PUNJAB LAND DEVELOPMENT AND RECLAMATION CORPORATION LTD., CHANDIGARH ETC. v. PRESIDING OFFICER, LABOUR COURT, CHANDIGARH ETC.

152 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

Mr. Bobde refutes the above argument saying that ss. 25F, 25G A and 25H relate to retremchment but their contents are different. Whereas S. 25F provides for the conditions precedent for effecting a valid retrenchment, S. 25G only provides the procedure for doing so. Section 25H operates after a valid retrenchment and provides for re-employment in the circumstnaces stated therein. According to B counsel, the argument is misconceived firstly for the reasons that s. 2 itself says that retrenchment will be understood as defined ins. 2(oo) unless there is anything repugnant in the subject or context; secondly s. 25F clearly applies to retrenchment as plainly defined bys. 2(oo); thirdly s. 25G does not incorporate in absolute terms-the principle of 'last come, first go' and provides that ordinarily last employee is to be retrenched, and fourthly s. 25H upon its true construction should be c held to be applicable when the retrenchment has occurred on the ground of the workman becoming surplus to the establishment and he has been retrenched under ss. 25F and 25G on the principle 'last come, first go'. Only then should he be given an opportunity to offer himself for re-employment. In substance it is submitted that there is no conflict between the definition of s. 2(oo) and the provisions of ss. 25F, 25G and 25H. We find that though there are apparent incongruities in the provisions, there is room for harmonious construction in this regard.

For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and the subject matter. Section 25-F prescribed the conditions precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the condi- tions prescribed are the giving of one month's notice indicating the reasons for retrenchment and payment of wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer of undertakmgs. Very briefly, it provides that every work- man who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section G 25F "as if the workman had been retrenched". (Emphasis supplied). Section 25-FFA provides that sixty days' notice must be given of inten- tion to close down any undertaking and section 25-FFF provides for compensation to workmen in case of closing down of undertakings. Very briefly stated section 25-FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, everv workman who has been in continuous service for

P.L.D. CORPORATION LTD. v. PRESIDING OFFICER {SAIKIA, J.J 153

not less than one year in tnat undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasised sup- plied). Section 25-H provides for re-employment of retrer.ched work- men. In brief, it provides that where any workmen are retrenched, and the employer proposes to taKe mto his employment any person, he shall, give an opportunity to the retrenched workmen to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertak- ing as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given· to workman "deemed. to be c retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compen- sation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workmen is "as if the workmen had been retrenched" and this benefit is restricted to notice and_ compensation in accordance with the provi- sions of section 25-F. The last submission is that if retrenchment is understooa in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workmen whose service has been terminated. There may be two answers to this question. Firstly, those rights may have been ?ffected by introduction of ss. 2(00), 25F and the other relevant sections. Sec- ondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the affected work- men, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes-Stat pro ratione voluntas populi; the will of the people stands in place of a reason. G Regarding the seeming gaps in the definition one would aptly remember what Lord Simonds said against the view that the court having discovered the intention of Parliament must proceed to fill in the gaps and what the legislature had not written the court must write.

"It appears to me to be a naked usurpation of the legisla- H

154 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

tive function under the thin disguise of interpretation. And A it is the less justifiable when it is guess work with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act." The Court has to interpret a statute and apply it to the facts. B Hans Kelsen in his Pure Theory of Law (P. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law-applying organ (especially the court) on the other. According to him "jurisprudential interpretation · i3 purely cognitive ascertainment of the meaning of legal norms. In contradistinction to the interpretation by legal organs, jurisprudential c interpretation does not create law". "The purely cognitive interpreta- tion by jurisprudence is therefore unable to fill alleged gaps in the law. The filling of a so-called gap in the law is a law-creating function that can only be performed by a law-applying organ; and the function of creating law is not performed by jurisprudence interpreting law. Jurisprudential interpretation can do no more than exhibit all possible D meanings of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law." According to the author if law is to be applied by a legal organ, he must determine the meaning of the norms to be applied; he must 'interpret' those norms (P. 348). Interpretation E therefore is an intellectual activity which accompanies the process of law application in its advance from a higher level to a lower level. According to him, the law to be applied is a frame. "There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the application of law." The traditional theory believes that the statute, applied to a concrete case, can always supply f only one correct decision and that the positive-legal 'correctness' of this decision is based on the statute itself. This theory describes the interpretive procedure as if it consisted merely in an intellectual act of clarifying or understanding; as if the law-applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibilities only one correct choice could be made in accordance with positive law. According to the author: "The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm creating authority that is to be determined somehow, (c) with the expression which the norm-creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to

P.L.D. CORPORATION LTD. v. PRESIDING OFFICER [SAIKIA, J.J 155

which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame." The definitions is s. 2 of the Act are to be taken 'unless there is anything repugnant in the subject or context'. The contextual interpre- tation has not been ruled out. In R.B.I. v. Peerless General Finance, reported in [1987] 2 SCR 1, 0. Chinnappa Reddy, J. said: "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpre- c tation is best which makes the textual interpretation match the contextual. A statute is best interpre~d when we· know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by pharse and word by word. If a statute is looked at, in the context of its enactment, with the glas- ses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enact- ment and the reasons for it that the Court construed the expression 'Prize Chit' in Srinivasa and we find no reason to depart from the Court's construction." As we have mentioned, industrial and labour legislation involves social and labour policy. Often they are passed in conformity with the resolutions of the International Labour Organisation. In Duport Steels v. Sirs, [1980] I W.L.R. 142. the House of Lords observed that there was a difference between applying the law ana. making tt, and that judges ought to avoid becoming involved in controversial social issues, since this might affect their reputation in impartiality. Lord Diplock H said:

156 SUPREME COURT REPORTS [1990] 3 S.C.R.

A " A statute passed to remedy what is perceived by Parlia" men! to be a defect in the existing law may in actual opera- -.( tion turn out to have injurious consequences that Parlia- ment did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them ..... But if this be the case it is for B Parliament. not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts '' _,,~ Applying the above reasonings; principles and precedents, to the definition in s. 2( oo) of the Act, we hold that "retrenchment" means C the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section.

The result is that C.A. Nos. 3241-48 of 1981, 686(NL) of 1982, 1817 of 1982, 1898 of 1982, 3261of1982, 1866 of 1982, 1868 of 1982, 8456 of 1983, 10828 of 1983 and the appeal arising out of S.L.P. (C) D No. 3149 of 1983 are dismissed with costs quantified at Rs.3,000 in each appeal. It is stated that in C.A. No. 686 of 1982 the respondent has already been reinstated pursuant to the order dated 24.10.1983 passed by this Court, having regard to the fact that he has served since 1983, he shall be considered for confirmalion with effect from his due date according to Rules, if he is not already confirmed by the E Corporation.

In view of the facts and circumstances of the case, we dispose of C. A. No. 885 of 1980 with the direction that the two workmen involved in this appeal be. paid compensation of Rs.1,25,000 (Rupees one lakh twentyfive thousand) each in full and final settlement of all F claims including that of reinstatement. The payment shall be spread over a period from 11.11.1972 till date for the purpose of Income-tax.

C.A. No. 4116 (NL) of 1984 was on the board, but the paper book is not available. Hence it is delinked from the series.

G C.A. Nos. 512-513 of 1984 and C.A No. 783 of 1984 were wrongly placed on the board. Their subject matters are different and hence are delinked from this cluster to be heard separately by an appropriate bench.

R.N.J. Appeals disposed of. H