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Bombay Port and Dock Employees' Union and Anr. Vs. Meher (M.R.) and Anr. (17.08.1965 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 140 of 1964
Judge
Reported in(1965)IILLJ687Bom
ActsIndustrial Disputes Act, 1947 - Sections 2, 11 and 11(5)
AppellantBombay Port and Dock Employees' Union and Anr.
RespondentMeher (M.R.) and Anr.
Excerpt:
.....agreement between parties by raising wages in different scales - petitioners seek to revise award of tribunal - contended that tribunal was in error in rejecting petitioner's application for appointment of assessors and rejecting some demands on ground that it had no jurisdiction to adjudicate upon same - tribunal has jurisdiction to decide in which case it will appoint assessors - some demands raised by workmen appeared to be of managerial concern - held, tribunal was right in holding that it had no jurisdiction to decide matter of management of business. - - section 11, sub-section (5), clearly vests discretion in the tribunal to appoint assessor or assessors to advise him in such proceedings. ' there can be no better use of the words to indicate what the legislature..........categories of the workmen. fresh disputes were raised in 1955 and an award was obtained from the industrial tribunal which, in some measure, modified the earlier agreement between the parties by raising the wages in the different scales but the classification continued as before. by a charter, the workmen made 35 demands against respondent 2. the state government by its order dated june 13, 1963 referred these demands to the industrial tribunal for adjudication. the matter was taken up on june 18, 1963 when notices were issued to the respective parties. both the parties filed their statements of claim and the matter was finally adjourned to october 22, 1963. the petitioners then filed an application on that day for appointment of assessors. it also appears that the matter was being.....
Judgment:

Patel, J.

1. Petitioner 1 is the Bombay Port and Dock Employees' Union registered under the Indian Trade Unions Act and petitioner 2 is a worker in the workshop of respondent 2, Scindia Workshop, Ltd.

2. In 1948, there was an agreement between the company and its workmen produced at Ex. A, by which classification of employment was made, and introduced wage-scales for different categories of the workmen. Fresh disputes were raised in 1955 and an award was obtained from the industrial tribunal which, in some measure, modified the earlier agreement between the parties by raising the wages in the different scales but the classification continued as before. By a charter, the workmen made 35 demands against respondent 2. The State Government by its order dated June 13, 1963 referred these demands to the industrial tribunal for adjudication. The matter was taken up on June 18, 1963 when notices were issued to the respective parties. Both the parties filed their statements of claim and the matter was finally adjourned to October 22, 1963. The petitioners then filed an application on that day for appointment of assessors. It also appears that the matter was being argued on certain aspects of the demands before the tribunal. On November 18, 1963, the tribunal gave its first part of the award, and on December 5, 1963 it rejected the application for appointment of assessors. The petitioners seek to revise the award and the order of the tribunal.

3. Sri Nargolkar first contended that the tribunal was in error in rejecting the petitioners' application for appointment of assessors, only on the ground that it had a discretion to accede to the request or not. He argued that, under S. 11 of the Act of 1947, it is the bounden duty of the tribunal to appoint assessors when technical matters may be involved in a dispute between the parties. There is no substance in the contention. Section 11, Sub-section (5), clearly vests discretion in the tribunal to appoint assessor or assessors to advise him in such proceedings. And the matter is left beyond doubt by the use of the words 'may, if it so thinks fit.' There can be no better use of the words to indicate what the legislature intended. Every case must depend on its own facts, and necessarily, therefore, the tribunal must have jurisdiction to decide in which case it will appoint assessors and in which case it will not. In the present case, the tribunal says that some demands it has rejected are in the first part of the award, and as to the rest it did not think it necessary to appoint assessors. The tribunal has also further reserved its right to reconsider the question if it became necessary. There cannot be a fairer order than this. This claim must, therefore, be rejected.

4. Sri Nargolkar challenged the award on two grounds. He argued that the tribunal was not justified in rejecting some of the demands - as it has done by this award - when the application for appointment of assessors was being argued. There is no allegation in the petition that, on the question on which the tribunal has rendered its award, arguments were not heard or that the counsel was required to answer the contentions without any notice. We understand that this part of the case was heard for hours together by the tribunal, and it was only thereafter that it decided the matter. Inasmuch as both the parties addressed the tribunal on those demands, it cannot be said that there was no hearing in respect of the same. This ground for the attack, therefore, is not justified.

5. Sri Nargolkar then contends that, in any event, the tribunal was not justified in holding that, so far as demand 14 in the charter was concerned, it related to a matter of management of the business and, therefore, it had no jurisdiction to adjudicate upon the same. The tribunal relied upon certain observations made in some Australian cases and held that as it related primarily to managerial functions, it was not within the scope of its duties to determine the same.

6. Sri Nargolkar contends that these demands are within the definition of the words 'industrial Disputes Act. 'Industrial dispute' given in S. 2(k) of Industrial Disputes Act. 'Industrial dispute' means a dispute between employers and employees connected with

(1) the employment,

(2) non-employment,

(3) the terms of employment, or

(4) conditions of labour,

of any person. In order that a dispute between an employer and an employee must be an industrial dispute, the section itself suggests that, in the first place, there must be a dispute and, secondly, it must be a dispute of the nature provided therein. In other words, mere existence of a dispute is not enough. The dispute must be connected with any of the matters enumerated above, with the employer or employees, and it is in this light that the demand must be considered in order to find out whether or not it is within the jurisdiction of the industrial tribunal.

7. Demand 14 consists of two items, A and B. Item A is divided into ten sub-items and item B is divided into four sub-items. Item A requires the company to carry out reorganization in the existing pattern of departments as suggested in the demands. Item B requires that the number of welding plats should be increased. Sri Nargolkar argues that we should completely disregard the word 'reorganization' of the departments and then analyse the demands. Whether or not the word 'reorganization' is deleted from consideration, it is clear from the nature of the demands themselves that this demand is not connected in any manner with any of the matters enumerated in the definition section. This demand called upon the company to create certain posts and to allocate a certain number of workmen to each such post. In short, this demand asked for the whole reorganization of the working of the company. By item B, it calls upon the company to increase the welding plats. It must be remembered that an industry has to be run not only with a view to benefit the workmen but with a view to promote general interests of the entire community. Considerations, therefore, of economy and efficient management come in. Therefore, it is for the management to decide as to how each section or department of the industry should be organized; and while doing so, the management is bound in the interests of the industry itself to consider what would be the most economical way of managing its affairs.

8. It is true, very often, it may be that the demand might appear to be a demand for reorganization, but in effect and substance it may be so connected with the conditions of service of the workmen that it may cease to be within the ambit of the managerial concern. But where a demand is made a naked demand for reorganization - as in this case - having no connexion with the conditions of service of the workmen, it is impossible to hold that it is demand which falls within the definition of 'industrial dispute' given in the Act.

9. It may be observed that sub-items (iii) and (iv) of item B no doubt affect the working conditions of the workmen. These demands require that the moulding department should be fitted with air-expellers and that an electric fan should be fitted up in the moulding shop crane. Except these two demands, we are not prepared to hold that they have any relation to the conditions of service as such, and, therefore, we hold that they do not fall within the definition section.

10. Sri Nargolkar has referred us to the decision of the Supreme Court in Standard Vacuum Refining Company of India, Ltd. v. their workmen and another 1960 II L.L.J. 233. He contends that this case decided that there is no sanctity of managerial functions as such, and the Court is entitled to adjudicate upon the demands of the workman. The short facts in that case are that a certain part of the company's work was being got done through a contractor who employed a large number of workmen for executing that work. The work was continuous and permanent in nature, and the demand made by the workman was that they should be regarded as the direct employees of the company and entitled to all the benefits to which other workers of the company were entitled. The company contended that it was for the management to decide what was the best method of carrying on its business affairs and that the industrial tribunal should not interfere with that part of the management. The tribunal had given directions accepting the demand of the workmen. The Supreme Court held that the tribunal was justified in making the award. It is impossible to read in this judgment that the principle the it is not the function if the industrial court to interfere with the company's managerial affairs, is not applicable. As we have stated earlier, sometimes, the matter raised by the workmen may appear to be of managerial concern and at the same time, it may also be so related to the conditions of service of the workman that it is impossible to regard it merely as a matter of managerial concern; in other words, it may relate to employment of the workman or conditions of their service and may, therefore, properly lie within the ambit of the definition of 'industrial dispute.'

11. Except, therefore, as to the demands under sub-items (iii) and (iv) of item B of demand 14, the tribunal was right in holding that it had no jurisdiction to adjudicate upon the matters.

12. In the result, subject to the observations made above, the rule is discharged. There will be no order as to costs.


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