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South India Estate Labour Relations Organisation by Its Secretary, Representing the Managements of the 180 Estates Vs. the State of Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 718 of 1952
Judge
Reported inAIR1955Mad45
ActsIndustrial Disputes Act, 1947 - Sections 2 and 10; Minimum Wages Act, 1948; Code of Civil Procedure (CPC) , 1908; General Clauses Act, 1897 - Sections 6
AppellantSouth India Estate Labour Relations Organisation by Its Secretary, Representing the Managements of T
RespondentThe State of Madras and ors.
Appellant AdvocateK. Rajah Aiyar, ;C.R. Pattabhiraman and ;R. Ramasubbu Aiyyar, Advs.
Respondent AdvocateAdv.-General, ;V.V. Raghavan, Adv. for ;Govt. Pleader, ;Arunachalam, Adv. of ;Arunachalam and Jagannathan and Co., ;V. Venkataraman, ;K. Venkataraman, Advs. of ;Row and Reddy, ;P.S. Balakrishna Aiya
DispositionPetition dismissed
Cases ReferredElectro Mechanical Industries Ltd. v. Industrial Tribunal No.
Excerpt:
industrial disputes act (xiv of 1947), section 10--minimum wags act (xi of 1948), section 5--government--power to make reference under--not taken away by fixation of minimum wages under the minimum wages act--scope of the two acts--fundamentally different--industrial disputes act--no implied repeal by the later act;in view of the fundamental differences between the object and scope of the two acts, it cannot be held that the industrial disputes act (xiv of 1917) is by implication repealed by the minimum wages act (xi of 1948).;case law reviwed.;therefore, the fixation of wages under the minimum wages act does not deprive the government of its power to take action under section 10 of the industrial disputes act, and the inclusion of a dispute regarding the wages in a reference made to the.....1. the substantial question that is raised in this application is whether it is competent to the government to refer a dispute concerning wages to adjudication by a tribunal under section 10, in-dustrial disputes act, 14 of 1947, after there had been a fixation of minimum wages under the provisions of the minimum wages act 11 of 1948. the petitioner is the south india estate labour relations organisation, an association representing 180 plantation estates in south india. on 25-9-1950 the govt. of madras appointed under section 5(l)(b), minimum wages act, a committee for fixing minimum wages in plantation and acting on their report, fixed minimum wages by g.o. no. 1093 dated 20-3-1952 to take effect from 25-3-1952. while the above committee was carrying on its investigation, disputes arose.....
Judgment:
1. The substantial question that is raised in this application is whether it is competent to the Government to refer a dispute concerning wages to adjudication by a Tribunal under Section 10, In-Dustrial Disputes Act, 14 of 1947, after there had been a fixation of minimum wages under the provisions of the Minimum wages Act 11 of 1948. The petitioner is the South India Estate Labour Relations Organisation, an association representing 180 plantation estates in South India. On 25-9-1950 the Govt. of Madras appointed under Section 5(l)(b), Minimum Wages Act, a Committee for fixing minimum wages in plantation and acting on their report, fixed minimum wages by G.O. No. 1093 dated 20-3-1952 to take effect from 25-3-1952. While the above committee was carrying on its investigation, disputes arose between employers and employees in various estates. At a meeting of the staff of these estates held on 20-5-1951 a resolution was passed demanding an increase in the basic salary and dearness allowance and threatening, that in a case of non-compliance within fourteen days, a strike ballot would be taken. Vide Ex. A annexed to the reply affidavit in support of the petition.

A copy of this resolution was sent to the owners of all the estates. On 7-6-1951 the petitioner replied that with a view to secure an agreed settlement the estates had agreed to accept the union as entitled to make demands and "failing redress, to proceed to secure adjudication by an Industrial Tribunal without further reference to this organisation"; and that therefore the union should withdraw the notice and work for settlement, Ex. B. To this, the union replied by Ex. C dated 14-6-1951 that no action would be taken on their notice, Ex. A till 15-7-1951. Meantime on 10-6-1051, the Malabar District Estates Workers' Union passed a resolution demanding an increase in wages, Ex. P. The Government thereupon started conciliation proceedings and on 29-9-1951 the petitioner received notice that there would be a conference of the employer and employees on 16th and 17th October at Coonoor and on the 19th at Valparai. The parties met but failed to reach an agreement and on 6-11-1951 the Labour Commissioner sent his report Ex. G in which he stated "As the union is maintaining a sustained agitation over these matters, a settlement is possible only by adjudication."

It was after this that the Government took action under Section 10(1)(c), Industrial Disputes Act, and referred the disputes to the adjudication of an Industrial Tribunal by G.O. No. 1240 dated 24-3-1952. The annexure sets out the matters so referred and they include fixation of wages for field workers, kole maistries, factory workers and pluckers; and bonus for the year 1949-50. On 25-6-1952 the Government issued a memorandum No. 59079 amending the reference dated 24-3-1952 under G.O. No. 1240 by adding some more matters under annexure No. 2. In pursuance of these references the matter is now pending adjudlcation as Industrial Disputes No. 8 (special) 1952 before the Industrial Tribunal, Coimbatore. It is at this stage that the present application was filed for the issue of a writ of certiorari to quash the reference both under G.O. No. 1240 dated 24-3-52 and under the memorandum dated 25-5-1952.

2. Mr. K. Rajah Aiyar, the learned advocate for the petitioner urged the following points in support of the petition:

1. The reference to the Industrial Tribunal in so far as it relates to fixation of wages is without jurisdiction as the same had been already fixed under the Minimum Wages Act, 11 of 1948;

2. The reference is incompetent in so far as it relates to maistries and kole maistries, as they are not workmen as defined under the Industrial Disputes Act 14 of 1947.

3. The reference in so far as it relates to bonus is bad as that had already been the subject of a settlement and there was no dispute about it.

4. The memorandum No. 59079 dated 25-6-1952 is illegal as it purports to amend G.O. No. 1240 dated 24-3-1952, there being no power in the Government to amend a reference.

_ 1. This is the point that has been most strongly pressed upon us. The contention of Mr. K. Rajah Aiyar, the learned advocate for the petitioner is that the Industrial Disputes Act 14 of 1947 is a statute dealing with Industrial Disputes in general, whereas the Minimum Wages Act 11 of 1948 deals with one of the topics comprised therein; the fixation of wages in the trades specified in Part I of the schedule to the Act; that, being a later enactment dealing with a particular matter, Act 11 of 1948 supersedes 'eo extanti' the earlier enactment, Act 14 of 1947; and that fixation of wages cannot therefore be a matter of reference under the latter Act. The question for determination then is whether Act 14 of 1947 can be held to have been repealed by implication by Act 11 of 1948.

3. The rules of construction bearing on this point are well settled end may thus be stated:

(1) Law does not favour repeal by implication and It is only in the last resort that courts hold that one enactment is repealed by another, even without express words. "A sufficient Act" ought not to be held to be repealed by implication without some strong reason" per Lord Bramwell in -- 'G. W. Rly. Co v. Swindon and Cheltenham Rly. Co.', (1884) 9 AC 787 at p. 809 (A). "Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implled as per A.L. Smith J. in -- 'Kutner v. Phillips'; l891-2 QB 267 at p. 272 (B). "If It is possible, it us my duty so to read the section as not to repeal of the earlier Act per Farwell J. in--Chance, In re', 1936 Oh 266 at p. 270 (C). Repeal by implication which, whenever it occurs, is the consequence of Inconsistent legislation, is never to be favoured and should not be Imputed to Parliament". Halsbury Laws of England, Vol. 31, page 561, para. 759 .(Hailsham's Edn.)

(2) "If the provisions of a later Act are so Inconsistent with or repugnant to those of an earlier Act, that the two cannot stand together, the earlier stands impliedly repealed by the later. 'Leges Posteriores Priores contrarias abrog-ant'". Maxwell on Interpretation of Statutes, 10th Edn., page 161. Vide also Halsbury's Laws of England, Vol. 31, page. 561, para. 759.

The following passages from the judgment of Dr. Lushington in 'The India', (1864) 33 LJ P. M. & Adm. 193 (D) contain what has become a classic statement of the law on the subject: "What words will establish a repeal by implication it is impossible to say from authority or decided cases. If, on the one hand, the general presumption must be against such a repeal on the ground that the intention to repeal, if any had existed would have been declared in express terms, so, on the other, it is not necessary that any express reference be made to the statute which is to be repealed. The prior statute would, I conceive, be repealed by implication if its provisions were wholly incompatible with a subsequent one; or if the two statutes together would lead to wholly absurd consequences; or if the entire subject-matter were taken away by the subsequent statutes."

4. One application of this rule is where there is first a general enactment and later a law relating to one or some of the matters included therein. The law is thus stated in Craies on Statute-Law, 5th Edn.:

"If one statute enacts something in general terms, and afterwards another statute is passed on 'the same subject' which, although expressed in affirmative language, introduces special conditions and restrictions, the subsequent statute will usually be considered as repealing by implication the former."

It will be noticed that it is an essential condition for the application of the rule of implied 'repeal that there should be identity of subject-matter in the two enactments.

5. Bearing the above principles in mind, we may now proceed to examine the nature and scope of the provisions in the two enactments. The object of the Industrial Disputes Act 14 of 1947 is "to make provision for the investigation and settlement of industrial disputes. "Under Section 2(h) industrial dispute is defined as meaning "any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person."

The power of the Government to refer a dispute to a Tribunal arises under Section 10 "If any industrial dispute exists or is apprehended".

The Tribunal hearing -references under the Act acts judicially; Section 11 of the Act makes several provisions of the Civil Procedure Code applicable to the proceedings before it; and its decision was, prior to the enactment of the Industrial Disputes-(Appellate) Tribunal Act 48 of 1950, open to consideration by the High Court under Article 226 of the Constitution and after that Act, it is open-to appeal to the Appellate Tribunal. The award, when final, is binding on both the employer and the employees under Section 15 (2) and Section 18 (a) and their representatives under Section 18 (c) and (d) for such period as may be specified by the Government under Section 19 (3). During that period Section 23 prohibits the employer from declaring a lock out; and the employees from going on a strike; and S, 26 prescribes penalties in case of breach.

6. Turning now to the Minimum Wages Act-11 of 1948, its genesis is to be found in certain resolutions passed at the "Minimum Wage Fixing. Machinery Convention" held at Geneva in 1928. These resolutions are embodied in Article Nos. 223; to 228 of the International Labour Code, Vol. I, pages 167 to 174. The object of these resolutions was to fix minimum wages in industries "in which no arrangements exist for the effective regulations of wages by collective agreement or otherwise, and wages are exceptionally low." Article 224(l), page 169. The Minimum Wages Act was passed for giving effect to these resolutions The preamble to the Act states that "It is expedient to provide for fixing minimum rates of wages in certain employments"; and they are specified in Part I of the schedule. As remarked in "Industrial Awards in India, an Analysis"

"The Act alms at making provision for the statutory fixation of minimum rates of wages in a number of industries wherein 'sweated labour is most prevalent or where there is a big chance of exploitation of labour".

Thus the object of the Act is to provide for fixation of wages in trades in which labour is not. organised and that will be clear from the list of trades enumerated in part I to the schedule. The employer as defined in Section 2(e) will include a person who employs even one person. The fixation of wages under the Act is not on the application of the employee nor is it dependent on the-existence of any dispute. The Act caste on the Government the duty of fixing minimum wages in the trades specified in Part I; and such action has in fact been taken with reference to Tobacco-and Beedi under G.O. No. 5257 dated 17-12-1950; Woollen carpet making and shawl weaving under G.O. No. 710 dated 25-2-1952; stone breaking or stone crushing under G.O. No. 1093 dated 15-3-1952; and employment under local authority under Q. O. No. 1355 dated 29-3-1952. Under Section 5 the fixation of wages is to be made by the Government, after considering the advice of a Committee to be appointed under Section 5(1)(a) of the Act, or the representations that may be made in the matter under Section 5(1)(b), and such fixation is final.

The Government has the power to revise the-rates from time to time. Section 22 provides that any employer who pays less than the minimum wages fixed under the Act shall be liable for certain penalties. Section 25 enacts that any contract whereby an employee relinquishes or reduces this right to minimum wages under the Act shall, to that extent, be null and void.

7. It will be seen from the foregoing summary of the statutory provisions that there are vital differences between the two enactments, both as regards their purpose and their scope. The object of Act 14 of 1947 is to prevent strikes and lock outs, so that production might not suffer and consistently with that object, a reference under the Act could be made only when there is a dispute actual or apprehended. On the other hand, the object' of Act 11 of 1948 is to protect unorganised and dumb labour from being exploited and for achieving that object the Government is to take action suo motu and fix wages within the time mentioned in the statute. While the adjudication of disputes tinder Act 14 of 1947 is to be by a Tribunal exercising judicial functions, the fixation of wages by the Government under Act 11 of 1948 is administrative in character. While an award under Act 14 of 1947 was subject to judicial review by the High Court prior to Act .48 of 1950 and is under that Act open to appeal to the Appellate Tribunal, the fixation of wages under Act 11 of 1948 is final

While an award under Act 14 of 1947 is binding on all the parties during the period specified in Section 19(3) of the Act, the fixation of wages under Act 11 of 1948 is binding on the employer and not on the employees. The differences noted above are substantial in character; and if the 'contention of the petitioner is correct, it must follow that the rights of the parties under Act 14 of 1947 have suffered a material diminution under Act 11 of 1948. No reason has been suggested why there should have been such a sharp change of policy by the Legislature within a year. It is therefore difficult to agree with the petitioner that Act 11 of 1948 was intended, 'eo extanti', to repeal Act 14 of 1947 and. to take its place as a substitute.

8. Mr. K. Rajah Aiyar contends that in spite of the differences aforesaid between the two enactments, so far as fixation of wages was concerned, the position would be the same, whether it had to be done by the Tribunal under Act 14 of 1947 or by the Government under Act 11 of 1948; that under Section 5, Minimum Wages Act, the Government was to be guided by the advice of a Committee; that under Section 9 the Committee was to consist of equal number of representatives of employers and of employees as well as independent persons; that they are to hold enquiry and send their report; that their report could not be different from the award which a Tribunal could make under Act 14 of 1947; that in substance therefore there was no difference between wages as fixed under Act 11 of 1948, and wages as adjudged under Act 14 of 1947; and that there was identity of subject-matter between the two enactments.

He further contended that if the determination of wages under Act 11 of 1948'is not invested with the character of finality, any action taken under that Act would become useless and in-fructuous; that if the next day after wages are fixed, the workmen could raise a dispute over it and the matter could be referred for adjudication to a Tribunal under Act 14 of 1947,- ho purpose would be served by action being taken under Act 11 of 1948; that it could not have been Intended that there should be two enquiries into the same question, one by the Committee under Section 5 of Act 11 of 1948, and another by the Tribunal under Act 14 of 1947 with the 'possibility of conflicting decisions; and that therefore the reason of the thing required that the jurisdiction under Minimum Wages Act should be exclusive and final.

Mr. K. Rajah Aiyar further referred to various anomalies that would arise in case Act 14 of 1947 is held not to have been repealed 'eo extanti' by Act 11 of 1948. What would happen, he asked, if after minimum wages are fixed under Act 11 of 1948 the Tribunal fixes a different figure? Does the fixation under Act 11 of 1948 become automatically null and void? If so, where is the statutory provision for it? Suppose again, he asked, the Government takes action under Section 10 of Act 11 of 1948 and revises the rates after the Tribunal has fixed wages in a reference under Act 14 of 1947, which of them is to prevail? The award will be binding under Act 14 of 1947 for the period specified in Section 19(3) of the Act; therefore during that period the revision under Section 10 cannot take effect; and the result is to render Section 10 inoperative. All this conflict can be resolved, it is argued, by holding that the jurisdiction conferred under Act 14 of 1947 is ousted in matters to which Act 11 of 1948 applies.

9. The argument of the petitioner in support of the repeal by implication can be summed up in the following passages from Maxwell on Interpretation of Statutes: .

"Again if the co-existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later"; 10th Edn., page 168;

and again:

"A later Act which conferred a new right would repeal an earlier right, If the co-existence of such right would produce inconvenience for the Just Inference from such a result would be that the Legislature intended to take the earlier right away." 10th Edn., pages 168-169.

10. The assumption underlying the contentions of the petitioner is that the principles on which the enquiry is to proceed and wages are to be determined are the same under both the Acts. That, however, is not the true position. The scope of an enquiry under Act 11 of 1948 is to fix "minimum wages"; whereas in a reference under Act 14 of 1947, what the Tribunal has to determine is the "wages" that are to be paid to workmen, and the two are not identical. In "Industrial awards in India, an Analysis" it is pointed out that in determining minimum wage three criteria might be adopted: (1) a living wage; (2)' a fair wage; and (3) a wage that is within the capacity of the industry to pay (page 19). In the report of the Central Pay Commission "living wage" is correlated to "poverty line" which it is stated

"may be drawn at the line below which ah Individual would be undernourished or it may be drawn well above the nutritional minimum, at a'point where a choice of diet and the chance of some cultural life or recreation will also be possible";

and then follows the conclusion that "at present we can only aspire to rise above the poverty line in the first sense" (Report dated 1947, page 31).

The Committee of Fair Wages also expressed the opinion that

"the fixation of a minimum wage on the basis of a living wage which ensures not merely a bare physical subsistence but also the maintenance of health and decency, a measure of frugal comfort and some Insurance against the more important misfortunes may not be possible immediately". (Report dated 1949, page 32).

Prom these passages it will be clear that the tendency was to fix minimum wages at the level of "living wage". It is this view that is reflected in the Minimum Wages Act.

Section 4(1) of the Act which deals with this matter is as follows:

"Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under Section 3 may consist of;

(I) a basic rate of wages and a special allowance at a rate to be adjusted, at such Intervals and in such manner as the appropriate Government may .direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the 'cost of living allowance'); or (ii) a basic rate of wages with or without the cost of living allowance, and the cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorised; or

(iii) an all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any."

11. It will be seen that the rate of wages under the Act must differ as it might be determined under one or another of the three categories mentioned in the section and in Section 4(1)(ii), it is expressly provided that it may or may not include the cost of living allowance. The scheme of the Act is to fix a basic wage which can only mean in the context living wage, and the award of anything more is optional and problematical. Mr. K. Rajah-Aiyar quoted Article 232 (1) in the Labour Code as supporting his contention that the "minimum wages" in Act 11 of 1948 meant fair wages. It runs as follows:

"For the purpose of determining the minimum rates of wages to be fixed, the wage fixing body should in any case take account of the necessity of enabling the workers concerned to maintain a suitable standard of living" (Vol. 1, pages 175-176).

But that is only a recommendation to the members to undertake legislation on those lines. We must look to the actual legislation to find out the meaning of "minimum wage". Indeed the reports of the Pay Commission and of the Committee for Fair Wages were, as already seen, against the ad-option of such standard at that stage.

12. Turning now to Act 14 of 1947, when A dispute regarding wages is referred to the adjudication of a Tribunal, the-question that has to be decided is, what is the fair wage to be awarded; on the facts of the particular case. The minimum wage is not, as such, the basis of the decision, though it might in the actual investigation an) out to be a fair wage. It is true that "the living wage basis of minimum wage fixation was given greater emphasis in the earlier awards" (Industrial Awards In India, page 20) but It was not by reason of any statutory provision binding the Tribunal to award wages at that level. As observed later at page 22 "considerations of a capacity to pay" have also latterly entered into the calculations.

13. In view of these fundamental differences in the object and in the scope of the two enactments, it is not possible to apply the rule of repeal by implication. On the other hand, the true rule to apply here is what is thus expressed by Maxwell

"The language of every enactment must be construed as far as possible in accordance with the terms of every other statute, which It does not in express terms modify or repeal" (Interpretation of Statutes, 10th Edn., page 160).

So construing the two statutes the position that emerges might thus be stated. The object of Act 11 of 1948 is to ensure the payment of living wages to workmen. The fixation is made from' the point of view of the workmen. The capacity, of the-employer does not enter into the calculation. It may be that he cannot afford to pay at the rate fixed and may even be obliged to close down; but so long as he continues to employ, he cannot " pay less. Vide Section 22. A rate fixed under those conditions has to be the "minimum"; and that is why its determination is entrusted to administrative authorities. After wages are fixed under Act 11 of 1948, It may happen that the workmen are content to accept them, in which case no further question would arise. But if they do not accept it and ask for more, then there is an industrial dispute; and under Section 10 of Act 14 of 1947, the Government gets jurisdiction to refer it for adjudication by a Tribunal.

The point for decision by the Tribunal is as to fair wages payable to workmen and that must depend on the facts of each case. The minimum wages fixed under Act 11 of 1948 will be the starting point. The Tribunal cannot reduce it; obviously fair wage cannot be anything less than the living wages. That would also give full weight to Section 22 of Act 11 of 1948. There is nothing to preclude the Tribunal from affirming the rate fixed under Act 11 of 1948, if on investigation it turns out to be a fair wage; the fact that the Government has made a reference under Section 19 of Act 14 of 1947 does not involve the conclusion that the minimum wage fixed under Act 11 of 1948 is not fair wage. But the Tribunal is not tied down to that rate, and if on a consideration of all the circumstances including the capacity of the industry to pay more than living wage, it decides that it should be increased, it has ample power to do so. As the subject-matter of adjudication is a dispute between the parties, it is entrusted to the decision of a tribunal and the award is made binding on all the parties.

14. Thus, it will be seen that the scope of the two enactments is different; the respective spheres in which they operate are different and no such conflict can arise in their working as was envisaged by Mr. K. Rajah Aiyar, if his contention that Act 14 of 1947 is by implication repealed by Act 11 of 1948 were not to be upheld. On the other hand, it is its acceptance that will lead to anomalous results. If, as is contended by the petitioner, Act 14 of 1947 is repealed by Act 11 of 1948 by implication, what is the position with reference to disputes that might arise in the industries specified in Part I in the Schedule to Act 11 of 1948 between the coming into force of ' that Act which was on 15-3-1948 and the fixation of wages thereunder which was mostly on various dates in 1952? Which is the authority that could take action in respect of them? None. Could that have been intended?

Mr. K. Rajah Aiyar, realising this difficulty, sought in the course of the argument to modify his position by contending that the bar to make a reference would arise only on the fixation of wages under Act 11 of 1943. But that is not compatible with the theory o an implied repeal. A later enactment can provide when and how far an earlier enactment should stand repealed; and then the repeal will take effect in accordance with those provisions. But such a situation is not possible where the repeal is by implication. The repeal must take effect as and when the later statute comes into force; or not at all. And there are other difficulties as well in accepting even the limited contention of the petitioner that it is the fixation of wages under Act 11 of 1948 that takes the subject-matter out of the operation of Act 14 of 1947. Suppose a reference is made under Section 10 of Act 14 of 1947 before wages are fixed under Act 11 of 1948; but that such fixation takes place while the reference is pending, does that oust the jurisdiction of the Tribunal to proceed with the enquiry?

Mr. K. Rajah Aiyar concedes that on his contention it does. But it is an anomalous conclusion to reach for which there is no warrant in the statute. The above considerations are sufficient to show that the fixation of wages under Act 11 of 1948 does not deprive the Government of its power to take action under Section 10 of Act 14 of 1947; and that the reference cannot be assailed as without jurisdiction. We may add that a somewhat similar contention that the Industrial Tribunal constituted under Act 14 of 1947 had no jurisdiction to hear disputes relating to payment of ' wages by reason of there being a special legislation relating thereto, Payment of Wages Act 4 of 1936, was repelled by the Federal Court in ^--Shamnugger Jute Factory Co. Ltd. v. S.N. Modak', AIR 1949 FC 150 (E) and by this Court in --Electro Mechanical Industries Ltd. v. Industrial Tribunal No. 2', (F).

15. It was also contended by Mr. K. Rajah Aiyar that the reference under Section 10 of Act 14 of 1947 was not, on the facts of this case bona fide. It is difficult to follow this contention. There was undoubtedly an industrial dispute; and the Government had to refer the matter for the adjudication of a Tribunal. The argument of Mr. K. Raiah Aiyar is based on the fact that the reference to the Tribunal was made by G.O. No. 1240 dated 24-3-1952 within four days of the fixation of minimum wages under G.O. No. 1093 dated 20-3-1952 before there was any time to see how i worked.- But that is to forget the history behind the reference.

As already stated, disputes between the management and the employees had started early in 1951. On 20-5-1951 there was a resolution by the Staff Union demanding increase of wages; and on 10-6-1951 the workers' union passed a similar resolution. There was an attempt to settle the matter by negotiation; and there were conciliation proceedings on 16th, 17th and 19th October 1951; but they ended in failure; and on 6-11-1951 the Labour Commissioner reported to the Government that the matter could be settled only by adjudication by a Tribunal; and the reference in question was made in pursuance of this report. We are, therefore, unable to accept the contention that the action of the Government in making a reference is either illegal or unfair. In the result, we hold that the inclusion of the dispute regarding wages in the reference to the tribunal under G.O. No. 1240 dated 24-3-1952 is valid and not open to any objection.

16. The next contention that is urged is that the reference is illegal in so far as it relates to maistries and kole maistries. The argument is that they are not workmen as defined in the Act and that there is no jurisdiction to refer the disputes of persons other than workmen for adjudication by the Tribunal. Section 2(s) defines workmen as meaning

"any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward".

It is argued that the duties of maistries and the kole maistries do not involve any work, manual or clerical, skilled or unskilled and that, therefore, they are not workmen as defined in Section 2(s) of the Act.

But whether a particular person is or is not a workman is a question that has to be decided on proof of the nature of the work which he is to perform and that is a question of fact. It is for the Tribunal to come to a conclusion on the evidence whether having regard to the nature of their duties, maistries and kole maistries are workmen as defined in the Act. Vide 'In re Kadar Moideen', (G). If the Tribunal decides that maistries and kole maistries are not workmen, then it will not make any award with reference to them. It is not for this Court now to decide whether they are workmen or not. That jurisdiction is vested in the Tribunal. See -- 'Rex, v. Fulham', 1951-2 KB 1 at pp. 6, 9 and 11 (H).' (17) This relates to the question of bonus for the period 1949-1950. In paragraph 12 of the affidavit' in'support of the petition, it is stated that this question was settled at a meeting of the employers and workmen on 4-4-1951, that the unionhad withdrawn this demand and that that is also acknowledged by the Labour Officer, Polsachi, in his reference No. 204 of 1952 dated 13-3-1952. It is contended that there is no juris-fiction to refer this matter as there had been a attlement and there was no dispute concerning it. paragraph 9 of the counter affidavit filed on half of the Government it is stated that as the settlement took place on 4-4-1952, the reference rich was made on 24-3-1952 could not be said be illegal. Thus the faetum of settlement accepted. The further statement that it took face on 4-4-1952 is admitted to be a mistake. The reference must accordingly be quashed as regards bonus for 1949-50.

18. The last point urged is that the Government had no Jurisdiction under Act 14 of 1947 to amend a reference made under Section 10, of the Act and that' accordingly the Memorandum No. 59079 dated 25-6-1952 amending the reference made on 24-3-1952 is without Jurisdiction. The objection is one of form and is without substance. It would have been open to the Government to make under Section 10 an Independent reference concerning any matter not covered by the previous reference. That it took the form of an amendment to the existing references & not an additional reference is a mere technicality which does not merit any interference in these proceedings.

19. In the result, there will be an order quash ing the reference so far as bonus for 1949-50 is concerned. Save as aforesaid, the petition will be dismissed with costs, of the workers' advocate fee Rs. 250.


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