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Workmen of Hoare Miller and Co., Ltd. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1962)ILLJ721Cal
AppellantWorkmen of Hoare Miller and Co., Ltd.
RespondentState of West Bengal and ors.
Cases ReferredLtd. v. Fourth Industrial Tribunal
Excerpt:
- .....dispute as to non-payment of bonus to them, is to say that the dispute as to non-payment of bonus to workmen for the last year of their service, which may be declared in the year following their retirement can never be raited as an industrial dispute. in my opinion, the dispute though primarily concerning retired workmen of the respondent company is a dispute which ultimately concerns the existing workmen as well and that entitles them to espouse the cause of their quondam co-workers.21. it is true that the workmen cannot espous the cause of the persona who never cam within the definition of 'workman' as in section 2(s) of the industrial disputes act, and who could not themselves be parties to an industrial dispute. but workmen can, nevertheless, espouse the cause of persons, who.....
Judgment:

B.N. Banerjee, J.

1. The question for consideration in this rule is whether retired workmen of respondent 3, Hoare Miller & Co., Ltd., are entitled to bonus for the year 1957 which was declared in the year 1958 and whether the dispute as to nonpayment of bonus to them can be raised as an industrial dispute by the workers' union of the company.

2. It is not disputed that all workmen of respondent company are entitled, as a condition of service, to an annual bonus equivalent to one month's basic pay and one-twelfth of the year's dearness allowance. This was also what was decided by the Labour Appellate Tribunal in a previous dispute between the respondent and the worker over payment of bonus payable in 1953.

3. Forty-two workmen of the respondent company (whose names appear in annexure A. to the petition) retired in the year 1957, on attaining the age of superannuation according to their service condition. To them the company did not pay the bonus for the year of their retirement, which was declared in the year 1958.

4. The Hoare Miller Employees' Association, which is a trade union of the workmen of the respondent company, took up the case of retired workmen and claimed that the bonus for the year 1957, declared in the year 1958, must also be paid to the retired workmen. The respondent company refused the claim. This raised an industrial dispute and the respondent State Government referred the following issue to the fourth industrial tribunal, West Bengal, in exercise of its power under Section 10 of the Industrial Disputes Act, viz.--

Whether the 42 retired workmen as per schedule enclosed are entitled to bonus for 1957 which was declared in 1958?

5. The industrial tribunal came to the following findings:

(a) Here admittedly all these 42 persons had retired from service in 1957. So they could not claim as of right puja bonus declared in 1958, as I find that the implied condition of service was to the effect that employees in service would be entitled to get it.

(b) Furthermore, I do not think that the dispute awaiting adjudication is an industrial dispute as defined under the Act. In order to constitute an industrial dispute, the dispute or the difference need be between the employer and its workmen. 'Workman' as defined under Section 2(s) means any person employed in any industry, including any such person who has been discharged, dismissed or retrenched in connexion with or in consequence of that dispute. Evidently, these 42 workmen were not employed in this industry at the relevant date of the order of reference. Their termination of service did not arise from dismissal, discharge or retrenchment. These persons ceased to be 'workmen' in accordance with the terms and conditions of service, when they retired and got all their dues cleared. The termination of service arose by way of retirement on reaching the age of superannuation. The workmen themselves did not come to depose that the retirement was not in accordance with the condition of service, or that the employer compelled them to retire before the reaching of the age of superannuation. These employees could still be treated as 'workmen' as defined in Section 2(s), if the facts constituting their retirement were challenged and the dispute as it is could be linked up with the action taken by the employer in terminating their services by retirement. There is no such material to support such a case. It is simply a case wherein the union makes a claim in favour of some workmen no longer in service, for recovery of dues on account of puja bonus declared after their retirement. In this view also I hold that the dispute must fail on account that these 42 people were not employees of the present company on the date of the reference and as such the dispute is not an industrial dispute.

6. In the view that the tribunal took it made an award against the petitioner union and rejected the claim.

7. The aforesaid award is being disputed in this rule.

8. It was contended on behalf of the petitioner anion that the tribunal was wrong in holding that the retired workmen were not workmen within the definition as in Section 2(s) of the Industrial Disputes Act or that the dispute could not be raised on their behalf by the petitioner union. It was further contended that the bonus for a particular year used to be declared by the respondent company in the following year and that the bonus declared in the year 1958 related to the year 1957. In that year the 42 employees were in service of the respondent company and contributed to the earning of profit by the company and there was no reason to deprive them of the bonus.

9. On behalf of the respondent company, the contentions were sought to be met on the plea that the bonus was not payable to the retired workmen of the company because they did not fall within the definition of workmen, to whom alone the bonus was payable and on behalf of the retired workmen no industrial dispute was possible to be raised.

10. The term 'workman' is defined in Section 2(s) of the Act and the material portion of it is set out below:

Section 2(s).-'Workman' means 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 connexion with, or as a consequence of, that dispute, or whose ' dismissal, discharge or retrenchment has led to that dispute * * *

11. Employees who retired under their service conditions do not fall within the definition.

12. The question then arises, can existing workmen of the respondent company raise an industrial dispute as to bonus on behalf of the retired workmen of the company

13. So as to answer the question, it is necessary for me to remind myself of the definition of 'industrial dispute' as in Section 2(k) of the Act:

Section 2(k).--'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.

14. On a plain reading of Section 2(k) it appears that in order to be an industrial dispute, the dispute must be raised by existing workmen' and must concern the employment, non-employment, terms of employment or conditions of employment of 'any person.' On the true meaning of the word 'any person,' the Supreme Court by its majority judgment delivered by S.K. Das, J. (Sarkar, J. alone dissenting) expressed the following opinion in the case of Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate 1958-I L.L.J. 500 (at pp. 503-504):

Now the question is whether a dispute in relation to a person who is not a workman within the meaning of the Act still-, falls within the scope of the definition clause in Section 2(k). If we analyse the definition clause it falls easily and naturally into three parts:

first, there must be a dispute or difference;

second, the dispute or difference must be between employers and employers or between employers and workmen or between workmen and workmen;

third, the dispute or difference must be connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.

The first part obviously refers to the factum of a real or substantial dispute; the second part to the parties to the dispute and the third to the subject-matter of the dispute. That subject-matter may relate to any of two matters--(i) employment or non-employment and (ii) terms of employment or conditions of labour of any person ... the expression 'any person ' occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all, the subject-matter of dispute must relate to (i) employment or non-employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employer-employee relation never existed or can never possibly exist cannot be subject-matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the context of the subject-matter and scheme of the Act and consistently with the object and other provisions of the Act . . .

Having regard to the scheme and objects of the Act and its other provisions, the expression ' any person' in Section 2(k) of the Act must be read subject to such limitations and qualifications as arise from the context; the two crucial limitations are:

(i) the dispute must be a real dispute between the parties to the dispute (as indicated in the first two parts of the definition clause) so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other; and

(ii) the person regarding whom the . dispute is raised must be one in whose employment, non-employment, terms of employment or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. In the absence of such interest, the dispute cannot be said to be a real dispute between the parties.

Where the workmen raised a dispute as against their employer, the person regarding whose employment, non-employment, terms of employment or conditions of labour, the dispute is raised need not be strictly speaking a workman within the meaning of the Act but must be one in whose employment, non-employment, terms of employment or conditions of labour the workmen as a class have a direct or substantial interest.

15. Although of that opinion, the Supreme Court made it clear that such a dispute cannot be raised on behalf of a person or persons who are non-workmen. At p. 360 of the report, the following passage appears:

Can it be said that workmen as a clase are directly or substantially interested in the employment, non-employment, terms of employment or conditions of labour of persons who belong to the supervisory staff and are, under the provisions of the Act, non-workmen, on whom the Act has conferred no benefit, who cannot by themselves be parties to an industrial dispute and for whose representation the Act makes no particular provision We venture to think that the answer must be in the negative.... We recognize that solidarity of labour or general interest of labour welfare may furnish, in some cases, the necessary nexus of direct or substantial interest in a dispute between employers and workmen, but the principle of solidarity of the labour movement or general welfare of labour must be based on or correlated to the principle of community of interest; the workmen can raise a dispute in respect of those persons only in the employment or non-employment or the terms of employment or the conditions of labour of whom they have a direct and substantial interest.

16. I have deliberately quoted a long extract from the majority judgment of the Supreme Court, because the judgment settles certain propositions of law on which there used to be considerable divergence of judicial opinion. The view-point in the above Judgment was reiterated by the Supreme Court in the case of Workmen of Dahingeapara Tea Estate v. Dahingeapara Tea Estate 1958--II L.L.J. 498 and in the case of Kays Construction Co. (Private), Ltd. v. Its workmen 1968--II L.L.J. 660 and followed by this Court in the case of East Asiatic Co. (India) Private, Ltd. v. Fourth Industrial Tribunal, West Bengal 1961-I L.L.J. 720.

17. Keeping in view the above legal propositions, the points which I need consider are firstly whether the dispute is a real dispute between the workers' union and the employer company and secondly whether the persons regarding whom the dispute was raised are persons in whose terms of employment or conditions of labour the parties to the dispute have a real or substantial interest.

18. It is admitted that all workmen of the respondent company are liable to retire as a condition of their service, on reaching the age of superannuation. Whether retiring workmen will be entitled to bonus for the year of their employment which may be declared after their retirement, is a question in which all workmen of the respondent company have a direct and substantial interest, because the same question may arise in their cases also when they retire. Such a dispute is a real dispute between the workers' anion and the respondent company. The 42 persons, on whose behalf the dispute was raised, it is true, are not workmen within the meaning of the Act but they are persona in whose terms of employment or conditions of service the existing workmen of the company as a class have a direct and substantial interest, in that if they lose the bonus for the, year of their retirement, others will not gain it when they retire. Therein is to be found the necessary nexus of direct and substantial interest in the language of the Supreme Court.

19. In the case of workmen of Dimakuchi Tea Estate 1958-I L.L.J. 500 (supra), the person on whose behalf the industrial dispute was raised by the workmen was an assistant medical officer and as such never a workman, In that context the Supreme Court held that workmen had no nexus of direct and substantial interest in the order of discharge of the assistant medical officer and that disentitled them from raising an industrial dispute on his behalf. In the instant case, however, the persons on whose behalf the dispute was raised were at one time workmen of the respondent company but at the material time had retired. The terms of their employment and the conditions of their service were the same as those of workmen who espoused their cause. That distinguishes the instant case from the facts of the case as in the case of the workmen of Dimakuchi Tea Estate 1958--I L.L.J. 500 (supra).

20. To say, in the facts of the instant case, that the existing workmen of the respondent company cannot espouse the cause of the retired workmen and raise an industrial dispute as to non-payment of bonus to them, is to say that the dispute as to non-payment of bonus to workmen for the last year of their service, which may be declared in the year following their retirement can never be raited as an industrial dispute. In my opinion, the dispute though primarily concerning retired workmen of the respondent company is a dispute which ultimately concerns the existing workmen as well and that entitles them to espouse the cause of their quondam co-workers.

21. It is true that the workmen cannot espous the cause of the persona who never cam within the definition of 'workman' as in Section 2(s) of the Industrial Disputes Act, and who could not themselves be parties to an industrial dispute. But workmen can, nevertheless, espouse the cause of persons, who at one time were workmen and only ceased to be so on retirement, if the dispute as to them. concerns a matter which is bound to or likely to arise when the existing workmen retire. These retiring workmen will fall within the meaning of expression 'any person' as in the definition clause of workmen, Section 2(k) of the Industrial Disputes Act. I, therefore, uphold the first branch of the contention.

22. The other question raised in this rule may be shortly disposed of. The issue that was referred to the tribunal was whether the 42 workmen were entitled to bonus for 1957, which was declared in 1958. It is not disputed that all workmen of the respondent company are entitled to an annual bonus equivalent to a month's basic pay and one-twelfth of the year's dearness allowance as a condition of their service. Therefore, if the retired workmen served the company in the year 1957, they became entitled to the bonus as a condition of their service and there la no reason why they should be deprived of the same although at the point of time they had retired, the company did not declare the bonus.

23. It was, however, sought to be contended before me that the bonus declared in the year 1958 was not for the year 1957. The petitioner sought to refute the contention by placing reliance on the judgment of the Labour Appellate Tribunal and contended that in the Bald Judgment there was a finding to the effect that the respondent company declares bonus for one year in the year following. The judgment of the Labour Appellate Tribunal (published in the Calcutta Gazette of 12 April 1956) was produced before me but therein I find no finding to that effect. All that appears in the said judgment is as follows:

It is ordered in Appeal No. Cal. 271/64 that the company should pay one-twelfth of the year's dearness allowance to the workmen concerned in this appeal as additional bonus for the year 1952 payable in 1953.

24. From the above quotation it is difficult to find support for the contention made on behalf of the petitioner. The observations were made with reference to a particular year, namely, the year 1952 and not with reference to all years to come. But although that is so, there is nothing to show that the bonus declared in the year 1958 was for any year other than the year 1957. It is also noboy's case that the bonus for the year 1957 was paid to the workmen in the very same year The Issue which the tribunal was called upon to adjudicate was whether the bonus for the year 1957, declared in the year 1958, was payable to the retired workmen. It Is too late for the respondents to contend that the bonus declared in the year 1958 had no connexion with the year 1957.

25. In the view that I take, I quash the award of the industrial tribunal (annexure C to the petition). The respondent company should pay the bonus for the year 1957 to the 42 retired workmen.

26. Let a writ of certiorari accordingly issue.

27. This rule is made absolute without any order as to costs.


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