Appeal No 320 of 1955
Appeal by special leave from the judgment and order dated October 19 1954 of the Labour Appellate Tribunal of India at Bombay in Appeal No 76 of 1954
H J Umrigar E J Muharir and Rameshwar Nath for the appellant
section W Dhabe and R A Govind for the respondent
November 6
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
The Central Provinces Transport Services Ltd Nagpur was at the material dates a public limited company and the respondent was employed as a mechanic therein
In June 1950 goods belonging to the Company were stolen 958 and suspicion fell on the respondent
There was an enquiry into the matter and that resulted in his dismissal on June 28 1950 on the ground of gross negligence and misconduct
He was then prosecuted on a charge of theft but that ended in his acquittal on March 3 1952
Thereafter be applied to the Company to be reinstated and failing to get redress filed on October 1 1952 an application before the Labour Commissioner under section 162 of the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947 hereinafter referred to as the Act for reinstatement and compensation
The Company resisted the claim on the ground inter alia that as the applicant had been dismissed on June 28 1950 he was not an employee on the date of the applica tion that accordingly there was no industrial dispute touching the dismissal of an employee as required by section 16 sub sections
1 and 2 of the Act and that in consequence the proceedings under that section were incompetent
The Assistant Labour Commissioner before whom the matter came up for hearing agreed with this contention and dismissed the application
The respondent preferred a revision against this order to the Provincial Industrial Court under a 165 of the Act and by its order dated February 5 1954 that Court held that a dismissed employee was an employee as defined in section 210 of the Act that a dispute by such an employee was an industrial dispute within section 212 of the Act
and that the application under section 162 of the Act was therefore maintainable
In the result the order of dismissal was set aside and the matter remanded for enquiry on the merits
Against that order the Company appealed to the Labour Appellate Tribunal which by its order dated October 19 1954 affirmed the decision of the Provincial Industrial Court and dismissed the appeal
The Company has preferred the present appeal against this order under article 136
Pending the appeal to this Court the Company went into liquidation and has been taken over by the State of Madhya Pradesh and is now being run under the name of Central Provinces Transport Services under 959 Government ownership Nagpur
On the application of the respondent the record has been suitably amended
The point for decision in this appeal is whether an application for reinstatement and compensation by a dismissed employee is maintainable under section 16 of the Act
That section so far as is material to the Present question runs as follows 1 Where the State Government by notification so directs the Labour Commissioner shall have power to decide an industrial dispute touching the dismissal discharge removal or suspension of an employee working in any industry in general or in any local area as may be specified in the notification 2 Any employee working in an industry to which the notification under sub section 1 applied may within six months from the date of such dismissal discharge removal or suspension apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages
The argument of Mr Umrigar for the Appellant is that it is a condition prerequisite to the entertainment of an application for reinstatement under this section that there should be an industrial dispute touching the dismissal of an employee that there was none such in this case because the respondent was not an employee on the date of the application having been dismissed long prior thereto and further because his dispute was an individual and not an industrial dispute
It will be convenient at this stage to refer to the relevant provisions of the Act as they stood on the material dates
Section 210 defines an employee as follows employee means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee discharged on account of any dispute relating to a change in respect of which a notice is given under section 31 or 32 whether before or after the discharge
Section 212 defines industrial dispute as meaning 960 any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees
Under section 213 industrial matter means any matter relating to work pay wages reward hours privileges rights or duties of employers or employees or the mode terms and conditions of employment or refusal to employ and includes questions pertaining to a the relationship between employer and employee or to the dismissal or non employment of any person  It is not disputed that a question of reinstatement is an industrial matter as defined in section 213 of the Act
The controversy relates to the question whether it is an industrial dispute as defined in section 212 of the Act  The contention of the appellant is that it does not fall within that definition because the further condition prescribed by section 212 that it must be between an employer and employee is not satisfied
It was argued by Mr Umrigar that when the respondent was dismissed on June 28 1950 his employment came to an end and that he could not thereafter be termed an employee as that word is ordinarily understood that it could not have been the intention of the legislature to include in the definition of an employee even those who had ceased to be in service
 as otherwise there was no need for the further provision in section 210 that discharged employees would in certain cases be employees and that in any event the inclusive portion of the definition would on the principle Expressio unius est exclusive alterius operate to exclude all exemployees other than those mentioned therein
The question whether a dismissed employee is an employee as defined in section 210 of the Act must be held to be practically concluded by the decision of the Federal Court in Western India Automobile Association vs Industrial Tribunal Bombay1
There the point for determination was whether a claim for reinstatement by a dismissed workman was an industrial dispute as defined in section 2k of the XIV of 1947
It was held that the definition in section 2k including as it did all disputes or 1 961 differences in connection with employment or non employment of a person was sufficiently wide to include a claim for reinstatement by a dismissed workman
Counsel for the appellant sought to distinguish that decision on the ground firstly that it was given on a statute different from what we are concerned with in this appeal and secondly that the reference there included other items of dispute which un doubtedly fell within the Act and the question of reinstatement took its complexion from those items
We do not see any force in
either of these contentions
Section 212 and section 213 of the Act are substantially in pari materia with section 2k of Act XIV of 1947 and the ratio of the decision in Western India Automobile Association vs Industrial Tribunal Bombay supra will be as much applicable to the one enactment as to the other
 Nor does it make any difference that there were comprised in the reference other items which fell within the definition under section 2k because if the Government had no jurisdiction under the Act to refer the question of reinstatement of dismissed employee for adjudication  then the to that extent be treated as a nullityreference must and it would be immaterial that it was intravires as regards the other items of dispute
We are also unable to accede to the contention of the appellant that the inclusive clause in section 210 of the Act is an indication that the legislature did not intend to include within that definition those who had ceased to be in service
In our opinion that clause Was inserted ex abuNdanti cautela to repel a possible contention that employees discharged under sections 31 and 32 of the Act would not fall within section 2 10 and cannot be read as importing an intention generally to exclude dismissed employees from that definition
On the other hand section 16 of the Act expressly provides for relief being granted to dismissed em ployees by way of reinstatement and compensation and that provision must become useless and inoperative if we are to adopt the construction which the appellant seeks to put on the definition of employee in section 210
We must accordingly bold agreeing with 125 962 the decision in Western India Automobile Association V Industrial Tribunal Bombay supra that the definition of employee in the Act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was iiot in employment on the date of the application
It was next contended that even assuming that the respondent was an employee as defined in section 2 10 of the Act his dimissal could not be held to be an industrial dispute as defined in section 212 because that term properly meant that the dispute was one between employer on the one hand and the industry represented by its workmen as a class on the other and that a dispute between the employer and a single employee would be an individual dispute and would therefore be outside the purview of a 212
It was argued in support of this contention that the object of all tabour legislation was not so much to deal with individual rights of workmen for the enforcement of which there was an appropriate forum in the ordinary courts of the land as to regulate the relation between capital and labour treating them as distinct entities so that public peace and order might not be disturbed and production might not suffer and for that end to recognise the right of labour to speak and act as a body for the protection of its common interests and to provide a machinery for speedy settlement of disputes which that body might raise and that it could not have been the intention of the legislature where the above considerations did not operate to interfere with the normal relations between employer and employee under the law and to provide an additional forum to the employee to vindicate his rights
Reliance was placed in support of this contention on decisions of the Madras Calcutta and Patna High Courts and of Industrial Tribunals
The question whether a dispute by an individual workman would be an industrial dispute as defined i section 2k of the Act XIV of 1947 has evoked considerable conflict of opinion both in the High Courts and in Industrial Tribunals and three different views have been expressed thereon I A dispute which concerns 963 only the rights of individual workers cannot be held to be an industrial dispute
That was the opinion expressed in Kandan Textiles vs Industrial Tribunal1
There Rajamannar C J observed that though the language of the definition in section 2k was wide enough to include such a dispute the provisions of section 18 suggested that something more than an individual dispute between a worker and the employer was meant by an industrial dispute
The other learned Judge Mack J was more emphatic in his opinion and observed that the Act was never intended to provide a machinery for redress by a dismissed workman
It became however unnecessary to decide the point as the court came to the conclusion that the reference it self was bad for the reason that there was no material on which the Government could be satisfied that there was a dispute
The views expressed in Kandan Textiles vs Industrial Tribunal supra were approved in Manager United Commercial Bank Ltd V Commissioner of Labour2 but here again the observations were obiter as the point for decision was whether a right of appeal conferred by section 41 of the Madras Shops and Establishments Act XXXVI of 1947 was taken away by implication by Act XIV of 1947
The question however arose directly for decision in J Chowdhury vs M C Banerjee3 in which the order of the Government referring the dispute of a dismissed employee to the adjudication of a Tribunal was attacked as incompetent and it was held by Mitter J following the observations in Kandan Textiles V Industrial Tribunal supra that the dispute in question was not an industrial dispute and that the reference was in consequence bad
11A dispute between an employer and a single employee can be an industrial dispute as defined in section 2k
That was the decision in Newspapers Ltd Allahabad vs State Industrial Tribunal UP i
In that case a reference of a dispute by a dismissed employee and the award of the Tribunal passed on that refer 1 AIR 2 AIR 1951 Mad 141
8 4 AIR 1954 All
516 964 ence were attacked as bad on the ground that the dispute in question was not an industrial dispute within section 2k of Act XIV of 1947 and it was held by Bhargava J that an industrial dispute could come into existence even if the parties thereto were only the employer and a single employee and that the reference and the award were in consequence valid
A similar decision was given by a Full Bench of the Labour Appellate Tribunal in Swadeshi Cotton Mills Company Ltd vs Their Workmen1
III A dispute between an employer and a single employee cannot per se be an industrial dispute but it may become one if it is taken up by the Union or a number of workmen
That was held by Bose J in Bilash Chandra Mitra vs Balmer Lawrie  Co2 by Ramaswami and Sarjoo Prosad JJ in New India Assurance Co vs Central Government Industrial Tribunal3 and by Balakrishna Ayyar J in Lakshmi Talkies Madras vs Munuswami and others4 and by the Industrial Tribunals in Gordon Woodroffe  Co Madras
Ltd vs Appa Rao5 and Lynus  Co vs Hemanta Kumar Samanta6
The preponderance of judicial opinion is clearly in favour of the last of the three views stated above and there is considerable reason behind it
Notwithstanding that the language of section 2k is wide enough to cover a dispute between an employer and a single employee the scheme of the does appear to contemplate that the machinery provided therein should be set in motion to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act when the same bad not been taken up by the Union or a number of workmen
If that were the correct position the respondent was not entitled to apply under section 162 of the Act as the workmen in the industry had not adopted his dispute as their own and chosen to treat it as 1 3 AIR 1953 Patna 321
5 2 AIR 1953 Cal 613
4 6 965 their  casus belli with the Company
But then we are directly concerned in this appeal not with the XIV of 1947 but with the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947 and in the view which we take of the rights of the respondent under that statute there is no Deed to express a final opinion on the question whether a dispute simpliciter between an employer and a workman would be an industrial dispute within 9 2k of Act XIV of 1947
Now the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947 with which we are concerned is not in pari materia with Act XIV of 1947
It no doubt covers the ground occupied by that Act and contains provisions relating to arbitration adjudication awards strikes and lock outs
But it contains more
It enacts in Ch
IV provisions which are intended to regulate the contract of employment between employer and workmen a subject which is covered by a distinct piece of Central legislation Industrial Employment Standing Orders Act XX of 1946
The object of that Act was as appears from the preamble thereto to require employers in industrial establishments formally to define conditions of employment under them whereas the object of the XIV of 1947 is as set out in its preamble to make provision for the investigation and settlement of industrial disputes and for certain other purposes
Thus even though the two enactments are pieces of what is termed labour legislation their objects and their vision are different
While Act XIV of 1947 may be said to be primarily concerned with disputes of labour as a class Act XX of 1946 is directed to getting the rights of an employee under a contract defined
Now as the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947 covers the ground occupied by both Act XX of 1946 and Act XIV of 1947 it would be proper to interpret the expression industrial dispute therein in a sense wider than what it bears in Act XIV of 1947 so as to cover not only disputes of workmen as a class but also their individual disputes
966 And this view receives considerable support from other provisions of the Act
Section Al enacts that an ap plication under that section can be made either by an employer or employee concerned or by a representative of the employees concerned
Section 224 defines representative of employees as meaning a union or where there is no union persons elected by the employees not exceeding five
Thus there is a clear recognition of the rights of an individual employee as distinguished from a class of employees to move for redress
It is argued by Mr Umrigar that this re cognition is only for the purpose of section 41 and that no inference can be drawn therefrom that the employee has a similar right to apply under section 162
But the importance of section 41 consists in this that it indicates that the Act has in contemplation the enforcement of individual rights of workmen also
Then we have section 53 which runs as follows Save with the permission of the authority holding any proceeding under this Act no employee shall be allowed to appear in such proceeding except through the representative of employees Provided that where only a single employee is concerned he may appear personally
 This section again recognises the rights of employees to agitate their individual rights under the provisions of the Act
Section 16 is intended in our opinion to enable an employee to enforce his individual rights when there is an order of dismissal discharge removal or suspension and in the context industrial dispute must be interpreted as including the claim of an employee who has been dismissed for reinstatement and compensation
The view taken by the Industrial Court and the Labour Appellate Tribunal as to the meaning of industrial dispute in the Central Provinces and Berar Industrial Disputes Settlement Apt XXIII of 1947 is therefore correct and this appeal must be dismissed with costs
Appeal dismissed
APPENDIX Reference to the memory of late Dr Bijan Kumar Mukherjea Ex Chief Justice of India by the Judges and members of the Bar of the Supreme Court of India assembled at a meeting on February 23 1956
section R DAS CJ Mr
Attorney General we have met here today under the shadow of death to mourn the passing away of one who only the other day was our Chief Justice and beloved leader
He had been ailing for some time but we did not anticipate that his end was so near
Therefore when the melancholy news came suddenly over the wires my colleagues and I felt a severe shook as all of you must also have done
We have assembled here today to pay our respectful homage to the memory of our departed leader
Bijan Kumar Mukherjea was born on August 15  1891
His father late R D Mukherjea was a Sanskrit  scholar
He was a Vakil of the Calcutta High Court but used to practice at Hooghly
Mukherjea had his early education at Hooghly and thereafter at Calcutta
He obtained his Master s Degree in History
In BL and ML examinations he topped the list of successful candidates and secured University gold medals
He was Ananth Deb Research Prizeman
Bijan Kumar Mukherjea was enrolled as a Vakil o the Calcutta High Court on the Appellate Side on January 9 1914
Shortly thereafter Sir Ashutosh Mookerjee who had an eye for discovering talents offered him a lectureship in the University Law College
This was a great help to the struggling junior and indeed changed the whole course of his life and career for the stipend meager as it was enabled him to struggle at the Bar of the Calcutta High Court instead of moving to Patna where a new High Court had recently been set up
His rise at the Bar was not meteoric but was a steady one
He passed through the hard trial but momentary disappointments or set backs did not dim his enthusiasm or dishearten him
While practising at the Bar he 126 968 secured his Doctorate in Law
His academic distinctions and studious habit stood him in good stead
His scholarly erudition good grounding in legal principles and deep insight into human nature soon brought him to the forefront of the profession
To his legal learning and forensic skill was added a graceful style of advocacy Which was entirely his own
His merit was soon recognised and in or about 1934 he was appointed the junior Government Pleader and within two years the senior Government Pleader
True to tradition he was elevated to the High Court Bench in 1936 Distinguished as an Advocate he became greater as a Judge
His sweet temper and amiable disposition endeared him to his colleagues as well as to the members of the Bar and particularly to the junior members
I am happy to bear testimony to his kindness courtesy and consideration for his colleagues for I had the privilege of sitting with him on the Bench of the Calcutta High Court
In 1947 he served on the Boundary Commission
In 1948 Bijan Kumar Mukherjea along with Shri Mehr Chand Mahajan who happily is with us was called upon to serve as a Judge of the Federal Court
He readily responded to the call of duty and came all the way to New Delhi leaving at Calcutta his only son to whom he had been both a father and a mother
In the midst of his work on the Bench he could find time to prepare and deliver his Tagore Law Lectures on the Hindu Law of Endowments
On the retirement of Shri Mahajan on December 23 1954 Mukherjen became the the fourth Chief Justice of this Court
He brought with him here his profound legal scholarship a clear thinking and rational mind and a burning sense of justice
The Law Reports will bear testimony to his sound erudition and his masterly grasp of the fundamental principles which lie at the root of our legal system
His judgments had a freshness and a compactness and were not mere collections of precedents
He delved deep into the foundations of the law and analysed the underlying principles with clarity and precision
By his judgments he made 969 priceless contributions to our legal literature
As a Judge he shed lustre on the High Court at Calcutta as well as on this Court
His energy was not confined to law only
He was closely associated with the Scout movement in Bengal
He was a profound Sanskrit scholar and earned the degree of Saraswati
Perhaps he imbibed his Sanskrit scholarship from his revered father
He became President of the Bengal Sanskrit Association
He was also a Fellow of the Calcutta University
He was also a good student of philosophy
He had sensitive and fine literary tastes and he could recite from memory long passages from Tagore s works as well as from the works of Sanskrit and English poets
He was an essentially religious main with a scrupulously chaste character
He was pure in thought word and deed
Mukherjea was loved and respected because of his deep human sympathy piety and the nobility of his character
He drew people towards him and radiated a serenity on all who came into contact with him
I have heard more than one person say that on returning home after a visit to Mukherjea he felt that he had returned as a better man
He was ailing and undergoing suffering and pain and death must have brought relief and deliverance to him
But by his premature retirement and death our Court and country have lost an illustrious Chief Justice an erudite scholar a sound jurist and above all a great gentleman and we who had the privilege of working with him and sharing our joys and sorrows with him have lost a brilliant colleague a respected leader and a lovable friend
We mourn his death as a personal loss and we pay our respectful homage and sincere tribute of appreciation and affection to the memory of the great departed soul
May his soul rest in eternal peace
We also offer our sincere sympathies to his son who is an Advocate of this Court
M C Setalvad Attorney General of India
My Lords The Bar respectfully associates itself with all that has fallen from my Lord the Chief Justice
970 His ill health followed by his painful illness which led to his premature retirement made us all feel that he would not be with us for long
Yet when the news of the end came so endearing was his personality and so great his kindness to everyone who came it contact with him that all of us were deeply touched
Rarely has one the privilege of appearing before a Judge with such a deep knowledge of fundamental principles in all branches of the law and an unfailing and quick grasp of legal issues
Whether it was a question relating to Hindu Religious Endowments a subject in which he had made extensive research or a constitutional question or a question of the law of contract his piercing intellect and analytical mind immediately perceived the points that arose the Counsel had to be prepared to deal with a series of searching questions on all the legal aspects which arose
His erudition in law is writ large in the numerous judgments delivered by him scattered over the reports of this Court during the last six years
His masterly exposition of the doctrine of equality before the law in Cheranjitlal s case and his analysis of the law of frustration of contract with a view to show that in India it had its roots not in the theory of a term implied by the parties but in a positive statutory provision are landmarks in the development of our law of the Constitution and our law of contract
Truly did Justice Douglas of the United States speak in his recently delivered Tagore  Law Lectures of the march of
legal doctrine from Marshall to Mukherjea
Nor were his interests confined to the sphere of law
He was a keen student of philosophy and literature had a profound knowledge of Sanskrit and was deeply interested in all literary and cultural problems
He had a prodigious memory and even a few minutes with him gave one glimpses of many an interesting event in the history and politics of Bengal
Great as a Judge and a learned scholar he was I think even greater as a man
Simple and unassuming gentle and kind frank and outspoken he won the affection of all who
came to know him
A few months 971 ago a member of the Bar was brought before a Bench over which he presided to answer a charge of misconduct which he admitted
Considering the question of punishment the late Chief Justice asked Counsel assisting the Court whether it would be just to punish the Advocate with a year s suspension when he had a family dependent on his professional earnings
That was a question truly characteristic of him and showed his kindly heart
We at the Bar voice our deep grief at the sad demise of a great and distinguished Chief Justice and extend our warm sympathies to his bereaved family


Summary:
In June 1950 goods belonging to the appellant company were stolen and as the result of an enquiry the respondent was dismissed on the ground of gross negligence and misconduct
He was prosecuted on a charge of theft but was acquitted in March 1952 and thereupon he made an application before the Labour Commissioner 957 for reinstatement and compensation under section 162 of the Central Provinces and Barar Industrial Disputes Settlement Act 1947
It was contended for the appellant that the application was not main tainable because 1 the respondent was not an employee on the date of the application having been dismissed long prior thereto and 2 his dispute was an individual and not an industrial dispute Held 1 that the definition of employee in section 210 of the Act includes one who has been dismissed and has ceased to be in service and that the inclusive clause therein was inserted ex abundanti cautela to repel a possible contention that employees discharged under sections 31 and 32 of the Act would not fall with Ins 210 and cannot be read as importing an intention generally to exclude dismissed employees from that definition
Western India Automobile Association vs Industrial Tribunal Bombay 1949 FCR 321 relied on
2 that a dispute between an employer and an employee who has been dismissed and who makes a claim for reinstatement and compensation would be an industrial dispute within the meaning of section 212 of the Act and section 16 enables the employee to enforce his individual rights against an order of dismissal discharge removal or suspension
Quaere whether a dispute simpliciter between an employer and a workman would be an industrial dispute within section 2k of the XIV of 1947