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Sawatram Ramprasad Mills Company Ltd. Vs. Kundanmal Sardarmal Jain - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 313 of 1958
Judge
Reported in(1959)61BOMLR1511; (1960)ILLJ63Bom
ActsIndustrial Disputes Act, 1947 - Sections 2
AppellantSawatram Ramprasad Mills Company Ltd.
RespondentKundanmal Sardarmal Jain
Excerpt:
.....section 2(s) -- employee as defined in section 2(10) whether must be an employee on date he moves district industrial court -- whether under standing order 14(1) employee entitled to money compensation for period of accumulated sick leave after date of his retirement.;an employee as defined in section 2(10) of the central provinces and berar industrial disputes settlement act, 1947, need not in fact be an employee on the date he moves the industrial court. so long as he was employed by the employer against whom he wishes to raise the industrial dispute or a dispute relating to an industrial matter and the dispute raised by him is of the nature required by the definitions of 'industrial dispute' and 'industrial matter' in the act, he is an employee falling within the definition of..........of the notice dated 11 january, 1956. 4. on 22 june, 1956, respondent 1 made an application in the district industrial court purporting to be one under s. 23 read with rule 36 of the central provinces and berar industrial disputes settlement act, 1947, wherein he contended that the termination of his services was wrong and in the alternative he claimed that termination of his services without payment of money compensation in lieu of 4 months 6 days accumulated sick leave was wrongful. 5. this application of respondent 1 was contested by the petitioner mills. it was contended by the mills that respondent 1 was not entitled to claim money compensation for the accumulated sick leave after the date of retirement. he had completed the age of 55 and was, therefore, validly retired as and from.....
Judgment:

Tambe, J.

1. This is a petition under Arts. 226 and 227 of the Constitution of India in which the petitioner the Sawatram Ramprasad Mills Company, Ltd., Akola, seeks to get quashed order dated 7 May, 1958, made by the State Industrial Court, Nagpur, respondent 2 hereto.

2. Facts in brief are that respondent 1 Kundanmal Sardarmal Jain was employed as a clerk in the petitioner mills and at the material time he was drawing Rs. 130 inclusive of all allowances. It appears that certain disputes relating to the textile mills between the employers and the employees of the textile mills in Berar were referred to an arbitration of Mr. Justice Mangalmurti and the award was made by him some time in the year 1949. In pursuance of that award standing orders were framed for different mills. We are here concerned with Sub-clause (1) of Clause 14 of the standing orders. It reads :

'Sick leave on full average pay shall be granted to clerks up to a maximum of eight days in a completed period of one year's service. This leave is cumulative upto a maximum of eight months in the whole service of thirty years on the certificate, each time, either of doctor attached to the establishment or any registered medical practitioner. If the clerk is under the treatment of any registered medical practitioner other than the doctor attached to the establishment, he shall send intimation of his illness to the management at once by registered post. If such intimation is delayed without reasonable cause, he shall forfeit the right to medical leave on that occasion. It shall be open to the manager to get the condition of the employee certified by the doctor attached to the establishment. A clerk shall be entitled to the balance of any sick leave due to him on his retirement either before or after completion of thirty years' service or 55 years of age or on termination of his services before the expiry of 30 years' service or 55 years of age on any grounds except that of misconduct under standing order No. 24.'

3. On 11 January, 1956, the petitioner mills served a notice on respondent 1 informing him that he (respondent) would be 55 years of age on 12 January, 1956 and therefore, under the aforesaid standing order his services would stand terminated and that he would be paid one month's salary. The standing order is not before us, but Mr. Mudholkar, learned counsel for the petitioner, says that these were roughly the contents of the notice dated 11 January, 1956.

4. On 22 June, 1956, respondent 1 made an application in the District Industrial Court purporting to be one under S. 23 read with rule 36 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, wherein he contended that the termination of his services was wrong and in the alternative he claimed that termination of his services without payment of money compensation in lieu of 4 months 6 days accumulated sick leave was wrongful.

5. This application of respondent 1 was contested by the petitioner mills. It was contended by the mills that respondent 1 was not entitled to claim money compensation for the accumulated sick leave after the date of retirement. He had completed the age of 55 and was, therefore, validly retired as and from 12 January, 1956. The District Industrial Court did not accept the contention of respondent 1 that he was wrongfully retired but accepted his contention negativing that of the petitioner that he was entitled to money compensation for the accumulated sick leave and consistently with this finding it ordered that Rs. 585 be paid by the mills to respondent 1 as money compensation in lieu of the accumulated sick leave of respondent 1. Feeling aggrieved by this order, both the petitioner mills as well as respondent 1 took appeals to the State Industrial Court. Respondent 1 challenged the correctness of the finding of the District Industrial Court that the termination of the services was not wrongful. The petitioner in their appeal challenged the finding of the District Industrial Court that Respondent 1 was entitled to money compensation in lieu of the accumulated sick leave. The appeal filed by respondent 1 was dismissed. The appeal of the petitioner partly succeeded. The State Industrial Court held that respondent 1 was entitled to get money compensation for the accumulated sick leave but in its view the District Industrial Court could not order payment of the compensation. The State Industrial Court to that extent modified the order of the District Industrial Court. It is necessary to mention that though the question of jurisdiction was not raised before the District Industrial Court the petitioner raised that question at the appellate stage before the State Industrial Court. The contention of the petitioner was that respondent 1 not being an employee on the date he moved the District Industrial Court, the District Industrial Court had no jurisdiction to entertain the application. The State Industrial Court in its order appears to have allowed the question to be raised before it and has decided it against the petitioner. The petitioner, therefore, has preferred this petition.

6. Mr. G. R. Mudholkar, learned counsel for the petitioner, has raised two questions before us. In the first instance he contends that respondent 1 not being an employee on the date he moved the District Industrial Court, the District Industrial Court had no jurisdiction to entertain an application under S. 23 read with rule 36 or S. 41 of the Act and in the alternative Mr. Mudholkar contended that respondent 1 was not entitled to claim money compensation for the period of accumulated sick leave after the date of his retirement. In our opinion, both the contentions have not force and are covered by two authorities of this Court.

7. As regard the first contention regarding jurisdiction of District Industrial Court it is true that respondent 1 was not an employee on the date he moved the District Industrial Court but then that is not a condition precedent for moving the Industrial Court. On the language of S. 41 which authorizes certain persons to move the Industrial Court an employee is entitled to move it in respect of an industrial dispute. The definition of employee is contained in S. 2(10) of the Act. It reads :

'employee' means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry (and includes an employee dismissed, discharged or removed on account of any industrial dispute).'

8. This definition of employee is in pari materia with definition of 'workman' contained in S. 2(s) of the Industrial Dispute Act, 1947. Under the Act, i.e., the Industrial Disputes Act, 1947, matter was taken to this Court in P. L. Mayekar v. Amichand 1956 I L.L.J. 492. A certain dispute between dismissed employees and an employer arose. The employees were dismissed prior to 16 September, 1952. The State Government on 16 September, 1952 made a reference about an industrial dispute to the Industrial tribunal. Consequent thereon the tribunal made an award and directed the employer to reinstate the dismissed employees. An appeal against that order failed. This Court was then moved and the contention raised by Mr. Gupte, learned counsel on behalf of the employer, was that looking to the definition of workman contained in S. 2(s) of the Industrial Disputes Act, 1947, and in as much as the workmen were dismissed prior to the date of reference by the State Government, they did not fall within the definition of workman and, therefore, no industrial dispute could be raised with regard to them. Repelling this contention of Mr. Gupte, the learned Chief Justice observed :

'... There is no reason whatever, looking to the definition of 'workman,' to restrict the expression 'employed' to the point of time which Mr. Gupte suggested it should be restricted. So long as the workman was employed by the employer against whom he wishes to raise the industrial dispute and the dispute is of the nature required by the definition of 'industrial dispute,' he is a workman falling within the definition of S. 2(s).'

9. We are in respectful agreement with the aforesaid observations. They however, will have to be read with slight modification in view of the fact that field covered by the expression 'industrial dispute' used in the Industrial Disputes Act is included in the expressions 'an industrial dispute' and 'an industrial matter' used in the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. The ratio of the said decision so far as the Central Provinces and Berar Industrial Disputes Settlement Act is concerned, in our opinion, should be :

'there is no reason whatever, looking to the definition of an 'employee' to hold that he must in fact be an employee on the date he moves the industrial court. So long as the employee was employed by the employer against whom he wishes to raise the industrial dispute or a dispute relating to an industrial matter and the dispute raised by him, is of the nature required by the definition of 'industrial dispute' and 'industrial matter', he is an employee falling within the definition of S. 1(10) of the Central Provinces and Berar Industrial Disputes Settlement Act.'

10. Section 23(1) provides that the State Government may constitute a District Industrial Court for any local area to determine such industrial disputes and to deal with such other industrial matters under the provisions of this Act as may be prescribed, and these matter are prescribed by rule 36 of the rules framed under the Act. We are here concerned with Cls. (b) and (c) of rule 36. Under these Clauses the District Industrial Court is empowered to interpret a standing order and adjudicate upon the propriety or legality of an order passed by an employer under the standing order. The dispute raised in the instant case by respondent 1 relates to the interpretation of Clause 14 of the standing order and the legality of the order made by the petitioner mills on 11 January, 1956, under that clause whereunder the petitioner mills had ordered that respondent 1 should be retired from 12 January, 1956, on payment of one month's salary only. In these circumstances, in our opinion, there is no substance in the contention of Mr. Mudholkar that the District Industrial Court had no jurisdiction to entertain the application.

11. The second question that respondent 1 is not entitled to money compensation in lieu of accumulated sick leave after the date of retirement is also covered by a decision of a division Bench of this Court in R. S. Rekhchand v. Mohamad Kasam 1957 N.L.J. 488 to which one of us (Tambe, J.) was a party. The standing order which fell for construction in that case was in identical terms with the standing order in the present case and though the dispute raised in that case was under the Payment of Wages Act one of the questions raised in that case was the same as is raised before us and it was held therein that an employee was entitled to receive after retirement money compensation in lieu of the accumulated sick leave under the aforesaid standing order. We see no reason to take a different view.

12. In the result, therefore, the petition fails and is dismissed with costs.


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