Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2565 OF 2006

State of Maharashtra & Anr. …

Appellants

Versus

Sarva Shramik Sangh, Sangli & Ors. …

Respondents

WITH

CIVIL APPEAL NO.2566 OF 2006

Sarva Shramik Sangh, Sangli …

Appellant

Versus

State of Maharashtra & Ors. …

Respondents

J U D G E M E N T

H.L. Gokhale J.

Page 2 Civil Appeal No.2565 of 2006 seeks to challenge

the judgment and order dated 12.9.2005 passed by a

Division Bench of the Bombay High Court in Letter Patents

Appeal No.184 of 2005, as well as the judgment and order

dated 14.9.2004 passed by a Single Judge of that High Court

in Writ Petition No.2699 of 1993, wherefrom the said Letters

Patent Appeal arose. The said Writ Petition had been filed by

the respondents to challenge the award dated 21.5.1992

rendered by the Labour Court, Sangli, in a group Reference

under the Industrial Disputes Act, 1947 (I.D. Act, for short).

The learned Single Judge had allowed the said Writ Petition,

by the above referred order, and the Division Bench had left

the said decision undisturbed.

2. The State of Maharashtra through Secretary

Irrigation Department, and Executive Engineer Irrigation

Department, Sangli, are the appellants herein, whereas Sarva

Shramik Sangh, Sangli, a Trade Union representing the

workmen concerned, and two of the workmen in the

concerned Industrial Establishment are the respondents to

this appeal.

2

Page 3 Facts leading to this appeal are this wise:-

3. The Government of Maharashtra established a

corporation named as the Irrigation Development Corporation

of Maharashtra Limited, sometimes in December 1973. This

Corporation was a Government of Maharashtra undertaking.

It set up 25 lift irrigation schemes to provide free services to

farmers. The corporation was established in the aftermath of

a terrible drought which afflicted the State in the year 1972.

Some 256 workmen were employed to work on the irrigation

schemes of the said Corporation. Though it was claimed that

the workmen were casual and temporary, the fact remains

that many of them had put in about 10 years of service when

they were served with notices of termination by the appellant

No.2 on 15.5.1985. The notice sought to terminate their

services w.e.f. 30.6.1985, and offered them 15 days

compensation for every completed year of service. The

retrenchment was being effected because according to the

appellants the lift irrigation schemes, on which these

workmen were working, were being transferred to a sugar

3

Page 4 factory viz. Vasantdada Shetkari Sahakari Sakhar Karkhana,

Sangli.

4. It is not disputed that some of the workmen

accepted the retrenchment compensation, though a large

number of them did not. Some 163 out of them filed Writ

Petition bearing No.2376 of 1985, through the first

respondent Trade Union, against the above referred

Corporation and the appellants, seeking to restrain the

transfer of the undertaking. The petition was dismissed by

the Bombay High Court and hence, a Special Leave Petition

was preferred to this Court being SLP No.1386 of 1986. The

appellants defended the said petition by pointing out that the

workmen concerned were not employees of the Corporation,

but were employees of the State. This Court, therefore,

dismissed the said SLP by its order dated 11.11.1986 by

observing as follows:-

“Having regard to the statement in the

counter affidavit of the Executive engineer,

the State of Maharashtra, that the Petitioners

were employees of the State and not the

Corporation, we do not see how the reliefs

sought against the Corporation can be

granted in this petition. If the Petitioners

desire to seek any reliefs against the State

4

Page 5 Government and if such relief is permissible,

the Petitioners are at liberty to seek

appropriate legal remedy in the matter. The

SLP is, therefore, disposed of accordingly.”

5. This led the workmen to seek Reference of the

Industrial Dispute under the I.D. Act. These References were

numbered as Ref. I.D. Nos.27 to 40, 42 to 70, 72 to 99/97,

1/88 to 35, 54, 63, 65, 72 to 92, 106 to 118/88, 17 to 29/89,

37, 38, 40 to 44/89 covering 163 applicants.

6. In these References, it was contended on behalf of

the workmen that their retrenchment was illegal, inasmuch

as the requirement of the adequate statutory notice as

required under the I.D. Act, was not complied with. On the

face of it, there was a shortfall of a few days in giving the

notice. The learned Labour Court Judge noted that the

notices were issued on 25.6.1985, and the services were

terminated w.e.f. 30.6.1985. The workmen contended that

the lift irrigation schemes wherein they were working, were in

fact Industrial Establishments, and that inasmuch as more

than 100 workmen were employed therein, the provision of

Section 25N of the I.D. Act (which requires three months’

5

Page 6 advance notice prior to termination) was applicable, but had

not been complied with. The learned Judge of the Labour

Court did not deal with that submission, but held that in any

case there was a violation of Section 25F of the I.D. Act,

inasmuch as not even one month’s notice had been given

and hence the termination was illegal.

7. In the Written Statement filed by the appellant

No.2 before the Labour Court, it was stated in paragraph 3,

that various schemes were carried out by the State

Government at its own expense. In paragraph 4 it was

contended that the workmen concerned were the employees

of the Irrigation Department. In paragraph 14 thereof, it was

stated that “the termination is not by way of victimization

but as the irrigation scheme has been transferred to Shetkari

Sahakari Sakhar Karkhana, Sangli, the employees are not

entitled to retain in the services without any work.”

8. In the written statement there was no specific

reference to Section 25FF of the I.D. Act which deals with the

transfer of undertakings. There was no reference to the said

section in the judgment of the learned Judge either. We may

6

Page 7 however note that the learned Judge has noted this

submission of the appellants in paragraph 8 of her order in

the following words:-

“8.…..However, in the present case, it is

clear that all those schemes where the

Second Party workmen were working were

sold by the State Government to the

Vasantdada Shetkari Sahakari Sakhar

Karkhana Ltd., Sangli and on said reason

their services were terminated. As such, it is

clear that those schemes are transferred to

the Sugar Industry. Hence, there is no

control of the First Party employer on those

schemes…….”

9.The learned Judge, however, noted that workmen

concerned were employed on a temporary basis. Having

noted that, the learned Judge relied upon a judgment of

Karnataka High Court between Workmen of Karnataka

Agro Protines Ltd. v. Karnataka Agro Proteins Ltd.

and Ors. reported in 1992 LLJ page 712, on the

application of Section 25F and 25FF, and held that the only

claim that the workmen could make was for compensation.

The Karnataka High Court had referred to and followed the

law laid down in Anakapalle Co-operative Agricultural

and Industrial Society Ltd. v. Workmen and Ors.

7

Page 8 reported in AIR 1963 SC 1489, and also the subsequent

judgment of this court in Central Inland Water

Corporation Ltd. v. The Workmen and another reported

in (1974) 4 SCC 696 to the same effect. The Labour Court,

therefore, directed that there would not be any

reinstatement, but the workmen will be given the

compensation in accordance with Section 25F of the I.D. Act.

The Award of the Labour Court reads as follows:-

“Award:

I)The claim is partly allowed.

II)All the employees are entitled to receive

the retrenchment compensation under

Section 25F of Industrial Disputes Act,

1947 after calculating their service

period with the First Party. The

remaining claim stands rejected.

III)However, the First Party is hereby

directed to give preference to all those

employees whenever some additional

work to new project are started or work

is available.

IV)It is informed that some employees

have died. In respect of such

employees their legal heirs are entitled

to receive the compensation amount.

V)The award be implemented within in a

month from the date of publication of

this Award.

VI)No order as to costs.”

8

Page 9 10. Being aggrieved by that judgment and order, the

respondents filed Writ Petition bearing No.2699 of 1993

before a Single Judge of the Bombay High Court invoking

Article 227 of the Constitution of India. The learned Single

Judge who heard the matter took the view that the process of

pumping water wherein the workmen were employed,

amounted to a ‘manufacturing process’ under Section 2(k) of

the Factories Act, 1948, and therefore, the lift irrigation

schemes were in the nature of a ‘factory’ as defined under

Section 2(m) of the said Act, and hence, an ‘ Industrial

Establishment’ to which the I.D. Act applied.

11. The learned Single Judge then held that since

according to the State Government, the workmen were

employed by the Irrigation Department, the plea that their

services were required to be terminated on account of the

transfer of the undertaking could not be accepted. This was

on the footing since the other activities of the Irrigation

Department continued even after the transfer of the lift

irrigation schemes, the workmen concerned could certainly

be absorbed into other activities of the irrigation department.

9

Page 10 12. The learned Single Judge observed that the plea

invoking Section 25FF could not be permitted to be raised in

the High Court, inasmuch as transfer was a mixed question of

facts and law. According to the learned Judge, it was a case

of breach of Section 25N, and not merely 25F of the I.D. Act.

Section 25N lays down the conditions precedent to

retrenchment of workmen from Industrial Establishments

wherein more than 100 workmen are employed, and sub-

section (1)(a) thereof provides for three months’ notice or

pay in lieu thereof in the event of retrenchment. The learned

Judge, therefore, set-aside the award, since three months’

advance notice or pay was not given, and held that the

workmen were entitled to reinstatement with continuity of

service. The learned Judge awarded 25% backwages to the

workmen. The operative part of the order of the learned

Judge as contained in paragraphs 11 to 14 of the judgment

reads as follows:-

“11. The award dated 21

st

May 1992

passed by the Labour Court, Sangli is set

aside. The workmen concerned in the

References are entitled to reinstatement with

continuity of service and 25% backwages. All

workmen who are interested in employment

1

Page 11 must report for duty within two months from

the date of this order. The Respondents will

give them employment by reinstating them

with continuity of service within a month

thereafter. Backwages shall be paid to the

workmen, computed at 25% within three

months of their reinstatement in service.

12.There are some workmen who

have been absorbed in other departments of

the State Government or have secured

employment elsewhere. These workmen

shall be paid 25% backwages till the date

they secured employment within six months

from today.

13.A few workmen have already

reached the age of superannuation during

the pendency of these proceedings. They

shall be paid the backwages computed at

25% till the date they attained the age of

superannuation within three months from

today.

14.I am informed that some workmen

have expired during the pendency of the

proceedings in court. The Respondents shall

pay to the heirs of these workmen 25% of

back wages upto the date of death of these

workmen within three months from today.”

13. It is this order which was challenged in the Letters

Patent Appeal. The Division Bench, however, took the view

that a Letters Patent Appeal was not available against an

order passed on the Wirt Petition filed under Article 227 of

the Constitution of India, and therefore dismissed the said

Letters Patent Appeal. Being aggrieved by this order of the

1

Page 12 Division Bench as well as of the learned Single Judge, this

appeal has been filed. Leave was granted in this matter on

8.5.2006, and the operation of the impugned order was

stayed subject to the compliance of the provisions of Section

17B of the I.D. Act, 1947. The appeal has been pending since

then, and a number of I.As have been filed by both parties.

When the appeal reached for final hearing, Ms. Madhavi

Diwan, learned counsel appeared for the appellants, and Mr.

Vinay Navare, learned counsel appeared for the respondents.

Submissions on behalf of the appellants:-

14. The principal submission of Ms. Madhavi Diwan,

learned counsel for the appellants is that this is a case of

transfer of an undertaking. That was the very plea taken in

paragraph 14 of the written statement as noted above, and

also reflected in the judgment of the Labour Court. The

learned Single Judge had clearly erred in ignoring this fact.

Ms. Diwan submitted that in fact it was also the case of the

respondents themselves that retrenchment of their services

took place because of the transfer of the undertaking. She

submits that the lift irrigation schemes constituted an

1

Page 13 undertaking, and the ownership of the management of the

undertaking was being transferred, and it was not relevant

that the ownership of the Irrigation Department Corporation

was not being transferred. Therefore, in her submission it is

the Section 25FF which applies to the present case, and

neither Section 25N nor Section 25F. Besides, Section 25F

would apply only as a measure of compensation that is to be

provided for, and nothing more as laid down by a Constitution

Bench of this Court in Anakapalle Society’s case (supra).

In that matter this Court has observed in paragraph 16 as

follows:-

“16. The Solicitor-General contends that

the question in the present appeal has now to

be determined not in the light of general

principles of industrial adjudication, but by

reference to the specific provisions of

s. 25FF itself. He argues, and we think rightly,

that the first part of the section postulates that

on a transfer of the ownership or management

of an undertaking, the employment of workmen

engaged by the said undertaking comes to an

end, and it provides for the payment of

compensation to the said employees because of

the said termination of their services, provided,

of course, they satisfied the test of the length of

service prescribed by the section. The said part

further provides the manner in which and the

extent to which the said compensation has to

be paid. Workmen shall be entitled to notice

1

Page 14 and compensation in accordance with the

provisions of s. 25-F, says the section, as if they

had been retrenched. The last clause clearly

brings out the fact that the termination of the

services of the employees does not in law

amount to retrenchment and that is consistent

with the decision of this Court in Hariprasad's

case [1957]1SCR121 : AIR 1957 SC 121. The

Legislature, however, wanted to provide that

though such termination may not be

retrenchment technically so-called, as decided

by this Court, nevertheless the employees in

question whose services are terminated by the

transfer of the undertaking should be entitled to

compensation, and so, s. 25-FF provides that on

such termination compensation would be paid

to them as if the said termination was

retrenchment. The words "as if" bring out the

legal distinction between retrenchment defined

by s. 2(oo) as it was interpreted by this Court

and termination of services consequent upon

transfer with which it deals. In other words, the

section provides that though termination of

services on transfer may not be retrenchment,

the workmen concerned are entitled to

compensation as if the said termination was

retrenchment. This provision has been made for

the purpose of calculating the amount of

compensation payable to such workmen; rather

than provide for the measure of compensation

over again, s. 25FF makes a reference to s. 25-

F for that limited purpose, and, therefore, in all

cases to which s. 25FF applies, the only claim

which the employees of the transferred concern

can legitimately make is a claim for

compensation against their employers. No

claim can be made against the transferee of the

said concern.”

1

Page 15 This judgment in Anakapalle (supra) has been consistently

followed thereafter, including in a recent judgment of this

Court in Maruti Udyog Ltd. v. Ram Lal and Ors. reported

in 2005 (2) SCC 638.

Reply on behalf of the respondents:-

15. As far as the respondents are concerned, they

have principally contended that Section 25FF has no

application to the present case, and the learned Single Judge

of the High Court has rightly held that this is a case which is

covered under Section 25N. It is submitted that in view of

Section 25N(1)(a), the workmen had to be given three

months’ prior notice or notice pay. That having not been

done, and the prior permission under 25N(1)(b) of the

appropriate government not having been sought, the

retrenchment will have to held illegal under sub-Section (7) of

25N. The learned Judge of the Labour Court had in any case

held that it was a case of breach of Section 25F, and the High

Court had held that it was a case of breach of Section 25N.

Either of those findings justified the reinstatement with full

backwages. Reliance was placed in this behalf on the

1

Page 16 judgment of this Court in Anoop Sharma v. Executive

Engineer, Public Health Division No.1, Panipat

(Haryana) reported in 2010 (5) SCC 497.

16. However, more than that, the respondents have

pointed out that another set of 10 workmen (Pandurang

Vishnu Sandage and 9 others) working on the same lift

irrigation schemes had subsequently filed separate

References in the Labour Court bearing Ref. (I.D.A.) No.37 to

45 of 1991 and 1 of 1992, and the Labour Court gave an

award on 30.12.1996, that those 10 workmen were entitled

to reinstatement with 25% backwages. That judgment was

challenged by the State of Maharashtra by filing Writ Petition

No.2729 of 1997. The said Writ Petition was dismissed by a

Single Judge of Bombay High Court, relying upon the decision

in Writ Petition No.2699 of 1993 in the present matter. An

appeal was filed by the appellants by preferring SLP (C)

No.773 of 2006. This Hon’ble Court dismissed the said SLP

on the ground of delay. A Review Petition (Civil) bearing

No.379 of 2006 was filed. That was dismissed by the order

passed on 26.9.2006. Thereafter a Curative Petition No.164

1

Page 17 of 2007 was filed. That also came to be dismissed on

21.2.2008. It was, therefore, submitted that the appellants

are bound by the decision in the aforesaid case of 10

workmen, and in any case this Court should not allow the

present appeal as it will lead to a different result in the case

of workmen who are similarly situated. The respondents

relied upon an order of this Court in the case of Warlu v.

Gangotribai and Anr. reported in 1995 (Supp) 1 SCC 37 .

It was a matter relating to the tenancy rights of the

appellant, concerning the land spread over three survey

numbers, which belonged to the Respondent no.1. Three writ

petitions arising out of the revenue proceedings filed by him

were dismissed by the High Court. Two SLPs therefrom were

found to be time barred and therefore dismissed. As far as

the third SLP is concerned, this Court declined to entertain

the same for the sole reason that any such interference will

result in making conflicting orders regarding tenancy rights in

the same land. It was therefore, submitted by Mr. Navare,

the learned counsel for the respondent that the appellants

should suffer by the principle of estoppel by record.

1

Page 18 17. In support of the contention that the orders passed

by this Court in the case of the other 10 workmen should be

followed in the present case, reliance was placed on

paragraph 21 of a judgment in the case of Nirmal Jeet

Singh Hoon v. Irtiza Hussain and Ors. reported in 2010

(14) SCC 564 . The judgment impugned in that matter

directing eviction of tenant had already been upheld in an

earlier SLP, wherein the Petitioner was also a party.

Entertaining the second petition, on his behalf, would have

amounted to reviewing the earlier order of this Court. This

Court dismissed the petition by observing “The law does not

permit two contradictory and inconsistent orders in the same

case in respect of the same subject matter”. It was therefore

submitted that the order of the Labour Court in the case of

the other 10 workmen had attained finality, and the

appellants cannot be permitted to take a different position in

the present matter when the workmen in both the matters

were similarly situated.

18. The appellants had submitted that the Irrigation

Department is not an industry. In that behalf, it was pointed

1

Page 19 out on behalf of the workmen that it is too late to raise this

submission in view of the judgment of this Court in

Bangalore Water Supply and Sewerage Board v. A.

Rajappa & Ors. reported in 1978 (2) SCC 213. As against

that, the counsel for the appellants pointed out that the

judgment in Bangalore Water Supply (supra) is pending

for re-consideration before a larger bench of this Court in

view of the order passed by the Constitution Bench in State

of U.P. v. Jai Bir Singh reported in 2005 (5) SCC 1. The

respondents, however, submitted that in the meanwhile the

judgment in Bangalore Water Supply (supra) will have to

be followed until it is overruled, since the proposition therein

continues to hold good. Reliance is placed in that behalf, on

the approach adopted by this Court in such a situation, in a

matter concerning Arbitration in State of Orissa v. Dandasi

Sahu reported in 1988 (4) SCC 12 . In that matter this

Court has held that in the exercise of this Court’s discretion

under Article 136, it would not be justified to allow a party to

further prolong or upset adjudication of old and stale disputes

till the decision of the larger bench is received.

1

Page 20 Consideration of the rival submissions:-

19. (i) To begin with, we must note that the

workmen concerned were engaged as pump operators and

chowkidars etc. on 25 lift irrigation schemes, which were

carrying out the process of pumping water. The process of

pumping water is specifically covered under the definition of

“manufacturing process” under Section 2 (k)(ii) of The

Factories Act, 1948. Thus, the workmen concerned were

engaged in a “manufacturing process”. Once that is

established, it follows that the activity of the undertaking in

which they were working, constituted a “factory” within the

meaning of Section 2(m) of the said Act.

(ii) The explanation (i) to Section 25A of I.D. Act, 1947,

covers the “factories” within the definition of an “industrial

establishment”, and therefore Chapter VA of the I.D. Act,

1947 applies to “manufacturing process” of pumping water.

Hence, it cannot be denied that the undertaking in which the

workmen concerned were employed was covered under the

provisions of I.D. Act.

2

Page 21 20. It is, however, contended on behalf of the appellant

that the said undertaking was being run by the irrigation

department of the first appellant, and the activities of the

irrigation department could not be considered to be an

“industry” within the definition of the concept under Section

2(j) of the I.D. Act. As noted earlier, the reconsideration of

the wide interpretation of the concept of “industry” in

Bangalore Water Supply and Sewerage Board (supra) is

pending before a larger bench of this Court. However, as of

now we will have to follow the interpretation of law presently

holding the field as per the approach taken by this Court in

State of Orissa v. Dandasi Sahu (supra), referred to

above. The determination of the present pending industrial

dispute cannot be kept undecided until the judgment of the

larger bench is received.

21. Having stated that however, the objection raised

by the appellants to the judgment rendered by the Single

Judge of the Bombay High Court is required to be looked into

viz. that the appellants had effected a transfer of an

undertaking which resulted into termination of services of the

2

Page 22 workmen concerned, and that this was not a case of

retrenchment simpliciter. It was submitted that the 25 lift

irrigation schemes by themselves constitute an undertaking.

It may be that all the activities of irrigation department may

not have been transferred, but a separate unit thereof,

consisting of these 25 lift irrigation schemes, has come to be

transferred to a sugar factory. As held in Anakapalle

Society’s case (supra), in such a matter the only claim

which the employees of the transferor concern can

legitimately make, is a claim for compensation against the

previous employer, since they are not being absorbed under

the new employer. 22. Having stated this, we have

also to note the conduct of the appellants. It appears that

many of the workmen concerned were engaged for a period

of about 10 years. Section 25FF contemplates compensation

to be paid to the workmen on account of their retrenchment,

resulting from transfer of the undertaking. The

retrenchment, however, is required to be effected only if the

previous employer is not continuing the workmen concerned

in any of his activities or establishments, or when they are

2

Page 23 not being absorbed under the new employer. Continuation of

service under the existing employer, or re-engagement under

the new one, should be the preferred approach, when such

an occasion arises. Termination of services should normally

be the last resort. In the instant case, the first appellant –

State Government, does not appear to have made any efforts

either to absorb these workmen in other activities of the

irrigation department, or to have insisted upon the sugar

factory to absorb them. This is because the lift irrigation

schemes were going to be continued by the transferee sugar

factory, and in any case the Irrigation department has a very

large number of activities, wherein these workmen could

have been absorbed. When the State Government is in the

picture, we do expect a little better attitude than the one

which is often displayed by a private sector employer. It is

possible that, in a given situation, the State Government may

have its own economic compulsions which justify termination

of services. But, there must be either an effort to absorb such

surplus workmen, or in any case the difficulties of the

Government, if any, necessitating the termination, ought to

2

Page 24 be explained. We do not find any such efforts or explanation

placed on record.

23. It is also material to note that the Labour Court had

directed the State Government to consider the absorption of

these workmen. The respondents have placed it on record

that in pursuance of a subsequent advertisement for

employment in the irrigation department, the first

respondent-union had written to the authorities concerned to

absorb these workmen, but the Government took a

bureaucratic attitude to inform the Union that no such

decision could be taken, since the matter was pending in the

Supreme Court. This attitude was not expected from a

Welfare State.

24. In any case, having noted that another petition

concerning 10 other workmen from the same lift irrigation

schemes was dismissed, and SLP and Curative Petitions,

therefrom, were also dismissed, a question arises for this

Court to consider that assuming this was a case of transfer of

undertaking, should the relief to the affected workmen be

2

Page 25 restricted only to the compensation under Section 25F as

required by S 25 FF.

25. The learned counsel for the respondents has

referred to a few cases arising out of revenue proceedings

and the rent act, indicating what should be the approach in

such a situation. These 163 workmen and the other 10

workmen viz. Pandurang Vishnu Sandage and others were

working on the same lift irrigation schemes. Those 10

workmen also got an award of reinstatement with 25%

backwages. The writ petition of the appellants challenging

that award was dismissed by the Bombay High Court, relying

upon the judgment of the Single Judge in the present mater.

The SLP and the Curative Petitions therefrom also came to be

dismissed, although on the ground of gross delay. The fact,

however, remains that as far as those 10 workmen are

concerned, the order of relief in their case viz. reinstatement

with 25% backwages and continuity in service was left

undisturbed. Therefore, a question arises - should the

Government having been lethargic in the case of those 10

workmen, where it suffered an order of reinstatement with

2

Page 26 25% backwages, be now permitted to insist that when it

comes to these 163 workmen, who are similarly situated,

they be denied a comparable relief? And in any case, should

this Court treat the two sets of workmen differently, in the

matter of relief, only because the SLP against some of them

got dismissed on account of delay, whereas the SLP

concerning the others survived for final arguments?

26. This Court has the authority to pass an appropriate

order in exercise of its jurisdiction for doing complete justice

in a matter pending before it. This authority under Article

142 of the Constitution will also have to be read as coupled

with a duty to do complete justice in a given case. In Food

Corporation of India Worker’s Union v. Food

Corporation of India & Anr. reported in 1996 (9) SCC

439, this Court was faced with a situation where there was a

delay in reinstatement of the specified workmen despite this

Court’s earlier order. This was because of long delay of

about 6 years in determining their identity, in the proceeding

before the Industrial Tribunal. Therefore, in view of the

‘human problem’ involved in the matter, the Court laid down

2

Page 27 a procedure for identification of the workmen with a view to

do complete justice, and also directed reinstatement with

backwages @ 70% of the ‘normal earnings’ of the workmen

at piece rate, till their reinstatement. In

L. Parameswaran v. Chief Personal Officer and ors.

reported in 2008 (3) SCC 649, the appellant had worked in

an ex-cadre post for a very long time, and was reverted to his

parent post, though not immediately when the policy decision

to repatriate ex-cadre employees was taken. Working in the

ex-cadre post for a long time did not confer any right to

continue in that post or for pay protection. Considering,

however, the long time spent in the ex-cadre post, this Court

specifically invoked Article 142 to grant him protection of

pay.

27. In the facts and circumstances of the present case

also, accepting that the termination did result on account of

transfer of the undertaking, the relief to be given to the

workmen will have to be moulded to be somewhat similar to

that given to the other group of 10 workmen. It will not be

just and proper to restrict it to the rigours of the limited relief

2

Page 28 under Section 25FF read with 25F of the I.D. Act. Prior to the

termination of their services on 30.6.1985, many of the

workmen concerned had put in a service of about 10 years.

Inasmuch as so many years have gone since then, most of

them must have reached the age of superannuation. In the

circumstances, there cannot be any order of reinstatement.

However, they will be entitled to continuity of service, and

although they have been receiving last drawn wages under S

17 B of the I.D Act, 1947, they will be entitled to 25%

backwages and retirement benefits on par with the other 10

workmen. Award of 25% backwages in their case will be

adequate compensation.

28. Civil Appeal No.2566 of 2006 has been filed by

the above referred Trade Union, the respondent in Civil

Appeal No.2565 of 2006, against the same two judgments of

the Single Judge and the Division Bench of Bombay High

Court. The Union is aggrieved by the award of only 25%

backwages to the workmen, and seeks an order of 100%

backwages, contending that if the retrenchment is held to be

bad in law, the backwages could not be restricted to anything

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Page 29 less than 100% backwages. Mr. Navare has appeared in

support of this appeal, and Ms. Diwan has appeared to

oppose the same. As can be seen from the narration of facts

above, the Union is claiming reliefs for the present group of

workmen on the basis of parity with the other group of 10

workmen viz. Pandurang Vishnu Sandage and others, and

that submission has been accepted by us. Those workmen

have been awarded only 25% backwages. That being so, the

present group of workmen cannot be awarded backwages

more than what have been awarded to the other 10

workmen. The claim for award of higher backwages cannot,

therefore, be entertained.

29. In the circumstances, we dispose of the two

appeals against the impugned judgment and order of the

learned Single Judge of the Bombay High Court, dated

14.9.2004, in Writ Petition No.2699 of 1993, which is left

undisturbed by the Division Bench, by passing the following

order:-

(i) The 163 workmen concerned in the present matter, will

be placed into three categories, i.e., (a) those who have

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Page 30 already reached the age of superannuation; (b) those who

are yet to reach the age of superannuation; and (c) those

who have expired. They will be entitled to the reliefs in the

following manner.

(ii) The benefits to the workmen in category (a) will be till

the date of their superannuation, for category (b) till the date

of this judgment, and for those in category (c) till the date of

expiry of the workman concerned.

(iii) The workmen of all the three categories will be entitled

to continuity of service until the date of superannuation, or

until the date of this judgment, or until the date on which the

workman concerned has expired, as the case maybe.

(iv) All the workmen will be entitled to 25% backwages over

and above the last drawn wages that they have received

under Section 17B of I.D. Act. The backwages shall be

calculated until the date as mentioned in clause (iii) above.

(v)All the workmen will be entitled to the same retirement

benefits, if any (depending on their eligibility), as given to the

other group of 10 workmen viz. Pandurang Vishnu Sandage

and others.

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Page 31 (vi)All the aforesaid payments shall be made directly to the

workmen concerned or their heirs, as the case maybe, within

three months from the date of this judgment.

(vii)There shall not be any order of reinstatement.

(viii)The appellants will, thereafter, file a compliance report

in the Labour Court at Sangli, with a copy thereof to the

Registry of this Court.

(ix)Order accordingly.

(x)Registry to send a copy of this judgment to the Labour

Court, Sangli.

30. Both the appeals and all the I.As. moved therein

stand disposed off as above, with no order as to costs.

………… ..…………………..J.

[ H.L. Gokhale ]

……………………………J.

[ Ranjan Gogoi]

New Delhi

Dated : October 21, 2013

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