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V. Veeramani Vs. Madurai District Cooperative Supply and Marketing Society Limited, Madurai and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.A. No. 67 of 1977
Judge
Reported in(1983)IILLJ88Mad; (1983)IIMLJ49
ActsIndustrial Disputes Act, 1947 - Sections 2, 2A, 8, 10, 10(1), 10(8), 10A, 11, 11(3), 15, 18, 18(3), 33C, 33C(1), 33C(2) and 36
AppellantV. Veeramani
RespondentMadurai District Cooperative Supply and Marketing Society Limited, Madurai and anr.
Cases ReferredV. Bhaskaran v. Union of India
Excerpt:
labour and industrial - dismissal - sections 2, 2a, 8, 10, 10 (1), 10 (8), 10a, 11, 11 (3), 15, 18, 18 (3), 33c, 33c (1), 33c (2) and 36 of industrial disputes act, 1947 - appeal against order passed by single judge dismissing petition to implead appellant as legal representative of deceased workman - section 18 (3) (b) did not confer any power on labour court to implead legal representative of deceased workman - section 33c (1) are not intended to enable legal representative of deceased workman to continue in dispute - principle of actio personalis moritur cum persona applicable - no infirmity in order passed by single judge - appeal liable to be dismissed. - - 1. an interesting question in the realm of industrial jurisprudence arises for our consideration and decision in this.....ratnam, j. 1. an interesting question in the realm of industrial jurisprudence arises for our consideration and decision in this appeal. to lay bare that question and to highlight the controversy, the factual backdrop may be briefly noticed. one thiru veeranan was a senior clerk in the madurai district co-operative supply and marketing society ltd. he was placed in charge of srinivasa mills for a brief period during which a shortage in the stock of grains and pulses was detected in the godown in respect whereof veeranan was also charge-sheeted. a domestic enquiry followed his explanation and as a result of the findings arrived at, veeranan was dismissed from service. this led to a reference by the government under section 10(1) of the industrial disputes act, 1947 (hereinafter referred to.....
Judgment:

Ratnam, J.

1. An interesting question in the realm of industrial jurisprudence arises for our consideration and decision in this appeal. To lay bare that question and to highlight the controversy, the factual backdrop may be briefly noticed. One Thiru Veeranan was a senior clerk in the Madurai District Co-operative Supply and Marketing Society Ltd. He was placed in charge of Srinivasa Mills for a brief period during which a shortage in the stock of grains and pulses was detected in the godown in respect whereof Veeranan was also charge-sheeted. A domestic enquiry followed his explanation and as a result of the findings arrived at, Veeranan was dismissed from service. This led to a reference by the Government under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) to the Labour Court, Madurai, in I.D. No. 65 of 1970 in the following terms :

'1. Whether the non-employment of Thiru C. Veeranan (Godown clerk) is justified, if not, to what relief he would be entitled

2. To compute the relief, if any, awarded, in terms of money, if it can be so computed.'

Pending adjudication of this reference, Veeranan died on 26th January, 1973. The appellant prayed in I.A. 102 of 1973 that he being the only son and heir of deceased Veeranan, should be brought on record and that in the event of an award being passed with back wages, the heirs of deceased Veeranan will be entitled to get those benefits. The respondent opposed this on the ground that the Act being a special and self-contained one and there being no provisions in the Act or in the Rules to implead the legal representatives of a deceased workman concerned in an industrial dispute, the general provisions of the C.P. Code will not apply. Apart from disputing the claim of the appellant as the sole heir of the deceased, the objection that the appellant was not a workman and had therefore no locus standi to prosecute the case further and that the relief asked for by deceased Veeranan was personal to him and would not survive was also raised.

2. The Labour Court, Madurai, found that there is no provision in the Act or in the Rules framed thereunder for impleading the legal representatives of a deceased workman, that the provisions of the C.P. Code would apply to certain specified matters only and not to all and therefore, on the death of a workman pending adjudication of an industrial dispute, no legal representatives can be brought on record. Dealing with the contention raised by the appellant that the relief prayed for was not personal to the deceased and therefore the legal representative could be brought on record, the Labour Court concluded that the question in each case depended upon the nature as well as the character of the dispute and that in the present case, the dispute referred to the Labour Court for adjudication was purely personal to the deceased workman and on his demise, his legal representative cannot, therefore, be permitted to come on record or further prosecute the proceedings in the place of the deceased worker. Ultimately, the petition was held to be not maintainable and dismissed. Consequent to the dismissal of I.A. 102 of 1973, an award was passed in I.D. 65 of 1970 dismissing the reference.

3. Thereupon, in W.P. No. 6555 of 1973, the appellant prayed for the issue of a writ of certiorari to quash the order in I.A. 102 of 1973 and to restore I.D. 65 of 1970 for disposal according to law. Therein, the appellant stated that Section 18(3) of the Act empowers the Labour Court to implead the legal representative of a deceased workman. A further point was raised that the relief of back wages till retirement could be given to the workman, though dead, that a benefit belonging to the estate of the deceased workman, could be secured by his legal representative and therefore, that would enable him or her, as a person interested, to come on record. The principle of action personalis moritur cum persona, was inapplicable to industrial adjudications, according to the appellant. Referring to Section 33C(1) of the Act, it was contended that if, in the case of proceedings in the nature of execution, the legal representative could participate therein it was anomalous that it was unavailable at the time of the passing of such orders.

4. The respondent disputed the claim of the appellant on the ground that the subject matter of the reference under Section 10(1) of the Act related to the non-employment of deceased Veeranan and that the relief or benefit, if any, to which he might have become entitled, was purely personal to him and not having been quantified, it could not mature into an estate so as to enable his legal representatives to claim the benefits thereof. The claim by the appellant, a non-workman, cannot either be recognised or adjudicated upon by the Labour Court, functioning under the Act, according to the respondent, as on the death of the workman, there was no live industrial dispute as envisaged under the provisions of the Act. A further objections was also raised that the provisions of the Act do not at all contemplate the adjudication of a claim to the estate of a deceased workman at the instance of his heirs. The respondent characterised the claim of the legal representative of the deceased workman on behalf of the estate as one of a civil nature outside the scope of adjudicatory powers of the Labour Court under the Act. The nature and scope of an adjudication under Section 33C(1) and (2) of the Act were entirely different and the claim of a legal representative of a deceased workman to continue the proceedings cannot, according to the stand of the respondent, be rested on such basis.

5. Before the learned Judge, who heard the writ petition, it was admitted that there is no provision either in the Act or in the Rules framed thereunder (Central or Tamil Nadu) to implead the legal representative of a deceased workman as a party to pending proceedings. The learned Judge took the view that the existence of the employee or workman is essential to keep alive a dispute for the purpose of adjudication and that on the death of a workman pending a reference, nothing remained to be adjudicated upon, as the dispute ceased to exist as an industrial dispute. Section 18(3)(b) of the Act, according to the learned Judge, did not confer any power on the Labour Court to implead the legal representative of a deceased workman. The learned Judge was further of the view that Section 33C(1) of the Act and other related provisions are not intended to enable the legal representative of a deceased workman to continue the dispute. Applying the principle of actio personalis moritur cum persona, the learned Judge finally dismissed the writ petition, the correctness of which is challenged in this appeal.

6. To begin with, the learned counsel for the appellant submitted that the Labour Court, in dealing with a reference under Section 10(1), has powers under Section 18(3)(b) of the Act to implead other parties to the proceedings before it. Reliance in this connection was placed on the decision of the Supreme Court in Hochtief Gammon v. Industrial Tribunal, Bhuvaneshwar, Orissa, : (1964)IILLJ460SC . On the other hand, the learned counsel for the respondent contended that neither in the Act nor in the Rules framed thereunder, any provision for impleading the legal representative of a deceased workman has been made and that the power conferred under Section 18(3)(b) of the Act, being a limited power, would not extend to or cover cases of addition of legal representative of a deceased workman. The power under Section 18(3)(b) of the Act, according to the learned counsel for the respondent, would be available only to implead other parties to the proceedings, if such parties are to be added, while the party to the reference is alive.

7. Section 11(3) of the Act enumerates the powers of the Labour Court for purposes of facilitating an enquiry into an industrial dispute. Such powers are described to be the same as vested in a Civil Court under the provisions of the Code of Civil Procedure, while trying a suit and limited to the following matters :

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and material objects;

(c) issuing commissions for the examination of witnesses and

(d) in respect of such other matters as may be prescribed.

8. The power to bring on record the legal representative of a deceased workman in a pending industrial dispute is not one of powers conferred under Section 11(3) of the Act. It is also common ground that there is no rule enabling the impleading or bringing on record of the legal representative of a deceased workman. In this state of the provisions of the Act and the Rules, there is no power in the Labour Court to bring on record the legal representative of a deceased workman. Only on account of the absence of such specific power, the learned counsel for the appellant had to fall back on Section 18(3)(b) of the Act to infer such an implied power. Section 18(3)(b) of the Act declares that a settlement or award of the Labour Court, Tribunal or National Tribunal shall be binding on all the parties summoned to appear in the proceedings as parties to the dispute, unless the Labour Court or Tribunal records an opinion that they were summoned without cause. All that is contemplated by S. 18(3)(b) of the Act is that having regard to the terms of the reference, the Labour Court or Tribunal, if it feels necessary, may summon persons, who have not been joined in the reference, so that the Labour Curt or Tribunal may pass orders, which could be effective and binding on them as well. Such a power can be exercised by the Labour Court only with a view to effectively adjudicate upon the dispute as raised and referred and not with a view to otherwise expand or enlarge its scope, as the very jurisdiction of the Tribunal or Labour Court to deal with an industrial dispute, stems from the order of reference passed by the appropriate Government under Section 10(1) of the Act. If the power under Section 18(3)(b) to summon parties is to be construed as being wide enough to implead the heir and legal representative of a deceased workman, the Labour Court or Tribunal, by the exercise of that power, will be altering, changing and enlarging the reference made under Section 10(1) of the Act. The terms of the reference in any particular case determine the amplitude of the jurisdiction as well as the scope of powers exercisable in such a case. Viewed in this light, the power of the Tribunal to summon parties is narrow and limited and is confined to cases where the summoning of the party is necessary to make the adjudication of the dispute as referred effective and enforceable. To read into Section 18(3)(b) of the Act a wider power in the Labour Court to summon or even implead the heirs or the legal representatives of a deceased workman and to entertain their claim on behalf of the estate of the deceased workman, will result in a wholesale substitution of an industrial dispute as referred by another dispute between the heirs of the deceased workman and the employer, which is not contemplated by the provisions of the Act and would be outside it. The aforesaid limitations have been pointed out by the Supreme Court in the decision in Hochtief Gammon v. Industrial Tribunal, Bhuvaneshwar, Orissa (supra). In relation to a dispute referred to a Labour Court or Tribunal for adjudication, if the Tribunal or Labour Court is of the view that a party named in the order of reference does not completely or adequately represent the interest of either the employer or the employee, then it may direct that other persons also should be summoned to represent such interest and that would only be in the nature of addition of a party in the presence of others, who are already parties. Such a power cannot be used to enlarge the scope of the reference with a view to secure an adjudication of a claim which would not fall within the purview of the Act at all. Besides, Section 18(3)(b) of the Act, while declaring the binding nature of the award or settlement, envisages only workmen employed in the establishment or part of the establishment on the establishment or part of the establishment on the date of the dispute or who become subsequently employed therein. The legal representative or heir of a deceased workman is not contemplated at all as a person bound by the award and a power to implead the legal representative or heir of a deceased workman cannot be inferred. We therefore reject the contention of the learned counsel for the appellant that under Section 18(3)(b) of the Act, the Labour Court has such an implied power.

9. The learned counsel for the appellant next submitted that the death of a workman pending adjudication of an industrial dispute referred to the Labour Court cannot terminate the proceedings, but that the reference must be dealt with and disposed of by the Labour Court resulting in an award in accordance with the provisions of the Act, leaving the parties to work out their rights in accordance with Section 33C(1) of the Act. Elaborating this argument, the learned counsel for the appellant said that an industrial dispute with reference to the non-employment of a workman had wider ramifications and concerned the interest of the entire community of workmen and touched upon industrial peace as well and cannot therefore be regarded as being confined personally to the particular workman. Reference was made also to Section 33C(2) of the Act to say that even a heir or legal representative can make an application thereunder. The principle that even the closure of an industry would not render the dispute already referred any the less an industrial dispute was also pressed into service by the learned counsel for the appellant. A number of decisions referred to later in the course of this judgment, were also relied on in this connection.

10. Per contra, the learned counsel for the respondent contended that on the death of a workman who had occasioned an industrial dispute and a reference, the whole proceeding will come to an end, as there is no workman at all, much less any subsisting dispute between the workman and the employer and therefore the Labour Court cannot proceed to adjudicate upon anything else, except to dispose of the reference rejecting the claim of the workman and that such an order would also be in the nature of an award within the meaning of the Act. It was also further pointed out that on the facts of the present case, there was no question of the community of the workmen acquiring an interest in the dispute raised or any matter relating to industrial peace, but that it was purely the personal claim of the deceased workman against the respondent, which would not survive on his demise. The analogy of the effect of the closure of an industry on a pending industrial dispute or consideration which would be applicable to proceedings under Section 33C(1) and (2) of the Act, has no relevance and application in the present case, according to the learned counsel for the respondent.

11. Before proceeding to consider these submissions, it is necessary to bear in mind a few of the relevant provisions of the Act. Section 2(b) of the Act defines in 'award' as an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10A. Section 2(g) defines an 'employer'. What is meant by an 'industry' is stated in Section 2(j) of the Act. Section 2(k) defines 'industrial dispute' thus :

''industrial dispute' means 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.'

12. Under Section 2(s) of the Act 'workman' is defined as any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -

(i) who is subject to the Army Act, 1950, or the Air Force Act, 1960 or the Navy (Discipline) Act 1934; or

(ii) who is employed in the police services or as an officer or other employee of prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Section 2A of the Act deems any dispute or difference arising between a workman and the employer connected with or arising out of the discharge, dismissal, retrenchment or termination of the services of an individual workman also as an industrial dispute, notwithstanding that no other workman or any union of workmen is a party to the dispute. Section 10 provides for reference of disputes to Boards, Courts or Tribunals. Under that provision, the appropriate Government, if it is of the opinion that an industrial dispute either exists or is apprehended, may refer the dispute for adjudication. Section 11 deals with the procedure and powers of an arbitrator, Board, Court, Labour Court etc., Section 11(3) (already noticed) catalogues the procedure and powers of a Labour Court etc. for purposes of enquiry into an industrial dispute referred to it. Such powers are described to be the same as vested in a Civil Court under the provisions of the Code of Civil Procedure, while trying a suit but limited to certain specified matters. Section 15 enjoins upon a Labour Court, Tribunal or National Tribunal to which an industrial dispute has been referred for adjudication to expeditiously hold its proceedings and submit an award to the Government. Section 18 of the Act declares the binding nature of a settlement, arbitration award, award of Labour Court, Tribunal or National Tribunal, which has become enforceable, on all the parties to a dispute and all other parties summoned to appear in the proceedings as parties to the dispute unless the Labour Court or Tribunal is of opinion that they were summoned without proper cause. Section 18(3)(c) specifically provides that where the party to an industrial dispute is an employer or where the party summoned to appear in the proceedings is an employer, then the agreement or award would be binding upon the heirs, successors or assigns of the employer in respect of the establishment to which the dispute relates. However, Section 18(d) of the Act states that where a party to an industrial despite or those summoned to appear before the Labour Court in the proceedings as parties to the dispute are workmen, then all persons employed in the establishment to which the dispute relates on the date of the dispute and all persons who subsequently become employed in the establishment or part thereof, would be bound by the award. It is unnecessary to refer to the other provisions of the Act, excepting Section 33C which will be dealt with later.

13. We now proceed to consider in the light of the above provisions of the Act the nature of an industrial dispute and the effect of the death of the workman on such a dispute pending adjudication on a reference under Section 10(1) of the Act. We have already noticed that neither under the provisions of the Act nor under the Industrial Disputes Rules (Central and Tamil Nadu Industrial Disputes Rules) is there any power in the authorities functioning under the Act by the exercise of which the heir or the legal representative of a deceased workman can be impleaded as a party to the proceedings in order to enable such a person to further prosecute the matter referred to for adjudication. The provisions of the Act and the rules do not postulate that the legal representative or heir of a deceased workman was in the contemplation of the Act (except to the limited extent under Section 33C(1) of the Act) or the Rules as a person who could be subjected to the provisions of the Act for purposes of adjudication or enabled to take advantage of or be benefited with reference to matters dealt with by the Act. The very definition of an 'industrial dispute' under Section 2(k) of the Act speaks of disputes or difference connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person and arising between the employers and employees, or between employers and workmen, or between workmen and workmen. The definition of 'workman' under Section 2(s) of the Act now includes a dismissed workman, but does not, as yet, take in the heir or the legal representative of a deceased workman. Thus the legal representative of a deceased workman is not within the definition of 'workman' in the Act. In this case, the industrial dispute arose out of the non-employment of the father of the appellant by the respondent. Section 10 of the Act empowers the Government to make a reference only if a dispute or difference either exists or is apprehended between the employer and the workmen. The existence or apprehension of the dispute is the occasion for reference under Section 10(1) of the Act and the reference cannot outlive the dispute. On the death of the workman, in this case, the dispute relating to his non-employment ceased and no dispute capable of either a settlement or adjudication resulting in the giving of relief by one party to the other would thereafter remain. Besides, the person regarding whom a dispute is raised must be one in whose employment or non-employment or conditions of labour, the parties to the dispute should have a direct or a subsisting interest. In the case of a dead workman, there is no such interest and there is no scope for giving relief to a dead workman. The terms of reference set out earlier concerned itself with dismissal of the deceased workman only. The dispute was raised and referred to redress the wrong done to an individual. It did not touch upon or affect the rights of the other workmen or impinge upon the conditions of labour generally. We are not impressed by the argument that the proceedings have to be continued by the heir or legal representative of the deceased workman on the basis that an industrial adjudication is in the nature of collective bargaining aimed at securing industrial peace. If the wrong is done to an individual, as in this case and collective bargaining as normally understood is directed towards securing something objective, then, we do not see how there can be any attempt at such collective bargaining with reference to something that does not really exist. No useful purpose after the death of the workman will be served by a revival of the cold and dead members of the dispute. Even accepting the contention of the appellant, under the provisions of the Act, as they now stand, there can at best be an award in favour of a dead workman. But there is no provision under the Act which enables the heir or legal representative to realise the fruits of such an award. Apart from the definition of workman already noticed which excluded from its scope, the legal representative or heir of a deceased workman, Section 18 of the Act would also indicate that an award may not be binding upon the legal representative of a deceased workman. In declaring under Section 18(3)(a) and (b), the binding nature of a settlement or an award on the parties to the industrial dispute and also on other parties summoned to appear in the proceedings as parties Section 18(3)(c) specifically provides that in cases provided for under Section 18(3)(a) and (b) not only the employer but his heirs, successors or assigns in respect of the establishment to which the dispute relates would also be bound by the settlement or the award. However, while referring to the binding on nature of such an award on workman under S. 18(3)(d), it is not declared to be binding on the heirs or the legal representatives of the workman but only on such persons who are employed in the establishment or part of the establishment to which the dispute relates on the date of the dispute and also other persons who subsequently became employed in that establishment. The enumeration of different classes of persons on whom the award would be binding and the clear exclusion in Section 18(3)(d) of the heirs and legal representatives of a deceased workman are significant. This clearly brings out that it was never in the contemplation of the Act that the heir or legal representative should be bound by the settlement or the award. It is difficult and indeed illogical to conceive of rights in favour of heir or legal representative of a deceased workman without the award or settlement having been declared to binding on him. This would also establish that the heir or legal representative of a deceased workman is outside the scheme of the Act. That this is so is made further clear by Parliamentary resuscitation attempted by breathing fresh air as it were into a dead dispute by the introduction of an amendment to Section 10 of the principal Act by Section 8 of the Industrial Disputes (Amendment) Act 1982 (Bill No. 47 of 1982). A new sub-section under Section 10(8) has been provided to the following effect :

'No proceeding pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman and such Labour Court, Tribunal or National Tribunal shall complete such proceeding and submit its award to the appropriate Government.'

The need for making such a provision is obvious. According to the provisions of the Act as they now stand, on the death of a workman, the proceedings cannot be continued by the heir or the legal representative of the deceased workman. This situation has been attempted to be remedied by legislation. It has to be remembered that the reference of a dispute for adjudication is very different from entertaining and adjudicating upon the claims by the legal representatives of a deceased workman. Avowedly, the Act is intended to resolve disputes between the employers and the workmen and the existence or the apprehension of an industrial dispute is the sine qua non for a reference by the appropriate Government. In other words, the existence of apprehension of a difference or dispute between the employer and workman affords the cause of action for a reference under Section 10 of the Act, while the death of a workman furnishes the cause of action for the heir or legal representative, who, as seen earlier, has no place in the scheme of the Industrial Disputes Act, to represent the estate of the workman. The foundation of the claim of the workman is very different from that of his heir or legal representative. While, an industrial dispute in respect of the resolution of which provisions have been made in the Act presupposes the existence of the employer, the workmen and also a dispute, the claim of the heir or legal representative does not depend upon either relationship of the employer and employee or the existence of the dispute, but arises solely on account of and as a consequence of the demise of the workman. Such claims are outside the pale of the Act and it is because of this, there is no machinery provided enabling the authorities under the Act to adjudicate upon such claims. The Act is a self-contained Act designed to make provision for the investigation and settlement of industrial disputes. Within the framework of such an Act, there is no scope whatever for the continuation of a reference after the death of the workman by the heir or legal representative of a deceased workman or the adjudication of a claim on behalf of a person who is not a workman against the employer. Besides, the right of representation of the worker by the union contemplated under Section 36 of the Act postulates the continued existence of the workman as well as the dispute, as the death of a workman snaps the relationship of principal and agent and the union cannot represent the deceased workman any longer. Nor can there be representation of the legal representatives by the union after the death of the workman. Prima facie, therefore, no the basis of the provisions of the Act, the Labour Court or the Tribunal cannot recognise the heir or legal representative of a deceased workman or a claim at his or her instance on behalf of the estate of the deceased workman and permit the further prosecution of the proceedings. To read into the provisions of the Act a power in the Labour Court to recognise the heir or legal representative and also to adjudicate upon their claims would be to depart from the plain provisions of the Act. We would then be not construing or interpreting the Act as it is, but substantially rep-enacting it by adding to or varying the words in it.

14. Earlier, it has been pointed out how the heir or the legal representative of the deceased workman has no place at all in the scheme of the Act or under its provisions. In this case, there was only the dispute relating to the non-employment of the deceased father of the appellant, which formed the subject matter of reference by the Government under Section 10(1) of the Act. The non-employment of the father of the appellant did not concern the interest or the conditions of labour of the other workmen generally. We do not see how in such a case the interest of the other workmen was either at stake or they had otherwise acquired an interest in the dispute. Though in form an industrial dispute was raised and referred, the other workmen were neither interested in the adjudication nor had acquired such an interest over the subject matter of the dispute referred so as to claim that the proceedings must go on despite the death of the worker in the larger interests of the workmen. The dispute, in this case, in its origin, was only an individual dispute in that it related exclusively to the dismissal of the father of the appellant, but was deemed an industrial dispute by reason of Section 2A of the Act. That would not however make any difference with reference to the effect of the death of the workman on the industrial dispute. The scope of the adjudication could not have had wider repercussions and affected the conditions of service of the other workmen as well. Under these circumstances, the question whether the principle of actio personalis moritur cum persona would apply has to be considered. Though subjected to the criticism as being obscure in origin, inaccurate in expression, uncertain in application and resulting in grave injustice as well, the doctrine has nevertheless been applied by courts to personal actions. In the filed of industrial adjudication governed by specific statutory provisions, there is no scope for the adjudication of a claim by the heir or the legal representative of a deceased workman against the employer and therefore where the dispute referred affects an individual as in this case, the doctrine of actio personalis moritur cum persona is in-applicable. We therefore reject this contention of the learned counsel for the appellant as well.

15. An attempt was made to argue that in matters like this, the Tribunal must necessarily proceed to give its award irrespective of the death of the workmen in accordance with the provisions of the Act. We have earlier pointed out that there is no question of either recognising the heir or the legal representative of a deceased workman or entertaining any claim at his or her instance on behalf of the deceased workman and if that be so, there is nothing further to be adjudicated upon with the result that necessarily the proceedings have to come to a close and the reference will have to stand either rejected or dismissed as in this case and that would also be determination of an industrial dispute so as to be termed an award within the meaning of the Act.

16. We now revert to consideration arising under S. 33C of the Act, upon which considerable reliance was placed by the learned counsel for the appellant. It may be recalled that in this case, we are concerned only with the effect of the death of a workman on a reference made which is pending adjudication at the time of his death. The entitlement of the workman either to reinstatement or back wages in lieu thereof, had not in this case been admitted or adjudicated upon S. 33C(1) and (2) of the Act are special provisions conferring a power and effective remedy on the workman to enforce or execute adjudicated rights and to realise the benefits of the existing rights. That may involve not only the enforcement or execution of admitted or adjudicated or even established rights, but also an enquiry or investigation into disputed rights and enforcement of such rights as well. S. 33C(1) of the Act speaks of recovery of any money due to a workman from an employer under a settlement or an award or under the provisions of Chapter V A or V B. This enabling provision assists the workman or other persons authorised by him in writing or in the case of the death of a workman, his assignees or heirs, to make an application for the recovery of money due to the workman and if the Government is satisfied that any amount of money is due, then it shall issue a certificate for that amount which shall be recovered as an arrear of land revenue. S. 33C(1) of the Act thus proceeds on the basis of an antecedent adjudication of the right of the workman as well as the liability of the employer and provides the machinery for execution. S. 33C(1) also provides for a case where the right of the workman and the liability of the employer had been earlier adjudicated upon and the workman does not live to realise the fruits of the adjudication. In such an event, the heir or the legal representative of a dead workman can claim those benefits. The recognition of the heir or the legal representative of a deceased workman by the Act is only to this limited extent and purpose and no more. This is yet another indication in the Act to show that in cases where the reference is pending adjudication, the heirs or the legal representatives of a deceased workman have no place under the scheme of the Act. S. 33C(2) of the Act, on the other hand, contemplates only a workman entitled to receive from the employer any money or any benefit, which is capable of being computed in terms of money and if any question arises as to the amount of money due or the amount at which such benefit should be computed, then the question may be decided by the Labour Court. The distinction between S. 33C(1) and (2) is obvious. While S. 33C(1) confers the right of the recovery of money on the basis of an adjudicated claim on the workman and his heirs or legal representatives, S. 33C(2) enables the workman alone to seek a computation. The legal representative or heir of a deceased workman is farthest from the contemplation of S. 33C(2), for the definition of 'workman' under S. 2(s) of the Act, when read into S. 33C(2), does not include the heir or legal representative of a deceased workman. Besides, a claim under S. 33C(2) may even take in an enquiry into the existence of the right as incidental to the main determination of the entitlement of the worker provided for under S. 33C(2) and the computation thereof. Thus, the object and scope of S. 33C(1) and (2) are very different from S. 10 under which the reference has been made in this case and those provisions cannot be therefore relied upon to enable a legal representative to continue the proceedings. Indeed, the Supreme Court in the Central Bank of India Ltd. v. P. S. Rajagopalan : (1963)IILLJ89SC has pointed out that S. 33C(2) of the Act takes within its purview cases of workmen, who claim that the benefit to which they are entitled should be computed in terms of money, even though the right or benefit on which the claim is based is disputed by their employers. Advertising to the legislative history of S. 33C of the Act, the Supreme Court held that the construction of S. 33C should not be so broad as to bring within itself cases which would fall under S. 10(1) of the Act and that industrial disputes arising between the employee and the employer must be adjudicated upon in the manner prescribed by the Act. The Supreme Court cautioned that though in determining the scope of S. 33C, cases which legitimately fall within its purview are not to be excluded, yet, it must be borne in mind that cases which fall under S. 10(1) of the Act cannot also be brought within the scope of S. 33C. In view of this and also the non-applicability of S. 33C(1) and (2) of the Act, we do not think it is necessary to dwell further on this aspect or to make a detailed reference to some of the decisions rendered under the provisions of S. 33C(1) or (2) of the Act.

17. We now proceed to refer briefly to a few of the decisions directly touching upon the main point for consideration which had been dealt with in the foregoing paragraphs.

18. In Management of Tocklai Experimental Station, Cinnamara v. State of Assam. (AIR 1960 Assam 132) a drunk driver was charge-sheeted and suspended and the management terminated his services after giving a month's salary in lieu of notice. This was on 12th December, 1957. The driver died on 20th May, 1958. The appropriate State Government made a reference under S. 10(1)(c) of the Act on 25th June, 1958. Before the Labour Court, a contention was raised that the reference had become void on the death of the driver and that there was no industrial dispute at all within the meaning of S. 2(k) of the Act. Two preliminary issues were raised on the question relating to the void nature of the reference and also the substitution of the legal representative of the deceased workman for the further conduct of the proceedings before the Labour Court. Both the preliminary issues were answered against the management which filed writs to quash the notification and also for restraining the Tribunal from dealing with the matter. Malhotra J., held that a dispute ceased to be an individual dispute when taken up by the workman and therefore, the death of the workman does not put an end to the dispute or make the dispute cease to exist as an industrial dispute and that it was a fallacy to assume that the workman whose non-employment was the subject matter of the dispute is a party to the dispute. Sarjoo Prosad C.J., took a different view on the question of the survival of the dispute on the death of a workman and stated that that would depend upon whether the individual alone was affected or whether all workmen or a class of them were affected and that in the case of a dispute leading to a reference on the basis of a wrong done to an individual worker, there is no question of any collective bargaining after the death of the workman. The learned Chief Justice emphasised upon the futility in raking up the cold and dead embers of the dispute after the death of the workman, as collective bargaining could be only for something objective and not in respect of that which does not exist and pointed out that the dispute itself would not survive, especially when there was no provision for the substitution of the heirs or the legal representatives for award of compensation in their favour. It was also further pointed out that even if an award could be passed in favour of the legal representatives, there was no provision enabling them to realise the fruits of the award. Ultimately, the learned Judge stated that the incompetency of the Labour Court, in that regard would just be the same irrespective of whether reinstatement or compensation was the relief. On these divergent views, the matter was referred to the opinion of Deka J., who was of the opinion that a real dispute capable of settlement or adjudication by which one party to the dispute is given relief by the other as a result of adjudication must exist and that the person regarding whom the dispute had been raised must be one in whose employment or non-employment, terms of employment or conditions of labour, the parties to the dispute must have a direct or substantial interest as well. According to the learned Judge, the workers in that case did not have either a direct or substantial interest in the employment or non-enjoyment of one who died and that there was no community of interest of a class as a whole, which was the nexus between the dispute and the parties to the dispute and that therefore, the dispute could not be continued by the heir or the legal representative of the deceased workman. The majority of the Judges were of the opinion that on the death of a workman pending a reference under S. 10(1) of the Act, nothing, further survived for adjudication by the Labour Court. In Bihar Working Journalists Union v. H. K. Chaudhuri : AIR1968Pat135 , the Patna High Court dealt with a case of reference made regarding the pay and emoluments of three chief sub-editors, one of whom died pending adjudication. The Tribunal held that it had no jurisdiction to adjudicate upon the claim put forth on behalf of the deceased person. The Bihar Working Journalists' Union contended that the order of Tribunal was erroneous as the Union was the real contesting party, that the Tribunal cannot refuse to give its award on the merits of the industrial dispute and that the Tribunal should have further proceeded with the adjudication of the dispute after bringing on record the legal representatives. Dealing with the question of the survival of the dispute on the death of a workman, it was held that that would depend upon the nature and character of the dispute and that there was no erroneous assumption on the part of the Tribunal that the dispute raised and referred was entirely a personal dispute as the successors-in-office of the deceased workman were no less interested in the adjudication of that dispute. In the course of the judgment, it was pointed out that the representation by others of the cause of one workman can be taken up and continued only so long as the worker is alive and that would cease on his death and the union cannot act on behalf of the legal representatives of the deceased worker. The Bench also expressed the view that the union can really have no concern over the monetary claim of the heirs or the legal representatives of the deceased workman as they can always pursue their remedies in a court of law and that S. 18(3)(c) and (d) make it clear that there was no intention whatever to provide for the adjudication of an industrial dispute at the instance of the heir or the legal representative. The circumstance that there cannot be any reinstatement, if the workman dies, was also relied upon to hold that the proceedings would terminate. However, it was pointed out that if a dispute touched upon the statue of a successor workman as well, it might still survive. Ultimately, the order of the Tribunal was upheld. In our view, having regard to the statutory framework within which the adjudication of an industrial dispute referred to Labour Court has to be done, there is really no scope for contending particularly on the facts of this case, that the dispute would survive. We have already indicated our reasons earlier. Reliance however was placed on the case reported in Gwalior Rayons, Mavoor v. Labour Court : (1978)IILLJ188Ker was of the view that the scope of the adjudication under the Industrial Disputes Act was wider than determination of legal rights of the parties involved or redressing the grievances of a workman, that the maintenance of peaceful relationship between the parties is essential as otherwise the entire community of workers and their interest would be affected an that an industrial dispute cannot be equated to a personal action in torts. In this view, the learned Judge held that the death of the workman would not in any manner affect the further course of the proceedings and that any benefit that could have been made available to the deceased employee can also be realised on behalf of his estate by the heirs of the deceased under S. 33C(2) of the Act. Management of Bank of Baroda v. Workmen : (1979)IILLJ57Guj had to consider the correctness of the decision of the Tribunal to the effect that despite the death of the workman, the industrial dispute survived, as the remaining workmen employed by the Bank were interested in the adjudication of the dispute and all workmen employed by the Bank were concerned. This conclusion of the Tribunal was upheld by the Court on the ground that even in the case of the death of a workman in an industrial dispute the heir or legal representative can agitate the question and that S. 306 of the Succession Act also would enable the heir or the legal representative of the deceased workman to prosecute the proceedings before the Tribunal. Reliance was also placed on the decision in the U.P. Electric Supply Co. Ltd. v. Workmen : (1971)IILLJ528SC . The question that arose in that decision was whether the closure of an industry would preclude the adjudication of a claim for past bonus on the basis of past services rendered. It was in that context the Supreme Court pointed out that such a claim is not wiped out by the subsequent closure, as the dispute was an alive one, when it was referred for adjudication and that the closure cannot even annul the adjudication. In that case, the U.P. Electricity Supply Co. Ltd., which had been carrying on business in generation and distribution of electricity was compulsorily acquired by the U.P. Electricity Board and the award was given after the compulsory acquisition. In dealing with the contention raised by the U.P. Electricity Supply Co. Ltd., to the effect that its industry had ceased to exist and any adjudication in respect of a dispute which had occurred prior to the acquisition would become ineffective, the Supreme Court pointed out that if the dispute related to past working of the industry and in particular where the claim of the workmen was for benefits which had accrued to them in the past, it cannot be said that the adjudication was without any purpose. In the instant case, the claim of the deceased workman was not with reference to any past services rendered by him and therefore the decision of the Supreme Court cannot be applied in the instant case. The judgment of Gokulakrishnan J., in A. Ramaswami Thevar v. Madurai Mills Ltd. Co. S.A. No. 1311 of 1974, dated 4th March 1975, was relied on. The question that was dealt with by the learned Judge was whether the civil court had jurisdiction to grant a declaration with reference to the date of birth and also an injunction restraining the management from compulsorily retiring him. The objection raised by the management was that the matter squarely fell under the provisions of the Industrial Disputes Act and under the guise of getting a declaration as to the correct date of birth, the workman cannot be permitted to circumvent the provisions of the Act.

Gokulakrishnan J., was of the view that the dispute in effect was between the employer and the employee falling within the scope of the Industrial Disputes Act within the meaning of S. 2(k) of the Act, and therefore, the civil court had no jurisdiction to entertain the suit. That decision has no application on the facts and in the circumstances of the present case. V. Bhaskaran v. Union of India : (1982)ILLJ485Ker to which our attention was drawn had to consider whether a writ petition challenging the order of dismissal for misconduct can be prosecuted by the legal representatives of the deceased workman. George Vadakkel J., was of the view that though there are no provisions either in the Act or in the Rules framed thereunder, the legal representative of a deceased workman, can prosecute the proceedings and that S. 2A is intended to confer on a workman a right to agitate his grievance and that right can be agitated by his legal representative as well.

19. With reference to the case referred to earlier where the view has been expressed that the legal representatives can also be permitted to prosecute the proceedings in the place of the deceased workman, it has to be remembered that the provisions of the Act, as they stand now, do not provide for such a situation at all. The adjudication of an industrial dispute has to be made only in accordance with the provisions of the Act and the Rules thereunder and if the Act or the Rules do not permit the legal representative or the heir of the deceased workman to further prosecute the proceedings, be it a reference or other proceeding, then it is not for the courts to step in and say that despite the absence of the provisions to that effect, they can do so. The courts will not be interpreting the provisions of the Act as they stand, but probably be indulging in legislation. Again, it has to be noticed that there is an underlying erroneous assumption in all these cases that the legal representatives of a deceased workman could also be subjected to the provisions of the Act, that they are also workmen, their interest is also identical with that of the deceased workman and that such interest can be continued to be represented by others or the Union. The nature of the dispute and its impact on the workman concerned and the rest of the workmen will have a material bearing on the question of the survival of the dispute after the death of the workman. In view of the above considerations, the cases relied on by the learned counsel for the appellant cannot assist him as the different aspects pointed out earlier have not been borne in mind.

20. There is yet another fanciful and erroneous assumption on which some of the decisions have proceeded and that relates to the scope of an industrial adjudication which is stated to be wider than the determination of the legal rights or redressing grievances. Whatever may be the label given to the process or mode of adjudication or determination, ultimately, it is only a question of considering and upholding legal rights stemming from statute and redressal in accordance with the Act of all injuries or grievances by the Labour Court or the Tribunal in relation to a workman. In that sense, the scope of an industrial adjudication cannot be enlarged or considered to be wider than what it actually is or what has been provided for in the statute. An understanding regarding the nature of an industrial dispute and the scope of adjudication has to be secured only from the reference and the provisions of the Act and not de hors that. It is not permissible to look beyond the Act to sustain a procedure not warranted by it in determination of industrial disputes and justify it on consideration of wider implications of an industrial dispute, community of interest and securing and maintenance of industrial peace etc. For the reasons which we have set out in extenso earlier based on the provisions of the Act and the related aspects arising therefrom, we are of the view that the legal representative or heir of a deceased workman cannot seek to come on record and continue further proceedings. The reliance placed upon the provisions of the Legal Representatives Suits Act 1855, will not also avail, as the right of action is with reference to the pecuniary loss to the estate owing to the wrong committed in the lifetime of a person in respect of which the deceased himself might have maintained an action. Similarly, a right of action is also provided in respect of a wrong done by the deceased in his lifetime for which he could have been subjected to an action within one year proper to his death. The damages shall in the first case form part of the estate of the deceased and be payable as a debt in the latter event. S. 2 provided that any action commenced under the provisions of that Act shall not abate by reason of the death of either party. These provisions do not apply to the case of an industrial dispute properly referred for an adjudication under S. 10 of the Act. S. 306 of the Indian Succession Act cannot also be pressed into service as it had been earlier found that the basis of the industrial dispute in this case was the non-employment of the father of the appellant, which was personal to the deceased workman. In addition, the granting of the relief of either reinstatement or award of compensation in lieu thereof, could not be enjoyed by the deceased workman and would be nugatory as well.

21. For the foregoing reasons, the Labour Court was quite correct in having rejected the application of the appellant to be brought on record as the legal representative of the deceased workman and in dismissing the reference. We therefore confirm the order of the learned Judge and dismiss the appeal with costs of the respondent.


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