Jaganmohan Reddy, J. - (1.) The appellant was appointed as a motor-driver in the Milk Scheme at Nagpur by the Regional Dairy Development Officer on December 10, 1959 and on February 28, 1962 his services were terminated by the order of the Dairy Development Commissioner, Bombay - Respondent No.5. After the appointment the appellant was on probation for a period of six months and since that period was not extended it is his contention that he is a permanent employee inasmuch as the standing orders wich came into force on September 30, 1961 made an employee on probation permanent after completion of one year's probationary period. On March 20, 1962, the appellant filed an application before the Assistant Labour Commissioner, Nagpur, under S.16 of the C.P. and Berar Industrial Disputes Settlement Act, 1947 - hereinafter referred to as 'the Act' praying for reinstatement with back wages and continuity of employment. In that application the appellant stated that if the order of termination amonted to dismissal that order was void as it was made without any inquiry and if it was an order of retrenchment it was equally bad as no notice of change was given under S.31 of the Act. The termination was also said to be illegal as it was brought about by an authority which had not appointed him. The Assistant Labour Commissioner who heard the petition set aside the order of termination and directed respondents 3 to 5 to reinstate the appellant with back wages and continuity of service inasmuch as it was held that the appellant having completed the probationary period of one year became a permanent employee. In this view, the other contentions raised by the appellant were not decided.
(2.) Respondents 3 to 5 filed a revision before the State Industrial Court under S.16(5) of the Act. That Court set aside the order on August 12, 1963, and remanded the case for a fresh decision as to whether the appellant was a permanent employee and whether he was illegally retrenched. After remand the Deputy Commissioner of Labour at Nagpur after considering the evidence came to the conclusion that the appellant was not a permanent employee under the provisions of the Standing Orders. He however, held that as the appellant was in continuous service, he had been retrenched illegally without following the provisions of S.25-F of the Industrial Disputes Act - hereinafter called 'the Central Act'. In the result respondents 3 to 5 were directed to reinstate the appellant with back wages and continuity of service. Against this order responents 3 to 5 filed a revision application under S.16(5) of the Act before the State Industrial Court at Nagpur. In that revision an application was made by the respondents for amendment of the revision petition raising a plea for the first time that the appellant being a retrenched employee was not an "employee" under the provisions of the Act. The State Industrial Court did not accept this plea and while setting aside the reinstatement order held that the appellant was entitled to retrenchment compensation and consequently remanded the case for determination of what that compensation should be. Against the order respondents 3 to 5 filed a petition under Articles 226 and 227 of the Constitution of India. The appellant also filed a petition under Article 226 of the Constitution in the High Court for modification of the order of the State Industrial Court and for reinstatement with back wages and continuity of service along with all its privileges. Both these petitions were heard together by the Division Bench of the Bombay High Court at Nagpur. By a common judgment, the High Court allowed the application of respondents 3 to 5 holding that the appellant was not an "employee" within the meaning of Section 2 (10) of the Act as his dismissal, discharge or removal was not on account of an industrial dispute. In this view, the applent's petition was dismissed. These two appeals are with certificate against that judgment.
(3.) The question which falls for consideration is whether under the Act a dismissed, discharged or retrenched employee can invoke the jurisdiction of the authority under the Act for obtaining redress, namely, whether an application for reinstatement and compensation by a dismissed employee is maintainable under S.16 of the Act. The determination of this question would depend upon the interpretation of who the employee is for the purposes of the Act and what is meant by "on account of any industrial dispute" in S. 2(10) read with S.2(12) and (13). These provisions, as also S.16, insofar as material, are given below:- S.2 (10) - "employee" means "any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee dismissed, discharged or removed on account of any industrial dispute". S.2(12) - "industrial dispute" means "any dispute or difference connected with an industrial matter arising between employer and employee, or between employers or employees;" S.2(13) - "industrial matter" means "any matter relating to work, pay, wages, reward, hours, privileges, rights or duties of employers or employees or the mode, terms and conditions of employment or refusal to employ and includes questions pertaining to- (a) the relationship between employer and employees, or to the dismissal or non-employment of any person. ********** S.16 - "(1) Where the State Government by notification so directs, the Labour Commissioner shall have power to decide an industrial dispute touching the dismissal, discharge, removal or suspension of an employee working in any industry in general or in any local area as may be specified in the notificaiton. (2) Any employee, working in an industry to which the notification under sub-section (1) applied, may within six months from the date of such dismissal, discharge, removal or suspension, apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages. ********** " Both Section 2 (10) and 16 were amended by Act 21 of 1966. The former before its amendment was as follows: S.2(10) - "employee" means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee discharged on account of any dispute relating to a change in respect of which a notice is given under Section 31 or 32 whether before or after the discharge". It may be observed that S.2 (10) before its amendment included an employee discharged on account of any dispute relating to a change in respect of which a notice was given under Section 31 or 32 of the Act. It will be seen that S.31 dealt. With the procedure to be followed by an employer desiring change in the standing orders or in respect of any industrial matter mentioned in Sch.II, Section 32 dealt. With the procedure to be followed by a representative of employees desiring change in the standing orders or in respect of any other industrial matter. One of the industrial matters referred to in item 3 of Sch. II is "Dismissal of any employee except in accordance with law or as provided for in the standing orders settled under Section 30 of this Act". This definition of "employee" in S.2(1) appears to have been enlarged by the amendment by including an employee dismissed, discharged or removed on account of any industrial dispute and not necessarily confined only to any dispute relating to a change in respect of which notice is given under S.31 or 32 of the Act. The High Court appears to have read the definition of "employee" in S.2 (10) as contemplating two categories of persons - (1) consisting of persons who are actually in the employment of the employer at the date of the application; and (2) of those who have ceased to be in the employment prior to the date of the application, the reason for ceasing to be an employee being "dismissal, discharge or removal on account of any industrial dispute". In its view, the words of the definition did not include all ex-employees but only specified categories which have to be correlated to any industrial dispute, and as there was no industrial dispute between Laxman and the employer prior to the termination of his service. Laxman cannot be considered to be an "employee" within the meaning of S.2 (10) of the Act. A decision of this Court in Central Provinces Transport Services Ltd. Nagpur v. Raghunath Gopal Patwardhan, (1956) SCR 956 was referred to, but the High Court sought to distinguish it on the ground that in that case the employee had been dismissed after an inquiry which involved an industrial dispute. It then proceeded to state: "As we have already pointed out the definition has since been amended and the reference to Ss.31 and 32 has been dropped. As it now stands, the requirement of the definition is that if the applicant is not in service at the date of application he must have been dismissed, discharged or removed "on account of any industrial dispute". We do not think that the ratio of the decision, of the Supreme Court in that case is that every dismissed employee, irrespective of the reason for his dismissal, continues to be an "employee" within the meaning of the definition in S.2(10) of the Act so as to entitle him to approach the Labour Commissioner under S.16 (2) of the Act". In the view of the High Court, therefore, a plain reading of the definition of the term "employee" in S.2 (10) shows that the only cateogry of persons who, though not in actual employment at the date of the application included within that term is of persons who are ex-employees and were dismissed, discharged or removed on account of any industrial dispute of any industrial dispute which dispute must precede the dismissal, discharge or removal, and that their dismissal, discharge or removal must be the result of such dispute.;