1. This is an application under Article 220 of the Constitution on behalf of the management of the Badjanapuram Salt Factory seeking to impugn the award of the Industrial Tribunal dated 16-10-11956.
2. The petitioner company is a salt manufacturing concern and the case of the petitioner is that it used to get its business carried out through a maistry contractor who used to procure labour on his own responsibility for the salt being manufactured by the firm, to procure labour for removing the salt from the heaps and putting over into bags to procure labour for carting the salt bags and transporting them from the firm's site to the Railway siding or the crushing mill and also to procure labour for loading the salt bags in railway wagons. The petitioner's case is that this used to be the course of business from the very inception of the petitioner's business and that from 1927 to 1944 the Maistry contractor was one Sri Rajamma Naidu and after his death his son continued as Maistry from 1944 onwards.
Further, the allegation of the petitioner company is that it was the responsibility of this maistry to arrange for the labour for the purposes mentioned above, that the management used to pay a lump sum to the maistry for the number of carts loaded and it was a matter between the maistry and the labourers as regards the amount of wages payable to the labourers. The sum and substance of the case of the management is that there was no direct contract between the management and the labourers and their dealings were only with the maistry.
3. In or about April, 1955 the Union of the workers (cart-men) represented by Naupada Circle Salt Workers' Union made a demand for an increase of wages from 3 annas to 4 annas a bag as was being paid in other factories. The company refused to take any notice of the demand. On 25-5-1955 the labour officer, Visakhapatnam, treating the demand and non-satisfaction thereof as a dispute between the workers and the management asked the firm to pay the additional cartage demanded only for the season 1955 saying that the position could be reviewed later. To this communication of the Labour Officer the management replied that they would pay at the rate of 4 annas when there was work and it could not he paid from 10-5-1955 as there was no work. On 13-7-1955 the Labour Officer advised the firm to immediately pay the enhanced rate of 4 annas to the workers and that otherwise action would be taken against them for violation of the agreement arrived at. The management contended that the demand was an illegal demand. The Labour Officer again reiterated his demand on 26-8-1955, that one Budepi Krishna Murti nominated by the workers should be paid the cartage as the representative of the workmen.
The management expressed its inability to accede to the demand of the Labour Officer and again there was a demand and a refusal on a subsequent date. Finally by a G. O. of the Department of Industries dated 28-1-1956 there was a reference made of the dispute between the management and the workers of the factory for adjudication by the Industrial Tribunal having its sitting at Visakhapatnam. The management protested against the reference being made and that the reference should be withdrawn, because, according to it. the Tribunal had no jurisdiction for the reason that it was not an industrial dispute between employers and employees, there being no privity of contract between the management and the workmen. The tribunal gave its award after hearing two witnesses on behalf of the Union and three on behalf of the management and considering the documents filed before it. The Government accepted the award and it was published in the Andhra Gazette dated 25-10-1956.
4. Learned counsel for the petitioner urged that the tribunal had no jurisdiction to entertain this reference for the reason that it was not an 'Industrial dispute' within the meaning of the Industrial Disputes Act (hereinafter referred to as the Act). He contended that the position of the respondents in this case is not that of workmen as defined in Section 2(a) of the Act. The argument was that the management got all its labour through the mediation of a person called the maistry, whose duty it was to arrange for the requisite labour having regard to the quantity of work, time available, etc.
It was contended that the course of dealings had all along been that payments used to be made to the Maistry on the basis of the bags transported and the workmen were not paid individually for their labour. It was stated that no muster roll was maintained of these workmen and no account of these payments made individually to the workmen was found in the accounts of the concern. On the basis of these contentions it was argued that the respondents not being workmen and inasmuch as the Act envisaged a dispute between an employer and an employee any dispute between the management and the respondents who were third parties and not workmen could not come within the cognizance of the Industrial Tribunal.
5. It was urged by the learned counsel for the respondents that where a reference had been made under Section 10(2) of the Act, it was not open to the petitioners to question the jurisdiction of the tribunal. So, the first question that has to be decided is as to whether there having been a reference by the Government under Section 10(2) of the Act it was open to the petitioner to question the jurisdiction of the tribunal. What is an industrial dispute is an objective fact. The fact that the Government made a reference regarding it as an industrial dispute is not conclusive of the matter. Where, therefore, the dispute does not partake of the nature of an industrial dispute, it cannot be converted into an industrial dispute. Further, the Industrial tribunal can always go into the question whether it has jurisdiction.
The Supreme Court in the case of State of Madras v. C. P. Sarathy, : (1953)ILLJ174SC , while observing that the order of reference made by the Government was an administrative act and the Court cannot, therefore, canvass the order, nevertheless held that when seeking to impugn the award it would be open to a party to show that the subject-matter of the reference was not an industrial dispute as defined in the Act and that, therefore, the tribunal had no jurisdiction. These observations of the Supreme Court would amply indicate that the fact of a reference having been made by the Government as an industrial dispute to the Industrial Tribunal is not conclusive of the question that it is an industrial dispute. Where, therefore, a reference is made by the Government the tribunal has the power to examine as to whether it has jurisdiction. Therefore, the objection of the respondents to say that the question of jurisdiction cannot be canvassed cannot be sustained.
6. The next question is as to whether the respondents who represent the persons attending to the loading and carting of the salt in the petitioner's factory could be regarded as workmen for, it is essential that the dispute ought to relate as between an employee and an employer. The wages are payable to the cartmen for their labour, There is no dispute with regard to that. The case of the management is that it pays at the rate of four annas per bag and does not concern itself with what the cartmen get. It says that in actual practice the maistry used to pay three annas to the cartmen and take one anna for himself.
Disputes having arisen about the inadequacy of the wages, having regard to the fact that in other similar concerns, wages were being paid to the cart-men at 4 annas per bag, demand was made to this company for the payment of 4 annas and when there was no response a notice of strike was given and there was a strike from 10-5-1955 to 20-5-1955, The Labour Officer intervened and asked the company to pay at the rate of 4 annas. This is evident from Ex. R-3 in the case. The management it would appear replied to this letter of the Labour Officer calling upon them to pay at the rate of 4 annas, stating that there was no work in the factory from 10-5-1955, when there was work they would pay at the enhanced rate of annas four, cartage per bag of salt as recommended by him. This letter is letter No. 53, Ex. R-4.
7. The whole contention raised before the tribunal and before this Court on behalf of the management is that the cartmen could not be regarded as workmen within the meaning of Industrial Disputes Act and the dispute with regard to the wages could not come within the definition of an industrial dispute as covered by the Act. The word 'work-man' has been defined in Section 2(a) of the Industrial Disputes Act, which is as follows :
'Workman means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire' or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Government.'
The question as to what class of persons would fall under the category of workmen was the subject oi a decision in the case before the Supreme Court in the case of Dharangadhara Chemical Works v. State of Saurashtra, : (1957)ILLJ477SC . That related to the Chemical works at Dharangadhara which company were the lessees of this Salt Works from the State of Dharangadhara. Salt was manufactured not from sea water but from rain water which soaking down the surface became impregnated with saline matter. The process of manufacture was that the entire area was parcelled out into plots called 'Pattas' and they were in four parallel rows intersected by the railway lines; each of these plots was allotted to a person called 'Agaria' and some times to two agarias where the plot was extensive.
The salt manufacturing company paid a certain Bum to meet the initial expenditure. The agarias levelled the lands, enclosed them and sank wells in them. The density of water used to be examined by the salt superintendent of the salt manufacturing company and they were brought into condensers and retained there until they were formed into crystals. After the crystals were collected, they were loaded into railway wagons and transported to the depots where salt was stocked. Further the agarias worked on these pans with their families; they were free to engage extra labour and such labour was paid by them. This used to be the arrangement.
Disputes arose between the agarias and the salt manufacturing company with regard to the conditions under which the agarias should be engaged by the company in the manufacture of salt. The government of Saurashtra referred the dispute for adjudication by the Industrial Tribunal. The question that has to be determined by the Tribunal was as to whether the agarias were the workmen of the company within the definition of the term in Section 2(a) of the Act. The Tribunal held that they were workmen and therefore, the reference to the tribunal was intra vires and an appeal was taken to the Labour Appellate Tribunal by the company and having failed there, the matter was taken to the High Court under Article 226 of the Constitution. The High Court agreed with the decision of the Industrial Tribunal that the agarias were workmen and dismissed the writ petition. The matter was taken up to the Supreme Court.
8. While considering the question as to whether these agarias could be regarded as workmen the first observation made by the Supreme Court was that the question whether the relation between the parties is one of employer and employee or one between the master and a servant was a pure question of fact, as much to say that a finding arrived at by the Industrial Tribunal as a question of fact could not lightly be interfered with. While applying the test for determining the question, their Lordships observed that it would have to be ascertained as to whether there was due control and supervision by the employer not only in the matter of directing what work the employee was to do, but also the manner in which he should do the work.
It may be mentioned that in the aforesaid case it was contended on behalf of the management that the agarias were only doing piece work and they employed their own labour and paid for it. The Supreme Court repelled these contentions and said that neither of these two circumstances was decisive of the question. I may herein point out that in the instant case also the contention is that the cartmen had worked on a contract basis and they were being paid for by the maistry and not by the company. It would, therefore, follow that these considerations cannot be availed of by the company to contend that the cartmen are not their employees.
9.. The other argument put forward in this case of the maistry getting other persons to work and those persons being controlled by the maistry himself is also not a consideration which was conclusive of the fact that the cartmen were not the workmen. The Supreme Court very broadly hinted that the fact that the agarias in that case were getting others to do the labour while themselves also working, would not affect their status as workmen. Finally, although their Lordships of the Supreme Court did observe that considerable difficulties might arise if the agarias were held to be workmen, still they held that these difficulties were no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfilled its requirements. Finally they agreed with the conclusion arrived at by the tribunal that they were workmen. In my opinion, the position of the cartmen here, having regard to the work done by them in the factory could only be regarded as workmen. This is a much stronger case than the case of the agarias decided by the Supreme Court.
10. The matter came up for decision in a subsequent case before the Supreme Court in Chintaman Rao v. State of Madhya Fradesh, D/- 18-2-1958: : 1958CriLJ803 . Subba Rao J., who delivered the judgment of the Court on the particular facts of the case held that the sattedars in a beedi factory were not workmen. This case is distinguishable from the case now before me for, the work done by the sattedars is an independent piece of work. The management of the beedi factory situated in Sagar (Madhya Pradesh) supplies to these sattedars tobacco and in some cases beedi leaves. It was the work of the sattedars to get beedies manufactured by engaging coolies. After the beedies are rolled in they are sent to the factory through coolies and they are sorted and checked in the factory.
The selected beedies are packed in bundles and they are taken by the sattedars to Tandul and left there. The sattedars are paid the cost of the manufacturing of the beedies. As would be clear from the judgment, these sattedars neither work in the appellants' factory nor are they subject to the supervision or control of the appellants. They are merely entrusted with the work of making beedies and the coolies in turn are entrusted with the work by the sattedars. On these facts the Supreme Court held that the sattedar was only an independent contractor because the agreement between the management and himself was that he was to receive tobacco and supply them rolled in beedies.
11. Although not in this form, the question arose in a different form before the Supreme Court in the case of Workmen of Dahingeapara Tea Estate v. Dahingeapara Tea Estate, D/- 4-2-1958: : (1958)IILLJ498SC . In that case a Doctor was attached to the Tea estate and his services were dispensed with. The cause of the Doctor was espoused by the Trade Union and the Secretary of the Trade Union corresponded with the management with regard to his dismissal. When the reasons given by the management for the dismissal of the Doctor were not found to be satisfactory by the Union, the matter was referred to a Board consisting of the Labour Commissioner, Assam and two representatives of the Assam Branch of the Indian Tea Association. This Board recommended that the Doctor should be rainstated. The management offered to pay a certain amount in lieu of reinstatement.
To this the workmen did not agree. This was made an industrial dispute and the Government referred it to the Industrial Tribunal. The only question that was raised was as to whether this was an industrial dispute, because' it was not a dispute between an employer and an employee, the Doctor being not a workman. The tribunal held that it had no jurisdiction. So did the Appellate Tribunal hold. Then the Supreme Court was moved by special leave for the determination of the question whether a dispute in relation to a person who was not a workman fell within the scope of the definition of an industrial dispute. While elaborately discussing this question, the Supreme Court laid certain tests which would govern a case of this kind. One of the tests was that 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 interests of labour welfare.
They said that the expression 'any person' occurring in the definition would not be equated with 'any workman' still it would do if the dispute is such in which the parties to the dispute nave a direct or substantial interest. Their Lordships went to the extent of saying that where a party to the dispute viz : a workman espoused the cause of another person whose employment or non-employment might prejudicially affect their interests, the workmen have a substantial interest in the subject-matter of the dispute. In such cases the dispute is an industrial dispute. They referred to the decision of the Federal Court in the case of Western India Automobile Association v. Industrial Tribunal, Bombay, 1949 FCR 321 at p. 347 : (AIR 1949 FC 111 at p. 121), wherein their Lordships of the Federal Court observed :
'The non-employment of 'any person' can amount to an industrial dispute between the employer and the workmen falling under the definition of that word in the Industrial Disputes Act.'
In effect the crucial test broadly laid by the Supreme Court was that there ought to be a community of interest and the dispute must be such in which the workmen or the employees should have a direct or substantial interest. The person in regard to whose employment or non-employment the dispute has arisen need not necessarily be a workman. It is useful to quote the observations o the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., 1949 AC 134, to the following effect .
'The jurisdiction of the Board (Labour Relations Board) ..... is not invoked by theemployee for the enforcement of his contractual rights; those, whatever they may be he can assert elsewhere, But his reinstatement, which the terms of his contract of employment might not by themselves justify, is the means by which labour practices regarded as unfair are frustrated and the policy of collective bargaining as a road to industrial peaca is secured.'
The decisions in these matters are not strictly governed by legal principles but they are to be determined by considerations of policy also. Many of these disputes in industrial concerns are not found on contractual rights and while determining the questions that arise in an industrial dispute, the court would have to place before it the object of legislation relating to industrial disputes and also the policy underlying the same. As was observed by Chief Justice Rajamannar in Sri Meenakshi Mills Ltd., Madras v. State of Madras, : (1951)IILLJ194Mad , the yardstick of justice and equity changes with the changes in the social, political and economic outlook and with changes in conditions of individual and national life,
12. This factor also cannot be ignored that the writ petitioners did agree to pay at the rate of 4 annas but the contention is that that was under protest. There is ample evidence in the case to show that payment is made at the rate of 4 annas per bag in other factories and under these circumstances, to say that this company would not fall in line with other similar companies would not be justified. If the company would like to continue the old established practice of having a maistry, it is left to the company to pay him his remuneration over and above what is payable to the cart-men.
13. Having considered all the aspects of thecase, I am of opinion that the tribunal's awardshould stand and this writ petition dismissed. Asthe writ petition involved a debatable question otlaw I direct that each party do bear his own costs.