Case: D. N. Banerji Vs. P. R. Mukherjee And Others

Chandrasekhara Aiyar, J. (1) Pratui Chandra Mitra was the head clerk, and Phanindra Nath Ghose, the sanitary inspector of the Budge Municipality, and they were also members of the Municipal Workers 196 Union. On receipt of complaints against them for negligence, insubordination and in- discipline, the chairman of the municipality suspended them on 13/7/1949, drew up separate proceedings, and called for an explanation within a specified date. After the explanations were received, they were considered at a meeting of the commissioners held on 6/8/1949, and by a majority, the commissioners confirmed the order of suspension and directed the dismissal of the two employees. At the instance of the Municipal Workers union who questioned the propriety of the dismissal, the matter was referred by the State of West Bengal on 24/9/1949 to the industrial tribunal for adjudication under the Industrial Disputes Act. The tribunal made its award on 13/2/1950 that the suspension and punishment of the two employees were cases of victimization, and It directed their reinstatement in their respective offices. (2) The municipality took the matter to the High court at Calcutta by means of a petition for a writ of certiorari under articles 226 and 227 of the Constitution. There were prayers In the petition for quashing the proceeding before the tribunal, for cancellation of the award, and for an order restraining the authorities from giving effect to the award and from taking any steps in pursuance thereof. At the instance of the High Court, a separate application was filed under article 227. Both the petitions were heard by Harries C. J. and Sambhu Nath Banerjee J. The points raised before them on behalf of the petitioners were five in all : (a) that there was no industrial dispute, and therefore there could be no reference under the Industrial Disputes Act to any tribunal ; (b) that the said Act was not applicable to disputes with municipalities : (c) that even if it did, it was ultra virus; (d) that the tribunal should not have directed reinstatement of the dismissed employees; and (e) that the award was bad on the merits. These contentions were negative by the learned judges, and the petitions were dismissed. But leave was granted under article 132 (1) of the Constitution, and that is how the matter has now come up before us. (3) It is not necessary to dwell at any length on points (c), (d) and (e). If the Industrial Disputes Act applies to municipalities and their employees, the power to reinstate dismissed employees, held in Western India Automobile Association v. Industrial tribunal, Bombay and others (See 1949 L.L.J. p 245] to be within the competence of a tribunal under the Act, will trench no doubt on the power to appoint and dismiss conferred on the chairman and commissioners of municipalities under S. 66 and 67 of the Bengal Municipal Act. This invasion of the provincial field of legislation does not however render the Industrial Disputes Act of the central legislature invalid, as we have to pay regard primarily to the pith and substance of the challenged Act in considering the question of conflict -between the two jurisdictions. Industrial and labour disputes are within the competence of the central legislature, and the impugned Act deals with this subject and not with local government. The point is covered by Prafulla Kumar Mookerjee v, Bank of Commerce Ltd., Khulna [L.R. 74 1. A. 23] (4) Whether on the facts of a particular case the dismissal of an employee was wrongful or justified is a question primarily for the tribunal to decide, and here the tribunal held that the dismissals were clear cases of victimization and hence wrongful. Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High court under articles 226 and 227 of the Constitution to interfere. (5) Points (a) and (b) are interlaced. The dismissal of the two employees was taken up by the Municipal Workers Union who challenged it as grossly improper. Thus it is clear that there was a dispute between the employer, viz.. the municipality on the one side and the workmen represented by the union on the other. But what is urged by the municipality is that it was not an industrial dispute" within the meaning of the Act, and hence there was no jurisdiction in government to refer the dispute to a tribunal. It is contended on their behalf that 197 the municipality in discharging its normal duties connected with local self-government is not engaged in any industry as defined in the Act. It is this question that we have to consider, and for this purpose it becomes necessary to examine rather closely some of the provisions in the Act to ascertain their true scope and meaning. "Industry "and "industrial dispute" are defined in the Act in section 2, clauses (j) and (k) as follows : (j) industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen; (k) industrial dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen 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." As clause (k) refers to workmen, we must also look at the definition of "workman" in clause (s) which is in these terms: workman means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the government. " (6) Corresponding definitions of "trade dispute" and "workman" are found in section 8 of the Industrial courts Act, 1919 (9 and 10, George V), and they run in these terms: " The expression trade dispute" means any dispute or difference between employers and workmen, or between workmen and workmen connected with the employment or non-employment or the terms of the employment or with the conditions of labour of any person. " The expression workman means any person who has entered into or works under a contract with an employer whether the contract be by way of manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour. " " Trade dispute " as defined in the English Act and "industrial dispute" as defined is our Act mean the same thing practically. (7) It has to be conceded, even at the ousted that. an industry can be carried on by of under the authority of the central or State government, or by or on behalf of a local authority. This is made clear not only by the provision in sub-clause (i) of clause (a) of section 2 but also by the definition of "employer" in clause (g) to the following effect: employer means- (i) in relation to an industry carried on by or under the authority of any department of the central government or a State government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority." (8) Where a dispute arises in such an industry between the employees on the one side and the central government or the State or the local body on the other, it would be an industrial dispute undoubtedly. But where a dispute arises in connection with the discharge of the normal activities of government or of a local body, it is argued for the appellant that the dispute cannot be regarded as an industrial dispute. The soundness of this contention falls to be examined. (9) In the ordinary or non-technical sense, according to what is understood by the man in the street, industry or business means an undertaking where capital and labour co-operate with each other for the purpose of producing wealth in the shape of goods, machines, tools, etc., and for making profits. The concept of industry in this ordinary sense applies even to agriculture, horticulture, pisciculture and so on and so forth. It is also clear that every aspect of activity in which the relationship of employer and employee exists or arises does not thereby become an industry as commonly understood. We hardly think in terms of an industry, when we have regard, for instance, to the rights and duties of master and servant, or of a government and its secretarial, or the members of the medical profession working in a hospital. It would be regarded as absurd 198 think so; at any rate, the layman unacquainted with advancing legal concepts of what 18 meant by industry would rule out such a connotation as impossible. There is nothing however to prevent a statute from giving the word ."industry" and the words industrial dispute" a wider and more comprehensive import in order to meet the requirements of rapid industrial progress and bring about in the interests of Industrial peace and economy, a fair and satisfactory adjustment of relations between employers and workmen in a variety of fields of activity. It is obvious that the limited concept of what an industry meant in early times must now yield place to an enormously winder concept so as to take in various and warier forms of industry, so that disputes arising in connection with them might be settled quickly without much dislocation and disorganization of the needs of society and in manner more adapted to conciliation and settlement than a determination of the respective rights and liabilities according to strict legal procedure and principles. The confects between capital and labour have now to be determined more from the standpoint of status than of contract. Without such an approach, the numerous problems at now arise for solution in the shape of industrial disputes cannot be tackled satisfactorily, and this Is why every civilized government has thought of the machinery of condiliation officers, boards and tribunals for the effective settlement of disputes. (10) It is therefore incumbent on us to ascertain what the statute means by " industry " and " industrial dispute, " leaving aside the original meaning attributed to the words in a simpler state of society, when we had only one employer perhaps doing a particular trade or carrying on a particular business with the help of his own tools, material and skill and employing "a few workmen in the process of production or manufacture, and when such disputes that occurred did not go behind individual levels into acute fights between rival organizations of workmen and employers, and when large-scale strikes and lockouts throwing society into chaos and confusion were practically unknown. Legislation had to keep pace with the march of times and to provide for new situations. Social evolution is a process of constant growth, and the State cannot afford to stand still without taking adequate measures by means of legislation to solve large and momentous problems that arise in the industrial field from day to day almost. (11) These remarks are necessary for a proper understanding of the meaning of the terms employed by the statute. It is no doubt true that the meaning should be ascertained only from the words employed in the definitions, but the set-up and context are also relevant for ascertaining what exactly was meant to be conveyed by the terminology employed. As observed by Lord Atkinson in Keats v. Lewis Merthy Consolidated Collieries 1911 A. 0.8). "In the construction of a statute it is, of course, at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed, and to the evils, which as appears from its provisions, it was designed to remedy. " (12) If the words are capable of one meaning alone, then It must be adopted, but if they are susceptible of wider import, we have to pay regard to what the statute or the particular piece of legislation had in view. Though the definition may be more or less the same In two different statutes, still the objects to be achieved not only as set out in the preamble but also as gatherable from the antecedent history of the legislation may be widely different. The same words may mean one thing in one context and another in a different context. This is the reason why decisions on the meaning of particular words or collection of words found in other statutes are scarcely of much value when we have to deal with a specific statute of our own; they may be helpful, but cannot be taken as guides or precedents. (13) The words "industrial dispute" convey the meaning to the ordinary mind that the dispute must be such as would affect large groups of workmen and employers ranged on opposite sides on some general questions on which each group is bound together by a community of interests-such as wages, bonuses, allowances, pensions, provident fund, number of working hours per week, holidays and so on. Even with reference to a business that is carried on, we would hardly think of saying that there is an industrial dispute where the employee is dismissed by 199 his employer and the dismissal is questioned as wrongful. But at the same time, having regard to the modern conditions of society where capital and labour have organized themselves into groups for the purpose of lighting their disputes and settling them on the basis of the theory that in union is strength, and collective bargaining has come 1.0 stay, a single employees case might develop into an Industrial dispute, when as often happens, it is taken up by the trade union of which he Is a member, and there Is a concerted demand by the employees for redress. Such trouble may arise in a single establishment or a factory. It may well arise also in such a manner as to cover the industry as a whole in a case where the grievance, if any, ] passes from the region of individual complaint into a general complaint on behalf of all the workers in the Industry. Such wide- spread extension of labour unrest is not a rare phenomenon but is of frequent occurrence. In such a case, even an industrial dispute In a particular business becomes a large-scale industrial dispute, which government cannot afford to ignore as a minor trouble to be settled between the particular employer and workman. (14) When our Act came to be passed, labour disputes had already assumed big proportions, and there were clashes between workmen and employers in several instances. We can assume therefore that it was to meet such a situation that the Act was enacted, and it is consequently necessary to give the terms employed In the Act referring to such disputes as wide an import as reasonably possible. Do the definitions of " industry," Industrial dispute " and " workmen " take in the extended significance, or exclude it ? Though the word "undertaking" in the definition of " industry" is wedged in between business and trade on the one hand and manufacture on the other and though there- fore it might mean only a business or trade undertaking, still it must be remembered that if that were so, there was no need to use the word separately from business or trade. The wider Import Is attracted even more clearly when we look at the latter part of the definition which refers to "calling, service, employment, or industrial occupation or avocation of workmen." " Undertaking " in the first part of the definition and " Industrial occupation or avocation " in the second part obviously mean much more than what is ordinarily understood by trade (business. The definition was apparently intended to include within its scope what might not strictly be called a trade or bus - ness venture. (15) Another provision in the Act defining "public utility service" and contained in sub-clause (n) of section 2 is very relevant and important in the interpretation of "in dusty", and " industrial dispute," and it is the following effect: " public utility service means- (i) any railway service ; (ii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends ; (iii) any postal, telegraph or telephone service; (iv) any industry which supplies power; light or water to the public ; (v) any system of public conservancy or sanitation; (vi) any industry specified in the schedule which the appropriate government may, if satisfied that public emergency or public interest so requires, by notification in the official Gazette declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification ; Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at any one time if in the opinion of the appropriate government public emergency or public interest requires such extension" (16) A public utility service such as railway 3, telephones and the supply of power, light or water to the public may be carried on by private companies or business corporation by Even conservancy or sanitation may be so carried on, though after the introduction of local self-government this work has In almost every country been assigned as a duty to local bodies like our municipalities or district boards or local boards. A dispute in these services between employers and workmen Is an industrial dispute, and the proviso to S. 10 lays down that where such a dispute arises and a notice under section 22 has been given, the appropriate government shall make a reference under the sub-section. If the public utility service is carried on by a corporation like a municipality which is the creature of a statute, and which functions under the limitations imposed by the statute, does it cease to be an industry for this reason ? The only ground, on which one could say that what would amount to the carrying on of an industry if it is done by a private person ceases to be so if the same work is carried on by a local body like a municipality is that in the latter there is nothing like the investment of any capital or the existence of a profiteering motive as there generally is in a business. But neither the one nor the other seems a sine qua non or necessary element in the modern conception of industry. (17) In specifying the purpose to which the municipal fund is applicable, section 108 of the Bengal Municipal Act (XV of 1932) enumerates under 36 separate heads several things such is the construction and maintenance of streets, lighting, water-supply, conservancy, maintenance of dairy farms and milk of markets on lease, described as the normal activities of the municipality. Some of these functions may appertain to and partake of the nature of an industry, while others may not. For instance, there is a necessary element of distinction between the supply of power and light to the inhabitants of a municipality and the running of charitable hospitals and dispensaries for the aid of the poor. In ordinary parlance, the former might be regarded as an industry but not the latter. The very idea underlying the entrustment of such duties or functions to local bodies is not to take them out of the sphere of industry but to secure the substitution of public authorities in the place of private employers and to eliminate the motive of profit-making as far as possible. The levy of taxes for the maintenance of the services of sanitation and conservancy or the supply of light and water is a method adopted and devised to make up for the absence of capital. The undertaking or the service will still remain within the ambit of what we understand by an industry though it is carried on with the aid of taxation, and no immediate material gain by way of profit is envisaged. (18) In National Association of Local government Officers v. Bolton Corporation [1943 A. 0. 16)], after referring to the definitions of "trade dispute and "workman" contained in the order of reference to the National Arbitration tribunal and pointing out that they are identical with, and have the same meaning as, the definitions contained in the Industrial courts Act, 1919, Lord Wright observed as follows at page 184 of the report: "The appellant contended that they include the members of the appellant trade union. The respondents disputed this, because, they said, the definitions do not include employees of a public or local authority like the respondents, and, in particular, such employees who are engaged in professional, technical or administrative services. In my opinion the respondents contention would unduly narrow and limit the wide connotation which should here be given to trade and to workman. Section II of the Act of 1919 shows that trade is used as including industry because it refers to a trade dispute in the industry of agriculture. The same inference appears from the short title. It is described as an Act to provide for the establishment of an industrial court in connection with trade disputes. Trade and industry are thus treated as interchangeable terms. Indeed trade is not only in the etymological or dictionary sense, but in the legal usage, a term of the widest scope. It is connected originally with the word tread and indicates a way of life or an occupation. In ordinary usage it may mean the occupation of a small shopkeeper equally with that of a commercial magnate. It may also mean a skilled craft. It is true that it is often used in contrast with a profession. A professional worker would not ordinarily be called a tradesman, but the word trade is used in the widest application to the appellation trade unions. Professions have their trade unions. It is also used in the Trade Boards Act to include industrial undertakings. I see no reason to exclude from the operation of the Industrial courts Act the activities of local authorities, even without taking into account the fact that these authorities now carry on in most cases important industrial undertakings. The order expressly states in its definition section that trade or industry includes the performance of its functions by a public local authority. It is true that these words are used in Part III, which deals with recognized terms and conditions of employment, and in Part IV, which deals with departures from trade practices in any industry or undertaking, and not in Part I, which deals with national arbitration and is the part material in this case, but I take them as illustrating what modern conditions involve-the idea that the functions of local authorities may come under the expression trade or Industry. I think the same may be Bald of the Industrial courts Act and of Reg. 58-AA, in both of which the word trade is used in the very wide connotation which it bears in the modern legislation dealing with conditions of employment, particularly in relation to matters of collective bargaining and the like. " The justification for this rather long quotation is that it deals with the specific point now in issue before us. (19) The same question as the one now before us came up for decision in an Australian case reported in Federated Municipal and Shire council Employees Union of Australia v. Melbourne Corporation [28 C.L.R. 508], and the judgments of some of the learned judges are instructive. There was a union called the. Federated Municipal and Shire council Employees Union of Australia, which was registered as an organization under the Commonwealth Conciliation and Arbitration Act, 1914-1915, as having been constituted in connection with municipal and shire councils, municipal trusts and similar industries. The organization made claims in respect of work done by its members employed by certain municipal corporations in respect of the making, maintenance, control and lighting of public streets. The original reference stated the dispute as one which "relates to such operations of the said municipal corporations as do not consist of municipal trading," but it was subsequently amended during argument by substituting for the words "as do not consist of municipal trading" the words "as consist of the making, maintenance, control and lighting of public streets or any of them." (20) Two points were argued before the High court. The first one raised the question of the existence and extent of the immunity of municipalities as instrumentalities of government of the States, but it has no relevance here. The second point which is material was whether the employees of municipalities could be said to be engaged in an industrial dispute within the meaning of section 61, Ss. 35 of the Constitution. The corporations contended that they were not carrying on any Industry but only the normal functions assigned to them under the statute, and that there was therefore no Industrial dispute that could be referred to the arbitration court. The meaning of the words " Industrial disputes " used in the said sub-section had therefore to be ascertained and adjudged. The majority of the learned judges-four against two-decided in Favour of the union. Bach side put forward an extreme contention. For the claimant it was urged that "industrial" meant simply relating to industry in the abstract," whether it be in the exercise of trade, commerce, science or learned professions. The corporations contended that "industrial dispute" meant a "trade dispute." and that "trade dispute" means "a dispute in trade carried only the employer for profit." A formula midway between these two extremes was postulated in these terms by Isaccs and Rich, JJ. who were two out of the four who constituted the majority : "Industrial disputes occur when, in relation to operations In which capital and labour are contributed in co-operation for the satisfaction of human wants and desires, those engaged in co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the product or any other terms and conditions of their co-operation." (21) After giving copious extracts from the report of the Royal Commission appointed in 1890 in England to deal with labour problems, they summed up their final conclusion in these words at page 564 : "The question, of profit-making may be Important from an income-tax point of view, as in many municipal cases in England but from an industrial dispute point of view, it cannot matter whether the expenditure Is met by fares from passengers or from rates." (22) Dealing with the insistence by the corporations of the need for the profit-making motive as an essential element before one can say that a trade dispute or industrial dispute has arisen, Powers. J., who was also the deputy president of the arbitration tribunal, observed: " So far as the question in this cases is concerned, as the argument proceeded the ground mostly relied upon (after the councils were held not to be exempt as State instrumentalities) was that the work was not carried on by the municipal corporations for profit in the ordinal sense of the the term, although it would generally speaking be carried on by the councils themselves to save contractors profits. If that argument, were sufficient, then a philanthropist who acquired a clothing factory and employed the same 202 employees as the previous owner had employed would not be engaged in an occupation about which an industrial dispute could arise, if he distributed the clothes made to the poor free of charge or even if he distributed them to the poor at the bare cost of production. If the contention of the respondents is correct, a private company carrying on a ferry would be engaged in an industrial occupation. If a municipal corporation carried It on, it would not be industrial. The same argument would apply to baths, bridge building, quarries, sanitary contracts, gas making for lighting streets and public halls, municipal building of houses or halls, and many other similar industrial undertakings. Even coal-mining for use on municipal railways or tramways would not be industrial work if the contention of the respondents is correct. If the works In question are carried out by contractors or by private individuals it is said to be industrial, but not industrial within the meaning of the Arbitration Act or Constitution if carried out by municipal corporations. I cannot accept that view." (23) Having regard to the definitions found in our Act, the aim or objective that the legislature had in view, and the nature, variety and range of, disputes that occur between employers and employees, we are forced to the conclusion that the definitions in our Act include also disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying out of a trade or business. It is unnecessary to decide whether disputes arising in relation to purely administrative work fall within their ambit. After all whether there is an industrial dispute at all is for government primarily to find out, for It is only then it has jurisdiction to refer. Moreover, it is not every case of an industrial dispute that government Is bound to refer. They may refer some, but may not also. It is a question of expediency. (24) There was no ground urged before us or before the High court that the sanitary inspector and the head clerk of the municipality were officers and not "workmen" within the meaning of the Act. The dispute raised on their behalf by the workers union of which they were members is, in our view, an "industrial dispute" within the meaning of the Act.

Decision reasoning: 0[ds](4) Whether on the facts of a particular case the dismissal of an employee was wrongful or justified is a question primarily for the tribunal to decide, and here the tribunal held that the dismissals were clear cases of victimization and hence wrongful. Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High court under articles 226 and 227 of the Constitution to interfere(23) Having regard to the definitions found in our Act, the aim or objective that the legislature had in view, and the nature, variety and range of, disputes that occur between employers and employees, we are forced to the conclusion that the definitions in our Act include also disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying out of a trade or business. It is unnecessary to decide whether disputes arising in relation to purely administrative work fall within their ambit. After all whether there is an industrial dispute at all is for government primarily to find out, for It is only then it has jurisdiction to refer. Moreover, it is not every case of an industrial dispute that government Is bound to refer. They may refer some, but may not also. It is a question of expediency(24) There was no ground urged before us or before the High court that the sanitary inspector and the head clerk of the municipality were officers and not "workmen" within the meaning of the Act. The dispute raised on their behalf by the workers union of which they were members is, in our view, an "industrial dispute" within the meaning of the Act.