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



Jagran Prakashan Limited & Others v/s Presiding Officer, Labour Court & Others

    Writ C. No. 37024 of 2012

    Decided On, 04 August 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE JAHANGIR JAMSHED MUNIR

    For the Petitioners: Chandra Bhan Gupta, Advocate. For the Respondents: C.S.C., Bushra Maryam, M.K. Sharma, Manoj Kumar, Namit Kumar Sharma, Advocates.



Judgment Text

1. M/s. Jagran Prakashan Limited, Allahabad and their Establishment at Varanasi, dissatisfied with an award of the Presiding Officer, Labour Court, U.P., Allahabad, dated 27.1.2012 (published on 11.4.2012), made in Adjudication Case No.1 of 2009, have instituted this Writ Petition, challenging the Award. The Award, last mentioned, has been rendered in an Industrial Dispute between M/s. Jagran Prakashan Limited and their Workman, Ram Charitra Mishra. The Adjudication Case is a sequel to a reference made under Section 4-K of the Uttar Pradesh Industrial Disputes Act, 1947 (for short, 'the State Act') by the Labour Commissioner, U.P., Kanpur (an ex officio Secretary to the Government) in the following terms (rendered into English from Hindi vernacular):

"Whether the act of the Employers in terminating the services of their Workman, Sri Ram Charitra Mishra son of Sri Satya Narain Mishra, 'junior plate maker', vide Order, dated 14.11.2006, with effect from 15.11.2006, is justified and/or lawful? If not, to what benefit/relief is the concerned Workman entitled and in what terms?

2. The Petitioners are admittedly a newspaper establishment, who employ working journalists, non-working journalists as well as other Employees. According to the case of the Second Respondent, Ram Charitra Mishra, the Workman, who shall hereinafter be referred to as the 'Workman', was initially enrolled as apprentice in Petitioners' establishment w.e.f. 17.7.1989. He trained as an apprentice in the trade of plate making and was employed as a semi-skilled Workman in the Petitioners' establishment, on the basis of an oral Engagement, dated 1.11.1989. The Petitioners shall hereinafter be referred to as the 'Employers'. The Workman's case is that ever since his appointment, he has been in harness of the Employers, working regularly as a plate maker. He has done his duties honestly and with integrity. He was served with a Letter, dated 14.11.2006, suddenly terminating his services w.e.f. 15.11.2006. The reason assigned for dispensation of his services was the installation of a C.T.P. Machine, which the Workman castigates as improper, wrong and a colourable exercise of powers.

3. It is the Workman's further case that in the publication of a newspaper, process is a necessary and intermediate stage. Without processing, there can be no publication of a Newspaper. According to the Workman, the process Department has not been closed down due to installation of the C.T.P. Machine. The Sub-Editor, the clerk and the operator, besides other hands, have been retained in the Department after requisite training. The installation of the machine has not led to deprivation of employment to those, who were in the process Department. It is also claimed that prior to dispensation of the Workman's services, some new hands have been recruited, but his services have been dispensed with without bearing in mind his seniority. He was a permanent Workman. He has never been served with a notice of closure. At the time when the Workman's services have been dispensed with, more than 100 Workmen were in harness of the Employers.

4. It is the Workman's case that according to Section 25-O of the Industrial Disputes Act (for short, 'the Central Act'), it is necessary to secure permission for a valid closure from the Appropriate Government, which in this case, has not been obtained. It is also pleaded by the Workman that the provisions of Section 25-N of the Central Act have been observed in breach. The Order of Termination of his services squarely falls in the category of retrenchment. It is pleaded that he has not been served with three months' prior notice before retrenchment or paid notice pay in lieu thereof. It is also the Workman's case that no Retrenchment Compensation has been paid to him. It is specifically pleaded that whatever sum of money in connection with his unlawful retrenchment has been paid, he has received under protest and without prejudice. Alongside, it is pleaded that the dispute raised by him is not barred by estoppel. The Order for Termination of his services is unjustified and illegal. He sought relief of reinstatement in service with continuity and full Back Wages. This case of the Workman is based on the Written Statement that he put in before the Labour Court, after registration of the Adjudication Case under reference.

5. The Employers lodged their Written Statement too in the Adjudication Case, where they admitted the factum of the Workman being in their harness and dispensation of his services w.e.f. 15.11.2006. It is pleaded that M/s. Jagran Prakashan Varanasi Pvt. Ltd. has been amalgamated with M/s. Jagran Prakashan Limited. M/s. Jagran Prakashan Limited have a Unit of theirs at 7, P.D. Tandon Road, Allahabad, that is registered under the Factories Act, 1948. It is pleaded by the Employers that the provisions of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (for the short, 'the Working Journalists Act') govern their establishment, and, they are a Newspaper establishment.

6. It is the Employers' further case the Workman was employed as a full time Employee, working in their process Department as a junior plate maker since 1.11.1991. On account of a change over to the very modern C.T.P. Printing Machine, their process department has been closed down. The aforesaid closure of the process Department has resulted in dispensation of services of a total of seven Workmen, including the Workman. Those Workmen, who had knowledge about working of computers, have been retained after extending some elementary training to them, which enables them to operate the new machine. It is the Employers' further case that the Workman has been paid due closure Compensation, under Section 25-FFF of the Central Act. It is also the Employers' case that their establishment, in all its Departments, Employ a total of 83 hands. As such, the provisions of Sections 25-O and 25-N of the Central Act are not applicable. The closure is justified, bona fide and valid.

7. It is pleaded that a case about validity of closure has not been referred. The reference is not maintainable and illegal. The Workman has been paid his earned Wages upto 15th December, 2006, notice pay, closure Compensation and bonus, all totalling a sum of Rs.72,676, which the Workman has received as full and final payment of his out standings. He has no right to challenge closure of the Section/Department, where he was employed. The Workman is not entitled to any relief.

8. It may be recorded here that before the Labour Court, both parties filed their Written Statements and also rejoinder statements, which constitute their pleadings. Both parties filed their documentary evidence, besides leading oral evidence. The Workman appeared in support of his case as WW1. It must be remarked here that a subsidiary issue covered by the reference and, therefore, examined by the Labour Court, was about the date of the Workman's retention. The parties appear to be at issue about the date of the Workman's retention by the Employers, inasmuch as the Workman claims that he was retained w.e.f. 17.7.1989, whereas the Employers say that it was w.e.f. 1.11.1991. This question was gone into by the Labour Court, on the basis of documentary evidence and also the law applicable to apprentices in an establishment, who later on go on to become regular Employees. It appears that the Workman was retained as an apprentice on 17.7.1989 at the Varanasi Unit of the Employers. He was an apprentice on a stipend of Rs.650 per month. This period of paid apprenticeship was duly considered by the Labour Court, bearing in mind the provisions of the Apprentices Act, 1961. It found that the Workman was in the Employers' harness since 17.7.1989 and not 1.11.1991, as urged by the Employers. The time period of retention would have material bearing on the validity of the Workman's dispensation from service since closure or retrenchment Compensation etc. paid to him, would be determinable on that basis.

9. It was also urged before the Labour Court that the reference was without jurisdiction, inasmuch as the Workman qualified as such, under the Central Act on account of extension of the protective umbrella of the Central Act to working journalists and other Newspaper Employees by Section 3 of the Working Journalists Act; this extension of the benefit of the Central Act to working journalists and other Employees of the Newspaper leads to the inevitable consequence that the 'Appropriate Government', to make a reference, would be the Central Government, under Section 10 of the Central Act and not the State Government, under Section 4-K of the State Act. The reference here being one made by the State Government, under Section 4-K of the State Act, it was incompetent and all proceedings before the Labour Court on its basis a nullity.

10. The Labour Court by its Award, dated 27.1.2012 has answered the reference in favour of the Workman and against the Employers, holding the Termination of service of the Workman invalid and ordering his reinstatement with continuity along with 50% Back Wages. The sum of money paid towards closure Compensation has been ordered to be adjusted. Costs in the sum of Rs.2000 also, have been awarded in favour of the Workman.

11. Heard Sri Chandra Bhan Gupta, learned Counsel for the Employers (Petitioner) and Sri Manoj Kumar Sharma, learned Counsel appearing on behalf of the Workman (Respondent No. 2).

12. Before this Court, the learned Counsel for the Employers has substantially urged that the impugned Award is without jurisdiction, on two counts. First, the reference is incompetent, inasmuch as to every working journalist and other Employee of a Newspaper establishment, the provisions of the Central Act alone apply, where reference can be made by the Central Government, under Section 10 of the last mentioned Act, and not the State Government under Section 4-K of the State Act. He further submits that even if the State Government be found competent to make a reference, in relation to the Workman on ground that he is an Employee of a Newspaper establishment other than a working journalist, the reference can be made to and dealt with by the competent Labour Court or Industrial Tribunal appointed under the Central Act. It cannot be made to or answered by the Labour Court, constituted under the State Act, assuming that the State Government is competent to make a reference, relating to the Workman. As such, the impugned Award, if the reference were held competent, would be without jurisdiction, being one rendered by a Labour Court, not competent to decide a reference under the Central Act.

13. Secondly, the impugned Award is assailed as one without jurisdiction on ground that it is based on a reference that is completely away from the dispute that is involved between parties. It is pointed out by the learned Counsel for the Employers that the reference is one that relates to termination of services of the Workman, whereas the dispute involved is about closure. Learned Counsel for the Employers submits that a case where the services of a Workman come to an end on account of closure of an industry or a part of it, is completely different from termination of services, that fall within the mischief of retrenchment, both under the Central Act and the State Act. Where services of an Employee come to an end in consequence of closure of an industrial unit or one of its Department, the dispute that is to be referred by the Appropriate Government is about the validity of the closure. It is not about validity of termination of service of a Workman, that would fall within the generic category of retrenchment.

14. It is emphasized by the learned Counsel for the Employers that a Labour Court is a Court of referred jurisdiction. It cannot enlarge, change or alter the scope of the reference made. In the present case, the dispute referred was about termination of services of the Workman and its validity; it was not at all about the validity of closure of that Department of the Employers where the Workman was serving, leading to dispensation of services. As such, it was not at all open to the Labour Court to examine the question of validity of the closure, that led to dispensation of the Workman's service as that was beyond the scope of reference. The Labour Court, in the submission of the learned Counsel for the Employers, was, therefore, not at all clothed with jurisdiction to determine the validity of the closure pleaded by the Employers, being a Court of referred jurisdiction.

15. The learned Counsel for the Workman has refuted the submission advanced on behalf of the Employers. These will be noticed a little later, together with a more elaborate statement by the learned Counsel for the Employers in support of his contentions summarized above.

16. This Court finds that on the submissions of parties advanced, the following two questions arise for consideration:

(1) Whether a junior plate maker employed with a newspaper establishment is a Workman by virtue of the Working Journalists Act alone, and exclusively governed by the provisions of the Central Act so as to render a reference under Section 4-K of the State Act in his case incompetent? If so, is the Labour Court/Industrial Tribunal constituted under the Central Act, alone competent to answer a reference in relation to such a Workman?

(2) Whether on a reference about validity of Termination of services of a Workman, the Labour Court as a Court of referred jurisdiction, can go into the validity of a closure pleaded by the Employers to determine if it is sham and no closure at all?

17. The submissions of the learned Counsel for the Employers with regard to Question No.1 have been summarized hereinabove. Dilating on those submissions, learned Counsel for the Employers has placed reliance on a decision of this Court in British India Corporation v. Collector, Kanpur Nagar and others, 2016 (1) ALJ 202. In the said case, the question was whether the Workman of a Central Government Company, where the Central Government had deep and pervasive control over its affairs, could invoke the provisions of Section 6-H(1) of the State Act to recover his dues found for him under an Award passed in an adjudication case by the competent Labour Court/Tribunal. The Award was also passed on a reference made under the State Act. It was held by this Court that the Employers being entirely a Central Government Company, the Award passed by the Industrial Tribunal on a reference made by the State Government under the State Act, though not challenged, would not clothe the Deputy Labour Commissioner with jurisdiction to recover, on the basis of the Award under Section 6-H(1) of the State Act. In British India Corporation (supra), it was held:

"9. In Civil Misc. Writ Petition No.3667 of 2011 the British India Corporation v. State of U.P. decided on 12th March, 2013 this Court quashed the Labour Court Award dated 7th October, 2010 holding that the appropriate Government is the Central Government in the matter of the Petitioners. In view of the above discussions it is clear that from the very beginning the appropriate Government with respect of the Petitioner-Company was the Central Government. In the Petitioner's case itself in 2011 (2) ALJ (NOC) 154 (All) in Paragraph No.18 as quoted above, this Court noted, the fact that the Notification under Section 39 of the Industrial Disputes Act issued by the Central Government empowering the state authority to refer the dispute even in the case of Central Government Company would not be applicable in the present case for the reason that firstly the reference was made in July, 1996 when the said Notification was not in existence and secondly under the notification the state authorities could refer an Industrial Dispute under Section 10 of the Central Act to the Labour Court or Tribunal constituted by the Central Government. In the present set of facts the basis of the impugned Order under Section 6-H(1) of the U.P. Act is the Award dated 16th March, 1988 which was passed by the Labour Court under the U.P. Act. No reference was made under Section 10 of the Industrial Disputes Act, 1947 to the Labour Court or Tribunal constituted by the Central Government. This Court in the Judgment noted in Para 8 above held the reference to be void and quashed the Award.

10. In both the present Writ Petitioners the Award is not under challenge but the fact remains that the source of claim of the Respondent-Workman is the Award dated-16th Marcy, 1988 which was passed upon a reference by the State Government under the U.P. Act and not by the Central Government, which was the appropriate Government under the Central Act. Under the circumstances the Respondent No.3 cannot be said to have jurisdiction in respect of Industrial Dispute or matter incidental thereto, relating to the Petitioners. Thus both the impugned Orders passed by the Deputy Labour Court Commissioner Respondent No.3 are held to be without jurisdiction.“

18. Further reliance has been placed by the learned Counsel for the Employers on a decision of this Court in Steel Authority of India Ltd. (Sales Branch), Kanpur v. State of U.P. and others, 2011 (129) FLR 506, where the issue was, whether the Steel Authority of India being an industry under the authority of the Central Government, or so to speak a public sector undertaking, would be subject to the jurisdiction of the Labour Court, appointed under the State Act on a reference made by the State Government, under that Act. Answering this issue in the negative, it was held by this Court in Steel Authority of India Ltd. (supra):

”8. It will be seen that so far as SAIL is concerned, it answers the description of an Industry under the authority of the Central Government. The aforesaid aspect of the matter is further established from the Notification, dated 3.7.1998 (referred to above) issued by the Central Government under Section 39 of the Act, 1947 which contains the list of Central Public Sector Undertakings and includes the name of SAIL at Item No.119.

9. Counsel for the Respondent-Workmen could not refer to any relevant fact for disputing the said contention of the Petitioner. It is, therefore, held that so far as the SAIL is concerned, the appropriate Government under the Act, 1947 is the Central Government.

10. Reference of disputes to the Labour Court/Industrial Tribunal is under Section 10(c) of the Act, 1947. The Section provides that a dispute or any matter appearing to be connected with, or relevant to, the dispute, covered by matters specified in Second Schedule, the reference shall be referred to the Labour Court for adjudication. Section 10(d) of the Act, 1947 provides that a dispute or any matter appearing to be connected with, or relevant to any matter specified in the Second Scheduled or the Third Schedule shall be referred to a Tribunal for adjudication.

11. From the aforesaid it is apparently clear that so far as the disputes qua matters covered by Second Schedule are concerned, it can either be referred to the Labour Court or to the Industrial Tribunal. Dispute pertaining to matters covered by Third Schedule have to be referred to the Industrial Tribunal only. Labour Court has been defined under Section 2(kkb) to be a Court constituted under Section 7 of the Act, 1947. Section 7 provides that appropriate Government may, by Notification in the official Gazette, constitute one or more Labour Courts for adjudication of the Industrial Disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under the Act.

12. So far as the Industrial Tribunal is concerned, the same has been defined under Section 2(r) and means an Industrial Tribunal constituted under Section 7-A of the Act, 1947.

13. It is not in dispute that the Central Government has constituted Industrial Tribunal cum Labour Court in exercise of powers under the Act, 1947.

14. This Court may record that a dispute pertaining to discharge/removal of Workmen including reinstatement or grant of relief to the Workmen of a Central Government Undertaking who had wrongly been dismissed is covered by Section 4 of the Act, 1947. What logically follows is that for such a dispute, the appropriate Government to refer the matter to the Labour Court or the Industrial Tribunal in exercise of powers under Section 10(c) would be the Central Government.

15. It is admitted on record that the reference in the facts of the case was made by the State Government to the Labour Court under Section 4-K of the U.P. Industrial Disputes Act, 1947 on 6.2.1998 which was registered as Adjudication Case No. 12 of 1998 and was transferred to the Labour Court U.P. at Kanpur-III on 24.5.2006 and allotted new registration No. as Adjudication Case No.105 of 2006.

16. It is held that on the date the reference was made it was the Central Government, which had the competence to make the reference under Section 10.

17. The Notification relied upon by the Counsel for the Workmen, dated 3.7.1998 is prospective in nature and will not infuse life in a dead reference which was made by the State Government on a date it was not competent to do so.

18. It has also been brought to the notice of the Court that the Notification, dated 3.7.1998 has since been withdrawn and as on date it is the Central Government which can refer the disputes in respect of Public Sector Undertakings are concerned.

19. Since the reference itself was bad, any decision thereon would fall automatically for want of authority."

19. Learned Counsel for the Workman on the other hand submits that the question in hand goes to the root of the matter, as it puts in issue the power of the State Government to make a reference. The Employers ought to have challenged the Order of reference, at the time it was made. He submits that no challenge at the stage of reference was laid through appropriate proceedings by the Employers, and now, after an Award has been made by the Labour Court, it is no longer open to question the jurisdiction of the State Government to make a reference under the State Act or the jurisdiction of the Labour Court, functioning under that Act, to pronounce the Award impugned. Learned Counsel for the Workman has submitted that mere mention of a wrong provision would not denude the Court of jurisdiction, which it otherwise has. In support his contention, reliance has been placed on the decision of this Court in Mahendra Yadav v. Om Prakash, 2006 (65) ALR 560. The said decision was rendered in the context of challenge to a compromise recorded in a Civil Suit by filing a Miscellaneous Civil Appeal instead of a regular Appeal under Section 96, C.P.C. Since both, a regular Appeal and a Miscellaneous Appeal would lie to the same Court, it was held in Paragraph 12 of the Mahendra Yadav (supra):

"12. The submission of the learned Counsel for the Appellant that instead of filing a Miscellaneous Appeal, a regular Appeal under Section 96, C.P.C., was filed and therefore the same was not maintainable needs to be noted. However, he could not dispute that even if a Miscellaneous Appeal would lie before the Court below and there will not be change of forum of the Appellate Court may be a regular Appeal or a Miscellaneous Appeal. Assuming for a moment that the said argument of the Appellant has some force it will not make any difference as it has been firmly established that mere mention of a wrong section will not make any difference if the Court had the jurisdiction to entertain and decide the Appeal."

20. It is next submitted that the question as to which Government is the Appropriate Government under the Central Act depends upon the fact as to which Government is responsible for maintaining industrial peace of the territory, in relation to a particular Industrial Dispute. Reliance has been placed on a decision of the Calcutta High Court in Novartis India, Ltd. v. State of West Bengal and others, 2004 (2) LLN 599 (Cal): 2004 (101) FLR 278. In Novartis India Ltd. (supra), the controversy was about, which State Government would have territorial jurisdiction over the Industrial Dispute, and in that context it was held:

"19. From the discussions made hereinabove and the decisions referred to hereinabove the following broad principles emerge:

(1) Head Office of a Company may be located in one State but it may have a branch in another State. The branch may be under the control of the head Office yet it is a separate branch engaged in an industry and is itself an industry being carried on by the Company as a separate Unit. Hindustan Aeronautics Ltd. case, 1979 (1) LLN 204 (vide supra)].

(2) If there is any disturbance of industrial peace at a branch Office located in a different State where considerable number of Workmen are working the appropriate Government concerned in the maintenance of industrial peace is the Government of that State where the branch is located. [Hindustan Aeronautics Ltd. case, 1979 (1) LLN 204 (vide supra)].

(3) If the parties to an Industrial Dispute reside within a State or if the subject-matter of the Industrial Dispute substantially arises within the State then the Government of that State will be the appropriate Government to make a reference under Section 10 of the said Act. Indian Cable Company, Ltd. (vide supra) Workmen of Sri Ranga Vilas Motors (Private) Ltd. case (vide supra)].

(4) Ordinarily, if there is a separate establishment and the Workman is working in that establishment, the Industrial Dispute will arise at that place [Workman of Sri Ranga Vitas Motors (Private), Ltd. case (vide supra)].

(5) There should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning, which the dispute arose: Workmen of Sri Ranga Vitas Motors (Private) Ltd. case (vide supra).“

22. There is no doubt that the State Government was competent and has jurisdiction and authority to refer the Industrial Dispute regarding termination of services of-

”(1) Sri Bikash Bhusan Ghosh;

(2) Sri Pradip Kumar Mukherjee; and

(3) Sri Shyama Charan Mallick to the Tribunal under Section 2-A of the said Act separabtely instead of referring the dispute separately the State Government by one reference had referred the matter to the Tribunal regarding Termination of services of the said Workmen.“

It is evident from the Order No.888-IR/IR/11L-11/95, dated 12 June, 1997 (Annexure P12 of the Writ Application), that the Government exercised the power under Section 10 read with Section 2-A of the said Act. It is not a case that Government had no jurisdiction to refer the Industrial Dispute under Section 10 read with Section 2-A of the said Act individually. A careful reading of Annexure P12 of the Writ Application shows that though the Industrial Disputes regarding termination of service of-

(1) Sri Bikash Bhusan Ghosh;

(2) Sri Pradip Kumar Mukherjee; and

(3) Sri Shyama Charan Mallick were referred to the Tribunal by a single order but the dispute referred to the Tribunal are Industrial Disputes separate from each other and each one is a dispute under Section 2-A of the said Act.

There was no inherent lack of jurisdiction of the State Government to refer those Industrial Disputes. At best it may be said that the reference made was irregular but such irregularity did not go to the root of the matter and therefore the order of reference was neither null and void nor even voidable. The objection raised by the Writ Petitioner is trivial and on hyper-technical grounds which should not be entertained by this Court exercising Writ jurisdiction.”

21. It is next contended by the learned Counsel for the Workman that where the reference of a dispute validly confers jurisdiction on the Labour Court or Tribunal, findings on jurisdictional facts recorded by the Labour Court are not open to interference by this Court under Article 226 of the Constitution. It is also urged that interference on a mere technical ground is not at all appropriate. In support of his contention, learned Counsel for the Workman has placed reliance upon a decision of the Supreme Court in Sadhu Ram v. Delhi Transport Corporation, 1983 (2) LLN 658 (SC): 1983 (4) SCC 156. In Sadhu Ram (supra), the legality of termination of services of the Workman, a Bus Conductor, was the subject matter of reference by the Delhi Administration to the Labour Court. It was urged on behalf of the Employer that the reference was incompetent, because the Workman had not raised any demand with the Management before moving the Conciliation Authority. It was contended, therefore, that there was no Industrial Dispute that could be referred. After the Award was made, the Employers challenged it in the High Court, where aforesaid contention of the Employers was accepted. Reversing the High Court, the Supreme Court held in Sadhu Ram (supra):

“2. .....The Management invoked the jurisdiction of the High Court of Delhi under Article 226 of the Constitution questioning the Award of the Labour Court. The High Court went into a learned discussion on what was an Industrial Dispute and what was a jurisdictional fact, a discussion which in our opinion was an entirely unnecessary exercise. In launching into a discussion on these questions needlessly, the High Court appeared to forget the basic fact that the Labour Court had given two categoric findings: (i) that the Union had raised a demand with the Management and (ii) that the termination of the services of the Workman was a mala fide and colourable exercise of power. Delving into the evidence as if it was an Appellate Court, and re-appreciating the evidence, the High Court thought that one of the documents upon, which the Labour Court had relied was a suspicious document; and the High Court went on to find that no demand had been raised and there was no Industrial Dispute, which could be properly referred by the Government for adjudication. On those findings a learned Single Judge of the High Court quashed the Award of the Presiding Officer of the Labour Court. The decision of the learned Single Judge was affirmed by a Division Bench. The Workman has come before us under Article 136 of the Constitution.

3. We are afraid the High Court misdirected itself. The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an Appellate Court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary Civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts, which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its Judgment for that of the Labour Court and hold that the Workman had raised no demand with the Management. There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an Industrial Dispute and referring it to the Labour Court.”

22. This Court has considered the rival submissions advanced. To the understanding of this Court, the propositions advanced on both sides, so far as the question in hand is concerned, do not do much to resolve it. The decisions relied upon by the learned Counsel for the Employers generally refer to cases where the Employers were a Central Government Company or an undertaking, where the Central Government had deep and pervasive control. It was in that context held in the decisions relied upon by the learned Counsel for the Employers that the Appropriate Government would be the Central Government, and the Labour Court or the Tribunal competent to decide, would be one appointed under the Central Act. In Section 2(dd) and 2(f) of the Working Journalists Act, a non-journalist newspaper Employee and a working journalist are defined as under:

"2. Definitions.-In this Act, unless the context otherwise requires,-

(a)

(b)

(c)

(d)

(dd) "non-journalist newspaper Employee" means a person employed to do any work in, or in relation to, any Newspaper establishment, but does not include any such person who-

(i) is a working journalist, or

(ii) is employed mainly in a managerial or administrative capacity, or

(iii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his Office or by reason of the powers vested in him, functions mainly of a managerial nature;]

(e)

[(ee)

(f) "working journalist" means a person whose principal avocation is that of a journalist and [who is employed as such, either whole-time or part-time, in, or in relation to, one or more Newspaper establishments], and includes an editor, a leader-writer, news-editor, sub-editor, feature-writer, copy-tester, reporter, correspondent, cartoonist, news-photographer and proof-reader, but does not include any such person who-

(i) is employed mainly in a managerial or administrative capacity; or

(ii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his Office or by reason of the powers vested in him, functions mainly of a managerial nature;"

23. Section 3 of the Act under reference provides:

"3. Act 14 of 1947 to apply to working journalists.-(1) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall, subject to the modification specified in sub-section (2), apply to, or in relation to, working journalists as they apply to, or in relation to, Workmen within the meaning of that Act.

(2) Section 25-F of the aforesaid Act, in its application to working journalist, shall be construed as if in Clause (a) thereof, for the period of notice referred to therein in relation to the Retrenchment of a Workman, the following periods of notice in relation to the Retrenchment of a working journalist had been substituted, namely:

(a) six months, in the case of an editor, and

(b) three months, in the case of any other working journalist."

24. Also, relevant would the provisions of Sections 14 & 15 occurring in Chapter III of the Working Journalists Act, that read:

"14. Act 20 of 1946 to apply to Newspaper establishments.-The provisions of the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), as in force for the time being, shall apply to every Newspaper establishment wherein twenty or more Newspaper Employees are employed or were employed on any day of the preceding twelve months as if such newspaper establishment were an industrial establishment to which the aforesaid Act has been applied by a Notification under sub-section (3) of Section 1 thereof, and as if a Newspaper Employee were a Workman within the meaning of that Act.

15. Act 19 of 1952 to apply to Newspaper establishments.-The Employees' Provident Funds Act, 1952 (19 of 1952), as in force for the time being, shall apply to every Newspaper establishment in, which twenty or more persons are employed on any day, as if such newspaper establishment were a factory to which the aforesaid Act had been applied by a Notification of the Central Government under sub-section (3) of Section 1 thereof, and as if a newspaper Employee were an Employee within the meaning of that Act."

25. A conjoint reading of the aforesaid provisions together with the preamble of the Act shows that it is statute brought 'to regulate certain conditions of service of working journalists and other persons employed in Newspaper establishments', to borrow the precise phraseology of the preamble. The Working Journalists Act is, thus, by no means a wholesome or a complete legislation, governing or regulating the entire gamut of service conditions of working journalists and other Newspaper Employees. Section 3 of the Act, under reference, clearly shows that to working journalists, who are otherwise not Workmen within the meaning of the Central Act, the provisions of the Central Act have been extended by virtue of sub-section (1) of Section 3 in the same manner as they apply to Workman, subject to modifications, detailed in sub-section (2) of Section 3. The effect of Section 3 is that working journalists, as defined under the Working Journalists Act, who are not otherwise Workmen, would be treated to be so and extended all benefits available to Workmen under the Central Act, subject to modifications provided under sub-section (2) of Section 3.

26. It must be remarked that so far as working journalists are concerned, it is not the intendment of Section 3 on a plain reading of the Statute or any construction of its terms that in their case, the Appropriate Government, under the Central Act, would be the Central Government alone. Section 3 of the Working Journalists Act extends application of the provisions of the Central Act to working journalists as they occur in the latter Statute, subject to the modifications envisaged under sub-section (2) of Section 3 of the Working Journalists Act. Now, under the Central Act, it is not in every case that the Appropriate Government, in relation to Workmen governed by that Act, is the Central Government alone. Rather, a reading of the definition of the 'Appropriate Government', under Section 2(a)(i) and (ii) would show that under sub-clause (i) of Clause (a) of Section 2, there are enumerated specific categories or named Employers in relation to whose Workmen, the Appropriate Government would be the Central Government. Sub-clause (ii) of Clause (a) of Section 2 shows it to be a residual Clause, which says that in relation to any other Industrial Dispute, the State Government would be the Appropriate Government. A newspaper establishment as defined under Section 2(d) of the Working Journalists Act or by way of any other reference, does not find mention in sub-clause (i) of Clause (a) of Section 2 of the Central Act. Thus, a Newspaper establishment would clearly fall under sub-Clause (ii) of Clause (a) of Section 2, making the Appropriate Government, in relation to a Newspaper establishment, the State Government.

27. It is not the Employers' case that they are a Company in which not less than 51% of the paid-up share capital is held by the Central Government or a subsidiary Company set up by a Principal Undertaking or Autonomous Body owned and controlled by the Central Government. Thus, the case of the Employers would clearly be governed by sub-clause (ii) of Clause (a) of Section 2 of the Central Act, where in relation to a working journalist employed with them, the State Government would the Appropriate Government under the Central Act. It is, therefore, a fallacious proposition for the Employers to urge that since working journalists are treated to be Workmen under the Central Act by virtue of Section 3 of the Working Journalists Act, the Appropriate Government in case of working journalists employed with them, would be the Central Government. In the opinion of this Court, it would be the State Government under the Central Act.

28. The question, however, remains whether a junior plate maker employed with a Newspaper establishment is a Workman by virtue of Section 3 of the Working Journalists Act, alone. To the understanding of this Court, the more pertinent issue would be whether a junior plate maker is at all a working journalist, and if not, is he still a Workman, either under the Central Act or the State Act?

29. A working journalist has been defined under Section 2(f) of the Working Journalists Act, the terms of which have been extracted above. A reading of the definition of the working journalist shows that it defines in substance and in general terms who a working journalist is, and then in the later part, furnishes illustrative categories of Newspaper Employees, who would qualify for working journalists. The categories indicated are inclusive and illustrative; not exhaustive. There is, in the last part of the definition, a Clause, that would exclude anyone, who qualifies under the first part as a working journalist from that category.

30. Now, what is to be seen is, whether a plate maker qualifies as a working journalist, under Section 2(f) of the Working Journalists Act? A working journalist is primarily defined as a person whose principal avocation is that of a journalist, but the word journalist is nowhere defined in the Statute. Therefore, the import and meaning of the word 'journalist' has to be understood according to its ordinary meaning, falling back for its definition on extrinsic sources. The Cambridge International Dictionary of English (published by the Press Syndicate of the University of Cambridge) defines the word 'journalist' as, “a person, who writes news stories or articles for a Newspaper or magazine, or broadcasts them on radio or television.” The essence of the avocation of journalism is literary or intellectual contribution made to print or electronic media in the form of news, stories, articles or Photographs and the like, in some form or the other. The specific illustrations in the inclusive list of who a journalist is, under Section 2(f) of the Working Journalists Act, answer the above description of a journalist as understood in ordinary parlance. It is, thus, a journalist, employed, as such, with a newspaper establishment, who alone can qualify as a working journalist under the Act, last mentioned. The illustrative categories of Employees are all functionaries, who are bound by a common thread about their different functions in a newspaper establishment-the common thread being their literary or intellectual contribution to newspaper publication, in one way or the other. Clearly, therefore, other functionaries or Employees working in the Newspaper establishment, who do not qualify for a journalist, judged on the essence of their function, would not be working journalist under the Working Journalists Act.

31. A plate maker by the nature of his functions is a technical hand, engaged in the working of the newspaper press. He has no literary or intellectual contribution to make to the contents of the Newspaper at all. He is a part of the technical process of printing. In this connection, the best evidence to hold that a plate maker is not a working journalist are the recommendations of the Manisana Wage Board, that was constituted in September, 1994 by the Central Government in exercise of their powers, under Sections 9 & 13-C of the Working Journalists Act. The recommendation of the Manisana Wage Board were accepted by the Central Government on 25th July, 2000, in exercise of their powers under Section 12 of the Act, last mentioned. The recommendations were published in the Gazette of India Extraordinary, dated 5th & 15th December, 2000. These recommendations were subject matter of challenge before different High Courts, but ultimately came to be notified by the Central Government, in the Gazette of India Extraordinary, dated 14th May, 2019, enforcing the recommendations of the Wage Board in terms of the two Notifications, originally accepting them, as these were in force immediately before 1st February, 2006. The circumstances leading to the first acceptance of the recommendations of the Manisana Wage Board through the two Notifications of 5th and 15th December, 2000, the subsequent quashing of these Notifications, the history of the legal challenges laid and their result, leading to the eventual acceptance and publication of the Manisana Wage Board recommendations are detailed in the Gazette of India, dated 14th May, 2019.

32. The Manisana Wage Board Award broadly classifies Employees of newspaper establishments into three categories. Paragraph 8 of the Wage Board Recommendations speaks about working journalists in the regular cadre, to wit, full time Employees in newspaper establishments, whose details are indicated in the First Schedule to the Wage Board Recommendations. In the Second Schedule read with Paragraph 8 of the Wage Board Recommendations, functional definitions of various categories of working journalists are explained and defined. In the Third Schedule to the Wage Board Recommendations read with Paragraph 8(2), non-journalist newspaper Employees, who are administrative staff in the newspaper establishment find mention with reference to their varying designations. These non-journalist Employees in the administrative staff are divided into eight groups, as detailed in the Third Schedule. The Fourth Schedule read with Paragraph 8(3) of the Wage Board Recommendations, carries a very detailed list of another category of Employees in the newspaper establishment, who have been called the 'Factory Staff'. The Factory Staff have been classified into seven groups. Three designations of Employees falling in the category of Factory Staff, mentioned in Group 1-A are Nylo Plate Maker, Off-Set Plate Maker and Plate Maker (Colour). Likewise, in Group 2 of the Factory Staff, an Employee designated as Assistant Plate Maker (Colour) finds place. The note, appended to the Fourth Schedule to the Wage Board Recommendations, reads thus:

"Note: (1) Any Newspaper Employee employed with any designation different from those enumerated in the schedules, the doing the same or similar job or same or similar nature of job of any group in the schedule, shall be deemed to be a non-journalist in that group.

(2) All categories of Employees mentioned in the schedule may or may not exist in every class of newspaper establishment.

(3) Categorization of missing category of employment, if any, should be mutually decided by the Employees and the Management through bilateral agreement."

33. To the understanding of this Court, the designation of a Workman as a 'junior plate maker' involves a job similar to that of either the Nylo Plate Maker or Offset Plate Maker or Plate Maker (Colour) or Assistant Plate Maker (Colour), detailed in Groups 1-A & 2 of the Fourth Schedule to the Wage Board recommendations. No suggestion to the contrary has come from the Employers, which may show that a 'junior plate maker' is not part of the Factory Staff, as classified by the Manisana Wage Board. The classification of plate makers of different kinds as factory staff by the Manisana Wage Board, makes it explicit that the Workman is not a working journalist, within the meaning of the Working Journalists Act.

34. The question, "whether the Katibs are working journalists under the definition of "calligraphists" as prescribed by the Wage Board and whether they are entitled to rates of Wages as prescribed for calligraphists under Government Notification No.80-3883, dated the 26th October, 1967, and if so, what directions are necessary in this respect?" was the precise reference made to the Labour Court, that travelled to the Supreme Court, and fell for their Lordships' decision in the Management of the Daily Pratap v. Their Katibs, 1972 (2) SCC 342. Since the word, 'Katib' did not find place in the recommendations of the Wage Board, their Lordships examined the conclusions based on evidence and the law, recorded by the Labour Court that the nature of the 'Katibs' work was journalistic. The Katibs satisfied the requirements of the definition of "calligraphists" carried in the Wage Board Recommendations. There was still some contention before their Lordships as to whether the principal avocation of a calligraphist is that of a journalist, so as to satisfy the test of Section 2(f) of the Working Journalists Act. The said question was answered in Daily Pratap (supra) thus:

"23. It needs no explanation to say that the above reading will not be a very happy one. When once the Wage Board has given the definition of a Calligraphist and included persons coming under that category in the definition of a "working journalist" the only test to be applied will be whether the person concerned satisfied the requirements of the definition given by the Wage Board. We have already referred to the fact that it is no longer open to the Appellant to question the jurisdiction of the Wage Board when it included Calligraphists in the definition of "Working Journalist". Once the jurisdiction of the Wage Board is conceded, the approach to be made is only to find out whether a person, who claims to be a Calligraphist satisfies the definition as given by the Wage Board. No doubt the definition of Calligraphist will have to be read along with the definition of "Artist" given by the Wage Board. We have already held that the Labour Courts' finding that Katibs are Artists as defined by the Wage Board is correct."

The present case does not involve an issue where the Wage Board Recommendations do not at all refer to plate makers and their identity has to be correlated with some other descriptions of employment, as in the case of the Katibs. Four different kinds of plate makers have been described by the Manisana Wage Board, as factory staff in the newspaper establishment. Applying the principle in Daily Pratap (supra), it is safe to assume that the classification of plate makers of whatever kind is that of Factory Staff, who are not journalists in the Newspaper establishment.

35. In fact, the title of the Act and its preamble clearly indicate that it applies both to working journalists and other persons employed in the Newspaper establishment. Section 3(1) of the Working Journalists Act, however, extends the application of the Central Act to working journalists alone, providing that the Central Act would apply to working journalist in the same manner as it would apply to Workmen within the meaning of the last mentioned Act. But, does that mean that the Central Act or for that matter the State Act, would not apply to other Employees, even if they otherwise qualify for Workmen under those Statutes. This Court does not think so. Clearly, going by the nature of duties of the Workman and the Wages drawn by him, he qualifies for a Workman under Section 2(f) of the Central Act and also under Section 2(z) of the State Act.

36. It has not at all been seriously disputed by the Employers that a Newspaper establishment would not be 'industry' within the meaning of Section 2(j) of the Central Act or under Section 2(k) of the State Act. The Workman would, therefore, qualify for a 'Workman', both under the Central Act and State Act, de hors the provisions of the Working Journalists Act.

37. The view that this Court takes finds support in a Division Bench decision of the Orissa High Court in Pratap Chandra Mohanti v. General Manager, United News of India and another, 1993 Lab IC 919, In Pratap Chand Mohanti (supra) speaking for the Division Bench, B.L. Hansaria, C.J. (as His Lordship then was) held:

"11. We have duly considered the aforesaid submission of Sri Mohanty and, according to us, it would be difficult to say that the benefit of the Industrial Dispute Act would not be available to Newspaper Employees other than working journalists even if they be Workmen within the meaning of that Act. As to S. 3(1) of the Working Journalist Act, we would say that the provision in that Section making the Industrial Disputes, Act applicable to working journalists cannot be taken to be that the said Act would not apply to other newspaper Employees. Section 3(1) might have been enacted to make it abundantly clear that the Industrial Disputes Act would apply to working journalists even if they may not satisfy the definition of "Workman" as given in the Industrial Disputes Act. It is worth pointing out in this connection that a working journalist as defined in Section 2(f) of the Working Journalists Act may not be a "Workman" if the definition of that expression as given in the Industrial Disputes Act were to apply to him. The Legislature, however, wanted the benefits of the Industrial Disputes Act to be made available to working journalists and it is perhaps because of this that Section 3(1) was inserted in the Act. This apart, reference to Section 3(1) shows that certain modifications were made in the provisions of the Industrial Disputes Act in their application to working journalists. We do not think if we would be justified in denying the benefits of a Statute as important as the Industrial Disputes Act to other categories of Newspaper Employees, if otherwise they be Workmen within the meaning of that Act, because of what has been provided in Section 3(1) of the Working Journalists Act.

12. As to the application of the two specific Acts to Newspaper Employees because of what has been provided in Sections 14 & 15 of the Working Journalists Act, we would say that these two Sections were enacted to make the two Acts in question applicable to Newspaper establishments because de hors these provisions, those Acts might not have applied to such establishments. The Legislature, however, wanted to give the benefit of those Acts to all Newspaper Employees. It may be pointed out that Sections 14 & 15 have referred to the application of the two Acts in question to "every Newspaper establishment" and not to "Newspaper Employees." Of course, by making these two Acts applicable to all Newspaper establishments, the benefits of the same were conferred on all Newspaper Employees. This does not mean that the Legislature wanted to rob the Newspaper Employees of the benefits of other Acts. According to us, no such conclusion can be drawn on the basis of what has been provided in Sections 14 & 15 of the Working Journalists Act."

38. The Workman in this case is, therefore, a Workman, both under the Central Act and the State Act as he satisfies the definition of a Workman under both the Statutes, independent of the provisions of the Working Journalists Act. The Employers here being not an industry carried on by or under the authority of the Central Government or one, who fall under any of the specified categories or named establishment, authorities or bodies, mentioned under Section 2(a)(i) of the Central Act, the Appropriate Government would be the State Government in accordance of the provisions of Section 2(a)(ii) of the Act, last mentioned. Accordingly, reference of the dispute under Section 4-K of the State Act is valid and competent. Since the reference under Section 4-K of the State Act is competent, the further question, "Whether the Labour Court/Industrial Tribunal constituted under the Central Act alone is competent to answer a reference in relation to the Workman?" is not required to be answered.

39. Now, turning to the other question, that relates to the jurisdiction of the Labour Court as a Court of the referred jurisdiction, the contention of the learned Counsel for the Employers is that the Labour Court has no jurisdiction to go into the validity or question of closure on a reference about termination, that does not refer to closure. His submissions on the point have been noticed hereinbefore. The learned Counsel for the Workman, on the other hand, submits that the reference is cast in terms wide enough to clothe the Labour Court with jurisdiction to examine whether the closure is mere sham and a camouflage to terminate the Workman's services. This legal issue, according to Mr. Sharma, learned Counsel for the Workman, is to be examined in the Foreshadow of the fact that it is not a case where the entire Unit of the Employers has been closed down. It is a case where a particular Department, to wit, the process Department, has been allegedly closed on account of introduction of a new technology. The new technology is a C.T.P. Machine, which according to the Employers has done away with the process of manual plate making. The Employers say that the C.T.P. Machine is a computerized machine, that has rendered the process Department dysfunctional. It is on that account that the Workman along with a total of six others, circumstanced like him, have had their services dispensed with.

40. Learned Counsel for the Workman submits that the Labour Court has found on the basis of evidence that the 'process' is an intermediate step in the publication of a Newspaper. Formerly, the process involved was that after finalization of layout of an issue, the process Department made an aluminium plate thereof which was utilized in printing the Newspaper. All that the C.T.P. Machine has done is that in substitution of manual plate making, the job is done employing the Machine. The Labour Court has concluded that the work of plate making, that was formerly done, is still being done after installation of the C.T.P. Machine. The C.T.P. Machine is operated by a man. As such, plate making still involves employment of manpower. The Labour Court has concluded that evidence clinchingly shows that whatever work was done in the process Department, involving plate making, continues to be done after the installation of the C.T.P. Machine; the method alone has changed. Plates are still made. The Labour Court has finally concluded that on account of installation of the C.T.P. Machine, the entire work of the process Department has not come to an end. It has further been held that if the process Department were to be held an undertaking (of the Employers), the undertaking has not closed; the method of operation has changed. Mr. Sharma emphasizes that the Labour Court has concluded, after a very detailed analysis of evidence, particularly, regarding other Units of the Employers, where the same C.T.P. Machine has been installed with retention of existing Employees in the process Department of those Units, that the closure is a camouflage to terminate the Workman's services of 17 years and more; it constitutes retrenchment. Learned Counsel for the Workman urges that termination of services of the Workman, that is essentially Retrenchment and not a bona fide closure of the Employers' Unit or a part thereof or an undertaking of theirs, could well be examined on the terms of the reference made to the Labour Court. He submits, to add, that the word 'Termination' is a word of wide import, that would take within its fold any kind of determination of employment, including closure.

41. In support of his contention, learned Counsel for the Workman has placed reliance upon a decision of this Court in Triveni Glass Ltd. v. State of U.P. and others, 2008 (3) All LJ 420. In that case, on the basis of a settlement between the Employers and their Workmen, the dispute referred to arbitration of the Deputy Labour Commissioner, under Section 5-B of the State Act was in terms whether the termination of services of 50 Workmen of Plant No.1 was justified or legal, and if not, to what relief, the Workmen were entitled. The Employers had pleaded closure. The Arbitrator found that the services of the Workmen were terminated on account of illegal closure of Plant No.1 without securing permission of the State Government, under Section 6-W read with Section 6-V of the State Act. The Arbitrator awarded reinstatement with full Back Wages. One of the grounds of challenge to the Award of the Arbitrator was that he had travelled beyond the reference and decided the validity of closure, which was not a question referred to him. Certain decisions of their Lordships of the Supreme Court were relied on by the learned Counsel for the Employers in that case to fortify his stand that the Arbitrator could not have gone into the validity of closure while answering a reference, that spoke of termination alone. It is pointed out by the learned Counsel for the Workman that this Court in Triveni Glass Ltd., (supra) repelled the said contention and held:

"6. The Petitioner's Counsel submitted that the Arbitrator has decided the question of validity of the closure, which was not a question referred to him nor was the closure ever challenged before any forum. In support of his contention that the Arbitrator cannot decide an issue, which has not been referred to him, reliance was placed by the learned Counsel upon three decisions: (1) Firestone Tyre & Rubber Co. of India (P) Ltd. v. Workmen Employed rep. by Firestone Tyre Employee's Union, 1981 (3) SCC 451: AIR 1981 SC 1626 (Para 9)], (2) Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd., 19789 (10 LLN 336 (SC): 1979 (3) SCC 762: AIR 1979 SC 1356 (Para. 11)] and Delhi Cloth and General Mills Co. Ltd. v. Workmen, AIR 1967 SC 469 (Para 9)]

7. What has been held in these decisions by the Apex Court is that the Tribunal is required to confine its decision to the points of reference and matters incidental to them. In the Firestone Tyre & Rubber Co. of India (P) Ltd. Case 1981 (3) SCC 451: AIR 1981 SC 1626) (supra) the dispute about the validity of the dismissal from service of the Workmen was referred and it was held that the Tribunal acted beyond the terms of reference when it considered the question of Unfair Labour Practice or discrimination by the Employers in reinstating some of the Workmen. The Apex Court held that this subsequent act of reinstatement of the Workmen was irrelevant for adjudging the validity of the earlier dismissal and when no issue on the alleged discrimination had been framed. In Pottery Mazdoor Panchayat (supra) case 1979 (3) SCC 762: AIR 1979 SC 1356) it was held that the Tribunal was not entitled to enter into the question as to the fact of closure when the reference was whether the closure was proper and justified. In the D.C.M. Case, AIR 1967 SC 469) (supra) it was held that where the dispute referred was whether the strike and the sit down strike were legal or justified the Tribunal had to proceed on the footing that there was a strike and sit down strike and it could not go into the question whether there was or was not a strike or a sit down strike. It was held that the Tribunal could not enlarge the scope of the reference. In the present case the terms of reference are very wide. It is in three parts viz., (i) whether the termination of the services of the Workmen was legal,

(ii) whether the termination of the services of the Workmen was justified and (iii) what relief, if any, to which the Workmen were entitled to.

8. The expression 'Termination' is wide enough to cover every kind of termination of the services of an Employee whether on account of dismissal or by way of Retrenchment or by way of closure. The dictionary meaning of the word 'termination' in the New Lexicon Webster's Dictionary of the English Language is as follows:

"Termination-n.a terminating or being terminated if the end something in space or time, at the termination of the examination, (gram.) the final sound, letters or syllable of a word [fr. L. termination (terminations)]"

9. The terms of reference relating to the termination of the services of the Workmen is therefore wide enough to cover every kind of termination of services including termination of services by way of closure and it was therefore open to the Arbitrator to enter into the question of legality of the closure for answering the reference. In Agra Electric Supply Company Ltd., Agra v. Workmen, 1983 SCC (L & S) 210, one of the contentions advanced was that the terms of reference did not cover the question of payment of gratuity and therefore the Award of the Tribunal was bad. Dealing with the contention, the Apex Court held in Para 2 of the Judgment which is as follows:

"2. It is useful to examine the terms of reference. There are two disputes and two references, but it is enough if one of them is reproduced:

Whether the Employers have retired their Workmen Sri Peerbux (son of Sri Inam Bux) Bank Peon and Sri Sahadat Ali (son of Sri Banne Ali) Coolie, Maintenance Department, by their Orders, dated May 30, 1970 (copies attached) in a justified and/or legal manner? If not, then to what benefit/ Compensation are the Workmen entitled and with what details?

It is plain that Industrial jurisprudence is an alloy of law and social justice, and one cannot be toopedantic in constructing the terms of a. reference respecting a dispute for Industrial adjudication. Liberally viewed, we are left with the impression that the Tribunal's construction of the terms of reference is correct. The question referred may be dichotomized. Was the Retirement of the Workmen legal and justified? If not, what Compensation was payable to them? The first limb of the reference contains the pregnant impression "justified". It is one thing to say, speaking in terms of industrial jurisprudence that an action is legal. It is another thing to say that it is justified. When the reference is Comprehensive enough to cover both these concepts, it is within the jurisdiction of the Tribunal to investigate into whether the Retirement is legal and, if legal, whether it is also justified. In the ordinary law of contracts, when a thing done is legal there is an end of the matter but in industrial law the rigid rules of contract do not govern the situation and an amount of flexibility in the exercise of powers taking liberties with the strict rights of parties is permitted to Tribunals. Relying on a series of decisions of this Court for this wider ambit of jurisdiction permissible in industrial adjudication, the Tribunal has held that the grievance of the Workmen that their services should come an end by way of Retirement without payment of gratuity in real and substantial and that pragmatic considerations justify a direction for payment of Gratuity more or less prevalent in many industries in this region. This approach is informed by social direction for payment of Gratuity. We read the Award in a composite and Comprehensive sense as an Award that the Retirement is justified if it is accompanied by payment of Gratuity. The dissection attempted in the submission made by learned Counsel is a distortion of the true intendment of the award. In this view, we think there is no substance in the first contention“

10. In State Bank of India v. N. Sundra Money, 1976 (32) FLR (SC) 197: 1976 (1) SCC 822: AIR 1976 SC 1111) while considering the case of Retrenchment under Section 2(oo) of the Industrial Disputes Act, 1947 the Apex Court held as follows:

”A break-down of Section 2(oo) unmistakably expands the semantics of Retrenchment. Termination for any reason whatsoever are the key words. Whatever the reason, every termination spells retrenchment. So the sole question has the Employee's service been terminated? Verbal apparel apart, the substance is decisive. A termination is where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of Comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the Employer, but the fact of termination however produced, may be, the present may be a hard case, but we can visualize abuses by Employers, suitable verbal devices, circumventing the armor of Section 25-F and Section 2(oo).“

11. For the purpose of deciding whether the termination of the services of the Workmen in this case was legal, the Arbitrator could therefore have gone into the question whether the closure was legal or not if the services of the Workmen had been terminated on account of closure. As to whether termination of the Workmen's services was the direct result of closure is a question, which can be answered with reference to the pleadings of the parties relating to the nature of the dispute between them.” (Emphasis by Court)

42. This Court has carefully considered the submissions advanced by learned Counsel for both parties. It is true that the expression 'termination' is a word of wide import and termination of a Workman's services, in whatever manner effected, would constitute Retrenchment under the State Act as well as the Central Act, except those specific classes or contingencies of termination, which the Statute excludes from the definition of Retrenchment. Retrenchment is defined under Section 2(s) of the State Act, which reads as follows:

“Section 2. Definitions.-

(s) 'Retrenchment' means the termination by the Employer of the service of a Workman or any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-

(i) Voluntary Retirement of the Workmen; or

(ii) Retirement of the Workmen on reaching the age of Superannuation if the contract of employment between the Employer and Workman concerned contains a stipulation in that behalf;”

43. The question, whether on a reference about the validity of termination of services of the Workman, made under Section 4-K of the State Act, the validity or the issue of closure, could be examined, fell for consideration of this Court in Mohd. Sarwar v. State of U.P. and others, 2013 (6) AWC 6169. This Court in Mohd. Sarwar (supra) held:

“17. In order to appreciate the rival stand of the learned Counsel for the parties, it would be appropriate to refer to certain provisions of the U.P. Industrial Disputes Act. Section 2(s) defines”Retrenchment“as under:

”(s) 'Retrenchment' means the termination by the Employer of the service of a Workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-

(i) Voluntary Retirement of the Workmen; or

(ii) Retirement of the Workmen on reaching the age of Superannuation if the contract of employment between the Employer and Workman concerned contains a stipulation in that behalf;

18. Section 6-N of the U.P. Industrial Disputes Act provides a procedure for Retrenchment of Workman, which is extracted herein under:

“6-N. Conditions precedent to Retrenchment of Workmen.-No Workman employed in any Industry, who has been in continuous service for not less than one year under an Employer shall be retrenched by that Employer until,-

(a) the Workman has been given one month's notice in writing indicating the reasons for Retrenchment and the period of notice has expired or the Workman has been paid in lieu of such notice Wages for the period of the notice;

Provided that no such notice shall be necessary if the Retrenchment is under an agreement which specifies a date for the termination of service;

(b) the Workman has been paid, at the time of Retrenchment, Compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the State Government.”

19. Section 6-W of the U.P. Industrial Disputes Act provides procedure for closure of an undertaking, which is also extracted hereunder: (quotation omitted)

20. The definition of “Retrenchment” is divided into two parts. The first part lays down that “Retrenchment” means the termination of the services of a Workman by the Employer for any reason whatsoever otherwise than by way of punishment inflicted by way of a disciplinary action. The second part of the definition further excludes Voluntarily Retirement of the Workman or Retirement on reaching the age of Superannuation.

21. The words “for any reason whatsoever” would include termination on account of closure of the establishment is no longer res integra and this issue has been decided by a Constitutional Bench of the Supreme Court.

22. In Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills' Mazdoor Union, 1957 (1) LLJ 235, the Supreme Court dealt with the question whether the discharge of the Workman on the closure of the undertaking would constitute Retrenchment or not and whether the Workmen were entitled for Retrenchment Compensation. The Supreme Court observed:

“But Retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the Labour force is discharged as surplusage and the termination of services of all the Workmen as a result of the closure of the business cannot, therefore, be properly described as Retrenchment.”

23. Based on these observations, the Constitutional Bench of the Supreme Court in Hariprasad Shiv shankar Shukla v. A.D. Divelkar, AIR 1957 SC 121, explained further the meaning of the word “Retrenchment” as defined under Section 2(oo) of the Industrial Disputes Act, which is more or less the same as defined under Section 2(s) of the Act. The Supreme Court observed that the expression “for any reason whatsoever” though wide must necessary draw within its ambit, not any act of commission and omission on the part of the Employers, but the concept of termination of the surplus workers' services due to reason such as economy rationalisation in industry, installation of new Labour saving machinery or devices, standardisation or improvement of plant or technique or the like.

24. The Supreme Court held that the words “for any reason whatsoever” must be read and construed as such. The Supreme Court after considering the definition of “Retrenchment” as defined under Section 2(s) of the Act concluded that the entire scheme of the Act to give the definition clause relating to “Retrenchment” such a meaning as would include within the definition termination of services of all Workman by the Employers when the business itself ceases to exist, meaning thereby that “Retrenchment” means discharge of surplus Workmen in an existing or continuing business and does not include “Retrenchment” of workers on a bona fide closure of business. The Supreme Court, accordingly, held:

“For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court, that Retrenchment as defined in Section 2(oo) and as used in Section 25-F has no wider meaning than the ordinary, accepted connotation of the word: it means the discharge of surplus Labour or Staff by the Employer for any reason whatsoever, otherwise than as a punishment inflicted by way of Disciplinary Action, and it has no application where the services of all Workmen have been terminated by the Employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all Workmen have been terminated by the Employer on the business or undertaking being taken over by another Employer in circumstances like those of the Railway Company.”

25. Pursuant to the decision in Hari Prasad's case, AIR 1957 SC 121 (supra) the Legislature amended the Industrial Disputes Act by Amending Act No.18 of 1957 and incorporated the present Sections 25-F & 25-FFF of the Industrial Disputes Act, which made provisions for notice and for payment of Compensation or payment of Wages in lieu of notice and Compensation to be given to a Workman discharged from service on a transfer or closure of an Industrial undertaking as if the Workman had been retrenched. Similar provisions of Sections 6-N & 6-W was also incorporated under the U.P. Industrial Disputes Act, but, the definition Clause 2(s) of the of the U.P. Industrial Disputes Act or 2(oo) of the Industrial Disputes Act was not amended. Consequently, this Court is of the opinion, that even after the amendment of the Act by the Amendment Act, 1957, the interpretation of "Retrenchment" as given by the Supreme Court in the Constitution Bench decision in Hari Prasad case (supra) remains the same, which means that Retrenchment necessarily postulate termination of the Employees service in an existing running industry and that Retrenchment does not postulate Retrenchment where there has been a valid closure of an undertaking or an establishment.

26. This view of mine is fortified by a decision of the Supreme Court in H.P. Mineral and Industrial Development Corporation Employees' Union v. State of H.P., 1996 (7) SCC 139, wherein the Supreme Court observed that in view of the fact that Section 25(O) of the Industrial Disputes Act (relating to closure) had been struck down and the amended provision had not come into existence and was not in operation on the day of the closure of the industry, the workers could not invoke the protection of Section 25-N of the Industrial Disputes Act, (which relates to Retrenchment Compensation) and that the only protection that was available to them was that contained in Sections 25-FFA & 25-FFF, which relates to payment of closure Compensation. The Supreme Court observed:

"We are unable to accept this contention. It is no doubt true that in Section 2(oo) the expression 'Retrenchment' is defined to mean the termination by the Employer of the service of a Workman for any reason whatsoever otherwise then as a punishment inflicted by way of Disciplinary Action and categories referred to in Clauses (a) to (c) have been expressly excluded from the ambit of the said definition. But as far back as in 1957 a Constitution Bench of this Court in Hariprasad Shiv shankar Shukla v. A.D. Divikar had laid down that 'Retrenchment' under Section 2(oo) of the Act would not cover termination of services of all Workmen as a result of the closure of the business. The said decision was considered by the Constitution Bench of this Court in Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, 1990 (3) SCC 682), wherein it has been observed SCR (pp. 140-42, 143 & 152-53: SCC pp. 709, 710 & 718-19, Para's 52, 53 & 76).

... ... ...

Mr. V.A. Bobde submits, and we think rightly, that the sole reason for the decision in Hariprasad was that the Act postulated the existence and continuance of an Industry and where the Industry i.e., the undertaking, itself was closed down or transferred, the very substratum disappeared and the Act could not regulate industrial employment in the absence of an industry. The true position in that case was that Sections 2(oo) and 25-F could not be invoked since the undertaking itself ceased to exist.

... ... ...

The Judgments in Sundara Money, 1976 (1) SCC 822: AIR 1976 SC 111) (supra) and the subsequent decisions in the line could not be held to be per incuriam inasmuch as in Hindustan Steel 1976 (4) SCC 222: AIR 1977 SC 31, and Santhosh Gupta's cases, 1980 (3) SCC 340: AIR 1980 SC 1219), the Division Benches of this Court had referred to Hariprasad's case and rightly held that its ratio did not extend beyond a case of termination on the ground of closure and as such it would not be correct to say that the subsequent decisions ignored a binding precedent.

and further held-

“From the aforementioned observations it is evident that the definition of”Retrenchment“as defined in Section 2(oo) of the Act has to be read in the context of Section 25-FF and 25-FFF of the Act and if thus read 'Retrenchment' under Section 2(oo) does not cover termination of service as a result of closure or transfer of an undertaking though such termination has been assimilated to Retrenchment for certain purposes, namely, the Compensation payable to the Workmen whose services are terminated as a result of such closure. In that view of the matter Section 25-N, which deals with Retrenchment cannot apply to the present case where termination of the services of the Workmen was brought about as a result of the closure of the undertaking.”

27. In the light of the aforesaid, it is clear that the words “for any reason whatsoever” in Section 2(s) of the Act does not include closure of an establishment and, consequently, termination of the services of the Workman on account of closure of an establishment does not amount to Retrenchment.

29. The reference order is clear and explicit, namely, whether the Employer's were justified in terminating the services of the Workman. The validity and legality of the Order of Termination was referred to the Labour Court. It was urged that the validity and legality of the closure of the establishment can also be considered and looked into by the Tribunal while deciding the validity and legality of the Order of Termination under the referring order. According to the Petitioner, this is an incidental question, which can be considered and that the powers of the Tribunal is wide enough to decide such question while moulding the reliefs.

30. In this regard before the proceeding further, the provisions of Section 4-K of the U.P. Industrial Disputes Act be looked into and compared with the provisions of Section 10 and Section 10(4) of the Industrial Disputes Act. For facility, Section 4-K of the U.P. Industrial Disputes Act is extracted hereunder:

“4-K. Reference of disputes to Labour Court or Tribunal.-Where the State Government is of opinion that any Industrial Dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute to a Labour Court, if the matter of Industrial Dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication.

Provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred Workmen, the State Government may, if it so thinks fit, make the reference to a Labour Court.”

31. A perusal of the aforesaid indicates that the State Government may by an order in writing refer the dispute or any matters appearing to be connected with or relevant to the dispute. The language of Section 4-K of the Act is very clear, namely, that the dispute has to be referred in writing so that parties are aware of the terms of the referring order and the Tribunal is aware of its jurisdiction to decide the matter. It is settled law that the Tribunal gets the power from the reference order and that it cannot travel beyond the referring order. Therefore, the dispute is required to be referred or any matter, which is connected or relevant to the main dispute is also required to be referred in writing.

33. Section 10 of the Industrial Disputes Act indicates that the State Government can refer a dispute by an order in writing for adjudication to the Labour Court or Tribunal. Section 10(4) of the Industrial Disputes Act further provides that where the referring order has specified the points of dispute for adjudication, the Labour Court or the Tribunal shall confine its adjudication to those points and matters incidental thereto. The words "matters incidental thereto" is not specified under Section 4-K of the U.P. Industrial Disputes Act.

34. In Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd. and another, 19789 (10 LLN 336 (SC): AIR 1979 SC 1356, the Supreme Court while considering the provision of Section 10(4) of the Industrial Disputes Act held that the jurisdiction of the Tribunal in Industrial Dispute is limited to the point specifically referred for its adjudication and to matters incidental thereto and that the Tribunal could not go beyond the terms of the reference order. The Supreme Court went on to hold, that in the instant case, the terms of the reference showed that the points in dispute between the parties was not the fact of closure of its business by the Employers and that the reference was limited to the narrow question as to whether the closure was proper and justified. The Tribunal by the very terms of the reference order had no jurisdiction to go behind the fact of closure and inquire as to whether the business was in fact closed down by the Management.

35. In Firestone Tyre & Rubber Co. of India (P) Ltd., AIR 1981 SC 1626, the Supreme Court again held that the Tribunal could not travel outside the terms of the referring order.

36. In the light of the aforesaid, the Court is of the opinion, that the Tribunal was justified in holding that since the validity and legality of the closure of the establishment was not specified as a point of dispute to be adjudicated in the referring order, the Tribunal was justified in not adjudicating the same....."

44. This Court in Triveni Glass Ltd. (supra) did consider the Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd., 19789 (10 LLN 336 (SC): 1979 (3) SCC 762 as well as the Firestone Tyre & Rubber Co. of India (P) Ltd. v. Workmen Employed rep. by Firestone Tyre Employee's Union, 1981 (3) SCC 451, and distinguished the same about their application to the issue in hand. The decision of this Court in Triveni Glass Ltd. (supra) was not brought to the notice of the Court in Mohd. Sarwar (supra). The reasoning on which the decision of this Court in Triveni Glass Ltd. (supra) has proceeded is that the reference being whether termination of services of the Workman in that case was legal, the Arbitrator there could go into the question whether the closure was legal or 'if the services of the Workman had been terminated on account of closure', to borrow the words of His Lordship in Triveni Glass Ltd. (supra). The Court, in the decision under reference, went ahead to hold that the question, whether termination of services was a direct result of closure, is a question that could be answered with reference to pleadings of parties about the nature of the dispute between them.

45. The decision of the Constitution Bench in Hariprasad Shivshanker Shukla and another v. A.D. Divelkar and others, AIR 1956 SC 121 relied upon by this Court in Mohd. Sarwar arose in the context of facts, where in one Appeal, the entire undertaking of the Employer had been transferred, and in the other, it had been closed down. In both cases, the Workmen had moved the Authority under the Payment of Wages Act, claiming Retrenchment Compensation, under Clause (b) of Section 25 of the Central Act. The Workmen failed before the Authority under the Payment of Wages, in one case on the question of jurisdiction, but with two issues about their entitlement to Retrenchment Compensation under Section 25 of the Act, being decided in their favour. In the other case, the Authority under the Payment of Wages Act decided on all issues against the Workmen, including jurisdiction and their entitlement to receive Retrenchment Compensation, under Clause (b) of Section 25-F of the Central Act. On Writ Petitions being filed, in the case related to the Railway Company, which was one about the Employer's undertaking being transferred, the High Court held that the Payment of Wages Authority had jurisdiction and also that the Workmen were entitled to claim Compensation, under Clause (b) of Section 25 of the Central Act. In the other case, that relates to Shri Dinesh Mills Ltd., where the Workmen had failed on all issues, the High Court set aside the order of the Payment of Wages Authority, with a direction to dispose of the application, under the Payment of Wages Act made to him, in accordance with law. Certificate of fitness was granted in both matters by the High Court, on the strength whereof Appeals were carried to the Supreme Court. Their Lordships of the Supreme Court reversed the Bombay High Court, and about the issue in hand, held:

"19. For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court, that Retrenchment as defined in Section 2(oo) and as used in Section 25-F has no wider meaning than the ordinary, accepted connotation of the word: it means the discharge of surplus Labour or Staff by the Employer for any reason whatsoever, otherwise than as a punishment inflicted by way of Disciplinary Action, and it has no application where the services of all Workmen have been terminated by the Employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all Workmen have been terminated by the Employer on the business or undertaking being taken over by another Employer in circumstances like those of the Railway Company. Mr. Mehta, appearing for Respondents Nos.4 & 5 in Civil Appeal No.105 of 1956, tried to make a distinction between transfer of ownership with continuation of employment (which according to him did not come within the definition) and Termination of service on closure of business. There is in fact a distinction between transfer of business and closure of business; but so far as the definition Clause is concerned, both stand on the same footing if they involve termination of service of the Workmen by the Employer for any reason whatsoever, otherwise than as a punishment by way of Disciplinary Action. On our interpretation, in no case is there any Retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry."

46. It must be borne in mind that the decision of the Supreme Court in Hariprasad Shivshanker Shukla is not about the issue, whether in a reference regarding the legality and justifiability of a termination, the validity of closure can be examined by the Labour Court. It is about the issue whether closure constitutes Retrenchment, as defined under Section 2(oo) and the subject matter of Section 25-F of the Central Act. The principle laid down by their Lordships is that, "where the services of all Workmen have been terminated by the Employer on a real and bona fide closure of business..... or where the services of all Workmen have been terminated by the Employer on the business or undertaking being taken over by another Employer....", it is not Retrenchment under the Central Act. The principle is stated further, in its most fundamental form, by their Lordships in Hariprasad Shivshanker Shukla (supra) holding: "On our interpretation, in n

Please Login To View The Full Judgment!

o case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry." The principle laid down by the Constitution Bench in Hariprasad Shivshanker Shukla (supra) comes to no more than this that wherever on account of a bona fide closure of the Employer's business or a transfer of undertaking, his business is no longer a continuing or running industry in his hands, the resultant termination of services of Workmen is not Retrenchment within the meaning of Section 2(oo) or 25-F of the Central Act. 47. But, there is no proposition, in the opinion of this Court, deducible from the holding in Hariprasad Shivshanker Shukla that a closure of the Employer's establishment, which is a mere sham, camouflage or facade, to get rid of a particular Workman or some of them, while his business as a whole survives or the part of it, where the concerned Workman was employed, subsists in the same or some altered form, it would still not be Retrenchment. If a mere sham or facade of closure is not Retrenchment, there is not the slightest reason to hold that on a reference that speaks about validity of termination of the Workman's services or its justifiability, the Labour Court cannot go into the limited question whether it is a bona fide closure or a mere facade to terminate employment. 48. This, however, does not mean that on a reference about the legality or justifiability of termination of services of a Workman, the legality of a bona fide closure can be examined by the Labour Court. If the closure is bona fide and there is some illegality about it, like violation of Section 6-W of the State Act or Section 25-FFA or 25-FFF or 25-O of the Central Act, a claim about illegality of that kind with the closure of an undertaking, resulting in termination of a Workman's services, cannot be gone into in a reference that does not specifically spell out legality or justifiability of closure in its terms. It certainly cannot be gone into in a case where the reference is limited to the validity and justifiability of termination of services alone. 49. No different principle is discernible from the decision of the Supreme Court in H.P. Mineral & Industrial Development Corporation Employees' Union v. State of H.P. and others, 1996 (7) SCC 139. This was again a case of bona fide closure of business of the H.P. Mineral and Industrial Corporation where the Employers complied with the provisions of Section 25-FFA of the Central Act, before services of their Workmen were brought to an end in consequence of closure. The Workman had raised an Industrial Dispute asking for compliance with the provisions of Section 25-N of the Central Act, relating to Retrenchment. It was in the context of the said facts that closure was not held to be Retrenchment within the meaning of Section 2(oo) of the Central Act. To emphasize, H.P. Mineral is not remotely an authority for the proposition that a bogus or pretentious closure by an Employer, to do away with his Workmen's services, would not constitute Retrenchment. 50. The facts in Mohd. Sarwar (supra) would be best appreciated the way they have been set out there. In Paragraph 2 of the Mohd. Sarwar (supra), the facts are succinctly stated thus: “2. Before the Tribunal, the Workman contended that he was appointed in a permanent capacity in the year 1969 and, since then, was working continuously without any break in service and that he was illegally terminated on 8.7.2000 without holding any inquiry and without granting any opportunity of hearing. The Workman contended that the Unit of the Employers factory had closed down illegally without complying with the provisions of Section 6-W of the Act. It was contended that no notice or wages in lieu of notice was paid nor the provisions of Section 6-N of the Act was complied with. The Workman contended that no permission was taken by the Employers from the State Government for closure of its undertaking and, therefore, the provisions of Sections 25-M, 25-N & 25-O of the Industrial Disputes Act (hereinafter referred to as the 'ID Act') was violated as well as the provisions of Sections 6-N, 6-P & 6-Q & 6-W of the Act. The Workman, accordingly, prayed that he is entitled to be reinstated with continuity of service and with full Back Wages.” 51. A perusal of the facts involved in Mohd. Sarwar (supra) do not spare doubt that the Employer's factory was closed down, in consequence whereof the Workman had lost his job. The Workman assailed the closure of the Employer's undertaking as one done illegally, without complying with the provisions of Section 6-W of the State Act. It was in that context that the violation of provisions of Section 6-N of the State Act was also alleged. Thus Mohd. Sarwar was a case, where there was no pretence of a closure or a facade. The reference, however, made under Section 4-K of the State Act was in the following terms: “Whether the Employers were justified in terminating the service of the Workman w.e.f. 8.7.2000? If not, to what relief is the Workman entitled to?” [quoted from the Mohd. Sarwar (supra)] The remarks of the Court, therefore, in Mohd. Sarwar to the effect, “that the Tribunal was justified in holding that since the validity and legality of the closure of the establishment was not specified as a point of dispute to be adjudicated in the referring order, the Tribunal was justified in not adjudicating the same......”, are well in tune with the law considered in the earlier part of the decision under reference. 52. This Court has doubts that the principle in Triveni Glass Ltd., (supra) is slightly overstated, where it is held that, “The terms of reference relating to the termination of the services of the Workmen is therefore wide enough to cover every kind of termination of services including termination of services by way of closure and it was therefore open to the Arbitrator to enter into the question of legality of the closure for answering the reference.” That doubt need not be considered for the present, as this case involves a principle of much narrower scope. The principle in Triveni Glass Ltd., (supra) applicable on much narrower ground and what has been held hereinbefore, would indubitably clothe the Labour Court with jurisdiction to find out, whether it was at all a case of closure or just a sham to get rid of the Workman. The Labour Court, on the pleadings of parties and the evidence, has arrived at a reasonable conclusion that there was no closure at all of a part of the Unit or undertaking of the Employers. The Labour Court has rightly held that the process Department continues to function, may be with a changed technology. It has also been held by the Labour Court that in other Units of the Employers, the change over to the C.T.P. Machines has not led to dispensation of services of plate makers, like the Workman. The Labour Court has, therefore, rightly concluded that the closure pleaded by the Employers is no closure, but a sham to get rid of the Workman. The Retrenchment has been held to be unlawful and in breach of Section 25-N of the Central Act. The Retrenchment has been held neither to be lawful or justified. It must, therefore, be held in answer to Question No.2 that in case of a reference about the validity of termination of the services of a Workman, the Labour Court can examine the validity of a closure pleaded by the Employers and determine, if it is sham and no closure at all. 53. No other point was pressed on behalf of the Employers in criticism of the impugned Award. 54. In view of the answers to the two questions formulated and recorded hereinabove, no infirmity can be found with the Award impugned on merits. 55. It has been brought to the notice of this Court that the impugned Award insofar as it directs reinstatement has become incapable of implementation, inasmuch as the Workman has attained the age of Superannuation on 23.5.2018, pending this Writ Petition. Apparently, the Workman cannot be reinstated in service in compliance with the Award on account of a supervening development, that is, Superannuation of the Workman. It is apparent from the impugned Award that at the time when the Workman's services were dispensed with, he was in receipt of a monthly Salary of Rs.6,624. This has been revised upwards in accordance with the recommendations of the Wage Board. A supplementary Affidavit filed by the Employers dated 15th January, 2017, acknowledges in Paragraph 3 that the then prevalent Salary of the Workman (contemporaneous with the Affidavit) would be Rs.16,856. It is presumably the then current Monthly Salary, though in the Affidavit, the stipulation of the acknowledged remuneration as a monthly entitlement, is conspicuous by its absence. There is a detailed calculation furnished by the Workman in Paragraph 11 of his Affidavit, dated 17th January, 2017, showing his entitlement to arrears, worked at 50% of his Wages in terms of the award at a figure of Rs.14,70,137. The calculation takes into account periodic revision of Salary and the varying entitlement during different periods of time as per prevalent Wages/Salary. 56. This Court is of opinion that in the totality of circumstances, particularly, the fact that the Workman has not after all rendered service during the entire period of time until his superannuation, though not on account of his fault, ends of justice would be met by modifying the Award impugned to provide that the Workman shall be entitled to receive in full satisfaction of all his claims, a lump sum of Rs.6 lakhs from the Employers within two months of date. In the event, the sum of money directed to be paid in lump sum by the Employers is not paid to the Workman within the stipulated period of time, the Workman would be entitled to simple Interest @ 6% per annum till realization. The Workman shall be entitled to receive in Costs from the Employers a sum of Rs.20,000. 57. The Writ Petition is partly allowed. Costs shall be payable as directed.
O R