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Jadev Mavji and ors. Vs. Maharana Mills Ltd. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Application Nos. 165, 166, 167, 169 and 170 of 1956
Judge
Reported in(1958)IILLJ130Bom
ActsIndustrial Disputes Act, 1947 - Sections 2, 7, 8, 10(1), 15, 17, 17A, 17A(3), 18, 20
AppellantJadev Mavji and ors.
RespondentMaharana Mills Ltd.
Excerpt:
- - the facts of this case are clearly distinguishable. there the settlement was made by a minority union with the employer and such settlement was neither endorsed by the conciliation officer nor by a tribunal. some workmen who were parties to the dispute objected and the tribunal after bearing all the parties to the dispute allowed withdrawal of the dispute as it was satisfied that the settlement and the prayer for withdrawal of the dispute were in the interest of the workmen as a whole.acts/rules/orders:industrial disputes act, 1947 - sections 2, 7, 8, 10(1), 15, 17, 17a, 17a(3), 18, 20, 20(3), 33 and 33aaward1. these are all complaints under s. 33a of several workmen employed in maharana mills at porbandar. the complainants in miscellaneous application no. 167 of 1956 were dismissed on 14 june 1956 for misconduct alleged to have been committed on the night of 6 june 1956. the complainants in miscellaneous applications nos. 165 and 166 of 1956 were dismissed of 15 june 1956 for misconduct alleged to have been committed on 11 june 1956. the complaints in miscellaneous application nos. 170 of 1956 were dismissed on 16 june 1956 for misconduct alleged to have been committed on 11 june 1956. the complainants in miscellaneous application no. 169 of 1956 were dismissed on 16.....
Judgment:

Acts/Rules/Orders:

Industrial Disputes Act, 1947 - Sections 2, 7, 8, 10(1), 15, 17, 17A, 17A(3), 18, 20, 20(3), 33 and 33A

AWARD

1. These are all complaints under S. 33A of several workmen employed in Maharana Mills at Porbandar. The complainants in Miscellaneous Application No. 167 of 1956 were dismissed on 14 June 1956 for misconduct alleged to have been committed on the night of 6 June 1956. The complainants in Miscellaneous Applications Nos. 165 and 166 of 1956 were dismissed of 15 June 1956 for misconduct alleged to have been committed on 11 June 1956. The complaints in Miscellaneous Application Nos. 170 of 1956 were dismissed on 16 June 1956 for misconduct alleged to have been committed on 11 June 1956. The complainants in Miscellaneous Application No. 169 of 1956 were dismissed on 16 June 1956 for misconduct of resorting to go-slow tactics from 12 June 1956. It is stated in these complaints that the opponent company had contravened the provisions of S. 33, as during the pendency of Adjudications Nos. 47 of 1954, 91 of 1955 and 102 of 1955 before this tribunal, these complainants were dismissed without the previous permission of this tribunal. It is also alleged that the complainants were dismissed without proper inquiry. They have therefore prayed that they should be reinstated and their wages for the period of their unemployment should be paid to them.

2. The opponent company has raised the preliminary objection in all these complaints that the complaints are not maintainable as the three Adjudications Nos. 47 of 1954, 91 of 1955 and 102 of 1955 were withdrawn on 8 June 1956 by both the parties, and as this tribunal had permitted the parties to withdraw the disputes by orders, dated 9 June 1956 and 11 June 1956. As this preliminary objection was not pressed by the opponent company in a similar complaint by some of the dismissed workmen which was registered as Miscellaneous Application No. 168 of 1956 which has been disposed of on merits, these miscellaneous applications were put on the board for regular hearing. I have also heard all the evidence produced by both the parties in Miscellaneous Application No. 167 of 1956 and have adjourned the hearing of evidence in other miscellaneous applications as it was urged strenuously on behalf of the opponent company that I should give my decision first on the preliminary objections. As the preliminary points urged on behalf of the opponent company are identical in all the miscellaneous applications I am disposing them of by a common decision.

3. In addition to the preliminary objection urged in the written statement and which is referred to in the preceding paragraph, Sri Nanavaty on behalf of the opponent company raised two other preliminary objections. He urged that I have no jurisdiction to hear these complaints as they were initially made before the industrial tribunal consisting of Sri D. L. Master, and as I was appointed presiding officer of this tribunal by a notification issued in supersession of the notification appointing Shri D. L. Master as the presiding officer. In view of this circumstance, he urged that S. 8 of the Industrial Disputes Act, 1947, did not apply, and I cannot be considered to have been appointed of fill the vacancy occurring in the office of the presiding officer of the industrial tribunal within the meaning of that section. According to him, my appointment must be considered as constitution of a new tribunal under S. 7 and in that view he urged I would have no jurisdiction to hear these miscellaneous applications which were filed before the previous tribunal and which were neither referred to me as industrial disputes or transferred to me for adjudication. He referred to the notifications constituting the tribunal, and appointing Sri D. L. Master and myself as presiding officers. He also referred to the notification whereby certain pending disputes were transferred to me after I was appointed the presiding officer by notification No. LAB. 6-15 (1), dated 27 October 1956.

4. In my view this preliminary objection urged on behalf of the opponent company is unsustainable. Industrial tribunal consisting of myself was constituted under S. 7 by notification No. LBD-A. 2-2, dated 13 March 1950. I was appointed as presiding officer in addition to my duties as District and Sessions Judge. In 1955 decision was taken to constitute a whole-time tribunal, and in pursuance of this decision a new whole-time tribunal was constituted by notification No. LAB. 6-15 (1), dated 23 July 1955, and Sri D. L. Master was appointed presiding officer of this tribunal by notification No. LAB. 6-15 (2), dated 23 July 1955. By another notification No. LAB. 6-10, dated 31 August 1955, all pending disputes were referred for adjudication to the tribunal consisting of Sri D. L. Master. This notification was issued under S. 10(1) of the Industrial Disputes Act, 1947. It will be clear, therefore, that a new tribunal was constituted by notification No. LAB. 6-15 (1), dated 23 July 1955. Now the notification No. LAB. 6-15 (1), dated 23 July 1955, is not cancelled. This will be clear from the fact that by notification No. LAB. 6-15 (1), dated 27 October 1956, I have been appointed as presiding officer of the tribunal as constituted by notification No. LAB. 6-15 (1), dated 23 July 1955. It would therefore appear that the tribunal as constituted by the notification No. LAB. 6-15 (1), dated 23 July 1955, continues to exist and only the vacancy caused in the office of the presiding officer by reversion of Sri D. L. Master to his judicial post has been filled by a new appointment. On these facts S. 8 would obviously apply, and the proceedings pending before the tribunal can be continued before the tribunal reconstituted by appointment of another presiding officer. In this view I would certainly have the jurisdiction to hear these complaints as they were pending before the tribunal consisting of Sri D. L. Master, as that tribunal has only been reconstituted to fill the vacancy caused in the office of the presiding officer by reversion of Sri D. L. Master to the Judicial Department.

5. But it was by urged Shri Nanavaty that even if the notification No. LAB. 6-15 (1), dated 23 July 1955, has not been cancelled, the notification whereby I am appointed the presiding officer should be considered to constitute an altogether new tribunal as notification transferring the pending adjudications to me under S. 10(1) was issued by the Government. It is true that such notification has been issued. But in view of the provisions of S. 8, it was not necessary to issue such notification. Without such notification transferring the pending disputes to the tribunal consisting of myself, I would have the jurisdiction in view of S. 8 to hear these disputes. If therefore in this notification the present complaints are not mentioned, the jurisdiction to hear them in view of S. 8 is not taken away. Moreover, under S. 10(1) only the disputes can be referred to a new tribunal; the complaints under S. 33A and applications under S. 33 which are already pending before one tribunal cannot be transferred to another tribunal. There were numerous such applications pending before the tribunal when the services of Sri D. L. Master were again placed at the disposal of the Judicial Department. It was therefore that the Government advisedly did not constitute a new tribunal, but only appointed another presiding officer of the same tribunal on the vacancy occurring in that office by the reversion of Sri D. L. Master to the Judicial Department. I therefore see no force in this contention urged on behalf of the opponent company.

6. It now remains to notice the two decisions cited by Sri Nanavaty in support of his contention. One is the decision of the Supreme Court in 1954 I L.L.J. 117. In that case the tribunal was constituted for a period of one year, and after the life of this tribunal came to an end by lapse of time, another tribunal was constituted. The order constituting such new tribunal mentioned that the tribunal was constituted under Ss. 7 and 8. On these facts several preliminary objections were urged about the legality of the order constituting the new tribunal. It was observed that,

'When life of the first tribunal automatically came to an end by efflux of time, no question of vacancy in the office really arose and it was not a case falling under Sub-clause (2) of S. 8, but the situation that arose fell within the ambit of S. 7.'

On these observations it was urged by Sri Nanavaty that no vacancy in the office of the chairman or member had occurred when Sri D. L. Master reverted to judicial service, and therefore S. 8 did not apply. But in the case before the Supreme Court, one tribunal had ceased to exist by efflux of time, and another was constituted. In the present case the tribunal was created for an indefinite period and had not ceased to exist either by efflux of time or by supersession and only the notification appointing a new presiding officer was issued in supersession of the notification appointing the previous presiding officer. Consequently this decision of the supreme Court has hardly any bearing on the facts of the present case.

7. The second decision referred to by Sri Nanavaty is reported in 12 F.J.R. 39. In this case the facts were that a dispute was first referred to the tribunal consisting of Sri Bindra. On his services not being available, the same dispute was referred to another tribunal consisting of Sri Basu. It is clear from the report that Sri Basu was not appointed as successor to Sri Bindra. Complaint under S. 33A was made before Sri Basu on the ground that provisions of S. 33 were contravened during the pendency of the dispute before Sri Bindra. On these facts it was held that the complaint was not maintainable as there was no contravention of S. 33 during the pendency of the dispute before Sri Basu. The facts of this case are clearly distinguishable. In that case the two of the dispute was made to the second tribunal. Therefore the proceedings before the second tribunal would commence only from the date of the order of reference to that tribunal. In the instant case the tribunal is the same, and no new reference is made. This decision is also hardly any authority in support of the contention urged on behalf of the opponent company. This preliminary objection is therefore disallowed.

8. The second objection urged on behalf of the mill company was that these workmen were not concerned in the dispute which were the subject-matter of reference in Adjudications Nos. 47 of 1954, 91 of 1955 and 102 of 1955, and therefore they had no right to make the complaints under S. 33A. It was urged by Sri Nanavaty that as the dispute in those adjudications were raised by the Majur Mahajan which did not represent these workmen and as party to those adjudications was Majur Mahajan alone as is clear from the orders of reference, these workmen, being not parties to those adjudications, cannot be considered as concerned in the disputes which were the subject-matter of reference in those adjudications. He urged that these workmen would not be bound by any settlement made by the Majur Mahajan in those adjudications and the Government would not be debarred from making a reference to the tribunal of the same disputes if the union representing these workmen chose to raise the very same disputes. Reference was made by Sri Nanavaty to the decision of the Punjab High Court in . But the facts in that case were wholly different. There the settlement was made by a minority union with the employer and such settlement was neither endorsed by the conciliation officer nor by a tribunal.

9. In the three above referred to adjudications, it is true that only Majur Mahajan was impleaded as party, and no other union or workmen were joined as parties. No notice was issued to the union representing the applicants, and no general notice was also issued to the workmen other than those represented by the Majur Mahajan. The applicants before me or their union had also not appeared of their own accord in those adjudications. It is therefore clear that the only parties in those adjudications were the mill company and the workmen represented by the Majur Mahajan. In view of these facts, it was urged, any settlement made by the Majur Mahajan with the mill company would not bind the other workmen not represented by the Majur Mahajan.

10. But it was urged in behalf of the workmen that in view of Clause (d) of S. 18 any award made in those adjudications was binding on them as they were employed in the same establishment. Clause (d) no doubt says that the award would be binding not only on the parties but also on those workmen who were employed in the establishment or part of the establishment to which the dispute relates and even on those who subsequently became employed in that establishment or part. It would therefore appear that all the workmen need not be actually parties to the reference in order that an award made on such reference is binding on them. The Act provides for settlement of collective disputes, and it would be impossible to give effect to the provisions of the Act, if it were necessary that all the workmen should join either in raising the dispute or in appearance before the tribunal. It is therefore that the rules made under the Act provide for a general notice to be issued to all the workmen not represented by the union or unions who have raised the disputes and who are impleaded as parties before the tribunal. When such general notice is issued, the award made by the tribunal would bind not only the workmen represented by the union or unions who have appeared before the tribunal but also the other workmen of the establishment to which the dispute relates who were not actually represented before the tribunal. This is the only reasonable construction of Clause (d) of S. 18.

11. But if in any case an award is made on the basis of a settlement arrived at between a union representing only some of the workmen and the employer without either impleading the other union or workmen as parties under Clause (b) of S. 18 or without issuing a general notice to the workmen to appear if they so choose, such an award would not be binding on such union or workmen and Clause (d) would have no application to such a case. Ordinarily a settlement would bind only the parties to a settlement; but when a settlement is arrived at in the course of conciliation proceedings it would bind also persons other than the parties provides they were impleaded as parties under Clause (b) or were employed in the same establishment on the date of the dispute. The settlement in the above referred to three adjudications was not made in the course of conciliation proceedings, and though Sri D. L. Master made an award on this settlement, it was in reality not an award, because both parties to those adjudications had not prayed for an award in terms of the settlement, but had actually applied for permission to withdraw the disputes. No award binding on the present applicants was therefore made in those adjudications. It must therefore be assumed that till the proceedings in those three adjudications terminated by withdrawal of the disputes by both the parties, the present applicants or their union were not parties to those proceedings. It is true that in one dispute at least, namely, about festival holidays, all the workmen of the mills were concerned. If therefore a general notice had been issued to all the workmen not represented by the Majur Mahajan, any award made by the tribunal on the basis of the settlement arrived at between the Majur Mahajan and the mill company would have been binding under Clause (d) also on the workmen not represented by the Majur Mahajan. But in view of the fact that no such general notice was issued, and in view of the further fact that no award was required to be made on the settlement filed by the Majur Mahajan and the mill company, Clause (d) would have no application, and consequently these applicants cannot be considered to have been concerned in any of the disputes which were the subject-matter of reference in those three adjudications. At any rate up to the stage of the termination of the proceedings in those adjudications these applicants were not concerned in the disputes. The mill company had therefore not contravened the provisions of S. 33 in dismissing these the applicants during the pendency of those adjudications. This seems to be the only reasonable view because the speedy remedy under S. 33 of approaching the tribunal direct appears to have been provided to workmen victimized by the employer during the pendency of disputes before the tribunal. Such remedy would therefore be not available to a workman or workmen who were not parties to the raising of the dispute and who were really not concerned in the dispute up to the stage of the termination of the proceedings. In this view the preliminary objection raised by the mill company must by upheld.

12. In the view I have taken on the second preliminary objection urged on behalf of the mill company, it is not necessary to consider the preliminary objection urged in the written statement. But as the point was urged at length before me, and it raises an important question, I think it proper to give my decision on that objection also. It was urged by Sri Nanavaty that as the disputes which were the subject-matter of reference in the above referred to three adjudications were withdrawn by the parties, no award was required to be made and therefore even if the orders were termed as awards they were not the awards as defined in S. 2(b). If the orders were not awards as defined by S. 2(b), it was urged, they were not required to be published under S. 17, and not being awards, no question about their enforceability would arise, and S. 17A would therefore not apply. In such cases, it was urged, the proceedings before the tribunal would terminate on the date the order is passed allowing withdrawal of the dispute and not on the date the award would become enforceable under S, 17A. In this view, it was contended Sub-section (3) of S. 20 would not apply and the proceedings before the tribunal should be deemed to have concluded on the date the disputes were withdrawn and not on the date award became enforceable under S. 17A.

13. Before I refer to the relevant provisions of the Industrial Disputes Act, 1947, it would be necessary to state that in those there adjudications no awards were made on merits. As already stated, the only parties in these adjudications were the Majur Mahajan and the mill company. In all the three adjudications the following applications were made on 8 June 1956 :

'The parties have agreed to settle all the above matters by private negotiations and or arbitration as per agreement attached herewith; parties do hereby request to grant permission to withdraw all the above cases, without the same being dismissed.'

These applications were signed by both the parties. The settlement appended to these applications is also dated 8 June 1956, and mentions.

'that the matters in Adjudications Nos. 47 of 1954, 91 of 1955 and 102 of 1955 be withdrawn from the tribunal, without the same being dismissed and to settle the same as follows :- 'Then the terms of settlement provide for the sitting up of an arbitration board.'

It will be clear from these applications and from the settlement appended to the applications that the parties did not desire to have awards made on merits by the tribunal. They simply prayed for permission to withdraw the disputes. On such applications, orders either allowing or disallowing the withdrawal should have been passed. Instead Sri D. L. Master made awards in all the adjudications in terms of the settlement, dated 8 June 1956. These awards were forwarded to the Government and they were duly published in the Government Gazette.

14. The question then arises as to whether these awards can be considered as awards as defined in Clause (b) of S. 2 :

'Awards,' as defined in Clause (b), 'means an interim or final determination by an industrial tribunal of any industrial disputes or of any question relating thereto.'

The definition of an award in Bombay Industrial Relations Act is identical. According to this definition there must be determination by the industrial tribunal of a dispute referred to it for adjudication. If the dispute remains unresolved as before, and is to be determined in future either by private arbitration or negotiation, there is no determination of the dispute by the industrial tribunal even if the proceedings relating to that dispute terminate by withdrawal of the dispute by agreement. Even if such agreement provides for settlement of the dispute by private negotiation or arbitration, it can hardly be said that by permitting withdrawal of the dispute the industrial tribunal was in any manner determining the dispute. There was therefore no occasion for making an award in terms of such settlement. Even if an award was made in terms of such settlement, it was in reality no award but only an order permitting withdrawal of the dispute. This view was taken by Sri S. H. Naik, in Majur Mahajan Sangh, Petlad v. Petlad Bulakhidas Mills Company, Petlad 13 F.J.R. 189. The question had arisen in a reference under S. 73A of the Bombay Industrial Relations Act. Objection was raised in this reference that it was not tenable in view of the withdrawal of previous reference about the same dispute. It was urged that before terminating the award made in the previous reference new reference was untenable. But the objection overruled on the ground the order permitting the withdrawal of the reference did not amount to an award as defined in S. 3(6) of the Act and therefore it was not necessary to terminate it. The following observations at p. 191 and 192 of the report are relevant :

'Now let us see whether the withdrawal of the reference by the sangh really falls within the definition of an 'award' given in S. 3(6) of the Bombay Industrial Relations Act. Merely because the industrial court styled its order permitting withdrawal as an 'award' it would not become an award unless it falls within the definition of an 'award' given in the above section. Section 3(6) defines an 'award' as any 'interim, final or supplementary determination in an arbitration proceeding of any industrial dispute or of any question relating thereto.' It is the determination of the industrial dispute and not of the arbitration proceedings in one of the ways specified in the said sub-section that makes it an award. In this case there was a termination of the proceedings, and not of the dispute. Withdrawal of the reference does not determine the dispute. Determination means decision one way or the other. Withdrawal of the reference would not prevent the union reagitating the dispute at the proper time.'

15. On the authority of this decision it was urged by Sri Nanavaty that the awards in the three adjudications were not awards as defined in S. 2(b) and were therefore not required to be published under S. 17. If they were not required to be published as awards, it was urged, no question about their binding character or about their enforceability under S. 17A would arise. In that view, it was urged, the proceedings in the three adjudications should be deemed to have termination on 8 June 1956 and not on the date when they became enforceable under S. 17A. I think there is considerable force in this contention. If the orders allowing withdrawal cannot be classed as awards they have not to be published under S. 17, and if they are not required to be published, no question about their enforceability would arise under S. 17A. Sub-section (3) of S. 17A provides for the date on which an award would come into operation. No provision such as this is necessary in the case of withdrawal of dispute. Consequently the withdrawal of a dispute would be operative from the date the dispute is allowed to be withdrawn. In such a case Sub-section (3), of S. 20 would hardly apply. That sub-section provided that

'the proceedings before a tribunal shall be deemed to have concluded on the date on which the award becomes enforceable under S. 17A.'

But in a case in which no award as defined by S. 2(b) is made the proceedings cannot be deemed to have concluded on the date on which the award becomes enforceable. If therefore no awards as defined in S. 2(b) were made in those three adjudications, the proceedings in these adjudications must be deemed to have concluded on the date the disputes were withdrawn by both the parties. This was on 8 June 1956. The present applicants were dismissed after this date and therefore they were not dismissed during the pendency of any disputes before this tribunal. In this view the mill company cannot be considered to have contravened the provisions of S. 33.

16. But on behalf of the applicants reference was made to the decision of the Kerala High Court in 1957 II L.L.J. 45, and it was urged that even an order permitting withdrawal of a dispute would amount to an award, and therefore the proceedings must be deemed to have concluded only on the date such award becomes enforceable. Certain observations in this decision to support the view propounded on behalf of the applicants. Reference was particularly made to the following observations at p. 49 of the report :

'the expression 'determination' in the definition of 'award' in the Act indicates only a coming to an end, may be in any way whatever, though it may require examination and choice, What then is the difficulty when contending parties before the tribunal settle their outstanding disputes amicably between themselves and ask the tribunal to strike off the reference or in different context, where they decide upon a machinery of their own choice for resolving their differences and require the tribunal to sanction a withdrawal on such basis The most that could possibly be said is that the agreement or compromise placed before the tribunal for acceptance should not involve anything improper. illegal or prima facie unjust from the point of view of the exercise of the overwhelming power of the employer against the workmen.'

17. But if by these observations it was intended to lay down that any orders passed by the tribunal which had the effect of terminating the proceedings before it, would amount to an award as defined in S. 2(b), I think with great respect a much wider import than warranted by the wordings of the definition would be given. The expression 'determination' in the definition of the 'award' cannot be considered as synonymous with 'termination'; and that is why in this decision it is stated that determination may require examination and choice. If therefore without examination or choice the parties are permitted to withdraw the dispute, it can hardly be said that there was determination of the dispute by the tribunal. Moreover, in the case before the Kerala High Court the tribunal had to hear evidence, and apply its mind before permitting withdrawal of the dispute by a majority of the workmen. There were two unions of the workmen. Pending reference of the dispute before the tribunal majority of the workmen came to a settlement with employer, and in pursuance of this settlement prayed for withdrawal of the dispute. Some workmen who were parties to the dispute objected and the tribunal after bearing all the parties to the dispute allowed withdrawal of the dispute as it was satisfied that the settlement and the prayer for withdrawal of the dispute were in the interest of the workmen as a whole. Against this order of the tribunal which was described as an award in terms of the settlement, some of the workmen made a writ petition to the High Court. On these facts the Kerala High Court held that the tribunal had determined the dispute in the sense that after hearing all the parties and on consideration of relevant facts it had allowed the withdrawal of the dispute. The short point for consideration was as to whether the tribunal had the jurisdiction to allow the withdrawal of the dispute or not. The observations above quoted must therefore be understood in the light of these facts. I therefore feel that this decision is no authority for holding that a simple order allowing withdrawal of the dispute without anything would in all cases amount to an award. On the facts of the case before me I feel no hesitation in holding that the orders in the three adjudications allowing the withdrawal of the disputes cannot be classed as award as defined in S. 2(b).

18. Reference was also made to S. 15 of the Act, and it was urged that in every reference award has to be made and has to be submitted to the Government. But this section merely says that on conclusion of the proceedings award shall be submitted to the Government. If however the proceedings have terminated without an award as defined by S. 2(b) being made, it is not obligatory to describe the order terminating the proceedings as an award and to forward it to the Government. Government may in such cases be informed that the proceedings have terminated in a manner otherwise than by an award. Such orders have not to be published under S. 17; and the proceedings would not be deemed to have concluded on the date specified in Sub-section (3) of S. 20. There is no doubt no specific provision in the Act for such a contingency. But in the absence of specific provision in this behalf the rule contained in Sub-section (3) S. 20 prescribing a date for termination of the proceedings cannot apply, and recourse should be had to the ordinary rule about the termination of proceedings. In this view, the proceedings in three adjudications must be deemed to have concluded on 9 June 1956 and 11 June 1956 when orders allowing withdrawal of the disputes were passed. As all these applicants were dismissed after these dates they cannot be considered to have been dismissed during the pendency of these adjudications. Consequently the mill company had not contravened the provisions of S. 33 and no application under S. 33A can be maintained. In this view all these applications are dismissed.


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