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Joseph Niranjan Kumar Pradhan Vs. Presiding Officer, Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in42(1976)CLT439; (1977)ILLJ36Ori
AppellantJoseph Niranjan Kumar Pradhan
RespondentPresiding Officer, Industrial Tribunal and ors.
Cases ReferredLtd v. T.B. Kadam A.I.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........the cervices of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out. or, such discharge, dismissal, retrenchment or termination shall be deemed so be an industrial dipute not withstanding that no other workman nor any union of workmen is a party to the dispute.interpreting the definition of 'industrial dispute' as quoted above, courts have unanimously taken the view that a dispute between an individual employee and his employer was not an industrial dispute unless the cause was espoused by the other workmen of the establishment, and it became a collective dispute. in use case of budge-budge municipality v. sri p.r. mukerjee, 4 f.j.r. 431 the supreme court observed,the words 'industrial dispute' convey the meaning to.....
Judgment:

R.N. Misra, J.

1. Petitioner is the proprietor of a ousiness concern known as Joseph Watch Company. Opposite wile party No. 2 was previously working under the State Government and wrier superannuation undertook employment, under the petitioner. On account of incapacity related to old age and chronic allment, petitioner's services were terminated on 4lh of July. 1973, on payment of a month's salary in lieu of notice. Thereafter opposite party No. 2 lodged a claim before the District Labour Officer, Cuttack, that he was entitled to gratuity under the Orissa Shops & Commercial Establishments Act and the petitioner had not paid the same at the time of terminating the service. Ultimately a reference was made by the State Government to the Industrial Tribunal and the following disputes were referred :

(1) Whether Sri B.C. Das (opposite party No. 2) who was under the employment of M/s. Joseph Watch Company (petitioner) is an employee within the meaning or Section 2(6) of the Orissa Shops & Commercial Establishments Act? and

(2) Whether he is entitled to gratuity under Section 21 of the said Act or under any other law for the time being in force?

2. Before the Tribunal, the petitioner raised a preliminary objection regarding maintainability of the industrial dispute on the ground that the dispute was not covered by Section 2A of the Industrial Disputes Act, 1947 (hereinafter referred to as the ('Act') and as such the Tribunal had no jurisdiction to adjudicate upon the reference. The Tribunal overruled the preliminary objection end held that there was a valid reference made to it and fixed the matter for bearing. This decision of the Tribunal is assailed before us by a petition for a writ of certiorari.

3. 'Industrial dispute' has been defined in Section 2(k) of the Act to mean:..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.

Under the scheme of the Act, reference of disputes by the appropriate Government to Board, Court or Tribunal according to the provisions of 'Chapter III is contemplated and Section 2A was inserted into the Act 35 of 1965 and provides:

Where any employer discharges, dismisses, retrenches or otherwise terminates the Cervices of an Individual workman, any dispute or difference between that workman and his employer connected with, or arising out. or, such discharge, dismissal, retrenchment or termination shall be deemed so be an industrial dipute not withstanding that no other workman nor any union of workmen is a party to the dispute.

Interpreting the definition of 'industrial dispute' as quoted above, Courts have unanimously taken the view that a dispute between an individual employee and his employer was not an industrial dispute unless the cause was espoused by the other workmen of the establishment, and it became a collective dispute. In use case of Budge-Budge Municipality v. Sri P.R. Mukerjee, 4 F.J.R. 431 the supreme Court observed,

The words 'industrial dispute' convey the meaning to the ordinary man that me dispute must be such as would afrect large group of workmen avid employers ranged on opposite side on sumo general question on which each group is bound together by a community of interests - such as wages, bonuses, allowances, pensions, provident fund, number of working hours per week, holidays and so on. Even wan reference to a business that is carried on, we would hardly thins or saying that there is an industrial dispute where the employer is dismissed by the employer and the dismissal is questioned as wrongful. But at the same time, having regard to the modern condition of society where capital and labour have organised themselves into groups for the purpose fighting their disputes and sealing them on the basis of the theory that in union is strength. and collective brag in-ing has come to stay, a single employee's , might develop into an Industrial dispute, when, as often happens, it H taken up by the trade union of which he is a member and there is a concerted demand by the employers for redress. Such trouble may arise in a single establishment or a factory. It may well arise also in such a manner as to cover the industry as a whole in a case where the grievance, it any, passes from the region of individual complaint into a general complaint on behalf of all the workers in the industry. Such widespread extension of labour unrest is not a rare phenomenon but is of frequent occurrence. In such a case, even an individual dispute in a particular business becomes a large scale industrial dispute, which Government cannot afford to ignore as minor trouble to be settled between the particular employer and workman.

In view of this statement of the law, Insertion of Section 2A became necessary.

4. The question raised before us by the petitioner is that demand for gratuity is not connected with discharge, dismissal, retrenchment or termination otherwise of service and, therefore, the disputes which have been referred by the State Government to the Tribunal do not come within the ambit of Section 2A. of the Act. As we find, the ambit of Section 2A is not limited to bara discharge, dismissal, retrenchment or termination otherwise of service of an individual workman, but any dispute or difference between the workman and his employer 'connected with' or ''arising out of' discharge. dismissal, retrenchment or termination is to be deemed as an industrial dispute. We have, therefore, to consider whether the claim for gratuity is connected with or arises out of discharge, dismissal, retrenchment or termination of service.

5. The meaning of the phrase 'connected with' came to be examined by the Federal Court in the case of Rex v. Basudeva,. AIR 1950 F C. 67. The vires of the U.P. Prevention of Black Marketing (Temporary Powers) Act of 1947 was assauled on the ground that that statute was ultra vires the provincial Legislature and reliance was paced on Entry I in List II of Schedule VII. That Entry relied among other things to 'preventive detention for reasons connected with the maintenance of public order.' The Court held:

The learned Advocate-General urged that habitual black-marketing in essential commodities was bound sooner or iater to cause a dislocation of the machinery of controlled distribution which, in turn, might lead 10 breaches of the peace and that, therefore, detention with a view to prevent such black-marketing was covered by the entry. It is true that black-marketing in essential commodities may at times lead to a disturbance of public order, hut so may, for example, the rash driving or an automobile or the sale of adulterated food stuffs. Activities such as these are so remote in the chain of relation to the maintenance of public order that preventive detention on account of them cannot, in our opinion, fail within the purview of Entry I of List II. Preventive detention is a serious invasion or personal liberty, and the power to make laws with respect to it is, in the case of Provincial Legislatures, strictly limited by the condition that such detention must be for reasons connected with the maintenance of public order. The connection contemplated must, in our view, be real and proximate not far-fetched or problematical.

Relying on these observations of the Federal Court, counsel for the petitioner maintains that the claim of gratulty is not connected with the four types of termination of service indicated in Section 2A of the Act. On the ratio of this decision, petitioner contention cannot succeed. 'Black Marketing' does not stand the same relationship with 'maintenance of public order' as 'gratulty' would stand to 'termination of service.

6. Reliance WHS also placed on a decision of the Supreme Court in the case of Mackinnon Mackenzie & Co. v. I.M. Iassk [1970-I L.L.J. 6] for the meaning of the phrase 'arising of' of'. A tiling is said to arise out of another when there is a close nexus between the two and one thing flow; out of another as a consequence. The workman has claimed that ho becomes entitled to gratuity under the Orissa Shops & Commercial Establishments Act and that right flows to him out of termination of service. Whether he could be entitled to it is not for us to decide at this stage. That is a matter for the Tribunal to determine on examining the merits of the dispute. It is difficult for us to hold in agreement with the submission of petitioner's counsel that the claim of gratuity cannot said to arise out of termination.

7. Several other cases were cited by Mr. Das for the petitioner including two decisions of the Supreme Court in the case of Chemicals & Fibres of India v. D.G. Bhoir, : 1975CriLJ1732 and in the case of Ruston & Hornsby (1) Ltd v. T.B. Kadam A.I.R 1975 S.C. 2028. We are of the view that these decisions do not throw any light on the points in issue and, therefore, reference to them is unnecessary. On the facts of the case, it is difficult to hold in conclusive manner that the claim for gratuity is not connected with or does not arise out of termination of service. According we cannot sustain the preliminary objection.

8. The pillion must, accordingly fall. We, make no direction for costs.

N.K.J. Das, J.

9. agree


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