1. All these four Special Civil Applications are directed against the Award passed by the Industrial Tribunal, Gujarat at Ahmedabad on January 29, 1993 in Reference (I.T.) No. 179 of 1988 between Sarabbai Chemicals, Baroda on one side and Chemical Labour Union, Chemical Mazdoor Sabha and the concerned workmen on the other side. Whereas all these petitions are directed against the above referred impugned Award, challenge in each is based on identical facts and questions of law, all these four Petitions are decided by this common judgment and order.
2. Sarabhai M. Chemicals, which is a Division of Ambalal Sarabbai Enterprises, was decided to be closed in January 1988. Having taken a decision to close down the Sarabbai M. Chemicals at Baroda, the Company preferred a Special Civil Application No. 82 of 1988 challenging the vires of Section 25-O of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') on January 12, 1988 and on January 12, 1988 itself an ad inertim order was passed in the aforesaid Special Civil Application against the prosecution of the Company and its official. This ad interim order dated January 12, 1988 was sought to be vacated on February 10, 1988 by filing a purshis to create a congenial atmosphere for negotiations and it was vacated on February 10, 1988 by the Court on the basis of the purshis as aforesaid as has been given out by the parties.
3. The Company filed an Application on February 20, 1988 seeking permission to close down the entire undertaking, i.e., Sarabbai M. Chemicals under See. 25-O of the Act in the prescribed Form XXX under Rule 82(b)(1) of the Gujarat Industrial Disputes Rules, 1966 (hereinafter referred to as 'the Rules'). This Application was dealt with by the Labour Commissioner of Gujarat. While this Application was being dealt with and pending before the Labour Commissioner, settlements under Section 2(p) of the Act were arrived at between the employer and the Chemical Labour Union of Baroda on April 9, 1988 and between the employer and the Chemical Mazdoor Sabba on April 10, 1988 respectively. The terms of settlement in both the settlements are common. Through these settlements, the Scheme of Voluntary Retirement in its revised form with the terms contained therein was accepted by both the sides and it was held out that after the receipt of the applications for Voluntary Retirement it would be possible to determine as to how many workmen desired to leave the services of the Company voluntarily and, therefore, by May 15, 1988 the Company will gradually start providing jobs to as many workmen as found necessary to start working Vitamin 'C' Plant and the ancillary section/departments thereto provided the Company would have received at least 600 applications for Voluntary Retirement. It was further held out in the settlements that for the remaining workmen, i.e., after those who opt for Voluntary Retirement and those who are absorbed by the Company, the parties agreed to make a joint application to the Commissioner of Labour on or before April 18, 1988 requesting him to make a joint Reference to the Industrial Tribunal under the provisions of Section 10(2) of the Act for adjudication and the tenns of the Reference, which was agreed between the parties in this settlement, was as under :
'Whether the demand of the Company not to work the Fine Chemical Plant is justified If yes, what relief the workmen would be entitled to on being discharged as a result of not working the Fine Chemical Plant.'
On April 10, 1988 itself the Chief Executive of Sarabhai M. Chemicals sent a letter to the Unions informing that while working Vitamin 'C' Plant and its related process, the Company will absorb the workmen on the basis of the seniority category wise of the Plant as a whole, i.e., not restricting to seniority of Vitamin 'C' Plant only subject to the fact that for around 25 to 30 key positions absorption will not be on the basis of seniority only. The Company in accordance with this settlement also notified the Scheme of Voluntary Retirement and in pursuance of this Scheme of Voluntary Retirement, the Company received 306 Applications from various employees seeking Voluntary Retirement. On April 18, 1988 an application filed for and on behalf of Sarabbai M. Chemicals, Chemical Labour Union and Chemical Mazdoor Sabba was presented before the Specified Authority, i.e., Commissioner of Labour, Ahmedabad in the Closure Case No. 5 of 1988 stating therein that the parties had agreed to abide by the terms of Section 2(p) settlements arrived at between them on April 9, 1988 and April 10, 1988, i.e., settlements which was already on record and through this application dated April 18, 1988 an amendment in the settlement was sought by all the parties that those of the workmen, who are entitled to get more than Rs. 50,000/- as their statutority dues without the extra amount of 15 days' wages per year of service and Rs. 20,000/- would be paid in full on the date of the Company accepting resignation of such workmen. With this amendment in the settlements, the parties jointiy requested the Commissioner of Labour, i.e., Specified Authority to pass orders accordingly and dispose of the Closure Application filed by the Company in terms of said 2(p) settlements with the modification as aforesaid. Thereupon the Commissioner of Labour and Specified Authority under the Industrial Disputes Act sent letter dated April 19, 1988 to the Factory Manager with reference to the Closure Application dated February 20, 1988 addressed to the Labour and Employment Department, Government of Gujarat, Gandbinagar, which was received by the office of the Commissioner on February 22, 1988, that a decision had been taken under Section 25-O(2) of the Act and the same is forwarded herewith. It was also stated therein that the same may be displayed on the notice-board of the Management in such a way that it is easily readable and exhibited. It is this decision dated April 19, 1988, which gave rise to the Reference before the Industrial Tribunal and the order which was passed by the Specified Authority on the basis of the settlements and joint request by all the sides, opened a Pandora's box of controversies whereas the intention was to put an end to all the controversies by passing an order on the basis of settlements and the joint request.
The Specified Authority appointed under Section 25-O of the Act and the Commissioner of Labour while passing the order dated April 19, 1988 recorded that in view of the fact that during the pendency of this Application a settlement was arrived at between the applicant-unit and the authorized representatives of the two Labour Unions, the terms of which include the disposal of this also in the light of such settlement, this Application is disposed of as rejected. Thus, while rejecting the Company's application seeking permission for the closure of the whole Unit under Section 25-O of the Act, the Specified Authority further ordered that in pursuance of the joint application made by the applicant-Unit and the Chemical Labour Union and Chemical Mazdoor Sabha praying that a Reference be made for adjudication to the Industrial Tribunal under Section 10(2) of the Act, for the issues mentioned therein, the Competent Authority is also directed hereby to make a Reference mentioned above for adjudication to the Industrial Tribunal. It is after passing of this order dated April 19, 1988 by the Specified Authority appointed under Section 25-O that the Deputy Labour Commissioner, Ahmedabad passed an order dated April 26, 1988 referring the dispute to the Industrial Tribunal, Ahmedabad and sent the said order dated April 26, 1988 alongwith covering letter dated April 26, 1988 to the Industrial Tribunal, Ahmedabad referring therein the Labour Commissioner's order dated April 19, 1988. The terms of Reference as per this order dated April 26, 1988 were as under :
'Whether the Company's demand for closure of Fine Chemical Plant was justified If so to what relief the workmen were entitled as a consequence of the closure of Fine Chemical Plant.'
This Reference was registered with the Industrial Tribunal, Ahmedabad as Reference (I.T.) No. 179 of 1988. This Reference was adjudicated by the Industrial Tribunal and ultimately on January 29, 1993 the Award was passed granting permission to the Company to close down its Fine Chemical Division and to discharge 531 employees. It is the common case of the parties that after the aforesaid order of the Industrial Tribunal passed on January 29, 1993 the Company retrenched/discharged 517 employees as against the 531 employees, who were permitted to be discharged by the Tribunal because 14 of them had already ceased to be in service in the mean time on account of attaining the age of superannuation or for some other reason. It is this Award dated January 29, 1993, which is under challenge in these Special Civil Applications filed at the instance of Chemical Labour Union, Gujarat General Kamgar Panchayat, M. C. Kanvilkar and Others and Sashikant Anandrao Shigvan and Others in the four separate Special Civil Applications which have been filed in this Court. The operative part of the impugned Award in para 28 shows that the Company's Application No.30 of 1991, 5which had been moved seeking adjustment of the wages which had been paid during the intervening period, was rejected and simultaneously the closure of Fine Chemical Plant was permitted with to the permission to retrench or discharge 531 surplus employees subject to the conditions mentioned therein.
4. Whereas the arguments have been addressed on behalf of both the sides with reference to the Is pleadings, affidavits and documents in the Special Civil Application Nos. 2111 of 1993 and 7318 of 1993 and replies, rejoinder-affidavits and counter-affidavits with documents, settlements, written submissions etc. have been filed in these two matters during the pendency of these matters and also during the course of arguments, the same may be succinctly detailed out as under for ready reference :
Special Civil Application No. 2111 of 1993 :
1. Main Special Civil Application No. 2111 of 1993 dated March 3, 1993 with copies of documents, A nnexures A to D, pages 1 to 84.
2. Affidavit-in-reply dated March 11, 1993 with copies of documents Annexures A to C on behalf of Respondent No. 1, pages 85 to 93 :
3. Further affidavit-in-reply dated March 13, 1993 with copies of documents, pages 94 to 131
4. Further additional affidavit-in-reply dated March 17, 1993 on behalf of respondent No. 1 with copies of documents, pages 132 to 138.
5. Affidavit-in-rejoinder dated March 29, 1993, pages 139 to 143.
6. Affidavit dated April 7, 1993 in reply to affidavit-in-rejoinder dated March 29, 1993, pages 144 to 146.
7. Affidavit-in-reply dated April 8, 1993 with copies of documents, pages 147 to 169.
8. Further affidavit-in-reply dated April 13, 1993 on behalf of Respondent No. 1 with copies of documents, pages 170 to 191
9. Affidavit of Shri H. M. Jamdar dated December 20, 1994 with copies of the documents, pages 197 to 294.
Note : It appears that Respondent No. 3 Jamdar, who has appeared as Party-in-Person, while marking pages has started paging from 197 instead of starting from 192 and, therefore, there are no page Nos. 192 to 196.
10. Affidavit dated December 28, 1994 filed by Shri H. M. Jamdar with copies of documents, pages 295 to 304.
11. Affidavit dated January 17, 1995 filed on behalf of the respondent-Company by one Shri P. N. Raval with copies of documents, pages 305 to 387.
12. Affidavit dated January 17, 1995 filed by Shri P. N. Raval on behalf of the respondent-Company with copies of the documents, pages 388 to 501.
13. Affidavit dated July 2, 1996 filed by Shri P. N. Raval on behalf of respondent-Company with copies of documents, pages 502 to 512.
14. Affidavit dated July 3, 1996 filed by Shri P. N. Raval on behalf of respondent-Company with copies of the documents, pages 513 to 521.
15. Affidavit dated July 11, 1996 filed by Shri J. G. Babani-Factory Manager of respondent-Company with copies of documents, pages 522 to 617.
16. List of dates and events submitted by Mr. K. S. Nanavati on behalf of respondent-Company, pages 618 to 625.
17. Notes for argument in rejoinder submitted by Mr. N. R. Shabani dated July 12, 1996, pages 626 to 629.
18. Extract of statement of claim dated September 6, 1990 submitted by Mr. N. R. Shahani on July 15, 1996. pages 630 to 632.
19. Comments/reasons/justification for junior employees submitted on July 17, 1996 by Mr. K. S. Nanavati on behalf of the respondent-Company, pages 633 to 637.
20. Written submissions dated July 19, 1996 submitted by Mr. K. S. Nanavati, pages 638 to 657.
Special Civil Application No. 7318 of 1993 :
21. Memo of Special Civil Application No. 7318 of 1993 with copies of documents, page 1 to 81.
22. Affidavit of Shri H. M. Jamdar dated July 3, 1996 with copies of documents, pages 82 to 150.
23. Written argument on behalf of Respondent No. 4, with copies of documents, pages 151 to 186.
24. Affidavit-in-rejoinder dated July 12, 1996 on behalf of Respondent No. 4, pages 187 to 199.
5. Before I proceed to deal with other contentions, I may first deal with the objection, which is taken by Ms. Sangita Pabwa, appearing on behalf of respondent-workmen Nos. 3 to 102 in Special Civil Application No. 2111 of 1993 and Mr. H. M. Jamdar, who has appeared as Party-in-Person-respondent No. 4 in Special Civil Application No. 7318 of 1993, with regard to the territorial jurisdiction. It had been submitted that the Company is situated at Baroda, the dispute arose at Baroda and, therefore, even if the Reference was to be made, it could be made only by the concerned Deputy Labour Commissioner of Baroda to Industrial Tribunal at Baroda, but in the instant case, the dispute was referred by the Deputy Labour Commissioner, Ahmedabad to Industrial Tribunal at Ahmedabad and hence the Award passed by the Industrial Tribunal, Ahmedabad is without jurisdiction, the Industrial Tribunal, Ahmedabad had no territorial jurisdiction and the matter should have been referred by the Deputy Labour Commissioner, Baroda to Industrial Tribunal at Baroda. I called upon Ms. Pahwa and the respondent Shri Jamdar to point out from the record as to whether such an objection was taken by them before the Industrial Tribunal at Ahmedabad and it was clearly given out that such an objection was not taken before the Industrial Tribunal at Ahmedabad and the same is being argued for the first time before this Court. Here is a case in which the matter was initially taken up under Section 25-O of the Act and there is no dispute that the Specified Authority under Section 25-O, i.e., the Labour Commissioner is at Ahmedabad only for the whole of the State of Gujarat and the covering letter of Deputy Labour Commissioner, Ahmedabad dated April 26, 1988 under which the Reference was made to the Industrial Tribunal, Ahmedabad shows that it was so made with Reference to the order of the Specified Authority passed on April 19, 1988. In normal course, since the dispute arose from Baroda, it should have been referred to the Industrial Tribunal at Baroda, but it is the settled law that any objection with regard to the territorial jurisdiction, if at all is taken, it must be taken at the earliest before the concerned Court or Tribunal where the proceedings are taken up. Here is a case in which the parties appeared before the Industrial Tribunal at Ahmedabad, joined issues, went on trial, sought full adjudication before the Industrial Tribunal, Ahmedabad without even raising a little finger with reference to the lack of territorial jurisdiction. The dispute remained pending for a period over five years, i.e., from 1988 to 1993 and yet no objection was taken and for all this period wages had also been paid to the employees in terms of the settlements. In such a fact situation, it will be wholly unjust now to hold the Award to be without jurisdiction on the basis of the objection raised at this belated stage at the time of argument on behalf of the respondent-workmen and, therefore, the objection with regard to territorial jurisdiction against the Industrial Tribunal at Ahmedabad, which has undergone entire adjudicatory process without any objection by any of the parties, is hereby rejected.
6. It may also be pointed out that the Special Civil Application No. 2111 of 1993 had been filed in this Court in March, 1993 and, thereafter, when the matter came up before the Court on April 15, 1993 while issuing Rule, the Division Bench passed an order on the basis of a joint Purshis filed by the petitioner as well as respondents on the same day. i.e., April 15, 1993 and this interim order dated April 15, 1993, passed on the basis of the joint Purshis, has remained in force throughout the proceedings and the concerned workmen, who accepted this arrangement on the basis of the joint Purshis, have been paid accordingly.
7. It was submitted on behalf of the workmen that the Reference has been made to the Industrial Tribunal under See. 10(2) of the Act and such a Reference could not have been made under See. 10(2) because the proceedings had been initiated under Section 25-O of the Act. In the Scheme of Section 25-O, according to the learned Counsel for the workmen, the Reference could be made to the Tribunal only at the stage of See. 25-O(5) and whereas this stage did not reach in the facts of the case because no order whatsoever had been passed under Section 25-O(2) nor the permission could be deemed to be granted in the facts of this case under Section 25(3) and hence there is no order by the appropriate Government granting or refusing the permission so as to take up the review either at the instance of the employer or any workman or on its own motion by appropriate Government and as such the Reference could not be made under Section 10(2) and further that it was only the appropriate Government, which could refer the matter to the Tribunal for adjudication at the stage of Section 25-O(5), which never reached. See. 25-O is reproduced as under for ready reference :
'25-O. Procedurefor closing down an undertaking :- (1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner :
Provided that noting in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work. (2) Where an application for permission has been made under sub-section (1), the appropriate Government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and persons interested in such closure may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the general public and all other relevant factors, by order and for reasons to be recorded in writing grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.
(3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.
(4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding on all the parties and shall remain in force for one year from the date of such order.
(5) The appropriate Government may, either on its own motion or on the application made by the employer or any workmen, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a Tribunal for adjudication :
Provided that where a Reference has been made to a Tribunal under this sub-section it shall pass an award within a period of thirty days from the date of such Reference. (6) Where no application for permission under sub-section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down.
(7) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such undertaking for such period as may be specified in the order.
(8) Where an undertaking is permitted to be closed down under sub-section (2) or where permission for closure is deemed to be granted under sub-section (3), every workman who is employed in that undertaking immediately before the date of application for permission under this section, shall be entitled to receive compensation which shall be equivalent of fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months.'
It is clearly established on the basis of undisputed facts that the respondent-Company had moved an application in Form XXX under Rule 82B(1) of the Industrial Disputes (Gujarat) Rules, 1966 on Febuary 20, 1988 seeking permission for the closure of its Vitamin 'C' Plant, Sorbitol, Choline and Fine Chemical Plant. This Application was sent to the Labour & Employment Department of the Government of Gujarat, Gandhinagar and was received by the Labour & Employment Department on February 22, 1988. While this Application dated February 20, 1988 seeking permission of the closure was being dealt with by the Specified Authority appointed under Section 25-O of the Act, i.e., Commissioner of Labour for the State of Gujarat at Ahmedabad, a notice has been issued to the representatives of Chemical Labour Union and Chemical Mazdoor Sabba and hearing was fixed on March 29, 1988. On the date of hearing, i.e.. on March 29, 1988 the Management mentioned before the Specified Authority that an offer had been made to the employees for the voluntary retirement and the notice to this effect had been displayed on the notice-board of the Company. The Management was, therefore, asked to make such offer specifically to the two Unions and invite their response and the hearing of the Closure Application on merit was deferred. The matter then came up before the Specified Authority on April 11, 1988 on which date it was given out that the Management had arrived at a settlement separately with two Unions accepting the voluntary retirement scheme and copies of the settlements were submitted before the Specified Authority on April 11, 1988 in the context of the order passed in Special Civil Application No. 82 of 1988 (which had been moved by the Company in the High Court of Gujarat challenging the validity of Section 25-O of the Act on January 12, 1988 wherein an ad interim order restraining the Government from prosecuting the Company and its official was passed on January 12, 1988 itself, was later vacated on February 10, 1988). All the parties then moved a joint application before the Specified Authority Closure Case No. 5 of 1988 on April 18, 1988 agreeing to abide by the terms of Section 2(p) settlements dated April 9, 1988 and April 10, 1988 and requesting the Commissioner of Labour, i.e., the Specified Authority to pass orders accordingly and dispose of the Closure Application filed by the Company in terms of Section 2(p) settlements. On the basis of this application moved jointly by all the parties the Specified Authority proceeded to pass the order dated April 19, 1988. Tenor of this order shows that this order has been passed as a composite order, i.e., (i) disposing of the Closure Application in view of the settlements arrived at between the parties and (ii) making of Reference for adjudication before the Industrial Tribunal on the basis of the joint prayer made by all the parties as contained in the application dated April 18, 1988. It is, therefore, clear that the Specified Authority proceeded to pass this order dated April 19, 1988 on the basis of the settlements arrived at between the parties on April 9/10, 1988 and the application dated April 18, 1988, which had been jointly moved. In the backdrop of this admitted factual position, it cannot be said, that the Reference could not be made while dealing with the matter under Section 25-O because no order on merit had been passed on the closure application. In fact, the parties created a situation wherein the Specified Authority could not have passed an order on the Closure Application on merits. The application seeking permission for closure had been made under sub-section (1), the order on merits could also be passed on this application under Section 25-O(2) either refusing or grating permission, but no order to that effect, as such, could be passed because the parties had agreed in terms of the settlements dated April 9/10, 1988 and had moved an application for making a joint Reference. Nevertheless, the fact remains that the order dated April 19, 1988 passed by the Specified Authority shows that this Closure Application had been disposed of without granting the permission for closure and that impliedly means that the permission for closure was refused in the sense that it was not granted and, therefore, first part of the order disposing of the application can certainly be construed to be an order under sub-section (2) of Section 25-O. Once all the parties had also made a request that the matter may be referred to the Tribunal for adjudication, Specified Authority passed the further order directing the making of the Reference. In the facts and circumstances of this case, therefore, in my opinion, no exception can be taken to the aforesaid course of action adopted by the Specified Authority. Whether the stage of review as such as contemplated by Section 25-O(5) is reached or not, the fact of the matter is that all the parties had agreed and requested for making a Reference. The workmen had agreed because of the terms of the settlements, which provided for the payment of the wages during the period the Reference remains pending and, therefore, no prejudice whatsoever can be said to have been caused to them, whether it was a Reference made under Section 10(2) or under Section 25-O(5). It is, therefore, clearly discernible that at that time the workmen had agreed for Reference and had in fact requested for such a Reference jointly with the Management only because they felt advised that no prejudice will be caused to them. Ms. Pahwa appearing on behalf of certain respondent-workmen submitted that the agreement of the parties would have no impact on the statutory provisions under Section 25-O and whereas no effective order had been passed under See. 25-O there is no question of making Reference in the proceedings under Section 25-O so as to refer the matter to the Industrial Tribunal under Section 10(2). She further submitted that there cannot be any estoppel against law.
I have considered these submissions made by her and I find that there is no force in these submissions for the simple reason that the principle that there cannot be any estoppel against law is established but equally established it is that the estoppel is against the conduct. So far as the law is concerned, it is clear that retrenchment and closure are the matters which could be adjudicated by the Industrial Tribunal and the Reference whether it is made under Section 10(2) or under Section 25-O without causing any prejudice to any party is to be adjudicated by the Industrial Tribunal and therefore, it cannot be said that any provision of law as such had been violated. The plea that there cannot be estoppel against law does not arise in the facts of this case and so far as the conduct of the parties is concerned, it is very clear that the parties had positively arrived at a settlement and had made a joint request and both the Unions were signatories to the settlement, which had been arrived at separately by both the Unions on two different dates. i.e. April 9/10, 1988 and these two settlements coupled with the Application dated April 18, 1988 form the heart and soul of the order dated April 19, 1988 passed by the Specified Authority. i.e., Commissioner of Labour directing the Reference to be made under Section 10(2) of the Act and accordingly Reference was made to the Industrial Tribunal at Ahmedabad. The order under See. 25-O(2) on merits was not allowed to be passed by the parties, but the application for closure had been disposed of as desired by the parties and permission for closure thus impliedly stood refused with the disposal of application for closure without considering the merits. Therefore, I do not find any substance in the contention which has been raised with reference to Section 25-O of the Act by the learned Counsel appearing on behalf of the respondent-workmen.
8. Under Section 7A the appropriate Government may constitute Tribunal for adjudication of industrial disputes relating to any matter whether specified in the 2nd Schedule or the 3rd Schedule and Item No. 10 under 3rd Schedule of the Act provides for retrenchment of workmen and closure of establishment as matters within the jurisdiction of the Industrial Tribunal. Thus, any matter concerning retrenchment of workmen and closure of establishment is within the jurisdiction of Industrial Tribunal whether it comes before the Industrial Tribunal by way of a Reference under Section 10(2) of the Act or by way of Reference under Section 25-O(5) of the Act. Therefore, in the facts of this case, when the Reference made to the Industrial Tribunal has preceded a settlement between the parties with regard to the payment of wages to the concerned workmen during the period of pendency of the Reference, it is of no consequence whether it was referred to the Industrial Tribunal with reference to Section 10(2) or Section 25-O(5). On behalf of the respondent workmen, reliance was placed on a Division Bench decision of this Court rendered in the case of R. G. Kamdar Mandal v. Packart Press, reported in (1996-I-LLJ-343). The Division Bench in this case has considered the scope of Section 25-O(5) and held that sub-section is mandatory in nature and the appropriate Government is under a duty either to review its earlier order or to refer the dispute to the Tribunal for adjudication and based on this principle certain directions were issued. There is no doubt that Section 25-O(5) is mandatory, but the mandatory nature of this provision cannot impinge upon the order which has been passed in this case by the Specified Authority on April 19, 1988 and the consequential order and communication, which had been sent by the Deputy Labour Commissioner referring the dispute to the Industrial Tribunal at Ahmedabad. The mandatory provision has not been violated in any manner. A decision disposing of the application for closure has been taken and the order to that effect had been passed. May be that order was not an order rejecting the Closure Application on merits. But the fact remains that the application was rejected because the parties had arrived at a settlement and a joint request in this regard had been made. Thus, taking of any decision on merits on the application for closure was made abortive at the joint request of both the sides and in view of the settlement and joint request of both the sides, if the Specified Authority took a decision to dispose of the Closure Application and while agreeing with the request of the parties took a decision that the matter may be referred to the Industrial Tribunal, it cannot be said that it is a case of breach of Section 25-O(5). In the facts and circumstances of this case, there is no question of review at the instance of either of the parties and the Specified Authority had passed an order which was sought by all the parties. i.e., the Management as well as the two Unions. No party can now be allowed to take a somersault and put the clock back after such a long period, more particularly when the objection about the maintainability of the Reference was also taken before the Tribunal on behalf of the Union by moving an application and such application was rejected by the Tribunal by its order dated February 20, 1992, but the same was not challenged at that time. The matter has remained pending since 1988 and the Award was passed in 1993. The parties had sought and obtained an adjudication on merits from the Industrial Tribunal and, therefore, they now cannot be heard assailing the very Reference made to the Industrial Tribunal way back in 1988 on the basis of the settlement and the joint request by all the sides and the fact to which the Reference has already been made hereinabove that the amount which was directed to be paid, subject to certain specified conditions by the Industrial Tribunal, has also been paid by the Company to those workmen who accepted the same. The Law laid down by the Apex Court in Vazir Glass Works Ltd. v. Maharashtra General Kamgar Union & Anr., reported in (1996-I-LLJ-962) also does not advance the case of the respondents-workmen on this aspect of the matter. In Vazir Glass Works Ltd.'s case (supra) the Supreme Court considered the scope of Section 25-O(5) and Section 10(1) of the Act and the Reference for adjudication of application for permission for closure made under Section 25-O(5) and Section 10(1). It was held by the Supreme Court that the Reference under Section 10(1) was not relevant and in law such Reference is treated as having been made exclusively under Section 25-O(5). In this case of Vazir Glass Works Ltd. (supra) the application seeking permission for closure was made under Section 25-O(1) and the same was rejected by the State Government. Within one year of the order of rejection, the application for review was made by the Company under Section 25-O(5). The said review application was kept pending by the State Government and instead of reviewing the order of rejection, the State Government in purported exercise of its powers under Section 25-O(5) read with Section 10(1) of the Act made a Reference to the Industrial Tribunal for adjudication of the case of closure made by the Company. The said order of Reference was held to be invalid by the Division Bench of the Bombay High Court on the ground that it had been passed after the expiry of one year from the date of the order of rejection of the application for permission to close. The Company had contended before the Supreme Court that since the review application had been moved within time, even if the order was passed by the State Government after the expiry of one year, the order passed in review was competent. It is this contention of the Company which was rejected by the Supreme Court. The meaning is that in case any review application is made and the Reference has to be made under Section 25-O(5), such Reference is also required to be made within the time-limit of one year because the order has a life for a period of one year only. The ratio of the Supreme Court decision is that the order under Section 25-O(2) can be reviewed within a period of one year only and, therefore, if any Reference has to be made under Section 25-O(5) such Reference should also be made within a period of one year because after the expiry of one year, the order itself comes to an end by efflux of time with reference to Section 25-O(4) and the Supreme Court has also clearly observed that the decision made on an application for permission for closure has to remain operative only for a period of one year, an order by way of review either on the aggrieved party's application or on own motion of the State Government, must be made within the said period of one year and otherwise, the right to make fresh application for permission to close after expiry of one year from the date of rejection of permission for closure will lose its relevance. Thus, the ratio of this Supreme Court decision goes on the question of the operative period of the order of the closure and the time-limit with regard to which the orders can be passed by the State Government by way of review at the instance of either of the parties or suo motu and the dictum that such period cannot exceed the limit of one year. Thus, in my considered opinion, the ratio of this decision has no bearing on the question which has been raised on behalf of the respondent-workmen with regard to (sic.) Section 25-O in the present case.
9. Once the Reference made to the Industrial Tribunal is held to be in order, the question arises as to whether the Award passed by the Industrial Tribunal in such Reference, which is impugned in these petitions, is sustainable or not. This Award runs in two parts; one is the part whereby the permission for the closure of Fine Chemical Plant has been granted by holding that the closure of Fine Chemical Plant was justified and the other part runs with regard to the consequences of closure, i.e., in case the Fine Chemical Plant is allowed to be closed by the Company, what relief could be granted to the concerned workmen. I may first deal with the question as to whether the permission for closure of Fine Chemical Plant, which has been granted by the Industrial Tribunal, is sustainable or not.
10. It is the common case of the parties that initially the Company had applied for the peimission to close all the four Plants as was mentioned in the Application and while this Application was being considered by the Specified Authority, the settlement was arrived at to confine the question of closure only to Fine Chemical Plant and its consequences and Vitamin 'C' Plant was agreed to be restarted. It may be mentioned that earlier way back on November 25, 1980 the Company had moved an Application seeking the permission to retrench large number of employees to the extent of 451 who were working in Vitamin 'C' Plant and such Application, which had been moved under Section 25-N, had been rejected by the Specified Authority dated February 16, 1981. Against this order dated February 16, 1981 Special Civil Application No. 1026 of 1981 had also been filed in this Court by the Company on March 9, 1981 challenging the validity of Section 25-N of the Act, but the same was withdrawn on March 27, 1992. It is thus clear that at one stage it is the Vitamin 'C' Plant, which was considered to be economically unviable by the respondent-Company and now it was the Fine Chemical Plant, which was considered to be economically unviable and, therefore, the Reference was kept confined to the question of closure of Fine Chemical Plant only. In this regard it was pointed out that the basis for seeking the permission for closure of the Fine Chemical Plant was the contemplated viability report which was in fact received in September 1989. It was the case of the Company that as on March 31, 1990 the Company was running into loss of Rs. 2,902.48 lacs and out of 1,284 employees, idle wages were being paid to large number of employees and in the backdrop of such a situation, the permission for closure had been sought, the scheme of voluntary retirement had been introduced and displayed and it was also submitted that Vitamin 'C' Plant had been started on October 20, 1988 and number of employees had been absorbed in Vitamin 'C' Plant and even after keeping 544 employees in Vitwnin 'C' Plant, it had not been possible to provide employment to 603 employees and thus 603 employees were being paid idle wages. It was further submitted that from February 1988 to December 1989, a sum of Rs. 5 crores had been paid against idle wages and from January 1990 to August 1990 idle wages of Rs. 1.5 crores had been paid and thus a sum of nearly Rs. 6.5. crores had already been paid against idle wages; from November 1988 to March 1990 the Company had suffered a loss of Rs. 450 lacs and the main reason was the payment of idle 10 wages to about 591 employees. Even after the scheme of voluntary retirement, the burden of surplus labour had not been reduced so as to liberate the Company from the financial crisis and still large number of surplus staff were there. It was also the case of the Company before the Industrial Tribunal that there were a cut-throat competition of the fine chemical products in the market and there was a price control of Vitamin 'C' by the Central Government and, therefore, the Company was obliged to sell its products in the market at rate lower than the manufacturing cost. The Company was, therefore, facing financial crisis. Reliance was also placed on the viability report.
11. On behalf of the petitioners-workmen, it was contended that the copy of the viability report had not been produced before the Industrial Tribunal and there was no justification for permitting the closure of the Fine Chemical Plant. The Company itself had first considered that the Vitamin 'C' Plant was not economically viable and now it was pressing for the closure of the Fine Chemical Plant for which there was no justification. On the other band, it was submitted on behalf of the respondent-Company by Mr. K. S. Nanavati that the viability report had been placed on record before the Industrial Tribunal, the same had also been considered by the Industrial Tribunal and after considering all the factors and the facts relating to idle employment, surplus staff and heavy losses, which were being continuously stiffered by the Company, the Industrial Tribunal came to the conclusion that the Company be perwmitted to close down the Fine Chemical Plant and this decision of the Industrial Tribunal is based on the material placed before it and the same cannot be successfully challenged on any of the grounds raised by the petitioners.
12. I have considered the various submissions made in this regard by both the sides. Having gone through the impugned Award passed by the Industrial Tribunal it cannot be said that the Tribunal has permitted the closure of Fine Chemical Plant without any material and without any justification. Industrial Tribunal has dealt with in detail the various factors including the losses, which the Company was suffering continuously from year to year, the factor of cut-throat competition in the market and the factor of idle wages being paid to large number of surplus employees. The Industrial Tribunal has also considered the viability report Exh. 19 before the Industrial Tribunal. The argument of the learned Counsel for the petitioner that the viability report was not there before the Industrial Tribunal is factually incorrect. This viability report Exh. 19 was also referred to in the statement of Mr. Mehta, who has been examined on behalf of the Company before the Industrial Tribunal. The copy of this viability report has also been placed on record before this Court alongwith the affidavit dated July 11, 1996 filed by one J. G. Babani on behalf of the Company and the same is available from page 526 to 605. The copy of this viability report shows that it is the feasibility study of Sarabbai M. Chemicals by Gujarat Industrial And Technical Consultancy Organization Ltd. and the recommendations have been made after considering the entire background, market status, technical feasibility and financial viability. The report is based on several tables and statements containing year wise factual data including the consumption costs, material utility etc. The Industrial Tribunal has also considered the evidence of Mr. Mebta and it is only after the consideration of the entire material and the evidence, the Tribunal took the decision. The relevant factors which weighed with the Industrial Tribunal in permitting the closure of Fine Chemical Plant are the losses sustained by the Company, viability report, the idle wages being paid to large number of surplus employees despite the scheme of voluntary retirement and such a finding arrived at by the Industrial Tribunal on consideration of material, which were relevant and also supported by the evidence oral as well as documentary including the contemporaneous evidence, cannot be said to be a finding arrived at by the Industrial Tribunal without any material or unwarranted in the facts of this case and, therefore, I do not find any justification or basis to interfere with that part of the finding of the Industrial Tribunal whereby it has permitted the closure of the Fine Chemical Plant of the Company.
13. The controversy, however, would not end merely because the closure is held to be justified. It was the further matter for consideration before the Industrial Tribunal as to what consequences such closure should follow and that in case of closure of Fine Chemical Plant what relief could be given to the workmen. In doing so, the Tribunal has permitted the retrenchment of 531 workmen subject to the conditions which are mentioned under para 28 of the Award. So far as the conditions are concerned, such conditions are just and proper and are also permissible under law. But the question is as to whether the permission for retrenchment of 531 employees can be said to have been given in accordance with law. The Industrial Tribunal has considered these aspects of the matter in paras 16 and 17 of the impugned Award. According to the Industrial Tribunal, as mentioned in para 17, there were 1,286 employees in all. 304 applications had been received from the employees seeking voluntary retirement and out of these 304 employees, request of voluntary retirement of 141 employees was accepted and the request of rest of the employees was not accepted. It is also recorded that certain employees had withdrawn their request of voluntary retirement and out of the employees, who had sought voluntary retirement, certain employees had been detained by the Company on the ground that some of them were going to retire shortly on attaining the age of superannuation and some of them were required for specialized and essential service by the Company and in the mean time about 87 employees had attained the age of superannuation or had died, 527 employees had been absorbed in the Vitamin 'C' Plant and, therefore, 531 employees were surplus as per the disclosure made in the affidavit of Mr. Mehta, who had been examined as a witness on behalf of the Company. It was argued on behalf of the petitioner-workmen that the Company had acted in an arbitrary manner and pick and choose policy had been adopted while identifying the 531 employees. It was also argued by Ms. Pahwa as also Mr. Jamdar that no list of 531 employees was produced before the Industrial Tribunal at any stage. It was also submitted that they had applied for a certified copy of such list, but the office of the Industrial Tribunal replied that no such list was available in the record and, therefore, the certified copy of such list could not be given. It was also submitted that although the closure was permitted only in respect of Fine Chemical Plant, employees of Vitamin 'C' Plant were also being retrenched and as such a serious prejudice has been caused to the employees working in the Vitamin 'C' Plant. Ms. Pahwa referred to the letter dated August 13, 1993, which is available at page 219 in Special Civil Application No. 2111 of 1993 whereby the Registrar of the Industrial Tribunal had sent the letter to the Sarabhai Kamdar Union with reference to their letter dated July 21, 1993 that in the record of the case no list of 531 employees was available and, therefore, certified copy of such list could not be made available. While referring to contents of para 3 of the impugned award it was submitted that the Tribunal has recorded that at the time of settlement it was orally agreed between the Unions and the Company that those employees who have been appointed after December 31, 1974 may be retrenched and it has been submitted that in fact no such oral agreement was there and the same has been erroneously recorded by the Industrial Tribunal. It has been further submitted that although the cut off date was chosen to be December 31, 1974, large number of senior employees had been terminated in breach of the seniority, ignoring the to cut off date and without following the principle of 'last come first go'. About 120 employees have been enlisted in a list which is available at pages 248 to 252 wherein said 120 employees employed on various dates prior to December 31, 1974 have been terminated. While referring to a list containing names of 514 workmen with details of their names, code numbers, date of joining and the department in which they were working as on February 9, 1988, it has been submitted that this list of employees, who were issued notices under See. 25-O on February 20, 1988 and who were on duty as on February 1993, includes large number of employees who had joined after December 31, 1974 and pointed reference has been made to the employees appearing at Sr. Nos. 17 to 29, 57 to 62, 105 to 146, 295 to 310, 320 to 331, 376, 377, 384 to 386, 397 to 413 and 514. It was also submitted by Ms. Pahwa that in case of Fine Chemical Plant at the most only such number of employees could be retrenched which would be equivalent to the total number of employees, who were working in the Fine Chemical Plant and her submission is that this is her argument in alternative to her first argument that the employees of other Plants could not be retrenched and only the employees of Fine Chemical Plant should have been retrenched, if the closure of Fine Chemical Plant had been permitted. Mr. Shabani for the petitioner-Union in Special Civil Application No. 2111 of 1993 argued that no seniority list had been published by the Company as required under Rule 81 of the Industrial Disputes (Gujarat) Rules, 1966 and in absence of such a list before the Industrial Tribunal, there was no backdrop or foundation so as to identify the employees to be retrenched and that there was no material even to come to the figure of 531 as has been arrived at by the Industrial Tribunal. Mr. Shabani submitted that the employer is under an obligation under Rule 81 of the aforesaid Rules of 1966 to prepare and maintain a seniority list of workmen in the particular category from which retrenchment is contemplated and this list has to be arranged in order of seniority of the service in the particular category and copy of such list is also required to be pasted at a conspicuous place on the Board in the premises of the establishment at least seven days before the actual date of retrenchment. It was also submitted that the provisions of Section 25-G of the Act had been blatantly violated and he has submitted that as a question of fact, the petitioner-Union had been able to show by referring to the list that the principle of 'First come last go' or 'Last come first go' has not been followed and it is a clear case of breach of the provisions of Section 25-G of the Act. Mr. Shahani has also submitted that even if it is agreed that there has to be a common seniority of the employees working in various Plants and for the purpose of retrenchment the employees could not be picked up from one particular Plant only, which was sought to be closed, the provisions of Section 25-G are yet required to be followed and for the purpose of retrenchment the pick and choose policy cannot be adopted so as to retain juniors and retrench seniors. He has further submitted that the Company itself had introduced the scheme of voluntary retirement and this scheme of voluntary retirement was introduced only to pressurise the employees to come forward for voluntary retirement or else face the retrenchment and, therefore, the employees were in fact forced to seek voluntary retirement because of certain allurement of the additional benefits, which were included in the scheme of voluntary retirement for payment of lump sum amount, over and above the additional 15 days wages as contemplated in case of retrenchment on account of closure. It was further submitted that once the scheme of voluntary retirement had been introduced and notified by the Company itself, it was not open for the Company to reject the request of large number of employees seeking voluntary retirement merely because the Company was not able to pay the lump sum amount simultaneously to all the employees who had applied for voluntary retirement. There was no power with the employer under the scheme of voluntary retirement to reject the request of voluntary retirement in case any employee seeking voluntary retirement was otherwise entitled for such voluntary retirement and he has submitted that it is a case of the Company itself that it did not accept the request of voluntary retirement in case of as many as 56 employees and the employees, who have been discharged, also include such employees, who had sought voluntary retirement. The sum and substance of the various submissions made in this regard is that the Tribunal has committed a serious error in arriving at the figure of 531 employees to be permitted to be retrenched and while arriving at this finding due regard has not been given to the reasons or material which was germane for the purpose of arriving at such a finding and, therefore, this finding, permitting the retrenchment of 531 employees and the direction accordingly, stands vitiated and the large number of workmen have, therefore, suffered a serious prejudice on that count and such a finding, as given by the Industrial Tribunal and the consequential direction thereto, cannot be sustained in the eye of law.
14. On the other hand, while defending this finding and the direction, it was submitted by Mr. K. S. Nanavati on behalf of the Company while referring to the statement of dates and events submitted by him and available at page 618 to 625 in the record of Special Civil Application No. 2111 of 1993 that in Fine Chemical Plant there were 265 employees and in Vitamin 'C' Plant there were 383 employees and 638 employees were there in the other common service departments; thus making the total number of employees to be 1,286. He has submitted that the Industrial Tribunal was not concerned only with the closure of the Fine Chemical Plant, but it was also seized with the matter of deciding as to what consequence the closure of Fine Chemical Plant has to follow and, therefore, in case of the closure of the Fine Chemical Plant, it could not be said that only 265 employees should have been permitted to be retrenched because 265 persons were employed in Fine Chemical Plant and Fine Chemical Plant was to be closed. His argument is that there were other posts, which were common to the Fine Chemical Plant as well as Vitamin 'C' Plant and the ancillary Plants and in case of closure of Fine Chemical Plant such number of posts, which were common posts for the purpose of Fine Chemical Plant, had also to be taken into consideration for the purpose of arriving at the total number of employees to be retrenched and in doing so due regard had to be given to the common seniority of all the employees working in all the departments and the employees who were working in Fine Chemical Plant only could not be considered in isolation to the exclusion of the employees working in other Plants. It was submitted by Mr. Nanavati that it is the case of the petitioner-Union in the petition itself that the employer was having inter-transfer and common seniority in various Units including Fine Chemical Plant, Sorbitol Plant and Vitamin 'C' Plant. In this regard he made a pointed reference to the pleading contained in para 2 of the Special Civil Application No. 2111 of 1993. He also submitted that in fact, such common seniority list had been prepared, the copy of the same had also been made available to the respondent-Union on demand. He had submitted that on December 2, 1988 Chemical Labour Union had addressed a letter to the Company and asked for upto date list of employees, who were absorbed while restrarting Vitamin 'C' Plant with a view to satisfy itself regarding proper implementation of the understanding regarding common semority and such list was later on updated and was produced before the Industrial Tribunal as Exb. 57/5 showing the details of 527 such employees. It was also submitted by him that on May 6, 1992 in the proceedings before the Industrial Tribunal the Company also submitted the list of 535 idle surplus employees, who were not called on duty and were being paid idle wages by sitting at home during the pendency of the Reference. According to him, the case of the petitioners that no such list had been produced before the Industrial Tribunal is wrong. Such list had in fact been produced and the same was exhibited as Exh. 57/5.
It has also been stated by Mr. Nanavati that out of 1,286 employees, 141 employees were relieved as a result of the acceptance of their request for voluntary retirement scheme, 46 employees, whose request for voluntary retirement was not accepted and who were discharged as per the Award had also received the same benefits as were available to them under the voluntary retirement scheme and they were not put to any loss whatsoever, 87 employees had either retired or ceased to be in employment, 527 employees were employed in Vitamin 'C' Plant and thus there were 531 surplus employees and these 531 employees have been considered to be surplus and were paid full wages without any work. It is further submitted that no stay against the Award was granted by this Court and on the basis of the Award and in terms of the Award, 517 idle workmen concerned in the Reference, whose names were there in the list of 535 surplus employees, i.e., Exh. 57/5 before the Tribunal, were retrenched and majority of them have accepted the payment. It is only 53 employees, who have not accepted the payment by taking exception to the mode of payment and instalment. Mr. Nanavati has submitted that the Tribunal considered these figures and have rightly come to the conclusion that 531 surplus employees were there so as to be retrenched as a result of the closure of Fine Chemical Plant.
15. I have considered the submissions made on behalf of both the sides. I find that :
(i) So far as the question of retrenchment to be made effective on the basis of the common seniority is concerned, no exception thereto can be taken because it is the admitted factual position that the posts in the various Plants were interchangeable and employees of Fine Chemical Plant only could not be taken in isolation for the purpose of retrenchment, more particularly when it is clear from the facts of this case that large number of employees even of Fine Chemical Plant were absorbed in the Vitamin 'C' Plant and, therefore, if at all retrenchment had to take place it could take place only on the basis of the common seniority of 10 the employees subject to the condition that the common seniority should be category wise.
(ii) It is wrong to say that list of 535 employees was not produced before the Industrial Tribunal because such list has been exhibited and it has found reference in the evidence. A wrong communication by the Registrar of the Tribunal which is contrary to record cannot give rise to any argument in favour of any party.
(iii) It is also wrong to say that viability report was not there before the Industrial Tribunal because the same had also been exhibited and it has found reference in the evidence. May be that the Registry of the Industrial Tribunal had informed those, who had applied for certified copy, that no such list was available in the record. It appears to be a case of some mistake because in fact the document is exhibited and it is clearly established that it is very much a part of the record before the Industrial Tribunal.
(iv) The contention which was raised by Mr. Shahani based on Rule 81 of the Industrial Disputes (Gujarat) Rules, 1966 is of no consequence. It does cast an obligation upon the employer to maintain a category wise seniority list and it is also required to be pasted on the notice-board at a conspicuous place at least before 7 days of the actual date of retrenchment, but such a list could be used only at the time when the actual retrenchment was to be made effective and, therefore, during the pendency of the Reference before the Tribunal whether such a list was pasted on the notice-board or not cannot have any bearing on the validity of the Award as such, nor it can impinge upon the findings of the Industrial Tribunal even if it is found that such a list had not been prepared and maintained. Such a list is to be used only at the time of retrenchment; the retrenchment had to take place after the Award and, therefore, the absence of such a list cannot have any impact on the findings arrived at by the Tribunal and the grievances with regard to the breach of Section 25-G or the breach of Rule 81 are all grievances pertaining to the time after the date of the Award and such grounds are of no avail for the purpose of assailing the findings of the Industrial Tribunal.
(v) The Industrial Tribunal has arrived at the figure of 531 surplus employees by accepting the figures as were given out on behalf of the respondent-Company and in doing so, after taking note of the absorption of 527 employees in the Vitamin 'C' Plant and after taking note of 141 employees, whose request for voluntary retirement had been accepted and 87 employees, who had either retired, resigned or ceased to be in the employment otherwise, it just made a mathematical calculation of subtracting the total 527 + 87 + 141 out of 1,286 and treated the remaining figure as the figure of surplus employees. Such a course of action adopted by the Tribunal does not appeal to reason and cannot be said to be convincing. The question is that at the very initial stage when the Company itself had contemplated and wanted that they must receive 600 applications seeking voluntary retirement and had received only 306 applications for voluntary retirement and yet it did not find it convenient to accept all those applications and instead it accepted the request of only 141 employees, how it could be said that merely because it was not convenient for the Company to pay a lump sum amount to all the persons, who were seeking voluntary retirement, the burden of such non-acceptance should fall and tilt so as to increase the number of surplus employees. I had called upon Mr. Nanavati to point out as to whether there was any power retained with the employer under the scheme of voluntary retirement so as to refuse the request of voluntary retirement, but no such power could be pointed out from the voluntary retirement scheme. It was agreed by the employer that those who seek voluntary retirement, they will be dealt with in accordance with the terms agreed for the purpose of making lump sum payment and at that time they very well contemplated, rather they wanted about 600 employees to come forward to seek the voluntary retirement and it was also known to them that if 600 employees come to seek voluntary retirement what lump sum amount will have to be paid to all these employees and, therefore, the financial difficulty to pay the lump sum amount to all those, who had sought voluntary retirement, could not be a ground for rejecting the request of the seekers of voluntary retirement so as to enhance the magnitude of surplus staff and to precipitate the retrenchrnent of more number of employees. The submission of Mr. Nanavati is that so far as the retirement is concerned, it does not depend upon the number of the employees who seek retirement, rather it depends upon the work and the manufacturing capacity of the operative Plant. What has to be examined is the impact of refusal of the permission to seek voluntary retirement on the number of surplus employees.
The Tribunal has also not examined as to why only 527 employees could be absorbed in the Vitamin 'C' Plant and why more number of employees could not be absorbed therein. Mr. Nanavati submitted that there were common service and common supporting department and in such departments there were 638 employees and, therefore, it cannot be said that closure of Fine Chemical Plant should have resulted into the retrenchment of only 265 employees. Concept of common supporting department was never urged and placed for adjudication before the Industrial Tribunal and it appears that this submission is oblivious of the fact that in the Company not only Fine Chemical Plant and Vitamin 'C' Plant were there, but as per the basic application, on the basis of which the permission for closure was sought, the Company itself had named four plants, i.e., Fine Chemical Plant, Vitamin 'C' Plant, Sorbitol Plant and Choline Plant and, therefore, it cannot be said that all the employees, who were working in any Plant other than Vitamin 'C' Plant or Fine Chemical Plant belong to the common service and in any case such an important aspect having direct effect on the number of surplus employees was not addressed before the Tribunal, nor the same was adjudicated and the figure of 531 was arrived at by a mechanical mathematical exercise by taking note of the employees, who had been absorbed in Vitamin 'C' Plant, the employees who had retired as a result of voluntary retirement or ceased to be in service on account of retirement, death, resignation etc. Even if certain number of employees had withdrawn their request for voluntary retirement, there were more than 200 employees, who were available for voluntary retirement and in their case the request for voluntary retirement could not be refused and even if it was refused, it could not be used for the purpose of magnifying the number of surplus employees so as to be subjected to retrenchment. True it is that the Company had at one stage given out that it may make exception in certain cases and it was also clearly held out in the letter dated April 10, 1988 (page 328) that while the process of restarting shall be based on category wise seniority, around 25 to 30 key positions will not be on the basis of seniority only, I find that much more than 25 to 30 positions have been retained in utter disregard of the principle of the seniority and therefore, such a course of action cannot be held to be permissible even if the Company is allowed the benefit of the contents of the letter dated April 10, 1988 and it is clear that all these important aspects, which should have been duly considered while arriving at the figure of 531, have not been considered in proper perspective and this figure has been arrived at in a mechanical manner, as stated above.
(vi) It is clearly made out that in arriving at the figure of 531, the Tribunal has not addressed itself to all the relevant considerations and the concept of common service department was never addressed for the consideration of the Industrial Tribunal, which was in fact a consideration germane in arriving at the requisite number of employees to be retrenched. It cannot be said that only 265 employees could be affected because as per the Company itself there were 265 employees working in the Fine Chemical Plant and the Fine Chemical Plant was permitted to be closed down. Nevertheless, the fact remains that the effect of the closure of the Fine Chemical Plant on the question of surplus staff should have been considered in a separate and distinct manner by the Industrial Tribunal on the basis of the factual data and by calling upon the Company to show as to what was the further strength of the number of staff which was required to be retrenched in case of the closure of Fine Chemical Plant. It appears that having held that the permission for the closure of the Fine Chemical Plant was justified, the Industrial Tribunal accepted all the figures as had been given out with reference to the employees working and absorbed in the Vitamin 'C' Plant and those figures, which were given with regard to the voluntary retirement etc. and by making simple mechanical mathematical exercise of deduction and subtraction, the figure of 531 was arrived at. Who should be the employees to be retrenched was an entirely different matter. Identification of such employees was a question to come up later on. First aspect which was to be considered was as to the number of employees to be affected and once the principle of common seniority of all the departments is accepted, the only thing which remains of substance is the total number of employees to be affected, Now who should be those employees, that will depend upon the category wise seniority list and such common category wise seniority list should form the basis.
16. In the facts and circumstances of this case and for reasons as above, while the permission for the closure of Fine Chemical Plant, as granted by the Industrial Tribunal by the impugned Award, does not warrant interference, I hold that the finding of the Industrial Tribunal in arriving at the figure of 531 surplus staff is not sustainable.
17. At one stage, I did not feel inclined to remand the matter and with the help of the learned Counsel made an attempt if the finality can be arrived at to such numbers on the basis of the record available before this Court, because the matter had already prolonged for number of years, but Mr. Shahani submitted that such exercise cannot be taken up before this Court and it was also submitted that the requisite material for this purpose was not available before this Court and the matter, therefore, deserves to be remanded. Even after going through the documents and pleadings, written submissions and the statements, which are available, I do find that such an exercise cannot be effectively undertaken, more particularly in view of the factors, which have already been considered in detail, and such matters with regard to the determination of the strength of the common service staff and as to how many number of employees in fact could be absorbed in the Vitamin 'C' Plant and also to consider in what number of cases the request for voluntary retirement was wrongly declined and the details about the employees, who were working in the Sorbitol Plant and Choline Plant effectively at the relevant time or as to whether the Choline Plant is a part of the Fine Chemical Plant are all matters which require consideration based on evidence.
18. Upshot of the aforesaid discussion is that these Special Civil Applications partly succeed. The fniding and the decision of the Industrial Tribunal on the question that the closure of Fine Chemical Plant was justified does not warrant any interference. I also, do not find any illegality in the 11 Conditions, which have been imposed by the Industrial Tribunal for the purpose of effecting retrenchment. However, so far as the direction that as a result of the closure of Fine Chemical Plant it will be permissible for the Company to retrench 531 employees is concerned this part of the Award is set aside and the matter is remanded back to the Industrial Tribunal at Baroda instead of Ahmedabad as per the consent and request of all the parties. The Industrial Tribunal at Baroda would consider afresh the question as to how many employees were required to be retrenched as a result of the closure of the Fine Chemical Plant and while considering this question, it will also be open for the Industrial Tribunal to record any evidence, which either of the parties may be willing to produce by way of oral evidence or any documentary evidence and it shall also keep in view the observations, which have been made in this regard in this Judgment. Looking to the fact that the dispute is pending since 1988 and is being remanded now, the Industrial Tribunal may consider the question of giving priority to it and may decide this controversy alongwith the appropriate consequential ancillary directions, keeping in view the fact that certain employees, who had accepted the amount at the time of retrenchment may be willing to come back if they are found to be entitled and certain employees, who have not accepted the amount, may be now interested to accept the amount or to continue in service, if they are found to be entitled. The Tribunal may decide the remanded proceedings at the earliest, but in no case later than the period of six months from the date the certified copy of this order is served upon the Industrial Tribunal at Baroda and the entire record of the Reference is received by the Industrial Tribunal at Baroda from the Industrial Tribunal at Ahmedabad. The Industrial Tribunal, Ahmedabad is also directed to send the entire record of the Reference (I.T.) No. 179 of 1988 decided on January 29, 1993 to the Industrial Tribunal at Baroda. The Company shall prepare a common seniority list of 1,286 employees category wise by August 26, 1996 or before September 2, 1996 and copies of such list shall also be made available to the responsible office-bearers of the respective Unions. The Company has also ostensibly agreed to supply a copy of such list to Mr. Jamdar and it will be open for the Union to file their objections if any. It is agreed by the learned Counsel for the petitioners that it will not be necessary to supply the copy of such list to each and every employee. Of course, one copy thereof will be placed on the notice-board at a conspicuous place in the premises of the Factory and it will be the respensibility ofthe Unions to inform its members to cheek the list in the notice-board. All the parties in these petitions are agreeable to appear before the Industrial Tribunal at Baroda without waiting for the notice from the Industrial Tribunal, Baroda for the remanded proceedings on September 2, 1996. A copy of this order may be sent to the Industrial Tribunal at Baroda and also to the Industrial Tribunal at Ahmedabad so that the remanded proceedings may commence before the Industrial Tribunal at Baroda immediately after the receipt of the record of Reference (I.T.) No. 179 of 1988 (decided on January 29, 1993 by Industrial Tribunal, Ahmedabad) from the Industrial Tribunal at Ahmedabad.
19. Rule is made absolute accordingly in all the petitions with no order as to costs. Direct service is permitted.