P.V. Rajamannar, C.J.
1. This is an appeal against the judgment of Balakrishna Aiyar J. in W.P. No. 184 of 1958 filed by the management of a Tamil Weekly newspaper called 'Tamil Nadu' which is being published from Madurai. Ponnuswami, Subramanian and Ramiah were working as proof readers for this newspaper. The Working Journalists (Conditions of Service) and Miscellaneous Provisions Act (Act 45 of 1935) came into force on 20-12-1955. In exercise of the power conferred under Section 8 of the Act, the Central Government appointed a Board to fix the rates of wages for working journalists in newspaper establishments.
The decision of the Wage Board was published on 11-5-1957, According to that decision newspaper establishments were classified into five classes on the basis of their gross revenue. 'Tamil Nadu' falls under class E. The Board classified the working journalists into four groups ,tnd in the schedule published along with their decision the functions of the various categories of working journalists were given. Proof reader is placed in group 4 and his functions are defined as follows :
'Proof reader is a person who checks up printed matter or proof with edited copy to ensure strict conformity of the former with the latter. Factual discrepancies, slips of spelling, grammar and syntax may also be discovered by him and either corrected or got corrected.'
The Wage Board fixed Rs. 90 as the starting pay for a proof reader in class E newspaper establishments. In addition to this basic wage the proof reader is also entitled to dearness allowance and location allowance. It is common ground that a proof reader working in 'Tamil Nadu' at Madurai was entitled to a sum of Rs. 138-3/4 as his total emoluments. The three individuals above mentioned were actually receiving far less than this sum.
Within ten days of the publication of the decision of the Wage Board the Management of Tamil Nadu served an order on Ramiah who had been working as proof reader from 1951 transferring him to work in a job printing press called Visalakshi Achagam which was not connected with the newspaper establishment. Ramiah protested against the transfer which would deprive him of the benefit under the Act, but obeyed the order of the management. At the same time he brought the matter to the notice of the Madras Union of Journalists of which he is a member to take up his complaint with the management.
Eventually Visalakshi Achagam terminated the services of Ramiah on the ground that he was not fit for any work in the press on account of his ill health. On 20-6-1957 the management served almost identical notices on Ponnuswami and Subramaniam terminating their services with effect from 21-6-1957. The ground on which their services were terminated was that the functions of a proof reader as defined by the Wage Board could be exercised only by a person who was adequately qualified, that the said two persons did not possess the required qualifications for a proof reader and, therefore, their services were unnecessary and superfluous.
2. At their request the case of the three persons whose services had been terminated namely, Ponnuswami, Subramaniam and Ramiah was taken up by the Madras Union of Journalists. There were conciliation proceedings but they failed. On the report of the Labour Officer. Madurai, that all efforts of settlement had failed the Government passed an order, G. O. Ms. 2924 (Department of industries. Labour and Co-operation), dated 4-9-1957, referring the matter for adjudication by the Labour Court at Madurai. The material portion of this order is as follows :
'Whereas the Government are of opinion than an industrial dispute has arisen between the workers and the management of 'Tamil Nadu', Madurai, in respect of matters mentioned in the annexure to this order;
and whereas, in the opinion of the Governor of Madras, it is necessary to refer the said dispute for adjudication.'
The matters referred to adjudication were :
'(1) Whether the discharge of V. Ponnuswami and Subramanian, proof readers, is justified and to what relief they are entitled;
(2) Whether the transfer of L. Ramiah to Visalakshi Achagam and his subsequent discharge are justified and to what relief he is entitled,' Before the Labour Court, Madurai, the General Secretary of the Madras Union of Journalists on behalf of the working journalists of 'Tamil Nadu' filed a statement. The said Union is a trade union registered under the Indian Trade Unions Act. Majority of the working journalists employed in the 'Tamil Nadu' are members of this Union. The management filed their counter statement, On 12-2-195S. the Labour Court passed an award ordering reinstatement of Ponnuswami, Subramanian and Ramiah, as proof readers in 'Tamil Nadu' with back wages to them from the dates of notices issued to them terminating their services respectively.
3. The Labour Court framed the following issues on the contentions of the parties :
1. Whether the dispute is an individual one or an industrial one;
2. Whether the discharge of Ponnuswami and Subranianian proof readers is justified and to what relief they are entitled?
3. Whether the transfer of L. Ramiah to Visalakshi Achagam and his subsequent discharge are justified and to what relief he is entitled?
4. Whether Ponnuswami, Subramaniam and L. Ramiah are proof readers within the meaning of Act 45 of 1955, Central.
4. On issue 1, the Labour Court held that the dispute was clearly an industrial dispute. On issue 4, he held that the three individuals were proof readers within the meaning of Act 45 of .1955. On issue 2 he found that the discharge of Ponnuswami and Subramanian was not justified and that they were entitled to be reinstated with back wages and on issue 3 he held that the transfer of Ramiah to Visalakshi Achagam from 'Tamil Nadu' was not bona fide and he was, therefore, entitled to be reinstated as proof reader in the 'Tamil Nadu' as and from the date of the order terminating his services.
It is clear to us from the judgment of the Labour Court that in the opinion of the Court the termination of services of Ponnuswami and Subramanian and the transfer of Ramiah to Visalakshi Achagam were really with a view to deprive them from getting the benefits of the decision of the Wage Board and not bona fide. The management of 'Tamil Nadu' thereupon fifed a writ petition, W. P. No. 184 of 1958. to quash the order of the Labour Court. Balakrishna Aiyar J. allowed tho writ petition, that is to say, quashed the order of the Labour Court.
The learned Judge held that the order of the Government referring the dispute for adjudication to the Labour Court was wrong and did not confer any jurisdiction on the Labour Court to decide matters dealt with by him in his order. He further held that an employer is entitled to terminate the services of any of his employees on giving him the customary notice or wages in lieu of notice and that the management of 'Tamil Nadu' was entitled to terminate the services of any particular employee and replace him by another, and the Labour Court could not order reinstatement of the aforesaid three persons.
5. At the outset it is important to notice that objection as to jurisdiction of the Labour Court to adjudicate on the disputes referred to it on the ground that there was a mistake in the reference was not raised by the management. The only objection taken was that there was no industrial dispute. This is covered by issue L The learned Judge has held that as the order of the Government refers to a dispute between the workers of 'Tamil Nadu' on the one hand and the management of 'Tamil Nadu' on the other, the dispute between the working journalists of 'Tamil Nadu' and the management of Tamil Nadu cannot be adjudicated upon.
It is quite clear to us on an examination of the papers leading up to the order of reference that what the Government intended to and did refer to the Labour Court was the dispute between the working journalists and the management of 'Tamil Nadu.' The order was passed on the report of the Conciliation Officer that the matter could not be amicably settled The conciliation proceedings related only to the dispute between the working journalists and the management of 'Tamil Nadu.'
To us it appears that the use of the word 'workers' instead of 'working journalists' is an inadvertent mistake which does not in any way affect the substance of the matter. The subsequent conduct of the management also shows that they were only concerned with the dispute between them and the working journalists. In the award of the Labour Court the parties- are described as working journalists of 'Tamil Nadu' represented by the Madras Union of Journalists. The claim statement before the Labour Court was filed by the General Secretary of the Madras Union of Journalists on behalf of the working journalists of 'Tamil Nadu'
In the counter statement filed on behalf of the management there is no trace of any objection now raised namely that the reference of the dispute was only between the workers of Tamil Nadu and its management. If this objection had been taken in the fore-front at the earliest opportunity it would have been quite easy for the Government to have rectified the mistake. Not having taken this objection and taking part in the proceedings before the Labour Court, it appears to us quite unfair on the part of the management now to turn round and contend that the entire reference is bad. We are also convinced that the management has suffered no prejudice on account of this mistake.
It is not as if they were misled by the reference into thinking that they had to meet a dispute between them ana the workers and not with the working journalists. All that the management could say treating the matter as a dispute between the working journalists and themselves was said and all material evidence adduced. This Court is not bound to interfere in a case like this when it is convinced that no injury has been sustained by the party complaining of the mistake. The learned Judge Balakrishna Aiyar J. gave as an analogous instance the case of a second class Magistrate trying and convicting a person of murder.
The learned Judge pointed out that the conviction would be void even though the Magistrate might have heard and considered evidence fully, fairly and carefully. With great respect to the learned Judge, we think that it is not an apposite analogy. The Second Class Magistrate has no jurisdiction whatever to try a case of murder but the Labour Court at Madurai has jurisdiction to decide a dispute between the working journalists and the management.
This is certainly not a case as if the Labour Court at Madurai could not have heard and decided the questions referred to him if in the reference instead of the workers the term working journalists had been mentioned. We are unable to agree with the learned Judge that the order of the Labour Court is liable to be quashed on the ground that the reference mentioned the dispute as dispute between the workers and the management of 'Tamil Nadu', and not as a dispute between the working journalists and the management of 'Tamil Nadu'.
6. The next objection to the jurisdiction of the Labour Court was based upon an entry in Schedule 2 of the Industrial Disputes Act, namely, entry 3 which runs as follows : 'Discharge or dismissal of workmen including reinstatement or grant of relief to, workmen wrongfully dismissed.' The contention was that as this item does not specifically refer to reinstatement of workmen wrongfully discharged or workmen whose services have been wrongfully terminated, the Labour Court had no jurisdiction to include in his award an order of reinstatement of the three persons whose services had been terminated.
We do not find any trace of this objection either in the counter statement filed on behalf of the management. In any event, we do not see any substance in this contention. The second schedule was not in the Industrial Disputes Act as it originally stood. It was inserted by Act XXXVI of 1956 which amended the Act, The second and the third Schedules became necessary on account of the new provisions' introduced by the said Act of 1956 constituting two classes of tribunals for the adjudication of industrial disputes, namely Labour Courts and industrial tribunals.
In addition to these two, there was also provision for the constitution of national industrial tribunals with which we are not now concerned. Under Section 7(1) of the Industrial Disputes Act, 1947, as amended by the Act of 1956, Labour Courts were constituted for the adjudication of industrial disputes relating to any of the matters specified in the second schedule and for performing such other functions as may be assigned to them under the Act, Under Section 7-A the Industrial Tribunals were invested with power to deal with industrial disputes relating to any matter whether specified in the second or the third schedule.
The second schedule after enumerating certain matters, items 1 to 5, contains as the final item the following 'All matters other than those specified in the third schedule'. It was not contended and it cannot be that the matter relating to wrongful termination of workmen is one of the matters specified in the third schedule. It follows that this is a matter which could fall within item 6 even if it did not fall within items 1 to 5. There is nothing in the Act which expressly provides for the reliefs which may be granted by the Labour Court or the Industrial Tribunal. The second and the third schedules cannot certainly be construed as defining the powers of the Labour Courts and Industrial Tribunals to the grant of particular reliefs.
A perusal of the items makes it clear that what the second and the third schedules were concerned with is a division of the functions between the two sets of tribunals, namely, the labour Courts, and the industrial tribunals. Item 3 of schedule 2 cannot obviously be construed literally which mentions as a matter within the jurisdiction of the labour court the discharge of workmen but which does not mention the grant of any relief to workmen wrongfully discharged.
If the contention on behalf of the management were to be accepted the result is that when the Labour Court will have jurisdiction to decide a dispute as regards the discharge of workmen, and it would be open to the labour court to hold that certain workmen were wrongfully discharged, no relief can be granted to them by the award which must be submitted by the labour court. In our opinion if a dispute as regards the termination of a workman is a matter falling within the jurisdiction of the Labour Court, there is no restriction in the Act as to the relief which could be granted to the workmen, if the Labour Court finds that the termination was wrongful.
7. There remains another question whether an employer is entitled to terminate the services of any employee on giving him the customary notice or wages in lieu of notice in the exercise of a common law right, which is involved in the relationship of the employer and the employee. The learned Judge held that there was nothing in the Industrial Disputes Act or in the Working Journalists Act which took away the power of an employer to terminate the services of an employee by giving him reasonable notice. The learned Judge proceeded on the assumption that the services of Ponnu-swami and Subramaniarn were terminated because the management wanted to replace them by others who would in their judgment be more suitable for the work.
8. It is now well established that the regulation of the relation between the industrial managements and their employees or workmen falls outside the realm of contract. As was pointed out in. Shree Meenakshi Mills Ltd, v. State of Madras, : (1951)IILLJ194Mad .
'Many if. not all, of the so-called disputes between employers and employees in industrial concerns are not founded on contractual rights and obligations, but on considerations outside strict legal rights and obligaiions, .....The essential object of all recent labour, legislation has been not so much to lay down categorically the mutual rights and liabilities of employers and employees as to provide recourse to a given form of procedure for the settlement of disputes in the interests of the maintenance of peaceful relations between the parties without apparent conflicts such as are likely to interrupt production and entail other dangers.'
In that decision reference was made to the following observations of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. AIR 1949 P.C. 129:
'The jurisdiction of the Board (Labour Relations Board) .....is not invoked by the employee for the enforcement of his contractual rights; those, whatever they may be, he can assert elsewhere. But his reinstatement which the terms of his contract of employment might not by themselves, justify, is the means by which labour practices regarded as unfair are frustrated and the policy of collective bargaining as a road to industrial peace is secured. It is in the light of this new conception of industrial relations that the question to be determined by the Board must be viewed.'
9. The Federal Court, the Supreme Court and this Court have always approached questions relating to disputes between the employers and the employees under the Industrial Disputes Act, not from the standpoint of contractual rights and obligations but from the standpoint based on policy to be followed to secure harmonious relations between the employers and the workers. In Rohtas Industries Ltd. v. Brijnandan, : (1956)IILLJ444SC the Supreme Court observed as follows :
'A court of law proceeds on the footing that no power exists in the courts to make contracts for people; and the parties must make their own contracts. The Courts reach their limit of power, when they enforce contracts which the parties here made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation.'
In our view it is open to the labour court to find whether the termination of the services of a particular workman was bona fide or was mala fide, that is to say actuated by any motive which cannot be justified. The labour Court has found in this case that the action of the management in terminating the services of Ponnuswami and Subramanian and in transferring Ramiah to Visalakshi Achagam within a few days of the Wage Board's decision was with the intention of depriving them or the benefit of the Wage Board's decision.
The labour court accepted the testimony of one of the discharged workmen, Ponnuswami, that he was asked to resign his job and join as a clerk but do the proof reader's work. His finding is also based on several admissions made by the witnesses examined for the management that the three proof readers concerned in this appeal were retained in service after conducting repeated tests as to their efficiency.
10. On this finding the labour court was quite justified in acting within its jurisdiction and directing reinstatement of the three workers. It is too late in the day to contend that reinstatement is not one of the reliefs which can be granted on an adjudication of an industrial dispute which relates to wrongful dismissal or discharge or termination of the services of a worker. The decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay is direct authority that reinstatement is a relief which can he granted by an industrial tribunal functioning under the Industrial Disputes Act. There are also other decisions of the Supreme Court which have proceeded on this basis. If anything to the contrary was intended to be laid down in Radha Raman Baipai v, Labour Appellate Tribunal of India, 1957 2 LLJ 15 and A.R. Bhosle v. Nagpur Syndicate Motor Union, 1959 1 L LJ 114, it cannot be sound law.
11. Mr. Thyagarajan, learned counsel for the management contended that the contractual and other rights under the common law as between the employer and the employee are subject only to specific provisions curtailing or restricting such rights contained in Labour legislations. He referred us to the Industrial Employment (Standing Orders) Act, 1946, and contended that once the obligations laid on the management by the provisions of this Act were not transgressed the workman cannot complain against any action of the management.
That Act provides for standing orders by which the industrial establishments intended to define the conditions of employment. Matters to be covered by such standing orders ace contained in the schedule which includes several items such as classification of workmen, shift working, conditions of procedure in applying for leave, suspension or dismissal for misconduct etc. One of the items is 'termination of employment and the notice thereof to be given by employer and workmen.' One contention on behalf of the management was, and this contention appears to have found favour with Balakrishna Aiyar J. that this item implies that if notice in accordance with the standing orders is given by an employer, no termination of employment can be questioned.
While it is clear that the termination of employment without a proper notice would be ipso facto bad it does not follow that a termination of employment even after the prescribed notice cannot be impugned on the ground that such termination though ostensibly conforming to the standing orders was actuated by improper motives. We are unable to hold that the power of a labour court or industrial tribunal under the Industrial Disputes Act is in any way affected by the provisions of the Industrial Employment (Standing Orders) Act, 1949 or standing orders maintained for industrial establishments in accordance with the Act. Mr. Thyagarajan attempted to justify the action of the management on the ground that their action became necessary on account of the definition of the functions of a proof reader by the Wage Board.
We see nothing in this definition which is so revolutionary in character that it required terminating the services of employees who had been performing their duties as proof readers efficiently. The functions of a proof reader mentioned in the definition of the Wage Board arc functions generally understood to be the functions of a proof reader. Much was made of the fact that in the definition of the functions there was reference to factual discrepancies, slips of spelling, grammar and syntax which may also have to be discovered by the proof reader and either correcting them or getting them corrected.
It is important to notice that there is no obligation on the part of a proof reader to discover such mistakes. Indeed certain editors may not appreciate such discovery to be brought home to them. Of course, obvious spelling and other mistakes are always expected to be corrected by the proof reader but it is not suggested that the three proof readers concerned in this appeal were not qualified to make such corrections. IN any event, this justification of their action by the management cannot prevail in view of the finding of the labour court that the real reason for the termination of the services of the aforesaid three persons was to prevent them from getting the benefit of enhanced wages prescribed by the Wage Board.
12. Mr. Thyagarajan is right in contending that the termination of. the services of Ramiah by Visalakshi Achagam is not a subject-matter which can fall within the scope of the reference. The dispute is only between the working journalists and the management of 'Tamil Nadu' arid we are not concerned with any action that might have been taken by the Visalakshi Achagam but the labour court has only dealt with the transfer of Ramiah to Visalakshi Achagam and has held that such transfer was not done in the usual course of administration but to prevent him from getting the benefit of the Wage Board decision. The award of the Labour court is not vitiated on this account. .
13. In the view we have taken of the action of the management as regards the aforesaid three persons it is not necessary for us to discuss the question whether the management of an industrial concern can terminate the, services of any of its workmen merely on the ground that other workmen with superior qualifications may be employed. It may he, the management will be entitled to terminate the services of inefficient workmen, i.e., workmen who sre not able to do their duties properly. But we doubt if the management can terminate the services of a workman, 'A' because another with better qualification is available. It is not necessary for us to decide the question finally in this case.
14. The appeal is allowed and the order of Balakrishna Aiyar J. quashing the award of the labour court is hereby set aside and the writ petition filed by the first respondent, that is the management of 'Tamil Nadu', Madurai is dismissed. There will be no order as to costs.