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Laxman Vs. State Industrial Court and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal Nos. 1188 and 1189 of 1969
Judge
Reported inAIR1974SC844; [1974(28)FLR400]; 1974LabIC575; (1974)IILLJ78SC; 1974MhLJ500(SC); (1974)4SCC348; [1974]3SCR541; 1974(6)LC230(SC)
ActsCentral Provinces and Berar Industrial Disputes Settlement Act, 1947 - Sections 2(10), 2(12), 2(13) and 16
AppellantLaxman
RespondentState Industrial Court and ors.
Appellant Advocate S.W. Dhabe and; A.G. Ratnaparkhi, Advs
Respondent Advocate S.B. Wad and ; S.P. Nayar, Advs.
Cases Referred and Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate
Prior historyFrom the Judgment and Order dated 11th March, 1967 of the Bombay High Court (Nagpur Bench) in Special Civil Appeal Nos. 345 and 575 of 1966--
Excerpt:
.....act dismissed, discharged or retrenched employee can invoke jurisdiction of authority under act - employee dismissed, discharge or removed on account of any industrial dispute is certainly employee under section 2 (10) - held, appellant would be employee within meaning of section 2 (10) for purpose of availing himself of right under sub-section 2 of section 16 - indian evidence act, 1872 section 3: [dr.arijit pasaysat & dr.mukundakam sharma,jj] circumstantial evidence -conviction based on circumstantial evidence held, conviction is possible only if all incriminating facts and circumstances are incompatible with innocence of accused or guilt of any other person. conditions precedent for basing conviction on circumstantial evidence, re-stated section 3: circumstantial evidence held,..........unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee dismissed, discharged or removed on account of any industrial dispute ;'section 2(12)-'industrial dispute' means any dispute or different connected with an industrial matter arising between employer and employee, or between employers or employees;'section 2(13)-'industrial matter' means any matter relating to work, pay, wages, reward, hours, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment or refusal to employ and includes questions pertaining to-'(a) the relationship between employer and employees, or to the dismissal or non-employment of any person, x x x xsection 16-'(1) where the state government by notification so directs,.....
Judgment:

P. Jaganmohan Reddy, J.

1. The appellant was appointed as a motor driver in the Milk Scheme at Nagpur by the Regional Dairy development Officer on December 10, 1959 and on February 28,1962 his services were terminated by the orders of the Dairy Development Commissioner, Bombay-Respondent No. 5 After the appointment the appellant was on probation for a period of six months and since that period was not extended it is his contention that he is a permanent employee inasmuch as the standing orders which came into force on September 30, 1961 made an employee on probation permanent after completion of one year's probationary period. On March 20, 1962, the appellant filed an application before the Assistant Labour Commissioner, Nagpur, under Section 16 of the C. P. and Berar Industrial Disputes Settlement Act, 1947-hereinafter referred to as 'the Act' praying for reinstatement with back wages and continuity of employment. In that application the appellant stated that if the order of termination amount, ed to dismissal that order was void as it. was made without any inquiry and if it was an order of retrenchment it was equally bad as no notice of change was given under Section 31 of the Act. The termination was also said to be illegal as it was brought about by an authority which had not appointed him. The Assistant Labour Commissioner who heard, the petition set aside the order of termination and directed respondents 3 to 5 to reinstate the appellant with back wages and continuity of service in as much as it was held that the appellant having completed the probationary period of one year became a permanent employee. In this view, the other contentions raised by the appellant were not decided.

2. Respondents 3 to 5 filed a revision before the State Industrial Court under Section 16(5) of the Act. That Court set aside the order on August 12, 1953, and remanded the case for a fresh decision as to whether the appellant was a permanent employee and whether he was illegally retrenched. After remand the Deputy Commissioner of Labour at Nagpur after considering the evidence came to the conclusion that the appellant was not a permanent employee under the provisions of the Standing Orders. He, however, held that as the appellant was in continuous service, he had been retrenched illegally without following the provisions of Section 25F of the Industrial Disputes Act-hereinafter called 'the Central Act.' In the result respondents 3 to 5 were directed to reinstate the appellant with back wages and continuity of service. Against this order respondents 3 to 5 filed a revision application under Section 15(5) of the Act before the State Industrial Court at Nagpur. In that revision, an application was made by the respondents for amendment of the revision petition raising a plea for the first time that the appellant being a retrenched employee was not an employee' under the provisions of the Act. The State Industrial Court did not accept this plea and while setting aside the reinstatement order held that the appellant was entitled to retrenchment compensation and consequently remanded the case for determination of what that compensation should be. Against this order respondents 3 to 5 filed a petition under Article 226 and 227 of the Constitution of India. The appellant also filed a petition under Article 226 of the Constitution in the High Court for modification of the order of the State Industrial Court and for reinstatement with back wages and continuity of service along with all its privileges. Both these petitions were heard together by the Division Bench of the Bombay High Court at Nagpur. By a common judgment, the High Court allowed the application of respondents 3 to 5 holding that the appellant was not an 'employee' within the meaning of Section 2(10) of the Act as his dismissal, discharge or removal was not on account of an industrial dispute. In this view, the appellant's petition was dismissed. These two appeals are with certificate against that judgment.

3. The question which falls for consideration is whether under the Act a dismissed, discharged or retrenched employee can invoke the jurisdiction of the authority under the Act for obtaining redress, namely, whether an application for reinstatement and compensation by a dismissed employee is maintainable under Section 16 of the Act. The determination of this question would depend upon the interpretation of who the employee is for the purposes of the Act and what is meant by 'On account of any industrial dispute' in Section 2(10) read with Section 2(12) & (13). These provisions, as also Section 16, insofar as material, are given below:

Section 2(10)-'employee' means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee dismissed, discharged or removed on account of any industrial dispute ;'

Section 2(12)-'industrial dispute' means any dispute or different connected with an industrial matter arising between employer and employee, or between employers or employees;'

Section 2(13)-'industrial matter' means any matter relating to work, pay, wages, reward, hours, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment or refusal to employ and includes questions pertaining to-'

(a) the relationship between employer and employees, or to the dismissal or non-employment of any person,

X X X XSection 16-'(1) Where the State Government by notification so directs, the labour Commissioner shall have power to decide an industrial dispute touching the dismissal, discharge, removal or suspension of an employee working in any industry in general or in any local area as may be specified in the notification.

(2) Any employee, working in an industry to which the notification under Sub-section (1) applied, may within six months from the date of such dismissal, discharge, removal or suspension,apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages. X X X X

Both Section 2(10) and 16 were amended by Act 21 of 1966. The former before its amendment was as follows:

Section 2(10)-'employee' means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or regard in any industry and includes an employee discharged on account of any dispute relating to a change in respect of which a notice is given under Section 31 or 32 whether before or after the discharge;

4. It may be observed that Section 2(10) before its amendment included an employee discharged on account of any dispute relating to a change in respect of which a notice was given under Section 31 or 32 of the Act. It will be seen that Section 31 dealt with the procedure to be followed by an employer desiring change in the standing orders or in respect of any industrial matter mentioned in Schedule II Section 32 dealt with the procedure to be followed by a representative of employees desiring change in the standing orders or in respect of any other industrial matter. 'One of the industrial matters referred to In item 3 of Schedule II is 'Dismissal of any employee except in accordance with law or as provided for in the standing orders settled under Section 30 of this Act'. This definition of 'employee' in Section 2(10) appears, to have been enlarged by the amendment by including an employee dismissed, discharged of removed on account of any industrial dispute and not necessarily confined only to any dispute relating to a change in respect of which notice is given under Section 31 or 32 of the Act. The High Court appears to have read the definition of 'employee' in Section 2(10) as contemplating two categories of persons (1) consisting of persons who are actually in the employment of the employer at the date of the application, and (2) of those who have ceased to be in the employment prior to the date of the application, the reason for ceasing to be an employee Being 'dismissal, discharge or removal on account of any industrial dispute'. In its view, the words of the definition did not include all ex-employees but only specified categories which have to be co-related to any industrial dispute, and as there was no industrial dispute between Laxman and the employer prior to the termination of his service, Laxman cannot be considered to be an 'employee' within the meaning of Section 2(10) of the Act. A decision of this Court in Central provinces Transport Services Ltd. Nagpur v. Raghunath Gopal Patwardhan : (1957)ILLJ27SC was referred to, but the High Court sought to distinguish it on me ground that in that case the employee had been dismissed after an inquiry which involved an industrial dispute. It then proceeded to state:

As we have already pointed out, the definition has since been amended and the reference to Section 31 and 32 has been dropped. As it now stands, the requirement of the definition is that if the applicant is not in service at the date of application he must have been dismissed, discharged or removed 'on account of any industrial dispute'. We do not think that the ratio of the decision of the Supreme Court in that case that every dismissed employee, irrespective of the reason for his dismissal, continues to be an 'employee' within the meaning of the definition in Section 2(10) of the Act so as to entitle him to approach the Labour Commissioner under Section 16(2) of the Act.

In the view of the High Court, therefore, a plain reading of the definition of the term 'employee' in Section 2(10) shows that the only category of persons who, though not in actual employment at the date of the application included within that term is of persons who are ex-employees and were dismissed, discharged or removed on account of any industrial dispute, which dispute must precede the dismissal, discharge or removal, and that their dismissal, discharge or removal must be the result of such dispute.

5. It is contended that an 'employee' having been defined as a person employed, the Legislature intended that the provisions of the Act should be availed of only by persons who were still in the employment at the time when an application was filed under the Act, and even if the employee who invokes the provisions of the Act can be considered to be a person who is dismissed, discharged or retrenched, it is not every such employee who has that right, but only those employees have the right to invoke the provisions of the Act who have been dismissed, discharged or retrenched and in respect of whom an industrial dispute is pending. In our view both these contentions are untenable. A combined reading of the definition of an 'employee' in Section 2(10) with Section 2(12) & (13) would negative the submission that those who had ceased to be in service were not intended to be included within the definition of an 'employee'. When the Legislature in defining a word or term refers to certain matters as being included therein it does so because either that word or term does not generically include what is sought to be included or that it is anxious to dispel any doubt as to what is included therein is not so included and by abundanti cautala it is specifically shown as having been included in order to repel any such contention to the contra. Under Section 16(2) an employee working in an industry to which a notification under Sub-section (1) is applied can within six months of his dismissal, discharge, removal or suspension apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages. A person who applies within six months from the date of his dismissal, discharge, removal or suspension is certainly not employed on that date and yet if the argument of the respondent is accepted he is not an employee within the meaning of Section 2(10) and hence has no right to apply under Sub-section (2) of Section 16 An employee dismissed, discharged or removed on account of any industrial dispute is certainly an employee under Section 2(10)- but what is meant by an 'industrial dispute' in this definition can be ascer tained by reference to Section 2(12) under which any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employee is an Industrial disute. No doubt it was contended in the Central Provinces Transport Services Ltd's case(1) that where a person is dismissed, discharged or retrenched, the relationship of an employer and employee is terminated and there is no longer an industrial dispute. This very contention was negative in that case for the obvious reason that the dispute or difference referred to in Section 2(12) should be connected with an industrial matter arising between an employer and an employee, which industrial matter as defined in Section 2(13) covers any matter relating o refusal to employ and includes questions pertaining to the dismissal or non-employment of any person. If so considered, since a question of reinstatement is an industrial dispute, the appellant would be an employee within the meaning of Section 2(10) of the Act for the purposes of availing himself of the right under Sub-section. (2) of Section 16. Even under a restricted definition of the word 'employee' under Section 2(10) before the amendment, this Court in the Central Provinces Transport Services Ltd's case (Supra) had held that a workman whose services had been terminated could have resort to Sub-section. (2) of Section 16 of the Act. The High Court thought that the decision is inapplicable as in that case an enquiry had been held before the employee's services were terminated which amounted to an industrial dispute, but in the instant case no such industrial dispute arose as it was a retrenchment simpliciter. We are unable to appreciate this distinction as in our view it is a distinction without a difference. The ratio in the Central Provinces Transport Services Ltd's case (Supra) is clearly applicable notwithstanding the amendment of Section 2(10) and Section 16 of the Act. After pointing out that Section 2(k) of the Central Act and Section 2(12) and 2(13) of the Act are substantially in part materia., the ratio of Western India Automobile Association v. Industrial Tribunal, Bombay [1949] F.C.R. 321 will be as much applicable to the one enactment as to the other, this Court pointed out in; the Central Provinces Transport Services Ltd's case (Supra) at pp. 961-962:

We are also unable to accede to the contention of the appellant that the inclusive clause in Section 2(10) of the Act is an indication that the legislature did not intend to include within that definition those who had ceased to be in service. In our opinion, that clause was inserted ex abundanti cautela to repel a possible contention that employees discharged under Section 31 and 32 of the Act would not fall within Section 2(10), and cannot be read as importing and intention generally to exclude dismissed employees from that definition. On the other hand, Section 16 of the Ac expressly provides for relief being granted to dismissed employees by way of reinstatement and compensation, and that provision must become useless and inoperative, if we are to adopt the construction which the appellant seeks to put on the definition of employee in Section 2(10). We must accordingly held agreeing with the decision in Western India Automobile Association v Industrial Tribunal Bombay (supra) that the definition of 'employee' in the Act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was not in employment on the date of the application.

6. This case was referred to and considered in Bennett Coleman & Co. (Private) Ltd v. Punya Priya Das Gupta. : (1969)IILLJ554SC The case was under the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955, where a newspaper employee was defined in a language similar to that used in defining an 'employee' under the Act and the Central Act. This Court took note of the amendment to the Act and even so held that both the decision in the Western India Automobile Association's case (supra) and the Central Provinces Transport Services Ltd's case (supra) were authorities for the view that an ex-employee would, for the purposes of the controversy before them, be a working journalist. The contention that Dhrangadhra Chemical Works Ltd v. State of Saurashtra and Ors. : (1957)ILLJ477SC and Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate : (1968)ILLJ500Kant took a contrary view was examined and distinguished. It was, however, observed, that even assuming that there is such a conflict as contended it was not necessary to resolve it for purpose of the problem before the court Act, the minimum wages Act,1948,the central provinces which an ex-employee is permitted to avail of the benefit those provision, the only recruitment being that claim in dispute must employment of person against whom it is made.

7. In view of what has been stated, we think the high court was in error in holding that the application of the appellant could not be entertained by the Labour Commissioner. As this was the only question decided, we allow this appeal set aside the judgment and decree of the High court remand case the to High court for disposal according to law. The appellant will have his cost in this Court, one set.


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