Case: Bombay Union Of Journalists &amp; Ors Vs. The State Of Bombay &amp; Anr,

1. The principal point of law which this appeal raises for our decision relates to the construction of S. 25F (c) of the Industrial Disputes Act, 1947 (No. 14 of 1947) (hereinafter called the Act). The Bombay Union of Journalists which is the Trade Union registered under the Trade Unions Act, 1926, Mrs. Aruna Mukherji and Mr. T. Thomas are appellant 1 to 3; and the State of Bombay, and the Indian National Press, Bombay, which is a private Ltd. Co, are respondents 1 and 2 respectively in the present appeal. Appellant No. 2 was appointed on the staff of the second respondent on a salary of Rs. 500/- p.m. with effect from January 1, 1955. On November 30, 1957, she was served with a notice of termination of her services with effect from December 1, 1957. The notice recited the fact that the management in consultation with the Editor had decided to retrench her services. Appellant No. 3 Mr. Thomas who was employed as a Sub-Editor in the Free Press Journal some time in 1953, was similarly served with a notice of retrenchment dated November 30, 1957 by which his services were terminated as from December 1, 1957. In both the Notices the two appellants respectively were told that their services had been retrenched under S. 3(2) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act 1955. and that in lieu of notice they would be paid their salaries for three months. Both the appellants collected their salaries for the month of November and ceased to work for respondent No. 2 as from December 1, 1957.2. It appears that appellant No. 1 took up their cause on December 3, 1957 and wrote to the director-in-charge of the second respondent complaining that the action taken by the 2nd respondent smacked of vindictiveness against appellants 2 and 3, and demanded that the notices issued should be withdrawn forthwith and they should be reinstated in their original posts. Respondent No. 2 did not concede the said demand; thereupon, appellant No. 1 moved the Labour Commissioner of respondent No. 1 for taking further action in the matter. At that stage, the Conciliation Officer intervened and called the parties before him. As a result of the discussion held before the Conciliation Officer, it was discovered that no settlement was possible, and so, the Conciliation Officer submitted a failure report under S. 12 (4) of the Act on April 15, 1958. In this report, the Conciliation Officer expressed his opinion that in view of the stand taken by the parties, there was no possibility of any settlement, and so, he was compelled to record a failure.3. After the matter was thus reported to respondent No. 1 by its Conciliation Officer, both the parties filed their respective statements before respondent No. 1. Respondent No. 1 considered the said statements and the report submitted by the Conciliation Officer and came to the conclusion that it was not necessary to refer the dispute to a Tribunal under S. 12 (5) of the Act. This decision was communicated to the appellants by the Dy. Secretary, Labour and Social Welfare Department of respondent No. 1 by his letter dated July 1, 1958. It is necessary to set out the reasons given in this letter for not referring the dispute to the Tribunal. These reasons were set out in the letter in theseThe termination of services of Shrimati Aruna Mukherji and Shri M. T. Thomas appears to be an act of retrenchment on the part of the management for which the management is willing to pay all the legal dues to the retrenched persons; and2. in effecting the said termination the management does not appear to have acted mala fide or vindictively nor practised victimisation for trade union activities.The appellants then moved the Bombay High Court under Art. 226 of the Constitution for a writ of mandamus against respondent No. 1, It was urged on their behalf that the refusal of respondent No. 1 to refer the dispute to the Industrial Tribunal under S. 12(5) of the Act was illegal, and so, they prayed that the High Court should issue a writ directing respondent No. 1 to consider the matter afresh and decide whether a reference should be made or not. This writ petition was heard by a single Judge of the said High Court and was ultimately dismissed. The appellants challenged the correctness of the said decision by a Letters Patent Appeal before a Division Bench of the High Court. The Division Bench agreed with the view taken by the learned single Judge, and so, the appeal was dismissed. It is against this decision that the appellants have come to this Court by special leave.

Reasoning: 11. The argument based on the negative form in which the provision is enacted and the use of the word "until" no doubt are in favour of the appellants contention, but the context seems to require a different treatment to the provision contained in cl. (c). Besides, the requirement introduced by the use of the work "until" is complied with even on the view we are inclined to take about the nature of the condition prescribed by clause (c), because after the retrenchment is effected, the employer has to comply with the condition of giving notice about the said retrenchment to the appropriate Government, and that is where the provision in clause (c) that the notice has to be served in the prescribed manner assumes significance. Rules have been framed by the Central Government and the State Governments in respect of this notice and, stated broadly, it does appear that these Rules do not require a notice to be served in every case before retrenchment is effected. In regard to retrenchment effected on paying the workman his wages in lieu of notice, the Rules seem to provide that the notice in that behalf should be served within the specified period prescribed by them; that is to say, under the Rules, notice in such a case has to be served not before the retrenchment, but after the retrenchment within the specified period. Mr. Bishan Narain no doubt contends that if his construction of S. 25F (c) is correct, the Rules would be invalid and that is true; but on the view we are inclined to take, the Rules framed by the Government appear to be consistent with the policy underlying the provision prescribed by S. 25F(c).We are, therefore, satisfied that S.25F(c) cannot be said to constitute a condition precedent which has to be fulfilled before retrenchment can be validly effected.12. In this connection, there is one more consideration which is relevant. We have already seen the requirement of S. 25F (a). There is a proviso to S.25 F(a) which lays down that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services. Clause (a) of S. 25F, therefore, affords a safeguard in the interests of the retrenched employee; it requires the employer either to give him one months notice or to pay him wages in lieu thereof before he is retrenched. Similarly, clause (b) provides that the workman has to be paid at the times of retrenchment, compensation which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. It would be noticed that this payment has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman; he must be given one months notice or wages in lieu thereof and he must get retrenchment compensation as prescribed by clause (b).The object which the Legislature had in mind in making these two conditions obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provisions prescribed by clause (c) a condition precedent as in the case of clauses (a) and (b). Therefore, having regard to the object which is intended to be achieved by clauses (a) and (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) and (b), is not a condition precedent.13. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that S. 25F (c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narains contention that a writ of mandamus should be issued against respondent No. 1 .A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent No.1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of S.25F (c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act ? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of S.25F(c), it does not follow that a dispute resulting from such retrenchment must necessarily be referred for industrial adjudication. The breach of S.25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provisions contained in S.10 (1) read with S.12 (5) clearly show that even where a breach of S.25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts, the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily assuming that the appropriate Government acts honestly and bona fide. If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala fide, that, of course, would be another matter; in such a case a party would be entitled to move the High Court for a writ of mandamus.