Management of Belal Biri Factory (P.) Ltd. vs Union of India(UOI) and Others

S.K. Jha, J.—In this application under Articles 226 and 227 of the Constitution of India, the Management of M/s. Belal Biri Factory (P) Ltd., which is the petitioner, has challenged the legality and validity of the award made by the Presiding Officer of the Labour Court, Bhagalpur (respondent 3) on 15th of November, 1973, in Reference Case No. 26/70 and 24/71 a copy whereof has been marked Annexure 1 to this petition. The prayer made in the petition is for issuance of an appropriate writ quashing Annexure 11. By the impugned annexure the Labour Court has held that the workman concerned, namely, Copal Chandra Ghoshal (respondent 4), employed as a Clerk by the petitioner at Deoghar, had been illegally dismissed. He was, therefore, entitled to be reinstated. Accordingly, a direction has been made under the award for the reinstatement of respondent 4 and further that the petitioner to pay his entire salary at the rate he was being paid due from the time of his discharge till he is reinstated. A further sum of Rs. 200/- by way of compensation and cost of the proceeding has also been allowed.

The State Government in the department of Labour and Employment by its notification No. III/DI-17035/70 I. and E. 2089(3) dated 19.3.1971 referred the following dispute for adjudication to the Labour Court at Patna u/s 10(1) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act):

Whether the removal from employment of Sri Gopal Chandra Ghoshal is proper and justified? If not, is he entitled to reinstatement and/or any other relief?

It was later transferred to the Labour Court, Bhagalpur.

Shortly stated, the facts are these. Sri Gopal Chandra Ghoshal (respondent 4) was employed as a Clerk by the petitioner-employer at Deoghar. His case was that, he was in the service of the factory since June, 1965, on a monthly salary of Rs. 75 only. He demanded increment in the salary, payment of bonus and wages for extra hours of work. He was, however, always told by the management that he would not be paid anything further and if he so liked he might leave the job. Ultimately, he had told the petitioner that if his request was not considered, he would move the Labour Department Officers in this connection. This caused annoyance to the employer, and when he was leaving the office after finishing his work in the evening of 17th of May, 1969, he was asked by the Manager not to come to work from the next day. His further case was that when he asked the reason for this, the Manager got angry and asked him to get away or else he would be forcibly thrown out. Even then, he went to the Management continuously for three days, that is, on 18th, 19th and 20th of May, 1969, requesting that he be kept in employment. This prayer was also refused. Then, he filed a complaint before the Labour, Officer. Conciliation proceedings followed, which resulted in failure.

The case of the Management-petitioner was that it had never removed respondent 4 from service. It had only transferred him to work in the factory at Dhulian in West Bengal. It has been said that respondent 4 neither made any protest nor made any grievance in regard to such an order of transfer, but he never reported himself for duty either at Dhulian or at Deoghar.

While giving reliefs to respondent 4 the Labour Court has held that that case put forward on behalf of the Management was not true, and the workman''s case was accepted, namely, that his services had been illegally terminated. It has further been found that respondent 4 did make repeated requests on 18th, 19th and 20th of May 1969, and his prayer was not heeded to by the Management. Another point raised before the Labour Court, namely, that the provisions of the Act should not be made applicable in view of the fact that the petitioner''s industrial premises and the conditions of work of respondent 4 were wholly governed by the provisions of the Beedi and Cigar workers (Conditions of Employment) Act, 1966 (Act 32 of 1966), herein after referred to as the Beedi Act, was also negatived by the Labour Court.

Mr. J. Krishna, learned Counsel for the petitioner, raised five points in support of this application. In the first instance he urged that a point had been taken in the petition that Section2A of the Act was ultra vires the Constitution of India as it offended the provisions of Article 14 of the Constitution. It was, therefore, prayed that in view of the provisions of Article 226A read with Article 131A this question should be referred to the Supreme Court of India. It was next urged that if the question be held to be not fit for reference to the Supreme Court, then, on merits, Annexure 11 should be held to be illegal for the following reasons:

(1) In view of the provisions of the Beedi Act which occupies the whole field in the matter of service and the relation of the employer and the employee in that trade, it should be held that the provisions of the Act were not applicable to workers whose conditions of employment were governed by the Beedi Act, and it should be held, therefore, that the reference was itself incompetent.

(2) It should be held that no demand had been raised before the Management and as such there could not be said to have been any industrial dispute which could be referred to the Labour Court.

(3) The Labour Court has adopted double standard in the appraisal of evidence adduced before it and has not considered some material evidence.

(4) In any view of the matter, the relief by way of compensation would have served the ends of justice, and, therefore, this Court should substitute the relief granted by the Labour Court to respondent 4 by awarding compensation only in lieu of reinstatement.

Before entering upon the merits of the case it has to be decided as to whether in view of the provisions of Articles 226A and 131A of the Constitution it is necessary to refer the question of vires of Section 2A of the Act to the Supreme Court. Mr. A.K. Sinha, learned Standing Counsel for the Union of Indiia, contended that no such reference was called for in this case, because the pont raised was, more or less, frivolous in nature, as even prima facie there could not be said to be involved in the case any question regarding the constitutional validity of Section 2A, and that the point raised, even prima facie, has no substance in it. It was, therefore, not a case to hold that the determination of such question was either necessary for the disposal of this case or that the case involved any question of constitutional validity of any Central law within the meaning of Article 131A(2). For that matter, it was further argued that this Court was not called upon to consider the constitutional validity of the law within the meaning of Article 131A of the Constitution. I think, there is sufficient force in the contention of the learned Standing Counsel for the Union of India. A Bench of this Court had occasion to deal with the provisions of Article 228A of the Constitution in the case of Mahabir Tea Co. v. The State of Bihar 1977 C.W.J.C. 151 and analogous cases of 1977 decided on 30th March, 1977. In that case it had been urged by Dr. Singhvi that once the case had been admitted and the petition showed that grounds had been taken therein to challenge the validity of the State law alleging violation of constitutional provisions, the Bench was precluded from hearing any argument in detail and should declare at once that it was a case which should be heard by five Judges of the Court, in view of Article 228A. Shambhu Prasad Singh, J., with whom S.K. Choudhuri, J., agreed, while repelling this contention, held as follows ;

I am not inclined to accept this contention of Dr. Singhvi that once a writ application is admitted and there are some statements made in the writ petition challenging the validity of some State law on constitutional grounds, a Single Judge or a Bench of two Judges before whom the case is placed need not go into the question whether there is any substance in such grounds prima facie or they are frivolous and must declare that the case should be heard by a Bench consisting of at least five Judges. According to Dr. Singhvi, the order of admission itself indicated that there is prima facie substance in such grounds. But I do not think he is right there. A petition may challenge validity of a State law both on constitutional and non-constitutional grounds. The Bench admitting the case may not be impressed by the constitutional grounds but by the non-constitutional grounds. It not being the practice of this Court to indicate while admitting a case what grounds impressed it for the purpose of admission, it will not be desirable to hold that in such a case if constitutional grounds have been taken challenging the validity of State law the case must be heard by a Bench of five Judges or more.

In my view, the same principle should be borne in mind while making any reference in terms of Clause (2) of Article 131A of the Constitution. The Bench hearing the application roust prima facie be satisfied that the case pending before it involves questions as to the constitutional validity of any Central law, and that the determination of such questions must precede the disposal of the case. So far as Article 226A is concerned, it will be found that it lays down that the High Court shall not consider the constitutional validity of any Central law or any provision thereof under Article 226. This provision has to be read in the context of the language of Clause (1) of Article 131A, which lays down that the Supreme Court shall, to the exclusion of every other Court have jurisdiction to determine all questions relating to the constitutional validity of any Central law. If in a case the Bench hearing the application prima facie is not satisfied that there is even a semblance of justification for considering the constitutional validity of any Central law, then obviously it is not called upon to determine the validity of any Central law as unconstitutional, nor is such a question necessary for the disposal of the case so that the determination of it is necessary by the Supreme Court. In the present case, the point raised in the application and even by learned Counsel for the petitioner is, in my view, frivolous in nature. I am not even prima facie satisfied that the question relating to the constitutional validity of Section 2A of the Act can be said to ''be necessary for determination or for disposal of the case. As a matter of fact, there cannot be any question of Section 2A by itself being in any way violative of the guarantees of Article 14 or 19(1)(c) of the Constitution. The question for determination, if at all, will arise only in making a reference u/s 10(1) of the Act. It was, therefore, sought to be argued that Section2A read with Section 10(1) of the Act should be held to be ultra vires.

In the case of N.T.F. Mills Ltd. v. The 2nd Punjab Tribunal (1), it has been settled by the Supreme Court that Section 10 of the Act is not discriminatory in its ambit and the appropriate Government is at liberty, as and when the occasion arises, to refer the industrial disputes arising or threatening to arise between the employers and the workmen to one or the other of the authorities according to the exigencies of the situation. No two cases are alike in nature, and the industrial disputes which arise or are apprehended to arise in particular establishments or undertakings require to be treated having regard to the situation prevailing in the same. There cannot be any classification, and the reference to one or the other of the authorities has necessarily got to be determined in the exercise of its best discretion by the appropriate Government. Such discretion is not an unfettered or an uncontrolled discretion nor an unguided one because the criteria for the exercise of such discretion are to be found in the Act itself. It was further held that it cannot also be urged that there is an unguided or unfettered discretion in the matter of changing the period of operation of the award. The relevant provisions of the Act and in particular Section 10 thereof were held by the Supreme Court not to be unconstitutional or void as infringing the fundamental rights guaranteed under Articles 14 and 19 of the Constitution. This decision has subsequently been followed in numerous other decisions to which it is not necessary to make any reference. It has further been held by the Supreme Court in quite a number of cases that Section 2A is in the nature of an explanation to Section 2(k) of the Act which defines "industrial dispute". It has been repeatedly held that by legal fiction Section 2A includes in certain circumstances an individual dispute within the definition of "industrial dispute", as laid down in Section 2(k). That being so and the provisions of Section 10(1) of the Act remaining the same, I do not see any justification in the contention that the authority of the Supreme Court in the case of N.T.F. Mills Ltd. (supra) can in any manner be held to be whittled down by the introduction of Section 2A in the Act. The same reasoning which the Supreme Court applied in that case will still held good in spite of the definition of "industrial dispute" being enlarged by legal fiction under the provisions of Section 2A. There is absolutely no plausible reason as appears from the language of Section 2A to justify even any prima facie conclusion that the provision by itself can in any way be attacked on the ground of infraction of Article 14, or for that matter any other fundamental right of the employers or the workmen. As a matter of fact, even in the context of Section 10(1) when such point with regard to the constitutional invalidity of Section 2A was canvassed before the High Courts, all the decisions have gone one way only, namely, that the constitutional validity of Section 2A could not be challenged successfully. I may merely refer to some of such decisions. There are Bench decisions of the Calcutta'', Punjab and Haryana and Mysore High Courts as well as of this Court. There is a Full Bench decision of the Delhi High Court also as well as a Single Judge decision of the Madras High Court. These decisions are State of W.B. v. J. & J.G.B.S. Assn. 1973 Lab. I.C. 1243, of the Calcutta High Court; Atlas Cycle Industries Ltd., Sonepat Vs. P.N. Thukral and Others, of the Punjab and Haryana High Court; P. Janardhana v. Union of India AIR 1970 Mys 171 of the Mysore High Court. The Full Bench decision of the Delhi High Court is reported in Toshniwal Bros. (P.) Ltd. v. Presiding Officer, Labour Court 1969 (19) F.L.R. 352. The Single Judge decision of the Madras High Court finds place in T.V. Sundaram Iyengar and Sons (P) Ltd. by Managing Director, T.S. Krishna, Madurai Vs. State of Madras and Others, . In all these cases it has been held that Section 2A of the Act read with the other provisions thereof is not open to attack on the ground of constitutional validity. In some cases the vires was challenged on the ground of legislative incompetence in the Parliament while in others on the ground that it attracted the infraction of Articles 14 and 19 of the Constitution. All such points raised in those cases have been uniformly rejected. The Bench decision of this Court in Guhi Ram Das v. Union of India 1973 B.B.C.J. 173 and two unreported Bench decisions in 1969 C.W.J.C. 1512 decided on 4th of November, 1970, 1972 C.W.J.C. 852 decided on 8th September, 1975, also lend support to this view. As a matter of fact, on none of the numerous occasions when Section 2A of the Act came up for consideration before the Supreme Court has any such point been raised nor any comment made by it. In a sense it can well be said that the Supreme Court has sub-silentto given its seal to the validity of Section 2A.

It is unfortunate that Mr. J. Krishna, learned Counsel for the petitioner, sought to invite our attention to the decision of a learned Single Judge of the Calcutta High Court in the case of J. & J.G.B.S. Asscn. v. S.I. Tribunal W.B.(8) because that decision stands reversed in Letters Patent Appeal by the Division Bench to which reference has already been made earlier. In my view therefore, there is not even any semblance of justification for such a question to be raised in this application, and for the same reason I do not think that it is either necessary for the disposal of this case or to be referred to the Supreme Court for determination of any such question. Reference to the Supreme Court under Article 131A cannot be made on the mere asking for it merely because a point has been taken in the petition, although there may not be absolutely any substance even prima facie in such a point. In order to make it a question involved there must be a prima facie arguable case which needs to be gone into by the Supreme Court. I, therefore, must record my inability to accede to the request of learned Counsel for the petitioner for reference to the Supreme Court in terms of Article 131A(2) of the Constitution.

That then brings us to the attack on the impugned award on merits Apropos the first point on merits of learned Counsel for the petitioner, namely, that the provisions of the Act should be held not to apply to cases of the present nature. It was submitted that the Beedi Act was a complete code by itself and occupied the whole field of conditions of employment as well as the adjudication of the rights of the workmen. Since the Beedi Act was a special Act, it must be held to have overridden the provisions of the Industrial Disputes Act in respect of the conditions of employment of workers engaged in any Beedi or Cigar industry. It was argued that the principle of ''generalia specialibis non derogant'' or in the alternative ''generalibus specialia derogant'' should be made to apply in this case, as the Beedi Act was a special Act. The is no substance in this contention for, inter alia, two reasons. Firstly Section 39(1) of the Beedi Act expressly lays down that the provisions of the Industrial Disputes Act, 1947 shall apply to matters arising in respect of every industrial premises. Sub-section (2) of Section 39 provides a non-obstante clause by saying that notwithstanding anything contained in Sub-section (1) a dispute between an employer and employee relating to (a) the issue by the employer of raw materials to the employees, (b) the rejection by the employer of beedi or cigar or both made by an employee, (c) the payment of wages for the beedi or cigar or both rejected by the employer, shall be settled by such authority and in such summary manner as the State Government may by rules specify in this behalf. Thus while keeping the machinery for industrial adjudication as laid down in the Act open to the matters asising in every industrial premises which are governed by the Beedi Act, the workers thereof have further been given a safeguard with regard to such matters as enumerated in Sub-section (2)(b) of Section 39 which may not, strictly speaking, be covered by the provisions of the Industrial Dispute Act. In view of the express language of Section 39(1) it is not possible to accept the contention of learned Counsel for the petitioner that Section 31(2) and (3) prescribes a complete Code in matter of dismissal, retrenchment or discharge of "any employee. It is true that Section 31(2) gives a right to the employee who has been discharged, dismissed or retrenched to appeal to the prescribed authority on the ground that he had not been guilty of misconduct or there could be no reason for dispensing with his services or that such punishment of discharge or dismissal was severe. The appellate authority may dismiss the appeal, or make the reinstatement of the employee with or without wages for the period during which he was out of employment, or direct payment of compensation without reinstatement or grant such other relief which the appellate authority may deem fit in the circumstances of the case. Sub-section (3) of Section 31 also attaches finality to the decision of the appellate authority. It is worthwhile to mention that the Beedi Act came into force in the State of Bihar on 1st of January 1969 in view of the notification issued u/s 1(3) by the State Government, being S.O. No. 1001 dated 19.12.1968 published in the Bihar Gazette Extraordinary dated 20.12.1968. It is also the accepted position that the rules prescribed the appellate authority within the meaning of Section 31(2) and (3) as being the Labour Court itself. The provisions of Sub-section (2) and (3) of Section 31, in my view, merely give the employee concerned an additional safeguard. There may be a case when an employee may not choose to wait for a long and protracted course to adopt by way of conciliation, reference and then adjudication under the provisions of the Act. Since the time limit fixed for the filing of the appeal by the aggrieved employee before the appellate authority has been laid down by the rules as thirty days, the employee concerned may avail of the remedy provided in Sub-section (2) of Section 31 without resorting to the provisions of the Act and waiting for a reference by the appropriate Government. It cannot, however, be said that the provisions of Sub-sections (2) and (3) of Section 31 should be so construed as to nullify the language of Section 39(1) of the Beedi Act. The other reason for which I do not accept this contention is that a similar argument had been advanced before and repelled by a Full Bench of this Court in Managing Director, I.O.C. v. C.D. Singh (9) in respect of Section 26 of the Bihar Shops and Establishments Act, 1953. In the Bihar Shops and Establishment Act, Section 26(2) which gives every employee dismissed or discharged a similar remedy as in the Beedi Act, and Sub-section (6) of Section 26 of the Bihar Act which lays down that the decision of the prescribed authority shall be final and binding on both the employee and employer came up for consideration before the Full Bench for the purpose of deciding as to whether such provisions excluded the operation of the Industrial Disputes Act to cases which were covered by the Bihar Act. The Full Bench, after considering the matter in all its ramifications, held that the provisions of the Act and the Bihar Act were not mutually exclusive. It was further held that the remedy provided by the Bihar Act u/s 26(2) as well as the reference u/s 10 of the Act were both available to an aggrieved workman, and the reference under the Act and the case under the Bihar Act could proceed simultaneously. The Bench decision in the case of C.D. Singh (supra) squarely covers the point raised by learned Counsel for the petitioner against the petitioner''s stand. Learnded counsel invited our attention to a Bench decision of the Court in the case of Samachar Bharti v. Kedar Nath (10). The ratio of that case, however, cannot be pressed into service in support of the petitioner''s case. In that case it was held by a Bench that the Bihar Shops and Establishments Act was a general Act, while the Working Journalists Act (Central Act XLV of 1955) was a special Act governing the service conditions of the working journalists only working in the newspapers establishment. That being so on the principle ''gene-ralibus specialia derogant'' the special Act will exclude the application of general Act. Further, it was held by the Division Bench in Samachar Bharati''s case that reading the working Journalists Act with Sections 2A and 10 of the Industrial Disputes Act it would be noticed that the order of an alleged dismissal or discharge could be attacked by raising an Industrial dispute, and the scope of the reference u/s 10 of the Act would be in one sense wider than the remedy provided in Section 26 of the Bihar Act. It was further held in that case, following the Full Bench decision referred to above, that the Industrial Disputes Act also no doubt in some matters does regulate the service conditions of the workmen employed in an industry, but the dominant object of the Act is not to provide for the service conditions of the workmen, as the preamble of the Act indicates, but it is an Act to make provisions for the settlement of industrial disputes and for certain other purposes. Reading the Bench decision of Samachar Bharati''s case as a whole, I think, the decision is more against the petitioner than in his favour. I would, therefore, hold that it cannot be said that the Beedi Act in any way curtails or restricts the provisions of the Industrial Disputes Act in respect of workers engaged in industrial premises governed by the Beedi Act.

There is equally no force in the contention that it ought to have been held that no demand was raised before the Management and as such there could not be said to arise any industrial dispute which could be referred to a Labour Court. In paragraph 16 of the impugned award the Labour Court has referred to the evidence of the workmen who had deposed to the effect that he had gone to the Manager on three days, that is, on 18th, 19th and 20th of May, 1969, requesting him to retain him in service, but that was flatly denied and he was asked to go away. The Labour Court has held that there seems to be no reason to disbelieve this part of his evidence. Accordingly, it has, come to the conclusion that the demand had been raised with the Management, before respondent 4 applied to the Labour Officer complaining about the illegal way of his discharge. Even before the matter was gone into the conciliation proceedings, as will be seen from Annexures 1 and 2 to the petition itself, the Labour Officer had sent the complaint of respondent 4 (Annexure 1) to the Management for its comments. Annexure 2 contains the comments of the petitioner on the complaint of respondent 4. Even in Annexure 2 it is no where said that the petitioner was at any point of time prepared to take respondent 4 back to the service on any condition. On the contrary, what has been said by the petitioner in Annexure 2 is that the service of respondent 4 had never been terminated ; rather, he had put the company to great inconvenience by leaving the service without information. The prayer made to the Labour Officer under Annexure 2 was merely to drop the proceeding. Taking the overall picture into consideration, I am not prepared to accept the contention factually that no demand was ever raised before the Management at any point of time preceding either the conciliation proceedings or the reference. As a matter of fact, this is a pure finding of fact based on appraisal of evidence recorded by the Labour Court. Learned Counsel for the petitioner referred to the decision of the Supreme Court in The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, and to F.L. Corporation (P.) Ltd. v. Union of India (12). The principle of law is only too well settled that a demand must be raised by the employee with the employer so as to bring it within the purview of an ''industrial dispute''. Nonetheless, the question as to whether in a particular case such a demand was raised or not is essentially a question of fact. The Labour Court having recorded the finding of fact in this regard, the principle enunciated in the aforesaid two decisions cannot be pressed into service by the petitioner on the facts of the instant case.

With regard to the last two points on merits, nothing has been shown to us to hold that the Labour Court had recorded any perverse finding or for the matter that there had been a double standard in the appraisal of evidence, nor could it be shown to us as to what material evidence the Labour Court had failed to consider. On such facts and in these circumstances, it cannot also be said that relief by way of compensation must he a suitable alternative in the ends of justice in the instant case. On the findings recorded by the Labour Court. I do not feel inclined to sub-stitute the order of reinstatement by an order of compensation. No plausible argument could be advanced in support of such a contention.

For the reasons aforesaid, I do not find any substance in this application. It is accordingly dismissed. In the circumstances, however, I shall make no order as to costs.