DBH INTERNATIONAL LTD Vs. THEIR WORKMEN

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the order dated 1-7-1996 passed by the learned Single Judge in Writ Petition No. 1347 of 1996, rejecting the petition in limine. The writ petition was filed against the Award dated 31-7-1995 passed by the Central Government Industrial tribunal No. II (for short, "the Tribunal") in Reference No. CGIT-2/55 of 1993, by which the impugned retrenchment was held to be illegal and void. The government of India, Ministry of Labour, by its letter dated 3-6-1993, had referred the following industrial dispute to the Tribunal for adjudication: "whether the action of the Management of M/s DBH International Ltd is justified in retrenching S/shri A. M. Ghosalkar, S. R. Parab, E. T. Deshmukh, Chiman Sawant, Baban Vethebkar, Mrs. D. D. 'mello and mrs. Rajalakshmi H. Pillai with effect from 16-9-3991 If not, to what relief the workmen are entitled to . " the aforesaid reference was made in pursuance of the failure report submitted by the Conciliation Officer to whom the dispute was referred pursuant to the demand notice dated 18-9-1991 given by the Secretary of Port and Dock workers' Union, Bombay (for short, "the Union") , which was representing the workmen before the concerned authority.

(2.) The background facts sans unnecessary details are as follows: m/s. DBH International Ltd - the appellant in this appeal, was a Clearing and Forwarding Agent (for short, "the Management") and they were holding customs House Agent Licence for the said business since 1965. Till 1987, they conducted their business in the name and style of Dadabhoy Hornusjee and Sons Ltd. The case set. up by the Management was that in 1990, on account of steady decline in business, a Voluntary Retirement Scheme (for short, "vrs") was announced by the Management in response of which few employees had availed it and left. 10 workmen only had remained in the employment consisting of the workmen named in the aforesaid reference (for short, "the workmen"). The VRS was objected to by the Union. The matter was carried into conciliation in which the Management was persuaded to withdraw the VRS, According to the Management, in 1991 due to national foreign exchange crisis, severe import restrictions were introduced in the Finance act, 1991 with the result their business declined even further. By August, 1991 gross revenue earned by the Management was not even sufficient to pay the wage bill of 10 remaining workmen and, therefore, they were left with no option but to retrench the 7 workmen out of the remaining 10. On 16-9-1991, the retrenchment notices were offered to the concerned 7 workmen together with notice pay, retrenchment compensation, gratuity, leave encashment and salary for 16 days of September. The workmen refused to accept the notices as well as payment offered. A notice to the Government, as required under section 25-F (c) of the Industrial Disputes Act, 1947 (for short, "i. D. Act") , was also given. The Union challenged the retrenchment vide their letter/demand notice dated 18-9-1991. The Conciliation Officer held the meeting with the union and the Management on 20-9-1991 and having failed to conciliate, issued a failure report on 9-10-199.1, In April, 1992, 2 out of the remaining 3 workmen resigned from the service and the last one was retrenched. Thus, according to the Management, the business and establishment was effectively closed down as no workmen were employed after April, 1992. Against this backdrop, the aforesaid dispute was referred under section 10 (1) of the I. D. Act by the Government of India for adjudication.

(3.) The Tribunal decided the reference vide its Award dated 31-7-1995, holding that though the action of the Management was justified in retrenching the workmen with effect from 16-9-1991, the action was illegal and void and, therefore, the workmen were entitled to reinstatement with full back wages and continuity in service, A categoric finding was recorded by the Tribunal that the amount tendered as retrenchment compensation was less than what ought to have been offered under section 25-F (b) of the i. D. Act relying on the Judgment of this Court in (Trade Wings Limited v. Prabhakar Dattararam Phodkar) , 1992 (2) Bom. C. R. 624 : 1992 (1) C. L. R. 480 : 1991 (11) L. L. N. 500.