Patna High Court
The Managing Director, Indian Oil ... vs C.D. Singh And Ors. on 25 January, 1972
Equivalent citations: (1972)IILLJ395PAT
JUDGMENT U.N. Sinha, C.J.
1. The petitioners have filed this writ application under Articles 226 and 227 of the Constitution of India, praying that the orders of the Presiding Officer, Labour Court, Ranchi (respondent No. 2), dated the 2nd March, 1970, 30th March, 1970 and 11th June, 1970, contained in Annexures 9, 11 and 13 respectively, passed in B.S. Case No. 23 of 1969, be quashed by a writ of certiorari. The petitioners have also prayed that CD. Singh (respondent No. 1) or the other respondents may be prohibited by a writ of mandamus from enforcing any of the rights conferred by Annexure 13. According to the learned Counsel for the petitioners, he is praying for a writ of prohibition also, questioning the jurisdiction of the Labour Court, in view of an additional ground added to paragraph 18 of the writ application by a petition filed on the 7th August, 1970.
2. The relevant facts are as follows: It is stated that respondent No. 1 was a Sales Officer under the Indian Oil Corporation Limited, working at Ranchi, until he was dismissed from service by the Corporation by a letter dated the 3rd September, 1969. The said respondent had been charge-sheeted for various acts of misconduct in January, 1969 and he was given seven days' time to submit his written explanation to the charges levelled against him. Respondent No. 1 has submitted his reply to the charge-sheet in February, 1969. The explanation not having been found satisfactory, an inquiry committee, consisting of three persons, was formed. The committee had met in March and April, 1969, and had held an inquiry in presence of respondent No. 1 and found him guilty of certain charges levelled against him and submitted its report to that effect. Thereupon, the branch manager of the Corporation (petitioner No. 2) considered the report and. the connected paper and dismissed respondent No. 1 on 3rd September, 1969, as stated above. According to the writ application, respondent No. 1 made an application under the Industrial Disputes Act, 1947, before the Assistant Labour Commissioner; Patna, claiming cancellation of the dismissal order and reinstatement. A copy of this application has been given as Annexure 4. Thereafter, the Government of Bihar, in the Department of Labour and Employment, by a letter dated the 11th October, 1969, asked the Corporation authorities to appear before the Joint Commissioner of Labour, Bihar, on 3rd November, 1969, for a conciliation proceeding. A copy of this letter has been marked as Annexure 5. It is stated that pursuant to this notice given, the representatives of the Corporation attended the conciliation proceedings before the Joint Labour Commissioner, Bihar and submitted a written explanation also. It is stated that the conciliation failed and thereafter the Government of Bihar, by a notification dated the 31st March, 1970, referred the following dispute for adjudication to the Industrial Tribunal, Bihar, Patna:
Whether the dismissal of Shri C.D. Singh, Sales Officer at Patna, is proper and justified ? If not, is he entitled to reinstatement and/or any other relief?
The Industrial Tribunal reference was, in due course, numbered as Reference Case No. 10 of 1970. According to the petitioners, while the matter was still under conciliation, respondent No. 1 had filed an application on 15th December, 1969, under Section 26(2) of the Bihar Shops and Establishments Act, 1953, before the Presiding Officer, Labour Court, Ranchi, which was received by the Labour Court on the 18th December, 1969. The case was registered as B.S.E. Complaint No. 23 of 1969. A copy of the application has been given as Annexure 8. According to the petitioners, this complaint had been filed beyond time and by an ex parte order, dated the 2nd March, 1970, the Labour Court had condoned the delay and had issued notice to the petitioners to show cause in the main case. This is one of the impugned orders dated the 2nd March, 1970, incorporated in Annexure 9. On receipt of notice, the petitioners had objected to the ex parte order, dated the 2nd March, 1970, condoning delay and asked that the order be recalled and an opportunity given to the petitioners to contest the point of limitation. This objection was rejected by order, dated the 30th March, 1970 and this is the second impugned order, incorporated in Annexure 11. Thereafter, the petitioners made a further application on 25th April, 1970, for setting aside or rejecting the application made under Section 26(2) or for staying it, mainly on the following grounds:
(a) Another proceeding for the same cause of action was pending before the Industrial Tribunal, Bihar, Patna, pursuant to an order made under Section 10 of the Industrial Disputes Act by the Government of Bihar.
(b) Two parallel judicial proceedings for same cause of action should not be allowed to continue.
(c) The applicant (C. D. Singh) had failed to disclose sufficient grounds for not making the application within time.
(d) No notice of hearing of the application for condonation of delay had been served upon the petitioners.
A copy of this application has been given as Annexure 12. This application was rejected by the third impugned order, dated the 11th June, 1970, incorporated in Annexure 13. According to the Presiding Officer, Labour Court, Ranchi, the employer-company will be at liberty to re-open the question of limitation at the time of the final hearing of the case, in spite of the ex parte order of condonation of delay and this question ought not to be decided piecemeal. On the main point of staying the proceeding under the Bihar Act, the Presiding Officer came to the conclusion, that there was no provision either in the Industrial Disputes Act, 1947 (Central Act No. 14 of 1947) or in the Bihar Shops and Establishments Act, 1953 (Bihar Act No. 8 of 1954) or in any other law, providing for stay of proceedings under the Bihar Shops and Establishments Act, 1953. It may be mentioned, at this stage, that the main point argued on behalf of the company, before the Labour Court, was that as present respondent No. 1 had made a representation of his case for conciliation under the Industrial Disputes Act, 1947, earlier than filing the complaint under the Bihar Shops and Establishments Act, 1953, the complaint was incompetent, in view of Rule 21(2) of the Bihar Shops and Establishments Rules. This argument was, however, rejected.
3. I shall mention now the main points which have been taken in the original writ application. The first point mentioned in the writ application is that the question of limitation for filing the complaint under the Bihar Act should have been decided first, after hearing the employer-company. The second point taken is that as the present respondent No. 1 has asked for the same relief before two competent Courts, he must be made to elect his remedy, or otherwise there may be conflicting decisions in the two Courts. The next point taken is that as respondent No. 1 had invoked the jurisdiction of the authorities under the Industrial Disputes Act, 1947, before filing his complaint under the Bihar Act, the Labour Court, considering the shops and establishment case, was bound to stay the proceedings pending before it until the Tribunal under the Industrial Disputes Act had decided the reference. It will be clear hereafter that the main point which has been argued in the case by the learned Counsel for the petitioner was not taken in the original writ application. As indicated above, the new point has been added by a supplementary petition. It is mentioned therein that by mistake a ground assailing the maintainability of respondent No. 1's petition before the Labour Court had not been taken in the original writ application and the point was as follows:
Because, with the amendment and insertion of Section 2-A in the Industrial Disputes Act, 1947 by Central Act (Act 35 of 1965) the legislative field has been fully occupied by Parliamentary enactment and Sections 25 and 26 of the State enactment under the Bihar Shops and Establishments Act in so far as the provisions thereof come in conflict with the later permanent legislation by Parliament have become inoperative and consequently, the respondent Labour Court has no jurisdiction to entertain the petition tiled by respondent No. 1.
4. Respondent No. 1 has filed a counter-affidavit to the following effect. It is contended therein that the charges framed against this respondent, culminating in his dismissal, were baseless. According to the respondent, the inquiry held against him was not conducted properly, as he had not been afforded proper opportunity of defence. The order of dismissal had been passed by an authority who was not the appointing authority and, as such, the order was invalid. Referring to Annexure 4 sent to the Assistant Labour Commissioner, Patna, it has been stated that there is no provision in the Industrial Disputes Act for making an application to the Assistant Commissioner of Labour and so this application was not a statutory application under that Act. Referring to the complaint filed under Section 26 of the Bihar Shops & Establishments Act, it is stated that the complaint was not made during the pendency of a conciliation proceeding, as the conciliation proceeding had concluded on 10th November, 1969. According to this respondent, the delay in filing the complaint before the Labour Court, Ranchi, had been rightly condoned by Annexure 9 and without prejudice to the right of the management to challenge this matter at the time of the hearing of the complaint petition. The two proceedings, one before the Industrial Tribunal, and the other before the Labour Court, Ranchi, are supported as valid proceedings under appropriate law. Doctrine of election is said to be inapplicable in the present case. It is contended that, when this respondent had filed his complaint under the Bihar Act in December, 1969, no proceeding was pending before the Industrial Tribunal, which is clear from the fact that the reference made to it by the Government of Bihar was made in March, 1970. It is contended that the insertion of Section 2-A in the Industrial Disputes Act, 1947, has not rendered inoperative Sections 25 and 26 of the Bihar Shops and Establishments Act and there is no conflict in the two provisions of law. The last point taken in this counter-affidavit is that the writ petitioners are trying to defeat the reference under the Industrial Disputes Act as not maintainable and that, at the same time, trying to get the case under the Bihar Shops & Establishments Act dismissed on the ground of pendency of the reference, (The last point has been clarified on behalf of respondent No. 1 by a petition filed during the hearing of the case, quoting a paragraph filed by the employer-company in the reference, stating that present respondent No. 1 was not "a workman" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The grounds on which the employer-company had taken this point have been quoted in this supplementary petition, the substance of which was that present respondent No. 1 was occupying a position of managerial/supervisory character in the Corporation drawing, at the relevant time, a salary in the scale of Rs. 400-950, his last basic salary in that scale being Rs. 460, in addition to which he was drawing Rs. 164 per month as dearness allowance and getting house rent allowance of Rs. 69 per month. Thus, his total salary was Rs. 693).
5. A counter-affidavit has also been filed on behalf of the State of Bihar (respondent No. 3) to the following effect; it is contended that the general purpose and scope of the Industrial Disputes Act is Investigation and settlement of industrial disputes, while the scope of the Bihar Act is regulation of conditions and work of employees in shops and other establishments. It is contended that, therefore, the fields occupied by the two Acts are different and there is no repugnancy between the two pieces of legislation. It is mentioned that the Industrial Disputes Act merely authorises the appropriate Government to make a reference while the Bihar Act gives a legal right to the concerned employee to obtain relief secured to him by this Act. It may be stated, at this stage, that, by a supplementary counter-affidavit, respondent No. 1 has stated that reference No. 10 of 1970 has been ordered to be transferred from the Industrial Tribunal, Bihar, Patna to the Labour Court, Chotanagpore Division, Ranchi, where the complaint under the Bihar Shops & Establishments Act is pending. This order, passed by the Government of Bihar, has given rise to another writ application, numbered as Civil Writ Jurisdiction Case No. 468 of 1971, in which the order of transfer has been stayed by This Court.
6. The main contention raised by Shri Balbhadra Prasad Singh, on behalf of the petitioners, is based on insertion of Section 2-A of the Industrial Disputes Act, 1947, by Central Act No. 35 of 1965 from 1st December, 1965. It is argued that, after Section 2-A of the Industrial Disputes Act, 1947, came into force, Section 26 of the Bihar Shops and Establishments Act, 1953 (Bihar Act No. 8 of 1954), became repugnant to a provision of law made by Parliament and became void within the meaning of Article 254 of the Constitution of India, Henceforth, the Industrial Disputes Act, 1947, will be referred to as the Central Act, and the Bihar Shops and Establishments Act, 1953, will be referred to as the Bihar Act. It will be necessary to quote Section 2-A of the Central Act, Section 26 of the Bihar Act, as it now stands, and Article 254 of the Constitution of India. Section 2-A reads as follows:
Dismissal, etc., of an individual workman to be deemed to be an industrial dispute. Where any employer discharges, dismisses, retrenches or otherwise terminates the service of an individual workman, any dispute or difference between the workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
Section 26 of the Bihar Act, as it now stands, reads as follows:
(1) No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than six months except for a-reasonable cause and without giving such employee at least one month's notice or one month's wages in lieu of such notice:
Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an inquiry held for the purpose.
(2) Every employee so dismissed or discharged may make a complaint in writing, in the prescribed manner, to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge on one or more of the following grounds, namely:
(i) there was no reasonable cause for dispensing with his services; or
(ii) no notice was served on him as required by Sub-section (1); or
(iii) he had not been guilty of any misconduct as held by the employer.
(3) Notwithstanding anything contained in Sub-section (2) where the order of dismissal or discharge was received by an employee at any time before the commencement of the Bihar Shops and Establishments (Amendment) Act, 1959, he may make a complaint in writing in the prescribed manner before the prescribed authority within sixty days of the commencement of the said Act:
Provided that such complaints, if any, pending before an authority prescribed prior to the commencement of the said Act shall be deemed to have been duly filed before the authority prescribed after such commencement and the said authority shall dispose of the same in accordance with the provisions of this Act.
(4) The prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the application within the prescribed time.
(5) (a) The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such inquiry as it may consider necessary pass orders giving reasons therefor.
(b) In passing such order the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both.
(6) The decision of the prescribed authority shall be final and binding on both the employer and employee.
Article 254 of the Constitution runs thus:
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
As the earliest case of This Court dealt with original Section 26 of the Bihar Act, which has now been replaced by the present section by Bihar Act 26 of 1959 (which came into force on 25th November, 1959) it will be convenient to quote old Section 26 of the Bihar Act at this stage.
(1) No employer shall discharge from his employment any employee who has been in such employment continuously for a period of not less than six months except for a reasonable cause and without giving such employee at least one month's notice or one month's wages in lieu of such notice:
Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government supported by satisfactory evidence recorded at an inquiry held for the purpose.
(2) Every such employee shall have a right of appeal to such authority and within such time as may be prescribed either on the ground that-
(i) there was no reasonable cause for dispensing with his services, or
(ii) no notice was served on him as required by Sub-section (1), or
(iii) he had not been guilty of any misconduct as held by the employer.
(3) The decision of the appellate authority shall be final and binding on both the employer and employee.
Furthermore, in the earliest decision of This Court, reference has been made to items Nos. 22, 23 and 24 of list III (Concurrent List) of the Seventh Schedule of the Constitution of India. These are also reproduced below:
22. Trade unions industrial and labour disputes.
23. Social security and social insurance ; employment and unemployment.
24. Welfare of labour including conditions of work, provident funds, employers' liability, workmen's compensation, invalidity and old age pensions and maternity benefits.
According to the learned Counsel for the petitioners, after Section 2-A of the Central Act came into force, the Parliament has covered the whole field of industrial disputes, including the disputes that can be raised by a single workman, as specified in that section. It is urged that the Central Act, as it now stands, is a complete and exhaustive code in respect of employees in an industrial establishment and, therefore, the State law incorporated in Section 26 of the Bihar Act must be considered to be void now on account of repugnancy. Before I deal with these contentions raised by the learned Counsel, it will be appropriate, at this stage, to consider the attack which had been made on original Section 26 of the Bihar Act, successfully. This will be relevant, as the decisions dealing with this point had made reference to the Central Act also and so it will have to be decided now, whether all observations made with respect to the Bihar Act vis-a-vis the Central Act are out of the way, by incorporation of Section 2-A in the Central Act. The first case of This Court, to which our attention is drawn, is the case of Jugal Kishore Bhadani v. Labour Commissioner, Bihar, . Amongst many of the contentions raised in the case on behalf of the petitioner, it had been argued before This Court that the appellate authority had been given unlimited and uncontrolled power and on this point This Court held as follows:
Thus, this appellate authority is really a Tribunal of first instance. The order that it may pass is not, however, subject to the test of any appellate authority or in a civil Court as Sub-section (3) of that section provides that the decision of the appellate authority shall be final and binding on both the employer and the employees. Thus, if the grievance is made by an employee against the order of discharge by the employer, the Act has made provision for the redress of that grievance by an, authority and the order of that authority becomes final and binding on the employer without giving him any right to go up in appeal against the order of that authority or to question the same for any judicial determination.
That, in my opinion, is a great lacuna in the Act and the restrictions imposed cannot be held to be reasonable. This view is borne out by the authority of the Supreme Court in Sri Jagannath Ramanuj Das v. The State of Orissa . In that case, certain sections of the Orissa Hindu Religious Endowments Act of 1939, as amended by the amending Act of 1952, were sought to be declared unconstitutional. Sections 38 and 39 of that Act related to the framing of a scheme, but the scheme had to be framed not by a civil Court or under its supervision but by a Commissioner who is a mere administrative or executive officer.
There was also no provision for an appeal against the order to the Court. There was indeed a provision in the earlier Act in Sub-section (4) of Section 39 allowing the trustee or any person having an interest in the institution to file a suit in a civil Court to modify or set aside an order framing a scheme and Section 40 provided that the order made under Section 39 could be final only subject to the result of such suit. Sub-section (4) of Section 39 was deleted by the Amending Act of 1952 and a new Sub-section (4) was added according to which the order passed by the Commissioner became final and conclusive.
Their Lordships held that the settling of a scheme in regard to the religious institution by an executive officer without the intervention of any judicial Tribunal amounts to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office, and Sections 38 and 39 were, therefore, held to be invalid.
It has, however, been contended by the learned Government Pleader that Section 39 of the Act read with Section 30 of the Workmen's Compensation Act, 1923 (Act VIII of 1923) gives a right to the employer to prefer an appeal in the High Court. Section 39 of the Act runs as follows:
Workmen's Compensation Act 1928, to apply to persons employed in the establishment to which this Act applies.-The provisions of the Workmen's Compensation Act, 1923 (VIII of 1923), and of rules made thereunder, shall mutatis mutandis apply to every person employed in an establishment under this Act.
Section 30 of the Workmen's Compensation Act provides for an appeal to the High Court from certain orders of a Commissioner appointed under that Act. A reading of the above two sections, in my opinion, makes the position of the respondents all the more worse. Under Section 30 of the Workmen's Compensation Act there is a right of appeal to the High Court and by Section 39 of the Act that right, if the argument of the learned Government Pleader is accepted, is given to every person employed in an establishment under the Act. Therefore, according to the above reading, an employee is given a right to appeal to the High Court against the order of the appellate authority under the Act.
But no such right is given to the employer. Thus, if the argument of the learned Government Pleader is accepted, Sub-sections (2) and (3) of Section 26 of the Act become all the more un-constitutional.
In this case, Sub-sections (2) and (3) of Section 26 of the Bihar Act were declared to be unconstitutional and illegal. (It may be mentioned, at this stage, that the Bihar Act, including original Section 26, had received the assent of the President of India, whereas Bihar Act 26 of 1959, which has brought in the present Section 26 of the Bihar Act, has not been assented to by the President). Incidentally, it may be mentioned that in Jugal Kishore Bhadani's case This Court had stated that original Section 26(2) of the Bihar Act was covered by items 23 and 24 of the Concurrent List. In view of this decision of the Court, Section 26 of the Bihar Act was re-enacted in its present form. In 1961 and 1962, the present Section 26 was again challenged in a batch of cases, in the case of Jagdish Vastralaya v. State of Bihar . The common question of law argued in these cases was whether the provisions of the present Section 26 of the Bihar Act were constitutionally valid or not. A Bench of This Court held thus:
I pass now to consider the contention of the petitioners under the Amending Act (Bihar Act 26 of 1959) is repugnant to certain provisions of the Industrial Disputes Act (Central Act 14 of 1947), the Industrial Employment (Standing Orders) Act (Central Act 20 of 1946) and the Payment of Wages Act (Central Act 4 of 1936). It was submitted that the provisions of Section 26 of Bihar Act 8 of 1954 as amended are repugnant to Sections 10, 16 and 33A of the Industrial Disputes Act (Central Act 14 of 1947). It was also contended that the Bihar Act is repugnant to Sections 2(g), 3(I), and 10 of the Industrial Employment (Standing Orders) Act (Central Act 20 of 1946) and Section 15 of the Payment of Wages Act (Central Act 4 of 1936). It was also pointed out by learned Counsel on behalf of the petitioners that the Amending Act, namely, Bihar Act 26 of 1959, did not receive the assent of the President, though the parent Act received such assent, and, therefore, the provisions of. Section 26(1) of the Bihar Act after the amendment must be held to be void and inoperative, I see no warrant for accepting this submission.
In my opinion there is no repugnancy between the provisions of Bihar Act 8 of 1954, as amended by Bihar Act 26 of 1959 and those of the Industrial Disputes Act, the Industrial Employment (Standing Orders) Act, and the Payment of Wages Act, namely, Central Acts 14 of 1947, 20 of 1946 and 4 of 1936. It is manifest that the subject-matter of the Bihat Act is different from the subject-matter of the Central Acts and the field of operation is distinct and separate. In my opinion there is no actual collision or conflict between Section 26 of the Bihar Act with any provision of the Central Acts already referred to, and there is no question of any repugnancy arising within the meaning of Article 254(1) of the Constitution. In this connection it is necessary to emphasise that whenever a question is raised whether the State legislation is repugnant to the Central law, the onus of showing its repugnancy and the extent to which it is repugnant lies on the party attacking the validity of the State legislation, and, furthermore, the repugnancy must exist in fact, and not depend on a mere possibility. The meaning of repugnancy of legislation has been discussed in Australian cases. In Attorney-General for Queensland v. Attorney-General for the Commonwealth (1915) 20 Com. W.L.R. 148 at p. 178, Higgins, J. said:
What does 'repugnant' mean ? I am strongly inclined to think that no colonial Act can be repugnant to an Act of the Parliament of Great Britain unless it involves, either directly or ultimately, a contradictory proposition-probably, contradictory duties or contradictory rights.
Again, in Clyde Engineering Co. Ltd. v. Cowbum (1926) 37 Com. W.L.R 466, the learned Judge observed;
When is a law 'inconsistent' with another law? Etymologically, I presume that things are inconsistent when they cannot stand together at the same time; and one law is inconsistent with another law when the command or power or other provision in one law conflicts directly with the command or power or provision in the other. Where two Legislatures operate over the same territory and come into collision, it is necessary that one should prevail; but the necessity is confined to actual collision, as when one Legislature says 'do' and the other says 'don't'.
According to Griffith, C.J., 'the test of inconsistency is, of course, whether a proposed Act is consistent with obedience to both directions.' The opinion of the majority (Knox C.J. and Gavan Duffy, J., with the concurrence of Isaacs, J.,) was:
Two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes may do more than impose duties; they may, for instance, confer rights; and one statute is inconsistent with another when it Jakes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it.
Applying this principle to the present case it is manifest that there is no inconsistency between the provisions of Section 26 of the Bihar Act after its amendment and the Central Acts, to which I have already made reference and, in my opinion, learned Counsel for the petitioners has not made good his submission on this aspect of the case.
For the reasons I have already expressed I reject the constitutional argument addressed on behalf of the petitioners and hold that the provisions of Section 26 of Bihar Act 8 of 1954 as amended by Bihar Act 26 of 1959 are constitutionally valid.
In one of these cases, a special point had arisen apart from the common question of law, based on an order of condonation of delay made by the Labour Court in permitting the filing of a delayed complaint. This case had travelled up to the Supreme Court in the case of Caltex (India) Limited v. Presiding Officer, Labour Court, Paina 1966-II L.L.J. 137 : . The Supreme Court's judgment states that the appellant before the Court, the petitioner in the High Court, bad also attacked the validity of Section 26 of the Bihar Act and that a number of other petitioners had also done the same in the High Court. The Supreme Court mentioned that all the writ petitions filed in the High Court had been heard together and Section 26 of the Bihar Act had been held to be constitutionally valid. Thereafter, it appears from the judgment of the Supreme Court that only the proviso to Section 26(1) of the Bihar Act was challenged before the Supreme Court on the ground that the proviso suffered from the vice of excessive delegation and should be struck down. This contention was rejected. The order of the Labour Court condoning the delay was also raised, it appears from the judgment, but the Supreme Court stated that the point was not allowed to be pursued. Therefore, before Section 2-A of the Central Act was introduced, the decision of This Court, which held the field, was that the subject-matter of the Bihar Act, even after the amendment of Section 26, was different from the subject-matter of the Central Act and the fields of operation were distinct and separate. As a matter of fact, it was held distinctly in Jagdish Vastralayas's case that there was, at that time, no collision or conflict between the present Section 26 of the Bihar Act and any of the provisions of the Central Act. It may be noticed, at this stage, that the question of repugnancy that had been raised in Jagdish Vastralaya's case was raised before Section 2-A had been incorporated in the Central Act and the effect of this new Section 2-A of the Central Act is really the main point in the instant case But, before that point is taken up, I would like to consider another decision of the Supreme Court in the case of The Chairman, Mis. Brooke Bond India Private Limited v. Chundranath Choudhary , where a passing reference had been made to Jagdish Vastralaya's case of This Court. (The original decision of the Labour Court, Patna, which was the subject-matter of appeal before the Supreme Court, had been given on 3rd February, 1965, that is to say, before Section 2-A had been incorporated in the Central Act). In this Supreme Court's decision the question was the interpretation of the principles underlying present Section 26 of the Bihar Act. In dealing with this point, the Supreme Court made a comparison between Section 26 of the Bihar Act and Section 33A of the Central Act, which reads as follows:
33A. Special provisions for adjudication as to whether conditions of service changed during pendency of proceedings.-Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal, any employee, aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court, Tribunal or National Tribunal and on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly.
Their Lordships held that there was no comparison between these two sections, their purposes being wholly different. Their Lordships stated further that the proceedings under Section 26 of the Bihar Act are independent and original. proceedings, where the competent authority had to arrive at its own finding on the evidence led before it and not on the evidence adduced in a domestic inquiry. According to Shri Balbhadra Prasad Singh, appearing for the petitioners, all the considerations of Section 26 of the Bihar Act must now give way to a new concept, in view of the incorporation of Section 2-A in the Central Act and the new concept is that the Parliament has now an intention to occupy the entire field of industrial and labour disputes by the Central Act, as it now stands. Every individual employee of any industrial establishment must now raise an industrial dispute under the Central Act for his discharge, dismissal, retrenchment or termination of service otherwise. Shri Singh has referred to the case of Manager, United Commercial Bank Limited, Mathurai v. Commissioner of Labour, Madras , for developing his argument. Reliance is placed on the judgment of Raja-mannar, C.J., in paragraph 11 of the report, which stated thus:
The point for decision ultimately reduces itself to this. When an individual employee seeks to set aside an order of dismissal against him, is there an industrial dispute within the meaning of the Industrial Disputes Act? If it can be said that a mere individual dispute, such as for instance, that in the present case, is an industrial dispute, then it would follow that the remedy of the aggrieved employee would only be a reference under the Industrial Disputes Act. The result would be that Section 41(2) of the Madras Act would have no application at all to the case of dismissed employees except in cases, if there be any such, which would not fall within the Industrial Disputes Act. Having regard to the very wide definition of 'industry' in Section 2(j), Industrial Disputes Act, it is difficult to conceive of any such case. 'Industry' means 'any business, trade, undertaking, manufacture or calling of employers'. It would, therefore, include all the classes of establishments covered by the Madras Act. The result would be that Section 41(2) would be practically useless.
Section 41 of the Madras Act, referred to in this paragraph, corresponded, more or less, with original Section 26 of the Bihar Act. According to the learned Counsel for the petitioners, as soon as the Central Act gave a right to an individual employee to have certain of his grievances redressed under the Central Act, by virtue of Section 2-A, no such grievance can be the subject-matter of a complaint under Section 26 of the Bihar Act and any other grievance of an employee in any industrial dispute, which he cannot raise under Section 2-A of the Central Act, must be ventilated in the ordinary Courts of law. I do not think that the contention raised by the learned Counsel is supportable on the conclusion of Rajamannar, C.J., without anything more in support of the contention. I may refer to a portion of the same decision, where Viswanatha Sastri, J. stated thus:
Now, Section 41(2) of Madras Act XXXVI of 1947 gives a remedy to an individual employee by way of an appeal against an improper termination of his services by his employer. Why should he be deprived of this cheap and expeditious remedy merely because it might possibly form the subject of a reference along with many other disputes to a Tribunal under Section 10 of the Act XIV of 1947 ? Such a reference might or might not be made by the Government of its own accord. The majority of the remaining workmen may not be in favour of any reference. If so, why should an individual employee lose the statutory right given to him by Section 41(2) of the Madras Act XXXVI of 1947 ?
(I shall revert to this aspect of the matter, that is to say the absence of a right of a workman under the Central Act to insist on a reference.) Therefore, it is difficult to hold that the decision of the Madras High Court under consideration was based only on what Rajamannar, C.J., stated in the course of his judgment quoted above. The decision was based on various factors and the following observations of the learned Chief Justice makes that abundantly clear:
The main question for our decision in this case is as to whether there is anything in the Industrial Disputes Act or in the later Industrial Disputes (Banking and Insurance Companies) Act, which deprives a discharged or dismissed employee like respondent 2 before us of the right of appeal conferred on him by Section 41(2) of the Madras Act. There is no express provision which has that effect and that is conceded by the learned Counsel for the petitioner. But it is said that when the Central Government have referred the industrial disputes between a banking company as defined in Act LIV of 1949 and its employees to a tribunal constituted under that Act, the only remedy of a discharged or dismissed employee was to make his claim before that tribunal for adjudication. We do not think that anything turns on the actual making of a reference. The learned Counsel for the petitioner perceived the difficulty of contending that the right of appeal under Section 41(2) of the Madras Act would be available if there was no reference under Act LIV of 1949, but such right of appeal would not exist or would cease to be effective the moment a reference was made. In this case the appeal by respondent 2 was filed on 22-7-1949, long before the notification dated 21-2-1950, relied upon by the petitioner. If on that date there was no reference, then it would follow that the appeal was quite competent, and the petitioner would be forced to argue that what was a perfectly competent appeal on the date it was filed somehow becomes unsustainable at a later stage. In the absence of express statutory provisons, it is impossible to support such a result.
7. I shall now deal with the contention raised by Shri Singh that the Central Act has occupied the entire field of legislation with respect to industrial disputes and, therefore, Section 26 of the Bihar Act is repugnant to the Central Act. It is obvious that the learned Counsel has borrowed the expression "the entire field" from the decision of the Supreme Court in the case of Zaverbhai Amaidas v. State of Bombay , where Venkatarama Ayyar, J., speaking for the Court, stated thus, in considering the validity of the Bombay Essential Supplies (Temporary Powers) and the Essential Commodities and Cattle Control (Enhancement of Penalties) Act (Bombay Act 36 of 1947), in view of Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 (as amended by Section 7 of Central Act 52 of 1950):
Section 7 is thus a comprehensive code covering the entire field of punishment for offences under the Act, graded according to the commodities and to the character of the offence. The subject of enhanced punishment that is dealt with in Act No. 36 of 1947 is also comprised in Act No. 52 of 1950, the same being limited to the case of hoarding of foodgrains. We are, therefore, entirely in agreement with the opinion of Chagla, C.J., and Chainani, J., that Act No. 52 of 1950, is a legislation in respect of the same matter as Act No. 36 of 1947.
Therefore, the learned Counsel must conclusively establish, in the instant case, that Section 26 of the Bihar Act deals with the same matter covered by the Central Act, including Section 2-A and is repugnant to the Central law. The tests of repugnancy have been laid down by their Lordships of the Supreme Court, over and over again, and one may usefully reiterate them from the case of Deep Chand and Ors. v. The State of Uttar Pradesh . The following tests were laid down by their Lordships of the Supreme Court:
(1) Whether there is direct conflict between the two provisions ;
(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature ; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
On these tests, it is difficult to hold that Section 26 of the Bihar Act is repugnant to the Central Act, as it now stands, after incorporating Section 2-A in the year 1965, The fundamental difference between Section 26 of the Bihar Act and the scheme of reference under the Central Act is that no workman, failing within that definition in the Central Act, has a right to ask for a reference by the appropriate authority, on being dismissed. Section 26 of the Bihar Act, however, gives a right to an employee, within the meaning of the expression in that Act, in certain circumstances, to complain about his dismissal and obtain redress. This kind of statutory right was emphasised by Viswanatha Sastri, J. in the case of Manager, United Commercial Bank Limited, Mathurai v. Commissioner of Labour, Madras . Then, an employee, within the definition of the Bihar Act, may not be a "workman", within the definition of the Central Act and if Section 26 of the Bihar Act is held to be wholly repugnant to the Central Act, an employee, who is not a "workman" within the meaning of the Central Act, will be deprived of the statutory remedy given to him under the Bihar Act and he will have no right under the Central Act. If the contention of the learned Counsel for the petitioners is valid, then the definition of an "employee" under the Bihar Act may have to be remodeled by the Court to read as an employee, who is not a "workman" under the Central Act, to serve the statutory rights of such an employee. This aspect of the matter is a pointer to the conclusion, that the scopes of the two Acts are quite different. The Central Act is concerned mainly with the provisions for investigation and settlement of industrial disputes, whereas the Bihar Act is concerned mainly with conditions of employment and work in shops and other establishments. As has been stated more than once, that appropriate legislations became necessary to provide for a solution of several problems, which arise in the relations between employers and employees by conciliation and adjudication by special tribunals, whose decisions have to be determined not merely by applying legal principles to ascertained facts, but by considerations of policy also. It has also been noticed in earlier decisions that our Industrial Disputes Act is modelled on the Industrial Courts Act, 1919, and the Conciliation Act, 1896, of Great Britain. In contrast to the scope of the Central Act, Section 26 of the Bihar Act has no relationship to the investigation and settlement of any industrial dispute, as such. The prescribed authority under the Bihar Act, on a complaint by the employee under that Act, must record briefly the evidence, adduced by the parties, hear them and after making certain inquiry, as it may consider necessary, pass appropriate orders, in the case. The scope of a proceeding under Section 10 of the Central Act is entirely different. In this context, I may usefully refer to a decision of the Supreme Court of India, in the case of Ahmadabad Mill Owners Association v. I.G. Thakore . In that case, it had been argued that a Bombay Act of 1938 was repugnant to the Industrial Disputes Act, 1947, as the latter had intended to lay down an exhaustive code in respect of settlement of all industrial disputes and the Bombay Act was also on the same subject. It was held that the Bombay Act did not confine itself entirely to the subject of settlement of industrial disputes. Their Lordships stated that even if it is held that the Industrial Disputes Act, 1947, was an exhaustive code dealing with the question of settlement of industrial disputes, only those provisions of the Bombay Act could be held to be repugnant, and void on account of repugnancy, which also dealt with the same subject-matter of settlement of industrial disputes. On that reasoning, it can be said, in the instant case, that Section 26 of the Bihar Act does not deal with the settlement of industrial disputes. If we now take into consideration Section 2-A of the Central Act. incorporated in 1965, the discharge, dismissal or retrenchment or termination of service of an individual workman will still have to be considered on the basis of an existing or apprehended industrial dispute and on no other basis. The Bihar Act contains many matters with regard to employees under that Act, which an individual workman cannot agitate under the Central Act. Therefore, the inevitable con clusion must be that the Central Act does not cover the whole field of industrial relationship so that Section 26 of the Bihar Act can be held to be repugnant to the Central Act. Reverting to the three tests laid down by their Lordships of the Supreme Court, it is difficult to hold that there is any conflict between Section 26 of the Bihar Act and any provisions of the Central Act, or its scheme. It is difficult to bold also that the Central Act and the State Act occupy the same field, the scope of the two Acts being entirely different. It is also not possible to hold that the Parliament, in enacting the Central Act, meant to lay down an exhaustive code with respect to industrial and labour disputes, leaving no scope for State Act to regulate conditions of work and employment in shops and other establishments. Learned Counsel for the petitioners has relied upon the case of Bethlehem Steel Company v. New York State Labour Relations Board 91 L.E. 1234 330 U.S. 767, but I do not see how this decision can help the learned Counsel. If anything, the various observations in this decision would negative the contentions raised by the learned Counsel for the petitioners in the instant case, challenging the validity of Section 26 of the Bihar Act. For instance, at page 1246, it is stated thus:
When Congress has outlined its policy in rather general and inclusive terms and delegated determination of their specific application to an Administrative Tribunal, the mere fact of delegation of power to deal with the general matter, without agency action, might preclude any State action if it is clear that Congress has intended no regulation except its own.
Applying this principle to the instant case, it is difficult to hold that by enacting the Central Act the Parliament had made it clear that there cannot be any other law dealing with any aspect of the relationship between the employer and the employee. For instance, the Beedi & Cigar Workers (Conditions of Employment) Act, 1966 (Central Act 32 of 1966) deals with certain relations between the employers and employees and Section 31 of that Act is more or less in the same terms as original Section 26 of the Bihar Act and, if the Parliament itself could enact Central Act 32 of 1966, it can very well be presumed that the Parliament did not mean to cover the entire relationship between the employers and employees, or the entire field of industrial relationship by the Central Act that we are not considering, namely, the Industrial Disputes Act, 1947. The learned Counsel for the petitioners has referred to another decision from America, in the case of Daniel F. Rice v. Santa Fe Elevator Corporation 91 L.E. 1447 331 U.S. 218 for the proposition that the scheme laid down by the Central Act (Industrial Disputes Act, 1947) is so pervasive as not to leave any room for any State Act to supplement it. According to the learned Counsel, further, the Central Act, in the instant case, touches a field in which the Central interest is so dominant that it will be assumed to preclude the enforcement of a State law on the subject. Quite clearly, the learned Counsel is referring to certain observations made in Daniel F. Rice's case, which lays down the principles upon which the question under consideration has to be approached. But, each case will have to be dealt with on its own facts, and even in Daniel F. Rice's case it was said at page 1459, that, "It is often a perplexing question whether Congress has precluded State action...."On a consideration of the Central Act and Section 26 of the Bihar Act, it is not possible to hold that the Central Act, under our consideration, has touched the field industrial and labour disputes, or the relationship between employers and employees working in an industrial establishment, in such a manner that the Central scheme excludes the enforcement of State law of any kind on any relationship between employers and employees, or on conditions of work or employment in shops and other establishments. As a matter of fact, the original Central Act had not incorporated any right of the workmen as such, and by Chapter V-A introduced in 1953, certain specific rights of workmen were incorporated in the Central Act. Even Chapter V-A does not apply to all industrial establishments, as is made clear from Section 25-A. Therefore, it is difficult to conclude that the Central Act indicates an intention of the Parliament to cover the whole field of industrial and labour disputes of all employees in industrial establishments. In my opinion, Section 2-A of the Central Act has merely enlarged the definition of industrial dispute, as given in Section 2(k) of the Central Act, without changing the scope of the Central Act in any manner. In view of the fact that the Courts have taken the view that a dispute between an individual workman and his employer could not per se be an industrial dispute, but it could become one if it was taken up by union or a number of workmen making a common cause of the aggrieved workman, Section 2-A was incorporated in the Central Act enabling an individual workman to raise an industrial dispute arising out of an employer discharging, dismissing, retrenching or otherwise terminating his service. But if such a dispute is now raised by an individual workman, in view of Section 2-A, the investigation and settlement of the dispute will still have to be made on the basis of an existing or an apprehended industrial dispute and on no other consideration. If the dismissal of Sri C.D. Singh (respondent No. 1) is not interfered with by the Tribunal (or the Labour Court) in the reference made under Section 10 of the Central Act, it will be in consequence of following the well-established procedure of solving an industrial dispute and if the same respondent's dismissal is set aside by the Labour Court in the proceeding under Section 26 of the Bihar Act, it will be as a result of the procedure laid down by that section, without any reference to a dispute in the nature of an industrial dispute. Therefore, I do not think, there is any repugnancy between Section 26 of the Bihar Act and either the Central Act itself or the scheme of it.
8. A few supplementary points have been urged by the learned Counsel for the parties and they may be indicated as follows: According to the learned Counsel for respondent No. I, the reference made under the Industrial Disputes Act was not valid for two reasons. It is argued that respondent No. 1 had never raised the question of his dismissal before any conciliation officer appointed under the Central Act and Annexure 4, sent to the Assistant Labour Commissioner, Patna, could not lead to a reference under the Central Act. It is also contended that Section 2-A of the Central Act is not a valid piece of legislation, as has been held by the Calcutta High Court, in the case of Jute and Jute Goods Buffer Stock Association v. The Second Industrial Tribunal of West Bengal and Ors. dated the 28th July, 1971. I do not think that this respondent can, in opposing the writ application, raise such questions incidentally, for a finding that the reference under the Central Act must be nullified, leaving only the application filed by him under Section 26 of the Bihar Act in the field. I do not think that the question of the validity of Section 2-A of the Central Act is called for in the present writ application. In the same context, the learned Counsel for respondent No. 1 has argued that in the reference under the Central Act, the employer has taken this stand that respondent No. 1 is not a workman, within the meaning of the Central Act and the learned Counsel for the petitioners has argued that respondent No. I of this case has taken the stand in that reference, that he was a workman under the said Act. Again, I do not think that such matters arising in the reference case ought to be gone into in this case. Lastly, according to the learned Counsel for the petitioners, both the proceedings, namely, the reference under the Central Act and the case under the Bihar Act, ought not to be allowed to proceed simultaneously. This contention must be negatived, if the main points raised in the writ case fail. If the object of the two proceedings under the two Acts are entirely different, there is no reason to hold that either of the two proceedings must give way to the other.
9. For these reasons, I am of opinion that the writ application must fail and it is dismissed. This is a case, in which the parties should be ordered to bear their own costs.
K.B.N. Singh, J.
10. I agree S. Sarwar Ali, J.
11. I agree.