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

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberIndustrial Appeal No. 3 of 1957
Judge
Reported in(1958)IILLJ513Bom
ActsIndustrial Disputes Act, 1947 - Sections 2 and 10(1)
AppellantSawatram Ramprasad Mills Company Ltd.
RespondentKundanmal
Excerpt:
labour and industrial - payment of sick leave - sections 2 and 10(1) of industrial disputes act, 1947 - appeal against order of lower court directing payment of unenjoyed sick leave to workmen - lower court not empowered to order payment - lower court only empowered for declaration - lower court order set aside to extent payment in directed - declaration made that respondent is entitled to payment for unenjoyed sick leave. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the..........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.'the definition is similar to the definition of workman under the industrial disputes act (central) which is as follows : 'section 2(s) - 'workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this act in relation any such person who has been dismissed, discharged, or retrenched in connexion with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that.....
Judgment:
ORDER

1. This is an appeal against the order of Sri J. N. Khare, Presiding Officer, District Industrial Court, Akola. It appears that the respondent was a clerk in the appellant mills from 20 July 1938 for 7 1/2 years. The respondent was retired on completing 55 years of age with effect from 12 January 1956 by the appellant's notice, dated 11 January 1956. The respondent was paid the amount of gratuity and one month's notice pay. Several issues arose out of the application, viz., whether the retirement of the respondent under the Mangalmurti award was proper or not and whether he was entitled to continue in service and claim reinstatement. On this issue, the lower Court found against the respondent. He filed an appeal but the same has been dismissed. There was one more issue raised by the respondent in his application which was as follows :

'Whether the applicant is entitled to payment of wages at Rs. 130 per month for the full period of accumulated and unenjoyed sick leave to his credit during the tenure of his service, which is 4 months and 16 days, and the amount for which comes to Rs. 585.'

On the issue, the lower Court found in favour of the respondent and the appellant has come up in appeal. Several points have been taken up in the memo of appeal but all these have not been urged before me. I shall, therefore, deal with only the points which have been urged at the hearing.

2. It has been urged by Sri Mudholkar that as the appeal by the respondent has been dismissed, this appeal must be heard on the basis that the findings of the lower Court against the respondent regarding his services being rightfully terminated are true. He has submitted that the application was, therefore, of a person who has been rightfully retired at the date of application before the lower Court. That at the time he was not an employee and therefore had no right to raise an industrial dispute. In other words, his submission is that an ex-employee cannot file an application. In support, Sri Mudholkar has relied upon the decision of the Bombay High Court at Nagpur in Special Civil Application No. 211 of 1957 [Corporation of city of Nagpur v. Majumdar 1958 I L.L.J 761 where in observed :

'Lastly it was contended that the State Industrial Court had no power to direct in its award that gratuity be paid to the persons who retired subsequent to 24 October 1954 but prior to the date of reference. In our opinion, this contention is sound. The reference deals with 'employees' who must necessarily be existing employees or employees 'dismissed, discharged or removed on account of any industrial dispute.' It does not include persons having been superannuated or having ceased to serve the Corporation discharge or removal.'

The question before their lordships was different from the question before me. The only question which the High Court of Bombay at Nagpur was called upon to decide in that case was who were the persons covered by reference Their decision must, therefore, be read in the light of what whey were called upon to decide. They were not, in that decision, called upon to decide who is an employee as defined under S. 2(10) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, or who can rise an industrial dispute.

3. The word 'employee' as defined under S. 2(10) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, is as follows :

'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.'

The definition is similar to the definition of workman under the Industrial Disputes Act (Central) which is as follows :

'Section 2(s) -

'workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation any such person who has been dismissed, discharged, or retrenched in connexion with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any person. * * *'

It has now been held by a series of decisions of High Courts and the Supreme Court that the additional words 'and includes an employee dismissed, discharged or removed on account of any industrial dispute' were inserted ex abundanti cautela and the legislature did not intend to exclude from the definition those who ceased to be in service. In Central Provinces Transport Service, Ltd., Nagpur v. Raghunath Gopal Patwardhan : (1957)ILLJ27SC Sri Umrigar, counsel for the appellant, argued before the Supreme Court that when the respondent was dismissed on 28 June 1950, his employment came to an end, and that he could not thereafter be termed an employee, as that word is ordinarily understood, that it could have been the intention of the legislature to include in the definition of an employee even those who had ceased to be in service, as otherwise there was no need for the further provision in S. 2(10) that discharged employees would in certain cases be employees; and that in any event the inclusive portion of the definition would, on the principle expressio unius est exclusio alterus, operate to exclude all ex-employees, other than those mentioned therein. Their lordships of the Supreme Court negatived this contention observing that :

'The question whether a dismissed employee is an employee as defined in S. 2(10) of the Act must be held to be practically concluded by the decision of the Federal Court in Western India Authomobile Association v. Industrial Tribunal, Bombay.' 1949 L.L.J. 245.

In my opinion it would not make a difference in principle whether an employee was discharged or dismissed as in that case or retired as herein.

4. The Bombay High Court in Order C.J. Appeal No. 112 of 1954 decided on 6 April 1955 between Mayekar (P.L.) and Amichand Narayan 1956 I L.L.J 492 observed as follows :-

'Without looking at the authorities, on a plain construction of this section, it is not possible to accept the contention of Mr. Gupte that a workman means a person who was employed at the date when the dispute was referred by Government under S. 10(1)(c). Mr. Gupte contends that if a workman has already been dismissed, no industrial dispute can be referred with regard to his dismissal to the industrial court. Now, the definition of 'workman' does not indicate that the workman must be employed at a particular moment of time. What is emphasized is that he must be employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward; in other words, the definition is intended to point out what the nature and characteristic of a person are who can be deemed to be a workman within the meaning of the Act. In our opinion a workman as defined in this sub-section means any person who is employed at any time in an industry. If he satisfies the definition of 'workman' under S. 2(s), then whether he can raise an industrial dispute or not must be judged by the definition of 'industrial dispute' given in S. 2(K). Therefore, in order to determine whether an industrial dispute has been properly raised or referred, one must read S. 2(k) and 2(s) in conjunction. If, therefore, the dispute is the result of a difference between employers and workman or an employer and a workman and that dispute is connected with regard to employment or non-employment or the terms of employment or with the conditions of labour of any person, then the dispute as such can be referred by Government under S. 10(1)(c) and in respect of which the Industrial Court can assume jurisdiction.

What is urged by Mr. Gupte is that the only dismissed workman in respect of whom an industrial dispute is raised is a workman who has been dismissed during the dependency of an industrial dispute. Therefore, the rather curious contention urged is that the definition of 'workman' limits the jurisdiction of the Industrial Court to try only those disputes with regard to dismissed workman who have been dismissed during the dependency of a dispute, but if a workman is dismissed prior to the raising of the dispute, then the Industrial Court has no jurisdiction to entertain in that dispute. To analyse that argument in a different way, what Mr. Gupte urges is that if a workman is dismissed he cannot raise any dispute with regard to his own dismissal because the industrial dispute must follow upon his dismissal, but if some other dispute is pending and he is dismissed, he can raise a dispute with regard to his dismissal. The result of accepting this contention is apparent even to Mr. Gupte himself and therefore he is compelled to say that undoubtedly this shows a rather serious lacuna on the part of the legislature in enacting this Act. But before we accuse the legislature of being guilty of serious blemishes in the drafting of a statute, it is the duty of the Court to see whether a fair and reasonable interpretation can be put upon the language used by the legislature bearing in mind the object which the legislature had in placing a particular piece of legislation on the statute book. There is no reason wherever looking to the definition of 'workman,' to restrict the expression 'employed' to the point to 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 definitions of S. 2(s).'

5. In a dispute between Ramjilal Nathulal and Others (Mill Majdoor Sabha) and Himabhai Mills Company, Ltd. (No. 2) and others 1956 II L.L.J 244, the learned members of the Labour Appellate Tribunal of India at Bombay after referring to a number of decisions have observed :

'These are extremely wide definitions and as shown by the definition of the term 'employee,' the terms cannot be taken to be restricted in their application to employees with regard to particular employers who have entered into contracts of employment with them, but than are capable of being applied in a wide and general sense to any employee engaged at any time in the industry concerned and any employer in the same industry.'

6. In a dispute between the State of Bombay and D. K. Patkar and others 1952 I L.L.J. 28 again they have observed :

'In my opinion S. 2(s) gives a definition of the term 'workman' in the wide and generic sense and not in the limited sense of a person presently employed in any unit of the industry; in other words, it indicates the generic class or category known as 'workman' in an industry; and it matters not to the definition of 'workman' whether he is presently so employed in a unit or not for his position vis-a-vis an employer for the purpose of raising a claim is to be found not in the definition of 'workman' but separately in the definition of an 'industrial dispute' in S. 2(k). I am of the view that having regard to the scope and object of the Act the word 'employed' in the first part of the definition bears the connotation of 'ordinarily employed' in the sense of being a worker in industry and duly qualified for the purpose, a person whose normal occupation it is to do any skilled or unskilled manual or clerical work in an industry for hire or reward. The second part of the definition, viz., 'and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute' does not negative this view, while it makes clear an inclusion which might otherwise be disputed; and I am unable to agree that this second part of the definition restricts or limits the description of persons who would fail within the larger category.'

7. In the dispute between Jagdishwar Printing Press and their workmen (Press Mazdoor Sabha) 1956 I L.L.J 597 the learned members of the Labour Appellate Tribunal of India (at Bombay) observed :

'That it follows from the judgment of Supreme Court in Western India Automobile Association case that an industrial dispute may well arise out of the employment or non-employment of persons who may never have previously worked in that concern, although they must be qualified to work therein; in other words, an industrial dispute may be raised in respect of that class of workman who may be called, for want of better expression, potential employees.'

8. Some of the decisions referred to by me are decisions under the Industrial Dispute Act (Central) or the Bombay Industrial Relations Act. However, so far as this aspect of the question is concerned, the definitions are in pari materia and the decisions would equally apply to the definition under the Central Provinces and Berar Industrial Dispute Settlement Act, 1947.

9. I, therefore, hold that the application is not bad because it was filed by the respondent herein after he was retired as he still could raise an industrial dispute in respect of an industrial matter even after his retirement.

10. The second point urged is that the prayer asked for was not the type of prayer that could have been asked for. I fail to see any substance in this argument. Section 23 authorizes the Provincial Government to constitute the District Industrial Courts and the relevant part of rule 36 which defines the powers of the District Industrial Courts is as follows :-

'36* * * * (b) the propriety or legality of an order passed by an employer under the standing order;

(c) the application and interpretation of standing orders;

(d) the legality or illegality of any strike or lockout or of any change of which notice has been given or which has taken place upon an application by any employer or employee concerned or by the labour officer under S. 41 provided the question concerns an industry exclusively within the local area of the Court's Jurisdiction; * * *

11. There is a standing order which deals with sick leave, how it is to be enjoyed and what is to happen to the balance thereof on retirement, payment for the balance of sick leave due, was asked for on retirement and refused. This refusal would, in my opinion, certainly be an order passed by the employer under the standing order the propriety or legality of which could be gone into by the District Industrial Court. The same also involves the question of application, and interpretation of standing orders. The non-payment of the amount due would also be perhaps a change which has taken place. In my opinion, therefore, the application for the payment of wages for the full period of accumulated and unenjoyed sick leave would fall under any one of those clauses reproduced above.

12. It has further been urged that the interpretation given by the lower Court of the relevant standing order in respect of sick leave is not correct. The relevant standing order is as follows :-

'14. (1) 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 up to a maximum of eight months in the whole service of 30 years on the certificate, each time, either of the 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 fifty-five years of age or on termination of his services before the expiry of thirty years' service or fifty-five years of age on any grounds except that of misconduct under standing order 24.'

13. In my opinion, this standing order does not bear any other interpretation except the one sought to be placed upon it by the respondent in this case. I, however, agree with the last submission made by the appellant that in any event in the present appeal the lower Court was only entitled to give a declaration and was not entitled to direct the appellant to pay the amount due. I, therefore, allow the appeal in part, set aside the order of the lower Court to the extent payment is directed to be made and give a declaration that the respondent is entitled to payment of wages at Rs. 130 per mensem for the full period of accumulated unenjoyed sick leave to his credit during the tenure of his service which is 4 months 16 days and the amount for which comes to Rs. 585 and the non-payment thereof amounts to an illegal change.


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