1. The petitioner Mahaboob Shahi Kulbarga Mills Co., Ltd., hereinafter called the Company, prays for the issue of an appropriate writ, direction or order quashing the award of the Labour Court at Hubli, the 1st respondent herein, made in Industrial Dispute No. 2/1957 on its file and published by the Government of Mysore in the Mysore Gazette dated 15-5-1958. The 2nd respondent is the M. S. K. Mills Clerks Union, hereinafter referred to as the Union which raised the dispute culminating in the impugned award.
2. The essential facts which are not in dispute are the following: One Sri G. R. Kembhavi wag employed as the Assistant Spinning Master of the Company. He was getting a remuneration of Rs. 332/- per month, inclusive of all allowances, By a letter dated 16-2-1957 the Company terminated the services of Kernbhavi with effect from 17-2-1957, on payment of one month's salary in lieu of notice period. On 19-2-1957 Kernbhavi wrote to the Company complaining that there was no indication in the Company's letter as to the circumstances under which they took this action against him and requesting the Company to reconsider the order of termination of his services on principles of fairness and equity. The Company did not reply, but it is stated that Kembhavi was orally informed that the order of termination would not be reconsidered.
On 22-2-1957 Kembhavi made representations before the Conciliation Officer at Gulbarga complaining that his services had been terminated all of a sudden and requesting the Officer to intervene and persuade the management to reconsider their decision and to reinstate him. In reply to the enquiries by the Conciliation Officer the Company is reported to have stated that they had sent away Kembhavi because his services were not required by the Company and to have contended that he was not a workman at all within the definition under tho Industrial Disputes Act. On 14-3-1957 Kembhavi wrote to the Union requesting them to take up his cause and do the needful in the matter. On 24-3-1957 a meeting of the General Body was held at which a resolution was passed to espouse the cause of Kembhavi and to demand his immediate reinstatement. The resolution also stated as follows ;
'Administrative excesses of this kind undermining security of service cannot be viewed complacently by anybody who loves peace in industry. 5t is but natural that members of this Union pledged to the causa of progress and promotion of industrial amity and peace do not leave such acts of management unchallenged before further inroads are made into other phases of administration.'
3. During the Conciliation Proceedings the principal point of discussion appears to have been whether having' regard to the nature of his duties and functions Kembhavi could be said to be a workman. The parties appeared to be taking very diver-Kent views and the Conciliator was unable to settle the dispute and made a report accordingly.
4. Thereupon under Notification No. LLH 12. ILD 57 dated 20-11-1957 the Government of Mysore referred to the 1st respondent the above dispute describing it as an Industrial Dispute for adjudication by it. The point of dispute referred for adjudication was :
'Whether the management of the M. S. K. Mills Co., Ltd., Gulbarga, was justified in terminating the services of Sri G. R. Kembhavi, the Assistant Spinning Master of the Mills; if not, to what relief, if any, he is entitled?'
On this reference the 1st respondent made an award directing the reinstatement of Kembhavi in the service of the Company in his old post on the same terms and conditions as before within 15 days of the date when the award becomes enforceable without any break in his service. It was also directed that Kembhavi should be paid 50 per cent of all the emoluments that he would have been entitled to draw had he continued in service from the date of termination till the date of reinstatement. This award was published by the Government of Mysore in the Mysore Gazette dated 15-5-1958.
5. Before proceeding to deal with the merits of the case it would be convenient first to consider the complaint strongly pressed by the learned counsel for the petitioner that the Company has not been given sufficient opportunity to place its case fully and properly before the Labour Court. He was particularly critical about the action of the Labour Court in refusing to grant him an adjournment of the hearing by so short a period as 2 days, in spite of the fact that the Labour Court had been told that 5 other labour matters were posted for hearing before another Tribunal at Bangalore on the same date, 24-2-1956, and in refusing to grant certified copies or the depositions and also refusing to grant time to the Company's representative to study the material and prepare his arguments.
There can be no doubt that granting of adjournments is a matter of discretion with the Court or Tribunal concerned and the High Court acting under Article 226 of the Constitution will not interfere with the exercise of such discretion unless it can be shown that the discretion had been exercised capriciously or arbitrarily so as virtually to amount to a negation of the principles of natural justice or to occasion failure of justice. We have carefully scrutinized the records of this case and do not feel that there is any such ground in this case calling for interference. So far as the filing of the Company's counter-statement is concerned, the Labour Court did grant a week's extension asked for by the Company.
There is no reason why the Company could not file the counter-statement within the period asked for by itself or why thereafter it never made an attempt to file a written statement although a month elapsed before the matter was actually taken up for hearing. Regarding the adjournment of the date of hearing, although only one witness was examined on the 24th the Labour Court did wait for the company's representative to return from Bangalore to Gulbarga and took up the further proceedings only after his arrival; the Labour Court also permitted the Company's representative to inspect the records of the case, received his written arguments and also gave the liberty to the Company's representative to send his list of authorities by post.
There is, therefore, no case for interference on this ground. It is however, a matter for regret that the Labour Court should have at all given occasion or room for such criticism. While ills undoubtedly desirable that industrial disputes should be expeditiously adjudicated upon and settled, the very purpose of such adjudication, viz., establishing and maintaining industrial peace, would stand in danger of being defeated if either party should be left with a sense of grievance that he has not been fully or properly heard or that his case has not received the attention which he expects from the Court. Though we are convinced that there has been no failure of Justice in this case, we cannot say that the feeling of dissatisfaction given expression to by the learned counsel for the petitioner is entirely unjustified. It was also wrong to have asked the Company to state the provision of law under which certified copies are asked for, when it is clear from Section 74 of the Evidence Act that records of acts of public tribunals are public records which the parties to the adjudication are entitled to inspect and of which they will, therefore, be entitled to certified copies under Section 76 of the same Act. The Labour Court also appears to have overlooked the significance of the provisions in the Industrial Disputes (Mysore) Rules for levy of fees for certified copies.
6. We go now to the principal point on merits argued before us. Although the arguments covered a very wide range and the contentions classified under several heads, it seems to us that the one and only point is whether the dispute referred to the 1st respondent Court was or was not an industrial dispute. According to the contention of the petitioner, it was not an industrial dispute, In support of this contention 3 grounds are stated :
(1) that Kembhavi is not a workman at all.
(2) there was no such community of interest between the Union and Kembhavi as to entitle the Union to espouse his cause and raise an industrial dispute thereon.
(3) that the termination of the services of Kembhavi by the Company was in accordance with accepted contractual rights of an employer and not a dismissal by way of punishment for misconduct, and that in the absence of any proof of mala fides or unfair labour practice on the part of the Company it could not have been made the subject of an industrial dispute at all.
7. It is now well established that when a Government refers to an Industrial Court or Tribunal what it considers to be an industrial dispute, although the factual existence of the dispute cannot be canvassed in Courts, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act and that therefore the Tribunal had no jurisdiction to make the award. The jurisdiction of a Tribunal depends entirely upon an industrial dispute being referred to it by the Government. If, therefore, what was referred was not an industrial dispute, the Tribunal would have no jurisdiction to adjudicate upon it.
8. An industrial dispute is defined in Clause (k) of Section 2 of the Industrial Disputes Act to be :
'any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.'
According to this definition, the parties to the dispute must necessarily be employers and workmen as defined by the Act, although the subject-matter of the dispute may be the employment, non-employment conditions of employment or conditions of labour of any person. Obviously, the term 'any person' at the end of the definition is different from the term 'workman' which is specifically defined in the Act. The question whether the term 'person' should receive its etymological meaning and be interpreted in all its amplitude or whether it should be restricted in such a way as to relate it in some manner or other with the definition of 'workman' has been the subject of difference of opinion between the Courts.
The last word on the controversy is now found stated in the ruling of the Supreme Court of India reported in Workmen of Dimakuchi Tea Estate v; Management of Dimakuchi Tea Estate, : (1958)ILLJ500SC . The judgment of the Supreme Court in this case as well as the judgment of Chagla, C. J-. in Narendra Kumar v. AH India Industrial Disputes (Labour Appellate) Tribunal, : (1953)IILLJ6Bom , the views stated in which were accepted with approval by the Supreme Court in the first mentioned case, have loomed large in the arguments before us. We cannot do better than state the principles formulated by the Supreme Court and see how far they apply to the proved and admitted facts of this case.
9. In the case before the Supreme Court, the employer had terminated the services of one Dr. K. P. Bancriee, who had been appointed as Medical Officer of the Tea Estate, and his cause was espoused by the Workers' Union of the Estate, who raised a dispute in respect of it which was referred to a Tribunal by the Government as an industrial dispute. Dr. Banerjee was a member of the Union. It was found by the Industrial Tribunal that Dr. Banerjee was not a workman, that his case could not be described as an industrial dispute under the Industrial Disputes Act and was therefore beyond the jurisdiction of the Tribunal. The finding and the conclusion were confirmed on appeal by the Labour Appellate Tribunal and the workmen took the matter up to the Supreme Court. The finding that Dr. Banerjee was not a workman was accepted as a finding of fact by the Supreme Court and the discussion of law proceeded on that basis.
10. Their Lordships of the Supreme Court after analysing the provisions and the purposes of the Industrial Disputes Act concluded that the expression 'any person' occurring in the definition of an industrial dispute cannot be given its ordinary etymological meaning but must be so construed as to be consistent with the intents and purposes of the Act. The learned counsel appearing on behalf of the workmen in the Supreme Court formulated 4 limitations which should properly be placed on the meaning of the term :
(1) that the dispute must be a real and substantial one in respect of which one of the parties to trip dispute can give relief to the other.
(2) that the dispute, if raised by the workmen, must relate to the particular establishment or a part of the establishment in which the workmen are employed;
(3) that the person about whom the dispute is raised need not be a workman within the meaning of the Act, but he must answer to the description of an employee discharged or in service or a candidate for the employment.
(4) The workmen raising the dispute must have A nexus with the dispute either because they are personally interested or because they have taken up the cause of another person in the general interest of labour welfare.
While conceding that the first two limitations formulated by the learned counsel for the workmen were realty implicit in the definition of the 'Industrial Dispute' itself, their Lordships took the view that the remaining two limitations suggested by the learned counsel are much too widely stated and not quite correct. After pointing out that there is a gap between what is normally understood by the term 'employee' and the restricted definition of the term 'workman' in the Act and that this gap is sought to be reduced by the extended definition of the term 'workman' under the amendment carried out in 1956, their Lordships held that the Act seeks to confer benefits only upon workmen as defined in the Act and that therefore the expression 'any person' in the definition of an industrial dispute means a person in whose employment or non-employment or terms of employment or conditions of labour the workmen as a class' have a direct or a substantial interest or with whom they have under the scheme of the Act a community of interest.
The case before their Lordships was governed by the Industrial Disputes Act before it was amended in 1950 under which a person belonging to supervisory staff was not a workman. Their Lordships distinctly state that in the employment, non-employment or terms of employment of a member of the supervisory staff, who cannot himself be a party to art industrial dispute, the workman cannot be said to have any substantial or direct interest. They further observe that although solidarity of labour or general interest of labour welfare may furnish in some cases the necessary nexus of direct or substantial interest in a dispute, the principle of solidarity of labour movement or general welfare of labour before it can furnish suck a nexus must be based on or correlated to the principle of community of interest. Their Lordships then refer with approval to the views stated by Chagla, C. J., in the case mentioned above. Among other terse propositions stated by the learned Chief Justice, we must refer to the following passage in his Lordship's judgment:
'It is clear that in this particular case it cannot be said that the workmen of the second respondent-company are interested in the scales of pay of, or the bonus to be given to, divisional heads and foremen. They may strongly feel about the rights of these employees, they may have strong sympathy for their claims, they may even be oppressed by a sense of injustice, but these are all considerations foreign to the object of the Act. It is only primarily in their own employment, in their own terms of employment in their own conditions of labour that workmen are interested and it is with regard to these that they are entitled to agitate by means of raising an industrial dispute and getting it referred to a Tribunal by Government.....'
11. The crucial test, therefore, of an industrial dispute is to see whether the workmen who raise the dispute in respect of the employment or non-employment or conditions of employment of a person have any direct or substantial interest in those matters or there is between them and that other person a community of interest of the type stated by their Lordships of the Supreme Court. As pointed out by Chagla, C. J., the primary interest of workmen is in their own conditions of service. They cannot, therefore, be said to have any direct or substantial interest in the conditions of service of an. other person unless those conditions are the same as the conditions of their own service. As their Lord ships of the Supreme Court point out, a workman can have no interest in the conditions of service of a non-workman. Their Lordships state :
'In a case where the patty to the dispute is composed of aggrieved workmen themselves and the subject-matter of dispute relates to them or any of them, they clearly have a direct interest in the dispute. Where, however, the party to the dispute also composed of workmen, espouse the cause or another person whose employment, or non-employment etc., may prejudicially affect their interest, the workmen have a substantial interest in the subject-matter, of dispute. In both such cases, the dispute is an industrial dispute.'
12. It follows, therefore, that the subject-matter of the dispute should relate to the employment, non-employment or conditions of employment of the workers themselves, who are parties to dispute or any of them, or where he is not a party to the dispute he should be a workman whose conditions of employment are the same as those of the workmen who are parties to the dispute because if the conditions are different the parties to the dispute can have no interest in them nor can they be said to be prejudicially affected by the employment, non-employment or conditions of employment of the person who is the subject of the dispute.
In the case before the Supreme Court as well as the case before the Bombay High Court the person as to whose employment non-employment or conditions of employment the dispute was raised was not a workman at all. Hence, it was held there was no community of interest between him and the workmen who were parties to the dispute. The fact that Dr. Banerjee was a member of the Union was held to make no difference to the principle.
13. Hence in this case the vital controversy on fact has throughout been whether Kembhavi was a workman or not. This dispute arose, after the amendment of the Industrial Disputes Act of 1956 and hence members of supervisory stall who draw wages less than Rs. 500/- per month and are not employed mainly in managerial or administrative capacity come within the definition of workmen. On the evidence placed before it, the 1st respondent Court has come to the conclusion that the duties of Kembhavi were only supervisory in nature and even assuming that some of them may be said to partake of the nature of administrative or managerial work, he was engaged mainly in supervisory work find was drawing a salary of less than Rs. 500/- per month. The Court has, therefore, recorded a finding that Kembhavi is a workman. This is a finding of fact and the evidence placed before the Court is such that it cannot be said the inference drawn by the Court does not properly flow from it. We, therefore, accept this finding and proceed to decide the case on the footing that Kembhavi is a workman.
14. The only question, therefore, is whether there can be said to he any community of interest between Kembhavi and the Clerks Union'. Admittedly, Kembhavi is not a member, of the Clerks Union. The Union has not placed any material before the Court to displace the suggestion of the management that the Union is composed only of clerks employed in the Company, especially when its very name suggests that it is a Union only of clerks working in this Company. Relying upon the observation of the Supreme Court.
'It is the community of interest of the class as a whole -- class of employers or class of workmen -- which furnishes the real nexus between the dispute and the parties to the dispute '
the learned counsel for the Union has contended before us that both Kembhavi and the members of the Clerks' Union being workmen, it can be said that workmen, as a class or as a whole are directly and substantially interested in the employment, non-employment, conditions of employment of Kembhavi. According to him, the question of community ol interest is important and should be considered only where workmen espouse the cause of a non-workman but that when both are workmen that fact itself is sufficient to establish community of interest between them.
On the contrary, the learned counsel for the Company argues that according to the judgment ol the Supreme Court if the subject of the dispute is not a workman, there cannot possibly be any community of interest at all, and that this clearly flows from the observations of their Lordships towards the end of paragraph 14 where they say that workmen cannot be said to be interested in the conditions of service of a member of the supervisory staff who was then outside the purview of the definition of the term 'workman'.
He, therefore argues that in addition to establishing that the subject of the dispute is himself a workman, it must further be established that the workmen who have raised the dispute have a direct and substantial interest in the employment, non-employment or conditions of employment of that person. It is urged that even among workmen there are several categories and the conditions of service of these different categories may themselves be different and that this should be so in the nature of things because the type of work done by different categories of workmen will be different in nature and the conditions of service would vary according to the nature of work turned out.
It is also pointed out that an industrial dispute need not relate to an entire establishment but may be confined to a part of the establishment. The several parts of an establishment may be distinguished either according to their geographical location as when a Company has different branches in several places, or according to the categories of workmen who man those pacts. Thus, in a mill like the petitioner Company mere arc one or more parts of the establishment manned by clerks and one or more parts of the establishment manned by operatives or manufacturing staff.
There may likewise be different parts manned by operatives, technicians or laboratory-men. Just as conditions of service of different categories of workman may vary according to the nature of the work done by them, the conditions of service of workmen working in different localities may likewise vary according to the local conditions.
On this basis the learned counsel for the Company argues that unless there is identity in the conditions of service of the person who is the subject of dispute and of the workmen, who are parties to the dispute, it cannot be said that there is such community of interest between them as to convert the dispute into an industrial dispute when the workmen espouse the cause of the workman who is the subject of the dispute. The learned Counsel for the Union has referred us to the resolution passed by the general body of the 2nd respondent Union to show ow they are interested in or prejudicially affected by the termination of services of Kenibhavi.
The learned counsel for the Company, however, points out that Their Lordships of the Supreme Court have definitely stated that the principle of solidarity of labour movement or general welfare of labour must be based on or correlated to the principle of community of interest and also to the observations of Chagla, C. J., that any such strong feelings or a sense of oppression or injustice as are set out in the resolution of the Union are considerations foreign to the object of the Act.
15. We are of opinion that the contentions of the learned counsel on behalf of the Company are sound and should be accepted. The nature of duties of Kembhavi, who was admittedly working in the manufacturing department of the Mills, cannot be the same as the nature of duties of clerks, who are members of the 2nd respondent Union. His conditions of service will, therefore, be different from the conditions of service of the clerks. He is not even a member of the Clerks' Union.
The Union cannot, therefore, he interested in his conditions of service unless a substantial majority of the workmen of the class to which Kembhavi belongs are among the members of the Union. Nothing has been pointed out to show how and in what manner the Clerks' Union has any direct or substantial interest in the employment, non-employment or conditions of employment of Kembhavi beyond what is stated in the resolution of the general body of the Union which, in the light of the views expressed by their Lordships of the Supreme Court, cannot in themselves furnish the necessary nexus between the dispute and the parties to the dispute. By the mere fact, therefore, of the Union having espoused tho cause of Kembhavi it cannot be said that the dispute raised in respect of the termination of his services 1ms become an industrial dispute.
16. We, therefore, hold that the dispute which the Government of Mysore referred to the 1st respondent-Industrial Court for adjudication in this case is not an Industrial Dispute within the meaning of the Industrial Disputes Act. Consequently, it has to be held that the 1st respondent Labour Court had no jurisdiction to entertain and adjudicate upon the dispute.
17. In the light of this conclusion, it is unnecessary to consider the further argument of the learned counsel for the Company that the termination of services of Kembhavi was in exercise of a contractual right not furnishing any ground for raising an industrial dispute. We may also observe that there is not sufficient material on record to clearly establish that Kembhavi's services were terminated in accordance with any specific term of a contract or any specific condition in the Standing Orders applicable to him. Both sides virtually agree that the Standing Orders produced before the Labour. Court do not directly apply to Kembhavi or to the clerks either.
18. In the result, the petition is allowed. A writ of certiorari will issue quashing the award of the Labour Court at Public in Industrial Dispute No. 2/1957 on its file published in the Mysore Gazette dated 15-5-1958. The 2nd respondent Union will pay the costs of the petitioner-Company in this petition. Advocate's fee Rs 100/-.
19. Petition allowed.