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The Provincial Transport Services Vs. N.H. Muzumdar - Court Judgment

LegalCrystal Citation
SubjectLabour and industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 173 of 1957
Judge
Reported in(1958)60BOMLR366
AppellantThe Provincial Transport Services
RespondentN.H. Muzumdar
DispositionPetition succeed
Excerpt:
.....settlement act (xxiii of 1947), section 22(4) - assessors appointed by presiding officer of state industrial court, after calling for material from parties, drawing up report relating to issues referred to them--court after receipt of report fixing case for evidence but not calling assessors at hearing--evidence led at hearing upon issues referred to assessors--whether obligatory upon presiding officer to have the assessors present at the hearing.; the presiding officer of the state industrial court at nagpur, before whom an application was made for adjudication of certain demands pertaining to wages and emoluments of workers, after the assessors were appointed, framed issues pertaining to these demands and referred them for the opinion of the assessors. in the absence of the..........the relevant facts are briefly as follows : respondent no. 2 made an application before the state industrial court at nagpur under rule 37 of the rules framed under the central provinces and berar industrial disputes settlement act, for adjudication of certain demands made by it and specified in schedule a appended to that application. it is common ground that a number of those demands pertain to the wages and emoluments of the workers employed in the motor transport industry. the jurisdiction of the state industrial court was challenged on behalf of the petitioner on several grounds. one of the grounds was that the dispute, if any, lay within the cognisance of the district industrial court and not within that of the state industrial court. this objection was founded on the ground.....
Judgment:

Mudholkar, J.

1. This is a petition under Article 226 of the Constitution for issue of an appropriate writ, direction or order, to respondent No. 1, the State Industrial Court, Nagpur, requiring it to follow an appropriate procedure during the enquiry of the industrial dispute between the petitioner on the one hand and respondent No. 2 on the other.

2. The relevant facts are briefly as follows : Respondent No. 2 made an application before the State Industrial Court at Nagpur under Rule 37 of the rules framed under the Central Provinces and Berar Industrial Disputes Settlement Act, for adjudication of certain demands made by it and specified in Schedule A appended to that application. It is common ground that a number of those demands pertain to the wages and emoluments of the workers employed in the Motor Transport Industry. The jurisdiction of the State Industrial Court was challenged on behalf of the petitioner on several grounds. One of the grounds was that the dispute, if any, lay within the cognisance of the District Industrial Court and not within that of the State Industrial Court. This objection was founded on the ground that the dispute did not relate to the industry as a whole but was limited to the undertaking controlled by the petitioner. This objection was overruled by Shri Muzumdar, who presides over the State Industrial Court, by his order dated May 5, 1956. In para. 3 of the order it is observed thus:

During the course of the argument the learned Counsel for the non-applicant suggested that it was the District Industrial Court which would have jurisdiction to adjudicate on the dispute. This is a dispute of General Application affecting Industry as a whole and is excluded from the jurisdiction of the District Industrial Court : vide Rule m(a).

3. After overruling the objection, he called upon the parties to the dispute to submit a list of persons from whom assessors could be appointed on behalf of each party. After receiving suggestions, he appointed four persons as assessors. After the assessors were appointed he framed issues which arose between the parties and referred the following for the opinion of the assessors:

1(c) What should be the scales of pay for different categories of employees?

2(a) What should be the minimum dearness allowance payable to an employee?

(b) What is the minimum dearness allowance paid by the employers in this undertaking?

(c) Should 50% of the dearness allowance be merged in the basic wages?

3(b) If so what amount are they entitled to get as bonus for the year 1954-55?

5. Are the employees entitled to House Rent allowance, halting allowance and overtime allowance? If so, at what rate? Should an employee working on a holiday be paid overtime allowance? What should be the rate of such allowance?

4. It is common ground that after these issues were remitted to the assessors, they met in a body, but in the absence of the Presiding Officer of the Industrial Court, called for such material as they thought fit from the parties and on the basis of that drew up a report which they submitted to the State Industrial Court. After receipt of the report the State Industrial Court fixed the case for evidence, and it is common ground that evidence is being Ted even upon the issues which were sent to the assessors for their opinion. No notices were, however, issued to the assessors requiring them to be present at the hearing of the evidence. Thereupon an application was made by the petitioner to Shri Mujumdar to the effect that the presence of the assessors at the hearing of the evidence was necessary and that they should be summoned to be present on the dates on which the evidence was to be recorded. This application was rejected by Shri Mujumdar and the petitioner has, therefore, come to this Court.

5. The petitioner's grievance is that the assessors cannot be expected to give a reasonable opinion without having the benefit of all the material pertaining to these issues which is to be tendered before the tribunal. Secondly, it is said that the assessors should be told by the Presiding Officer of the Industrial Court as to what kind of evidence is relevant and what is not relevant ; otherwise the assessors may take into account wholly irrelevant evidence and that in consequence thereof their opinion would be vitiated. In our opinion, there is a great deal of substance in this contention.

6. The meaning of the word 'assessor' which is given in the Shorter Oxford English Dictionary is as follows:

(i) One who sits beside; hence, one who shares another's position, rank, etc.

(ii) One who sits as assistant or adviser to a judge or magistrate; esp. an assistant skilled in technical points of law, commercial usage, navigation, etc.

Now, it will be clear from the meaning given that the function of the assessors is to assist someone. In the instant case, it is not disputed that the opinion of the assessors was sought with regard to the demands made by respondent No. 2 regarding wages, emoluments etc. Since oral evidence has to be led on this point, the final decision of the Court would certainly be affected by this evidence. Now, if the assessors are to perform their function properly, they must have before them the entire evidence which is tendered in the proceedings bearing on those points.

7. On behalf of the petitioner it is stated that the appointment of the assessors having been made under Sub-section (4) of Section 22 of the C.P. and Berar Industrial Disputes Settlement Act, 1947, it was obligatory upon the Presiding Officer to associate the assessors with him at every stage of the case during which the enquiry was being held on matters pertaining to wages, emoluments etc. Sub-section(4) of Section 22 reads as follows:

When the question before the State Industrial Court relates to an increase or decrease of wages in an industry as a whole in any local area an equal number of representatives of employers and employees selected in the prescribed manner shall be associated with the State Industrial Court as assessors whose opinion shall be considered by the State Industrial Court in giving its decision.

It will be clear from this provision that where the question of an increase or decrease of wages is before the State Industrial Court, the assessors have to he associated with it during the enquiry into such question. No doubt, their opinion is not binding on the Industrial Court ; but that is another matter.

8. On behalf of respondent No. 2 it is, however, said that the assessors having already performed their function, i.e. having submitted their report, it was no longer necessary to have them present in the Court when oral evidence was being tendered. It is no doubt true that in the instant case a report has been submitted by the assessors. No procedure has been prescribed either in the Act or in the Rules pertaining to the matter, and therefore according to Shri Mujumdar it was open to him to prescribe the procedure. The procedure which he prescribed was the one which has actually been followed in this case. In our opinion, this procedure does not enable the assessors to fulfil the duties cast upon them by Sub-section (4) of Section 22 or the duties which are inherent in their being assessors. The provision referred to above does not contemplate assessors submitting any report, but it contemplates their giving opinion regarding wages. Now, it is difficult to see how they could give a proper opinion upon this matter unless they had an opportunity to hear all the evidence which is tendered in the case and to consider that evidence.

9. It was then contended on behalf of respondent No. 2 that Sub-section (4) of Section 22 did not apply to this case because the dispute in question did not relate to the industry as a whole. In our opinion, this question is no longer open, the State Industrial Court having already held that it does apply and on the basis of that finding to have assumed the jurisdiction to entertain the application. If, as now contended, the dispute does not relate to the industry as a whole, the State Industrial Court can have no jurisdiction whatsoever to entertain the application of respondent No. 2.

10. It was suggested by Shri Dhabe, who appears for respondent No. 2, that the appointments were made under Rule 38A of the Rules framed under the Act. That rule runs as follows:

Both the Provincial and District Industrial Courts may, in any matter in which it appears expedient to do so, call in the aid of one or more assessors and may settle the matter wholly or partially with the assistance of such assessor or assessors.

It is clear from the order of Shri Mujumdar that these persons were appointed as assessors not for the purpose of bringing about any conciliation, but were appointed for the specific purpose of giving their opinion regarding respondent No. 2's demands for the increase in wages, emoluments, etc. Therefore, it cannot be said that the appointments were made under that provision. Even assuming that the appointment of the assessors could be made under that provision for the purpose of giving an opinion as to the increase in wages, then, on principle, these persons, will also have to be associated with the enquiry at every stage. No doubt, they must confine their opinion to the matters which fall within the order of the Court which appoints them under Rule 38A. But that is quite another matter.

11. For these reasons, we allow the petition, quash the order of the State Industrial Court dated June 19, 1957, quash also the report submitted by the assessors and direct that the Court will associate the assessors with it through every stage of the enquiry in so far as it relates to the matters falling under Sub-section (4) of Section 22 of the C.P. and Berar Industrial Disputes Settlement Act. The parties agree that in all fairness it will be desirable to have a fresh set of assessors appointed. We accordingly order that they be selected from the panels which the parties must submit within ten days from today.

12. Costs of this petition shall be borne as incurred.


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