Pendse, J.:— This is an appeal preferred by the original petitioner in Writ Petition No. 886 of 1983, against the order, dated 28 April, 1983, passed by Justice Sri Bharucha summarily rejecting the petition filed under Art. 226 of the Constitution of India to challenge the legality of order, dated 19 January, 1983, passed by the Ninth Labour Court at Bombay in Reference No. 1027 of 1981.
2. The appellant was employed as a fitter by the respondent-company by appointment letter, dated 5 October, 1975. The appellant was appointed in the factory of the respondent situate at S.V Road, Mandapa, 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 4 October, 1980, an order of retrenchment was served upon the appellant. The order of retrenchment, inter alia recites that on account of reorganisation of business in the tube assembly section, it has been decided to abolish the post of “fitter” with effect from 4 October, 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 legitimate 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 S. 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 S. 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 Chap. V-B 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 S. 9-A 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 Chap. V-B 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 S. 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 S. 9-A of the Act was necessary before issuing order of retrenchment. On the strength of this finding 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.
4. Sri Ganguli, learned counsel appearing on behalf of the appellant, has raised four contentions to challenge the order passed by the Labour Court on reference. The first submission urged by the learned counsel is that the Labour Court was in error in concluding that the company had not engaged more than 300 workers and the provisions of S. 25-K of the Act do not come into play. Section 25-K(1) of the Act prescribes that the special provisions under Chap. V-B relating to lay-off, retrenchment and closure shall apply to ah industrial establishment in which not less than 300 workmen were employed on average per working day for the preceding twelve months. The question as to whether the special provisions of Chap. V-B of the Act are applicable in respect of retrenchment would depend upon the question whether the company had engaged more than 300 workers in the preceding twelve months. The company claimed that at no stage in the preceding twelve months, the company employed more than 280 workmen and in support of the claim, Sri Gopalkrishnan, who is working as senior officer from the year 1976, was examined. Sri Gopalkrishnan, deposed on oath that about 280 to 290 workmen are employed in the company at a time. The statement of Sri Gopalkrishnan was not even challenged in the cross-examination. The appellant deposed that the company had engaged more than 300 workmen and except the oral word of the appellant, there was no material before the Labour Court to sustain the assertion. The Labour Court, on appreciation of evidence, came to the conclusion that the appellant has failed to establish that the company had engaged 300 or more workmen in the preceding twelve months. Sri Ganguli disputes the finding but it is not possible to accede to the submission of the learned counsel for more than one reason. In the first instance, the finding recorded by the Labour Court is a pure finding of fact on appreciation of evidence and it is not permissible to disturb the same in exercise of writ jurisdiction. Secondly, we have perused the statements made by the appellant and Gopalkrishnan, and we fail to understand bow it is possible to discard the statement of Gopalkrishnan. The Labour Court very rightly pointed out that the burden of establishing the fact that the company employed more than 300 workmen was on the appellant and the appellant has failed to discharge that burden. Sri Ganguli submitted by reference to the decision of Single Judge of this Court in the case of Varsha Vishwanath Kolambkar v. Ravindra Hindustan Platinum (Private), Ltd. [1987-I L.L.N 221], that the learned Judge had made passing observation to the effect that it is for the employer to satisfy the Industrial Court that at the relevant time more than the relevant number of workmen were not engaged. We do not read the observation of the learned Judge as concluding that the burden in such cases is on the employer. Indeed, it is not possible to conclude that the burden is on the employer because the issue was raised by the employee and when the employer disputed that fact, then the burden to establish the negative fact cannot be laid at the doorstep of the employer. Sri Ganguli urged with reference to the decision of the Supreme Court in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others [A.I.R 1968 S.C 1413], that the facts and material as to how many workers were engaged was within the custody of the employer and, therefore, the burden should have been cast on the shoulder of the company. We are unable to accede to the submission because the company examined Sri Gopalkrishnan before the Labour Court and it was open for the appellant to call upon the company to produce the relevant documents to substantiate the claim. The appellant not only did not seek the documents and the record, but did not even bother to cross-examine Gopalkrishnan on this aspect. It is futile in these circumstances to claim that the oral word of the appellant should be accepted as a gospel truth. The appellant, according to his own claim, was active member in the union and was fully conscious of the record maintained by the company and nothing prohibited him from demanding production of the record before the Labour Court. In our judgment, the finding recorded by the Labour Court on this aspect is in consonance with the evidence produced and should not be disturbed in writ jurisdiction.
5. Sri Ganguli then submitted that the order of retrenchment suffers from serious infirmity as the workman was not tendered the retrenchment compensation along with the notice. It is not possible to accede to this submission. As rightly pointed out by the Labour Court, the retrenchment notice itself sets out that the workman should collect the dues along with the notice. The management claimed that the worker did not take any steps to collect the dues and then the amount was forwarded by money order. Sri Gopalkrishnan who was examined on behalf of the company deposed that full and final statement of dues of the workman was kept ready along with the amount, but the workman did not care to receive the same. The appellant, on the other hand deposed before the Labour Court that the compensation was not offered but the workman was told to sign a voucher and collect the dues on the next day. This claim was not accepted by the Labour Court and, in our judgment, very rightly. It is not possible to disturb the finding of the Labour Court on this count.
6. Sri Ganguli then submitted that the seniority list was not displayed by the employer as required under rule 81 of the Industrial Disputes (Bombay) Rules, 1957. The learned counsel urged that failure to do so has caused serious prejudice to the appellant because the principle of “last come first go” was not observed. We are unable to see any merit in the submission because the appellant was not only an ordinary fitter but a special fitter who was working in the fabrication department and was the only fitter in that department. As the department could not function because of the import restriction, the employer has no alternative but to retrench the appellant.
7. Sri Ganguli then urged that the retrenchment was not a bona fide action but was adhered to victimise the appellant. It was contended that Gopalkrishnan, senior officer of the company, was biased against the appellant because the appellant has exposed his misdeeds. The submission has no merit because except making wild allegations against the senior officer, the appellant has not bothered to give details as to why Gopalkrishnan was biased or when the appellant has exposed his alleged misdeeds.
8. Sri Ganguli also submitted that the appellant was active member of the union but failed to explain why the company picked up only one employee and did not proceed against the other active members of the union. The appellant was not a protected employee as contemplated under S. 33(3) of the Act. Sri Ganguli then submitted that in accordance with the terms and conditions of employment referred to in the appointment letter, the appellant could have been accommodated either in some other department or even in sister concern of the company. We enquired from Sri Damania, learned counsel appearing on behalf of the company, about the possibility to accommodate the appellant in other concern and Sri Damania, after taking instructions, made a positive statement that the company is willing to offer employment to the appellant at their factory near Nagpur city. Sri Damania made it clear that irrespective of the result of the petition, the offer is open provided the appellant chooses to accept it within a period of 30 days from today. Sri Ganguli, after taking instructions from his client who is present in Court, point-blank stated that the offer is not acceptable because the appellant is not willing to go to any other factory than the one in which he was employed. Sri Ganguli stated that the appellant is not desirous to go to any sister concern because of health ground. The impression left on us is that the appellant is not, at all, interested in seeking back employment, but is probably interested only in monetary advantage like back-wages. In these circumstances, the complaint that the appellant should have been accommodated somewhere else loses all its force. Sri Damania also pointed out with reference to the evidence of Gopalkrishnan that the appellant remained without any work for over a period of thirteen months. The witness had produced the record before the Labour Court and had also prepared a statement showing as to what work was carried out by the appellant. After perusing this statement, the Labour Court held that the company could not provide any work to the appellant and, therefore, had no go but to retrench the employee. In our judgment, the finding is correct and deserves acceptance.
9. Finally, Sri Ganguli urged that the order of retrenchment is vitiated because the employer failed to give notice under S. 9-A of the Act. Section 9-A prescribes that no employer, who proposes to effect any change in the conditions of service applicable to any workmen in respect of any matter specified in the Fourth Schedule shall effect such change without giving proper notice as prescribed. Sri Ganguli relied upon items (10) and (11) of Sch. IV to claim that notice of change was necessary before passing order of retrenchment. It was urged that the retrenchment was as a result of reorganisation of business of the company and, therefore, conditions under items (10) and (11) are squarely applicable. The learned counsel also referred to the decision in the case of Hindustan Lever, Ltd. v. Ram Mohan Ray [1973 — II L.L.N 43], but, in our judgment that decision has no bearing whatsoever to the contentions raised. The Supreme Court pointed out in that decision that whether any particular practice amounts to change in condition of service would always depend on the facts and circumstances of the case and no rule applicable to all cases could be culled out from the earlier decisions. Sri Damania, on the other hand, relied upon the decision in the case of Robert D'Souza (L.) v. Executive Engineer, Southern Railway [1982 — II L.L.N 257], which is more appropriate. Justice Sri Desai, speaking for the Court, observed in Para. 9, at page 264:
“… When a workman is retrenched it cannot be said that change in his conditions of service is effected …”
In our judgment, in the present case, notice under S. 9-A of the Act was not called for because the employer had not reorganised the business, but has closed down the tube assembly section in view of the import restriction and, therefore, the post of fitter to which the appellant was appointed has become redundant and, therefore, the company was bound to retrench the employee. In our judgment, the Labour Court was right in concluding that the appellant is not entitled to any relief and the learned Single Judge was equally right in summarily dismissing the petition.
10. Accordingly, appeal fails and is dismissed without any order as to costs.
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