Case: The J. K. Cotton Spinning &amp; Weaving Mills Co., Ltd Vs. The State Of Uttar Pradesh &amp; Ors

there is clearly this disharmony as pointed out above between two provisions, viz., Cl. 5(a) and C. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule, however, we have to remember that to harmonise is not to destroy.In the interpretation of status the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also.On the construction suggested by the learned Attorney-General it is obvious that by merely making an application under Cl. 5(a) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl. 5(a) instead of making an application under C. 23 Cl. 23 will be a dead letter. A construction like this which defeats the intention of the rule making authority in Cl. 23 must, if possible, be avoided. 8. It is hardly necessary to mention that this rule in Cl. 23 was made with a definite purpose. The provision here is very similar to S. 33 of the Industrial Disputes Act before its amendment, though there are some differences. It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under Cl. 5(a) in the very cases where Cl. 23 in terms applies. 9. There will be complete harmony however if we hold instead that Cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly, (1859-53 ER 1032) quoted in Craies on Statute Law at p. 206, 6th Edition) Romilly, M. R., mentioned the rule thus :-"The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply." The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon, 1858 28 LJ Ch 598, Churchill v. Crease, (1828) 5 Bing 177, United States v. Chase, (1889) 135 US 255, and Carroll v. Greenwich Ins. Co., (1905) 199 U. S. 401. 10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision, we must hold that Cl. 5(a) has no application in a case where the special provisions of Cl. 23 are applicable. 11. As in the present case an inquiry was in fact pending before a Conciliation Officer, Cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of Cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board. 12. In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of Cl. 5(a) come into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision. 13. On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under Cl. 5(a) filed on June 13, 1950, was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed. 14. As we have already pointed out above the order made by the Appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be reached by any writ of the Allahabad High Court. In view of our conclusion that the application under Cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Courts order must also be dismissed. 15. It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. To remove this incongruity, says the learned Attorney-General, apply the rule of harmonious construction and hold that Cl. 23 of the Order has no application when an order is made on an application under C. 5(a). On the assumption that under Cl. 5(a) an employer can raise a dispute sought to be created by his own proposed order of dismissal of workmen there is clearly this disharmony as pointed out above between two provisions, viz., Cl. 5(a) and C. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule, however, we have to remember that to harmonise is not to destroy.In the interpretation of status the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also.On the construction suggested by the learned Attorney-General it is obvious that by merely making an application under Cl. 5(a) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl. 5(a) instead of making an application under C. 23 Cl. 23 will be a dead letter. A construction like this which defeats the intention of the rule making authority in Cl. 23 must, if possible, be avoided8. It is hardly necessary to mention that this rule in Cl. 23 was made with a definite purpose. The provision here is very similar to S. 33 of the Industrial Disputes Act before its amendment, though there are some differences. It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under Cl. 5(a) in the very cases where Cl. 23 in terms applies9. There will be complete harmony however if we hold instead that Cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. InPretty v. Solly, (1859-53 ER 1032)quoted in Craies on Statute Law at p. 206, 6th Edition) Romilly, M. R., mentioned the rule thus :-"The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply."The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned :De Winton v. Brecon, 1858 28 LJ Chl v. Crease, (1828) 5 BingUnited States v. Chase, (1889) 135 US, andCarroll v. Greenwich Ins. Co., (1905) 199 U. S. 40110. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision, we must hold that Cl. 5(a) has no application in a case where the special provisions of Cl. 23 are applicable11. As in the present case an inquiry was in fact pending before a Conciliation Officer, Cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of Cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board12. In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of Cl. 5(a) come into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision13. On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under Cl. 5(a) filed on June 13, 1950, was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed14. As we have already pointed out above the order made by the Appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be reached by any writ of the Allahabad High Court. In view of our conclusion that the application under Cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Courts order must also be dismissed15. It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same.. A consideration of the scheme of this legislation makes it clear that while two modes are provided in clauses 5(a) and 5(b) for the commencement of proceedings for settlement of industrial disputes generally, a special provision is made in clause 23 that if an enquiry is proceeding before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal is pending before the Industrial court, no workman shall be discharged except with the written permission of the Regional Conciliation officer or the Additional Conciliation Officer concerned. The consequence in cl. 26 is that if any workman is discharged or dismissed during the continuance of such enquiry or appeal without such permission the employer shall be liable to fine or to imprisonment not exceeding three years to both. The heavy punishment provided for contravention of the order shows the importance attached by the legislating authority to the directions given by the orderOne view is that it is only the party aggrieved by the proposed dismissal, in other words, the workmen, who by objecting to the same can raise the dispute and that the employer cannot by his own proposal to dismiss the workmen be heard to say that a dispute had come into existence even before the workmen had a chance to object to the dismissal. The contrary view which has found favour with Mr. Justice Chaturvedi of the High Court is that even at the stage the employer proposes to dismiss his workmen it is a case of contemplated non-employment which will come within the expression "industrial dispute"There is no dispute that on June 13, 1950, when the application under Cl. 5(a) was made an inquiry was in fact pending before a Conciliation Officer. It appears that on July 9, 1949 the Governor of the United Provinces made an order directing the Labour Commissioner of the United Provinces or a Conciliation Officer nominated by him in this behalf to re-start the adjudication proceeding between the J. K. Cotton Spinning and Weaving Mills Co. and S. N. Shukla, a dismissed employee of the concern. The Adjudicator was directed to conclude the adjudication and submit his award by August 15, 1949. The time was extended by subsequent orders - first to November 15,, andthen to March 31, 1950, again to June 30,1950,andthereafter to September 30, 1950. It is true that at the time these orders extending time for submission of award were made the Governor had no authority to make these ordersandthese orders were invalid. They were validated by the provisions of S. 3 of the U. P. Act XXIII of 1953. In view of this position of the law the learned Attorney-General has not disputed that on June 13,1950,when the application under Cl. 5 (a) was made an enquiry was actually pending before a Conciliation Officer. Consequently, before the management could make any order discharging or dismissing any of its workmen it was required by Cl. 23 to obtain permission for the same from the Regional Conciliation Officer. The question is whether in spite of this provision in Cl. 23 the employer could makeandthe Board entertain an application under Cl. 5(a) on this question of proposed dismissalSo far as the workmen are concerned they will not be able to dispute the correctness of the order except in the mode provided in the Government order itself. What, however, is the position of the employer if in pursuance of the order made on his application under S. 5(a) he discharges or dismisses his workmen ? By doing so he will have clearly contravened the provisions of Cl.will become liable to the serve penalty provided in Cl. 26 - a penalty which might even extend to imprisonment up to three years