ASOKA MILLS LIMITED Vs. INDUSTRIAL COURT
LAWS(GJH)-1963-9-13
HIGH COURT OF GUJARAT
Decided on September 10,1963

MANAGER THE ASOKA MILLS LTD Appellant
VERSUS
INDUSTRIAL COURT, GUJARAT Respondents

JUDGEMENT

B.J.DIVAN, P.N.BHAGWATI - (1.) This petition raises a short question relating to the interpretation of certain provisions of the Bombay Industrial Relations Act 1946 The facts giving rise to the petition are few and for the most part undisputed and may be briefly stated as follows. The petitioner is the Manager of a Limited Company called Asoka Mills Limited. The Company owns a textile mill in Ahmedabad and carries on business of running the textile mill. Since the Company is engaged in the textile industry the relations between the Company and its employees are governed by the Bombay Industrial Relations Act 1946 Respondent No. 3 is a doffer employed in the Ring Spinning Department of the textile mill belonging to the Company. The duties and wages of doffers for the textile industry in Ahmedabad are governed by the Standardization Award published in the Bombay government Gazette Part 1-L dated 7th August 1954 at page 3904. it appears that the petitioner as the Manager of the Company was exacting from respondent No. 3 work which was not mentioned in the Standardization Award. Respondent No. 3 therefore filed a complaint against the petitioner before the Labour Court under sec. 106 complaining that the petitioner was exacting from respondent No. 3 work not mentioned in the Standardization Award as set out in the list annexed to the complaint and that this action on the part of the petitioner being a breach of the Standardization Award constituted an illegal change and that the petitioner was therefore guilty of the offence under sec 106(1). The petitioner raised before the Labour Court two contentions of a preliminary nature in answer to the complaint. The first contention was that the complaint was not tenable since it was not preceded by a declaration of an illegal change obtained from the Labour Court under sec. 78(1)A(c) and the second contention was that in any event no complaint could be maintained against the petitioner who was the Manager and that the complaint if at all could be only against the Company. Both these contentions were negatived by the Labour Court by an order dated 2nd March 1960. The petitioner thereupon preferred a Revision Application to the Industrial Court and in the Revision Application the same two contentions were urged which were urged before the Labour Court. The Industrial Court also rejected these contentions and held that the complaint did not suffer from any of the infirmities suggested on behalf of the petitioner. The petitioner thereupon preferred the present petition challenging the decision of the Industrial Court on these contentions.
(2.) The main question debated before us was whether a complaint for an offence under sec. 106(1) could lie without a previous declaration obtained from the Labour Court under section 78(1)A(c) that the change complained of was an illegal change. Mr. P B. Patwari learned advocate appearing on behalf of the petitioner contended that in order to found a complaint under sec. 106(1) it was necessary to first obtain a declaration from the Labour Court under sec. 78(1)A(c) At an illegal change had been committed by the employer and that since this was not done in the present case the complaint was not maintainable Mr. P.B. Patwari relied on the scheme of the Act and the second proviso to sec. 79 and urged that there was a clear correlation between an application for a declaration of an illegal change under sec. 78(1)A(c) and a compplaint under sec. 106(1) and the correlation was that no complaint under sec. 106(1) could be filed unless it was preceded by a declaration of an illegal change under sec. 78(1)A(c). Mr. P. B. Patwari argued that the construction suggested by him was the only right construction and that if any other construction were accepted it would result in various anomalies which could not possibly have been contemplated by the Legislature. We shall refer to the anomalies apprehended by Mr. P B. Patwari to arise from the construction suggested by the other side when we refer to the agreement based on these anomalies. But it is sufficient to state for the present that a vehement and insistent argument was founded by Mr. P. B. Patwari on these anomalies. Mr. P. B. Patwari also adverted to the larger interests of industrial peace and contended that the construction contended for by him should be accepted as that would further the cause of industrial peace much more than the other construction suggested on behalf of the workman and accepted by the Industrial Court. Mr. Acharya arguing Amicus Curiae on the other hand supported the construction put by the Industrial Court and contended that the plain language of sec. 106(1) did not warrant the introduction of any condition that a complaint under section 106(1) must be preceded by a declaration of an illegal change under sec. 78(1)A(c). Mr. Acharya pointed out that if an employer made an illegal change he committed an offence under sec.106(1) and either the employee affected by such illegal change or the Labour Officer could file a complaint in the Labour Court under sec. 82 and the Labour Court could try the offence by virtue of the jurisdiction conferred upon it by section 78(1)B and for the purpose of deciding whether the employer was guilty of the offence charged determine whether an illegal change was made by the employer. There was no necessity argued Mr. Acharya to obtain a declaration of the Labour Court on this point by a separate application under sec. 78(1)A(c) when the same point could equally be decided by the Labour Court on the complaint under sec.106(1). Mr. Acharya submitted that there was therefore no substance in the contention raised by Mr. P. B. Patwari and that it must be rejected.
(3.) In order to appreciate these rival contentions it is necessary to refer to a few sections of the Bombay Industrial Relations Act 1946 Section 3(15) defines illegal change to mean an illegal change within the meaning of sub-sec. (4) or (5) of sec. 46. Sub-section (4) of sec. 46 provides that any change made in contravention of the provisions of sub-section (1) (2) or (3) of that section shall be illegal. We are however not concerned in the present case with sub-sec. (4) of section 46 since the change complained of is alleged to be illegal not under subsec. (4) of sec. 46 but under sub-sec. (5) of section 46. Sub-sec. (5) of section 46 declares that failure to carry out the terms of any settlement award registered agreement or effective order or decision of a Wage Board a Labour Court or the Industrial Court affecting industrial matters shall be deemed to be an illegal change. It is sub-sec. (5) of section 46 which is relied on by respondent No 3 in support of the contention that the petitioner by exacting from respondent No. 3 work not mentioned in the Standardization Award has failed to carry out the terms of the Standardization Award and has thereby made an illegal change. Section 78 deals with the powers of the Labour Court and is in the following terms:-- 78 (1) A Labour Court shall have power to A. decide- (a) disputes regarding- (i) the propriety or legality of an order passed by an employer acting or purporting to act under the standing orders; (ii) the application and interpretation of standing orders; (iii) any change made by an employer or desired by an employee in respect of an industrial matter specified in schedule 111 and matters arising out of such change; (b) industrial disputes- (i) referred to it under section 71 or 72; (ii) in respect of which it is appointed as the arbitrator by a submission; (c) whether a strike lock-out closure stoppage or any change is illegal under this Act; B. try offences punishable under this Act and where the payment of compensation on conviction for an offence is provided for determine the compensation and order its payment; C. require any employer to (a) withdraw any change which is held by it to be illegal or (b) carry out change provided such change is a matter in issue in any proceeding before it under this Act. Sub-section (1) of sec. 79 in so far as it is material for the purpose of the present judgment provides that proceedings before a Labour Court in respect of a matter falling under sec.78(1)A(c) shall be commenced on an application made by any employer or employee directly affected or the Labour Officer or a representative Union. Sub-sec. (2) requires that every such application shall be made in the prescribed form and manner Sub-section (3) provides a period of limitation for an application in respect of a dispute falling under sec. 78(1)A(a); but since we are not concerned in the present case with any dispute falling under sec. 78(1)A(a) it is not necessary to refer to this provision in any detail. Sub-section (4) however contains an important provision respecting matters falling under sec. 78(1)A(c) and since considerable argument turned upon it we shall reproduce the same in extenso. It is in the following terms:-- 79 (4). An application in respect of a matter falling under clause (c) of paragraph A of sub-section (1) of sec. 18 shall be made within three months of the commencement of the strike lock-out closure or stoppage or of the making of the illegal change as the case may be:- Provided that the Labour Court may for sufficient reasons admit any application for a declaration that a change is illegal under this Act after the expiry of three months from the date on which such change was made:- Provided further that when an application is admitted after the expiry of three months under the preceding proviso the employer who made the change shall not be liable to the penalty provided under section 106 Section 82 prescribes the conditions which must be fulfilled before a Labour Court can take cognizance of an offence under the Act and says:-- 82 No Labour Court shall take cognizance of any offence except on a complaint of facts constituting such offence made by the person affected thereby or on a report in writing by the Labour Officer. Section 83 deals with the powers and procedure of the Labour Court while trying an offence under the Act and makes the relevant provisions of the Code of Criminal Procedure applicable to the trial by the Labour Court Section 84 in so far as it is material provides for a right of appeal in the following terms:-- 84 (1) Notwithstanding anything contained in section 83 an appeal shall lie to the Industrial Court- (a) against a decision of a Labour Court in respect of a matter falling under clause (a) or (c) of paragraph A of sub-section (1) of section 78 except to the extent to which it determines whether a strike lock-out closure or stoppage was illegal or not or a decision of such Court under paragraph C of sub-sec. (1) of the said section; (b) against a conviction by a Labour Court by the person convicted;xx xxxx xx Section 86 attaches a certain amount of finality to the decision award or order of a Labour Court by providing that except as otherwise provided by the Act no decision award or order of a Labour Court shall be called in question in any proceeding in any civil or criminal Court. Then comes sec. 106 which provides for penalty in certain cases and it runs as follows:- 106 (1) Any employer who makes an illegal change shall on conviction be punishable with fine which may extend to Rs. 6 0 (2) Any employer who contravenes the provisions of section 47 shall. on conviction be punishable with imprisonment which may extend to three months or for every day on which the contravention continues with fine which may extend to Rs. 5 0 or with both. (2) The Court convicting any person under sub-section (1) or (2) may direct such person to pay such compensation as it may determine to any employee directly and adversely affected by the change in issue. These are the sections which were referred to by one side or the other in the course of the arguments and which have a material bearing on the determination of the present controversy between the parties.;


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