THE J. K. COTTON SPINNING & WEAVING MILLS CO., LTD. versus THE STATE OF ULTAR PRADESH & ORS.

Act, both the remedies were open to the authorities,

and they could resort to any one of them at their option.

The appeal is allowed, and the judgment of the High Court set aside. Though the respondents did not appear, in the circumstances of the case we think we should make an order that the costs shall be paid by them both here and in the High Court.

Appeal allowe,d.

State of Kerala and Ors. v. C. M. Francis <>-Co.

Hidaj1atulla1' ].

THE J. K. COTTON SPINNING & WEAVING MILLS CO., LTD.

THE STATE OF U'l'TAR PRADESH & ORS.

(P. B. GAJENDRAGADKAR, K. N. WANCHOO and

K. c. DAS GUFTA, JJ.)

Industrial Dispute-Proposed dismissal of workmen-Pending dispute-Permission not sought-Reference to adjudication-Vali-dity of-U. P. Industrial Disputes Act, r947 (U. P. 28 of r947), ss. 3 and 8-Government Order dated March IO, r948, els. 5(a), 23.

Under ss. 3 and 8 of the U. P. Industrial Disputes Act, r947

the Governor issued an Order dated March 10, 1948, making detailed provisions for the settlement of Industrial Disputes. Clause 5(a) of the Government Order empowered, among others, recognised association of employers to refer an industrial dis-pute for adjudication to the Conciliation Board. Clause 23 pro-vided that no employer shall discharge or dismiss any workman during the pendency of an inquiry except with the written per-mission of ttie Regional Conciliation Officer, and cl. 26 provided for penalties for contravention oi cl. 23. The appellant proposed to dismiss certain workmen. Though at the time there was dispute pending inquiry, the appellant did not seek permission under cl. 23 to dismiss the workmen; but the Employers' Associa-tion of Northern India made an application under cl. 5(a) to the Board to adjudicate and give an award that the appellant was entitled to dismi~s the workmen. The workmen contended that the reference under cl. 5(a) was incompetent as the appellant had not first taken proceedings under cl. 23.

Held, that the application under cl. 5(a) of the G. 0. was not

1960 December xa.

1960 maintainable, as the employer could not take advantage of cl. 5(a) during the pendency of an inquiry when cl. 23 was appli-Th• ]. 1'. Cotton cable. If els. 5(a) and 23 were held to apply at the same time Spinning & there would be disharmony as by resorting to cl. 5(a) when cl. ~3 Weaving Mills was applicable, the employers would be contravening cl. 23 and Co., Ltd. rendering themselves liable to the penalties under s. 26. But v. there was complete harmony if it was held that cl. 5(a) applied Th• State of in all other cases of dismi•sal or discharge except where an Utta' P>adesh inquiry was pending within the meaning of cl. 23. Besides & Ors. cl. 23 was special p.[OVision which prevailed over the general provisicns in cl. 5(a).

Kanpur Mil! Mazdoor Union v. Employers' Association of Northern India, (r952) r L.L.J. r95, approved.

De Winton v. Brecon, (r858) 28 L.J. Ch. 598, Churchill v. Crease, (1828) 5 Bing. r77 and United States v. Chase, (1890) r35 U.'S. 255, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 157 of 1959.

Appeal from the judgment and decree dated Jan-

uary 5, 1956, of the Allahabad High Court in Special Appeal.No. 205 of 1954

and

Civil Appeal No. 158 of 1959.

Appeal by special leave from the judgment and

order dated January 15, 1952, of the Labour Appel-late Tribunal of India, Allahabad, in Appeal No. Cal. 47of1951.

M. C. Setalvad, Attorney-General for India and G. C. Mathur, for the appellant.

M. R. Krishna Pillai, for respondent No. 5 (In C. A.

No. 157/1959) ..

C. P. Lal, fcir the State of U. P. and Respondents

Nos. 2 and 4 (lit C. A. No. 157/59).

0. P. Verma, for respondent No. 5 (in C. A. No. 158/59).

1960. December 12.

The Judgment of the Court

was delivered by

DAS GUPTA, J.-These two appeals r.aise the ques-

Das Gupta J.

tion of the maintainability of au application made by the Employers' Association of Northern India, Kan-pur on behalf of the J. K. Cotton and Weaving Mills

3 S.C.R.

Co., Ltd., member of the Association in connection 1960 with the prol?osed termination the prol?osed termination prol?osed termination of service of certain T.he f. ~-:Cotton members of its Watch and Ward Staff. But before Spinning & we come to the consideration of this question it is Weaving Mills necessary to indicate in brief the long and tortuous Co., Ltd. path this matter has travelled before coming to us. v, The application of the Employers' Association pur- J,::,, ~:~~;{h ported to be under clause 5{a) of the Government & 0 ,,. order dated March 10, 1948, as amended by later order of May 15, 1948. This order was issued by the Das Gupta J. Governor of the United Provinces in exercise of the powers conferred on him by cl. (b), (c), {d) and {g) of section 3 and by s. 8 of the U. P. Industrial Dis-putes Act, 1947. The application after stating that number of thefts of Dhoties had taken place in the Mill further stated that it was obvious to the manage-ment of the J. K. Cotton Spinning and W"eaving Mills Co., Ltd., that this state of affairs could not exist and continue if Watch and Ward staff were carrying out their duties vigilantly, correctly and honestly. It stated further that the management having lost confi-dence in the honesty of the Watch and Ward Staff had decided to terminate the services of all the per-sons of the Watch and Ward Staff and to recruit fresh men from the employment exchange and that in lieu of notice of termination of service the management would pay to these persons 12 days' wages in accor-dance with Standing Order No. 17A. The prayer made in the application was that "the Board be pleas~d to record the award entitling the J. K. Cotton and Weaving Mills Co., Ltd., to terminate the services of all the members of the Watch and Ward Staff whose names appear in Annexure A". During the pendency of the application before the Board the applicant withdrew its prayer as regards 5 of the workmen. As regards the remaining workmen, after rejecting the preliminary objection raised on their behalf that the Board had no jurisdiction to entertain the application, the Board held that "it would not be in the interests of either party or in the interest of industry to allow the remaining 27 sepoys to continue in the employment of the Mills" and the Board

with the prol?osed termination the prol?osed termination prol?osed termination of service of certain T.he f. ~-:Cotton

19oo accordingly made the award permitting the appel· -lants to terminate the services of these 27 sepoys after The].K. Cotton ; • th t" tth t t th "t-Spinning 6 g1vm_g emhcc·mdpensaf'~~n rda es se ou . y 1,, weaving Mills sta.rtmg wit 15 ays w 1wages an compensat10n ior Co., Ltd. those with one vear of service with additional amount v. of compensation on graduated scale for longer periods The State [0]! of service. Against this order both the parties a.ppeal-Uttar Pradesh 1 Th '"" Ors. ed to the In ustria ourt. at court agree with Board's conclusion on the question of jurisdiction but Das Gupta f. pointed out that the "procedure adopted by the em-ployers association was defective inasmuch as the mills did not apply to the Regional Conciliation Officer to discharge the sepoys in question". On merits the court held that the evidence justified the conclusion of the Board that the management had lost confidence in the members of the Watch and Ward Staff and that having regard to the Standing Orders their ser. vices should be terminated in accordance with the Standing Orders. It accordingly directed in modifica. tion of the order made by the Board "that the ser-vices of the 27 sepoys in question be terminated in accordance with the Standing Orders and that they would not be paid extra compensation as directed by the Board." The workmen then appealed to the Labour Appellate Tribunal of India. The appellate tribunal held relying on an earlier decision of its own in Kanpur Mill Mazdoor Union v. Employers' Associa. tion of Northern India ([1]) that the application under cl. 5(a) of the Government Order was not maintain. able. Accordingly it allowed the appeal and set aside the award of the Board as well as the Industrial Court.

The].K. Cotton Spinning 6 weaving Mills Co., Ltd.

J. K. Cotton and Weaving Mills Co., Ltd., there-upon filed an application under Art. 226 of the Con-stitution to the High Court of Judicature at Allaha-bad praying for writ in the nature of certiorari calling for the records of the case from the Labour Appellate Tribunal of India. and qua~hing the order of the Tribunal which has· been mentioned above. Mr. Justice Chaturvedi, before whom this application came up for hearing held that the application under (1) (1952) I L.L.J • 195.

3 B.C.R. SUPREME COURT REPORTS

'9[60 ]

cl. 5(a) was maintainable and the Appellate Tribu.

nal had erred in holding otherwise. Bei.ng however Th• J. K. Cotto• of opinion that there had been undue delay in making spinning c;. this application for writ, he dismissed the petition Wca.ving Mills on that ground. In the Letters Patent appeal prefer-co., L<d. red by the company against this decision prelimi-The Sfale v. of nary objection was raised on behalf of t U mon [. ]Ullar Pradosh representing the workmen that the Allahabad High .s. ors. Court could not call for the records and quash tLe order of the Labour Appellate Tribunal of India as Das Gupta J. those records were in Calcutta and consequently beyond the reach of the Court. The learned Judges who hes.rd the appeal upheld this objection and dis-missed the appeal. They however issued certificate under Art. 132(1) and Art. 133(l)(c) of the Constitu. tion. Thereafter the company also obtained special leave from this Court to appeal directly against the order of the Labour Appellate Tribunal of India. These two appeals preferred-one on the certificate granted by the High Court and the other on the strength of the special leave granted by this Court, have been heard together.The main controversy, as already indicated, is on the question of the maintainability of the application under cl. 5(a) of the Government order. This order issued by the Governor of the United Provinces in exercise of the powers conferred on him by the U. P. Industrial Disputes Act, Hl4 7 contains detailed pro-visions as regards the settlement of industrial dis-putes. The first clause provides for the constitution of Conciliation Boards consisting of three members. Clause 2 provides for the appointment of conciliation officers for specified areas. Clause 5 contains the important provisions as to commencement of proceed-ings before the Boards. It provides two ways of starting these proceedings: one mentioned in cl. (b) is by an order made in writing by"the Provincial Govern-ment for enquiring into matter in respect of which an industrial dispute has arisen or is likely to arise. The other method is by means of an application by an employee or recognised association of employers or registered trade union of workers or where there is

' [[960 ]]no such registered trade union the representatives not The J. K. Cotton more than five in .number duly elected by majority spinning s. of the workmen in the industry. Any of these may Weaving Mills by an application in writing move the Board to in-Co., Lid. quire into an industrial dispute. This provision is in v. cl. 5(a) which may be set out in full:-

Co., Lid. The State v. of uuar Pradesh s. ors.

"5(a). Any employee or recognised association of employers or registered Trade Union of workmen or, where no registered trade union of workmen exists in any particular concern or industry, the re-presentatives not more than five in number of the workmen in such concern or industry duly elected in this behalf by majority of the workmen, in such concern or industry as the case may be, at meeting held for the purpose, may by application in writing move the Board to enquire into any industrial dispute. The pplica ti on shall clearly state the industrial dispute or disputes which are to be the subject of such inquiry."

Das Gupta J.

Clause 10 provides for the constitution of industrial courts for specified areas. Clause 12 provides for appeals to this Court against the awards made by the Board. The other clauses up to clause 22 deal with the powers and procedure of the Board or the Indus-trial Court and with the duties of employers to permit certain meetings to be held. Then comes cl. 23 which is in these words:-

"Save with the written permission of the Regio-nal Conciliation Officer or the Additional Regional Conciliation Officer concerned,. irrespective of the fa.ct w he th er an inquiry is pending before Regio• nal Conciliation Board or the Provincial ConciJia. tion Board or an appeal is pending before the Indus· trial Court, no employer, his agent or manager, shall during the continuance of an inquiry or appeal, discharge or .dismiss any workman."

Section 24 provides that every order made or direction issued under the provisions of this Government order shall be final and conclusive. Clause 26 provides for penalties for contravention or an attempt to contra-vene any of the provisions of the order. consideration of the scheme of this legislation

makes it clear that while two modes are provided in while two modes are provided in

that while two modes are provided in while two modes are provided in 1960 clauses 5(a) ings fo: settlem.e':1t and 5(b) for ~f the indust:ial disputes commencement of gene~ally, proceed. Th ;j;~.i~g 7c 0~.0a special prov1s10n is made m clause 23 that if :er. weaving Mills enquiry is proceeding before Regional Conciliation co .. Ltd. Board or the Provincial Conciliation Board or an v. appeal is pending before the Industrial Court, no Th• Stat• [0]1 Uttar Pradesh workman shall discharged except with the wrhteli .,. o.s. permission of the Regional Conciliation Officer or the Additional Conciliation Officer concerned. The conE8· Das Gupta J. quence in cl. 26 is that if any workman is discharged or dismissed during the continuance of such enquiry or appeal without such permission the employer shall be liable to fine or to imprisonment not exceedi11g three years or both. The heavy punishment provided for contravention of the order shows the importance attached by the legislating authority to the ciirections given by the Order.

0~.0~.00•

In deciding whether an application uncier cl. 5(a) was maintainable in the facts of the present case two questions arise for consideration. The first is whr,ther an industrial dispute comes into existence a.s soon as an employer decides on the dismissal of some of the workmen and proposes to give effect to such decision. One view is that it is only the party aggrieved by the proposed dismissal, in other words, the workmen, who by objecting to the same can raise the dispute and that the employer cannot by his own proposal to dis-miss the workmen be heard to say that dispute had come into existence even before the workmen had chance to object to the dismissal. The contrary view which has found favour with Mr. Justice Chaturvedi of the High Court is that even at the stage the em-ployer proposes to dismiss his workmen it is case of contemplated non-employment which will come within the expression "industrial dispute". The other question is whether the provisions of cl. 23 of the order bar an application under cl. 5(a) during the con-tinuance of any enquiry before the Regional Concilia-tion Board or the Additional Conciliation Board or -during the pendency of the appeal before the Indus-trial Court. There is no dispute that on June 131

1960 1950 when the application under clause 5(a) was made Th• 1.-;:Cotton an inquiry was in fact pending before Conciliation spinning .,,. Officer. It appears that on July 9, 1949 the Gover-Weoving Mills nor of the United Provinces made an order directing co., Ltd. the Labour Commissioner of the United Provinces or v. Conciliation Officer nominated by him in this behalf Th• State of to re-start the adjudication proceedings between the Uttar Ptadesh c·Ors. J. K. Cotton & Weaving Mills Co., and S. N. Shukla, dismissed employee of the concern. The Adjudica-Das .. pta J. tor was directed to conclude the adjudication and submit his award by August 15, 1949. The time wa.s extended by subsequent orders-first to November 15, 1949 and then to March 31, 1950, again to June 30, 1950 and thereafter to September 30, 1950. It is true that at the time these orders extending time for submission of award were made the Governor had no authority to make these orders and these orders were invalid. They were validated by the provisions of s. 3 of the U.P. Act XXIII of 1953. In view of this position of the law the learned Attorney-General has not disputed that on June 13, 1950 when the application under cl. 5(a) was made an enquiry was actually pending before Conciliation Officer. Con-~uently, before the management could make any order discharging or dismissing any of its workmen it was required by cl. 23 to obtain permission for the same from the Regional Conciliation Officer. The question is whether in spite of this provision in ol. 23 the employer could make and the Board entertain a.n application under cl. 5(a) on this question of proposed dismissal.

We propose to consider this question first and for that purpose assume that an industrial dispute comes into existence as soon as the employer decides to dis-miss his workmen and proposes to do so and that ordinarily he can make an application in such dis-pute to the Boa.rd under the provisions of cl. 5(a). If such application is decided against the employer and no permission is given to make the proposed dismissal, no difficulty arises. What however is the position .if on such an application the Boa.rd makes an order 8ra.nting the employer the requisite permillsion to

dismiss his workmen? Under cl. 24 this order unless x96o modified iu appeal will be final and conclusive and Th -;:-c shall not be questioned by any party thereto. So far ;j;~.;~g o;:,00• as the workmen are concerned they will not be able to weaving Mills dispute the correctness of the order except in the co., Ltd. mode provided in the Government order itself. What v. however is the position of the employer if in pursuance The State of Uttar Pradesh o 'the order made on his application under cl. 5(a) &- Ors. he discharges or dismisses his workmen? By doing so he will have clearly contravened the provisions of Das Gupta J. cl. 23, and will become liable to the severe penalty provided in cl. 26-a penalty which might even extend to imprisonment up to three years.

;j;~.;~g o;:,00• weaving Mills co., Ltd. v.

To remove this incongruity, says the learned Attorney-General, apply the r:ile of harmonious con-struction and hold that cl. 23 of the order has no application when an order is made on an application under cl. 5(a). On the assumption that under cl. 5(a) an employer can raise dispute sought to be created by his own proposed order of dismissal of workmen there is clearly this disharmony as pointed out above between two provisions, viz., cl. 5(a) and cl. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule however we have to remember that to harmonise is not to destroy. In the interpretation of statutes the courts always pre-sume that the legislature inserted every part thereof for purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also. On the construction suggested by the learned Attorney-General it is obvious that by merely making an application under cl. (5) on the allegation that a. dispute has arisen a.bout the propos-ed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a. dismissal prefers to proceed under cl. 5(a) instead of ma.king an application under cl. 23, cl. 23 will be a. dead letter. construction like this which defeats the intention of the rule ma.king authority in cl. 23 must, if possible, be avoided.

'9[[60 ]]It is hardly necessary to mention that. this rule in ne J. K. Cotton cl. 23 was made with definite purpose. The provi-spinning &-sion here is very similar to d. 33 of the Industrial Weaving Mills Disputes Act before its amendment, though there are Co .• Ltd. some differences. It is easy to see however that the The State v. of rule making authority in making this rule was Ut1ar Pradesh anxious to prevent as far as possible the recrudescense &- Ors. of fresh disputes between employers and workmen when some dispute was already pending and that Das Gupta J. purpose will be directly defeated if fresh dispute is allowed to be raised under cl. 5(a) in the very cases where cl. 23 in terms applies.

There will be complete harmony however if we hold instead that cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of cl. 23. We reach the· same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another A?t, the rule cannot apply in resolving con-flict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should. yield to specific provi-sions is not an arbitrary principle made by lawyers and judges but springs from the common understand-ing of men and women that when the same person gives two directions one covering large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. So'tly (') (quoted in Craies on Statute Law at p .. 205, 5th Edition) Romilly, M.R. mentioned the rule thus:-"The rule is, that whenever there is particular enact-ment and general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment \.1) (1859) 26 Beav. 6o6, 610.must be operative, and the general enactment must be r96o which taken to it affect only may properly apply". The rule the other parts of the statute has been to Th ;pi~ni~g ~on 1 K 11 applied as between different provisions of the same weaving Mills statute in numerc!1s cases some of which ouly need be Co., Ltd. mentioned: De Winton v. Brecon ([1]), Churchill v. v. Grease ([2]), United States v. Chase(') and Carroll v. u~::, [[5]]';:;;!,h Greenwich Irie. Oo. ('). & 0 15• 15• •

;pi~ni~g ~on

v. u~::, [[5]]';:;;!,h

& 0 15• 15• •

Applying this rule of construction that in cases of conflict between specific provision and general pro-vision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provi-sion, we must hold that cl. 5(a) has no application in case where the special provisions of cl. 23 are applicable.

Das Gupta J.

As in the present case an inquiry was in fact pend-ing before Conciliation Officer, cl. 23 pp lied in respect of any discharge or dismissal of workman and the employer could not take advantage of cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board.

In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of cl. 5(a) comes into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such decision .

On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under cl. 5(a) filed on June 13, 1950 was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed.

As we have already pointed out above the order made by the appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be

(1) (1858) 28 L.J. Ch. 59 ..

(2) (1828) 5 Bing. 177·

(3) (1890):135 U.S. 255.

(4) (1905) 199 U.S. 401.

z96o reached by any writ of the Allahabad High Court. In -view of our conclusion that the application under Ths spinnin J. K. Cotton & c. 1 5(. was no mam ama ) t • t . bl e, th appe an was on J] t Weaving ~ills merits not entitled to any writ and on that ground the co., Ltd. appeal against the High Court's order must also be v. dismissed. The State [0]1 It is unnecessary to consider the question whether Uttar Pt'adesh & ors. the High Court was right in its view as as regards the

It is unnecessary to consider the question whether the High Court was right in its view as as regards the preliminary objection and we express no opinion on

Das Gupta J. the same.

Both the appeals are accordingly dismissed with costs to the contesting respondent, There will be one set of hearing fee.

Appeals dismissed.

December ra.

RAM PRASAD VISHWAKARMA

THE CHAIRMAN, INDUSTRIAL TRIBUNAL

(P. B. G.AJENDR.AG.ADKAR, K. N. W .ANCHOO and K. C. D.As GUPTA, JJ.)

Industrial Dispute-Dismissal of workman-Industrial Dis-pute raised by union-Representation of workman before Tribunal-Industrial Disputes Act, r947 (r4 of r947), ss. 2(k), 36.

On the termination of the appellant's services by his employer an industrial dispute was raised by his union and the question of his dismissal along with number of other dis-putes was referred to the Industrial Tribunal. After several adjournments of the case the management and the union filed joint petition of compromise settling all the points in dispute out of Court. Prior to this the appellant filed an application praying that he might be allowed to be represented by two of his co-workers instead of the Secretary of the Union in whom he had no faith and who had no authority to enter into the com-promise on his behalf. This prayer was not allowed by the Tribunal which made an award in terms of the compromise. The appellant. thereupon, made an application to the High Court praying for writ quashing the order of the Tribunal disallow-ing him to be represented by person of his own choice and