M/S. New India Motors (P) Ltd. New
Delhi Vs. K. T. Morris  INSC 50 (22 March 1960)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
CITATION: 1960 AIR 875 1960 SCR (3) 350
CITATOR INFO :
R 1960 SC1012 (5) R 1965 SC 745 (17) R 1966
SC 288 (2) RF 1970 SC 512 (10)
Industrial Dispute--"Workmen concerned
in such dispute," Meaning of--Industrial Disputes Act, 1947 (14 of 1947),
as amended by Act 36 of 1956, ss. 33(1)(a), 33A.
The respondent workman was dismissed by his
employer, the appellant, pending adjudication of an industrial dispute, and
without the permission of the Industrial Tribunal, relating to the discharge of
7 other employees working as apprentices under the appellant. The respondent
raised a dispute before the Industrial Tribunal under S. 33A of the Industrial
Disputes Act, 1947, and his case was that he was concerned in the dispute
relating to the said 7 employees and gave evidence on their behalf and that his
dismissal was solely due to the interest he took in their cause. The Tribunal
found in his favour and passed an award directing his reinstatement. The
appellant contended that the respondent was incompetent to raise the dispute
under s. 33A of the Act. The question for decision, therefore, was one relating
to the construction of s. 33(1)(a) of the Act:
351 Held, that the expression " workmen
concerned in such dispute " occurring in s. 33(1)(a) of the Industrial
Disputes Act 1947, as amended by Act 36 of 1956, includes not merely such
workmen as are directly or immediately concerned with the dispute, but also
those on whose behalf the dispute is raised as well as those who, when the
award is made, will be bound by it.
Eastern Plywood Mfg. Co. Ltd. v. Eastern
Plywood Mfg. Workers' Union, (1952) L.A.C. 103 and New tone Studios Ltd. v.
Ethirajula (T.R.), (1958) 1 L.L.J. 63, approved.
The New jehangir Vakil Mills Ltd., Bhavnagar
v. N. L. Vyas & Others, A.I.R. 1959 BOM. 248, disapproved.
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 124 of 1959.
Appeal by special leave from the Award dated
February 8, 1957, of the Additional Industrial Tribunal, Delhi, in Misc. I. D.
Case No. 422 of 1956.
Jawala Prasad Chopra and J. K. Haranandani,
for the appellants.
C. K. Daphtary, Solicitor-General of India,
H. J. Umrigar, M. K. Ramamurthi, V. A. Seyid Muhamad and M. R. Krishna Pillai,
for the respondent.
1960. March 22. The Judgment of the Court was
delivered by GAJENDRAGADKAR, J.-This appeal by special leave is directed
against the order passed by the Additional Industrial Tribunal, Delhi, directing
the appellant, M/s. New India Motors Private Ltd., to reinstate its former
employee, K. T. Morris, the respondent, in his original post as field service
representative and to pay him his back wages from the date of his dismissal
till the date of his reinstatement. This award has been made on a complaint
filed by the respondent against the appellant under s. 33A of the Industrial
Disputes Act XIV of 1947 (hereinafter called the Act). It appears that before
joining the appellant the respondent was working with a firm in Calcutta; prior
to that he was field service representative of M/s. Premier Automobiles Ltd.,
Bombay. The respondent joined the services of the appellant sometime in May
1954 as Works Manager. Before he joined the services of the appellant he had
been told by the appellant by its letter dated March 27, 1954, that the
appellant would be willing to pay him Rs. 350 per month and something more by
way of certain percentage on business. He was, however, asked to interview the
352 appellant; an interview followed and the respondent was given a letter of
appointment on May 6, 1954. By this letter he was appointed as Workshop Manager
in the appellant's firm on three months' probation subject to the terms and
conditions specified in the letter of appointment (Ex. W-2). The respondent
continued in this post till February 28, 1955, when he was given the assignment
of the appellant's field service organiser with effect from March 1, 1955. A
letter of appointment given to him on 28-21955 set forth the terms and
conditions of his new assignment.
It appears that on April 18, 1956, the
management of the appellant called for an explanation of the respondent in
respect of several complaints. An explanation was given by the respondent. It
was, however, followed by another communication from the appellant to the
respondent setting forth specific instances of the respondent's conduct for
which explanation was demanded. The respondent again explained and disputed the
correctness of the charges. On June 30, 1956, the respondent's services were
terminated on the ground that the appellant had decided to abolish the post of
field service representative. It is this order which gave rise to the respondent's
complaint under s. 33A of the Act. The complaint was filed on July 18, 1956.
The respondent invoked s. 33A because his case was that at the time when his
services were terminated an industrial dispute was pending between the
appellant and 7 of its employees and the respondent was one of the workmen
concerned in the said industrial dispute. The said industrial dispute had
reference to the termination of the services of the said 7 employees who were
working with the appellant as apprentices. On their behalf it was alleged that
their termination of service was improper and illegal and that was referred to
the industrial tribunal for its adjudication on August 20, 1955. The said
dispute was finally decided on January 2, 1957. With the merits of the said
dispute or the decision thereof we are not concerned in the present appeal.
According to the respondent, since he was a
workman concerned in the said dispute s. 33(1)(a) applied and it was not open
to the appellant to terminate his 353 services save with the express permission
in writing of the authority before which the said dispute was pending. It was
on this basis that he made his complaint under s. 33A of the Act.
Before the tribunal the appellant urged that
the respondent was not a workman as defined by the Act, and on the' merits it
was contended that the appellant had to abolish the post of the field service
organiser owing to the fact that a part of the agency work of the appellant had
been lost to it. On the other hand, the respondent contended that he was a
workman under the Act and the plea made by the appellant about the necessity to
abolish his post was not true and genuine. His grievance was that his services
were terminated solely because he had taken interest in the complaint of the 7
apprentices which had given rise to the main industrial dispute and had in fact
given evidence in the said dispute on behalf of the said apprentices. The
tribunal has found that the respondent is a workman under the Act, that there
was no evidence to justify the appellant's contention that it had become
necessary for it to abolish the respondent's post, and that it did appear that
the respondent had been discharged because the appellant disapproved of the
respondent's conduct in supporting the 7 apprentices in the main industrial
As a result of these findings the tribunal
has ordered the appellant to reinstate the respondent.
The question as to whether the respondent is
a workman as defined by s. 2(s) of the Act is a question of fact and the
finding recorded by the tribunal on the said question, after considering the
relevant evidence adduced by the parties, cannot be successfully challenged
before us in the present appeal. The respondent has given evidence as to the
nature of the work he was required to do as field service organiser. The letter
of appointment issued to him in that behalf expressly required, inter alia,
that the respondent had, if need be, to check up and carry out necessary
adjustments and repairs of the vehicles sold by the appellant to its customers
and to obtain signatures of responsible persons on the satisfaction 354 forms
which had been provided to him. The respondent swore that he looked after the
working of the workshop and assisted the mechanics and others in their jobs. He
attended to complicated work himself and made the workmen acquainted with
Miller's special tools and equipment needed for repairs and servicing of cars.
He denied the suggestion that he was a member of the supervisory staff. On this
evidence the tribunal has based its finding that the respondent was a workman
under s. 2(s), and we see no reason to interfere with it.
Then, as to the appellant's case that it had
to abolish the post of the respondent as it had lost the agency of DeSoto cars
from Premier Automobiles, there is no reliable evidence to show when this
agency was actually lost. Besides, the fact that the appellant has appointed a
Technical Supervisor after discharging the respondent is also not without
significance. Furthermore, the appellant is still the agent for Plymouth and
Jeeps and the tribunal is right when it has found that it still needed a field
representative to look after servicing of sold cars at outside stations. On the
other hand, the evidence of the respondent clearly shows that he supported the
case of the 7 apprentices and that provoked the appellant to take the step of
terminating his services. The process of finding fault with his work appears to
have commenced after the appellant disapproved of the respondent's conduct in
that behalf. We are, therefore, satisfied that the tribunal was right in coming
to the conclusion that the dismissal of the respondent is not supported on any
reasonable ground, and in fact is due to the appellant's indignation at the
conduct of the respondent in the main industrial dispute between the appellant
and its 7 employees. If that be the true position the industrial tribunal was
justified in treating the dismissal of the respondent as mala fide.
It has, however, been urged before us by the
appellant that the complaint made by the respondent under s. 33A is not
competent. It is common ground that a complaint can be made under s. 33A only
if s. 33 has been contravened, and so the appellant's argument is that B.
33(1)(a) is inapplicable because the respondent 355 was not a workman concerned
in the main industrial dispute, and as such his dismissal cannot be said to
contravene the provisions of the said section. Indeed the principal point urged
before us by the appellant is in regard to the construction of s. 33(1)(a) of
the Act. Was the respondent a workman concerned with the main industrial
dispute ? That is the point of law raised for our decision and its decision
depends upon the construction of the relevant words used in s. 33(1)(a).
Section 33(1)(a) as it stood prior to the
amendment of 1956 provided, inter alia, that during the pendency of any
proceedings before a tribunal, no employer shall alter to the prejudice of the
workmen concerned in the said dispute the conditions of service applicable to
them immediately before the commencement of the said proceedings, save with the
express permission in writing of the tribunal. Section 33 has been modified
from time to time and its scope has been finally limited by the amendment made
by Act 36 of 1956. With the said amendments we are, however, not concerned.
The, expression " the workmen concerned in such dispute " which
occurred in the earlier section has not been modified and the construction
which we would place upon the said expression under the unamended section would
govern the construction of the said expression even in the amended section.
What does the expression " workmen concerned in such dispute " mean ?
The appellant contends that the main dispute was in regard to the discharge of
7 apprentices employed by the appellant, and it is only the said 7 apprentices
who were concerned in the said dispute. The respondent was not concerned in the
said dispute, and so the termination of his services cannot attract the
provisions of s. 33(1)(a). Prima facie the argument that " workmen
concerned in such dispute " should be limited to the workmen directly or
actually concerned in such dispute appears plausible, but if we examine the
scheme of the Act and the effect of its material and relevant provisions this
limited construction of the clause in question cannot be accepted, 356 Let us
first consider the definition of the industrial dispute prescribed by s. 2(k).
It means, inter alia, any dispute or difference between employers 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 is well settled
that before any dispute between the employer and his employee or employees can
be said to be an industrial dispute under the Act it must be sponsored by a
number of workmen or by a union representing them. It is not necessary that the
number of workmen of the union that sponsors the dispute should represent the
majority of workmen. Even so, an individual dispute cannot become an industrial
dispute at the instance of the aggrieved individual himself It must be a
dispute between the employer on the one hand and his employees acting
collectively on the other. This essential nature of an industrial dispute must
be borne in mind in interpreting the material clause in s. 33(1)(a).
Section 18 of the Act is also relevant for
this purpose. It deals with persons on whom awards are binding. Section 18(3)
provides, inter alia, that an award of a tribunal which has become enforceable
shall be binding on (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, and (c) where a party referred to in cl. (a) or cl. (b) is composed of
workmen all persons who were employed in the establishment or part of the
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.
It is thus clear that the award passed in an
industrial dispute raised even by a minority union binds not only the parties
to the dispute but all employees in the establishment or part of the
establishment, as the case may be, at the date of the dispute and even those
who may join the establishment or part subsequently. Thus the circle of persons
bound by the award is very much wider than the parties to the industrial
dispute. This aspect of the 357 matter is also relevant in construing the
material words in s. 33(1)(a).
In this connection the object of s. 33 must
also be borne in mind. It is plain that by enacting s. 33 the Legislature
wanted to ensure a fair and satisfactory enquiry of the industrial dispute
undisturbed by any action on the part of the employer or the employee which
would create fresh cause for disharmony between them. During the pendency of an
industrial dispute status quo should be maintained and no further element of
discord should be introduced. That being the object of s. 33 the narrow
construction of the material words used in s. 33(1)(a) would tend to defeat the
said object. If it is held that the workmen concerned in the dispute are only
those who are directly or immediately concerned with the dispute it would leave
liberty to the employer to alter the terms and conditions of the remaining
workmen and that would inevitably introduce further complications which it is
intended to avoid. Similarly it would leave liberty to the other employees to
raise disputes and that again is not desirable. That is why the main object
underlying s. 33 is inconsistent with the narrow construction sought to be
placed by the appellant on the material words used in s. 33(1)(a).
Even as a matter of construction pure and simple
there is no justification for assuming that the workmen concerned in such
disputes must be workmen directly or immediately concerned in the said
disputes. We do' not see any justification for adding the further qualification
of direct or immediate concern which the narrow construction necessarily
assumes. In dealing with the question as to which workmen can be said to be
concerned in an industrial dispute we have to bear in mind the essential
condition for the raising of an industrial dispute itself, and if an industrial
dispute can be raised only by a group of workmen acting on their own or through
their union then it would be difficult to resist the conclusion that all those
who sponsored the dispute are concerned in it. As we have already pointed out
this construction is harmonious with the definition prescribed by s. 2(s) and
with the provisions contained in s. 18 of the Act. Therefore, 46 358 we are not
prepared to hold that the expression " workmen concerned in such dispute
" can be limited only to such of the workmen who are directly concerned
with the dispute in question. In our opinion, that expression includes all
workmen on whose behalf the dispute has been raised as well as those who would
be bound by the award which may be made in the said dispute.
It appears that the construction of the
relevant clause had given rise to a divergence of opinion in industrial courts,
but it may be stated that on the whole the consensus of opinion appears to be
in favour of the construction which we are putting on the said clause. In
Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing
Workers' Union (1) the appellate tribunal has referred to the said conflict of
views and has. held that the narrow construction of the clause is not justified.
The High Court of Madras appears to have taken the same view (Vide: Newtone
Studios Ltd. v. Ethirajulu (T.R.) (2) ). On the other hand, in The New Jehangir
Vakil Mills Ltd., Bhavnagar v. N.L. Vyas & Ors. (3), the Bombay High Court
has adopted the narrow construction ; but for reasons which we have already
explained we must hold that the Bombay view is not justified on a fair and
reasonable construction of the relevant clause.
In the result the appeal fails and is
dismissed with costs.