TMI Blog1999 (7) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... being published therefrom. In the year 1976, the appellant-company decided to start publication of Jalgaon Edition of the said paper and for that purpose set up an establishment at Jalgaon in the eastern district of Maharashtra State. The Jalgaon Edition was composed and printed at Nagpur and was taken to Jalgaon. The composing of both the Editions was done by hand composing and printing was done on rotary printing machine. In 1978, the appellant decided to have composed and printed part of the Jalgaon Edition at Jalgaon. Since then the Jalgaon Edition was composed and printed partly at Jalgaon and partly at Nagpur. Then in 1981, the appellant installed two photo type composing machines at Nagpur. According to the appellant, it was a new technique of rationalisation, standardisation and improvement of plant or technique. It appears that the said machine was operated on experimental basis for sometime but by October 1981 it became fully operative. Consequently, the respondent along with 24 other employees, who were working in the hand composing department became redundant. Therefore, they were sought to be transferred to Jalgaon District in the State of Maharashtra where another es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely after the discharge order was served on the respondent, he filed a complaint on 25.6.1982 before the Labour Court under Section 28 of the Maharashtra Act alleging that the respondent indulged in `unfair labour practice' which falls within the provisions of Schedule -IV item no. 1 (a), (b), (d) and (f) of the Maharashtra Act. The appellant resisted the said proceedings and contended that it has not resorted to any `unfair labour practice' against the respondent. During the pendency of this complaint, the State Government, acting on the failure report of the Conciliation Officer, made a reference of the Industrial dispute under Section 10 of the I.D. Act. The appellant raised an objection before the Industrial Court, Nagpur, that the reference proceedings under Section 10 of the I.D. Act were incompetent and barred by Section 59 of the Maharashtra Act. As the respondent had already filed complaint under the Maharashtra Act challenging the very same discharge order, these objections were upheld by the Industrial Court, Nagpur and reference under Section 10 of the I.D. Act was disposed of. The complaint filed by the respondent was dismissed by the Labour Court by its ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even if the appeal was maintainable the Division Bench had patently erred in taking the view that notice under Section 9-A of the I.D. Act was illegal and inoperative. It was also contended that the decision of the Division Bench that respondent's complaint was maintainable and that by passing the impugned order of the retrenchment, the appellant had resorted to `unfair labour practice', was erroneous. It was further submitted that the Division Bench had erred in holding that the impugned discharge order was violative of Section 33 of the I.D. Act and that in any case pure finding of fact of courts below that the appellant was not guilty of any `unfair labour practice' ought not to have been interfered with by the Division Bench in the Letters Patent Appeal. On the other hand, learned counsel for the respondent tried to support the decision rendered by the Division Bench of the High Court on the points on which the Bench decided in favour of the respondent. He also submitted that the appeal under Clause 15 of the Letters Patent was maintainable before the Division Bench. Learned Counsel for the respondent invited our attention to a number of decisions of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 20.11.1990 passed in Revision by the Industrial Court. When we turn to the relevant paragraph of the Writ Petition, we find averments to the effect that the Courts below, while interpreting the provisions contained in Sections 9-A, 20 and 33 and other provisions of the I.D. Act, 1947 and the rules framed thereunder, had totally lost sight of the object and purpose of these provisions and had put an interpretation alien to industrial jurisprudence and had thus committed serious error of law apparent on the face of the record which resulted in serious miscarriage of justice and also in failure to exercise the jurisdiction vested in the courts below under the provisions of the Maharashtra Act. In para 9 of the Writ Petition, it was averred that the impugned orders of the Courts below had further resulted in infraction of his fundamental rights guaranteed to him under Articles 14, 21 and other Articles as enshrined in the Constitution of India. It is, therefore, obvious that the Writ Petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for High Court's interference seeking issuance of an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High court in Aidal Singh v. Karan Singh and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass and Barham Dutt v. Peoples' Co-operative Transport Society Ltd., New Delhi and we are in agreement with it. The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his Writ P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised an industrial dispute by filing a complaint under Section 28 of the Maharashtra Act alleging that the impugned termination order amounted to `unfair labour practice'. Before the impugned termination order was passed by the management, it had already served a notice under Section 9-A of the I.D. Act to the respondents union to the effect that it proposed to introduce a change in the conditions of service of the respondent and other members of the union on the ground that it was proposing to rationalise the printing work at the appellant's concern at Nagpur by setting up photo-type machine for carrying out the work of composing, resulting in substantial reduction in the work of composing by hand. It may be stated that the respondent was employed as a foreman in the hand-composing department of the appellant at the relevant time. The respondent's union objected to the said notice of change and approached the Conciliation Officer under Section 12(1) of the I.D. Act which reads as under :- 12. Duties of Conciliation Officers.- (1) Where an industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of 22.6.1982 till he prepared his report as per Section 12(4) of the I.D. Act and till that report reached the Government, conciliation proceedings were deemed to have continued and had not got terminated till 13th August, 1982 and as in the meantime on 22.6.1982, the impugned termination order was passed without following the procedure of Section 33(1) of the I.D. Act it got vitiated in law. Under these circumstances, a moot question arises whether the impugned retrenchment order was passed on 22.6.1982 during the pendency of conciliation proceedings. It cannot be disputed that the impugned order was directly connected with the matter in dispute before the Conciliation Officer wherein the question of legality of notice under Section 9-A of the I.D. Act was under consideration for the purpose of arriving at any settlement between the parties in this connection. The impugned order had definitely altered to the prejudice of the respondent his conditions of service. It was not a case of retrenchment simpliciter but was a consequential retrenchment on the introduction of the scheme of rationalisation as contemplated by Section 9-A read with Schedule IV item no.1 of the I.D. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory function did not come to an end nor did he become functus officio. His jurisdiction had to continue till he submitted his report as per Section 12(4) to the appropriate Government. Even such preparation of the report and sending of the same from his end to the appropriate Government would obviously have taken at least a few days after 22.6.1982. It must, therefore, be held that the conciliator remained in charge of the conciliation proceedings at least for a couple of days after 22.6.1982. It is, therefore, difficult to appreciate how within half an hour after the closing of investigation by the conciliator and before his getting even a breathing time to prepare his detailed written report about failure of conciliation to be sent to the Government as per Section 12(4), the appellant could persuade itself to presume that conciliation proceedings had ended and, therefore, it was not required to follow the procedure of Section 33(1) and straightaway could pass the impugned order of retrenchment within 25 minutes of the closing of the investigation by the conciliator on the very same day. It is difficult to appreciate the reasoning of the Labour Court that after the closer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when a memorandum of the settlement is signed by the parties to the dispute; (b) where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under Section 17, as the case may be ; or (c) when a reference is made to a Court, [Labour Court, Tribunal or National Tribunal] under Section 10 during the pendency of conciliation proceedings. (Emphasis supplied) A mere look at the aforesaid provisions shows that in cases of public utility services referred to in Section 22 (2) of the I.D. Act, the conciliation proceedings shall be deemed to have commenced on the date on which a notice of strike or lockout under Section 22 is received by the Conciliation Officer. That deals with commencement of mandatory conciliation proceedings as laid down by Section 12(1) read with Section 20(1). But when we come to Section 20(2), it becomes obvious that the legislature has introduced by way of legal fiction an irrebutable presumption as per sub-clause (b) of Section 20(2) that when during conciliation proceedings no settlement is arrived at between the parties, the conciliation proceedings shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proceedings puts an end to the pendency of such proceedings. Learned counsel for the appellant in support of his contention seeking a dichotomy between the concept of pendency and concept of deemed conclusion of proceedings placed strong reliance on a decision of this Court in Chemicals Fibres of India Ltd. vs. D.G. Bhoir Ors. [(1975) (4) SCC 332]. In that case this Court was concerned with entirely a different situation under Section 2A of the I.D. Act after it was brought on the Statute Book. As per this provision, an individual dispute raised by workman who had suffered dismissal from service was to be considered as an `industrial dispute' within the meaning of the relevant provisions of the Act so that such a dispute could be conciliated upon, arbitrated or could be referred for adjudication before competent authorities under the Act. For that limited purpose, an individual workman could be said to have raised an industrial dispute. The question before this Court was whether raising of such a dispute by an individual workman which was not sponsored by a large body of workmen could attract Section 33 of the I.D. Act even qua other workmen who had nothing to do with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (AIR 1955 SC 661 at 680). Das, Actg. C.J. speaking for the Court in Para 31 of the report, made the following pertinent observations : .Legal fictions are created only for some definite purpose. Xxxxxx xxxxx xxxxxx a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field.. However, as noted earlier, legal fiction created by Section 20(2) is for the purpose of laying down as to till what stage conciliation proceedings can be said to be pending and when they can be said to have concluded. On that basis if it is held that conciliation proceedings once validly started under Section 12(1) of the I.D. Act can by way of an irrevocable presumption be treated to have continued till the failure report reached the appropriate Government, during the interregnum of necessity such conciliation proceedings have to be treated as pending before the conciliation officer. In fact, on these aspects of the matter, we have a decision of this Court in Andheri Marol Kurla Bus Service Anr. vs. The State of Bombay [AIR 1959 SC 841]. In that case a Bench of two judges of this Court had to consider the question as to when concili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and the termination would depend upon how soon a report is received by the appropriate Government. It is true that S.12(6) of the Act contemplates the submission of the report by the Conciliation Officer within 14 days but that does not affect the pendency of the conciliation proceedings and if for some reason the Conciliation Officer delays the submission of his report his action may be reprehensible but that will not affect the interpretation to be put on S.20(2)(b) of the Act. Section 12 lays down the duties of the Conciliation Officer. He is required to bring about settlement between the parties and must begin his investigation without delay and if no settlement is arrived at he is to submit his report to the appropriate Government. No doubt S.12 contemplates that the report should be made and the proceedings closed within a fortnight and if proceedings are not closed but are carried on, as they were in the present case, or if the Conciliation Officer does not make his report within 14 days he may be guilty of a breach of duty but in law the proceedings do not automatically come to an end after 14 days but only terminate as provided in S.20(2)(b) of the Act. (Colliery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9- A of the I.D. Act. The relevant provision thereof reads as under : Notice of change.-No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,- (a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected ; or (b) within twenty-one days of giving such notice'' A mere look at the aforesaid provision shows that if an employer proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, such change has to be preceded by the procedure laid down in the said section. When we turn to the Fourth Schedule of the I.D. Act, we find mentioned therein various conditions of service of workmen. The said schedule with all of its items reads as follows : CONDITIONS OF SERVICE FOR CHANGE OF WHICH NOTICE IS TO BE GIVEN 1. Wages, including the period and mode of payment; 2. Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it must be held that notice under Section 9-A must precede the introduction of rationalisation concerned, it cannot follow the introduction of such a rationalisation. In the present case, it is not in dispute between the parties that in the composing department of the appellant where the respondent was working, composing work was earlier being done by hand i.e. manually. That was the existing condition of service of the respondent. By substitution of that type of work by mechanical work having resort to photo type composition through machine, the then existing service condition of the respondent was bound to be affected adversely. Consequently, before introducing such a change in the condition of service of the respondent by installing photo type composing machine, introduction of which was directly likely to lead to retrenchment of the respondent, a notice under Section 9-A was a must before commissioning such a photo type machine at the work place of the appellant. It is not in dispute between the parties that such a photo type machine was already installed by the appellant in January 1981. Learned counsel for the appellant seeks to contend that it was installed on an experimenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause the work of composing was done on the photo type setting machines. The aforesaid finding of fact which was confirmed by the Revisional Court as well as the learned Single Judge of the High Court leaves no room for doubt that by 4.11.1981 the scheme of rationalisation had already come into force and that scheme had a direct nexus and a realised possibility of making the respondent and other workmen surplus liable to retrenchment as surplus staff. Once that happened, it becomes obvious that there remained no occasion thereafter for the appellant-management to resort to Section 9-A of the Act belatedly by giving notice of change only in February, 1982. The appellant in this connection had missed the bus. It was a futile attempt to lock the stables after horses had bolted. As noted earlier, on the scheme of Section 9-A read with item 10 of the Fourth Schedule, before introducing such a new scheme of rationalisation which had a likelihood and a tendency to affect the existing service conditions of the workmen, a notice under Section 9-A was required to be issued prior to the installation of the photo composing machine. Such a notice could have been sent before January, 1981 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of notice under Section 9-A read with item 10 Schedule IV with which we are concerned in the present case it has been clearly ruled that such notice must precede the introduction of rationalisation scheme. We may usefully refer to them at this stage. In the case of M/s. North Brook Jute Co. Ltd. Anr. vs. Their Workmen (1960 (3) S.C.R. 364), a three Judge Bench of this Court had to consider the question whether in a reference regarding proposed introduction of rationalisation scheme which was preceded by notice under Section 9-A of the I.D. Act, such a scheme could be actually introduced pending reference proceedings and whether such an act on the part of the management could be treated to be illegal entitling the workmen affected by such an introduction to go on strike and still earn wages for the strike period. Answering this question in affirmative it was held by this Court that after notice under Section 9-A of the I.D. Act when a scheme of rationalisation was said to be introduced but was not actually introduced it could not be introduced till the dispute regarding such proposed introduction was resolved by the competent Court. Dealing with the scheme of proposed rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred for adjudication of the competent Court, the said Court after hearing the parties and considering the evidence can come to the conclusion whether the proposed scheme is justified on facts or not and whether any violation of the provisions of Section 9-A had resulted into illegality of the consequential orders of retrenchment. Such competent Court can also accordingly pass appropriate consequential orders directing the management to withdraw such a scheme of rationalisation or in any case, can order reinstatement of workmen with proper back-wages if such retrenchment is found to be illegal on account of failure to comply with the provisions of Section 9-A of the Act. The question regarding the stage at which notice under Section 9-A can be issued in connection with proposed scheme of rationalisation which has likelihood of rendering existing workmen surplus and liable to retrenchment as mentioned in item no.10 of Schedule IV of the I.D. Act was once again examined by a three judge bench of this Court in Hindustan Lever Ltd. vs. Ram Mohan Ray Ors. (1973 (4) SCC 141). In that case, this Court was concerned with a scheme of rationalisation and re-organisation which were propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of workmen. In view of the aforesaid decision, it becomes obvious that if the proposed scheme of rationalisation has a likelihood of rendering existing workmen surplus and liable to retrenchment, then item no.10 of Schedule IV would squarely get attracted and would require as a condition precedent to introduction of such a scheme a notice to be issued under Section 9-A by the management proposing such an introduction of the scheme of rationalisation, but if the proposed scheme is not likely to displace any existing workmen then mere rationalisation which has no nexus with the possibility of future retrenchment of workmen would not attract item no.10 of Schedule IV and would remain a benign scheme of rationalisation having no pernicious effect on the existing working staff. In view of the aforesaid settled legal position, there is no escape from the conclusion that the impugned notice dated 25th March, 1982 under Section 9-A which was issued long after the actual installation of the photo composing machine had fallen foul on the touchstone of Section 9-A read with Schedule IV item no.10. Such a notice in order to become valid and legal must have preceded introduction of such a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra Act. The topic of `unfair labour practice' is dealt with in Chapter VI of the said Act. Section 26 is the first section in the said chapter which provides as follows : `unfair labour practices:- In this Act, unless the context requires otherwise, `unfair labour practices' mean any of the practices listed in Schedules II, III and IV. Section 27 lays down as follows : Prohibition on engaging in unfair labour practices:- No employer or union and no employee shall engage in any unfair labour practice. Section 28 lays down the procedure for dealing with complaints relating to `unfair labour practices'. Sub-section (1) thereof provides as follows :- (1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such `unfair labour practice', file a complaint before the Court competent to deal with such complaint either under section 5, or as the case may be, under section 7, of this Act: Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er attracted any of the clauses (a) to (g) of item no.1 of Schedule IV. Learned counsel for the appellant, in this connection, vehemently contended that item no. 1 of Schedule IV of the Maharashtra Act deals with only punitive discharges or dismissals and not any simpliciter discharge order or termination order which is not passed by way of punishment. In order to support this contention, learned counsel for the appellant relied upon principles of interpretation, namely, the principle of noscitur a sociis as well as the principle of ejusdem generis. So far as the first principle of interpretation is concerned, he referred to Maxwell on The Interpretation of Statutes , 12th Edition at page 289 dealing with the question regarding understanding associated words in common sense. The learned author in connection with this principle has made the aforesaid pertinent observations : Where two or more words which are susceptible of analogous meaning are coupled together, noscuntur a sociis. They are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come ineligible for employment elsewhere considering less serious nature of proved charges of misconduct against him in domestic inquiry. But that is not the end of the matter. In service jurisprudence the term `discharge' has assumed a wider connotation and may include in its fold not only punitive discharge orders but also simpliciter discharge orders where the employer seeks to snap the relationship of employer and employee but without any intention to penalise the employee. He does so because of exigencies of service and employment conditions which may require him to say goodbye to the employee but without any intention to punish him. Such simpliciter discharge orders can be illustrated as under : An employee, on probation, may not be found to be suitable and may not earn sufficient merit so as to be confirmed in service. Consequently, his probation may be terminated and an order of discharge simpliciter can be passed against him. There may also be other cases of single discharge under the contract of employment for a fixed period where an employee on efflux of time may be terminated. There may also be cases where an employee may become surplus and would no longer be req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliciter discharge orders are not covered by item `1' clause (`a') of Schedule IV. Similarly clause (`b') may contemplate a discharge order which is not passed in good faith but in the colourable exercise of employer's rights. Thus, the employer may have merely a pretext to put an end to the service of the employee who may not have misconducted himself at all. Therefore, there will be no occasion to have any departmental inquiry against him as no charge could be framed regarding any misconduct on his part. Still if such an undesirable employee is to be removed from service then even though the simpliciter discharge order is passed if it is shown that it is not in good faith but as a result of malafide intention of the employer, then such a discharge order can also attract the category of `unfair labour practice' as enacted by the Legislature in item nos. (`a') and (`b'). Similar Legislature scheme is discernible from clause (c) of item no. 1 which deals with an order of discharge or dismissal by falsely implicating an employee in a criminal case on false evidence or on concreted evidence. In such a situation discharge or dismissal order may operate as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em no. 1 got attracted in connection with such discharge orders they would make the employer, author of such discharge orders answerable for the alleged `unfair labour practice' permeating the passing of such simpliciter discharge orders. To recapitulate, in the present case, respondent's complaint is not that his discharge was by way of penalty but his complaint is that the discharge order in his case was a result of victimisation and was not passed in good faith but was passed on patently false reasons and was a result of undue haste on the part of the appellant-employer. Whether the said complaint was justified on merits or not is a different matter but it can not be said that such a complaint regarding non-penal discharge order was dehors the scope and ambit of item no.1 of Schedule IV of the Maharashtra Act. Before parting with the discussion on this aspect we may mention that learned counsel for the appellant also relied upon the other rule of interpretation, namely, rule of ejusdem generis. The said rule of interpretation provides as follows : When particular words pertaining to a class, category or genus are followed by general words, the general words are const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Constitutional Bench of this Court in State of Rajasthan Anr. vs. Sripal Jain, (1964 (1) SCR 742), this Court was concerned with the interpretation of Rule 244(2) of the Rajasthan Service Rules read with rule 31(vii) (a) of the Rules. In the light of the said statutory scheme of these Rules, the Court made the following pertinent observations : Held, that compulsory retirement provided in r. 31(vii)(a) is a compulsory retirement as a penalty and not compulsory retirement of the other two kinds namely (1) Compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r.244(2), neither of which is a punishment. It is difficult to appreciate how the said decision rendered on the special scheme considered by this Court in that case can be of any assistance to learned counsel in the present case. The scheme with which we are concerned contraindicates any such conclusion as tried to be pressed in service by learned counsel in support of his contention that the word `discharge' is used synonymously or analogously by the Legislature along with the word `dismissal'. It is also well settled that the word `discharge' may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yees in the erstwhile hand composing department becoming excess and surplus. That is the reason why impugned notice under Section 9-A of the I.D. Act was issued to the respondent and other workmen and ultimately resulted in the impugned retrenchment order. It is difficult to appreciate how such an action on the part of the appellant can be treated to have been the result of victimisation. The respondent was not being victimised for any extraneous reason. On the contrary, it was based on a genuine factual reason. Hence clause (a) of item no.1 of Schedule IV is out of picture. Parameters of the term `victimisation' have been considered by a three Judge Bench of this Court in the case of Colour-chem Limited vs. A.L. Alaspurkar Ors. [1998 (1) Scale 432], where one of us, S.B.Majmudar J., speaking for the Bench in para 13 of the report observed that the term `victimisation' is a term of comprehensive import. Thus, if a person is made to suffer by treatment, it would amount to victimisation. On the facts of the present case, therefore, it is not possible to hold that the impugned discharge of the respondent was based on non-germane or extraneous reasons or it was passed with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held that the proposed termination was not based on real reason or was effected on patently false reasons. If no such machine was ever introduced and still such a ground was made out for passing the impugned order, then it could have been said that the impugned termination was passed on patently false reasons. The patently false reason would be one which has no existence at all in fact and is a mere pretext or an excuse. Such is not the situation in the present case. It may be that the reason given may not be strictly accurate in the sense machine was already introduced and was not likely to be introduced by the time notice under Section 9-A was given followed by the impugned termination order. That may have effect of non-compliance of the provisions of Section 9-A. The said notice, as we have seen earlier, on that score may become inoperative or illegal. Still the reason for termination cannot be said to be patently false. We, therefore, disagree with the conclusion of the Division Bench of the High Court in view of our aforesaid findings regarding non-applicability of clauses (a), (b) (d) of item 1 of Schedule IV. On this conclusion, we would have been required to dismiss th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof. It is also to be kept in mind that once such report reaches the State Government, in the light of the report if the State Government finds that the dispute is a genuine dispute which requires adjudication, it may make an order of reference or if, on the other hand, the State Government finds from the report that the dispute is frivolous it may not make a reference but that stage could reach only after the report is received and scrutinised by the State Government. Under these circumstances, for passing the impugned retrenchment order within half an hour of the close of investigation by the Conciliation Officer, the appellant could not have presumed that the report would necessarily indicate total frivolousness of the dispute and that would not persuade the State to make a reference of the dispute for adjudication by a competent Court. Without waiting to see as to what will be the nature of the report and the contents, the appellant tried to help itself and in undue hurry passed the impugned order. The result was that by one stroke the appellant pre-empted the report of the conciliator on the one hand and on the other hand even the future objective action of the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, as already held by us on point no.1, the conciliation proceedings had not terminated when the impugned order was passed. The result was that Section 33(1) got violated and the appellant became liable to be punished as per Section 31(1) of the I.D. Act incurring a penalty for being convicted of an offence punishable with imprisonment for a term which may extend to 6 months or with fine or with both. Thus the impugned order cannot, but be held to have been passed with undue haste. The intention behind passing such a hurried order was obviously to cut across and pre-empt the submission of failure report by the conciliator on the one hand and its consideration by the State on the other and even for avoiding the future possibility of a reference under the I.D. Act and also the future possibility of the Court's intervention by way of interim relief against such order. But to crown it all by such undue hurry the appellant made itself liable to be punished and incurred a criminal liability for the same. All these consequences unequivocally project only one picture that the impugned order was passed in a great hurry and with undue haste. This conclusion is inevitable on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n continued by the reference Court pending the adjudication of such a dispute. The appellant with a view to avoid all these uncomfortable situations indulged in self help and passed the impugned order on the very evening of 22nd June, 1982. This is an additional facet of the deliberate undue haste resorted to by the appellant for short circuiting all possible inconvenient situations and to present the respondent with a fait accompli and also to placate the Conciliation Officer on the one hand and the State Government on the other and ultimately the reference Court also. Consequently it must be held that the impugned order was clearly a result of undue haste and, obviously amounted to `unfair labour practice' on the part of the appellant as per Schedule IV item 1 clause (f) second part. Consequently, this point for determination is held against the appellant and in favour of the respondent only to the extent of applicability of the aforesaid provision. Point No.5: So far as this point is concerned, we have already noted that the Labour Court itself has found that notice under Section 9-A was a belated one and should have been given at least by November, 1981 when the machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter cannot be lost sight of while closing the present chapter. The respondent's services were terminated on 22nd June, 1982 and that the termination is found to be amounting to `unfair labour practice' as per the provisions of Section 30 of the Maharashtra Act. On this conclusion, the appellant has to be asked to withdraw such `unfair labour practice', meaning thereby, the impugned order has to be set aside and, thereafter, affirmative action including reinstatement of the employee with or without back-wages could be ordered by the Labour Court in these proceedings. However, as the High Court has noted that reinstatement is out of question as respondent has reached the age of superannuation, in the meantime, with effect from 3.5.1995, therefore, at the highest the respondent is entitled to back-wages for 13 years with gratuity and other retirement benefits. That is precisely what is ordered by the High Court in the impugned judgement. However, learned counsel for the appellant is right when he contends that even before the conciliator the respondent's union on behalf of its members including the present respondent who were all facing retrenchment suggested th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal order of the High Court impugned in this appeal, a modification is made regarding back-wages payable to the respondent. This is required also in view of the further fact that we disagree with the conclusion of the Division Bench of the High Court that the appellant was guilty of `unfair labour practice' under item Nos.1(a), (b) and (d) of Schedule IV of the Maharashtra Act and the decision of the High Court is being confirmed regarding `unfair labour practice' of the appellant only under item 1(f) second part of Schedule IV of the said Act. While considering the grant of appropriate back-wages, we deem it fit to adopt the same yardstick which was suggested by the respondent-workman's union for all its members including the respondent that one third of back wages for each completed year of service would be acceptable to them. We, accordingly, deem it fit to modify the final order of the High Court to the following extent : The appeal of the respondent before the High Court will be treated to be allowed by holding that the appellant management had indulged in `unfair labour practice' only under item 1(f) second part of Schedule IV of the Maharashtra Act with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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