2005(1) ALL MR 809
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

B.P. DHARMADHIKARI, J.

Mahesh Agriculture Implements And Forgings Ltd.Vs.Member, Industrial Court, Nagpur & Ors.

Writ Petition No.877 of 1992,Writ Petition No.827 of 1992

4th November, 2004

Petitioner Counsel: Mr. R. B. PURANIK
Respondent Counsel: Mr. D. P. THAKRE,Mr. THENGRE

(A) Bombay Industrial Relations Act (1946), Ss.46(2), 42(1) - Notice of change - Rationalisation - Held, any rationalisation or efficiency system of work whether it brings about retrenchment or not is prohibited by S.42(1) unless and until there is a notice of change and corresponding steps are followed - Entire thrust of the Act is to see that machinery of mutual negotiations or conciliation is first resorted to by the aggrieved party without taking recourse to Labour Court or Industrial Court.

The employer who wants to effect any change in any matter specified in Schedule-II has to give a notice of change. Similarly, an employee desiring a change in respect of industrial matter not specified in Schedule-II or Schedule-III has to give a notice in prescribed form to the employer. Similarly, an employee desiring a change in respect of any order passed by employer under standing orders or any industrial matter arising out of the application or interpretation of standing orders or industrial matters specified in Schedule-III has to first give an approach notice and thereafter he can approach the Labour Court or industrial court, as the case may be. The phrases 'industrial matter', 'change' are all defined in Section 3 of the Act. Perusal of section 3(18) shows that the term 'industrial matter' has a very wide meaning. Section 46 defines what is illegal change. The entire thrust of the B.I.R. Act is to see that the machinery of mutual negotiations or conciliation is first resorted to by the aggrieved party without taking recourse to the Labour Court or the Industrial court directly. If provisions of Schedule-II are looked into, it is seen under item 1 and item 2 thereof, reduction in number of persons or posts, whether on permanent basis or semi-permanent basis also requires employer to give a notice of change. Entry 4 of the Schedule needs to be understood in this background. If the said entry is held as not attracted unless and until there is introduction of some new machine or new technique, the very purpose of making provisions in Schedule II vide item 1 item 2 as also item 4 shall stand frustrated. What cannot be done under Schedule II Item 1 or Schedule II Item 2 would then become possible by taking recourse to Schedule II, Item 4. It is to be understood that in Industrial Disputes Act, rationalisation, standardization or improvement of plant or technique is prohibited without giving notice of change by employer, if it is likely to lead to retrenchment of workmen. As against this, there is no such rider of "retrenchment" in Schedule II item 4 of BIR Act. Thus, any rationalisation or efficiency system of work whether it brings about retrenchment or not is prohibited by Section 42(1) unless and until there is a notice of change and the corresponding steps are followed. Schedule-II item 4 prohibits such change even if it be by way of experiment or otherwise. Thus, the entry is made very wide by use of such words. The effort of petitioner to reduce its sweep by invoking principles of "noscuntur a sociis" are therefore unwarranted. It would result in leaving loopholes in otherwise compact scheme, and as already stated above, there is no doubt about the legislative intent in incorporating item 4 in Schedule-II in widest possible form. The word "rationalisation" itself includes act of bringing the industry into accord with up-to-date methods of organisation and operation or efforts made to achieve greater efficiency and economy or act of making it more efficient, so as to reduce or eliminate waste. 2004(3) Mh.L.J. 650 - Rel. on. 1972(I) LLJ 657 - Distinguished. [Para 16]

(B) Industrial Disputes Act (1947), S.33-C(2) - Scope and applicability of - Existence of employer and employee relationship - Employee neither terminated from service nor allowed to work - Held, obligation to pay salary to such employee continues and there is no question of such employee obtaining any adjudication of existing right before filing an application under S.33-C(2) of the Act.

In the present case, the employer could have taken disciplinary action to its logical end and could have terminated the respondent because of his alleged deliberate or wrongful absence or would have concluded that he has abandoned the service. However, admittedly, no such steps have been taken and no reason has been assigned for the same by petitioner. When the relationship of employer and employee subsists and it is proved on record that willing employee was prohibited by employer from performing his duties, the obligation to pay salary to such employee continues and there is no question of such employee obtaining any adjudication of existing right before filing an application under Section 33-C(2) of the Industrial Disputes Act. 2004(2) Mh.L.J. 816 - Rel. on. [Para 20]

Cases Cited:
M/s. Chhotabhai Jethabhai Patel & Co. Vs. The Industrial Court, Maharashtra, Nagpur Bench, Nagpur, 1972(I) L.L.J. 657 [Para 7,18]
State of Bombay Vs. Hospital Mazdoor Sabha, 1960(1) LLJ 251 [Para 7,13]
Iypunny (C.K.) Vs. Madhusudan Mills, 1964(1) LLJ 197 [Para 7,21]
2002(2) Mh.L.J. 247 [Para 8,21]
2004(3) Mh.L.J. 529 [Para 8,21]
2002(2) Mh.L.J. 150 [Para 8,21]
2004(2) Mh.L.J. 816 [Para 8,21]
2004(3) Mh.L.J. 650 [Para 17]


JUDGMENT

JUDGMENT :- In this petition, filed under Articles 226 and 227 of Constitution of India, the petitioner/employer challenges the appellate judgment delivered by respondent no.1 - Member, Industrial Court, Nagpur, under Section 84 of Bombay Industrial Relations Act, 1946 (hereinafter referred to BIR), thereby upholding the order of 2nd Labour Court, Nagpur dated 27-08-1987 delivered in Application (BIR) No.112/1984. By this order, the Labour court has found that the action of petitioners in taking away the work of Chowkidar/Watchman from respondent no.3/employee, and entrusting the work of Supervisor to him, and changing his occupation/designation in the Attendance Card, is an illegal change. The 2nd Labour Court has directed the petitioners to withdraw that illegal change.

2. The facts in brief in this respect can be stated as under :

(i) The petitioner is a public limited company and has got its establishment at small Factory area Bhandara Road, Nagpur. The petitioner contends that respondent no.3 was engaged by it as a general worker from 1-6-1976 and subsequently he was given designation and work of a security guard. It is stated that the petitioners had their own private security for sometime, but it found that the employees like respondent no.3, who did not have special training or knowledge about the work of security, could not discharge that obligation properly and in view of the growing security hazards and thefts, the petitioners decided to engage a security agency, which would provide professional trained personnels as security guards. The said work was entrusted to an agency known as Hariganga Security Services Ltd.. At that time, the respondent no.3 was working in Head Office of petitioners as security guard. In view of the entrustment of said work to a private agency, not only the respondent no.3, but all other security guards in the employment of petitioners were rendered surplus and in order to protect them, the petitioners offered them an alternative employment by extending salary protection. The respondent no.3, was, therefore, transferred from Head Office to factory of petitioners w.e.f. 14-6-1984. He was at that time given an understanding that alternative work would be provided to him without affecting his salary. Respondent no.3, according to the petitioner, initially agreed to this and actually started doing the alternate work, i.e. work of supervisor. However, on 16-8-1984, for the first time, said respondent gave an approach notice and lodged protest about the change of his work. He then proceeded to file an application under section 78 of BIR Act on 28-8-1984, in which he alleged that after his transfer to factory from Head Office, he was required to perform the work of coolie and sought a declaration that it was illegal and constituted demotion. Respondent no.3 claimed declaration that such a change in his occupation made in his attendance card amounted to an illegal change. The petitioners filed their reply/written statement and the learned 2nd Labour Court, Nagpur, after recording evidence of parties on 24-6-1985, dismissed the said BIR application of respondent no.3. The petitioner/employer points out that before the Labour Court, in his deposition, respondent no.3 has stated that he was removed from service w.e.f. 24-9-1984 and the said respondent was continuously absent w.e.f. 22-9-1984. The petitioner points out that on behalf of the management, one Mr. Mohammed Firoz Mohd. Sadiq was examined as a witness.

3. After dismissal of his BIR application, respondent no.3 preferred an appeal to the respondent no.1 - Industrial Court, Nagpur and the learned Member of the Industrial Court, Nagpur was pleased to remand the matter back to the Labour Court to decide it on merits. The learned Labour Court had earlier found that the services of respondent no.3 are already terminated and hence the matter before it, which did not involve adjudication of validity of said termination order or otherwise, had become infructuous. While directing the Labour Court to decide the matter afresh on merits, the learned Member of the Industrial Court permitted both the parties to amend their respective pleadings. The petitioner points out that it amended its written statement to point out that respondent no.3 continuously absent from his duties and had actually taken up the alternate employment. It also took a plea that respondent no.3 had abandoned the services. The respondent no.3 did not effect any amendment and did not lead any new evidence. The petitioner examined its witness to point out the abandonment by respondent no.3.

4. The 2nd Labour Court thereafter passed the order on 27-8-1987, holding that the petitioner has committed an illegal change by entrusting the work of Supervisor to respondent no.3. The Labour Court, however, found that such a declaration can be granted only if the said respondent is in service and accordingly qualified the relief granted by it. The petitioners thereafter filed an appeal under Section 84 of BIR Act before the Respondent no.1 - Industrial Court. The learned Member of the Industrial Court, on 2nd of April, 1992, dismissed that appeal of petitioner and the said order has been challenged before this Court. This Court has on 21st April, 1992 admitted the writ petition for final relief and granted an interim stay in favour of the petitioner, thereby the effect, operation and implementation of the impugned orders passed by the Industrial Court and the Labour Court has been stayed. The said interim order continues to operate even today.

5. In view of these declarations, the employee had also filed an application under Section 33-C(2) of Industrial Disputes Act and claimed monetary benefits amounting to Rs.25,285=50 for the period from 1-8-1984 till 30th April, 1988. He has pointed out that as a Chowkidar he was getting the wages at Rs.561=90 per month and for the period mentioned above, during which he was not given that work and the work of supervisor was sought to be taken from him. He was entitled to said amount towards salary. This application under Section 33-C(2) was also opposed by the petitioner by filing their reply. The petitioner pointed out that respondent no.3 himself has remained absent from duty from 24-9-1984 and, therefore, a charge-sheet dated 9-8-1985 was served upon him for this absence. A departmental enquiry was then conducted and ultimately for this unauthorised and illegal absence, a punishment of suspension without pay for four days from 1-4-1986 to 4-4-1986, was imposed upon him. In spite of this, respondent no.3 continued to remain absent and another charge-sheet dated 14-2-1986 was served upon him for his further unauthorised absence from 10-8-1985 to 14-2-1986. It is contended that as the respondent no.3 himself voluntarily kept away from duties, no relief can be granted in his favour under Section 33-C(2). The said matter was before the 3rd Labour Court, Nagpur and by its order dated 26-9-1991, the Labour Court found that the respondent no.3 was not dismissed and there was already a declaration in his favour that foisting the work of Supervisor upon him constituted an illegal change. It, therefore, allowed the application under Section 33-C(2) and ordered issuance of Recovery Certificate for an amount of Rs.25,285=50 for above said period. The petitioners have filed writ petition No.872/1992 against this order and on 21st April, 1992, this writ petition has been admitted and interim stay of operation, effect and implementation of the order dated 26-9-1991 passed by Labour Court has been granted. It is necessary to point out that the petitioner in Writ Petition No.877/1992 is the petitioner in Writ Petition No.872/1992. The employee, who is the respondent no.3 in the present writ petition, i.e. writ petition no.877/1992 is the respondent no.2 in writ petition no.872/1992. As the grievance made and the parties are common in both these petitions, both these petitions can be conveniently adjudicated upon together and hence were heard accordingly. Advocate R. B. Puranik argued the matter for petitioner, while Advocate Thengre appeared for respondent/employee. Learned AGP appeared for the respective Tribunals in respective writ petitions.

6. Advocate Puranik stated that on 31-3-1982 the respondent no.3 was transferred from factory to Head Office and on 14-6-1984 he was transferred back to factory. He contends that the respondent no.3 continued to discharge the work of supervisor, and for the first time, on 16-8-1984, issued approach notice about change of designation. He points out that within 12 days thereafter, he filed an application under Section 78 of BIR Act. He contends that on 10-4-1985 while leading the evidence before 2nd Labour Court, Nagpur in BIR proceedings, the respondent no.3 himself stated that he has been terminated on 24-9-1984 and in this background on 25-6-1985, the Labour Court rejected his application. He points out that subsequently after remand, the Labour court allowed his BIR application on the ground that there was illegal change falling in Schedule-II, Item-4 of BIR Act. He states that the Labour court has found that there is rationalisation or change by adopting other efficiency system of work and has, therefore, granted relief to the respondent no.3. He points out that the Labour Court has granted only Prayer-(ii) out of three prayers made by respondent no.3 in his application. He points out that first prayer in regarding the work of coolie and the third prayer is regarding taking the work of Chowkidar from contractors. He contends that both these reliefs have not been granted by the Labour Court and in such circumstances, the relief granted is only in terms of prayer (ii), i.e. the change of designation as general worker in Attendance Card. He further states that the Labour Court has held that no notice before effecting such change was given. However, he points out that contention of respondent no.3 before Labour Court was of illegal change falling under Schedule-II, Item 8 of BIR Act, i.e. introduction of new rules of discipline or alteration of existing rules. He further states that the Labour Court did not grant the relief as prayed for in prayer clauses (iii) of BIR application to respondent no.3 as respondent no.3 did not join the contractor, i.e. M/s. Hariganga Security Services, as party to BIR proceedings. He states that same logic ought to have been extended further and relief granted under prayer clauses (ii) is inconsistent with the relief refused by Labour Court. He states that if prayer (iii) could not be granted, prayer (iv) should not have been granted. He further argues that there is no declaration sought that entrustment of work of supervisor to respondent no.3 is an illegal change. He states that the BIR proceedings came to be filed only after the change of designation was carried out in the Attendance Card of respondent no.3, w.e.f. 1-8-1984. From said date, he has been shown as general worker.

7. Advocate Puranik invites attention to provisions of Schedule-I, Item l-a of BIR Act to contend that entry in employees tickets or cards is covered by the Standing Orders and it is individual grievance. He contended that it is not covered by Schedule-II, item 4 of BIR Act. He further states that Schedule-II of BIR Act contains items, which relate to collective bargaining and hence individual relief could not have been granted to respondent no.3 under it. He further states that the grievance of respondent no.3 was that he was assigned some other work than that of Watchmen and he was transferred. He argues that it is covered by Schedule-III, Item 2 of BIR Act and in view of the provisions of Section 42(4), if respondent no.3 wanted any change about it, he ought to have given an approach notice, as required by Proviso to Section 42(4) of the BIR Act. He further invites attention to provisions of Rule 53 of The Bombay Industrial Relations Rules, 1947, and states that after serving such approach notice, an employee has to wait for fifteen days. He also invites attention to provisions of Section 78(l)-A(a)(i) & (iii) read with Explanation and states that no dispute in this respect had arisen on 28-8-1984 when the application under Section 78 of BIR Act was filed by respondent no.3, as the approach notice is itself dated 16-8-1984. He, therefore, states that cognizance of dispute taken by learned Labour Court was premature and Labour Court ought to have dismissed the application. He relies upon a judgment reported at 1972(I) L.L.J. 657 (M/s. Chhotabhai Jethabhai Patel & Co. Vs. The Industrial Court, Maharashtra, Nagpur Bench, Nagpur and Ors.) in support of his contentions. His next argument is about the relevancy of Item (4) of Schedule-II. He states that the rationalisation, contemplated by said item is not in its wider or broader sense and the meaning of said word is controlled by the later part of the clause, i.e. "other efficiency system of work". He states that the rule "noscuntur a sociis" must be followed and he also invites attention to similar item used in Industrial Disputes Act, viz. Schedule-IV, Item-10. He states that unless and until there is introduction of some new machinery or some new technique, Schedule-II of Item-4 of BIR Act, is not attracted. He states that merely by adding contractor's security, there is no rationalisation or other efficiency system of work. His argument is there has to be a corresponding change in the machinery or technique of production used by employer and as there is no such change, in the facts and circumstances of this case, he contends that the finding reached by the Labour Court, and maintained by the Industrial Court, is totally perverse. To demonstrate application of rule noscuntur a sociis he relies upon a judgment reported at 1960(1) LLJ 251 (State of Bombay and Ors. Vs. Hospital Mazdoor Sabha and Ors.). In so far as other writ petition, i.e. writ petition no.872/1992 is concerned, he points out that the demand in said proceedings made by respondent no.3 is from the date of change in designation made in his attendance card and not from the change of work. He further points out that in written statement there was a specific defence of absence and abandonment with contention that respondent no.3 has joined the other employer by name M/s. Arun Automobiles. He contends that the respondent no.3/employee (respondent no.2 in writ petition no.872/1992) did not enter the witness box and petitioner also, therefore, did not enter the witness box. He states that the issue before the Labour Court was whether the services of respondent no.3 were terminated or whether he had abandoned his services. He states that there was absolutely no justification for respondent no.3 to refuse to join the services. He points out the provisions of Section 78(1)-C(a) to point out that it was possible for respondent no.3 to seek appropriate interim relief and to join the duties. He further points out that under Section 97(1)(c), strike, which is resorted to only because the employer has made an illegal change, is declared to be an illegal strike. He further points out that section 106 of BIR Act also provides penalty against employer for illegal change. Thus, he contends that in such circumstances, respondent no.3 could not have refused to work and could not have kept away from duty only because the petitioner has resorted to the so called illegal change. He urges that unless and until there is previous adjudication in this respect, the employee had no existing right to invoke machinery under section 33(C)(2) of Industrial Disputes Act. He states that he did not work and, therefore, was not entitled to any salary during the said period. He states that principles of "no work no pay" ought to have been considered by the Labour Court. He also relies upon the judgment of the Apex Court, reported at 1964(1) LLJ pg. 197 (Iypunny (C.K.) Vs. Madhusudan Mills and Anr.) in support of his arguments.

8. As against this, Advocate Thengre, appearing for respondent/employees argued that the respondent/employee was not given his usual work despite notice and the employer did not re-call illegal change. He points out that the witness for management has stated that there is difference in work of Watchman and Supervisor and the respondent/employee had told the management that he was ready to work as Watchman. He, therefore, contends that respondent/employee was always ready and willing to perform his part of obligation and stand of petitioner that he was absent from duty is incorrect and misconceived. He further states that it is not the case of management that this respondent was terminated at any point of time. He further states that plea that Labour Court lacked jurisdiction, as the application, as presented was premature, was not raised either before the Labour Court or Industrial Court. He relies upon the judgments reported at 2002(2) Mh.L.J. 247; 2004(3) Mh.L.J. 529; 2002(2)Mh.L.J. 150; and 2004(2) Mh.L.J. 816, in support of his contentions.

9. The arguments of parties make it clear that there is no dispute that present respondent no.3 was working as Security Guard or Watchman and he continued to work in that capacity till his transfer from Head Office to factory. The witness for management has stated that on 14-6-1984, respondent no.3 came to factory from Head Office and at that time work of security in factory was being done by contractor. He has stated that since 1983, the said work of security was given to the contractor. As against this, the respondent no.3 has deposed that though from 15-6-1984 he was given the work of supervisor, in fact, he was taking the rounds of the factory, meaning thereby he was working as a security employee. He has denied that he has accepted the work of supervisor. He further states that between 15-6-1984 and 1-8-1984 he had given notice to petitioner to give him back the work of Watchman. He has further stated that from 1-8-1984 his designation in attendance card was changed as that of general worker and hence he filed the BIR application. It will thus be seen that respondent no.3, for the first time, communicated something in writing in August, 1984 when his designation in attendance card was changed for the first time. The said designation was required to be changed as the work of security was not retained by the petitioners and it was handed over to a private contractor, viz. M/s. Hariganga Security Services. Thus, the cause of action to challenge all this accrues in favour of respondent no.3, for the first time, in August, 1984 when his designation was changed. Thus, arguments advanced by learned counsel for petitioner needs to be understood in this background.

10. The change of designation in attendance card or employees ticket is not the subject matter falling under Schedule-I, Item 1-a of BIR Act. Similarly, such change is not an assignment of work or transfer of respondent no.3 within the establishment. It is noteworthy that earlier said respondent was working in factory and was taken to Head office and in June, 1984 was again brought back to factory. He was assigned the work as general worker for the first time in August, 1984, but it was on account of the fact that the work of security was not available with the petitioners. The said work had ceased on account of introduction of contractor by the petitioner. Hence, the basic reason for all this was the introduction of security guard on contract basis by petitioners. In such circumstances, the provisions of Schedule-III, Item-2 of BIR Act, were also not applicable. The learned Labour Court has correctly resorted to provisions of Schedule II, item 4 to consider the grievance made by respondent no.3.

Schedule-II, item (4) reads as under :

"Rationalisation or other efficiency system of work, (whether by way of experiment or otherwise)."

11. The learned Labour Court has found that by introducing the more efficient security guards and by giving said work to a security agency on contract, the petitioners have resorted to a change which is prohibited by Schedule-II of item 4. In this respect, perusal of provisions of Section 42 becomes relevant. Under Section 42(1) any employer intending to effect any change in respect of an industrial matter specified in Schedule II have to give notice of such intention in the prescribed form to the representative of employees. He has to forward a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. He has to affix a copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work. Admittedly, in this case, such procedure has not been followed. It is thus apparent that in view of the provisions of Section 46(2), the change, viz. introduction of security guards through security agency is an illegal change. On account of this basic unilateral and illegal change effected by petitioners, the petitioners were later on attempting to force the respondent no.3 to perform some other work and also were constrained to change his designation in his attendance card. Thus, the change in his ticket or card is not the primary effect and action by employer. Similarly, assignment of work of supervisor or his transfer back to factory, is not again primary action taken by employer. The first and primary step in the process initiated by employer is, as found by Labour Court, rationalisation or other efficiency system of work prohibited by item 4 of Schedule-II. Thus, the employer effected illegal change and in order to perpetrate it further, it tried to change designation of respondent no.3 in his attendance card and also tried to assign him some other work. Any plain and simple action of employer about attendance card or ticket of employee, or about transfer and assignment of work which is independent and distinct and not emanating from any other change will be required to be scrutinised in isolation. But if it has roots in previous change, such previous change becomes the object of scrutiny. The approach of Labour Court is thus just and proper. The argument of learned counsel for petitioner that, therefore, the matter is covered by the Standing Orders, i.e. Schedule-I or Schedule-III of item 2 of BIR Act, is misconceived and is liable to be turned down.

Thus, the action of petitioners in changing the designation of respondent no.3 is not in pursuance of Standing Orders framed under Schedule-I and it is also not an act of assignment of work or transfer of respondent no.3 within the establishment covered by Schedule-III Item-2. Schedule-III contains various items, which all have general application and its effect is not restricted to any individual worker or employee. Here the petitioners are trying to force work of supervisor upon the respondent no.3 individually. On this account also, said Schedule-III or items therein may not have any application to the facts of this case. As Schedule-III of item 2 has no application here, there is no question of respondent no.3 giving any approach notice, as contemplated by Section 42(4) and hence the argument of petitioner, that application filed by respondent no.3 before the Labour Court on 28-8-1984, is itself premature, unsustainable and misconceived.

12. The Labour Court has considered the aspect of illegal change in para 11 of its judgment and has found that in view of the provisions of Section 46(4), it is an illegal change. The Labour Court has considered the provisions of Section 46 and has found that it is not the case of respondent no.3 that the petitioner has made any change in Standing Order or it has made any change in contravention of terms of any settlement effective award or registered agreement or any effective order or decision of a Wage Board. Therefore, the case of respondent no.3 is not covered under Sub-section (3) of Section 46. It has found that it is covered by Section 46(2) of BIR Act and has found that the change made by employer is without giving any notice of change. It has also rejected the arguments of respondent no.3 that change effected by petitioner is covered by Item 8 of Schedule-II and has thereafter found that it is covered by Item 4 of Schedule-II. This aspect is also considered by the learned Member of the Industrial Court in para 10 of its judgment and it has affirmed the findings reached by the Labour Court. The Industrial Court has negatived the arguments of change falling under Schedule-III, Item 2 and has found that the argument, that application filed by respondent no.3 before the Labour Court was premature, was not raised before Labour Court and has further observed that even otherwise there is no merit in such argument. In para 10 of its judgment, it is held that : petitioner decided to engage services of professionally trained persons and decided to give another kind of work to respondent no.3 and others, is an industrial matter specified in Schedule-II. It has also considered the plea of management that it decided to engage services of professionally trained persons in view of the growing security hazards and held that assigning security work to such security agency clearly shows that it is an industrial matter specified in Item 4 of Schedule II. Thus, both the courts below have concurrently held that it is an illegal change prohibited by Schedule-II of Item 4 of BIR Act.

13. The argument of petitioner that Schedule-II, item 4 will not be attracted unless and until there is some change made in the machinery, i.e. by introducing new machine or new technique also does not appear to hold any water. The learned Counsel for petitioner has placed reliance upon a judgment reported at 1960(1) LLJ pg. 251. In this case the Hon'ble Apex Court was concerned with definition of 'industry' under Section 2(j) of the Industrial Disputes Act. The argument before the Apex Court was that the words 'calling', 'service', 'business' etc. used in section 2(j) cannot be interpreted in wider sense and for that purpose, it was contended that rule "noscuntur a sociis" must be employed. The said rule, according to Maxwell means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. Both such words derive their colour from each other. In other words, one which is of more general application stands restricted due to the meaning of less general word used with it. The Hon'ble Apex Court has held that "noscuntur a sociis" is merely rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the definite words correspondingly wider. It is only when the intention of legislature in assigning wider words with words of narrower significance is doubtful or otherwise not clear that the present rule of construction can be applied. Here the petitioners have not demonstrated that the wider words are associated with any word having a narrower meaning in Schedule-II, Item 4. It is also not pointed out that the intention ox legislature is either doubtful or not clear. If one peruses the said entry, i.e. Schedule-II, item 4, it is apparent that the entry is very clear. Giving a restricted or narrower meaning to the word 'rationalisation' or to the words 'other efficiency system of working' used in Schedule-II may, on the other hand, defeat the very purpose of incorporating various entries in Schedule-II.

14. Advocate Puranik has relied upon the dictionary meaning of word "rationalisation", as given in The New International Webster's Comprehensive Dictionary. The said dictionary gives the meaning of word "rationalisation' as under :

"(i) the act or process of rationalising;

(ii) the process of devising acceptable reasons for desires, emotions, acts, beliefs, or opinions which cannot be creditably justified to oneself or to others in terms of their actual motives.

(iii) the act of bringing an industry into accord with up-to-date methods of organisation and operations."

He contends that therefore the act of bringing an industry into accord with up-to-date methods of organisation and operation by introducing some new machinery or some new technique is a condition precedent if Schedule-II, item 4 is to be invoked. At this stage, it would be convenient to find out the meaning given to said phrase even in other dictionaries. Oxford Reference Dictionary (1987 edition) describes the word "rationalization" as : to offer a reasonable but spacious explanation of behaviour or attitude; to make logical and consistent; to make an industry more efficient by re-organising it; to explain by rationalism, and Chambers 20th Century Dictionary gives the meaning of said term as : to make rational, to free from rational quantities, to confirm to reason to reorganise scientifically to interpret rationalistically to substitute conscious reasoning for anxious motivation in explaining to organise an industry so as to achieve greater efficiency and economy.

15. Entry in Schedule-II, item 4 is already reproduced above. The provisions of Industrial Disputes Act also include similar phrase in its Schedule IV, Item 10, which reads as under :

"Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen."

Thus, Schedule-IV is required to be read with provision of Section 9-A of Industrial Disputes Act, which require an employer to issue notice of change before initiating any such action. It is in this background the provisions of Schedule-II, item 4 need to be looked into. The BIR Act has got three Schedules. Schedule-I deals with Standing Orders and Chapter VII containing Sections 35 to 41 are relevant in this respect. Perusal of Schedule-I and the items appearing therein will show that the items are mostly pertaining to routine affairs and service conditions of employees. Schedules-II and III are relevant for the purpose of this case. Both these Schedules make reference to Section 42.

The provision of Section 42 reads as under :

"42. Notice of change

(1) Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form to the representative of employees. He shall send a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. He shall also affix copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other place as may be directed by the Chief Conciliator in any particulars case.

(2) Any employee desiring a change in respect of an industrial matter not specified in Schedule I or III give a notice in the prescribed form to the employer through the representatives of employees, who shall forward a copy of the notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed.

(3) When no settlement is arrived at in any conciliation proceeding in regard to any industrial dispute which has arisen in consequence of a notice relating to any change given under Sub-section(1) or Sub-section (2), no fresh notice with regard to the same change or a change similar in all material particulars shall be given before the expiry of two months from the date of the completion of the proceeding within the meaning of section 63. If at any time after the expiry of the said period of two months, any employer or employee again desires the same change or a change similar in all material particulars, they shall give fresh notice in the manner provided in Sub-section (1) or (2), as the case may be.

(4) Any employee (or a representative union) desiring a change in respect of (i) any order passed by (the) employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders, or (iii) an industrial matter specified in Schedule III (except item (5) thereof) shall make an application to the Labour Court and as respects change desired in any industrial matter specified in item 5 of Schedule III, to the Industrial Court) :

Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period."

16. In short, it is apparent that the employer who wants to effect any change in any matter specified in Schedule-II has to give a notice of change. Similarly, an employee desiring a change in respect of industrial matter not specified in Schedule-II or Schedule-III has to give a notice in prescribed form to the employer. Similarly, an employee desiring a change in respect of any order passed by employer under standing orders or any industrial matter arising out of the application or interpretation of standing orders or industrial matters specified in Schedule-III has to first give an approach notice and thereafter he can approach the Labour Court or industrial court, as the case may be. The phrases 'industrial matter', 'change' are all defined in Section 3 of the Act. Perusal of section 3(18) shows that the term 'industrial matter' has a very wide meaning. Section 46 defines what is illegal change. Some discussion in this respect is already made above. However, it is thus clear that the entire thrust of the Act is to see that the machinery of mutual negotiations or conciliation is first resorted to by the aggrieved party without taking recourse to the Labour Court or the Industrial court directly. If provisions of Schedule-II are looked into, it is seen under item 1 and item 2 thereof, reduction in number of persons or posts, whether on permanent basis or semi-permanent basis also requires employer to give a notice of change. Entry 4 of the Schedule needs to be understood in this background. If the said entry is held as not attracted unless and until there is introduction of some new machine or new technique, the very purpose of making provisions in Schedule II vide item 1 item 2 as also item 4 shall stand frustrated. What cannot be done under Schedule II Item 1 or Schedule II Item 2 would then become possible by taking recourse to Schedule II, Item 4. Thus, if arguments of petitioner are accepted, the entire scheme of Schedule-II on these lines and the purpose of section 42(1) shall stand defeated. It is to be understood that in Industrial Disputes Act, rationalisation, standardization or improvement of plant or technique is prohibited without giving notice of change by employer, if it is likely to lead to retrenchment of workmen. As against this, there is no such rider of "retrenchment" in Schedule II item 4 of BIR Act. Thus, any rationalisation or efficiency system of work whether it brings about retrenchment or not is prohibited by Section 42(1) unless and until there is a notice of change and the corresponding steps are followed. It is to be further noted that Schedule-II item 4 prohibits such change even if it be by way of experiment or otherwise. Thus, the entry is made very wide by use of such words. The effort of petitioner to reduce its sweep by invoking principles of "noscuntur a sociis" are therefore unwarranted. It would result in leaving loopholes in otherwise compact scheme, and as already stated above, there is no doubt about the legislative intent in incorporating item 4 in Schedule-II in widest possible form. The word "rationalisation" itself includes act of bringing the industry into accord with up-to-date methods of organisation and operation or efforts made to achieve greater efficiency and economy or act of making it more efficient, so as to reduce or eliminate waste. The learned Member of the Industrial Court has already found that his petitioners found the security guards with it to be untrained and unsuited to meet its security requirement and hence decided to have more proficient security and hence the work of security was given to trained security personnel by hiring them through a security contractor. Thus, in order to avoid loss on account of theft, pilferage etc., efficient security system has been introduced and alleged untrained security guards like present respondent no.3, have been removed. It is nothing but an act of rationalisation. Even if one for a moment accepts the argument of petitioners about the requirement of involvement of some plant and machinery or technique thereof in the process of regularication, entry 4 of Schedule-II of BIR Act, also uses the word, i.e. "other efficiency system of work". The later words "other efficiency system of work" are more wide in their sweep and definitely covered the field which is argued is left out by the word rationalisation. In item 4, word rationalisation and word "other efficiency system of work" are not susceptible of analogous meaning but they are coupled together deliberately to show the wide sweep, which said item possesses and the said arrangement by legislature is deliberate. Here the word more general in meaning is not followed by word which has less general meaning, but it is vice versa. The more wider word is deliberately used later to enhance the sweep of item. The argument of petitioner to use "noscuntur a sociis" to cut down wide sweep of said item 4 is therefore misconceived and unsustainable.

17. The learned Single Judge of this Court in the judgment reported at 2004(3) Mh.L.J. 650 has considered the meaning of phrases "rationalisation". The said judgment, in fact, considers the effect of discontinuation of entire imparting section of company on account of increasing and printing charges, postage, and has held that when the entire work itself is discontinued, it does not amount to rationalisation and hence notice under Section 9-A of Industrial Disputes Act, was not required. The relevant discussion in this respect is made by the learned Single Judge in para Nos.9 to 15 and the learned Single Judge has found that rationalisation means to organise scientifically or to organise in manner conducive to achieve greater efficiency and economy. The said meaning given to word 'rationalisation' is applicable even in the facts and circumstances of this case.

18. As already held above, Schedule III, item 2 dealing with assignment of work and transfer of workers within establishment, has no application in the facts and circumstances of the case, hence, reliance placed upon the ruling of Hon'ble Apex Court, reported in 1972(1) LLJ 657, is misconceived and said ruling has no relevance here. It was not necessary to respondent no.3 herein to wait for fifteen days after giving the notice dated 16-8-1984. The said notice was only a protest against the illegal change carried out by petitioners in violation of Section 42(1) read with Section 46(2) and Schedule II, item 4 of BIR Act.

19. Advocate Thengre for respondent no.3 has supported the impugned orders and has contended that there is no error apparent or error of jurisdiction so as to enable this Court to exercise an extraordinary jurisdiction. He has contended that both the courts below have taken a concurrent view and there is no need to interfere here in writ jurisdiction. The said contention of Advocate Thengre needs to be accepted.

20. While appreciating the arguments of Advocate Puranik in writ petition no.872/1992, it is to be noted that the witness for management (petitioner) has no where stated that the services of respondent no.3 have been terminated on the ground of his alleged long absence or any action has been taken against him so as to enable the petitioner to contend that they are not liable to pay any salary to him. The said witness has stated that only in relation to his absence from 2-9-1984, a charge-sheet was given and punishment of suspending him for four days, was imposed upon said respondent. For his subsequent absence, the petitioner received only enquiry report, but they have not imposed any punishment upon respondent no.3. The said witness admitted that the employee had met him and communicated him that he was ready to perform the work as Watchman. The said witness also admits that there is difference in the work of Watchman and Supervisor. The said witness has further accepted that petitioners were not ready to give the work of Chowkidar to respondent no.3. Thus, the entire controversy about the alleged absence of respondent no.3 needs to be understood in this background. As the petitioners wanted the respondent no.3 to work either as Supervisor or on some other post (except that of Watchman), it appears that respondent no.3 stopped reporting for these other duties. The petitioners admittedly had taken defence that they have and had no work of security to be given to said respondent. Thus, it is clear that petitioners were not ready to provide the said respondent his work and were using their position as employer as to force him to work on some other service. When the petitioners themselves admit that they have not terminated the services of respondent no.3, it is apparent that the relationship of employer and employee still subsists. If that be the position, no fault can be found with the order of Labour Court, by which the Labour Court has allowed his claim for wages for the period from 1-8-1984 to 30th April, 1988. The employer could have taken disciplinary action to its logical end and could have terminated the respondent no.3 because of his alleged deliberate or wrongful absence or would have concluded that he has abandoned the service. However, admittedly, no such steps have been taken and no reason has been assigned for the same by petitioner. When the relationship of employer and employee subsists and it is proved on record that willing employee was prohibited by employer form performing his duties, the obligation to pay salary to such employee continues and there is no question of such employee obtaining any adjudication of existing right before filing an application under Section 33-C(2) of the Industrial Disputes Act. The observations made by he 2nd Labour Court, Nagpur in clause 2 of its order (operative part), dated 27-8-1987, need to be understood accordingly. The learned Labour Court has granted the declaration that changing the occupation of respondent no.3 in attendance card amounts to an illegal change and directed the petitioner to withdraw it by giving original work of Chowkidar to said respondent if the respondent no.3 is in employment of petitioners. However, from fact discussed above and also the order of Industrial Court, it is apparent that the petitioners themselves have not contended that he is not in employment. They have not pointed out that they have terminated his services from any particular date and have not produced on record any such termination order.

21. Advocate Puranik has relied upon a judgment of Division Bench of this Court, reported at 1964(1) LLJ 197, to contend that the recourse to provision of Section 33-C(2) was not permissible in the facts and circumstances of the case. Perusal of this ruling however shows that the Division Bench has found that the provision of Section 33-C(2) of Industrial Disputes Act do not in any manner encroach upon the BIR Act and both the provisions can co-exist without affecting each other. The Division Bench has held that remedy under Section 33-C(2) is an additional or supplementary remedy to the one available under BIR Act. I do not find as to how this ruling assists the case of petitioner in any manner. As against this, Advocate Thengre has relied upon the Division Bench ruling reported at 2002(2) Mh.L.J. 247 to contend that respondent no.3 has neither been terminated from service nor was allowed to work and this action is found to be illegal. He contends that, therefore, direction to pay salary for this period is perfectly legal and valid. In the above ruling the Division Bench was concerned with issue of limitation and has held that where there is no order of termination, provision of Section 78(1)A(a) of BIR Act, would be applicable and approach notice cannot be said as barred by limitation as it is a dispute which is of recurring nature and covered by Schedule-III, item 6 of BIR Act. Here respondent no.3 had not sought any such declaration and relief under Schedule-III, item 6 and this ruling, therefore, has no application. The next ruling, i.e. 2002(2) Mh.L.J. 150 considers the case of an employee, who has been transferred and his salary is fixed to his disadvantage. The employee was being paid in higher pay scale at Pune and on his transfer to Mumbai, he was placed in lower pay scale. The learned Single Judge found that the fitment was not proper and as such the Labour Court was right in directing the petitioners to pay the dues on account of such incorrect fixation. The learned Single Judge has held that the actual salary payable to employee on transfer was not mentioned in the appointment letter or in Circular regarding transfer and there was a dispute in relation to grade applicable to him. The learned Single Judge has held that the learned Labour Court has under Section 33-C(2) jurisdiction to entertain such grievance. Mr. Thengre further relied upon the judgment of learned Single Judge reported at 2004(2) Mh.L.J. 816 to contend that application, as filed by respondent no.3 under Section 33-C(2) was within the framework of said section. In view of the discussion made herein above, it is not necessary for this Court to again consider this case and to hold in favour of said respondent.

22. Advocate Puranik has argued that respondent no.3 did not seek any interim relief against the petitioner in the proceedings before the Labour Court, and in view of the provisions of Section 97 and Section 106 of BIR Act, he could not have refused to perform the other work. According to him, respondent no.3 deliberately kept away from duty and, therefore, principle of 'no work no pay' is applicable. However, from the discussion made herein above, it is clear that respondent no.3 was always ready and willing to perform his part of duty as Watchman and he was prohibited by petitioners from discharging that work. In such circumstances, merely because he did not try to obtain any interim relief from the Labour Court, that does not mean that his application under Section 33-C(2) is not tenable. It is established on record that petitioners prohibited him from joining and performing his duty and as such, the order of Labour Court granting him the amount of arrears of salary, cannot be faulted with.

23. Before concluding, it will be necessary to consider the arguments of petitioner that Labour Court had, at one stage, held that as M/s. Hariganga Security Agency is not joined as party, relief of declaration as sought for by respondent no.3 about taking the work of Chowkidar from contractors' labour, cannot be granted and hence the consequential relief of changing the designation of respondent no.3 as general worker in attendance card ought not to have been granted. The discussion above sufficiently demonstrates that the petitioners have indulged in illegal change falling under Schedule II, item 4 and as an employee, respondent no.3 is not concerned at all with the said security agency or their workers. The view of Labour Court that it cannot grant any relief against said security agency, as it is not party before it, does not mean that Labour court could not have granted any relief in favour of respondent no.3. The learned Labour Court has permitted the petitioner to take advantage of their own wrong. The Labour Court in view of the findings recorded by it, could have granted even a declaration as prayed for by respondent no.3 in prayer clause (iii) of his application under Section 78 of the Act before it. It is for the petitioner/employer to take appropriate steps in accordance with law to comply with the lawful orders of the court and to meet the legal requirement or provisions of BIR Act. Respondent No.3 was not claiming any relief against said security agency and he is not concerned with contract between petitioner and that agency. The petitioners could not have pleaded impossibility or fate accompli as engagement of security agency is his creation an illegal change and the Labour Court possessed jurisdiction to issue appropriate direction in this respect to the petitioner. However, that is not the subject matter of present petition, as the respondent no.3 has not challenged the said order of Labour court in appeal before Industrial Court it is not being challenged by him even in this petition. However, it shows that contention of petitioner is erroneous and misconceived.

24. Under the circumstances, I do not find any reason to disturb the order passed by the Labour Court and Industrial Court in so far as Writ Petition No.877/1992 is concerned and the order of 3rd Labour Court under Section 33-C(2) of Industrial Disputes Act in so far as Writ Petition No.872/1992 are concerned. There is no jurisdictional error and no perversity in the matter. The Tribunals below have considered all the relevant aspects of controversy and have arrived at a finding which call for no interference in writ jurisdiction. Both the petitions, therefore, fail and are dismissed accordingly. No order as to costs.

Petitions dismissed.