Case: Central Provinces Transport Services Ltd Vs. Raghunath Gopal Patwardhan

Venkatarama Ayyar, J. 1. 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 and suspension fell on the respondent. There was an enquiry into the matter, and that resulted in his dismissal on 28-6-1950, on the ground of gross negligence and p73 misconduct. He was then prosecuted on a charge of theft, but that ended in his acquittal on 3-3-1952. Thereafter, he applied to the company to be reinstated, and failing to get redress filed on 1-10-1952, an application before the Labour Commissioner under S. 16 (2), of the C. P. and Berar Industrial Disputes Act No. 23 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 28-6-1950, he was not an employee on the date of the application, that accordingly there was no "Industrial dispute touching the dismissal of an employee" as required by S. 16, sub-ss. (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 S. 16 (5) of the Act, and by its order dated 5-2-1954, that court held that a dismissed employee was an employee as defined in S. 2 (10) of the Act, that a dispute by such an employee was an industrial dispute within S. 2 (12) of the Act, and that the application under S. 16 (2) 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 10-10-1954, affirmed the decision of the Provincial Industrial Court, and dismissed the appeal. The Company has preferred the present appeal against this order under Art. 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 Government ownership) Nagpur. On the application of the respondent, the record has been suitably amended. 2. The point for decision in this appeal is whether an application for reinstatement and compensation by a dismissed employee is maintainable under S. 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. 3. It will be convenient at this stage to refer to the relevant provisions of the Act, as they stood on the material dates. Section 2 (10) defines an employee as follows:" employee means any person employed by an employer to do any skilled, unskilled, manual or clerical work for contract p73 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 S. 31 or 32, whether before or after the discharge." Section 2 (12) defines "Industrial Dispute" as meaning "any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees." Under S. 2 (13), "Industrial matter" means "any matter relating to work, pay, wages, reward, hours, privileges, rights or duties of employees or employers or the mode, terms, conditions of employment or refusal to employ and includes questions pertaining to (a) the relationship between the employer and employee or to the dismissal or non-employment of any person ......." 4. It is not disputed that a question of reinstatement is an industrial matter as defined in S. 2 (13) of the Act. The controversy relates to the question whether it is an industrial dispute as defined in p73 S. 2 (12) of the Act. The contention of the appellant is that it does not fall within that definition, because the further conditions prescribed by S. 2 (12) 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 28-6-1950, 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 other wise there was no need for the further provision in S. 2 (10) that discharged employees would in certain cases be employees; and that, in any event; the inclusive portion of the definition would, on the principleexpressio uniusest exclusio alterius,operate to exclude all ex-employees, other than those mentioned therein.5. The question whether a dismissed employee is an employee as defined in S. 2 (10) of the Act must be held to be practically concluded by the decision of the Federal Court inWestern India Automobile Association: v. Industrial Tribunal, Bombay,1949 F C R 321: A I R 1949 F C 111 (A). There, the point for determination was whether a claim for reinstatement by a dismissed workman was an industrial dispute as defined in S. 2 (k) of the Indian Industrial Disputes Act No. 14 of 1947. It was held that the definition in S. 2 (k) including as it did, all disputes or 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 undoubtedly 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 2 (12) and S. 2 (13) of the Act are substantially inpari materiawith S. 2 (k) of Act No. 14 of 1947, and the ratio of the decision in 1949 F C R 321: A I R 1949 F C 111 (A), 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 S. 2 (k), because if the Government had no jurisdiction under the Act to refer the question of reinstatement of dismissed employee for adjudication, then the reference must, to that extent, be treated as a nullity, and it would be immaterial that, it wasintra viresas regards the other items of dispute. 6. We are also unable to accede to the contention of the appellant that the inclusive clause in S. 2 (10) 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 Ss. 31 and 32 of the Act would not fall within S. 2 (10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition. On the other hand S. 16 of the Act expressly provides for relief being granted to dismissed employees 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 S. 2 (10).We must accordingly hold agreeing with the decision in 1949 F C R 321: A I R 1949 F C 111(A), 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 not in employment on the date of the application. 7. It was next contended that even assuming that the respondent was an "employee" as defined in S. 2 (10) of the Act, his dismissal could not be held to be an industrial dispute as defined in S. 2 (12), 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 S. 2 (12). It was argued in support of this contention that the object of all labour 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.8. The question whether a dispute by an individual workman would be an industrial dispute as defined in S. 2 (k) of the Act No.14 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 only the rights of individual workers, cannot be held to be an industrial dispute. That was the opinion expressed in Kandan Textile Ltd. v. Industrial Tribunal, A I R 1951 Mad 616 : 1949-2 Mad L J 789 (B). There, Rajamannar C. J., observed that though the language of the definition in S .2 (k) was wide enough to include such a dispute, the provisions of S. 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 itself 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 A I R 1951 Mad 616 : 1949-2 Mad LJ 789 (B), were approved in Manager, United Commercial p73 Bank Ltd. v. Commissioner of Labour, A I R 1951 Mad 141 (C); but here again, the observations were obiter, as the point for decision was whether a right of appeal conferred by S. 41 of the Madras Shops and Establishments Act No. 36 of 1947 was taken away by implication by Act No. 14 of 1947. The question, however, arose directly for decision in J. Chowdhury v. M.C. Banerjee, 55 Cal WN 256 (D), 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 AIR 1951 Mad 616 1949-2 Mad L J 789 (B), that the dispute, and that the reference was, in consequence, bad. (II) A dispute between an employer and a single employee can be an industrial dispute as defined in S. 2 (k). That was the decision in Newspapers Ltd., Allahabad v. State Industrial Tribunal, U.P., A I R 1954 All 516 : 1954-2 Lab LJ 263 (E). In that case, a reference of a dispute by a dismissed employee and the award of the Tribunal passed on that reference were attacked as bad on the ground that dispute in question was not an industrial dispute within S. 2 (k) of Act No.14 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, inconsequence, valid. A similar decision was given by a. Full Bench of the Labour Appellate Tribunal inSwadeshi Cotton Mills Co. Ltd. v. Their Workmen,1953-1 Lab LJ 757 (F). (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., inBilash Chandra Mitra v. Balmer Lawrie and Co Ltd.,A I R 1953 Cal 613 (G), by Ramaswami and Sarjoo Prasad J J. inNew India Assurance Co. v. Central Government Industrial Tribunal.A I R 1953 Pat 321 : 32 Pat 181 (H), and by Balakrishna Ayyar J. inLakshmi Talkies, Madras v. Munuswami,1955-2 Lab L J 477 (1), and by the Industrial Tribunal inGordon Woodroffe and Co. (Madras) Ltd. v. Appa Rao1955-2 Lab L J 541 (J) andLynns and Co. v. Hemanta Kumar Samanta,1956-2 Lab L J 89 (K). 9. 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 S. 2 (k) is wide enough to cover a dispute between an employer and a single employee, the scheme, of the Industrial Disputes Act does appeal 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 had 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 S. 16 (2) of the Act as the workmen in the industry had not adopted his dispute p73 as their own and chosen to treat it as theircasus belliwith the company. But then, we are directly concerned in this appeal not with the Industrial Disputes Act No. 14 of 1947 but with the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947, and in the view which we take of the rights of the respondent under that statute, there is no need to express a final opinion on the question whether a dispute simpliciter between an employer and a workman would be an industrial dispute within S. 2 (k) of Act No. 14 of 1947. 10. Now, the C.P. and Berar Industrial Disputes Settlement Act No. 23 of 1947 with which we are concerned, is not inpari materiawith Act No. 14 of 1947. It no doubt covers the ground occupied by that Act, and contains provisions relating to arbitration, adjudication awards, strikes and lockouts. But it contains more. It enacts in Ch.1V 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 No. 20 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", where as the object of the Industrial Disputes Act No. 14 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 No. 14 of 1947, may be said to be primarily concerned with disputes of labour as a class, Act No.20 of 1946 is directed to getting the rights of an employee under a contract defined.Now, as the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947 covers the ground occupied by both Act No.20 of 1946 and Act No.14 of 1947, it would be proper to interpret the expression "industrial dispute" therein in a sense wider than what it bears in Act no. 14 of 1947 so as to cover not only disputes of workmen as a class but also their individual disputes.And this view receives considerable support from other provisions of the Act. Section 41 enacts that an application under that section can be made either by an employee or employees concerned or by a representative of the employees concerned. Section 2 (24) 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 recognition is only for the purpose of S. 41 and that no inference can be drawn therefrom that the employee has a similar right to apply under S. 16 (2). But the importance of S. 41 consists in this that it indicates that the Act has in contemplation the enforcement of individual rights of workmen also. Then we have S. 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 l6 is intended, in our opinion, to enable an employee to enforce his individual rights when there is an order of dismissal, discharge p73 or 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.

Decision:
1[ds]It is not disputed that a question of reinstatement is an industrial matter as defined in S. 2 (13) of the ActWe do not see any force in either of these contentions. Section 2 (12) and S. 2 (13) of the Act are substantially inpari materiawith S. 2 (k) of Act No. 14 of 1947, and the ratio of the decision in 1949 F C R 321: A I R 1949 F C 111 (A), 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 S. 2 (k), because if the Government had no jurisdiction under the Act to refer the question of reinstatement of dismissed employee for adjudication, then the reference must, to that extent, be treated as a nullity, and it would be immaterial that, it wasintra viresas regards the other items of dispute6. We are also unable to accede to the contention of the appellant that the inclusive clause in S. 2 (10) 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 Ss. 31 and 32 of the Act would not fall within S. 2 (10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition. On the other hand S. 16 of the Act expressly provides for relief being granted to dismissed employees 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 S. 2 (10).We must accordingly hold agreeing with the decision in 1949 F C R 321: A I R 1949 F C 111(A), 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 not in employment on the date of the application9. 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 S. 2 (k) is wide enough to cover a dispute between an employer and a single employee, the scheme, of the Industrial Disputes Act does appeal 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 had 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 S. 16 (2) of the Act as the workmen in the industry had not adopted his dispute p73 as their own and chosen to treat it as theircasus belliwith the company. But then, we are directly concerned in this appeal not with the Industrial Disputes Act No. 14 of 1947 but with the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947, and in the view which we take of the rights of the respondent under that statute, there is no need to express a final opinion on the question whether a dispute simpliciter between an employer and a workman would be an industrial dispute within S. 2 (k) of Act No. 14 of 1947Thus, there is a clear recognition of the rights of an individual employee as distinguished from a class of employees, to move for redressSection l6 is intended, in our opinion, to enable an employee to enforce his individual rights when there is an order of dismissal, discharge p73 or 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.