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LAX MAN

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STATE INDUSTRIAL COURT & ORS.

I March p, 1974 ( P. JAGANMOllAN REDDY ANDS. N. DWIVEDI JJ.]'

C.P. and Berar Industrial Disputes Settlement Act 1947-s.16-JVhether a <lis- 1nissed, discharged or retrenched employee can invoke the jurisdiction of the authority under the S:ate Act for obtaining redress. . _ .

Appellant, a motor driver in the Milk Scheme at Nagpur, v, ras dismissed from servitc by the order of Dairy Development Ccrnmissioner, Bombay. The appellani was on probation for 6 months after bis appointrr, ent and he continued in service more than 2 years y,.hen his services were terminated. The appellant filed an application, under s. 16 of the C.P. and Derar Industrial Disputes Settlement Act, 1947, before the Asstt. Labour Commissioner, praying for re-instatement with back \\-ages and continuity of employment, The Asstt. Labour Commissioner set aside the order of termination and directed respondents 3 to 5 to reinstate the appellant with back \Vages.

Respondents 3 to 5 filed a revision f:efore the State Industrial Court u/s. 16(5) of the Berar Act. That Court set aside the order and rCmandetl the case for a fresh decision as to whether the appeIIant was a pern anent employee and whether, he \vas illegally retrenched. After remand the Deputy Commissioner of Labour concluded that the appellant was not a permanent employee under the provisions of the Standing Orders. He, however held that as . the employee 'vas in continuous service, he had been retrenched illegally and in violation of s. 25F of the Industrial Disputes Ac~. the Central Act.

Against this Order, respondents 3 to 5 filed a. revision application u/s, 16(5) of the State Act before the State Industrial Court.

This Court set aside the retrenchment order and held that the appellant was entitled to retrenchmen't compensation and so remaned the case for determination of what that compensation should be, Against this order respondents 3 to 5 filed a petition before the High Court. The appellant also filed a petition under Art. 226 of the Constitution for modification of the order of the State Industrial Court and for renstatement with back wages . etc.

Both these petitions were heard together and by a common judgment, allowed the application of Respondents 3 to 5 holding that the appellant was not an ••employee within the meaning of s. 2(10) of the State Act as his dismissal. discharge

- or removal was not on account of an Industrial dispute and accordingly, the appellant's petition was_ dismissed. ·

Tue question which fell for consideration wa r,/J whether under the State Act a dismissed, discharged or retrenched employee was an .. employee" within the _meaning-of s.2(10) of the Act and could invoke the jurisdiction of the authority under the State Act for obtaining redress.

Allowing the appea1,

HELD : (i) A combined reading of the definition of an "emPloyee" ins. 2(10) with s.2 (12) & (13) would show that those who had ceased to be in service were also ic.cluded witin the definition of an "'employee". [546A-B]

(ii) Under s. 16(2), an employee working in an industry to which a notification under 5ub-s. (1) is applied can within 6 months of his dismissal, discharge, removal or suspension apply to the labour commissioner for re-instatement and payment of compensation for loss of wages. An employee dismissed, discharged or removed on account of any industrial dispute is certainly an employee under s.2(10), and what is meant by an .. inustrial dispute'' can be ascertained by reference to s.2(12), under \\'hich any dispute or difference connected with an industrial matter arising between employer and employee or -between employers or employees is an industrial dispute.

[546C-;-EJ

Since the question of re-instaten1ent is an industrial dispute, in the present case, the appellant would be an employee within the n1eaning of s.2 (10) of the Act for the purposes of availing hin1self of the right under sub-s.(2) of sec. 16 of the Act. l546-F]

Central Provinces Transport Scrrices Ltd., /\'agp11r v. Ragl11111a1h Gopal Pat1rardha11, [1956j S.C.R. 956; Western India Automobile Association v. fndustria/ Tribunal, B0111bay, [1949] F.C.R. 321 and Bennett Co/en1a11 & Co. (Prirate) Ltd. v. Punya Pri.ia Das Guptu, [1969} L.L.J. 554, referred to .

. CIVIL APPELLATE JURISDICTION : Civil Appeal 1188 & 1189 of 1969.

Appeals from the judgment and order dated the I Ith March 1967 of the Bombay High Court (Nagpcr Bench) at Nagpur in Special Civil A1plication Nos. 345 and 575 of 1966.

S. W. Dhabe and A. G. Ratuaparkhi, for the appellant S. B. Wad and S. P. Nayar, for the respondenls 3 & 4 in (C.

A. l l88) and respondents 4 & 5 (in C. A 1189)

The Judgment of the Court was delivered by D

JAGANMOHAN REDDY, J. Tho appllant was appointed as a motor driver in the Milk Scheipe at Nagpur by the Regional Dairy development Ofticer on December 10, 1959andonFebruary28,1962 his services were terminated by the orders of the Dairy Development Commissioner, Bombay-Respondent No. 5 After the appointment the appellant was on probation for a period of six months and since that period was not extended it is his contention that he is a permanent employee inasmuch as the standing orders which came into force on September 30, 1961 made an employee on probation permanent after completion of one year's probationary period. On March 20, 1962, the appellant filed an application before the Assista11t Labour Commissioner, Nagpur, under s. 16 of the C. P. and Berar Industrial Disputes.

Settlement Act, 1947-hereinafter referred to as 'the Act" praying for

reinstatement with back wages and continuity of employment. In that application the appellant stated that if the order of termination amount. cc! to dismissal that order was void as it was made \Vithout any inquiry and if it was an order of retrenchment it was equally bad as no notice of change was given under s. 31 of the Act. The tern1ination '\Vll.3 also said to be illegal as it was brought about by an authority which had not appointed him. The Assistant Labour Commissioner who heard. the petition set aside the order of tern1ination and directed respondents 3 to 5 to reinstate the appella11t with back wages and continuity of service in as much as it was held that the appellant having completed the probationary period of one year became a pennanent e1nployee. In this vie\\', the other contentions raised by the appellant \vcre not decided.

LAXMAN v. STATE INDUSTRIAL COURT (Jaga11mohan Reddy,!.) 543

Respondents 3 to 5 filed a revision before the State Industrial Court un.dcr s. 16(5) of the Act. That Court set aside the order on August 12, 1953, and remanded the case for a fresh decision as to whe ther the appellant was a permanent employee and whether he was illegally retrenched. After remand the Deputy Commissioner of Labour at Nagpur after considering the evidence came to the conclusion that the appellant was not a permanent employee under the provisions of the Standing Orders. He, however, held that as the appellant was in continuous service, he had been retrenched illegally without following the provisions of s. 25-F of the Industrial Disputes Act-hereinafter called 'the Central Act.' In the result respondents 3 to 5 were directed to reinstate the appellant with back waees a11d continuity of service.

Against this order respondents 3 to 5 filed a revision application under s. 15(5) of the Act before the State Industrial Cou1t at Nagpur. In that revision, an application was made by the respondents for amendment of the revision petition raising a plea for the first time that the appellant being a retrenched employee was not an"employee" under the provisions of the Act. The State Industrial Court did not accept this plea and while setting aside the reinstatement order held that the appellant was entitled to retrenchment compensation and consequently remanded the case for determination of what that compensation should be. Against this order respondents 3 to 5 filed a petition under Arts. 226 and 227 of the Constitution of India. The appellant also file,\ a petition under Art. 226 of the Constitution in the High Court for modification of the order of the State Industrial Court and for reinstaterr.em with back wages and continuity of service along with all its privilege•.

Both these petitions were heard together by the Division Bench of the Bombay High Court at Nagpur. By a common judgment, the High Court allowed the application of respondents 3 to 5 holding that the appellant was not an "employee" within the meaning of s. 2(10) of the Act as his dismissal, discharge or removal \.Vas not on account of an industrial dispute. In this view, the appellant's petition wasdismissed. These two appeals are with certificate against that judg111cnt.

The question which falls for consideration is whether under the Act a dismissed, discharged or retrenched employee can invoke the jurisdiction of the authority under the Act for obtaining redress, namely, whether an application for reinstatement and compensation by a dismissed employee is maintainable under s. 16 of the Act. The determination of this question would depend upon the interpretation of who the employee is for the purposes of the Act and what is meant by "On account of any industrial dispute" ins. 2(10) read withs. 2(12) & (13).

These provisions, as also s. 16, insofar as material, are given below :

s. 2(10)-"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 industr.v and includes an employee dismissed, discharged or rerr . ..>ved on <..ccount of any industrial dispute ;''

s. 2(12)-"industrial disput:" means any :iispute or diffcren :e connected with an industrial mat~r arising between employe• and employe~. or betwen employers or employees;"

" 2\13)-"industrial matter" means any matter relating to work, .pay, wage~. reward, hours, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment or refuse\ to employ and includes questions pertaining to-;

(a) the relationship between employer and employees, or to the dismissal or non-employment of any person, x x x . x" s. 16-"(l) Where the State Government by notification so directs, the labour Commissioner shall have power to decide an iniustrial dispute touching the dismissal, discharge, removal or suspension of an employee working in any industry in general or in any looal area as m•Y be spocified in the notification.

(2) Any employee, working in an industry to which the notification under sub-section (I) applied, may within six months fromthedate ofsuch dismissal, discharge, removal or suspension, apply to the Labour Commissioner for reinstatement and paymeat of compensa.tion for loss of wages. x x x x"

Both s. 2(\0) and 16 were amended by Act 21 of 1966.

The former E before its amendment was as follows:

s. 2(10)-"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 resjlect of which a notice is given under section 31 or 32 whether before or after the discharge;"

It may be observed that s. 2(10) before its amendment included an employee discharged on account of any dispute relating to a change in resjlect of which a notice was given under s. 31 or 32 of the Act.

It will be seen that s. 31 dealt with tho procedure to be followed by an employer desiring. change in the standing orders or in resjlect of any industrial matter mentioned in Sch. Jl s. 32 dealt with the procedure to be followed by a representative of employees desiring change in the standing orders or in respect of any other industrial matter. One of the industrial matters referred to in item 3 of Sch. lI is "Dismissal of any employee except in accordance with law or as provided for in the standing orders settled under section 30 of this Act". lhi> <ietinition of "employee" in s. 2(10) appears to have been enlarged by the amendment by including an employee dismissed, discharged or removed on account of any industrial dispute and not necessarily confined only toany dispute relating to a change in respect of which notice

LAXMAN v. STATE INDUSTRIAL COURT (laganmohan Reddy, 1.) 54S

is given under s. 31 or 32 of the Act. The High Court appears to have read the definition of "mployee" in s. 2(10) as contemplating two categories of persons (!) consisting of persons who are actually in the employment of the employer at the date of the application; and

(2) of tho>e who have ceased to be in the employment prior to the date of the application, the reason for ceasing to be an employee being "dismissal, discharge or removal on account of any industrial di:i• pute".

Jn its vi_w, the words of the definition U.ici not include all ex-employees but only specified categories which have to be corelated to any industrial dispute, and as there was no industrial dispute betwen Laxman and the employer prior to the termination of his service, Laxman cannot be considered to be an ''employee'' within the meaning of s. 2(10) of the Act. A decision of this Court in Central Provinces Transport Services Ltd.

Nagpur v. Rahunath Gopa/ Patwardhan(I) was referred to, but the High Court sought to distinguish it on the

round that in that case the employee had been dismissed after an mquiry which i\lvolved an industrial dis?ute. It then proceeded to state :

"As we have already pointed out, the definition has since been amended and the reference to ss. 31 and 32 has been dropped. As it now stands, the requirement of the definition is that if the applicant is not in service at the date of application he must have been dismissed, discharged or removed "on account of.any industrial dispute". We do not think that the ratio of the decision of the Supreme Court in that case that every dismissed employee. irrespective of the reason for his dismissal,

cntines to be an "employee" within the meaning of the definition ms. 2(10) of the Act so as to entitle him to approach the Labour Commissioner under s. 16(2) of tho Act,"

I~ .the view of the High Court, therefore, a plain reading of the definit10n qf the term "employee" ins. 2(10) shows that the only category of persons who, though not in actual employment at the date of the application included within that term is of persons who are ex-emp- !oyees and were dismissed, discharged or removed on account .of any mdustrial dispute, which dispute must precede the disll'jssal, discharge or removal, and that their dismis>al, discharge or removal must be the result of such dispute.

It is contended that an "employee" having been defined as a person employed, the Legislature intended that the provisions of the Act should be availed of only by persons who were still in the employment at the time when an application was filed under the Act, and even if the employee who invokes the provisions of the Act can be considered to be a person who is dismissed, discharged or retrenched, it is not every sue~ employee who has that right, but only tho:; e employees have the !•&ht to invoke the provisions of the Act.who have been dismissed, discharged or retrenched and in respect of whom an industrial

(1) (1956] S.C.R. 956.

dispute).? pl!nding. In Our view both tnesc contentions arc untenable.

A. combined reading of the definition of an "employee" in s. 2(10) with s. 2(12) & (13) would negative the submission that tho>e who had ceased to be in service were not intended to be included within the definition of an "employee". When the Legislature in defining a word or term refers to certain matters as being included therein it does so because either.tlr1t \.Vord or term dues not generically include what is sought to be inclrded or that it is anxious to dispel any doubt ae to v.•hat is included therein is not so included and by abundanti cauta/a it is specifically shown as having been included in order to repel any such contention to the contra. Under s. 16 (2) an •omp!oyee working in an industry to which a notification unJer sub-s. (I) is applied cn

within six month~ of his dismissal, discharge, rcn1oval or suspension apply to the Labour Commissioner for reinstatement and payment of compensation for lo" of wages. A person who applies within six months from the date of his dismissal, di1charge, removal or suspension is certainly not employed on that date and yet if the argument of the re1pondent is accepted he is not an employee within the meaning of s. 2(l0) and hence has no right to apply under sub-s. (2) of s. 16 An employee dismissed, discharged or removed on accoun of any industrial dispute is certainly an employeed under s.2 (IO)~ but what is meant by an "industrial dispute" in this definition can be ascer tained by reference to s. 2(12) under which any dispute or difference connected with an industrial matter arising between employr ad employoe or between employers or employee is an Industnal d1Sute. No doubt it was contended in the Central Prol'inces Transport Serl'ices Ltd's case(') that where a person is dismissed, discharged or retrenched, the relationship of an employer and employee is terminated and there is no longer an industrial dispute. This very contention was negatived in that case for the obvious reason that the dispute or difference referred to ins. 2(12) should be connected with an industrial matter arising between an employer and an employee, which industrial matter as defined ins. 2(13) covers any matter relating o refusal to employ and includes questions pertaining to the dismissal or non-employment of any person. If so considered, since a question of reinstatement is an industrial dispute, the appellant would be an employee within the meaning of s. 2(10) of the Act for the purposes of avail_ing himself of the right under sub-s. (2) of s. 16. Even under a restricted definition of the word "employee" under s. 2(10) before the amendment, this Court in the Central Provinces Transport Senices Ltd's case (Su"ra) had held that a workman whose services had been terminated could have resort to sub-s. (2) of s. 16 of the Act The

High Court thought that the decision is inapplicable as in that case an enquiry had been held before the employee's services were terminated which amounted to an industrial dispute, but in the instant case no such industrial dispute arose as it was a retrenchment simpliciter. We are unable to appreciate this distinction as in our view it is a distinction without a difference. The ratio in the Central Provinces Transport Services Ltd's case (Supra) is clearly applicable notwithstanding the amendment of s. 2(10) and s. 16 of the Act. After pointing out that s. 2(k)

LAxMAN v. STATE INDUSTRIAL COURT (Jaga11moha11 Reddy,/.) 547

of the Central Act and ss. 2 (12) and 2 (l3) of the Act are substantially in pari materia, the ratio of Western India Automobile Associat; oi v. Industrial Tribunal, Bombay(') will be as much applicable to the one enactment as to the other, this Court pointed out in• the Central Prorinces Transport Serrices Ltd's case (Supra) at pp .. 961-962 :

"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 withins. 2(10), and cannot be read as importing and intention generally to exclude dismissed empolyees from that definition. On the other hand, s. 16 of the Ac 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 ins. 2(10). We must accordingly held agreeing with 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 not in employment on the date of the application."

This case was referred to and considered in Bennett Cole1nan & Co .. (Private) Ltd v. Punya Priya Das Gupta.(') The case was under the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955, where a newspaper employee was defined in a language similar to that used in defining an "employee" under the Act and the Central Act. , This Court took note of the amendment to the Act and even so held that both the decision in the Westem India Automobile Associatwn's case (supra) and the Central Pro1•inces Transport Services Ltd's case (supra) were authorities for the view that an exemployee would, for the purposes of the controversy before them, be a working journalist. The contention that Dhrangadhra Chemical Works Ltd v. State of Saurashtrp and others(3) and Workmen of Dimakuchi Tea Estate v. Dimakuc/ii Iea Estate (4) took a contrary view was examined and distinguished. It was, however, observeii

(I) ]1949) F.C.R. 321.

(1) 11957] I L.L.J. 477.

(2) [19691 2 L.L.J. 554.

(4) [1968] I L.L.J. 500.

'that even assuming that there is such a conflict as contended; it was

not necessary to resolve it for the purposes of the problem before •the Court, because the Act which was being considered there and the Central Act, the Minimum Wages Act, 1948, the Central Provinces Act with which we are concerned disclose a similar scheme under -which an ex-employee is permitted to avail of the benefits of those provisions, the only requirement being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in emp- •loyment of the person against whom it is made.

In view of what has been stated, we think the High Court was in error in holding that the application of the appellant could not be entertained by the Labour Commissioner. As this was the only question decided, we allow these appeals, set aside the judgment and decree of the High Court and remand the case to the High Court for disposal according to law. The appellant will have his costs in this court, one set.

s.c.

Appeals allowed.