Appeal No 124 of 1959
Appeal by special leave from the Award dated February 8 1957 of the Additional Industrial Tribunal Delhi in Misc
I D Case No 422 of 1956
Jawala Prasad Chopra and J K Haranandani for the appellants
C K Daphtary Solicitor General of India H J Umrigar M K Ramamurthi V A Seyid Muhamad and M R Krishna Pillai for the respondent
March 22
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal by special leave is directed against the order passed by the Additional Industrial Tribunal Delhi directing the appellant Ms New India Motors Private Ltd to reinstate its former employee K T Morris the respondent in his original post as field service representative and to pay him his back wages from the date of his dismissal till the date of his reinstatement
This award has been made on a complaint filed by the respondent against the appellant under section 33A of the XIV of 1947 hereinafter called the Act
It appears that before joining the appellant the respondent was working with a firm in Calcutta prior to that he was field service representative of Ms Premier Automobiles Ltd Bombay
The respondent joined the services of the appellant sometime in May 1954 as Works Manager
Before he joined the services of the appellant he had been told by the appellant by its letter dated March 27 1954 that the appellant would be willing to pay him Rs 350 per month and something more by way of certain percentage on business
He was however asked to interview the 352 appellant an interview followed and the respondent was given a letter of appointment on May 6 1954
By this letter he was appointed as Workshop Manager in the appellant s firm on three months  probation subject to the terms and conditions specified in the letter of appointment exhibit W 2
The respondent continued in this post till February 28 1955 when he was given the assignment of the appellant s field service organiser with effect from March 1 1955
A letter of appointment given to him on 28 2 1955 set forth the terms and conditions of his new assignment
It appears that on April 18 1956 the management of the appellant called for an explanation of the respondent in respect of several complaints
An explanation was given by the respondent
It was however followed by another communication from the appellant to the respondent setting forth specific instances of the respondent s conduct for which explanation was demanded
The respondent again explained and disputed the correctness of the charges
On June 30 1956 the respondent s services were terminated on the ground that the appellant had decided to abolish the post of field service representative
It is this order which gave rise to the respondent s complaint under section 33A of the Act
The complaint was filed on July 18 1956
The respondent invoked section 33A because his case was that at the time when his services were terminated an industrial dispute was pending between the appellant and 7 of its employees and the respondent was one of the workmen concerned in the said industrial dispute
The said industrial dispute had reference to the termination of the services of the said 7 employees who were working with the appellant as apprentices
On their behalf it was alleged that their termination of service was improper and illegal and that was referred to the industrial tribunal for its adjudication on August 20 1955
The said dispute was finally decided on January 2 1957
With the merits of the said dispute or the decision thereof we are not concerned in the present appeal
According to the respondent since he was a workman concerned in the said dispute section 331a applied and it was not open to the appellant to terminate his 353 services save with the express permission in writing of the authority before which the said dispute was pending
It was on this basis that he made his complaint under section 33A of the Act
Before the tribunal the appellant urged that the respondent was not a workman as defined by the Act and on the  merits it was contended that the appellant had to abolish the post of the field service organiser owing to the fact that a part of the agency work of the appellant had been lost to it
On the other hand the respondent contended that he was a workman under the Act and the plea made by the appellant about the necessity to abolish his post was not true and genuine
His grievance was that his services were terminated solely because he had taken interest in the complaint of the 7 apprentices which had given rise to the main industrial dispute and had in fact given evidence in the said dispute on behalf of the said apprentices
The tribunal has found that the respondent is a workman under the Act that there was no evidence to justify the appellant s contention that it had become necessary for it to abolish the respondent s post and that it did appear that the respondent had been discharged because the appellant disapproved of the respondent s conduct in supporting the 7 apprentices in the main industrial dispute
As a result of these findings the tribunal has ordered the appellant to reinstate the respondent
The question as to whether the respondent is a workman as defined by section 2s of the Act is a question of fact and the finding recorded by the tribunal on the said question after considering the relevant evidence adduced by the parties cannot be successfully challenged before us in the present appeal
The respondent has given evidence as to the nature of the work he was required to do as field service organiser
The letter of appointment issued to him in that behalf expressly required inter alia that the respondent had if need be to check up and carry out necessary adjustments and repairs of the vehicles sold by the appellant to its customers and to obtain signatures of responsible persons on the satisfaction 354 forms which had been provided to him
The respondent swore that he looked after the working of the workshop and assisted the mechanics and others in their jobs
He attended to complicated work himself and made the workmen acquainted with Miller s special tools and equipment needed for repairs and servicing of cars
He denied the suggestion that he was a member of the supervisory staff
On this evidence the tribunal has based its finding that the respondent was a workman under section 2s and we see no reason to interfere with it
Then as to the appellant s case that it had to abolish the post of the respondent as it had lost the agency of DeSoto cars from Premier Automobiles there is no reliable evidence to show when this agency was actually lost
Besides the fact that the appellant has appointed a Technical Supervisor after discharging the respondent is also not without significance
Furthermore the appellant is still the agent for Plymouth and Jeeps and the tribunal is right when it has found that it still needed a field representative to look after servicing of sold cars at outside stations
On the other hand the evidence of the respondent clearly shows that he supported the case of the 7 apprentices and that provoked the appellant to take the step of terminating his services
The process of finding fault with his work appears to have commenced after the appellant disapproved of the respondent s conduct in that behalf
We are therefore satisfied that the tribunal was right in coming to the conclusion that the dismissal of the respondent is not sup ported on any reasonable ground and in fact is due to the appellant s indignation at the conduct of the respondent in the main industrial dispute between the appellant and its 7 employees
If that be the true position the industrial tribunal was justified in treating the dismissal of the respondent as mala fide
It has however been urged before us by the appellant that the complaint made by the respondent under section 33A is not competent
It is common ground that a complaint can be made under section 33A only if section 33 has been contravened and so the appellant s argument is that B 331a is inapplicable because the respondent 355 was not a workman concerned in the main industrial dispute and as such his dismissal cannot be said to contravene the provisions of the said section
Indeed the principal point urged before us by the appellant is in regard to the construction of section 331a of the Act
Was the respondent a workman concerned with the main industrial dispute  That is the point of law raised for our decision and its decision depends upon the construction of the relevant words used in section 331a
Section 331a as it stood prior to the amendment of 1956 provided inter alia that during the pendency of any proceedings before a tribunal no employer shall alter to the prejudice of the workmen concerned in the said dispute the conditions of service applicable to them immediately before the commencement of the said proceedings save with the express permission in writing of the tribunal
Section 33 has been modified from time to time and its scope has been finally limited by the amendment made by Act 36 of 1956
With the said amendments we are however not con cerned
The expression  the workmen concerned in such dispute  which occurred in the earlier section has not been modified and the construction which we would place upon the said expression under the unamended section would govern the construction of the said expression even in the amended section
What does the expression  workmen concerned in such dispute  mean  The appellant contends that the main dispute was in regard to the discharge of 7 apprentices employed by the appellant and it is only the said 7 apprentices who were concerned in the said dispute
The respondent was not concerned in the said dispute and so the termination of his services cannot attract the provisions of section 331a
Prima facie the argument that  workmen concerned in such dispute  should be limited to the workmen directly or actually concerned in such dispute appears plausible but if we examine the scheme of the Act and the effect of its material and relevant provisions this limited construction of the clause in question cannot be accepted 356 Let us first consider the definition of the industrial dispute prescribed by section 2k
It means inter alia any dispute or difference between employers and workmen which is connected with the employment or non employment or the terms of employment or with the conditions of labour of any person
It is well settled that before any dispute between the employer and his employee or employees can be said to be an industrial dispute under the Act it must be sponsored by a number of workmen or by a union representing them
It is not necessary that the number of workmen of the union that sponsors the dispute should represent the majority of workmen
Even so an individual dispute cannot become an industrial dispute at the instance of the aggrieved individual himself It must be a dispute between the employer on the one hand and his employees acting collectively on the other
This essential nature of an industrial dispute must be borne in mind in interpreting the material clause in section 331a
Section 18 of the Act is also relevant for this purpose
It deals with persons on whom awards are binding
Section 183 provides inter alia that an award of a tribunal which has become enforceable shall be binding on a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute unless the tribunal records the opinion that they were so summoned without proper cause and c where a party referred to in cl
a or cl
b is composed of workmen all persons who were employed in the establishment or part of the establishment as the case may be to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part
It is thus clear that the award passed in an industrial dispute raised even by a minority union binds not only the parties to the dispute but all employees in the establishment or part of the establishment as the case may be at the date of the dispute and even those who may join the establishment or part subsequently
Thus the circle of persons bound by the award is very much wider than the parties to the industrial dispute
This aspect of the 357 matter is also relevant in construing the material words in section 331a
In this connection the object of section 33 must also be borne in mind
It is plain that by enacting section 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them
During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced
That being the object of section 33 the narrow construction of the material words used in section 331a would tend to defeat the said object
If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the terms and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid
Similarly it would leave liberty to the other employees to raise disputes and that again is not desirable
That is why the main object underlying section 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in section 331a
Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such disputes must be workmen directly or immediately concerned in the said disputes
We do  not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes
In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it
As we have already pointed out this construction is harmonious with the definition prescribed by section 2s and with the provisions contained in section 18 of the Act
Therefore 46 358 we are not prepared to hold that the expression  workmen concerned in such dispute  can be limited only to such of the workmen who are directly concerned with the dispute in question
In our opinion that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute
It appears that the construction of the relevant clause had given rise to a divergence of opinion in industrial courts but it may be stated that on the whole the consensus of opinion appears to be in favour of the construction which we are putting on the said clause
In Eastern Plywood Manufacturing Co Ltd vs Eastern Plywood Manufacturing Workers  Union 1 the appellate tribunal has referred to the said conflict of views and has
held that the narrow construction of the clause is not justified
The High Court of Madras appears to have taken the same view Vide Newtone Studios Ltd vs Ethirajulu TR 2 
On the other hand in The New Jehangir Vakil Mills Ltd Bhavnagar vs NL Vyas  Ors
3 the Bombay High Court has adopted the narrow construction  but for reasons which we have already explained we must hold that the Bombay view is not justified on a fair and reasonable construction of the relevant clause
In the result the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
In respect of a dispute between the appellant company and the respondent company which was referred to the arbitration of the Bengal Chamber of Commerce in terms of the arbitration clause contained in the contract entered into on April 6 1951 an award was made on February 29 1952 allowing the claim of the appellant
The respondent made an application in the High Court for having the award set aside on the ground inter alia that the contract was void under the provisions of the Raw jute Central jute Board and Miscellaneous Provisions Act 1951 inasmuch as it had not been entered into in the manner specified in sections 5 6 and 7 of the Act as required therein
On December 14 1950 the Government of West Bengal had promulgated an Ordinance called the Raw jute Central jute Board and Miscellaneous Provisions Ordinance 1950 for the better regulation of the trade and on December 291950 a notification was issued specifying December 30 1950 as  the appointed day for the purposes of sections 5 6 and 7 Of the said Ordinance Subsequently the Ordinance was replaced by the Act which by section 16 provided   any notification issued  under the Raw Jute Central jute Board and Miscellaneons Provisions Ordinance 1950 shall on the said Ordinance ceasing to operate be deemed to have been issued under this Act as if this Act had commenced on the 14th day of December 1950
 It was contended for the appellant that the notification dated December 29 1950 could not be read as having brought sections 5 6 and 7 Of the Act into force because on a plain reading of it the notification did not purport to bring any of the sections of the Act into force but expressly brought sections 5 6 and 7 of the Ordinance into force and that the said sections of the Act not having been brought into force the contract in question was valid and consequently the award was binding and enforceable
Held that in order to give full effect to the two legal fictions created in section 16 of the Act that the Act shall be deemed to have commenced on December 14 195o and that the notification issued under the Ordinance shall be deemed to have 80 been issued under the Act the principle of mutatis mutandis has to be adopted and the word  Act  substituted for the word  Ordinance  used in the notification dated December 29 1950
Consequently the provisions of sections 5 6 and 7 Of the Act were applicable to the contract in question