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Dagadu Kushaba Aware Vs. Labour Appellate Tribunal of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1547 of 1953
Judge
Reported inAIR1954Bom302; (1954)56BOMLR138; ILR1954Bom1307; (1954)IILLJ296Bom
ActsIndustrial Disputes (Appellate Tribunal) Act, 1950 - Sections 10, 22, 23 and 33; Bombay Industrial Relations Act, 1947 - Sections 30, 42 and 114
AppellantDagadu Kushaba Aware
RespondentLabour Appellate Tribunal of India and ors.
Appellant AdvocateRajani Patel and ;G.J. Mane, Advs.
Respondent AdvocatePayne and Co., ;R.J. Kolah, ;Narayan Swami, ;D.H. Buch, ;Bhaishanker, ;Kanga and ;Girdharlal, Advs.
Excerpt:
labour and industrial - notice to aggrieved - sections 10, 22, 23 and 33 of industrial disputes (appellate tribunal) act, 1950 and sections 30, 42 and 114 of industrial relations act, 1947 - order of labour appellate tribunal challenged - impugned order passed without notice to petitioner - it is an elementary principle of jurisprudence that no judicial tribunal should pass an order affecting person without giving notice to person and without giving person an opportunity to be heard - it is looked as rule of natural justice - unless statute directs tribunal to act contrary to this rule it must be assumed that legislature intends and expects tribunal to act in conformity with and consistently with rules of natural justice - section 23 gives right to every employee aggrieved by..........of opponent no. 2 mills and he has come to us complaining of an order passed by the labour appellate tribunal on 22 july, 1953, and that order came to be passed under the following circumstances. on 3 january, 1953, opponent no. 2 mills gave a notice of change under section 42, bombay industrial relations act and the change which they proposed to effect was that they wanted to introduce four-looms-to-a weaver system in weaving shed no. 3. on 3 july, 1953, in conciliation proceedings between the mills. and the workers, a settlement was arrived at and that settlement was registered before the conciliator, and the settlement was that two assessors who were named should decide whether the management should introduce this four-looms-to-a weaver system and the decision of the assessors.....
Judgment:

Chagla, C.J.

1. The petitioner is an employee of opponent No. 2 Mills and he has come to us complaining of an order passed by the Labour Appellate Tribunal on 22 July, 1953, and that order came to be passed under the following circumstances. On 3 January, 1953, opponent No. 2 Mills gave a notice of change under Section 42, Bombay Industrial Relations Act and the change which they proposed to effect was that they wanted to introduce four-looms-to-a weaver system in weaving shed No. 3. On 3 July, 1953, in conciliation proceedings between the Mills. and the workers, a settlement was arrived at and that settlement was registered before the conciliator, and the settlement was that two assessors who were named should decide whether the management should introduce this four-looms-to-a weaver system and the decision of the assessors was to be binding upon the Mills and upon opponent No. 3 which is a Representative Union within the meaning of the Bombay Industrial Relations Act.

It may be pointed out that before the conciliation proceedings and in the matter of this agreement opponent No. 3 represented the workers of opponent No. 2 Mills. On 20 July, 1953, the assessors made a report and they came to the conclusion that the conditions and arrangements as at present managed in the weaving department were suitable for running a four-loom system. Under the circumstances they expressed the opinion that this system should be put into operation. On the same day an application was made by the Mills to the Labour Appellate Tribunal under Section 22 and that application came to be made to the Appellate Tribunal because appeals were pending before the Tribunal with regard to the dearness allowance of the textile workers In the City of Bombay, and Section 22, Industrial Disputes (Appellate Tribunal) Act, 1950, requires that:

'During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act, no employer shall-

(a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or

(b) discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal.'

In view of this section the Mills in their application referred to the agreement arrived at and asked the Tribunal to grant permission to the Mills to introduce the four-loom system in shed No. 3 of the Mills. It was on this application that the Labour Appellate Tribunal made the order giving permission to the Mills to effect the change in terms of the settlement between the parties and the assessors' report, and It is this order that is being challenged by the petitioner.

2. The main ground of the challenge is that this order was passed by the Labour Appellate Tribunal without notice to the petitioner, and It is urged by Mr. Patel that under Section 22 it was incumbent upon the Tribunal to serve the petitioner with notice. Turning to Section 22, it prohibits an employer from altering the conditions of service to the prejudice of the workmen concerned, and he can only do so provided he obtains the express permission in writing of the Appellate Tribunal This prohibition only applies when either an appeal is preferred to the Tribunal or an appeal is pending before the Tribunal, and it is not disputed that in this case Section 22 came into operation inasmuch as an appeal was pending before the Tribunal, nor. is it disputed that in order to escape the penalty provided in Section 22 the employer had to go to the Tribunal to get its permission.

Section 23 gives the right to an employee, when an employer contravenes the provisions of Section 22, to make a complaint in writing to the Appellate Tribunal and the Appellate Tribunal has been empowered to decide the complaint as if it were an appeal pending before it. Apart from any other consideration and looking to the provisions of Section 22 itself, it is clear that the petitioner is a workman concerned in a pending appeal to whose prejudice the' employer wanted to alter the condition of service. The petitioner is a weaver in shed No. 3, but he is not a member of the Rashtriya Mills Mazdoor Sangh, which is opponent No. 3. It is also clear that the permission granted by the Labour Appellate Tribunal deprives the petitioner of the right to make a complaint under Section 23.

Therefore, by reason of the order passed by the Labour Appellate Tribunal the petitioner is bound to accept the alteration in the conditions of service brought about by the Mills. It is an elementary principle of jurisprudence that no judicial tribunal should pass an order affecting a person without giving notice to the person and without giving that person an opportunity to be heard. It is a principle so deeply embedded in jurisprudence that it has come to be looked upon as a rule of natural justice, and although Mr. Buch has rather faintly attempted to argue that there is no provision in Section 22 which makes it incumbent upon the Labour Appellate Tribunal to hear all parties who may be affected by an order that it may pass, it is clear that Parliament does not embody rules of natural justice in laws that it passes.

Unless a statute directs a tribunal to act contrary to the rules of natural justice or permits a tribunal to act contrary to the rules of natural justice, it must always be assumed that when a judicial tribunal is set up by a Legislature, the Legislature intends and expects the tribunal to act in conformity with and consistently with the rules of natural justice. So we are not impressed by the argument that Section 22 does not enjoin upon the Labour Appellate Tribunal to give notice to the parties affected by any order that it might make.

3. But it is urged by Mr. Kolah on behalf of the Mills that the agreement with regard to the change was brought about between the Mills and opponent No. 3, that opponent No. 3 was a Representative Union within the meaning of the Bombay Industrial Relations Act, and Mr. Kolah says that the scheme of the Bombay Industrial Relations Act makes it perfectly clear that opponent No. 3 was entitled not only to represent but to act on behalf of all the workers and it was competent to enter into an agreement which would be binding on the workers, and therefore inasmuch as opponent No. 3 Union appeared before the Labour Appellate Tribunal, no notice was necessary to any other employee. Now, the scheme of the Bombay Industrial Relations Act undoubtedly supports the argument advanced by Mr. Kolah. Section 30 provides that:

'The following shall be entitled to appear or act in the order of preference specified as the representative of employees in an industry in any local area.....'

and the first in the order of preference is a Representative Union for such industry, and it is not disputed that opponent No. 3 is a Representative Union contemplated by this section. It is also clear that in the conciliation proceedings the Representative Union was entitled to represent all the workers and it was also entitled to enter into an agreement on behalf of the workers. Whether that agreement was binding or not upon all the workers would depend upon a proper construction of Section 114. We had occasion recently to construe that section and we took a particular view of what that section meant, and Mr. Kolah wanted to argue before us that the views expressed by us in that decision were 'obiter' and that we have not come to a definite or binding decision.

In our opinion it is unnecessary to consider in this application the proper construction of Section 114 or even to consider whether the agreement arrived at between the Representative Union and the Mills was or was not binding upon the petitioner who was not a member of the Union, because what we are concerned with in this matter is not whether the agreement was binding or with the question as to who was bound by that agreement, but what we are concerned with is the permission sought by the employer to effect a change under Section 22, Under Section 22 the employer did not go before the Labour Appellate Tribunal to register the agreement or to give effect to the agreement.

The employer relied upon the agreement for the purpose of obtaining the sanction of the Tribunal, It is clear that the Tribunal was not bound to give permission although an agreement was arrived at between the employer and the Representative Union. Section 22 confers a judicial discretion upon the Labour Appellate Tribunal to give permission or not to give permission to a change which the employer wishes to effect pending the appeal, and undoubtedly in exercising that judicial discretion the Tribunal may take, into consideration the fact that an agreement as to the change has been brought about by the employer and the Representative Union.

But it is equally open to the Tribunal to apply its own mind to the merits of the change and come to a conclusion that the change is not proper although there is an agreement between the employer and the Representative Union. Although, therefore, the agreement may have been an important material & a relevant material which the Tribunal had to consider in order to decide whether it should give permission or not, the efficacy or the validity of the agreement was not before the Tribunal and therefore really in this case we are not concerned with Section 114 at all.

4. Mr. Kolah says that if in matters arising under the Bombay Industrial Relations Act a Representative Union is entitled to act on behalf of all the workers, we must hold that when an appeal goes to the Labour Appellate Tribunal the same procedure should be followed and the Representative Union should have the same right to represent and act for all the workers. In our opinion that contention is entirely untenable. The Industrial Disputes (Appellate Tribunal) Act does not confer upon a Representative Union that representative character which the Bombay Industrial Relations Act confers, and Section 22 does not provide that the workmen concerned referred to in Section 22 can be represented by the Representative Union for the purpose of the application for permission under that section. Mr. Kolah says that the only parties to the appeal pending before the Labour Appellate Tribunal were the employer and the Representative Union and therefore no notice was necessary to any person who was not a party to the appeal.

Again, Section 22 deals with an independent application that has got to be made by an employer pending an appeal and Section 22(a) does not refer to the altering of a condition to the prejudice of the respondent to the appeal. It refers to the alteration of a condition to the prejudice of the workmen concerned, and therefore although in the disposal of the appeal the only parties who need be heard may be the appellant and the respondent, when it comes to Section 22 the parties who are entitled to be heard are the parties who are to be affected by the granting of the permission and those parties are the workmen concerned. It is very significant that when the Legislature could have used the expression 'respondent to the appeal,' they have advisedly used the expression 'workmen concerned in such appeal' thereby indictating that the class of workmen referred to in Section 22(a) may be wider and larger than the respondents to the appeal.

5. It is pointed out that Section 33 refers to representation of parties and it lays down who is entitled to represent the workmen. But Section 33 refers to a party to an appeal. Section 22 has nothing to do with parties to the appeal. Section 22 contemplates workmen who are concerned in such appeal and whose rights may be prejudiced by a change effected by the employer pending the appeal. Even Section 33 is not of much assistance because Section 33 does not prevent a workman who is a party to an appeal appearing himself, but it gives him further the right to be represented in that appeal and lays down who can appear for him and represent him. What Mr. Kolah really asks us to do is to import into the Central Act the principles of representation embodied in the State legislation. That, in our opinion, is not permissible to the Court.

The only question that we have to ask ourselves and to decide is whether the order made by the Tribunal affects the petitioner or not, and indisputably the order does affect him because he is a weaver in shed No. 3 and the conditions of service under which he was working in that shed have been altered to his prejudice. The next question that we have to ask ourselves and decide is whether any notice was given to him before the order was passed by the Tribunal, and to that also the answer must be in the negative. The only notice was the one given to the Representative Union and we have looked in vain at the provisions of this Act to find where the Legislature has laid down that a notice to the Representative Union is a notice to every worker concerned in the appeal.

If the petitioner had been a member of opponent No. 3 Union, it may have been argued with some force that a notice to the Union was a notice to him. But when he does not even happen to be a member, it is difficult to understand how it could be said that an order passed by the tribunal, which concludes his rights without notice to him and with only a notice to the Union of which he is not a member, can possibly be an order of which it could be said that the order was passed after hearing all parties to be affected by that order.

6. In this connection Section 23 throws a great deal of light on the construction of Section 22. That section undoubtedly gives the right to every employee aggrieved by a contravention of Section 22. Therefore, if no permission was obtained, there can be no doubt that the petitioner could have made a complaint under Section 23. It is difficult to understand the argument which proceeds on the basis that although the employee could have made a complaint under Section 23, if no permission was obtained, he can be prevented from making that complaint by passing an order under Section 22 without notice to him. That really is, in a nutshell, the argument advanced on behalf of the petitioner.

Again, Clause (b) of Section 22 may be looked at. That prohibits the employer from discharging or punishing, whether by dismissal or otherwise, any workman concerned in such appeal. Now, if the employer wanted to dismiss the petitioner from service pending the appeal, the employer was bound to obtain the permission of the Appellate Tribunal. It is suggested that the Tribunal could have given permission to the Mills to dismiss the petitioner from service without notice to him, because the Representative Union was before the Tribunal and represented according to the Mills all the workers concerned?

7. Therefore, looking at Sections 22 and 23 and also bearing in mind the scheme which the Legislature had in mind, it is clear that Section 22 contemplates a notice to all the workers who were going to be affected by the proposed change. Mr. Kolah says that such a position may make the working of the Labour Appellate Tribunal almost impossible. Now, we realise the difficulty of giving notice to hundreds or thousands of workmen who may be affected by a proposed change, but that is a matter for the Labour Appellate Tribunal to set right.

Mr. Kolah has just drawn our attention to Rule 11A framed by the Tribunal which deals with cases where there are numerous appellants or respondents, and it provides for notice being served on the Secretary of the Union where the parties are members of the Union or by a public advertisement where they are not such members, and Sub-rule (3) of Rule 11A provides that these provisions shall also apply to the parties to any other proceeding before the tribunal. Therefore, if Rule 11A was intended to apply to proceedings under Section 22, the simplest and easiest thing for the Tribunal to have done was to have given a public notice with regard to the application made by the employer.

Mr. Kolah has also pointed out that there may be difficulty about hearing all the workmen who may be affected by the proposed order. There again, it is a matter for the Tribunal to frame rules as to how it would hear workmen who may be in the same interest and the procedure may be laid down as to how persons in the same interest should place their submissions before the Tribunal. But the difficulty in procedure can surely be no answer to a violation of a rule of natural justice, and if we are satisfied that the petitioner was entitled to have notice and to be heard, the order made without hearing him must be set aside, irrespective of any difficulties in procedure which may result by our holding that the petitioner is entitled to have notice and to be heard.

8. We would, therefore, set aside the order passed by the Labour Appellate Tribunal and send the matter back to the Tribunal with a direction that it will hear the application made by the Mills dated 20th July, 1953, after giving proper notice to the workmen concerned in the appeal pending before it who are likely to be affected by the proposed change in the conditions of service. After the proper notice has been given and the workmen have been heard, the Tribunal will dispose of the application according to law.

9. Opponent No. 2 to pay the costs of the petition. Opponent No. 3 to bear its own costs. Costs fixed at Rs. 150.

10. Mr. Kolah says that the Mills have been working this shed No. 3 under the altered conditions and it would not be possible to change over in view of our decision, and that it is also difficult to get the necessary permission with proper notice to the petitioner within a short time. He, therefore, wishes to apply to the Tribunal to give interim permission to carry on with this altered condition of service till the main application is heard and disposed of as directed by this order. We give liberty to the Mills to make the necessary application to the Tribunal in the course of to-day and the Tribunal will deal with it and dispose of this application according to law. Mr. Kolah says that he has given notice of making this application to Mr. Patel in Court.

11. Order set aside.


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