The J. K. Cotton Spinning &
Weaving Mills Co., Ltd. Vs. The State of Uttar Pradesh & Ors  INSC
289 (12 December 1960)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
CITATION: 1961 AIR 1170
CITATOR INFO :
AFR 1977 SC1194 (7) RF 1979 SC 65 (5) RF 1980
SC2181 (80) R 1984 SC1130 (42) RF 1988 SC1737 (48) R 1991 SC 855 (51) RF 1991
Industrial Dispute-Proposed dismissal of
workmen-Pending dispute-Permission not sought-Reference to adjudication
Vaiidity of-U. P. Industrial Disputes Act, 1947 (U. P. 28 of 1947), ss. 3 and 8
Government Order dated March 10, 1948, cls. 5(a), 23.
Under ss. 3 and 8 of the U. P. Industrial
Disputes Act, 1947 the Governor issued an Order dated March 10, 1948, making
dletailed provisions for the settlement of Industrial Disputes. Clause 5(a) of
the Government Order empowered, among others, a recognised association of
employers to refer an industrial dispute for adjudication to the Conciliation
Board. Clause 23 provided that no employer shall discharge or dismiss any
workman during the pendency of an inquiry except with the written permission of
the Regional Conciliation Officer, and Cl. 26 provided for penalties for
contravention of Cl. 23. The appellant proposed to dismiss certain workmen.
Though at the time there was a dispute pending inquiry, the appellant did not
seek permission under cl. 23 to dismiss the workmen; but the Employers' Association
of Northern India made an application under cl. 5(a) to the Board to adjudicate
and give an award that the appellant was entitled to dismiss the workmen. The
workmen contended that the reference under cl. 5(a) was incompetent as the
appellant had ,not first taken proceedings under Cl. 23.
Held, that the application under cl. 5(a) of
the G. O. was not 24 186 maintainable, as the employer could not take advantage
of cl. 5(a) during the pendency of an inquiry when Cl. 23 was applicable. If
cls. 5(a) and 23 were held to' apply at the same time there would be disharmony
as by resorting to cl.
5(a) when Cl. 23 was applicable, the
employers would be contravening cl. 23 and rendering themselves liable to the
penalties under S. 26. But there was complete harmony if it was held that cl.
5(a) applied in all other cases of dismissal or discharge except where an
inquiry was pending within the meaning of Cl. 23. Besides Cl. 23 was a special
provision which prevailed over the general provisions in cl. 5(a).
Kanpur Mill Mazdoor Union v. Employers'
Association of Northern India, (1952) 1 L.L.J. 195, approved.
De Winton v. Brecon, (1858) 28 L.J. Ch. 598,
Churchill v. Crease, (182S) 5 Bing. 177 and United States v. Chase, (1890) 135
U. S. 255, referred to.
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 157 of 1959.
Appeal from the judgment and decree dated
January 5, 1956, of the Allahabad High Court in Special Appeal No. 205 of 1954
and Civil Appeal No. 158 of 1959.
Appeal by special leave from the judgment and
order dated January 15, 1952, of the Labour Appellate Tribunal of India,
Allahabad, in Appeal No. Cal. 47 of 1951.
M.C. Setalvad, Attorney-General for India and
G. C. Mathur, for the appellant.
M. R. Krishna Pillai, for respondent No. 5
(In C.A. No. 157/1959).
C. P. Lal, for the State of U. P. and
Respondents Nos. 2 and 4 (In C. A. No. 157/59).
O. P. Verma, for respondent No. 5 (in C. A.
1960. December 12. The Judgment of the Court
was delivered by DAs GUPTA, J.-These two appeals raise the question of the
maintainability of an application made by the Employers' Association of
Northern India, Kanpur on behalf of , the J.
K. Cotton and Weaving Mills 187 Co., Ltd., a
member of the Association in connection with the proposed termination of
service of certain members of its Watch and Ward Staff. But before we come to
the consideration of this question it is necessary to indicate in brief the
long and tortuous path this matter has traveled before coming to us. The
application of the Employers' Association purported to be under clause 5(a) of
the Government order dated March 10, 1948, as amended by a later order of May
15, 1948. This order was issued by the Governor of the United Provinces in
exercise of the powers conferred on him by cl. (b), (c), (d) and (g) of section
3 and by s. 8 of the U. P. Industrial Disputes Act, 1947. The application after
stating that a number of thefts of Dhoties had taken place in the Mill further
stated that it was obvious to the management of the J. K. Cotton Spinning and
Weaving Mills Co., Ltd., that this state of affairs could not exist and
continue if Watch and Ward staff were carrying out their duties vigilantly,
correctly and honestly. It stated further that the management having lost
confidence in the honesty of the Watch and Ward Staff had decided to terminate
the services of all the per. sons of the Watch and Ward Staff and to recruit
fresh men from the employment exchange and that in lieu of notice of
termination of service the management would pay to these persons 12 days' wages
in accordance with Standing Order No. 17A. The prayer made in the application
was that "the Board be pleased to record the award entitling the J. K.
Cotton and Weaving Mills Co., Ltd., to terminate the services of all the
members of the Watch and Ward Staff whose names appear in Annexure A".
During the pendency of the application before the Board the applicant withdrew
its prayer as regards 5 of the workmen. As regards the remaining workmen, after
rejecting the preliminary objection raised on their behalf that the Board had
no jurisdiction to entertain the application, the Board held that "it
would not be in the interests of either party or in the interest of industry to
allow the remaining 27 sepoys to continue in the employment of the Mills"
and the Board 188 accordingly made the award permitting the appellants to
terminate the services of these sepoys after giving them compensation at the
rates set out by it--starting with 15 days full wages and compensation for
those with one year of service with additional amount of compensation on a
graduated scale for longer periods of service. Against this order both the
parties appealed to the Industrial Court.
That court agreed with Board's conclusion on
the question of jurisdiction but pointed out that the "procedure adopted
by the employers association was defective inasmuch as the mills did not apply
to the Regional Conciliation Officer to discharge the sepoys in question".
On merits the court held that the evidence justified the conclusion of the
Board that the management had lost confidence in the members of the Watch and
Ward Staff and that having regard to the Standing Orders their services should
be terminated in accordance with the Standing Orders. It accordingly directed
in modification of the order made by the Board "that the services of the
27 sepoys in question be terminated in accordance with the Standing Orders and
that they would not be paid extra compensation as directed by the Board."
The workmen then appealed to the Labour Appellate Tribunal of India. The
appellate tribunal held relying on an earlier decision of its own in Kanpur
Mill Mazdoor Union v. Employers' Association of Northern India (1) that the
application under cl. 5(a) of the Government Order was not maintainable.
Accordingly it allowed the appeal and set aside the award of the Board as well
as the Industrial Court.
J.K. Cotton and Weaving Mills Co., Ltd.,
thereupon filed an application under Art. 226 of the Constitution to the High
Court of Judicature at Allahabad praying for a writ in the nature of certiorari
calling for the records of the case from the Labour Appellate Tribunal of India
and quashing the order of the Tribunal which has been mentioned above. Mr. Justice
Chaturvedi, before whom this application came up for hearing held that the
application under (1)(1952) 1 L.L.J. 195.
189 cl. 5(a) was maintainable and the
Appellate Tribunal had erred in holding otherwise. Being however, of opinion
that there had been undue delay in making this application for a writ, he
dismissed the petition on that ground. In the Letters Patent appeal preferred
by the company against this decision a preliminary objection was raised on
behalf of the Union representing the workmen that the Allahabad High Court
could not call for the records and quash the order of the Labour Appellate
Tribunal of India as those records were in Calcutta and consequently beyond the
reach of the Court.
The learned Judges who heard the appeal upheld
this objection and dismissed the appeal. They however issued a certificate
under Art. 132(1)and Art. 133(1)(c) of the Constitution. There after the
company also obtained special leave from this court to appeal directly against
the order of the Labour Appellate Tribunal of India. These two appeals
preferred -one on the certificate granted by theHigh Court and the other on the
strength of the special leave granted by this Court, have been heard together.
The main controversy, as already indicated,
is on the question of the maintainability of the application under cl. 5(a) of
the Government order. This order issued by the Governor of the United Provinces
in exercise of the powers conferred on him by the U. P. Industrial Disputes
Act, 1947 'contains detailed provisions as regards the settlement of industrial
disputes. The first clause provides for the constitution of Conciliation Boards
consisting of three members. Clause 2 provides for the appointment of
conciliation officers for specified areas. Clause 5 contains the important
provisions as to commencement of proceedings before the Boards. It provides two
ways of starting these proceedings: one mentioned in cl.(b) is by an order made
in writing by the Provincial Government for enquiring into a matter in respect
of which an industrial dispute has arisen or is likely to arise. The other
method is by means of an application by an employee or recognised association
of employers or-registered trade union of workers or where there is 190 no such
registered trade union the representatives not more than five in number duly
elected by a majority of the workmen in the industry. Any of these may by an
application in writing move the Board to inquire into an industrial dispute.
This provision is in cl. 5(a) which may be set out in full:"5(a). Any
employee or recognised association of employers or registered Trade Union of
workmen or, where no registered trade union of workmen exists in any particular
concern or industry, the representatives not more than five in number of the
workmen in such concern or industry duly elected in this behalf by a majority
of the workmen, in such concern or industry as the case may be, at a meeting
held for the purpose, may by application in writing move the Board to enquire
into any industrial dispute. The application shall clearly state the industrial
dispute or disputes which are to be the subject of such inquiry." Clause
10 provides for the constitution of industrial courts for specified areas.
Clause 12 provides for appeals to this Court against the awards made by the
Board. The other clauses up to clause 22 deal with the powers and procedure of
the Board or the Industrial Court and with the duties of employers to permit
certain meetings to be held. Then comes cl. 23 which is in these words:"Save
with the written permission of the Regional Conciliation Officer or the
Additional Regional Conciliation Officer concerned, irrespective of the fact
whether an inquiry is pending before a Regional Conciliation Board or the
Provincial Conciliation Board or an appeal is pending before the Industrial
Court, no employer, his agent or manager, shall during the continuance of an
inquiry or appeal, discharge or dismiss any workman." Section 24 provides
that every order made or direction issued under the provisions of this
Government order shall be final and conclusive. Clause 26 provides for
penalties for contravention or an attempt to contravene any of the provisions
of the order.
A consideration of the scheme of this
legislation 191 makes it clear that while two modes are provided in clauses
5(a) and 5(b) for the commencement of proceedings for settlement of industrial
disputes generally, a special provision is made in clause 23 that if an enquiry
is proceeding before a Regional Conciliation Board or the Provincial
Conciliation Board or an appeal is pending before the Industrial Court, no
workman shall be discharged except with the written permission of the Regional
Conciliation Officer or the Additional Conciliation Officer concerned.
The consequence in cl. 26 is that if any
workman is discharged or dismissed during the continuance of such enquiry or
appeal without such permission the employer shall be liable to fine or to
imprisonment not exceeding three years or both. The heavy punishment provided
for contravention of the order shows the importance attached by the legislating
authority to the directions given by the Order.
In deciding whether an application under cl.
5(a) was maintainable in the facts of the present case two questions arise for
consideration. The first is whether an industrial dispute comes into existence
as soon as an employer decides on the dismissal of some of the workmen and
proposes to give effect to such decision. One view is that it is only the party
aggrieved by the proposed dismissal, in other words, the workmen, who by
objecting to the same can raise the dispute and that the employer cannot by his
own proposal to dismiss the workmen be heard to say that a dispute had come
into existence even before the workmen had a chance to object to the dismissal.
The contrary view which has found favour with Mr. Justice Chaturvedi of the
High Court is that even at the stage the employer proposes to dismiss his workmen
it is a case of contemplated non-employment which will come within the
expression "industrial dispute". The other question is whether the
provisions of cl. 23 of the order bar an application under cl. 5(a) during the
continuance of any enquiry before the Regional Conciliation Board or the
Additional Conciliation Board or during the pendency of the appeal before the
Industrial Court. There is no dispute that on June 13, 192 1950 when the
application under clause 5(a) was made an inquiry was in fact pending before a
It appears that on July 9, 1949 the Governor
of the United Provinces made an order directing the Labour Commissioner of the
United Provinces or a Conciliation Officer nominated by him in this behalf to
redstart the adjudication proceedings between the J. K. Cotton & Weaving
Mills Co., and S. N. Shukla, a dismissed employee of the concern. The Adjudicator
was directed to conclude the adjudication and submit his award by August
15,1949. The time was extended by subsequent orders-first to November 15, 1949
and then to March 31, 1950, again to June 30, 1950 and thereafter to September
30, 1950. It is true that at the time these orders extending time for
submission of award were made the Governor had no authority to make these
orders and these orders were invalid. They were validated by the provisions of
s. 3 of the U.P. Act XXIII of 1953. In view of this position of the law the
learned Attorney-General has not disputed that on June 13, 1950 when the
application under cl. 5(a) was made an enquiry was actually pending before a
Conciliation Officer. Consequently, before the management could make any order
discharging or dismissing any of its workmen it was required by cl. 23 to
obtain permission for the same from the Regional Conciliation Officer. The
question is whether in spite of this provision in cl. 23 the employer could
make and the Board entertain an application under cl. 5(a) on this question of
We propose to consider this question first
and for that purpose assume that an industrial dispute comes into existence as
soon as the employer decides to dismiss his workmen and proposes to do so and
that ordinarily he can make an application in such a dispute to the Board under
the provisions of cl. 5(a). If such application is decided against the employer
and no permission is given to make the proposed dismissal, no difficulty
arises. What however is the position if on such an application the Board makes
an order granting the employer the requisite permission to 193 dismiss his
workmen? Under cl. 24 this order unless modified in appeal will be final and
conclusive and shall not be questioned by any party thereto. So far as the
workmen are concerned they will not be able to dispute the correctness of the
order except in the mode provided in the Government order itself. What however
is the position of the employer if in pursuance of the order made on his
application under cl. 5(a) he discharges or dismisses his workmen? By doing so
he will have clearly contravened the provisions of cl. 23, and will become
liable to the severe penalty provided in cl. 26-a, penalty which might even
extend to imprisonment up to three years.
To remove this incongruity, says the learned
Attorney General, apply the rule of harmonious construction and hold that cl.
23 of the order has no application when an order is made on an application
under cl. 6(a). On the assumption that under cl. 5(a) an employer can raise a
dispute sought to be created by his own proposed order of dismissal of workmen
there is clearly this disharmony as pointed out above between two provisions
viz., cl. 5(a) and cl. 23; and undoubtedly we have to apply the rule of
harmonious construction. In applying the rule however we have to remember that
to harmonise is not to destroy. In the interpretation of statutes the court,%
always presume that the legislature inserted every part thereof for a purpose
and the legislative intention is that every part of the statute should have
effect. These presumptions will have to be made in the case of rule making
authority also. On the construction suggested by the learned Attorney-General
it is obvious that by merely making an application under cl. (5) on the
allegation that a dispute has arisen about the proposed action to dismiss workmen
the employer can in every case escape the requirements of cl. 23 and if for one
reason or other every employer when proposing a dismissal prefers to proceed
under cl. 5(a) instead of making an application under cl. 23, cl. 23 will be a
dead letter. A construction like this which defeats the intention of the rule
making authority in cl. 23 must, if possible, be avoided.
25 194 It is hardly necessary to mention that
this rule in cl. 23 was made with a definite purpose. The provision here is
very similar to s. 33 of the Industrial Disputes Act before its amendment,
though there are some differences. It is easy to see however that the rule
making authority in making this rule was anxious to prevent as far as possible
the recrudescense of fresh disputes between employers and workmen when some
dispute was already pending and that purpose will be directly defeated if a
fresh dispute is allowed to be raised under cl. 5(a) in the very cases where
cl. 23 in terms applies.
There will be complete harmony however if we
hold instead that cl. 5(a) will apply in all other cases of proposed dismissal
or discharge except where an inquiry is pending within the meaning of cl. 23.
We reach the same result by applying another well known rule of construction
that general provisions yield to special provisions. The learned
Attorney-General seemed to suggest that while this rule of construction is
applicable to resolve the conflict between the general provision in one Act and
the special provision in another Act, the rule cannot apply in resolving a conflict
between general and special provisions in the same legislative instrument. This
suggestion does not find support in either principle or authority. The rule
that general provisions should yield to specific provisions is not an arbitrary
principle made by lawyers and judges but springs from the common understanding
of men and women that when the same person gives two directions one covering a
large number of matters in general and another to only some of them his
intention is that these latter directions should prevail as regards these while
as regards all the rest the earlier direction should have effect. In Pretty v.
Solly (1) (quoted in Craies on Statute Law at p. 205, 5th Edition) Romilly,
M.R. mentioned the rule thus:"The rule is, that whenever there is a
particular enactment and a general enactment in the same statute and the
latter, taken in its most comprehensive sense, would overrule the former, the
particular enactment (1) (1859) 26 Beav. 606, 610.
195 must be operative, and the general
enactment must be taken to affect only the other parts of the statute to which
it may properly apply". The rule has been applied as between different
provisions of the same statute in numerous cases some of which only need be
mentioned: De Winton v. Brecon (1), Churchill v. Crease (2), United States v.
Chase (3) and Carroll v. Greenwich Ins. CO. (4).
Applying this rule of construction that in
cases of conflict between a specific provision and a general provision the
specific provision prevails over the general provision and the general
provision applies only to such cases which are not covered by the special
provision, we must hold that cl.
5(a) has no application in a case where the
special provisions of cl. 23 are applicable.
As in the present case an inquiry was in fact
pending before a Conciliation Officer, cl. 23 applied in respect of any
discharge or dismissal of a workman and the employer could not take advantage
of cl. 5(a) of the Government Order and such an application could not in law be
entertained by the Board.
In view of this conclusion it is unnecessary
for us to consider the other question that was raised, viz., whether an
industrial dispute within the meaning of cl. 5(a) comes into existence as soon
as an employer decides on the dismissal of some of its workmen and proposes to
give effect to such a decision.
On the above conclusions we hold that the
Labour Appellate Tribunal of India rightly held that the application under cl.
5(a) filed on June 13, 1950 was not maintainable and rightly set aside the
awards of the Conciliation Board and the Industrial Court. The appeal against
the order of the Labour Appellate Tribunal of India is therefore dismissed.
As we have already pointed out above the
order made by the appellate Bench of the High Court in the writ petition was
based on its acceptance of the preliminary objection that the records of the
Labour Appellate Tribunal being in Calcutta could not be (1)(1858) 28 L.J. Ch.
(2)(1828) 5 Bing. 177.
(3)(1890) 135 U.S. 255.
(4)(1905) 199 U.S. 401.
196 reached by any writ of the Allahabad High
Court. In view of our conclusion that the application under cl. 5(a) was not
maintainable, the appellant was on merits not entitled to any writ and on that
ground the appeal against the High Court's order must also be dismissed.
It is unnecessary to consider the question
whether the High Court was right in its view as regards the preliminary
objection and we express no opinion on the same.
Both the appeals are accordingly dismissed
with costs to the contesting respondent. There will be one set of hearing fee.