Dwarka Dass v. The State of Jamm11and

and suspicion fell on the respondent. There was an enqui:ry into the matter, and that resulted in his dis· une 28, 1950, on the ground of gross negligence and misconduet. He was then prosecuted on a charge of theft, but that ended in his acquittal Raghunath Gopal on March 3. 1952. Thereafter, he applied to the Com pany to be reinstated, and failing to get redress, filed on October 1, 1952, an application before the Labour Commissioner under section 16(2) of the Central Provinces and Berar Industrial Disputes Settlement Act XXIII 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 June 28, 1950, he was not an employee on the date of the applica tion, that accordingly there was no "industrial dis pute touching the dismissal of an employee" as re quired by s. 16, sub-ss.

(1) and (2) of the Act, and that, in consequence, the proceedings under that sec· tion were incompetent. The Assistant Labour Com· missioner, before whom the matter came up for hear· ing, 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 February 5, 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) oflhe Act, and that the application under s. 16(2) of the Act was there fore maintainable. In the result, the order of dis· missal was set aside and the matter remanded for en quiry on the merits. Against that order, the Com pany appealed to the Labour Appellate Tribunal, which by its order dated October 19, 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 / 1956 Central Provinces Transport Serviced Ltd. v. Raghunath Gopal Patwardlian V•11katarama Ayyar J. $.C.R. SUPREME COURT REPORTS 959 Government ownership), Nagpur. On the application of the respondent, the record has been suitably amended. 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: "(I) Where the State Government by notifica tion so directs, the Labour Commissioner shall have power to decide an industrial dispute touching the dismissal, discharge, removal or suspension of an em ployee 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 (I) applied, may within six months from the date of such dis missal, 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 entertain ment of an application for rein~tatement 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, hav ing been dismissed long prior thereto and further be cause his dispute was an individual and not an indus t.rial dispute. 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 or unskilled manual or clerical work for contract or hire or reward in any in dustry and includes an employee discharged on account of any dispute relating to a change in respect of which a notice is given under section 31 or 32 whether before or after the discharge".

Section 2(12) defines "industrial dispute" as meaning 1956 Central Provinces Tt'ansport Services Ltd. v. Raghutiath Gopal Patwardhan Venkatarania AyyarJ. • !)60 SUPREME COURT REPORTS [1956] "any dispute or difference connected with an indus trial 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 employers or employees, or the mode, terms and conditions of employment or refusal to employ and includes questions pertaining to (a) the relation ship between employer and employee, or to the dis missal or non-employment of any person .... " It is not disputed that a question of reinstatement is an industrial matter as defined ins. 2(13) of the Act. The controversy relates to the question whether it is an industrial dispute as defined ins. 2(12) of the Act.

The contention of the appellant is that it does not fall within that definition, because the further con dition 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 June 28, 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 otherwise there was no need for the further provision ins. 2(10) that discharged employees would in certain cases be em ployees; and that, in any event, the inclusive portion of the definition would, on the principle Expressio unius est exclusio alterius, operate to exclude all ex employees, other than those mentioned therein. 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 in Western India Automobile Association v. Industrial Tribunal, Bombay('). There, the point for determination was whether a claim for reinstatement by a dismissed workman was an indus trial dispute as defined in s. 2{k) of the Industrial It was held that the Disputes Act XIV of 1947. definition ins. 2(k) including as it did, all disputes or (1) [1010) F.C.R. 321. S.C.R. SUPREME COURT REPORTS 961 1956 Lttl. v. Patwardhan Venkataramti Ayyar J. differences in connection with employment or non- employment of a person was sufficiently wide to Central Provmces include a claim for reinstatement by a dismissed work- Transport Sertices man. 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 Raghunath <Sopaz with in this appeal, and secondly, that the reference there, included other items of dispute, which un- doubtedly 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 conten- tions. Section 2(12) ands. 2(13) of the Act are sub- stantially in pari materia with s. 2(k) of Act XIV of 1947, and the ratio of the decision in Westet·n India Automobile Association v. Industrial Tribunal, Bom- bay (supra) 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 was intra viru as regards the other items of dispute. - 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 tu include within that definition those who bad 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. 31and32 of the Act would not fall withins. 2(10), and cannot be read as importing an intention gene rally to exclude dismissed employees from that defini tion. On the other hand, s. 16 of the Act expressly provides for relief being granted to dismissed em ployees by way of reinstatement and compensation, and that provision must become useless and inopera tive, if we are to adopt the construction which the appellant seeks to put on the definition of employee ins. 2(10). We must accordingly hold agreeing with- 196 1956 Central Provinces Transport Services Ud, v. J?c1ghunat1i Gopal Patward1,an Venkatarama Ana• J. 962 SUPREME COURT REPORTS (1956) the decision in Western India Automobile Association v. Industrial Tribunal, Bombay (supra) that the defini tion 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.

It was next contended that even assuming that • - the respondent was an "employee" as defined in s. 2 (10) of the Act, his dimissal could not be held to be an industrial dispute as defined ins. 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 wokmen, 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 la\Jour, 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 empioyer and em- ployee under the law and to provide an additional forum to the employee to vindicate his rights.

Re- Hance was placed in support of this contention on decisions of the Madras, Calcutta and Patna High Courts and of Industrial Tribunals. - Y _ The question whether a dispute by an individual workman would be an industrial dispute as defined in s. 2(k) of the Act XIV of 1947, has evoked consider- able 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 t- •• ,_ S.C.R. SUPREME COURT REPORTS 963 1956 Patwardhan Venkatarama Ayyarj. Ce·utral Provinces Transport Se• vices Ud. v. only the rights of individual workers, cannot be field to be an industrial dispute. That was the opinion expressed in Kandan Textiles v. Jndustrial Tribunal(1). There, Rajamannar 0. 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 Raghunath Gopal suggested that something more than an individual dispute bP.tween 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 ma- terial on which the Government could be satisfied that there was a dispute. The views expressed in Kandan Textiles v. Industrial Tribunal (supra) were approved in Manager, United Commercial Bank Ltd. v. Commissioner of Labour(i); but hPre again, 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 XXXVI of 1947 was taken away by implication by Act XIV of 19!7. The question, however, arose directly for de- cision in J. Chowdhury v. M. 0. Banerjee( 3 ), in which the order of the Government referring the dispute of a dismissed employee to the adjudication of a Tribu- nal was attacked as incompetent, and it was held by Mitter J., following the observations in Kandan Tex- tiles v.

Industrial Tribunal (supra) that the dispute in question was not an industrial dispute, and that the reference was, in consequence, bad. (If). A dispute between an employer and a single employee can be an industrial dispute as defined in s. 2(k). That was the dPcision in Newspapers 'Ltd., Allahabad v. State Industrial Tribunal, U.P.( 4 ). In that case, a reference of a dispute by a dismissed employee and the award of the Tribunal passed on that refer- 111 (1949) 2 M.L.J. 789: A.IR. 1961 Mad 611. (2) A.I.R. 1961 Mad. 141. 18) [1961) 66 0. W.N. ~66. (4J 4.I.B. 1904 All. 61(1.

SUPREME COURT REPORTS [1956) . 1956 P Ud. v. ence were attacked as bad on the ground that the c dispute in question was not an industrial dispute 2.;;:;;!,;;.;;,,::: withins. 2(k) of Act XIV of 1947, and it was held by Bhargava J., that an industrial dispute could come into existence even if the parties thereto were only Raghunath GoJ>al the employer and a single employee and that the re ference and the award were, in consequence, valid. Patwardhan Venkatarama A similar decision was given by a Full BPnch of t.he Labour Appellate T,ribunal in Swadeshi Cotton Mills Company Ltd. v. Their Workmen('). AyyarJ. • 1 ""' (Ill) 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., in Bilash Chandra Mitra v. Balmer Lawrie & Co.("), by Ramaswami and Sarjoo Prasad JJ., in New India Assurance Co. v.