Avadh Behari Rohatgi, J.
(1) Hindustan Lever Limited is an Indian based company. They are a large manufacturing concern. Their Delhi office is concerned only with sales and marketing. There was a labour dispute in Delhi office.
(2) On September 29, 1966, in exercise of the powers conferred by s. IO(D(d) and 12(f) of the Industrial Disputes Act (the Act) the Administrator of Delhi referred the following disputes between the management and the workmen to the Additional Industrial Tribunal: 1. Whether the Management should fill in all the 10 vacancies which have arisen in the clerical staff of the Delhi office from the year 1962 onwards and what directions are necessary in this respect 2. Whether the practice of employing labour on contract/ casual and temporary basis should be stopped and what directions are necessary in this respect
(3) The Tribunal entered upon the reference. At the very outset the Management raised a preliminary objection. They said that inasmuch as the above mentioned reference was not 'connected with the employment or non-employment or with the terms of employment or with the conditions of la,bour of any person' the reference was not competent. It was not covered by the definition of the term 'industrial dispute' as defined in s. 2(k) of. the Act. The order of reference is had and outside the jurisdiction of the Tribunal. This was their main argument.
(4) The Tribunal raised the following preliminary issue :
'ISthe matter covered by the term of Reference No. 1 not an industrial dispute ?'
(5) By order dated November 20, 1967, the Tribunal held that B reference No. 1 raised an industrial dispute. It decided the preliminary issue in favor of the workmen. It overruled the contention of the management. The management brought this petition on December 15, 1967, for certiorari to quash the decision of the Industrial Tribunal.
(6) Shortly stated the dispute between the management and the labour is this. During the period from 1962 to 1966 ten posts fell vacant in the clerical staff of Delhi office. These vacancies were caused either by reason of death, resignation or retirement of the incumbent of the post. The management did not fill in these vacancies. They did not make fresh appointments. The workmen claim that the management should fill in these vacancies as these were permanent posts. It is said that failure of the management to make fresh appointments to these posts has led to unfair labour practice of reducing the permanent staff which has resulted in the (i) wholly unjustified intensification of workload, (ii) abnormal increase in overtime and (iii) employment of casual/temporary workmen for doing the work of a perennial nature.
(7) The management denies that they are liable to appoint persons to posts which have fallen vacant by reason of death, resignation and retirement. Their defense is that the management has got the right to reorganize their work in the manner it pleases. It is said that the number of posts in the Delhi office have not been fixed either by settlement or award and thereforee the labour has no right to insist upon the appointment of ten persons.
(8) The question for determination is this. Whether the dispute arising out of the non-filling of certain vacancies resulting from death. retirement or resignation of its employees is an industrial dispute. S. 2(k) defines an industrial dispute as : 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 ;'
(9) Now the case of the management is that this dispute does not fall within the four corners of this definition. It is said that the word 'any person' in the definition must receive a restricted meaning and will not include within its range those nameless persons who are at present unknown and non-existing. It is this principal question which falls for determination in this case.
(10) The definition of 'industrial dispute' in s. 2(k) requires three things: (1) there should be a dispute or difference ; (2) that the dispute or difference should be between employers and employers, or between employers and workmen, or between workmen and workmen, (3) that the dispute or difference must be connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
(11) The first part thus refers to the factum of a real and substantial dispute; the second part to the parties of the dispute and the third to the subject-matter of the dispute.
(12) It appears that there is a dispute between the parties. A dispute exists whenever a 'difference' exists; and a difference can exist long before the parties c,an become locked in combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparring for an opening : See Beetham v. Trinidad Cement Ltd., (1960) A.C. 132. It is also not in dispute that there are two parties to the dispute, management on the one hand and the labour on the other. Now the question, remains: Is the dispute or difference 'connected with the employment or nonemployment or the terms of employment or with the conditions of labour of any person' In other words, is the subject-matter of the dispute such that it does not fall within the terms of the statute In a word, what is the meaning of the words 'any person' as used in this clause
(13) In Workmen of Dimakuchi Tea, Estate v. The Management of Dimakuchi Tea Estate, : (1958)ILLJ500SC this aspect was considered and it was held that the words 'any person' used in s. 2(k) would not justify the workmen of a particular employer to raise a dispute about any one in the world, that the word 'any person' in the clause may not be equated with the word 'any workman'. As S. K. Das J. tersely put it :
'..... .The expression 'any person' occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world.'
First of all, the subject-matter of dispute must relate to (i) employment or non-employment or (ii) terms of employment or conditions of labour of any person; these neces- sarily import a limitation in the sense that a person in respect of whom the employer-employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workmen.'
(14) The test thereforee to be applied in determining the scope of the word 'any person' in s. 2(k) was stated by S. K. Das J. in these words:
'IF,therefore, the dispute is a collective dispute, the party raising the dispute must have either a direct interest in the subject matter of dispute or a substantial interest therein in the sense that the class to which the aggrieved party belongs is substantially affected thereby. It is the community of interest of the class as a whole class of employers or class of workmen which furnishes the real nexus between the dispute and the parties to the dispute. We see no insuperable difficulty in the practical application of this test. In a case where the party to the dispute is composed of aggrieved workmen themselves and the subject matter of dispute relates to them or any of them, they clearly ha,ve a direct interest in the dispute. Wherever, however, the party to the dispute also composed of workmen, espouse the cause of another person whose em- ployment, or non-employment etc. may prejudicially affect their interest, the workmen have a substantial interest in the subject matter of dispute. In both such cases, the dispute is an industrial dispute.'
(15) Counsel for the workmen contends that the definition of the term 'industrial dispute' is very wide. He relies on Western India Automobile Assoc. v. Industrial Tribunal Bombay, (1949) F.C.R. 321. It is said that the words in the definition are of the widest amplitude to make the definition thoroughly comprehensive. It was urged that the workmen thereforee are entitled to espouse the cause of even those who have not been appointed to these permanent posts.
(16) I cannot subscribe to this line of reasoning. It is no doubt true tha,t the meaning should be ascertained only from the words given in the definition, but the setup and the context are also relevant for ascertaining what exactly was meant to be conveyed by the terminology employed. As S. K. Das J. pointed out :
'THEdefinition clause must be read in the context of the subject-matter and scheme of the Act, and consistently with the objects and other provisions of the Act.'
'ITseems fairly obvious to us that if the expression 'any person' is given its ordinary meaning, then the definition clause will be so wide as to become inconsistent not merely with the objects and other provisions of the Act, but also with the other parts of that very clause.'
The absurd results that will follow such an interpretation have been forcefully expressed by Chagia Cj in Narendra Kumar Sen and others ''v. All-India Industrial Disputes, : (1953)IILLJ6Bom :
'IF'any person' were to be read as an expression without any limitation and qualification whatsoever, then we must not put even any territorial restriction on that expression. In other words, it would be open to the workmen not only to raise a dispute with regard to the terms of employment of persons employed in the same industry as themselves, not only to raise a dispute with regard to the terms of employment in corresponding or similar industries, not only a dispute with regard to the terms of employment of people employed in our country, but the terms of Employment of any workman or any labour anywhere in the world. The proposition has only to be stated in order to make one realize how entirely untenable it is.'
(17) The decision in Narendra Kumar Sen and others' case, supra was approved by the majority in Dimakuchi Tea Estate case (supra).
(18) So we are on the meaning of the words 'any person' as used in the definition. In order to find out whether the subject-matter of the dispute is such as falls within the third condition of the definition the test to be applied is of community of interest. The answer to the question whether the workmen who espouse the qa,use of others have sufficient interest in the dispute so as to bring it within the ambit of the definition will depend on the facts and circumstances of each case. Hidayatullah J. has said :
'WHATdirect interest suffices is a question of fact, but it must be a, real and positive interest and not a fanciful or remote.'
(19) In my opinion the workmen have no vested right in these ten posts. They cannot compel the management to fill them up if they do not want to. The management can reorganize their work or rationalise it in such a manner that they cap do with a lesser number of persons than before. In fact this is the answer of the management to the demand of the workmen. They say that after reorganization of the work they find that it is not economical or convenient to fill up these posts. It should clearly be noted that the management has not retrenched any workman. That could have been a genuine grievance of the workmen if it had been done. Posts have fallen vacant by reason of retirement, resignation or death. If by reason of non-filling of the above ten posts the conditions of labour are adversely affected they can legitimately raise disputes. They can complain of load work, over-time or of any other unfair practice by the management such as employment of temporary labour, if such is the effect of non-filling of ten posts. In that case (a) intensification of work load, (b) increase in over-time and (e) employment of casual or temporary labour for doing the work of a perennial nature, can form specific disputes. In these disputes no one can say that the labour has no direct interest. But interest in filling up of vacancies is fnciful or remote'. 'This is in no sense direct. The whole dispute raised is rather abstract in nature. It is academic and amorphous. It is not a concrete question which the Tribunal has been called upon to answer. The Act does not profess to give relief in cases such as this. If there are evil effects or ramifications of the management's refusal to fill the ten vacancies the workmen can have legitimate grievance and can ask the Tribunal to give relief to them. In fact reference No. 2 distinctly sets out one particular grievance of this nature to the adjudication of which no exception can legitimately be taken.
(20) Suppose I am wrong in this view. There is yet another answer to the argument of the workmen. In a catena of decisions the Supreme Court has recognised the right of the management to conduct their business in the manner they think best. A person must be considered free to so arrange his business. As was said in Workmen of S.T. Estate v. S.T. Estate, : (1964)ILLJ333SC :
'IT is undoubtedly true that it is for management to decide the strength of its labour force, for the number of work- men required to carry out efficiently the work involved in the industrial undertaking of any employer must always be left to be determined by the management in its discretion, and so, occasions may arise when the number of employees may exceed the reasonable and legitimate needs of the undertaking.'
See also M/s. Parry and Co. Ltd. v. P.C. Pal : (1970)IILLJ429SC . (7) See also Ghatge & Patil Concerns Employees' Union v. G. & P. (Transports) (Private) Ltd., : (1968)ILLJ566SC . (8)
(21) If a reorgainized scheme has been adopted by the employer for reasons of economy and convenience the fact that its implementation would lead to the discharge of some of the employees would have no material bearing on the question as to whether the reorganisat ion scheme was adopted by the employer bona fide or not- The resulting discharge and retrenchment would have to be considered as an inevitable, though very unfortunate, consequence of reorganized scheme, which the .employer, acting bona fide, was entitled to adopt : See D. Macropollo & Co. v. Their Employees' Union and another, : (1958)IILLJ492SC .
(22) The case of Hindustan Lever Ltd. is much stronger than Macropollo's case, supra. They have not retrenched any workman though they have reorganized their business. If they do not want to fill up the vacancies caused by death, retirement or resignation it may as well be that they do not need the services of more men. The workmen cannot contend with any justification that. those vacant posts must be filled. This is a managerial prerogative to fill or not to fill those posts. The workmen cannot raise an industrial dispute on that score.
(23) The views expressed by the court in the Dimakuchi Tea Estate case were confirmed in two other c^ses, namely, Workmen of Dalimgeapara Tea Estate v. Dalimgeapara Tea Esate : (1958)IILLJ498SC and Key's Construction Co. v. Its workmen (1958) Ii Llj 660. It seems to me that the moment it is suggested that there is a principle of collective bargaining involved in cases of industrial disputes, it assumes that the bargain is for something objective and not for something which does not exist or ceased to exist. Can there be a dispute between an employer and a person who merely desires to get employed under the former or a person who has been promised employment ; in other words, between an employer and a would be workman
(24) There is yet another reason. The Act uses the term 'any person'. It does not use the term 'any post'. The workmen are fighting for posts. They claim that these posts which once existed must continue to exist for all times to come. This will unduly fetter the managerial discretion. The workmen cannot fight a battle for those non-existent persons who may or may not be appointed by the management to these vacant posts.
(25) The Tribunal relied on the Standard Vacuum Co. v. Its workmen : (1960)IILLJ238SC for its conclusion that reference No. 1 is an industrial dispute. That was a decision of different hue. I do not think that case has any application here. In that case the workmen made a demand for abolition of the contract system and for absorbing the workmen employed through the contractors into the regular service of the company. The management said that this was not an industrial dispute. The Tribunal as well as the Supreme Court held that the reference was competent and that the contract system should be abolished by the company. Contract labour was declared to be an unfair labour practice because the intention was to introduce a middle man to avoid conservance of laws and to deny to labour the advantages labour had acquired by bargaining or as a result of awards. Such is hardly the case here. The present case is thereforee not analogous to the case of contract labour where employment of labour through a contractor or middle man put the labour at a disadvantage in collective bargaining and thus robbed labour of one its most powerful weapons in its armoury. In fact the objection of the workmen with regard to contract labour forms a distinct subject-matter of reference No. 2.
(26) Counsel for the workmen argued that the reduction in labour force or depletion of the strength of existing workmen is bound to affect adversely collective bargaining which is an essential feature of modern trade union movement and is necessarily-involved in industrial adjudication. This in turn, he said, will prejudicially affect the rights of workmen as a class. He referred me to the decision of the High Court of Austria in George Hudson Limited v. The Australian Timber Workers' Union, 32 CLR 413. Speaking of the nature of an industrial dispute as distinguished from an individual dispute Issac J. said :
'THEconcept looked entirely beyond the individuals who are actually fighting the battle. It is ^ battle by the claimants, not for themselves alone and not as against the Respondents alone, but by the Claimants so far as they represent their class.'
(27) It is true that the workmen are entitled to fight for the class which they represent. But again the question is : Is there a community of interest or in other words direct or substantial interest in this 16 HCD/76 9 case I have not been able to find any direct interest or any nexus between the workmen and the ten posts which fell vacant under the management.
(28) The conflict between capital and labour is inherent in an industrial society and thereforee in the labour relationship. Conflicts of interest are inevitable in all societies. There are rules for their adjustment, there can be no rules for their elimination.
(29) In law we do not deal with speculations and abstractions. In Narendra Kumar's case (supra) Shah J. said :
'THEexpression 'dispute or difference', as I will presently show from the scheme of the Act, is not intended to include mere metaphysical or philosophical controversies between employers and workmen or between employers themselves or between workmen and workmen. The expression ' 'dispute or difference' as used in the Act must , in my view mean a controversy which is fairly definite and of real substance and being connected with the employment or non-employment or the terms of employment or with the conditions of labour is one in which the contesting parties are directly and substantially interested. If that connotation is adopted then in my view it would exc lude all theoretical, metaphysical or philosophical controversies. It would also exclude mere ideological contests or differences, and would bring within the definition only those disputes in which the contestants are seeking to raise definite disputes of substance in which both the parties are themselves directly and substantially interested.'
(30) It would appear that the dispute raised in this case is an ideological one. -It was said on behalf of the workmen that an industrial disp ute can be raised on behalf of the workmen who may not be in exist ence at that time. I was referred to Indian Cable Co. v. Its workmen Ii : (1962)ILLJ409SC and Kays Construction Company (P) Ltd. v. Its workmen (1958) Ii Llj 660 in this connexion. I am afraid I cannot agree. It is true that collective bargaining has come to stay. True it is that union is strength. Labour has the right to bargain collectively. But an abstract dispute cannot be raised. It must be concrete enough to yield readily to a solution. It is obvious from the terms of s. 15 of the Act that what the Tribunal is authorised to decide and adjudicate upon is an industrial dispute. What is an industrial dispute is defined in s. 2(k). Thus the question has to be decided on the definition given in the Act. The working men as an economic force may A feel strongly for those persons who ought to have been appointed in vacant posts, they may even be oppressed by a sense of injustice or injury, but these are all considerations foreign to the object of the Act. It is only primarily in their own employment, in their own terms of employment, in their own conditions of labour that workmen arc interested and it is with regard to these that they are entitled to agitate by means of raising an industrial dispute and getting it referred to a Tribunal by Government under s. 10. (See Narendra Kumar's case supra).
(31) The term 'workman' is defined in s. 2(s) of the Act. But the reference to the subject-matter of the dispute is, by contrast, more precise : viz., 'which is connected with the employment or non-employment, or the terms of employment or with the .conditions of labour, of any person.' Those words show an intention to prescribe with same degree of accuracy the matter to which the dispute must pertain if it is to come within the definition of 'industrial dispute. But if the dispute is indefinite and vague it might disqualify itself as an industrial dispute 'by reason of its own extravagance.' (See J. T. Stratford & Son Ltd. v. Lindley, (1965) Ac 269. Such I think is the case here. It will not be unjust to call it an extravagant claim.
(32) Now in this case the workmen as an organized labour are fighting for persons who are non-existent. Where are these persons And where are the principles in the Act which seek to resolve conflicts of this nature
(33) The 'when' and the 'where' of the work must on principle be decided by management. It is the responsibility of the management to plan, direct and organize an enterprise. Whether the supply of labour is ample it is for the management to decide. It can increase or reduce the labour force. An element of co-ordination, it is true, can be infused into the employment relationship. But however strong the clement of coordination, a residuum of command power will and must remain. That is where the management comes in. To manage means to command.
(34) I am glad to find that a division bench of the Bombay High Court in Bombay Port and Dock Employees' Union v. Meher (M.R.) and another : (1965)IILLJ687Bom has taken the same view as I have taken here. In that case a demand was made by the workmen upon the company to create certain posts and to allocate a number of workmen to each of such post. They asked for the reorganization of the whole' of the company. They also asked the company to increase the welding plants. These demands, it was held, did not raise industrial disputes. Patel J. speaking for the court said :
'ITmust be remembered that an industry has to be run not only with a view to benefit the workmen but with a view to promote general interests of the entire community. Considerations', thereforee, of economy and efficient management come in. thereforee, it is for the management to decide as to how each section or department or the industry should be organized; and while doing so, the management is bound in the interests of the industry itself to consider what would be the most economical way of managing its affairs.'
(35) The demand here is no different. In the affidavit of the workmen it was said: ......................WHATis being asked for is not that the Company should increase its labour force but that the Company should not reduce its labour force by not filling in permanent vacancies.'
(36) This is a distinction without a difference. The workmen cannot ask the management to reorganize the company. That was the view of the division bench in the Bombay case. Nor can in my opinion the workmen raise any objection if the management reorganizes or rationalises its work in such a manner that it can do without filling the posts of ten persons who ceased to work in the company by reason of retirement, death or resignation.
(37) For these reasons I would uphold the preliminary objection and decide the issue in favor of the management. I would accordingly quash the order of the Tribunal dated November 20. 1967 and hold that reference No. 1 incompetent and ultra virus the powers of the Industrial Tribunal. In the circumstances there will be no order as to costs.