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C.N. Bhaskaran Vs. Sri S.A. Patil and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberOriginal Civil Jurisdiction Appeal No. 713, from W.P. No. 659/80
Judge
Reported in(1986)ILLJ163Bom; 1984MhLJ343
ActsBombay Shops and Establishments Act, 1948 - Sections 38(B) and 38B; Industrial Employment (Standing Orders) Act, 1946 - Sections 1(3); Maharashtra Act, 1977
AppellantC.N. Bhaskaran
RespondentSri S.A. Patil and Others
Excerpt:
- - the appellant being not satisfied with the order passed by the labour court preferred writ petition no. it is well settled that the phrase 'mutatis mutandis' is often used in legislation in applying or extending legislative provisions to same or similar circumstances or to same or similar subjects. 38b of the bombay shops and establishments act, is perfectly legal......of the appellant it was urged before the learned single judge that inspite of the amendment to the bombay shops and establishments act, 1948, the second respondent could not rely upon the provisions of the industrial employment (standing orders) act, 1946, unless it employed a hundred or more employees. this contention did not find favour with the learned single judge. the learned single judge while construing the provisions of s. 38(b) of the bombay shops and establishments act, 1948 held that by reason of s. 38b, the provisions of industrial employment (standing orders) act, shall apply to all establishments to which the bombay shops and establishments act, 1948 applies as if they were industrial establishments within the meaning of the industrial employment (standing orders) act,.....
Judgment:

Kurdukar, J.

1. This appeal is directed against the judgment and order dated 24th January, 1984 in Writ Petition No. 659 of 1980 Passed by the learned single Judge (Bharucha, J.).

2. The Appellant is the Original Petitioner in Writ Petition No. 659 of 1980. It is common ground that the appellant was employed as a Stenographer by the second Respondent. The Second Respondent is a Limited Company having their office at Bombay. The first Respondent is the Presiding Officer of the 8th Labour Court, Bombay. It is also not disputed that the appellant was suspended on 20th March, 1978. A Charge-Sheet was served upon the Appellant on 22nd May, 1978 and, thereafter the domestic enquiry commenced which is pending.

3. The dispute in this appeal is confined to the back wages. The appellant sometime in the year 1978 made an application to the Labour Court praying for an order against the second Respondent that he be paid the back-wages for the period between 20th March, 1978 and 30th April, 1978. After hearing both the sides the Labour Court by its Order dated 22nd November, 1979, directed the second respondent to pay the full back-wages. Writ Petition No. 99 of 1980 filed by the Second Respondent came to be dismissed by this Court on 3rd March, 1980. On 13th June, 1978 the Appellant filed second application praying for recovery of the back wages for the month of May, 1978. When this application was pending the appellant made a third application on 9th November, 1979 for recovery of back wages for the period between 1st June, 1978 and 31st October, 1979. Both these applications were consolidated together and were heard by the Presiding Officer of the 8th Labour Court, Bombay. The learned Presiding Officer by his Order dated 18th March, 1980 declared that the appellant is entitled to receive from the second respondent company 50% of his wages for the months of May, June and July 1978. 75% of his wages for the months of August, September and October 1978 and full wages from November, 1978 till October, 1979 minus the usual deductions including house rent, provident fund, income-tax etc. The appellant being not satisfied with the order passed by the Labour Court preferred Writ Petition No. 659 of 1980.

4. On behalf of the appellant it was urged before the learned single Judge that inspite of the amendment to the Bombay Shops and Establishments Act, 1948, the second respondent could not rely upon the provisions of the Industrial Employment (Standing Orders) Act, 1946, unless it employed a hundred or more employees. This contention did not find favour with the learned single Judge. The Learned single Judge while construing the provisions of S. 38(B) of the Bombay Shops and Establishments Act, 1948 held that by reason of S. 38B, the provisions of Industrial Employment (Standing Orders) Act, shall apply to all establishments to which the Bombay Shops and Establishments Act, 1948 applies as if they were Industrial Establishments within the meaning of the Industrial Employment (Standing Orders) Act, 1946. Consistent with this finding the learned single Judge further held that S. 38B, makes no provision for the number of employees that the Industrial Establishment should employ or for the satisfaction of the condition imposed by S. 1(3) of the Industrial Employment (Standing Orders) Act. The learned single Judge further held that by S. 38B in effect, the provisions of the Industrial Employment (Standing Orders) Act, are engrafted into the Bombay Shops and Establishments Act, with only the necessary consequential changes in points of detail. In the result the learned single Judge dismissed the Writ petition the confirmed the Order/Award made by the Labour Court. It is this Judgment of the learned single Judge which is sought to be challenged in this appeal.

5. Shri. Menon learned counsel appearing in support of this appeal reiterated the same contention before us. Shri. Menon submitted that the learned single Judge erred in holding that by reason of incorporation of S. 38B of the Bombay Shops and Establishments Act, 1948 the provisions of Industrial Employment (Standing Orders) Act, 1946 and the rules made thereunder are engrafted into Bombay Shops and Establishments Act with only necessary consequential changes in points of detail. He then urged that if the interpretation put by the learned single Judge is accepted it will bring a material change in the Industrial Employment (Standing Orders) Act and virtually the learned single Judge has inadvertently stepped into the shoes of the legislature by rendering the provisions of S. 1(3) of the Industrial Employment (Standing Orders) Act ineffective which is a limiting clause. According to the learned counsel the effect of the judgment is to make the provisions of S. 1(3) of the Industrial Employment (Standing Orders) Act, redundant as for as Shops and Establishments Act is concerned. Shri. Menon also urged that the interpretation given by the learned single Judge to the phrase 'mutatis Mutandis' is incorrect. According to the learned counsel the interpretation of the phrase 'Mutatis mutandis' connotes changes to be made which ought to include the substantive provisions of S. 1(3) of the Industrial Employment (Standing Orders) Act, 1946 and should not result in setting aside or striking down of any of the provisions of the said statute. S. 38B of the Bombay Shops and Establishments Act 1948 must be read with S. 1(3) of the Industrial Employment (Standing Orders) Act, 1948 and if so read it must mean that unless the condition in regard to the employees of a hundred or more is established as provided in S. 1(3) of Industrial Employment (Standing Orders) Act by the second respondent, S. 38B of the Bombay Shops and Establishments Act, will not come into operation. We are unable to agree with any of these contentions raised before us.

6. It is common ground that on 1st May, 1978 S. 38B was inserted by Maharashtra Act 64 of 1977. In order to appreciate the contention of Shri. Menon, it would be necessary to refer to the provision contained in S. 38B S. 38B of the Bombay Shops and Establishments Act, 1948, reads as under :

'38B. The provision of the Industrial Employment (Standing Order) Act, 1946 in its application to the State of Maharashtra (hereinafter in this section referred to as 'the said Act'), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall, mutatis mutandis, apply to all establishments to which this Act applies, as if they were industrial establishments within the meaning of the said Act.'

7. The next relevant section is S. 1(3) of the industrial Employment (Standing orders) Act, 1946 and it reads as under :

'1(3). It (This Act) applies to every Industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months : Provided that the appropriate Government may after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any industrial establishment employing such number of persons less that One hundred as may be specified in the notification....'.

8. In Mitra's Legal and Commercial Dictionary, 3rd Edition, 1979 the phrase 'mutatis mutandis' has been defined thus :

'Mutatis Mutandis (with the necessary changes). The phrase is often used in legislation in applying or extending legislative provisions to same or similar circumstances or to same or similar subjects. It is nothing but a rule of adaptation.'

Shri. Menon, learned counsel appearing for the appellant also did not dispute this definition. But, however, according to him, S. 1(3) of the Industrial Employment (Standing Orders) Act, 1946 must be read as integral part of S. 38B of the Bombay Shops and Establishments Act, especially in the absence of any notification having been issued by the Government in regard to the number of employees employed in the establishment. This submission, in our opinion is wholly misconceived. It is well settled that the phrase 'Mutatis Mutandis' is often used in legislation in applying or extending legislative provisions to same or similar circumstances or to same or similar subjects. It is nothing but a rule of adaptation. If the contentions of Shri. Menon is accepted it will amount to adding some words in S. 38B and, in our opinion, this is not permissible. S. 38B of the Shops and Establishments Act makes no provision for the number of employees that the establishment (covered by Bombay Shops and Establishments Act) should employ for the satisfaction of the condition imposed by S. 1(3) of the Industrial Employment (Standing Order) Act. In our opinion, the interpretation places by the learned single Judge on S. 38B of the Bombay Shops and Establishments Act, is perfectly legal. By S. 38B, in effect the provisions of the Industrial Employment (Standing Orders) Act, 1946 are engrafted into the Bombay Shops and Establishments Act, 1948 with only the necessary consequential changes in points of detail in so far as they are applicable.

9. It was next contended by Shri. Menon that the Labour Court has committed an error while calculating the back wages. According to him the appellant as per the order of the Labour Court would be entitled to receive 50% of back wages for the period 1st May, 1978 to 17th June, 1978; 75% of back wages for the period 18th June, 1978 to 15th September, 1978 and from 16th September, 1978 onwards 100% Shri. Puri learned counsel appearing for Respondent No. 2 did not dispute this factual position. In view of this factual position we modify the order passed by the Presiding Officer, 8th Labour Court and declare that the appellant is entitled to receive from the second respondent 50% of his back wages for the period 1st May, 1978 to 17th June, 1978; 75% of his back wages for the period 18th June, 1978 to 15th September, 1978 and 100% wages from 16th September, 1978 onwards minus the usual deductions including house rent, provident fund, income-tax, etc.

10. Subjects to the above modification, the appeal is dismissed. However, in the circumstances of the case there shall be no order as to costs.


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