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New Commercial Mills Company Ltd., and anr. Vs. Industrial Court (i.G. Thakore, President), Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application Nos. 829 and 830 of 1962
Judge
Reported in(1966)0GLR1044; (1966)IILLJ791Guj
ActsIndustrial Disputes Act, 1947 - Sections 2 and 25F
AppellantNew Commercial Mills Company Ltd., and anr.
Respondentindustrial Court (i.G. Thakore, President), Gujarat and ors.
Cases ReferredLtd. v. Industrial Tribunal
Excerpt:
labour and industrial - industrial dispute - sections 2 and 25 f of industrial disputes act, 1947 and sections 66 and 78 of bombay industrial relations act, 1946 - industrial dispute connotes collective dispute between employer and workmen as body or class - such dispute may even be touching rights of individual workman provided it is taken up by workman as class or considerable section of them treat it as their own cause - disputes being admittedly individual disputes did not form subject-matter of valid submission to arbitration under section 66 - jurisdiction of labour court to entertain applications under section 78 not excluded. - - 1. these petitions raise a short but interesting question of law relating to the construction of s. 78 alleging that though they were designated as.....bhagwati, j.1. these petitions raise a short but interesting question of law relating to the construction of s. 66 of the bombay industrial relations act, 1946 (hereinafter referred to as the act). the facts giving rise to these petitions are identical and may be briefly stated as follows. the textile labour association is a representative union for the cotton textile industry in the area of ahmedabad and is registered as such under s. 14 of the act. on 22 june, 1949 a registered agreement was entered into between the textile labour association and the ahmedabad millowners' association which provided various benefits including wage-scales for clerks in the cotton textile industry. clause 5 of the registered agreement provided a separate wage-scale for those employees who occupy a position.....
Judgment:

Bhagwati, J.

1. These petitions raise a short but interesting question of law relating to the construction of S. 66 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the act). The facts giving rise to these petitions are identical and may be briefly stated as follows. The Textile Labour Association is a representative union for the cotton textile industry in the area of Ahmedabad and is registered as such under S. 14 of the Act. On 22 June, 1949 a registered agreement was entered into between the Textile Labour Association and the Ahmedabad Millowners' Association which provided various benefits including wage-scales for clerks in the cotton textile industry. Clause 5 of the registered agreement provided a separate wage-scale for those employees who occupy a position lower than that of a full-fledged clerk but higher than that of an operative and who have come to be known in the cotton textile industry as semi-clerks and that wage-scale was Rs. 40-3-70-EB-4-90-5-105. By a further agreement made between the Textile Labour Association and the Ahmedabad Millowners' Association on 5 August, 1958 the registered agreement was modified under S. 116 of the Act, but the provision made in regard to semi-clerks was left unaffected. Thereafter a further modification was made in the registered agreement by mutual consent of the parties on 2 July, 1960 in order to implement the recommendations of the wage board and this time the provision in regard to semi-clerks was modified and as a result of the modification the wage-scale of semi-clerks was revised and with a view to removing uncertainty it was laid down as to what work done by an operative should entitle him to be regarded as a semi-clerk. This last provision was added by way of modification of Clause 5 of the registered agreement and Sub-cls. (1) to (4) of the modified Clause 5 which are the only clauses material for the purpose of the present petitions were in the following terms :

'(1) An operative doing clerical work for at least one-fourth of his working time shall be considered as semi-clerk.

Note. - Clerical work means work of writing or copying or making calculations.

(2) An operative who does clerical work for more than one hour and less than one-fourth of his working time will not be treated as a semi-clerk, but will be entitled to allowance of four annas per day over and above his daily rate of wages as an operative. Such persons will not be entitled to any benefits accruing from the clerical agreement.

(3) Operative who do clerical work for less than one hour will not be treated as semi-clerks or as operatives entitled to an allowance.

(4) A joint committee consisting of a representative of the Ahmedabad Millowners' Association, Ahmedabad, and a representative of the Textile Labour Association, Ahmedabad, will decide disputes arising out of the implementation of items (1) and (2) above, and the committee's decision shall be final. The joint committee will also decide applications from semi-clerks asking for promotion to the junior grade.'

2. Two of the employees of the New Commercial Mills Company, Ltd., which is the petitioner in Petition No. 829 of 1962 thereupon filed an application in the labour court under S. 78 alleging that though they were designated as samplemen they were doing writing, calculating and other clerical work for more than two hours every day and hence they were entitled to be designated as semi-clerks and paid the wage-scale of semi-clerks according to Clause 5 of the registered agreement, but the petitioner had failed to pay the wage-scale of semi-clerks to them as required by Clause 5 of the registered agreement and thereby committed an illegal change and praying that the petitioner should be required to withdraw such illegal change. A similar application was filed by nine of the employees of the Ahmedabad Advance Mills Company, Ltd., which is the petitioner in Petition No. 830 of 1962. Several contentions of a preliminary nature were raised on behalf of the petitioners in answer to the applications, but it is not necessary to refer to them since only one contention out of them has formed the subject-matter of debate before us in these petitions and it will, therefore, be sufficient to refer only to that contention. It was urged on behalf of the petitioners that the disputes in these applications were covered by the submission contained in Sub-clause (4) of Clause 5 of the registered agreement and that the employees were, therefore, bound to go to arbitration as provided in that sub-clause to resolve those disputes and no applications in respect of those disputes could be maintained before the labour court under S. 78 of the Act. The argument was that the submission under S. 66 excluded the jurisdiction of the labour court under S. 78 in respect of the disputes covered by the submission. the answer given on behalf of the employees to this contention was that, though it might be true, that if a dispute was covered by a submission made under S. 66, the jurisdiction of the labour court to adjudicate upon the dispute under S. 78 might be ousted, this proposition could not avail the petitioners because the disputes raised in the applications were not covered by the submission contained in Sub-clause (4) of Clause 5 of the registered agreement. The ground on which this last contention was put forward was that on a true construction of S. 66 a submission could be made under that section only in respect of a collective dispute between a representative union and the employer and not in respect of an individual dispute which was not taken up by the representative union and to which the representative union was not a party and it was argued that since the dispute raised in the applications were admittedly individual disputes raised by individual employees which were not taken up by the representative union, they could not form the subject-matter of a valid submission under S. 66 and the submission contained in Sub-clause (4) of Clause 5 must, therefore, be read as inapplicable to such disputes or else to the extent to which the submission applied to such disputes it was not warranted by the provisions of S. 66 and hence could not have the effect of excluding the jurisdiction of the labour court. The labour court took the view that the objection to jurisdiction raised on behalf of the petitioners was well-founded and that in view of Sub-clause (4) of Clause 5 of the registered agreement, the labour court had no jurisdiction to deal with the applications and it accordingly dismissed the applications. The employees thereupon preferred appeals to the industrial court, one appeal in respect of each application. At the hearing of the appeals the respective contentions urged on behalf of the parties followed substantially the same lines as before the labour court and the main controversy, therefore, centered round the question as to the true meaning and connotation of the expression 'industrial dispute' in S. 66. The industrial court held on the strength of the decision of the Supreme Court in Newspapers, Ltd. v. Industrial Tribunal, Uttar Pradesh, and others [1957 - II L.L.J. 1] that the expression 'industrial dispute' as used in the Act meant only a collective dispute between workers as a class and the employer and did not include an individual dispute raised by an individual worker whose cause was not espoused by the worker as a class and since the disputes raised in the applications were admittedly individual disputes not taken up by the representative union, they were not industrial disputes and could not, therefore, be validly referred to arbitration under S. 66 and consequently the jurisdiction of the labour court to entertain and dispose of the applications was not excluded. The industrial court accordingly set aside the order of the labour court and directed the applications to be heard on merits. This decision of the industrial court is now impugned before us in the present petitions.

3. The main ground of attack against the decision of the industrial court was that the disputes raised in the applications made by the employees before the labour court were covered by the submission contained in Sub-clause (4) of Clause 5 of the registered agreement and this submission being a submission within S. 66 excluded the jurisdiction of the labour court under S. 78 in respect of these disputes. This contention was based on the premise that if there is a valid submission to arbitration under S. 66 in respect of an industrial dispute, that would oust the jurisdiction of the labour court under S. 78 in respect of such dispute. This premise, though conceded on behalf of the employees before the industrial court, was disputed before us and it was contended that the jurisdiction conferred on the labour court under S. 78 could not be ousted by a mere agreement between parties to refer the industrial dispute to arbitration and that notwithstanding such agreement, a party could exercise the statutory right conferred on him under S. 78 to move the labour court for redress. The argument was that what S. 66 provided was not a statutory arbitration but it merely authorized the parties to enter into an arbitration agreement for referring an industrial dispute to arbitration and the jurisdiction of the labour court under S. 78 was, therefore not excluded by a submission entered into between the parties pursuant to S. 66. This contention raised an interesting question of law relating to the construction of provisions of the Act but in the view we are taking of the matter it is not necessary for us to decide this contention. We will assume for the purpose of the present discussion that a valid submission to arbitration under S. 66 would exclude the jurisdiction of the labour court under S. 78 in respect of the industrial dispute covered by the submission, but the question is whether the disputes raised in the applications were covered by the submission contained in Sub-clause (4) of Clause 5 of the registered agreement and this submission constituted a valid submission to arbitration within the meaning of S. 66. The employees contended that on a plain reading of S. 66 a submission could be made under that section only in respect of an industrial dispute and industrial dispute within the meaning of that section meant a collective dispute between a representative union and the employer and not an individual dispute concerning the rights of an individual workman which was not taken up by the representative union and to which the representative union was not a party and since the disputes raised in the applications were admittedly individual disputes raised by individual employees whose cause was not espoused by the representative union or workmen as a class, they were not industrial disputes and could not form the subject-matter of a valid submission to arbitration under S. 66. This being the position, it was argued, the submission contained in Sub-Clause (4) of Clause 5 of the registered agreement must be read as inapplicable to such disputes or else the submission to the extent to which it applied to such disputes would not be a valid submission to arbitration under S. 66 and in either event the jurisdiction of the labour court to entertain the applications under S. 78 would not be ousted. The petitioners agreed that if 'industrial dispute' referred to in S. 66 meant only a collective dispute between workmen as a class and the employer and did not include an individual dispute concerning the rights of an individual workman which was not taken up by workmen as a class, the contention of the employees would be well-founded and the submission contained in Sub-clause (4) of Clause 5 of the registered agreement would not constitute a valid submission to arbitration in respect of the disputes raised in the applications so as to exclude raised in the applications so as to exclude the jurisdiction of the labour court to entertain the applications under S. 78 but, contended the petitioners, that was not the correct construction of 'industrial dispute' in S. 66. Having regard to the object and purpose of the Act and the scheme of its relevant provisions, argued the petitioners, it would be proper to interpret the expression 'industrial dispute' in S. 66 in a sense wider than what it bears in the Industrial Disputes Act, 1947, so as to cover not only disputes of workmen as a class but also their individual disputes and if that interpretation was accepted as the correct interpretation, the disputes raised in the applications though individual disputes would be 'industrial disputes' within the meaning of S. 66 and the submission contained in Sub-clause (4) of Clause 5 of the registered agreement would constitute a valid submission to arbitration in respect of those disputes ousting the jurisdiction of the labour court to decide those disputes. These were the rival contentions of the parties and it will be seen that the determination of the controversy thus hinged on the narrow question as to what is the true meaning and connotation of the expression 'industrial dispute' in S. 66.

4. Turning first to the definition clause we find that

'industrial dispute' is defined in S. 3(17) to mean 'any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any industrial matter.'

5. Considerable reliance was placed on behalf of the petitioners on this definition by reason of the use of the word 'employee' in the singular and it was contended that the use of the singular showed that an individual dispute was comprehended within the expression 'industrial dispute' as used in the Act. But this contention, though apparently plausible, has really no substance, for it rests on too literal an interpretation of the words used in the definition and ignores several other considerations which must necessarily weigh with the Court in the task of interpretation. In the first place, it must be remembered that the use of the word 'employee' in the singular has no particular significance since under S. 13 of the Bombay General clauses Act, 1904 :

'... unless there is anything repugnant in the subject or context -

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(b) words in the singular shall include the plural and vice versa.'

6. This provision excludes an argument based solely on the use of the singular or plural in any statutory provision. In Newspapers, Ltd. v. Industrial Tribunal, Uttar Pradesh, and others [1957 - II L.L.J. 1] (vide supra) a similar argument based on the use of the word 'workmen' in the plural in the definition of 'industrial dispute' in S. 2(k) of the Industrial Disputes Act. 1947, was advanced before the Supreme Court in support of the view that a dispute between an employer and a single workman was not an industrial dispute within the meaning of that statute. But the Supreme Court rejected that argument observing that the use of the word 'workmen' in the plural in the definition of 'industrial dispute' did not by itself exclude the applicability of the statute to an individual dispute, because under S. 13(2) of the General Clauses Act unless there is anything repugnant in the subject 'words in the singular shall include the plural and vice versa.' The Supreme court held that despite the use of the plural 'workmen,' the definition of 'industrial dispute' standing by itself would include an individual dispute but the provisions of the statute viewed as a whole showed that an individual dispute was not intended to be included within the connotation of 'industrial dispute.' The Supreme court pointed out that in order to get at the true import of the expression 'industrial dispute' as used in the statute :

'... it is necessary to view the enactment in retrospect, the reasons for enacting it, the evils it was to end and the objects it was to subserve. The Act has therefore to be viewed as a whole and its intention determined by construing all the constituent parts of the Act together and not by taking detached sections or to take one word here and another there. Exposition ex visceribus actus is applicable. Lincoln College case [(1595) 3 Co. Rep. 58b : 76 ER 764].'

7. There is also another decision of the Supreme Court, namely, Central Provinces Transport Services, Ltd. v. Raghunath Gopal Patwardhan [1957 - I L.L.J. 27] where we find the same approach was adopted by the Supreme Court in determining the true import of the expression 'industrial dispute' as used in the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. The question in this case was the same, namely, whether an individual dispute was covered by the expression 'industrial dispute' and the Supreme Court held that it was so covered. The Supreme Court, however, in taking this view did not place any reliance on the definition of 'industrial dispute' in S. 2(12) of the enactment which like S. 3(17) of our present Act used the word 'employee' in the singular but relied wholly on the scheme of the enactment, he objects and purposes it was intended to subserve and its relevant provisions taken as a whole. It would not, therefore, be correct to infer merely from the use of the word 'employee' in the singular in the definition of 'industrial dispute' that an individual dispute is intended to be comprised in the expression 'industrial dispute' as used in the act. We would have to determine the true import of the expression 'industrial dispute' by viewing the Act as a whole and construing the relevant provisions of the act in the light of the surrounding circumstances and the object of the Act.

8. Now, out of various considerations bearing on this question of construction, there is one which appears to us to be quite decisive of the controversy and it is that the term 'industrial dispute' has acquired a certain accepted meaning in industrial law and according to that meaning 'industrial dispute' is necessarily a dispute between workmen as a class and an employer. Where there is a dispute only between a single workman and an employer, such a dispute would not be an 'industrial dispute,' though even a single workman's case might develop into an 'industrial dispute' when, as often happens, it is taken up by the trade union of which he is a member and there is a concerted demand by the workmen for redress. The dispute in the latter case would become an industrial dispute because the cause of the single workman being espoused by the workmen as a class, the dispute would be a dispute between workmen as a class and the employer. But, so long as the dispute is an individual dispute between a single workman and the employer, the dispute would not be an 'industrial dispute' within the ordinary accepted meaning of that term. The Supreme Court had occasion to consider this question in D. N. Banerji v. P. R. Mukherjee [1953 - I L.L.J. 195], where discussing the meaning of the expression 'industrial dispute,' the Supreme Court observed that it :

'... conveys the meaning to the ordinary mind that the dispute must be such as would affect large groups of workmen and employers ranged on opposite sides ... But at the same time, having regard to the modern conditions of society where capital and labour have organized themselves into groups for the purpose of fighting their disputes and settling them on the basis of the theory that in union is strength, and collective bargaining has come to stay. A single employee's case might develop into an industrial dispute, when, as often happens, it is taken up by the trade union of which he is a member and there is a concerted demand by the employees for redress.'

9. These observations clearly suggest that an individual dispute is not comprehended within the meaning of 'industrial dispute' in its ordinary acceptation and this ordinary acceptation of 'industrial dispute' is, as pointed out by the Supreme Court in Newspapers, Ltd. v. Industrial Tribunal, Uttar Pradesh, and others [1957 - II L.L.J. 1] (vide supra), 'in consonance with the basic idea underlying modern industrial legislation.' In Australian cases also, without specific reference to any definition of the expression, the same meaning has been give to 'industrial dispute' and an individual dispute is excluded from the scope of 'industrial dispute.' Griffths, C.J., pointed out in Federated Saw Mills & Co. Employees of Australasia v. James Moore and Sea Proprietary, [(1909) 8 C.L.R. 465 at 487-488] :

'It is necessary at the outset to consider the meaning which the term 'industrial dispute' conveyed in 1900 to the minds of person conversant with English language ... The word 'industrial' ... denotes two qualities which distinguish them from ordinary private disputes between individuals, namely, ... (2) that on one side at least of the dispute the disputants are a body of men acting collectively and not individually.'

10. Isaacs, J., in George Hudson v. Australian Timber Workers' Union [(1922-23) 32 C.L.R. 413 at 441 also stated :

'The very nature of 'industrial dispute,' as distinguished from an individual dispute is to obtain new industrial conditions, not merely for the specific individuals then working ... It is a battle by the claimants not for themselves alone and not against the respondents alone, but by the claimants so far as they represent their class ...'

11. The same meaning, we find, was attached to the expression by Latham, C.J., in Metal Traders Employers' Association v. Amalgamated Engineering Union [(1935) 54 C.L.R. 387 at 403] :

'Industrial disputes are essentially groups of contests - there is always an industrial group at least on one side. A claim of an industrial employee against his employer is not itself an industrial dispute ...'

12. According to English decisions too, an individual dispute of a workman is not included in trade dispute which is the expression in England corresponding to our industrial dispute. It is therefore, clear that according to the ordinary accepted meaning of the term 'industrial dispute' it comprises only a collective dispute between workmen as a class and an employer does not include an individual dispute between a single workman and an employer unless workmen as a class have adopted such dispute as their own and chosen to treat it as their casus belli with the employer. Now this commonly accepted meaning fits in fairly and squarely with the language of the definition of 'industrial dispute' and fulfills the requirements of the definition clause. The definition must, therefore, despite the wide words in which it is framed, be construed as merely giving effect to this commonly accepted meaning and not including a meaning different from or in excess of the ordinary meaning so as to comprise an individual dispute. It is a well-established rule of interpretation recognize by the Supreme Court in Harishankar Shukla v. A. D. Divelkar [1957 - I L.L.J. 243] that where the word defined has acquired a certain commonly accepted meaning and that meaning can be fitted with the language of the definition so as to fulfill all its requirements, the definition must be read as merely giving effect to the ordinary accepted meaning in apt and readily intelligible words and not adding or including a meaning different from or in excess of the ordinary meaning. This rule proceeds on the principle that the legislature is presumed not to intend to radically depart from the commonly accepted connotation of the word defined and unless there is the clearest indication in the statute that the legislature intended the word to have a meaning different from or in excess of the ordinary accepted meaning, the definition must be held to refer only to the commonly accepted meaning. 'It is true' as observed by the Supreme Court in Harishankar Shukla case [1957 - I L.L.J. 243] (vide supra) :

'that an artificial definition may include as meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition : but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended. Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word define.'

13. The Supreme Court applied this rule in the interpretation of the word 'retrenchment' defined in S. 2(oo) of the Industrial Disputes Act, 1947, in Harishankar Shukla case [1957 - I L.L.J. 243] (vide supra) and though the definition was wide enough to cover every case of termination of service of a workman by an employment otherwise than as a punishment inflicted by way of disciplinary action, the Supreme Court held that the definition merely gave effect to the ordinary accepted connotation of the word and 'retrenchment' as defined in the definition and used in S. 25F of the Act had no wider meaning than the ordinary accepted connotation, namely, discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than as punishment inflicted by way of disciplinary action and had no application where the services of all workman were terminated by the employer on a real and bona fide closure of business. In the case before us too, the same rule must apply, for within the framework of the accepted connotation of the term 'industrial dispute' which we have discussed above, every requirement of the definition is fulfilled and the ordinary accepted meaning of the term fits in fairly and squarely with the language of the definition. The term 'industrial dispute,' as defined in S. 3(17) and as used in the Act, must, therefore, be held to have no wider meaning than the ordinary accepted connotation of the term, namely, a collective dispute between workmen as a class and the employer and it does not include an individual dispute between a single workman and the employer. This view is clearly supported by the decision of the Supreme Court in Newspapers, Ltd. v. Industrial Tribunal, Uttar Pradesh, and others [1957 - II L.L.J. 1] (vide supra) where examining the true meaning of the expression 'industrial dispute' as used in the Industrial Dispute Act, 1947, and Uttar Pradesh Industrial Disputes Act, 1947, the Supreme Court held that the said expression comprised only collective disputes between workmen as a class and the employer and did not include an individual dispute between a single workman and the employer.

14. It was, however, contended on behalf of the petitioner that there was clear indication in the Act to show that the expression 'industrial dispute' was not intended to have its commonly accepted meaning of a collective dispute but was used in a broad sense which would include even an individual dispute and the applicability of the rule of interpretation above referred to was, therefore, excluded. The petitioners pointed out that unlike the Industrial Disputes Act, 1947, the present Act contained not only provisions relating to conciliation, arbitration, adjudication and awards but also provisions intended to regulate the contract of employment between employer and workmen, a subject covered by a distinct piece of Central legislation, namely, Industrial Employment (Standing Orders) Act, 1946, and therefore, though the term 'industrial dispute' might have a restricted meaning in the Industrial Disputes Act, 1947, as held by the Supreme Court in Newspapers, Ltd. v. Industrial Tribunal, Uttar Pradesh and others [1957 - II L.L.J. 1] (vide supra) it was used in the present Act in a wider sense so as to cover not only disputes of workmen as a class but also their individual disputes. The petitioners urged that the present Act was akin to the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, and just as the expression 'industrial dispute' occurring in the latter Act was held by the Supreme Court in Central Provinces Transport Services v. Raghunath Gopal Patwardhan [1957 - I L.L.J. 27] (vide supra) to include not only collective dispute but also individual disputes, likewise that expression must be given the same wide meaning in the present Act too. Now it is no doubt true that the objects and visions of the Industrial Disputes Act, 1947, and the present Act are different. The Industrial Disputes Act, 1947, is enacted, as the preamble shows :

'to make provision for the investigation and settlement of industrial disputes and for certain other purposes,'

15. whereas the object of the present Act as set out in its preamble is

'to regulate the relations of employers and employees, to make provision for settlement of industrial disputes and to provide for certain other purposes.'

16. The present Act deals not only with investigation and settlement of industrial disputes of labour as a class which is the subject primarily dealt with by the Industrial Disputes Act, 1947, but also with regulation of relation between the employer and the workmen and the enforcement of the rights of the individual workman against the employer, a subject outside the scope of the Industrial Disputes Act, 1947. But that, in our opinion, does not warrant a departure from the commonly accepted meaning of the term 'industrial dispute' so as to include an individual dispute. If we look at the provisions of the present Act, we do not find anything in those provisions which should require us to read 'industrial disputes' in a broad sense so as to cover not only collective disputes but also individual disputes. As a matter of fact, the indication is clearly in the opposite direction. The machinery of settlement and adjudication of industrial disputes is to be found in Ss. 42 to 76A and a bare reading of these sections is sufficient to show that the term 'industrial dispute' has been used by the legislature in its commonly accepted meaning to denote a collective dispute as distinguished from an individual dispute and an individual dispute is not comprised within the term 'industrial dispute.'

17. Section 42(1) requires every employer intending to effect any change in respect of an industrial matter specified in Sch. II to give notice of such intention in the prescribed form to the representative of employees and under S. 42(2) every employee who desires a change in respect of an industrial matter not specified in Sch. I or III has to give notice in the prescribed form to the employer through the representative of employees. This last provision has been interpreted by the Bombay high Court in Usman Habib v. State of Bombay and others [1955 - II L.L.J. 494] to mean that the notice of change must be given by the representative of employees and not that the representative of employees should merely act as a post office for forwarding the notice of change to be given by the employee. The employee desiring the change must place his grievance before the representative of employee and it is for the representative of employees to decide whether a notice of change should be given and having so decided to give the necessary notice. Thus in either case whether the change is desired by the employer or the employee, the representative of employee comes into the picture for the purpose of the notice of change. Now 'representative of employees' is defined in S. 3(32) to mean 'a representative of employees entitled to appear or act as such under S. 30' and S. 30 lays down the priority in which representative of employees are entitled to appear or to act and at the top of this hierarchy stands a representative union. The notice of change is, therefore, required to be given by the employer to the representative union under S. 42(1) where the employer desires a change and where the employee desires a change, the notice of change is required to be given by the representative union to the employer under S. 42(2). In both these cases, on the giving of the notice of change, either of the two events may happen. Within seven days from the date of service of the notice of change or within such further period as may be mutually fixed, an agreement may be arrived at between the employer and the representative union in regard to the proposed change and where that happens, a memorandum of the agreement signed by the employer as well as the representative union is required to be forwarded to the Registrar who would enter the same in a register maintained for the purpose and the agreement on being so registered would come into operation on the date specified in the agreement or if no date is specified, on its being recorded by the Registrar (Ss. 44 and 45). Where however no such agreement is arrived at between the employer and the representative union, the proposed change is deemed to be objected to by the representative union or the employer as the case may be, and in such a case, if the party giving the notice still desires that the change should be effected, he has to forward to the Registrar, the chief conciliator and the conciliator for the local area, a full statement of the case within a certain specified time and on receipt of such statement of the case, the conciliator would enter the industrial dispute in a register kept for the purpose and on such entry being made, the conciliation proceedings would be deemed to commence (Ss. 54 and 55). This is the only mode, apart from that provided in S. 52, in which an industrial dispute can form the subject-matter of conciliation proceedings under the Act. The industrial dispute, which can come for conciliation under the Act, must, therefore, necessarily be a collective dispute to which the representative of employees such as the representative union is a party. The industrial dispute may arise because the change proposed by the employer is objected to by the representative union or the change proposed by the representative union is objected to by the employer and in either case the representative union being a party to the industrial dispute, the industrial dispute would be a collective dispute as distinguished from an individual dispute. Even under S. 52 the industrial dispute which comes for conciliation is a dispute between the employer and the registered union in regard to a change proposed in the joint committee and is therefore a collective dispute between workmen as a class and the employer. This conclusion is further strengthened if we have regard to some of the provisions relating to conciliation proceedings. The object of conciliation proceedings being to bring about a settlement of the industrial dispute, one of the likely results of the conciliation proceedings may be a settlement of the industrial dispute and if a settlement is arrived at, the memorandum of settlement is required to be signed by the employer and the representative union [see S. 58(1)]. Where the employer and the representative union are unable to arrive at a settlement of the industrial dispute, they may adopt the next best alternative, namely, agree in writing to refer the industrial dispute to arbitration and this agreement would also have to be between the employer and the representative union [see S. 58(6)]. It is therefore, clear and there can hardly be any dispute about it that so far as conciliation proceedings are concerned, the industrial dispute that is contemplated is a collective dispute and does not include an individual dispute.

18. Turning now to the provisions relating to arbitration, adjudication and awards, we will first refer to S. 73 before we examine S. 66 which is the section with which we are primarily concerned in these petitions. Section 73 empowers the State Government at any time to refer an industrial dispute to the arbitration of the industrial court if the conditions set out in the section are fulfilled. The nature of these conditions which constitute the foundation of State Government action under the section clearly indicates that the industrial dispute contemplated by the section is a collective dispute to which labour as a class is a party so that the industrial dispute has the potentiality to affect public peace or order or the interests of the industry or workmen as a class or the public or a large section of the community and in order to avoid these undesirable consequences it is necessary to resolve the industrial dispute. Section 73A also contemplates a collective dispute to which a registered union is a party or which is taken up by a registered union, for it employers a registered union to refer an industrial dispute for arbitration to the industrial court. Section 66 provides for voluntary submission of an industrial dispute to arbitration and it says in Sub-section (1) :

'66. (1) Any employer and a representative union or any other registered union which is a representative of employees may, by a written agreement, agree to submit any present or future industrial dispute or class of such disputes to the arbitration or any person whether such arbitrator is named in such agreement or not. Such agreement shall be called a submission.

* * *'

19. The section speaks of an agreement in writing between the employer on the one hand and a representative union or a registered union on the other and provides that by such agreement the employer and the representative union or registered union may agree to submit any present or future industrial dispute to arbitration. The industrial dispute, present or future, which can be submitted to arbitration under the section must, therefore, clearly be an industrial dispute between the employer and the resentative union or other registered union. The parties to the submission being the employer and the representative union or other registered union, the industrial dispute which can form the subject-matter of the submission must be an industrial dispute to which they are parties, for it is trite that a dispute can be submitted to arbitration only by the parties to the dispute. Moreover, if there is a dispute touching the individual rights of a workman which is not taken up by the representative union or other registered union, it is difficult to see how it can be submitted to arbitration by the representative union or other registered union without adopting it as its own dispute. When the representative union or other registered union agrees to submit such dispute to arbitration, it is implicit that the representative union or other registered union espouses the cause of the individual workman and chooses to treat his dispute as its own or, in other words, adopts the dispute. The dispute of the individual workman is, in such a case, taken up by the representative union or other registered union and what might have started as an individual dispute and is converted into ken a collective dispute and it is such a collective dispute that is agreed to be submitted to arbitration. Furthermore, it is significant to note that the power to enter into an agreement to submit a dispute to arbitration is conferred not on an individual workman but on a representative union or other registered union. It is only when the representative union or other registered union enters into the picture and takes up cudgels on behalf of the individual workman that the dispute touching the rights of the individual workman can be submitted to arbitration. The intention of the legislature clearly is that only a collective dispute which is taken by a representative union or other registered union or to which the representative union or other registered union is a party should be submitted to arbitration. If the legislative intent were that even an individual dispute may be submitted to arbitration, the legislature would have conferred the right to enter into a submission on an individual workman and would not have insisted on the intervention of a representative union or other registered union. It is, therefore, clear beyond doubt or dispute that the term 'industrial dispute' has been used in S. 66 to denote a collective dispute and an individual dispute is not comprehended within the true connotation of that term as used in S. 66. And this conclusive would follow even if the definition of 'industrial dispute' in S. 3(17) is sufficiently wide to include an individual dispute, for the definition is always subject to 'anything repugnant in the subject or context' and the context and the language of S. 66 clearly show that 'industrial dispute' within the meaning of that section does not include an individual dispute.

20. It will, therefore, be seen that far from there being anything in these provisions to indicate that the expression 'industrial dispute' has not been used in its commonly accepted meaning but has been used in a broad sense so as to include an individual dispute, the scheme and the language of these provisions on the contrary clearly show that this expression has been used to denote what it means according to its common acceptation, namely, a collective dispute and does not include an individual dispute. These provisions enact the machinery for investigation and settlement of industrial disputes and the machinery, as the provisions show, has been devised with the object of maintaining industrial peace so as to prevent interference with public safety or public order or with the maintenance of supplies and service essential to the life of the community or employment and, viewed from this aspect also, it is clear that the applicability of these provisions to an individual dispute as opposed to a dispute involving a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute by the workmen as a class or a considerable section of them making common cause with the individual workman.

21. The question however is, does it make any difference that the Act also contains provisions regulating the relations between the employer and the workmen and providing a machinery for enforcement of the individual right of a workmen in certain cases. We think not. The provisions in connexion with settlement of standing orders for regulating the relations between the employer and the workmen with regard to the industrial matters mentioned in Sch. I are enacted in Ss. 35 to 41 grouped together under Chap. VII and standing orders settled under that chapter and in operation, or where there are no such standing orders, model standing orders, if any, applicable under S. 35(5) are declared by S. 40(1) to be determinative of the relations between the employer and the workmen in regard to all industrial matters specified in Sch. I are standing orders define the conditions of employment of the workmen in respect of concerned and the rights and obligation of the employer and the rights and obligations industrial matter specified in Sch. I are prescribed by the standing orders. Now a dispute may arise between an employer and an individual workman as regards the propriety or legality of an order made by the employer acting or purporting to act under the standing orders or as regards the application and interpretation of the standing orders. That would be a dispute in regard to an industrial matter specified in Sch. I. A dispute may also arise between an employer and an individual workman regarding any change made by the employer or desired by the individual workman in respect of an industrial matter specified in Sch. III. In both these cases a right is conferred on the individual workman by S. 79 to move the labour court for redress and the labour court is empowered to decide such dispute on the application of the individual workman under S. 78(1)(A)(a). The dispute which the Labour court is given the power to decide under S. 78(1)(A)(a) may therefore well be an individual dispute which is not taken up by workmen as a class and which is being pursued by the individual workman alone. Now it is significant to note that while describing such a dispute the legislature has deliberately and advisedly used the word 'disputes' instead of the expression 'industrial disputes' in S. 78(1)(A)(a). In S. 78(1)(A)(a) where the disputes referred are necessarily, for reasons already discussed, collective disputes, the legislature has described them as 'industrial disputes' but in S. 78(1)(A)(a) where the disputes may not only be collective disputes but also individual disputes, the legislature has described them merely as 'disputes.' The distinction in phraseology adopted by the legislature runs through the entire Act. Wherever the language age or the context of a section shows that the dispute there contemplated must include an individual dispute, in all such cases the legislature has used the generic expression 'dispute' instead of the expression 'industrial dispute.' There is not a single provision of the Act where we find the expression 'industrial dispute' used clearly and indubitably to denote an individual dispute. It is this feature which distinguishes the present Act from the central Provinces and Berar Industrial Disputes Settlement Act, 1947. In the Central Provinces and Berar Act, S. 16 clearly showed that the expression 'industrial dispute' was used in relation to an individual dispute and it was in the context of that section that the Supreme Court held in Central Provinces Transport Services Ltd. v. Raghunath Gopal Patwardhan [1957 - I L.L.J. 27] (vide supra) that 'industrial dispute' in the Central Provinces and Berar Act had a wide connotation and included individual dispute. Here in the present Act there is nothing to show that the legislature intended to deport from the normal accepted connotation of 'industrial dispute' and to use that expression in a wider sense so as to include individual dispute. On the contrary, there is the clearest possible indication of the legislative intent that the term 'industrial dispute' is used in its common acceptation to denote a collective dispute and an individual dispute is not comprehended within it. Therefore, though the objects and visions of the two Acts, namely, the Central Provinces and Berar Act and the present Act, are undoubtedly similar in that both deal not with investigation and settlement of industrial disputes but also with regulation of relations between the employer and the workmen, and enforcement of the rights of the individual workman, there is this fundamental difference between them that whereas in the former, the scheme and the language of the sections compel the conclusion that the term 'industrial dispute' has been used by the legislature in a wider sense, in the latter, not only is there nothing to compel or even persuade the Court to reach such conclusion but the circumstances outlined above demonstrate beyond doubt that the term has been used in the sense accorded to it in industrial parlance, namely, as meaning collective dispute and it is this difference which renders the Supreme Court decision in Central Provinces Transport Services, Ltd. v. Raghunath Gopal Patwardhan [1957 - I L.L.J. 27] (vide supra) inapplicable to the present case and brings the present case within the ratio of the Supreme Court decision in Newspapers, Ltd. v. Industrial Tribunal, Uttar Pradesh, and others [1957 - II L.L.J. 1] (vide supra).

22. We are, therefore, of the view that the term, industrial dispute, as used in the Act connotes a collective dispute, that is, a dispute between an employer and workmen as a body or class and such a dispute may even be a dispute touching the rights of an individual workman provided it is taken up by workmen as a class or a considerable section of them and treated by them as their own casus belli with the employer but it does not include an individual dispute between a single workman and the employer which is not taken up or adopted by workman as a body or class. This meaning, in any event, must attach to the term 'industrial dispute' as used in S. 66 of the Act and in that section, at any rate, 'industrial dispute' cannot include individual dispute. The disputes raised in the applications before the labour court in the present case being admittedly individual disputes could not, therefore, form the subject-matter of a valid submission to arbitration under S. 66 and the submission contained in Sub-clause (4) of Clause 5 of the registered agreement was consequently inapplicable to such disputes or else it was invalid to the extent to which it applied to such disputes. The jurisdiction of the labour court to entertain the applications under S. 78 was, therefore, not excluded.

23. It was, however, contended on behalf of the petitioners that if this view were taken, the submission contained in Clause 5, Sub-clause (4), of the registered agreement would be robbed of its binding effect and that would be plainly contrary to S. 114, Sub-section (1), proviso (b), which provides that a registered agreement or submission shall be binding upon all persons who are parties thereto : provided that in the case of a registered union which is a party to such agreement or submission, all employees in the industry in the local area whose representative the said union is, shall be bound by such agreement or submission. The Textile Labour Association, it was argued, was a party to the submission and since the Textile Labour Association was a representative union for the cotton textile industry in Ahmedabad, the submission was by virtue of proviso (b) to S. 114, Sub-section (1), binding on all employees in the cotton textile industry in Ahmedabad including the employees who had made applications to the labour court and the employees could not, therefore, be permitted to maintain their applications to the labour court in defiance of the submission which was binding upon them. If such applications were permitted, protested the petitioners, that would be destructive of the principle of collective bargaining on which the entire Act was based. This apprehension of the petitioners, we shall presently show, is wholly unjustified, but before we deal with it, we may point out that the view we are taking does not involve any violation of S. 114, Sub-section (1), proviso (b). We do not for a moment with to suggest that the submission contained in Clause 5, Sub-clause (4), of the registered agreement is not binding on the employees, but the question is : What is the scope of the submission If the submission, for reasons which we have given above, does not apply to individual disputes such as those raised by the employees in the present case or in the event of it being construed as applicable to such disputes, it is invalid to the extent to which it applies to such disputes, it is difficult to see how in respect of such disputes the employees can be held to be bound by the submission. If there is a valid submission and the dispute is within the scope of the submission, the employees would certainly be bound by the submission in so far as such dispute is concerned, but where the dispute is outside the scope of the submission or the submission is invalid, there is no submission which binds the employees in reference to such dispute and in such a case, there is no violation of S. 114, Sub-section (1), proviso (b), if the employees do not go to arbitration but instead prefer an application to the labour court for redress under S. 78. The principle of collective bargaining is also not in the least affected, for the representative union can always take up the individual dispute of an employee and submit such dispute to arbitration and if the representative union does so, the award would certainly bind the employee by reason of the provision enacted in S. 114, Sub-section (1), proviso (b). In such a case where the representative union takes up cudgels on behalf of the individual employee and submits his dispute to arbitration, the individual employee would be able to get redress through the representative union by the machinery of arbitration and no injustice would be caused to the individual employee if in the interests of collective bargaining it is held that the individual employee is precluded by the submission from making an application to the labour court, for redress under S. 78. But where the representative union does not choose to take up the dispute of the individual employee and to submit such dispute to arbitration, it would be most unjust to hold that the individual workman is not entitled to pursue the remedy by way of an application to the labour court given to him by S. 78 and is thus without any redress. It is, no doubt, true that even in an application made by an individual employee under S. 78 the representative union can appear on behalf of the employee under S. 27A and withdraw such application or apply for dismissal of such application and the individual employee would be bound by the act of the representative union and would have no say in the matter, but there is no reason why we should adopt a construction which would have the effect of taking away from an individual employee the right to move the labour court for redress which has been conferred upon him by S. 78, and leave him without any remedy where the representative union does not choose to take up his dispute and submit it to arbitration. The construction which we favour is clearly a just and reasonable construction as it gives at least one of two remedies to an individual workman; either the remedy of arbitration through the representative union or the remedy by way of an application to the labour court for redress under S. 78. We are, therefore, of the view that the applications made by the employees to the labour court in the present case were maintainable and the labour court had jurisdiction to entertain the same.

24. The result, therefore, is that the petitions fail and the rules are discharged with cost.


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