English Electric Company of India Ltd. vs Industrial Tribunal Madras and Another

Chandurkar, C.J.—This judgment will dispose of Writ Appeals Nos. 1235 of 1983 and 72 of 1984. Both these appeals arise out of the

order of Mohan, J., in Writ Petition No. 1980 of 1983, which filed by the present appellant (hereinafter referred to as the company) challenging an

award on the Industrial Tribunal Tamil Nadu in Industrial Dispute No. 38 of 1981. The Industrial Tribunal held that the services of the 131 casual

employees of the company were terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act and they were,

therefore, entitled to be re-employed with back-wages. As regards the fifty other casual employees, the Tribunal took the view that they should be

re-employed without back-wages since they were accustomed to non-employment on various spells of break in service. By the impugned order,

Mohah, J., held that the relief of reinstatement with back-wages could be given to only 131 workmen and that the award in respect of the 50

workmen will have to be set aside as they had not put in 240 days of service. Writ Appeal No. 1235 of 1983 is filed by the company challenging

the order of reinstatement of the 131 employees, and Writ Appeal No. 72 of 1984 is filed by the union challenging order of Mohan, J., setting

aside the award in respect of the 50 casual employees.

The dispute which has been sponsored by the Working People General Workers Union'' (hereinafter referred to as the union) relates to the

question as to whether the employment of 181 casual employees of the company was terminated and if so whether this termination was bad for

non-compliance with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The record in this

case discloses that for a considerable length of time even after the reference was made by the State Government by the order, dated 11 May,

1981, u/s 10(1)(d) of the Act, the union was not very sure of its own case. It is not in dispute that all the 181 employees in respect of whose non-

employment the State Government has made the reference, were casual employees. Out of these 181 employees, 39 employees stopped working

between November 1979 and 20 September, 1980 (exhibit M 41). As a matter of fact, one workman Jayagopal who is at serial (171) in the list

attached to the reference, has stopped working prior to 1979. Five workmen worked last till 13 October, 1980 (exhibit M 42), six workmen

worked last till 14 October, 1980 (exhibit M 43). With regard to the remaining employees, according to the company, they did not report to work

on 16 October, 1980, 30 employees had been working after 16 October, 1980.

The main grievance of the union was that casual employees who were working for a long period of time with the company were not being given

the status of ""permanent employees."" The union itself came into existence on 1 October, 1980. The union wrote on 14 October, 1980 (exhibit W

2) to the company that despite several years of service rendered by the casual employees they were not confirmed in service and granted facilities

as applicable to the other permanent workman. By this letter, the union informed the company that;

If the management fails to concede to the bona fide and legitimate request of this union, it would do nothing but to raise an industrial dispute to

seek justice.

Along with this letter, the union sent a list of 141 employees (exhibit M 33). This list is styled as follows :

Details and particulars of workers of English Electric Company of India, Ltd., Madras-600 0043, illegally not confirmed amounting to non-

employment

This list will show that on 14 October, 1980, the only dispute raised was with regard to non-confirmation which according to the union amounted

to non-employment. On 15 October, 1980, the union sent a petition to the Assistant Commissioner of Labour raising a dispute ""against the

respondent-management for the illegal non-employment of 141 employees who were working in permanent nature of job for several years

connected with main production."" In this petition, however, surprisingly, the union put forth a case that the services of these 141 employees had

been illegally terminated as and from 13 October, 1980. The prayer made in this petition of 15 October, is that the company should be directed to

reinstate in service the 141 persons with continuity of service. Along with this petition, a statement of industrial dispute under rule 24 of the Madras

Industrial Disputes Rules, 1958, has been forwarded. In that proforma, the nature and cause of the dispute is shown as ""illegal non-employment

and non-confirmation of 141 workmen. In the column ""efforts made by both the parties,"" it is stated : ""Union wrote a letter to the management in

this connection on 14 October, 1980 ..."" On 16 October, 1980, the union addressed a letter to the Minister for Labour in which the case put forth

that :

113 youngsters, technically qualified, working in various departments directly connected with the main production line have been illegally

terminated from service with effect from 13 October, 1980.

This is now an entirely new case with reference to the number of employees. Later on, on 29 October, 1980, the union forwarded to the Assistant

Commissioner of Labour a list of additional names of 46 employees, thus raising the number of employees in respect of whom there was dispute,

to 186, because the name of one employee was repeated in the earlier list of 141.

A copy of the union''s petition, dated 15 October, 1980, was sent to the company by the Assistant Commissioner of Labour. The company put

forth the case that all the employees whose names were given by the union were casual workers whose services were always irregular as they

were employed only on ad hoc basis as and when work was necessary depending on the exigencies of the company''s business and manufacturing

activities. It was denied that the services of any employee had been illegally terminated and it was stated that :

As and when the need arises, it is submitted that this recruitment would be done on an ad hoc basis as in the past, keeping in mind the various

relevant factors such as business exigencies, etc.

The Assistant Commissioner of Labour having reported failure of conciliation, the State Government made a reference u/s 10(1)(d) of the Act

referring the dispute to the Industrial Tribunal as follows :

Whether the non-employment of the following workers is justified, if not to what relief they are entitled. To compute the relief, if any awarded in

terms of money, if it could be so computed.

A list of 186 workers was attached to the reference. It is now common ground that the dispute relates to 181 workers only.

Before the Tribunal, the union filed a claim statement in which the stand taken was that the employees were refused employment on and from 13

October, 1980. In Para. 7 it was stated as follows :

In consequence to the demand for confirmation and permanency and for extension of equal benefits and equal pay and to evade the liability that

would fall upon the management in a fair, proper and legitimate settlement of this just demand of the union, the respondent-management forestalled

the situation by illegally terminating the services of hundreds of such employees on and from 13 October, 1980, ousting them from service and/or

by reducing employment to these persons on and from 13 October, 1980.

In Para. 15 it was stated that the contention of the company that even though these workers had been ousted from service and denied and refused

employment from 13 October, 1980, no question of termination would arise, was contrary to the provisions of the Standing Orders. In the same

paragraph the case of termination on 13 October, 1980, was reported as follows :

The failure to give a formal notice of termination is self-serving and cannot alter the fact of termination of the service or employment of these

workmen on and from 13 October, 1980.

The statement of claim thus unequivocally pleads a case of termination on and from 13 October, 1980.

Before the Tribunal the company set out the normal mode of employment of casual workers. It was stated that casual workers are employed

generally on a Monday depending upon the demands made by the various departments to the personnel department and persons who are offered

engagement at the beginning of the week are not normally disturbed during the course of the week. It was stated that if a casual workman does not

turn up for work, he is merely marked absent and there is no obligation on him to apply for leave. The case of the company was that being

dissatisfied with they not being treated as permanent employees, the casual workers formed a group, convened a meeting on 12 October, 1980,

and decided to carry on an agitation against the company for their absorption in the service of the company as permanent workmen. According to

the company, as part of their agitation they showed down their work on 13 to 15 October, 1980, and some of them refused to work on 15

October, 1980. They stayed away from work with a view to press their demand, from 16 October, 1980. The positive case of the company was

that after 15 October, 1980 : none of the persons mentioned in the annexture to the order of reference except those who were mentioned in exhibit

M 47 reported for work and when other persons in the category of casual workmen offered themselves for casual engagement they were

continued subject to exigencies of requirement. There was, therefore, no question of termination of employment and the cessation of employment

of persons covered by the reference was brought about by their own conduct and of their own volition and the company was not responsible for

the same. It was pointed out that 35 persons out of the 181 persons in the list were not engaged after 30 September, 1980, and they do not fall

within the ambit of ""non-employment"" alleged by the union. In reply to the case of the union that the persons covered by the order of reference

were denied employment from 13 October, 1980, it was stated that 130 persons were engaged on 13 October, 1980, and most of them reported

for casual engagement even on 14 and 15 October, 1980, and that the remaining persons did not turn up for engagement for reasons best known

to them but certainly not due to any denial of employment. It was positively denied that there was termination of any employee from 13 October,

1980. The positive case put forth was as follows :

The factual position is that after carrying on an agitation in the form of go slow on 13, 14 and stoppage of work after marking attendance on 15

October, 1980, they stayed away from work from 16 October, 1980.

The company took the stand that if the basis for the industrial dispute as alleged by the union is found to be untrue, then the whole dispute loses its

validity and should be ignored because there can be no valid dispute at all with regard to denial of work earlier to 16 October, 1980.

This counter-statement of the company was filed on 1 August, 1981. Till this stage the respective case of the union and the company was very

clear. The case of the union was that there was non-employment of employees on and from 13 October, 1980, inasmuch as work was refused to

the casual employees on 13 October, 1980. The company''s case was that on 13 October, 1980, 130 casual employees out of the list attached to

the reference had actually worked and most of them had also worked on 14 and 15 October, 1980.

A rejoinder statement was filed on behalf of the union denying the allegation of go slow on 13 to 15 October, 1980, and staying away from

work from 16 October, 1980, as being a flight of fancy and figment of imagination.

Later, however, on 25 November, 1981, an amendment of the original claim statement was sought by amending Para. 8 of the claim statement

on the ground that :

there were certain omissions and clerical typographical mistakes with regard to the narration of the events and circumstances leading to the raising

of the dispute relating to the non-employment of 186 workmen mentioned in the annexture of the terms of reference and covered by this dispute.

The amendment now sought was that the non-employment of 186 employees was ""by way of denial/refusal of employment ever since some time

prior to June 80 onwards, in the months of July to October, 1980."" The further case which was sought to be introduced by the amendment was as

follows :

On 15 October, 1980, the management told the workers who had worked on that day that their services were terminated and would not be

permitted for work from 16 October, 1980. Number of these workers were prevented entry at the gate on 16 October, 1980. The union had

decided to raise a dispute in respect of all these cases along with the earlier cases of non-employment also.

An entirely new case was thus sought to be introduced changing the case of ""non-employment on and from 13 October, 1980"" to ""non-

employment in the months of July to October 1980 and a specific case of non-employment on and from 16 October, 1980."" It is difficult to see

how this wholly new case can be brought in by way of correcting something which was called an ""omission or clerical or typhographical mistake.

This amendment sought, was opposed by the company and it was pointed out by the company that it was positive case before the reference was

sought, that the services of 141 persons had been terminated illegally from 13 October, 1980, only for the reason that they had enrolled themselves

as members of the union. It was also pointed out by the company that by the subsequent letter, dated 29 October, 1980 the union''s case was that

the employment of 46 persons had been terminated under the same circumstances in which the earlier set of 141 persons were terminated from

employment.

The Tribunal however, allowed the amendment taking the view that the non-employment of some of the 186 workmen even a few months

prior to 15 October, 1980, would certainly come within the ambit of the reference made by the Government of Tamil Nadu. It, however, appears

that the Tribunal took the view that there would be time enough for the management to plead that the case now set up by the petitioner-union

should be rejected.

The order permitting the amendment was challenged by the company by filling a writ petition, Writ Petition No. 1019 of 1982. That writ

petition, however, was rejected with the observation that the dispute related to the non-employment and that the date when non-employment took

place did not very much matter. The order of the learned Judge shows that it was left open to the management to challenge the award when it

would be made.

Before the Tribunal, four witnesses were examined on behalf of the union. W.W. 1, Srinivasan; was the secretary of the union : W.W. 2,

Lakshminarayan, was examined to show that the management terminated the services of the employees on 14 to 16 October, 1980 : W.W. 3, was

examined to show that on 16 October, 1980, casual workmen were not allowed to enter the factory, W.W. 4, was examined to show termination

of employment of employees who did not work after 30 September, 1980. On behalf of the company, the Senior Personnel Assistant, N.

Ramalingam was examined as M.W. 1 and the Senior Administrative Officer of the company, V. Rajayya, was examined as M.W. 2.

Before the Tribunal, a question as to the competence of the union to seek the reference was raised. The Tribunal took the view that the union

had been properly authorised to sponsor the dispute and the reference was, therefore, not bad. With regard to non-employment of 181

employees, the Tribunal referred to the evidence of the three workers and came to the conclusion that there had been denial of employment for all

the workers and that there was no abandonment of work. Since some grievance has been made by Sri N. R. Narayanswami about the approach

of the Tribunal to the question of non-employment, we must make it clear that the Tribunal considered two alternatives, namely, whether there was

a denial of employment or whether there was abandonment of work. The grievance made is that it was never the case of the company that there

was abandonment of service by the employees and that the case of the company in fact was that the casual employees did not offer themselves for

employment which is different from ""abandonment."" The Tribunal, however, held that the employer had failed to prove abandonment of service.

The Tribunal took the view that if no agitation was raised under exhibit W2 for having thrown 141 persons out of employment from 13 October,

1980, it was because it was understood that it is only part of the usual practice of the management to give break of service and it would not have

struck them that they will be no longer re-employed as has happened subsequently. Rather a speculative finding which has been recorded by the

Tribunal at the end of Para. 8 which runs as follows :

But the non-employment of W.W. 4 from 27 July, 1980, and WW 2 from 13 October, 1980 is not due to such abandonment, nor there was such

threat of strike before 15 October, 1980. It must be only due to termination of their services, as stated by them. Same thing should have happened

to others also, probably because they joined the petitioner-union to fight for confirmation of their service in the respondent-company.

On this finding as already indicated, the Tribunal directed 131 casual workers to be reinstated with back-wages and 50 casual workers to be

reinstated without back-wages. This order of the Tribunal has been confirmed by the learned Single Judge, in so far as the 131 casual workers are

concerned, and set aside with regard to the other 50 casual workers.

The learned Single Judge, reproduced a passage from the counter-statement of the company in which the stand taken was that with a view to

press their demand the casual workers stayed away from work from 16 October, 1980, and observed that the necessity for strike clearly showed,

that the failure to confirm the employees was the main grievance and further that the resolution of the union, dated 14 October, 1980, and the

subsequent resolution, dated 2nd October, 1980, showed that there was a substantial support for the union to raise the demand on behalf of the

workmen. With regard to the termination, the learned Judge observed that there was failure to employ the workmen and at the same time other

casual workers were employed and this amounted to termination in so far as they had not been further employed. The learned Judge also held that

denial of employment was comprehensive enough to include non-employment earlier and that non-employment was attributable to the

management. Accordingly, the learned Judge found that 131 workers who had put in more than 240 days of service had to be reinstated because

their non employment was contrary to the provisions of Section 25-F of the Act. However, in so far as the other 50 workers who had not put in

240 days of service were concerned, the learned Judge held that they were not entitled to reinstatement. The correctness of this judgment is

challenged in both these appeals.

Sri Narayanaswami, appearing on behalf of the company, has raised three contentions before us. His first contention was with regard to the

competence of the union to raise the dispute. He next urged that there was no termination of employment on the part of the company and there

was no question of non-employment on 13 or 14 October, 1980, even according to the stand taken by the union by amendment on the statement

of claim. There could, therefore, be no dispute with regard to non-employment, which could be raised, on 14 October, 1980. Thus, according to

the learned counsel, the reference was made by the Government on the footing of the grievance made that there was non-employment on 13

October, 1980 or 14 October, 1980. The stand now taken by the union that there was non-employment even prior to 13 October, 1980 and on

16 October, 1980, was an entirely new stand which the Industrial Tribunal was not entitled to go into. In any case, thirdly according to the learned

counsel, the present was a case of casual workmen not turning up for work on 16 October, 1980, and the Tribunal and the learned Single Judge

had wrongly proceeded on the footing that the case of the company was one of abandonment of employment by casual workers. Reference was

made to the evidence of the witnesses examined by the union and it was pointed out that the evidence of WW 2 and WW 3 was wholly sufficient

to show that the company had terminated the employment of casual workmen. With regard to the evidence of WW 4, Lingeswaran, it was pointed

out that he was complaining of a break in service on 26 July, 1980, and he vaguely spoke to 30 to 40 employees being terminated between July

and October 1980. Sri Narayanswami, therefore, pointed out that this was a case of total absence of evidence to prove termination of employment

on the part of the company. It was argued that learned Single Judge was in error in coming to the conclusion that the services of the workmen were

put an end to and that at the same time taking any fresh casual laborers would tantamount to termination. Relying on the decision of the Court in

Coimbatore Pioneer ""B"" Mills Vs. Labour Court, Coimbatore (1979)-I-LLJ-41 and Workmen of Coimbatore Pioneer ""B"" Mills Ltd. Vs. Labour

Court (1981)-I-LLJ-561 it was contended that it was not obligatory for the Tribunal or the Court to grant a relief of reinstatement in each case

where termination has been found contrary to Section 25-F of the Act.

We shall deal with the question of competence of the union to sponsor the case of non-employment of the workmen in question, later.

So far as the question of non-employment is concerned, Sri Janakiraman, appearing on behalf of the union has contended that termination of

employment of casual workmen who have put in 240 days of service could not be brought about without compliance with the provisions of Section

25-F of the Act. It was contended on the authority of the decision of the Supreme Court in State Bank of India Vs. N. Sundaramony (1976)-I-

LLJ-478 that ""termination"" having been construed by the Supreme Court as embracing not merely the act of termination by the employer but the

fact of termination, however produced, the instant case is clearly covered by the ratio of the decision in Sundaramony (vide supra), because there

is non-employment and the evidence showed that the non-employment was brought about by the company. Reliance was placed on some

decisions dealing with different modes by which termination of employment can be brought about. Reliance was also placed on a Division Bench

decision of this Court in Joseph (P) and others Vs. Gopal Textiles Mills (1975)-I-LLJ-136 in which the Division Bench took the view that the right

of a badli worker to get lay-off compensation did not depend on the right to get employment but on the fulfilment of the conditions laid down in

Sections 2(kkk) and 25C of the Act. On the basis of this decision it was contended that even if a casual worker has no right to get employment,

because he will get employment if there is work which requires employment of casual employee; if a casual worker has put in continuous service

for a period of one year as contemplated by Section 25-B of the Act the non-compliance with the provisions of Section 25-F must necessarily

result in an illegal retrenchment thus entitling such worker to reinstatement :

With regard to the appeal filed by the union in respect of the 50 workers whose claim for reinstatement has been denied by the learned Single

Judge, Sri Janakiraman has contended that since admittedly newly recruited casual workers have been given employment and in view of the fact

that the retrenchment without compliance with the provisions of Section 25F was illegal, the retrenched worker had a right of re-employment u/s

25H of the Act.

An argument was also raised that before the Industrial Tribunal and the learned Single Judge there were two versions, namely, one of

termination of employment put forth by the union, and the other, that the employees did not turn up after 16 October, 1980. According to Sri

Janakiraman, the Tribunal had weighed the evidence and come to a finding and it was not permissible for this Court under Art. 226 of the

Constitution of India to reappraise the evidence and come to a different finding. Reliance was placed on the decisions of the Supreme Court in

Sadhu Ram Vs. Delhi Transport Corporation (1983)-II-LLJ-383 and Workmen of Best and Crompton Industries, Ltd. Vs. Best and Crompton

Engineering Ltd. (1982)-II-L.L.J.-169.

Now, at the outset, it has to be pointed out that the material which was placed before the State Government at the time when the order of

reference was made, was the letter, dated 14 October, 1980, along with which was enclosed a list of 141 workers (exhibit M 33). The State

Government had also before it a petition, dated 15 October, 1980, in which the grievance was that the company had illegally terminated the

services of 141 persons on and from 13 October, 1980. The State Government had also before it exhibit W 3 which was a statement made in a

proforma referring to illegal non-employment and non-confirmation of 141 workmen. We have already referred to the fact that when the list of 141

workers was forwarded on 14 October, 1980, the request made to the company was merely with regard to the non-confirmation of these

employees in the service. Therefore, on 14 October, 1980, when the letter exhibit W2 was written by the union the case put up was not one of

termination on 13 October, 1980. However, when on 15 October, 1980, a petition was sent to the Assistant Commissioner of Labour, the case

put up was one of termination of 141 employees as and from 13 October, 1980. In the pro forma, when reference was made to the effort made

by both the parties, it was stated that the Union had written a letter to the company on 14 October, 1980, ""in this connection"". Then, the case

which was put up before the Minister was again one of illegal termination with effect from 13 October, 1980. For the first time, on 29 October,

1980, a case is made out that the services of 46 employees had been terminated and thus the dispute, dated 15 October, 1980, now relates to

186 employees. As we have already pointed out, 39 of the employees were not in employment from various dates between May, 1980 and 30

September, 1980. Substantially, therefore, the representation made to the State Government was that a much large number of employees, that is,

141, had been terminated from service with effect from 13 October, 1980. The reference made by the State Government must, therefore, be read

in the light of the material laid before the State Government which in respect of 141 employees'' termination with effect from 13 October, 1980

was specifically pleaded. A mere look at the letter, dated 14 October, 1980, would clearly indicate that this was an entirely false case on which the

State Government was persuaded to make a reference.

The falsity of the case that there was termination of 141 employees is further made clear by the fact that it is now an admitted position that 130

out of these 141 employees were engaged on 13 October, 1980 and most of them reported for casual engagement even on 14 and 15 October,

1980. It was only after this stand was taken by the company that by putting forth an excuse of clerical and typographical mistake the whole case

which was put before the State Government was given a go-bye and a new case of termination on 16 October, 1980, was sought to be canvassed

before the Tribunal. We have reproduced above the amendment made. But a reading of the amended claim-statements filed by the union would

show that it has not served the purpose of the union to put forth a case of non-employment on and from 16 October, 1980.

We have earlier referred to the repeated stand taken by the union that there was non-employment on and from 13 October, 1980, in respect

of 141 employees. That stand cannot be ignored in spite of the amendment. Paragraph 7 in the original statement of claim remains in the same form

and it continues to refer to the termination of employees on and from 13 October, 1980. We have already reproduced para 7 and even in the

amended statement of claims, this Paragraph reads :

7 ... the respondent-management forestalled the situation by illegally terminating the services of hundreds of such employees on and from 13

October, 1980, by ousting them from service and/or by refusing employment to these persons on and from 13 October, 1980.

Then again, in para. 9 it is stated that the general body of the union which met on 14 and 26 October, 1980, decided to sponsor the case of

the non-employment of 140 and 46 workmen employed by the company and to demand their reinstatement in service and to take necessary steps

for securing this demand. The statement that the decision to sponsor the cases of 140 workmen in the matter of non-employment was taken by the

union on 14 October, 1980, runs-counter to the case now sought to be canvassed that there was termination of 141 employees on 16 October,

1980. Even in the amended Para. 5 of the statement of claim, the opening sentence refers to ""the non-employment of the workmen on 15 October,

1980,"" and it also refers to the petition, dated 15 October, 1980, in which dispute was raised with regard to 141 workmen. Once again, in Para.

12 of the amended statement of claim the date of illegal termination is still referred to as ""13 October, 1980"". Non-employment with effect from 13

October, 1980, is once again reiterated in Para. 22 of the amended statement of claim, where it is stated :

The workmen concerned continue to remain unemployed for no fault of theirs and due to illegal action of the respondent-management in causing

their non-employment on and from 13 October, 1980.

W.W. 1, who is the general secretary of the union, swears to the resolution, dated 14 October, 1980, on which date now according to a part of

the amended statement of claim there could not be any dispute. He speaks of the meeting, dated 15 October, 1980, and swears to the effect that

on the date of exhibit W 3, i.e., 15 October, 1980, 141 workmen were non-employed. He merely states that in exhibits W4 and W6, ""13

October, 1980"" is a mistake and it should be 16 October, 1980. He refers to the fact that on 14 October, 1980, when the general body meeting

was going on a mob of workmen came and represented that some of them were terminated by the management even on 13 October, 1980. He

makes a positive statement thus :

Our union has raised the industrial dispute only on the basis of the date furnished by us in exhibits W3 and W4.

Exhibits W3 and W4 refer to ""13 October, 1980"". In this state of the record, we must proceed on the footing that the reference made by the State

Government was only on the basis that there was termination as and from 13 October, 1980, in respect of 141 employees.

The Industrial Tribunal dealing with a reference made to it has no general or inherent jurisdiction to cover all matters which a party might raise

before it for the first time and its jurisdiction is limited only to the dispute referred to it. Section 10(4) of the Act permits the Tribunal to decide only

disputes or points referred to it and matters incidental thereto. In Delhi Cloth and General Mills v. Their workmen (1967)-I-LLJ-423 the Supreme

Court has pointed out that the Tribunal cannot widen the scope of the enquiry beyond the terms of reference. In Workmen of British Indian

Corporation vs. British India Corporation 1965-II-LLJ-433 the Supreme Court held that in a reference of demand for increase of wages the

question of merger of dearness allowance with basic wages could not be considered by the Tribunal in the absence of a specific term in the order

of reference. In a matter which relates to non-employment and where the union comes forth with a specific date with regard to non-employment in

order to persuade the Government to make a reference with regard to the dispute relating to non-employment, the dispute can never be of a

general nature especially when the dispute relates to non-employment of a large number of employees. There is a world of difference in non-

employment on and from 13 October, 1980 and non-employment on and from 16 October, 1980. Once the reference is made to the Tribunal the

union could not be permitted to make out an entirely new case than the one which was raised by it and which alone the State Government was

persuaded to refer to the Industrial Tribunal. We are, therefore, of the view that the Tribunal committed an error in permitting the union to make

out a case at the stage of the trial that the union was entitled to canvass the case that non-employment of 141 workers had taken place on and

from 16 October, 1980. This was not a matter of mere technicality but went to the jurisdiction of the Tribunal as it has no jurisdiction to decide a

dispute which has not been referred to it. Apart from this, as we have already pointed out, the amendment permitted, instead of clarifying and

pinpointing the controversy, has merely created a confusion about the stand of the union. On the stand taken by the union that there was no non-

employment with effect from 18 October, 1980, in our view, the reference should have been answered straightway in respect of 141 employees

against the union, instead of permitting the union to canvass a case of non-employment on and from 16 October, 1980.

Even on merits, on a careful consideration of the entire evidence, we find that the union has miserably failed in this case to prove that the

company had terminated the services of the casual workmen in dispute. Sri Narayanswami has contended that the company was entitled to a

finding based on evidence and the evidence of the witnesses examined by the union does not prove as to when was the termination and who

terminated the employment. Our attention has been drawn to the amendment introduced in the statement of claim in which two stands are taken.

One stand is that the termination of casual workers was ""since some time prior to June, 1980 onwards in the months of July to October 1980"".

The second stand is :

On 15 October, 1980, the mangement told the workers who had worked on that day that their services were terminated and would not be

permitted for work from 16 October, 1980.

It was urged that no details have been given as to who had terminated the services of any casual workers and that the bad reference to the

management would be of on assistance to the union. It was pointed out that when a case of oral termination is pleaded, the evidence must be

strong enough to carry conviction. It was also urged that the case canvassed is of non-employment of 181 workers at different points of time and

there cannot, therefore, be any omnibus evidence in such a case. Indeed, it was argued that in the absence of evidence in respect of the termination

of each individual, a speculative finding as recorded by the Tribunal, that there must have been termination of employment of all the 181 employees

can never be sustained. According to Sri Narayanswami, it was incumbent on the union to prove positively an act of termination by some individual

acting for and on behalf of the employer.

Sri Janakiraman, appearing on behalf of the union, has contended, relying on Sundaramony case (vide supra), that ""retrenchment"" as defined in

section 2(oo) of the Act would take in fact of termination, however, produced and in the case of casual workers who had put in 240 days of

service such termination could not be brought about except by compliance with Section 25-F of the Act. Our attention has been drawn to several

decisions by way of instances of termination.

It has not been seriously disputed before us that a casual worker who has been in continuous service for not less than one year cannot be

retrenched unless the provisions of Section 25-F of the Act are complied with. The definition of ""workman"" makes no distinction between a casual

workmen or a permanent workmen. The only reference to a casual workmen is to be found in Section 25C of the Act. Section 25C deals with the

right of workmen laid off for compensation and provides as follows :

Whenever a workman (other than a badli workman or a casual workman) whose name is borne on the muster-rolls of an industrial establishment

and who has completed not less than one year of continuous service under an employer is laid off, whether continuously or intermittently, he shall

be paid by the employer for all days during which he is so laid off, except for such weekly holidays as may intervene, compensation which shall be

equal to 50 per cent. of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid off.

x x x x x x

Explanation :- ''Badli workman'' means a workman who is employed in an industrial establishment in the place of another workman whose name is

borne on the muster-rolls of the establishment, but shall cease to be regarded as such for the purposes of this section, if he has completed one year

of continuous service in the establishment.

Throughout the Act, this appears to be the only provision which makes a reference to ""casual workman."" But even where, the badli workman is

treated on a better footing than a casual workman, and a badli workman who has completed one year of continuous service in the establishment

has been given a right to claim lay-off compensation, but such a right has not been given to a casual workman.

Apart from the terms of section 25C, a Division Bench of this Court has taken the view in Joseph (P) Vs. Gopal Textiles Mills (supra) that

badli is a workman as defined in the Act and hence will be entitled to get lay-off compensation provided his name is borne on the muster-rolls and

he completes 240 days of service. In the same decision, the Division Bench has observed that the right of badli to get lay-off compensation does

not depend on right to get employment but on the fulfilment other conditions laid down in Section 2(kkk) and 25C of the Act. Sri Janakiraman

wanted to rely on the ratio of this decision to contend that the relief of reinstatement sought by the casual workmen should not be made to depend

on the right to get work. It must, however, be pointed out that the right of a badli who had competed 240 days of service to get compensation was

squarely covered by an express statutory provision, and the ratio of that decision must be restricted only to the construction of Section 25C of the

Act.

However, Section 25F of the Act makes no exception in so far as retrenchment is concerned and all workmen who have been in continuous

service for not less than one year as contemplated by Section 25B of the Act could be retrenched only after satisfying the conditions in Section

25F. It, is however, to be noted that Section 25F makes a reference to ""No workman ........... shall be retrenched by that employer .............."" The

retrenchment must therefore, be by the employer. When we go back to the definition of ""retrenchment"" in Section 2(oo) of the Act we find that that

definition refers to ""the termination by the employer of the service of a workman."" The substantive part of the definition reads :

retrenchment"" means the termination by the employer of the service, of a workman for any reason whatsoever, otherwise than as a punishment

inflicted by way of disciplinary action, but does not include ......

We are not concerned with Cls. (a), (b), (bb) and (c) which are clauses of exception. The substantive part of the definition, however, emphasises

the fact that in order that there should be retrenchment there must be termination by the employer of the service of a workman. Merely because a

workman is not in employment at a particular point of time and more so in the case of a casual worker whose employment depends on the

availability of work, inference of ""retrenchment"" will not necessarily follow. According to the system in operation in the company, the number of

casual workers is determined by the demands made by the different departments and once a casual worker is employed on a Monday he is not

discontinued for the rest of the week. In the case of casual worker, there is, therefore, a contract of employment each day as also in the case of a

badli worker. A casual worker who has not been in continuous service for not less than one year as contemplated by Section 25B, cannot

complain of termination by the employer merely on the ground that on the day on which he presents himself for getting work he has not been given

work. The concept of ""retrenchment"" will apply, only therefore, in a limited number of cases where casual workers have been in continuous service

for a period of not less than one year and the employer has positively told them that there is no work for them and hereafter they will not be given

work. It is extremely doubtful even in such a case if there is no work available for a few days or a week, that will amount to ""retrenchment."" Taking

any contrary view will mean that a casual worker who has been in service for not less than one year will automatically be entitled to work and

consequently wages, and will be treated as a person who has a right to get work as in the case of a permanent worker. Such a result does not

seem to be contemplated, because even u/s 25C though a possibility of lay-off in the case of casual workmen is contemplated, Section 25C does

not require a lay-off compensation being given even though a casual workman has been in continuous service for a period of not less than one year.

Reading the definition of ""retrenchment"" in Section 2(oo) with the provisions of Section 25-B and in the light of the provisions of Section 25C,

which is silent about the right to get lay-off compensation by casual workman, it appears to us that-there must be indisputable evidence of the fact

that casual workers who have put in continuous service of not less than one year have been unequivocally told that they will never be given any

work. Not being given work for a short period and the consequent breaks especially in the case of casual workman is unavoidable and it will not

necessarily lead to an inference of termination of employment as contemplated by the definition of ""retrenchment"" in Section 2(oo) of the Act. With

respect, both the Tribunal and the learned Single Judge seem to have lost sight of this legal aspect of the case.

Undoubtedly in Sundaramony case (vide supra), the Supreme Court while giving a breakdown of the definition in Section 2(oo) of the Act has

observed in Para. 9, at page 2, that :

..... Termination embraces not merely the act of termination by the employer, but the fact of termination, however produced .....

This observation cannot be read de hors the observations made in the earlier paragraphs and it has to be remembered that the Supreme Court was

dealing with a case in which the order of appointment itself specified the period of appointment and the date when the appointment was to

automatically cease. The order of appointment was as follows in Para. 5, at page 7 :

(1) The appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefore at the

bank''s discretion; and

(2) The employment, unless terminated earlier, will automatically cease at the expiry of the period, i.e., 18 November, 1972.

The Supreme Court was, therefore, dealing with a composite order of appointment as well as of termination. In that context, the Supreme Court

observed as follows in para 9, at page 9 :

A break-down of Section 2(oo) unmistakably expands the semantics of retrenchment. ''Termination ...... for any reason whatsoever'' are the key

words. Whatever the reason, every termination spells retrenchment. So the sole question is has the employee''s service been terminated ? Verbal

apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of

the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not

merely the act of termination by the employer, but the fact of termination however, produced ......

Later, the Supreme Court has observed as follows in Para 11, at page 9 :

..... Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite

order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision.

A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the

articulated conscience of the provision ....

In our view, even these observations cannot be read as laying down that in no case there can be termination by the employer which cannot be

called ""retrenchment"". The definition of ""retrenchment"" itself contemplates that there has to be a termination by the employer and it is true that the

definition made wide by introducing the words ""for any reason whatsoever,"" but even then the fact remains that wherever it is claimed that there is a

retrenchment, it must necessarily be established that there is a termination by the employer. The several authorities cited before us do not seem to

take any contrary view. They are mere illustrations highlighting the scope of the wide wording of the clause ""for any reason whatsoever."" In Delhi

Cloth and General Mills Company, Ltd. vs. Shambhu Nath Mukherji 1978 - I - LLJ - 1 the striking off the name of the workman from the rolls by

the management was considered as termination of his service. Rober D''Souza (L) vs. Executive Engineer, Southern Railway 1982-I-LLJ-330 was

also a case where the workman was intimated that his services were deemed to have been terminated from the date on which he was said to have

absented himself from duty and he was also intimated that since he was no longer on the rolls of the office he should vacate the quarters allotted to

him immediately. Hindustan Steel, Ltd. v. State of Orissa 1977-I-LLJ-1 was a case where the question was whether the respondents whose

services were terminated were actually retrenched or their services came to an end by efflux of time and it was held that termination of services by

efflux of time in terms of an agreement between the parties would amount to retrenchment. The case in Express Newspapers Ltd. Vs. Michael

Mark and Others 1962-II-LLJ-220 was also a case where it was found that there was termination of employment by the employer because of the

removal of the names of the workmen from the muster-rolls. Lad (G. L.) Vs. Chemical and Fibres of India, Ltd. 1979-I-LLJ-257 was a case

where the management treated the absence of the workman during strike as abandonment from service and struck the names of workers off the

muster-rolls. The question which was decided on facts was that the absence of the workers from duty because of their peaceful strike to enforce

their demands did not amount to abandonment. As we have already pointed out, since it is not the case of the company that the employees have

abandoned from service, this decision is of no relevance. Municipal Corporation of Delhi Vs. Rasal Singh 1976-II-LLJ-96 is not relevant for the

purpose of the argument of retrenchment. That was a case u/s 33 of the Act, where a break of service given to employees of the municipal

corporation was challenged as being given with an oblique motive, and the explanation of the corporation that the break had to be given because of

the budgetary provisions was rejected.

Sri Narayanswami has invited our attention to the decision of the Supreme Court in Buckingham and Camatic Company Ltd. Vs. Venkatayya

1963-II-LLJ-638 In that decision the Supreme Court was considering the effect of a Standing Order which provided, inter alia as follows :

any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the company''s service ......

terminating his contract of service ......

The Supreme Court held that under the first part of this Standing Order an employee remaining absent for eight consecutive working days without

leave shall be deemed to have terminated his contract of service and thus relinquished or abandoned his employment. This decision was cited to

show that the contract of service can in a given case stand terminated automatically and such termination would not be covered by the definition of

retrenchment."" In so far as the present case is concerned, we are not called upon to decide whether such termination will amount to retrenchment.

Sri Narayanswami also referred us to the decision of the Karnataka High Court in Binny Ltd. Vs. Labour Court, Bangalore 1986-I-LLJ-237. The

Standing Order which the learned Judge was considering in that case was the one similar to that considered in the decision in Buckingham and

Camatic Company, Ltd. Vs. Venkatayya (vide supra). The learned Judge held that in order that termination of service amounts to retrenchment,

the termination of service must be by the employer because the definition of ""retrenchment"" says so. He also held that the ratio of Buckingham and

Camatic Company, Ltd. Vs. Venkatayya (vide supra), was that a termination of the service by a workman brought about consequent on an

inference flowing from the absence without leave of the concerned workman for specified number of days, flowing from a statutory provision

regulating the conditions of service, was not termination of service by the employer. This also was the ratio, according to the learned Judge, of the

decision of the Supreme Court in National Engineering Industries Ltd. Vs. Its Workmen, case and that from this it followed that such termination

was no ""retrenchment"" as defined in Section 2(oo) of the Act. As we have already observed, it is not necessary for us to decide whether such

automatic termination will also amount to retrenchment.

The whole claim of the union in respect of the large number of employees who were alleged to have been terminated on 16 October, 1980, is

based on non-compliance with the provisions of Section 25-F of the Act. It becomes necessary, therefore, in the light of what we have said earlier,

to decide whether it is proved that the company had terminated the employment of the casual workers. It is necessary to point out that we are

dealing with a claim that the services of the casual employees have been terminated illegally. The Standing Orders of the company make a clear

distinction between a ""permanent employee"" and a ""casual employee"" A ""permanent employee"" has been defined in the Standing Orders as :

One who has been engaged on a permanent basis in a permanent post and whose appointment has been confirmed in writing by the manager and

includes an employee who has completed his probationary period and is thereafter approved and confirmed by the manager in writing to be a

permanent employee.

A ""casual employee"" is defined as :

one who is employed on a daily-paid or piece work basis for work which is essentially of an occasional or casual nature, and who is not eligible

for benefit granted to any other class of employee.

These two definitions will show that unless an employee is engaged on a permanent basis in a permanent post and the appointee has been

confirmed in writing by the manager he cannot claim the status of a permanent employee. A casual employee who has been employed as such for a

long period of time does not automatically become a permanent employee. It is possible that having regard to the long period of employment of

casual employee an employee may be entitled to contend that he should be treated as an employee engaged on a permanent basis in a permanent

post. But in the absence of any order in writing as required by the Standing Orders, a casual employee cannot be given the same status of a

permanent employee merely by virtue of having actually worked for a period of more than 240 days in a period of twelve months. The mere fact

that the provisions of Section 25-F have to be complied with before an employee who has been in continues service for not less that one year as

contemplated by Section 25-B of the Act, does not necessarily mean that a casual worker who falls within the category contemplated by Section

25-F read with Section 25-B of the Act, automatically becomes a permanent employee. Though the definition of a ""workman"" in Section (2)(s) of

the Act does not make any specific distinction between a permanent, a temporary or a casual employee, such a distinction is clearly made in the

Standing Orders as well as in Section 25C of the Act. Section 25C of the Act which provides for a right to compensation in case of lay off, clearly

excludes a badli workman and a casual workman from the category of workmen who are entitled to lay-off compensation.

The provisions of Section 25C clearly contemplate that a casual workman will not be entitled to lay-off compensation. The reason appears to

us to be very simple, A casual worker has no right to demand work and consequently wages for the days on which he was entitled to work as in

the case of permanent workmen. The possibility of casual workman not being given work is implicit in the casual nature of his employment. Strictly

speaking, therefore, the concept of ""lay-off"" would be inapplicable in the case of a casual workman and it is this that has been recognised in

Section 25C of the Act where the casual workman has been excluded specifically from the category of workmen entitled to lay-off compensation.

While a badli workman who has completed one year of continuous service in the establishment has been given a right to claim lay-off

compensation by virtue of an express provision made in the explanation, it is significant to point out that a casual workman even though if he may

have completed one year of continuous service in the establishment, which is relevant for the purposes of Section 25-F, is excluded from the

benefit of Section 25C. Casual employees, apart from being a separate category under the Standing Orders even for the purposes of the Act they

cannot, therefore, be treated as if they are permanent employees.

The learned Judge has, however, dealt with the case before him on the footing that the casual employees who had put in 240 days of service

had acquired a permanent status. In Para. 25 of the judgment, the learned Judge observes :

The only way in which the services of these 131 workmen, who had put in 240 days of service and thereby acquired permanent status, can be

terminated by way of retrenchment u/s 2(oo) of the Act.

With respect to the learned Judge we may point out that the fact that a casual employee has put in 240 days of service does not automatically

entitle him to the status of a permanent employee, though it cannot be disputed that in such a case the termination as such of his employment has to

be in accordance with the provisions of Section 25-F of the Act. Therefore, the question as to whether the services of a casual employee have

been terminated and if so whether there is compliance with the provisions of Section 25-F of the Act in the case of casual employees who have put

in 240 days service, cannot be clouded by the notion that such an employee has acquired a permanent status.

We may also point out that the learned Judge has based his inference that the services of casual employees were terminated on the fact that

other casual laborers have been employed. The learned Judge also assumed that there was failure to employ workmen involved in the dispute. This

is clear from Para. 6 of the order of the learned Judge in which he observes :

The termination arises this way. Where there is failure to employ the workmen involved in the dispute and at the same time employing other casual

labourers, which, as the Tribunal has found, has been admittedly done all these years, it does amount to termination in so far as they had not bean

further employed. The very stand of the management is, the reason why further employment was denied to them is, they wanted to go on strike.

The above observations will show that the learned Judge has assumed that employment was denied to the casual employees because they wanted

to go on strike. This, in our view, is a total misapprehension of the case of the company. The case of the company throughout has been that the

casual employees never turned up for employment on 16 October, 1980, and the reason why they did not turn up, according to the company, is

that they wanted to go on strike. As a matter of fact, the consistent stand of the company throughout has been that the casual workmen who are

required to offer themselves for employment on a particular day when they want to work, did not offer themselves for employment on 16 October,

1980, or at any time thereafter. The learned Judge was in error in proceeding on the footing that the reason why further employment was denied to

the casual employees was that they wanted to go on strike. The view that taking in fresh casual employees in the place of casual workmen would

amount to termination is reiterated by the learned Judge in Para. 21 of the judgment where the learned Judge says :

However, I should hold that putting an end to the services of the workmen involved in the dispute, but at the same time taking in fresh casual

labourers, would tantamount to termination. That is why the dispute was always about non-confirmation, which according to the workmen, is

illegal.

It is necessary to point out that if an employee who comes to Court with a case that the termination of his services is invalid because of non-

compliance with the provision of Section 25-F of the Act, it is necessary for him to show that the services were terminated by the conduct of the

employer and where the workman succeeds in proving the fact of termination, the circumstance that any other workman was employed would be

wholly irrelevant. The evidence of Ramalingam MWI shows that every day there are about 300 to 500 casual workmen who are given blue cards

which are issued once in a month. Therefore, if there is need for casual workmen then the fact that some other causal workmen have been

employed would not be relevant for deciding the question whether the employment of the workmen in question has been terminated and this will

have to be decided on the evidence before the Tribunal. The order of the learned Judge, however, shows that in so far as the question of

termination of employment was concerned, the learned Judge has not discussed the evidence but has mainly gone on the pleadings. One of the

reasons which vitiates the order of the learned Judge in our view, is that the learned Judge has been influenced by the fact that the company had not

spelt out the story of the workmen staying away from work from 16 October, 1980. In the course of the conciliation proceedings. The learned

Judge has in Para 19 of the order observes that the averments and allegations about slow down of work on 13 to 15 October, 1980, refusal of

work on 15 October, 1980, and staying away by workmen from 16 October, 1980, and alleged intention of the workmen to go on strike on 16

October, 1980, are nothing but a flight of fancy land a figment of imagination naively woven from the sorts time in the counter-statement and that

there was no whisper about such allegations at any time in the course of the conciliation proceedings. With respect, the learned Judge seems to

have overlooked the fact that in the course of the conciliation proceedings the only case before the Assistant Commissioner of Labour was that

there was a termination of 141 employees as and from 13 October, 1980. Not only this, as we have already pointed out that even at the stage of

reference, in the statement of claim first filed on 17 June, 1981, the case was of termination on 13 October, 1980, with regard to which the union

has raised a dispute on 15 October, 1980. It was for the first time in the affidavit, dated 25 November, 1981, that a case of casual workmen not

being permitted to work from 16 October, 1980, was made out. In the conciliation proceedings it was, therefore, enough for the company to say

that there was no termination with effect 13 October, 1980, and the company had clearly therefore, shown in the conciliation proceedings that the

grievance that the services of casual employees were terminated at a time prior to 15 October, 1980, was wholly incorrect. If the employees make

out a fresh case for the first almost a year after they make their first representation to the Assistant Commissioner of Labour, then it is difficult to

see how fault could be found with company when the company gave out the case of slowing down of work on 13 to 15 October and staying away

from work on 16 October, 1980. Such an approach, in our view, has clearly created an infirmity in the finding recorded by the learned Judge that

the non-employment was attributable to the company.

In so far as the Tribunal is concerned, the Tribunal has also proceeded on a misapprehension that the case of the company was that there was

abandonment of work. The Tribunal has observed that the dispute with regard to non-employment is :

Spread over in three spells, namely before 30 October, 1980 (October appears to be a mistake for September) on 13 October, 1980, and

subsequently.

The Tribunal has referred to the reply, dated 8 December, 1980, sent by the company and has observed that the company has nowhere stated

therein that the casual employees have abandoned their work. It has to be pointed out that the reply, dated 8 December, 1980 (exhibit W10 or

exhibit W9), refers to the communication from the Assistant Commissioner of Labour, dated 17 October, 1980, as well as the letter, dated 29

October, 1980. As already pointed out it now transpires that there was no termination of employment of any casual employee even according to

the union either on or before 15 October, 1980. The company had denied that there was any termination of employment. At that stage, therefore,

the only stand which the company could take was that the engagement of casual employment was done on ad hoc basis and there was no question

of termination of their services. When such a stand was taken it is difficult to see how the Tribunal could have proceeded on the footing that the

employer has not taken a stand that the casual employees have abandoned their work. The Tribunal has failed to see that the employer was called

upon to reply to a case primarily of alleged termination on 13 October and it was not necessary for the Tribunal to travel further than to meet the

case that there was no termination of employment on 13 October, 1980. The Tribunal has drawn an adverse inference against the company for

non-production of a requisition sent to the police and has assumed that the policemen were summoned by the company not to control the strike but

to control the agitation if any by the casual workers in respect of whom according to the Tribunal the company had predetermined that their

services should be terminated. Now it is difficult to see how the Tribunal could take the view that the policemen were summoned by the company

not to control the strike but to control the agitation. The fact that the policemen were present at the factory is now well established. Strike is itself a

form of agitation and the presence of the police on 16 October, 1980, was consistent with the possibility of a strike or an agitation and renders

probable the case of the company that on two previous days they had an inkling that the workmen were agitated with reference to the question of

their non-confirmation. The Tribunal again proceeded in Para. 8 of its award on the footing that there was no abandonment of employment.

Another serious infirmity in the award of the Tribunal is the sweeping observation made by the Tribunal that the non-employment of WW 4 and

WW 2 was not due to abandonment and the same thing should have happened to others also. At the end of Para. 8 of the award, the Tribunal

observes :

But the non-employment of WW 4 from 27 July, 1980 and WW 2 from 13 October, 1980 is not due to such abandonment, nor there was such

threat of strike before 15 October, 1980. It must be only due to termination of their services, as stated by them. Same thing should have happened

to others also, probably because they joined the petitioner-union to fight for the confirmation of their service in the respondent-company.

The above observations clearly amount to a speculative finding that the services of the casual employees were terminated only because they joined

the union. The Tribunal, with respect, failed to see that the number of persons who were alleged to have been terminated prior to 30 September,

1980 was 39. Some of them had not worked from various dates of June 1980 onwards. The question as to whether the non-employment of these

39 employees whose names were given in exhibit M 41 is due to a positive act of termination had to be independently established and the Tribunal

was not entitled to assume that the casual employees who were not in employment from different dates in the months of June to September 1980,

were also terminated because they had joined the union, which itself had come into being only on 1 October, 1980. These employees had to

positively show that their services were terminated at a particular point of time. That point of time would not be the day on which they last worked

because it was implicit in the nature of casual employment that there would be breaks between two dates on which they were employed. Similarly,

in respect of other employees in respect of whom the union claimed that their services were terminated, positive evidence was necessary, and that

lacuna could not be filled up by the Tribunal by making an observation that the termination must have taken place in the case of other employees

also.

It is true that a Division Bench of this Court in Workmen of Best and Crompton Industries, Ltd. Vs. Best and Crompton Engineering, Ltd.

Madras (supra) that even if two views are possible in a given case, the Writ Court will not interfere with the finding recorded by the Labour Court

and so also that if there is evidence to support the findings the High Courts will not interfere with the findings of the Tribunal in the exercise of

jurisdiction under Art. 226 of the Constitution of India. It is also true that in Sadhu Ram case 1983-II L.L.N. - 658, the Supreme Court has held

that the High Court cannot constitute itself into an Appellate Court over Tribunals constituted under special legislations. However, we have already

pointed out above that the whole approach of the Tribunal to the question as to whether thee was termination of employment or not, is initiated, as

originally the case was one of termination only on 13 October, 1980. The Tribunal has also wrongly assumed that the case of the company was

one of abandonment which, however, was not so. We have also pointed out that the positive case of the company is that on and from 16 October,

1980, which date is introduced only by the amended statement of claim, the casual workers never turned up for work at all.

We must remember that we are dealing with a case of alleged termination of employment of casual workmen. As already pointed out, in the

case of casual workmen admittedly there is possibility of a break in the employment and non-production of work for given period, it would not be

proper to draw an inference of termination on the ground that the casual workmen have been sent away by the employer telling them that there is

no work for them. One of the modes of termination of casual workers would undoubtedly be an intimation by the employer that hereafter they will

not be given work at all. If there is no such express indication by the employer, then, nothing prevents the casual workmen from turning up for

work on subsequent dates, because there is always a possibility that if there is work he would be provided with it. In the case of casual workmen,

therefore, there would have to be unimpeachable evidence which would go to show that the employer had made up his mind not to give any work

at all to the casual workmen.

We have the evidence of MW1 Ramalingam to the effect that casual workmen were given blue cards and they were issued once in a month.

He has also deposed that if a casual workman stays away or if he does not report for duty continuously for a period of two months, then the

issuing of the blue card to him will be stopped. He has also positively stated that he had not removed any of time cards relating to the 186

workmen concerned in the reference, nor had the company given him any instructions to do so. He has denied that he took away the card of WW

2 or that he called out the names of more than 100 casual workmen and said that they would not be given employment because they had joined the

union. He has positively stated that on 16 October, 1980, he did not put any substitutes for 113 casual workmen and that it was not true that 113

casual workmen concerned in the reference reported for work. In order to ascertain whether there is termination of employment of casual

workmen it must either be established that their cards have been removed or that they have been told that they would not be given work at all.

MW 2, Rajayya, has clearly stated that once casuals are taken in service they are never stopped and that no casual workmen were ever stopped

by the company.

It is now common ground that on 16 October, 1980, the company was required to post police at the factory. The learned Member of the

Tribunal has, however, drawn an adverse inference against the company for the non-production of requisition sent to the police. The Tribunal has

observed that requisition must have mentioned the purpose of calling for the police, like threat of strike or breach of peace. The Tribunal has

observed that the requisition was not procured for the obvious reason that policemen were summoned by the company not to control strike but to

control agitation if any by the casual workers who were predetermined to be terminated from service. It is difficult to appreciate this observation.

The company''s case is that the employees stayed away from work on 6 October, 1980, and if the company had anticipated any trouble it is

difficult to see how they were not entitled to ask for police protection. In any case, it is difficult to see how the presence of the police on 16

October, 1980, has any relevance to the conclusion which the Tribunal has drawn, that the police were called to control agitation by the casual

workers ""who were pre-determined to be terminated from service.

We have carefully gone through the evidence of the witnesses examined on behalf of the union.

It was stated before us by the learned counsel for the union that it was agreed before the Tribunal that witnesses would be examined with

reference to each group, that is, to prove termination of employment of those casual workers who were terminated prior to 30 September, 1980,

of those who were terminated with effect from 16 October, 1980 and those workers whose services were terminated on 13 October, 1980, This

agreement has, however, been vehemently denied by the learned counsel for the company. We also do not find anything in the records of the

Tribunal or in the order of the Tribunal from which it could be assumed that only three witness could be examined in respect of each group referred

to above. We have already indicated earlier that the reference made by the State Government related to individual non-employment of each of the

181 workers, and unless such termination was positively proved an omnibus order or reinstatement could not have been passed by the Tribunal.

We shall refer, at the outset, to the evidence of WW 5 Lingeswaran, who claims to prove that the services of workmen who had not worked

after 30 September 1980 were terminated by the company. Exhibit M 41 contains a list of 39 workmen who have not worked with the Company

from various dates and as a matter of fact in case of Jayagopal at serial (36), he had not worked since the year 1979. All that WW4, Lingeswaran,

states is that he was last employed on 28 July 1980, and when he went to report for work as a casual workmen, his card was not available. When

the approached the time office, he was told that there was a break in service. According to him, on 28 July 1980, a break in service was declared

for him and four other casual workmen. He states that he again approached the time office and was informed that the break in service continued,

and this was for about four weeks. However, when he approached the company again is not specified. Then, he makes a bald statement :

Finally, the time office informed me that I need not again go to report for duty and that there will be communication from the company and

thereafter I can come for work.

Subsequently, he says, he did not receive any communication. He merely states that there were 30 or 40 workmen and that they had also

similar broken service because of the attitude of the company between July and October 1980. Now, even if this evidence in examination in chief

is accepted as wholly correct, we fail to see how any case of termination of his employment can be said to be proved. His bald statement that 30

or 40 casual workmen had broken service between July and October 1980 hardly proves the act of termination of employment. It was stated

before us by the learned counsel for the union that WW 4, Lingeswaran, was examined to prove the termination of the employment of 39

workmen referred to in exhibit M 41. In so far as the workman himself is concerned, he admitted that usually the company used to give break of

service earlier also. When pressed for details as to the names of the other casual workmen for whom there was break of service given on 28th July

1980, he gives only two names Thajuddin and Antony. With regard to two others, he says he does not remember their names. In the list exhibit M

41, we have not been able to find to which persons MW 4 was referring. It contains the names of employees whose last day of employment was

28 July 1980, but Thajudin and Antony do not seem to figure in that list. The evidence of Ramalingam MW 1 shows that night shift commences at

5.30 p.m. and the workmen are allowed to enter by 5 p.m. He states that on 28th July 1980, he came out from the factory only at 4.46 p.m. Then,

he says on the basis of exhibit M 38, which is the time card relating to him for July and August 1980. He denied that WW 4, Lingeswaran, ever

met him in the factory. Ramalingam was, therefore, working during the day shift and admittedly WW 4 was working in the night shift on 28th July

1980. WW 4 does not even give the time when he went to report for duty or saw MW 1. Lingeswaran. A bald statement that the management

told him that break of service continued and that the time office informed him that he need not go for duty again becomes wholly unacceptable

because the correctness of this statement could be tested only when he gives the name of the person who asked him not to report for duty. It is

obvious, therefore, that what might really be break in work is now sought to be styled as ""termination"".

It also appears to us that if serial (134) in the annexure to the reference is WW 4 as admitted by him, then, the document exhibit W 34 filed by

the union itself shows that his ""date/period of termination"" is entered in the list as June 1980, for which there is no explanation. Lingeswaran is the

fifth name in exhibit W 34, and reference to serial number is given as 134. Lingeswaran''s evidence is, therefore, of no assistance to prove that

there was termination of 39 employees prior to 30 September 1980.

Even the evidence of WW 3, Samraj, is so vague that even on the statements made in the examination in chief itself his evidence can hardly be

accepted as proving termination of any of the 181 workmen. In his extremely brief examination in chief, he merely stated that on 16 October 1980,

casual workmen including himself were not allowed to enter the factory and so the company denied employment. According to him, those casual

workmen like him may be over 100. Now, with respect, both the Tribunal and the learned Single Judge failed to realise that a claim of

reinstatement cannot be allowed on such a vague evidence. The workman could at least have identified who these 100 workmen are and it is

almost impossible for a person to remember the names of 100 persons who, at a given point of time were present when according to him he and

they were denied employment. It is surprising that in the cross-examination he admits that only 30 casual workmen including him were working in

his section. He undoubtedly says that on 16 October 1980, the company did not allow any other casual workmen to work in any other section of

the factory. This obviously is incorrect because the number of casual workers who worked in October 1980 was 326, as would be clear from the

series of time-cards of casual workmen who were engaged from September 1980, exhibit M 39, and exhibit M 40 which is a statement showing

the number of cards in exhibit M 39 for the months of September to December 1980 and January 1981. There is also exhibit M 47 which says

that such of the workers who did not come on 16 October 1980, were subsequently engaged for employment. It was only in cross-examination

that witness Samraj brought out a story that the company''s security guard read out a list of casual workers who were not to be allowed in the

factory on that day. This story has made its appearance for the first time in cross-examination. There is no reference to it in the claim statement at

all. It is not the case of Samraj that after 16 October 1980, he reported for duty and was refused work. His vague evidence putting the figure at

100 and story that the security guard read out the list without even mentioning his name can hardly prove termination of employment.

Laskhminarayanan, WW 2, has been examined to prove termination of employment of workmen on 13 October 1980. His case is that the

company did not employ him from 13 October 1980, and that similarly four other employees were also not given work. He reported the matter to

the general secretary of the union and then a meeting was called. This witness is the unit secretary of the union and according to him he last worked

in the company on 11 October 1980. He stated that when he went to collect his card, it was not available, and then he approached Ramalingam

who informed him to go and meet the personnel officer of the company. The personnel officer, Rajayya, who is MW 2, told him : ""You have no

work; you can go."" It was suggested to him that he did not report for work at all on 13 October 1980, and that he did not meet either Ramalingam

or Rajayya apart from the fact both Rajayya and Ramalingam denied that Laskhminarayanan ever met them, it is difficult to see how refusal to give

work only on 13 October 1980, could turn out to be ""termination of employment"" As already pointed out, these are casual workmen and the

witness himself admits that on days on which he was not called for work he was not paid wages. This entire evidence has to be considered in the

background of the fact that the union came out with one case at the stage of the statement of claim made before the Assistant Commissioner of

Labour and wholly different case at the stage of evidence; and the secretary of the union, WW 1 Srinivasan, goes to the extent of deposing that in

exhibit W 4 the date 13 October 1980 is a mistake for 16 October 1980, little realising that exhibit W 4 itself is dated 15 October 1980. The

whole evidence, read in the light of exhibits W 2, W 5'', gives us a clear impression that even while casual employees were on work on 13 to 15

October 1980, a false case of termination of 141 employees on 13 October 1980, was sought to be bolstered up by the union. The evidence of

WW 1 is much too eloquent to show how a false case of termination was sought to be put on 14 October 1980 itself, though, at that stage, a twist

was given that non-confirmation amounts to termination. The story of 141 workmen being terminated on 16 October 1980 is inconsistent with the

statement sent to the Assistant Commissioner of Labour on 15 October 1980, where already a case of 141 workmen being non-employed and

non-confirmed has been given out. The evidence of the general secretary of the union makes a poor reading when he states that on 15 October

1980, 141 workmen were non-employed. He admits that on 14 October 1980, the union had no idea of the exact number of non-employment of

the workers. Then he states that as per exhibit W 34, the number of non-employed workmen by 14 October 1980 was 51. As a matter of fact, he

later on admits that on the date of exhibit W 5, i.e., 15 October 1980, he had no idea of the exact workmen who comprise the figure of 113

referred to in exhibit W 5. He admits that the industrial dispute was raised by the union only on the basis of the dates furnished in exhibits W 3 and

W 4. Exhibit W 3 refers to non-employment and non-confirmation on 14 October 1980. Exhibit W 4, which is itself, dated 14 October 1980,

refers to non-employment of 141 people as and from 13 October 1980.

This whole litigation gives us an impression that though there may be a legitimate grievance of non-confirmation of casual workers who have

put in long terms of employment, the union seems to be wholly responsible for the situation in which the casual workers in dispute have found

themselves in. A blatantly false case of non-employment and termination of 141 persons was put up. It was only at later stages, that the union

found that such a case cannot be successfully proved, and, indeed was false to the knowledge of the union and a case of termination on 16

October 1980, was sought to be introduced by amending only a part of the claim statement. As a result of this amendment, an inconsistency crept

in the claim statement itself. It is rather unfortunate that the Tribunal, by a very superficial approach, merely accepted the evidence that 131 persons

were terminated when the evidence, as indicated above, not only runs counter to the initial statement, but is wholly insufficient and inadequate to

prove that there was termination on the part of the company. Merely telling a casual worker that there is no work is consistent with the status of

casual workers, and the compelling circumstance of the removal of the cards or a positive statement that no work would be given at all to the

casual workers, is lacking in the instant case. In our view, the award of the Tribunal is clearly vitiated because the Tribunal has not even considered

the inconsistency in the stand taken by the union and the evidence has not been considered at all by the Tribunal. We are, therefore, constrained in

this case to take the view that it is not proved that the company terminated the employment of any of the employees who were casual workers, and

the finding to the contra recorded by the Tribunal and confirmed by the learned Single Judge must be set aside.

Learned counsel appearing on behalf of the company made it clear to us that if the Court was inclined to take the view that the employer had

not terminated the employment of the casual workers, then, it would not be necessary for us to deal with his second contention that the reference

itself is in-competent, because, according to him, the resolution, dated 14 October 1980, when there was in fact no termination of a large number

of casual workers as alleged, could not give any status or authority to the union to raise the dispute. However, having regard to the finding

recorded by us, it is not necessary for us to deal with validly of the reference on the ground that there is no proper authority for the union to raise

the dispute. We need not therefore, refer to the several authorities cited before us by both sides on this aspect.

Now, so far as the appeal filed by the union is concerned, challenging the order of the learned Single setting aside the award directing

reinstatement of 50 workmen who had put in 240 days of service, it is unnecessary for us to deal with it separately, because, we have found that

termination of employment has not been proved by the union at all. We may however, point out that the learned counsel for the union has placed

reliance on the provisions of Section 25H of the Act. u/s 25H of the Act, it is provided that.

Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be

prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched

workmen who offer themselves for re-employment shall have preference over other persons.

We have already taken the view that there is no action on the part of the employer which can be considered as ""retrenchment"". Consequently,

there is no question, in the instant case of the casual workers making any claim u/s 25H.

The result of the discussion made earlier is that the Writ Appeal No. 1235 of 1983, filed by the company is allowed and the order of the

learned Single Judge directing reinstatement of 131 employees as well as the award of the Tribunal holding that there was termination of the

employees in question are set aside. The appeal filed by the union being Writ Appeal No. 72 of 1984, is dismissed. We, however, make no order

as to costs in these appeals. Oral application for leave to appeal to the Supreme Court rejected.