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PETITIONER: LAXMAN

       Vs.

RESPONDENT: STATE INDUSTRIAL COURT & ORS.

DATE OF JUDGMENT11/03/1974

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N.

CITATION:  1974 AIR  844            1974 SCR  (3) 541  1974 SCC  (4) 348

ACT: C.P.  and Berar Industrial Disputes Settlement Act  1947--s. 16-Whether  a dismissed, discharged or  retrenched  employee can invoke the jurisdiction of the authority under the State Act for obtaining redress.

HEADNOTE: Appellant, a motor driver in the Milk Scheme at Nagpur,  was dismissed  from  service by the order of  Dairy  Development Commissioner, Bombay.  The appellant was on probation for  6 months  after  his appointment and he continued  in  service more  than 2 years when his services were  terminated.   The appellant filed an application, under s. 16 of the C.P.  and Berar  Industrial Disputes Settlement Act, 1947, before  the Asstt.  Labour Commissioner, praying for reinstatement  with back wages and continuity of employment, The Asstt.   Labour Commissioner set aside the order of termination and directed respondents  3  to 5 to reinstate the  appellant  with  back wages. Respondents  3.  to  5 filed a  revision  before  the  State Industrial  Court u/s. 16(5) of the Berar Act.   That  Court set  aside  the  order and remanded the  case  for  a  fresh decision  as  to whether the appellant was  a  permit  agent employee  and  whether he was illegally  retrenched.   After remand the Deputy Commissioner of Labour concluded that  the appellant was not a permanent employee under the  provisions of  the  Standing  Orders.  He, however  held  that  as  the employee  was in continuous service, he bad been  retrenched illegally  and  in violation of s. 25F  ,of  the  Industrial Disputes Act, the Central Act. Against  this  order, respondents 3 to 5  filed  a  revision application  u/s.  16(5) of the State Act before  the  State Industrial  Court.   This Court set aside  the  retrenchment order   and  held  that  the  appellant  was   entitled   to retrenchment  compensation  and  so remained  the  case  for determination of what that compensation should be.   Against this  order respondents 3 to 5 filed a petition  before  the High Court.  The appellant also filed a petition under  Art. 226 of the Constitution for modification of the order of the State Industrial Court and for reinstatement with back wages etc.    Both  the repetitions were beard together and  by  a common   judgment, allowed the application of Respondents  3

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to 5 holding that the appellant was not an "employee  within the  meaning of S. 2(10) of the State Act as his  dismissal, discharge  or  removal was not on account of  an  Industrial dispute  and  accordingly,  the  appellant’s  petition   was dismissed. The question which fell for consideration was whether  under the State Act a dismissed, discharged or retrenched employee was  an "employee" within the meaning of s.2(10) of the  Act and could invoke the jurisdiction of the authority under the State Act for obtaining redress. Allowing the appeal, HELD  :  (i)  A combined reading of  the  definition  of  an "employee" in s. 2(10) with s.2 (12) & (13) would show  that those  who  had ceased to be in service were  also  included within the definition of an "employee". [546A-B] (ii)Under  s. 16(2), an employee working in an industry  to which a notification under Sub-s. (1) is applied can  within 6 months of his dismissal, discharge, removal or  suspension apply  to  the  labour commissioner  for  reinstatement  and payment  of  compensation for loss of  wages.   An  employee dismissed,   discharged  or  removed  on  account   of   any industrial  dispute is certainly an employee under  s.2(10), and  what  is  meant  by  an  "industrial  dispute"  can  be ascertained by reference to s.2(12), under which any dispute or  difference connected with an industrial  matter  arising between  employer  and  employee  or  between  employers  or employees is an industrial dispute. [546C-E] 542 Since  the  question  of  reinstatement  is  an   industrial dispute,  in  the present case, the appellant  would  be  an employee  within the meaning of s.2 (10) of the Act for  the purposes of availing himself of the right under sub-s.(2) of sec. 16 of the Act.[546-F] Central   Provinces  Transport  Services  Ltd.,  Nagpur   v. Raghunath Gopal Patwardhan, [1956] S.C.R. 956; Western India Automobile  Association  v.  Industrial  Tribunal,   Bombay, [1949]  F.C.R. 321 and Bennett Coleman & Co. (Private)  Ltd. v. Punya Priya Das Gupta, [1969] L.L.J. 554, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal 1188 & 1189 of 1969. Appeals  from  the judgment and order dated the  11th  March 1967  of the Bombay High Court (Nagpur Bench) at  Nagpur  in Special Civil Application Nos. 345 and 575 of 1966. S.   W. Dhabe and A. G. Ratnaparkhi, for the appellant S.   B.  Wad and S. P. Nayar, for the respondents 3 &  4  in (C. A.    11 88) and respondents 4 & 5 (in C. A. 11 89) The Judgment of the Court was delivered by JAGANMOHAN     REDDY,     J.      The     appellant      was appointed as a motor driver in the Milk Scheme at Nagpur  by the Regional Dairy development Officer on December 10,  1959 and on February 29,1962 his services were ’terminated by the orders  of  the  Dairy  Development  Commissioner,   Bombay- Respondent No. 5 After the appointment the appellant was  on probation  for a period of six months and since that  period was not extended it is his contention that he is a permanent employee  inasmuch  as the standing orders which  came  into force  on September 30, 1961 made an employee  on  probation permanent  after  completion  of  one  year’s   probationary period.   On  March  20,  1962,  the,  appellant  filed   an application   before  the  Assistant  Labour   Commissioner, Nagpur,  under  s.  16 of the C.  P.  and  Berar  Industrial

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Disputes  Settlement  Act, 1947-hereinafter referred  to  as ’the  Act’  praying for reinstatement with  back  wages  and continuity of employment. in that application the  appellant stated  that  if  the  order  of  termination  amounted   to dismissal  that  order was void as it was made  without  any inquiry  and  if  it was an order  of  retrenchment  it  was equally bad as no notice of change was given under S. 31  of the Act.  The termination was, also said to be illegal as it was  brought about by an authority which had  not  appointed him.   The  Assistant  Labour  Commissioner  who  heard  the petition  set  aside the order of termination  and  directed respondents  3  to 5 to reinstate the  appellant  with  back wages  and continuity of service in as much as it  was  held that the appellant having completed the probationary  period of one year became a permanent employee.  In this view,  the other contentions raised by the appellant were not decided.  543 Respondents  3  to  5  filed a  revision  before  the  State Industrial Court under s. 16(5) of the Act.  That Court  set aside  the order on August 12, 1953, and remanded  the  case for  a  fresh  decision as to whether the  appellant  was  a permanent employee and whether he was illegally  retrenched. After  remand  the Deputy Commissioner of Labour  at  Nagpur after  considering the evidence came to the conclusion  that the  appellant  was  not  a  permanent  employee  under  the provisions  of the Standing Orders.  He, however, held  that as  the  appellant was in continuous service,  he  had  been retrenched illegally without following the provisions of  s. 25-F of the Industrial Disputes Act-hereinafter called  ’the Central Act.’ In the result respondents 3 to 5 were directed to reinstate the appellant with back wages and continuity of service.   Against  this order respondents 3 to  5  filed  a revision  application under s. 15(5) of the Act  before  the State  Industrial  Court  at Nagpur. 1n  that  revision,  an application was made by the respondents for amendment of the revision petition raising a plea for the first time that the appellant  being a retrenched employee was not  an"employee" under the provisions of the Act.  The State Industrial Court did  not  accept  this  plea and  while  setting  aside  the reinstatement order held that the appellant was entitled  to retrenchment compensation and consequently remanded the case for  determination  of  what that  compensation  should  be. Against this order respondents 3 to 5 filed a petition under Arts.  226  and  227  of the  Constitution  of  India.   The appellant  also  filed  a petition under  Art.  226  of  the Constitution in the High Court for modification of the order of  the  State Industrial Court and for  reinstatement  with back  wages  and continuity of service along  with  all  its privileges.  Both these petitions were heard together by the Division  Bench  of the Bombay High Court at Nagpur.   By  a common  judgment, the High Court allowed the application  of respondents  3  to 5 holding that the appellant was  not  an "employee" within the meaning of s. 2(10) of the Act as  his dismissal,  discharge  or removal was not on account  of  an industrial dispute.  In this view, the appellant’s  petition was  dismissed.   These  two appeals  are  with  certificate against that judgment. The question which falls for consideration is whether  under the  Act a dismissed, discharged or retrenched employee  can invoke  the  jurisdiction of   the     authority       under the    Act     for    obtaining redress, namely, whether  an application  for  reinstatement and compensation by  a  dis- missed employee is maintainable under s. 16 of the Act.  The determination  of  this  question  would  depend  upon   the interpretation  of who the employee is for the  purposes  of

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the  Act and what is meant by "on account of any  industrial dispute"  in  s.  2(10) read with s. 2(12)  &  (13).   These provisions,  as also s. 16, insofar as material,  are  given below:               s.    2(10)-"employee"   means   any    person               employed  by an employer to do any skilled  or               unskilled manual or clerical work for contract               or hire or reward in any industry and includes               an  employee dismissed, discharged or  removed               on account of any industrial dispute               544               s.    2(12)-"industrial  dispute"  means   any               dispute   or  difference  connected  with   an               industrial matter arising between employer and               employee, or between employers or employees;"               s  2(13)-"industrial matter" means any  matter               relating  to work, pay, wages, reward,  hours,               privileges,  rights or duties of employers  or               employees,    or   the   mode,    terms    and               conditions.of  employment or refuse to  employ               and includes questions pertaining to-               (a)the  relationship between  employer  and               employees,   or  to  the  dismissal  or   non-               employment of any person,               x                     x                      x               X"               s.    16-"(1)  Where the State  Government  by               notification    so   directs,    the    labour               Commissioner  shall  have power to  decide  an               industrial  dispute  touching  the  dismissal,               discharge,   removal  or  suspension   of   an               employee working in any industry in general or               in  any local area as may be specified in  the               notification.               (2)Any employee, working in an industry  to               which  the notification under sub-section  (1)               applied,  may within six months from the  date               of  such  dismissal,  discharge,  removal   or               suspension,apply  to the  Labour  Commissioner               for reinstatement and payment of  compensation               for loss of wages.               x                     x                      x               XI’               Both s. 2(10) and 16 were amended by Act 21 of               1966.  The former before its amendment was  as               follows:               s.    2(10)-"employee"   means   any    person               employed  by an employer to do any skilled  or               unskilled manual or clerical work for contract               or hire or reward in any industry and includes               an  employee  discharged  on  account  of  any               dispute  relating  to a change in  respect  of               which a notice is given under section 31 or 32                             whether before or after the discharge; " It  may  be  observed that s.  2(10)  before  its  amendment included  an employee discharged on account of  any  dispute relating to a change in respect of which a notice was  given under  s. 31 or 32 of the Act.  It will be seen that  s.  31 dealt  with  the  procedure to be followed  by  an  employer desiring change in the standing orders or in respect of  any industrial matter mentioned in Sch. II s. 32 dealt with  the procedure  to be followed by a representative  of  employees desiring change in the standing orders or in respect of  any other  industrial  matter.  One of  the  industrial  matters

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referred  to  in  item 3 of Sch.  II is  "Dismissal  of  any employee’  except in accordance with law or as provided  for in  the  standing orders settled under section’ 30  of  this Act".  This definition of ’employee" in s. 2(10) appears  to have been enlarged by the amendment by including an employee dismissed,   discharged  or  removed  on  account   of   any industrial dispute and not necessarily confined only to  any dispute relating to a change in respect of which notice  545 is  given  under  s. 31 or 32 of the Act.   The  High  Court appears.  to  have read the definition of "employee"  in  s. 2(10)  as  contemplating  two  categories  of  persons   (1) consisting of persons who are actually in the employment  of the  employer  at the date of the application;  and  (2)  of those  who have ceased to be in the employment prior to  the date  of  the application, the reason for ceasing to  be  an employee  being "dismissal, discharge or removal on  account of  any industrial dispute". in its view, the words  of  the definition  did  not  include  all  ex-employees  but   only specified  categories  which have to be  correlated  to  any industrial  dispute, and as there was no industrial  dispute between Laxman and the employer prior to the termination  of his service, Laxman cannot be considered to be an "employee" within  the meaning of S. 2(10) of the Act.  A  decision  of this  Court  in Central Provinces ,Transport  Services  Ltd. Nagpur v. Raghunath Gopal Patwardhan(1) was referred to, but the  High Court sought to distinguish it on the ground  that in  that  case  the employee had  been  dismissed  after  an inquiry  which  involved  an industrial  dispute.   It  then proceeded to state:               "As   we   have  already  pointed   out,   the               definition  has  since been- amended  and  the               reference to, ss. 31 and 32 has been  dropped.               As  it  now  stands, the  requirement  of  the               definition is that if the applicant is not  in               service  at  the date of application  he  must               have been dismissed, discharged or removed "on               account  of any industrial dispute".   We  do-               not  think that the ratio of the  decision  of               the Supreme Court in that case that every dis-               missed  employee, irrespective of  the  reason               for   his  dismissal,  continues  to   be   an               "employee"  within  the meaning of  the  defi-               nition in S. 2(10) of the Act so as to entitle               him to approach the Labour Commissioner  under               s. 16(2) of the Act." In the view of the High Court, therefore, a plain reading of the definition of the term "employee" in s. 2(10) shows that the  only  category  of persons who, though  not  in  actual employment  at the date of the application  included  within that  term  is of,, persons who are  ex-employees  and  were dismissed,   discharged  or  removed  on  account   of   any industrial   dispute,   which  dispute  must   precede   the dismissal,  discharge or removal, and that their  dismissal, discharge or removal must be the result of such dispute. It is contended that an "employee" having been defined as  a person   employed,   the  Legislature  intended   that   the provisions  of the Act should be availed of only by  persons who  were  still  in  the employment at  the  time  when  an application  was  filed  under  the Act,  and  even  if  the employee  who  invokes  the provisions of  the  Act  can  be considered  to be a person who is dismissed,  discharged  or retrenched,  it  is  not every such employee  who  has  that right, but only those employees have the right to invoke the provisions of the Act who have been dismissed, discharged or

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retrenched and in respect of whom an industrial (1)  [1956] S.C.R. 956. 546 dispute. is pending.  In our view both these contentions are untenable.   A  combined  reading of the  definition  of  an "employee"  in s. 2(10) with s. 2(12) & (13) would  negative the  submission that those who had ceased to be  in  service were not intended to be included within the definition of an "employee".  When the Legislature in defining a word or term refers to certain matters as being included therein it  does so  because  either that word or term does  not  generically include what is sought to be included or that it is  anxious to dispel any doubt as to what is included therein is not so included  and by abundanti cautala it is specifically  shown as  having  been  included  in  order  to  repel  any   such contention  to   the contra.  Under s. 16  (2)  an  employee working in an industry to which a notification under  sub-s. (1)  is  applied  can within six months  of  his  dismissal, discharge,  removal  or  suspension  apply  to  the   Labour Commissioner  for reinstatement and payment of  compensation for  loss of wages.  A person who applies within six  months from  the date of his dismissal, discharge, removal or  sus- pension  is certainly not employed on that date and  yet  if the  argument  of the respondent is accepted he  is  not  an employee  within  the meaning of s. 2(10) and hence  has  no right  to  apply  under  sub-s. (2)  of.s.  16  An  employee dismissed,   discharged  or  removed  on  account   of   any industrial dispute is certainly an employed under s.2  (10)- but  what  is  meant  by an  "industrial  dispute"  in  this definition can be ascertained by reference to s. 2(12) under which any dispute or difference connected with an industrial matter  arising  between employer and  employee  or  between employers or employee is an Industrial dispute.  No doubt it was  contended in the Central Provinces  Transport  Services Ltd’s  case(1) that where a person is dismissed,  discharged or retrenched, the relationship of an employer and  employee is terminated and there is no longer an industrial  dispute. This  very  contention was negatived in that  case  for  the obvious reason that the dispute or difference referred to in s.  2(12)  should  be connected with  an  industrial  matter arising   between  an  employer  and  an   employee,   which industrial  matter as defined in s. 2(13) covers any  matter relating  or  refusal  to  employ  and  includes   questions pertaining  to  the  dismissal  or  non-employment  of   any person.’ If so considered, since a question of reinstatement is an industrial dispute, the appellant would be an employee within  the meaning of s. 2(10) of the Act for the  purposes of availing himself of the right under sub-s. (2) of s.  16. Even  under a restricted definition of the  word  "employee" under  s.  2(10)  before the amendment, this  Court  in  the Central Provinces Transport Services Ltd’s case (Supra)  had held that a workman whose services had been terminated could have  resort  to sub-s. (2) of s. 16 of the Act.   The  High Court  thought that the decision is inapplicable as in  that case an enquiry had been held before the employee’s services were terminated which amounted to an industrial dispute, but in  the instant case no such industrial dispute arose as  it was a retrenchment simpliciter.  We are unable to appreciate this distinction as in our view it is a distinction  without a difference.  The ratio in the Central Provinces  Transport Services   Ltd’s   case  (Supra)   is   clearly   applicable notwithstanding  the amendment of s. 2(10) and s. 16 of  the Act.  After pointing out that s. 2(k)  547 of the Central Act and ss. 2 (12) and 2 (13) of the Act  are

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substantially  in pari material the ratio of  Western  India Automobile  Association  v. Industrial  Tribunal,  Bombay(1) will  be as much applicable, to the one enactment as to  the other,  this  Court  pointed out in  the  Central  Provinces Transport Services Ltd’s case (Supra) at pp 961-962:               "We   are  also  unable  to  accede   to   the               contention of the appellant that the inclusive               clause in s. 2(10) of the Act is an indication               that the legislature did not intend to include               within that definition those who had ceased to               be  in service.  In our opinion,  that  clause               was inserted ex abundanti cautela to repel  a.               possible contention that employees  discharged               under ss. 31 and 32 of the Act would not  fall               within  s.  2(10),  and cant-tot  be  read  as               importing  and intention generally to  exclude               dismissed employees from that definition.   On               the  other  hand, s. 16 of the  Act  expressly               provides for relief being granted to dismissed               employees   by   way  of   reinstatement   and               compensation,  and that provision must  become               useless  and inoperative, if we are  to  adopt               the construction which the appellant seeks  to               put on the definition of employee in s. 2(10).               We  must  accordingly held agreeing  with  the               decision  in  Western India  Automobile  Asso-               ciation  v Industrial Tribunal Bombay  (supra)               that  the definition of "employee" in the  Act               would  include one who has been dismissed  and               the respondent cannot be denied relief only by               reason  of  the  fact  that  he  was  not   in               employment on the date of the application." This case was referred Lo and considered in Bennett  Coleman & Co(Private) Ltd v. Punya Priya Das Gupta,(2) The case  was under  the  Working Journalists (Conditions of  Service  and Miscellaneous  Provisions)  Act,  1955,  where  a  newspaper employee  was defined in a language similar to that used  in defining  an "employee" under the Act and the  Central  Act. This Court took note of the amendment to the Act and even so held that both the decision in the Western India  Automobile Association’s   case  (supra)  and  the  Central   Provinces Transport, Services Ltd’s case (supra) were authorities  for the view that an ex-employee would, for the purposes of  the controversy  before  them,  be a  working  journalist.   The contention that Dhrangadhra Chemical Works Ltd v. State  of’ Saurashtra and others(3) and Workmen of Dimakuchi Tea Estate v.  Dimakuchi  Tea  Estate  (4) took  a  contrary  view  was examined and distinguished. it was, however, observed (1)  [1949] F.C.R. 321. (3)  [1957] 1 L.L.J. 477. (2)  [1969] 2 L.L.J. 554. (4)  [1968] 1 L.L.J. 500. 548 that  even  assuming  that  there  is  such  a  conflict  as contended,  it  was  ,not necessary to resolve  it  for  the purposes  of the problem before ,the Court, because the  Act which  was being considered there and the Central  Act,  the Minimum  Wages  Act, 1948, the Central  Provinces  Act  with which we are concerned disclose a similar scheme under which an  ex-employee  is permitted to avail of  the  benefits  of those provisions, the only requirement being that the  claim in  dispute must be one which has arisen or  accrued  whilst the claimant was in employment of the person against whom it is made. In view of what has been stated, we think the High Court was

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in  terror in holding that the application of the  appellant could  not  be entertained by the Labour  Commissioner.   As this was the only ,question decided, we allow these appeals, set  aside  the judgment and decree of the  High  Court  and remand the case to the High Court for disposal according  to law.  The appellant will have his costs in this ’Court,  one set. S.C.                                                 Appeals allowed. 549