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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2565 OF 2006

State of Maharashtra & Anr. …    Appellants

            Versus

Sarva Shramik Sangh, Sangli & Ors. …    Respondents

WITH

CIVIL APPEAL NO.2566 OF 2006

Sarva Shramik Sangh, Sangli …  Appellant

Versus

State of Maharashtra & Ors. …  Respondents

J  U  D  G  E  M  E  N  T

H.L. Gokhale J.

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 Civil Appeal No.2565 of 2006 seeks to challenge  

the  judgment  and  order  dated  12.9.2005  passed  by  a  

Division Bench of the Bombay High Court in Letter Patents  

Appeal No.184 of 2005, as well as the judgment and order  

dated 14.9.2004 passed by a Single Judge of that High Court  

in Writ Petition No.2699 of 1993, wherefrom the said Letters  

Patent Appeal arose. The said Writ Petition had been filed by  

the  respondents  to  challenge  the  award  dated  21.5.1992  

rendered by the Labour Court, Sangli, in a group Reference  

under the Industrial Disputes Act, 1947 (I.D. Act, for short).  

The learned Single Judge had allowed the said Writ Petition,  

by the above referred order, and the Division Bench had left  

the said decision undisturbed.

2. The  State  of  Maharashtra  through  Secretary  

Irrigation  Department,  and  Executive  Engineer  Irrigation  

Department, Sangli, are the appellants herein, whereas Sarva  

Shramik  Sangh,  Sangli,  a  Trade  Union  representing  the  

workmen  concerned,  and  two  of  the  workmen  in  the  

concerned  Industrial  Establishment  are  the  respondents  to  

this appeal.

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Facts leading to this appeal are this wise:-

3. The  Government  of  Maharashtra  established  a  

corporation named as the Irrigation Development Corporation  

of Maharashtra Limited, sometimes in December 1973.  This  

Corporation was a Government of Maharashtra undertaking.  

It set up 25 lift irrigation schemes to provide free services to  

farmers.  The corporation was established in the aftermath of  

a terrible drought which afflicted the State in the year 1972.  

Some 256 workmen were employed to work on the irrigation  

schemes of the said Corporation.  Though it was claimed that  

the workmen were casual and temporary, the fact remains  

that many of them had put in about 10 years of service when  

they were served with notices of termination by the appellant  

No.2  on  15.5.1985.   The  notice  sought  to  terminate  their  

services  w.e.f.  30.6.1985,  and  offered  them  15  days  

compensation  for  every  completed  year  of  service.   The  

retrenchment was being effected because according to the  

appellants  the  lift  irrigation  schemes,  on  which  these  

workmen were working,  were being transferred to a sugar  

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factory viz. Vasantdada Shetkari Sahakari Sakhar Karkhana,  

Sangli.

4. It  is  not  disputed  that  some  of  the  workmen  

accepted  the  retrenchment  compensation,  though  a  large  

number of them did not.  Some 163 out of them filed Writ  

Petition  bearing  No.2376  of  1985,  through  the  first  

respondent  Trade  Union,  against  the  above  referred  

Corporation  and  the  appellants,  seeking  to  restrain  the  

transfer of the undertaking.  The petition was dismissed by  

the Bombay High Court and hence, a Special Leave Petition  

was preferred to this Court being SLP No.1386 of 1986.  The  

appellants defended the said petition by pointing out that the  

workmen concerned were not employees of the Corporation,  

but  were  employees  of  the  State.   This  Court,  therefore,  

dismissed  the  said  SLP  by  its  order  dated  11.11.1986  by  

observing as follows:-

“Having regard to the statement in the  counter  affidavit  of  the Executive engineer,   the State of Maharashtra, that the Petitioners   were  employees  of  the  State  and  not  the   Corporation,  we do not  see how the reliefs   sought  against  the  Corporation  can  be  granted  in  this  petition.   If  the  Petitioners   desire to seek any reliefs against the State   

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Government and if such relief is permissible,   the  Petitioners  are  at  liberty  to  seek  appropriate legal remedy in the matter.  The  SLP is, therefore, disposed of accordingly.”

5. This  led  the  workmen  to  seek  Reference  of  the  

Industrial Dispute under the I.D. Act. These References were  

numbered as Ref. I.D. Nos.27 to 40, 42 to 70, 72 to 99/97,  

1/88 to 35, 54, 63, 65, 72 to 92, 106 to 118/88, 17 to 29/89,  

37, 38, 40 to 44/89 covering 163 applicants.   

6. In these References, it was contended on behalf of  

the workmen that their retrenchment was illegal, inasmuch  

as  the  requirement  of  the  adequate  statutory  notice  as  

required under the I.D. Act, was not complied with.  On the  

face of it, there was a shortfall of a few days in giving the  

notice.   The  learned  Labour  Court  Judge  noted  that  the  

notices  were  issued  on  25.6.1985,  and  the  services  were  

terminated w.e.f.  30.6.1985.  The workmen contended that  

the lift irrigation schemes wherein they were working, were in  

fact  Industrial  Establishments, and that  inasmuch as  more  

than 100 workmen were employed therein, the provision of  

Section  25N of  the  I.D.  Act  (which  requires  three months’  

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advance notice prior to termination) was applicable, but had  

not been complied with.   The learned Judge of the Labour  

Court did not deal with that submission, but held that in any  

case  there  was  a  violation  of  Section  25F  of  the  I.D.  Act,  

inasmuch as not even one month’s notice had been given  

and hence the termination was illegal.

7. In  the  Written  Statement  filed  by  the  appellant  

No.2 before the Labour Court, it was stated in paragraph 3,  

that  various  schemes  were  carried  out  by  the  State  

Government  at  its  own  expense.   In  paragraph  4  it  was  

contended that the workmen concerned were the employees  

of the Irrigation Department.  In paragraph 14 thereof, it was  

stated that “the termination is not by way of victimization   

but as the irrigation scheme has been transferred to Shetkari   

Sahakari  Sakhar  Karkhana,  Sangli,  the  employees  are  not   

entitled to retain in the services without any work.”

8. In  the  written  statement  there  was  no  specific  

reference to Section 25FF of the I.D. Act which deals with the  

transfer of undertakings.  There was no reference to the said  

section in the judgment of the learned Judge either.  We may  

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however  note  that  the  learned  Judge  has  noted  this  

submission of the appellants in paragraph 8 of her order in  

the following words:-

“8.…..However, in the present case, it is   clear  that  all  those  schemes  where  the   Second  Party  workmen  were  working  were   sold  by  the  State  Government  to  the   Vasantdada  Shetkari  Sahakari  Sakhar   Karkhana  Ltd.,  Sangli  and  on  said  reason   their services were terminated.  As such, it is   clear that those schemes are transferred to   the  Sugar  Industry.   Hence,  there  is  no  control of the First Party employer on those   schemes…….”

9. The  learned  Judge,  however,  noted  that  workmen  

concerned were  employed on a  temporary  basis.   Having  

noted  that,  the  learned  Judge  relied  upon  a  judgment  of  

Karnataka  High  Court between  Workmen  of  Karnataka  

Agro  Protines  Ltd.  v.  Karnataka  Agro  Proteins  Ltd.  

and  Ors.  reported  in  1992  LLJ  page  712,  on  the  

application of Section 25F and 25FF, and held that the only  

claim that the workmen could make was for compensation.  

The Karnataka High Court had referred to and followed the  

law laid  down in  Anakapalle  Co-operative Agricultural  

and  Industrial  Society  Ltd.  v.  Workmen  and  Ors.  

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reported in  AIR 1963 SC 1489,  and also the subsequent  

judgment of  this  court in  Central  Inland  Water  

Corporation Ltd. v. The Workmen and another reported  

in (1974) 4 SCC 696 to the same effect. The Labour Court,  

therefore,  directed  that  there  would  not  be  any  

reinstatement,  but  the  workmen  will  be  given  the  

compensation in accordance with Section 25F of the I.D. Act.  

The Award of the Labour Court reads as follows:-

“Award: I) The claim is partly allowed. II) All the employees are entitled to receive  

the  retrenchment  compensation  under   Section  25F  of  Industrial  Disputes  Act,   1947  after  calculating  their  service  period  with  the  First  Party.   The  remaining claim stands rejected.

III) However,  the  First  Party  is  hereby   directed to give preference to all those   employees  whenever  some  additional   work to new project are started or work  is available.

IV) It  is  informed  that  some  employees  have  died.   In  respect  of  such  employees their legal heirs are entitled   to receive the compensation amount.

V) The award be implemented within in a   month from the date  of  publication of   this Award.

VI) No order as to costs.”

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10. Being aggrieved by that judgment and order, the  

respondents  filed  Writ  Petition  bearing  No.2699  of  1993  

before  a  Single  Judge  of  the  Bombay  High  Court  invoking  

Article 227 of the Constitution of India.  The learned Single  

Judge who heard the matter took the view that the process of  

pumping  water  wherein  the  workmen  were  employed,  

amounted to a ‘manufacturing process’ under Section 2(k) of  

the  Factories  Act,  1948,  and  therefore,  the  lift  irrigation  

schemes were in the nature of a ‘factory’ as defined under  

Section  2(m)  of  the  said  Act,  and  hence,  an  ‘Industrial  

Establishment’ to which the I.D. Act applied.   

11. The  learned  Single  Judge  then  held  that  since  

according  to  the  State  Government,  the  workmen  were  

employed by the Irrigation Department,  the plea that their  

services were required to be terminated on account of the  

transfer of the undertaking could not be accepted.  This was  

on  the  footing  since  the  other  activities  of  the  Irrigation  

Department  continued  even  after  the  transfer  of  the  lift  

irrigation schemes,  the workmen concerned could certainly  

be absorbed into other activities of the irrigation department.  

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12. The learned Single  Judge observed that  the plea  

invoking Section 25FF could not be permitted to be raised in  

the High Court, inasmuch as transfer was a mixed question of  

facts and law. According to the learned Judge, it was a case  

of breach of Section 25N, and not merely 25F of the I.D. Act.  

Section  25N  lays  down  the  conditions  precedent  to  

retrenchment  of  workmen  from  Industrial  Establishments  

wherein  more  than  100 workmen are  employed,  and  sub-

section (1)(a)  thereof  provides for  three months’  notice or  

pay in lieu thereof in the event of retrenchment. The learned  

Judge,  therefore,  set-aside  the  award,  since  three months’  

advance  notice  or  pay  was  not  given,  and  held  that  the  

workmen were entitled to  reinstatement  with  continuity  of  

service. The learned Judge awarded 25% backwages to the  

workmen.   The operative part  of  the  order  of  the  learned  

Judge as contained in paragraphs 11 to 14 of the judgment  

reads as follows:-

“11.  The  award  dated  21st May  1992  passed  by  the  Labour  Court,  Sangli  is  set   aside.   The  workmen  concerned  in  the  References are entitled to reinstatement with   continuity of service and 25% backwages.  All   workmen who are interested in employment   

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must report for duty within two months from  the date of this order.  The Respondents will   give them employment by reinstating them  with  continuity  of  service  within  a  month   thereafter.  Backwages shall  be paid to the   workmen,  computed  at  25%  within  three  months of their reinstatement in service.

12. There  are  some  workmen  who  have been absorbed in other departments of   the  State  Government  or  have  secured   employment  elsewhere.   These  workmen  shall  be  paid  25% backwages  till  the  date   they secured employment within six months   from today.

13. A  few  workmen  have  already  reached  the  age  of  superannuation  during   the  pendency  of  these  proceedings.   They   shall  be  paid  the  backwages  computed  at   25% till  the  date  they  attained  the  age  of   superannuation  within  three  months  from  today.

14. I am informed that some workmen  have  expired  during  the  pendency  of  the   proceedings in court.  The Respondents shall   pay to the heirs  of  these workmen 25% of   back wages upto the date of death of these   workmen within three months from today.”

13. It is this order which was challenged in the Letters  

Patent Appeal.  The Division Bench, however, took the view  

that  a  Letters  Patent  Appeal  was not  available  against  an  

order passed on the Wirt Petition filed under Article 227 of  

the Constitution of  India,  and therefore dismissed the said  

Letters Patent Appeal.  Being aggrieved by this order of the  

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Division Bench as well  as of the learned Single Judge, this  

appeal has been filed.   Leave was granted in this matter on  

8.5.2006,  and  the  operation  of  the  impugned  order  was  

stayed subject to the compliance of the provisions of Section  

17B of the I.D. Act, 1947.  The appeal has been pending since  

then, and a number of I.As have been filed by both parties.  

When  the  appeal  reached  for  final  hearing,  Ms.  Madhavi  

Diwan, learned counsel appeared for the appellants, and Mr.  

Vinay Navare, learned counsel appeared for the respondents.

Submissions on behalf of the appellants:-

14. The  principal  submission  of  Ms.  Madhavi  Diwan,  

learned counsel  for  the appellants is  that this is a case of  

transfer of an undertaking. That was the very plea taken in  

paragraph 14 of the written statement as noted above, and  

also  reflected  in  the  judgment  of  the  Labour  Court.   The  

learned Single Judge had clearly erred in ignoring this fact.  

Ms. Diwan submitted that in fact it was also the case of the  

respondents themselves that retrenchment of their services  

took place because of the transfer of the undertaking.  She  

submits  that  the  lift  irrigation  schemes  constituted  an  

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undertaking, and the ownership of the management of the  

undertaking was being transferred, and it was not relevant  

that the ownership of the Irrigation Department Corporation  

was not being transferred.  Therefore, in her submission it is  

the  Section  25FF  which  applies  to  the  present  case,  and  

neither Section 25N nor Section 25F.  Besides, Section 25F  

would apply only as a measure of compensation that is to be  

provided for, and nothing more as laid down by a Constitution  

Bench of this Court in  Anakapalle Society’s  case (supra).  

In that matter this Court has observed in paragraph 16 as  

follows:-

“16.  The  Solicitor-General  contends  that   the question in the present appeal has now to   be  determined  not  in  the  light  of  general   principles  of  industrial  adjudication,  but  by   reference  to  the  specific  provisions  of   s. 25FF itself.  He argues, and we think rightly,   that the first part of the section postulates that   on a transfer of the ownership or management   of an undertaking, the employment of workmen  engaged by the said undertaking comes to an   end,  and  it  provides  for  the  payment  of   compensation to the said employees because of   the said termination of their services, provided,   of course, they satisfied the test of the length of   service prescribed by the section. The said part   further provides the manner in which and the   extent to which the said compensation has to   be  paid.  Workmen  shall  be  entitled  to  notice   

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This judgment in  Anakapalle (supra) has been consistently  

followed thereafter,  including  in  a  recent  judgment  of  this  

Court in Maruti Udyog Ltd. v. Ram Lal and Ors. reported  

in 2005 (2) SCC 638.

Reply on behalf of the respondents:-

15. As  far  as  the  respondents  are  concerned,  they  

have  principally  contended  that  Section  25FF  has  no  

application to the present case, and the learned Single Judge  

of the High Court has rightly held that this is a case which is  

covered under Section 25N.  It is submitted that in view of  

Section  25N(1)(a),  the  workmen  had  to  be  given  three  

months’  prior  notice or  notice pay.   That  having not  been  

done,  and  the  prior  permission  under  25N(1)(b)  of  the  

appropriate  government  not  having  been  sought,  the  

retrenchment will have to held illegal under sub-Section (7) of  

25N.  The learned Judge of the Labour Court had in any case  

held that it was a case of breach of Section 25F, and the High  

Court had held that it was a case of breach of Section 25N.  

Either of those findings justified the reinstatement with full  

backwages.   Reliance  was  placed  in  this  behalf  on  the  

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judgment  of  this  Court  in  Anoop  Sharma  v.  Executive  

Engineer,  Public  Health  Division  No.1,  Panipat  

(Haryana) reported in 2010 (5) SCC 497.  

16. However,  more  than  that,  the  respondents  have  

pointed  out  that  another  set  of  10  workmen  (Pandurang  

Vishnu  Sandage  and  9  others)  working  on  the  same  lift  

irrigation  schemes  had  subsequently  filed  separate  

References in the Labour Court bearing Ref. (I.D.A.) No.37 to  

45 of 1991 and 1 of 1992,  and the Labour Court gave an  

award on 30.12.1996, that those 10 workmen were entitled  

to reinstatement with 25% backwages.  That judgment was  

challenged by the State of Maharashtra by filing Writ Petition  

No.2729 of 1997.  The said Writ Petition was dismissed by a  

Single Judge of Bombay High Court, relying upon the decision  

in Writ Petition No.2699 of 1993 in the present matter.  An  

appeal  was  filed  by  the  appellants  by  preferring  SLP  (C)  

No.773 of 2006.  This Hon’ble Court dismissed the said SLP  

on the  ground of  delay.   A  Review Petition  (Civil)  bearing  

No.379 of 2006 was filed. That was dismissed by the order  

passed on 26.9.2006.  Thereafter a Curative Petition No.164  

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of  2007  was  filed.  That  also  came  to  be  dismissed  on  

21.2.2008.  It was, therefore, submitted that the appellants  

are  bound  by  the  decision  in  the  aforesaid  case  of  10  

workmen, and in any case this Court should not allow the  

present appeal as it will lead to a different result in the case  

of  workmen  who  are  similarly  situated.   The  respondents  

relied upon an order of this Court in the case of  Warlu v.  

Gangotribai and Anr. reported in 1995 (Supp) 1 SCC 37.  

It  was  a  matter  relating  to  the  tenancy  rights  of  the  

appellant,  concerning  the  land  spread  over  three  survey  

numbers, which belonged to the Respondent no.1. Three writ  

petitions arising out of the revenue proceedings filed by him  

were dismissed by the High Court.  Two SLPs therefrom were  

found to be time barred and therefore dismissed.  As far as  

the third SLP is concerned, this Court declined to entertain  

the same for the sole reason that any such interference will  

result in making conflicting orders regarding tenancy rights in  

the same land.  It was therefore, submitted by Mr. Navare,  

the learned counsel  for the respondent that the appellants  

should suffer by the principle of estoppel by record.   

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17. In support of the contention that the orders passed  

by this Court in the case of the other 10 workmen should be  

followed  in  the  present  case,  reliance  was  placed  on  

paragraph  21  of  a  judgment  in  the  case  of  Nirmal  Jeet  

Singh Hoon v. Irtiza Hussain and Ors. reported in  2010  

(14)  SCC  564.   The  judgment  impugned  in  that  matter  

directing eviction of tenant had already been upheld in an  

earlier  SLP,  wherein  the  Petitioner  was  also  a  party.  

Entertaining the second petition, on his behalf,  would have  

amounted to reviewing the earlier order of this Court.  This  

Court dismissed the petition by observing “The law does not  

permit two contradictory and inconsistent orders in the same   

case in respect of the same subject matter”.  It was therefore  

submitted that the order of the Labour Court in the case of  

the  other  10  workmen  had  attained  finality,  and  the  

appellants cannot be permitted to take a different position in  

the present matter when the workmen in both the matters  

were similarly situated.   

18. The  appellants  had  submitted  that  the  Irrigation  

Department is not an industry.  In that behalf, it was pointed  

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out on behalf of the workmen that it is too late to raise this  

submission  in  view  of  the  judgment  of  this  Court  in  

Bangalore  Water  Supply  and  Sewerage  Board  v.  A.  

Rajappa & Ors. reported in 1978 (2) SCC 213.  As against  

that,  the  counsel  for  the  appellants  pointed  out  that  the  

judgment in  Bangalore Water Supply  (supra) is  pending  

for  re-consideration before  a  larger  bench of  this  Court  in  

view of the order passed by the Constitution Bench in State  

of U.P. v. Jai Bir Singh reported in 2005 (5) SCC 1.  The  

respondents, however, submitted that in the meanwhile the  

judgment in  Bangalore Water Supply (supra) will have to  

be followed until it is overruled, since the proposition therein  

continues to hold good.  Reliance is placed in that behalf, on  

the approach adopted by this Court in such a situation, in a  

matter concerning Arbitration in State of Orissa v. Dandasi  

Sahu  reported  in  1988 (4)  SCC 12.   In  that  matter  this  

Court has held that in the exercise of this Court’s discretion  

under Article 136, it would not be justified to allow a party to  

further prolong or upset adjudication of old and stale disputes  

till the decision of the larger bench is received.  

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Consideration of the rival submissions:-

19. (i) To  begin  with,  we  must  note  that  the  

workmen concerned were engaged as pump operators and  

chowkidars  etc.  on  25  lift  irrigation  schemes,  which  were  

carrying out the process of pumping water.  The process of  

pumping water is specifically covered under the definition of  

“manufacturing  process”  under  Section  2  (k)(ii)  of  The  

Factories  Act,  1948.   Thus,  the  workmen  concerned  were  

engaged  in  a  “manufacturing  process”.   Once  that  is  

established, it follows that the activity of the undertaking in  

which they were working, constituted a “factory” within the  

meaning of Section 2(m) of the said Act.   

(ii) The  explanation  (i)  to  Section  25A  of  I.D.  Act,  1947,  

covers the “factories” within the definition of an “industrial  

establishment”,  and  therefore  Chapter  VA  of  the  I.D.  Act,  

1947 applies to “manufacturing process” of pumping water.  

Hence, it cannot be denied that the undertaking in which the  

workmen concerned were employed was covered under the  

provisions of I.D. Act.  

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20. It is, however, contended on behalf of the appellant  

that  the  said  undertaking  was  being  run  by  the  irrigation  

department of the first  appellant,  and the activities of  the  

irrigation  department  could  not  be  considered  to  be  an  

“industry” within the definition of the concept under Section  

2(j) of the I.D. Act.  As noted earlier, the reconsideration of  

the  wide  interpretation  of  the  concept  of  “industry”  in  

Bangalore Water Supply and Sewerage Board (supra) is  

pending before a larger bench of this Court.  However, as of  

now we will have to follow the interpretation of law presently  

holding the field as per the approach taken by this Court in  

State  of  Orissa  v.  Dandasi  Sahu  (supra),  referred  to  

above. The determination of the present pending industrial  

dispute cannot be kept undecided until the judgment of the  

larger bench is received.  

21. Having stated that  however,  the objection raised  

by the appellants to  the judgment  rendered by the Single  

Judge of the Bombay High Court is required to be looked into  

viz.  that  the  appellants  had  effected  a  transfer  of  an  

undertaking which resulted into termination of services of the  

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workmen  concerned,  and  that  this  was  not  a  case  of  

retrenchment simpliciter.   It  was submitted that the 25 lift  

irrigation schemes by themselves constitute an undertaking.  

It may be that all the activities of irrigation department may  

not  have  been  transferred,  but  a  separate  unit  thereof,  

consisting of these 25 lift irrigation schemes, has come to be  

transferred  to  a  sugar  factory.  As  held  in  Anakapalle  

Society’s  case (supra),  in  such  a  matter  the  only  claim  

which  the  employees  of  the  transferor  concern  can  

legitimately make, is a claim for compensation against the  

previous employer, since they are not being absorbed under  

the new employer.  22.    Having  stated  this,  we  have  

also to note the conduct of the appellants.  It appears that  

many of the workmen concerned were engaged for a period  

of about 10 years. Section 25FF contemplates compensation  

to be paid to the workmen on account of their retrenchment,  

resulting  from  transfer  of  the  undertaking.   The  

retrenchment, however, is required to be effected only if the  

previous employer is not continuing the workmen concerned  

in any of his activities or establishments, or when they are  

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not being absorbed under the new employer.  Continuation of  

service under the existing employer, or re-engagement under  

the new one, should be the preferred approach, when such  

an occasion arises. Termination of services should normally  

be the last resort. In the instant case, the first appellant –  

State Government, does not appear to have made any efforts  

either  to  absorb  these  workmen  in  other  activities  of  the  

irrigation  department,  or  to  have  insisted  upon  the  sugar  

factory  to  absorb  them.  This  is  because  the  lift  irrigation  

schemes were going to be continued by the transferee sugar  

factory, and in any case the Irrigation department has a very  

large  number  of  activities,  wherein  these  workmen  could  

have been absorbed.  When the State Government is in the  

picture,  we do expect  a little  better  attitude than the one  

which is often displayed by a private sector employer. It is  

possible that, in a given situation, the State Government may  

have its own economic compulsions which justify termination  

of services. But, there must be either an effort to absorb such  

surplus  workmen,  or  in  any  case  the  difficulties  of  the  

Government, if any, necessitating the termination, ought to  

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be explained. We do not find any such efforts or explanation  

placed on record.  

23. It is also material to note that the Labour Court had  

directed the State Government to consider the absorption of  

these workmen.  The respondents have placed it on record  

that  in  pursuance  of  a  subsequent  advertisement  for  

employment  in  the  irrigation  department,  the  first  

respondent-union had written to the authorities concerned to  

absorb  these  workmen,  but  the  Government  took  a  

bureaucratic  attitude  to  inform  the  Union  that  no  such  

decision could be taken, since the matter was pending in the  

Supreme  Court.   This  attitude  was  not  expected  from  a  

Welfare State.

24. In  any  case,  having  noted  that  another  petition  

concerning 10 other workmen from the same lift  irrigation  

schemes  was  dismissed,  and  SLP  and  Curative  Petitions,  

therefrom,  were  also  dismissed,  a  question  arises  for  this  

Court to consider that assuming this was a case of transfer of  

undertaking,  should  the relief  to  the affected  workmen be  

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restricted  only  to  the  compensation  under  Section  25F  as  

required by S 25 FF.

25. The  learned  counsel  for  the  respondents  has  

referred to a few cases arising out of revenue proceedings  

and the rent act, indicating what should be the approach in  

such  a  situation.   These  163  workmen  and  the  other  10  

workmen viz.  Pandurang Vishnu Sandage and others  were  

working  on  the  same  lift  irrigation  schemes.   Those  10  

workmen  also  got  an  award  of  reinstatement  with  25%  

backwages.  The writ petition of the appellants challenging  

that award was dismissed by the Bombay High Court, relying  

upon the judgment of the Single Judge in the present mater.  

The SLP and the Curative Petitions therefrom also came to be  

dismissed, although on the ground of gross delay.  The fact,  

however,  remains  that  as  far  as  those  10  workmen  are  

concerned, the order of relief in their case viz. reinstatement  

with  25%  backwages  and  continuity  in  service  was  left  

undisturbed.   Therefore,  a  question  arises  -  should  the  

Government having been lethargic in the case of those 10  

workmen, where it suffered an order of reinstatement with  

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25%  backwages,  be  now  permitted  to  insist  that  when  it  

comes  to  these  163  workmen,  who  are  similarly  situated,  

they be denied a comparable relief?  And in any case, should  

this Court treat the two sets of workmen differently, in the  

matter of relief, only because the SLP against some of them  

got  dismissed  on  account  of  delay,  whereas  the  SLP  

concerning the others survived for final arguments?   

26. This Court has the authority to pass an appropriate  

order in exercise of its jurisdiction for doing complete justice  

in a matter pending before it.   This authority under Article  

142 of the Constitution will also have to be read as coupled  

with a duty to do complete justice in a given case.  In Food  

Corporation  of  India  Worker’s  Union  v.  Food  

Corporation of India & Anr.  reported in  1996 (9)  SCC  

439, this Court was faced with a situation where there was a  

delay in reinstatement of the specified workmen despite this  

Court’s  earlier  order.   This  was  because  of  long  delay  of  

about 6 years in determining their identity, in the proceeding  

before  the  Industrial  Tribunal.   Therefore,  in  view  of  the  

‘human problem’ involved in the matter, the Court laid down  

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a procedure for identification of the workmen with a view to  

do  complete  justice,  and  also  directed  reinstatement  with  

backwages @ 70% of the ‘normal earnings’ of the workmen  

at  piece  rate,  till  their  reinstatement.  In     

L.  Parameswaran  v.  Chief  Personal  Officer  and  ors.  

reported in 2008 (3) SCC 649, the appellant had worked in  

an ex-cadre post for a very long time, and was reverted to his  

parent post, though not immediately when the policy decision  

to repatriate ex-cadre employees was taken.  Working in the  

ex-cadre  post  for  a  long  time  did  not  confer  any  right  to  

continue  in  that  post  or  for  pay  protection.   Considering,  

however, the long time spent in the ex-cadre post, this Court  

specifically  invoked  Article  142  to  grant  him protection  of  

pay.   

27. In the facts and circumstances of the present case  

also, accepting that the termination did result on account of  

transfer  of  the  undertaking,  the  relief  to  be  given  to  the  

workmen will have to be moulded to be somewhat similar to  

that given to the other group of 10 workmen.  It will not be  

just and proper to restrict it to the rigours of the limited relief  

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under Section 25FF read with 25F of the I.D. Act. Prior to the  

termination  of  their  services  on  30.6.1985,  many  of  the  

workmen concerned had put in a service of about 10 years.  

Inasmuch as so many years have gone since then, most of  

them must have reached the age of superannuation.  In the  

circumstances, there cannot be any order of reinstatement.  

However, they will  be entitled to continuity of service, and  

although they have been receiving last drawn wages under S  

17  B  of  the  I.D  Act,  1947,  they  will  be  entitled  to  25%  

backwages and retirement benefits on par with the other 10  

workmen.  Award  of  25%  backwages  in  their  case  will  be  

adequate compensation.

28. Civil Appeal No.2566 of 2006 has been filed by  

the  above  referred  Trade  Union,  the  respondent  in  Civil  

Appeal No.2565 of 2006, against the same two judgments of  

the  Single  Judge  and  the  Division  Bench  of  Bombay  High  

Court.   The Union is  aggrieved by the award of  only  25%  

backwages  to  the  workmen,  and  seeks  an  order  of  100%  

backwages, contending that if the retrenchment is held to be  

bad in law, the backwages could not be restricted to anything  

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less  than  100% backwages.   Mr.  Navare  has  appeared  in  

support  of  this  appeal,  and  Ms.  Diwan  has  appeared  to  

oppose the same.  As can be seen from the narration of facts  

above, the Union is claiming reliefs for the present group of  

workmen on the basis of parity with the other group of 10  

workmen  viz.  Pandurang  Vishnu  Sandage  and  others,  and  

that submission has been accepted by us.  Those workmen  

have been awarded only 25% backwages.  That being so, the  

present  group  of  workmen cannot  be  awarded backwages  

more  than  what  have  been  awarded  to  the  other  10  

workmen.  The claim for award of higher backwages cannot,  

therefore, be entertained.

29. In  the  circumstances,  we  dispose  of  the  two  

appeals  against  the  impugned  judgment  and  order  of  the  

learned  Single  Judge  of  the  Bombay  High  Court,  dated  

14.9.2004,  in  Writ  Petition  No.2699  of  1993,  which  is  left  

undisturbed by the Division Bench, by passing the following  

order:-   

(i)  The 163 workmen concerned in the present matter, will  

be  placed  into  three  categories,  i.e.,  (a)  those  who  have  

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already reached the age of superannuation; (b)  those who  

are yet to reach the age of superannuation; and (c)  those  

who have expired.  They will be entitled to the reliefs in the  

following manner.

(ii)  The benefits to the workmen in category (a) will be till  

the date of their superannuation, for category (b) till the date  

of this judgment, and for those in category (c) till the date of  

expiry of the workman concerned.

(iii)  The workmen of all the three categories will be entitled  

to continuity of service until the date of superannuation, or  

until the date of this judgment, or until the date on which the  

workman concerned has expired, as the case maybe.

(iv)  All the workmen will be entitled to 25% backwages over  

and above  the  last  drawn wages  that  they  have received  

under  Section  17B  of  I.D.  Act.  The  backwages  shall  be  

calculated until the date as mentioned in clause (iii) above.

(v) All the workmen will be entitled to the same retirement  

benefits, if any (depending on their eligibility), as given to the  

other group of 10 workmen viz. Pandurang Vishnu Sandage  

and others.

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(vi) All the aforesaid payments shall be made directly to the  

workmen concerned or their heirs, as the case maybe, within  

three months from the date of this judgment.

(vii) There shall not be any order of reinstatement.

(viii) The appellants will, thereafter, file a compliance report  

in  the  Labour  Court  at  Sangli,  with  a  copy  thereof  to  the  

Registry of this Court.

(ix) Order accordingly.

(x) Registry to send a copy of this judgment to the Labour  

Court, Sangli.  

30. Both the appeals and all  the I.As.  moved therein  

stand disposed off as above, with no order as to costs.  

…………..…………………..J.  [  H.L. Gokhale  ]    ……………………………J.  [ Ranjan Gogoi]

New Delhi Dated : October 21, 2013

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