Messrs. Kamarhatty Co. Ltd vs Shri Ushnath Pakrashi

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 310 of 1954

Decision Date: 21 May 1959

Coram: K.N. Wanchoo, Bhuvneshwar P. Sinha, P.B. Gajendragadkar

The case was titled Messrs. Kamarhatty Co. Ltd versus Shri Ushnath Pakrashi and was decided on 21 May 1959 by the Supreme Court of India. The judgment was authored by Justice K.N. Wanchoo, with Justices Bhuvneshwar P. Sinha and P.B. Gajendragadkar forming the bench. The petition was filed by Messrs. Kamarhatty Co. Ltd as the petitioner and Shri Ushnath Pakrashi as the respondent. The official citation of the decision is reported in the 1959 All India Reporter at page 1399 and also in the 1960 Supreme Court Reports (First Series) at page 473. The dispute involved provisions of the Industrial Disputes Act, 1947, specifically sections 33A and 10, dealing with the power of a tribunal to order reinstatement of a worker. The headnote recorded that the respondent had made an application under section 33A claiming that there was no justification for retrenchment because the closure of a ration shop had made the position redundant, and further asserted that he had longer service than employees who were retained, thereby alleging a breach of the “last come, first go” principle. The Industrial Tribunal dismissed his application, after which the respondent appealed to the Labour Appellate Tribunal, which allowed the appeal and prohibited any retrenchment. The appellant obtained special leave to appeal, limited to the question of whether an order of reinstatement could be issued on the basis of an application under section 33A. The Court held that a complaint under section 33A was equivalent to a reference under section 10, granting the Tribunal full authority to consider reinstatement in appropriate cases.

The matter arose in Civil Appeal No. 310 of 1954, filed by special leave against the judgment and order dated 22 March 1956 of the Labour Appellate Tribunal of India, Calcutta, in Appeal No. Cal. 183 of 1955. Counsel for the appellant included N.C. Chatterjee, S.N. Mukherjee and B.N. Ghosh, while the respondent was represented by Sukumr Ghosh. The Court’s opinion was delivered by Justice Wanchoo. The appeal was confined to the legal issue of whether the Industrial Tribunal could order reinstatement on an application filed under section 33A of the Industrial Disputes Act, 1947. The facts essential to this issue were summarized as follows: the appellant, a jute mill, was a party to a broader industrial dispute before an Industrial Tribunal involving several West Bengal jute mills and their employees. During the pendency of that dispute, the appellant laid off the respondent, who worked in a ration shop operated by the mill, on 19 July 1954 because the nationwide food-stuff rationing ended on 10 July 1954, leading to the shop’s closure. Consequently, nine workers were selected for retrenchment based on the “last come, first go” rule, and the respondent was among those selected. The appellant had also applied to the Industrial Tribunal under section 33 for permission to retrench the respondent and others. Shortly before that application, the respondent filed an application under section 33A, arguing that the closure of the ration shop provided no valid reason for retrenchment, that his length of service exceeded that of the retained employees, and that the “last come, first go” principle had therefore been violated. The Court examined these submissions in determining the scope of the Tribunal’s powers under section 33A.

The shop’s closure caused the employees there to become surplus, leading the employer to select nine persons for retrenchment on the “last come first go” principle, and the respondent was among those selected. The employer also filed an application under section 33 of the Act before the Industrial Tribunal seeking permission to retrench the respondent together with the other employees. Shortly before filing the section 33 application, the respondent filed an application under section 33-A of the Act, contending that no retrenchment was justified because the ration shop had been closed and that he had served longer than those who were retained, thereby violating the “last come first go” rule. The respondent further alleged that his lay-off was motivated by his active participation in the union, which placed him out of favor with the employer, and he therefore prayed for full wages, amenities, and reinstatement. The Industrial Tribunal held that the lay-off was justified owing to the closure of the ration shop and granted the employer permission to retrench the respondent on the basis of the “last come first go” principle. The respondent appealed this decision to the Labour Appellate Tribunal, where he did not argue that retrenchment was unnecessary at all, but rather insisted that the Tribunal had erred in finding that the “last come first go” principle had been observed. The Appellate Tribunal found that the respondent had indeed served longer than the workers who were retained, concluding that the employer had violated the “last come first go” rule. Consequently, the Appellate Tribunal allowed the respondent’s appeal, refused the employer’s permission to retrench, and ordered that the respondent be reinstated without any interruption in his service, setting aside the employer’s lay-off and discharge dated 19 July 1954. The employer then approached this Court, which granted special leave limited to the question whether an order of reinstatement can be made on an application under section 33-A of the Industrial Disputes Act, 1947. In this Court’s view, the answer to the limited question depends solely on the language of section 33-A, which provides that when an employer contravenes section 33 during pendency of proceedings before a tribunal, any aggrieved employee may file a written complaint to the tribunal, and the tribunal shall adjudicate the complaint as if it were a dispute referred to or pending before it, in accordance with the Act, and shall submit its award to the appropriate government. The provision thus makes a complaint under section 33-A equivalent to a reference under section 10, giving the tribunal full powers to deal with it as it would a reference under section 10, including the authority to grant appropriate relief such as reinstatement where the complaint concerns dismissal or discharge in breach of section 33.

The Court emphasized that the provisions of the Industrial Disputes Act would operate in exactly the same way for a complaint filed under section 33-A as they do for a reference made under section 10. Consequently, the tribunal possessed every authority that it normally exercises when a dispute is referred to it pursuant to section 10, including the power to pass any order of relief it deems appropriate. Section 33-A further requires that an aggrieved employee submit a written complaint to the tribunal, and upon receipt the tribunal must adjudicate the matter as if it were a dispute referred under section 10. Therefore, the tribunal was empowered to make any order that it could make in a dismissal or discharge dispute, including the authority to order reinstatement of the workman where the facts justified such relief. When a complaint alleges that the employee has been dismissed or discharged in breach of section 33, the tribunal may, after hearing both sides, direct that the employee be reinstated with any salary arrears. In the present case, counsel for the appellant attempted to argue that the situation involved a lay-off rather than a dismissal, and therefore the tribunal’s power to order reinstatement should not arise. The Court refused to allow that argument because the special leave that had been granted limited the consideration to the single issue expressly framed in the petition. Having already answered the precise question presented, namely whether a complaint under section 33-A could lead to a reinstatement order, the Court held that the answer was affirmative. Because the appellant’s contention did not fall within the limited scope of the special leave, the Court concluded that the appeal could not succeed. Accordingly, the Court dismissed the appeal and, observing the special circumstances, ordered that no costs be awarded by this Court. The final order recorded that the appeal was dismissed with no costs awarded.