STATE OF MAHARASHTRA AND ANR.versusSARVA SHRAMIK SANGH, SANGLI AND ORS.

                       [2013] 17 S.C.R. 992


A            STATE OF MAHARASHTRA AND ANR.
                                 v.
         SARVA SHRAMIK SANGH, SANGLI AND ORS.
               (Civil Appeal No. 2565 of 2006)
                       OCTOBER 21, 2013
B
          [H.L. GOKHALE AND RANJAN GOGOi, JJ.]

        Labour Laws:

c       Industrial Disputes Act, 1947 - ss. 25FF, 25F and 25N -
  Termination of services of workmen - Due to transfer of the
  undertakings - Labour Court held the workmen's entitlement
  to retrenchment compensation u/s. 25F - High Court held that
  the case was of breach of s. 25N and they were entitled to .
0 reinstatement    with continuity of service and 25% of back
  wages - Held: The Court in exercise of its power u!Art. 142 of
  the Constitution, to do complete justice held the workmen
  entitled to continuity of service with 25% backwages with retiral
  benefits - In the facts of the case they cannot be reinstated -
E Constitution of India, 1950 - Art. 142.
       256 workmen employed with the industrial
  establishment of the State Government, were terminated
  from service. Some of the workmen accepted the
  retrenchment compensation. 163 workmen approached
F the Labour Court, who directed that there would be no
  reinstatement, but the workmen were entitled to
  retrenchment compensation in accordance with s. 25F of
  the Industrial Disputes Act, 1947. The writ petition u/Art.
  227 of the Constitution against the -0rder of the Labour
G Court was allowed holding that it was a case of breach
  of s. 25N and not merely s. 25F of the Act. The award was
  set aside on the ground that three months notice or pay
  in lieu thereof was not given and hence the workmen
  were entitled to reinstatement with continuity of service.
H                               992
  STATE OF MAHARASHTRA v. SARVA-SHRAMIK                993
              SANGH, SANGLI

25% backwages were also awarded. The Writ Appeal               A
against he order of Single Judge was dismissed as, not
maintainable. Hence the present cross appeals by the
State as well as the Trade Union.
    The State contended that the present case was
covered by 25FF. The Trade Union claimed relief on .the. 8
basis of parity with' the other group of to workmen,
wherein order of reinstatement was granted with 25%
backwages and the order had attained finality. It was
contended that any other order deviating from the
judgment in the case of 10 workmen would result in C
making conflicting orders. The Trade Union also claimed
100% back wages.
    Disposing of the appeals, the Court
    HELD: 1. The workmen concerned were engaged as             o
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         E
Factories Act, 1948. Thus, the workmen concerned were
~ngaged 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. The
                                                               F
explanation (i) to. Section 25A of the Industrial Disputes
Act, 1947, covers the "factories" within the definition of
an "industrial establishment", and therefore Chapter VA
of the 1947 Act applies to "manufacturing process" of
pumping water. Hence, it cannot be denied that the             G
undertaking in which the workmen concerned were
employed:was covered under the provisions of 1947 #!ct.
[Para 19] [1008-G-H; 1009-A-B]                             .
     State of Orissa VS. Dandasi Sahu 1988 (4) sec 12: 1988
(1) Suppl. SCR 562 - relied on.                                H
     994     SUPREME COURT REPORTS            [2013) 17 S.C.R.


A         Bangalore Water Supply and Sewerage Board vs. A.
     Rajappa and Ors. 1978 (2) SCC 213: 1978 (3) SCR 207 -
     referred to.

       2. It may be that all the activities of irrigation
8 department may not have been transferred, but a separate
  unit thereof, consisting of the 25 lift irrigation schemes,
  has come to be transferred to a sugar factory. In such a
  matter the only claim which the employees of the
  transferor concern can legitimately make, is a claim for
C compensation against the previous employer, since they
  are not being absorbed under the new employer. [Para
  21] [1009-G-H; 1010-A-B]

      Anakapa//e Co-operative Agricultural and Industrial
  Society Ltd. vs. V\(orkmen and Ors. AIR 1963 SC 1489: 1963
D Suppl. SCR 730 - relied on.

           3. Many of the workmen concerned were engaged
     for a period of about 10 years. Section 25FF of 1947 Act
     contemplates compensation to be paid to the workmen
E    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 not being
F    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,
     State Government does not appear to have made any
G    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
·H   department has a very large number of activities, wherein
  STATE OF MAHARASHTRA v. SARVA SHRAMIK                 995
              SANGH, SANGLI
these workmen could have been absorbed. When the                A
State Government is in the picture, it is expected that it
shows 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           B
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 be explained. [Para 22] [1010-B-G]

     4. This Court has the authority to pass an                 C
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 the facts and circumstances of      D
the present case, 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 cif 10
workmen. It will not be just and proper to restrict it to the   E
rigours of the limited relief under Section 25FF read with
25F of the 1947 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             F
 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 1947 Act, they will be         G
 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. [Para 26 and
 27] [1012-B-C, G-H; 1013-A-C]
                                                                H
    996      SUPREME COURT REPORTS              [2013] 17 S.C.R.


A       Food Corporation of India Worker's Union vs. Food
    Corporation of India and Anr. 1996 (9) SCC 439: 1996 (3)
    Suppl. SCR 605; L. Parameswaran vs. Chief Personal Officer
    and Ors..2008 (3) SCC 649: 2008 (2) SCR 1015 - relied on.

       5. The claim of the Trade Union for 100% backwages
8
  cannot be accepted. The Union is claiming reliefs for the
  present group of workmen on the basis of parity with the
  other group of 10 workmen which has been accepted by
  this Court. Those workmen have be·en awarded only 25%
  backwages. That being so, the present group of
C 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. [Para 28] [1013-D-G]

D      Workmen of Karnataka Agro Protines Ltd. vs. Karnataka
  Agro Proteins Ltd. and Ors. 1992 LLJ 712; Central Inland
  Water Corporation Ltd. vs. The Workmen and another (1974)
  4 SCC 696: 1975 (1) SCR 153; Maruti Udyog Ltd. vs. Ram
  Lal and Ors. 2005 (2) SCC 638: 2005 (1) SCR 790; Anoop
E Sharma vs. Executive Engineer, Public Health Division No. 1,
  Panipat (Haryana) 2010 (5) SCC 497; Warlu vs. Gangotribai
  and Anr. 1995 (Supp) 1 SCC 37; Nirmal Jeet Singh Hoon
  vs. lrtiza Hussain and Ors. 2010 (14) SCC 564: 2010 (14)
  SCR 109; State of UP. vs. Jai Bir Singh 2005 (5) SCC 1:
F 2005 (1) Suppl. SCR 20 - referred to.
                         Case Law Reference:
          1992 LLJ 712            referred to          Para 9
          1975 (1) SCR 153        referred to          Para 9
G
          2005 (1) SCR 790        referred to          Para 14
          2010 (5) sec 497        referred to           Para 15
          1995 (Supp) 1 sec 37    referred to           Para 16
H
  STATE OF MAHARASHTRA v. SARVA SHRAMfK,                 997
              SANGH, SANGLI

    2010 (14) SCR 109           referred to         Para 17      A
    2005 (1) Suppl. SCR 20      referred to         Para 18
    1988 (1) Suppl. SCR 562 relied on               Para 20
    1978 (3) SCR 207            referred to         Para 20      B
    1963 Suppl. SCR 730         relied on           Para 21
    1996 (3) Sup_pl. SCR 605 relied on              Para 26
    2008 (!) SCR 1015           relied on           Para 26
                                                                 c
    CIVIL APPELLATE JURISDICTION : Civil Appeal· No.
2565 of 2006.

    From the Judgment & Order dated 12.09.2005 &
14.09.2004 of the High Court of Judicature at Bombay in Letter
Patents Appeals No. 92 of 2005 in W.P .. No. 2699 of 1933.       D.

                            WITH

C.A. No. 2566 of 2006

    · Madhavi'Divan, Sanjay V. Kharde (for Asha G~palan Nair)    E
for the Appellants.

    Vinay Navare, Keshav Ranjan, Satyajeet Kumar, Abha R.
Sharma for the Resp-ondents.
                                                                 F
    The Judgment of the Court was delivered by

     H.L. GOKHALE J. 1. 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         G
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      H
    998      SUPREME COURT REPORTS                 [2013] 17 S.C.R.


A   under the Industrial Disputes Act, 1947 (l.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.

8     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 Uniori representing the workmen
  concerned, and two of the workmen in the concerned Industrial
C Establishment are the respondents to this appeal.

    Facts leading to this appeal are this wise:-

          3. The Government of Maharashtra established a
     corporation named as the Irrigation Development Corporation
D    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
E   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
F   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 factory viz. Vasantdada Shetkari
G    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
H No.2376 of 1985, through the first respondent Trade Union,
    STATE OF MAHARASHTRA             v.
                              SARVA SHRAMIK                     999
         SANGH, SANGLI [H.L. GOKHALE, J.]

 against the above referred Corporation and the appellants,            A
 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            s
 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      C
      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
      Government and if such relief is permissible, the                D
      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      E
 Dispute under the 1.0. Act. These References were numbered
 as Ref. l.D. Nos.27 to 40, 42 to 70, 72 to 99197, 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 the5e References, it was contended on behalf of the      F
. workmen that their retrenchment was illegal, inasmuch as the
  requirement of the adequate statutory notice as required under
  the l.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,         G
  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 l.D. Act (which requires three   H
    1000     SUPREME COURT REPORTS                    [2013] 17 S.C.R.


A months' 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 l.D. Act,
  inasmuch as not even one month's notice had been given and
B 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
C 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 Slletkari Sahakari Sakhar
  Karkhana, Sangli, the employees are not entitled to retain in
D the services without any work."

       8. In the written statement there was no specific reference
  to Section 25FF of the l.D. Act which deals with the transfer of
  undertakings. There was no reference to the said section in the
E judgment of the learned Judge either. We may 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
F       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
G       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
H Hiah Court between Workmen of Karnataka Agro Pralines Ltd.
  STATE OF MAHARASHTRA v. SARVA SHRAMIK                     1001
       SANGH, SANGLI [H.L. GOKHALE, J.]

v. Karnataka Agro Proteins Ltd. and Ors. reported in 1992 LLJ        A
page 71:2, 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.         B
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        c
given the compensation in accordance with Section 25F of the
1.0. Act. The Award of the Labour Court reads as follows:-
    "Award:

     (I)     The claim is partly allowed.                            D

     (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
                                                                     E
             claim stands rejected.

     (Ill)   However; the First Party is hereby dir~ctecl \o give
             preference to all those empJoyees whenever some
             additional work to new project are started or work
             is available.                                           F

     (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         G
             the date of publication of this Award.

     (VI}    No order as to costs."

    10. Being aggrieved by that judgment and order, the              H
    1002     SUPREME COURT REPORTS                [2013] 17 S.C.R.


A 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
  wh·erein the workmen were employed, amounted to a
B '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 l.D.
  Act applied.
c      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
D 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.

E         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 l.D. Act.
F 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,
G 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
1-l in par<i~raphs 11 to 14 of the judgment reads as follows:-
  STATE OF MAHARASHTRA v. SARVA SHRAMIK                   1003
       SANGH, SANGLI [H.L. GOKHALE, J.]

          "11. The award dated 21st May 1992 passed by the        A
    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 must report for duty
    within two months from the date of this order. The            B
    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 c
    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 mo!Jths from today.
                                                                 D
          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.                              E
          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."                              F

     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        G
Constitution of India, and therefore dismissed the said Letters
Patent Appeal. Being aggrieved by this order of the Division
Bench as well as of the learned Single Jooge, 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     H
      1004     SUPREME COURT REPORTS                  [2013] 17 S.C.R.


 A compliance of the provisions of Section 178 of the l.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
 s 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
· C   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
 D    themselves that retrenchment of their services took place
      because of the transfer of the undertaking. She submits that the
      lift irrigation schemes constituted an undertaking, and the
      ownership of the management of the undertaking was being
      transferred, and it was not relevant that the ownership of the
 E    Irrigation Department Corporation was not being transferred.
      Therefore, in her submission it is the Section 25FF which
      applies to tb.e present case, and neither Section' 2SN nor
      Section 25F. Besides, Section 25F would apply only as a
      measure of compensation that is to be provided for, and
 F    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 1-6 as follows:-

                 "16. The Solicitor-General contends that the question
          in the present af)peal has now to be determined not in the
 G        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
 H        workmen engaged by the said undertaking comes to an
STATE OF MAHARASHTRA v. SARVA SHRAMIK                    1005
     SANGH, SANGLI [H.L. GOKHALE, J.]

  end, and it provides for the payment of compensation to         A
  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             B
  shall be entitled to notice and compensation in accordance
  with the provisions of s. 25-F, says the section, as if they
  had been retrenched. The last clause.clearly brings out the
· fact that the termination of the services of the employees
  does not in law amount to retrenchment and that is              c
  consistent with the decision of this Court in Hariprasad's
  case [1957]1SCR121 : AIR 1957 SC 121. The
  Legislature, however, wanted to provide that though such
  termination may not be retrenchment technically so-called,
  as decided by this Court, nevertheless the employees in         0
  question whose services are terminated by the transfer of
  the undertaking should be entitled to compensation, and
  so, s. 25-FF provides that on such termination
  compensation would be paid to them as if the said
. termination was retrenchment. The words "as if' bring out
                                                                  E
  the legal distinction between retrenchment defined by
  s. 2(oo) as it was interpreted by this Court and termination
   of services consequent upon transfer with which it deals.
   In other words, the section provides that though termination
   of services on transfer may not be retrenchment, the
   workmen concerned are entitled to compensation as if the       F
   said termination was retrenchment. This provision has
   been made for the purpose of calculating the amount of
   compensation payable to such workmen; rather than
   provide for the measure of compensation over again,
   s. 25FF makes a reference to s. 25-F for that limited          G
   purpose, and, therefore, in all cases to which
   s. 25FF applies, the only claim which the employees of the
   transferred concern can legitimately make is a claim for
   compensation against their employers. No claim can be
   made against the transferee of the said concern."              H
    1006     SUPREME COURT REPORTS                [2013] 17 S.C.R.


A        This judgment in Anakapal/e (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) sec 638.

    Reply on behalf of the respondents:-
8
        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
C 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-
D 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
E judgment of this Court in Anoop Sharma v. Executive
  Engineer, Public Health Division No.1, Panipat (Haryana)
                20j.0 (5) sec 497.
  reported in ----

        16. However, more than that, the respondents have
  pointed out that another set of 10 workmen (Pandurang Vishnu
F Sandage and 9 others) working on the same lift irrigation.
  schemes had subsequently filed separate References in the
  Labour Court bearing Ref. (l.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%
G 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
H appellants by preferring SLP (C) No.773 of 2006. This Hon'ble
  STATE OF MAHARASHTRA v. SARVA SHRAMIK                      1007
       SANGH, SANGLI [H.L. GOKHALE, J.]

Court dismissed the said SLP on the ground of delay. A                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 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        B
of 10 workmen, and in any case this Court should not aHow 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 sec 37. It was a matter            c
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
                                                                      D
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
                                                                      E
that the appellants should suffer by the principle of estoppel by
record.

      17. In support of the contention that the orders passed by
this Court in the case of the blher 10 workmen should be
followed in the present case, reliance was placed on paragraph        F
21 of a judgment in the case of Nirmal Jeet Singh Hoon v. lrtiza
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,        G
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     H
    1008     SUPREME COURT REPORTS                   [2013] 17 S.C.R.

A   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.

8
         18. The appellants had submitted that the Irrigation
   Department is not an industry. In that behalf, it was pointed 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) sec 213. As against that, the counsel for
C 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
  Constitutior')/Bench in State of UP. v. Jai Bir Singh reported
  in 2005 (5) SCC 1. The respondents, however, submitted that
D in the meanwhile the judgment in Bangalore Water Supply
  (supra) will have to be followed until ii 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
E 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.
F
  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
G 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
H the activity of the undertaking in which they were working·
  STATE OF MAHARASHTRA v. SARVA SHRAMIK                      1009
       SANGH, SANGLI [H.L. GOKHALE, J.)

constituted a "factory" within the meaning of Section 2(m) of the     A
said Act.

     (ii) The explanatic;>n (i) to Section 25A of l.D. Act, 1947,
covers the "factories" within the definition of an "industrial
establishment", and therefore Chapter VA of the l.D. Act, 1947        B
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 l.D. Act.

      20. It is, however, contended on behalf of the appellant that   C
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 2U) of the l.D. Act.
As noted earlier, the reconsideration of the wide interpretation      D
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            E
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
                                                                      F
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 workmen concerned,
and that this was not a gise of retrenchment simpliciter. It was
submitted ttiaf the 25 lift irrigation schemes by themselves          G
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
                                                                      H
    1010    SUPREME COURT REPORTS                [2013] 17 S.C.R.


A   held in Anakapalle Society's case (supra), in such a matter the
    only .claim which the employees of the transferor concern yan
    legitimately make, is a claim for compensation against the
    previous employer, since they are not being absorbed under
    the new employer.
B
          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 1O years.
   Section 25FF contemplates compensation to be paid to the
   workmen on account of their retrenchment, resulting from
C 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 not being absorbed under the _
   new employer. Continuation of service under the existing
D 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
E 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
F 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.
G 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 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
H directed the State Government to consider the absorption of
   STATE OF MAHARASHTRA v. SARVA SHRAMIK                     1011
        SANGH, SANGLI [H.L. GOKHALE, J.]

these workmen. The respondents have placed it on record that . A
in pursuance of a subsequent advertisement for employment
in th~ 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 B
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 1O other workmen from the sam~ lift irrigation C
schemes was dismissed, and SLP and Curative Petitions,
therefrom, were also dismissed, a question arises for ihis Court
to consider that assuming .this was a case of transfer of
undertaking, should the relief to the affected workmen be
restricted only to the compensation under Section. 25F as
required by S 25 FF.                                             D·

         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.         E
   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        F
    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        G
   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 25%
    backwages, be now permitted to insist that when- it comes to
    these 163 workmen, who are similarly situated, they be denied     H
    1012     SUPREME COURT REPORTS                 [2013] 17 S.C.R.


A   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?
B
          26. This Court has the authority to pass an appropriate
    ordei:- in exercise of its jurisdiction for doing complete justice
    in a matter pending before it. This authority under Article 142
    cif the Constitution will also have to be read as coupled with a
    duty to do complete justice in a given case. In Food
C   Corporation of India Worker's Union v. Food Corporation of
    lndi_a & 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
D   identity, in the proceeding before the Industrial Tribunal.
    Therefore, in view of the 'human problem' involved in the matter,
    the Court laid down 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'
E   of the workmen at piece rate, till their reinstatement. In L
    Parameswaran v. Chief Personal Officer and ors. reported in
    2008 (3) sec 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
F   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.
G
         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
H
   STATE OF MAHARASHTRA v. SARVA SHRAMIK                      1013
        SANGH, SANGLI [H.L. GOKHALE, J.)

restrict it to the rigours of the limited relief under Section 25FF   A
read with 25F of the l.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 reach.ed the age
of superannuation. In the circumstances, there cannot be any          B
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 1.0 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            c
will be adequate compensation.

     28. Civil Appeal No.2566 of 2006 has been filed by the
     above referred Trade Union, the respondent in Civil Ap
eal No.2565 of 2006, against the same two judgments of the
Single Judge and the Division Bench of Bombay High Court. .           D
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 less than 100%
backwages. Mr. Navare has appeared in support of this appeal,         E
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             F
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.                  G

    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

                                                                      H
    1014        SUPREME COURT REPORTS                 [2013] 17 S.C.R.


A   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 already reached the age of
B
                    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.

c        (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.
D
        . (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.
E
         {iv)       All the workmen will be entitled to 25% backwages
                   over and above the last drawn wages that they have
                   received under Section 178 of l.D. Act. The
                   backwages shall be calculated until the date as
F                  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 1O
                   workmen viz. Pandurang Vishnu Sandage and
G
                   others.

          (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
H                  this judgment.
   STATE OF MAHARASHTRA v. SARVA SHRAMIK 1015
        SANGH, SANGLI [H.L. GOKHALE, J.]

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

       (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.                                      B

       (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        C
disposed off as above, with no order as to costs.

Kalpana K: T ripathy                     Appeals & IAs disposed of.