Bombay High Court
Nagpur District Central Co-Operative ... vs State Of Maharashtra And Ors. on 13 March, 1987
Equivalent citations: 1987(3)BOMCR83
JUDGMENT H.W. Dhabe, J.
1. Parties by Counsel. A short question which is raised in this Patent Appeal on behalf of the appellant is that unless an approach notice under section 42(4) of the Bombay Industrial Relations Act, 1946 (for short, "the B.I.R. Act") is given the respondent No. 3 whose services were terminated by the appellant bank cannot be held to be an employee within the meaning of the expression "employee" as defined under section 2(13) of the said Act which is applicable to the appellant bank. The submission thus is that if the respondent No. 3 is not an employee within the meaning of the B.I.R. Act the would not be an employee within the meaning of the said expression under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, "the Act") also and his application, therefore, under the said Act would not maintainable. It may be stated at this stage that as per section 3(5) of the Act if the industry to which this Act is applicable is governed by the B.I.R. Act the definition of the word "employee" given in the said Act and if the industry to which this Act is applicable is governed by the Industrial Disputes Act, 1947, the definition of the word "workman" given in the said Act would be applicable under this Act. The learned Single Judge of this Court has answered the above contention against the appellant.
2. Clause (b) of the definition clause in section 3(13) of the B.I.R. Act is relied upon to show that a person who has been dismissed, discharged or retrenced or whose services have been terminated from employment is covered by the said definition only if his dismissal, discharge, retrenchment or termination of his service is on account of any dispute relating to change in respect of which a notice is given or application made under section 42 whether before or after his dismissal, discharge, retrenchment or as the case may be, termination from employment. The submission on behalf of the appellant thus is that unless an application under section 42(4) is made to the employer, popularly known as approach notice, the respondent No. 3 cannot be said to be an employee within the definition of the word "employee" under the B.I.R. Act. On the other hand it is contended on behalf of the respondent No. 3 that a person who is dismissed, discharged or retrenched or whose services are terminated is covered by the substantive part itself of the definition of the word "employee". In support of the above contention reliance is placed on behalf of the respondent No. 3 upon a decision of the Full Bench of this Court in the case of K.B. Khatavkar v. S. Taki Beligrami, 1971 Mh.L.J. 753. The above decision is upon the provisions of the definition of the word "employee" in the B.I.R. Act itself and it no doubt supports the contention urged on behalf of the respondent No. 3.
3. Besides the above decision there are other decisions of the Supreme Court by which it is a settled view that a person who is dismissed, discharged, retrenched or whose services are terminated is covered by the substantive part of the definition of the word "employee". I may usefully refer to the decision of the Supreme Court in the case of Central Provinces Transport Service Ltd. v. Raghunath, in this regard. It was a case which arose under the provisions of the C.P. and Berar Industrial Disputes Settlement Act, 1947 (for short "The C.P. and Berar Act") which was then applicable in the Vidarbha Region of the State of Maharashtra. The definition of the expression "employee" in section 2(10) of the said Act is in material particulars pari materia with the definition of the said expression in section 3(13) of the B.I.R. Act. It may also be seen that the definition of the expression "industrial dispute" given in section 2(12) and the definition of the expression "industrial matter" given in section 2(13) of the aforesaid C.P. & Berar Act are in pari materia with the definitions of the said expressions given in sections 3(17) and 3(18) of the B.I.R. Act respectively. As regards the provisions of the sections 31 and 32 of the C.P. & Berar Act they relate to a notice of change to be given by the employer and the representative of the employees respectively and they are in pari materia with the provisions of sections 42(1) and 42(2) of the B.I.R. Act respectively. It is true that there is no provision under the C.P. & Berar Act identical to proviso to section 42 of the B.I.R. Act which requires an approach notice to be given to the employer. But then it would not make any difference so far as the construction of the inclusive clause is concerned because what is material therein under both the Acts is dismissed, discharge etc. on account of any dispute relating to change .........
4. It may be seen that one of the contentions raised in the aforesaid case was that an employee who has ceased to be in service is not included within the definition of expression "employee" in the C.P. & Berar Act since the inclusive clause in the said definition included only an employee who was dismissed or discharged on account of any industrial dispute. The Supreme Court held in para 6 of the said judgment that the inclusive clause was inserted in the definition clause ex abundanti cautela and a dismissed employee is included within the substantive part of the definition clause itselfs. In taking the above view the Supreme Court relied upon the judgment of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay in which the similar provisions in relation to the definition of the expression "workman' given in section 2(s) of the Industrial Disputes Act, 1947 were considered.
5. Later on in the case of Benett Coleman and Co. Pvt. Ltd. v. Punya Priya Das Gupta, , the Supreme Court had an occasion to consider the definition of the expression "working journalist' in section 2(f) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 where a similar expression "who is employed" was used. The Supreme Court held in the said case that an ex-employee i.e. an employee whose service has come to an end as a result of his resignation would also be included within the said expression. It is thus clear that an employee who is dismissed, discharged or retrenched or whose services have been terminated from employment falls within the substantive part of the definition of the word "employee" given in section 3(13) of the B.I.R. Act.
6. It is now well-settled that in construing a welfare Legislation a liberal approach should be adopted and a purposive construction which would effectuate the object of the welfare Legislation should be given to the expressions used in the statute. It may be seen that if the ex-employees are not held to be included within the said definition of employee it would result in an anomalous situation and cause great hardship to the employees which is not intended by the statute. It would also be anomalous that an employee who is dismissed, discharged, retrenched or whose services have been terminated on account of any dispute is covered by the definition but the employee who is simpliciter dismissed or discharged is not covered by the said definition. Moreover the ex-employees would not then be entitled to claim under the Act any benefits and particularly retirement benefits to which they are entitled under the conditions of their service or to raise any dispute in regard to the same although such matters are the subject-matter of the B.I.R. Act as is clear from the definition of the expression "industrial matter" given in section 3(18) of the said Act.
7. At any rate it may be seen that the definition clauses in section 3 of the B.I.R. Act, as is usual in every statute, are to be given the meanings assigned to them in the said definition clauses unless there is anything repugnant in the subject or context. Following the judgment of the Supreme Court in Bennette Coleman Co.'s case, cited supra, it will have then to be held that if an "ex-employee" is not covered by the definition of the word "employee" as given in section 3(13) the B.I.R. Act construed stricto sensu then the said definition would be repugnant to the subject or the context of the industrial disputes in relation to the ex-employees which are the subject-matter of B.I.R. Act as is clear from the definitions of the expressions "industrial dispute" and "industrial matter" given in sections 3(17) and 3(18) of the said Act respectively. The above contention on behalf of the appellant, therefore, cannot be accepted.
8. The learned Counsel for the cessation of (sic) has urged that the requirement of cessation of employment on account of any dispute in the inclusive clause of definition of the word" employee" under the B.I.R. Act is applicable only in the case of termination of employment and not in the case of dismissal, discharge or retrenchment. In our view of the inclusive clause read as whole and in particular the last portion of the said clause, viz. "before or after his dismissal, discharge, retrenchment or, as the case may be, termination from employment" would show that the requirement of cessation of employment on account of dispute in the inclusive clause is applicable in the cases of dismissal, retrenchment also and is not restricted to termination from "employment" only. However, the above submission on behalf of the appellant would not make any difference to the construction which we have placed upon the definition of the word "employee" because as held by us a person who is dismissed, retrenched or whose services are terminated not on account of any dispute is covered by the substantive part of the definition clause itself viz., by the expression "any person employed".
9. The learned Counsel for the appellant has relied upon the decision of the Patna High Court in G.S. Garchi v. State of Bihar, 1986 Lab.I.C. 1840 in support of his submission that the interpretation put upon the word "employee" under a different enactment cannot be taken into consideration while interpreting the definition of the word "employee" under the B.I.R. Act. In our view, the proposition cannot be so widely stated as is canvassed on behalf of the appellant. If the provisions of the two enactments are in pari materia i.e. if they are dealing with the same subject-matter then in construing words and expressions used in the enactment an aid to construction can be taken from the construction put upon the similar expressions used in the other enactment. It may be seen that the material provisions in the Industrial Disputes Act, the B.I.R. Act and the C.P. & Berar Act and in particular the latter two enactments are in pari materia as they are dealing with same topic of industrial disputes and, therefore, in construing the words and expressions used in one of the above statutes an aid to construction could be had from the decisions upon the similar expressions used in the other. It may also be seen that the basic principles of industrial adjudication are the same in all the above statutes. The above submission on behalf of the appellant, therefore, deserves to be rejected.
10. Before parting with this judgment it is necessary to bear in mind that in approach notice is mandatory or is a condition precedent in view of the proviso to section 42(2) of the B.I.R. Act if an employee has to move the Labour Court thereunder for necessary relief. It cannot be said to be intended that the said requirement which is mandatory for claiming relief under the B.I.R. Act is also mandatory for claiming the relief under the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act. The approach notice, therefore, cannot be held to be necessary to be given before an ex-employee can move the Labour Court for necessary relief under the Act.
11. In the result, the instant Letters Patent Appeals fails and is dismissed.