9911796707
TMI Blog2005 (1) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed by Maruti Limited as Electrician, Helper and Assistant Fitter with effect from 27.4.1974, 8.11.1973 and 8.4.1974 respectively. Their services stood terminated by the said company on or about 25/26.8.1977 as a result of closure of the factory. The said company came to be wound up in terms of an order dated 6.3.1978 passed by the High Court of Punjab and Haryana in Company Petition No.126 of 1977 titled Delhi Automobiles P. Ltd. vs. Maruti Ltd. whereupon an Official Liquidator was appointed to take charge of the assets thereof. A formal winding up order was also drawn up in terms of Form No.52 of the Company (Court) Rules, 1959. The company was formally wound up on 6.3.1978 whereupon it ceased to have any business activity. It is borne out from records that the learned Company Judge in the said proceedings by an order dated 5.8.1977 directed the company that in view of the fact that the industrial establishment of the company, namely, Maruti Limited cannot continue with its production activity and the workmen employed therein cannot be given any job, all workmen should be retrenched in accordance with the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Award dated 28.7.1993, the Labour Court upon holding that the Appellant herein is the successor-in-interest of the said company opined that it was liable to reemploy the Respondents with back-wages from the date of submitting their respective demand notices. WRIT PROCEEDINGS: The Appellant herein filed a writ petition before the Punjab & Haryana High Court questioning the said Award and the same was allowed by a learned Single Judge of the said court by a judgment and order dated 19.4.1995 holding : "(i) workmen-Respondents retrenched by the company in August 1977 and did not challenge retrenchment. The company, thereafter, went into liquidation and its undertakings came to vest in the Petitioner under Acquisition Act, but liabilities of the company were never taken over,. (ii) Petitioner cannot be said to be successor-ininterest of the company and become liable to offer reemployment to the workmen in terms of Section 25H of the Act. (iii) Under Section 25H, a workman can claim reemployment after retrenchment only from that employer who had retrenched him. In the instant case, the workmen had never been in the employment of the Petitioner nor did the Petitioner retrench them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not been taken over and as the same contains a non-obstante clause, the provisions thereof would prevail over the 1947 Act. Mr. Anupal Lal Das, learned counsel appearing on behalf of the Respondents, on the other hand, would contend that in view of the decision of this Court in Anakaplla Co-operative Agricultural and Industrial Society Limited vs. Workmen [(1963) Supp. 1 SCR 730], the Appellant is the successor-in-interest of the business of the said company. The learned counsel would submit that the concurrent findings of fact having been arrived at in this regard by the Labour Court as well as the Division Bench of the High Court, this court should not interfere therewith. Placing reliance on the decision of this Court in Workmen represented by Akhil Bhartiya Koyla Kamgar Union vs. Employers in relation to the Management of Industry Colliery of Bharat Coking Coal Ltd. and Others. [(2001) 4 SCC 55], Mr. Das would argue that reemployment of the workmen in terms of the provisions of the 1947 Act being not a liability under the said Act and furthermore with a view to give effect to Section 13 thereof, the termination of the employment of the Respondents by the company should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, payment of the mortgage money or other dues, in whole or in part, out of the amount specified in section 7, but no such mortgage, charge, lien or other interest shall be enforceable against any property which has vested in the Central Government." Section 5 provides that the Central Government or the Government company, as the case may be, shall not be liable for prior liabilities of the said company. Section 6 envisages vesting of the undertakings in a Government company if a notification in this behalf is issued by the Central Government. Chapter IV of the said Act provides for management of the undertakings of the company. Chapter V provides for provisions relating to the employees of the company. Section 13 which is relevant for our purpose reads as under : "13. Employment of certain employees to continue.- (1) Every person who has been, immediately before the appointed day, employed in any of the undertakings of the Company shall become, - (a) on and from the appointed day an employee of the Central Government; and (b) where the undertakings of the Company are directed under sub-section (1) of section 6 to vest in a Government company, an employee of such Government co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the undertakings of the company immediately before the appointed day. Section 13 of the Act postulates a situation where a workman would continue to be a workman despite the statutory transfer. A workman, who has ceased to be in employment of the Company before the appointed day, therefore, would not be entitled to the benefit thereof. The order of winding up, as noticed hereinbefore, was passed by the High Court of Punjab and Haryana by order dated 6.3.1978 and a direction for terminating the services of all the workmen had also been issued by the learned Company Judge on 5.8.1977, pursuant whereto and in furtherance whereof , a settlement was arrived at by and between the Official Liquidator and the workmen. Such settlement was arrived at indisputably having regard to the provisions contained in Section 25FFF of the 1947 Act. Section 25F provides for entitlement of compensation to a workman who has been in continuous service for not less than one year and who is retrenched by the employer, until the workman has been given one month's notice in writing indicating the reasons for retrenchment or the workman has been paid one month's wages in lieu thereof as well as compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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\005." The history of the legislation has been noticed by a Constitution Bench of this Court in Anakapalla Co-operative Agricultural and Industrial Society Ltd. (supra) and it, while holding that a company taking over the management of a closed undertaking may in a given situation become successor-in-interest but as regard the interpretation of the relevant provisions of the 1947 Act following Hariprasad Shivshankar Shukla (supra), opined : "\005The Legislature, however, wanted to provide that though such termination may not be retrenchment technically so-called, as decided by this Court, nevertheless the employees in question whose services are terminated by the transfer of the undertaking should be entitled to compensation, and so, s. 25FF provides that on such termination compensation would be paid to them as if the said termination was ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation where a workman despite having received the amount of compensation would again have to be offered a job by a person reviving the industry Applicability of Section 25H of the 1947 Act in the case of closure of an undertaking came up also for consideration before this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh etc. vs. Presiding Officer, Labour Court, Chandigarh and Others etc. [(1990) 3 SCC 682], wherein a Constitution Bench in no uncertain terms held : "\005Very briefly stated Section 25FFF which has been already discussed lays that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of Section 25F, as if the workman had been retrenched" (emphasis supplied). Section 25H provides for reemployment of retrenched workmen. In brief, it provides that where any workmen are retrenched, and the employer proposes to take into his employment any person, he shall give an opportunity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing up order was passed on 6.3.1978 as a result whereof there had been no continuity of the business activity of the undertakings of the said company. The expression 'immediately before the appointed day' contained in Section 13 of the said Act vis-'-vis Section 17 of the 1972 Act is of some importance. The coking coal mines which stood nationalized by reason of the 1972 Act were running concerns whereas admittedly the undertaking of the company had not been functioning and the enactment became necessary only having regard thereto and for the purpose of utilization of production facilities and the equipment thereof. In Bharat Coking Coal Ltd. (supra), a distinction was made between a liability of the Central Government vis-'-vis the Government company as contained in Section 9 and Section 17 of the 1972 Act holding that the liabilities of the owner, agent, manager, or managing contractor, as the case may be, are liabilities which are referable to sub-section (2) thereof; whereas Section 17 contains a special provision relating to workmen and their continuance in service notwithstanding the transfer from private ownership to the Central Government or the Government company, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and thus those who had been paid such compensation will not be entitled to claim reemployment under Section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate reemployment and, therefore, fair justice means that such workmen will not be entitled to such conferment of double benefit. It is no doubt true that this argument sounds good, but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case. The workmen in question have been retrenched long before the Colliery was taken over the respondents and, therefore, the principles stated in Anakapalle Coop. Agricultural and Industrial Society Ltd. (AIR 1963 SC 1489) in this regard cannot be applied at all. The workmen had been paid compensation only under Section 25-F and not under Section 25-FF of the Act on transfer of the Colliery to the present management. That case has not been pleaded or established. Hence, we do not think that the line upon which the High Court has proceeded is correct. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored." The said decision, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruing a legal fiction the purpose for which it is created should be kept in mind and should not be extended beyond the scope thereof or beyond the language by which it is created. Furthermore, it is well-known that a deeming provision cannot be pushed too far so as to result in an anomalous or absurd position. The Court must remind itself that the expressions like "as if" is adopted in law for a limited purpose and there cannot be any justification to extend the same beyond the purpose for which the legislature adopted it. In a recent decision, the Constitution Bench of this Court in P. Prabhakaran Vs. P. Jayarajan [JT 2005 (1) SC 173] opined: "A legal fiction pre-supposes the existence of the state of facts which may not exist and then works out the consequences which flow from that state of facts. Such consequences have got to be worked out only to their logical extent having due regard to the purpose for which the legal fiction has been created. Stretching the consequences beyond what logically flows amounts to an illegitimate extension of the purpose of the legal fiction." Furthermore, in a situation of this nature, the rule of purposive construction should be applied. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt Act should be stayed in view of the provisions of the 1985 Act. Rejecting this contention, the Special Court had come to the conclusion that the Special Court Act being a later enactment would prevail. The headnote which brings out succinctly the ratio of the said decision is as follows: "Where there are two special statutes which contain non obstante clauses the later statute shall prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non obstante clause. If the Legislature still confers the later enactment with a non obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment would continue to apply." [See also Engineering Kamgar Union Vs. Electro Steels Castings Ltd. and Another, (2004) 6 SCC 36] The right of the workmen to obtain compensation in terms of Section 25FFF has not been taken away under the said Act. The liability to pay compensation in the case of closure would be upon the employer which in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
