Subba Rao, J. -
(1.)This is an appeal by special leave against the award dated May 27, 1957, of Shri J. N. Tewari, Deputy Labour Commissioner, Kanpur. The appellant is a public limited company incorporated under the Indian Companies Act, 1913 carrying on the business of steel makers, re-rollers, foundry-men and steel fabricators since 1939 at Kanpur. For efficient operation of business the appellant-company was divided into various departments, one of them being rolling mill department. The Government of India directed the appellant to transfer its baling hoop factory to Calcutta area as from March 19, 1951. In and about the same time there was acute shortage of scrap which was the raw material for steel making. For the said two reasons, on May 15, 1951, the appellant discharged 128 workmen on the ground that they were surplus. Out of these, 25 workmen received their dues in full satisfaction of their claims, but the rest of the workmen raised an industrial dispute and the Government of U. P. by its notification dated June 20, 1951, referred the following dispute to Shri J. N. Singh, Additional Regional Conciliation Officer, Kanpur, for adjudication:
"Whether the retrenchment of the workmen given in the Annexure by M/s. J. K. Iron and Steel Co. Ltd. Kanpur is unjustified If so, to what reliefs are the workmen entitled -
On November 1, 1951, the Adjudicator, i.e., the Deputy Labour Commissioner, Kanpur, found that the retrenchment of the workmen was not justified and ordered that all the workmen should be reinstated and "played off" in rotation in accordance with the Standing Orders. Both the parties preferred appeals against the order to the Labour Appellate Tribunal. The Labour Appellate Tribunal rejected the appeal of the appellant and accepted the appeal of the respondents. In the result the Labour Appellate Tribunal set aside the order of retrenchment and ordered that the workmen would be deemed to be still in service and also would be entitled to wages for specified dates. Thereafter the appellant filed appeals in this Court by special leave and the appeals were disposed of by this Court on December 23, 1955, setting aside the award of the Labour Appellate Tribunal and remanding the case to the Labour Appellate Tribunal for rehearing the appeals. After remand, as the Labour Appellate Tribunal was of the view that it could not remand the case to the Adjudicator, fresh notice was issued by the State Government on September 10, 1956, referring the dispute to the Deputy Labour Commissioner, Kanpur, for adjudication. The Deputy Labour Commissioner gave an award on May 27, 1957, holding that the retrenchment of the workmen was justified; but in regard to the retrenchment of 5 workmen employed in the Punching and Pressing Department he came to the conclusion that the action of the management in retrenching them was mala fide; and in regard to 9 clerks he held that 8 persons junior to them had been retained, but, as out of those 8 persons 3 had been retained on account of their possessing special qualifications, their retention was justified, and in regard to the remaining 5 junior clerks, the management was held to be unjustified in keeping them in service and retrenching their seniors. In the result, the Deputy Labour Commissioner held that 5 workmen in the Punching and Pressing Department and 5 out of the said 9 clerks were wrongly retrenched. The list of those persons who were wrongly retrenched was given as Appendix-A to his award. In the case of 5 persons in the Punching and Pressing Department, he further held that, for the reasons given by him, it would not be advisable to direct their reinstatement and so he directed instead that these 5 persons to be paid 50 per cent, of their wages for the total period of their unemployment from the date of their retrenchment upto the date of the enforcement of the award in addition to the full retrenchment relief to which they were entitled. In regard to the 5 clerks, he came to the conclusion that even in the ordinary course they would have been retrenched in 1953 and therefore ends of justice would be met if they were allowed to get full retrenchment relief and 50 per cent. of their pay from the date of their retrenchment to September 7, 1953. The Iron and Steel Mazdoor Union did not prefer any appeal questioning the correctness of the award in so far as it went against them. But the appellant-company, as aforesaid, preferred the present appeal by special leave.
(2.)Mr. Pathak, the learned counsel for the appellant raised before us the following points:(1) the Adjudicator based his finding that the appellant was guilty of mala fides in retrenching the 5 persons in the Punching and Pressing Department on another finding that the said department was part of the workshop and that the latter finding was not supported by an evidence in the case; (2) the Ajudicator in the context of retrenchment should have taken into consideration the functional demarcation of the different categories of workers in a department and not the unity of control for the purpose of administration; (3) the agreement entered into between the appellant and the workmen, reduced to writing on November 13, 1956, finally disposed of the disputes between the appellant-company and the workmen and, therefore, the 10 persons whose dispute is before the court are also bound by the terms of the said agreement; (4) it is the legal right of a management to retrench its labour force in its discretion and that when it had bona fide retrenched the seniors on the ground that the juniors were specially qualified, the Ajudicator had no jurisdiction to substitute its opinion for that of the management; and (5) in any view, the Adjudicator made an obvious mistake in holding that the retrenchment of Yogehswar Jha was bad, because, on the basis of his findings, the said person was bound to go.
(3.)The third question raised may first be disposed of. This point was not raised at any stage of the protracted proceedings of this case and only for the first time it has been raised here. We, therefore, do not feel justified in allowing the learned counsel to raise this contention for the first time before us.