Pendse, J. - (1.) This is an appeal preferred by the original petitioner in Writ Petition No. 886 of 1983 against the order dated April 28, 1983 passed by Mr. Justice Bharucha summarily rejecting the petition filed under Article 226 of the Constitution of India to challenge the legality of order dated January 19, 1983 passed by the Ninth Labour Court at Bombay in Reference No. 1027 of 1981.
(2.) The appellant was employed as a fitter by respondent Company by appointment letter dated October 5, 1975. The appellant was appointed in the factory of the respondent situate at S.V. Road, Manpada, Thane. The appointment letter, inter-alia. recites that the employer reserves the right to transfer the appellant from one Department, Section or job to another in the factory or from one establishment to another, whether or not such an establishment is in existence on the date of issue of this letter. The appellant claims that in August 1977, he joined the Union of Association of Engineering Workers and was active member thereof. The appellant claims that his joining the Union was not approved by the employer and on October 4, 1980, an order of retrenchment was served upon the appellant. The order of retrenchment, inter-alia, recites that on account of re- organisation of business in the Tube Assembly Section, it has been decided to abolish the post of 'Fitter' with effect from October 4, 1980 and since the appellant was the only person working as Fitter in the said Department, it has been decided to retrench the services. The retrenchment order further recites that the appellant will be paid one month's wages in lieu of notice and 15 days' wages as retrenchment compensation in each year of completed service along with other ligitimate dues. The appellant was directed to collect his dues along with the notice. The appellant disputed the retrenchment order and Reference No. 1027 of 1981 was made by the Deputy Commissioner of Labour, Thane under Section 10(2) of the Industrial Disputes Act (hereinafter referred to as the "Act"). The term of reference was whether the retrenchment of the appellant is bona fide and proper and, if not, what relief the appellant is entitled to?
(3.) The appellant claims that the appellant was protected workman under Section 33(3) of the Act and the order of retrenchment really amounts to an order of dismissal without any enquiry and was passed to victimise the employee. The appellant claims that the employer had engaged more than 350 workmen in the factory and, therefore, special provisions relating to retrenchment under Chapter VB of the Act were applicable. The appellant also claimed that the retrenchment was not' bona fide and the principle of 'Last come first go' was not adhered to. It was also claimed that it was incumbent upon the employer to give notice under Section 9A of the Act as the retrenchment was as a result of change effected in the working of the Company. The employer controverted the claim made by the appellant and pointed out that the appellant was not a protected workman and the claim that the provisions of Chapter VB of the Act have application is not correct. The employer denied that the order of retrenchment was as a result of victimisation and pointed out that the Fabrication Department was required to be closed because-of import restriction and no work was available to the appellant for over a period of 13 months. The Company also pointed out that huge losses running into Crores of Rupees were suffered over several years and, therefore, the decision had to be taken to close the Fabrication Department to reduce the losses. The parties led oral evidence before the Labour Court and on perusal of 'the testimony of witnesses and the documents, the Labour Court came to the conclusion that the Company had not employed more than 300 workers at any time within the last 12 preceding months. The Labour Court also held that the appellant was not a protected workman and, therefore, was not entitled to benefits under Section 33(3) of the Act. The challenge to the order of retrenchment on the ground of bona fide was turned down and so also the claim that notice under Section 9A of the Act was necessary before issuing order of retrenchment. On the strength of this findings, the reference was rejected. The workman then filed Writ Petition which was summarily rejected by the learned Single Judge and that has given rise to the filing of the present appeal.;