Chandrasekhara Menon, J.
1. Certain interesting questions in Industrial law have arisen for consideration in this writ petition.
2. The management of a Joint Stock Company which has got its registered office in Madhya Pradesh, but which has got a Rayon Grade Pulp Plant and Paper Mill in Mavoor in Kazhikode District of Kerala State, challenges in this petition the legality and validity of the award of the Labour Court, Kozhikode in Industrial Dispute No. 12 of 1976 before that Court. The dispute which was between the petitioner and their workmen represented by the Gwalior Rayon Pulp Factory Employees' Union, Mavoor was referred to the Labour Court by the Government of Kerala as per their proceedings dated 9-10-1967. The dispute referred was as regards the termination of services of six employees of the company-1. Kannan Menon, 2. Kunhiraman, 3. Viswanathan Nair, 4. Ramachandran Nair, 5. Man Singh and 6. Kunhiraman Nambiar.
3. The petitioner-company had acquired with the previous permission of the Government 30,000 acres of private forests, for the purpose of meeting the raw material requirements of the Rayon Grade Pulp Factory. In granting permission for such acquisition, one of the conditions imposed by the Government was that the forests were to be developed into an eucalyptus plantation in accordance with a time-bound programme which was scheduled to the approved working plan. The petitioner had organised its labour force for the protection of its acquired forest area from poachers and smugglers and also for plantation of eucalyptus trees in different areas after clear felling the areas. A field office, for this purpose was established at Nilambur under the control of an officer designated as Chief Administrative Officer, Amongst the employees appointed in consequence, one Sri M. Kannan Menon was one of the Assistant Protection Officers, Sri P. Kunhiraman and Sri M. K. Viswanathan Nair were Assistant Supervisors (Protection) and M/s. P. Ramachandran, Man Singh and P. Kunhiraman Nambiar were watchmen. Their duty was to protect an area called 'Kootil Para' from smugglers and poachers and to detect any illicit fellings in the said area. They had to submit weekly diaries of their activities in discharge of their duty.
4. The termination of services of these employees (the persons who are named above) on 15-4-1967 had given rise to the Industrial Dispute. According to the petitioner it is the gross negligence of these employees that resulted in 102 valuable logs of timber of various species being illicitly cut from the areas concerned. These included most valuable species of rosewood. These logs were detected as stacked by the side of the lorry-track to be removed beyond the limits of the forest.
5. The Factory Employees' Union sponsored the case of termination of the employment of these six individuals as an Industrial Dispute which was referred for adjudication by the Government. The Labour Court, Kozhikode, before which the matter came up for adjudication after taking evidence in the matter and hearing the counsel on both sides set aside the action taken by the Management in terminating the services of the six persons. Before the award was passed the plantation area had been taken over by the Government and consequently all the officers of the company who were serving in the area were given the amounts due to them and were sent out as per a settlement between the management and the employees in the plantation area. This settlement had been produced before the Labour Court. In the light of this settlement the Labour Court said that the persons whose services were terminated cannot be reinstated but directed that these persons will be given their full back-wages and other benefits as well as also the benefits which employees in equivalent or similar positions got as per the settlement. Two of the dismissed employees had died before the award-Sri M. Kannan Menon and Man Singh. As regards the Labour Court stated that if they died before the date of settlement referred to earlier, they will be entitled to get full back-wages upto the date of their death and whatever amounts they have to get as per the rules of the company on their death. If their death was after the date of settlement, they were also to get the entire benefits as regards back-wages, etc., like the other employees.
6. It is this award which is marked as ExtP1 in this proceedings that is impugned in this writ petition. According to the petitioner-company the award is violative of the law relating to the powers of management in regard to punishment of an employee on the basis of admission or confession by the delinquents of their guilt which might be of very serious nature. It is the further case of the petitioner that the findings of the Tribunal are unsupported by evidence. The findings are characterised as perverse. Petitioner further contends that the award of compensation in lieu of reinstatement directed to be given as regards the two deceased employees is totally against law. No provision of the Industrial Disputes Act, according to the petitioner allows the survival of cause of action in respect of the deceased workmen, whose death had occurred before the award was passed. The petitioner, therefore, prays for quashing the award Ext.P1 and for necessary consequential reliefs.
7. The workmen of the concern represented by the Gwalior Rayon Pulp Factory Employees' Union is the second respondent in the O.P., the first and third respondents being the Labour Court ,Kozhikode and the State of Kerala. In a counter-affidavit filed on behalf of the second respondent by one of the workmen whose termination of services had been set aside by the impugned award, the relevant findings of the Labour Court are pointedly referred to. They are :
(i) before terminating the services of the workmen, no enquiry had been held ;
(ii) before the Labour Court also, the charge of negligence was not established by adducing acceptable evidence; and
(iii) consequently the terminations were liable to be set aside. According to this counter-affidavit there is no error of law or of jurisdiction vitiating the award meriting interference by this Court under Article 226 of the Constitution. It is the union's case that there is no truth in the management's case that the six workmen had admitted negligence or had given confessional statements. It is stated that in the pleadings before the Labour Court the management's case was that the employees were dismissed after enquiry but at the argument stage a plea based on confession/admission was also raised. The Labour Court examined the plea and rejected it. The second respondent pleads that the question whether statements furnished by the workmen amounted to admission of guilt or not is a question of fact. In any event, it depends on the construction of the statements concerned. The Labour Court has refused to construe them in the manner canvassed by the management. However, the second respondent submits this will not merit interference by this Court. As regards the death of the two employees, it is contended that this fact was submitted by the management at the time of argument, but their death will not divest the Labour Court of its jurisdiction to proceed with the dispute and award monetary relief even in respect of them. The determination of the amount could be left for decision in execution proceedings under Section 33C(2) of the Act. The second respondent further contends that in the absence of any enquiry proceeding the termination it was for the Labour Court to decide whether the workers were guilty of negligence. If the Labour Court has rejected the management's case on reasonable inferences on the facts in evidence, there could be no question of interference by this Court.
8. Mr. K. P. Kesava Menon, learned Counsel for the management putforth forcibly the plea that the Labour Court erred in law in finding that the termination of the services of the employees were illegal for the reason that the management did not hold an enquiry in the matter, because the employees concerned had admitted their guilt in the matter. In the light of the alleged admission, Mr. Kesava Menon, contends no question of adducing any evidence before the Labour Court also arises. The alleged admission is based on the statement given by the six employees to the management where they state : ' Today, 2nd Feb. 1967, we were shown between 10-30 a.m. and 12 O'clock by Mr. Ramakrishnan Padia and Poojari 102 logs of Irul, R. wood, Evodia (Kambili), Ayani, Maruthu, etc., and 18 sawn pieces of Irul as per the list attached, which we have also signed at Kodilpara on either side of the Pantalur foot-path very close to the Marutha Coup site. The logs are kept in lots ready for transport. We were also shown the drag path and lorry tracks. We are responsible for the protection, but we do not know how these fellings took place and how close. Two were also seized from the area. ' (This statement which is signed by all the employees is marked as Ext. P2 in this proceedings and was marked as Ext. E11 before the Labour Court). Reliance is also placed by Mr. Kesava Menon on the statement given by one of the employees, late Sri Kannan Menon which was marked as Ext.ES before the Labour Court where he had stated that he did not know how the fellings and removal had taken place and under the circumstances he can only plead that it may be due to a neglect of duty on his side. The management's contention is that once negligence is admitted, either expressly or impliedly by the delinquents, the Labour Court ought to have found that the concerned individuals merited the punishment imposed. Once the employees' duty is not performed, and the non-performance of duty had resulted in loss to the employer such non-performance tantamounts to gross negligence. This contention which was raised before the Labour Court was met by that Court in the following manner :
Then we can come to the other documents produced by the management. In none of them I find confession of any guilt. In Ext. E3, the Assistant Protection Officer, viz., Sri Kannan Menon who gave that statement says very clearly that he does not know how this took place. After saying as much he says finally as the last sentence that under the circumstances he can only plead that it may be due to a neglect or duty of his side. But Ext.ES has to be read as a whole document. In the last sentence, Sri Kannan Menon, who is no more, was only making an application for pardon and, therefore, he has said that he will be constrained to plead a neglect of duty under the circumstances as he had no other go and wanted the management to pardon him. If the whole document is looked into, we cannot see any negligence admitted by Shri Kannan Menon, the Assistant Protection Officer. In Ext.E1 the explanation given by Shri Kunhiraman, there is absolutely not even a statement that some neglect of duty can be attributed to him. That applied also to the explanation given in Ext.E4 statement given by Shri Viswanathan Nair. In the other documents produced by the management also, there is absolutely no admission of any neglect by these delinquent officers. In the circumstances prevailing in this forest area, it will be quite unfair to jump to the conclusion simply because some trees were cut and timber was stacked for transportation by some miscreants the delinquent officers here were negligent in performing their duty. When there was about 10,000 acres for them to protect and they were only six in number if such a thing has happened in one place of a forest area, we can find fault with these officers only if it is proved by clear positive evidence that such an incident happened only due to gross negligence on the side of these officers. Even if the persons engaged in protection work are doing their duty correctly such incident may take place some time. Lawbreakers will be there in the society and simply because something against the law has taken place, we cannot jump to the conclusion that the persons who were employed to look after the maintenance of law were negligent in their duties. Therefore, the charge of the management now that these officers connived with smugglers is not at all true. There is also nothing to substantiate in the management's case with the six persons mentioned in the case was negligent and, therefore, only the incident mentioned by the management took place. So, if we go to the merits of the case also there is absolutely nothing to sustain the charge made out by the management. Therefore, the order of termination made by the management has to be set aside.
It might be noted that for the purpose of admission of guilt by the employees mainly the management relied on the statement of Kannan Menon.
9. In support of his contention, Mr. Kesava Menon, placed reliance on the decisions reported in, 1. 1965-I L.L.J. 628, 2. 1954-I L.L.J. 732, and 3. 1959-I L.L.J. 637. The contention in short is that once a specific duty, is assigned violation or non-performance of such duty on any given day would be such as to merit the infliction of punishment by way of termination of service. I have absolutely no difficulty in agreeing with the plea put forth by Sri Kesava Menon in broad terms that where circumstances are such as to draw an inference that the delinquents had a specific duty during the relevant days and due to non-performance of their duty, miscreants gained entry in the area where delinquents had their duty to be performed and that they committed theft of property of their employers, it has to be presumed that the delinquent employees were negligent. But it will have to be established in positive terms that there was non-performance of their duty by the employees. The question in this case is has that been established either by the alleged admission of the employees or by definite evidence before the Labour Court, admittedly no enquiry having been conducted by the management themselves.
10. In respect of the alleged admission by the employees concerned the main material that was stressed before the Labour Court was the statement of Sri Kannan Menon which had been marked as Ext. E3. Apart from the fact that the said statement will not in any way bind the other employees, as far as the maker of that statement itself is concerned, the Labour Court has said that if the whole document is looked into, one cannot find any negligence admitted. The Court says that therein Sri Kannan Menon had said clearly that he did not know how the felling took place and the last sentence in the statement where he is constrained to plead neglect of duty in the circumstances can only be taken an expression given vent to for the purpose of the management pardoning him. This inference made by that Court cannot be characterised as an unreasonable or perverse one. It is certainly one way of looking at the matter. One cannot find any glaring mistakes in the interpretation of the statement. Exercising jurisdiction under Article 226 is not exercise of an appellate jurisdiction. Unless there is a mistake of law apparent on the face of the record this Court will not interfere with the award of the Industrial Court. The decision of such Court on a question of fact which it has jurisdiction to determine cannot be questioned in the extraordinary jurisdiction of this Court under Article 226 or 227 of the Constitution of India.
11. Nor do I find any merit in the case of the petitioner which is raised in this Court that Ext. P2 constitutes an admission of negli-gance by the employees. From the statement therein that they do not know how the fellings took place though they are responsible for the protection of the area, no positive inference of negligence much less an admission of negligence can be made. Moreover, as Sri M. P. Menon, learned Counsel for the employees union pointed out the management themselves did not take Ext.P2 as admission of guilt as will be evidenced from the show cause notice issued on 4-2-1967 two days after Ext.P2 statement was given. Also it will be interesting to note that in the statement filed by the management before the Labour Court they proceeded on the basis that they conducted an enquiry. In para 10 of the management's statement before Labour Court it is stated :
This resulted in the aforementioned show cause notice and enquiry conducted against the responsible persons who were the persons named in the list of the union.
No doubt it was subsequently admitted by the management that there was no departmental enquiry before the order terminating the service of the six persons. In these circumstances no reliance could have been placed by the Labour Court on the alleged admissions of the employees. And rightly it did not.
12. The decision relied on by the counsel for the petitioner C.B. Nappadi v. State of Mysore : 2SCR137 , is no parallel or similar case at all. In that case a police constable proceeded on leave for a month and applied for extension of leave. He got a reply of refusal. His second application for extension, of leave was also not granted. He undertook seven days' fast at a temple and informed his superior officers. Three charges were framed and served on him asking him to obtain necessary copies from the record and make arrangements for his defence. He admitted the relevant facts but denied that he was guilty. He did not cross-examine any witness or lead evidence on his behalf. He was dismissed from service. The High Court upheld the order of dismissal. On appeal to the Supreme Court the Supreme Court held that the appellant admitted all the relevant facts on which the decision could be given against him and, therefore, it cannot be stated that the enquiry was in breach of any principle of natural justice. In that case the facts were too old, that the constable had stayed beyond the sanctioned leave and that he had proceeded on a fast as a demonstration against the sanction of the authorities. These facts were admitted by him, the Court said there is no distinction between admission of facts and admission of guilt. When the constable admitted the facts he was guilty. The facts admitted here are not so easy as to lead to an admission of guilt. On the admitted facts the employees could still build a case of no negligence on their part.
13. Then the question is whether apart from the so called admission/confession of the employees referred to earlier, did any independent evidence adduced before the Labour Court which would establish the charge of negligence of the employees. There is no such evidence. As the Labour Court points out correctly the burden is upon the management to prove that the order terminating the services of the six persons is correct and the management has not discharged that burden. The sole witness examined on behalf of the management has not said anything connecting the six employees concerned with the incident. The Labour Court points out further that there is no scope for an inference from the documents produced by the management that these employees connived with the alleged smugglers in cutting and stacking the timber for transportation. The Court also points out that the enormity of the area which the employees were to look after - 10,000 acres - will show that there is some substance in their case that it was not due to their negligence the felling and removal of timber took place. Anyhow there is no necessity for me to go into further details. I have really no jurisdiction in this proceedings to examine the sufficiency or otherwise of the evidence before the Tribunal in respect of its findings. There cannot be any case here that there is no evidence at all before the Labour Court for it to come to the conclusion it has done. Nor has the said Court committed any error of jurisdiction.
14. Mr. Kesava Menon also contended that the award is too vague that it could not be implemented properly. The directions in the award for payment of benefits in lieu of reinstatement is to the effect that these persons will be given their full back-wages and other benefits as well as also the benefits which similar officers got in view of the settlement marked I as Ext. E 15 before the Labour Court. As i regards two of the employees - Sri Kantian Menon and Sri Man Singh who died before the award, according to the petitioner's counsel the Labour Court had erred in law to have ordered compensation in lieu of reinstatement on the same terms and to the same extent as as was ordered to be paid to living employees on the date of the award. According to him there is no provision either in Section 18(3) or in Section 33(1) of the Industrial Disputes Act for compensation of monetary benefits due to a workman who died before the date of the award or settlement as both the provisions contemplate benefits alive on the date of the award or settlement. It is also contended that two of the six delinquents were only by I probationers on the date of termination of their service and the Labour Court has gone wrong in having awarded compensation to them as though they were permanent workmen. Probationers are entitled only to a consolidated salary while permanent workmen are entitled to be paid D.A. calculated on the basis of cost of living index as per published cost of living.
15. In regard to tie vagueness of the award and the difficulty that might be there is regard to fixation or quantification of the benefits due to the employees as per the award, as pointed out rightly by Sri M. P. Menon, learned Counsel for the 2nd respondent. Section 33C(2) is the answer, which reads
33C(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.
In regard to the claim by a workman for compensation of benefits in terms of money, Section 33C(2) applies even if the right to benefit is disputed by the employer. The Labour Court has jurisdiction to determine whether workman has right to receive benefit. For that purpose Labour Court can interfere with an award or settlement on which workman's right is based in the same manner as the executing Court can interpret the decree for purposes of execution - see Central Bank of India v. Rajagopalan : (1963)IILLJ89SC . Gajendragadkar, J. as he then was, again pointed out in Bombay Gas Co., Ltd. v. Gopal Bhiva : (1963)IILLJ608SC , that the proceedings contemplated by Section 33C(2) are in many cases analogous to execution proceedings, and the Labour Court which is called upon to compute in terms of the money the benefits claimed by an industrial employee, is in such cases in the position of an executing Court; like the executing Court in execution proceedings governed by the Code of Civil Procedure, the Labour Court under Section 33C(2) would be competent to interpret the award on which the claim is based. The Court went further and said that it would also be open to it to consider the plea that the award sought to be enforced is a nullity. But then as it is well-settled that the executing Court cannot go behind the decree, nor can it add to or substract from the provisions of the decree, these limitations will apply to the Labour Court acting under Section 33C(2). In discharging its functions of executing orders or awards it must accept them as they stand-see the observations of Gajendragadkar, J. in1963-II L.L.J. 89 at p. 96]. And in regard to a deceased employee, I have no hesitation in accepting the contention of the Employees' Union that the heir of a deceased workman can apply under Section 33C(2), though unlike in Section 33C(1), the words 'assignee or heir' is not expressly used there. I would here point out the decisions, Sitabari Namara Pirjari v. Auto Engineers 1972-I L.L.J. 290 and Jhania Fire Bricks and Pottery Works (P) Ltd. v. Bhingonate Sarma 1977-II L.L.J. 306. As the Bombay High Court said in the first of these case civil rights of every kind vested in a deceased person in all cases in that connection except those which are not capable of surviving after his death survives to his heris.
16. As to Mr. Kesava Menon's conention that the award has gone beyond the scope of the conditions of service and that benefits which could only be given to permanent workers have been given to probationers, etc., I need only point out to the well-established principle, that the jurisdiction of the Industrial Court or the Labour Court under the Industrial Disputes Act is not confined to the administration of justice according to law. The Tribunal can confer rights and privileges on either party which it considers reasonable, and prefer, though they may not be within the terms of an existing agreement. It has not merely to interpret and give effect to the contractual rights and obligations between the employer and the employees which it considers essential for keeping industrial peace but its jurisdiction is much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress. (A number of decisions of the Federal Court of India and Supreme Court of India on the above principle are cited in the footnotes at page 184 of Malhotra's Law of Industrial Disputes.).
17. The Federal Court of India in Western Mia Automobile Association v. Industrial Tribunal 1949- L.L.J. 245 at p. 256 and the Supreme Court of India in Rohtas Industries Ltd, v. Brijnandan Pandey 1956-11 L.L.J. 444 at p. 449, and in Nirmala Textile Finishing Mills Ltd. v. Second Punjab Industrial Tribunal 1957-1 L.L.J. 460 at p.469, have quoted with approval the following words of Ludwig Teller in ' Labour Disputes and collective Bargaining' :
Industrial arbitration may involve the extension of an existing agreement, or the making of a new one or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concern itself with interpretation of existing obligations and disputes relating to existing agreements.
Again as Justice S.K. Das put it in the case |1956-II L. L. J. 444] (cited supra) :
A Court of law proceeds on the footing that no power exists in the Courts to make contracts for people ; and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimization.
Therefore, there is no merits in the contention that the award has gone beyond the scope of the conditions of service.
18. Now I come to an important question raised in this writ petition as to whether in respect of the two deceased employees-that is the personnel who though alive at the time of reference had died before the award was passed - the Labour Court had any jurisdiction at all to give benefits in lieu of reinstatement. It is contended by Mr. Kesava Menon that the Employees Union had ceased to represent them with their death. Under the Trade Union Act it is said, the union would be an agent of an employee only as long as he is alive. According to Mr. Kesava Menon, where a workman has been wrongfully dismissed and his claim for reinstatement has given rise to an industrial dispute which has been referred to a Labour Court or Tribunal, the death of the workman during the pendency of the adjudication proceeding puts an end to the Industrial Dispute for the reason that he can no longer be reinstated. No doubt there may be cases where the case of the workman concerned may not wholly put an end of the Industrial Dispute, that is in cases where the decision on the question raised in the dispute may affect the other workmen. In the context Mr. K. P. K. Menon laid considerable stress on the fact that under Section 18(3) of the Industrial Disputes Act while an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on the heirs, successors or assigns of an employer in respect of the establishment to which the dispute relates, as regards employees, it shall be binding only on all persons who were employed in the establishment on the date of the dispute and all persons who subsequently become employed in that establishment or part. It is also urged that under the definition of the term ' industrial Dispute ' under Clause (k) of Section 2 of the Industrial Disputes Act, such dispute should be any dispute or difference between 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. It is urged that the use of the present tense ' is ' in the definition of the term is significant and indicates the continuing character of the industrial dispute. A dispute which is in the past was an industrial dispute cannot be a dispute which is connected with... so as to fall within the ambit of the industrial dispute as defined in the Act.
19. In Mazdoor Union Sugar Factory, Biswan v. Saksena Biswan Sugar Factory Ltd., (1952) Lab A.C. 2941 it had been held that a workman who is a party to the dispute, though he is entitled to be represented in any proceeding under the Act by an officer of a registered trade union of which he is a member, it is manifest that the right of the union to represent the case of its member last only as long as he continues to be a member. No such representation can possibly exist after the death of the member-workman.
20. Following the above case it was held in Rahat Hossain v. M/s. Sipton Ltd., Calcutta, (1954) Lab. A.C. 90, that the case of a workman can be taken up by other workmen but the letter can continue to represent the former only so long as he is alive. The dispute centering round him ceases to be an industrial dispute after his death, so the heirs of Gholam Mohiuddin (the deceased workman) drop out of the picture.' The contentions of Mr. Kesava Menon is also to a great extent supported by many of the observations in the judgment of the Patna High Court in Bihar Working Journalists' Union v. H. K. Cham-dhunni : AIR1968Pat135 .
21. In the above case the dispute referred to an Industrial Tribunal was whether the claims of three Sub-Editors of Indian Nation and Aryavarta that they are entitled to pay and emoluments as per a certain Central Government order are justified and if so from what date and what relief. While the adjudication proceedings were pending one of the Sub-Editors died and the Tribunal held that it had no jurisdiction to adjudicate the claim on his Behlf. This matter was taken up in a writ petition before the Patna High Court by the Bihar Working Journalists' Union. The High Court said:
It is impossible to imagine that the petitioner-union was interested in securing to the heirs of Sri Abhiram Jha any extra money by way of emoluments which, according to it, Sri Abhiram Jha was entitled to. In other words, the union had or has no concern with the monetary claim of the heirs or legal representatives of the deceased. The latter could pursue their own remedy before a competent court according to law. But the petitioner-union could not insist upon adjudication of the dispute centering round Sri Abhiram Jha before the Industrial Tribunal, In this view, I am inclined to think that the petitioner-union has also no locus standi to maintain the present application under Article 226 of the Constitution.
The Court also said that it is manifest that the petitioner-union could not have acted before the Tribunal on behalf of the heirs of the deceased Sub-Editor. The union could act on behalf of its members, but not on behalf of their heirs or legal representatives. The Court further added at p.518 :
The broad proposition laid down by the Tribunal in the present case that it has no further jurisdiction to adjudicate upon the claim put forward on behalf of Sri Abhiram Jha is not quite correct. The Tribunal has assumed that the dispute involved in the claim put forward on behalf of Sri Abhiram Jha was entirely his personal dispute. But as I have pointed out, the successor-in-office of Sri Abhiram Jha is or would be no less interested in the adjudication of that dispute.
The question still remains whether that would justify our interference with the decision of the Tribunal. The answer to this question would have been in the affirmative if there were materials on the record to show that the successor-in--office of Sri Abhiram Jha could be represented before the Tribunal by the petitioner-union. But there is no such material on the record, and we cannot assume that the successor-in-office of Sri Abhiram Jha must have been a member of the petitioner-union, and not of any rival union. No claim appears to have been made before the Tribunal on behalf of the petitioner-union that it was competent to represent the successor-in-office of Sri Abhiram Jha before the Tribunal. In these circumstances, the Tribunal was amply justified in declining to adjudicate upon the claim put forward before it on behalf of Sri Abhiram Jha.
22. Mr. Kesava Menon relied also on the decision of the Assam High Court in Management of Tocklai Experiment Station, Cinnatnara v. State of Assam A.I.R. 1960 Assam 132. The facts of the case were : A motor driver in the employment of the petitioner in that case was dismissed from his job by the order of the management dated 12-12-1957 and was given one month's salary in lieu of the notice. The cause of the dismissed driver was taken up by the union of the workmen who moved the State Government for reference and a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 was made by gazette notification dated 25-6-1958. The dismissed workman died on 20-5-1958 before the reference was made. After getting notice about the reference, the management raised an objection as to the competence and continuance of the reference on the ground that the workman whose dismissal and reinstatement were the subject-matters of the dispute, had already died and the reference had become infructuous. They further contended that the reference by the State Government itself was void and bad in law. The union of the workmen contested that even though the workman was dead, the reference was valid and it continued to exist in spite of the death of the workman because it was now the industrial dispute that had to be decided and not the cause of any individual workman. The Labour Court framed two preliminary issues on the point: (1) Whether the reference is void, without jurisdiction and ultra vires of the provisions of the Industrial Disputes Act, and (2) whether there can be a substitution of the legal heirs of the deceased workman and the union can proceed with the matter. The Labour Court disposed these two preliminary issues in favour of the union and against the management. The questions were taken up to the High Court by the management under Articles 226 and 227 of the Constitution. The majority opinion of the High Court was (Sarjoo Prasad, C.J., and Deka, J.) that
(1) applying the test that the dispute should be one capable of settlement or adjudication by one party giving necessary relief to the other, in this case there is no scope of giving relief to the workman who is dead-and, therefore, any settlement on that basis is out of the question. This limitation itself would indicate that the workman did not come within the definition of 'any person' whose case the workmen were competent to espouse.
(2) that the second limitation is also there, the workers' union not being in a position to have a direct or substantial interest in the employment or non-employment of one who is dead.
(3) that it was the community of interest of the class as a whole-class of employees or class of workmen - which furnishes the real nexus between the dispute and the parties to the dispute and it was the absence of this nexus in the case that took the dispute out of the category of industrial dispute as defined under the Act.
(4) the cause of the dead man cannot be taken up by the workmen's union and even if they had an interest in the employment or non-employment of the workman, it ceased along with his death.
(5) that in the case of an employer his antecedent liability would survive the closure of his business - but in the case of an employee his claim to reinstatement expires along with his death and it no longer remains a dispute capable of settlement or adjudication. Therefore, a reference of such a dispute goes beyond the purview of the Industrial Disputes Act. Justice Deka said that a Labour Court is neither interested in nor meant for giving decisions on mere academic points. Its purpose is to adjudicate a point in dispute with a view to give specific direction for redress of grievances and advice relief, though the relief may not be given by the Labour Court itself. It is not that its purpose is not to give relief. Deka, J., also placed reliance on the Supreme Court decision in Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate A.I.R. 1958 S.C. 358, where the Court had said, ' 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.' According to Deka, J., with the death of the workman concerned, there is absence of nexus which takes the dispute out of the category of industrial dispute as defined in the Act.
23. I find it difficult to agree with this contention raised on behalf of the Management and the general reasoning behind the Patna and Assam decisions referred to above. I feel there is a lack of understanding in the reasoning of these decisions about the exact scope and nature of an industrial adjudication. The scope of adjudication by a Tribunal under the Industrial Disputes Act is much wider than determination of the legal rights of the parties involved or redressing the grievances of an aggrieved workman in accordance with law. As Gajendragadkar, J., points out in Cawnpur Tannery Ltd., v. Guha 1961-II L.L.J. 110 at p. 112, the adjudication by the Industrial Tribunal under the Industrial Disputes Act is only an alternative form of settlement. Industrial Disputes on a fair and just basis. The primary duty of the Industrial Tribunal is to establish peace in the industry between employer and workmen. Any unfair active by the management even against an individual worker might cast its shadow on the general body of workers who might get perturbed by such action, A resolution of the dispute might then become necessary for industrial peace notwithstanding the death of the workman concerned pending proceeding. The personal relief to the workman concerned to a certain extent occupies a subsidiary place in the scheme of things, Not that it is not important. It is only a consequential result of the decision primarily arrived at securing industrial peace settling the apprehension of the workmen without losing sight of the interest of the industry. As Rajamannar, C.J., stated in Sree Meenakshi Mills Ltd. v. State of Madras 1952-II L.L.J. 326-DB, the essential object of enacting the Industrial Disputes Act is to provide recourse to a given form of procedure for the settlement of disputes in the interest of maintenance of peaceful relations between the parties without apparent conflicts such are likely to interrupt production and entail other damages. In the circumstances proceedings before the Labour Court or Industrial Tribunal under the Industrial Disputes Act cannot be equated to a personal action in torts in a civil Court which would come to an end with the death of the aggrieved party to the dispute. In the general set up of an industry, in the nature of the relationship between the employer and the employees, a dispute between an employer and even an individual employee generally affect the entire community of workmen in the industry. They acquire an interest in the dispute. It ceases to be an individual dispute and becomes an industrial dispute affecting the interest of the entire body of workmen. Any decision of the Labour Court will affect the interest of the whole body of workmen and the dispute, therefore, cannot die with the death of the individual workman. Before Section 2A of the Act was introduced the Courts had said that an individual dispute should be taken up by the workmen as such before it can become an industrial dispute. Section 2A makes an individual dispute though not taken up by the collective body of workers, an industrial dispute.
24. In this connection, I might refer to a very well considered decision, if I may say so with respect, of Raman Nayar, J., as he then was, in John v. Coir Yarn Textiles Ltd. 1969-I L.L.J. 304. The question there related to the validity of proceedings before the Industrial Tribunal initiated under Section 10 of the Industrial Disputes Act without the permission of the winding up Court under Section 446 of the Companies Act, 1956. Holding that Section 446 of the Companies Act can have no application to proceedings pursuant to a reference under Section 10 of the Industrial Disputes Act, the learned Judge said (at p.309) :
The Industrial Disputes Act, needless to say, is conceived in the public interest. Its object is to ensure fair terms to workmen and to secure industrial peace, so that the company might not suffer. Although an adjudication under the Act might have the result of giving individual workmen personal rights against the property of the owner of the undertaking, be it an individual or a company, its purpose is not really that, but to settle the industrial dispute. Obviously, the purpose is something before which the personal interests of the creditors or members of the company concerned must yield just as, for example, they must before a criminal prosecution or a proceeding under Section 145 of the Criminal Procedure Code.
And at page 310 :
I might add that it seems to me extremely doubtful whether the adjudication of an industrial dispute to which a company is a party can be described as a proceeding against the company so as to attract Section 446 of the Companies Act.
25. Even in respect of ordinary judicial proceedings can it be said that the death of party to the proceedings will terminate the action in all cases. Even under the English Common Law before the Law Reform (Miscellaneous Provisions) Act, 1934 was passed to provide generally for the survival of causes of action in tort, death was considered as extinguishing liability only in respect of cause of action in tort. ' This was - Win-field says in his Law of Tort - due in part to the historical connection of the action of trespass, from which much of our law of tort is derived, with the criminal law and in part to the reference often made to the maxim ' actio personalia moritur cum persona ' which, though traceable to the fifteenth century, probably did no more originally than state in Latin a long-established principle concerning torts such as assault and battery, of which it was neither the historical cause nor the rational explanation. Actions in contract generally escaped the rule, and so too did those in which property had been appropriated by a deceased person and added to his own estate.'
26. The Supreme Court said in another context, in considering the survival of a claim for rendition of accounts, after the death of the party against whom the claim was made in Girijanandini v. Bijendra Narain : 1SCR93 :
The maxim 'actio personalia moritur cum persona ' a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory.
27. A Division Bench of the Calcutta High Court pointed out in Piriska Rozario v. Ford Foundation : AIR1969Cal394 :
The maxim 'actio personalis moritur cum persona' although an ancient English maxim and a part of the English common law, has been subjected to very severe criticism, even in England. It has been called an unjust maxim, obscure in its origin, inaccurate in its expression and uncertain in its application, and it often causes grave injustice. It is no part of our law except to the extent that it has been recognised by statutes in this country. Indeed, in a decision of this Court (vide Bhupendra Narayanan Sinha v. Chandramoni Gupta I.L.R. 53 Cal. 987 at p. 989; A.I.R. 1927 Cal. 277 at pp. 277-278, a broad view was expressed that this maxim is no part of the Indian law. Be that as it may, it is perfectly clear that, so far as any particular part of the English common law is concerned in the any statutory provision or any established law or usage in this country, recognising the same, the Courts here are entitled to invoke and apply its underlying principles, only when they are in consonance with justice, equity and good consience ; or, in other words, the claim of the English common law to govern legal relation in this countty is founded on the absence of any statutory provision, governing such relationship, and on its consonance with principles of justice, equity and good conscience. As we have already said, the maxim in question has been criticised, even in England as harsh, unconscionable and unjust. In these circumstances it cannot be applied as part of the Indian law on principles of justice, equity and good conscience. It has, however, been recognised, though only to a limited extent by our statutes (vide e.g. Section 306 of the Indian Succession Act, which is the nearest, relevant for our present purpose). To the extent, therefore, that the maxim has been recognised in the above Section 306 of the Indian Succession Act, read in the light of its other provisions, and the underlying principles, deduced from the same, it may be given effect in the case. Under the said section and its underlying principle in the light of the other parts of the statute, causes-of-action, arising in cases of personal injuries, causing the death of the injured, would survive to his executors and administrators, in cases where probate or letters of administration are necessary under the law, and to his heirs and legal representatives in other cases. We are, therefore, in agreement with the learned Tribunal below, that the original cause-of-action, to the extent, of course, that it was based on personal injuries, causing the death of the deceased, as found by the Tribunal below in the instant case did survive to the petitioners and they were entitled to be substituted in his place for continuing the said proceeding for purposes of giving effect to the same.
Section 306 of the Indian Succession Act reads as follows :
All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party ; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
28. Therefore, I see no reason why the Labour Court should cease to exercise jurisdiction in considering the question whether the termination of the services of the two employees was justified or not merely because they died during the course of the proceedings. A decision on that is certainly in the interest of the other employees. And the benefits that would be due to the deceased employees on the finding of the Labour Court can be realised on behalf of their estate by their legal heirs under Section 33C(2) of the Act. As Mr. M. P. Menon, learned Counsel for the union pointed out subsequent event like the death of a party can be taken into consideration by a Tribunal for moulding the relief to be granted - see 1962 KLT 446 at p.448 - para 9).
29. In the light of the above discussion I see no reason to interefere with the Award Ext. P1. I dismiss the original petition with costs.