Lioyds Bank Ltd. vs Sankari Prasad Ghose

Bachawat, J.—This appeal arises out of a suit in which an award by Industrial Tribunal on a reference to it under the Industrial Disputes Act, 1947, is challenged on the ground that the dispute referred was not an industrial dispute and the reference was therefore incompetent that the award is bad on the merits and that the Industrial Disputes Act is itself invalid as being in contravention of Articles 14, 23 and 31 of the Constitution. The Plaintiff prays for declaration the award is void of and without jurisdiction alternatively for setting aside the award for an injunction restraining the Defendants from taking steps to enforce the award and for incidental reliefs.

The Plaintiff is a well-known Bank. The Defendants are 40 "workmen, who had been dismissed by the Plaintiff from its staff in its Calcutta offices.

The Industrial Tribunal directed reinstatement of the dismissed workmen and payment of wages and deafness allowances for a period of one year.

The suit was tried by his lordship Mr. Justice Sarkar. We repelled all the arguments advanced on behalf of the Plaintiff and dismissed the suit.

The arguments before the learned trial Judge has been repeated before us. In addition it has been argued that the dispute referred to the Tribunal was not a collective dispute and as such could not be referred the Industrial Tribunal.

As to the infringement of Article 14 of the Constitution it is argued that Section 10(1) of the Industrial Disputes Act, 1947, confers upon the appropriate Government unrestrained and arbitrary powers to refer or not to refer an industrial dispute at its option to an Industrial Tribunal and is therefore discriminatory in its scope and ambit. In Nieinla Textile Finishing Mills Ltd. and Ors. v. The Second Punjab Tribunal and Ors. AIR (1957) (S.C.) 329. the Supreme Court has pronounced that Section 10(1) of the Industrial Disputes Act, 1947, does not contravene Article 14 of the Constitution. We do not accept the contention of Mr. Chaudhury that the Supreme Court has not considered the argument which has now been advanced by him. In our opinion, the point that Section 10(1) of the Industrial Disputes Act, 1947, contravenes Article 14 of the Constitution is no longer open.

There cannot be any classification of industrial disputes which may or may not be referred to a Tribunal. Each industrial dispute is a class by itself in relation to its impact upon the industrial peace of the country. The question whether the promotion of industrial peace requires a reference to a Tribunal for adjudication must necessarily be left to the discretion of the appropriate Government.

The argument as to Article 23 of the Constitution is sought to be supported by the observations of Mahajan, J. in Western India Automobile v. Industrial Tribv/nal Bombay Ors. (1949) F.C.B. 321. to the effect that an Industrial Tribunal may direct that an employer or a workman shall have relation of employment though one of them is unwilling to have such relation. In our opinion those observations do not support the argument that the Act infringes Article 23 of the Constitution. We are of the opinion that an Industrial Tribunal has no power to impose upon an employee forced labour akin to traffic in human beings and beggar. In our opinion the Industrial Disputes Act, 1947, does not contravene Article 23 of the Constitution.

There is no substance in the contention that the Industrial Disputes Act, 1947, contravenes Article 31 of the Constitution. In our opinion an award of an Industrial Tribunal directing reinstatement and payment of back pay regulates the relationship of employer and workmen and incidentally affects the pecuniary rights of the employer. Such an award does not amount to deprivation of the property of the employer otherwise than by authority of law nor does it amount to an acquisition for public purposes of any property belonging to the employer.

Mr. Choudhury, appearing on behalf of the Appellant, next contended that the dispute referred to the Industrial Tribunal was not an industrial dispute and as such the order of reference is void and the award given by the Industrial Tribunal is a nullity. He argued that the dispute was not an industrial dispute because the dispute was an individual dispute between the Appellant and the 40 Respondents and was not a collective dispute.

The point that the dispute is not collective dispute is not clearly taken in the plaint. We do not find any trace of the present argument in the judgment of the learned trial Judge. In the Memorandum of Appeal also we do not find any clear ground of appeal based upon the contention that the dispute referred was not a collective dispute. The question whether a dispute referred to an Industrial Tribunal is a collective or an individual dispute is a mixed question of law and fact. If the point was not really taken either in the plaint or in the issues and if it were a question of discretion whether or not we ought to allow the Appellant to argue the point we were inclined in the exercise of such discretion to refuse to allow the Appellant to urge this point. We find, however, that it is alleged in the plaint that no industrial dispute within the meaning of the Industrial Disputes Act did and could exist between the Plaintiff and the Defendants or any of them. We also find that an issue was raised before the learned trial Judge as to whether or not there was any industrial dispute between the Plaintiff and the Defendants. There cannot be an industrial dispute unless the dispute is a collective dispute. We have come to the conclusion that the issue before the learned trial Judge is broad enough to cover the question whether or not there was a collective dispute between the Plaintiff and its workmen. We, therefore, find it necessary to go into the question whether or not the dispute referred to the Industrial Tribunal was a collective dispute.

Section 2(k) of the Industrial Disputes Act, 1947, defines industrial dispute and is as follows:

(Industrial dispute" means any dispute or difference between employers and employers, 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.

The definition of "workmen" in Section 2(s) of the said Act as it stood during the relevant period and before it was amended by Act No. 36 of 1956 defined was 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 service of the (Government).

In order to be an industrial dispute the dispute (a) must be between employers and employers or between employers and workmen or between workmen and workmen and (6) must be connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. An industrial dispute is a collective dispute. An individual dispute is not an industrial dispute and cannot be referred to an Industrial Tribunal for adjudication under Section. 10(1) of the Industrial Disputes Act, 1947 That Act deals with collective and not individual disputes. The object of the Act is promotion of industrial peace and collective amity. The association of the Act with collective disputes is shown by the provisions of Sections 18, 33 and 36 as to the collective representation of the parties for purposes of industrial disputes, the restrictions as to dismissal and change in conditions of workmen concerned in the dispute during the pendency of proceedings under the Act and the collective binding force of a settlement and an award made under the Act.

In the Newspapers Ltd. v. The State Industrial Tribunal, U.P. and Ors. (1957) S.C. A. 390 the Supreme Court had to consider this question in relation to the U.P. Industrial Disputes Act, 1947. Industrial Disputes had the same meaning in that Act as in the Industrial Disputes Act, 1947. Mr. Justice Kapur observed at p. 396 Thus viewed the provisions of the Act lead to the conclusion that its applicability to an individual dispute as opposed to dispute involving a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute, viz., the workmen as a body or a considerable section of them make common cause with the individual workman and thus create conditions contemplated by Section 3 of the U.P. Act which is the foundation of State Governmental action under that Act.

In that case a newspaper concern had dismissed a lino-typist in its employ. There was a dispute between the employer and the dismissed workman as to whether the services of the workman had been rightly terminated. The order of reference stated that an industrial dispute existed between the newspaper concern and its workmen and one of the questions referred was whether the services of the lino-typist had been wrongfully terminated by the management. The case of the lino-typist had not been taken up by any Union of the workers of the newspaper concern nor by any of the Unions of the workmen employed in similar or allied trades but the U.P. Working Journalist Union, Lucknow, with which the lino-typist had no connection whatsoever, had taken up the matter to the Conciliation Board, Allahabad, and thereafter the U.P. Government had made a reference to the Industrial Tribunal. In these circumstances, the Supreme Court ruled that the dispute was an individual dispute and there was no indication that the individual dispute had got transformed into an industrial dispute (see p. 393 and 404 of the report).

The Civil Court and not the Industrial Tribunal is the appropriate forum for settlement of an individual dispute.

The Industrial Tribunal, however, is the appropriate forum for the settlement of a collective dispute. A collective dispute arises out of a collective demand for redress of grievances made by claimants not individually but as representing their class. Typical of such demand is a representative demand of workmen for fixation of minimum wages and maximum number of working hours per week. There may also be a collective, demand for redress of the grievances of a single workman. The individual claim of a single workman may become a collective claim where a body of workmen make common cause with the individual workman.

In Central Provinces Transport Service Limited, Nagpur v. Raghunath Gopal Patwardhan (1967) S.C.A. 1, 8. the Supreme Court approved of the following view taken in several decided cases:

A dispute between an employer and a single employee cannot per ss be an industrial dispute, but it may become one if it is taken up by the Union or a number of workmen.

In D.N. Banerjee v. P.R. Mukherjee (1953) A.I.B. S.C. 58. a municipality had dismissed two of its employees. At the instance of the Municipal Workers Union, who questioned the propriety of the dismissal, the matter was referred by the State of West Bengal to an Industrial Tribunal for adjudication under the Industrial Disputes Act. The Supreme Court held that the dispute was an industrial dispute. Mr. Justice Chandrasekhar Aiyar observed at p. 63:

The dispute raised on their behalf by the Workers'' Union of which they were members is, in our view, an "industrial dispute within the meaning of the Act.

Mr. Justice Chandrasekhar Aiyar also observed at p. 61:

Bu ta tthe same time, having regard to the modern conditions of society where capital and labour have organised themselves into groups for the purpose of fighting their disputes and settling them on the basis of the theory that the Union is strength, and collective bargaining has come to stay, a single employee''s case might develop into an industrial dispute, when as often happens, it is taken up by the Trade Union of which he is a member, and there is a concerted demand by the employees for redress. Such trouble may arise in a single establishment or a factory. It may well arise also in such a manner as to cover industry as a whole in a case where the grievance, if any, passes from the region of individual complaint into a general compliant on behalf of all the workers in the industry. Such widespread extension of labour unrest is not a rare phenomenon but is of frequent occurrence. In such a case, even an industrial dispute in a particular business becomes a large-scale industrial dispute, which the Government can not afford to ignore as a minor trouble to be settled between the particular employer and workman.

Similarly in Bilash Chandra Mitra Vs. Balmer Lawrie and Co. Ltd., . Mr. Justice Bose found a dispute between the employer and two workmen to be an industrial dispute where the dispute had been taken up by the Trade Union and the Union had filed a statement before the Industrial Tribunal. In the above case the order of reference stated that an industrial dispute had arisen between the employer and the two named workmen as represented by the Union of the employees of the concern. The order of reference in India Paper Pulp Company Ltd. v. India Paper pulp Worker''s Union and Ors (1949) F.C. 348, 353. was in similar terms.

In order to ascertain whether the dispute referred to the Industrial Tribunal in the present case was a collective dispute it is necessary to look at the facts.

The events leading up to the award are somewhat long and complicated.

On January 17, 1948 the State of West Bengal made a reference to the Industrial Tribunal called the Industrial Disputes (Mercantile Firms) Tribunal of disputes between numerous mercantile firms and their clerical and subordinate staff including the Appellant Bank and its workmen as represented by the Lloyds Bank Indian Staff Association. This association is a registered Trade Union of the Indian clerical and subordinate staff of the Appellant Bank. The reference did not specify any dispute. It re-mined pending till of April 30, 1949 when it abated having regard to Ordinance 6 of 1949. During the pendency of the proceedings before this Tribunal there was widespread unrest between various banking institutions and their employees. Prior to October 25, 1948, the Appellant Bank employed in its two offices in Calcutta 550 workmen including the 40 Defendants. Some time in August, 1948 the employees of the Central Bank of India went on strike. On August 17, 1948 the employees of the Appellant Bank went on a sympathetic strike under the direction of the Trade Union. This led to reprisals and counter-reprisals. The Bank withdrew its recognition of the Trade Union and threatened to dismiss its employees. On October 19, 1948 the Bank suspended 11 of its workmen who had taken part in the illegal strike and with the sanction of the Government of West Bengal commenced a criminal prosecution against them. On October 20, 1948 the President of the Union informed the Bank that a special emergent meeting of the Working Committee of the Union had resolved that the members of the Union would cease to perform their normal duties unless the criminal proceedings and the suspension orders were withdrawn by the management by 10-30 a.m. on October 20, 1948. The Bank refused to comply with the demand and asserted that the contemplated strike would be illegal. On October 20, 1948 the employees of the Bank started a pen-down strike which was continued the next day. There after, there were negotiations for settlement between the Appellant Bank and the employees represented by the Union through the intervention of the State Government. Mr. Parker on behalf of the Appellant Bank made an offer which was communicated to the leaders of the Union through officials of the State Government and was accepted by the Union leaders on behalf of the employees. The terms of the settlement so effected are in dispute. It is common case that the employees gave up the demand for dropping the prosecution of the 11 persons and also agreed to do certain overtime work. The employees contended that by the settlement they had agreed to make up by overtime work, if necessary, the work accumulated during the days of strike while the Bank contended that the employees had agreed to work overtime daily till the hours of work lost by the Bank had been made up. On October 23, 1948 which was a Saturday, the employees went to work, but refused to work overtime and left at 2 p.m. On October 25, 1948 the Bank issued a notice that the employees would be dismissed unless they signed a declaration of loyalty and agreed to work overtime. The employees refused to sign the declaration. On October 20, the employees were dismissed en bloc on account of their participation in the strike. On October 29, 1948 the President of the Union wrote to the Bank reciting the events which had happened and asserting that the purported dismissal of the employees amounted to a lock-out which was absolutely unjustified and claiming that the dismissed employees were still in service. On the next day the Bank replied refusing to recognise the Union and to enter into any correspondence with its President. The Bank thereafter advertised the vacancies caused by the dismissal in various newspapers intimating that applications from the dismissed employees would also be entertained. Again there were negotiations for settlement through the State Government. On November 17, 1948 the Labour Commissioner, Government of West Bengal, sent a letter to the Appellant Bank forwarding 393 applications from ex-employees for reappointment and recommending that the appointments should be made en bloc, that there should be no break of service for those men and that the period of their absence should be considered as leave without pay. On November 18, 1948 the Bank wrote to the Labour Commissioner, returning the applications on the ground that they were not applications for re-employment. On November 18, 1948 the Labour Commissioner wrote to the Bank stating that the Government was satisfied that the applications were applications for re-employment, that it could not remain indifferent to the loss of employment of 550 persons, more so when they were so faced with the gigantic task of rehabilitating thousands of East Bengal refugees that the suggestion to take back the workmen en bloc was not unreasonable, and that the Government had good reasons to believe that the 392 applications for re-employment had been made in good faith. The Labour Commissioner added that tie letter was shown to the Minister of Labour and that it was hoped that the Bank would see its way to act in accordance with the suggestion and would not make it necessary to set up a Tribunal under the Industrial Disputes Act to adjudicate upon the issues that had arisen. The Bank thereafter took back in employment the majority of its dismissed employees. The Bank, however, refused to take back in its employment several dismissed workmen including the 40 Defendants. On December 9, 1948 the Bank wrote to the Defendants stating that the Bank was unable to reappoint them and that all sums due to them on account of their remuneration and contribution to the Provident Fund would be sent to them if they would confirm the letter.

From the resume of the events which had happened up to this date it is clear that an industrial dispute had arisen between the Appellant Bank and its workmen as to the en bloc dismissal of its employees. The dispute was a dispute between the Appellant Bank and its workmen in general as to the propriety of the dismissal. The Bank and a very large number of its employees were ranged on opposite sides and the employees were backed by the Union. The dispute had attracted the attention of the Government of the State of West Bengal, and attempts at conciliation were being made. Hints were being given that failing conciliation, a reference to a Tribunal for adjudication might be necessary.

Since the middle of January, 1949 the dismissed employees, including the present Defendants, obtained payment from the Appellant Bank of their dues for the accrued salary and for their Provident Fund moneys. From the sample receipt given by one Samiran Bose appearing at p. 1018 of Volume V, Part 2 of the Paper Book it appears that the recipient acknowledged receipt of moneys in full payment of his Provident Fund money representing his own contribution and interest thereon and certified that he had no further claim against the Bank in respect of his Provident Fund money, salary, allowance and gratuity or in any other respect whatsoever. It is common case before us that receipt in the same or similar form was given by 33 of the 40 Defendants- The receipt is somewhat broadly worded. Having regard to the subject-matter and the context, it is clear that the receipt is a release of the individual claim of the recipient in respect of moneys due from the Bank, The receipt is not a release or an acquittance of any claim arising out of a collective or an industrial dispute.

On January 28, 1949 most of the workmen in the employ of the Appellant Bank wrote to the Chairman, Industrial Disputes, Mercantile Firms Tribunal, stating that as the signatories had then no dispute with the Bank and as no dispute was apprehended, the pending adjudication proceedings between the Bank and its employees should be withdrawn and adding that in the premises the Lloyds Bank Indian Staff Association (Calcutta Branches) and the All India Bank Employees'' Association were no longer authorised to represent the signatories in the pending proceedings. It is common case that the dispute which had arisen out of the en bloc dismissal of the employees on October 26, 1948 was not the subject-matter of the proceedings pending before the Mercantile Tribunal. Although the letter is somewhat broadly worded, we are satisfied that this letter did not relate to the collective dispute as to the grievances of the dismissed workmen who had not been taken up in employment. Whatever ambiguity there may be in the letter is cleared up by the events which happened subsequently.

On April 30, 1949, Ordinance IV of 1949 was promulgated and the pending proceeding before the Mercantile Tribunal abated. On June 4, 1949 the eleven employees including Provat Kar who were being prosecuted were convicted.

On May 14, 1949 the Joint Secretary to the Government of West Bengal wrote to the Secretary to the Government of India, Ministry of Labour, New Delhi, with reference to the industrial dispute between the Appellant Bank and its employees enclosing a note giving the history of the dispute and stating that the dispute had been pending for a long time and could not be settled by conciliation in spite of repeated efforts of the Government and that in the opinion of the Government the attitude of the authority in refusing to reinstate 31 employees whose names were mentioned in an enclosed list was unjustified and recommending a reference of the cases of the 31 employees to Tribunal. Unfortunately neither the note nor the list enclosed with the letter is on the record. On June 13, 1949 the Central Government acting u/s 10(1) of the Industrial Dispute Act, 1947, made a reference to an Industrial Tribunal which has been called the Bank Tribunal of Industrial Disputes said to have arisen between several banking companies and their employees including the Appellant Bank and its employees. One of the disputes referred was retrenchment and victimisation (specific cases to be cited by employees). It is to be noted that although the above-mentioned letter, dated May 14, 1949 referred to the cases of only 31 employees, the reference to the Bank Tribunal was in general terms and was not limited to any specific number of employees. The materials on the record show that the Lloyds Bank Indian Staff Association filed a statement and was represented by counsel before the Bank Tribunal. On January 5, 1950, the Bank Tribunal made an award directing reinstatement of 40 dismissed workmen who are the Defendants to this suit and payment of back pay for six months. From a recital in the award it appears that the Trade Union had alleged victimisation of 62 employees but eventually pressed the case of only 40 dismissed workmen. The Appellant Bank then moved this Court for appropriate writs for quashing the award and joined the aforesaid Trade Union and the 40 dismissed workmen as represented by the Trade Union as Respondents to the application. The application was disposed of by a Special Bench of this Court on January 17, 1951. The Special Bench held that it had no power to interfere with the award having regard to the fact that the award was a pre- Constitution award and the further fact that the Tribunal had been dissolved. The Appellant Bank appealed to the Supreme Court from this decision and also from the award itself under Article 136 of the Constitution. In other proceedings arising out of an award made by the Bank Tribunal in relation to an industrial dispute between the United Commercial Bank and its employees the Supreme Court ruled that all awards made by the Bank Tribunal after November 23, 1949 were invalid. The appeal preferred by the Appellant Bank came up for hearing before the Supreme Court in April, 1953. The Supreme Court dismissed both the appeals but at the same time observed that the award against the Appellant Bank could no longer be regarded as valid and operative having regard to the decision in the United Commercial Bank''s case. Having regard to this observation the award made by the Bank Tribunal against the Appellant Bank became ineffective and this position was accepted by the Government.

From a resume of the facts up to April, 1953 it will appear that there was a collective dispute before the Bank Tribunal between the Appellant and its workmen relating to the dismissal of the 40 dismissed workmen who are Defendants to this suit. We have already seen that a collective industrial dispute had arisen out of the en bloc dismissal of the employees of the Appellant bank on October 26, 1948. We are satisfied that the collective dispute which had arisen on and since October 26, 1953 continued in so far as the same related to the cases of the 40 dismissed workmen throughout the period ending April, 1953.

On July 15, 1953 the Central Government referred to an Industrial Tribunal consisting of Shri K.S. Campbell Puri, an industrial dispute said to be existing between the employers in relation to the Appellant Bank and their workmen specified in Schedule I annexed to the order in respect of the matters specified in Schedule II. Schedule I specified the names of the 40 workmen who are Defendants to this suit and Schedule II specified that the matter referred was whether the termination of the services of the said workmen was justified and if not, whether they should be reinstated in service and/or granted any compensation. For some reason or other the services of Shri Campbell Puri were not available and on August 10, 1953 the Central Government acting under Section. 10(1) of the Industrial Disputes Act made a fresh reference to an Industrial Tribunal consisting of Shri G. Bhakta Batsala Naidu of the disputes which were specified in the Schedules and which had previously been referred to the Industrial Tribunal consisting of Shri K.S. Campbell Puri. Schedule II referred to the industrial dispute existing between the Appellant Bank and its workmen. Part I of the Schedule specified the names of the 40 workmen who are Defendants to this suit and the question stated in Part II was whether the termination of the services of the said workmen was justified and if not, whether they should be reinstated in service and/or granted any compensation. Notice of the order was sent to the Secretary, Lloyds Bank Indian Staff Association.

In support of the claim before the Tribunal a written statement was filed by the Lloyds Bank Indian Staff Association representing the 40 dismissed workmen mentioned in the Order of Reference. The written statement was signed by one Sarat K. Banerji, Joint Secretary of the Union. In the written statement it was contended that the introduction of the Loyalty Bond on October 25 was a violation of Section 33 of the Industrial Disputes Act, that the refusal to admit the employees on October 26, 1948 was an illegal lock-out and their en bloc dismissal on that date was illegal and void and it was prayed that the Tribunal should direct the reinstatement of the employees with back salaries and allowances. The Tribunal made its award on December 23, 1953. This suit was instituted on February 22, 1954. On or about February 16, 1954 the Appellant Bank had filed an appeal against the award before the Appellate Industrial Tribunal.

In the background of the events which had happened prior to the Order of Reference, dated August 10, 1953, we are satisfied that the dispute which was referred to the Industrial Tribunal on August 10, 1953 was an industrial dispute. Originally there was a collective dispute between the Appellant Bank and its workmen arising out of and relating to the termination of employment of the majority of its employees. A large number of employees were taken back in employment and the original dispute continued with reference to the termination of services of the 40 dismissed workmen who are the Defendants to this suit. The dispute which was referred to the Industrial Tribunal on August 10, 1953 was a continuation of the original industrial dispute. The order of Reference refers to the dispute as an industrial dispute. It is of course open to the Appellant to show that what was referred to the Tribunal for adjudication was not in fact an industrial dispute. We are satisfied that the Appellant has failed to establish that the dispute so referred was not an industrial dispute. The 40 dismissed workmen themselves constitute a body of organized labour acting in union. They are members of a registered Trade Union of the clerical and subordinate staff of the Appellant Bank. Their case is taken and backed up by the Trade Union. The inference that the dispute is a collective dispute is strengthened by the fact that the point as to the non-collective nature of the dispute is not clearly made either in the plaint or in the issue or in the argument before the learned trial Judge or in the Memorandum of Appeal. We have come to the conclusion that the dispute referred to the Industrial Tribunal was a collective dispute.

Mr. Choudhury next contended that the dispute is not an industrial dispute inasmuch as discharged employees are not workmen and that once an employee has been discharged, rightly or wrongly, he ceases to be a workman and the dispute between him and his employer is an ordinary dispute. We are unable to accept this argument. ID our opinion, a dismissed employee is a workmen for purposes of a dispute originating in his dismissal within the meaning of Section 2(s) of the Industrial Disputes Act as it stood before its amendment by Act No. 36 of 1956. The point is concluded by the judgments of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay, and Ors. Supra. and India Paper Pulp Company Ltd. v. India Paper Pulp Workers'' Union and another Supra. as applied by the Supreme Court in Central Provinces Transport Service Ltd., Nagpur, v. Raghunath Gopal Patwardhan Supra. In Central Provinces Transport Services Ltd., Nagpur, v. Raghunath Gopal Patwardhan Supra. the Supreme Court had to deal with the Central Provinces and Berar Industrial Disputes Act, 1947. The definitions of "employee" and industrial dispute" in Section 2(10) and Section 2(12) of the CP. and Berar Act corresponds with the definitions of "workman" and "industrial dispute" in Sections 2(k) and 2(s). of the Industrial Disputes Act, 1947, as it stood during the relevant period Mr. Justice Venkatarama Ayyar observed at p. 6:

We must accordingly hold agreeing with the decision in Western India Automobile Association v. Industrial Tribunal, Bombay, that the definition of "employee" in the Act would include one who has been dismissed and the Respondent cannot be denied relief only by reason of the fact that he was not in employment on the date of the application.

In the Supreme Court case the dispute related to the dismissal of one of the employees of the Central Provinces Transport Ltd., Nagpur Failing to get redress, he filed an application before the Labour Commissioner for reinstatement and compensation. The Supreme Court held that although the workman was a dismissed workman, he was an employee within the meaning of the CP. and Berar Industrial Disputes Settlement Act, 1947. Though the two decisions of the Federal Court may be distinguished on the ground that the dispute in those cases was a dispute between the employer and existing employees with regard to the reinstatement of dismissed employees, the decision of the Supreme Court cannot be distinguished on that ground. The definition of "workman" in Section 2(s) has now been amended by the Industrial Disputes Amendment and Miscellaneous Provisions Act No. 36 of 1956. By the amended definition "workman" excludes an employee who has been dismissed and whose dismissal has led to the industrial dispute. This amendment is in substance declaratory of the existing law.

We are, therefore, satisfied that the dispute referred to the Naidu Tribunal was an industrial dispute. The order of Reference of the dispute to the Tribunal was lawful.

In para. 18 of the plaint it is alleged that the award is perverse and illegal and its findings are contrary to the law of the land and to the evidence led before the Tribunal and against the weight of such evidence. It was contended before the learned trial Judge that the Court ought to investigate the merits of the award in this suit and on finding that the award is erroneous ought to give suitable relief to the Appellant Bank. The learned trial Judge did not accept this contention. He held that he had no power to go into the merits. He observed that a mistake in the award, however, obvious against the law or perverse, did not give rise to a civil cause of action which could be canvassed by a suit.

Mr. Choudhury has argued that the Court has power to go into the merits and to give the aggrieved party suitable relief if it finds that the award is erroneous. We are unable to accept this contention of Mr. Choudhury.

We do not doubt that we have the power to grant suitable relief by way of declaration and injunction in case it is established that the award is a nullity. An invasion of the rights of any party under colour of a pretended award which is void is an injury and gives rise to a cause of action. The award being a nullity does not exist in the eye of law and does not confer any enforceable right. In this case, however, the award is not a nullity. The Tribunal which made the award is a competent Tribunal. There is no excess of jurisdiction there is no violation of the principles of natural justice. There is no infringement of any of the rules of procedure which the Tribunal is bound to observe and follow. It is said that the award is erroneous, and that the error appears on the face of the award. The award though erroneous is valid and enforceable until it is set aside in appropriate proceedings. We have no power to set aside the award in this suit. Until and unless the award is set aside, the Respondents have every right to enforce the award. The enforcement of an award which is not a nullity cannot be said to be a wrongful act and cannot give rise to a cause of action.

In support of his contention Mr. Choudhury relied on the decision in Barnard v. National Dock Labour Board (1953) 2 Q. B. 18, 41. In that case the London Dock Labour Board had certain disciplinary functions under the Dock Workers (Regulation of Employment) Order, 1947. The London Dock Labour Board purported to delegate those disciplinary functions to the Port Manager. The Port Manager suspended the Plaintiffs from work and pay. The Plaintiffs appealed to the Appeal Tribunal set up under the order, but their appeals were dismissed. The Plaintiffs thereupon started an action, claiming a declaration that the notice of suspension was ultra vires and invalid and that they had been wrongfully suspended. The Court was of the opinion that the Port Manager was a usurper and had no power to suspend, and the order of the Port Manager was a nullity and therefore, the order of the Appeal Tribunal was also a nullity. Lord Justice Denning observed at p. 42:

This is not a case of a Tribunal which has a lawful jurisdiction and exercises it; it is a case of a man acting as a Tribunal when he has no right to do so. These courts have always had jurisdiction to deal with such a case. We can declare that the suspension ordered by the Port Manager was unlawful and void. We can declare it to be the nullity which in law it was. So far as the decision of the Appeal Tribunal is concerned, it seems to me that once the Port Manager''s order is found to be a nullity, it follows that the order of the Appeal Tribunal is also a nullity.

It will be seen that this decision is clearly distinguishable. The impugned orders were nullities and were treated as such in that case.

Reliance is, however, placed on the observations of Lord Justice Denning at p. 41:

Finally, Mr. Paull said (and it was his principal argument) that these courts have no right to interfere with the decisions of Statutory Tribunals except by the historical method of certiorari. He drew an alarming picture of what might happen if once the court intervened by way of declaration and injunction. It meant, he said, that anyone who was dissatisfied with the decision of a Tribunal could start an action in the courts for a declaration that it was bad, and thus, by a sidewind one could get an appeal to the courts in cases where Parliament intended that there should be none. I think there is much force in Mr. Paull''s contention; so much so that I am sure that in the vast majority of cases the courts will not seek to interfere with the decisions of Statutory Tribunals; but that there is power to do so, not only by certiorari, but also by way of declaration, I do not doubt. I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretion impose upon itself; and the court should not, I think, tie its hands in this matter of Statutory Tribunals. It is axiomatic that when a Statutory Tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the Tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why then should not the court intervene by declaration and injunction? If it cannot so intervene, it would mean that the Tribunal could disregard the law, which is a thing no one can do in this country.

We are unable to hold on the authority of these observations that we have the power in the present proceedings to review the award of the Industrial Tribunal.

Sub-Section 4 of Section 15 of the Industrial Disputes Act, 1947, as enacted originally provided that save as provided in the proviso of Sub-section (3) of Section 19 of the Act an award declared to be binding under this section shall not be called in question in any manner. This Sub-section was repealed by the Industrial Disputes (Appellate Tribunal) Act, 1950, being Act No. 48 of 1950. That Act set up an Appellate Tribunal and provided that an appeal from an award would lie to the Appellate Tribunal on any substantial question of law. Recently the Industrial Disputes Amendment and Miscellaneous Provisions Act. 1956, being Act No. 36 of 1956, repealed the Industrial Disputes (Appellate Tribunal) Act, 1950, and abolished the Appellate Tribunal replacing it by a three tier system of original Tribunals Act No. 36 of 1956 also amended the Industrial Disputes Act, 1947, and the new Sub-section (2) of Section 17 provides that subject to the provisions of Section, 17A the award published under Sub-section (1) of Section 17 shall be final and shall not be called in question by any court in any manner whatsoever. Sub-section 4 of Section 15 of the Industrial Disputes Act, 1947, as originally enacted was repealed by the Industrial Disputes Appellate Tribunal Act No. 48 of 1950 as the latter Act set up an Appellate Tribunal before whom the award was liable to be questioned. But the award was not liable to be questioned otherwise than by appeal to the Appellate Tribunal. The award became enforceable on the expiry of 30 days from the date of the publication subject to any order of stay that might be passed by the Appellate Tribunal. The clear intendment of the law as it stood after the passing of Act No. 48 of 1950 and before the enactment of Act No. 36 of 1956 was that the award of an Industrial Tribunal should be final subject to appeal to the Appellate Tribunal and subject always to the overriding powers of the superior courts under the Constitution and subject to the power of the court to grant suitable relief by way of declaration and injunction in a suit where the award is a nullity. The conclusion that the award is final is reinforced by the consideration that the Industrial Tribunal administers a law peculiar to its own forum and by the further consideration that the award is intended to be a speedy settlement of the Industrial Dispute.

Even applying the observations of Denning L.J. in the aforecited case, the aggrieved party cannot by a side-wind get an appeal to this Court from an award of an industrial court, the legislature having clearly intended that there should be none.

Even assuming for a moment that relief of declaration and injunction can be granted to an aggrieved party on the ground that the award is erroneous, we think that we ought not to grant relief to the Appellant on the ground. The relief by way of declaration and injunction is always a discretionary relief. Particulars of the alleged error of illegality are not given in the plaint. An appeal from the award has already been filed by the Appellant before the Industrial Appellate Tribunal and that appeal is still pending. The pending appeal is saved by Act No. 36 of 1956. All substantial questions of law may be agitated before the Industrial Appellate Tribunal. It is extremely undesirable that this Court will assume the power of reviewing the award where such power of review is vested in a Statutory Tribunal. Such an assumption of power may lead to a conflict of jurisdiction.

No other contention was urged on behalf of the Appellant. All the contentions urged before us on behalf of the Appellant fail.

In dismissing the appeal we make it clear that we do not pronounce upon the merits of the award. The respective contentions of the parties with regard to the merits of the award are left open.

The appeal is dismissed. The Respondents will get one set of costs from the Appellant including reserved costs, if any Certified for two counsel.

The interim order made on February 3, 1956 will continue for 2 months more.

Order to be drawn up expeditiously.

S.R. Das Gupta, J.

I agree.