Bombay High Court
K.B. Khatavkar vs S. Taki Beligrami on 7 August, 1970
Equivalent citations: (1971)73BOMLR570, (1971)IILLJ445BOM
JUDGMENT Tarkunde, J.
1. At the relevant time S. 3(13) of the Bombay Industrial Relations Act ran as follows :
"employee' means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes -
(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (e) clause (14);
(b) a person who has been dismissed or discharged from employment on account of any dispute relating to change in respect of which a notice is given or an application made under S. 42 whether before or after his dismissal or discharge ......"
The clause goes on to provide that a person employed in a managerial, supervisory or technical capacity is not included in the term "employee", but we are not concerned with that part of the clause.
2. It will be noticed that the definition of the word "employee" quoted above is in two parts. In the main part the term as defined to mean any person employed to do any skilled or unskilled work for hire or reward in any industry. In the second part, which may be called the inclusive part, of the definition are included contractor's employees and employees who are dismissed or discharged under certain circumstances.
3. It may be added that sub-clause (b) of the inclusive part of the definition was amended recently by Maharashtra Act XXII of 1965. As amended the sub-clause reads as follows :
"(b) a person who has been dismissed, discharged or retrenched or whose services have been terminated from employment on account of any dispute relating to change in respect of which a notice is given or an application made under S. 42 whether before or after his dismissal, discharge, retrenchment or, as the case may be, termination from employment;"
The question which we are referring to a Full Bench arises under the definition prior to this amendment.
4. We have noticed above that the Industrial Court relied on a previous decisions of its Full Bench in Soma Ramjee Varghade v. Shri Madhusudan Mills Ltd., Bombay, ([1965)] Industrial Court Reporter, 261) for holding that a retrenched employee was not an "employee" under S. 3(13). The decision of the Full Bench of the Industrial Court in that case was based on the assumption that an ex-employee is not covered by the main part of the definition of "employee" in S. 3(13) and that he can be held to be an employee only if he is covered by sub-clause (b) of the inclusive part of the definition. On that assumption the Full Bench considered whether a retrenched employee is covered by the expression "dismissed or discharged" which occurred in sub-clause (b). The Full Bench held that a retrenched employee is neither dismissed nor discharged and that he is, therefore, not an "employee" and cannot file an application for reinstatement under Ss. 78 and 79 of the Act.
5. It would, with respect, not be difficult to show that the Full Bench was wrong in its view that the word "discharge" is not wide enough to include a case of retrenchment. The ordinary meaning of the word retrenchment was considered by the Supreme Court in Hariprasad Shivshankar v. A. D. Divelkar, (1956) 59 Bom. L.R. 384, (S.C.). Their Lordships observed that "retrenchment means discharge of surplus workmen in an existing or continuing business." It is thus clear that retrenchment is a particular kind of discharge and that the word "discharge" is wide enough to include cases of retrenchment. We are accordingly of the view that the Full Bench of the Industrial court was not right in holding that a retrenched worker is not covered by the expression "dismissed or discharged" in sub-clause (b) of S. 3(13).
6. Another difficulty, however, arises if we are to accept as correct the assumption of the Full Bench that an ex-employee cannot come within the definition of the word "employee" unless he is covered by sub-clause (b) of the inclusive part of the definition. Sub-clause (b) applies only to those workmen who were dismissed or discharged "on account of any dispute relating to change ......." Under the Act the dismissal or discharge of an employee is itself a change, but it cannot be said that whenever an employee is dismissed or discharged his dismissal or discharge was "on account of any dispute relating to change". What sub-clause (b) requires is that there should have been a dispute relating to a change prior to the dismissal or discharge of an employee and that the dismissal or discharge should have been on account of that dispute. It must follow that where an employee is dismissed or discharged on account of an alleged misconduct unconnected with a pending industrial dispute, he is not an employee within sub-clause (b). Unless such a person is covered by the main part of the definition of "employee" in S. 3(13) he would not be able to apply to the Labour Court to challenge the legality or propriety of his dismissal or discharge. In other words an employee who has been dismissed or discharged for any reason unconnected with a pending industrial dispute cannot be regarded as an employee unless the word "employee" includes an ex-employee under the main part (as distinguished from the inclusive part) of the definition of that term in S. 3(13).
7. It appears to have been brought to the notice of the Full Bench of the Industrial Court that its approach to the definition of "employee" would lead to the result that a worker who is dismissed or discharged for misconduct would be debarred from making an application to the Labour Court. The Full Bench brushed aside the objection by observing : "It is unnecessary for us to enter into this point which does not arise in this reference. Shri Narayanaswami (employer's advocate) concedes that such a person would not be debarred from challenging his dismissal or discharge in a Labour Court." This was obviously a very unsatisfactory way of dealing with the issue. The concession which was made before the Full Bench was not made before us by the advocate who appeared for the employers. On the contrary, he argued that retrenched workers were not "employees" because, even if they are held to have been discharged, their discharge was not "on account of" any dispute relating to a change.
8. In my view, there is adequate justification and binding authority for holding that the word "employee" in the main part of the definition in S. 3(13) of the Act includes an ex-employee. The main part of the definition says that an employee means "any person employed" to do any skilled or un-skilled work for hire or reward in any industry. The expression "any person employed" is wide enough to include "any person who is or was employed." According to this view, the reference in the inclusive part of the definition to persons dismissed or discharged on account of industrial disputes was made by way of abundant caution and was not intended to limit the amplitude of the main part of the definition. I will first deal with the jurisdiction of this view without reference to any authority.
9. The object of the Bombay Industrial Relations Act, according to its preamble, was to regulate the relations of employers and employees in certain matters, to consolidate and amend the law relating to the settlement of industrial disputes and to provide for certain other purposes. Now, one of the main causes which affects adversely the relations between employers and employees and leads to industrial disputes is the termination of the services of persons employed in an industry. That being so, it is unlikely that the Legislature intended that the term "employee" used in the Act should not include ex-employees. Just as in tenancy legislation the word "tenant" normally includes an ex-tenant, so in legislation relating to industrial disputes the word "employee" normally includes an ex-employee. This is borne out by several provisions of the Bombay Industrial Relations Act.
10. Section 3(17) defines "industrial dispute" to mean any dispute or difference between an employer and employee or between employers and employees or between employees and employees which is connected with any industrial matter. The expression "industrial matter" is then defined in S. 3(18) to mean "any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment," and to include, inter alia, "(a) all matters pertaining to the relationship between employers and employees, or to the dismissal or non-employment of any person;"
Thus the dismissal or non-employment of any person is an industrial matter, and a dispute connected with this industrial matter "between an employer and an employee" is an industrial dispute under S. 3(17). It would thus appear that the word "employee" used in S. 3(17) includes a person who is aggrieved by his dismissal or non-employment, i.e., an ex-employee.
11. Notice may then be taken of some of the provisions of the Act dealing with standing orders. Sub-section (1) of S. 35 requires every employer to submit for the approval of the Commissioner of Labour "draft standing orders regulating the relations between him and his employees with regard to the industrial matters mentioned in Schedule I." Schedule I gives a list of the matters on which standing orders are required to be framed, and item 10 of that list is "termination of employment including notice to be given by employer and employee". Thus all forms of termination of employment, including termination by way of retrenchment, are intended to be covered by standing orders. Sections 36 to 39 deal with the settlement of standing orders, and sub-s. (1) of S. 40 then lays down that the standing orders so settled "shall be determinative of the relations between the employer and his employees in regard to all industrial matters specified in Schedule I." It is clear from these provisions that the legislature intended to protect, inter alia, those employees whose employment is terminated contrary to the provisions contained in the standing orders. It is difficult to believe that the legislature did not intend that an employee whose employment is terminated contrary to the provisions of the standing orders should be able to approach a Labour Court for the purpose of securing appropriate relief.
12. Section 78 of the Act deals with the powers of a Labour Court and S. 79 with the commencement of proceedings before a Labour Court. Section 78(1)(A)(a)(i) says that a Labour Court shall have power to decide disputes regarding "the propriety or legality of an order passed by an employer acting or purporting to act under the standing orders." Then S. 78(1)(A)(a)(iii) lays down that a Labour Court shall have the power to decide disputes regarding "any change made by an employer or desired by an employee in respect of an industrial matter specified in Schedule III [except item (5) thereof] and matters arising out of such changes." Item (6) of Schedule III is "Employment including - (i) reinstatement and recruitment; (ii) unemployment of persons previously employed in the industry concerned." Reading S. 78(1)(A)(a)(iii) with item (6) of Schedule III it is clear that a Labour Court has power to decide any dispute regarding any change made by an employer or desired by an employee in respect of the unemployment of any person previously employed or the reinstatement of any person in the industry concerned. Then sub-s. (1) of S. 79 provides that proceedings before a Labour Court in respect of disputes falling under S. 78(1)(A)(a)(iii) "shall be commenced on an application made by any of the parties to the dispute." Obviously an employee whose services are terminated contrary to the standing orders, or who claims that the termination of his service was otherwise improper, is a party to the dispute and is entitled to file an application to a Labour Court under S. 79(1). These provisions clearly establish that an ex-employee is an "employee" and that he is entitled to apply to a Labour Court under S. 79(1) of the Act.
13. Clause (4) of S. 42 provides, inter alia, that any employee who desire a change in respect of industrial matters specified in Schedule III [except item (5) thereof shall make an application to the Labour Court and that before he makes such an application he shall approach the employer with a request for the change. If an ex-employee is entitled to make an application to a Labour Court under S. 79(1) as noticed above, it must follow that the word "employee" used in Clause (4) of S. 42 includes an ex-employee.
14. Turning to authorities, it appears to me that the question which we intend to refer to Full Bench is concluded by the decision of the Supreme Court in C. P. T. Service v. Raghunath, [1957 - I L.L.J. 27]. A reference to a Full Bench has become necessary nevertheless, become a Division Bench of this Court interpreted that decision in a very different way than the way in which I understand it. The Supreme Court was concerned in that case with the interpretation of the word "employee" in S. 2(10) of the C.P. and Bear Industrial Disputes Settlement Act, 1947. At the relevant time S. 2(10) of the said Act ran as follows :
"'employee' means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire reward in any industry and includes an employee discharge on account of any dispute relating to a change in respect of which a notice is given under S. 31 or 32 whether before or after the discharge."
It may observed in this connection that the provisions of Ss. 31 and 32 of the C.P. and Berar Industrial Disputes Settlement Act are very similar to those of S. 42 of the Bombay Industrial Relation Act. In the case before the Supreme Court an employee who had been dismissed for alleged misconduct had applied to the Labour Commissioner for reinstatement and compensation under S. 16 of the C.P. and Berar Industrial Disputes Settlement Act, and one of the questions raised was whether he was an employee within the definition of employee in S. 2(10) of the said Act. On behalf of the employers it was contended that he was not employee because he had creased to be in service at the time of application. It will be noticed that the definition of the word "employee" with which the Supreme Court was concerned, like the material portion of the definition in the case before us, consisted of two parts, the main part and the inclusive part, that the inclusive part of the definition covered employee "discharged" on account of any dispute relating to a change ....." It was argued before the Supreme Court on behalf of the employers "that it could not have been the intention of the legislative to include in definition of an employee even those who had creased to be in service, as otherwise there was no need for the further provision in S. 2(10) that discharged employees would in certain cases be employees; and that in any event, the include portion of the definition would, on the principle expressio unius est exclusio alterius, operate to exclude all employees, other than those mentioned therein." In rejecting this argument the Supreme Court observed (p. 107) :
"We are also unable to accede to the contention of the appellant that the inclusive clause in S. 2(10) of the Act is indication that the legislature did not intend to include within that definition those who ceased to be in service. In our opinion, that clause was inserted ex abundanti cautela to repel a possible contention that employee discharged under Ss. 31 and 32 of the Act would not fall within S. 2(10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition. We must accordingly hold agreeing with the decision in Western India Automobile Asscon v. Industrial Tribunal, Bombay, [1949] F.C.R. 32]; 51 Bom. L.R. 894, that the definition of 'employee' in the Act would include one who has been dismissed and the respondent cannot be denied relief only reason of the fact that he was not in employment on the date of the application."
These observations of the Supreme Court, and particularly the statement that the inclusive part of the definition was inserted ex abuandanti cautela, clearly implies that all ex-employees are included in the definition of employee in S. 2(10) of the said Act and not only those who are covered by the inclusive part of the definition.
15. This decision of the Supreme Court was, however, differently interpreted by a Division Bench consisting of Mr. Justice L. M. Paranjape and my learned brother Justice Bal when decided Special Civil Applications 345 and 575 of 1966 at Nagpur on March 11, 1967, Laxman v. The State Industrial Court at Nagpur, (unreported). In that case a retrenched employee had applied under S. 16 of the C.P. and Berar Industrial Disputes Settlement Act for reinstatement. The Division Bench held that the retrenched employee was not an "employee" under S. 2(10) and was not entitled to apply for reinstatement under S. 16 of the Act. On account of the intervening amendment the terms of the definition of "employee" in S. 2(10) considered by the Division Bench were somewhat different than the terms of the definition which was considered by the Supreme Court in the Central Provinces Transport Service case mentioned above. The amendment, however, was not material to the question in issue. The amendment was confined to the inclusive part of the definition of "employee" in S. 2(10) of the said Act. The inclusive part of the definition originally read "and includes an employee discharged on account of any dispute relating to a change in respect of which a notice is given under S. 31 or 32 whether before or after the discharge." After the amendment the inclusive part of the definition read :
"and include an employee dismissed, discharged or removed on account of any industrial disputes."
On the construction of the definition of "employee" the Division Bench stated :
"It appears from the definition that it contemplates two categories of persons who can be termed as 'employees'. The first category consists of persons who are actually in the employment of the employer at the date of the application and the second, of those who have creased to be in the employment prior to the date of the application, the reason for ceasing being 'dismissal, discharge or removal on account of any industrial dispute.' In other words, the definition does not includes all ex-employees but only those of the specified categories out of them."
The Division Bench was of the view that the word "discharge" covered cases of retrenchment, and that a retrenched employee was a discharged employee. The Division Bench, however, held that the retrenched employee before them was not an employee within S. 2(10) because his discharge was not "on account of any industrial dispute." Referring to the Supreme Court decision in the C.P.T. Services case the Division Bench observed in its judgment :
"It will be seen that in the case before the Supreme Court, the employee had been dismissed after an inquiry, which involved an industrial dispute."
Thus, according to the Division Bench, the dismissed employee with whom the Supreme Court were concerned was an employee under S. 2(10) because an inquiry had been held before his dismissal. The inquiry, according to the Division Bench involved an industrial dispute relating to change and employee, therefore, fell within the inclusive part of the said definition.
16. I am, with great respect, unable to agree with the interpretation of the judgment of the Supreme Court. In the first place, the employee before the Supreme Court could not be held to have been discharged "on account of any dispute relating to the charge". The dismissal of the employee was itself a change and preceding inquiry may, with some stretch of language, be regarded as a dispute relating to change. The employee, however, was dismissal as a result of the inquiry and not on account of inquiry. What led to his dismissal was alleged misdemeanour and not the inquiry which was held for the purpose of deciding whether the misdemeanour was committed by him. Moreover, the reasoning of the Division Bench implies that if any inquiry is held before the dismissal of an employee, the dismissed employee gets the privileges conferred by the C.P. and Berar Industrial Disputes Settlement Act, but he does not get those privileges if he is summarily dismissed without any inquiry whatever. Apart from these considerations, there is more basic reason why I cannot accept the interpretation put by the Division Bench on the judgment of the Supreme Court. The Supreme Court did not hold that the dismissed employee before them was covered by the inclusive part of the definition of the term 'employee'. On the contrary, the Supreme Court stated in express terms that the inclusive part of the definition had been inserted ex abundanti cautela to repel a possible contention that employees discharged under Ss. 31 and 32 of the Act would not fall within 2(10). The Supreme Court went on to say that the inclusive clause "cannot be read as importing an intention generally to exclude dismissed employees from that definition." It is thus clear that, according to the Supreme Court, the dismissed employee was on employee within the main part of the definition of that term and not within the inclusive part.
17. A reference may then be made to the decision of Chagla C.J. and Dixit J. in P. L. Mayekar v. Aminchand . In that case a dispute with regard to the claim for reinstatement of two dismissed employees had been referred by the Government to the Industrial Court under S. 10(1)(c) of the Industrial Disputes Act, 1947. One of the question before the Court was whether the dismissed employees were workmen within S. 2(s) of the Act as it then stood. Section 2(s) at the relevant time read as follows :
"'workmen' 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 proceeding under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in navel, military or air service of the Government."
The material portion of this definition, it will be noticed, was also in two parts - the main part and the inclusive part. The dismissed employees before the Court had not been discharged during an industrial dispute and were not covered by the inclusive part of the definition. The Court, however, held that they were workmen because they came under the main part of the definition of "workman" in S. 2(s). Delivering the judgment of the Court Chagla C.J. observed (p. 1003) :
"... Without looking at the authorities, on a plain construction of the section, it is not possible to accept the contention of Mr. Gupte (employer's counsel) that a the workman means a person who was employed at the date when the dispute was referred by Government under S. 10(1)(c). Mr. Gupte contends that if a workman has already been dismissed, no industrial dispute can be referred with regard to his dismissal to the Industrial Court. Now, the definition of 'workman' does not indicate that the workman must be employed at a particular moment of time. What is emphasised is that he must be employed in any industry to do skilled or unskilled manual or clerical work for hire or reward; in other words, the definition is intended to point out what the nature and characteristic of a person is who can be deemed to be a workman within the meaning of the Act. In our opinion, a workman as defined in the sub-section means any person who is employed at any time in an industry."
These observations, it may be added, were brought to the notice of the Division Bench consisting of Mr. Justice L. M. Paranjape and my learned brother Mr. Justice Bal when they decided the case referred to above. The learned Judges, however, held that these observations had no reference to the facts before them and to provision of the statute with which they were concerned. I am of the view, with great respect, that S. 2(s) of the Industrial Disputes Act of 1947, S. 2(10) of the C.P. and Berar Industrial Disputes Settlement Act of 1947, and S. 3(13) of the Bombay Industrial Relations Act of 1946 are substantially in pari materia, and that the term "workman" or "employee" defined by these provisions includes an ex-workman or an ex-employee.
Per Bal, J.
18. I regret my inability to persuade myself to share the view expressed by my learned brother regarding the effect of the decision of the Supreme Court in C. P. T. Service v. Raghunath [1957 - I L.L.J. 27] and regarding the correct interpretation of the definition of the word "employee" under the C.P. and Berar Industrial Disputes Settlement Act, 1947, as it stood after its amendment in 1955. In the case of the C.P.T. Service the Supreme Court was considering the unamended definition of the term "employee" which was materially different from the amended definition. That decision would, therefore, have no application to cases governed by the amended definition. The definition as it stood after its amendment in 1955 read :
"'employee' means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee dismissed, discharged or removed on account of any industrial dispute."
If the Legislature intended that the main part of the amended definition should include all ex-employees, nothing would have been easier than to enact the inclusive part to read : "and includes an employee dismissed, discharged or removed", or to drop the inclusive clause altogether and to add to the definition some such explanation as : "The term 'employee' shall include an ex-employee", or "An ex-employee shall be deemed to be an employee within the meaning of this definition."
2. The expression "on account of an industrial dispute" would be wholly inappropriate to convey such an intention. In order to hold that an ex-employee, whatever the cause which led to the termination of his services, is an "employee" within the meaning of the amended definition, one must ignore the expression "on account of any industrial dispute." I see no reason to justify such a course. In my view, the definition in S. 2(10) of the C.P. and Berar Industrial Disputes Settlement Act, 1947 as it stood after its amendment in 1955 includes only those ex-employees whose services had been terminated as a result of some industrial dispute. Other reasons for this view of mine appear in the judgment of the Division Bench at Nagpur dated March 11, 1967 in Special Civil Applications No. 345 and 575 of 1966. Laxman v. State Industrial Court, Nagpur
3. I, however, agree that the question arising in the present case formulated by my learned brother regarding the correct interpretation of the term "employee" as defined in S. 3(13) of the Bombay Industrial Relations Act 1946, is one of general importance likely to arise in a large number of cases, and it is desirable that it should be considered and decided by a larger Bench so that all doubts regarding the correct legal position may be set at rest.
PER CURIAM :
We refer the following question for the decision of a Full Bench :
"Whether a retrenched employee is an 'employee' within S. 3(13) of the Bombay Industrial Relations Act, 1946, and can apply for reinstatement to a Labour Court under Ss. 78 and 79 of the said Act ?"
The question was considered by a Full Bench composed of Kotval C.J. and Mody and Kantawala JJ. who agreed with the view expressed by Tarkunde, J.
JUDGMENT Per Kotval, C.J.
1. A reference in both these special civil applications has been made because there was difference of opinion on an important and recurring question of law between Mr. Justice Tarkunde and Mr. Justice Bal.
The question they have referred for our decision is as follows :
"Whether a retrenched employee is an 'employee' within S. 3(13) of the Bombay Industrial Relations Act, 1964 and can apply for reinstatement to a Labour Court under Ss. 78 and 79 of the said Act ?"
2. In both these special civil applications the petitioners were employees who had been retrenched by their employers. They applied first to the Labour Court and then to the Industrial Tribunal at Bombay for reinstatement. The Industrial Tribunal had upon this question already taken a final decision in Appeal (IC) No. 34 of 1964 before them, in Soma Ramjee Varghade v. Shri Madhusudan Mills Ltd., Bombay, (1965) Industrial Court Reporter 261. In that decision the Tribunal had taken the view that a person who had been employed and subsequently retrenched after being given notice would not be deemed to be "an employee" under S. 3(13) of the Act. Therefore, when these two matters came before the Industrial Tribunal they merely relied upon their previous decision and dismissed the employees' applications. Against these orders of the Industrial Tribunal the employees moved the two special civil applications and on the very question on which they were dismissed before the Industrial Tribunal there was a difference of opinion between the two learned Judges.
3. How this difference of opinion arises may be briefly stated. The Bombay Industrial Relations Act by which these matters are governed at the material time defined the word "employee" as follows :
3(13) 'employee' means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes -
(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (e) of clause (14);
(b) a person who has been dismissed or discharged from employment on account of any dispute relating to change in respect of which a notice is given or an application made under S. 42 whether before or after his dismissal or discharge;"
Subsequent to the arising of the present dispute between the employer and the employee this section has been materially amended so far as sub-clause (b) is concerned and instead of the words "dismissed or discharged" the following words have now been substituted : "dismissed, discharged or retrenched or whose services have been terminated" and at the end, instead of the words "after his dismissal or discharge" the following words have been substituted namely "dismissal, discharge, retrenchment or, as the case may be, termination from employment". These changes were incorporated into the Act by the Maharashtra Act XXII of 1965. In both these cases the retrenchment took place in the year 1963 so that the amendments will not be attracted.
4. We may here also dispose of a point which was made in the course of the arguments based upon the amendment. It was urged that the fact that S. 3(13) was required to be amended by expressly adding the word "retrenched" shows that previously "retrenchment" was not included in S. 3(13). This may be so, but, on the other hand, it was urged on behalf of the employees that these amendments were incorporated only by way of abundant caution and that even previously an employee retrenched was included in the definition of "employee". Nothing therefore turns upon this submission based upon the amendment and we will have to examine the definition as it stood prior to the amendments independently of the amendments but in context of the other provisions of the Act.
5. Long prior to these special civil applications a Division Bench of this Court at Nagpur in Laxman v. The State Industrial Court at Nagpur (1967) Special Civil Applications Nos. 345 and 575 of 1966, decided by L. M. Paranjape and Bal, JJ., on March 11, 1967 (unrep.), had clearly taken the view that the definition of the word "employee" did not cover the case of an employee who had been retrenched, because he had ceased to be an employee and the definition did not include an ex-employee like him.
6. Mr. Justice Bal was partly to that decision and when these two matters came before the Division Bench Bal J. took the same view under the present Act. He felt that there was no reason why that decision should not govern the decision of this case even though it arises under the Bombay Industrial Relations Act, because the definitions in the two Acts were in pari materia.
7. We have already reproduced the definition of the word "employee" in S. 3(13) and it will be noticed that it consist of two parts, the first part giving the meaning of the word and the second part including certain categories in the definition which has been referred to in some of the judgments as the second part or the inclusive part. The same is the case with the definition under the C.P. and Berar Industrial Disputes Settlement Act and in coming to their decision in Laxman's case the Division Bench considered only the second or the inclusive part of the conclusion that a retrenched employee would not fall within the definition of the word "employee" contained in the inclusive part. In that case there was no argument advanced before that Division Bench that a retrenched employee would be covered by the first or the main part of the definition.
8. When the matter came before the Division Bench in present case Mr. Justice Tarkunde took the view that really it is the main part which defines the word "employee" and considering the provisions of the definition in the context the remaining provisions of the Act, it was clear that although the definition speaks of any person employed to do any work, it necessarily included within it a retrenched employee or an ex-employee as he has been called. Mr. Justice Tarkunde also referred to several other decisions, two of the Supreme Court and one of this Court under other Acts particularly the Central Industrial Disputes Act and the C. P. and Berar Industrial Disputes Settlement Act. He felt therefore that it was quit unnecessary to consider whether the term "retrenched employee" came within the inclusive part of the definition. It would thus appear that two learned Judges differed each invoked a different portion of the definition.
9. If a retrenched employee can fall within the first of the two parts of the definition, it would be unnecessary to consider whether he falls or does fall within the second part of the definition and so we proceed to consider whether in the first place a retrenched employee could be said to fall under the main or the first part of the definition which subject to other requirements merely says that "employee" means "any person employed to do any ... work ... in any industry." (We have omitted the portion which are not relevant). Since we are concerned with construction of the definition, it is obvious that we cannot consider the definition in isolation but must consider it in the context of other definitions and the various provisos of the Act in which the expression defined is to be found in order together its true meaning. Section 3 itself begins with the words "In this Act unless there is anything repugnant in the subject or context ..........." Therefore the wording of the definition undoubtedly would be plenary but considered in the light of particular provisions of the law or in the context of a particular section, it may carry a meaning larger or smaller than the bare definition. Secondly, no interpretation of the definition would be proper which would militate against the very purpose and object of the law and in this case the purpose and object of law has been already stated in its preamble and it is (1) to provide for the regulation of the relations of employers and employees and (2) to consolidate and amend the law relating to the settlement of industrial disputes. Therefore the Act provides a complete code for the regulation of the relations of employers and employees.
10. The definition of an "employee" refers to any person employed in any industry and "industry" is defined in S. 3(19). The definition is extremely wide and includes any kind of business including agriculture and agricultural operations. Then we must also regard to the important definition of "industrial matter" and "industrial dispute" contained in Ss. 3(18) and 3(17) of the Act. An "industrial dispute" is defined as meaning any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any industrial matter. "Industrial matter" has been defined as fallows (we will quote only such portions as are necessary for our purpose) :
"'industrial matter' means any matter relating to employment, work, wages, hours of work, privileges, rights, or duties of employers or employees, or the mode, terms and conditions of employment, and includes -
(a) all matters pertaining to the relation-ship between employers and employees, or to the dismissal or non-employment of any person; ...
(d) all questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as whole;"
A mere consideration of these definitions gives rise to certain important points which are noteworthy. The first is that in the definition of an "employee" though its main part speaks of any person employed in any industry, the second part containing the inclusive definition, particularly clause (b), refers to a person who has been dismissed or discharged from employment. In other words, the person dismissed or discharged would be an employee but curiously enough a retrenched employee does not find place in the definition of "employee". A dismissed or discharged employee also has his employment terminated just like a retrenched employee and yet the former is entitled to all the benefits of the Act but not a retrenched employee because it is said he is nowhere mentioned. Could it have been the intention in this Act to exclude a retrenched employee when a dismissed or discharged employee is considered an "employee" ? Secondly, a consideration of the definition of "industrial matter" shows (from the main part of the definition) that an industrial matter is any matter relating to employment and we can see absolutely no reason why the person who is retrenched and asks to be reinstated does not raise a question "relating to employment". It also speaks of rights or duties of employers or employees or the mode, terms and conditions of employment. Now retrenchment is matter of codified law in chapter VA of the Central Industrial Disputes Act and employers have a duty to observe the provision and the employees have a right to be reinstated therefore the question of retrenchment and reinstatement would clearly fall within the definition of "industrial matter". What is more, the definition includes all matters pertaining to "the dismissal or non-employment of any person". The expression "non-employment of any person" is somewhat curious. In the definition of "employee" the words used are "dismissed or discharged" whereas in the definition of "industrial matter" in S. 3(18)(a) the words used are "the dismissal or non-employment of any person". Undoubtedly the expression "non-employment" is much wider than the word "discharged". "Discharge" is only one form of non-employment and under "non-employment" come termination of employment, dismissal, discharge and retrenchment. The definitions themselves therefore indicate beyond any shadow of doubt that where retrenchment takes place and the employee applies to be reinstated it would be an "industrial matter". The question is whether in spite of this definition of "industrial matter" it was intended to exclude an employee who has been retrenched from the definition of "employee".
11. In order to resolve this question - and for the time being we are merely considering the provisions of the Act by itself - we must look to several other provisions of the Act. Section 35 deals with settlement of standing orders and prescribes that the standing orders may be made with regard to any of the industrial matter mentioned in the Schedule I of the Act. Item No. 10 of Schedule I mentions as one of the subjects "termination of employment including notice to be given by the employer and the employee". Under S. 42 provision is made for changes in respect of industrial matters. Under sub-s. 2 of S. 42 an employee desiring a change in respect an industrial matter not specified in Schedule I or III has to give notice and then proceed by a certain procedure. By sub-s. (4) any employee desiring a change in respect an industrial matter specified in Schedule III has to make an application to the Labour Court. Now, turning to Schedule III entry (6) thereof reads as under :
"(6) Employment including -
(i) reinstatement and recruitment;
(ii) unemployment of a persons previously in the industry concerned."
Therefore with regard to these provisions of S. 42 read with entry (6) in third Schedule it is clear that right has been given to the employee to ask for reinstatement and also to ask for relief in case he is unemployed. In the context in which the word "unemployment" is used in entry (6) of the Schedule III it is remarkable that in S. 3(18)(a) the word used is "non-employment". We do not suppose, however, that any particular point arises upon this difference in the terminology, because entry (6) of Schedule III the word "unemployment" is followed the words "of persons previously employed" which would include "non-employment" also. Thus the employee is given the right by virtue of S. 42 read with entry (6) of Schedule III not only to seek a remedy for his unemployment but also to apply for reinstatement. When the entry speaks of unemployment of persons previously employed, we can see no reason whatsoever for holding that retrenchment would not be included in this category. A person who is retrenched by his employer would equally well be a person who is unemployed but previously employed and who would also be entitled to reinstatement as indeed the workers have claimed in both these petitions.
12. Next we turn to provisions of S. 78. Under S. 78A(1)(a)(a)(i) a Labour Court is given the power to decide disputes regarding the propriety or legality of an order passed by an employer acting or purporting to Act under the standing orders and we have already shown that termination of employment is one of the subjects : vide item No. 10 mentioned in Schedule 1. Therefore there again the remedy given to the employee is to question legality or propriety of an order passed by his employer acting or purporting to act under the standing orders which includes termination of his employment and dismissal (vide item No. 11). It could surely not be said that when these rights are given to the Court to adjudicate upon these questions and to the employee seek relief against dismissal or termination of employment, the right cannot be available because in the definition the word used is "employee" and it does not expressly includes a retrenched employee.
13. More important are the provisions of S. 78(1)A(iii) which says that the Labour Court shall have power to decide disputes regarding any change made by an employer or desired by an employee in respect of an industrial matter specified in Schedule III (except item 5 thereof) and matter arising out of such change. We have already shown that Schedule III, entry (6) relates to unemployment of persons previously employed in the industry concerned and to reinstatement. Therefore clearly a retrenched employee is given the right to approach a Labour Court and it will be anomalous if although these rights are given to an employee who is retrenched, by the several provision of the Act which we have referred, nonetheless because a retrenched employee is not mentioned interims in the definition of an "employee" he will be disentitled to such relief.
14. We do not think such a conclusion is necessarily forced upon us. On the other hand, it seems to us that the definition of "employee" in S. 3(13) is wide enough to cover a retrenched employee. All that it says is that "employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry. The essential thing to find is therefore whether a person is employed for work in any industry and receives remuneration therefor. It is not necessary to limit the meaning of the words "any person employed" to "any person employed at the time that the dispute arose", and therefore we can safely hold having regard to the clear indications given by the other provisions of the Act. That it means any person employed to do work at any time and that the definition has no reference to the point of time at which the person whose case is under consideration was doing this work. It is also clear from what we have said that in the context of the other provision of the Act to which we have referred above it is necessary that we should hold that an employee means any person employed at any time to do any skilled or unskilled work for hire or reward in any industry. If this construction of the definition is not to be given it is clear that we would be rendering nugatory large parts of the Act particularly the provisions which we have mentioned above. What is still worse, we would be rendering nugatory provision of Chapter VA of the Central Industrial Disputes Act (India Act XIV of 1947) which deal with the right of the worker not to be retrenched without the conditions precedent under S. 25F the procedure for retrenchment under S. 25G and the re-employment of the retrenched workmen under S. 25H. If no remedy would be available to such persons who are retrenched it would be idle to make these provisions in the Industrial Disputes Act. Moreover, before we come to any such conclusion, viz., that the retrenched worker has no remedy, we must be compelled of the absolute necessity to do so which having regard to the provisions of the Bombay Industrial Relations Act we have shown is not necessary.
15. We may also say that any other connotation than the one which we have placed upon this definition would strongly militate against the very purpose and object of this enactment and of the Industrial Disputes Act, 1947, in which Chapter VA was incorporated by the express amendment. The whole purpose of the Chapter VA was to control the right of the employer to retrench by laying down the conditions precedent to retrenchment of workmen and prescribing the procedure for retrenchment which the employer is bound to follow. What is more, that chapter says that the worker if retrenched under the conditions mentioned would have a preferential right of employment under S. 25H upon certain conditions. All these salutary provisions made in the interest of fair and just relations between employers and employees would be rendered nugatory if the employee were deprived of the right given to him to approach the Court under S. 78, because the definition of the word "employee" does not specifically contain the word "retrenchment" or "retrenched employee". In our opinion a retrenched employee is also "a person employed in any industry" within the meaning of the main definition of "employee" in S. 3(13).
16. We have so far considered the position as it emerges upon in the provisions of the Act we are called upon construe, but on behalf of the parties several decisions were relied upon which throw a flood of light upon these provisions. No doubt it must be conceded that of the decisions that have been cited none arose specifically under the Bombay Industrial Relations Act, but as we shall show the definitions of the words "employee", "industrial disputes" and "industrial matter" in several of these statutes are in pari materia with the corresponding definitions of the Bombay Industrial Relations Act. The first of these cases is the decision of the Supreme Court in C. P. T. Service v. Raghunath, [1957 - I L.L.J. 27]. In that case the Supreme Court was called upon to construe the definition of "employee" in the C.P. and Berar Industrial Disputes Settlement Act (23 of 1947). The definition as it then stood in that Act in S. 2(10) was as follows :
"'employee' means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes ....."
We are not concerned here with the inclusive part of that definition for the purpose of the point we are dealing with. The first difference between this definition and our own is that there are additional words "by an employer". In our Act those words are not to be found. If anything, the omission of the word from the Bombay Industrial Relation Act would enlarge the scope of the definition, because the word "employer" is also defined both in the C.P. and Berar Industrial Disputes Settlement Act and in the Bombay Industrial Relations Act, and limits the meaning of that word, but the essential part of the definition is identical with the definition under the Bombay Industrial Relations Act as meaning "any person employed to do any skilled or unskilled work for hire or reward in any industry ......." Secondly, in the definition under the C.P. and Berar Industrial Disputes Settlement Act the words "for contract" are also to be found but it hardly makes any difference. In that Act also the expression "industrial matter" was substantially the same as in our Act, particularly the inclusive definition "and includes questions pertaining to (a) the relationship between employer and employee, or the dismissal or non-employment of any person .....". It will be noticed that this definitions is in almost similar terms as Clause (a) of S. 3(18) of Bombay Industrial Relations Act. Dealing with these provisions the Supreme Court was called upon to determine whether a dismissed worker is a "worker". The contention on behalf of the employer in that case is set forth at page 106 para 4 as follows :
"..... It was argued by Mr. Umrigar that when the respondent was dismissed on 28-6-1950, his employment came to an end, and that he could not thereafter be termed an employee, as that word is ordinarily understood, that it could not have been intention of the legislature to include in the definition of an employee even those who had ceased to be in service, as otherwise there was no need for the further provision in S. 2(10) that discharged employees would in certain cases be employees; and that, in any event, the inclusive portion of the definition would, on the principle expressio unius est exclusio alterius, operate to exclude all ex-employees, other than those mentioned therein".
The argument was in somewhat wider terms that it is necessary to consider in the present case but it would a fortiori apply in the present case where the question is whether a retrenched employee is an employee. Mr. Justice Venkatarama Ayyar referred to the decision of the Federal Court in Western India Automobile Assn. v. Industrial Tribunal, Bombay, [1949] F.C.R. 321; 51 Bom L.R. 894, and pointed out that in that case Federal Court had held having regard to the provision of S. 2(k) of the Industrial Disputes Act, No. 14 of 1947, that the definition "including as it did, all disputes or differences in connection with employment or non-employment of a person was sufficiently wide to include a claim for reinstatement by a dismissed workman." The learned Judge repelled the contention of counsel that the provisions of that Act were different from those of the C.P. and Berar Industrial Disputes Settlement Act and went on to say that S. 2(12) and S. 2(13) of the C.P. and Berar Industrial Disputes Settlement Act are substantially in pari materia with S. 2(k) of Act No. 14 of 1947 and that the decision of the Federal Court would apply in the case of the C.P. and Berar Industrial Disputes Settlement Act. Then it was contended before the Supreme Court that the inclusive clause gave an indication that the legislature did not intend to include within that definition who had ceased to be in service because it made express provisions for some categories of such persons. This contention was repelled (vide para. 6) (p. 107) :
"We are also unable to accede to the contention of the appellant that the inclusive clause in S. 2(10) of the Act is an indication that the legislature did not intend to include within that definition those who had ceased to be in service. In our opinion, that clause was inserted ex abundanti cautela to repel a possible contention that employees discharged under Ss. 31 and 32 of the Act would not fall within S. 2(10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition".
We have already said that in our opinion the substantial definition of "employee" in the C.P. and Berar Industrial Disputes Settlement Act is in pari materia with the definition in the first or the main clause of the Bombay Industrial Relations Act and in our opinion, therefore, the ratio of the decision of the Supreme Court would apply in the present case. The decision also gives a clue to the proper construction of the definition.
17. In a recent decision B. Coleman & Co. v. P. P. Das Gupta, [1969 - II L.L.J. 554], under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act (1955) the Supreme Court has made important observations as to the objects of industrial legislation and the manner in which it ought to be construed upon questions such as these we think that any doubt that may be left in one's mind is completely dispelled by those observations. In this case working journalist had claimed gratuity and compensation for the leave due to him on termination of his services. One of the contentions raised on behalf of Bennet Coleman & Co Ltd., in which he was employed was the working journalist not being in the company's employment at the time he filed his claim in the Labour Court, he was not a working journalist and, therefore, was not entitled to avail himself of the provision of the Act. The definition "working journalist" in that Act is of some importance. Clause
(f) of S. 2 of the Act defines a "working journalist" to mean a person whose principal avocation is that of a journalist and "who is employed as such in, or in relation to, any newspaper establishment". It may be noted that in that Act the present tense was used whereas under the Bombay Industrial Relations Act "employee" means any person employed. The latter definition is without reference to any tense, past, present or future, and yet the Supreme Court held upon the contention advanced that the benefit of Ss. 5 and 17 of that Act would be available to an ex-employee though he ceased to be in the employment of that particular newspaper establishment at the time that he made his application for gratuity. The Supreme Court also pointed out in coming to this conclusion that the definition was prefaced by the clause "In this Act unless the context otherwise requires", as in the present Act also and then went on to say what should be the proper mode of construction :
"... The definition in S. 2 of the present Act commences with the words 'In this Act unless the context otherwise requires' and provides that the definitions of the various expressions will be those that are given there. Similar qualifying expression are also to be found in the Industrial Disputes Act 1947, the Minimum Wages Act, 1948, the C.P. and Berar Industrial Disputes Settlement Act, 1947 and certain other statutes dealing with industrial questions. It is, therefore, clear that the definition of 'a newspaper employee' and 'working journalist' have to be construed in the light of and subject to the context requiring otherwise."
It was urged before their Lordships that the provisions of the Act should be examined to see if they are in pari materia, but their Lordships repelled the contention by holding :
"... The scheme of all these Act dealing with industrial questions is to permit an ex-employee to avail of the benefits of their provisions, the only requirement being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in the employment of the person against whom it is made. There can, therefore, be no doubt that the definitions of a 'newspaper employee' and 'working journalist being subject to a context to the contrary, the benefit of Sections 5 and 17 is available to an ex-employee though he has ceased to be in the employment of that particular newspaper establishment at the time of his application for gratuity. The contention that the respondent was not entitled to maintain his application as he was not in the service of the appellant company on the date of his claim before Labour Court cannot be sustained."
It is also of some interest to note that even in this case their Lordships reiterated the principle originally laid down in the Western India Automobile Association's case by the Federal Court and applied it equally to a case under the Working Journalist (Conditions of Service) and Miscellaneous Provisions Act and observed that the same would be the position in regard to "all similar Acts dealing with industrial relation". In our opinion, upon these pronouncements of the Supreme Court there can be no doubt left that the construction that we have placed upon similar words in the Bombay Industrial Relations Act is the correct construction.
18. So far as this Court is concerned, dealing with the corresponding definition of a "workman" in the Industrial Disputes Act, 14 of 1947, Chief Justice Chagla came to a similar conclusion and held that a person who is dismissed from his employment prior to the date when the dispute relating to his dismissal is referred by Government under S. 10(1)(c) of the Industrial Disputes Act, 1947, is a workman within the meaning S. 2(s) of the Act. See P. L. Mayekar v. Amichand, . Of course under that Act the procedure for the settlement of such a dispute is that prescribed by S. 10(1)(c) namely to refer the dispute to Government for making a reference. When a similar contention was raised namely that a workman dismissed prior to the reference made by Government would not fall within the definition of "workman" and no industrial dispute could be raised with regard to him, Chief Justice Chagla remarked (p. 1003) :
"... We will presently examine this contention, but it seems to us rather a startling submission to make that under the Industrial Disputes Act a workman who has been wrongly dismissed cannot raise an industrial dispute with regard to his wrongful dismissal. We should have thought that the very purpose of labour legislation was to prevent employers wrongfully dismissing their employees, and if they did so to confer jurisdiction upon Labour Courts to adjudicate upon the question as to whether the employee was wrongfully dismissed or not and also to confer jurisdiction upon Labour Courts in case of a wrongful dismissal to compel the employer either to reinstate the employee or to pay compensation".
Dealing with the particular definition in that Act he observed (p. 1004) :
"... Now, the definition of 'workman' does not indicate the workman must be employed at a particular moment of time. What is emphasised is that he must be employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward; in other words, the definition is intended to point out what the nature and characteristic of a person is who can be deemed to be a workman within the meaning of the Act. In our opinion, a workman as defined in this sub-section means any person who is employed at any time in an industry".
These remarks will apply equally to the present case.
19. In view of what we have said above, we must hold that we are in agreement with the view taken by Mr. Justice Tarkunde and not with the view expressed by Mr. Justice Bal. In that view also we do not think that we are called upon the say much regarding the decision in Laxman v. The State Industrial Court at Nagpur, for a mere perusal of that judgment shows that the learned Judges' attention was only invited to the second or the inclusive clause in the definition in the C.P. and Berar Industrial Disputes Settlement Act and the contention which has been put forward in the present case based upon the main definition in the first clause was not advanced. It is that contention which is the principle contention raised before us and which commended itself to Mr. Justice Tarkunde. It is necessary for us therefore to examine the Division Bench judgment at Nagpur because it was concerned with the subsequent portion of the definition whereas, in our opinion, a retrenched employee would clearly fall within the main definition contained in the first clause. We must, however, say that we must not be understood to be in agreement with the conclusion reached in that decision.
20. On behalf of the employers an ancillary contention was sought to be raised before us that in this case an employee qua employee has no right to go to the Labour Court at all but that if he has any right at all it can be agitated only through a representative of the employees, namely the labour union. Counsel sought out to raise this point saying that it was an ancillary point arising upon a reconsideration of the definition of an employee. In the first place we do not think that we are called upon to consider this point in the present reference. As we have shown the reference has framed only one question and our duty is to answer that question and to say nothing more. We only advert to this point here to make it clear that whatever we may have decided in this reference is only with reference to the question referred to us and that does not shut out the employers as also the employees from raising any other point when the matter goes back to the Division Bench for a final decision of the Special Civil Application.
21. In the result, we answer the question as follows :-
A "retrenched employee" is an employee within S. 3(13) of the Bombay Industrial Relations Act, 1946 and can apply for reinstatement to Labour Court under Ss. 78 and 79 of the said Act. The costs shall be costs in the Special Civil Applications. The papers will now be returned early for the decision of the Special Civil Applications to a Division Bench doing constitutional work since both the learned Judges who took part in this reference are no longer members of this Court.
Per Mody, J.
22. I fully agree, with respect, with the final conclusion reached by the learned Chief Justice in his judgment. As regards the reasoning on which the conclusions are reached, I, speaking for myself, would rest content only on the ground that the judgment of the Supreme Court in B. Coleman & Co. v. P. P. Das Gupta, (supra) as regards the construction of the word "employee" in clause (13) of S. 3 of the Bombay Industrial Relations Act is binding upon this Court, without this Court examining the different provisions of that Act and Scheme of the Act and the effect of other decided cases.