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Chhotabhai Jethabhai Patel and Co. Vs. Industrial Court, Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No 812 of 1966
Judge
Reported inAIR1969Bom56; (1968)70BOMLR298; ILR1969Bom455; (1968)IILLJ757Bom; 1968MhLJ377
ActsBombay Industrial Relations Act, 1947 - Sections 42(4) and 78(1)
AppellantChhotabhai Jethabhai Patel and Co.
Respondentindustrial Court, Nagpur and ors.
Appellant AdvocatePhadke and ;M.W. Puranik, Advs.
Respondent AdvocateS.G. Kukday and ;N.H. Kumbhare, Advs.
Excerpt:
bombay industrial relations act (bom. xi of 1947), sections 78(1)d, 75(1)a, 42(4), 2(13) - application made by employee under section 78(1) d without complying with procedure under section 42(4) and its proviso--whether labour court competent to entertain application--construction of section 2(13).;where an employee claims reinstatement and payment of back wages and the labour court finds that the order of dismissal, discharge, removal or retrenchment from service made by the employer is vitiated on account of any of the three clauses (i), (ii) and (iii) of section 78(1) d of the bombay industrial relations act, 1946, the labour court does not act without jurisdiction in entertaining an application made under section 78(1)d by the employee concerned for the aforesaid reliefs without first.....abhyankar, j.1. this is a petition under art. 227 of the constitution filed by chhotabhai jethabhai, a bidi merchant. the third respondent nathu janu ukey was employed as a zal counting munshi in the petitioner's factory at bhandara. the petitioner contended that the third respondent had committed acts of misconduct, gross negligence of duty, insubordination and similar offences. a charge-sheet was therefore framed against him in 13-5-1965 and he was given notice to show cause in respect of these charges. the third respondent filed a written statement on 13-5-1965. he was informed that an enquiry officer ordered proceeding his answers, and on considering those statement he held that the charges were proved and the third respondent was dismissed by the order of dismissal to be effective.....
Judgment:

Abhyankar, J.

1. This is a petition under Art. 227 of the Constitution filed by Chhotabhai Jethabhai, a bidi merchant. The third respondent Nathu Janu Ukey was employed as a Zal counting Munshi in the petitioner's factory at Bhandara. The petitioner contended that the third respondent had committed acts of misconduct, gross negligence of duty, insubordination and similar offences. A charge-sheet was therefore framed against him in 13-5-1965 and he was given notice to show cause in respect of these charges. The third respondent filed a written statement on 13-5-1965. He was informed that an enquiry officer ordered proceeding his answers, and on considering those statement he held that the charges were proved and the third respondent was dismissed by the order of dismissal to be effective from 1-8-1965.

2. The third respondent filed an application challenging the order of dismissal before the Labour Court at Nagpur under Section 78 of the Bombay Industrial Relations Act, 1946. The application was filed on or about 5th August 1965. The third respondent raised several contentions in this application. He complained that the charges sheet was not proper, that the present head office had no authority to deal with the case of the third respondent under the standing orders, that no evidence was led and was filed on behalf of the employer, that the finding is based only on the statement made by the third respondent who was subjected to cross-examination,. that the third respondent was forced to append his signature to the paper without reading it over to him.

3. In his written statement the petitioner traversed several allegations and supported the order. The Labour Court after a thorough enquiry held that the findings of the enquiry officer were perverse, that the order of dismissal was passed by a person not authorised to exercise the power, that the dismissal was illegal and therefore the Labour Court directed that the third respondent should be reinstated and that all the back wages should be paid to him from the date of dismissal to the date of the order.

4. Against this order the petitioner preferred an appeal to the State Industrial Court, Among other grounds, the petitioner contended in ground No. 3 that the third respondent had failed to comply with the provisions of law by not making an application to the petitioner under Section 42(4) of the Bombay Industrial Relations Act which was a condition precedent to the making of an application by the worker to the Labour Court was liable to be set aside on this ground.

5. The state Industrial Court upheld the order of the Labour Court. As regards challenge to the jurisdiction of the Labour Court based on the provisions of Section 42(4) of the Bombay Industrial Relations Act, the appellate Court held that the challenge involved a question of fact whether or not the respondent has complied with the provisions of Section 42(4) of the Act. The Court held that there is no material on record to justify the presumption that the respondent had not compiled with the provisions of Section 42(4) and the challenge to the jurisdiction based on this objection raised, according to the State Industrial Tribunal, mixed question of fact and law, the Court declined to interfere with the order of the Labour Court. In the result the appeal failed and the order of the Labour Court was confirmed.

6. The petitioner challenges the order of the Labour Court as well as the State Industrial Court, but the only contention pressed before us was the one relating to Section 42(4) of the Bombay Industrial Relations Act. No arguments were addressed to us as regards the finding of the Labour Court that the order of dismissal was illegal or that the direction for, instatement and payment of back wages to the third respondent was bad on any other ground. We are therefore required to determine a narrow question of law arising in the case and that question is where an employee claims reinstatement and payment of back wages and the Labour ?Court finds that the order of dismissal, discharge, removal or retrenchment from service made by the employer was vitiated on account of any of the three clauses (i), (ii) and (iii) of Section 78(1)D of the Bombay Industrial Relations Act, whether the Labour Court acts without jurisdiction if the employee concerned approaches that court for the relief of reinstatement and payment of back wages without complying with the provisions of S. 42(4) of the Bombay Industrial Relations Act.

7. In resisting the contention it is urged on behalf of the third respondent that the right and remedy given under Section 78(1)D of the Bombay Industrial Relations Act is an independent remedy providing Act is an independent remedy providing a complete code for its enforcement and is not controlled either by the provision of Section 78(1)A(a)(i) or Section 42(4) of the Bombay Industrial Relations Act.

8. Section 78(1)D has been introduced for the first time in the Bombay Industrial Relations Act, 1946, by Section 31 of the Maharashtra Act , 1946, by section 31 of the Maharashtra Act No 22 of 1965 This Maharashtra Act 22 of 1965, which came into force in the whole of the State of Maharashtra from 1st of May 1965 which came into force in the whole of the State of Maharashtra from 1st of May 1965, which was in force in areas other than Vidarbha in the Maharashtra State till 1-5-1965. The preamble to Act 22 of 1965 shows that the Act made various amendments to Bombay Industrial Relations Act, 1946, which was in force in areas other than Vidarbha in the Maharashtra State till 1-5-1965. The preamble to Act 22 of 1965 shows that the Act made various amendments or additions and alterations to the Bombay Industrial Relations Act, 1946, because it was considered expedient to extend the Bombay Industrial Relations Act, 1946, as amended, throughout the State of Maharashtra, such as Vidarbha. Actually, the only other statute operating was the C.P. and Berar Industrial Disputes Settlement Act, 1947, which was in force in the Vidarbha region of Maharashtra. the Maharashtra Act 22 of 1965 amended the Bombay Industrial Relations Act and brought it in force in this region. In other words, this piece of legislation was undertaken by the State of Maharashtra Legislature to provide for a uniform law governing the relations between the employees and employers in the matter of industrial disputes and industrial adjudication and all other cognate and relevant matter. We must remember this background when interpreting the various provisions of the Bombay Industrial Relations Act., 1946, as amended and which is operating from 1st of May 1965 in the whole of Maharashtra.

9. The Legislative Assembly Bill No. 66 of 1964 is the genesis of the Maharashtra Act 22 of 1965. Section 31 of that bill recommended addition of a new paragraph in sub-section (1) of Section 78 of the Bombay Industrial Relations Act, 1946, and with reference to this paragraph and other changes recommended in Section 78(i)of the Act the statement of objects and reasons indicated that the new clause D was added to Section 78(1) of the Bombay Industrial Relations Act, in order to enlarge the powers of the Labour Court, to require an employer to reinstate an employee with full back wages payable to him and compensation not exceeding Rs.1500 and possibility of getting suitable employment more than six months prior to the action if such action is out of non-compliance with any standing order applicable to the employee. It will be seen that the third ground, namely, that the order of dismissal, discharge, removal or retrenchment, termination of service or suspension of an employee being found otherwise not proper or illegal was not in the original draft bill but was added to the statute when the Act was finally passed. It will thus be seen that clause of section 78(1) enables the labour Court to require the employee to reinstate the employee either forthwith or by a specified date and Reuters that the employer shall pay back wages from the Labour Court ordered reinstatement or the date of reinstatement whichever is later. Several contingencies have been enumerated to enable the Labour Court to exercise its power and these contingencies are that the order of dismissal, discharge, removal, termination of service or suspension of an employee is made under one or the other of the following circumstances:

(1) That the order was passed more than six months after the default or misconduct came to the notice of the employer.

(2) That the order was in contravention of the provisions of any law.

(3) That the order was in contravention of any standing order in force applicable to such employee.

(4) That the order was otherwise improper.

(5) That the order was otherwise illegal.

9A. There was not similar power both to order reinstatement as well as payment of back wages in the labour Court prior to the introduction of clause D to Section 78(1) of the Bombay Industrial Relations Act, 1946. It is true, by judicial interpretation a power was claimed in the labour Court to order reinstatement of an employee who is dismissed or discharged or whose services are terminated If a dispute arises regarding propriety or legality of such an order passed by an employer acting or purporting to act under the standing orders. In other words, it orders but was otherwise illegal or improper or against the provisions of any law , or for default or misconduct more than six months prior to the date of such order, it doesn't appear that the Labour Court had any power to give relief to such an employee under the Bombay Industrial Relations Act as it existed prior to its amendment by Maharashtra Act 22 of 1965. A reference was made to a Division Bench decision of this Court in Lalbhai Tricumlal Mills Ltd. v. Manubhai Motilal Vin and Ors. : AIR1955Bom463 . In that case the real issue seems to be one jurisdiction of appropriate Labour court . What seems to be one of jurisdiction of appropriate Labour Court. What seems to have been contended on behalf of the petitioner employer was that the Labour Court at Bombay was not the appropriate Tribunal to take cognizance of the illegal dismissal, but it was the labour Court at Ahmedabad, and this was so because, according to the petitioner, it was to the Labour Court at Ahmedabad that employee concerned had made an application under Section 42(4) of the Act. The issue that arises before this Court, namely, ambit of requirement of either Section 42(4) or read with Section 78(1)A(a)(i) was not ad judicable in that case. We rely on it only for the purpose of showing that the Labour Court under Section 78(1)A(a)(i) of the Bombay Industrial Relations Act could take cognizance of the order of dismissal of an employee under standing orders, and that before approaching the labour Court the employee had to make an application to his employer as per proviso to Section 42(4) of the Bombay Industrial Relations Act .

10. In as much as the principal argument in this case is founded on the provisions of Section 42(4) of the Bombay Industrial Relations Act and the addition made to Section 78 of the Act, it is necessary to understand the scheme of Chapter VIII in which the sections find place. Section 42 is as follows:

'42 (1) Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form, to the representative of employees. He shall send a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. He shall also affix a copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other places as maybe directed by the Chief Conciliator in any particular case.

(2) An employee desiring a change in respect of an industrial matter not specified in Schedule I or III shall give notice In the prescribed form to the employer through the representative of employees, who shall forward a copy of the notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the labour Officer and such other person as may be prescribed.

(3)When no settlement is arrived at in any conciliation proceeding in regard to any industrial dispute which has arisen in consequence if a notice relating to any change given under sub-section (1) or sub-section (2) no fresh notice with regard to the same change given under sub-section (1) or subsection (2), no fresh notice with regard to the same change or a change similar in all material particulars shall be given before the expiry of two months from the date of the completion of the proceeding within the meaning of Section. if, at any time after the expiry of the said period of two months, any employer or employee again desires the same change or a change similar in all material particulars, he shall give fresh notice in the manner provided in sub-section (1) or (2) as the case may be.

(4) Any employee or a representative union desiring a change in respect of (i) any order passed by the employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders or, (iii) an industrial matter specified in Schedule III (except item (5) thereof, shall make an application or interpretation of standing orders, or, (iii) an industrial matter specified in Schedule III (except item (5) thereof), shall make an application the labour Court and as respects change desired in any industrial matter in item (5) of Schedule III, to the Industrial Court. Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period'.

11. We may observe that there is a slight change effected in Section 42(4) by Maharashtra Act 22 of 1965, and that change is in sub-section (4) which now requires an employee desiring a change in respect of item (5) in Schedule III to make an application to the Industrial make an application to the Industrial Court and not to the Labour Court as previously permissible. According to Mr. Phadke, the Learned Counsel for the petitioner, in substance the complaint of the third respondent raises a dispute falling under clause (a) (i) of paragraph A of sub-section (1) of Section 78. But such a dispute cannot be deemed to arise until the third respondent had made an application as required by the proviso to subsection (4) of Section 42 to the employer requesting for a change. The change requested is a change is a change in respect of the order of the employer under the standing order which in this case would mean the order of dismissal of the third respondent under the standing orders applicable to the third respondent. The argument is that inasmuch as the petitioner had passed the impugned order dismissing the employee acting or purporting to act under the standing orders, and inasmuch as the propriety or the legality of that order is challenged, the case of the third respondent is covered by S.78(1)A(a)(i). and therefore must attract the condition precedent for exercise of any right of seeking a change in that order as per proviso to sub-section (4) of Section 42 of the Bombay Industrial Relations Act, 1946.

12. In fact, the learned counsel's contention could not have been wider so far as the impact of Section 78(1) A vis-a-vis the new paragraph D to Section 78(1) is concerned. According to him, whenever an order of dismissal, discharge, removal, termination of service or suspension of an employee has come to be passed by an employer, it is ordinarily referable to a standing order. But the ground of attacking the order of dismissal, discharge etc. may be one of the several of the grounds enumerated in the new paragraph D of Section 78(1); the source of authority for passing such an order is the standing orders, and if the order is referable to the standing orders, it must be held to be an order passed under Section 78(1)A(a)(i), and if a dispute arises in respect of such order, the requirements of Section 42(4) and the proviso must be complied with. In this connection jour attention was invited to Section 78 of the Act. Under the definition a dispute falling in paragraph A of sub-section (1) shall be deemed to have arisen if within the period prescribed under the proviso to section 42(4) any agreement is arrived at in respect of the order, matter or change referred to in the said provision.

13. Now, it will be seen the sub-section (1) of Section 78 enumerates various and different powers of a Labour Court under several paragraphs indicated by capital letters. Under paragraph A the Labour Court has power to decide a dispute, Under paragraph B the Labour Court is empowered to try offences punishable under the Act and also to order payment of compensation as provided for or determine compensation or its payment . Under paragraph C the Labour Court is empowered to require an employer to withdraw any change held to be illegal or to require the employer by a mandatory order to provide any change provided such a matter was in issue before the Court. A new paragraph requires the employer to reinstate an employee and also to pay and back wages for the period between the date of termination of his services and order of reinstatement or actual reinstatement whichever is later.

13A. According to the learned counsel, whenever jurisdiction of the Labour Court is invoked under Section 78(1), it must be by an application, and if application is invoked under Section 78(1), it must be by an application, and if application is required to be make by invoking the jurisdiction of the Labour Court at the instance of an employee, then, according to the petitioner, such an application is not tenable unless the employee or the representative union on his behalf has approached the employer with a request for a change. How the employer is to be approached with a request for a change is provided in Rule 53 of the Rules framed under the Bombay Industrial Relations Act. The application for approaching the employer with a request for change is to be made in writing. Rule 53 itself provided a period of six months (now three months) for making an application for change in respect of orders passed under standing orders. It appears that there is no period of limitation fixed for an application if the change is of other categories, namely, in respect of industrial matter arising out of the application specified in Schedule III, other than Item 5. Section 79 makes a special provision in respect of disputes falling under clause (a) of paragraph A of sub-section (1) of Section 78. According to the petitioner, paragraph D which is added by Maharashtra Act 22 of 1965 does not curtail the controlling position of Section 68(1)A, and therefore, eve in an application is for relief of reinstatement and payment of back wages under paragraph D of Section 78(1) the procedure must be by an application to the Labour Court, and if the application is to be made in writing to the labour Court, the condition precedent for making such an application is approach to the employer with a request for a change in the order passed by him.

14. In our opinion, the restrictions of Section 78(1)A(a)(i) cannot control the procedure or powers of the Labour Court independently conferred for the first time on the Labour Court by Maharashtra Act 22 of 1965. It may be pointed out during the course of arguments that even though section 73(1)A(a) (i) refers to disputes regarding propriety or legality of an order passed by an employer acting on purporting to act under standing orders, the ambit of enquiry and the power to grant relief invested in the Labour Court under the new paragraph D covered a much wider field . It could not be reasonably contended that if an order of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee is made by an employer because (a) it was for a fault or misconduct of an employee is made by an employer because (a) it was for a fault or misconduct of an employee which came to the notice of the employer within six months prior to the date of the order, or (b) the order was in contravention of any law, (c) the order was otherwise illegal, in any of the above cases there was no power in the Labour court to give relief unless it could be shown that the order was referable to have been passed under the standing order. The legislature has added a new paragraph D to Section 78(1) to give additional powers to the Labour Court in respect of certain matters of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee . A labour Court is now empowered to order reinstatement and payment of back wages if it finds that the employee is dismissed, discharged, removed, is under suspension for one or the other of the acts enumerated in paragraph D, sub-clauses (i) , (ii) and (iii) . Each of the paragraphs of Section 78(1). A, B, C and D speak of distinct and different powers vested in the labour Court. It may be that in the absence of any specific provision. Dismissed of an employee could be considered by the Labour Court is a change, and if that was a change, then a request for revoking the order of dismissal might passed by the employer under the standing order If it was really intended that the procedure to be followed by an employee in challenging the order of dismissal, discharge, removal, retrenchment, termination of service or suspension under one or the other of the circumstances enumerated in the new paragraph D should be controlled by the procedure in Section 78(1)A., there is no reason why it should not have appeared as an addition to the paragraph. Instead, the Legislature has though fit to make a separate provision to invest a distinct and additional power in the Labour Court to give relief of reinstatement and payment of back wages to an employee dismissed, discharged, removed from service or suspension if such dismissal etc. is found to be contrary to the provisions of any law or otherwise improperly made or is for the fault or misconduct committed by the employee which came to the notice of the employer six months prior to the date of such dismissal, and also in contravention of the standing orders reinstatement and payment of back wages.

15. It will thus be seen that the whole argument is founded on a supposition that the power to decide a dispute regarding the propriety or legality of an order passed by an employer, acting or purporting to act under the standing orders, necessarily covers adjudication of an order of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee made by the employer in contravention o the provisions of the standing orders Whether or not of the standing orders Whether or not this was so under the unamended provisions of Section 78(1)A(a)(i), We are clear that there are specific powers to deal with contingencies which are now expressly vested in the Labour Court under paragraph D, and it is not permissible to import by implication powers of the Labour Court dealing with a matter under paragraph D to 78(1)A(a)(i) merely to require that an employee must also comply with the provisions of Section 42(4) and its proviso of he Bombay Industrial Relations Act. We prefer to construe the effect of introduction of new paragraph D to Section 78(1) as creating an additional jurisdiction in the Labour Court to entertain applications challenging dismissal, Discharge, removal, retrenchment. termination of service or ................. of the circumstances enumerated in clauses to (iii) of paragraph D, and that power is coupled with a further power to grant reinstatement and back wages if it is found to be illegal or improper. A power to find adjudicate a dispute regarding the propriety or illegality of the order passed by an employer acting or purporting to act under the standing orders.

16. There are numerous instances where an undertaking or an industry may not have standing orders, and yet the termination of service may be against the provision of law or may be against the provision of law or may be otherwise improper or illegal. A vested right is given to the employee to challenge his dismissal, discharge, suspension etc. If it was for a fault or misconduct committed by the employee to challenge his dismissal, discharge, suspension etc. if it was for a fault or illegal. A vested right is given to the employee to challenge his dismissal, discharge, suspension etc. if it was for a fault or misconduct committed by the employee more than six months prior to the date of the order. This is anew ground which has been made a provision indicating as to when a dispute shall be deemed to arise, and that fictional deeming of a dispute to have arisen is provided for in the Explanation. Under the Explanation, read with Section 42(4) proviso, a dispute is said to arise if the employer is finally approached by the employee in he prescribed manner and no agreement is arrived at during the period prescribed, which is a fortnight from the date of presentation of the request in writing by the employee to the employer. On the other hand, the ambit of jurisdiction of the Labour Court under new paragraph D is not fettered by any such requirement regarding such disputes. If the employer has taken his action, which so far as the employee is concerned puts an and his employer on account of the order of dismissal, discharge, removal, termination of service etc., the Legislature seems to have thought fit to provide a direct remedy to such an employee to approach the Labour Court and challenge his dismissal, discharge etc.

16A. It is urged that every request for relief to the Labour Court must commence by an application, though there is no specific provision in paragraph D that an employee shall make an application. The very working of the paragraph shows that the Labour Court is required to record a finding whether the order of dismissal, discharge, removal etc. is in contravention of the provision of law or standing order., or is otherwise illegal or irregular, etc. This postulates enquiry and finding and it is only after a finding in favour of the employee is recorded that the Labour Court is empowered to give consequential relief of reinstatement and payment of back wages Paragraphs B and C of Section 78(1) also enumerate some of the powers of the Labour Court. In neither of these paragraphs is there any reference to an application being made any reference to an application being made and yet it is not conceivable that powers under either paragraph B or paragraph C could be exercised by the labour Court without proceeding having been commenced before it by an application. It may be a complaint as mentioned in paragraph B or it may bean application under paragraph C. Nothing therefore turns on whether or not there is an express provision for making of an application in paragraph D.

17. Even paragraph A does not speak of an application . But so far as paragraph a of Section 78(1) is concerned, it is related back to sub-section (4) of section 42. It will be observed that the three categories in which the application to the Labour Court is provided in section 42 in turn states that the application in one or the other of the matters failing, the employee shall make an application to the labour court . But the requirement of making an application to the Labour Court seems to have been expressly made in sub-section (4) of section 42 because of what follows in the proviso. Under the proviso a duty is cast on an employee as well as the representative union to approach the employer with a request for change. It is only when no agreement is arrived at during the period prescribed that an application is permissible to be made to the Labour Court raising a dispute regarding any of the matters mentioned in Section 78(1)A(a)(i).(ii) and (iii). In none of the further paragraphs it seems to be necessary to follow this procedure . We are not prepared to hold that merely because Section 78(1)A(a) speaks of propriety or legality of an order passed by an employer acting or purporting to act under standing orders, the same restriction should be read in working out the rights under new paragraph D added by the Maharashtra Act 22 of 1965 In this context, it is relevant to see the legislative history of this provision.

18. We have already pointed out that the amendments effected in the Bombay Industrial Relations Act, 1946, by Maharashtra Act of 1965 were largely made to bring out a uniform piece of legislation of legislation for adjudication and settlement of legislation for adjudication and settlement of industrial disputes in the whole of the State of Maharashtra. Section 123A repeals the C.P. and Berar Industrial Disputes Settlement Act, 1947, which was the principal State legislation governing relations between the employees and the employers in the industries in Vidarbha region. Under Section 16 of the C.P. and Berar Industrial Disputes Settlement Act, 1947, an express right was conferred on any employee working in an industry to make an application within six months from the date of his dismissal or discharge, to the labour Commissioner . On receipt of such an application, if the Labour Commissioner. On receipt of such an appellation, if the Labour Commissioner. On receipt of such an application, if the Labour Commissioner found that the dismissal or discharge was in contravention of any provisions of the Act or in contravention of the Act or in contravention of standing orders made or sanctioned under the Act, and was more than six months prior to the date of discharge or, removal, the Labour Commissioner was empowered to order that the be given compensation and in addition, to order payment of back wages, No similar provision appeared to exist in express form in the Bombay Industrial Relations Act, 1946. In as much as this valuable right which was available to the workers under the C.P. and Berar Act was required to be preserved in appropriate form, it seems to us paragraph D was specifically added to section 16 of the C.P. and Berar Industrial Disputes Settlement Act, 1947, that such an employee must first approach the employer with a request to make change, or in other words to withdraw the order of dismissal, discharge, retrenchment or suspension. In our opinion, therefore, it is unlikely that while incorporating a provision in the Bombay Industrial Relations Act in the form of paragraph D to Section 78(1) of the Act, the Legislature could have intended that the same right which was now made available to the employees in the whole of the state of Maharashtra. should be fettered by the requirements of section 42(4) and its proviso. The Legislature has conferred a new right to the employee in the are as of state of Maharashtra other than Vidarbha region and has preserved the rights of the employee in the Vidarbha region in the Act by incorporating paragraph D in Section 78(1) of the Bombay Industrial Relations Act, which was amended in 1965. If the legislative intent is to be gathered form requirements of conditions to be satisfied by an employee who has been given a right to challenge his dismissal, discharge etc. in paragraph D, we do not find any implication in the amendment or in the manner in which the new paragraph D is added to Section 78(1) that it was intended to be controlled by the provisions of section 78(1) that it was intended to be controlled by the provisions of Section 42(4) of the Bombay Industrial Relations Act.

19. It is true that sub-section (4) of Section 42 enjoins that an employee or a representative union on his behalf, desiring a change, has to make an application to the Labour Court, and if the application is under clause (a) (ii) of paragraph A of Section 78(1), then that application is to be preceded by action prescribed in the proviso to sub-section (4) of Section 42. Even assuming that an order or dismissal under standing orders would fall for adjudication of any dispute under Section 78(1)A(a)(i) , it cannot to disputed that several kinds of orders other than orders of dismissal or discharge come to be passed under standing orders, and thus that ambit of enquiry and the nature of disputes when the dispute arose out of orders under standing orders of very wide. But so far as paragraph D is concerned, the Legislature is making a special provision only for orders dismissal, discharge, removal etc. though also under standing orders as well as similar orders which are challengeable as improper relief. Thus there is a special provision made by the legislature for reinstatement or payments of back wages, if they have lost their service on account of the order of dismissal, discharge etc. under the circumstances described in paragraph D. For the purposes of giving speedy relief in respect of such employees, in our opinion, the Legislature has provided a direct remedy by way of approach to the Labour Court, and the Labour court has been specifically empowered to give relief of reinstatement and payment of back wages which were not expressly provided for until an amendment was effected in 1966. Thus the scheme of Chapter XII, and especially Section 78, would suggest that by addition of paragraph D an additional power is created in the Labour Court and specific remedy is provided to the employee which is not conditioned by the provisions of Section 42(4) of the Bombay Industrial Relations Act, 1946. The object of creating an additional power necessarily implies duty to exercise the power when the tribunal is approached with a grievance which squarely falls within the ambit of the provisions of paragraph D.

20. But , it is urged, the moment it is found that even for a relief which can be granted under paragraph D by the labour Court, the occasion for demanding such relief in order of dismissal under a standing order, the provisions of sub-section (4) of Section 42 are immediately attracted and if Section 42(4) controlled applications for challenge to an order of dismissal under a standing order, the further requirement of the proviso must be complied with. We are unable to accept this contention. It is not disputed that under the scheme of sub-section (4) of Section 42, an employee or a representative union desiring a change is allowed to make an application in respect of orders passed by an employer under the standing orders. A large variety of orders can be conceived under standing order, including an order of dismissal under the appropriate provisions of the standing orders.

21. Thus, the order passed by an employer under a standing order is a genus and an order of dismissal under the standing order may be a specie. Even though, there, sub-section (4) of Section 42 makes a proviso requiring an employee desiring a change in respect of an order passed by the employer under standing orders to make an application, and further requiring that prior to making such an application the employee should approach his employer as prescribed by the proviso, we are unable to hold that so far as relief in respect of order of dismissal etc. Provided for in paragraph D is concerned, such order of dismissal though passed under the standing order, is governed by the provisions of Section 42(4). We have already pointed out that paragraph D of Section 78(1) is so, it must also be held that so far as challenge to order of dismissal, discharge etc. passed under the standing order is concerned, they are also excluded form the operation of sub-section (4) of Section 42. But it has been contended that the Legislature was fully aware of other provisions in the Act like Section 42(4) itself has been slightly amended by making a separate provision for an application by an employee desiring a change in respect of an industrial matter covered by item 5 in Schedule C. Whereas previously such an application could be made to the Labour Court, the amendment provides that such an application henceforward would lie to the Industrial Court. The Legislature did not think it fit or necessary to effect any other change in sub-section (4) of Section 42. Sub-section (4) of Section 42 as it originally stood before paragraph D was added to Section 78(1), necessarily controlled the procedure required to be undertaken in respect of disputes referred to in Section 78(1)A(a) of the Act. If the Legislature had intended that the same procedure prescribed by sub-section (4) of Section 42 should also be followed in respect of orders of dismissal, discharge, retrenchment, termination of service or suspension of an employee when such an order comes to be passed under a standing order, no good reason is shown why adjudication and relief in respect of such orders made by an employer under a standing order have been included in paragraph D along with similar orders in respect of which relief can be granted if other conditions enumerated in paragraph D are satisfied. The very fact that the legislature did not think it necessary to make any amendment of Section 42(4) which previously governed only paragraph A of Section 78(1) of the Act, would show that the scheme of Section 42(4) was not intended to be altered by addition of paragraph D to Section 78(1) of the Bombay Industrial Relations Act. We have already pointed out that paragraph D represents a separate and self-contained scheme investing the Labour Court with additional powers to give relief to an employee in the matter of reinstatement and payment of back wages if it finds that such employee is dismissed, discharged, removed, retrenched, or suspended on one of the enumerated grounds. This is a special provision, and if in making such a special provision it is also intended to include relief in respect of order of dismissal, discharge etc. passed under a standing order, we do not see why only in respect of that specie of order the requirement of Section 42(4) and its proviso should be attracted. Section 42(4), so far as orders passed by the employer under a standing order and challenge to the order of dismissal or discharge etc. by the employee are concerned, is a general provision, but so far as challenge to orders of dismissal, discharge, removal, albeit under standing orders is concerned, paragraph D represents a special provision. Therefore, we are unable to hold that in respect of orders of dismissal under standing orders the worker is hampered by the pre-conditions of Section 42(4) and the proviso before he can get relief, when an application is made under Section 78(1)D of the Bombay Industrial Relations Act.

22. There is yet another contention raised on behalf of the petitioner which remains now to be considered and disposed of. It is urged that powers under paragraph D can be exercised only in respect of an employee because it is dismissal, discharge, removal, retrenchment, suspension of an 'employee' that furnishes occasion for adjudication and relief by a Labour Court. What is urged is that unless it is proved that for grant of such a relief a person is an 'employee' within the meaning of the Bombay Industrial Relations Act, 1946, no application is tenable. Our attention was invited to the definition of 'employee' in the Bombay Industrial Relations Act, in Section 2(13). That definition is as follows:

'(13) 'employee' means any person employed to do any skilled or unskilled work for hire or reward in any industry and includes -

(a) a person employed by a contractor do any work for him in the execution of a contract and an employer within the meaning of sub-clause (c) of clause 4 :

(b) a person who has been dismissed, discharged or retrenched or whose services have been terminated from employment on account of any dispute relating to change in respect of which a notice id given or an application made under Section 42 whether before or after his dismissal, discharge, retrenchment, or, as the case may be, termination from employment; but does not include -

(i) a person employed primarily in a managerial, administrative, supervisory or technical capacity, drawing basic pay (excluding allowances) exceeding five hundred and fifty rupees per month ;

(ii) any other person or class of persons employed in the same capacity as those specified in clause (i) above irrespective of the amount of the pay drawn by such persons which the State Government may, by notification in the Official Gazette, specify in this behalf.'

According to the learned counsel for the petitioner clause (a) of the definition clause is the governing clause of the definition. Unless, therefore, it is shown that the claimant is an employee who was a person who has been dismissed, discharged, or retrenched, or whose services have been terminated on account of any change in respect of which notice is given or an application is made under Section 42, an ex-employee, merely because he was dismissed, discharged or retrenched, can not make an application for relief under paragraph D of Section 78(1) of the Act.

23. In this connection reliance was placed on another Division Bench decision of this Court in Special Civil Applns. Nos. 345 of 1966 and 575 of 1966, disposed of by a common order dated 11th March 1967 (Bom). One of the questions raised in that case was the interpretation of the definition clause of the term 'employ' in section 2(1) of the C.P. and Berar Industrial Disputes Settlement Act, 1947. The definition in S. 2 (10) of the C.P. Act is as follows :

'(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 dismissed, discharged, or removed on account of any industrial dispute;'

The case arose out of an application by one Laxman who was served with a notice terminating his services in exercise of a contractual option and the contention that appears to have been raised was that Laxman was not an employee who was dismissed, discharged, or removed on account of any industrial dispute. Accepting this contention the division Bench observed follows:

'A plain reading of the definition of the term 'employee' in S.2(1) as it now stands, shows that the only category of persons who, though not in actual employment at the date of the application, is included within that term is of persons who are ex-employees and were dismissed, discharged or removed on account of any industrial dispute. The disputes must precede the dismissal, discharge or removal and the dismissal, discharge or removal must be the result of such dispute.'

Even a cursory comparison of the two definitions would show that they are not pari materia and no assistance, in our opinion, can be derived by the petitioner in relying on the decision in that case.

24. It is necessary to scrutinise the definition in Section 2(13) of the Bombay Industrial Relations Act before the contention can be accepted in the form it is raised. According to the learned counsel for the petitioner even under the provisions of paragraph D of Section 78(1) of the Act a Labour Court will be powerless to order reinstatement and payment of back wages on account of the dismissal, discharge etc. which is found to be in contravention of a standing order, unless such a person has been dismissed from employment on account of any dispute relating to a change in respect of which notice is given or an application is made under Section 42. It was also contended that the earlier part of the definition which definition which defines an 'employee' meaning any person employed to do skilled work for hire or reward is to be ignored and the words which follow, namely, 'and includes' are to be construed as words of limitation rather than words of extension of the definition. We are unable to accept this construction either. Moreover, the definition given is Section 2(13) cannot be rigidly applied if it is repugnant to the context or subject.

25. Now, the subject of paragraph D of Section 78(1) is empowering a Labour Court to give relief of reinstatement and payment of back wages to an employee who has been dismissed, discharged, or who has been dismissed, discharged, whose services have been terminated or suspended for one or the other of the causes given in that paragraph. We fail to see how such an employee could have satisfied the definition in clauses (b) of section 2(13) in order to get relief under paragraph D of Section 18(1). That definition postulates a dismissal on account of a dispute relating to a change in respect of which a notice is given or on account of which a notice is given or on account of a dispute relating to a change in respect of which a notice is given or on account of a change or on account of any dispute relating to any change in respect of which an application is made under Section 42. In other words, the dismissal etc, must follow a dispute and that dispute must arise on account of a notice relating to a change having been given or an application having been made under Section 42 relating to such a change. Surely, a dismissal order may be made not only on account of a dispute having arisen, but even in other circumstances. It could hardly have been intended by the Legislature (if we are to accept the interpretation put on the definition clause on behalf of the petitioner) that almost no employee will be entitled to get relief unless such an employee is first dismissed, retrenched or his services have been terminated, and such a dismissal, discharge, or retrenchment or termination is on account of a dispute relating to a change in respect of which a notice is given or an application is made under Section 42. We are satisfied that no such startling result was contemplated or intended by the Legislature in adding clause (b) to the definition section, as including an employee in the general definition earlier given in the opening part of Section 2(13). Even the definition section is to be so construed as to be reconciled with the scheme and provisions of the Act and not as to abridge the benefits of the Act in the case of persons who otherwise are employees but who cannot satisfy the test of being an employee within the meaning of artificial definition in clause (b) of Section 2(13). If the contention is taken to its extreme logic, it would mean that the provisions of the Act are not available to any employee unless he satisfies the condition of clause 2 (13) of the Act. We are unable to hold that such was the intention of the Legislature or that the word 'employee' in paragraph D of Section 78(1) should be construed with reference to this definition. Such a construction would be wholly repugnant to the subject or context for which provision is made in paragraph D of Section 78(1) and we must reject this contention.

26. There is an allegation in the return filed on behalf of Nathu (third respondent) that he had approached the employer before making an application to the Labour Court. It is not necessary that any enquiry should be make into that averment now as we have come to the conclusion that so far as working out of the right under paragraph D of Section 78(1) of the Bombay Industrial Relations Act, 1946, is concerned, it is not necessary for an employee first to approach an employer or to follow the procedure under Section 42(4) and its proviso of the Act.

27. Thus, the result is that the petition fails and is dismissed with costs.

28. Petition dismissed.


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