At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE J.A. BAXI
For the Appearing Parties: ----
(1) THE facts leading to these applications for approval of the applicant company's action, under S. 33 (2) of the Industrial Disputes Act, 1947, are briefly as under. By a notice dated 17 May 1958, the company notified its operatives that on account of non-availability of raw materials it was impossible to work the factory in both the shifts and the management had decided to close down the working of the second shift with effect from 19 May 1958. The notice further stated that the services of 50 employees named in the list attached to it would be terminated from the date of the notice on payment of one month's wages in lieu of notice as retrenchment compensation which they were asked to receive from the office on the same day. Four more employees were further retrenched in accordance with the notice. Two of them were retrenched on 31 May 1958 and two on 9 June 1958. The company has now applied for approval of its action in retrenching the opponents.
(2) THE company has filed a copy of its standing order and I find that standing order 18 appears to have been mentioned in the notice through an error. The correct standing order applicable to the case is No. 10 (c) which is as under :
"10. (c) Whenever an additional shift is started or shifts are altered or discontinued, a seven days' notice shall be given to the workmen but if as a result of the discontinuance of the shift any permanent workman is likely to be discharged, a notice of one month will be given. "
The applications are made as a dispute about wage-scales, etc. , between the company and the workmen is pending before this tribunal and the opponents are concerned in this dispute. In application No. 58 of 1958 the company has impleaded the 50 operatives who were retrenched on 17 May 1958, and in application No. 70 of 1958 the other four operatives who were subsequently retrenched have been joined as opponents. As both the applications arise out of the same notice and involve a common question of law, they were heard together and are disposed of by this order.
(3) THE notice issued by the company speaks of the closure of the night shift and of retrenchment and the question is whether the company's action in retrenching the workmen on account of the closure requires to be approved by the tribunal. Now, the relevant provisions of S. 33 bearing on the necessity of obtaining the tribunal's approval are as under :-
"33 (2). During the pendency of any such proceedings (i. e. , conciliation proceedings or any proceedings before a labour court or tribunal or national tribunal in respect of an industrial dispute) the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, the workman : Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. "
The proviso obviously refers to Clause (b) inasmuch as it speaks of discharge or dismissal of a workman and controls Clause (b). It will therefore come into operation only in a case in which control has been taken by the employer under Clause (b). In other words, approval of the tribunal is necessary in those cases where in accordance with Clause (b) a workman has been discharged or punished for misconduct. In the present case no doubt the company discharged these workmen, but they were discharged not for any misconduct but as a result of closing down of the second shift. This amounts to retrenchment of the workmen. It was urged on behalf of the workmen that the so-called closure of the shift and retrenchment of the opponents were illegal inasmuch as there was no shortage of raw materials as alleged by the company and the opponents were unjustifiably discharged for no justifiable reason whatever and therefore the tribunal has jurisdiction to refuse to approve of its action. Whether the closure and retrenchment are bona fide or not can only be determined after evidence is recorded. But assuming for the sake of argument that such closure and retrenchment were not bona fide, even then no misconduct is alleged against the opponents, nor
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are they in a position to allege that they were discharged for any supposed misconduct. Their discharge by way of retrenchment does not come under Clause (b) and consequently the proviso to that clause cannot apply to such discharge. The present applications therefore do not lie. If the workmen are advised that the company's action is actuated by ulterior motives, it is open to them to seek redress by means of proper proceedings. (4) IN the result the applications are ordered to be dismissed.