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1989 Supreme(Ori) 183
IN THE HIGH COURT OF ORISSA
G.B. Patnaik, A.K. Padhi, JJ.
THE MANAGEMENT OF TOWN BIDI FACTORY - APPELLANT
Versus
PRESIDING OFFICER, LABOUR COURT AND ANOTHER - RESPONDENT
Original Jurisdiction Case No. 925 of 1982
Decided On : 16-11-1989
J. Das and K.K. Jena, for the Appellant; P. Palit and Addl. Standing Counsel, for the Respondent
The Labour Court had jurisdiction to pass the second award as the first award was passed ex parte and the management had participated in the proceedings after the first award was set aside.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 25FFA - CLOSURE OF ESTABLISHMENT - NOTICE TO GOVERNMENT - NON-COMPLIANCE - EFFECT - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 31(1) - TERMINATION OF EMPLOYMENT - REASONABLE CAUSE - BIDI AND CIGAR WORKERS (CONDITIONS OF EMPLOYMENT) ACT, 1966 - SECTION 31(1) - TERMINATION OF EMPLOYMENT - REASONABLE CAUSE - INDUSTRIAL DISPUTES ACT, 1947 - ORDER 9, RULE 13, C.P.C. - APPLICATION FOR SETTING ASIDE EX PARTE AWARD - MAINTAINABILITY - INDUSTRIAL DISPUTES ACT, 1947 - ORDER 17, RULE 2, C.P.C. - EX PARTE AWARD - SETTING ASIDE - INDUSTRIAL DISPUTES ACT, 1947 - ORDER 17, RULE 3, C.P.C. - EX PARTE AWARD - SETTING ASIDE - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 12(5) - REFERENCE OF INDUSTRIAL DISPUTE TO LABOUR COURT - SCOPE AND EXTENT - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 10(1)(D) - REFERENCE OF INDUSTRIAL DISPUTE TO LABOUR COURT - SCOPE AND EXTENT
Fact of the Case:
Dispute arose between the management of M/s Town Bidi Company, Cuttack and its workmen. The State Government referred the matter to the Labour Court for adjudication. The Labour Court found that the refusal of employment to 19 workmen by the management was not justified and awarded them relief. The management challenged the award on the grounds that the Labour Court had no jurisdiction to pass a second award, that the notice of closure was not invalid, that there was a closure and not a refusal of employment, and that the Labour Court failed to consider the provisions of the Bidi and Cigar Workers (Conditions of Employment) Act, 1966.
Finding of the Court:
The High Court held that the Labour Court had jurisdiction to pass the second award as the first award was passed ex parte and the management had participated in the proceedings after the first award was set aside. The High Court also held that the notice of closure was not invalid for non-compliance with the provisions of Section 25FFA of the Industrial Disputes Act, 1947, as the said section does not prohibit closure but only requires a notice to the Government. The High Court further held that the finding of the Labour Court that there was no closure was based on evidence and could not be interfered with by the High Court in exercise of writ jurisdiction. The High Court also held that the Labour Court did not err in failing to consider the provisions of the Bidi and Cigar Workers (Conditions of Employment) Act, 1966, as the said Act was not applicable to the case.
Issues: Whether the Labour Court had jurisdiction to pass a second award. Whether the notice of closure was invalid for non-compliance with the provisions of Section 25FFA of the Industrial Disputes Act, 1947. Whether the finding of the Labour Court that there was no closure was based on evidence and could be interfered with by the High Court in exercise of writ jurisdiction. Whether the Labour Court erred in failing to consider the provisions of the Bidi and Cigar Workers (Conditions of Employment) Act, 1966.
Ratio Decidendi: The Labour Court had jurisdiction to pass the second award as the first award was passed ex parte and the management had participated in the proceedings after the first award was set aside. The notice of closure was not invalid for non-compliance with the provisions of Section 25FFA of the Industrial Disputes Act, 1947, as the said section does not prohibit closure but only requires a notice to the Government. The finding of the Labour Court that there was no closure was based on evidence and could not be interfered with by the High Court in exercise of writ jurisdiction. The Labour Court did not err in failing to consider the provisions of the Bidi and Cigar Workers (Conditions of Employment) Act, 1966, as the said Act was not applicable to the case.
Final Decision: The High Court dismissed the writ petition.
JUDGMENT :
A.K. Padhi, J:
1. Dispute arose in between the management of M/s Town Bidi Company, Cuttack and its workmen. The State Government under Sub-section (5) of Section 12 read with Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') referred the matter to the Presiding Officer, Labour Court (hereinafter referred to as 'the Labour Court') for adjudication. The learned Labour Court giving due notice to both the sides entered into reference. The scope of the reference to the learned Labour Court is as follows:
"Whether the refusal of employment to 19 workmen by the Management of M/s. Town Bidi Co., Cuttack with effect from 21st October, 1977 is legal and/or justified? If not, to what relief they are entitled."
The case of the management was that the Bidi Rolling Unit under which the workmen were working was a separate establishment from M/s. Town Bidi Factory. The Town Bidi Rolling Unit was closed as it was not economically viable, with effect from 22nd October, 1977- The opp. parties - workmen were working in Bidi Rolling Unit. All the workmen concerned were given closure notice on 22nd September, 1977. Bidi Rolling Unit had only 39 workers.
2. The findings given in the award by the Labour Court are:
(a) From his said admission it is evident that 50 persons are working in the Town Bidi Factory at the time of alleged closure;
(b) Notice on the face of it appears to be invalid, in as much as the same is not in accordance with the provisions of Section 25FFA of the Act, 60 days notice was incumbent and when the first party Management has failed to give 60 days notice to the Government concerned before such ciosur notice Ext. 1 must be held to be void
(c) So, for all practical purposes the first party Management has miserably failed to establish that there was any ground for closure and in fact there was any such closure. There is also no valid notice justifying the said closure; and
(d) So, as a matter of fact Bidi Rolling Section was never closed and the present 19 workmen were only refused employment or, in other words, their services were terminated due to Trade Union activities and not signing the aforesaid resignation letters to the Union and petitions of withdrawal on the pursuation of M.W.I.
3. The learned advocate for the petitioner contends:
(a)The award which was passed on 15th January, 1980 being an award on merit, the learned Labour Court had no jurisdiction to pass a second award. For the contention that the award passed on 15th October, 1980 was an award on merit the learned Advocate submits that the entire evidence of the Management was on record, the workmen had adduced substantial evidence and only a formal witness was to be examined. The award was passed under Order 17, Rule 3, C.P.C., The same could not have been set aside under the provisions of Order 9, Rule 13, C.P.C.
(b) There was no material before the Court to come to the finding that Section 25FFA had any application, as it was the specific case of the Management that Bidi Rolling Unit was a separate Unit for which closure notice had been duly served on ail the workmen;
(c) It was a case of closure and not refusal of employment;
(d) The finding of the learned Labour Court that the representative of the Management has admitted that there were more than 50 employees working under the Management in the Bidi Rolling Unit is an error of record; and
(e) After the Bidi and Cigar Workers (Conditions of Employment) Act, 1966 came into force, this being a special statute which is applicable to this case, Section 31(1) of the Act permits the employer to dispense with the services of the employees for a reasonable cause. The learned Labour Court has not taken into consideration the provisions of Bidi and Cigar Workers (Conditions of Employment) Act, 1966 and therefore the award is patently illegal and cannot be sustained.
4. The advocate for the opp. parties on the other hand submits that the award of the lear
