Decided on March 08,1960



- (1.) THIS is an application by the West Bengal Metal Workers Union under Article 226 of the Constitution for a writ of certiorari against the decision of the Industrial Tribunal made on the 3rd December, 1957 and published in the Calcutta Gazette of the 26th December, 1957. The only point for decision is whether section 25h of the Industrial Disputes Act is retrospective or not. There is no decision on this particular section although there are decisions on the other sections in Chapter VA of the Industrial Disputes Act containing sections 25a to 25j.
(2.) THE workmen in this case were retrenched between the 15th and 23rd of July, 1952, when section 25h was not in operation. The counter-part of section 25h appears first in an ordinance dated the 24th February, 1953 and was subsequently embodied in this section 25h of the Act on 24-10-53. The point now is that from January 1954, the Company started taking some of these retrenched people and the question arises whether section 25h can at all be applied to the re-employment of such retrenched workers. The Order of Reference to the Industrial Tribunal in this case was made on the 27th June, 1957. The Tribunal held that section 25h of the Industrial Disputes Act had no retrospective operation and, therefore, upheld the objection taken by the Management and decided the issue against the workers The present petition is directed against that award of the Industrial Tribunal. Section 25h of the Industrial Disputes Act reads as follows: "25h-Re-employment of retrenched workmen. 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 to offer themselves for reemployment, and the retrenched workmen who offer themselves for re-employment shall have preference over other persons. "
(3.) THE language of section 25h uses the words "are retrenched", "proposes to take into his employ" and "shall give an opportunity". They indicate that the section is prospective and is neither retrospective nor retroactive. Therefore both the retrenchment and the reemployment of the retrenched workmen have to take place after the operation of section 25h. If the retrenchment had taken place before, and the employment of persons after, the operation of section 25h, even then the section cannot be attracted. Retrenchment and re-employment of retrenched workmen are by S. 25h correlated. The correlates therefore can only be recognised after S. 25h comes into operation. The right of a retrenched workman in the case of re-employment is for the first time recognised in section 25h of the Act. Such a right of a retrenched workman to be considered for re-employment in preference to others was not recognised before and is created for the first time by S. 25h of the Statute. It is no doubt true that even before the introduction of S. 25h, retrenchment was an industrial concept arising out of conditions of employment and which was the subject-matter of industrial disputes and industrial decisions under the Industrial Disputes Act. But the specific right of a retrenched workman to offer himself for re-employment with added right of preference over others, in case the employer proposes to take into his employ any person is a new right created by the new statutory provisions in section 25h. It will, therefore, be inappropriate, in my view, to make such rights which are entirely creatures of statute,-retrospective or retroactive. Section 25h was introduced by Act 43 of 1953 which was passed on the 23rd December 1953, giving it a limited retrospective operation expressly - from the 24th October 1953. Therefore, it is only proper to consider that Parliament had before its mind the question of retrospective operation of the Act and gave only a limited retrospect. It will, therefore, be improper to extend further that retrospect. It is well-settled that a statute is ordinarily to be read as prospective unless expressly or by necessary implication, it is made retrospective. Here, apart from the fact that there is no express language to indicate retrospective operation of section 25h, such language as has been used and which I have indicated above, makes it rather expressly or in any event impliedly prospective. That fact taken with the limited retrospective operation when the Act on the 23rd December 1953 gave it effect from a prior date, namely, the 24th October 1953, should, in my view, conclude this question.;

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