http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 35

Vs.

RESPONDENT:
THE MANAGEMENT OF DIMAKUCHITEA ESTATE

DATE OF JUDGMENT:
04/02/1958

BENCH:
DAS, SUDHI RANJAN (CJ)
BENCH:
DAS, SUDHI RANJAN (CJ)
DAS, S.K.
SARKAR, A.K.

CITATION:
1958 AIR 353 1958 SCR 1156

ACT:
Industrial Dispute-Definition, lnterpretation of-Test-
Any person, Meaning of-Industrial Disputes Act, 1947 (Act
XIV of 1947),S. 2(k).

HEADNOTE:
The question for decision in this appeal was whether a
dispute raised by the workmen relating to a person who was
not a workman could be an industrial dispute as defined by
S. 2(k) of the Industrial Disputes Act, 1947, as it stood
before the amendments Of 1956. The appellants, who were the
workmen of Dimakuchi Tea Estate, espoused the cause of one
Dr. K. P. Banerjee, Assistant Medical Officer, who had been
dismissed unheard with a months salary in lieu of notice
but who had accepted such payment and left the garden and
the dispute raised was ultimately referred by the Government
for adjudication under s. 10 of the Act. Both the Tribunal
and the Appellate Industrial Tribunal took the view that as
Dr. Banerjee was not an workman within the meaning of the
Act, the, dispute was not an industrial dispute as defined
by S. 2(k):
Held, (per Das, C. J., and S. K. Das, J., Sarkar, J.,
dissenting), that the expression any person occurring in
S. 2(k) of the Industrial Disputes Act, 1947, cannot be
given its ordinary meaning and must be read and understood
in the context of the Act and the object the Legislature had
in view. Nor can it be equated either with the word
workman or employee.
The two tests of an industrial dispute as defined by the
section must, therefore, be,-(1) the dispute must be a real
dispute, capable of being settled by relief given by one
party to the other, and (2) the person in respect of whom
the dispute is raised must be one in whose employment, non-
employment, terms of employment, or conditions of labour (as
the case may be), the parties to the dispute have a direct
or substantial interest, and this must depend on the facts
and circumstances of each particular case.
Applying these tests, the dispute in the present case
which was in respect of a person who was not a workman and
belonged to a different category altogether, could not be
said to be a dispute within the meaning of S. 2(k) of the
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Act and the appeal must fail.
Narendra Kumar Sen v. All India Industrial Disputes
(Labour Appellate) Tribunal, (1953) 55 Bom. L.R. 125,
approved.
Western India Automobile Association v. The Industrial
Tribunal, Bombay, [1949] F.C.R 321, distinguished
1157
Case-law discussed.
Per Sarkar, J.-There is no reason why the words any
person in s. 2(k) of the Act should not be given their
natural meaning so as to include an employee who is not a
workman within the meaning of the Act. Consequently, a
dispute concerning a person who is not a workman may be an
industrial dispute within that section.
The primary object which the Act has in view is the
preservation of the industrial peace.
The Act does not make the interest of the workmen in the
dispute a condition of the existence of an industrial
dispute. Such interest is incapable of definition and to
make it a condition of an industrial dispute would defeat
the object of the Act.
Western India Automobile Association v. The Industrial
Tribunal of Bombay, [1949] F.C.R. 321; Narendra Kumar Sen v.
The All India Industrial Disputes (Labour Appellate)
Tribunal, (1953) 55 Bom. L.R. I25 and United Commercial
Bank Ltd. v. Kedar Nath Gupta, (1952) 1 L.L.J. 782, referred
to.
Even assuming that the workmen must be interested in
order that there can be an industrial dispute, the present
case satisfies that test and falls within the purview of s.
2(k) of the Act.

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 297 of
1956.
Appeal by special leave from the judgment and order
dated August 30, 1955, of the Labour Appellate Tribunal of
India, Calcutta in Appeal No. Cal. 220 of 1954.
C. B. Aggarwala and K. P. Gupta, for the appellants.
Purshottam Tricumdas for N. C. Chatterjee, P. K.
Goswami, S. N. Mukheree and B. N. Ghosh, for the respondent.
1958. February 4. The Judgment of Das, C. J., and S. K.
Das J., was delivered by S. K. Das, J. Sarkar, J., delivered
a separate Judgment.
S. K. DAS J.-This appeal by special leave raises a
question of some nicety and of considerable importance in
the matter of industrial relations in this country. The
question is the true scope and effect of the definition
clause in s. 2 (k) of the Industrial Disputes Act, 1947
(hereinafter referred to as the Act). The question has
arisen in the following circumstances.
1158
The appellants before us are the workmen of the Dimakuchi
tea estate represented by the Assam Chah Karmachari Sangha,
Dibrugarh. The respondent is the management of the
Dimakuchi tea estate, district Darrang in Assam. One Dr. K.
P. Banerjee was appointed assistant medical officer of the
Dimakuchi tea estate with effect from November 1, 1950. He
was appointed subject to a satisfactory medical report and
on probation for three months. It was stated in his letter
of appointment: " While you are on probation or trial, your
suitability for permanent employment will be considered. If
during the period of probation you are considered unsuitable
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for employment, you -",ill receive seven days notice in
writing terminating your appointment. If you are guilty of
misconduct, you are liable to instant dismissal. At the end
of the period of probation, if you are considered suitable,
you will be confirmed in the gardens service." In February
1951 Dr. Banerjee was given an increment of Rs. 5 per
mensem, but on April 21, Dr. Banerjee received a letter from
one Mr. Booth, manager of the tea estate, in which it was
stated : " It has been found necessary to terminate your
services with effect from the 22nd instant. You will of
course receive one months salary in lieu of notice." As no
reasons were given in the notice of termination, Dr.
Banerjee wrote to the manager to find out why his services
were being terminated. To this Dr. Banerjee received a
reply to this effect The reasons for your discharge are on
the medical side, which are outside my jurisdiction, best
known to Dr. Cox but a main reason is because of the
deceitful manner in which you added figures to the
requirements of the last medical indent after it had been
signed by Dr, Cox, evidence of which is in my hands."
The cause of Dr. Banerjee was then espoused by the
Mangaldai Circle of the Assam Chah Karmachari Sangha and the
secretary of that Sangha wrote to the manager of the
Dimakuchi tea estate, enquiring about the reasons for Dr.
Banerjees discharge. The manager wrote back to say that
Dr.- K. P. Banerjee was discharged on the ground
1159
of incompetence in his medical duties and the chief medical
officer (Dr. Cox) had found that Dr. Banerjee was
incompetent and did not have sufficient " knowledge of
simple everyday microscopical and laboratory work which
befalls the lot of every assistant medical officer in tea
garden practice." It was further stated that Dr. Banerjee
gave a faulty, inexpert and clumsy quinine injection to one
Mr. Peacock, and assistant in the Dimakuchi tea estate,
which produced an extremely acute and severe illness very
nearly causing a paralysis of the patients leg. The
reasons given by the manager for the termination of the
services of Dr. K. P. Banerjee did not satisfy the
appellants herein and certain conciliation proceedings,
details whereof are not necessary for our purpose, were
-unsuccessfully held over the question of the termination of
the service of Dr. Banerjee. The matter was then referred
to a Board known as the tripartite Appellate Board
consisting of the Labour Commissioner, Assam, and two
representatives of the Assam branch of the Indian Tea
Association and the Assam Chah Karmachari Sangha
respectively. This Board recommended that Dr. Banerjee
should be reinstated with effect from the date of his
discharge. After the recommendation of the Board, the
respondent herein appears to have offered a sum equal to 28
months salary and allowances in lieu of re-instatement; to
this, however, the appellants did not agree. In the
meantime, Dr. K. P. Banerjee received a sum of Rs. 306-1-0
on May 22, 1951 and left the tea garden in question. Then,
on December 23, 1953, the Government of Assam published a
notification in which it was stated that whereas an
industrial dispute had arisen between the appellants and the
respondent herein and whereas it was expedient that the
dispute should be referred for adjudication to a Tribunal
constituted under s. 7 of the Act, the Governor of Assam was
pleased to refer the dispute to Shri U. K. Gohain,
Additional District and Sessions Judge, under cl. (c) of
sub-s. (1) of s. 10 of the Act. The dispute which was thus
referred to the Tribunal was described in these terms:
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1160
" (i) Whether the management of Dimakuchi Tea Estate was
justified in dismissing Dr. K. P. Banerjee, A. M. O.?
(ii) If not, is he entitled to reinstatement or
any other relief in lieu thereof ?"
Both parties filed written statements before Mr. ohain
and the respondent took the plea that Dr. K. P. Banerjee was
not a "workman" within the meaning of the Act; therefore,
there was no industrial dispute in the sense in which that
expression was defined in the Act and the Tribunal had no
jurisdiction to make an adjudication on merits. Mr. Gohain
took up as a preliminary point the question if Dr. Banerjee
was a " workman " within the meaning of the Act and came to
a conclusion which may be best expressed in his own words:
"Dr. Banerjee being not a workman, his case is not
one of an " industrial dispute " under the Industrial
Disputes Act and his case is therefore beyond the
jurisdiction of this Tribunal and the Tribunal has therefore
no jurisdiction to give any relief to him."
There was then an appeal to the Labour Appellate Tribunal
of India, Calcutta. That Tribunal affirmed the finding of
Mr. Gohain to the effect that Dr. Banerjee was not a workman
within the meaning of the Act. The Appellate Tribunal then
said:
" A dispute between the employers and employees to be an
industrial dispute within the meaning of section 2 (k) of
the Industrial Disputes Act, must be between the employers
and the workmen. There cannot be any industrial dispute
between the employers and the employees who are not
workmen."
The appeal was accordingly dismissed by the Labour
Appellate Tribunal. The appellants herein then moved this
Court for special leave and by an order dated March 14,
1956, special leave was granted, but was " limited to the
question whether a dispute in relation to a person who is
not a workman falls within the scope of the definition of
industrial dispute contained in s. 2 (k) of the Industrial
Disputes Act, 1947."
It is clear from what has been stated above that the
1161
question whether Dr. K. P. Banerjee is or is not a workman
within the meaning of the Act is no longer open to the
parties and we must proceed on the footing that Dr. K. P.
Banerjee was not a workman within the meaning of the Act and
then decide the question if the dispute in relation to the
termination of his service still fell within the scope of
the definition of the expression " industrial dispute " in
the Act.
We proceed now to read the definition clause the
interpretation of which is the only question before us.
That definition clause is in these terms:
" S. 2 (k) : " Industrial dispute" means any dispute or
difference between employers and employers, or between
employers and workmen, or between workmen 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 must be stated here that the expression " workman is
also defined in the Act, and the definition which is
relevant for our purpose is the one previous to the
amendments of 1956; therefore, in reading the various
sections of the Act, we shall read them as they stood prior
to the amendments of 1956 and refer to the amendments only
when they have a bearing on the question before us. The
definition of workman as it stood at the relevant time
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stated :
" S. 2 (s): " Workman " means any person employed
(including an apprentice) in any industry to do any skilled
or unskilled manual or clerical work for hire or reward and
includes, for the purposes of any proceedings under this Act
in relation to an industrial dispute, a workman discharged
during that dispute, but does not include any person
employed in the naval, military or air service of the
Government. "
Now, the question is whether a dispute in relation to a
person who is not a workman within the meaning of the Act
still falls within the scope of the definition clause in s.
2 (k). If we analyse the definition clause it falls easily
and naturally into three parts: first, there must be a
dispute or difference; second, the dispute or difference
must be between employers and employers, or between
employers and workmen or
1162
between workmen and workmen; third, the dispute or
difference must be connected with the employment or non-
employment or the terms of employment or with the conditions
of labour, of any person. The first part obviously refers
to the factum of a real or substantial dispute; the second
part to the parties to the dispute; and the third to the
subject matter of that dispute. That subject matter may
relate to any of two matters-(i) employment or non-
employment, and (ii) terms of employment or conditions of
labour, of any person. On behalf of the appellants it is
contended that the conditions referred to in the first and
second parts of the definition clause are clearly fulfilled
in the present case, because there is a dispute or
difference over the termination of service of Dr. K. P.
Banerjee and the dispute or difference is between the
employer, namely, the management of the Dimakuchi tea estate
on one side, and its workmen on the other, even taking the
expression " workmen " in the restricted sense in which that
expression is defined in the Act. The real difficulty
arises when we come to the third part of the definition
clause. Learned counsel for the appellants has submitted
that the expression " of any person " occurring in the third
part of the definition clause is an expression of very wide
import and there are no reasons why the words "any person"
should be equated with " any workman ", as the Tribunals
below have done. The argument is that inasmuch as the
dispute or difference between the employer and the workmen
is connected with the non-employment of a person called Dr.
K. P. Banerjee (even though he was not a workman), the
dispute is an industrial dispute within the meaning of the
definition clause. At first sight, it does appear that
there is considerable force in the argument advanced on
behalf of the appellants. It is rightly pointed out that
the definition clause does not contain any words of
qualification or restriction in respect of the expression "
any person " occurring in the third part, and if any limita-
tions as to its scope are to be imposed, they must be such
as can be reasonably inferred from the definition clause
itself or other provisions of the Act.
1163
A little careful consideration will show, however, that
the expression " any person " occuring in the third part of
the definition clause cannot mean anybody and everybody in
this wide world. First of all, the subject matter of
dispute must relate to (i) employment or non-employment or
(ii) terms of employment or conditions of labour of any
person; these necessarily import a limitation in the sense
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that a person in respect of whom the employer-employee
relation never existed or can never possibly exist cannot be
the subject matter of a dispute between employers and
workmen. Secondly, the definition clause must be read in
the context of the subject matter and scheme of the Act, and
consistently with the objects and other provisions of the
Act. It is well settled that " the words of a statute, when
there is a doubt about their meaning are to be understood in
the sense in which they best harmonise with the subject of
the enactment and the object which the Legislature has in
view. Their meaning is found not so much in a strictly
grammatical or etymological propriety of language, nor even
in its popular use, as in the subject or in the occasion on
which they are used, and the object to be attained."
(Maxwell, Interpretation of Statutes, 9th Edition, p. 55).
It is necessary, therefore, to take the Act as a whole
and examine its salient provisions. The long title shows
that the object of the Act is " to make provision for the
investigation and settlement of industrial disputes, and for
certain other purposes. " The preamble states the same
object and s. 2 of the Act which contains definitions states
that unless there is anything repugnant in the subject or
context, certain expressions will have certain meanings.
Chapter 11 refers to the authorities set up under the Act,
such as, Works Committees, Conciliation officers, Boards of
Conciliation, Courts of Enquiry, and Industrial Tribunals.
The primary duty of a Works Committee is to promote measures
for securing and preserving amity and good relations between
the employer and his workmen and, to that end, to comment
upon matters of their common
148
1164
interest or concern and endeavour to compose any material
difference of opinion in respect of such matters.
Conciliation Officers are charged with the duty of mediating
in and promoting the settlement of industrial disputes. A
Board of Conciliation may also be constituted for the same
purpose, namely, for promoting the settlement of an
industrial dispute. A Court of Enquiry may be appointed for
enquiring into any matter which appears to be connected with
or relevant to an industrial dispute. Section 7 of the Act
empowers the appropiate Government to constitute one or more
Tribunals for the adjudication of industrial disputes in
accordance with the provisions of the Act. Chapter III
contains provisions relating to the reference of industrial
disputes to Boards of Conciliation, Courts of Enquiry or
Industrial Tribunals, and the reference in the present case
was made under s. 10 of that Chapter. Under s. 10(c) of the
Act where an appropriate Government is of opinion that any
industrial disputes exist or are apprehended, it may, at any
time, by order in writing, refer the dispute or any matter
appearing to be connected with or relevant to the dispute to
a Tribunal for adjudication. Chapter IV of the Act deals
with procedure, powers and duties of the authorities set up
under the Act. Where an industrial dispute has been
referred to a Tribunal for adjudication, s. 15 requires that
the Tribunal shall hold its proceedings expeditiously and
shall as soon as practicable on the conclusion thereof
submit its award to the appropriate Government. Section 17
lays down inter alia that the award of a Tribunal shall
within a period of one month from the date of its receipt by
the appropriate Government be published in such manner as it
thinks fit. Section 17-A lays down that the award of a
Tribunal shall become enforceable on the expiry of thirty
days from the date of its publication under s. 17; it also
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contains certain other provisions which empower the
appropriate Government to modify or reject the award.
Section 18 is important for our purpose, and in so far as it
relates to awards it states that an award which has become
enforceable ,shall be binding on-
1165
(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;
(c) where a party referred to under clause (a) or
clause (b) is an employer, his heirs, successors or assigns
in respect of the establishment to which the dispute
relates; and
(d) where a party referred to in clause (a) or clause
(b) is composed of workmen, all persons who are employed in
the establishment or part of 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.
Section 19 lays down the period of operation of settlements
and awards and states inter alia that an award shall,
subject to the provisions of the section, remain in
operation for a period of one year. Chapter V of the Act
deals with strikes and lock-outs, Chapter V-A with lay-off
and retrenchment, Chapter VI with penalties and Chapter VII
with miscellaneous matters. It is important to note that
though in the definition of "lock-out", s. 2 (1) of the Act,
and "strike", s. 2 (q) of the Act, the expression any
person has been used, in ss. 22 (2) and 23 of the Act which
deal with "lock-out" and "strike", only the word workmen
has been used. Section 33 provides that during the pendency
of any conciliation proceedings or any proceedings before a
tribunal of any industrial dispute, no employer shall (a)
alter to the prejudice of the workmen concerned, the
conditions of their service etc. or (b) discharge or punish
by dismissal or otherwise any workman concerned in the
dispute. Section 33 A, however, uses the word employee,
but read with s. 33, the word employee must mean there a
workman. Section 36 which deals with representation of
parties has some bearing on the question before us. It
layns down that a workman who is a party to a dispute shall
be entitled to be represented in any proceeding under the
Act by-
1166
(a) an officer of a registered trade union of which he
is a member;
(b) an officer of a federation of trade unions to
which the trade union referred to in clause (a) is
affiliated; and
(c) where the worker is not a member of any trade union,
by an officer of any trade union connected with, or by any
other workman employed in the industry in which the worker
is employed and authorised in such manner as may be
prescribed.
An employer who is a party to a dispute shall be entitled to
be represented in any proceedings under the Act by-
(a) an officer of an association of employers of which
he is a member;
(b) an officer of a federation of associations of
employers to which the association referred to in clause (a)
is affiliated; and
(c) where the employer is not a member of any
association of employers, by an officer of any association
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of employers connected with, or by any other employer
engaged in, the industry in which the employer is engaged
and authorised in such manner as may be prescribed.
Sub-section (3) of s. 36 states that no party to a dispute
shall be entitled to be represented by a legal practitioner
in any conciliation proceedings under the Act or in any
proceedings before a court. Sub-section (4) states that in
any proceeding before a Tribunal a party to a dispute may be
represented by a legal practitioner with the consent of the
other parties to the proceeding and with the leave of the
Tribunal. The point to note is that there is no particular
provision for the representation of a party other than a
workman or an employer, presumably because under the second
part of the definition clause the parties to an industrial
dispute can only be employers and employers, employers and
workmen, or workmen and workmen.
Thus, an examination of the salient provisions of the
Act shows that the principal objects of the Act are-
1167
(1) the promotion of measures for securing and
preserving amity and good relations between the employer and
workmen;
(2) an investigation and settlement of industrial
disputes, between employers and employers, employers and
workmen, or workmen and workmen, with a right of
representation by a registered trade union or federation of
trade unions or association of employers or a federation of
associations of employers;
(3) prevention of illegal strikes and lock-outs;
(4) relief to workmen in the matter of lay-off and
retrenchment; and
(5) collective bargaining.
The Act is primarily meant for regulating the relations of
employers and workmen-past, present and future. It draws a
distinction between workmen as such and the managerial or
supervisory staff, and confers benefit on the former only.
It is in the context of all these provisions of the Act
that the definition clause in s. 2(k) has to be interpreted.
It seems fairly obvious to us that if the expression "any
person" is given its ordinary meaning, then the definition
clause will be so wide as to become inconsistent not merely
with the objects and other provisions of the Act, but also
with the other parts of that very clause. Let us see how
the definition clause works if the expression " any person "
occurring therein is given its ordinary meaning. The
workmen may then raise a dispute about a person with whom
they have no possible community of interest; they may -raise
a dispute about the employment of a person in another
industry or a different establishments dispute in which
their own employer is not in a position to give any relief,
in the matter of employment or non-employment or the terms
of employment or conditions of labour of such a person. In
order to make our meaning clear we may take a more obvious
example. Let us assume that for some reason or other the
workmen of a particular industry raise a dispute with their
employer about the employment or terms of employment of the
District Magistrate or District
1168
Judge of the district in which the industry is situate. It
seems clear to us that though the District Magistrate or
District Judge undoubtedly comes within the expression " any
person " occurring in the definition clause, a dispute about
his employment or terms of employment is not an industrial
dispute; firstly, because such a dispute does not come
within the scope of the Act, having regard to the definition
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of the words " employer" industry ", and " workman and also
to other provisions of the Act; secondly, there is no
possible community of interest between the District
Magistrate or District Judge on the one hand and the
disputants, employer and workmen, on the other. The absurd
results that will follow such an interpretation have been
forcefully expressed by Chagla C. J., in his decision in
Narendra Kumar Sen v. All India Industrial Disputes (Labour
Appellate) Tribunal (1):
" If "any person " were to be read as an expression
without any limitation and qualification whatsoever, then we
must not put even any territorial restriction on that
expression. In other words, it would be open to the workmen
not only to raise a dispute with regard to the terms of
employment of persons employed in the same industry as
themselves, not only to raise a dispute with regard to the
terms of employment in corresponding or similar industries,
not only a dispute with regard to the terms of employment of
people employed in our country, but the terms of employment
of any workman or any labourer anywhere in the world The
proposition has only to be stated in order to make one
realise how entirely untenable it is.
Take, for example, another case where the workmen raise
an objection to the salary or remuneration paid to a Manager
or Chief Medical Officer by the employer but without
claiming any benefit for themselves, and let us assume that
a dispute or difference arises between the workmen on one
side and the employer on the other over such an objection.
If such a dispute comes within the definition clause and is
referred to an industrial tribunal for adjudication, the
parties to the
(1) (1953) 55 Bom. L.R. 125,129, 130.
1169
dispute will be the employer on one side and his workmen on
the other. The Manager or the Chief Medical Officer cannot
obviously be a party to the dispute, because he is riot a
workmanwithin the meaning of the Act and there is no
dispute between him and his employer. That being the
position, the award, if any, 7 given by the Tribunal will be
binding, under cl. (a) of s. 18, on the parties to the
dispute and not on the Manager or the Chief Medical Officer.
It is extremely doubtful if in the circumstances stated the
Tribunal can summon the Manager or the Chief Medical Officer
as a party to the dispute, because there is no dispute
between the Manager or Chief Medical Officer on one side and
his employer oil the other. Furthermore, s. 36 of the Act
does not provide for representation of a person who is not a
party to the dispute. If, therefore, an award is made by
the Tribunal in the case which we have taken by way of
illustration, that award, though binding on the employer,
will not be binding on the Manager or Chief Medical Officer.
It should be obvious that the Act could not have contem-
plated an eventuality of this kind, which does not promote
any of the objects of the Act, but rather goes against them.
When these difficulties were pointed out to learned
counsel for the appellants, he conceded that some
limitations must be put on the width of the expression " any
person " occurring in the definition clause. He formulated
four such limitations:
(1) The dispute must be a real and substantial one in
respect of which one of the parties to the dispute can give
relief to the other; e. g., when the dispute is between
workmen and employer, the employer must be in a position to
give relief to the workmen. This, according to learned
counsel for the appellants, will exclude those cases in
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which the workmen ask for something which their employer is
not in a position to give. It would also exclude mere
ideological differences or controversies.
(2) The industrial dispute if raised by workmen must
relate to the particular establishment or part of
establishment in which the workmen are employed so
1170
that the definition clause may be consistent with s. 18
of the Act.
(3) The dispute must relate to the employment, non-
employment or the terms of employment or with the conditions
of labour of any person, but such person must be an employee
discharged or in service or a candidate for employment.
According to learned counsel for the appellants, the person
about whom the dispute has arisen need not be a workman
within the meaning of the Act, but he must answer to the
description of an employee, discharged or in service, or a
candidate for employment.
(4) The workmen raising the dispute must have a nexus
with the dispute, either because they are personally
interested or because they have taken up the cause of
another person in the general interest of labour welfare.
The further argument of learned counsel for the appellants
is that even imposing the aforesaid four limitations on the
width of the expression " any person " occurring in the
definition clause, the dispute in the present case is an
industrial dispute within the meaning of s. 2 (k) of the
Act, because (1) the employer could give relief in the
matter of the termination of service of Dr. K. P. Banerjee,
(2) Dr. K. P. Banerjee belonged to the same establishment,
namely, the same tea garden, (3) the dispute related to a
discharged employee (though not a workman) and (4) the
workmen raising the dispute were vitally interested in it by
reason of the fact that Dr. Banerjee (it is stated) belonged
to their trade union and the dismissal of an employee
without the formulation of a charge and without giving him
an opportunity to meet any charge was a matter of general
interest to all workmen in the same establishment.
We now propose to examine the question whether the
limitations formulated by learned counsel for the appellants
are the only true limitations to be imposed with regard to
the definition clause. In doing so we shall also consider
what is the true scope and effect of the definition clause
and what are the correct tests to be applied with regard to
it. We think that there is no real difficulty with regard
to the first two limitations.
1171
They are, we think, implicit in the definition clause
itself. It is obvious that a dispute between employers and
employers, employers and workmen, or between workmen and
workmen must be a real dispute capable of settlement or
adjudication by directing one of the parties to the dispute
to give necessary relief to the other. It is also obvious
that the parties to the dispute must be directly or substan-
tially interested therein, so that if workmen raise a
dispute, it must relate to the establishment or part of
establishment in which they are employed. With regard to
limitation (3), while we agree that the expression I any
person cannot be completely equated with any workman as
defined in the Act, we think that the limitation formulated
by learned counsel for the appellants is much too widely
stated and is not quite correct. We recognise that if the
expression any person means any workman within the
meaning of the Act, then it is difficult to understand why
the Legislature instead of using the expression any
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workman used the much wider expression any person in the
third part of the definition clause. The very circumstance
that in the second part of the definition clause the
expression used is " between employers and workmen or
between workmen and workmen " while in the third part the
expression used is "any person" indicates that the
expression "any person cannot be completely equated withany
workman. The reason for the use of the expression " any
person" in the definition clause is, however, not far to
seek. The word workman as defined in the Act (before the
amendments of 1956) included, for the purposes of any
proceedings under the Act in relation to an industrial
dispute, a. workman discharged during the dispute.. This
definition corresponded to s. 2.(j) of the old Trade
Disputes Act, 1929 except that the words ,,including an
apprentice " were inserted and the words " industrial
dispute " were substituted for the words " trade dispute ".
It is worthy of note that in the Trade Disputes Act, 1929,
the word workman meant any person employed in any trade or
industry to do
I49
1172
any skilled or unskilled manual or clerical work for hire or
reward. It is clear enough that prior to 1956 when the
definition of workman in the Act was further widened to
include a person dismissed, discharged or retrenched in
connection with, or as a consequence of the dispute or whose
dismissal, discharge or retrenchment led to the dispute, a
workman who had been discharged earlier and not during the
dispute was not a workman within the meaning of the Act. If
the expression " any person " in the third part of the
definition clause were to be strictly equated with any
workman, then there could be no industrial dispute, prior
to 1956, with regard to a workman who had been discharged
earlier than the dispute, even though the discharge itself
had led to the dispute. That seems to be the reason why the
Legislature used the expression any person in the third
part of the definition clause so as to put it beyond any
doubt that the non-employment of such a dismissed workman
was also within the ambit of an industrial dispute. There
was a wide gap between a workman and an employee under
the definition of the word workman in s. 2 (s) as it stood
prior to 1956; all existing workmen were no doubt employees;
but all employees were not workmen. The supervisory staff
did not come within the definition. The gap has been
reduced to some extent by the amendments of 1956; part of
the supervisory staff (who draw wages not exceeding five
hundred rupees per mensem) and those who were otherwise
workmen but were discharged or dismissed earlier have also
come within the definition. If and when the gap is
completely bridged, I workmen will be synonymous with
employees, whether engaged in any skilled or unskilled
manual, supervisory, technical or clerical work, etc. But
till the gap is completely obliterated, there is a
distinction between workmen and non-workmen and that
distinction has an important bearing on the question before
us. Limitation no. (3) as formulated by learned counsel for
the appellants ignores the distinction altogether and
equates any person with any employee-past,
1173
present or future: this we do not think is quite correct or
consistent with the other provisions of the Act. The Act
avowedly gives a restricted meaning to the word I workman
and almost all the provisions of the Act are intended to
confer benefits on that class of persons who generally
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answer to the description of workmen. The expression any
person in the definition clause means, in our opinion, a
person in whose employment, or non-employment, or terms of
employment, or conditions of labour the workmen as a class
have a direct or substantial interest-with whom they have,
under the scheme of the Act, a community of interest. Our
reason for so holding is not merely that the Act makes a
distinction between workmen and non-workmen, but because a
dispute to be a real dispute must be one in which the
parties to the dispute have a direct or substantial
interest. Can it be said that workmen as a class are
directly or substantially interested in the employment, non-
employment, terms of employment or conditions of lab our of
persons who belong to the supervisory staff and are, under
the provisions of the Act, non-workmen on whom the Act has
conferred no benefit, who cannot by themselves be parties to
an industrial dispute and for whose representation the Act
makes no particular provision ? We venture to think that
the answer must be in the negative. Limitation (4)
formulated by learned counsel for the appellants is also too
generally stated. We recognise that solidarity of labour or
general interest of tabour welfare may furnish, in some
cases, the necessary nexus of direct or substantial interest
in a dispute between employers and workmen, but the
principle of solidarity of the labour movement or general
welfare of labour must be based on or correlated to the
principle of community of interest; the workmen can raise a
dispute in respect of those persons only in the employment
or non-employment or the terms of employment or the
conditions or labour of whom they have a direct or
substantial interest. We think that Chagla C. J., correctly
put the crucial test when he said in Narendra Kumar Sen v.
All India Industrial Disputes (Labour Appellate) Tribunal
(1).
(1) (1953) 55 Bom. L.R. 125,129, 130.
1174
" Therefore, when s. 2 (k) speaks of the employment or
non-employment or the terms of employment or the conditions
of labour of any person, it can only mean the employment or
non-employment or the terms of employment or the conditions
of labour of only .those persons in the employment or non-
employment or the terms of employment or with the conditions
of labour of whom the workmen themselves are directly and
substantially interested. If the workmen have no direct or
substantial interest in the employment or non-employment of
a person or in his terms of employment or his conditions of
labour, then an industrial dispute cannot arise with regard
to such person."
We reach the same conclusion by approaching the question
from a somewhat different standpoint. Ordinarily, it is
only the aggrieved party who can raise a dispute; but an
industrial dispute is put on a collective basis, because it
is now settled that an individual dispute, not espoused by
others of the class to which the aggrieved party may belong,
is not an industrial dispute within the meaning of a. 2 (k).
As Isaacs J. observed in the Australian case of George
Hudson Ltd. v. Australian Timber Workers Union(1):
"The very nature of, an I industrial dispute as
distinguished from an individual dispute, is to obtain new
industrial conditions, not merely for the specific
individuals then working from the specific individuals then
employing them, and not for the moment only, but for the
class of employees from the class of em-
ployers..................... It is a battle by the
claimants, not for themselves alone."
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Section 18 of the Act supports the aforesaid observations,
in so far as it makes the award binding not merely on the
parties to the dispute, but where the party is an employer,
on his heirs, successors or assigns and where the party is
composed of workmen, on all persons employed in the
establishment and all persons who subsequently become
employed therein. If, therefore, the dispute is a
collective dispute, the party raising the dispute must have
either a direct interest in the subject matter of dispute or
a substantial interest therein in the sense that the class
to which the
(I) 32 C.L.R. 4I3,441.
1175
aggrieved party belongs is substantially affected there. by.
It is the community of interest of the class as a whole
-class of employers or class of workmen-which furnishes the
real nexus between the dispute and the parties to the
dispute. We see no insuperable difficulty in the practical
application of this test. In a case where the party to the
dispute is composed of aggrieved workmen themselves and the
subject matter of dispute relates to them or any of them,
they clearly have a direct interest in the dispute. Where,
however, the party to the dispute also composed of workmen,
espouse the cause of another person whose employment, or
non-employment, etc., may prejudicially affect their
interest, the workmen have a substantial interest in the
subject matter of dispute. In both such bases, the dispute
is an industrial dispute.
Learned counsel for the appellants has also drawn our
attention to the definition of a trade dispute in the
Indian Trade Unions Act, 1926. That definition is also in
the same terms, but with this vital difference that the word
workmen means there "all persons employed in trade or
industry whether or not in the employment of the employer
with whom the trade dispute arises." It is obvious that the
very wide definition of the word workmen determines the
ambit of the definition, of a trade dispute in the Trade
Unions Act, 1926. The provisions of that Act have different
objects in view, one of which is the expenditure of the
funds of a registered Trade Union I on the conduct of trade
disputes on behalf of the Trade Union or any member thereof.
We do not think that that definition for the purposes of an
Act like the Trade Unions Act is of any assistance in
construing the definition in the Act with which we are now
concerned, even though the words employed are the same; for
one thing, the meaning of the word workman completely
changes the ambit of the definition clause, and for another,
the objects, scheme and purpose of the two Acts are not the
same. For the same reasons, we do not think that with
regard to the precise problem before us much assistance can
be obtained by a detailed examination of English,
1176
American or Australian decisions given with regard to the
terms of the statutes in force in those countries. Each Act
must be interpreted on its own terms particularly when the
definition of a workman varies from statute to statute
and, with changing conditions, from time to time, and
country to country.
The interpretation of s. 2 (k) of the Act has been the
subject of consideration in various Indian decisions from
different points of view. Two recent decisions of this
Court considered the question if an individual dispute of a
workman was within the definition of an industrial dispute.
The decision in C. P. Transport Services Ltd. v. Raghunath
(1), related to the C. P. and Berar Industrial Disputes
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Settlement Act (No. XXIII of 1947) and the decision in
Newspapers Ltd. v. State Industrial Tribunal, U. P.(2), to
the U. P. Industrial Disputes Act (No. XXVIII of 1947).
Both these decisions considered s. 2 (k) of the Act, but
with reference to a different problem. The definition
clause in s. 2 (k) was considered at some length by the
Federal Court in Western India Automobile Association v. The
Industrial Tribunal, Bombay (3), and learned counsel for the
appellants has placed great reliance on some of the
obervations made therein. The question which fell for
decision in that case was whether " industrial dispute"
included within its ambit a dispute with regard to
reinstatement of certain dismissed workmen. It was held
that reinstatement was connected with non-employment and,
therefore, fell within the words of the definition. It
appears that the finding of the Court from which the appeal
was preferred to the Federal Court was that the workmen
whose reinstatement was in question were discharged during
the dispute and were, therefore, workmen within the meaning
of the Act, Therefore, the problem of interpretation with
which we are faced in this case was not the problem before
their Lordships of the Federal Court. The observations on
which learned counsel for the appellants has relied are
these:
" The question for determination is whether the
(1) [1956] S. C. R. 956. (2) A. 1. R. (1957) S. C.
532.
(3) [1949] F. C. R- 321, 329-330 346-347.
1177
definition of the expression "industrial dispute" given in
the Act includes within its ambit, a dispute in regard to
reinstatement of dismissed employees........ The words of
the definition may be paraphrased thus: " any dispute which
has connection with the workmen being in, or out of service
or employment ". " Non-employment " is the negative of "
employment" and would mean that disputes of workmen out of
service with their employers are within the ambit of the
definition. It is the positive or the negative act of an
employer that leads to employment or to non-employment. It
may relate to an existing employment or to a contemplated
employment, or it may relate to an existing fact of non-
employment or a contemplated non-employment. The following
four illustrations elucidate this point: (1) An employer has
already employed a person and a trade union says " Please do
not employ him ". Such a dispute is a dispute as to
employment or in connection with employment. (2) An employer
gives notice to a union saying that he wishes to employ two
particular persons. The union says " no ". This is a
dispute as to employment. It arises out of the desire of
the employer to employ certain persons. (3) An employer may
dismiss a man, or decline to employ him. This matter raises
a dispute as to non-employment. (4) An employer contemplates
turning out a number of people who are already in his
employment. It is a dispute as to contemplated non-
employment. " Employment or non-employment " constitutes
the subject matter of one class of industrial disputes, the
other two classes of disputes being those connected with the
terms of employment and the conditions of labour. The
failure to employ or the refusal to employ are actions on
the part of the employer which would be covered by the terms
" employment or non-employment ". Re-instatement is
connected with non-employment and is therefore within the
words of the definition."
" It was contended that the re-instatment of the
discharged workmen was not an industrial dispute
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1178
because if the union represented the discharged employees,
they were not workmen within the definition of that word in
the Industrial Disputes Act. This argument is unsound. We
see no difficulty in the respondents (union) taking up the
cause of the discharged workmen and the dispute being still
an industrial dispute between the employer and the workmen.
The non-employment " of any person " can amount to an
industrial dispute between the employer and the workmen,
falling under the definition of that word in the Industrial
Disputes Act. It was argued that if the respondents
represented the undischarged employees, there was no dispute
between them and the employer. That again is fallacious,
because under the definition of industrial dispute, it is
not necessary that the parties to the proceedings can be the
discharged workmen only. The last words in the definition
of industrial dispute, viz., " any person " are a complete
answer to this argument of the appellants." It is true that
two of the illustrations-Nos. (2) and (3)-given in the
aforesaid observations seem to indicate that there can be an
industrial dispute relating to persons who are not strictly
speaking "workmen"; but whether those persons would answer
to such description or what community of interest the
workmen had with them is not stated and in any view we do
not think that illustrations given to elucidate a different
problem can be taken as determinative of a problem which was
not before the court in that case.
A reference was also made to the decision of this Court
in D. N. Banerji v. P. R. Mukherjee (1). The question there
was whether the expression " industrial dispute " included
disputes between municipalities and their employees in
branches of work analogous to the carrying on of a trade or
business.
More in point is the decision of the Full Bench of the
Labour Appellate Tribunal in a number of appeals reported in
1952 Labour Appeal Cases, p. 198, where the question now
before us, arose directly for decision. The same question
arose for decision before the All India. Industrial
Tribunal (Bank Disputes) and the majority of members
(Messrs. K. C. Sen and
(1) [1953] S.C.R. 302.
1179
J. N. Majumdar) expressed the view that a dispute between
employers and workmen might relate to employment or non-
employment or the terms of employment or conditions of
labour of persons who were not workmen, and the words any
person used in the definition clause were elastic enough to
include an officer, that is, a member of the supervisory
staff. The majority view will be found in Chap. X of the
Report. The minority view was expressed by Mr. N. Chandra-
sekhara Aiyar, who said:
" It is fairly clear to my mind that "any person) in the
Act means any one whe belongs to the employer class or the
workmen class and the cases in whose favour or against whom
can be said to be adequately presented by the group or
category of persons to which he belongs.
As stated already it should be remembered that the cases
relied upon for the view that any person may mean others
also besides the workmen were all cases relating to workmen.
They were discharged or dismissed workmen and when their
cases were taken up by the Tribunal the point was raised
that they had ceased to be workmen and were therefore
outside the scope of the Act. This argument was repelled.
In my opinion, there is no justification for treating
such cases as authorities for the wider proposition that a
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valid industrial dispute can be raised by workmen about the
employment or non-employment of someone else who does not
belong and never belonged to their class or category.
My view therefore is that the Act does not apply to
cases of non workmen, or officers, if they may be so
called."
Both these views as also other decisions of High Courts and
awards of Industrial Tribunals, were considered by the Full
Bench of the Labour Appellate Tribunal and the Chairman of
the Tribunal (Mr. J. N. Majamdar) acknowledged that his
earlier view was not correct and expressed his opinion,
concurred in by all the other members of the Tribunal, at
p. 210-
150
1180
" I am, therefore, of opinion that the expression any
person has to be interpreted in terms of workmen. The
words any person cannot have, in my opinion, their widest
amplitude, as that would create incongruity and repugnancy
in the provisions of the Act. They are to be interpreted in
a manner that persons, who would come within that
expression, can at some stage or other, answer the
description of workman as defined in the Act."
It is necessary to state here that earlier a contrary
view had been taken by the Calcutta High Court in Birla
Brothers, Ltd. v. Modak (1), by Banerjee J. in The Dalhousie
Jute Co. Ltd. v. S. N. Modak (2), and by the Industrial
Tribunal, Madras, in East India Industries (Madras) Ltd. v.
Their Workmen (3). It is necessary to emphasise here two
considerations which have generally weighed with some of the
learned Judges in support of the view expressed by them:
these two Considerations are that (1) normally workmen will
not raise a dispute in which they are not directly or
substantially interested and (2) Government will not make a
reference unless the dispute is a real or substantial one.
We think that these two considerations instead of leading to
a strictly grammatical or etymological interpretation of the
expression " any person " occurring in the definition clause
should lead, on the contrary, to an interpretation which, to
use the words of Maxwell, is to be found in the subject or
in the occasion on which the words are used and the object
to be attained by the statute.
We are aware that anybody may be a potential workman and the
concept of "a potential workman" introduces an element of
indefiniteness and uncertainty. We also agree that the
expression " any person " is not co-extensive with any
workman, potential or otherwise. We think, however, that
the crucial test is one of community of interest and the
person regarding whom the dispute is raised must be one in
whose employment, non-employment, terms of employment or
conditions of labour (as the case may be) the parties
(1) I.L.R. (1948) 2 Cal. 209. (2) [1951] 1 L.L.J. 145.
(3) [1952] 1 L.L.J. 122.
1181
to the dispute have a direct or substantial interest.
Whether such direct or substantial interest has been
established in a particular case will depend on its facts
and circumstances.
Two other later decisions have also been brought to our
notice : Prahlad Rai Oil Mills v. State of Uttar Pradesh (1)
in which Bhargava J. expressed the view that the expression
any person in the definition clause did not mean a workman
and the decision in Narendra Kumar Sen v. All India
Industrial Disputes (Labour Appellate) Tribunal (2), being
the decision of Chagla C. J. and Shah J. from which we have
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already quoted some extracts.
An examination of the decisions referred to above
undoubtedly discloses a divergence of opinion : two views
have been expressed, one based on the ordinary meaning of
the expression any person and the other based on the
context, with reference to the subject of the enactment and
the objects which the legislature has in view. For the
reasons which we have already given, we think that the
latter view is correct.
To summarise. Having regard to the scheme and objects of
the Act, and its other provisions, the expression any
person in s. 2 (k) of the Act must be read-subject to such
limitations and qualifications as arise from the context;
the two crucial limitations are (1) the dispute must be a
real dispute between the parties to the dispute (as
indicated in the first two parts of the definition clause)
so as to be capable of settlement or adjudication by one
party to the dispute giving necessary relief to the other,
and (2) the person regarding whom the dispute is raised must
be One in whose employment, non-employment, terms of
employment, or conditions of labour (as the case may be) the
parties to the dipute have a direct or substantial interest.
In the absence of such interest the dispute cannot be said
to be a real dispute between the parties. Where the workmen
raise a dispute as against their employer, the person
regarding whose employment, non-employment, terms of
employment or conditions of labour the dispute is raised
need not be, strictly (1) A.I.R. (1955) NUC (Allahabad)
2664. (2) (1953) 55 Bo-. L.R. 125.
1182
speaking, a workman within the meaning of the Act but must
be one in whose employment, non-employment, terms of
employment or conditions of labour the workmen as a class
have a direct or substantial
interest.
In the case before us, Dr. K.P. Banerjee was not a
workman. He belonged to the medical or technical staff-a
different category altogether from workmen. The appellants
had no direct, nor substantial interest in his employment or
non-employment, and even assuming that he was a member of
the same Trade Union, it cannot be said, on the tests laid
down by us, that the dispute regarding his termination of
service was an industrial dispute within the meaning of s.
2(k) of the Act.
The result, therefore, is that the appeal fails and is
dismissed. In the circumstances of this case there will be
no order for costs.
SARKAR J.-On November 1, 1950, Dr. K. P. Banerjee was
appointed the Assistant Medical Officer of the Dimakuchi Tea
Estate, whose management is the respondent in this appeal.
On April 21, 1951, the respondent terminated Dr. Banerjees
service with effect from the next day and he was offered one
months salary in lieu of notice. He accepted this salary
and later left the Tea Estate. The workmen of the Tea
Estate raised a dispute concerning the dismissal of Dr.
Banerjee. On December 23, 1953, the Government of Assam
made an order of reference for adjudication of that dispute
by the Industrial Tribunal under the provisions of s. 10 of
the Industrial Disputes Act, 1947. The order of reference
was in the following terms:
Whereas an industrial dispute has arisen in the matters
specified in the schedule below between:
(1) The workmen of Dimakuchi Tea Estate, P. O.
Dimakuchi, District Darrang, Assam represented by the
Secretary, Assam Chah Karmachari Sangha, I.N.T.U.C. Office,
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P.O. Dibrugarh, Assam and,
(2) The management of Dimakuchi Tea Estate, P.O.
Dimakuchi, District Darrang, Assam whose agents are Messrs.
Williamson Magor and Company Limited, Calcutta.
1183
And whereas it is considered expedient by the Govt. of
Assam to refer the said dispute for adjudication to a
Tribunal constituted under section 7 of the Industrial
Disputes Act, 1947 (Act XIV of 1947).
Now, therefore, in exercise of the powers conferred by
clause (e) of sub-section (1) of section 10, as amended, of
the Industrial Disputes Act (XIV of 1947), the Governor of
Assam is pleased to refer the said dispute to Sri Uma Kanta
Gohain, Additional District and Sessions Judge (retired) who
has been appointed to constitute a Tribunal under the
provisions of the said Act.
SCHEDULE.
(i) Whether the management of Dimakuchi Tea Estate was
justified in dismissing Dr. K. P. Banerjee, A. M. 0. ?
(ii)If not, is he entitled to reinstatement or any other
relief in lieu thereof ?
The Tribunal held that Dr. Banerjee was not a workman as
defined in the Act and, therefore, the dispute referred was
not an industrial dispute and consequently it had no
jurisdiction to adjudicate upon such a dispute. The workmen
preferred an appeal to the Labour Appellate Tribunal. That
Tribunal dismissed the appeal holding that Dr. Banerjee was
not a workman within the definition of that term in the Act
and as the dispute was connected with his employment or non-
employment, it was not an industrial dispute, and was
therefore beyond the jurisdiction of the Industrial
Tribunal. From that decision the present appeal by the
workmen of the Tea Estate arises with leave granted by this
Court under Art. 136 of the Constitution. In granting the
leave this Court limited it to the question whether a
dispute in relation to a person who is not a workman, falls
within the scope of the definition of " Industrial Dispute "
contained in s. 2(k) of the Act. That, therefore, is the
only question before us.
Section 2(k) is in these terms:
" Industrial dispute means any dispute or difference
between employers and employers or
1184
between employers and workmen, or between workmen 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."
The dispute that was raised was between an employer, the
respondent in this appeal and its workmen, the appellants
before us and concerned the employment or non-employment of
Dr. Banerjee, a person employed by the same employer but who
was not a workman. The question that we have to decide has
arisen because of the use of the words " any person " in the
definition. These words are quite general and very wide and
according to their ordinary meaning include a person who is
not a workman. If this meaning is given to these words,
then the dispute that arose concerning Dr. Banerjees
dismissal would be an industrial dispute because the dispute
would then be clearly within s. 2(k). This indeed is not
disputed. Unless there are reasons to the contrary these
words have to be given their ordinary meaning. In Birla
Brothers Ltd. v. Modak (1) and in Western India Automobile
Association v. -Industrial -Tribunal of Bombay (2) it was
held that the words " any person " were not meant to refer
only to workmen as defined in the Act but were wide and
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general and would include others who were not such workmen.
In The Dalhousie Jute Co. Ltd. v. S. N. Modak (3), Banerjee
J. said, " Any person means whatever individual is chosen.
I see no reason to restrict the meaning of the word
Person". The same view was expressed in East India
Industries (Madras) Ltd. v. Their Workmen (4), which was the
decision of an Industrial Tribunal. There is then some
support for the view that the words I any person should
have no restriction put upon them.
It is pointed out on behalf of the respondent that it is
not its contention that the words any person should be
understood as referring only to a " workman " as defined in
the Act but that those words, should include all persons of
the workman class and
(1) I.L.R. (1948) 2 Cal. 209.
(2) [1949] F.C.R. 321.
(3) [1951] 1 L.L.J. 145.
(4) [1952] 1 L.L.J. 122.
1185
so they would include discharged workmen. It is then stated
that the first two of the cases mentioned above were
concerned with a dispute regarding discharged workmen and
did not therefore decide that the words (I any person
included all. It is no doubt true that these cases were
concerned with a dispute regarding discharged workmen but I
do not understand the decision to have proceeded on that
basis. Sen J. said in Birla Brothers case (1) (p. 213)
that, " It cannot be argued that workmen dismissed prior to
the Act are not persons". And in the Western India
Automobile Association case (2), it was said (p. 346-7),
" It was contended that the reinstatement of the
discharged workmen was not an industrial dispute because if
the union represented the discharged employees, they were
not workmen within the definition of that word in the
Industrial Disputes Act. This argument is unsound. We see
no difficulty in the respondents (union) taking up the cause
of the discharged workmen and the dispute being still an
industrial dispute between the employer and the workmen.
The non-employment " of any person " can amount to an
industrial dispute between the employer and the workmen,
falling under the definition of that word in the Industrial
Disputes Act. It was argued that if the respondents
represented the undischarged employees, there was no dispute
between them and the employer. That again is fallacious,
because under the definition of industrial dispute, it is
not necessary that the parties to the proceedings can be the
discharged workmen only. The last words in the definition
of industrial dispute, viz., " any person ", are a complete
answer to this argument of the appellants."
The last two of the cases mentioned earlier were not
however concerned with any dispute regarding discharged
workmen. In The Dalhousie Jute Co. -case (3) the dispute
was with regard to the employment of persons who sought
employment as workmen and in the East India Industries
(Madras) Ltd. case (4) the
(1) I.L.R. (1948) 2 Cal. 209.
(2) [1949] F.C.R. 321.
(3) [1951] 1 L.L.J. I45.
(4)[1952] 1 L.L.J. 122.
1186
dispute concerned the dismissal of a member of the
supervisory staff, that is, another employee of the same
employer who was not a workman. It is however said that in
none of these cases the arguments that are now advanced
appear to have been advanced and they were not considered in
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the judgments. This comment is justified. I shall
therefore lay these cases aside in deciding the question
that has arisen.
Are there then good reasons for not giving to the words
" any persons " their plain meaning ? Several have been
advanced and I shall examine them a little later. I wish
now to discuss how it is proposed to restrict the meaning of
these words. I have already stated that the contention is
that the words are not confined to a workman but refer only
to a person of the workman class. This, I confess, I do not
follow. The word " workman " is a term defined in the Act.
Outside the definition it, is impossible to say who is a
workman and who is not. That being so, the words " workman
class " would be meaningless unless they meant all persons
who were workmen as defined in the Act. So read the words "
any person " would mean only a workman. But it is conceded
that this is not so. And, of course, it cannot be so, for,
if that was intended, there was no reason for the
legislature not to have used the words " any workman "
instead of the words it any person ". Again if this was the
intention, then a dispute concerning the dismissal of a
workman would not be an industrial dispute for a dismissed
workman was not a workman within the definition of that word
in the Act as it stood in 1953, that being the Act with
which we are concerned. Such a result is against all
conceptions of industrial disputes laws. It is indeed not
contended that a dispute concerning the dismissal of a
workman would not be an industrial dispute. It therefore
seems to me that the words " any personal cannot be said to
refer only to persons of the workman class. If they cannot
be restricted as being understood to refer only to a person
of the workman class, it is not suggested that they can be
restricted in any other manner.
It is then said that the words refer to "workmen
1187
dismissed as well as in employment as also those, who in
future, become "workmen". Again I am in difficulty. So
understood the words would not include a person who seeks
employment as a workman because he has not become a workman
till he is employed. That being so, it would have to be
said that a dispute raised by workmen in employment when new
workmen are to be appointed, that only those of the
candidates as agree to join their union should be appointed
and others should not be, would not be an industrial
dispute. That again seems to me to be against all con-
ceptions of industrial dispute laws. Furthermore, I am
wholly unable to appreciate what is meant by a dispute
concerning a person, who is not at the time the dispute
arises, a workman but in future becomes one. When is such a
person to become a workman ? I find no answer. Again, is it
to be said that whether a dispute is an industrial dispute
or not may have to depend on future circumstances for there
is no knowing whether the person concerning whom the dispute
arises will later become a workman or not ? If he becomes
one, there can be no dispute concerning him referable to a
point of time before he became one, and, if he does not, he
cannot be one who in future becomes a workman.
It is said that the words "any person " were used instead
of the word workman because it was intended to include
within them persons who had been dismissed before the
dispute arose and who were not within the definition of
workmen in the Act as it stood in 1953. If that was the
reason, why could not the legislature use the words "
workmen and dismissed workmen ?" There was nothing to
prevent that being done. In fact the definition of
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"workman" has been amended in 1956 to include workmen
discharged in consequence of an industrial dispute or whose
discharge has led to that dispute. So, as the definition
now stands, it includes persons dismissed before the dispute
arose. Yet the words " any person " have been left untouch-
ed in s. 2 (k) and not been replaced by the word workman.
This, to my mind, shows that it was not the
1151
1188
intention to confine the words " any person to workmen in
employment or discharged.
But it is said that the words " any person were left in
the Act because it was intended to include not only workmen
in employment and dismissed workmen bat also persons who in
future become workmen. It is said that, that this is so
appears from s. 18 of the Act. I shall presently consider
this section but I desire to observe now that this argument
much weakens the argument noticed in the preceding paragraph
for if the words " any person " were used so that persons
who in future become workmen might be included in them, they
could not have been used to avoid such dismissed workmen as
were not workmen as defined in the Act being excluded from
them. It seems to me that if it is argued that the words "
any person " were used so that persons who in future become
workmen may be included in them,; it cannot be argued that
those words were used instead of the word "workman" because
it was intended to include within them certain dismissed
workmen who were not workmen within the definition of that
term in the Act as it stood in 1953.
Coming now to s. 18 it is in these terms:
A settlement arrived at in the course of conciliation
proceedings under this Act or an award 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 Board or
Tribunal, as the case may be, records the opinion that they
were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause
(b)is an employer, his heirs, successors or assigns in
respect of the establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause
(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.
1189
1 entirely fail to see how that section assists at all in
finding out who were meant to be included in the words any
person ". Is it to be said that s. 18(d) by, making the
award binding on those who become in future employed in the
establishment as workmen, indicates that such persons are
treated in the same way as workmen in actual employment and
therefore it must have been intended to include them within
the words " any person " along with present and dismissed
workmen. I am wholly unable to agree. The object of s.
18(d) is quite clear. The Act is intended to compose a
dispute between an employer and his workmen by a settlement
or an award brought about by the machinery provided in it
and the period during which an award or a settlement is to
remain in force is also provided. The idea behind s. 18 is
that whoever takes up appointment as a workman in the
establishment to which the dispute relates during the time
when the award or settlement is in force, would be bound by
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it. If it were not so, the award or settlement would have
little effect in settling a dispute, for any newly recruited
workmen could again raise the dispute. Any one having any
experience of industries knows that workmen are largely a
shifting population and that the need for replacement of the
workmen leaving and for addition to the strength of the
workmen employed, is not infrequent. To meet the exigency
arising from this need and to make the award or settlement
effective it was necessary to enact s. 18(d). Its object
was not to place workmen in employment and workmen recruited
in future in the same position for all purposes of the Act.
On the same reasoning, in view of s. 18(a), it has to be
said that it was the intention of the Act to give the heirs,
successors or assignees of an employer the same position for
all purposes of the Act as that of the employer. But that
would be absurd. Section 18(d) deals with a person who in
future becomes employed. The section does not say employed
as a workman but I will assume that that is what is meant.
I do not understand what is meant by saying that such a
person is within the words " any person " in s. 2(k). What
is the point of time that has to be considered ?
1190
If it is after he has become employed, then he is a workman
and admittedly within the words "any person ". Is it to be
said that before such employment also he is within the
meaning of those words. But it is difficult to follow this.
It is conceivable that any person whatsoever may in future
be employed as a workman for there is nothing in the quality
of a human being that marks him out as a workman. In this
way the words " any person " would include all. That,
however, is not meant, for it will defeat the very argument
based on s. 18(d). Is it to be said then, only such future
workmen are meant as apply for jobs as such ? But the
section makes no reference to such people at all and cannot
therefore be of any assistance in showing that it was
intended that such applicants would be included within the
words " any person ". I am therefore wholly unable to accept
the argument that s. 18(d)shows that future workmen were
intended to be included within the words "any person". I
wish also to say this. Assume that s. 18(d) shows that it
was intended to include within the words ,any person " one
who in future becomes a workman. But where is the reason
for saying that the words do not also include others ?
Section 18 provides none.
I proceed now to discuss the reasons advanced for
restricting the generality of the words " any person They
were put as follows:
1. In certain sections of the Act the words " any
person " have been used but there the reference is to
workmen, and therefore in s. 2(k) the words " any person "
should mean persons of the workman class.
2. The scheme and the purpose of the Act generally
and the object of the Act specially being to benefit
workmen, the words "any person " should be confined to
people of the workman class.
3. The word "dispute" in s. 2(k) itself indicates
that the person raising the dispute must be interested in
the dispute and therefore since the dispute must concern the
employment, non-employment, terms of employment or the
conditions of labour of a person, that person must be of the
workman class.
1191
The first reason, then, is that in certain sections, the
Act uses the words " any person". I will assume that by the
use of these words only workmen are intended to be referred
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to in these sections. But the question arises why is such
intention to be inferred? Clearly, because the context
requires it. I will refer to some of these sections to make
my point clear. Section 2(1) defines a lock-out as " the
closing of a place of employment, or the suspension of work,
or the refusal by the employer to continue to employ any
number of persons employed by him." Section 2(q) defines a
strike as " a cessation of work by a body of persons
employed in any industry acting in combination, or a
concerted refusal, or a refusal under a common
understanding, of any number of persons who are or have been
so employed to continue to work or to accept employment."
Lock-outs and strikes are dealt with in ss. 22, 23 and 24 of
the Act. Section 22(2) says that no employer carrying on
any public utility service shall lock-out any of his workmen
except on certain conditions mentioned in the section.
Section 23 says that no employer of any workman employed in
any industrial establishment shall declare a lock-out during
the periods mentioned in the section. Section 24 states
that a strike or a lock-out shall be illegal if commenced or
declared in contravention of s. 22 or s. 23. The
definitions of lock-outs and strikes are for the purposes of
ss. 22, 23 and 24. There are other sections in which lock-
outs and strikes are mentioned but they make no difference
for our present purpose. The lock-outs and strikes dealt
with in ss. 22(2), 23 and 24 are lock-outs of and strikes
by, workmen. It may hence be said that in s. 2(1) and (q)
by the word person a workman is meant. Therefore, it is
these sections, viz., 22(2), 23 and 24, which show what the
meaning of the word person in the definitions is. I would
like to point out in passing that s. 22(1) says that no
person employed in a public utility service shall go on
strike except on certain conditions and there is nothing in
the Act to show that the word "person" in s. 22(1) means
only a workman. Proceeding however with the point we are
1192
concerned with, the question is, is there any provision in
the Act which would show that the words " any person" in s.
2(k) were meant only to refer to persons of the workman
class. I have not been able to find any and none has been
pointed out. Therefore the fact that in s. 2, sub-ss. (1)
and (q) the word " persons " means workmen is no reason for
concluding that the same word must be given the same
restricted meaning in s. 2(k). The position with regard to
s. 33A, in which the word employee has to be read as meaning
a workman because of s. 33, is the same and does not require
to be dealt with specially. I may add that if it has to be
said that because in certain other sections the word
"person" has to be understood as referring to a workman
only, in s. 2(k) also the same word must have the same
meaning, then we have to read the words " any person" in s.
2(k) as meaning only a workman as defined in the Act. This
however is not the contention of the learned counsel for the
respondent. I may further say that it was not contended
that the word " person" in s. 2, sub-ss. (1) and (q) and the
word employee in s. 33A has to be read as including not only
a workman in employment but also a discharged workman and a
person who in future becomes a workman, and it seems to me
that such a contention would not have been possible.
I proceed now to deal with the second group of reasons
based on the object and scheme of the Act. It is said that
the Act makes a distinction between employees who are
workmen and all other employees, and that the focus of the
Act is on workmen and it was intended mainly for them. This
was the view taken in United Commercial Bank Ltd. v. Kedar
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Nath Gupta (1). I will assume all this. It may also be
true that the Act is not much concerned with employees other
than workmen. But I am unable to see that all this is any
reason for holding that the words " any person " must mean a
person of the workman class. The definition in s. 2(k)
would be fully concerned with workmen however the words "
any person " in it may
(1) [1952] 1 L. L. J. 782.
1193
be understood because the dispute will be one to which a
workman is a partyl Is it to be said that the Act would
cease to be intended for workmen or the focus of it
displaced from workmen or that the distinction between
workmen and other employees would vanish if a dispute
relating to the dismissal of one who is not a workman is
held to be an industrial dispute, even though the dispute is
one to which workmen are parties ? I am unable to subscribe
to such an argument. But it is said that in such a case the
workmen would not be interested in the dispute, the dispute
would not really be with them and they would not be in any
real sense of the word parties to it. So put the argument
comes under the last of the three reasons earlier stated,
,namely, that in order that there may be an industrial
dispute the workmen must be interested in that dispute.
This contention I will consider later. It is also said in
the United Commercial Bank Case (1) that the main purpose of
the Act is to adjust the relations between employers and
workmen by securing for the latter the benefit provided by
the Act. It is really another way of saying that the
workmen must be interested in the dispute, for if they are
not interested no benefit can accrue to them from an
adjustment of it. This, as I have said, I will discuss
later.
It is also said that the Act is for the benefit of
workmen and therefore if a dispute concerning a person who
is not a workman, is an industrial dispute capable of being
resolved by adjudication under the Act, then, if the award
goes in favour of the workmen raising it, a benefit would
result to a person whom the Act did not intend to benefit.
So it is said, an industrial dispute cannot be a dispute
concerning one who is not a workman. But the benefit
resulting to the person in such a case would only be
incidental. The workmen themselves would also be benefited
by it at the same time. To adopt this argument would be to
deprive the workmen of this benefit and there is no
justification for doing so. How the workmen would be
benefited would appear later when I discuss the question of
the workmens interest in the dispute. I will show later
(1) [1952] 1 L. L. J . 782.
1194
that if the workmen were not interested in the dispute so
that they could get no benefit under it, there would be no
reference by the Government and there would be no benefit to
a person who was not a workman. Further, I am unable to
agree that the Act is intended to confer benefit on
workmen. Its object is admitted by all to preserve
industrial peace. It may confer some benefit on workmen but
at the same time it takes away their power and right to
strike and puts them under a disadvantage.
We were referred to the note of dissent to the award of
the majority of the All India Industrial Tribunal (Bank
Disputes), dated July 31, 1950. This note was by Mr.
Chandra Sekhar Aiyer who later became a Judge of this Court.
In that note he expressed the view that " any person " in s.
2(k) means any one who belongs to the employer class or the
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workmen class and the cases in whose favour or against whom,
can be said to be adequately represented by the group or
category of persons to which he belongs. I have already
stated my difficulties in agreeing that the words "any
person " mean only persons of the work. man class. I will
presently deal with the reasoning on which Mr. Aiyer bases
his view but I wish to say now that it seems to me that the
words "any person" cannot refer to anyone belonging to the
employer class because the dispute must be in connection
with the employment, non-employment, or terms of employment
or the conditions of labour of any person and it is not
possible to conceive of any such thing in connection with a
person in his capacity as an employer.
Mr. Aiyar first stated that a necessary limitation to be
put on the words " any person " is that the person should
have something to do with the particular establishment where
the dispute has cropped up. He said that it could not be
that the workmen in Bank A could raise a valid and
legitimate industrial dispute with their employer because
some one in Bank B had not been treated well by his
employer. Assume this is so. But it does not follow that an
industrial dispute must be one concerning a person of the
workman class alone, for, a person having something to do
with an
1195
establishment need not necessarily belong to the workman
class. An officer in an establishment where the dispute
crops up would be as much a person having something to do
with that establishment as a workman there and, therefore,
even assuming that the limitation suggested by Mr. Aiyar
applies, there would be nothing in it to prevent an
industrial dispute concerning him arising. The question is
not whether the person concerning whom an industrial dispute
may arise, has to be employed in the establishment where the
dispute arises, but whether he must belong to what has been
called the workman class. The decision of the former
question which has not arisen in this case, -is of no help
in deciding the question that has arisen and I do not
therefore feel called upon to express any opinion with
regard to it.
Mr. Aiyar next referred to a case where workmen of a Bank
raise a dispute with that Bank, about an employee of the
Bank who was not a workman, for example an officer who had
been dismissed. He assumed that the Bank and the officer
had no dispute as between themselves. In his view, if in
such a case the dispute was an industrial dispute and could
be made the subject matter of an award by an Industrial
Tribunal, the award would not be binding on the officer
because he had no concern with the dispute. According to
him, it would be absurd to suggest that the Bank was under
an obligation to give effect to the award. Therefore, in
his view, such a dispute would not be an industrial dispute.
Now, whether the award would be binding on the officer or
not, would depend on whether he could be made a party to the
dispute under s. 18(b). It is not necessary to discuss that
question now. But assume that the award was not binding on
the officer. Why should not the bank be under an obligation
to give effect to the award in so far as it lay in its power
to do so ? If the dispute was an industrial dispute, the
award would be binding on the Bank and it must give effect
to it. Then the argument comes to this that the dispute is
not an industrial dispute because the award would not, as
152
1196
assumed, be binding on the officer concerning whom the
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dispute arose. I cannot accept this view. Take this case.
An employer dismisses five of his workmen. The workmen
dismissed make no grievance. Three months later the
employer dismisses twenty five more and again neither the
dismissed workmen nor the workmen in employment raise any
dispute. Two months after the second dismissal the employer
dismisses fifty workmen. These workmen make no complaint
and leave. The workmen in employment now begin to take
notice of the dismissals and think that the employer is
acting on a set policy and raise a dispute about all the
dismissals. The dispute is then referred for adjudication
and an award is made in favour of the workmen. Assume that
all the dismissed workmen could be made parties to the
adjudication proceedings but for one reason or another, were
not made parties. This award would not be binding on the
dismissed workmen and certainly not on those who had been
dismissed on the two earlier occasions. They would not be
covered by any of the provisions of s. 18. Is it to be said
that for that reason the dispute is not an industrial
dispute? I am wholly unable to agree. Such a dispute would
be entirely within the definition even on the assumption
that the words "any person" mean only persons of the workman
class. It follows, therefore, that in order to decide
whether a dispute is or is not an industrial dispute, the
question whether the award would be binding on the person
concerning whose employment the dispute was raised, is no
test. I therefore find nothing in the minute of dissent of
Mr. Aiyar to justify the putting of any restriction on the
plain meaning of the words "any person" in s. 2(k). As I
shall show later, if certain disputes concerning foremen who
are not workmen and who I will assume would not be bound by
the award, are not to be industrial disputes, the object of
the Act would clearly be defeated. I cannot therefore agree
that the fact that an award is not binding on one affords a
reason for holding that there cannot be an industrial
dispute concerning him.
The matter was put from another point of view. It
1197
is said that if workmen could raise an industrial dispute
with their employer concerning the salary of a manager, who
was not a workman, and an award was made directing the
employer to pay a smaller salary to the manager, the
employer would be bound by the award but not the manager.
Then it is said, suppose, the employer had made a contract
with the manager to employ him at the higher salary for a
number of years. It is pointed out that in such a case the
award being binding on the employer, he would be compelled
to commit a breach of his contract and be liable to the
manager in damages. It is said that it could not have been
the intention of the Act to produce a result whereby an
employer would become liable in damages and therefore such a
dispute cannot be an industrial dispute. But I do not agree
that the employer would be liable in damages. The award
being binding on him under the Act, the performance of his
contract with the manager would become unlawful after the
award and therefore void under s. 56 of the Contract Act.
The employer would not, by carrying out the award, be
committing any breach of contract nor would he be liable in
damages. To hold that the dispute contemplated is an
industrial dispute, would not produce the absurd result
suggested. The reason suggested for not holding that
dispute to be an industrial dispute, therefore, fails.
Take another case. Suppose there was a dispute between
two employers A and B concerning the wage to be paid by B to
his workmen, A complaining that B was paying too high wages,
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and the dispute was referred for adjudication by a Tribunal
and an award was made that B should reduce the wages of his
workmen. Assume the workmen were not parties to the dispute
and were not made parties even if it was possible to do so.
The award would not be binding on the workmen concerned
under s. 18. None the less it cannot be said that the
dispute was not an industrial dispute. It completely
satisfies the definition of an industrial dispute even on
the basis that the words SC any person " mean only workmen.
So again it would appear that the words may include one on
1198
whom the award would not be binding.
I may add here, though I do not propose to decide the
question it being wholly unnecessary for the case before us,
that it seems to me that when a dispute concerns a person
whether a workman or not, who is riot a party to the
dispute, he can, under s. 18(b), be properly made a party to
appear in the proceedings arising out of that dispute. I
find nothing in that section to prevent such a course being
adopted. If he is made a party, there is no doubt that the
decision, whichever way it went, would be most satisfactory
to all concerned. If this is the right view, then all argu-
ments based on the fact that the words " any person " can
only include one on whom the award would be binding would
disappear, for on being made a party the award would be
binding on that person. It would on the contrary show that
it was intended that the words " any person " should include
one who is not a party to the dispute, and therefore not in
the workman class.
An argument based on s. 33 was also advanced. That is
this. The section provides that during the pendency of
conciliation proceedings or proceedings before a Tribunal in
respect of an industrial dispute the conditions of service
of workmen concerned in the dispute cannot be changed by the
employer, nor such workmen dismissed or otherwise punished
by him except with the permission of the Board or Tribunal.
It is said that this section shows that it was intended to
protect only workmen and therefore the words " any person "
in s. 2(k) should be understood as meaning workmen only. I
do not follow this argument at all. Section 33 gives
protection to workmen concerned in the dispute which can
only mean workmen who are parties to the dispute. A workman
concerning whom a dispute arises may or may not be a party
to the dispute. The object of the section is clear. If
workmen could be punished during the pendency of the
proceedings, then no workman would raise a dispute or want
to take part in the proceedings under the Act concerned with
its adjudication. Further, such punishment would surely
give rise to
1199
another dispute. All this would defeat the entire object of
the Act which is to compose disputes by settlement or
adjudication. Section 33 gives protection to workmen who
are parties to the dispute and does not purport to concern
itself with the person concerning whom the dispute arises.
Such being the position, the section can throw no light on
the meaning of the words "any person " in s. 2(k). Suppose
a workman was dismissed and thereupon a dispute arose
between the employer and the other workmen in employment
concerning such dismissal. Such a dispute would be
undoubtedly an industrial dispute. And it is none the less
so, though no protection can be given to the dismissed
workman under s. 33 for he is already dismissed.
Reference was also made to s. 36 which provides for the
representation of the parties to a dispute in a proceeding
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arising under the Act out of such dispute. Sub-section (1)
of s. 36 provides how a workman, who is a party, shall be
represented and sub-section (2) provides how an employer who
is likewise a party, shall be represented. The section does
not provide for representation of any other person. It is
said that this shows that the words " any person " must mean
only a workman, because they must mean an employee, past,
present or future and only such employees as are workmen can
be parties to the dispute under the definition. I am unable
to agree. Section 36 provides for the representation of
workmen besides employers and of no one else, because no one
but a party need be represented in the proceedings and under
the definition, a party to an industrial dispute must either
be an employer or a workman. This section has nothing to do
with the person concerning whom the dispute arises. If,
however, he is also a party to the dispute, then the section
makes a provision for his representation in the proceedings
arising out of that dispute as such a party and not as one
concerning whom the dispute has arisen. I have earlier said
that there may be a case in which though the person
concerning whom the dispute arises is a workman, still he
may not be a party to it. The fact that besides an em-
1200
ployer, the Act makes provision for the representation in
the proceedings arising out of an industrial dispute of
workmen alone does not show that an industrial dispute can
only arise concerning a workman. In my view, therefore s.
36 is of no assistance in finding out the meaning of the
words " any person ".
I come now to the last of the reasons advanced for
restricting the natural meaning of the words " any person ".
It is said that the word dispute in the definition shows
that the person raising it must have an interest in it and
therefore since the dispute must concern the employment,
non-employment, terms of employment or conditions of labour
of a person that person must be a workman. I confess I do
not follow the reasoning. It is said that this is the view
expressed by a Bench of the Bombay High Court consisting of
Chagla C. J. and Shah J. in Narendra Kumar Sen v. The All
India Industrial Disputes (Labour Appellate) Tribunal (1).
I have some difficulty in seeing that this is the view
expressed in that case. What happened there was that
certain workmen raised a dispute against their employer
which included a demand for fixing scales of pay and for
bonus not only for themselves but also for the foremen and
divisional heads under the same employers who were not work-
men and this dispute had been referred by the Government for
adjudication by the Industrial Tribunal. The Tribunal
refused to adjudicate the dispute in so far as it concerned
the pay and bonus of persons who were not workmen as,
according to it, to this extent it was not an industrial
dispute. The workmen then applied to the High Court for a
writ directing the Tribunal to decide the dispute relating
to the claims made for the pay and bonus of the persons who
were not workmen. The High Court held that the dispute was
not an industrial dispute and refused the writ. Chagla C.
J. expressed himself in these words (p. 130):
"A controversy which is connected with the employment or
non-employment or the terms of employment or with the
conditions of labour is an industrial controversy. But it
is not enough that it
(1) (1953) 55 Bom. L.R. 125.
1201
should be an industrial controversy; it must be a dispute;
and in my opinion it is not every controversy or every
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difference of opinion between workmen and employers which is
constituted a dispute or difference within the meaning of s.
2(k). A workman may have ideological differences with his
employer; a workman may feel sympathetic consideration for
an employee in his own industry or in other industry; a
workman may feel seriously agitated about the conditions of
labour outside our own country; but it is absurd to suggest
that any of these factors would entitle a workman to raise
an industrial dispute within the meaning of s. 2(k). The
dispute contemplated by s. 2(k) is a controversy in which
the workman is directly and substantially interested. It
must also be a grievance felt by the workman which the
employer is in a position to remedy. Both the conditions
must be present; it must be a grievance of the workman
himself; it must be a grievance which the employer as an
employer is in a position to remedy or set right. "
Then he said (p. 131):
" It is only primarily in their own employment, in their own
terms of employment, in their own conditions of labour that
workmen are interested and it is with regard these that,
they are entitled to agitate by means of raising an
industrial dispute and getting it referred to a Tribunal by
the Government under s. 10."
I find some difficulty in accepting all that the learned
Chief Justice said. But assume he is right. How does it
follow that because an industrial dispute is one in which
workmen must be interested it must be concerning themselves
? I do not see that it does. Neither do I find Chagla C. J.
saying so. In the case before him the dispute concerned
persons who were not workmen and he found on the facts
before him that the workmen were not interested in that
dispute and thereupon held that the dispute was not an
industrial dispute. But that is not saying that an
industrial dispute can only be a dispute concerning workmen.
Even the observations that I have read from p. 131 of the
report would not support this view. It is not
1202
difficult to conceive of a dispute concerning the employment
of a person who is not a workman which at the same time is
one which affects the conditions of labour or terms of
employment of the workmen themselves. I shall give examples
of such disputes later.. What I wish now to point out is
that even if an industrial dispute has to be one in which
workmen are interested, that would be no reason for saying
that it can only be a dispute concerning workmen and that
therefore the words " any person " in s. 2(k) must mean only
workmen. I also think it right to say now that this
argument is not really open to the respondent, for the
contention of the learned counsel for the respondent is, as
I have earlier stated, that the words " any person" do not
mean a workman only but mean all persons of the workman
class, or past, present and future workmen. Now I find
nothing in the judgment of Chagla, C. J. to show that
workmen can be interested in the workman class or in past or
future workmen. On the contrary be says that workmen are
interested primarily-and by the word " primarily " I think
he means, directly and substantially-only in their own
employment, terms of employment or conditions of labour.
Reliance on the judgment of the Bombay High Court will
therefore land the respondent in contradiction.
I find great difficulty in saying that it is a condition of
the existence of an industrial, dispute that workmen must be
interested in it. The Act does not say so. But it is said
that the word dispute in the definition implies it. No
doubt, one does not raise a dispute unless he is interested
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in it, and as the Act must be taken to have in contemplation
normal men it must have assumed that workmen will not raise
a dispute unless they are interested in it. But that is not
to my mind saying that it is a condition of an industrial
dispute as contemplated by the Act that workmen must be
interested in it. So to hold would, in my opinion, lead to
grave difficulties and might even result in defeating the
object of the Act. This I will endeavour to show presently.
What I have to say will also show that even assuming that an
industrial
1203
dispute is one in which workmen have to be interested, the
dispute that we have in this case concerning Dr. Banerjees
dismissal is an industrial dispute for the appellant workmen
are directly and substantially interested in it.
The question that first strikes me, is what is the 2
interest which workmen must have? I find it impossible to
define that interest. If it cannot be defined, it cannot of
course be made a condition of the existence of an industrial
dispute, for we would then never know what an industrial
dispute is. Now, " interest ", as we understand that word
in courts of law, means the well-known concepts of
proprietary interest or interest in other recognised civil
rights. Outside these the matter becomes completely at
large.and well nigh impossible of definition. To say that
the interest that the workmen must have is one of the well-
known kinds of interest mentioned above is, to my mind, to
make the Act largely infructuous. We cannot lose sight of
the fact that the Act is not dealing with interest as
ordinarily understood. It cannot be kept in mind too well
that the Act is dealing with a new concept, namely, that of
the relation between employer and employed or to put it more
significantly, between capital and labour, a concept which
is undergoing a, fast and elemental change from day to day.
The numerous and radical amendments made in the Act since it
came on the Statute book not so long ago, testify to the
fast changing nature of the concept. Bearing all these
things in mind, I find it almost impossible to define
adequately or with any usefulness an interest which will
serve the purposes of the Act. I feel that an attempt to do
so will introduce a rigidity which will work harm and no
good. Nor does it, to my mind, in any manner help to define
such interest by calling it direct and substantial.
I will illustrate the difficulty that I feel by an example
or two. Suppose a workman was dismissed by the employer and
the other workmen raised a dispute about it. Such a dispute
comes completely within the definition even assuming that
the words
153
1204
"any person " only refer to persons of the workman class, as
the respondent contends. There is therefore no doubt that
such a dispute is an industrial dispute. The question then
is what interest have the disputing workmen in the
reinstatement of the dismissed work man if they must have an
interest ? The reinstatement would not in any way improve
their financial condition or otherwise enhance any interest
of theirs in any sense of the term, in common use. The only
interest that I can think of the workmen having for
themselves in such a dispute is the solidarity of labour.
It is only this that if the same thing happens to any one of
them, the others would rally round and by taking up his
cause prevent the dismissal. Apart from the Act how would
the workmen have prevented the dismissal from taking effect
? They would have, if they wanted to prevent the dismissal,
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gone on strike and thereby tried to force the employers
hands not to give effect to the dismissal. That would have
destroyed the industrial peace which the object of the Act
is to preserve. It is in order to achieve this object that
the Act recognises this dispute as an industrial dispute and
provides for its settlement by the methods of conciliation
or adjudication contained in it and preserves the industrial
peace by preventing the parties being left to their own
devices. If what I have described as solidarity of labour
is to be considered as direct and substantial interest for
the purposes of an industrial dispute, as I conceive is not
disputed by any one, then it will appear that we have
embarked on a new concept of interest. I will now take
another case which in regard to interest is the same as the
previous one. Suppose the employer engages some workmen at
a low rate of wages and the other workmen raise a dispute
demanding that the wages of these low paid workmen be
increased. This case would be completely within the
definition of an industrial dispute even according to the
most restricted meaning that may be put upon the words "any
person ", namely that they refer only to work. men as
defined in the Act, because the dispute concerns the terms
of employment of such a workman.
1205
So this has admittedly to be held to be an industrial
dispute. What then is the interest of the workmen in this
dispute ? The increase in the wages claimed would not in any
manner improve the financial condition of the disputing
workmen, nor serve any of their interests as ordinarily
understood. It would however help the workmen in seeing
that their own wages were not reduced by preventing the
employer from being able to engage any low paid workman at
all. Apart from this I can think of no other interest that
the disputing workmen may have in the dispute. If therefore
it is essential that the disputing workmen must have an
interest in the dispute, this must be that interest, for, as
already stated, the dispute is undoubtedly an industrial
dispute.
If this is sufficient interest to constitute an industrial
dispute I fail to see why the workmen have no sufficient
interest in a dispute in which they claim that a foreman who
is particularly rude and brutal in his behaviour should be
removed and they should have a more human foreman. This is
surely a matter in which the workmen raising the dispute
have a personal and immediate interest and not, as in the
last case, an interest in the prevention of something
happening in future, which conceivably may never happen at
all. Such an interest is plainly nearer to the ordinary
kinds of interest than the interest in solidarity of labour
or in the prevention of future harm which in the preceding
paragraphs have been found to be sufficient to sustain an
industrial dispute. The dispute last imagined would
undoubtedly be an industrial dispute if the foreman was a
workman for then it would be entirely within the definition
of an industrial dispute. Now suppose the foreman was not a
workman. Can it be said that then the dispute would not be
an industrial dispute ? Would the interest of the workmen in
the dispute be any the less or in any way different because
the foreman whose dismissal was demanded was not a workman ?
I conceive it impossible to say so. Therefore if interest is
the test, the dispute that I have imagined would have to be
held to be an industrial dispute whether or not
1206
the foreman concerned was a workman.
Now assume that the dispute did not arise out of a demand
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for the dismissal of a foreman but against his dismissal on
the ground that he was a particularly kind and sympathetic
man and the workmen were happy to work under him. In such
a case the interest of the workmen in the dispute would be
the same as their interest in the dispute demanding the
foremans dismissal. They would be demanding his reinstate-
ment in their own interest; they would be demanding it to
make sure that their work would be easy and smooth and that
they would be happy in the discharge of it. Such a dispute
therefore also has to be held to be an industrial dispute
and as in the last case, it would make no difference for
this purpose that the foreman concerned was not a workman.
If this is right, as I think it is, then similarly the
dispute concerning the dismissal of Dr. Banerjee would be an
industrial dispute for the workmen have sufficient personal
and immediate interest in seeing that they have a doctor of
their liking to look after them. It is indeed the case of
the workmen that by his devotion to duty and good behaviour
Dr. Banerjee became very popular with the workmen. Whether
the contention of the workmen is justified or not and
whether it would be upheld by the Tribunal or not, are
wholly different matters and do not affect the question
whether in an industrial dispute the work. men must be
interested. It is enough to say that I find no reason to
think that the appellant had no interest in the dispute
concerning the dismissal of Dr. Banerjee. Therefore, I
would hold that even if it is necessary to constitute an
industrial dispute that workmen must have an interest in it,
the dispute before us is one in which the appellants have a
direct and substantial interest and it is an industrial
dispute.
For myself however I would not make the interest of the
workmen in the dispute a condition of the existence of an
industrial dispute. The Act does not do so. I repeat that
it would be impossible to de no
1207
such interest. In my view, such a condition would defeat
the object of the Act. It is said that otherwise the
workmen would be able to raise disputes in which they were
not interested. Supposing they did, the Government is not
bound to refer such disputes for adjudication. Take a
concrete case. Suppose the workmen raise a dispute that the
manager of the concern should have a higher pay. It would
be for the Government to decide whether, the dispute should
be referred for adjudication or not. The Government is not
bound to refer. Now, how is the Government to decide ? That
must depend on the Governments evaluation of the situation.
That this is the intention is clear from the object that the
Act has in view. I will here read from the judgment of the
Federal Courtin Western India Automobile Association case(1)
what the object of the Act is. It was said at PP. 331-332.
" We shall next examine the Act to determine its scope. The
Act is stated in the preamble to be one providing for the
investigation and settlement of industrial disputes. Any
industrial dispute as defined by the Act may be reported to
Government who may take such steps as seem to it expedient
for promoting conciliation or settlement. It may refer it
to an Industrial Court for advice or it may refer it to an
Industrial Tribunal for adjudication. The legislation
substitutes for free bargaining between the parties a
binding award by an impartial tribunal. Now, in many cases
an industrial dispute starts with the making of number of
demands by workmen. If the demandsare not acceptable to the
employer-and that is what often happens-it results in a
dismissal of the leaders and eventually in a strike. No
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machinery for reconciliation and settlement of such disputes
can be considered effective unless it provides within its
scope a solution for cases of employees who are dismissed in
such conditions and who are usually the first victims in an
industrial dispute. If reinstatement of such persons cannot
be brought about by
(1) [1949] F.C.R- 321.
1208
conciliation or adjudication, it is difficult, if not im-
possible, in many cases to restore industrial peace which is
the object of the legislation ".
This is the view of the object of the Act that is accepted
by all including the decisions in Narendra Kumar Sens
case(2) and United Commercial Bank case (2). In Narendra
Kumar Sens case (1) Chagla C. J.
said at p. 130:
"The Industrial Disputes Act was enacted, as Mr. Desai
rightly says, to bring about industrial peace in the
country, to avoid conflicts between employers and labourers,
to prevent strikes and lock-outs, to see that the production
in our country does not suffer by reason of constant and
continuous labour troubles ". Therefore in deciding whether
to refer or not, the Government is to be guided by the
question whether the dispute is such as to disturb the
industrial peace and hamper production. I find no
difficulty in thinking that the Government would realise
that there was no risk of the peace being disturbed or
production being hampered by the dispute raised by the work-
men demanding a higher salary for the manager, for being
normal men the workmen were not likely to suffer the
privations of a strike to enforce their demand for a cause
of this nature. The Government must be left to decide this
primary question for itself, and therefore the Government
must be left to decide in each case whether the workmen had
sufficient interest in the dispute. If Government thought
that the workmen had no such interest as would lead them to
disturb industrial peace by strike or otherwise if the
dispute was not ended, the Government might not in its
discretion refer the dispute for adjudication by a tribunal.
It must be left free to decide as it thinks best in the
interest of the country. It is not for the Court to lay
down rigid principles of interest which interfere with the
Governments discretion, for that might defeat the object of
the Act. If the Government feels that the dispute is such
that it might lead to the disruption of industrial peace, it
is the policy of the Act that it should exercise its powers
under it
(1) (1953) 55 Bom. L.R. I25
(2) [1952] L.L.J. 782.
1209
to prevent that. Assume a case in which the workmen raised
a dispute without having what the court considers sufficient
interest to make it an industrial dispute and therefore, on
the matter coming to the court the dispute was held not to
be an industrial dispute. Upon that the Governments hands
would be tied and it would not be able to have that dispute
resolved by the processes contemplated in the Act. Suppose
now that, the workmen then go on strike and industrial peace
is disturbed and production hamper. ed. The object of the
Act would then have been defeated. And why ? Because it was
said that it was not a dispute in which the workmen were
interested and therefore not a dispute which was capable of
being adjusted under the provisions of the Act. It would be
no answer to say that the workmen would not go on strike in
such a case. If they would not, neither would the
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Government refer the dispute for adjudication under the Act
and it would not be necessary for the court to decide
whether the workmen were interested in the dispute or not or
whether the dispute was an industrial dispute or not.
Therefore, I think that it is not necessary to say that a
dispute is an industrial dispute within the meaning of the
Act only when workmen are interested in it. Such a test of
an industrial dispute would make it justiciable by courts
and also introduce a rigidity in the application of the Act
which is incompatible with the fast changing concepts it has
in view and so defeat the object of the Act. It is enough
to assume that as normal men, workmen would not raise a
dispute or threaten industrial peace on account of it unless
they are interested in it.
I wish however to make it clear, should any, doubt exist as
to this, that I do not intend to be understood as saying
that the question whether a dispute is an industrial dispute
or not is never justiciable by courts of law and that a
dispute is an industrial dispute only if the Government says
so. Such a larger question does not arise in this case.
All that I say is that it is not a condition of an
industrial dispute that workmen must be interested in it and
no question of interest
1210
falls for decision by a court if it can be called upon to
decide whether a dispute is an industrial dispute or not.
The question of interest can only be of practical value in
that it helps the Government to decide whether a dispute
should be referred for adjudication or not.
Then it is said that if workmen were allowed to raise a
dispute concerning a person who was not a workman, then it
would be possible for such a person to have his dispute with
the employer adjudicated through the workmen. This case was
put. Suppose the manager wanted his salary to be increased
but could not make the employer agree to his demand, he
could then instigate the workmen and make them raise a
dispute that his salary should be increased and if such a
dispute is an industrial dispute and the award goes in
favour of the workmen then the result would be that the Act
could be used for settling disputes between the manager and
his employer, a dispute which the Act did not intend to
concern itself with. So it is said that the words " any
person" in s. :2 (k) cannot include an employee who is not a
work. man. I am unable to agree. First, in interpreting an
Act, the Court is not entitled to assume that persons would
use its provisions dishonestly. The words in the Act cannot
have a different meaning than their natural meaning because
otherwise there would be a possibility of the Act being used
for a purpose for which it was not meant. The remedy
against this possibility is provided in the Act, in that it
has given complete freedom to the Government not to refer
such a dispute. It is not necessary to meet a somewhat
remote apprehension that the Act may be used for purposes
other than those for which it was meant, to construe its
language in a manner different from that which it plainly
bears,. Lastly, in doing this many cases like Chose
-earlier mentioned including the present, which are clearly
cases of industrial disputes would have to be excluded in
the attempt to prevent by interpretation a remote
apprehension of a misuse of the Act. This would do more
harm than good.
1211
1 have therefore come to the conclusion that a dispute
concerning a person who is not a workman may be an
industrial dispute within s. 2 (k). As it has not been said
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that the dispute with which we are concerned is for any
other reason not an industrial dispute, I hold that the
Industrial Tribunal had full jurisdiction to adjudicate that
dispute and should have done so.
I would therefore allow the appeal and send the case back to
the Industrial Tribunal for adjudication in accordance with
law.
ORDER OF THE COURT.
In view of the opinion of the majority, the appeal is
dismissed. But there will be no order as to costs.
Appeal dismissed.