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Narayana Pillai [Indian Express Office, (Branch) Trivandrum] Vs. Industrial Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1959)IILLJ182Ker
AppellantNarayana Pillai [Indian Express Office, (Branch) Trivandrum]
Respondentindustrial Tribunal and anr.
Cases ReferredPunjab and Sind Bank v. Rameshwar Dayal A.I.R.
Excerpt:
- - and the tribunal having cleared that aspect there can in my opinion be nothing to complain about. it is enough if it relates to the terms of employment or the conditions of labour, comprising the case here of a dismissal for no good reason and without settling account. i therefore overrule the last point as well......the initial appointment of thankappan pillai was made by mr. c. narayana pillai as manager of the branch office at trivandrum though subject to a formal confirmation by the head office. thankappan pillai looked to the branch office alone for his salary. the direction and control as regards the day-to-day work of thankappan pillai were again in the hands of mr. c. narayana pillai. if so, there is nothing wrong in holding the branch office to be the employer and making them sole party herein. as held in dhrangadhra chemical works, ltd. v. state of saurashtra and ors. 1957-i l.l.j. 477:the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the.....
Judgment:
ORDER

N. Varadaraja Ayyangar, J.

1. This is a petition under Article 226 of the Constitution. It arises out of an award, dated 19 August 1957 and passed by respondent 1, the Industrial Tribunal, Alleppey, in I.D. No. 44 of I956. The award concerns the alleged wrongful dismissal of P. Thankappan Pillai, peon cum distributor attached to the petitioner establishment, the Indian Express Office (Branch), Trivandrum, represented by Mr. C. Narayana Pillai. Thankappan Pillai was a member of respondent 2 union, the Newspaper Agents and Distributors Association, Trivandrum, and so the initiative had been taken by them in getting the dispute referred for adjudication by the tribunal. By the award filed as Ex. P, dated 19 August 1957 and published in the Kerala Gazette dated 3 September 1957, the tribunal found that the dismissal of Thankappan Pillai was not justified and granted him relief, by way of compensation in lump sum of Rs. 500 and also the admitted arrears of pay due to him amounting to Rs. 23-12-0. Hence this petition and the prayer is for grant of certiorari or other writ quashing Ex. P. award.

2. Mr. Kalathil Velayudhan Nair appearing for the petitioner pressed before me three of the points taken before the tribunal below and overruled by it, as follows:

(i) That the real employer of Thankappan Pillai was the head office at Madras and the proceedings taken against the Trivandrum branch as here was unauthorized.

(ii) That the dispute between Thankappan Pillai and the management was at all relevant times only in the nature of an individual dispute in respect of which a reference under Section 10(1)(c) of the Industrial Disputes Act was not permissible, and

(iii) that the award was misconceived in that a prior enquiry into the whole matter at the instance of the head office at Madras had already properly found that Thankappan Pillai was guilty of misappropriation and so liable to dismissal.

3. Taking up the first point as to defect of party. Learned Counsel said that the determination as to who was the employer must turn on who paid the salary and so the head office at Madras who met the salary bill of Thankappan Pillai must alone be taken to be the employer and therefore the proper party to the proceedings before the tribunal. And he referred to the definition of workman in Section 2(s) of the Industrial Disputes Act indicating employment for 'hire and reward' and the absence of any clue in the definition of 'employer' in Section 2(g) of the Act, except in the case of the Government, Central or State and local authorities. But this argument ignores the ordinary rule of master and servant and further prefers the ultimate to the proximate. The initial appointment of Thankappan Pillai was made by Mr. C. Narayana Pillai as manager of the branch office at Trivandrum though subject to a formal confirmation by the head office. Thankappan Pillai looked to the branch office alone for his salary. The direction and control as regards the day-to-day work of Thankappan Pillai were again in the hands of Mr. C. Narayana Pillai. If so, there is nothing wrong in holding the branch office to be the employer and making them sole party herein. As held in Dhrangadhra Chemical Works, Ltd. v. State of Saurashtra and Ors. 1957-I L.L.J. 477:

The prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p. 23 in Mersey Docks and Harbour Board v. Coggins & Briffith (Liverpool), Ltd. (1947) 1 A.C. 1 at 23 (E)-The proper test is whether or not the hirer had authority to control the manner of execution of the act in question.

This aspect of control and direction is seen reflected in the definitions of employer in correlated enactment, the Travancore-Cochin Shops and Establishments Act IX of 1125:

2(5) 'employer' means a person owing, or having charge of, the business of an establishment and includes the manager, agent or other person acting in the general management or control of an establishment.

and 'establishment' was defined in Section 2(g) so as to include commercial establishment. In any event the branch office at Trivandrum can sufficiently represent the head office at Madras with reference to the proceedings herein, in the light of the provisions in Bxpln. II to Section 20, Civil Procedure Code:

Explanation II- A corporation shall be deemed to carry on business at its sole or principal office in (India) or, in respect of any cause of action arising at any place where it has also a subordinate office at such place.

Indeed the point as raised before the tribunal was not so much whether the branch or head office should have figured as party but that Mr. C. Narayana Pillai was impleaded only in his personal capacity. And the tribunal having cleared that aspect there can in my opinion be nothing to complain about. The first point therefore fails.

4. On the second point as to individual dispute and lack of jurisdiction in consequence : learned Counsel says that the dispute between Thankappan Pillai and the management was an individual one both when it originated and even after it was sponsored by respondent 2 union and so could not be the subject of a proper reference for adjudication under Section 10(1)(c) of the Industrial Disputes Act. Reference was made in this connexion to Sri Rama Vilas Service, Ltd. (Rumbakonam Branch) v. State of Madras and Ors. 1956-I L.L.J. 498 and the Punjab and Sind Bank v. Rameshwar Dayal A.I.R. 1958 Punj. 4. The Rama Vilas Service case 1956-I L.L.J. 498 no doubt holds that the validity of a reference under Section 10(1)(c) of the Act can be canvassed if the factual existence of an industrial dispute as defined by Section 2(k) of the Act cannot be established and further for a dispute to become an industrial dispute within the meaning of Section 2(k) there must be something more than an individual dispute between the employer and the worker. That is to say, there must be a collective dispute, i.e., a dispute between the employer on the one hand and the entire establishment or a part of the establishment on the other. It may also be conceded, as held in Punjab and Sind Bank case next cited, that the dispute remains an individual one even if there is a plurality of workmen involved. But the former case is still authority for saying that a dispute which in its origin might be an individual dispute may at a later stage develop into a collective dispute. And for this purpose it need not necessarily be a case of victimization of an individual worker as in the example given in that case and as learned counsel would contend.

It is enough if it relates to the terms of employment or the conditions of labour, comprising the case here of a dismissal for no good reason and without settling account. The tribunal below met the objection by saying that Thankappan Pillai was not shown to be the only member of respondent 2 union working in the petitioner branch office and again that collective bargaining has come to stay. It cannot be said that there reasons are unsatisfactory. After all it would appear that this point was not even seriously pressed at stage of argument before the tribunal. I hold accordingly that the second point also has no substance.

5. Coming to the last question as to misconception by the tribunal below: learned counsel was unable to point out any specific instance of the type. It would appear on the other hand that Thankappan Pillai was not given any opportunity to show cause before his dismissal from service on 12 September 1954 and not even a written order terminating his service was given to him. As pithily put by the tribunal in Ex. P, no chargesheet was framed, no explanation was obtained and no enquiry conducted. As to the enquiry conducted by Mr. Viswanathan of the head office, there was no record filed except the explanation submitted by Thankappan Pillai to him. But from the terms of the explanation themselves, the tribunal was able to find that the charges which he was called on to explain were different from the charges which were set up before the tribunal. Learned counsel says that the Madras office did not co-operate in the enquiry herein. It may be so, but it is their fault. I therefore overrule the last point as well.

6. It is not contended before me that the compensation awarded to the worker was any way undeserved or excessive. The result is that there is no substance in the original petition herein. It is therefore dismissed with costs. Counsel's fee Rs. 100.


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