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PETITIONER: THE J. K. COTTON SPINNING & WEAVING MILLS CO., LTD.

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT: 12/12/1960

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

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 SC1256  (15)

ACT: 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.

HEADNOTE: 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’  Associa- tion 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

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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.

JUDGMENT: 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. No. 158/59). 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’

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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 27 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

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objection  and dismissed the appeal.  They however issued  a certificate under Art. 132(1)and  Art.  133(1)(c)  of   the Constitution.  Thereafterthe   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 Concilia-               tion Board or an appeal is pending before  the               Industrial  Court, no employer, his  agent  or               manager,  shall during the continuance  of  an

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             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  con- tinuance  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 Conciliation  Officer. 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  Adjudica- tor 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

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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 proposed dismissal. 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

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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  con- flict  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

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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. 598. (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. Appeals dismissed.