# tLOKMATNEWSPAPERS PVT. LTD v. SHANKAR PRASAD

- **Citation:** [1999] 3 S.C.R. 907
- **Court:** Supreme Court of India
- **Decided:** 1999-07-19
- **Case number:** Civil Appeal No. 3826 of 1999
- **Bench:** S.B. Majmudar, S.S.M. Quadri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tlokmatnewspapers-pvt-ltd-v-shankar-prasad-16908
- **Pages:** 61

## Headnote

B
Labour Law:
Industrial Disputes Act., 1947 : Sections 12(4) 20(2)(b), 33(1) and
33(J)(b)-Conciliation proceedings-Discharge of workman-During C
pendency of-Without permission from Conciliation Officer-Conciliation
proceedings failed and investigation closed at 4.35 p.m.-Management
discharged workman under S.25-F immediately at 5 p.m. on the very same
day without permission from Conciliation Officer-Validity-Held,
Conciliation proceedings continue even after closure of investigation under D
S. 12(4)-Such proceedings are deemed to be closed when the failure report
under S. 12(4) reaches the appropriate Government-Closure of investigation
does not mean conclusion of conciliation proceedings-Proceedings which
are not concluded are pending and proceedings which are pending cannot
be said to be concluded-In the circumstances of the case, S.33(1) is violated
since conciliation proceedings were pendings when the workman was E
discharged-hence, penal liability under S.31(1) is attracted.
Section 9-A and Schedule IV Item 10-Conditions of service-Change
of-Notice of-Rationalisation, standardisation or improvement of plant or
technique-Introduction of-Employer installed two photo-type composing
machines initially on an experimental basis but later on a permanent basis- F
No prior notice was issued to workmen under S.9-A before introduction of
new scheme-This rendered some workmen in hand-composing department
as surplus-Subsequently, notice under S. 9-A was issued stating that due to
installation of the new machines no work could be given to these workmen
and, therefore, they were being discharged-Held : If there is likelihood of G
retrenchment of workmen no new scheme can be introduced without issuance
of prior notice under S. 9-A-Introduction of such new scheme by itself would
amount to alteration of conditions of service of workmen to their prejudiceNotice under S. 9-A prior to introduction of such scheme is a condition
precedent-Non-compliance with S.9-A renders change of conditions of service
void ab initio-Issuance of notice after introduction of new scheme and H
. 907
908
SUPREME COURT REPORTS
[1999] 3 ,S.C.R.
A discharging the surplus workmen is violative of S. 9-A-But if the proposed
scheme is not likely to displace any existing workmen Item 10 of Sch. iv not
attracted-Installation of new machines amounts to rationalisation,
standardisation, or improvement of plant or technique within the meaning
of Item JO of Sch. IV-Therefore, there is change of condition of service from
B manual to mechanical working-Hence, prior notice under S.9-A is mandatory
before installation of the new machines or before they become operativeDischarge order of workmen being founded upon such illegal notice, set aside.
Conditions of service-Change of-Introduction of new machinesIssuance of notice prior to-Purpose of-Held : If dispute regarding
C introduction of such new machines is referred to competent court for
adjudication that court can decide whether the scheme is justified or is
violative of S. 9-A-Also the court can decide whether retrenchment as a
result of the new scheme is illegal and order reinstatement of workmen with
back wages if such retrenchment is illegal.
D
Maharashtra (Recognition of Trade Unions & Prevention of Unfair
Labour Practices) Act. I 97 I.
Schedule IV Item I-Unfair labour practice-"Discharge" and
"dismissal"-Connotation of-Held : The word "discharge" has wider
connotations comprising of punitive as well as simpliciter discharge-But
E the word "dismiss" is purely an order of penalty and that too of an extreme
type- Discharge and dismissal cover different types of situations and
circumstances under which they are passed-Principles of noscitur a sociis
and ejusdem generis cannot be invoked in connection with Item I Sch. IV so
that discharge may be construed as dismissal-Service Law.
F
Schedule IV Items I (a) to (g)-Discharge or dismissal-Burden of
proof-Held : On the aggrieved employee to first show that he is discharged
on dis

## Text

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tLOKMATNEWSPAPERS PVT. LTD.
A
v.
SHANKAR PRASAD
JULY 19, 1999
[S.B. MAJMUDAR AND S.S.M. QUADRI, JJ.]
B
Labour Law:
Industrial Disputes Act., 1947 : Sections 12(4) 20(2)(b), 33(1) and
33(J)(b)-Conciliation proceedings-Discharge of workman-During C
pendency of-Without permission from Conciliation Officer-Conciliation
proceedings failed and investigation closed at 4.35 p.m.-Management
discharged workman under S.25-F immediately at 5 p.m. on the very same
day without permission from Conciliation Officer-Validity-Held,
Conciliation proceedings continue even after closure of investigation under D
S. 12(4)-Such proceedings are deemed to be closed when the failure report
under S. 12(4) reaches the appropriate Government-Closure of investigation
does not mean conclusion of conciliation proceedings-Proceedings which
are not concluded are pending and proceedings which are pending cannot
be said to be concluded-In the circumstances of the case, S.33(1) is violated
since conciliation proceedings were pendings when the workman was E
discharged-hence, penal liability under S.31(1) is attracted.
Section 9-A and Schedule IV Item 10-Conditions of service-Change
of-Notice of-Rationalisation, standardisation or improvement of plant or
technique-Introduction of-Employer installed two photo-type composing
machines initially on an experimental basis but later on a permanent basis- F
No prior notice was issued to workmen under S.9-A before introduction of
new scheme-This rendered some workmen in hand-composing department
as surplus-Subsequently, notice under S. 9-A was issued stating that due to
installation of the new machines no work could be given to these workmen
and, therefore, they were being discharged-Held : If there is likelihood of G
retrenchment of workmen no new scheme can be introduced without issuance
of prior notice under S. 9-A-Introduction of such new scheme by itself would
amount to alteration of conditions of service of workmen to their prejudiceNotice under S. 9-A prior to introduction of such scheme is a condition
precedent-Non-compliance with S.9-A renders change of conditions of service
void ab initio-Issuance of notice after introduction of new scheme and H
. 907
908
SUPREME COURT REPORTS
[1999] 3 ,S.C.R.
A discharging the surplus workmen is violative of S. 9-A-But if the proposed
scheme is not likely to displace any existing workmen Item 10 of Sch. iv not
attracted-Installation of new machines amounts to rationalisation,
standardisation, or improvement of plant or technique within the meaning
of Item JO of Sch. IV-Therefore, there is change of condition of service from
B manual to mechanical working-Hence, prior notice under S.9-A is mandatory
before installation of the new machines or before they become operativeDischarge order of workmen being founded upon such illegal notice, set aside.
Conditions of service-Change of-Introduction of new machinesIssuance of notice prior to-Purpose of-Held : If dispute regarding
C introduction of such new machines is referred to competent court for
adjudication that court can decide whether the scheme is justified or is
violative of S. 9-A-Also the court can decide whether retrenchment as a
result of the new scheme is illegal and order reinstatement of workmen with
back wages if such retrenchment is illegal.
D
Maharashtra (Recognition of Trade Unions & Prevention of Unfair
Labour Practices) Act. I 97 I.
Schedule IV Item I-Unfair labour practice-"Discharge" and
"dismissal"-Connotation of-Held : The word "discharge" has wider
connotations comprising of punitive as well as simpliciter discharge-But
E the word "dismiss" is purely an order of penalty and that too of an extreme
type- Discharge and dismissal cover different types of situations and
circumstances under which they are passed-Principles of noscitur a sociis
and ejusdem generis cannot be invoked in connection with Item I Sch. IV so
that discharge may be construed as dismissal-Service Law.
F
Schedule IV Items I (a) to (g)-Discharge or dismissal-Burden of
proof-Held : On the aggrieved employee to first show that he is discharged
on dismissed from service and that such an order attracts any of the clauses
(a) to (g) of Item I Sch. IV.
G
Schedule IV Items I (a), (d) and (f)-Applicability-VictimisationEmp/oyer installed two photo-type machines rendering some workmen in
hand-composing department surplus-Such workmen transferred to another
unit of employer where hand-composing department existed-But workmen
refused-Notice under S.9-A of I.D. Act issued to such workmen-Conciliation
proceedings commenced but closed at 4.35 p.m. due to failure-Employer
H discharged said workmen on the very same day at 5 p.m.-Held :
-
LOKMAT NEWSPAPERS PVT. LTD. v. S. PRASAD
909
"Victimisation" under Cl. (a) not established-Lack of good faith on the part A
of employer also not made out so as to attract Cl.(b)-Discharge also not (
on patently false reasons under Cl.(d)-However, employer acted with undue
haste in discharging the workmen which amounted to unfair labour practice
under Cl.(d)
Back wages-Quantum of-Factors to be considered-Workman's B
retrenchment held illegal-But he could not be reinstated as he had already
superannuated-Employer held guilty of unfair labour practice under Item
1 Cl.(j) of Sch. IV of the Maharashtra Act-No effort made to ascertain about
gainful employment of workman-During conciliation proceedings workman's
union suggested compensation@ 4 months' wages for each completed year C
of service but such suggestion rejected by employer-Held : In the
circumstances of the case, such retrenched workman entitled to 1/Jrd of back
wages for each completed year of service.
Constitution of India, 1950.
Articles 226 and 227-High Courts-Letters Patent Appeal- D
Maintainability of-Writ petition filed under Arts. 226 and 227 averred that
Labour Court and Industrial Court committed serious error of law resulting
in miscarriage of justice and infraction of fundamental rights-It was prayed
in the writ petition to call for the record and proceedings and after perusal
thereof to quash and set aside the orders of Labour Court and Industrial E
Court in revision-Single Judge dismissed the writ petition-Held : Writ
petition sought writ of certiorari under Art. 226-Single Judge considered
writ petition under Art. 226 a/so-Therefore, it cannot be said that Single
Judge dismissed the writ petition only under Art. 227-lf Single Judge
exercising jurisdiction under Art. 226 LPA is maintainable but not if
jurisdiction is exercised under Art. 227-When petition is filed both under F
Arts. 226 and 227 and it is dismissed on merits, it should be treated as one
filed under Art. 226 so that the petitioner is_ entitled of file LP A before the
Division Bench of the High Court.
High Courts-Letters Patent Appeal-Cl. 15-Jurisdiction of-Held :
Division Bench of High Court has jurisdiction to correct patent errors of law G
committed by Courts below-If it does not do so it fails to exercise jurisdiction
on its part.
'
Interpretation of Statutes :
legal fiction-Effect of-Held : Full effect of legal fiction has to be H
910
SUPREME COURT REPORTS
[1999] 3 S.C.R.
A given for fructifying the purpose for which it is created
B
Subsidiary Rules-Noscitur a sociis-Principle-Applicability of-Held
: Applicable when two words in a statute are employed in the same sense or
hr;ive analogous meanmg-The word "discharge" does not have the same
meaning as the word "dismiss" and, therefore, the principle not applicable.
Subsidiary Rules-Ejusdem generis-Principle-Applicability of-Held
: Applicable if a particular word is followed by a general word-The principle
does not apply to a converse case i.e. where a genera word such as "discharge"
is followed by a particular word such as "dismiss".
C
Words and Phrases:
D
"Discharge", "dismiss", "victimisation", "not in good faith", "patently
false reasons" and "undue haste"-Meaning/ of-In the context of Sch. IV
items 1 (a), (b) (d) and(/) of the Maharashtra (recognition of Trade Unions
& prevention of Unfair Labour Practices) Act, 1971.
The respondent-workman was working in the composing department of
the appellant at Nagpur when his services were terminated. He was a foreman
in the composing department of the appellant. In the year the appellantcompany started publication of Jalgaon Edition of the said paper. The
E composing of both the editions was done by hand-composing and printing was
done on rotary printing machine. Since 1978 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. The said machines
F were operated on experimental basis for sometime but by October 1981 the
machines 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
where another establishment of the appellant was located. The said orders
G of transfer were challenged by the respondent and other employees before
the Industrial Court under the provisions of the Maharashtra (Recognition
of Trade Unions & Pfevention of Unfair Labour Practices) Act, 1971. The
Industrial Court held that the said transfer orders amounted to change in
the conditions of service of the complainants, which resulted, in 'unfair
labour practice' on the part of the appellant. The said decision of the Industrial
H Court was allowed to become final. Thereupon the appellant issued a notice
L'OKMAT NEWSPAPERS PVT. LTD. v. S. PRASAD
911
on 25-3-1982 under Section 9-A of the Industrial Disputes Act, 1947 to the A
respondent, inter alia, stating that as a result of the installation of photo
composing machines, there was no work available with the appellant so as
to provide the same to the respondent and other employees.
The respondent and other employees opposed the said notice and
consequently the Conciliation Officer held conciliation proceedings under B
Section 12 of the Industrial Disputes Act, 1947 but the proceedings ultimately
failed. The Conciliation Officer closed the proceedings at 4.35 P.M. on 226-1982. 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. by following the provisions of Section 25-F of the I.D. C
Act. Subsequently the Conciliation officer sent a failure report of the State
Government
The respondent filed a complaint on 25-6-1982 before the Labour
Court under Section 28 of the Maharashtra Act alleging that the appellant
indulged in 'unfair labour practice which fell within the provisions of Schedule D
IV Item Nos. l(a), (b), (d) and (t) of the Maharashtra Act 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 that the reference proceedings under Section 10 of the I.D. Act were E
incompetent and barred by Section 59 of the Maharashtra Act. The Industrial
Court upheld this objection and reference under Section 10 of the I.D. Act
was disposed of. The Labour Court dismissed the complaint filed by the
respondent. revision petition filed by the respondent was also dismissed by
the Industrial Tribunal upholding the findings of the Labour Court that the
appellant had not engaged in any 'unfair labour practice'.
The respondent then filed a writ petition under Articles 226 and 227
of the Constitution challenging the decision rendered by both the Courts
below. In the writ petition the respondent requested the High Court to call
F
for the record and proceedings of the Revision Petition and after perusal G
thereof to quash and set aside the orders passed by the Labour Court and
Industrial Court. The respondent averred in the writ petition that, while
interpreting the provisions contained in Sections 9-A, 20 and 33 and other
provisions of the I.D. Act, the courts below 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 H
912
SUPREME COURT REPORTS
[1999] 3 S.C.R.
A justice and also in failure to exercise the jurisdiction vested in the courts
below under the provisions of the Maharashtra Act It was also averred that
the impugned orders of the Courts below had further resulted in infrac~ion
of the respondent's fundamental rights guaranteed under Articles 14, 21
and other Articles as enshrined in the Constitution.
B
· The writ petition was dismissed by a Single Judge of the High Court.
The respondent thereafter preferred Letters Patent Appeal before the Division
Bench of the High Court under Clause 15 of the Letters Patent. The Division
Bench heard the appeal on merits and held that the appellant had engaged
in 'unfair labour practice' under Items l(a), (b) (d) and (t) of Schedule IV of
C the Maharashtra Act and the appellant 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. Hence this appeal.
On behalf of the appellant it was contended that the writ petition filed
D by the respondent was in substance under Article 227 of the constitution and
hence was not maintainable under Clause 15 of the Letters Patent; 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; that the decision of the Division Bench that the respondent's
E complaint was maintainable and that by passing the impugned order of
retrenchmer..t the appellant had resorted to 'unfair labour practice' was
erroneous; that the Division Bench had erred in holding that the impugned
discharge order was violative of Section 33 of the I.D. Act; 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
F Bench in the Letters Patent Appeal; that Item No. l of Schedule IV of the
Maharashtra Act dealt with only punitive discharges or dismissals and not
any simpliciter discharge order or termination order which is not passed by
way of punishment and that the principles of interpretation, namely, the
principle of noscitur a sociis as well as the principle of ejusdem generis were
G applicable to the present case.
The following points arose for consideration before this Court :
1.
Whether the respondent's Letters Patent Appeal was
maintainable;
H
2.
If yes, whether the Division Bench was right in taking the view
LOKMAT NEWSPAPERS PVT. LTD. v. S. PRASAD
913
that the impugned retrenchment order was violative of Section A
· 33(1) of the I.D. Act;
3.
Whether the appellant, in issuing the said order, had violated
the provisions of Section 9-A of the I.D. Act;
4.
Whether the impugned retrenchment order amounted to the
commission of 'unfair labour practice' by the appellant as per B
Schedule IV Items l(a), (b) (d) and (f) of the Maharashtra Act;
5.
Whether the Division Bench was justified in interfering with
the findings of fact arrived at by the authorities below and as
confirmed by the Single Judge while deciding the aforesaid
question of'unfair labour practice';
C
6 •
What final order could be passed?
. Dismissing the appeal, this Court
HELD : Point No. 1 :
D
1.1. 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 the High Court's interference seeking issuance of an appropriate Writ
of Certiorari under Article 226 of the Constitution of India. It is true that
the order of the Single Judge nowhere stated that the Court was considering
the writ petition under Article 226. It is equally true that the Single Judge E
dismissed the writ petition by observing that the Courts below had appreciated
the contentions and rejected the complaint. But the said observation of the
Single Judge did not necessarily mean that he did not in~line to interfere
under Article 227 only when he dismissed the writ petition of the respondent
The said observation equally supports the conclusion that the Single Judge F
was not inclined to interfere under Articles 226 and 227. He was considering
the aforesaid writ petition moved under Article 226 as well as 227.
[930-H; 931-A-D)
1.2. It was open to the respondent to invoke the jurisdiction of the High
Court both under Articles 226 and 227. Once such jurisdiction was invoked G
and when his writ petition was dismissed on merits, it cannot be said that
the Single Judge had exercised his jurisdiction only under Article 227. This
conclusion directly flows from the relevant averments made in the writ
petition and the nature of jurisdiction invoked by the respondent •.
Consequently, it could not be said that Clause 15 of the Letters Patent was
not attracted for preferring appeal against the judgement of the Single H
914
SUPREME COURT REPORTS
(1999] 3 S.C.R. :
A Judge. The appellant being respondent in Letters Patent Appeal joined issues
on merits and did not take up the contention that the Letters Patent Appeal
was not maintainable. For all these reasons, therefore, the primary objection
to the maintainability of the Letters Patent Appeal has to be repelled.
[9~2-C-E]
B
Umaji Keshao Meshram v. Radhikabai, (1986] Supp. SCC 401, relied
on.
Point No. 2:
2.1. The question of violation of Section 33(1) of the Industrial Disputes
Act, 1947 has a direct nexus with the further question whether on 22-6-1982
C when the impugned termination order was passed, conciliation proceedings
were pending before the authority or not. (935-B]
2.2. There is no doubt that after closing the investigation and after
having arrived at the conclusion that no settlement is possible between the
parties, the Conciliation Officer has to sp·end some more time .before
D submitting his detailed written report under Section 12(4) of the I.D. Act
about failure of conciliation, for information and necessary action by the
State Government. In the very nature of things, therefore, such requirement
will take at least a couple of days, if not more, for the conciliator after
closing the investigation to enable him to send an appropriate report to the
State Government. It is not possible to accept the contention of the appellant
E that closure of investigation automatically amounted to termination of
conciliation proceedings and that after the closure of investigation the
conciliator became functus officio and the Management could not have
approached him for express written permission to pass the impugned order.
Closure of investigation by the conciliator is not the same as closure of
F conciliation proceedings. The legislature while enacting Section 12(4) has
deliberately not used the words 'closure of conciliation'.
(935-F-G; 936-C-D; F-G]
2.3. It becomes obvious from Section 20(2) that the legislature has
introrluced by way of a legal fiction an irrebuttable presumption as per subG clause (b) of Section 20(2) that when during conciliation proceedings no
settlement is arrived at between the parties, the conciliation proceedings
initiated under Section 12(1) whether of a discretionary nature or of a
mandatory nature shall be treated to have continued and only to have concluded
when the failure report reaches the appropriate Government. Conciliation
proceedings, which are deemed not to have concluded, must be deemed to
H have continued or remained pending. That which is not concluded is pending,
.
l
LOKMAT NEWSPAPERS PVT. LTD. v. S. PRASAD
915
equally that which is pending cannot be said to be concluded. During the A
interregnum of necessity such conciliation proceedings have to be treated
as pending before the conciliation officer. Legal fiction created by Section
.
20(2) is for the purpose of laying down as to till what sHtg~iconciliation
-proceedings can bt said to be pending and whe,11 they can be _said to have
concluded. The legal fiction, which is created for t_hat purpose by Section B
,.
20(2), has to be given its full effect for fructifying the said legislative
intention. [937-F-G; 938-A-B; 940-B; 939-F-~)
Andheri Maro/ Kur/a Bus Service v. State of Bombay, AIR (1959) SC
841, relied on.
Chemicals & Fibres of India Ltd v. D.G. Bhoir, [1975] 4 SCC 332, held c
inapplicable.
Bengal Immunity Co. Ltd v. State of Bihcir, AIR (1955) SC 661, referred
to.
Workers v. Industry Colliery, AIR (1953) SC 88 and Colliery Mazdoor
Congress v. New Beerbhoom Coal Co. Lid., 1952 Lab AC 219, cited.
D
2.4. Conciliation proceedings would terminate only as provided by
Section 20(2)(b) of the I.D. Act. Meaning thereby, till the failure report
reaches the appropriate State Government, conciliation proceedings cannot
be said to have terminated. Hence, Breach of Section 33(1) of the I.D. Act
during the pendency of such proceedings could attract penal liability of the E
employer under Section 31(1) of the I.D. Act. [941-G-H]
2.5. Admittedly, after the closure Qf investigation on 22-6-1982 when
the conciliator sent the failure report, it reached the State Government only
on 13-8-1982. Therefore, it has to be held that the conciliation proceedings
in the present case had not terminated an~ got concluded only on 13-8-1982 F
as per the aforesaid statutory presumption created by the legal fiction provided
in Section 20(2)(b). Therefore, as a necessary corollary, it must be held that
these conciliation proceedings were pending till 13-8-1982. Therefore, on
22-6-1982 when the order of retrenchment was passed against the respondent,
the appellant-Management had committed breach ofSection.33(1) of the I.D. G
Act by not passing the said order after obtaining express previous permission
.....
in writing of the Conciliation Officer before whom the conciliation proceedings
must be held to be pending in the evening of 22-6-1982. The impugned
retrenchment order must'be held to be illegal being contrary to the aforesaid
provision of the I.D. Act. [937-G-H; 938-A; 942-D-EJ
Point No. 3:
H
-i
916
SUPREME COURT REPORTS
[l 999] 3 S.C.R.
A
3.1. It must.be held on the very wordings of Section 9-A read with Item ·
No. 10 of the Fourth Schedule of the I.D. Act "that any management which
seeks to introduce a new working pattern for its existing work force by any
future scheme of rationalisation, standardisation or improvement of plant or
technique which has a tendency to lead to future retrenchment of workmen"
B has to give prior notice of proposed change to the workmen who can get an
opportunity to show that they may not be retrenched because of the new
scheme of rationalisation etc. which is in the offing and can suggest ways
and 111eans available to the management to avoid such proposed retrenchment
of the workmen despite such introduction of a new scheme. If the proposed
scheme of rationalisation has a likelihood of rendering existing workmen
C surplus and liable to retrenchment, then Item No. 10 of Schedule IV would
squarely get attracted. It, therefore, follows that before effecting su~h a
change, meaning thereby, before introducing such a rationalisation scheme
which has a tendency to change the conditions of service of workmen, notice
under Section 9-A of the I.D. Act as a condition precedent becomes a must.
Such a notice under Section 9-A must precede the introduction of
D rationalisation concerned; it cannot follow the introduction of such a .
rationalisation. But if the proposed scheme is not likely to displace any
existing workmen then mere rationalisation which has no nexus with the
possibility offuture retrenchment of workmen would not attract Item No.10
of Schedule IV of the I.D. Act and would remain a benign scheme of
E rationalisation having no pernicious effect on the existing working staff.
[944-B-D; 949-G-H; 950-A]
North Brook Jute Co. Ltd v. Worhnen, [1960) 3 SCR 364 and Hindustan
Lever Ltd. v. Ram Mohan Ray, [1973] 4 SCC 141, relied on.
3.2. It is not possible to accept the contention of the appellant t!lat a
F machine can be introduced on an experimental basis first or even after it has
already worked for some time and is required to be continued as a fullfledged machine, as and when the employer decides to terminate the services
of the workmen as a direct consequence of such introduction of machine, he
can give notice under Section 9-A of the I.D. Act at any such time. If such
G a contention is acc~pted then the very scheme of Section 9-A read with
Schedule IV Item No. 10 of the I.D. Act would be rendered ineffective and
inoperative. The purpose of issuing such a· notice prior to the ~ntroduction
of the scheme of rationalisation would get frustrated and then there would
remain no effective opportunity for the conciliator to try to arrive at an
amicable settlement regarding the dispute centering around the proposed
H introduction of the scheme of rationalisation which is likely to result in the
....I-
LOKMAT NEWSPAPERS PVT. LTD. v. S. PRASAD
917
retrenchment of workmen. Equally there would remain no opportunity for A
the State Government on receipt of failure report from the conciliator to
make a reference of such live industrial dispute for adjudication by the
competent Court on merits. (948-B-D]
3.3. When such a dispute-regarding the proposed introduction of the
rationalisation scheme is referred for adjudication of the competent Court, B
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
in illegality of the consequential orders of retrenchment. Such competent
Coul't can also accordingly pass appropriate consequential orders directing C
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 I.D. Act. [948-D-F)
3.4. Admittedly, in the composing department of the appellant where D
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 wo·rk by mechanical work having resorted to
photo-type-composition through machine, the then existing service condition
of the respondent was bound to be affected adversely. Consequently, before E
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 9A was a must The appellant had already installed such a photo-type machine
in January 1981. Therefore, such a notice could have been sent before
.January 1981 when such a machine was brought in the premises as an F
experimental measure or at least before 4-11-1981 when the same was
continued to be installed as a confirmed necessary component of machinery
for printing at the appellant's premises at Nagpur. If such a notice was given
to the respondent workman and other workmen similarly situated they could
have persuaded the appellant to resort to any other type of rationalisation or G
-to absorb them on suitable jobs in the same premises in any other department
of the appellant at Nagpur. That opportunity was never made available to the
respondent. Therefore, notice under Section 9-A issued after installation of
the machine and after ~ringing into force the rationalisation scheme was ex
facie a still born and incompetent notice and was clearly violative of the
provisions of Section 9-A of the I.D. Act which amounted to putting the cart H
918
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[1999) 3 S.C.R.
A before the horse. Such an incompetent and illegal notice under Section 9A could not legally enable the appellant to terminate the services of the
respondent. The foundation of the impugned order of discharge is the no*1ce
under Section 9-A dated 25-3-1982. Once that foundation is knocked off as
incompetent, illegal and uncalled for the entire edifice of retrenchment
B order against the respondent falls to the ground.
(944-D-F; 946-B-D; 947-A-B]
3.5. It must, therefore, be held that the impugned termination or
discharge of the respondent was violative of the provisions of Section 9-A of
the I.D. Act and he was discharged from service without the appellant's
C following the mandatory requirements of Section 9-A of the LD. Act. Effect
of non-compliance of Section 9-A of the I.D. Act renders the change in
conditions of service void ab initio. [950-C-D]
Point No. 4:
4.1. Before the principle of noscitur a sociis can be pressed in service,
D it must be shown that both the words 'discharge' and 'dismissal' are employed
by the Legislature in Item No. 1 of Schedule IV of the Maharashtra
(Recognition of Trade Unions and Prevention of Unfair Labour'Practices)
Act, 1971 in the same sense or that they are susceptible of analogous
meaning. This rule of construction in other words lays down : "The meaning
E of a word is to be judged by the company it keeps". "It is a legitimate rule
of construction to construe words in an Act of parliament with reference to
words found in immediate connection with them". It has, therefore, to be seen
whether in the settings of Item No. 1 clauses (a) to (g) the word 'discharge'
as employed by the Legislature has meaning analogous to that of the word
F
'dismiss'. (953-E-H]
MK. Ranganathan v. Govt. of madras, AIR (1955) SC 604, ~elied on.
Angus Robertson v. George Day, (1879) 5 AC 63 and Maxwell : "The
Interpretation of Statutes", l21h Edn. p. 289, referred to.
G
4.2. The word 'discharge' is not intended by the Legislature to have the
same or analogous meaning as the word 'dismiss'. The word 'dismiss'
necessarily connotes an action of th~ employer who seeks to impose
punishment on his misconducting employee. Such a punishment cannot be
imposed without following the principles of natural justice and the relevan~
applicable rules of domestic inquiry. But the word 'discharge' is not
H necessarily confined to orders of termination by way of penalty only. The
J
LOKMAT NEWSPAPERS.,PVT. LTD. v. S. PRASAD
919
word 'discharge' has wider connotations. A misconducting employee facing A
•
charges in a domestic inquiry may be punished by way of imposing on him
an order of dismissal which may make him ineligible for any other
employment but if it is found that the charges which are proved are not that
serious but the employee would not deserve to be continued in service then
an order of discharge by way of lesser penalty can be imposed on him. Such B
an order would remain a punitive discharge. Thereby the employer wants to
punish the employee for his misconduct but does not want him to become
ineligible for employment elsewhere considering the 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 c
discharge orders but also simpliciter discharge orders where the employer
seeks to snap the relationship of employer and em1>loyee 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 D
discharge orders are-also a category of discharge orders.
[954-A-E; 955-A]
4.3. Therefore, when the Legislature used the words 'discharge' or
dismissal' of the employee under circumstances enumerated in clauses (a)
to (g) in Item No. 1 of Schedule IV of the Maharashtra Act it contemplated E
dismissal orders which obviously are penal in nature but it also contemplated
discharge orders which may either be penal or non-penal in nature and still
if any of the relevant clauses of Item No. 1 got attracted in connection with
such discharge orders they would make the employer author of such discharge
orders and answerable for the alleged 'unfair labour practice' permeating
the passing of such simpliciter discharge orders. [956-F-G]
F
4.4. In the l>resent case, the 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 l>assed on patently false reasons and was a result of undue ha!l1e on the
part of the appellant-employer. Whether the said complaint was justified on o/
merits or not is a different matter but it cannot be said that such a complaint
';.
regarding non-11enal discharge order was de hors the scope and ambit of Item
No. 1 of Schedule IV of the Maharashtra Act. [956-H; 957-A-B]
4.5. The principle of ejusdem generis cannot also be invoked in
connection with Item No. 1 of Schedule IV of the Maharashtra Act. The word H
920
SUPREME COURT REPORTS
[1999] 3 S.C.R. t
A 'discharge' is a general word. It is followed by the word 'dismissal', which
contemplates only one category of cases, or situations where penalty is
imposed by the employer on the workmen concerned. The rule of ejusdem
generis would have ap1>lied if the work 'discharge' represented a particular
species belonging to the genus reflected by the general word 'dismiss'. This
B is a converse case where a general word 'discharge' is followed by the word
'dismiss' which is of a particular nature or pe1iains to a limited class or
category of penal situations. Obviously, therefore, neither of them is a genus
and none of them is a species of the very same genus. The word 'discharge'
connotes an entirely different category of orders comprising of both smpliciter
discharge orders not by way of penalty as well as discharge orders by way
C of penalty but not involving extremely pernicious results flowing form such
orders while the word 'dismiss' is purely an order of penalty and that too
of an extreme type. On the contrary, the words 'discharge' and 'dismissal'
as employed by the Legislature in Item No. 1 of Schedule IV covered different
types of situations and circumstances under which they arc passed. It is,
therefore, not possible to agree with the contention of the appellant that
D unless the res1>0ndent shows that he was discharged by way of penalty, he
cannot invoke any. of the clauses of Item No. 1 of Schedule IV of the
Maharashtra Act. (957-E-H; 958-A)
K. Kandaswamy v. Union of India, JT (1995) 7 SC 80 and High Court
E of Judicature at Patna v. Pandey Madan Mohan Frasad Sinha, (1997] 10
sec 409, relied on
State of Rajasthan v. Sri pal Jain, [1964] 1 SCR 742, held inapplicable.
4.6. An employee who makes a grievance against an order of discharge
F or dismissal passed against him can invoke any of the listed clauses (a) to
(g) of Item No. 1 of Schedule IV of the Maharashtra Act; first it should be
alleged by the complainant-employee that he was discharged or dismissed
from service by the employer and then he has to further show whether such
an order attracted any of the cJauses (a) to (g) of Item No. 1 of Schedule IV
G of the Maharashtra Act. (952-F-H; 953-A)
4. 7. In the present case the appellant wanted to switch over to the
process of composing by utilising photo-type setting machine and in the
process the hand-composing department engaging the respondent and other
workmen had to be wound up. That naturally resulted in the employees in
H the erstwhile hand-composing department becoming excess and surplus.
-
....
LOKMAT NEWSPAPERS PVT. LTD. v. S. PRASAD
921
Th·at is the reason why the impugned notice under Section 9-A of the I.D. · A
Act was issued to the responde.nt and other workll'len and ultimately resulted
in the impugned retrenchment order. Such an action on the part of the
appellant cannot be treated to h~ve 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. [959-D-F)
4. 7. The term 'victimisation' is a term of comprehensive import. Thus,
if a person is made to suffer by treatment, it would amount to victimisation.
B
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 view to making the respondent
suffer for no real reason. Therefore, Item No. 1 clause (a) of Schedule IV C
of the Maharashtra Act does not apply to the facts of the present case.
/
[959-F-H; 960-A)
Colour-Chem Ltd. v. A.L. Alaspurkar, [1998] 1 SCALE 432, relied on.
4.8. On a parity of reasoning it has to be held that the discharge of the D
respondent from service cannot be said to be not-in good faith but in the
colourable exercise of employer's rights. The appellant had good re'ason to
discharge the respondent who was rendered surplus in hand-composing
department because of the introduction of the machine in question. It is
difficult to impute any bad faith to the appellant as the appellant tried its best
to provide alternative job to the respondent at Jalgaon but the said offer was E
not accepted by the respondent and, on the contrary, the transfer order was
got declared illegal and an act of 'unfair labour practice' in proceedings
culminating before the Tribunal. Clause (b) ofltem No. 1 of Schedule IV of
the Maharashtra Act, therefore, is also not attracted on the facts. of the
present case. [960-B-C]
F
4.9. Clause (d) ofltem No. 1 of Schedule IV of the Maharashtra Act
can be attracted only if it is shown that the impugned termination was for
patently false reasons. The appellant had a genuine reason for terminating
the services of the respondent as hand-composing department had become
redundant on account of the introduction of the machine in question. It G
cannot be held that the proposed t_ermination 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 H
922
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[1999] 3 S.C.R.
A the situation in the present case. It may be that the reason given may not
be strictly accurate in the sense the machine was already introduced and was
not likely to be introduced by the time notice under Section 9-A of the I.D.
Act was given followed by the impugned termination order. That may have
I
.
•
the effect of non-compliance of tbe provisions of Section 9-A. The said notice
B on that score may become inoperative or illegal. Still the reason for
termination cannot be said to be patently false. [960-D-H; 961-A]
4.10. The order of discharge whether punitive or non-punitive if found
to be the result of undue haste on the part of the employer/ ~~e inevitable
result will be that the employer would be guilty of 'unfair labour practice'
C as laid down by Schedule IV Item No. 1 clause (t) second part.'ln the present
case, the conciliation proceedings had not terminated when the impugned
order was passed. The result was that Section 33(1) of the I.D. Act got
violated and the appellant become 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 ~r wiih fine or
D with both.