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PETITIONER: M/S.  NEW INDIA MOTORS (P) LTD.NEW DELHI

       Vs.

RESPONDENT: K. T. MORRIS

DATE OF JUDGMENT: 22/03/1960

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N.

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)

ACT: 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.

HEADNOTE: 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  dis- pute  " 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 Newtone 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.

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JUDGMENT: 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 28-2- 1955 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

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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 dispute. 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

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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  sup- ported  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  con- cerned.   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

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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

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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. Appeal dismissed,.