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The Employers of Daily News, Secunderabad Represented by Its Managing Editor, Shri Chari Vs. Workmen of Daily News, Secunderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 761 of 1959
Judge
Reported inAIR1960AP556; [1960(1)FLR494]; (1960)ILLJ599AP
ActsIndustrial Disputes Act, 1947 - Sections 2 and 10; Constitution of India - Articles 166 and 226
AppellantThe Employers of Daily News, Secunderabad Represented by Its Managing Editor, Shri Chari
RespondentWorkmen of Daily News, Secunderabad and anr.
Appellant AdvocateV.K. Vaidya, ;L.P. Sahagal and ;M.P. Ugle, Advs.
Respondent AdvocateP.A. Choudary and ;P. Venkayamma, Advs.
DispositionPetition dismissed
Excerpt:
labour and industrial - dismissal of employees - sections 2 (k), 10 and schedule 2 of industrial disputes act, 1947 and articles 166 and 226 constitution of india - two employees suspended - whether management justified in dismissing employees - high court not to decide on matter as no blatant violation of any rules or laws - 'dispute' within section 2 (k) as it was sponsored by other fellow workers - government notification mentioned 'termination of service' of certain workers - later notification amended previous notification and substituted 'termination' by 'suspension' - notification merely correcting error in reference - held, does not amount cancellation of reference. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961,..........department dated 22nd august, 1958, the government of andhra pradesh referred for adjudication an industrial dispute between the workmen and the employers of the daily news under section 10(1)(c) of the industrial disputes act (central act xiv of 1947). in the annexure to the order the following matters of dispute were recited :1. whether the following demands of workmen arc tenable : (i) graded salaries to all the workers.(ii) d. a. at a flat rate of rs. 50.(iii) leave facilities.(iv) bonus.(v) permanency of the daily workers and fixation of their emoluments in graded salaries. 2. whether the termination of services of m/s. satyanarayana and satya seela are justified. it not, to what relief they are entitled. after the receipt of this reference the labour court registered the dispute.....
Judgment:
ORDER

Seshachalapati, J.

1. This is a petition under Article 226 of the Constitution of India to call for the records relating to and quash the Award dated 9-3-1959 passed in the Industrial Dispute No. 13 of 1958 on the file of the Labour Court, Hyderabad.

2. The petitioner is the management of the Daily News, Secunderabad represented by the Managing Editor. The 1st respondent is the Daily News Press Workers' Union. The 1st respondent herein submitted to the Management a memorandum of grievances. The matter raised by the workers was referred to the Conciliation Officer who started work on 2-7-1958.

On 1-7-1958, the Managing Editor suspended two employees, Satya Seela and Satyanarayana, the office boy and the Asst. Foreman respectively in the Daily News until further orders for removing certain important papers without the permission of the Management. The Conciliation proceedings failed. By G. O. No. 1995 Home (Labour) Department dated 22nd August, 1958, the Government of Andhra Pradesh referred for adjudication an industrial dispute between the workmen and the employers of the Daily News under Section 10(1)(c) of the Industrial Disputes Act (Central Act XIV of 1947). In the annexure to the order the following matters of dispute were recited :

1. Whether the following demands of workmen arc tenable :

(i) graded salaries to all the workers.

(ii) D. A. at a flat rate of Rs. 50.

(iii) Leave facilities.

(iv) Bonus.

(v) Permanency of the daily workers and fixation of their emoluments in graded salaries.

2. Whether the termination of services of M/s. Satyanarayana and Satya Seela are justified. It not, to what relief they are entitled. After the receipt of this reference the Labour Court registered the dispute as case No. 13 of 1958 on its file. The workmen submitted a statement of their grievances and their demands. The Management filed two counter statements traversing and controverting the demands made by the workmen. On 9-10-1958 a memorandum No.97417-Labour/1/58-9 styled as an erratum was issued by the Government of Andhra Pradesh reciting that in item 2 of the annexure to the Notification dated 22-8-1958, the words 'termination of services' should be read as 'Suspension of services'. The Labour Court formulated the points arising for consideration in these terms :

1. Whether this Court is competent to adjudicate upon the reference ?

2. Whether the following demands of the workmen are tenable ?

(a) Graded salaries to all workers.

(b) D. A. at a flat rate of Rs. 50/-.

(c) Leave facilities.

(d) Bonus.

(e) Permanency of daily workers and fixation of their emoluments in graded salaries.

3. Whether the suspension of M/s. Satyanarayana and Sheela is justified?

4. If not, to what relief are they entitled?

3. On the 1st point it held that the reference was within the competence of the Government and that the Labour Court had also jurisdiction to try and determine the matters referred to it. As to the questions covered by point No. 2, the Labour Court held against the workmen and rejected their demands. As to issue No. 3 relating to the suspension of the workers M/s. Satyanarayana and Satya Sheela, the Labour Court held that their suspension was unjustified and on issue 4 it directed the reinstatement of the two workers. This writ petition is filed for quashing of the Award in so far as it relates to the cases of M/s. Satyanarayana and Satya Sheela.

4. The main contentions in the affidavit filed in support of the petition are: (i) that there was no industrial dispute within the meaning of Section 2(k) of the Act; (ii) that in the annexure to the G. O. 1995 Home (Labour II) Department dated 22nd August 1958, the reference was with respect to termination of services of the two workmen while there was no such termination; (iii) that the Government was not competent to amend a reference made under Section 10 of the Industrial Disputes Act by substituting the expression 'suspension' in the place of 'termination'; (iv) that in any view the amendment was bad in law for the reason that it was not issued by Government or on the authority of the Government; (v) that the Labour Court had no jurisdiction to enquire into the question of suspension; and (vi) that the labour court did not give sufficient time to the management to adduce evidence and that it failed to see that the suspension was preliminary to an enquiry which however, could not be held by reason of the intervention of the Conciliation proceedings. I shall examine these contentions in that order.

5. The 1st contention is that there is no industrial dispute within the meaning of Section 2(k) of the Act, for the reason that the suspension of the two individual workmen cannot affect the conditions and terms of employment of other workmen as a whole. The term 'industrial dispute' is defined in Section 2(k) of the Act in these terms :

'An industrial dispute means 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;'

The meaning and scope of this definition has been the subject of judicial determination from time to time and it may now be taken as settled law that while the dispute between a single worker and the employers would not amount to an industrial dispute, when such a dispute, however, is espoused by the workers' union or a substantial portion of the body of workers, it would amount to an industrial dispute (vide Newspapers Ltd. v. Slate Industrial Tribunal, (S) : (1957)IILLJ1SC , C. P. Transport Service Ltd. v. Raghunath, (S) : (1957)ILLJ27SC and Gurumurthy v. Ramulu, 1957-2 Andh WR 335: (AIR 1958 Andh Pra 276)). It is unnecessary to refer to other cases in respect of a legal position which is now well established. The Labour Court has held that the majority of the workmen had participated in the dispute which led to the reference by the Government under Section 10 of the Act in G. O. No. 1995 dated 22-8-1958, and has, therefore, rejected the objection of the management that there is no industrial dispute, and in my view, rightly.

6. The second and third contentions may be considered together. In the original reference, item 2 in the annexure is; 'whether the termination of M/s Satyanarayana and Satya Sheela is justified & if not to what relief they are entitled'. It is not in dispute that the order passed against these two individuals separately on 1-7-1958 was only 'suspension until further orders' and not termination of service. By tbe erratum D/- 9-10-1958 the annexure was amended by substituting 'suspension' for 'termination'' of services. Mr. Vaidya, the learned counsel for the petitioner, contends that the erratum is in the nature of an amendment to the original reference and that the Government have no power to amend the original reference. On that assumption, it is further contended that since there was no termination of service as originally recited in the annexure to the G, O. the Labour Court should have rejected the claim of the two workmen. The Labour Court held that the erratum issued in the instant case could hardly he considered as an amendment and that even otherwise the Government have the power to amend the reference. In support of that view the Labour Court relied upon the decision of the Punjab High Court in Textile Workers Union v. State oi Punjab, AIR 1957 Punj 255.

7. It is argued by Mr. Vaidya that in State of Bihar v. D.N. Ganguly, : (1958)IILLJ634SC the Supreme Court disapproved the decision of the Punjab High Court and that the decision of the Supremo Court is an authority for the position that the Act does not expressly confer any power on the appropriate Government to cancel or supersede a reference made under Section 10 of the Act, and such a power could not be implied on the strength of Section 21 of the General Clauses Act. In the judgment of their Lordships it is abundantly made clear that their decision was confined to the narrow question as to whether an order of reference made by the appropriate Government, under Section 10(1) may be subsequently cancelled or superseded by it. On a review of the sections of the Industrial Disputes Act and the paramount purpose and intendment of that Act, their Lordships held that an implied power of the appropriate Government to cancel its reference under Section 10(1) would render the proceedings before the Industrial Tribunal wholly ineffective.

The facts involved in their Lordships' decision may be briefly stated: On 18-10-1954 the Government of Bihar made a reference with respect to an industrial dispute between Batta Shoe Co., and 31 workmen. On 15-1-1955, a similar industrial dispute between the same management and 29 other workers was referred to the same Tribunal which consolidated the two disputes and made some progress in the enquiry. On 17-9-1955, the Government issued a Notification superseding the two earlier Notifications and combining these two disputes into a single dispute and directing the impleading of the two sets of workmen and to add the Batta Company Mazdoor Union to the dispute.

On receipt of the third Notification the Tribunal cancelled the hearing of the two prior references and directed their closure. Their Lordships held that to postulate an implied power with the appropriate Government to revoke and cancel a reference would lead to serious difficulties and would render the proceedings before the Industrial Tribunals ineffective. I cannot see how this decision will support the contention of Mr. Vaidya. In the present case the Government did not withdraw, cancel, revoke or supersede the reference made in G. O. 1995 dated 22-8-1955. By means of the erratum it only corrected an obvious terminological error and mistake.

8. Assuming that it is more than a verbal correction it seems to me that the reasoning of a decision of the Madras High Court in South India Estate Labour Relation Organisation v. State of Madras, (S) : AIR1955Mad45 would directly apply to this case. In that case, the Government issued a memorandum amending a reference already made under Section 10. It was held that the objection as to the legality of the amendment was a mere technicality without substance. The correctness of this decision is unaffected by the decision of the Supreme Court for in their Judgment their Lordships refer to this decision and observed that they were not in that case considering the power of the Government to amend or add to a reference made under Section 10(1) of the Act as they were considering only a case of a cancellation of a reference. The Government could have, as pointed out in the Madras decision, cited above, made an independent reference on the question of 'suspension'. If it took the form of an amendment to the previous reference, it cannot amount to a cancellation or supersession of the reference. In this case, it is not even an amendment. It is nothing more than a correction of an obvious error in the reference. I, therefore, hold that there is no substance in this contention.

9. It is then contended that the erratum issued by the Government on 9-10-1958 was not issued either by the Governor or on the authority of the Government and, therefore, bad in law. The erratum issued purports to be signed by the Deputy Secretary to Government and the memorandum purports to be that of the Government of Andhra Pradesh, Home (Labour II) Department. It is true that in the body of the memorandum the words 'Government of Andhra Pradesh' do not appear, nor is it issued in the name of the Governor. But, I do not think that this objection is by any means fatal to the validity of the correction sought to be made by the Government.

In State of Bombay v. Purushottam Jog, : 1952CriLJ1269 in the order of detention under Section 3(1) of the Preventive Detention Act, 1950, the operative part of the order was that the Government of Bombay was pleased to direct that a particular person be detained and the order was signed by the Secretary to the Government of Bombay. An objection was taken that the order was not expressed to be taken in the name of the Governor, though it was issued by the order of the Governor of Bombay. The Supreme Court rejected this contention and held that the order was in compliance with Article 166 and that the Constitution did not require a magic incantation which can only be expressed in a set formula of words.

In Dattatreya v. State of Bombay, : 1952CriLJ955 the Supreme Court held that an omission to mate and authenticate an executive decision in the form mentioned in. Article 166 does not make the decision itself illegal for the provisions of that article like their counter part in Government of India Act of 1935 are merely directory and not mandatory, as held in J.K. Gas Plant . v. Emperor, 1947 FCR 141: (AIR 1947 FC 38). S.R. Das J. (as he then was) observed as follows:

'It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature. It has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. The considerations which weighed with their Lordships of the Federal Court in the case referred to above in the matter of interpretation of Section 40(1) of the 9th Schedule to the Government of India Act, 1935, appear to me to apply with equal cogency to Article 166 of the Constitution. The fact that the old provisions have been split up into two clauses in Article 166 does not appear to me to make any difference in the meaning of the Article',

There is also, in my view, another reason why this contention should fail. Before the Labour Court the present argument as to the informality of the erratum issued by the Government on 9-10-1958 would not appear to have been taken in the form in which it was raised before me. In the counter filed by the petitioner on 17-10-1958, the objection that was taken was that the erratum was sent through a memorandum and that it could not affect a reference made in a Government order. This is not an objection based on non-compliance with the provisions of Article 166.

Therefore, the petitioner cannot raise that objection now. In Lakshmanan Chettiar v. Commr. of Corporation of Madras, ILR 50 Mad 130 at p. 134: (AIR 1927 Mad 130 at p. 131) (FB) a Full Bench of the Madras High Court has held that where an applicant for the issue of writ of certiorari armed with a point either of law or of fact, which would oust the jurisdiction of the lower court, had elected to argue the case on merits before that Court, he must be taken to have Submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate. This decision has been approved by the Supreme Court in Pannalal Binjraj v. Union of India, (S) : [1957]1SCR233 . I, therefore, hold that there is no force in the contention that the erratum is defective as not having been issued in conformity with Article 166 of the Constitution.

10. The next contention of Mr. Vaidya is that the Government has no jurisdiction to refer the question of suspension as it is not covered by any of the item in Schedule II to the Act. In my view, the Labour Court was right in holding that the suspension falls within the residuary item, item 6 or the II Schedule, which refers to all matters other than those referred to in the III schedule. I hold, therefore, there is no merit in this contention.

11. It in next argued by Mr. Vaidya that the Labour Court did not give time to the management to adduce evidence. It is not stated in the affidavit filed in support of this petition as to what was the evidence that was sought to be tendered for which time was not given. There is nothing in the judgment of the Labour Court to show that any evidence was shut out or time was refused for adducing evidence. It is argued by Mr. Vaidya that the Labour Court was wholly in error in construing the suspension of the two workers on 1-7-1958 as punitive in nature and not as merely ancillary step to an enquiry into their conduct. It is contended that the suspension was stated to be until further orders and an enquiry could not be conducted because of the intervention of conciliation proceedings. It is true that the orders issued on 1-7-1958 to the two workmen expressly state that the suspension is until further orders. In the absence of clear indication that it is pending charges, I cannot say that the construction put upon the suspension orders by the Labour Court is erroneous,

The Labour Court has come to the conclusion that the suspension was unjustified and that they should be reinstated with continuity of service and back wages. In Benerji v. Mukherjee, : [1953]4SCR302 the Supreme Court has held that whether on the facts of a particular case, the dismissal of an employee was wrongful or justified is a question primarily for the Tribunal to decide and unless there is any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 226 of the Constitution to interfere. It cannot be said in this ease that there is grave miscarriage of justice or flagrant violation of law. There is also no excess or error ot jurisdiction.

12. In the result, the Writ Petition fails and isdismissed with costs. Advocate's fee Rs. 100.


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