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S.K. DAS, J. – 2. The appellants before us are the workmen of the Dimakuchi Tea Estate
represented by the Assam Chah Karmachari Sangha, Dibrugarh. The respondent is the
management of the Dimakuchi tea estate, District Darrang in Assam. One Dr K.P. Banerjee
was appointed Assistant Medical Officer of the Dimakuchi tea estate with effect from
November 1, 1950. He was appointed subject to a satisfactory medical report and on
probation for three months. It was stated in his letter of appointment: “While you are on
probation or trial, your suitability for permanent employment will be considered. If during the
period of probation you are considered unsuitable for employment, you will receive seven
days’ notice in writing terminating your appointment. If you are guilty of misconduct, you are
liable to instant dismissal. At the end of the period of probation, if you are considered
suitable, you will be confirmed in the garden’s service.” In February 1951 Dr Banerjee was
given an increment of Rs 5 per mensem, but on April 21, Dr Banerjee received a letter from
one Mr Booth, Manager of the tea estate, in which it was stated: “It has been found necessary
to terminate your services with effect from the 22nd instant. You will of course receive one
month’s salary in lieu of notice.” As no reasons were given in the notice of termination, Dr
Banerjee wrote to the Manager to find out why his services were being terminated. To this Dr
Banerjee received a reply to this effect: “The reasons for your discharge are on the medical
side, which are outside my jurisdiction, best known to Dr Cox but a main reason is because of
the deceitful manner in which you added figures to the requirements of the last medical indent
after it had been signed by Dr Cox, evidence of which is in my hands.”
(O)n December 23, 1953, the Government of Assam published a notification in which it
was stated that whereas an industrial dispute had arisen between the appellants and the
respondent herein and whereas it was expedient that the dispute should be referred for
adjudication to a tribunal constituted under Section 7 of the Act, the Governor of Assam was
pleased to refer the dispute to Shri U.K. Gohain, Additional District and Sessions Judge,
under clause (c) of sub-Section (1) of Section 10 of the Act. The dispute which was thus
referred to the Tribunal was described in these terms:
“(i) Whether the management of Dimakuchi Tea Estate was justified in
dismissing Dr K.P. Banerjee, A.M.O?
(ii) If not, is he entitled to reinstatement or any other relief in lieu thereof?”
- (T)he question whether Dr K.P. Banerjee is or is not a workman within the meaning of
the Act is no longer open to the parties and we must proceed on the footing that Dr K.P.
Banerjee was not a workman within the meaning of the Act and then decide the question if
the dispute in relation to the termination of his service still fell within the scope of the
definition of the expression “industrial dispute” in the Act.
100 - (T)he question is whether a dispute in relation to a person who is not a workman within
the meaning of the Act still falls within the scope of the definition clause in Section 2(k). If
we analyse the definition clause it falls easily and naturally into three parts: first, there must
be a dispute or difference; second, the dispute or difference must be between employers and
employers, or between employers and workmen or between workmen and workmen; third, the
dispute or difference must be connected with the employment or non-employment or the
terms of employment or with the conditions of labour, of any person. The first part obviously
refers to the factum of a real or substantial dispute; the second part to the parties to the
dispute; and the third to the subject-matter of that dispute. That subject-matter may relate to
any of two matters – (i) employment or non-employment, and (ii) terms of employment or
conditions of labour, of any person. On behalf of the appellants it is contended that the
conditions referred to in the first and second parts of the definition clause are clearly fulfilled
in the present case, because there is a dispute or difference over the termination of service of
Dr K.P. Banerjee and the dispute or difference is between the employer, namely, the
management of the Dimakuchi tea estate on one side, and its workmen on the other, even
taking the expression “workmen” in the restricted sense in which that expression is defined in
the Act. The real difficulty arises when we come to the third part of the definition clause.
Learned counsel for the appellants has submitted that the expression “of any person”
occurring in the third part of the definition clause is an expression of very wide import and
there are no reasons why the words “any person” should be equated with “any workman”, as
the tribunals below have done. The argument is that inasmuch as the dispute or difference
between the employer and the workmen is connected with the non-employment of a person
called Dr K.P. Banerjee (even though he was not a workman), the dispute is an industrial
dispute within the meaning of the definition clause. At first sight, it does appear that there is
considerable force in the argument advanced on behalf of the appellants. It is rightly pointed
out that the definition clause does not contain any words of qualification or restriction in
respect of the expression “any person” occurring in the third part, and if any limitations as to
its scope are to be imposed, they must be such as can be reasonably inferred from the
definition clause itself or other provisions of the Act. - A little careful consideration will show, however, that the expression “any person”
occurring in the third part of the definition clause cannot mean anybody and everybody in this
wide world. First of all, the subject-matter of dispute must relate to (i) employment or nonemployment or (ii) terms of employment or conditions of labour of any person; these
necessarily import a limitation in the sense that a person in respect of whom the employeremployee relation never existed or can never possibly exist cannot be the subject-matter of a
dispute between employers and workmen. - Thus, an examination of the salient provisions of the Act shows that the principal
objects of the Act are –
(1) the promotion of measures for securing and preserving amity and good relations
between the employer and workmen;
(2) an investigation and settlement of industrial disputes, between employers and
employers, employers and workmen, or workmen and workmen, with a right of
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representation by a registered trade union or federation of trade unions or association of
employers or a federation of associations of employers;
(3) prevention of illegal strikes and lock-outs;
(4) relief to workmen in the matter of lay-off and retrenchment; and
(5) collective bargaining.
The Act is primarily meant for regulating the relations of employers and workmen — past,
present and future. It draws a distinction between “workmen” as such and the managerial or
supervisory staff, and confers benefit on the former only. - It is in the context of all these provisions of the Act that the definition clause in
Section 2(k) has to be interpreted. It seems fairly obvious to us that if the expression “any
person” is given its ordinary meaning, then the definition clause will be so wide as to become
inconsistent not merely with the objects and other provisions of the Act, but also with the
other parts of that very clause. Let us see how the definition clause works if the expression
“any person” occurring therein is given its ordinary meaning. The workmen may then raise a
dispute about a person with whom they have no possible community of interest; they may
raise a dispute about the employment of a person in another industry or a different
establishment – a dispute in which their own employer is not in a position to give any relief, in
the matter of employment or non-employment or the terms of employment or conditions of
labour of such a person. In order to make our meaning clear, we may take a more obvious
example. Let us assume that for some reason or other the workmen of a particular industry
raise a dispute with their employer about the employment or terms of employment of the
District Magistrate or District Judge of the district in which the industry is situate. It seems
clear to us that though the District Magistrate or District Judge undoubtedly comes within the
expression “any person” occurring in the definition clause, a dispute about his employment or
terms of employment is not an industrial dispute; firstly, because such a dispute does not
come within the scope of the Act, having regard to the definition of the words “employer”,
“industry”, and “workman” and also to other provisions of the Act; secondly, there is no
possible community of interest between the District Magistrate or District Judge on the one
hand and the disputants, employer and workmen, on the other. The absurd results that will
follow such an interpretation have been forcefully expressed by Chagla, C.J., in his decision
in Narendra Kumar Sen v. All India Industrial Disputes (Labour Appellate) Tribunal
[(1953) 55 Bom LR 125]:
“If ‘any person’ were to be read as an expression without any limitation and
qualification whatsoever, then we must not put even any territorial restriction on that
expression. In other words, it would be open to the workmen not only to raise a
dispute with regard to the terms of employment of persons employed in the same
industry as themselves, not only to raise a dispute with regard to the terms of
employment in corresponding or similar industries, not only a dispute with regard to
the terms of employment of people employed in our country, but the terms of
employment of any workman or any labourer anywhere in the world. The proposition
has only to be stated in order to make one realise how entirely untenable it is.”
Take, for example, another case where the workmen raise an objection to the salary or
remuneration paid to a Manager or Chief Medical Officer by the employer but without
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claiming any benefit for themselves, and let us assume that a dispute or difference arises
between the workmen on one side and the employer on the other over such an objection. If
such a dispute comes within the definition clause and is referred to an Industrial Tribunal for
adjudication, the parties to the dispute will be the employer on one side and his workmen on
the other. The Manager or the Chief Medical Officer cannot obviously be a party to the
dispute, because he is not a “workman” within the meaning of the Act and there is no dispute
between him and his employer. That being the position, the award, if any, given by the
Tribunal will be binding, under clause (a) of Section 18, on the parties to the dispute and not
on the Manager or the Chief Medical Officer. It is extremely doubtful if in the circumstances
stated the Tribunal can summon the Manager or the Chief Medical Officer as a party to the
dispute, because there is no dispute between the Manager or Chief Medical Officer on one
aide and his employer on the other. Furthermore, Section 36 of the Act does not provide for
representation of a person who is not a party to the dispute. If, therefore, an award is made by
the Tribunal in the case which we have taken by way of illustration, that award, though
binding on the employer, will not be binding on the Manager or Chief Medical Officer. It
should be obvious that the Act could not have contemplated an eventuality of this kind, which
does not promote any of the objects of the Act, but rather goes against them. - When these difficulties were pointed out to learned counsel for the appellants, he
conceded that some limitations must be put on the width of the expression “any person”
occurring in the definition clause. He formulated four such limitations:
(1) The dispute must be a real and substantial one in respect of which one of the
parties to the dispute can give relief to the other; e.g. when the dispute is between
workmen and employer, the employer must be in a position to give relief to the workmen.
This, according to learned counsel for the appellants, will exclude those cases in which
the workmen ask for something which their employer is not in a position to give. It would
also exclude mere ideological differences or controversies.
(2) The industrial dispute if raised by workmen must relate to the particular
establishment or part of establishment in which the workmen are employed so that the
definition clause may be consistent with Section 18 of the Act.
(3) The dispute must relate to the employment, non-employment or the terms of
employment or with the conditions of labour of any person, but such person must be an
employee discharged or in service or a candidate for employment. According to learned
counsel for the appellants, the person about whom the dispute has arisen, need not be a
workman within the meaning of the Act, but he must answer to the description of an
employee, discharged or in service, or a candidate for employment.
(4) The workmen raising the dispute must have a nexus with the dispute, either
because they are personally interested or because they have taken up the cause of another
person in the general interest of labour welfare. The further argument of learned counsel
for the appellants is that even imposing the aforesaid four limitations on the width of the
expression “any person” occurring in the definition clause, the dispute in the present case
is an industrial dispute within the meaning of Section 2(k) of the Act, because (1) the
employer could give relief in the matter of the termination of service of Dr K.P. Banerjee,
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(2) Dr K.P. Banerjee belonged to the same establishment, namely, the same tea garden,
(3) the dispute related to a discharged employee (though not a workman) and (4) the
workmen raising the dispute were vitally interested in it by reason of the fact that Dr
Banerjee (it is stated) belonged to their trade union and the dismissal of an employee
without the formulation of a charge and without giving him an opportunity to meet any
charge was a matter of general interest to all workmen in the same establishment. - We now propose to examine the question whether the limitations formulated by
learned counsel for the appellants are the only true limitations to be imposed with regard to
the definition clause. In doing so we shall also consider what is the true scope and effect of
the definition clause and what are the correct tests to be applied with regard to it. We think
that there is no real difficulty with regard to the first two limitations. They are, we think,
implicit in the definition clause itself. It is obvious that a dispute between employers and
employers, employers and workmen, or between workmen and workmen must be a real
dispute capable of settlement or adjudication by directing one of the parties to the dispute to
give necessary relief to the other. It is also obvious that the parties to the dispute must be
directly or substantially interested therein, so that if workmen raise a dispute, it must relate to
the establishment or part of establishment in which they are employed. With regard to
limitation (3), while we agree that the expression “any person” cannot be completely equated
with “any workman” as defined in the Act, we think that the limitation formulated by learned
counsel for the appellants is much too widely stated and is not quite correct. We recognise
that if the expression “any person” means “any workman” within the meaning of the Act, then
it is difficult to understand why the legislature instead of using the expression “any workman”
used the much wider expression “any person” in the third part of the definition clause. The
very circumstance that in the second part of the definition clause the expression used is
“between employers and workmen or between workmen and workmen” while in the third part
the expression used is “any person” indicates that the expression “any person” cannot be
completely equated with “any workman”. The reason for the use of the expression “any
person” in the definition clause is, however, not far to seek. The word “workman” as defined
in the Act (before the amendments of 1956) included, for the purposes of any proceedings
under the Act in relation to an industrial dispute, a workman discharged during the dispute.
This definition corresponded to Section 2(j) of the old Trade Disputes Act, 1929 except that
the words “including an apprentice” were inserted and the words “industrial dispute” were
substituted for the words “trade dispute”. It is worthy of note that in the Trade Disputes Act,
1929, the word “workman” meant any person employed in any trade or industry to do any
skilled or unskilled manual or clerical work for hire or reward. It is clear enough that prior to
1956 when the definition of “workman” in the Act was further widened to include a person
dismissed, discharged or retrenched in connection with, or as a consequence of the dispute or
whose dismissal, discharge or retrenchment led to the dispute, a workman who had been
discharged earlier and not during the dispute was not a workman within the meaning of the
Act. If the expression “any person” in the third part of the definition clause were to be strictly
equated with “any workman”, then there could be no industrial dispute, prior to 1956, with
regard to a workman who had been discharged earlier than the dispute, even though the
discharge itself had led to the dispute. That seems to be the reason why the legislature used
the expression “any person” in the third part of the definition clause so as to put it beyond any
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doubt that the non-employment of such a dismissed workman was also within the ambit of an
industrial dispute. There was a wide gap between a “workman” and an “employee” under the
definition of the word “workman” in Section 2(s) as it stood prior to 1956; all existing
workmen were no doubt employees; but all employees were not workmen. The supervisory
staff did not come within the definition. The gap has been reduced to some extent by the
amendments of 1956; part of the supervisory staff (who draw wages not exceeding five
hundred rupees per mensem) and those who were otherwise workmen but were discharged or
dismissed earlier have also come within the definition. If and when the gap is completely
bridged, “workmen” will be synonymous with “employees”, whether engaged in any skilled
or unskilled manual, supervisory, technical or clerical work etc. But till the gap is completely
obliterated, there is a distinction between workmen and non-workmen and that distinction has
an important bearing on the question before us. Limitation (3) as formulated by learned
counsel for the appellants ignores the distinction altogether and equates “any person” with
“any employee” – past, present or future: this we do not think is quite correct or consistent
with the other provisions of the Act. The Act avowedly gives a restricted meaning to the word
“workman” and almost all the provisions of the Act are intended to confer benefits on that
class of persons who generally answer to the description of workmen. The expression “any
person” in the definition clause means, in our opinion, a person in whose employment, or
non-employment, or terms of employment, or conditions of labour the workmen as a class
have a direct or substantial interest — with whom they have, under the scheme of the Act, a
community of interest. Our reason for so holding is not merely that the Act makes a
distinction between workmen and non-workmen, but because a dispute to be a real dispute
must be one in which the parties to the dispute have a direct or substantial interest. Can it be
said that workmen as a class are directly or substantially interested in the employment, nonemployment, terms of employment or conditions of labour of persons who belong to the
supervisory staff and are, under the provisions of the Act, non-workmen on whom the Act has
conferred no benefit, who cannot by themselves be parties to an industrial dispute and for
whose representation the Act makes no particular provision? We venture to think that the
answer must be in the negative. Limitation (4) formulated by learned counsel for the
appellants is also too generally stated. We recognise that solidarity of labour or general
interest of labour welfare may furnish, in some cases, the necessary nexus of direct or
substantial interest in a dispute between employers and workmen, but the principle of
solidarity of the labour movement or general welfare of labour must be based on or correlated
to the principle of community of interest; the workmen can raise a dispute in respect of those
persons only in the employment or non-employment or the terms of employment or the
conditions of labour of whom they have a direct or substantial interest. We think that Chagla,
C.J., correctly put the crucial test when he said in Narendra Kumar Sen v. All India
Industrial Disputes (Labour Appellate) Tribunal:
“Therefore, when Section 2(k) speaks of the employment or non-employment or
the terms of employment or the conditions of labour of any person, it can only mean
the employment or non-employment or the terms of employment or the conditions of
labour of only those persons in the employment or non-employment or the terms of
employment or with the conditions of labour of whom the workmen themselves are
directly and substantially interested. If the workmen have no direct or substantial
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interest in the employment or non-employment of a person or in his terms of
employment or his conditions of labour, then an industrial dispute cannot arise with
regard to such person.” - More in point is the decision of the Full Bench of the Labour Appellate Tribunal in a
number of appeals reported in 1952 Labour Appeal Cases, p. 198, where the question now
before us arose directly for decision. The same question arose for decision before the All
India Industrial Tribunal (Bank Disputes) and the majority of members (Messrs. K.C. Sen and
J.N. Majumdar) expressed the view that a dispute between employers and workmen might
relate to employment or non-employment or the terms of employment or conditions of labour
of persons who were not workmen, and the words “any person” used in the definition clause
were elastic enough to include an officer, that is, a member of the supervisory staff. The
majority view will be found in Chapter X of the Report. The minority view was expressed by
Mr N. Chandrasekhara Aiyar, who said:
“It is fairly clear to my mind that ‘any person’ in the Act means any one who
belongs to the employer class or the workmen class and the cases in whose favour or
against whom can be said to be adequately presented by the group or category of
persons to which he belongs.
As stated already it should be remembered that the cases relied upon for the view
that ‘any person’ may mean others also besides the workmen were all cases relating
to workmen. They were discharged or dismissed workmen and when their cases were
taken up by the Tribunal the point was raised that they had ceased to be workmen and
were therefore outside the scope of the Act. This argument was repelled.
In my opinion, there is no justification for treating such cases as authorities for
the wider proposition that a valid industrial dispute can be raised by workmen about
the employment or non-employment of someone else who does not belong and never
belonged to their class or category.
My view therefore is that the Act does not apply to cases of non-workmen, or
officers, if they may be so called.”
Both these views as also other decisions of High Courts and awards of Industrial Tribunals,
were considered by the Full Bench of the Labour Appellate Tribunal and the Chairman of the
Tribunal (Mr J.N. Majumdar) acknowledged that his earlier view was not correct and
expressed his opinion, concurred in by all the other members of the Tribunal, at p. 210 –
“I am, therefore, of opinion that the expression ‘any person’ has to be interpreted
in terms of ‘workman’. The words ‘any person’ cannot have, in my opinion, their
widest amplitude, as that would create incongruity and repugnancy in the provisions
of the Act. They are to be interpreted in a manner that persons, who would come
within that expression, can at some stage or other, answer the description of workman
as defined in the Act.” - To summarise. Having regard to the scheme and objects of the Act, and its other
provisions, the expression “any person” in Section 2(k) of the Act must be read subject to
such limitations and qualifications as arise from the context; the two crucial limitations are (1)
the dispute must be a real dispute between the parties to the dispute (as indicated in the first
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two parts of the definition clause) so as to be capable of settlement or adjudication by one
party to the dispute giving necessary relief to the other, and (2) the person regarding whom
the dispute is raised must be one in whose employment, non-employment, terms of
employment, or conditions of labour (as the case may be) the parties to the dispute have a
direct or substantial interest. In the absence of such interest the dispute cannot be said to be a
real dispute between the parties. Where the workmen raise a dispute as against their employer,
the person regarding whose employment, non-employment, terms of employment or
conditions of labour the dispute is raised need not be, strictly speaking, a “workman” within
the meaning of the Act but must be one in whose employment, non-employment, terms of
employment or conditions of labour the workmen as a class have a direct or substantial
interest. - In the case before us Dr K.P. Banerjee was not a “workman”. He belonged to the
medical or technical staff – a different category altogether from workmen. The appellants had
no direct, nor substantial interest in his employment or non-employment, and even assuming
that he was a member of the same Trade Union, it cannot be said, on the tests laid down by
us, that the dispute regarding his termination of service was an industrial dispute within the
meaning of Section 2(k) of the Act.
The result, therefore, is that the appeal fails and is dismissed.
