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Rashtriya Mill Majdoor Sangh Vs. Central India Spinning, Weaving and Manufacturing Company Ltd. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberOrder in Industrial Reference No. 20 of 1957
Judge
Reported in(1958)IILLJ339Bom
ActsCentral Provinces and Berar Industrial Disputes Settlement Act, 1947 - Sections 1 and 38A; Central Provinces and Berar Industrial Disputes Settlement Rules - Rule 37; Central Provinces and Berar Industrial Disputes Amending Act; General Clauses Act - Sections 7; Madhya Pradesh General Clauses Act - Sections 23
AppellantRashtriya Mill Majdoor Sangh
RespondentCentral India Spinning, Weaving and Manufacturing Company Ltd.
Excerpt:
.....and industrial - maintainability of application - section 38 a of central provinces and berar industrial disputes settlement act, 1947 and rule 37 of central provinces and berar industrial disputes settlement rules and section 7 of general clauses act - application under section 22 read with section 38 a and rule 37 (a) - maintainability of application challenged for absence of specific notification making section 38 a applicable to industries of madhya pradesh - original notification issued rendered sections 2 to 61 applicable to said industries - original notification sufficient to cover future amendments - section 38 a which is incorporated by future amendment thereby applicable - preliminary objection raised against application unsustainable. - - , and raghunath gopal..........that it is an application under s. 22 read with s. 38a of the central provinces and berar industrial disputes settlement act and rule 37(a) of the central provinces and berar industrial disputes settlement rules. 2. on behalf of the mills, a preliminary objection has been raised and it is that this court has no jurisdiction to entertain the application under s. 22 read with either s. 38a or with rule 37(a). it is contended on behalf of the non-applicant mills that s. 38a has not been made applicable to any industry in madhya pradesh by a notification issued under sub-section (3) of s. 1 of the central provinces and berar industrial disputes settlement act and that no application could therefore be made under s. 38a. it was also contended that no application could similarly be.....
Judgment:
ORDER

1. This is an application made by the recognized union on behalf of the employees of the non-applicant textile mills claiming payment of bonus for the year 1952-53. Similar applications have been filed in respect of bonus for the years 1953-54, 1954-55 and 1955-56 against the non-applicant. The union has also filed similar applications against the Model Mills. It has been stated in each of the application that it is an application under S. 22 read with S. 38A of the Central Provinces and Berar Industrial Disputes Settlement Act and rule 37(a) of the Central Provinces and Berar Industrial Disputes Settlement Rules.

2. On behalf of the mills, a preliminary objection has been raised and it is that this Court has no jurisdiction to entertain the application under S. 22 read with either S. 38A or with rule 37(a). It is contended on behalf of the non-applicant mills that S. 38A has not been made applicable to any industry in Madhya Pradesh by a notification issued under Sub-section (3) of S. 1 of the Central Provinces and Berar Industrial Disputes Settlement Act and that no application could therefore be made under S. 38A. It was also contended that no application could similarly be made under S. 22 read with rule 37(a) because under rule 37(a), if such an application could at all be made, it could only be made by the Labour Commissioner or the labour officer and not by a private party. It was similarly contended that the reference to this Court could only be made by Government under S. 39, or, subject to agreement between the parties to refer the dispute to arbitration by the Labour Commissioner to this Court, and that no reference by an application by an employee or union of employees was contemplated by law. It was, therefore, contended that the application made by the union could not be entertained by this Court and should be dismissed in limine.

3. On behalf of the employees, it was contended by Sri Dhabe that the original notification making the provisions of Ss. 2 to 61 applicable to the textile industry with effect from 1 March 1951 was enough to bring into force all amendments subsequently made in the Act and that merely because no fresh notification had been issued, it could not be held that S. 38A was not applicable to textile industry. He claimed in the alternative that the application fell under rule 37(a) of the rules framed under the Central Provinces and Berar Industrial Disputes Settlement Act and that this Court had jurisdiction to entertain the application.

4. Section 1 of the Central Provinces and Berar Industrial Disputes Settlement Act runs as follows :-

1. (1) This Act may be cited as the Central Provinces and Berar Industrial Disputes Settlement Act, 1947.

(2) It extends to the whole of the Central Provinces and Berar.

(3) This section shall come into force at once and the Provincial Government may by notification bring the remaining sections or any of them into force in such area or industry and on such date as may be specified in the notification.

According to S. 1 of the Act that section came into force immediately the assent of the Governor-General was published in the Central Provinces and Berar Gazette. It was published in the Gazette Extraordinary on June 2, 1947. Thus, S. 1 of the Act came into force on 2 June 1947. The Act consists of only 61 sections and by the notification issued on 20 November 1947 all the remaining sections of the Act, i.e., Ss. 2 to 61, came into force on 21 November 1947 in all industries except the four industries mentioned in notification which included the textile industry. On 22 February 1951, the State Government issued the notification No. 513-669-XXIII directing that Ss. 2 to 61 of the Act 'shall come into force on 1 March, 1951 in respect of the textile industry' and further directing amendment of the old notification which had excluded textile industry from the operation of the said provisions of the Act.

5. It is contended on behalf of the non-applicant that S. 38A was not in existence on 22 February 1951, when the notification applying the provisions of Ss. 2 to 61 to the textile industry was issued by the State Government, that no subsequent notification was issued applying that section to the textile industry and that so far as the textile industry was concerned S. 38A had not been brought into force and no application could be made by an employee or representative of employees under S. 38A. On behalf of the applicant, it was contended that the notification, which was issued on 2 February 1951 and which brought into force in the textile industry all the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act except S. 1 which had already come into force, was sufficient to bring into force all the amendments subsequently made in the Act and there was no necessity of issuing a fresh notification bringing into force S. 38A which had been added by amendment. It was also contended that S. 38A fell within 'Ss. 2 to 61' and there was no necessity of issuing a fresh notification bringing into force that section. Similarly, it was contended that the Central Provinces and Berar Industrial Disputes Amending Act repealed and re-enacted with modification some of the provisions of the original Central Provinces and Berar Industrial Disputes Settlement Act and the references in the notification to the provisions so repealed have to be construed as references to the provisions so re-enacted, under S. 7 of the General Clauses Act. Reliance was placed in respect of this argument on decision of this Court in Industrial Appeal No. 31 of 1956 decided on 28 August 1956 between Rashtriya Hume Pipe Mazdoor Sangh v. Indian Hume Pipe Company, Kanhan. The decision of this Court, in that case was upset by the Labour Appellate Tribunal of India on another point but it was argued that, so far as the decision on this point was concerned, it had been confirmed.

6. With the issue of notification, dated 22 February 1951, all the provisions of the Industrial Disputes Settlement Act applied to the textile industry as from 1 March 1951. The amending Act received the assent of the President and came into force on 25 November 1955 and it had the effect of amending Industrial Disputes Settlement Act XXIII of 1947. The amendments made were incorporated in the Act and formed part of the Act. If all the provisions of the Act had been in force in the textile industry before the amendment I do not suppose it could be said that the amended portion could not come into force in the textile industry without a fresh notification. Under S. 23 of the Madhya Pradesh General Clauses Act where an enactment is repealed and re-enacted by a Madhya Pradesh Act with or without modification, then unless it is otherwise expressly provided any appointment, order, scheme, rule, bye-law, notification or form made or issued under the repealed enactment shall so far as it is not inconsistent with the provisions re-enacted continue in force and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, order, scheme, rule, bye-law, notification or form made or issued under the provisions so re-enacted. In view of this provision of law (S. 23), I think the notification issued on 22 February 1951 must be held to be sufficient to cover future amendments and the provisions of Ss. 2 to 61 of the Central Provinces and Berar Industrial Disputes Settlement Act as they stand after amendment must be held to have come into force in the textile industry.

7. It was pointed out by Sri Bobde that the notification issued on 22 February 1951 could not be deemed to have brought into force in the textile industry the amendments introduced into the Act in 1955. According to Sri Bobde it would be absurd to hold that amendments made in 1955 were brought into force by the notification issued on 22 February 1951 when the amendments had not been contemplated. When I say that the amendments came into force in the textile industry by virtue of the notification of the 22 February 1951, I do not mean they came into force on 22 February 1951 but they came into force on the day on which the amending Act came into force, i.e., on the day the assent of the President was first published in the official Gazette.

8. It appears to me that the substances of the notification issued on 22 February 1951 was to apply all the provisions of the Industrial Disputes Settlement Act except S. 1 which had already been made applicable to the textile industry and when the notification did bring into force all the provisions of the Industrial Disputes Settlement Act in the textile Industry, it also was sufficient to bring into force the amendments which were effected thereafter. It appeared to me that when the Act is brought into force and subsequently amendments are made therein, it is not necessary to separately bring into force amendments, for when the Act is amended, the Act as amended comes into force automatically by virtue of the notification bringing the Act into force.

9. What I have considered is the substance of the notification but even if we were to consider only its language, the notification would be sufficient to bring into force S. 38A or other sections added by the amending Act as they have all been inserted as intervening sections. The notification says Ss. 2 to 61 were thereby brought into force. Section 38A is a section falling within Ss. 2 to 61 and if the notification were to be construed on the mere language and not on a consideration of its substance, it would appear sufficient to cover the amendment which inserted new sections between Ss. 2 and 61.

10. What would have been the position if instead of inserting this as an independent section as S. 38A it had been inserted as a sub-section of S. 37 It was not seriously contended that the new sub-sections added to S. 16 would require a notification to bring them into force. Merely because the new addition has been given the form of an independent section instead of giving it the form of a sub-section it would not be necessary to issue a fresh notification to bring it into force.

11. I shall now turn to the other aspect of the case. It was argued by Sri Dhabe, on behalf of the applicant, that rule 37(a) empowered this Court to entertain an application for adjudication of claim for bonus. According to Sri Dhabe, this was a dispute of general application affecting the industry as a whole. That this is a dispute of general application affecting the industry as a whole is not disputed on behalf of the non-application but what is contended on behalf of the non-applicant is that just as rule 37(g) is complementary to rule 36(d), so rule 37(a) is complementary to rule 36(a) and only such persons as could move a District Industrial Court under rule 36(a) could move the Provincial Industrial Court under rule 37(a) in respect of matters which could not be adjudicated upon by the District Industrial Court. Thus, in effect Sri Bobde argued that whereas an industrial dispute which was not of general application affecting the industry as a whole could be referred by the Labour Commissioner or the labour officer to the District Industrial Court such dispute when it was a dispute of general application affecting the industry as a whole could be referred by the same agencies to the State Industrial Court. It was contended that rule 37(a) thus only enabled the Labour Commissioner or the labour officer to refer such dispute to this Court as could not be referred under rule 36(a) to the District Industrial Court. I am not prepared to accept the argument because there is nothing in rule 37(a) to indicate that it was complementary to rule 36(a) or that it was meant only to enable the Labour Commissioner or the labour officer to refer an industrial dispute to this Court and to exclude others from making a reference under the rule.

12. The word 'referred' has not been used in the Act or the rules in a technical sense and it would not mean that a reference has necessarily to be made by Government or authorities such as Labour Commissioner or labour officer or that it cannot be made by parties, i.e., employees or employers or any union of employees. This point has been decided by the Labour Appellate Tribunal of India in Bom. Appeal No. 320 of 1956 decided on 6 November 1956 between Central Provinces Transport Services, Ltd., and Raghunath Gopal Patwardhan [Supreme Court of India- : (1957)ILLJ27SC . I am, therefore, clearly of opinion that reference under rule 37(a) can be by an employee or representative of employees by means of an application.

13. According to Shri Dhabe, rule 37(a) was an omnibus rule and empowered this Court to entertain applications for all reliefs which could be claimed under the Central Provinces and Berar Industrial Disputes Settlement Act. It was contended, therefore, that the present application could be made to this Court under rule 37(a) even apart from S. 38A and the introduction of S. 38A was meant merely to clarify the position. It was contended that so far as the provision in S. 38A was concerned, the amendment was merely declaratory and not one which created new rights. Sri Dhabe relied on the decision of the Nagpur High Court, Govinda v. Bombay Garage [Miscellaneous Petition No. 225 of 1954] decided on 8 October 1954 where their lordships observed as regards the central Provinces and Berar Industrial Disputes Settlement Act, 1957, that it was a self contained enactment for settlement of all disputes contemplated by the Central statute. The dispute relating to bonus is clearly a dispute contemplated both by Central statute as well as the state statute, viz., the Central Provinces and Berar Industrial Disputes Settlement Act, and since, Sri Dhabe argued, the enactment was meant for settlement of all industrial disputes, it would be proper to so construe rule 37(a) as to give it the widest application so as to bring within its ambit as many industrial disputes as could be possibly brought within the operation of the rule without seriously offending against the language of the rule. According to Sri Dhabe, therefore, rule 37(a) was wide enough to cover a dispute relating to bonus between employers and employees in an industry. In National Automobile employees' Union, Nagpur v. Bombay Garage (Central Provinces), Ltd., Nagpur, this court held that rule 37(a) was wide enough to include disputes relating to bonus between employers and employees, and employees could make an application to this Court for adjudication of such disputes. A petition under S. 226 was filed in the High Court against the order of this Court (Miscellaneous Petition no. 171 of 1955 decided on 7 September 1956) and it was held by the High Court that a dispute relating to bonus was a dispute of general application affected the industry as a whole and this Court had jurisdiction to adjudicate upon such dispute. Thus, even apart from S. 38A under the provisions of the law as they stood before the amendment an application for adjudication of the dispute relating to bonus could be made to this Court.

14. According to Sri Bobde, the amendment of the Industrial Disputes Settlement Act by addition of S. 38a is not merely declaratory but creates a right to make a reference in the parties and because there was no notification bringing into force this section, no party could apply to this Court under that section. It was also contended that there was no provision made in the rules creating jurisdiction in this court to entertain applications under S. 38A. My attention was drawn to S. 22(1) which runs as follows :

'22. (1) Provincial Government may constitute a Provincial Industrial Court for determining industrial disputes and for dealing with such other industrial matters under provisions of this Act as may be prescribed.'

It was contended by Sri Bobde that I could have jurisdiction to entertain the application under S. 22 only when a provision is made in the rules creating jurisdiction in this Court to try such disputes. The word 'describe,' no doubt, had been defined in the Act as meaning 'prescribed by rules' but this would not exclude what is prescribed by the Act itself. It was not necessary to prescribe by rules what was prescribed by the Act itself. To confine the words prescribed in S. 22 to what was prescribed by rules would render the provisions of the Act creating jurisdiction in the Industrial Court to determine industrial disputes and to deal with industrial matters nugatory and inoperative. Such a construction would be repugnant in the contest of Ss. 38A, 41 and similar other provision and has, therefore, to be avoided [see Burhanpur Tapti Mills case 1953 II L.L.J. 657 ]. In Berar Oil Industries, Akola v. N. H. Mujumdar and another 1958 I L.L.J. 226 , their lordships of the Bombay High Court at Nagpur held that words 'as may be prescribed' in Ss. 22(1) and 23(1) clearly showed that the matters had to be prescribed somewhere either in the Act or in the rules. It would be clear from their lordships' judgment that the word 'prescribe' is not confined to 'prescribed by rules.'

15. Sri Bobde tried to support his argument that cases of the nature which could be brought under S. 38A could not be brought under rule 37(a) on the language of S. 38A. He drew my attention to the words 'notwithstanding anything contained in this Act' at the beginning of the section and it was argued that these words were meant to remove the fetters which exited under the provisions of the Act and the rules framed thereunder on the power of the parties to make a reference to this Court. My attention was drawn to S. 37 under which an industrial dispute is deemed to have occurred. He argued that if there were no fetters under the law as it existed before the amendment, the words 'notwithstanding anything contained in the Act' were unnecessary. According to him, after an industrial dispute is deemed to have arisen, conciliation proceedings commence but no powers were given to the parties to make a reference. To remove these fetters, S. 38A was inserted. He argued that otherwise there was no necessity of inserting S. 38A and from the fact that necessity to insert S. 38A was felt, it was clear that there was no provision in the Act or the rules to enable parties to make a reference to this Court. I am not prepared to accept the argument, for amendment, to existing enactments are made not simply to remove the defects or 'the fetters' as Sri Bobde calls them in the existing provisions of law but also to clarify such provisions of law and to remove any doubts regarding the interpretation or application of such provisions of law. In this case on the authority of the decision of the High Court in Miscellaneous Petition No. 171 of 1955 decided on 7 September, 1956 and in view of the decision of this Court in Industrial Case No. 1 of 1954 on this point (see order dated 12 March 1955) I hold that under rule 37(a) this Court already had jurisdiction to entertain an application for adjudication of the question of bonus and S. 38A merely declared the law as it existed before amendment. Even assuming that S. 38A creates rights, it was not necessary to publish a notification bringing into force that section as the notification already issued was sufficient to cover S. 38A.

16. Sri Bobde drew my attention to State of Bombay v. Salat Pragji : 1957CriLJ884 and Agarla Osman Alarkhya and others v. Kutch State [1951 Kutch 9] in which it was held that though an Act is brought on the statute book where the provisions of the Act require that it should be brought into force in certain areas by notification, in the absence of such notification the Act cannot be held to have been brought into force. These were cases under the Bombay Prevension of Gambling Act, S. 1 of which required (read with the relevant Adaptation of Laws Order) that all or any of its provisions may be extended from time to time by the Chief Commissioner of Kutch by an order published in the official gazette to any local area in Kutch or any part thereof. After the merger of the State of Kutch in the Dominion of India on 1 June 1948, the Central Government issued under S. 4 of the Extra Provincial Jurisdiction Act (Act XLVII of 1947) an order called the Kutch (Application of Laws) Order, 1949, under Clause 3 of which certain enactments including the Bombay Prevention of Gambling Act was applied to Kutch. It was held in that case that the order of the Central Government merely brought the Act on the statute book but it had not the effect of extending the operation of the Act for extending which a notification under S. 1 of the Act (Bombay Prevention of Gambling Act) was necessary. These were cases of absence of notification. The case here is different. It is a case where a notification had been issued and the question is whether it would cover amendments of the Act. I have pointed out above that the notification would be sufficient to cover even future amendments and I, therefore, overrule the objection raised on behalf of the non-applicant and find in the negative on issues 1(a) and 1(b) and in the affirmative on issues 1(c) and 1(d).


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