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1 - 10 of 20 (0.33 seconds)Workmen Of Dahingeapar Tea Estate vs Dahingeapar Tea Estate on 21 May, 1958
11. It was next argued that the tribunal would have no jurisdiction to enter into or adjudicate complicated questions of fact or law. For that proposition reliance was placed on the decision in Workmen of Dahingeapar Tea Estate v. Dahingeapar Tea Estate [1958 - II L.L.J. 498], where the Supreme court has observed that the industrial tribunal cannot deal with questions as mere abstract questions of law. What the decision, however, laid down was that it was doubtful whether the Tribunal in that case could have decided an abstract question of law, namely whether on a transfer of management consequent on sale of an undertaking the services of workmen were automatically put an end to It was in connexion with such a question that the Supreme Court stated that since an abstract question must depend on diverse circumstances relating to and arising from contractual relations between the parties unless those questions also were referred in industrial tribunal should not and cannot decide a mere abstract question. If however a specific demand is referred to for adjudication and such a demand involves leading of evidence and a decision even on a complicated question of fact the tribunal obviously cannot refuse to decide it merely on the ground that such a question is a complicated question or that it involves a complicated question of law. If a reference is complicated though it might involve complicated questions of fact and law, the tribunal for that reason alone cannot decline to adjudicate such questions. The contention, therefore, has to be rejected.
Section 10 in The Industrial Disputes Act, 1947 [Entire Act]
The Industrial Disputes Act, 1947
The Bombay Union Of Journalists And ... vs The, Hindu', Bombay, And Another on 27 September, 1961
Sri Mankad, however, relied upon the decision in Bombay Union of Journalists and others v. "Hindu," Bombay, and another [1961 - II L.L.J. 436] where the learned Judges have observed that persons supporting such an individual dispute of a workman must themselves be directly and substantially interested in the dispute. On advocate argued that there must be a community of interest between the workman concerned and his supporters and since the workmen employed in the petitioner corporation were not likely to take any interest in the dispute whether respondent 3 continued to be an employee or not of the petitioner-corporation after he commenced working for the subsidiary company the dispute would not become an industrial dispute. It may however, be observed that these remarks by the Supreme Court were made in the light of the facts of the case which they were dealing with. In that case the "Hindu" had an office in Bombay since 1937. At the material time the "Hindu" Bombay besides appellant 3 who claimed to be a full-time employee of the "Hindu" Bombay only nine employees seven serving on the administrative side and two journalists. Salivateeswaran appellant 3, and another journalist were members of the Bombay Union of Journalists. The Bombay Union of journalists was a trade union, the membership of which was open to all persons who depended or their livelihood upon the practice of the profession of journalism, including press-photographers artists cartoonists and free-lance writers. Admittedly this union was not a union of the employees of the "Hindu" Bombay but was a union of all persons who depended for their livelihood upon journalism in Bombay. By its resolution the Bombay Union of Journalists supported the claim of Salivateeswaran in an application filed by him under S. 17 of Act 45 of 1955. The "Hindu" Bombay challenged the competence of the State Government to refer the dispute inter alia on the ground that there was no dispute between the working journalists of the "Hindu," Bombay, on the one hand and the management on the other and the dispute raised by appellant 3 was merely an individual dispute which was not supported by an appreciable number of employees of the "Hindu," Bombay. It was in connexion with this contention that the Supreme Court observed that the dispute being prima facie an individual dispute in order that it may become an industrial dispute it had to be established that it had been taken up by the union of the employees of the "Hindu," Bombay, or by an appreciable number of employees of the "Hindu," Bombay and negativing the contention on behalf of the appellants that the dispute was supported by the Bombay Union of Journalists of which appellant 3 was a member the court observed that the Bombay Union of Journalists was a union not of all employees of one employer but of all employees in the industry of journalism in Bombay. The Supreme Court held that support of the cause by the union would not convert the individual dispute of one of its members into an industrial dispute that as the dispute between "Hindu," Bombay, and appellant 3 was in respect of alleged wrongful termination of employment it would acquire the character of an industrial dispute only if it was proved that it was before it was referred supported by the union of the employees of "Hindu," Bombay, or by an appreciable number of its employees. It was in these circumstances that the Supreme court applied the principle that the persons who seek to support the case of a workman must themselves be directly and substantially interested with the dispute in order that such a dispute may convert itself into an industrial dispute. It is difficult to see how these observations can be relied upon by Sri Mankad for it cannot be gainsaid that the dispute though relating to an individual employee had been sponsored by respondent 2, a union of which respondent 3 has been member In the present case unlike the case of "Hindu," the dispute relating to responded 3 has need sponsored and made a common cause by the union of which he is a member. No dispute was raised before the tribunal that the members in the union were not the directly and substantially interested in the dispute it is possible that there might be an appreciable number of persons whose services were transferred to the subsidiary company or whose services might in future be transferred to some other allied or the subsidiary company Such persons would obviously be directly interested in the present dispute. If the petitioner-corporation had disputed before the tribunal that the union, which sponsored the dispute of respondent 3, did not have members in appreciable number who were directly or substantially interested in the present dispute respondent 3 would have led evidence to the contrary. The tribunal was careful in specifically setting out the contentions raised before it and if such a contention had been raised by the petitioner corporation we are sure that the tribunal would have discussed such a contention and the respondent might have had an opportunity of leading evidence to show to the contrary.
Corporation Of City Of Nagpur vs N.H. Mujumdar And Ors. on 11 September, 1957
It was also argued that respondent 3 was not an existing employee of the petitioner corporation and therefore again, the dispute regarding him could not be referred to. Reliance was placed on Corporation of the City of Nagpur v. N. H. Majumdar and others [1958 - I L.L.J. 761] where Mudholkar and Kotval, JJ., observed that where a reference deals with "employees" it means the employees who must necessarily be existing employees or employees "dismissed, discharged or removed on account of any industrial dispute" and does not include persons who have ceased to be employees on account of superannuation, dismissal, discharge or removal. This observation, however, must be considered in the light of the facts of that case. The question there was whether gratuity could be directed to be paid to persons who had retired from service before the reference was made, and it appears that the High Court held that on the terms of the reference, it was concerned with the existing employees on the date of reference. Looking to the words in Clause (s) of S. (2) it is clear that there are three classes of persons who would fall within that definition -
Mayekar P.L. vs Amichand Narayan on 6 April, 1955
13. The last two categories of persons are workmen in addition to the first category, for it is a well-settled rule of construction that a part of a definition which is an inclusive definition adds to the persons relating to whom a definition is given other persons who otherwise would not be included. In this view, respondent 3 would be a workman falling in the first and the third categories for, he was a person employed in an industry and whose non-employment led to the present dispute. A similar contention was raised before the High Court of Bombay in P. L. Mayekar v. Amichand Narayan [1956 - I L.L.J. 492], and the High Court there held that a workman as defined in S. 2(s) meant any person who was employed at any time in an industry. If he satisfied the definition of "workman," then whether he could raise an industrial dispute or not must be judged by the definition of "industrial dispute" given in S. 2(k) of the Act. A person, therefore, who is dismissed or whom his employer declines to employ prior to the date when the dispute relating to his dismissal or non-employment is referred to by the Government under S. 10(1), is a workman within the meaning lot S. 2(s) of the Act. In our view, there is therefore no validity in the contention raised by Sri Mankad.
Jestamani Gulabrai Dholkia And Others vs The Scindia Steam Navigation Company, ... on 30 November, 1960
14. Sri. Mankad then urged that in September, 1953, when the services of respondent 3 were transferred to the subsidiary company respondent 3 voluntarily opted for service in the subsidiary company and therefore ceased thenceforth to be the employee of the petitioner-corporation. That being the position, the petitioner- corporation was entitled to refuse to absorb him in 1958 and the tribunal was wrong in ordering the corporation to absorb and reinstate him in its service, The argument was that on and from September, 1953, the subsidiary company and control over the work of respondent 3, wages were paid to him by that company, respondent 3 was actually working for that company and it was that company which had control and the right of supervision over his work and that therefore, there was termination of the relationship of master and servant between the petitioner-corporation and respondent 3 as from the date of the aforesaid transfer. Sri Mankad very strongly relied upon the Supreme Court decision in Jeshtamani Gulabrai Dholkia and others v. Scindia Steam Navigation Company, Bombay, and others [1961 - I L.L.J. 318]. This decision in our view, cannot apply and therefore cannot assist the petitioner corporation. The facts there was that the appellants were originally in the service of the Scindia Steam Navigation Company, Ltd. In 1943, the Scindias purchased another company known as Air Services of India, Ltd., and by 1946 the Air Service of India was a full subsidiary of the Scindias. Between 1946 and 1951, a large number of employees of Scindias were transferred to Air Services of India for indefinite periods. The appellants were to get the same scale of pay as other employees of the Scindias and the same terms and conditions of service were to apply. The Scindias however retained the right to recall these employees when their services were lent to the Air Services of India, and the appellants were entitled to go beck to Scindias if they so desired. In 1953, the Air Corporations Act, XXVII of 1953, was passed. Thereunder, all the existing airlines, including the Air Services of India, became vested in the Indian Air Lines Corporation as from the appointed day set out therein. Section 20(1) of the Act provided that every officer or other employee of an existing air company employed by that company prior to July, 1952 and still in its employment immediately before the appointed day shall, in so far as such officer or other employee is employed in connexion with the undertaking which has vested in either of the corporations by virtue of the Act, become as from the appointed day an officer or other employee, as the case may be, of the corporation in which the undertaking has vested and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and conditions as he would have held the same under the existing air company if its undertaking had not vested in the corporation. The proviso to that sub-section stated that nothing contained in the section should apply to any officer or other employee who has, by notice in writing given to the corporation concerned prior to such date as may be fixed by the Central Government by notification in the official gazette intimated his intention of not becoming an officer or other employee of the corporation. It was common ground that the appellants had not given the notice as required by the proviso to S. 20(1). On 1 August, 1953, that being the appointed day under the Act, the Air Services of India vested in the corporation and as none of the appellants and exercised the option given to them under the aforesaid proviso they became the employees lot the corporation. The contention on behalf of the appellants was that they were not governed by S. 20(1), and in any event the contract lot service between the appellant and the Scindias was not assignable or transferable by law and further that even if S. 20(1) applied, the Scindias were bound to take back the appellants. The Supreme Court negatived these contentions and said that though it was true that the appellants were not originally recruited by the Air Services of India and were transferred on loan to the Air Services of India, for the purposes of S. 20(1), two questions would have to be considered, namely - (1) whether an officer or an employee was employed by the existing air company on 1 July, 1952, and
(2) whether he was still in its employment on the appointed day, namely, 1 August, 1953.
Dharangadhara Chemical Works Ltd vs State Of Saurashtra on 23 November, 1956
[See Dhrangadhra Chemical Works, Ltd. v. State of Saurashtra and others [1957 - I L.L.J. 477 at 482]. That cannot be said in this case and it was in fact not so urged even by Sri Mankad. But assuming that we were to go behind that finding, the question is whether the present case is on a par with the case of the Scindias, and can it be said, as was said in that case, that the right to be taken back and the corresponding obligation to take back were special terms of the contract of transfer ? If it can be shown that respondent 3 was not a party to such an agreement of transfer, can one say that the petitioner-corporation had a right to transfer his services and thereupon unilaterally bring about termination of the relationship of master and servant ? In the case of contracts of master and servant, a servant is under the control of the master and owes him the duty of faithful service so that a master and a servant each contracts on the basis of personal qualities of the other and a performance by a third party cannot be relied upon as a performance of the contract.