1. This appln. for the issue of a Writ of Gertiorari to quash an order of the Comr. of Labour, Madras, has been filed in the following circumstances, C. G. Sarma, resp. 2 herein, was an employee of: the United Commercial Bank Ltd., at its Mathurai branch. His services were dispensed with by the bank. on 30-6-1949 on the ground that he misbehaved towards a respectable constituent of the Bank & that his conduct both inside & outside the office was extremely unsatisfactory. He preferred an appeal against this order of dismissal to the Comr. of Labour, Madras, under Section 41, Madras Shops and Establishments Act of 1947 (hereinafter referred to as the Madras Act). That section runs thus :
'41(1). No employer shall dispense with the services of a person employed continuously for a period of not loss than six months, except for a reasonable cause and without giving such person at least one month's notice or wages in lieu of such notice, provided, however, that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose.
(2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.
(3) The decision of the appellate authority shall be final and binding on both the employer and the person employed.'
By orders of the Central Govt. dated 13-6-1949 & 28-9-1949 the industrial disputes between certain banking companies mentioned in Sch. I annexed to the order including their branches & their employees were referred to an industrial tribunal for adjudication. On 21-2-1950 a notification was published in tbe Gazette of India, New Delhi, in & by which the Central Govt. in the exercise of the powers conferred by Clause (c) of Sub-section (1) of Section 10, Industrial Disputes Act (XIV  of 1947) referred certain further industrial disputes which had arisen after 13-6-1949 or were apprehended between the banking companies mentioned in Sch. I annexed thereto & their employees in respect of matters specified in Sch. II annexed thereto. One of the banks mentioned in Schedule I is the United Commercial Bank Ltd., the appct.. before us. Schedule II was in these general terms :
'(1) Retrenchment, discharge or dismissal of workmen after the 13th June 1949 (specific cases to be cited by employees).
(2) Stoppage of increments and withholding of promotions (specific cases to be cited by employees).'
The schedule contained a note that the list was not intended to be exhaustive. In pursuance of this later notification, the Central Govt. Industrial Tribunal at Calcutta gave directions that the employees should deliver their statements of claims to the office of the Tribunal at Calcutta concerning matters referred to adjudication on 15-3-1950 & should give a copy thereof to the employers on the same day. The employers were directed to deliver within ten days thereafter their written statement in answer to the said claims & give a copy thereof to the employees concerned.
2. It is common ground that neither resp. 2 nor any union on his behalf delivered a statement of claim as regards his dismissal.
3. When the appeal was taken up for hearing, the employer raised a preliminary objection that the Labour Comr. had no jurisdiction to proceed with the enquiry in view of the provisions of the Industrial Disputes (Banking and Insurance Companies) Act, 1949. The Comr. overruled the objection holding that the Act did not affect the rights of the employee under Section 41 (2), Madras Shops and Establishments Act of 1947. He, therefore, posted the appeal for disposal on the merits to 17-4-1950. It is to quaah this order that this appln. was filed on 12-4-1950.
4. The contention of the petnr. as set out in the affidavit filed in support of the appln. isthat the Labour Comr. had no jurisdiction to entertain the appeal, because under the provisions of the Central Act LIV  of 1949 read with Act XIV  of 1947, namely, the Industrial Disputes Act, & having regard to the terms of the reference made by the Central Govt. already referred to the employee's only remedy was to appear before the Tribunal & state his claim & that the appeal preferred under Section 41, Madras Shops and Establishments Act, was incompetent. Subsequent to the filing of this appln. the petnr. sought to raise another point formulated as follows :
'Under the Industrial Disputes Act, which is an enactment of the Central Legislature, it is the Tribunal which is constituted under Section 7 of the said Act to which the disputes are referred under Section 10 that is solely empowered to decide disputes between the bank & its employees. Under the notfn. No. L. R. 2/273 of the Government of India published in the Gazette of India dated 21-2-1950, all cases of dismissal of workmen after 13-6-1949 were declared to be industrial disputes & were referred to the Industrial Tribunal at Calcutta for adjudication. The dispute, in question being one that arose after 13-6-1949, it is only the Tribunal, that has jurisdiction to decide the dispute. In so far as the Madras Shops and Establishments Act XXXVI  of 1947 enables or purports to enable an employee to appeal to a different authority namely, the Comr. of Labour, under Section 41 of that Act, the said Act is inconsistent with the provisions of an Act of the Central Legislature, namely. Act XIV  of 1947, & is therefore to the extent of the inconsistency void, vide, Section 107, Government of India Act. 1935 & Article 264, Const. Ind.'
5. It was conceded by the learned advocate for the petnr. that the Provincial Govt. was entitled to legislate on the subject-matter dealt with in the Madras Shops and Establishments Act. In the Concurrent Legislative List, items 27 & 29 sufficiently cover the several matters provided for by that Act. The question therefore is whether this Provincial Act contains any provision repugnant to the provisions of the earlier dominion law, with respect to that matter, namely, the Industrial Disputes Act of 1947 & therefore such provision is void to the extent of the repugnancy under Section 107, Government of Indis Act, 1935. But Sub-section (2) of that section provides that notwithstanding such repugnancy, the provincial law will prevail in the Province if the provincial law having been reserved for the consideration of the Governor-General has received the assent of the Governor-General. It appears from the printed copy of the Act published under the authority of the Govt. that the Act received the assent of the Governor-General on 10-2-1948. In view of this fact, the learned counsel did not press his contention based on Section 107, Government of Indis Act.
6. We, therefore, start with this, namely, that Section 41, Madras Shops and EstablishmentsAct, is a valid enactment. The appeal filed by the reap1, was under that section. It is not denied that the Act applies to a bank. The definition of 'commercial establishment' in Section 2(3) of the Act includes a bank. The appeal was on the ground that there was no reasonable cause for dispensing with his services. The Comr. of Labour was the authority prescribed under the Act. It must, therefore, be held that the Comr. of Labour was competent to entertain & dispose of the appeal.
7. It appeared to us that at one time the learned counsel for the petnr. was prepared to accept this petition, (position ?) & as we understood him, his contention was that the appeal could not be disposed of by the Labour Comr. because of the action of the Central Govt. referring the disputes between the petnr. bank & its employees for adjudication by the Central Banking Industrial Tribunal (Banks).
8. The Industrial Disputes Act, XIV  of 1947 was passed by the Indian Legislature & received the assent of the Governor-General on 17-3-1947. Under Section 10(1) of the Act, as it stood originally, if any industrial dispute exists or is apprehended, the appropriate Govt. may, by order in writing refer the dispute to a Board for promoting a settlement thereof; or refer any matter connected with it to a Ct. for enquiry or refer the dispute to a Tribunal for adjudication. Under Sub-section (2) of that section, where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Ct. or Tribunal, the appropriate Govt., if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. By Act XII 12. of 1949 another sub-section was added & this runs thus :
'2. A. Notwithstanding anything contained in Sub-sections (1) and (2), where a tribunal has been constituted under this Act for the adjudication of disputes in any specified industry or industries, and & dispute exists or is apprehended in any such industry, the employer or a majority of the workmen, concerned may refer the dispute to that Tribunal.'
The appropriate Govt. means in relation to certain industries & concerns the Central Govt. & in relation to other industrial disputes the Provincial Govt. Section 2 Clause (j) of the Act defines 'industry' as meaning 'any business, trade, undertaking, or manufacture'. 'Industrial dispute' means,
'any dispute or difference between employers & employers, or between employers & workmen, or between workmen & workmen, which is connected with the employment or non-employment or the terms of employment or with the oonditiona of labour, of any person.'
'any person employed (including as apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward.'
9. There were two Ordinances, VI  of 1949 & XXVIII  of 1949 promulgated by the Governor-General which made special provision for the adjudication of industrial disputes concerning certain banking & insurance companies having branches or other establishments in more than one province. The provisions of these Ordinances were subsequently embodied in the Act of the Central Legislature, Act LIT  of 1949 called the Industrial Disputes (Banking and Insurance Companies) Act, 1949. Inter aliat his Act provided that it shall not be competent for a Provincial Govt. or any officer or authority subordinate to such Govt. to refer any industrial dispute concerning any banking or insurance company or any matter relating to such disputes as defined in that Act to any tribunal or other authority for adjudication, enquiry or settlement. Any proceedings relating to such disputes already pending before Provincial Tribunals were declared to have abated & the Central Govt. had to refer such disputes to an Industrial Tribunal constituted under the Act. Even when awards or decisions had been made in respect of any industrial disputes concerning such banking or insurance companies by any tribunal or authority appointed by a Provincial Govt. or authority, the Central Government was given the power to refer the same dispute or any of them to an industrial tribunal constituted under the Act for re-adjudication. Meanwhile, the implementation of the prior award or decision was stayed. It is common ground that notifications abovementioned under which reference was made by the Central Govt. in this case were issued in accordance with the provisions of this enactment (Act LIV  of 1949).
10. The main question for our decision in this case is as to whether there is anything in the Industrial Disputes Act or in the later Industrial Disputes (Banking and Insurance Companies) Act which deprives a discharged or dismissed employee like resp. 2 before us of the right of appeal conferred on him by Section 41 (2) of the Madras Act. There is no express provision which has that effect & that is conceded by the learned counsel for the petnr. But it is said that when the Central Govt. have referred the industrial disputes between a banking company as defined in Act LIV  of 1949 & its employees to a Tribunal constituted under that Act, the only remedy of a discharged or dismissed employee was to make his claim before that tribunal for adjudication. Wedo not think thab anything turns on the actual making of a reference. The learned counsel for the petnr. perceived the difficulty of contending that the right of appeal under Section 41 (2), of the Madras Act would be available if there was no reference under Act LIV  of 1949, but such right of appeal would not exist or would cease to be effective the moment a refer. ence was made. In this case the appeal by resp. 2 was filed on 22-7-1949 long before the notification dated 21-2-1950 relied upon by the petnr. If on that date thero was no reference, then it would follow that the appeal was quite competent, & the petnr. would be forced to argue that what was a perfectly competent appeal on the date it was filed somehow became unsustainable at a later stage. In the absence of express statutory provisions, it is impossible to support such a result. It, therefore, became apparent that before the petnr.could succeed, he should be able to convince us that whether a reference was made or not, the right of appeal conferred under Section 41 (2) of the Madras Act was by implication taken away by Act LIV  of 1949 which is a later enactmentof the Central Legislature. This would again depend upon the applicability of the provisionsof the Industrial Disputes Act itself to an appeal under Section 41 (2) of the Madras Act. This is because the power of the Central Govt. to make any reference of industrial disputesconcerning any banking company as defined in Aet LIV  of 1949 is only by virtue of Section 10, Industrial Disputes Act.
11. The point for decision ultimately reduces itself to this. When an individual employee seeks to set aside an order of dismissal against him, is there an industrial dispute within the meaning of the Industrial Disputes Act If itcan be said that a mere individual dispute, such as for instance that in the present case, is an industrial dispute, then it would follow that the remedy of the aggrieved employee would only be a reference under the Industrial Disputes Act. The result would be that Section 41 (2) of the Madras Act would have no application at all to the case of dismissed employees except in cases, if there be any such, which would not fall within the Industrial Disputes Act. Having regard to the very wide definition of 'industry' in Section 2(1), Industrial Disputes Act, it is difficult to conceive of any such case. 'Industry' means 'any business, trade, undertaking, manufacture or calling of employers.' It would, therefore, include all the classes of establishments covered by the Madras Act. Thfl result would be that Section 41 (2) would be practically useless.
12. In my opinion, this is not the result. The two Acts, namely, the Industrial Disputes Act &the; Madras Act are not in pari materia. Though in one sense, Section 41 (2) of the Madras Aet concerns a dispute between an employee & an employer, an individual dispute falling under it would not by itself be an industrial dispute falling within the scope of the Industrial Disputes Act. It may be that the dismissal of even one workman can become the subject of an industrial dispute, but then it is no longer an individual dispute between the dismissed work. man & the employer only; it becomes a dispute between the workmen on the one hand & the employment on the other. Such a dispute, it may be called a collective dispute, certainly cannot be the subject-matter of an appeal under Section 41 of the Madras Act. Such dispute would have to be referred to a Tribunal or other authority under Section 10, Industrial Disputes Act either by the Govt. suo motu or at the instance of one or both of the parties. In the Kandan Textile Ltd. v. The Industrial Tribunal, Madras : (1949)2MLJ789 , it was held by a Bench of tbis Ct. that something more than an individual dispute between a worker & the employer is required to make the dispute an industrial dispute. It was pointed out in that case that a dispute which in its origin might be an individual dispute may at a later stage develop into a collective dispute which could be properly called an industrial dispute. We have not been referred to any authority which holds to the contrary. In each of the several cases which recently came up before the 3?. C. there were disputes which could be deemed to be collective disputes f not merely industrial disputes. The case in Shamnugger Jute Factory Co., Ltd. v. S. N. Kodak, 1949 P. L. J. 370 : (A. I. R. 1949 P. C. 150), might appear to concern an individual dispute, but an analysis of the facts clearly shows that a collective dispute ensued as a result of the termination of the services of certain individuals. One Kishen Deo was dismissed from service & his dismissal resulted in a general unrest among the workers & apprehending breach of the peace, the employment put up a notice closing the mill. The mill was reopened after a few days but the workmen did not return to work because Kishen Deo & two other dismissed workmen were not offered re-employment. It was then that the Govt. of West Bengal acting under the Industrial Disputes Act referred for adjudication by the Industrial Tribunal the disputes which had arisen between the management & the workmen.
13. I am, therefore, of the opinion that the appeal by resp. 2 under Section 41 (2) of the Madras Act to the Comr. of Labour, the prescribed authority under that Act, was competent & didnot abate or become incompetent because of the reference by the Central Govt. under Section 10, Industrial Disputes Act made on 21-2-1950.
14. The appln. is dismissed with costs of reap. 2.
Yiswanatha Sastri J.
15. I entirely agree with my Lord; but as the matter is one of first impression I add a few words of my own.
16. The Madras Shops and Establishments Act (XXXVI  of 1947) passed by the Provincial Legislature with the assent of the Governor-General was intended, according to its preamble, to provide for the regulation of conditions of works in shops, commercial establishments, restaurants, theatres & other establishments. The Industrial Disputes Act (XIV 14. of 1947) passed by the Federal Legislature was intended, as the preamble indicates, to make provision for the investigation & settlement of industrial disputes. Section 41, Sub-section (2) of Madras Act XXXVI  of 1947 gives the right to an employee who had been in service for six months or more, but whose services have been dispensed with by his employer, to appeal to the authority designated by the Govt. against his dismissal or discharge. The decision of the appellate authority on the propriety or other. wise of the termination of the services of the employee is made final & binding on both the employee & employer by Section 41, Sub-section (3) of Madras Act XXXVI  of 1947. The question is whether the right of appeal which is given in general terms under Section 41 (2) of Madras Act XXXVI  of 1947 is excluded or restricted in any, & if so, in what cases, by the provisions of Act XIV  of 1947. Under Section 10 of Apt XIV  of 1947 if an industrial dispute exists or is apprehended, the Govt. or the employer or a majority of the workmen may refer the dispute for adjudication by a tribunal constituted under Section 7. The award of the tribunal would be in force for one year or such other period as the Govt. may determine, not exceeding three years, & would be binding on all parties to the industrial dispute including among them all persons employed in the establishment or part of the establishment to which the dispute relates, on the date of the dispute & also all persons subsequently employed therein. The definition of 'industrial dispute' in Section 2(k) of Act XIV  of 1947 is wide enough to include a dispute between an employer & his workmen if it relates to the 'employment or non employment' of the latter. In Western Indis Automobile Association v. Industrial Tribunal, Bombay, 1949 P. l. j. 154 : (A. I. R. 1949 F. C. III), the F. C. ruled that if an employer dismissed a few workmen or declined to employ them & the aggrieved workmen or their fellow workmen took up his cause & questioned the propriety of fhe act of the employer, a dispute as to non-employment arose & that reinstatement of dismissed workmen was a matter connected with 'non-employment' & was therefore within the ambit of the definition of 'industrial disputes.' The Ct. also held that, by its award, the tribunal to which an industrial dispute is referred, could direct the reinstatement of employees whose services had been dispensed with by the employer.
17. The argument of the petnr. is that the operation of Section 41, Sub-section (2) of Madras Act XXXVI  of 1947 should be limited to cases where the termination of the services of an employee could not possibly form the subject of an 'industrial dispute' or a reference to a tribunal under Act XIV  of 1947. According to him, it is not even necessary that an industrial dispute should be pending & it is sufficient if an industrial dispute might conceivably arise & comprise within its ambit the termination of the services of an employee. It was said that, otherwise, there would be a clash or conflict of decisions of two statutory bodies adjudicating on the same matter. For instance, the appellate authority might hold under Section 41 (2) of Madras Act XXXVI  of 1947 that the dismissal of an employee was proper while the tribunal adjudicating upon an 'industrial dispute' under Act XIV  of 1947 might come to an opposite conclusion & order his reinstatement. To avoid such anamalous results, the operation of Madras Act XXXVI  of 1947 should, it was argued, be restricted in the manner above suggested.
18. This argument, to some extent, over-looks the objects & scheme of the two enactments. Chapter 7 of Madras Act XXXVI  of 1947 in which Section 41 is found, deals with an individual dispute between an employer & employee whose services have been terminated, in which dispute the other employees have no interest & with which they need not or do nod concern themselves. Act XIV  of 1947 deala with an industrial dispute, a collective dispute, a dispute between the employer on the one hand & the body of workmen or a section of that body on the other. The distinction between an individual dispute & an industrial dispute is, if I may respectfully say so, well brought out.in the judgment of my Lord in Kandan Textile Co., Ltd. v. Industrial Tribunal, Madras : (1949)2MLJ789 , citing inter alis a passage from the judgment of Isaacs J. in George Hudson Ltd. v. Australian Timber Works Union, 32 Commonwealth L. R. 413-441. A dismissed employee might question the propriety of his dismissal even though the otheremployees either approve of such dismissal or are indifferent to it. In such a case it must be held that the dispute is only an individual dispute between the employer & the employee affected by the dismissal & not an 'industrial dispute' under Act XIV  of 1947. If, however, the dismissal of an employee is the result of victimisation, if the employees in services or a substantial section of such employees threaten to strike work, or having struck work refuse to resume work, unless the person dismissed is reinstated, in other words, if the resuming workmen or a substantial body of them or a union of workmen takes up the cause of the victimised employee & demands his reinstatement, there is an industrial dis. pute. In between these two exbreme casoa there may be disputes about 'employment and non-employment' of which it would be difficult to say a priori that they are individual disputes or industrial dispute. It is also possible that a dispute which originated as an individual dispute might develop into a collective dispute or an industrial dispute in its later stages, as pointed out in the judgment of my Lord already cited.
19. Now, Section 41 (2) of Madras Act XXXVI  of 1947 gives a remedy to an individual employee by way of an appeal against an improper termination of his services by his employer. Why should he be deprived of this cheap & expeditious remedy merely because it might possibly form this subject of a reference along with many other disputes to a tribunal under Section 10 of the Act XIV  1947? Such a reference might or might not be made by the Govt. of its own accord. The majority of the remaining workmen may not be in favour of any reference. If so, why should an individual employee lose the statutory right given to him by Section 41 (2) of the Madras Act XXXVI  of 1947? An award made by the tribunal under Act XIV  of 1947 remains in force only for a limited period of one year or even less, if the Govt. thinks fit to limit the period. In no case can it remain in force for more than three years even if the period of one year is extended by Govt. Can it be said that a direction for reinstatement contained in the award of a tribunal becomes inoperative on the expiry of the life of the award & that the dismissal or discharge of an employee would automatically take effect thereafter? We think not. If that be so, there is no reason why the right of appeal given by Section 41 (2) of Madras Act XXXTI  of 1947 which, if successfully asserted might secure unconditional reinstatement to an employee without any limitation as regards the period for which the reinstatement should, be in force, should be denied to him. It might be, as the tribunal has held in some cases brought to our notice, that if an employee has been unsuccessful in an appeal against an order of dismissal preferred by him under Section 41 (2) of Madras Act XXXVI  of 1947 the appellate decision is final & binding between him & his employer, & the tribunal would not thereafter order his reinstatement as part of its award incase the dispute happens to be referred to it as a part of an industrial dispute under Section 10 of Act XIV  of 1947. It is unnecessary to express any opinion on this point. Suffice it to say that the right of appeal given to an individual employee against an order of the employer dispensing with his services under Section 41 (2) of Madras Act XXXVI  of 1947 is not taken away either expressly or by necessary implication by any of the provisions of Act XIV  of 1947.
20. There is the further consideration that, as pointed out by my Lord in Randan Textile Ltd. v. Industrial Tribunal, Madras : (1949)2MLJ789 , the definition of 'workmen' in Section 2(s) of Madras Act XIV  of 1947 is such as not to bring within the operation of the Act employees whose dismissal preceded the industrial dispute, even though such dismissal might have subsequently led to the dispute. The F.C., however, appears to assume that such employees stand on the same footing. as those discharged already during an industrial dispute & that Act XIV  of 1947 would apply in either case. Even so, it is difficult to say that the dismissal of one or a few of the workmen stands an industrial dispute unless such dismissal leads to a threatened or actual strike or look out or unless a large section of the remaining workmen or a union of workmen backs up the former & expouses their cause.
21. Madras Act XXXVI  of 1947 & Act XIV  1947 are not in pari materia. The appeal preferred by resp. 2 in 1949 under Section 41 (2) of Madras Act XXXVI  of 1947 against the order of the Bank dated 30-6-1949 dispensing with his services was quite in order & was validly preferred. It did not so become infructuous or incompetent by reason of a subsequent reference made on 21-2-1950 under Section 10 of Act XIV  of 1947 by the Govt. to the tribunal of disputes between the petnr. bank & its employees, one of which was described in these terms :
'Retrenchment, discharge or dismissal of workmen after 18th -Tune 1949 (specific cases to be cited by the employees)'.
Eespondent 2 could not have anticipated a reference to the tribunal. He did not put forward his case before the tribunal. Nor did heseek any relief by way of reinstatement before it, but was content to pursue his remedy by way of appeal which he had preferred under 8.-41 (2) of Madras Act XXXVI  of 1947. No body of workmen & no union of workmen complained of his discharge. There is nothing in Act XIV  of 1947 & no other reason has been shown, to deprive him of his right to pursue the appeal which he had preferred long before the reference to the tribunal under Act XIV  of 1947 was made. It would, perhaps, be a different matter if resp. 2 had taken his case before the tribunal to which an industrial dispute had been referred under Act XIV  of 1947 and got an adverse decision against him from the tribunal before he filed an appeal under Section 41 (2) of Madras Act XXXVI  of 1947. In such a case, it might possibly be contended that, having elected his remedy by way of submitting his dismissal to the decision of the tribunal he could not, after he got an adverse order from the tribunal, seek reliefs by way of an appeal under Section 41 (2) of Madras Act XXXVI  of 1947. This question, however, does not call for decision in the present case.