TMI Blog2013 (10) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive Engineer Irrigation Department, Sangli, are the appellants herein, whereas Sarva Shramik Sangh, Sangli, a Trade Union representing the workmen concerned, and two of the workmen in the concerned Industrial Establishment are the respondents to this appeal. Facts leading to this appeal are this wise:- 3. The Government of Maharashtra established a corporation named as the Irrigation Development Corporation of Maharashtra Limited, sometimes in December 1973. This Corporation was a Government of Maharashtra undertaking. It set up 25 lift irrigation schemes to provide free services to farmers. The corporation was established in the aftermath of a terrible drought which afflicted the State in the year 1972. Some 256 workmen were employed to work on the irrigation schemes of the said Corporation. Though it was claimed that the workmen were casual and temporary, the fact remains that many of them had put in about 10 years of service when they were served with notices of termination by the appellant No.2 on 15.5.1985. The notice sought to terminate their services w.e.f. 30.6.1985, and offered them 15 days compensation for every completed year of service. The retrenchment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 25N of the I.D. Act (which requires three months advance notice prior to termination) was applicable, but had not been complied with. The learned Judge of the Labour Court did not deal with that submission, but held that in any case there was a violation of Section 25F of the I.D. Act, inasmuch as not even one month s notice had been given and hence the termination was illegal. 7. In the Written Statement filed by the appellant No.2 before the Labour Court, it was stated in paragraph 3, that various schemes were carried out by the State Government at its own expense. In paragraph 4 it was contended that the workmen concerned were the employees of the Irrigation Department. In paragraph 14 thereof, it was stated that the termination is not by way of victimization but as the irrigation scheme has been transferred to Shetkari Sahakari Sakhar Karkhana, Sangli, the employees are not entitled to retain in the services without any work. 8. In the written statement there was no specific reference to Section 25FF of the I.D. Act which deals with the transfer of undertakings. There was no reference to the said section in the judgment of the learned Judge either. We may ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge of the Bombay High Court invoking Article 227 of the Constitution of India. The learned Single Judge who heard the matter took the view that the process of pumping water wherein the workmen were employed, amounted to a manufacturing process under Section 2(k) of the Factories Act, 1948, and therefore, the lift irrigation schemes were in the nature of a factory as defined under Section 2(m) of the said Act, and hence, an Industrial Establishment to which the I.D. Act applied. 11. The learned Single Judge then held that since according to the State Government, the workmen were employed by the Irrigation Department, the plea that their services were required to be terminated on account of the transfer of the undertaking could not be accepted. This was on the footing since the other activities of the Irrigation Department continued even after the transfer of the lift irrigation schemes, the workmen concerned could certainly be absorbed into other activities of the irrigation department. 12. The learned Single Judge observed that the plea invoking Section 25FF could not be permitted to be raised in the High Court, inasmuch as transfer was a mixed question of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision Bench as well as of the learned Single Judge, this appeal has been filed. Leave was granted in this matter on 8.5.2006, and the operation of the impugned order was stayed subject to the compliance of the provisions of Section 17B of the I.D. Act, 1947. The appeal has been pending since then, and a number of I.As have been filed by both parties. When the appeal reached for final hearing, Ms. Madhavi Diwan, learned counsel appeared for the appellants, and Mr. Vinay Navare, learned counsel appeared for the respondents. Submissions on behalf of the appellants:- 14. The principal submission of Ms. Madhavi Diwan, learned counsel for the appellants is that this is a case of transfer of an undertaking. That was the very plea taken in paragraph 14 of the written statement as noted above, and also reflected in the judgment of the Labour Court. The learned Single Judge had clearly erred in ignoring this fact. Ms. Diwan submitted that in fact it was also the case of the respondents themselves that retrenchment of their services took place because of the transfer of the undertaking. She submits that the lift irrigation schemes constituted an undertaking, and the ownership of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that though termination of services on transfer may not be retrenchment, the workmen concerned are entitled to compensation as if the said termination was retrenchment. This provision has been made for the purpose of calculating the amount of compensation payable to such workmen; rather than provide for the measure of compensation over again, s. 25FF makes a reference to s. 25-F for that limited purpose, and, therefore, in all cases to which s. 25FF applies, the only claim which the employees of the transferred concern can legitimately make is a claim for compensation against their employers. No claim can be made against the transferee of the said concern. This judgment in Anakapalle (supra) has been consistently followed thereafter, including in a recent judgment of this Court in Maruti Udyog Ltd. v. Ram Lal and Ors. reported in 2005 (2) SCC 638. Reply on behalf of the respondents:- 15. As far as the respondents are concerned, they have principally contended that Section 25FF has no application to the present case, and the learned Single Judge of the High Court has rightly held that this is a case which is covered under Section 25N. It is submitted that in view of Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Two SLPs therefrom were found to be time barred and therefore dismissed. As far as the third SLP is concerned, this Court declined to entertain the same for the sole reason that any such interference will result in making conflicting orders regarding tenancy rights in the same land. It was therefore, submitted by Mr. Navare, the learned counsel for the respondent that the appellants should suffer by the principle of estoppel by record. 17. In support of the contention that the orders passed by this Court in the case of the other 10 workmen should be followed in the present case, reliance was placed on paragraph 21 of a judgment in the case of Nirmal Jeet Singh Hoon v. Irtiza Hussain and Ors. reported in 2010 (14) SCC 564. The judgment impugned in that matter directing eviction of tenant had already been upheld in an earlier SLP, wherein the Petitioner was also a party. Entertaining the second petition, on his behalf, would have amounted to reviewing the earlier order of this Court. This Court dismissed the petition by observing The law does not permit two contradictory and inconsistent orders in the same case in respect of the same subject matter . It was therefore submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pumping water. Hence, it cannot be denied that the undertaking in which the workmen concerned were employed was covered under the provisions of I.D. Act. 20. It is, however, contended on behalf of the appellant that the said undertaking was being run by the irrigation department of the first appellant, and the activities of the irrigation department could not be considered to be an industry within the definition of the concept under Section 2(j) of the I.D. Act. As noted earlier, the reconsideration of the wide interpretation of the concept of industry in Bangalore Water Supply and Sewerage Board (supra) is pending before a larger bench of this Court. However, as of now we will have to follow the interpretation of law presently holding the field as per the approach taken by this Court in State of Orissa v. Dandasi Sahu (supra), referred to above. The determination of the present pending industrial dispute cannot be kept undecided until the judgment of the larger bench is received. 21. Having stated that however, the objection raised by the appellants to the judgment rendered by the Single Judge of the Bombay High Court is required to be looked into viz. that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the termination, ought to be explained. We do not find any such efforts or explanation placed on record. 23. It is also material to note that the Labour Court had directed the State Government to consider the absorption of these workmen. The respondents have placed it on record that in pursuance of a subsequent advertisement for employment in the irrigation department, the first respondent-union had written to the authorities concerned to absorb these workmen, but the Government took a bureaucratic attitude to inform the Union that no such decision could be taken, since the matter was pending in the Supreme Court. This attitude was not expected from a Welfare State. 24. In any case, having noted that another petition concerning 10 other workmen from the same lift irrigation schemes was dismissed, and SLP and Curative Petitions, therefrom, were also dismissed, a question arises for this Court to consider that assuming this was a case of transfer of undertaking, should the relief to the affected workmen be restricted only to the compensation under Section 25F as required by S 25 FF. 25. The learned counsel for the respondents has referred to a few cases arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had worked in an ex-cadre post for a very long time, and was reverted to his parent post, though not immediately when the policy decision to repatriate ex-cadre employees was taken. Working in the ex- cadre post for a long time did not confer any right to continue in that post or for pay protection. Considering, however, the long time spent in the ex-cadre post, this Court specifically invoked Article 142 to grant him protection of pay. 27. In the facts and circumstances of the present case also, accepting that the termination did result on account of transfer of the undertaking, the relief to be given to the workmen will have to be moulded to be somewhat similar to that given to the other group of 10 workmen. It will not be just and proper to restrict it to the rigours of the limited relief under Section 25FF read with 25F of the I.D. Act. Prior to the termination of their services on 30.6.1985, many of the workmen concerned had put in a service of about 10 years. Inasmuch as so many years have gone since then, most of them must have reached the age of superannuation. In the circumstances, there cannot be any order of reinstatement. However, they will be entitled to continu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
