Workmen of Dimakuchi Tea Estate Vs. The Management of Dimakuchitea Estate [1958] INSC 3 (4 February 1958)
DAS, SUDHI RANJAN (CJ) DAS, S.K.
SARKAR, A.K.
CITATION: 1958 AIR 353 1958 SCR 1156
ACT:
Industrial Dispute-Definition, lnterpretation of-Test'Any person', Meaning of-Industrial Disputes Act, 1947 (Act XIV of 1947),S. 2(k).
HEADNOTE:
The question for decision in this appeal was whether a dispute raised by the workmen' relating to a person who was not a workman could be an industrial dispute as defined by S. 2(k) of the Industrial Disputes Act, 1947, as it stood before the amendments Of 1956. The appellants, who were the workmen of Dimakuchi Tea Estate, espoused the cause of one Dr. K. P. Banerjee, Assistant Medical Officer, who had been dismissed unheard with a month's salary in lieu of notice but who had accepted such payment and left the garden and the dispute raised was ultimately referred by the Government for adjudication under s. 10 of the Act. Both the Tribunal and the Appellate Industrial Tribunal took the view that as Dr. Banerjee was not an workman within the meaning of the Act, the, dispute was not an industrial dispute as defined by S. 2(k):
Held, (per Das, C. J., and S. K. Das, J., Sarkar, J., dissenting), that the expression 'any person' occurring in S. 2(k) of the Industrial Disputes Act, 1947, cannot be given its ordinary meaning and must be read and understood in the context of the Act and the object the Legislature had in view. Nor can it be equated either with the word 'workman' or 'employee'.
The two tests of an industrial dispute as defined by the section must, therefore, be,-(1) the dispute must be a real dispute, capable of being settled by relief given by one party to the other, and (2) the person in respect of whom the dispute is raised must be one in whose employment, nonemployment, terms of employment, or conditions of labour (as the case may be), the parties to the dispute have a direct or substantial interest, and this must depend on the facts and circumstances of each particular case.
Applying these tests, the dispute in the present case which was in respect of a person who was not a workman and belonged to a different category altogether, could not be said to be a dispute within the meaning of S. 2(k) of the Act and the appeal must fail.
Narendra Kumar Sen v. All India Industrial Disputes (Labour Appellate) Tribunal, (1953) 55 Bom. L.R. 125, approved.
Western India Automobile Association v. The Industrial Tribunal, Bombay, [1949] F.C.R 321, distinguished 1157 Case-law discussed.
Per Sarkar, J.-There is no reason why the words 'any person' in s. 2(k) of the Act should not be given their natural meaning so as to include an employee who is not a workman within the meaning of the Act. Consequently, a dispute concerning a person who is not a workman may be an industrial dispute within that section.
The primary object which the Act has in view is the preservation of the industrial peace.
The Act does not make the interest of the workmen in the dispute a condition of the existence of an industrial dispute. Such interest is incapable of definition and to make it a condition of an industrial dispute would defeat the object of the Act.
Western India Automobile Association v. The Industrial Tribunal of Bombay, [1949] F.C.R. 321; Narendra Kumar Sen v. The All India Industrial Disputes (Labour Appellate) Tribunal, (1953) 55 Bom. L.R. I25 and United Commercial Bank Ltd. v. Kedar Nath Gupta, (1952) 1 L.L.J. 782, referred to.
Even assuming that the workmen must be interested in order that there can be an industrial dispute, the present case satisfies that test and falls within the purview of s. 2(k) of the Act.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 297 of 1956.
Appeal by special leave from the judgment and order dated August 30, 1955, of the Labour Appellate Tribunal of India, Calcutta in Appeal No. Cal. 220 of 1954.
C. B. Aggarwala and K. P. Gupta, for the appellants.
Purshottam Tricumdas for N. C. Chatterjee, P. K. Goswami, S. N. Mukheree and B. N. Ghosh, for the respondent.
1958. February 4. The Judgment of Das, C. J., and S. K. Das J., was delivered by S. K. Das, J. Sarkar, J., delivered a separate Judgment.
S. K. DAS J.-This appeal by special leave raises a question of some nicety and of considerable importance in the matter of industrial relations in this country. The question is the true scope and effect of the definition clause in s. 2 (k) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The question has arisen in the following circumstances.
1158 The appellants before us are the workmen of the Dimakuchi tea estate represented by the Assam Chah Karmachari Sangha, Dibrugarh. The respondent is the management of the Dimakuchi tea estate, district Darrang in Assam. One Dr. K. P. Banerjee was appointed assistant medical officer of the Dimakuchi tea estate with effect from November 1, 1950. He was appointed subject to a satisfactory medical report and on probation for three months. It was stated in his letter of appointment: " While you are on probation or trial, your suitability for permanent employment will be considered. If during the period of probation you are considered unsuitable for employment, you -",ill receive seven days' notice in writing terminating your appointment. If you are guilty of misconduct, you are liable to instant dismissal. At the end of the period of probation, if you are considered suitable, you will be confirmed in the garden's service." In February 1951 Dr. Banerjee was given an increment of Rs. 5 per mensem, but on April 21, Dr. Banerjee received a letter from one Mr. Booth, manager of the tea estate, in which it was stated : " It has been found necessary to terminate your services with effect from the 22nd instant. You will of' course receive one month's salary in lieu of notice." As no reasons were given in the notice of termination, Dr. Banerjee wrote to the manager to find out why his services were being terminated. To this Dr. Banerjee received a reply to this effect The reasons for 'your discharge are on the medical side, which are outside my jurisdiction, best known to Dr. Cox but a main reason is because of the deceitful manner in which you added figures to the requirements of the last medical indent after it had been signed by Dr, Cox, evidence of which is in my hands." The cause of Dr. Banerjee was then espoused by the Mangaldai Circle of the Assam Chah Karmachari Sangha and the secretary of that Sangha wrote to the manager of the Dimakuchi tea estate, enquiring about the reasons for Dr. Banerjee's discharge. The manager wrote back to say that Dr.K. P. Banerjee was discharged on the ground 1159 of incompetence in his medical duties and the chief medical officer (Dr. Cox) had found that Dr. Banerjee was incompetent and did not have sufficient " knowledge of simple everyday microscopical and laboratory work which befalls the lot of every assistant medical officer in tea garden practice." It was further stated that Dr. Banerjee gave a faulty, inexpert and clumsy quinine injection to one Mr. Peacock, and assistant in the Dimakuchi tea estate, which produced an extremely acute and severe illness very nearly causing a paralysis of the patient's leg. The reasons given by the manager for the termination of the services of Dr. K. P. Banerjee did not satisfy the appellants herein and certain conciliation proceedings, details whereof are not necessary for our purpose, were -unsuccessfully held over the question of the termination of the service of Dr. Banerjee. The matter was then referred to a Board known as the tripartite Appellate Board consisting of the Labour Commissioner, Assam, and two representatives of the Assam branch of the Indian Tea Association and the Assam Chah Karmachari Sangha respectively. This Board recommended that Dr. Banerjee should be reinstated with effect from the date of his discharge. After the recommendation of the Board, the respondent herein appears to have offered a sum equal to 28 month's salary and allowances in lieu of re-instatement; to this, however, the appellants did not agree. In the meantime, Dr. K. P. Banerjee received a sum of Rs. 306-1-0 on May 22, 1951 and left the tea garden in question. Then, on December 23, 1953, the Government of Assam published a notification in which it was stated that whereas an industrial dispute had arisen between the appellants and the respondent herein and whereas it was expedient that the dispute should be referred for adjudication to a Tribunal constituted under s. 7 of the Act, the Governor of Assam was pleased to refer the dispute to Shri U. K. Gohain, Additional District and Sessions Judge, under cl. (c) of sub-s. (1) of s. 10 of the Act. The dispute which was thus referred to the Tribunal was described in these terms:
1160 " (i) Whether the management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P. Banerjee, A. M. O.? (ii) If not, is he entitled to reinstatement or any other relief in lieu thereof ?" Both parties filed written statements before Mr. ohain and the respondent took the plea that Dr. K. P. Banerjee was not a "workman" within the meaning of the Act; therefore, there was no industrial dispute in the sense in which that expression was defined in the Act and the Tribunal had no jurisdiction to make an adjudication on merits. Mr. Gohain took up as a preliminary point the question if Dr. Banerjee was a " workman " within the meaning of the Act and came to a conclusion which may be best expressed in his own words:
"Dr. Banerjee being not a ' workman', his case is not one of an " industrial dispute " under the Industrial Disputes Act and his case is therefore beyond the jurisdiction of this Tribunal and the Tribunal has therefore no jurisdiction to give any relief to him." There was then an appeal to the Labour Appellate Tribunal of India, Calcutta. That Tribunal affirmed the finding of Mr. Gohain to the effect that Dr. Banerjee was not a workman within the meaning of the Act. The Appellate Tribunal then said:
" A dispute between the employers and employees to be an industrial dispute within the meaning of section 2 (k) of the Industrial Disputes Act, must be between the employers and the workmen. There cannot be any industrial dispute between the employers and the employees who are not workmen." The appeal was accordingly dismissed by the Labour Appellate Tribunal. The appellants herein then moved this Court for special leave and by an order dated March 14, 1956, special leave was granted, but was " limited to the question whether a dispute in relation to a person who is not a workman falls within the scope of the definition of industrial dispute contained in s. 2 (k) of the Industrial Disputes Act, 1947." It is clear from what has been stated above that the 1161 question whether Dr. K. P. Banerjee is or is not a workman within the meaning of the Act is no longer open to the parties and we must proceed on the footing that Dr. K. P. Banerjee was not a workman within the meaning of the Act and then decide the question if the dispute in relation to the termination of his service still fell within the scope of the definition of the expression " industrial dispute " in the Act.
We proceed now to read the definition clause the interpretation of which is the only question before us.
That definition clause is in these terms:
" S. 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;" It must be stated here that the expression " workman is also defined in the Act, and the definition which is relevant for our purpose is the one previous to the amendments of 1956; therefore, in reading the various sections of the Act, we shall read them as they stood prior to the amendments of 1956 and refer to the amendments only when they have a bearing on the question before us. The definition of 'workman' as it stood at the relevant time stated :
" S. 2 (s): " Workman " means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Government. " 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 s. 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 1162 between workmen and workmen; third, the dispute or difference must be connected with the employment or nonemployment 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 that dispute. That subject matter may relate to any of two matters-(i) employment or nonemployment, and (ii) terms of employment or conditions of labour, of any person. On behalf of the appellants it is contended that the conditions referred to in the first and second parts of the definition clause are clearly fulfilled in the present case, because there is a dispute or difference over the termination of service of Dr. K. P.
Banerjee and the dispute or difference is between the employer, namely, the management of the Dimakuchi tea estate on one side, and its workmen on the other, even taking the expression " workmen " in the restricted sense in which that expression is defined in the Act. The real difficulty arises when we come to the third part of the definition clause. Learned counsel for the appellants has submitted that the expression " of any person " occurring in the third part of the definition clause is an expression of very wide import and there are no reasons why the words "any person" should be equated with " any workman ", as the Tribunals below have done. The argument is that inasmuch as the dispute or difference between the employer and the workmen is connected with the non-employment of a person called Dr.
K. P. Banerjee (even though he was not a workman), the dispute is an industrial dispute within the meaning of the definition clause. At first sight, it does appear that there is considerable force in the argument advanced on behalf of the appellants. It is rightly pointed out that the definition clause does not contain any words of qualification or restriction in respect of the expression " any person " occurring in the third part, and if any limitations as to its scope are to be imposed, they must be such as can be reasonably inferred from the definition clause itself or other provisions of the Act.
1163 A little careful consideration will show, however, that the expression " any person " occuring 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 the 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 objects and other provisions of the Act. It is well settled that " the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained." (Maxwell, Interpretation of Statutes, 9th Edition, p. 55).
It is necessary, therefore, to take the Act as a whole and examine its salient provisions. The long title shows that the object of the Act is " to make provision for the investigation and settlement of industrial disputes, and for certain other purposes. " The preamble states the same object and s. 2 of the Act which contains definitions states that unless there is anything repugnant in the subject or context, certain expressions will have certain meanings.
Chapter 11 refers to the authorities set up under the Act, such as, Works Committees, Conciliation officers, Boards of Conciliation, Courts of Enquiry, and Industrial Tribunals.
The primary duty of a Works Committee is to promote measures for securing and preserving amity and good relations between the employer and his workmen and, to that end, to comment upon matters of their common 148 1164 interest or concern and endeavour to compose any material difference of opinion in respect of such matters.
Conciliation Officers are charged with the duty of mediating in and promoting the settlement of industrial disputes. A Board of Conciliation may also be constituted for the same purpose, namely, for promoting the settlement of an industrial dispute. A Court of Enquiry may be appointed for enquiring into any matter which appears to be connected with or relevant to an industrial dispute. Section 7 of the Act empowers the appropiate Government to constitute one or more Tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Chapter III contains provisions relating to the reference of industrial disputes to Boards of Conciliation, Courts of Enquiry or Industrial Tribunals, and the reference in the present case was made under s. 10 of that Chapter. Under s. 10(c) of the Act where an appropriate Government is of opinion that any industrial disputes exist or are apprehended, it may, at any time, by order in writing, refer the dispute or any matter appearing to be connected with or relevant to the dispute to a Tribunal for adjudication. Chapter IV of the Act deals with procedure, powers and duties of the authorities set up under the Act. Where an industrial dispute has been referred to a Tribunal for adjudication, s. 15 requires that the Tribunal shall hold its proceedings expeditiously and shall as soon as practicable on the conclusion thereof submit its award to the appropriate Government. Section 17 lays down inter alia that the award of a Tribunal shall within a period of one month from the date of its receipt by the appropriate Government be published in such manner as it thinks fit. Section 17-A lays down that the award of a Tribunal shall become enforceable on the expiry of thirty days from the date of its publication under s. 17; it also contains certain other provisions which empower the appropriate Government to modify or reject the award.
Section 18 is important for our purpose, and in so far as it relates to awards it states that an award which has become enforceable ,shall be binding on1165 (a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Tribunal records the opinion that they were so summoned without proper cause;
(c) where a party referred to under clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; and (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who are employed in the establishment or part of establishment as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
Section 19 lays down the period of operation of settlements and awards and states inter alia that an award shall, subject to the provisions of the section, remain in operation for a period of one year. Chapter V of the Act deals with strikes and lock-outs, Chapter V-A with lay-off and retrenchment, Chapter VI with penalties and Chapter VII with miscellaneous matters. It is important to note that though in the definition of "lock-out", s. 2 (1) of the Act, and "strike", s. 2 (q) of the Act, the expression any person' has been used, in ss. 22 (2) and 23 of the Act which deal with "lock-out" and "strike", only the word 'workmen' has been used. Section 33 provides that during the pendency of any conciliation proceedings or any proceedings before a tribunal of any industrial dispute, no employer shall (a) alter to the prejudice of the workmen concerned, the conditions of their service etc. or (b) discharge or punish by dismissal or otherwise any workman concerned in the dispute. Section 33 A, however, uses the word 'employee', but read with s. 33, the word employee must mean there a workman. Section 36 which deals with representation of parties has some bearing on the question before us. It layns down that a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by1166 (a) an officer of a registered trade union of which he is a member;
(b) an officer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated; and (c) where the worker is not a member of any trade union, by an officer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed.
An employer who is a party to a dispute shall be entitled to be represented in any proceedings under the Act by(a) an officer of an association of employers of which he is a member;
(b) an officer of a federation of associations of employers to which the association referred to in clause (a) is affiliated; and (c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed.
Sub-section (3) of s. 36 states that no party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under the Act or in any proceedings before a court. Sub-section (4) states that in any proceeding before a Tribunal a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Tribunal. The point to note is that there is no particular provision for the representation of a party other than a workman or an employer, presumably because under the second part of the definition clause the parties to an industrial dispute can only be employers and employers, employers and workmen, or workmen and workmen.
Thus, an examination of the salient provisions of the Act shows that the principal objects of the Act are1167 (1) the promotion of measures for securing and preserving amity and good relations between the employer and workmen;
(2) an investigation and settlement of industrial disputes, between employers and employers, employers and workmen, or workmen and workmen, with a right of representation by a registered trade union or federation of trade unions or association of employers or a federation of associations of employers;
(3) prevention of illegal strikes and lock-outs;
(4) relief to workmen in the matter of lay-off and retrenchment; and (5) collective bargaining.
The Act is primarily meant for regulating the relations of employers and workmen-past, present and future. It draws a distinction between 'workmen' as such and the managerial or supervisory staff, and confers benefit on the former only.
It is in the context of all these provisions of the Act that the definition clause in s. 2(k) has to be interpreted.
It seems fairly obvious to us that if the expression "any person" is given its ordinary meaning, then the definition clause will be so wide as to become inconsistent not merely with the objects and other provisions of the Act, but also with the other parts of that very clause. Let us see how the definition clause works if the expression " any person " occurring therein is given its ordinary meaning. The workmen may then raise a dispute about a person with whom they have no possible community of interest; they may -raise a dispute about the employment of a person in another industry or a different establishments dispute in which their own employer is not in a position to give any relief, in the matter of employment or non-employment or the terms of employment or conditions of labour of such a person. In order to make our meaning clear we may take a more obvious example. Let us assume that for some reason or other the workmen of a particular industry raise a dispute with their employer about the employment or terms of employment of the District Magistrate or District 1168 Judge of the district in which the industry is situate. It seems clear to us that though the District Magistrate or District Judge undoubtedly comes within the expression " any person " occurring in the definition clause, a dispute about his employment or terms of employment is not an industrial dispute; firstly, because such a dispute does not come within the scope of the Act, having regard to the definition of the words " employer" industry ", and " workman and also to other provisions of the Act; secondly, there is no possible community of interest between the District Magistrate or District Judge on the one hand and the disputants, employer and workmen, on the other. The absurd results that will follow such an interpretation have been forcefully expressed by Chagla C. J., in his decision in Narendra Kumar Sen v. All India Industrial Disputes (Labour Appellate) Tribunal (1):
" If "any person " were to be read as an expression without any limitation and qualification whatsoever, then we must not put even any territorial restriction on that expression. In other words, it would be open to the workmen not only to raise a dispute with regard to the terms of employment of persons employed in the same industry as themselves, not only to raise a dispute with regard to the terms of employment in corresponding or similar industries, not only a dispute with regard to the terms of employment of people employed in our country, but the terms of employment of any workman or any labourer anywhere in the world The proposition has only to be stated in order to make one realise how entirely untenable it is.
Take, for example, another case where the workmen raise an objection to the salary or remuneration paid to a Manager or Chief Medical Officer by the employer but without claiming any benefit for themselves, and let us assume that a dispute or difference arises between the workmen on one side and the employer on the other over such an objection.
If such a dispute comes within the definition clause and is referred to an industrial tribunal for adjudication, the parties to the (1) (1953) 55 Bom. L.R. 125,129, 130.
1169 dispute will be the employer on one side and his workmen on the other. The Manager or the Chief Medical Officer cannot obviously be a party to the dispute, because he is riot a 'workman'within the meaning of the Act and there is no dispute between him and his employer. That being the position, the award, if any, 7 given by the Tribunal will be binding, under cl. (a) of s. 18, on the parties to the dispute and not on the Manager or the Chief Medical Officer.
It is extremely doubtful if in the circumstances stated the Tribunal can summon the Manager or the Chief Medical Officer as a party to the dispute, because there is no dispute between the Manager or Chief Medical Officer on one side and his employer oil the other. Furthermore, s. 36 of the Act does not provide for representation of a person who is not a party to the dispute. If, therefore, an award is made by the Tribunal in the case which we have taken by way of illustration, that award, though binding on the employer, will not be binding on the Manager or Chief Medical Officer.
It should be obvious that the Act could not have contemplated an eventuality of this kind, which does not promote any of the objects of the Act, but rather goes against them.
When these difficulties were pointed out to learned counsel for the appellants, he conceded that some limitations must be put on the width of the expression " any person " occurring in the definition clause. He formulated four such limitations:
(1) The dispute must be a real and substantial one in respect of which one of the parties to the dispute can give relief to the other; e. g., when the dispute is between workmen and employer, the employer must be in a position to give relief to the workmen. This, according to learned counsel for the appellants, will exclude those cases in which the workmen ask for something which their employer is not in a position to give. It would also exclude mere ideological differences or controversies.
(2) The industrial dispute if raised by workmen must relate to the particular establishment or part of establishment in which the workmen are employed so 1170 that the definition clause may be consistent with s. 18 of the Act.
(3) The dispute must relate to the employment, non employment or the terms of employment or with the conditions of labour of any person, but such person must be an employee discharged or in service or a candidate for employment.
According to learned counsel for the appellants, the person about whom the dispute has arisen need not be a workman within the meaning of the Act, but he must answer to the description of an employee, discharged or in service, or a candidate for employment.
(4) The workmen raising the dispute must have a nexus with the dispute, either because they are personally interested or because they have taken up the cause of another person in the general interest of labour welfare.
The further argument of learned counsel for the appellants is that even imposing the aforesaid four limitations on the width of the expression " any person " occurring in the definition clause, the dispute in the present case is an industrial dispute within the meaning of s. 2 (k) of the Act, because (1) the employer could give relief in the matter of the termination of service of Dr. K. P. Banerjee, (2) Dr. K. P. Banerjee belonged to the same establishment, namely, the same tea garden, (3) the dispute related to a discharged employee (though not a workman) and (4) the workmen raising the dispute were vitally interested in it by reason of the fact that Dr. Banerjee (it is stated) belonged to their trade union and the dismissal of an employee without the formulation of a charge and without giving him an opportunity to meet any charge was a matter of general interest to all workmen in the same establishment.
We now propose to examine the question whether the limitations formulated by learned counsel for the appellants are the only true limitations to be imposed with regard to the definition clause. In doing so we shall also consider what is the true scope and effect of the definition clause and what are the correct tests to be applied with regard to it. We think that there is no real difficulty with regard to the first two limitations.
1171 They are, we think, implicit in the definition clause itself. It is obvious that a dispute between employers and employers, employers and workmen, or between workmen and workmen must be a real dispute capable of settlement or adjudication by directing one of the parties to the dispute to give' necessary relief to the other. It is also obvious that the parties to the dispute must be directly or substantially interested therein, so that if workmen raise a dispute, it must relate to the establishment or part of establishment in which they are employed. With regard to limitation (3), while we agree that the expression I any person ' cannot be completely equated with 'any workman' as defined in the Act, we think that the limitation formulated by learned counsel for the appellants is much too widely stated and is not quite correct. We recognise that if the expression ' any person' means 'any workman ' within the meaning of the Act, then it is difficult to understand why the Legislature instead of using the expression 'any workman' used the much wider expression 'any person' in the third part of the definition clause. The very circumstance that in the second part of the definition clause the expression used is " between employers and workmen or between workmen and workmen " while in the third part the expression used is "any person" indicates that the expression "any person cannot be completely equated with' any workman'. The reason for the use of the expression " any person" in the definition clause is, however, not far to seek. The word 'workman' as defined in the Act (before the amendments of 1956) included, for the purposes of any proceedings under the Act in relation to an industrial dispute, a. workman discharged during the dispute.. This definition corresponded to s. 2.(j) of the old Trade Disputes Act, 1929 except that the words ,,including an apprentice " were inserted and the words " industrial dispute " were substituted for the words " trade dispute ".
It is worthy of note that in the Trade Disputes Act, 1929, the word 'workman' meant any person employed in any trade or industry to do I49 1172 any skilled or unskilled manual or clerical work for hire or reward. It is clear enough that prior to 1956 when the definition of ' workman' in the Act was further widened to include a person dismissed, discharged or retrenched in connection with, or as a consequence of the dispute or whose dismissal, discharge or retrenchment led to the dispute, a workman who had been discharged earlier and not during the dispute was not a workman within the meaning of the Act. If the expression " any person " in the third part of the definition clause were to be strictly equated with 'any workman', then there could be no industrial dispute, prior to 1956, with regard to a workman who had been discharged earlier than the dispute, even though the discharge itself had led to the dispute. That seems to be the reason why the Legislature used the expression 'any person' in the third part of the definition clause so as to put it beyond any doubt that the non-employment of such a dismissed workman was also within the ambit of an industrial dispute. There was a wide gap between a 'workman' and an 'employee' under the definition of the word 'workman' in s. 2 (s) as it stood prior to 1956; all existing workmen were no doubt employees;
but all employees were not workmen. The supervisory staff did not come within the definition. The gap has been reduced to some extent by the amendments of 1956; part of the supervisory staff (who draw wages not exceeding five hundred rupees per mensem) and those who were otherwise workmen but were discharged or dismissed earlier have also come within the definition. If and when the gap is completely bridged, I workmen will be synonymous with 'employees', whether engaged in any skilled or unskilled manual, supervisory, technical or clerical work, etc. But till the gap is completely obliterated, there is a distinction between workmen and non-workmen and that distinction has an important bearing on the question before us. Limitation no. (3) as formulated by learned counsel for the appellants ignores the distinction altogether and equates 'any person' with any employee'-past, 1173 present or future: this we do not think is quite correct or consistent with the other provisions of the Act. The Act avowedly gives a restricted meaning to the word I workman' and almost all the provisions of the Act are intended to confer benefits on that class of persons who generally answer to the description of workmen. The expression 'any person' in the definition clause means, in our opinion, a person in whose employment, or non-employment, or terms of employment, or conditions of labour the workmen as a class have a direct or substantial interest-with whom they have, under the scheme of the Act, a community of interest. Our reason for so holding is not merely that the Act makes a distinction between workmen and non-workmen, but because a dispute to be a real dispute must be one in which the parties to the dispute have a direct or substantial interest. Can it be said that workmen as a class are directly or substantially interested in the employment, non employment, terms of employment or conditions of lab our 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. Limitation (4) formulated by learned counsel for the appellants is also too generally stated. We recognise that solidarity of labour or general interest of tabour 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 or labour of whom they have a direct or substantial interest. We think that Chagla C. J., correctly put the crucial test when he said in Narendra Kumar Sen v. All India Industrial Disputes (Labour Appellate) Tribunal (1).
(1) (1953) 55 Bom. L.R. 125,129, 130.
1174 " Therefore, when s. 2 (k) speaks of the employment or non-employment or the terms of employment or the conditions of labour of any person, it can only mean the employment or non-employment or the terms of employment or the conditions of labour of only .those persons in the employment or nonemployment or the terms of employment or with the conditions of labour of whom the workmen themselves are directly and substantially interested. If the workmen have no direct or substantial interest in the employment or non-employment of a person or in his terms of employment or his conditions of labour, then an industrial dispute cannot arise with regard to such person." We reach the same conclusion by approaching the question from a somewhat different standpoint. Ordinarily, it is only the aggrieved party who can raise a dispute; but an industrial dispute' is put on a collective basis, because it is now settled that an individual dispute, not espoused by others of the class to which the aggrieved party may belong, is not an industrial dispute within the meaning of a. 2 (k).
As Isaacs J. observed in the Australian case of George Hudson Ltd. v. Australian Timber Workers' Union(1):
"The very nature of, an I industrial dispute' as distinguished from an individual dispute, is to obtain new industrial conditions, not merely for the specific individuals then working from the specific individuals then employing them, and not for the moment only, but for the class of employees from the class of employers..................... It is a battle by the claimants, not for themselves alone." Section 18 of the Act supports the aforesaid observations, in so far as it makes the award binding not merely on the parties to the dispute, but where the party is an employer, on his heirs, successors or assigns and where the party is composed of workmen, on all persons employed in the establishment and all persons who subsequently become employed therein. If, therefore, the dispute is a collective dispute, the party raising the dispute must have either a direct interest in the subject matter of dispute or a substantial interest therein in the sense that the class to which the (I) 32 C.L.R. 4I3,441.
1175 aggrieved party belongs is substantially affected there. by.
It is the community of interest of the class as a whole -class of employers or class of workmen-which furnishes the real nexus between the dispute and the parties to the dispute. We see no insuperable difficulty in the practical application of this test. In a case where the party to the dispute is composed of aggrieved workmen themselves and the subject matter of dispute relates to them or any of them, they clearly have a direct interest in the dispute. Where, however, the party to the dispute also composed of workmen, espouse the cause of another person whose employment, or non-employment, etc., may prejudicially affect their interest, the workmen have a substantial interest in the subject matter of dispute. In both such bases, the dispute is an industrial dispute.
Learned counsel for the appellants has also drawn our attention to the definition of a ' trade dispute' in the Indian Trade Unions Act, 1926. That definition is also in the same terms, but with this vital difference that the word ' workmen' means there "all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises." It is obvious that the very wide definition of the word 'workmen' determines the ambit of the definition, of a 'trade dispute' in the Trade Unions Act, 1926. The provisions of that Act have different objects in view, one of which is the expenditure of the funds of a registered Trade Union I on the conduct of trade disputes on behalf of the Trade Union or any member thereof.
We do not think that that definition for the purposes of an Act like the Trade Unions Act is of any assistance in construing the definition in the Act with which we are now concerned, even though the words employed are the same; for one thing, the meaning of the word `workman' completely changes the ambit of the definition clause, and for another, the objects, scheme and purpose of the two Acts are not the same. For the same reasons, we do not think that with regard to the precise problem before us much assistance can be obtained by a detailed examination of English, 1176 American or Australian decisions given with regard to the terms of the statutes in force in those countries. Each Act must be interpreted on its own terms particularly when the definition of a 'workman' varies from statute to statute and, with changing conditions, from time to time, and country to country.
The interpretation of s. 2 (k) of the Act has been the subject of consideration in various Indian decisions from different points of view. Two recent decisions of this Court considered the question if an individual dispute of a workman was within the definition of an industrial dispute.
The decision in C. P. Transport Services Ltd. v. Raghunath (1), related to the C. P. and Berar Industrial Disputes Settlement Act (No. XXIII of 1947) and the decision in Newspapers Ltd. v. State Industrial Tribunal, U. P.(2), to the U. P. Industrial Disputes Act (No. XXVIII of 1947).
Both these decisions considered s. 2 (k) of the Act, but with reference to a different problem. The definition clause in s. 2 (k) was considered at some length by the Federal Court in Western India Automobile Association v. The Industrial Tribunal, Bombay (3), and learned counsel for the appellants has placed great reliance on some of the observations made therein. The question which fell for decision in that case was whether " industrial dispute" included within its ambit a dispute with regard to reinstatement of certain dismissed workmen. It was held that reinstatement was connected with non-employment and, therefore, fell within the words of the definition. It appears that the finding of the Court from which the appeal was preferred to the Federal Court was that the workmen whose reinstatement was in question were discharged during the dispute and were, therefore, workmen within the meaning of the Act, Therefore, the problem of interpretation with which we are faced in this case was not the problem before their Lordships of the Federal Court. The observations on which learned counsel for the appellants has relied are these:
" The question for determination is whether the (1) [1956] S. C. R. 956. (2) A. 1. R. (1957) S. C.
532.
(3) [1949] F. C. R321, 329-330 346-347.
1177 definition of the expression "industrial dispute" given in the Act includes within its ambit, a dispute in regard to reinstatement of dismissed employees........ The words of the definition may be paraphrased thus: " any dispute which has connection with the workmen being in, or out of service or employment ". " Non-employment " is the negative of " employment" and would mean that disputes of workmen out of service with their employers are within the ambit of the definition. It is the positive or the negative act of an employer that leads to employment or to non-employment. It may relate to an existing employment or to a contemplated employment, or it may relate to an existing fact of no employment or a contemplated non-employment. The following four illustrations elucidate this point: (1) An employer has already employed a person and a trade union says " Please do not employ him ". Such a dispute is a dispute as to employment or in connection with employment. (2) An employer gives notice to a union saying that he wishes to employ two particular persons. The union says " no ". This is a dispute as to employment. It arises out of the desire of the employer to employ certain persons. (3) An employer may dismiss a man, or decline to employ him. This matter raises a dispute as to non-employment. (4) An employer contemplates turning out a number of people who are already in his employment. It is a dispute as to contemplated no employment. " Employment or non-employment " constitutes the subject matter of one class of industrial disputes, the other two classes of disputes being those connected with the terms of employment and the conditions of labour. The failure to employ or the refusal to employ are actions on the part of the employer which would be covered by the terms " employment or non-employment ". Re-instatement is connected with non-employment and is therefore within the words of the definition." " It was contended that the re-instatment of the discharged workmen was not an industrial dispute 1178 because if the union represented the discharged employees, they were not workmen within the definition of that word in the Industrial Disputes Act. This argument is unsound. We see no difficulty in the respondents (union) taking up the cause of the discharged workmen and the dispute being still an industrial dispute between the employer and the workmen.
The non-employment " of any person " can amount to an industrial dispute between the employer and the workmen, falling under the definition of that word in the Industrial Disputes Act. It was argued that if' the respondents represented the undischarged employees, there was no dispute between them and the employer. That again is fallacious, because under the definition of industrial dispute, it is not necessary that the parties to the proceedings can be the discharged workmen only. The last words in the definition of industrial dispute, viz., " any person " are a complete answer to this argument of the appellants." It is true that two of the illustrations-Nos. (2) and (3)-given in the aforesaid observations seem to indicate that there can be an industrial dispute relating to persons who are not strictly speaking "workmen"; but whether those persons would answer to such description or what community of interest the workmen had with them is not stated and in any view we do not think that illustrations given to elucidate a different problem can be taken as determinative of a problem which was not before the court in that case.
A reference was also made to the decision of this Court in D. N. Banerji v. P. R. Mukherjee (1). The question there was whether the expression " industrial dispute " included disputes between municipalities and their employees in branches of work analogous to the carrying on of a trade or business.
More in point is the decision of the Full Bench of the Labour Appellate Tribunal in a number of appeals reported in 1952 Labour Appeal Cases, p. 198, where the question now before us, arose directly for decision. The same question arose for decision before the All India. Industrial Tribunal (Bank Disputes) and the majority of members (Messrs. K. C. Sen and (1) [1953] S.C.R. 302.
1179 J. N. Majumdar) expressed the view that a dispute between employers and workmen might relate to employment or no employment or the terms of employment or conditions of labour of persons who were not workmen, and the words any person' used in the definition clause were elastic enough to include an officer, that is, a member of the supervisory staff. The majority view will be found in Chap. X of the Report. The minority view was expressed by Mr. N. Chandrasekhara Aiyar, who said:
" It is fairly clear to my mind that "any person') in the Act means any one whe belongs to the employer class or the workmen class and the cases in whose favour or against whom can be said to be adequately presented by the group or category of persons to which he belongs.
As stated already it should be remembered that the cases relied upon for the view that 'any person' may mean others also besides the workmen were all cases relating to workmen.
They were discharged or dismissed workmen and when their cases were taken up by the Tribunal the point was raised that they had ceased to be workmen and were therefore outside the scope of the Act. This argument was repelled.
In my opinion, there is no justification for treating such cases as authorities for the wider proposition that a valid industrial dispute can be raised by workmen about the employment or non-employment of someone else who does not belong and never belonged to their class or category.
My view therefore is that the Act does not apply to cases of non workmen, or officers, if they may be so called." Both these views as also other decisions of High Courts and awards of Industrial Tribunals, were considered by the Full Bench of the Labour Appellate Tribunal and the Chairman of the Tribunal (Mr. J. N. Majamdar) acknowledged that his earlier view was not correct and expressed his opinion, concurred in by all the other members of the Tribunal, at p. 210150 1180 " I am, therefore, of opinion that the expression 'any person' has to be interpreted in terms of 'workmen.' The words 'any person' cannot have, in my opinion, their widest amplitude, as that would create incongruity and repugnancy in the provisions of the Act. They are to be interpreted in a manner that persons, who would come within that expression, can at some stage or other, answer the description of workman as defined in the Act." It is necessary to state here that earlier a contrary view had been taken by the Calcutta High Court in Birla Brothers, Ltd. v. Modak (1), by Banerjee J. in The Dalhousie Jute Co. Ltd. v. S. N. Modak (2), and by the Industrial Tribunal, Madras, in East India Industries (Madras) Ltd. v. Their Workmen (3). It is necessary to emphasise here two considerations which have generally weighed with some of the learned Judges in support of the view expressed by them:
these two Considerations are that (1) normally workmen will not raise a dispute in which they are not directly or substantially interested and (2) Government will not make a reference unless the dispute is a real or substantial one.
We think that these two considerations instead of leading to a strictly grammatical or etymological interpretation of the expression " any person " occurring in the definition clause should lead, on the contrary, to an interpretation which, to use the words of Maxwell, is to be found in the subject or in the occasion on which the words are used and the object to be attained by the statute.
We are aware that anybody may be a potential workman and the concept of "a potential workman" introduces an element of indefiniteness and uncertainty. We also agree that the expression " any person " is not co-extensive with any workman, potential or otherwise. We think, however, that the crucial test is one of community of interest and 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 (1) I.L.R. (1948) 2 Cal. 209. (2) [1951] 1 L.L.J. 145.
(3) [1952] 1 L.L.J. 122.
1181 to the dispute have a direct or substantial interest.
Whether such direct or substantial interest has been established in a particular case will depend on its facts and circumstances.
Two other later decisions have also been brought to our notice : Prahlad Rai Oil Mills v. State of Uttar Pradesh (1) in which Bhargava J. expressed the view that the expression 'any person' in the definition clause did not mean a workman and the decision in Narendra Kumar Sen v. All India Industrial Disputes (Labour Appellate) Tribunal (2), being the decision of Chagla C. J. and Shah J. from which we have already quoted some extracts.
An examination of the decisions referred to above undoubtedly discloses a divergence of opinion : two views have been expressed, one based on the ordinary meaning of the expression 'any person' and the other based on the context, with reference to the subject of the enactment and the objects which the legislature has in view. For the reasons which we have already given, we think that the latter view is correct.
To summarise. Having regard to the scheme and objects of the Act, and its other provisions, the expression 'any person ' in s. 2 (k) of the Act must be read-subject to such limitations and qualifications as arise from the context;
the two crucial limitations are (1) 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 (2) 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 dipute 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 raise 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 (1) A.I.R. (1955) NUC (Allahabad) 2664. (2) (1953) 55 Bo-. L.R. 125.
1182 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.
In the case before us, Dr. K.P. Banerjee was not a workman'. He belonged to the medical or technical staff-a different category altogether from workmen. The appellants had no direct, nor substantial interest in his employment or non-employment, and even assuming that he was a member of the same Trade Union, it cannot be said, on the tests laid down by us, that the dispute regarding his termination of service was an industrial dispute within the meaning of s.
2(k) of the Act.
The result, therefore, is that the appeal fails and is dismissed. In the circumstances of this case there will be no order for costs.
SARKAR J.-On November 1, 1950, Dr. K. P. Banerjee was appointed the Assistant Medical Officer of the Dimakuchi Tea Estate, whose management is the respondent in this appeal.
On April 21, 1951, the respondent terminated Dr. Banerjee's service with effect from the next day and he was offered one month's salary in lieu of notice. He accepted this salary and later left the Tea Estate. The workmen of the Tea Estate raised a dispute concerning the dismissal of Dr. Banerjee. On December 23, 1953, the Government of Assam made an order of reference for adjudication of that dispute by the Industrial Tribunal under the provisions of s. 10 of the Industrial Disputes Act, 1947. The order of reference was in the following terms:
Whereas an industrial dispute has arisen in the matters specified in the schedule below between:
(1) The workmen of Dimakuchi Tea Estate, P. O. Dimakuchi, District Darrang, Assam represented by the Secretary, Assam Chah Karmachari Sangha, I.N.T.U.C. Office, P.O. Dibrugarh, Assam and, (2) The management of Dimakuchi Tea Estate, P.O. Dimakuchi, District Darrang, Assam whose agents are Messrs.
Williamson Magor and Company Limited, Calcutta.
1183 And whereas it is considered expedient by the Govt. of Assam to refer the said dispute for adjudication to a Tribunal constituted under section 7 of the Industrial Disputes Act, 1947 (Act XIV of 1947).
Now, therefore, in exercise of the powers conferred by clause (e) of sub-section (1) of section 10, as amended, of the Industrial Disputes Act (XIV of 1947), the Governor of Assam is pleased to refer the said dispute to Sri Uma Kanta Gohain, Additional District and Sessions Judge (retired) who has been appointed to constitute a Tribunal under the provisions of the said Act.
SCHEDULE.
(i) Whether the management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P. Banerjee, A. M. 0. ? (ii)If not, is he entitled to reinstatement or any other relief in lieu thereof ? The Tribunal held that Dr. Banerjee was not a workman as defined in the Act and, therefore, the dispute referred was not an industrial dispute and consequently it had no jurisdiction to adjudicate upon such a dispute. The workmen preferred an appeal to the Labour Appellate Tribunal. That Tribunal dismissed the appeal holding that Dr. Banerjee was not a workman within the definition of that term in the Act and as the dispute was connected with his employment or nonemployment, it was not an industrial dispute, and was therefore beyond the jurisdiction of the Industrial Tribunal. From that decision the present appeal by the workmen of the Tea Estate arises with leave granted by this Court under Art. 136 of the Constitution. In granting the leave this Court limited it to the question whether a dispute in relation to a person who is not a workman, falls within the scope of the definition of " Industrial Dispute " contained in s. 2(k) of the Act. That, therefore, is the only question before us.
Section 2(k) is in these terms:
" Industrial dispute means any dispute or difference between employers and employers or 1184 between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour, of any person." The dispute that was raised was between an employer, the respondent in this appeal and its workmen, the appellants before us and concerned the employment or non-employment of Dr. Banerjee, a person employed by the same employer but who was not a workman. The question that we have to decide has arisen because of the use of the words " any person " in the definition. These words are quite general and very wide and according to their ordinary meaning include a person who is not a workman. If this meaning is given to these words, then the dispute that arose concerning Dr. Banerjee's dismissal would be an industrial dispute because the dispute would then be clearly within s. 2(k). This indeed is not disputed. Unless there are reasons to the contrary these words have to be given their ordinary meaning. In Birla Brothers Ltd. v. Modak (1) and in Western India Automobile Association v. -Industrial -Tribunal of Bombay (2) it was held that the words " any person " were not meant to refer only to workmen as defined in the Act but were wide and general and would include others who were not such workmen.
In The Dalhousie Jute Co. Ltd. v. S. N. Modak (3), Banerjee J. said, " Any person means whatever individual is chosen.
I see no reason to restrict the meaning of the word 'Person'". The same view was expressed in East India Industries (Madras) Ltd. v. Their Workmen (4), which was the decision of an Industrial Tribunal. There is then some support for the view that the words I any person' should have no restriction put upon them.
It is pointed out on behalf of the respondent that it is not its contention that the words 'any person' should be understood as referring only to a " workman " as defined in the Act but that those words, should include all persons of the workman class and (1) I.L.R. (1948) 2 Cal. 209.
(2) [1949] F.C.R. 321.
(3) [1951] 1 L.L.J. 145.
(4) [1952] 1 L.L.J. 122.
1185 so they would include discharged workmen. It is then stated that the first two of the cases mentioned above were concerned with a dispute regarding discharged workmen and did not therefore decide that the words (I any person' included all. It is no doubt true that these cases were concerned with a dispute regarding discharged workmen but I do not understand the decision to have proceeded on that basis. Sen J. said in Birla Brothers case (1) (p. 213) that, " It cannot be argued that workmen dismissed prior to the Act are not 'persons"'. And in the Western India Automobile Association case (2), it was said (p. 346-7), " It was contended that the reinstatement of the discharged workmen was not an industrial dispute because if the union represented the discharged employees, they were not workmen within the definition of that word in the Industrial Disputes Act. This argument is unsound. We see no difficulty in the respondents (union) taking up the cause of the discharged workmen and the dispute bein
