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

These two appeals, turning on the validity of the retrenchment of 23 workmen way back in 1966, are amenable to common disposal. Mr. Phadke, appearing for the Management, argued straight to the point; so did Shri Mridul, with the result that we could get the hang of the case without much wrestling with time or getting paper- logged. Since, in substance, we are inclined to leave undisturbed the Award of the Industrial Tribunal, affirmed, as it were, by the High Court, both these appeals will be given short shrift with brieffacts, to the extent necessary to appreciate the issues canvassed, are brief. The Management of a tea plantation by name Jorehaut Tea Co., Ltd., retrenched 23 workmen, 16 of whom were paid retrenchment compensation allegedly in terms of s.25F of the Industrial Disputes Act (for short, the Act) and in the order of last come, first go, while the services of the other seven were terminated, although on payment of retrenchment compensation, allegedly in breach of s. 25G of the Act, i.e. out of turn. The dispute that was raised was decided by the Tribunal which upheld the validity of the retrenchment of the 16 but set aside the termination of the other 7. Consequently it directed their reinstatement with some back wages. The Award granted the followingrespect of the workmen, viz., Sri Bhogeswar Saikia Sri Nandeswar Bora, Sri Gunai Bora, Sri Premodhar Sarma, Sri Alimuddin Ahmed, Sri Deven Sarma and Shri Harlal Biswas whose retrenchment has been found to be not justified they are entitled to reinstatement with continuity of service. These workmen have not come forward to say that they remained unemployed from the date of their retrenchment. In the circumstances of the case, I think they may be given wages at half the rate from the date of retrenchment till the date of publication of the award in themay first dispose of the workers appeal. In all, 23 persons were retrenched. In respect of 16 the rule of last come, first go was applied. Thus homage was paid to s.25G of the Act. But then, the workmen in their appeal, contended before us that s. 25F had been breached and, therefore, the termination was bad in law. The Managements case is that, as a fact, all or most of them had been reinstated when fresh vacancies had arisen, although neither party is able to assert with certainty this case of reinstatement. That apart, if there be non-compliance with s.2 5F, the law is plain that the retrenchment is bad. However, when probed further as to how s.25F had been violated,Shri Mridul argued that the amount paid by way of retrenchment compensation envisaged in s.25F fell short of what was legally due and hence there was non-compliance. Under more searching interrogation, Shri Mridul stated that the compensation had been computed on the basis of wages previously paid and in derogation of the Wage Board Award which ha d been implemented by the Management with effect from1-4-1966. The retrenchment was on November 5, 1966, i.e. months after April 1, 1966. Therefore, the revised pay-scales as per the Wage Board Award should have been adopted in calculating the retrenchment compensation. This spinal flaw rendered the tender of compensation insufficient and, therefore, the retrenchment itself was invalid. Maybe, there is apparent force in this contention. But Shri Phadke countered it by saying that i t was not open to the workmen to spring a surprise on the Management especially when the question was one of fact. He urged that before the Tribunal no plea based on the Wage Board Award was made and it was quite possible that the Management would have adequately met the contention if such a plea had been raised. The fact is that before the Tribunal the contention pressed before us was neither pleaded nor proved. There is no hint of it in the Award. In the High Court this new plea based on the facts was not permitted. Had there been some foundation laid at least in the written statement of the workmen, we might have been inclined to explore the tenability of the plea, especially because there is no dispute about the Wage Board Award and the fact that it had been given effect to from 1-4-1966 and the further fact that in the retrenchment notice the wages were not calculated according to the Wage Boards Award. It must be remembered, however, that the Wage Boards Award was subsequent to the retrenchment although retroactively applied and the workmen had accepted the retrenchment compensation on the wages prevalent at the time of the retrenchment. In the absence of any basis for this new plea we are unable to reopen an ancient matter of 1966 and, agreeing with the High Court, dismiss the appeal. But the 16 workmen, being eligible admittedly for the Wage Board scale, will be paid the difference for the period between 1-4-1966 toe will take up the merits of the Managements appeal which relates to the retrenchment of seven workmen. Admittedly, the rule in s.25G of the Act, which postulates that ordinarily the last come, first go will be the methodology of retrenchment, has not been complied with provided we treat all the workmen in the category as one group.

Court's reasoning:
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.