1. These appeals arise from a common order of Kailasam, J., dismissing two petitions under Article 226 of the Constitution, one to quash the order of the Government dated 6th July, 1967 referring for adjudication an industrial dispute under Section (1)(c) read with Section 2A of the Industrial Disputes Act, and the other to prohibit the Presiding Officer, Labour Court, from proceeding with the adjudication.
2. The third respondent was employed by the appellant as an apprentice from 1st May, 1964, for a period of twelve months, After completion of the apprenticeship, the third respondnot was appointed as a probationer under a fresh engagement as probationary technical Assistant with effect from 1st May, 1965. His probation was, however, terminated by order dated 3rd February 1966, after an enquiry into a certain charge of misconduct against him. On 31st December, 1966, the Labour Officer, Tirunelveli, sent his conciliation report, in the light of which the State Government, by an order dated 24th February, 1967, declined to make a reference for adjudication. The order stated that the third respondent was dismissed from service after an enquiry in which the charges against him were held proved and, therefore, no reference was called for. On 9th March, 1967, the third respondent by a petition moved the then Chief Minister to reconsider the order and this was followed by another petition to the succeeding Law Minister, both of which were sent to the Commissioner of Labour, who, after getting a report of the Labour Officer sent his communication dated 25th April, 1967, stating that the earlier order refusing reference did not call for review. After taking into consideration the Commissioner's communication as also that of the Labour Officer, dated 6th April, i957, the Government passed the impugned order. Though eventually the matter lies in a narrow compass, on a certain assumption of the effect of the impugned order, the constitutional validity of Section 2A has been canvassed.
3. The preamble to the order of the Government dated 6th July, 1967, recited: 'Whereas the Government are of opinion that an industrial dispute has arisen between the workmen and the management....' On the top of the order, it read: 'From the Labour Officer, Tirunelveli, Conciliation Report...dated 6th April 1967'. The use of the words 'conciliation' and 'workmen' in the order appears, as we understand the argument fir the appellant, to form its basis. First, it is stated that subsequent to the order of the Government dated 24ih February, 1967, there was no further conciliation and that inasmuch as the impugned order read as if there was a Labour Officer's conciliation report, the Government was misled into thinking that in that view reference should be made and that it could not refuse it without stating reasons. We have looked into the Labour Officer's report aforesaid and find that it did not pertain to any conciliation. It is not clear how the word 'conciliation' crept into the impugned order. But, at the same time, when the order under consideration recited the Labour Officer's report dated 6th April, as having been read by the Government, 1967, there can be no question of any misunderstanding on its part and that there was an earlier conciliation on which the Labour Officer had reported. We have to take it that the Government read the contents of the Labour Officer's communication dated 6th April, 1967. That being the case, we fail to see any force in the contention that the word 'conciliation' in the impugned order has misled the Government into making it.'
4. Even the expression 'workman' in the preamble we have extracted seems to have found a place in the order, because a printed form which was in vogue prior to the enactment of Section 2A had been made use of for drafting the impugned order. But as a matter of fact, when we see the other parts of the order, it is clear that what the Government had in mind in making the impugned order was not a collective dispute in the sense of a dispute between the workman and the management, but an individual dispute between the third respondent and the management, in respect of the former's non-employment and its justification. The annexure to the order sets out the dispute as 'Whether the non-employment of Thiru S. Krishnan is justified, and, if not, to what relief he is entitled. That clearly shows that the use of the word workman in the preamble to the notification of reference was by the accident of using the printed form and it was not a deliberate use. There is also the further aspect that if the dispute was treated as a collective one, one would expect copy of the order being transmitted to the concerned union, but this was nut done and could obviously not be done, as the third respondent's case was not espoused by any union.
5.On that view, the further argument in attack of the validity of Section 2A does not seem to arise. We may, however, out of deference to the argument, deal with it. It may be remembered that a series of decisions have held that for a dispute to be an industrial dispute, it should be a collective one, that is to say, it must be a dispute between the workmen and the management, or if the dispute related to an individual workman, his case must be espoused by the union of workmen under the management. Apparently because of this view, the Parliament, by Act XXXV of 1965, introduced Section 2A, the effect of which is to empower a reference for adjudication of a dispute or difference between a single workman and the employer in respect of his discharge, dismissal, retrenchment or termination, as if it were an industrial dispute. 'Such dispute' says the section 'shall be deemed to be an industrial dispute, notwithstanding that no other workman nor any union of workmen is a party to the dispute'. The contention before us is that the deeming under this provision should be limited to making of a reference of such a dispute and not extend to a conversion of an individual into a collective dispute. From a practical point of view, it is stated, the difference has a bearing, for example as to the application, of Section 33(2) and Section 33A series. In State of Travancore-Cochin and Ors. v. Shanmugha Vilas Cashewnut Factory, Quilon : 1SCR53 the Supreme Court observed that if any legal fiction was created, the first question would be for what purpose it was created and the Court leferred to In re Coal Economising Gas Co. (1875) 1 Ch. D. 182 and especially to the observations of James L.J:
The Act says that an omission shall be deemed fraudulent. It provides that something which under the general law would not be fraudulent shall be deemed fraudulent, and we are dealing with a case of that kind. Where the Legislature provides that something is to be deemed other than it is, we must be careful to see within what bounds and for what purpose it is to be deemed. Now the Act does not say that the prospectus shall be deemed fraudulent, simpliciter, but that it shall be deemed fraudulent on the part of the person wilfully making the omission as against a shareholder having no notice of the matter omitted and I am of opinion that the true intent and meaning of that provision is to give a personal remedy against the wrong doer in favour of the shareholder.
6. It is true, as observed in that case, that where the Legislature creates a fiction by using the words 'as if it were' or 'so and so shall be deemed' one has to assess the limit of the deeming. It is generally held that where a fiction or a deeming provision is in question, it has to be confined to its strict limit and not allowed to overflow beyond the purpose for which such a deeming or action is created. It is equally settled proposition that once the limit is fixed, the imagination should not be allowed to boggle so as to allow it to reach the putative state of affairs, but the court should give effect not merely to deeming within the limits set but also to the necessary consequences flowing therefrom. If citation is required, we may recall the observations of Lord Asquith in East and Welling Co. Ltd. v. Finsbury Borough Council (1952) A.C. 109 which have been approved by the Supreme Court in M.K. Venkatachala I.T.O. and Anr. v. Dyeing and . : 34ITR143(SC) :
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents, which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.
7. What then is the purpose of deeming in Section 2A? As mentioned already, the necessity for introducing this section was the state of pre-existing law in general, that an industrial dispute normally indicates a collective dispute either in the sense of one between workman and the management or a dispute in which the cause of one workmen is backed up by a union of workmen against the management. The Parliament apparently thought that a reference should be enabled for an adjudication of a dispute between the management and an individual workman in respect of certain specified matters and this purpose is sought to be achieved by deeming such a dispute as an industrial dispute. In fact, the section itself makes it clear by its concluding words 'notwithstanding that no other workmen nor any union of workmen is a party to the dispute.' We are of the view, therefore, that the effect of Section 2A is that the deeming is not merely for the purpose of making a reference but also to achieve this object by treating the individual dispute as an industrial dispute as it were and as it is defined by the Act.
8. If that were so, the next contention for the appellant is that the section will be in excess of the powers of Parliament, because Entry 22 'Trade Unions; industrial and labour disputes' in List III of the Seventh Schedule to the Constitution is confined to what is understood generally by the preexisting law as an industrial and labour dispute, that is to say, in the sense of a collective dispute which would include also a dispute raised by a single workman but supported by other workmen as a union or otherwise. We are unable to accede to this contention. When an entry occurs in a list relating to a system of distribution as between the Centre and States, it should be given the widest significance and amplitude. It is true that in the field of industrial relations, an industrial dispute had acquired a certain significance related to collectivism. But we are not persuaded to take the view that Entry 22 in List III should be confined to such a dispute. We are aware that a legislature which acts in exercise of a given subject matter of power cannot by a device of definition arrogate to itself a power which is not within the entry. But we do not think that Section 2A is of that category. We accept counsel's argument that Entry 97 of List. I cannot be invoked to save a given piece of legislation as to its validity by merely saying that by the residuary power inhering as it does in the Parliament, it was free to make any law. That power can be invoked only in respect of a matter which is not enumerated in any of Lists II or III. But, as we have expressed the view that S 2A is within the ambit of Entry 22 of List III, there is no need to touch upon Entry 97 of List I.
9. The appeals are dismissed. No costs.