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J.K. Cotton Manufacturers Ltd., Kanpur Vs. U.P. Government and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 2471 of 1957
Judge
Reported inAIR1960All734; [1960(1)FLR564]
ActsUttar Pradesh Industrial Disputes Act, 1947 - Sections 3, 6A and 8; Constitution of India - Article 226
AppellantJ.K. Cotton Manufacturers Ltd., Kanpur
RespondentU.P. Government and ors.
Appellant AdvocateR.S. Pathak, Adv.
Respondent AdvocateS.P. Kumar, Adv. and ;Standing Counsel
DispositionPetition allowed
Excerpt:
.....of temporary clerk - no apprehension of any strike or lock out - no resentment in majority of workmen - dispute espoused by foreign trade union - adjudicator appointed - individual dispute not industrial dispute - adjudicator has no jurisdiction - adjudicator does not have power to modify employer employee agreement. - - regulations of the company as well as the standing orders have been fully explained to me. it has been clearly explained to me that the period of my employment will be from 24-8-53 to 23-11-53 only. in this application he has mentioned that it had been clearly explained to him that the period of his employment was to be from 23-2-54 to 22-5 54. he had agreed to the appointment on the above terms. 160 of 1956. written statements were filed by the petitioner as..........were members. 3. on 23-1-56 the vice president of the kanpur mechanical and technical workers union kanpur applied to the regional conciliation. officer, kanpur for taking conciliation proceedings. under clauses (b), (c) (d) and (g) of section 3 and sections 6-a and 8 of the u.p. industrial disputes act the government had issued an order, no. u-464 (ll)/ xxxvi-b-257 (ll)-1954 dated 14-7-54, by means of which machineries had been created for conciliation of industrial disputes. clause 11 of the said notification reads as follows:-- 'where the state government is of opinion that any industrial dispute exists or is apprehended, it may at any time either of its own motion or after considering the report of the conciliation board, made under sub-clause (3) of clause (5), or on an.....
Judgment:
ORDER

V.D. Bhargava, J.

1. This is a petition under Article 226 of the Constitution filed by Messrs J. K. Cotton .

2. The petitioner is a joint stock company registered under the Companies Act, having its head office at Kanpur and running the business of manufacture and sale of yarn and cloth. The petitioner employs a strength of about 1700 workmen for this purpose. They are divided into different categories. The opposite parties to this petition are the U. P. Government; the Additional Regional Conciliation Officer; the Workmen of the J. K. Cotton ., the Kanpur Mechanical and Technical Workers Union, Kanpur, and Sri Rama Shankar Gupta, one o the workers, who had been employed on a temporary basis by the petitioner. He is opposite party No. 5. He was employed on 1-1-53 as a temporary clerk. The engagement was for a specific period on the expiry of which, under the terms of the contract, he was automatically to leave the petitioner's company. With an interval of short periods this temporary contract was renewed from time to time. Rama Shankar Gupta continued to work in the petitioner's Company in different capacities. His appointment was made on his application which was couched in the following terms:--

'I desire to work in your Mills. The Rules and: Regulations of the Company as well as the Standing Orders have been fully explained to me. I will abide by those Rules so long as I remain in the employment. I fully understand that I am being employed as a temporary workman and will be given work only when work is available for me. It has been clearly explained to me that the period of my employment will be from 24-8-53 to 23-11-53 only. On 23-11-53 or even before at any time when the Company does not require any services it can terminate my services without any notice or compensation in lieu thereof. I will have no objection whatsoever if my services are terminated. I have fully understood the above facts and I gladly accept them. If the management likes it can extend the period of my temporary employment.'

After his appointment he signed on the application and he made the endorsement: 'Noted and agreed'. That employment was extended on 23-11-53 for a further period of two months, i.e. 22-1-54. Then again Sri Gupta made the endorsement ''Noted and agreed'. It was further extended upto 15-2-54, which was the last term of the appointment of Sri Gupta. Thereafter, it appears that his services were terminated. He was again appointed by means of another application submitted by Sri R. S. Gupta, dated 22-2-54. This application is couched in very similar terms to the one in which the previous application had been made. In this application he has mentioned that it had been clearly explained to him that the period of his employment was to be from 23-2-54 to 22-5 54. He had agreed to the appointment on the above terms. This appointment was again extended by two months on 21-5-54 upto 21-7-54 and by two subsequent extensions it was extended upto 30-12-55. When his services were terminated, no dispute whatsoever according to the petition was raised either by him, or by any worker of the petitioner's concern, or by any union of which the worker of the petitioner's concern were members.

3. On 23-1-56 the Vice President of the Kanpur Mechanical and Technical Workers Union Kanpur applied to the Regional Conciliation. Officer, Kanpur for taking conciliation proceedings. Under Clauses (b), (c) (d) and (g) of Section 3 and Sections 6-A and 8 of the U.P. Industrial Disputes Act the Government had issued an order, No. U-464 (LL)/ XXXVI-B-257 (LL)-1954 dated 14-7-54, by means of which machineries had been created for conciliation of industrial disputes. Clause 11 of the said notification reads as follows:--

'Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time either of its own motion or after considering the report of the Conciliation Board, made under Sub-clause (3) of Clause (5), or on an application made to it by order in writing refer any dispute to the Industrial Tribunal, or it the State Government considering the nature of the dispute or the convenience of the parties so decides, to any other person specified in that behalf for adjudication (hereinafter called the Adjudicator).'

4. Acting under that power, by notification dated 15-9-56 the Government referred the dispute for adjudication to Sri Nasir Husain, Additional Regional Conciliation officer in the following terms:

'Nature of Dispute;

Whether the management of Messrs. J. K. Cotton ., Kanpur have wrongfully and/or unjustifiably terminated the services of their workman Sri Ram Shankar Gupta with effect from 31-12-1955. If so, to what relief is he entitled and with what details?'

5. This adjudication case was registered as Case No. 160 of 1956. Written statements were filed by the petitioner as well as by the Vice President of the aforesaid trade union. In the written statement the trade union described itself as the Kanpur Mechanical and Technical Workers Union on behalf of Sri Ram Shankar Gupta. No written statement was filed by Sri Gupta himself, nor on behalf of the workers of the petitioner's concern.

6. During the proceedings Sri Ram Shankar Gupta was examined and in his statement he admitted, inter alia, that he was engaged temporarily for specific periods and he had agreed to such temporary engagement.

7. On 23-4-57 the Additional Regional Conciliation Officer gave his award directing reinstatement of Ram Shankar Gupta with immediate effect and with continuity of service; the intervening period being treated as leave without wages. This award was enforced by Government Notification No. 2891 (TD)/XXXVI-A 34 (TD)/1956 dated July 5, 1957. Aggrieved by that award and notification of the State Government the petitioner has come to this Court and inter alia three points have been raised by the petitioner: (1) that it was not an industrial dispute, but it was only an individual dispute; (2) that the petitioner had employed Sri Gupta on a contract of temporary service for a definite period and on the expiry of that period his services terminated automatically and there was actually no termination of services and (3) that, in any event, the services on the expiry of the period could be terminated.

8. On the first ground reliance has been placed on the decision of their Lordships in Newspapers Ltd. v. State Industrial Tribunal, U. P., (S) AIR 1957 SC 532. Before this decision there was a conflict of decisions between some of the Industrial Tribunals and some Courts as to what is an Industrial dispute. But this decision to a great extent has set the controversy at rest. As I read the decision, it means that if there is a termination of services of certain employee, naturally he is aggrieved. But if his case is not taken up by any union of the workers of the company nor by any of the unions o workmen employed in similar or allied trades, then in that case, it will not be an 'Industrial dispute', but would be an 'individual dispute,' and would not be referable to an Indus- trial Tribunal. It was contended by learned counsel for the petitioner that it is only an ''industrial dispute' which can be referred under the Industrial Disputes Act to a tribunal or an adjudicator by the State Government. But if a dispute, which is not an industrial dispute has been referred, the State Government has exercised a jurisdiction not vested in it and the reference as also the award and order of enforcement of the award would all be void.

9. In the present case it was contended that the dispute had not been taken up by any union of the workers of the petitioner's company, nor was it taken up by any union of the workmen employed in similar or allied trades. The Kanpur Mechanical and Technical Workers Union, Kanpur has been registered as a trade union under the Trade Unions Act for 'Engineering', while the petitioner's concern is not an Engineering concern, but a 'Textiles' concern. For that purpose there are other unions, inter alia there is the Suti Mill Mazdoor Union, Kanpur, which has been registered for that purpose. The employee, whose services have been terminated was not a member of the. Kanpur Mechanical and Technical Workers Union on the date, when his services were terminated. By becoming a member of a union wholly different in trade after termination of services, would not give that union a right to espouse the cause of a worker whose services have been terminated and, who has been employed in another trade and at the time when his services were terminated was not a member of the union, which now wants to espouse his cause.

10. Reliance was placed by learned counsel on Clause 3 of the G.O., No. 464 (LL)/XXXVI-B. 257 (LL)-1954 dated 14-7-54, which provides for reference of disputes to Conciliation Boards. It provides that if reference is to be made on behalf of a workman, it can be made by a registered trade union of workmen, or by a federation of such trade unions, or

'Where no such union or federation exists in relation to any particular concern Or industry by representatives, not more than five in number, of the workmen employed in that concern or industry, by election in that behalf by majority of the workmen employed in the concern or industry as the case may be, at a meeting held for the purpose.'

Similar provisions of this rule had been considered by their Lordships of the Supreme Court in (S) AIR 1957 SC 532. Considering the rules and the language in which 'workman' has been defined, their Lordships have observed:

''But in order to get its true import it is necessary to view the enactment in retrospect, the reasons for enacting it, the evil ,it was to end and the objects it was to subserve. The Act has, therefore, to be viewed as a whole and its intention determined by construing all the constituent parts of the Act together and not by taking detached sections or to take one word here and another there,'

Thereafter they came to the conclusion that: 'So construed the provisions of the U. P. Acc show that the machinery of the Act has been deviated with the object of maintenance of industrial peace so as to prevent interference with public safety or public order or with the maintenance of supplied and services essential to the life of the community or of employment. The Act is based on the necessity of achieving collective amity between labour and capital by means of conciliation, mediation, and adjudication. The object of the Act is the prevention of industrial strife, strikes and lockouts and the promotion o industrial peace and not to take the place of the ordinary tribunals of the law for the enforcement of contracts between an employer and an individual workman. Thus viewed the provisions of the Act lead to the conclusion that its applicability to an individual dispute as opposed to dispute involving a group of workmen is excluded unless it acquires the general characteristic of an industrial dispute viz., the workmen as a body or a considerable section of them make common cause with the individual workman and thus create conditions contemplated by Section 3 of the U.P. Act, which is the foundation of the State Governmental action under that Act. The other provisions which follow that section only sub-serve the carrying out of the objects of the Act specified therein.'

The view that by Clause 4 or Clause 17 of the aforesaid notification an individual could be represented by an entirely different union was ruled out. By a reading of these rules, there can be no foundation for sustaining the argument that an individual dispute was within the definition of an industrial dispute.

11. In that case also the matter had been taken up by the U.P. Working Journalists Union, Lucknow with which the worker had no connection whatsoever and the matter was not taken up by any union of workers of the appellant company nor by any of the employees of similar or allied trade, and their Lordships held that the dispute was not between 'the employer and his workmen' and the Government when it was referring the dispute was labouring under a misapprehension that the dispute was between the employer on the one hand and his workmen on the other, which, in fact it was not. In that case the employee could not be termed workmen (in the plural) nor could the 'U.P. Working Journalists Union be called 'his workmen' nor is this any indication that the dispute had got transformed into an industrial dispute. Taking this view they upset the award which had been affirmed by the Labour Tribunal, and upheld by a learned single Judge of this Court in writ petition and by a division Bench of this Court in appeal.

12. The preamble of the Industrial Disputes Act is clear. It is to provide for power to prevent strikes and lock-outs, and for the settlement of industrial disputes and other incidental matters.

If the services of an employee are terminated and there is no apprehension of any strike or lock-out in that concern then the machinery o the Industrial Disputes Act does not come into operation. It is only when the services are terminated and that creates resentment in the majority of the workmen that there would be a danger of strike or lock-out or of violence and there would be a necessity to bring the machinery of Industrial Disputes Act into operation. But if, on the termination of the services of an employee, or on any other ground, one or two workmen, out of hundreds of workmen, are dissatisfied, that does not in my opinion create ah industrial dispute. If the Legislature wanted to refer any individual dispute to the tribunal tot adjudication as an industrial dispute, they would not have used the word 'industrial'. The use of the word 'industrial' clearly shows that the dispute is not one of an individual, but arises in the industry itself.

13. In the present case, so far as Sri Gupta is concerned, he, as has already been mentioned, was not a member of the union, which had espoused his cause, on the date when his services were terminated. The union, which had espoused his cause was not of the same trade and industry, but was an entirely different industry. Taking up causes, by other industries, or by unions of other concerns, is likely to create more trouble and disturb the peace and tranquillity of the industry concerned. Taking the present case: out of 1700 workmen in the petitioner's concern, there is not a single one, who appears to be dissatisfied. The Kanpur Mechanical and Technical Workers Union by espousing the cause of Sri Gupta would be creating trouble in the petitioner's concern. Therefore, that particular cause should be espoused by the union of the concern itself of which the employee Is a member or, if there is no union of the concern but there is a general union of that! trade of which the employee is a member, then by that union, but it should not be allowed, to be espoused by a wholly foreign trade union. This individual dispute could not be converted into an Industrial dispute. Therefore, when the State Government had referred this case as an industrial dispute, it was labouring under a misapprehension that it was an industrial dispute which should be referred and it acted without jurisdiction.

14. For the purpose of the second point, reliance has been placed by learned counsel on a single judge decision of this Court in J. K. Cotton ., Kanpur v. J. N. Tewari AIR 1959 All 639, In that case also certain workmen were employed temporarily for a certain period. After the expiry of the period their services were terminated and the matter was referred to Industrial Tribunal, which gave an award in favour of the employees and directed that they be re-employed. Against that a writ petition was filed in this Court and this Court allowed the Writ petition holding that it was not open to the adjudicator to go behind the agreement entered into between the parties.

15. It was contended on behalf of Sri Gupta that that agreement, which had been entered into was not a voluntary agreement. It was on account of the force of circumstances, that he was compelled to enter into that agreement. He being poor, had no option but to accept the temporary appointment and, therefore, that agreement was under Influence, coercion or fraud. In my opinion; if a person is forced by circumstances to enter intoan agreement, it cannot be said that there wasany under influence exercised by the employer orany fraud had been committed by him. The agreement would be void if the employer had doneanything which would have smacked of neithercoercion, intimidation or fraud. But if the employeeknowing full well that he was being employedtemporarily, accepted the employment, he may himself be defrauding, but so far as the employer isconcerned, his action cannot be questioned. Thelearned single Judge in the 1959 case has heldthat:

'Standing orders lay down general conditions ofemployment. A written agreement may contain special terms of service. In the case of a conflict between general conditions of employment contained inthe Standing Orders and special terms contained ina written contract, the terms of the special contractwill prevail.' The result is that the employment in the presentcase was of a temporary character as specified inAnnexure A of the petition. Apart from this, fact,as it appears, from the record, during the shortperiod of two years' service Sri Ram ShankarGupta had several times received notices for notbeing discharging his duties properly. If that wasso, and if he was temporarily employed, it cannotbe said that the employers were actuated with anymala fides or had taken that action to victimise theemployee. If there is solemn agreement enteredinto between the parties, unless it can be challenged on any legal grounds that agreement shouldbe enforced.

16. It is true that the powers of these Industrial Tribunals are more extensive and they may, in certain instances, extend the existing agreement or create a new one or may add new obligations or modify in certain circumstances. 'All the same, wide as their powers are, these Tribunals are not absolute, and there are limitations to the ambit of their authority.' J. K. Iron and Steel Co. Ltd., Kanpur v. Labour Appellate Tribunal of India, Calcutta, (S) AIR 1956 SC 231 at p. 235.

17. In Rohtas. Industries Ltd. v. Brijnandan Pandey, (S) AIR 1957 SC 1, about agreement their Lordships of the Supreme Court had observed:

'But an industrial tribunal cannot ignore altogether an existing agreement and their existing obligations without any rhyme or reason whatsoever.' Thus it may be that in certain circumstances, for good and substantial reasons a certain agreement may be modified by Industrial Tribunals, which probably ordinarily they would not be entitled to do but if there are no reasons given, a solemn agreement entered into between the parties will always stand. In the present case, no reason has been shown as to why there should be any modification of this temporary employment into a permanent one. Under the circumstances, I think the Adjudicator had gone beyond his jurisdiction in modifying the agreement and in directing restoration or reinstatement of Sri R. S. Gupta and making him permanent for all time, when be was only temporarily employed for different periods.

18. It had been contended that when the matter has been treated as an industrial dispute by the State Government, this Court should not interferewith that discretion. I am not going to dwell onthis point at length, because, in similar circumstances, in the case of (S) AIR 1957 SC 532, the awardwas set aside in spite of the fact that it had beenaffirmed not only by Labour Tribunals, but also bytwo decisions of the High Court. I, therefore, holdthat the State Government had no jurisdiction torefer this individual dispute to the Adjudicator foradjudication, and the order of reference of the StateGovernment dated 18-9-56, the award dated 23-4-1957 and the order of the State Government dated5-7-57 enforcing the award, are bad in law and arehereby quashed. (19) The petitioner is entitled to his costs ofthis petition from the respondents which I assessat Rs. 100.


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