Skip to content


Mahalaxmi Mills Ltd. Vs. F. Jeejeebhoy and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 64 of 1953
Judge
Reported inAIR1954Bom247; (1954)56BOMLR78; ILR1954Bom579; (1954)ILLJ620Bom
ActsIndustrial Disputes (Appellate Tribunal) Act, 1950 - Sections 2, 3, 7 and 34; Industrial Disputes Act, 1947 - Sections 33A; Saurashtra Industrial Disputes Adaptation Ordinance, 1948; Code of Civil Procedure (CPC), 1908
AppellantMahalaxmi Mills Ltd.
RespondentF. Jeejeebhoy and ors.
Appellant AdvocateM.P. Amin, Adv. General and ;B.J. Diwan, Adv.;Purshottam Tricumdas, Adv.
Respondent AdvocateD.H. Buch, Adv.
Excerpt:
- - section 33a gave an important right to the employee which he did not possess under the old law, and the effect of section 33a was that if an employer made any illegal change while a reference was pending before a tribunal, any employee aggrieved by such a change could complain to the tribunal and the tribunal was given the power to adjudicate upon that complaint. the object clearly was that that right should be given to all employees where references were pending before industrial tribunals & where the employer made an illegal change......was set up at rajkot under section 7 of the ordinance. on may 20, 1950, the industrial disputes (appellate tribunal) act came into force and on march 16, 1951, a reference was made by the saurashtra government under section 10 of the ordinance in respect of a dispute pending between the petitioners and their employees.on september 1, 1952, the petitioners stopped working the mills, and between october 10, 1952, and october 15, 1952, the employees made various applications under section 33a. on november 25, 1952, the tribunal made an award on the applications made by the employees under section 33a. there was an appeal both by the employees and the mills against this award to the labour appellate tribunal and the labour appellate tribunal gave its decision on may 7, 1953.3. now, what is.....
Judgment:

Chagla, C.J.

1. This is an appeal from a judgment of Mr. Justice Desai and it raises a very short point as to the construction of Section 33A of the Industrial Disputes Act.

2. The few facts which are necessary in order to appreciate the contentions put forward are that the Industrial Disputes Act (XIV of 1947) was applied to Saurashtra with certain modifications on March 20, 1948, by the Saurashtra Ordinance No. VI of 1948. On March 13, 1950, a tribunal was set up at Rajkot under Section 7 of the Ordinance. On May 20, 1950, the Industrial Disputes (Appellate Tribunal) Act came into force and on March 16, 1951, a reference was made by the Saurashtra Government under Section 10 of the Ordinance in respect of a dispute pending between the petitioners and their employees.

On September 1, 1952, the petitioners stopped working the Mills, and between October 10, 1952, and October 15, 1952, the employees made various applications under Section 33A. On November 25, 1952, the tribunal made an award on the applications made by the employees under Section 33A. There was an appeal both by the employees and the Mills against this award to the Labour Appellate Tribunal and the Labour Appellate Tribunal gave its decision on May 7, 1953.

3. Now, what is challenged before us is that the tribunal set up by the Saurashtra Government had no jurisdiction to entertain an application by an employee under Section 33A of the Act. When the Industrial Disputes Act (XIV of 1947) was passed it did not contain Section 33A, and when that Act was applied to Saurashtra it also did not contain that provision. That provision was introduced into the main Act by the Industrial Disputes (Appellate Tribunal) Act, 1950. That Act set up an Appellate Tribunal in order to bring about uniformity of labour decisions all over India, and Section 7 of that Act provided for the jurisdiction to be exercised by that Appellate Tribunal. Section 34 of the Act introduced certain amendments in Act XIV of 1947 and those amendments were specified in the Schedule 'to the Act, and one of the amendments was Section 33A.

Section 33A gave an important right to the employee which he did not possess under the old law, and the effect of Section 33A was that if an employer made any illegal change while a reference was pending before a tribunal, any employee aggrieved by such a change could complain to the tribunal and the tribunal was given the power to adjudicate upon that complaint. Prior to that amendment an employee could not make such a complaint. He had to ask Government to refer that complaint to a tribunal.

Therefore, Section 33A gave the right to an employee, instead of being compelled to go to Government, to make a complaint 'suo motu' before the tribunal before which the main reference was pending. It was under this amended section that the employees of the petitioners made an application to the tribunal. Their contention was that while the reference made by the Saurashtra Government in respect of the disputes between the petitioners and the employees was pending, the petitioners closed the Mills and therefore they were guilty of an illegal change, and that complaint was adjudicated upon by the tribunal and an award was given in respect of that complaint.

4. Now, the contention of the Advocate General is, as it was before the learned Judge below, that the only tribunal which has jurisdiction to entertain an application under Section 33A is the tribunal appointed under the Act and not appointed under the Ordinance. It is pointed out that the 'tribunal' is defined in the main Act as an industrial tribunal constituted under the Act, and the definition of a 'tribunal' in the Ordinance is also identical. Therefore, the Advocate General says that you may have a tribunal constituted under the Ordinance and you may have a tribunal which is constituted under the Act and the jurisdiction to entertain an application under Section 33A is conferred upon the tribunal as defined in the Act and not as defined in the Ordinance.

The contention of the Advocate General is that it is only when a reference is pending before a tribunal constituted under the Act that the right of the employee arises to make an application under Section 33A, but when a reference is pending before a tribunal constituted under the Ordinance he has no such right, it is pointed out and rightly that labour legislation is a concurrent subject and it is open both to a State Legislature and to Parliament to legislate with regard to it, and it is urged that the Saurashtra Ordinance constitutes a State legislation with regard to labour matters and the main Act is parliamentary legislation with regard to the same subject, and unless there is repugnancy between the provisions of the two laws both the Ordinance and the main Act may have full sway and can be given effect to.

Therefore the contention is that in Saurashtra there is both the Ordinance which is still unrepealed and there is the main Act which was applied with modifications by the Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950). But inasmuch as there is no conflict as far as Section 33A is concerned, the provisions of the Ordinance should be given effect to. It may be pointed out that the Industrial Disputes (Appellate Tribunal) Act in amending the main Act applied the Act to the whole of India except the State of Jammu and Kashmir, and therefore the main Act which was not so far applicable to Saurashtra became appli cable when Act XLVIII of 1950 came into force.

It is also contended by the Advocate General that Act XLVIII of 1950 does not amend the Ordinance and does not incorporate the amendments made in the main Act into the Ordinance. Therefore, whereas the main Act as applied to Saurashtra is amended and Section 33A forms a part, of the amended Act, the Ordinance remains unaltered and unamended and in the Ordinance there is no provision similar to Section 33A.

5. Now, if there was nothing more in Act XLVIII of 1950 than Section 34 and the amendment to the main Act, the arguments advanced by the Advocate General would be unanswerable, although it may be said, as pointed out by Mr. Purshottam, that the Act XLVIII of 1950 defines 'Industrial Tribunal' as not only an Industrial Tribunal constituted under the Industrial Disputes Act, but also any Court, Board or other authority set up in any State under any labour legislation. Therefore, as far as the definition'of 'Industrial Tribunal' in Act XLVIII of 1950 is concerned, it would apply not only to a tribunal-set up under the Act, but also to a tribunal set up under any other labour legislation, and Mr. Purshottam says that in the main Act a 'tribunal' is defined as an industrial tribunal constituted under the Act.

Therefore, Mr. Purshottam's contention is that when in Section 33A the Legislature uses the expression 'tribunal', it means an industrial tribunal and therefore the definition of 'industrial tribunal' in Act XLVIII of 1950 is attracted to the expression 'tribunal' in Section 33A. There is some force in that contention, but it is unnecessary for us to decide whether that contention is sound, because in our opinion Section 3 of Act XLVIII of 1950 provides a complete and conclusive answer to the argument advanced by the Advocate General. That section, which is headed 'Effect on other laws', provides;

'The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in iorce or in any instrument having effect by virtue of any such law.'

Therefore, by one stroke of the pen Parliament incorporated ail the provisions of Act XLVIII of 1950 in all labour legislation in force in India at the date when Act XLVIII was passed. Parliament directed that if any inconsistency was found between what Act XLVIII of 1950 provided and any other law, the provisions of Act XLVIII of 1950 were to prevail. There can be no doubt that there is a clear inconsistency between the provisions of the Ordinance and the provisions of the main Act as amended by Act XLVIII of 1950. Whereas the Ordinance does not give to the employees the important right given by Section 33A, the main Act does so. Therefore, the effect of amending the main Act by enacting Section 33A upon the Ordinance is that the provisions of the main Act must prevail over the Ordinance, and if the main Act gives the right to the employee under Section 33A to make an application in a pending reference before a tribunal although Parliament has not in effect amended the Ordinance, it has provided that this particular provision shall have effect notwithstanding the different or contrary provision in the Ordinance.

Parliament could easily have incorporated Section 33A in the Saurashtra Ordinance and in other laws in force in other parts of India, but instead of adopting that method it has used a more comprehensive method by enacting Section 3 and providing that the provisions of Act XLVIII of 1950 shall prevail over any other provisions contained in any other law in force at the time.

6. Confronted with this difficulty the Advocate General argued that Section 3 only applies to the appellate provisions of Act XLVIII of 1950. He says the object of Act XLVIII of 1950 was to constitute an Appellate Tribunal and it is only to the extent that the Act sets up an Appellate Tribunal that this provision can prevail over the provisions of other laws, it is impossible to accept that contention. Whatever the preamble of Act XLVIII of 1950 may say, Section 3 is general in terms and it is not only the provisions with regard to an Appellate Tribunal of the Act that have to have effect notwithstanding anything inconsistent contained in any other law, but each and every provision of the Act which has got to have effect and prevail over similar provisions in other laws in force at the time.

One of the most important provisions of the Act is the provision contained in Section 34 and that provision is the amendment of the main Act and that provision must have the same effect on other laws as the provisions with regard to setting up of an Appellate Tribunal. No possible distinction can be made with regard to the effect of this Act to the extent that it sets up an Appellate Tribunal and to the extent that it modifies the main Act. As far as Section 3 is concerned, every provision of this Act stands on the same and identical footing. Therefore, in our opinion, Section 3 is sufficiently comprehensive and sufficiently all embracing to incorporate as it were into the Ordinance Section 33A which has been incorporated into the main Act by Act XLVIII of 1950.

7. It must also be borne in mind that it is impossible to assume that the object of Parliament in enacting Section 33A could possibly have been to give that important right to employees which Section 33A gives only to certain employees whose references were pending before certain tribunals. The object clearly was that that right should be given to all employees where references were pending before industrial tribunals & where the employer made an illegal change.

It is true that if the language used by the statute is clear, we cannot construe the Act differently, because of what we think was the object of Parliament. But if no possible principle can be suggested why such a distinction was made by Parliament, then the Court must lean against a construction which attributes to Parliament an unnecessary inconsistency in applying one law to one set of employees and another law to another set of employees. Fortunately, Section 3 is so clear in our opinion that it is unnecessary for us to strain the language of the Act in order to carry out the obvious object of Parliament in amending Section 33A of the main Act.

8. Therefore, in our opinion, the learned Judge below was right in the view that he took. The result is that the appeal fails and must be dismissed. Appellants to pay the costs of respondents Nos. 3 to 13. The State of Saurashtra to bear its own costs.

9. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //