w w w . L a w y e r S e r v i c e s . i n



Central India Machinery Mfg Co Ltd v/s Nathilal Sharma

    Decided On, 17 December 1975

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE S.M.N. RAINA & THE HONOURABLE MR. JUSTICE U.N. BHACHAWAT

    For the Appearing Parties: D.K. Katare, N.P. Miltal, Advocates.



Judgment Text

(1.) THIS is an employer's writ petition under Articles 226 and 227 of the Constitution of India for quashing the order passed by the industrial Court, Madhya Pradesh, Indore in its revisional jurisdiction in Revision No. 57/mpir/73, dated 9-7-1974 and Revision No. 76/mpir/73, dated 10-10-1974 which are Annexures E and F to the petition. The respondent No. 1, who was employed with the petitioner Company, was at the material time, a clerk in the smithy section of the Petitioner Company and was the only clerk in that section. The services of respondent No. 1 were terminated vide order dated 5-6-1969 (Annexure A) (which is hereinafter referred to as the impugned order) of the Manager of the petitioner Company and he was paid Rs. 3,298. 32 as detailed below:-

(2.)RESPONDENT No. 1 filed an application before the Labour Court against the petitioner Company on 9-7-1969, contending on more grounds than one that the impugned order of retrenchment was bad in law and he should be reinstated with back wages from the date of his discharge.

(3.)THE Labour Court vide its order dated 26-9-1973 (Annexure D) rejecting the various grounds raised by respondent No. 1 except the two grounds, one of them was that the impugned order of retrenchment was hit by the non-observance of the principle of 'last come first go' without any special reason for deviation from that general rule, set aside the impugned order and ordered reinstatement of respondent No. 1 with half back wages from the date of discharge under the impugned order. Both the parties filed revisions before the industrial Court; the petitioner Company for quashing the finding about the invalidity of the impugned order and the direction of reinstatement of respondent No. 1 with half back wages; and respondent No. 1 for the modification of the impugned order so as to award full back wages instead of half back wages. The Industrial Court rejected the revision filed by the petitioner Company and allowed the revision of respondent No. 1 and directed the petitioner Company to pay him full back wages along with the reinstatement. The respective orders of the Industrial Court dated 9 1-1974 and 10-1-1974 are Annexures E and F respectively.

(4.)ALBEIT the grounds raised in the petition are quite populous, the learned counsel for the petitioner has planned his contentions under the following two heads:-

(i) Though the impugned order (Annexure A) in form was an order of retrenchment, in fact, what was intended was the simple termination of the services of respondent No. 1 as they were no more required, the order was passed in the form of a retrenchment order in order to give additional benefit to respondent No. 1 to which he was not entitled to if the order would have been passed as a simpliciter order of termination under Standard Standing Order No. 11.

(ii) Even on holding the impugned order to be an order of retrenchment, as ex facie the order is, the lower Courts and the Industrial Court committed an error of law in holding that it was hit for the non-observance of the principle "last come first go. " First, for the reason that there was no pleadings with the specific mention of the names of the persons who were allegedly junior to him and were retained in service while he was retrenched. Secondly, admittedly respondent No. 1 was the lone clerk employed at the material time in the Smithy Section. Hence, there was no question of anybody being junior to him and thirdly, the category of respondent No. 1 was different from the category of the clerks who were employed at the material time in other sections. Respondent No. 1 was retrenched because he was found surplus in the Smithy section.

(5.)WE shall deal with the aforesaid grounds in seriatim.

(6.)AS regards the first contention, it has to be rejected only on the ground that this is being raised for the first time before this Court. Although while making the statement of facts in the petition, in paragraph 4, the facts are stated so as to indicate that this contention was raised in the written statement. To quote:-

4. "the petitioner filed a written statement before the Labour Court and submitted that the respondents was the only clerk in the Smithy Section and his services were terminated as the same were no longer required in the said section. The respondent was found surplus to the requirement of the petitioner and hence, an order of termination dated 5-6-69 (P-l) was passed, The management intended that the respondent may not be put to any financial loss and just to see that the respondent gets the financial gain, the management passed an order of retrenchment. As a result of the same, the respondent was paid, notice pay for one month, retrenchment compensation and the amount of Provident Fund etc. amounting to Rs. 3298. 33 P. "

In fact, this contention is not only absent in the written statement (Annexure-C), dated 3-2-1970, but also does not appear to have been raised either before the labour Court or the Industrial Court as would be evident from their orders (Annexure D) dated 26-2-1973 and Annexure E, 9-1-1974 respectively. In absence of a foundation for this contention in the pleadings of the petitioner, it could not have been looked into by the Labour Court and the Industrial Court and, at any rate, it cannot be looked into by the Court.

(7.)IT is an elementary principle which has to be observed strictly that in writ petitions, neither there should be any mis-statement of facts nor there should be any concealment of material facts. We deprecate the course adopted in this case in violation of the aforesaid principle and are constrained to observe (hat had we not examined the pleadings with watchful vigilance, this misstatement of fact would not have come to our notice as even the learned counsel for the other side did not bring this fact to our notice. Truly speaking the petition should be dismissed on this lone ground. However, we do not propose to do that and are, therefore, deciding it on merits.

(8.)NOW, we shall proceed to dwell upon the second contention. Section 25-G of the Industrial Deputes Act reads as under:-

"25-G. Procedure for retrenchment.-Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily 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. "

The fore quoted section which deals with the procedure for retrenchment has, in clear terms, given a statutory recognition to the principle 'last come first go' and there could be a departure from this principle only when there are special reasons which have to be recorded by the employer at the time of the retrenchment of the employee in question.

(9.)THE impugned order (Annexure A) reads as below-

"shri Nathilal, clerk, Smithy Department. We regret to inform you that your services are no longer required. Hence your services are retrenched w. e. f. 5-6-69. Please take your dues retrenchment compensation etc. from our Time Office. Sd /-Factory Manager, central India Machinery Mfg. Co , Ltd. "

On a plain reading of the aforesaid order, it can unhesitatingly be said that absolutely there are no reasons recorded for retrenching respondent No. 1 except that his services are no longer required. Thus, in case if, in our conclusion, as a result of the discussion presently to follow, it is found that there were persons junior to respondent No. 1 in the category of workmen to which he belonged, it can, without fear of any contradiction, be held that the impugned orders is invalid.

(10.)THE central point to be considered, which was placed in the fore front of the argument of the learned counsel for the petitioner, is whether respondent No. 1 who was working in the Smithy Section of the petitioner Company as a clerk, belonged to a category different from the clerks working in other sections of the petitioner Company. At this stage, we would advert to the decision of their Lordships of the Supreme Court in Om Oil and Oil Seeds exchange v. Their Workmen (AIR 1966 SC 1657. ). The relevant observations read as: -

"clerical work ordinarily does not require specialisation and clerks may be transferred from one department to another without detriment to the business. But if a clerk has been working in a branch of the business and he is shown to possess special aptitude for a particular duty, performance of which requires application and experience, the management may in the interest of the business while retrenching others retain him even if he is junior to others. The rule of "first come last go" is intended to secure an equitable treatment to the employees when, having regard to the exigencies of the business, it is necessary to retrench some employees. But in the application of the rule the interests of the business cannot be overlooked. The rule has to be applied where other things are equal. The, management of the business must act fairly to the employees; where, however, the management bona fide retains staff possessing special aptitude in the interests of the business, it cannot be assumed to have acted unfairly merely because the rule "first come, last go" is not observed. If retention of a clerical employee is regarded as necessary by the management in the interests of the business, that opinion cannot be discarded merely on the ground that the clerk concerned is not the senior most. "

(11.)THE Labour Court was of the view that retention of junior clerks in service could not be sustained on the ground that they had gained experience in a particular branch of clerical work. To accept that ground of preference observed the Labour Court, was to destroy the rule "first come, last go itself, since clerks are not specially trained to handle only a particular kind of work and their work is easily convertible and one can replace another without dislocation in the department. For ordinary clerical work this is undoubtedly true, but even among the clerical staff if a degree of specialisation is necessary for discharging clerical duties efficiently, retention of a junior clerk on the ground that the duty performed by him requires experience, and aptitude, will not expose the management to a charge of mala fides, or perpetration of an unfair labour practice. "

(12.)THE fore quoted point has to be examined in the light of the fore-quoted observations of their Lordships of the Supreme Court. It is an admitted position that respondent No. 1 was a clerk. Generally, as observed by the supreme Court, clerical work does not require specialisation, the work of the clerks is easily convertible and one clerk can replace another without dislocation in the Department and as such, if, for a particular type of clerical work, specialisation or a particular skill or particular experience or a particular aptitude is required, that has to be specifically pleaded and proved to justify the retention of a junior clerk as against a senior clerk. In the instant case, on a careful scrutiny of the written statement (Annexure C) filed by the petitioner company, it is nowhere averred that the clerical work that was done by different clerks in various departments or in the various sections of the petitioner company was of an extraordinary or a special nature requiring a technical skill and as such, the clerical strength in the different sections of the petitioner company formed a distinct category. In the absence of this averment, it cannot be said that respondent No. 1 did not fall in the category of the other clerks in the various other sections of the petitioner Company. This point has been elaborately discussed in the impugned judgment of the Labour Court (Annexure D) and the Industrial Court (Annexure E) and there is a concurrent finding that respondent No, 1 fell in the general category of clerical staff. We have carefully examined the reasons given by the Labour Court as well as the. Industrial Court and we find that there is neither any unreasonableness nor any perversity in that finding. This being purely a finding of fact, cannot be interfered with in these proceedings.

(13.)THE learned counsel for the petitioner had argued that admittedly, respondent No. 1 being the lone clerk in the Smithy Section, there was no question of any one being junior to him. It would be pertinent here to state that it is not the case set up by the petitioner Company at any stage that the smithy Section of the petitioner Company formed its distinct industrial establishment for the purposes of the fore-quoted section 25-G and, therefore, the question has to be determined in the light of the fact that all the sections of the petitioner Company is one industrial establishment and it has been so observed and held by the Labour Court also.

(14.)THUS, while determining the seniority in the clerical staff, the period of service of the clerks working in the various departments of the petitioner company shall have to be taken into account.

(15.)RESPONDENT No. 1 has, in paragraph 5 of his application (Annexure B)very specifically stated to the effect that there were employees junior to him who have been retained and, thus, the petitioner Company acted in violation of the principle "first come and first go" incorporated in section 25-G of the act. To quote:

"even if the management wanted to retrench certain post, the process ought to have been started from below according to the principle of last come first go as enshrined in section 25 (G) of Industrial Disputes Act The management has not shown any reason for the retrenchment of the applicant in place of junior employees. On these ground also the order of retrenchment is completely illegal and improper and violates section 25 (g) of industrial Disputes Act. "

(16.)THERE is a concurrent finding of the Labour Court as well as the industrial Court tha

Please Login To View The Full Judgment!

t there were employees in the clerical staff, of course in the sections other than the Smithy Section who were junior to respondent No. 1. This finding; which is based on an appreciation of the evidence on record, cannot be interfered within these proceedings. Neither that finding has been challenged before us by the learned counsel for the petitioner. (17.)IN the light of the view taken by us for determining the question of seniority, the clerical staff of all the sections of the petitioner Company shall be taken into account. We are thus unable to accept the contention of the learned counsel for the petitioner that there were no pleadings on the question that there were persons junior to respondent No. 1 who have been retained in violation of section 25-G. The argument of the learned counsel that the names of those persons should have specifically been mentioned in the application (Annexure B) by respondent No. 1 is a hypertechnical argument which does not deserve to be accepted, more particularly, when evidence has been led on the question and the Tribunal below has found it as a fact and the correctness of that finding is not challenged. (18.)IN the light of the aforesaid discussion, contention No. (ii) stated in paragraph 4 of this order, raised on behalf of the petitioner Company is also repelled. (19.)IN the result, this writ petition does not merit to be allowed and is accordingly dismissed with costs. Counsel's fee Rs. 100, if certified. Outstanding amount of security, if any, be refunded to the petitioner. Petition allowed.
O R