Judgment:
D. Sreedevi, J.
1. This original petition is filed for the issue of a writ of certiorari quashing Ext. P8 and to direct the 2nd respondent to refer the issue regarding retrenchment compensation, notice pay and gratuity to the Industrial Tribunal, Kollam.
2. Petitioner is the General Secretary of Kerala Cashewnut Workers Federation, which is a registered trade union. The 3rd respondent purchased P.K.D. Cashew Factory, Eravipuram belonging to M/s. Bakul Cashew Company on March 18, 1981 as a going concern and undertook to employ all the workers with continuity of service with all past liabilities. As per Ext. P1 Memorandum of Settlement, the 3rd respondent undertook the liability in respect of the workmen and staff under the predecessor management. Accordingly, the 3rd respondent issued Ext. P2 notice. The workmen had put in 27 years' of service in M/s. Bakul Cashew Company. As the wages for the year 1981 fell due, the workers struck work. Ultimately, the dispute was settled by Ext. P3 agreement. The 3rd respondent agreed to clear the wage arrears on or before December 6, 1982. But the 3rd respondent denied employment to the workers by keeping the company idle from December 3, 1982 to July 31, 1984. Therefore, the company was taken over by the 4th respbndent, Kerala State Cashew Workers Apex Industrial Co-operative Society, 'CAPEX'. The 3rd respondent owns another factory at Kaithakuzhi. According to the petitioner, the cashewnuts allotted to the 3rd respondent were diverted by him to the Kaithakuzhi factory, which continued functioning. Petitioner issued Ext. P4 notice demanding retrenchment compensation, wages etc. The 3rd respondent refused, whereupon the dispute was conciliated upon. The 3rd respondent agreed to reopen the factory and pay the entitled dues to the workers. But he evaded from doing it. The Government then took over the factory, as per the provisions of the Kerala Cashew Factories (Acquisition) Act, 1974 and entrusted the same to the 4th respondent. After the take over of the factory by the 4th respondent, the petitioner again represented to the 4th respondent, demanding the above benefits. By Ext. P5 the Government of Kerala referred the dispute for adjudication to the Industrial Tribunal, Kollam. The issues referred for adjudication were:
a) closure of the factory from December 3, 1982 to July 31, 1984;
and
b) denial of employment to 18 workers.
The Industrial Tribunal passed Ext, P6 order. Before the Tribunal, the petitioner had claimed that the workmen are entitled to retrenchment compensation and notice pay as per Section 25FF of the Industrial Disputes Act. The Tribunal held that only the issue relating to closure merits consideration. The Tribunal disposed of the case holding that the workers are entitled to get wages for the period in question on par with the wages paid to the workers of Kaithakuzhi Factory belonging to the 3rd respondent. Regarding retrenchment compensation, the Tribunal held that the issue was not referred for adjudication. The said award was challenged in O.P. No. 6632 of 1992. Petitioner then took up the matter again to the Labour Officer, Kollam as per Ext. P7 letter. No settlement could be arrived at. The second respondent refused to refer the issue for adjudication and intimated the same to the petitioner under Ext. P8. In Ext. P8 it is stated that the issue has already been referred for adjudication to the Industrial Tribunal, Kollam. According to the petitioner, Ext. P8 is factually incorrect, legally unsustainable and reveals a total misapplication of mind on the part of the second respondent. Petitioner demanded payment of the benefits under Section 25FF of the Act, from the third respondent as per Ext. P4. The dispute regarding the identity of the person liable to pay gratuity to the workmen, who continued to be employed under the 4th respondent after the take over has now been set at rest by the Division Bench decision in W. A. No. 1376 of 1992 and other connected cases. But the 3rd respondent is liable to pay retrenchment compensation. The third respondent contended that he is not liable to pay any benefit to any of the workers of the factory on the ground that he ceased to be the employer from August 1, 1984. Petitioner therefore prays for the issue of a writ of certiorari quashing Ext. P8 rejecting the claim of the petitioners.
3. The first respondent has filed a counter affidavit, stating that the Industrial Tribunal, Kollam had adjudicated the dispute and passed an award directing the 3rd respondent to pay full wages for the period of closure of the factory from December 3, 1982 to July 27, 1984. Petitioner filed a complaint to the District Labour Officer demanding notice pay to the workmen for the illegal closure of the factory, retrenchment compensation and gratuity including those workers who had already retired or been retrenched or died. The Government examined the matter and referred the dispute for adjudication. The Industrial Tribunal passed an award. The claim for retrenchment compensation and gratuity to the workers was rejected by the Labour Court, P.K.D. Company was acquired by the Government and all the workers are statutorily transferred to CAPEX, without any break in service and hence there is no termination of service to warrant payment of retrenchment compensation. Moreover, the workmen had filed a claim petition before the Labour Court and the Labour Court rejected the same.
4. The second respondent filed a counter affidavit contending that the request of the petitioner in Ext. P3 was considered by the Government and the question of closure of the factory and the denial of employment to 18 workers by CAPEX were referred for adjudication by the Labour Court and the award has been passed. According to him, the question on which the petitioner wanted reference under the I.D. Act are gratuity, retrenchment compensation and notice pay. The workers to whom notice pay and retrenchment compensation are claimed were actually engaged by the CAPEX, after the cashew factory was taken over by the Government. Therefore, there is no retrenchment of the workmen at any point of time. The question of retrenchment compensation arises only if the services of the workers were terminated and as a result of which the retrenchment occurred. Since the workers continued to be in service, no question of retrenchment compensation arises. The question of notice pay arises only if there is retrenchment. Payment of gratuity was the subject matter of O.P. No. 5874 of 1990. It was held, that the CAPEX is liable to pay the gratuity. The appeal against the said decision was also dismissed. Thus, the payment of gratuity was settled by the decision of this Court. Therefore, it is submitted that Ext. P8 is in order and hence it is not liable to be quashed.
5. Admittedly, the third respondent purchased P.K.D. Cashew Factory undertaking to employ all the workers with continuity of service with all past liabilities, as per Ext. P1 Memorandum of Settlement. Thereafter, he issued Ext. P2 notice regarding the rights of the workmen. When the wages fell due for the year 1981 as the same was not paid, the employees struck work and ultimately the dispute was settled by Ext. P3 agreement, wherein the third respondent agreed to pay off the wage arrears due on or before December 6, 1982. Later, the 3rd respondent denied employment to the workers by keeping the factory closed from December 3, 1982 to July 31, 1984. The 4th respondent, therefore, has taken over the factory. As the factory was closed down by the 3rd respondent, the petitioner made a demand under Ext. P4 for retrenchment compensation, wages etc. Since the 3rd respondent refused to comply with the agreement, the dispute was conciliated upon and then the third respondent agreed to reopen the factory. In spite of that he did not do so. Therefore, the Government took over the factory as per the provisions of the Kerala Cashew Factories (Acquisition) Act, 1974 and entrusted the same to the fourth respondent. It is also admitted that the petitioner submitted Ext. P5 representation to the Government demanding their dues. The Government then referred the matter to the Industrial Tribunal for adjudication. The Tribunal passed Ext. P6 award, wherein it is stated in para 12, that the Tribunal was not called upon to adjudicate upon the claim regarding retrenchment compensation and gratuity. Petitioner then submitted Ext. P7 representation to the District Labour Officer, requesting to refer the issue regarding compensation to the Industrial Tribunal, for which Ext. P8 reply was given by the Government stating that the issue regarding retrenchment compensation and gratuity to the workers was rejected. This letter was issued on the assumption that the said issue was referred to the Industrial Tribunal. But Ext. P7 goes to show that the said statement is not correct. Therefore, Ext. P8 is factually incorrect. The learned counsel for the petitioner submitted that on that sole ground Ext. P8 has to be quashed. So far as the order rejecting the claim regarding retrenchment compensation, gratuity to the workmen etc., are concerned, as the Industrial Tribunal was not referred the question and the Tribunal has not adjudicated upon the same, that portion of the statement in Ext. P8 is liable to be quashed. The learned counsel appearing for the respondents submitted that the petitioner is not entitled to claim retrenchment compensation under Section 25FF of the I.D. Act, as, according to him, so far as this case is concerned, the proviso to Section 25FF applies, which reads as follows:
25-FF - Where the ownership of management of an undertaking transferred whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Section 25F as if the workman had been retrenched:
Provided that nothing in this Section shall apply to a workman in any case where there has been a change of employers by reason of transfer, if-
(a) the service of the workman has not been employed by such transfer;
(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and
(c) the new employer is, under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer.
Petitioner has no case that the services of the workman has been interrupted or that the terms and conditions of the service applicable to the workman after such transfer are in any way less favourable to the workman than those applicable to him immediately before the transfer and the new employer is, under the terms of such transfer is not legally liable to pay to the workman in the event of his retrenchment, compensation etc. The workman is not entitled to retrenchment compensation and notice pay since admittedly the factory was taken over by the Government under the previous owner as per the provisions of the Kerala Cashew Factories (Acquisition) Act, 1974. Therefore, eventhough the dispute regarding retrenchment compensation, notice pay and gratuity were not referred, it has to be found that the Government refused to refer the dispute. It is true that the Government has not given any reason why the same was not referred to the Industrial Tribunal. But that will not in any way affect the petitioner's right. At the time of hearing, the learned counsel for the petitioner submitted that since the said issue was not referred to the Industrial Tribunal, the issue may be directed to be referred to the Industrial Tribunal for adjudication. The learned counsel for the respondents submitted that no such direction need be issued in this case as Section 25FF has no application to the facts of this case. It is an admitted fact that the claim regarding gratuity has been decided in W.A. Nos. 884, 887, 953, 955, 956, 957 and 958 of 1992, Ext. R3(a) is the copy of the common order in the above writ appeals. Therefore, the question of gratuity cannot be referred to the Industrial Tribunal. Regarding retrenchment compensation, as the proviso to Section 25FF of the Act applies, it does not at all arise for consideration. The question of notice pay arises only when there is actual retrenchment. Therefore, no direction need be issued to the Government to refer the issue to the Industrial Tribunal. It is submitted for the respondent, that the writ can be issued only if there is violation of natural justice. This Court in Shenoy v. Central Bank of India, 1983 KLT 381 held as follows:
'Writs would issue if there was violation of natural justice only on being satisfied that by subsequent proceedings conforming to the principles of natural justice the aggrieved party could gel effective reliefs from the offending party. If even after conforming to the principles of natural justice, the same results would follow as the one that the Court had to consider before quashing the orders, the Court would normally stay its hands from interfering with the orders which in its opinion would be an exercise in futility.'
In the light of this decision the petitioner is not entitled to get any relief from this Court. In the result, this original petition is dismissed. There will no order as to costs.