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Judgment
Mitter, J.—This is an application to make absolute a rule nisi calling- upon Respondent No. 1 to show cause why a writ of certiorari should not be issued to the end that certain proceedings before him be quashed as also to show cause why he should not forbear from entering upon a certain reference and from making- any award or adjudication thereupon. The application is both under Art. 226 of the Constitution of India and under sec. 45 of the Specific Relief Act. The applicant is the proprietor of the Weekly Notes Printing Works. He is (I) Vol. 1, Indian Factories Journal (Reports) 217 also the Editor of the Calcutta Weekly Notes. Respondent No. 1 M. C. Banerjee is the Chairman of the Tribunal constituted under the Industrial Disputes Act (Act XIV of 1947) and Bengal Industrial Disputes Rules, 1947, regarding an alleged industrial dispute between the parties herein. He has his office at No. 8, Lyons Range, Calcutta, within the jurisdiction of this Court. The second Respondent Mahendra Nath Banerjee worked for many years as a Lino Operator in the said Printing Works of the applicant.
The facts which need be stated for the purpose of this application are these:
It is alleged on behalf of the applicant that in the latter part of 1949 the said Mahendra Nath Banerjee was found to be thoroughly inefficient and incompetent and in arrears with his work, whereupon he was given notice that his services would not be required after the 30th of November. Mahendra Nath Banerjee pleaded for the withdrawal of the notice and assured the applicant that he would perform his duties diligently and efficiently. The applicant accepted the said assurance and by a memo., dated November 27, 1949, withdrew the said notice. The said memo was as follows:--
Shri Mahendra Nath Banerjee on assuring me that he will henceforth perform his duties as a Linotype Operator and printer diligently and efficiently, I hereby withdraw the notice 1 gave him for dispensing with his services after the 30th November next.
(Sd.) J. Chaudhuri.
According to the applicant, the said Respondent again fell into arrears with his work and was found to be negligent, whereupon he was threatened with the termination of his services. It is alleged on behalf of the applicant that the said Respondent Mahendra Nath Banerjee thereafter began to tamper with the machine on which he worked and that although such conduct of the Respondent warranted summary dismissal, he was given a month''s salary in lieu of notice and removed from service. It appears that Mahendra Nath Banerjee treated this termination of his contract of service as wrongful dismissal and moved the Labour Commissioner, Government of West Bengal, whereupon certain conciliatory proceedings were commenced. On behalf of the applicant objection was taken to the said proceedings on the ground that the Labour Commissioner had no jurisdiction in the matter. It appears that thereafter a notice was served on the Weekly Notes Printing Press intimating the appointment of the first Respondent as the Tribunal to settle an alleged industrial dispute arising out of the second Respondent''s dismissal. A further notice, dated May 17, 1950, was also served on the Weekly Notes Printing Press intimating that the said alleged dispute would be heard by the said Tribunal under sec. 10 of the Industrial Disputes Act. By the last-mentioned notice it was intimated that the hearing of the said alleged dispute under sec. 10 of the Industrial Disputes Act would be heard on May 25, 1950.
It is the applicant''s case that whatever dispute there may be between himself and Respondent No. 2, it is an individual dispute and not an "industrial dispute" and that accordingly the Respondent No. 1 has no jurisdiction to decide the matter. It is further alleged that the said Respondent No. 2 is not a "workman" within the meaning of the Industrial Disputes Act. It appears that in spite of the applicant''s protest the said Tribunal proceeded to frame issues. The applicant thereupon moved this Court for a rule nisi for a writ of certiorari and for an order in the nature of a mandamus.
The point which I have to decide, and which has been very ably argued by Mr. H. N. Sanyal, is whether or not in the admitted facts and circumstances of this case there was or is an "industrial dispute" within the meaning of the Act; for, if there is no such dispute, the first Respondent cannot possibly have any jurisdiction to adjudicate upon any matter of difference between the applicant and his erstwhile employee and he must be restrained by one or other of the reliefs sought from entering upon the reference or from making any award or adjudication thereupon. Sec. 2 (k) of the Industrial Disputes Act, 1947, which defines an industrial dispute, runs as follows:--
Industrial dispute'' means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;
It is admitted that in this case the dispute, if any, is between the employer on. the one side and an individual employee on the other. Mr. Biswas on behalf of the second Respondent argues that such a dispute falls within the definition of an "industrial dispute". I agree that that would be so according to the ordinary meaning of the words of the definition. But as Mr. Sanyal points out, the approach to a proper construction of the definition should be founded not only upon the language of the relative section but also upon the scheme of the several other provisions of the Act. Mr. Sanyal''s argument is that having regard to the scope and context of the whole Act a dispute to be an "industrial dispute" has to be between the employers on one side and the employees on the other. A dispute which is between the employer on the one side and an individual employee on the other cannot come within the definition of an industrial dispute. A dispute which in origin is between the employer and an individual employee may develop into an industrial dispute if the rest of the employees or the majority of them take up the cause of the employee concerned. This argument of Mr. Sanyal is supported by the respective judgments of Rajamannar, C. J. and Mack, J., of the Madras High Court in Kandan Textiles, Ltd. v. The Industrial Tribunal, Madras (1). It is nobody''s case that the employees of the applicant or even some of them have joined in the dispute as to the second Respondent''s dismissal. This is a matter which is solely concerned with the applicant on one side and the Respondent No. 2 on the other. The following observations of Mack, J., in the case referred to above are apposite to the facts before me:
The Industrial Disputes Act was never intended to provide a machinery for redress by a dismissed workman or even by a group of workmen who may be simultaneously punished or dismissed. They cannot by joining in a demand for reinstatement create an industrial dispute after their dismissal. If such a dismissal, however, even of an individual workman is taken up by a Workers'' Union or a substantial body of workmen who continue in employment and espouse his cause, then an industrial dispute may arise.
The definition of ''industrial dispute'' in sec 2 (k) of the Act has to be gleaned from the scope and context of the whole Act, as interpreted by decisions to which the learned Chief Justice has referred. Under sec. 10 (2) of the Act which provides for a reference to a Court or Tribunal on the application of the parties to an industrial dispute the Government, if satisfied that the
(1) Vol l, Indian Faoteries Journal (Reports) 217
persons applying represent the majority of each, party shall make the reference accordingly.
In the same case, the learned Chief Justice dealing with the provisions of sec. 18 of the Act observed as follows:--
The award is declared to be binding not only on all parties to the industrial dispute, but where a party is composed of workmen, on all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. This undoubtedly suggests that something more than an individual dispute between a worker or a few workers and the employer is meant by an industrial dispute. It suggests that it must be a collective dispute, i.e., a. dispute between the employer on the one hand and the entire establishment or a part of the establishment on the other hand in which case it is reasonable to presume that at least a substantial number of the employees in the establishment as a whole or in the concerned part of the establishment should be at dispute.
As I respectfully agree with the views of the learned Chief Justice and Mack, J., of the Madras High Court as to the interpretation of sec. 2 (k) of the Industrial Disputes Act, I do not propose to deal with the matter any further. In my view, the dispute between the applicant on the one hand and the second Respondent on the other is not an industrial dispute within the meaning of the said Act.
Mr. Sanyal further argues that the second Respondent is not a workman within the meaning of the Act. A "workman" is defined as follows:--
Workman'' 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 proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air force of the Crown.
It is argued that there was no dispute when the second Respondent was dismissed. The individual dispute arose after the dismissal and after the second Respondent had failed to get him reinstated. In order to be a "workman" within the meaning of the Act, one must either be in employment or be discharged during the pendency of an industrial dispute. It is urged that according to this definition the second Respondent could not have been a workman. In my view, both the contentions urged on behalf of the applicant are sound. I hold that the first Respondent has no jurisdiction to entertain the reference made to him by Government. I hold further that the proceedings now pending before him are without jurisdiction and must be quashed and he be directed to forbear from entering upon the reference and from making any award or adjudication thereupon. This application must, therefore, succeed and is accordingly allowed. The rule is made absolute. In view of the second Respondent''s long service under the applicant I make no order as to costs.