Full Judgment Text
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PETITIONER:
R. B. BANSILAL ABIRCHAND MILIS CO. LTD.
Vs.
RESPONDENT:
LABOUR COURT NAGPUR & ORS.
DATE OF JUDGMENT25/11/1971
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
SIKRI, S.M. (CJ)
SHELAT, J.M.
DUA, I.D.
CITATION:
1972 AIR 451 1972 SCR (2) 580
1971 SCC (2) 154
CITATOR INFO :
E 1972 SC1579 (4,6)
R 1978 SC 275 (5)
D 1988 SC1618 (7)
ACT:
Industrial Disputes Act-S. 33C(2)-Whether Labour Court has
jurisdiction to entertain application for lay-off
compensation under s. 33C(2).
HEADNOTE:
A textile mill in Madhya Pradesh employed about a thousand
workers. The mill was owned by a firm, the appellant in the
Second Appeal. A fire broke out in the Mill doing
appreciable damage to some of the machines. From a letter
of the Insurance company, the extent of the damage caused,
was ascertained to be about Rs. 37,420/-. In terms of the
last notice given by the employers the mills did not
commence work but instead, the management transferred the
mills to the company which had been incorporated on 8th
December 1959. From the facts it was clear, that the damage
to the machinery was insignificant as against the total
assets transferred to the company and the damage was not
such that it was not possible to run the mills at all.
Respondents 2 to 346 in the Second Appeal applied under s.
33C(2) of the Industrial Disputes Act to the Labour Court
claiming lay-off compensation for the period they remained
idle. The Labour Court held that there had been a lay-off
within the meaning of s. 2(K-KK) of Industrial Disputes Act
and except ’badli’ workers the employees were entitled to
compensation for the full period of 18 months. The
appellants in both the appeals, filed writ petitions before
the High Court for quashing the order of the Labour Court
and the High Court raised several issues and ultimately
remanded the matters back to the Labour Court for recording
fresh evidence as to whether the applicants presented
themselves for work at the appointed time at least once a
day within the meaning of S. 25E(ii). On the application of
the appellants the High Court granted certificates under
Art. 133 (1) (a) of the Constitution. The point urged by
the appellants was that if a claim is made on the basis of a
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lay off and the employer contends that there was no lay off
but closure it is open to a labour court to entertain an
application under s. 33C(2). It is more so when the dispute
was not between a solitary workman on the one hand and the
employer on the other but a whole body of workmen ranged
against their employer who was faced with numerous
applications before the labour court for computation of
benefit in terms of money.
Dismissing the appeals,
HELD : (i) From the facts and circumstances of the Case, it
was clear that the business of the company was continuing.
They, in fact, continued to employ several employees and
their notices say that some portion of the mills would
continue to work. The Labour Court’s jurisdiction could not
be ousted by a mere plea denying the workmen’s claim to the
computation of benefit in terms of money. The Labour Court
must go into the matter and come to a decision as to whether
there was really a closure or a lay off. If it took the
view that there was a lay-off, it would be acting within its
jurisdiction if it awarded compensation in terms of the
provisions in Ch. VA. The High Court is right in upholding
the decision of the Court. [591 E-H]
581
(ii) Section 33C(2) takes within the purview, rases of
workmen who claim that the benefits to which they were
entitled should be computed in terms of money, even though
the right to the benefit on which their claim is based, is
disputed by their employers. In other words, the Labour
Court may enquire into all such acts or disputes which are
incidental to the main dispute, [588 C-D]
(iii) Section 25C provides for the measure of
compensation to be awarded in cases of lay off of workers.
The claim to compensation of every workman who is laid off
is one which arises under the statute itself and s. 25C,
provides for a benefit to the workman which is capable of
being computed in terms of money under s. 33C(2), of the
Act. The scheme of the Act is that an individual workman
can approach a labour court for computation of compensation
in terms of s. 25C of the Act and he is not concerned to see
whether other co-workers will adopt the same course or not.
The fact that a number of workers make claims of identical
nature cannot make any difference to the individual workman
who prefers the claim, The mere fact that a large number of
persons makes a claim, of the same nature against the
employer does not change the nature of the dispute so as to
take it out of the pale of s. 7 of the Act and render the
dispute one which can only be dealt with by an industrial
tribunal. [588 E-H]
Central Bank of India Ltd. v. P. S. Rajagopalan, [1964] 3
S.C.R. 140, followed.,
Mining Engineer v. Rameshwar, [1968] 1 S.C.R. 140, U.P.
Electric Supply Co. v. R. K. Shukla, [1970] 1 S.C.R. 507,
Ramkrishna Ramnath v. Presiding Officer, Nagpur, [1970] 2
L.L.J. 306 and Sawatram Mills v. Baliram, [1966] 1 S.C.R.
764, referred to and distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2136 and
2295 of 1966.
Appeals from the judgment and order dated February 2, 1965
of the Bombay High Court, Nagpur Bench in Special Civil
Applications Nos. 246 of 1964 and 84 of 1963 respectively.
G. B. Pai, P. C. Bhartari, J. B. Dadachanji, 0. C. Mathur
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and Ravinder Narain, for the appellant (in C.A. No. 2136 of
1966).
S. V. Gupte, C. N. Nagle and A. G. Ratnaparkhi, for the
appellant (in C.A. No. 2295 of 1966).
M. C. Bhandare, F. P. Sathe, Praveen Pareek, Vineet Kumar
and Indira Jai Singh, for respondents Nos. 131 to 142, 144
to 478, 480 to 488, 490 and 492 (in C.A. No. 2136 of 1966).
The Judgment of the Court was delivered by
Mitter, J. The main question in these two appeals by certi
ficate is, whether the Labour Court bad jurisdiction to
entertain the application for lay-off compensation under s.
33-C(2) of the Industrial Disputes Act. The appellant in
the first appeal is a
582
limited company which is now under liquidation while the
appellant in the second is a partnership firm, the
respondents in the two appeals being the Labour Court and
different groups of workmen.
The facts are as follows. In Hinganghat there was a textile
mill known as R. B. Bansilal Abirchand Mills which used to
employ about 1000 men. The mill was owned by the firm, the
appellant in the Second appeal. A fire broke out in the
mill on March 27, 1959 doing appreciable damage to some of
the machines. The employers put up a notice under their
Standing Order No. 19 on March 28, 1959 to the effect that
the fire of the previous night had caused heavy loss and
extensive damage to the departments rendering the mill’s
working impracticable until necessary repairs and
adjustments were carried out. The employees were however to
note that the folding and workshop departments would
continue to work as usual and notice of resumption of mill’s
working would be posted after necessary adjustment and
repairs were carried out. This was followed by a second
notice issued on April 2, 1959 to the effect that the pre-
liminary survey of the fire have in conjunction with the
insurance companies had shown that over 60 per cent of the
machines in the carding. fly frame and Ring frame
departments had been damaged and that the damage to the bulk
of these machines was such that they might require complete
replacement. It was further announced that in the
circumstances the Management had no alternative but to
declare stoppage of work of all the productive departments
of the mills.
Although it is not possible to be precise as to the extent
of the damage caused, a fair idea of it can be had from a
letter of Hukumchand Insurance Company Ltd. dated August 28,
1959 stating that the loss to buildings, machinery and
accessories had been determined at Rs. 22,624/- by the
surveyors. It appears that on 27th April 1960 the
representatives of the insurance companies had agreed to re-
assessment increasing the figure for repairs to Rs.
37,420/-.
The third notice put up by the firm on April 29, 1960 gave
no indication of the date of completion of the repairs. On
September 13, 1960 the firm notified that the departments of
the mills which had remained unproductive since 28th March,
1959 were expected to commence working on or about 30th
September, 1960.
The firm did not however work the mills in terms of the last
notice but transferred the same to the company which had
been incorporated on 8th December, 1959. It appears that
the consideration for the transfer was Rs. 34,75,000/- made
up of
583
Rs. 11,50,000/- being the value of the immovable properties
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and Rs. 23,25,000/- being the value of movable properties.
Compared to the second figure, the damage to the machinery
as assessed by the insurance companies is insignificant.
The first notice of 28th March, 1959 brings out the fact
that the work in the mill as a whole was not. brought to a
stand still and that it was to continue as usual in the
folding and workshop departments. According to the second
notice, the preliminary survey had shown that over 60 per
cent of the machines in only three departments, namely,
carding, fly frame and ring frame, had been damaged and that
complete replacement of some of the above might be
necessary. The notices do )not make out the case that the
damage was such that it was not possible to run the mills it
all.
Towards the end of 1961 and the be-inning of 1962, respon-
dents 2 to 346 in Civil Appeal No. 2295 of 1966 presented
applications under s. 33-C(2) of the Industrial Disputes Act
to the Labour Court at Nagpur claiming to have been laid-off
from 28th March 1959 to 30th September, 1960. The
appellants in the second appeal filed a written statement
before the Labour Court contending inter alia that the
Labour Court had no jurisdiction under s. 33-C(2) and that
the parties had to work out their rights within the four
corners of the State Act i.e. the C.P. and Berar Industrial
Disputes Settlement Act, 1947. By order dated 30th
November, 1962 the preliminary objection as to jurisdiction
of the employers was rejected by the Labour Court. On this,
the appellants preferred an application under Art. 226 of
the Constitution of India before, the Bombay High Court. By
a common judgment rendered on 25th August, 1962 the High
Court rejected the contentions of the appellants that the
claim under the Industrial Disputes Act was not maintainable
because of the operation of the State Act and further held
that the Labour Court was competent to adjudicate on the
merits of the claim of the workers even where the employer
disputed not only the jurisdiction of the said court but
also disputed that there was any lay-off as claimed and that
the applicants were not workmen within the meaning of the
Act. The appellants who were petitioners before the High,
Court did not proceed further in the matter by applying for
a certificate that the case was fit for appeal to this
Court. By order dated November 30, 1962 the Labour Court
dismissed as barred by the principles of res judicata 125
applications of some of the workers who had previously
applied to the Labour Court at Bombay and whose applications
had been subsequently dismissed by the Labour Judge, Bombay
on the ground of lack of jurisdiction under s. 33-C of the
Industrial Disputes Act. The claim dismissed related to the
period between March 28, 1959 and May
584
2, 1960. The Labour Court allowed the claims relating to
the period from May 3, 1960 to September 30, 1960 and
ordered the issue of certificates of recovery under s. 33-C
of the Act.
Respondents 2 to 493 in Appeal No. 2136/1966 filed appli-
cations under S. 33-C in the Labour Court at Nagpur claiming
lay-off compensation for the period 28th March, 1959 to
September 30, 1960. The Labour Court held by order dated
February 29, 1964 that there had been a lay-off within the
meaning of s. 2(kkk) of the Industrial Disputes Act and that
the employees were entitled to compensation for the full
period of 18 months but workers who were "badli" workers
were not entitled to such compensation. The appellants in
both the appeals preferred writ petitions before the High
Court-of Bombay for quashing the order of the Labour Court.
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The two writ petitions were disposed of by the High Court by
a common judgment on February 2, 1965. Before the High
Court four main points were raised, namely
1. Whether having regard to the circumstances and the
established facts there had been a lay-off within the
meaning of the expression in s. 2(kkk) ?
2. If there had been a lay-off, whether compensation under
s. 25-C read with S. 25-E of the Act was payable to the
workers, also whether the workers were not entitled to
compensation because of non-fulfilment of conditions
prescribed in S. 25-E ?
3. Whether badli workers were entitled to lay-oil’ compen-
sation? and
4. Whether the quantum of compensation would be governed
by the first proviso to S. 25-C or whether s. 25-C(ii) would
be applicable entitling the workers to compensation for the
full period of the lay-off i.e. 28-3-59 to 30-9-1960 ?
On the first question the High Court held that "by every
indication and circumstance and by express declaration of
its management it was a running industry", meaning thereby
that there was no closure. On the second question, the High
Court held that the Labour Court should have considered
whether the workmen had proved that they had presented
themselves for work or not in terms of S. 25-E to be able to
claim compensation under s. 25-C, excepting with regard to
three workmen who cave clear evidence on the point. It also
held that badli labour were not entitled to lay-off
compensation. It turned down the contention that
compensation was claimable only in terms of the Standing
Orders of the Mill. In the result the High Court remanded
the
585
matters ’back to the Labour Court for recording fresh
evidence on behalf of both the parties on the following
issue :
Do the applicants prove that they presented
themselves for work at the appointed time at
least once a day within the meaning of s. 25-
E(ii)?
On the applications of the appellants, the High Court
granted certificates under Art. 133(1) (a) of the
Constitution.
Before us learned counsel for the respondents Mr. Bhandare
sought to resist the main contention of the appellants by
urging that the decision of the High Court in 1962 operated
as res judicata in the present appeals. He said that it was
open to the appellants to challenge the conclusion of the
High Court arrived at in 1962 by moving the High Court by an
application for the issue of a certificate of fitness for
appeal to this Court and in the event of refusal thereof, to
ask for special leave of this Court. In the absence of such
applications the determination of the High Court in 1962 had
become final and the question as to jurisdiction could not
be canvassed again. We do not think it necessary to go into
this question as the matter can be disposed of even on the
basis that it is open to the appellants to raise the
question of jurisdiction before this Court although the
point was not expressly taken in the grounds for leave to
appeal to this Court before the High Court.
The substantial point of Mr. Gupte appearing for one set of
appellants was that it being the case of the employers that
there had been a closure of the mills the dispute could not
be adjudicated upon by a Labour Court and was entertainable
only by an Industrial Tribunal under the provisions of s.
10(1) (d) of the Act. Mr. Gupte drew our attention to
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various sections of the Act in support of his contention
that an "industrial dispute meant primarily a dispute or
difference between employers on the one hand and employees
on the other connected with the employment or non-employment
or the terms of employment etc. of any person. He urged
that the basic underlying idea was that to be an industrial
dispute the dispute had to be one which affected the
employee,; ,-is a class as pitted against their employers.
He argued that individual workman could only approach the
Labour Court for lay-off compensation when prima facie there
was no question of closure of the industry by the employers
and drew our attention to the definition of ’lay-off’
ins.2(kkk). According to him in a situation like the present
where the inability on the part of the employer to give
employment was not limited to a handful of persons but
extended to the employees wholesale arising out of a
calamity it could not be said that there had been a lay-off
of the employees. Although the word ’closure’ is not
defined in the Act, counsel
586
argued that the expression would aptly describe the
condition prevailing in the mills as a result of the fire on
March 27, 1959.
We find ourselves unable to accept Mr. Gupte’s contention.
We may in this connection refer to the relevant provisions
in the Act. The authorities under the Act are specified in
different sections of Chapter II containing ss. 3 to 9.
Under s. 7 it is open to the appropriate Government by
notification in the Official Gazette constitute one or more
Labour Courts for the adjudication of industrial disputes
relating to any matters specified in the Second Schedule and
for performing such other functions as may be assigned to
them under the Act. Under s. 7-A the appropriate Government
may, by notification, constitute one or more Industrial
Tribunals for the adjudication of industrial disputes
relating to any matter, whether specified in the Second
Schedule or the Third Schedule. In the Second Schedule are
set forth certain matters in items 1 to 5 which are within
the jurisdiction of a Labour Court and item 6 gives the
Labour Court jurisdiction to deal with "all matters other
than those specified in the Third Schedule". The Third
Schedule contains 11 items of which item 10 reads :
"Retrenchment of workmen and closure of establishment".
Lay-off is not expressly covered by either of the two
Schedules. It would therefore be a matter covered by the
Second Schedule tinder item 6 thereof. S. 10 (1) (c)
enables the appropriate Government when it is of opinion
that an industrial dispute exists or is apprehended inter
alia, to refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, if it relates
to any matter specified in the Second Schedule to a Labour
Court for adjudication. So far as an Industrial Tribunal is
concerned,, the appropriate Government may under s. 10(1)(d)
make reference to it not only in cases covered by the Second
Schedule but also those included in the Third Schedule
except that when the dispute relates to any matter in the
Third Schedule and is not likely to affect more than one
hundred workmen, the appropriate Government may, if it
thinks fit, make a reference to a Labour Court tinder cl.
(c).
According to Mr. Gupte, Chapter V-A of the Act introduced in
the year 1953 providing for claims being preferred by
individual workmen to compensation could only be resorted to
when the dispute was such as would not call for a reference
under S. 10 (1) (d). He urged further that it being open to
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the Central Government to amend the Second and the Third
Schedules by issue of notification under s. 40 of the Act,
so long as the said Schedules stood unaltered, it should be
presumed that the legislature did not intend a Labour Court
to exercise its jurisdiction in cases where there was
587
a serious question of closure of an establishment put
forward by the employers. All this, argued counsel, went to
show that if the essential nature of the dispute was a
difference between the employer on the one hand and a very
large body of workmen on the other, the employer making an
assertion involving a matter covered by the Third Schedule
to the Act, it would not be open to the workmen to prefer
claims individually under s. 33-C.
The ambit of s. 33-C has been examined by this Court on a
number of occasions and reference may usefully be made to
some of the authorities in this connection to find out
whether the Labour Court was within its jurisdiction to
entertain the applications which were followed by the writ
petitions to the Bombay High Court. in Central Bank of India
Ltd. v. P. S. Rajagopalan(1) the legislative history of s.
33-C was gone into at length and the conclusion of this
Court on the scope thereof was as follows (see p. 150)
"The legislative history to which we have just
referred clearly indicates that having
provided broadly for the investigation and
settlement of industrial disputes on the basis
of collective bargaining, the legislature
recognised that individual workmen should be
given a speedy remedy to enforce their
existing individual rights, and so inserted s.
33-A in the Act in 1950 and added s. 33-C in
1956. These two provisions illustrate the
cases in which individual workmen can enforce
their rights without having to take recourse
to s. 10(1) of the Act, or without having to
depend upon their Union to espouse their
cause. Therefore, in construing s. 33-C we
have to bear in mind two relevant
considerations. The construction should not
be so broad as to bring within the scope of s.
33-C cases which would fall under s. 10(1).
Where industrial disputes arise between
employees acting collectively and their
employers, they must be adjudicated upon in
the manner prescribed by the Act, as for
instance, by reference under s. 10(1). These
disputes cannot be brought within the purview
of s. 33-C. Similarly, having regard to the
fact that the policy of the Legislature in
enacting s. 33-C is to provide a speedy
remedy to the individual workmen to enforce or
execute their existing rights, it would not be
reasonable to exclude from the scope of this
section cases of existing rights which are
sought to be implemented by individual
workmen."
Turning down the contention put forward on behalf of the em-
ployers there that computation under s. 33-C(2) would only
be
(1) [1964] 3 S.C.R. 140.
588
possible where the right of the workman to receive the
benefit was not disputed, it was said :
"The claim under S. 33-C(2) clearly postulates
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that the determination of the question about
computing the benefit in terms of money may,
in some cases, have to be preceded by an
enquiry into the existence of the right and
such an enquiry might be held to ’be
incidental to the main determination which has
been assigned to the Labour Court by sub-s.
(2). As Maxwell has observed " where an Act
confers jurisdiction, it impliedly also grants
the power of doing all such acts, or employing
such means, as are essentially necessary to
its executions"
Accordingly it was held that s. 33-C(2) took "within the
purview cases of workmen who claimed that the benefit to
which they are entitled should be computed in terms of
money, even though the right to the benefit on which their
claim is based is disputed by their employers".
Following the above decision, it was held in Mining Engineer
v. Rameshwar(1) that sub-s. (2) of s. 33-C was not confined
to cases arising under an award, settlement or even under
the provisions of Chapter V-A of the Act and the benefit
provided in the bonus scheme under the Coal Mines Provident
Fund and Bonus Schemes Act, 1948 would be covered by sub-s.
(2).
Section 25-C provides for the measures of compensation to be
awarded in cases of lay-off of workers. S. 25-F of the Act
however provides inter alia that no compensation shall be
paid to a workman who has been laid-off if he does not
present himself for work at the establishment at the
appointed time during the normal working hours at least once
a day.
The claim to compensation of every workman who is laid-off
is one which arises under the statute itself and s.. 25-C
provides for a benefit to the workman which is capable of
being computed in terms of money under S. 33-C(2) of the
Act. The scheme of the Act being to enable a workman to
approach a Labour Court (oil computation of the compensation
claimed by him in terms of s. 25-C of the Act he is not
concerned to see whether other co-workers will or will not
adopt the same course. The fact that a number of workers
make claims of identical nature i.e. to compensation for
lay-off, arising out of the same set of facts and
circumstances cannot make any difference to the individual
workman who prefers the claim. The mere fact that a large
number of persons makes a claim of the same nature against
the employer, does not change
(1) [1968] 1 S.C.R. 140.
589
the nature of the dispute, so as to take it out of the pale
of s. 7 of the Act and render the dispute one which can only
be dealt with by an Industrial Tribunal to which reference
can be made by the appropriate, Government.
Reference was however made to the decision of U.P. Electric
Supply Co. v. R. K. Shukla(1) in aid of the contention for
the appellants that if the dispute touches a matter in the
Third Schedule the Labour Court will not have jurisdiction
to. deal with it. In this case the State Electricity Board,
U.P. took over the undertaking of the company from September
16, 1964 in exercise of power under sec. 6 of the Indian
Electricity Act, 1910 and under the provisions of the
appellants’ licences. As a result thereof, the company
ceased to carry on the business of generation and distri-
bution of electricity thereafter. On September 16, 1964 the
Board issued letters of appointment to the employees of the
appellant in the posts and positions which they had
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previously held. According to the respondents they were not
given credit for their past services with the company. All
the workmen of the two undertakings were taken over in the
employment of the Board with effect from September 17, 1964.
443 workmen employed in the Allahabad undertaking filed
applications before the Labour Court under s. 6-H(2) of the
U.P. Industrial Disputes Act, 1947 for payment of
retrenchment compensation and salary in lieu of notice. The
orders for payment of retrenchment compensation were
resisted by the company inter alia on the ground that the
workmen were )not in fact retrenched and in any event since
they were admitted to the service of the Board on terms not
less favorable than those enjoyed before, the company was
under no liability to pay retrenchment compensation and the
Labour Court was incompetent to entertain and decide the
applications for awarding such compensation. On the above
facts the Court in the appeal by special leave observed "the
Company had expressly raised a contention that they had not
retrenched the workmen and that the workmen had voluntarily
abandoned the Company’s service by seeking employment with
the Board even before the Company closed its working."
Reliance was however placed on certain passages in the
judgment at p. 513 and at p. 517 which according to counsel
for the appellants went to show that when the factum of
retrenchment is questioned, there is a dispute which is
’exclusively within the competence of the Industrial
Tribunal. These observation cannot be considered binding on
us as all the aspects were not placed before the Court then.
Reference was also made to the case of Ramakrishna Ramanath
v. Presiding Officer, Nagpur(2). In that case the
appellant bad
(1) [1970] 1 S-C.R. 507.
7-L643 Sup. CI/72
(2) (1970) 2 L.L.J. 306.
590
issued a notice in writing on the 1st July 1958 following
the issue of a notification by the Government of Bombay
under S. 5 (2) read with s. 5(1) of the Minimum Wages Act,
1948 to the effect that it had been forced to close its
factory as from the 1st of July 1958 by the action of the
Bombay Government in issuing the said notification inasmuch
as minimum rates of wages made payable as from 1st July,
1958 were so excessive and unworkable that it was impossible
for any employer to give effect to them and the notification
had made the working of the business a financial
impossibility. The workers were also informed that the
closure of the business would continue as long as the
notification dated 11th June, 1958 continued in force. The
Government of Bombay withdrew the notification after some
time and the appellants started to work the factory from
10th August, 1958 taking in all employees who were there
before 1st July. The respondent No. 2 put in an application
before the Presiding, Officer, Labour Court Nagpur on 5th
November, 1963 claiming Rs. 334.80 on account of
retrenchment compensation and one month’s pay in lieu of
notice. The appellant put in its written statement, inter
alia, contending that the said respondent was not an
employee but an independent contractor and that there had
been no closure of the business to attract s. 25-FFF of
the Act and that in any event the dispute could not be
referred to a Labour Court. In the appeal by special leave
to this Court it was contended, inter alia, (a) that the
dispute did not fall within the jurisdiction of the Labour
Court but within that of an Industrial Tribunal, (b) that
there was really,-no closure of the appellant’s business but
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only a lock out or a temporary stoppage of work not
attracting the operation of s. 25-FFF and (c) that in order
that the respondent could claim. the benefit of 25-F it was
obligatory on her to show that she had worked for 240 days
in each year of service for which the claim was made. This
Court found that the appellant had not taken the plea in its
written statement and that there had been a lay-off- or a
lock-out and that it had only submitted that the closure in
accordance with the notice did not fall within the scope of
s. 25-FFF of the Act. By issues 6 and 7 the appellant
raised questions as to whether the closure had resulted in
the retrenchment of the applicant and whether the closure
was beyond the control of the employer. No dispute was
raised about the factum of closure. Strangely enough it was
urged before this Court that "there could be no closure
because the appellant was ,merely protesting against
irresponsible action of the Government action and had no
intention to close the business permanently." The Court
found that the question of lock-out was not mooted when the
issues were settled nor had any plea been taken that there
had been a temporary cessation of work under Standing Order
No. 11. In our view, the observations in this case do not
help the appellants before us.
591
In Sawatram Mills v. Baliram(1) the claim of the workmen for
lay-off during a certain period before the Second Labour
Court Bombay was resisted inter alia on the ground that the
said court had no jurisdiction as the dispute fell to be
tried under the C.P. and Berar Industrial Disputes
(Settlement) Act, 1947, and, secondly, the application under
s. 33-C was incompetent because it was not a claim for money
due and calculations had to be made for ascertaining the sum
due. On a construction of the sections of the industrial
Disputes Act this Court held that :
"Compensation for lay-off could only be
determined under Chapter V-A of the Industrial
Disputes Act and the workmen were entitled
under s. 3 3 C (1) to go before the Second
Labour Court to realise moneys due from their
employers under Chapter V-A."
The Court also negatived the contention that the Industrial
Disputes Act did not apply but the C.P. and Berar Industrial
Disputes (Settlement) Act did as the State Act made no
mention of lay-,off or compensation for lay-off. The other
argument was rejected following the judgment in Kays
Construction Co. (P) Ltd. v. State of U.P. & ors.
In substance the point urged by the appellants was that if a
claim is made on the basis of a lay-off and the employer
contends that there was no lay-off but closure, it is not
open to a labour court to entertain an application under s.
33-C(2). The more so it was stated, when the dispute was
not between a solitary workman on the one hand and the
employer on the other but a whole body of workmen ranged
against their employer who was faced with numerous
application-, before the Labour Court for computation of
benefit in terms of money. As has been said already, the
Labour Court must go into the matter and come to a decision
as to whether there was really a closure or a lay-off. If
it took the view that there was a lay-off without any
closure of the business it would be acting within its
jurisdiction’ if it awarded compensation in terms of the
provisions of Chapter V-A. In our opinion the High Court’s
conclusion that
"In fact the business of this Company was
continuing. They in fact continued to employ
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several employees. their notices say that some
portions of the mills would continue to work"
was unexceptionable. The notices which we have referred to
can only lead to the above conclusion. The Labour Court’s
jurisdiction could not be ousted by a mere plea denying the
workman’s claim to the computation of ,lie benefit in terms
of money: the
(1) [1966] I S.C.R, 764.
(2) [1965] 2 S.C.R. 276.
592
Labour Court had to go into the question and determine
whether, on the facts, it had jurisdiction to make the
computation. It could not however give itself jurisdiction
by a wrong decision on the jurisdiction plea.
Appearing for the appellant in Civil Appeal No. 2136/66 Mr.
Pai contended that his clients’ liability would only
commence after the 1st October, 1960 when it started to run
the mill. This point had not been canvassed before the High
Court and consequently we cannot entertain it.
In the second case Mr. Gupte argued that although his client
did not raise the question of liability before, there was no
question of any concession and he should be allowed to
contest his liability on the basis of the application
preferred for urging additional grounds before this Court.
As this point was not urged in the court below this
application must be refused.
The last point urged was that in view of Standing Orders 19
and 21 the quantum of compensation had to be scaled down or
measured in terms of the Standing Order 19 the employer
could, in the event of fire, breakdown of machinery etc.
stop any machine or machines or department or departments
wholly or partially or the whole or a part of the
establishment for any period, without notice and without
compensation in lieu of notice. Under Standing Order 21,
any operative played off under Standing Order 19 was not to
be considered as dismissed from service but as temporarily
unemployed and was not to be entitled to wages’ during such
unemployment except to the extent mentioned in Standing
Order No. 19. The High Court rightly turned down the
contention in view of S. 25-J of the Act under which the
provisions of Chapter V-A are to have effect notwithstanding
anything inconsistent therewith contained in any other law
including Standing Orders made under the Industrial
Employment (Standing Orders) Act, 1946.
These appeals were originally heard by a Bench of five,
Judges including S. C. Roy, J. who expired a few days back.
The above judgment was concurred in by our late colleague.
We however gave a further hearing to the parties at which
nothing was addressed to us to make us change our opinion
already formed.
In the result, the appeals fail and are dismissed with
costs. One set of hearing fee.
S.C.
Appeals dismissed.
593