government had considered the report submitted by the Conciliation Officer under sub-section (4) of Section 12 of the Industrial Disputes Act, in respect of the dispute between the appellant and workmen employed under it, over the demand mentioned in the Schedule appended to that order; and, in the Schedule, the Government mentioned that the dispute was that of reinstatement of respondent No. 3 in the service of the appellant and payment of his wages from 21st February, 1958. It was urged by Mr. Gopalakrishnan on behalf of the respondents that this Court cannot examine whether the Government, in forming its opinion that an industrial dispute exists, came to its view correctly or incorrectly on the material before it. This proposition is, no doubt, correct; but the aspect that is being examined is entirely different. It may be that the Conciliation Officer reported to the Government that an industrial dispute did exist relating to the reinstatement of respondent No. 3 and payment of wages to him from 21st February, 1958 but when the dispute came up for adjudication before the Tribunal, the evidence produced clearly showed that no such dispute had ever been raised by either respondent with the management of the appellant.If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute.Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion an material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July. 1958. respondent No. 3 and respondent No 2 respectively had confined their demands to the management to retrenchment compensation only and; did not make any demand for reinstatement. On those facts it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject-matter of dispute between the appellant and the respondents5. So far as the third ground is concerned, it loses force and does not arise in view of our decision relating to the first ground. We have already held, when dealing with die first ground, that the appellant lent had neither dismissed respondent No. 3, nor had it discharged him from service. There was no question of wrongful dismissal or discharge by the appellant. It was not even a case of retrenchment, because respondent No 3 had willingly gone to join the service under Sindhu Hotchief. He obviously joined the service in Sindhu. Hotchief because of the financial advantages that were to accrue to him. In September, 1953, he was drawing a salary of Rs. 200/- p. m. in the scale of Rs. 150-10-250 while serving the appellant. The site allowance of 20 per cent., which he had been receiving earlier, had been discontinued from March, 1952 and he was not getting it at the time when he went to join Sindhu Hotchief, where he was given a start of Rs 240/- in the grade of Rs. 200-20-400. Consequently, in addition to the immediate rise in salary of Rs. 40/- p. m, he had the advantage of working in the higher grade in which, within two years, he exceeded the maximum of the stale in which he had been working with the appellant. He served Sindhu Hotchief for a period of about 41/2 years and became confirmed there in accordance with the terms and conditions which were offered to him by Sindhu Hotchief.In these circumstances, the respondents cannot urge that the services of respondent No. 3 were retrenched by the appellant, either when he went and joined Sindhu Hotchief, or when he wanted to get back to his post with the appellant. His appointment in the service of the appellant having terminated, no question could arise of retrenching him at the stage when he wanted to come back after serving. Sindhu Hotchief His services were, in fact, retrened by his new employer, Sindhu Hotchief, and from that Company he received retrenchment compensation. The third ground therefore, needs no consideration.