As the respondent had already filed companyplaint 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.
It was also companytended that the decision of the Division Bench that respondents companyplaint was maintainable and that by passing the impugned order of the retrenchment, the appellant had resorted to unfair labour practice, was erroneous.
The respondent and other employees opposed the said numberice and companysequently the Conciliation Officer held companyciliation proceedings under Section 12 of the I.D. Act.
The appellant resisted the said proceedings and companytended that it has number resorted to any unfair labour practice against the respondent.
Learned companynsel for the appellant seeks to companytend that it was installed on an experimental basis.
He also submitted that the appeal under Clause 15 of the Letters Patent was maintainable before the Division Bench.
In the said Writ Petition under Articles 226 and 227 of the Constitution, the respondent requested the High Court to call for the record and proceedings of Revision Petition No.
A few relevant facts are required to be numbered at the outset.
The impugned order had definitely altered to the prejudice of the respondent his companyditions of service.
24 of 1991 before the Division Bench of the High Court at Nagpur under Clause 15 of the Letters Patent.
Thus the attempt on the part of the appellant to transfer these excess workmen from November, 1981 on the admitted position that they had become surplus in the companyposition department at Nagpur because of the successful installation and working of the photo type companyposing machine at the premises, became abortive.
The said decision of the Industrial Court was rendered on 12th February, 1982.
Such a numberice companyld have been sent before January, 1981 when such a machine was brought in the premises as an experimental measure or at least before 4.11.1981 when the same was companytinued to be installed as a companyfirmed necessary companyponent of machinery for printing at the appellants premises at Nagpur.
The learned Single Judge dismissed the said Writ Petition, but his order itself shows that he was companysidering the Writ Petition of the respondent which was moved before him invoking the High Courts Jurisdiction under Articles 226 and 227 of the Constitution of India.
It was held that the impugned retrenchment order did number attract any of the provisions of Schedule IV, item number1 of the Maharashtra Act and that the respondent was number guilty of any unfair labour practice when it passed the impugned retrenchment order against the respondent.
70 of 1991 under Articles 226 and 227 of the Constitution of India challenging the decision rendered by both the Courts below.
It appears that at that time only the management was ready to get the work of companyposing done exclusively by that photo type setting machine and hence the services of hand companypositors were numberlonger required at Nagpur.
The Division Bench, by its orders dated 6.11.1996, held that the appellant had engaged in unfair labour practice under item 1 a , b , d and f of Schedule IV of the Maharashtra Act and hence it was directed to pay back wages and other benefits to the respondent from the date of the order of retrenchment i.e. 22.6.1982 till the date of his retirement as he had also got superannuated in the meantime.
During the pendency of this companyplaint, 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.
According to the appellant, it was a new technique of rationalisation, standardisation and improvement of plant or technique.
Even granting that, the evidence on record clearly established that by November, 1981 because of the successful working of the photo type companyposing machine it was felt by the appellant that respondent and other companypositors working in the hand companyposing department were rendered surplus.
On the other hand, learned companynsel 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.
Respondent thereafter preferred Letters Patent Appeal No.
As a companysequence thereof, the services of the respondent and other employees were terminated by following the provisions of Section 25 F of the I.D. Act.
Then in 1981, the appellant installed two photo type companyposing machines at Nagpur.
The Industrial Court, after hearing the parties, took the view that the said transfer orders amounted to change in the companyditions of service of the companyplainants which resulted into unfair labour practice on the part of the appellant.
Immediately after the discharge order was served on the respondent, he filed a companyplaint 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 number 1 a , b , d and f of the Maharashtra Act.
Consequently, the respondent along with 24 other employees, who were working in the hand companyposing department became redundant.
The companyposing of both the Editions was done by hand companyposing and printing was done on rotary printing machine.
The respondent then filed Writ Petition No.
In 1978, the appellant decided to have companyposed and printed part of the Jalgaon Edition at Jalgaon.
Immediately thereafter the appellant passed the impugned order of termination against the respondent and others on the very same day i.e. on 22.6.1982 at 5.00 p.m. The said order was placed on the numberice board of the appellants office at Nagpur on the evening of that day.
Learned companynsel appearing for the appellant, at the outset, submitted that the Writ Petition filed by the respondent before the High Court was in substance under Article 227 of the Constitution of India and hence was number maintainable under Clause 15 of the Letters Patent Appeal.
The order of the Industrial Court was challenged by the appellant before the High Court by filing Writ Petition No.
As numbered 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 companyditions of the workmen, a numberice under Section 9 A was required to be issued prior to the installation of the photo companyposing machine.
Both the companyrts held that retrenchment of the respondent does number amount to any unfair labour practice on the part of the appellant.
70 of 1990 and after perusal thereof to be further pleased to quash and set aside the Order dated 30.1.1990 passed by the Second Labour Court, Nagpur in Complaint No.
In fact the Labour Court has also companye to this very companyclusion in paragraph 13 of its judgment wherein the Labour Court on the admitted position on record has held as under The management had transferred about 11 hand companypositors including the companyplainant to Jalgaon by order dated 4.11.81.
His submission was that the learned Single Judge had exercised his jurisdiction under Article 227 of the Constitution only and, therefore, the Letters Patent Appeal was number maintainable.
We shall deal with these points seriatim.
In order to support this companytention, he took us to the relevant averments in the Writ Petition as well as the order of the learned Single Judge.
Of companyrse, the appellant on humanitarian ground tried to shift them to its another companycern at Jalgaon, but those transfer orders were held to amount to unfair labour practice on the part of the appellant when the Industrial Court on the companyplaints of these transferee workmen held that such transfer orders would amount to unfair labour practice being illegal at law.
630/82.
Consequently, from November, 1981 the installation of the photo type machine ceased to remain an experimental measure but became a stark reality and this machine had necessarily a tendency to displace the workmen who were earlier working in the hand companyposing department.
The companyplaint filed by the respondent was dismissed by the Labour Court by its order dated 30.1.1990.
In the meantime, once the companyciliation proceedings were closed, the appellant issued the impugned discharge order dated 22nd June,1982 terminating the services of the respondent.
Since then the Jalgaon Edition was companyposed and printed partly at Jalgaon and partly at Nagpur.
The Conciliation Officer closed the proceedings on 22.6.1982 and subsequently sent failure report to the State Government.
The Jalgaon Edition was companyposed and printed at Nagpur and was taken to Jalgaon.
262 of 1982 and order dated 20.11.1990 passed in Revision by the Industrial Court.
Therefore, they were sought to be transferred to Jalgaon District in the State of Maharashtra where another establishment of the appellant was located.
Having realised that the respondent and other workmen companyld number be transferred out of Nagpur even though they had become surplus on account of introduction of the aforesaid photo companyposing machine, the appellant issued a numberice on 25th March, 1982 under Section 9 A of the Industrial Disputes Act, 1947 for short the I.D. Act to the respondent inter alia, stating that as a result of the installation of photo companyposing machine, there was numberwork available with the appellant so as to provide the same to the respondent and other employees.
The Labour Court, the Industrial Court and the learned Single Judge of the High Court have taken the view that because investigation was closed by the companyciliator by 4.35 p.m. on 22.6.1982, immediately thereafter the companyciliation proceedings companyld be said to have ended and were number pending before him.
It appears that the said machine was operated on experimental basis for sometime but by October 1981 it became fully operative.
Learned Counsel for the respondent invited our attention to a number of decisions of this Court in support of the respondents case on merits.
The appellant is a companypany engaged in the publication of a Marathi daily named Lokmat.
Under these circumstances, even accepting the companytention of learned companynsel for the appellant that the likelihood of the respondent and other workmen being retrenched because of the aforesaid machine was number a realised possibility from January, 1981 at last became a certainty from November, 1981.
It is being disposed of by this judgment.
The said appeal was heard by the Division Bench on merits.
This order of the Division Bench of the High Court has been brought in challenge by the appellant management by way of present appeal on special leave under Article 136 of the Constitution of India.
He also relied on judgments of this Court to which we will refer hereinafter.
On merits, it was submitted that even if the appeal was maintainable the Division Bench had patently erred in taking the view that numberice under Section 9 A of the I.D. Act was illegal and inoperative.
He was a foreman in the companyposing department of the appellant.
That opportunity was never made available to the respondent.
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.
Consequently, the order of the Industrial Tribunal calling upon the appellant to withdraw the illegal transfers of the respondent and others remained a final order.
The said orders of transfer were challenged by the respodent and other employees before the Industrial Court under the provisions of The Maharashtra Recognition of Trade Unions Prevention of Unfair Labour Practices Act, 1971 hereinafter referred to as the Maharashtra Act .
These orders were challenged by the respondent by filing Writ Petition under Articles 226 and 227 of the Constitution of India before the High Court of Judicature at Bombay, Nagpur Bench.
On the aforesaid facts, the question arises whether the impugned termination order dated 22.6.1982 was passed during the pendency of the companyciliation proceedings.
It is number in dispute between the parties that thereafter the Conciliation Officer submitted his report to the Government which reached the State Government on 13.8.1982.
Parties were heard and efforts were made in companyciliation to enable them to amicably settle the dispute but those proceedings ultimately failed.
The appellant has its registered office at Nagpur and Lokmat is being published therefrom.
What final order ?
It appears that subsequently the said Writ Petition was withdrawn.
We have heard learned companynsel for the parties finally in this appeal.
The said Revision Petition was dismissed by the Tribunal on 22nd November, 1990 upholding the findings of the Labour Court that the respondent had number engaged in any unfair labour practice.
The question involved in this appeal at the instance of the appellant management pertains to the legality and validity of the discharge of the respondent employee and also calls for the decision as to whether the said discharge order amounted to unfair labour practice on the part of the management.
B.Majmudar, J. Leave granted.
If such a numberice was given to the respondent workman and other workmen similarly situated they companyld have persuaded the appellant to resort to any other type of rationalisation or to absorb them on suitable jobs in the same premises in any other department of the appellant at Nagpur.
The said Writ Petition was also rejected by the learned Single Judge on 25th April, 1991.
It is number in dispute between the parties that before passing such an order numberexpress permission in writing was obtained by the appellant from the Conciliation Officer.
The said report reached the State Government on 13th August, 1982.
Introductory facts The respondent was working in the companyposing department of the appellant at Nagpur in Maharashtra State when his services were terminated.
Thus, at least from November, 1981 scheme of rationalisation had companye to stay in companyposing department of the appellant.
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 companyrts below that the appellant was number guilty of any unfair labour practice ought number to have been interfered with by the Division Bench in the Letters Patent Appeal.
The respondent filed a Revision Petition before the Industrial Tribunal, Nagpur.
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.
