PETITIONER:<\/p>\n
S. K. G. SUGAR LTD.<\/p>\n
Vs.<\/p>\n
RESPONDENT:<\/p>\n
SRI ALI HASSAN, CHAIRMAN, INDUSTRIAL TRIBUNAL,<\/p>\n
BIHAR & OTHERS<\/p>\n
DATE OF JUDGMENT:<\/p>\n
04\/11\/1958<\/p>\n
BENCH:
\nBHAGWATI, NATWARLAL H.
\nBENCH:
\nBHAGWATI, NATWARLAL H.
\nDAS, SUDHI RANJAN (CJ)
\nSINHA, BHUVNESHWAR P.
\nSUBBARAO, K.
\nWANCHOO, K.N.<\/p>\n
CITATION:
\n1959 AIR 230 1959 SCR Supl. (1) 254
\nACT:
\nIndustrial Dispute-Discharge by employer of workmen Pending
\nadjudication-‘Employer’, Meaning of-Industrial Disputes Act,
\n1947 (XIV Of 1947), ss. 33, 33A-Indian Companies Act, 1913
\n(7 Of 19I3), s. 171.<\/p>\n
HEADNOTE:
\nGaya Sugar Mills Ltd. went into liquidation and the sugar
\nfactory owned by it was leased out to the appellant by the
\nliquidator with the permission of the Court on December 6,
\n1954, to be worked in terms of the lease which provided,
\ninter alia, that the lessee would neither be liable for any
\nof the liabilities of the company, or of the liquidator or
\nthe outgoing lessees nor bound to engage any of their
\nemployees or those working from before except those
\nspecifically mentioned in the lease. On December 2, 1954,
\ni.e. four days before the appellant came into possession of
\nthe sugar factory, the Bihar Government issued a
\nnotification referring a dispute between the managements of
\ncertain specified sugar factories, including Gaya Sugar
\nMills Ltd., and their workmen represented by their Unions,
\nfor adjudication to the Industrial Tribunal constituted by
\nthe respondent No. i. No notice was given to the appellant
\nand proceedings against it were all exparte. Complaints,
\nhowever, were made before the Industrial Tribunal by two
\nbatches of workmen against the appellant under s. 33A of the
\nIndustrial Disputes Act alleging in one case that they had
\nbeen discharged and in the other that the conditions of
\ntheir service had been changed by the appellant without
\nfirst obtaining the permission of the Tribunal under s. 33
\nOf the Act. It was asserted on behalf of the appellant that
\nthere was no breach of the terms of the lease and no
\ncontravention of s. 33 Of the Act. After unsuccessfully
\nmoving the High Court under Arts. 226 and 227 Of the
\nConstitution for a writ of certiorari quashing the said
\nproceedings, the appellant came up to this Court by special
\nleave and it was contended on its behalf that
\n(1) no leave of the Court having been obtained under s. 171
\nOf the Indian Companies Act by the State Government
\nbefore it made the reference under s. 10(1) of the
\nIndustrial Disputes Act, the reference was bad in law and
\nthat (2) the word ’employer’ in ss. 33 and 33A of the
\nIndustrial Disputes Act meant only such employer as was
\nactually concerned with the industrial dispute which was the
\nsubject matter of the reference and the appellant having
\ncome into possession of the Mills after the reference, could
\nnot be an employer within the -meaning of those sections.
\n255
\nHeld, that the terms of the notification properly construed
\nclearly showed that what was sought to be made a party to
\nthe reference was not the company itself but its management
\nat the date of the reference and, therefore, no question of
\nleave of the court under s. 171 Of the Indian Companies Act
\ncould arise.
\nThe word ’employer’ occurring in ss. 33 and 33A of the
\nIndustrial Disputes Act meant the identical employer
\nconcerned with the industrial dispute, which was the
\nsubject-matter of the adjudication, and could not include an
\nemployer who merely happened to discharge or punish or alter
\nthe conditions of service of workmen unless such employer
\ncould be shown to be a mere nominee or bentamiday of the
\nformer or fell within the category of his heirs, successors
\nor assigns within the meaning Of s. 18(3)(c) of the Act.
\nSince, in the instant case, the appellant satisfied none of
\nthese tests, it was not bound to seek the permission of the
\nTribunal under s. 33 Of the Act and the proceedings under s.
\n33A of the Act against it must be quashed.<\/p>\n
JUDGMENT:
\nCIVIL APPELLATE JURISDICTION: Civil Appeal No.793 of 1957.
\nAppeal by special leave from the judgment and order dated
\nSeptember 20, of the Patna High Court in M.J.C. No. 392 of
\n1955.
\nC. K. Daphtary, Solicitor-General of India, A. B. N. Sinha
\nand B. P. Maheshwari, for the appellant.
\nS. P. Varma, for respondents Nos. 1,2,6-8 and 10-23.
\n1958. November 4. The Judgment of the Court was delivered
\nby
\nBHAGWATI, J.-This appeal with special leave is directed
\nagainst the judgment of the High Court of Judicature at
\nPatna dismissing the writ application of the appellant
\nseeking to quash the proceedings in Miscellaneous Cases Nos.
\n26 and 27 of 1955 before the Industrial Tribunal, Bihar,
\nPatna.
\nGaya Sugar Mills Ltd., a Company incorporated in 1934 owned
\na Sugar Factory at Guraru, District Gaya. An order for the
\ncompulsory winding up of the Company was passed on November
\n4,1951, and by a subsequent order dated February 1, 1952,
\none Dhansukh Lal Mehta was appointed liquidator of the
\nCompany. In order to preserve the aforesaid Sugar Mills at
\nGuraru in proper running order and also for the beneficial
\n256
\nwinding up of the Company the liquidator obtained under S.
\nIII (b) of the Indian Companies Act sanction of the Court to
\nlease out the said Mills with all the lands, factory and
\nresidential buildings and machineries etc. The Guraru Cane
\nDevelopment and Cane Marketing Union Ltd., were the former
\nlessees of the said mills but on the expiration of their
\nlease, the liquidator obtained from the Court an order on
\nDecember 3, 1954, sanctioning the lease in favour of Shri
\nKrishna Gyanody sugar Ltd .; the appellant herein, for the
\nperiod December 5,1954 up to and inclusive of November
\n14,1955. The liquidator executed in favour of the appellant
\nlease of the said Mills on December 6, 1954, and handed
\nover possession of the same to the appellant the same day.
\nThe terms and conditions of the lease, in so far as they are
\nmaterial for our purposes provided that the appellant would
\nbe put into possession of the leasehold properties in a
\nproper working order and would work and run the factory
\nwithout any interference or obstruction by or on behalf of
\nthe lessor and would appropriate the entire income and
\nprofit thereof and the lessor would have no concern with
\nprofit or loss made by the lessee in running the said
\nfactory and would not be entitled to any sum or amount over
\nand above the rent therein reserved. The appellant was not
\nto be in any way liable or responsible for any of the liabi-
\nlities of the Company or of the liquidator or of the out-
\ngoing lessees incurred whether before or after the appellant
\nentered into possession except those mentioned therein. The
\nappellant was at its own cost entitled always to install
\n‘any additional or other machinery or machineries and erect
\ngod owns or structures for the Purposes of and in connection
\nwith the running of the said Mills after intimation to the
\nlessor. The appellant was not bound to engage any or all of
\nthe employees of the lessor or of the” Outgoing lessees or
\nany of the persons who had been working from before except
\nthe 18 employees who were mentioned in Cl. 11 of the lease
\nand the appellant also agreed not to retrench any staff
\nalready employed at that date in the Factory at Guraru (vide
\ncl. 13(v),of the lease). The
\n257
\nproperties demised by the said lease were deemed to be in
\nthe control of the Patna High Court and any dispute between
\nthe lessor and the appellant in respect of the said lease
\nwas to be placed before the said Court for decision and the
\ndecision made by the said Court was to be binding on all the
\nparties.
\nIt appears that on December 2, 1954, i.e., 4 (lays before,
\nthe execution of the said lease and delivery of possession
\nof the said Mills by the liquidator to the appellant, the;
\nGovernment of Bihar issued a notification referring certain
\ndisputes between the Managements of the, Sugar factories
\nspecified in Appendix I thereto and their workmen
\nrepresented by the Unions specified in Appendix It for
\nadjudication to an Industrial Tribunal of which Shri Ali
\nHassan, the respondent No. 1 herein, was to be tile sole
\nmember.
\nThe terms of the reference stated :-
\n” Whereas the State Government is of opinion that ail
\nIndustrial dispute exists or is apprehended between the
\nManagement of the Sugar factories as specified in Appendix I
\nand their workmen represented by the Unions as specified in
\nAppendix 11 regarding the matters specified in Annexure A ;
\nNow, therefore, in exercise of the powers conferred by
\nsection 7 read with sub-section (1) of section 10 of the
\nIndustrial Disputes Act, 1947 (XIV of 1947) and in
\nsupersession of Notification No. III\/-DI-14020\/54L15146
\ndated the 1st October, 1954, the Governor of Bihar is
\npleased to constitute an Industrial Tribunal of which Mr.
\nAli Hussan shall be the sole member and to refer the said
\ndispute to the said Tribunal for adjudication.
\nAnnexure “A”
\n1. Retaining allowance to seasonal employees in Sugar
\nfactories in Bihar.
\n2. Leave and holidays to the employees including seasonal
\nemployees in Sugar factories.
\n3. Whether the deduction made in leave and holidays of the
\nemployees of the Management of the Sugar factories is
\nunjustified and if so what compensation or relief, the
\nworkmen are entitled to
\n33
\n258
\nThere were as many as 28 Sugar factories specified in
\nAppendix I and as many as 38 Labour Unions specified in
\nAppendix 11. The Gaya Sugar Mills Ltd., Guraru was the
\nsecond item in Appendix I and the Chini Mazdoor Sangh Guraru
\nwas mentioned at the third item in Appendix 11.
\nThe respondent No. 1 entered upon the said reference. Even
\nthough Gaya Sugar Mills Ltd., Guraru which was then in
\nliquidation was not specifically described as such in
\nAppendix 1, notice was given to the, liquidator by the
\nrespondent No. 1 for January 11, 1955, which was the date
\nfixed for hearing before him. The said letter however
\nreached the liquidator on January 13, 1955, whereupon by his
\nletter dated January 14, 1955, he informed respondent No.1
\nabout it. Respondent No. 1 however satisfied himself by
\nmerely endorsing on the letter of the liquidator that the
\nhearing had already concluded and nothing further than
\ninquiring of the post office as to the reason of the delay
\nin the delivery of the letter could be done. Respondent
\nNo.1 made his award on February 17, 1955, and it was
\npublished in the Official Gazette on February 23, 1955. The
\nadjudication proceedings which had thus commenced on the
\ndate of the reference viz., December 2, 1954, came to a
\nconclusion on the expiry of 30 days of the publication of
\nthe award viz., on March 25, 1955, under s. 20(3) of the
\nIndustrial Disputes Act, 1947. It appears that an appeal
\nwas taken to the Labour Appellate Tribunal against this
\naward and the appeal was decided on August 31, 1956.
\nEven though the appellant was in possession of the said
\nMills under the terms-of the lease dated December 6, 1954,
\nno notice was given by respondent No. 1 to the appellant and
\nthe appellant therefore could not and did not appear before
\nrespondent No. 1. So far as the appellant was concerned the
\nproceedings before respondent No. 1 were ex parte. Two
\napplications were, however, made on March 23, 1955, under s.
\n33A of the Industrial Disputes Act, one by 15 persons
\nalleging that the appellant had without any reason and
\nwithout any notice discharged them from employ one by one
\nduring the months of January and February
\n259
\n1955 and the other by 5 persons alleging that the appellant
\nhad changed their conditions of service without any reason,
\ncontending that the said discharges and the change in
\nconditions of service had been effected by the appellant
\nduring the pendency of the disputes before the Industrial
\nTribunal aforesaid without the permission of the Industrial
\nTribunal having been obtained under s. 33 of the Act. These
\napplications were numbered as Miscellaneous Cases Nos. 26
\nand 27 of 1955 and the appellant received on April 7, 1955,
\ntwo notices from respondent No. 1, both dated March 25,
\n1955, informing the appellant about the filing of the two
\nmiscellaneous cases and calling upon the appellant to file
\nstatements showing cause by April 19, 1955. The appellant
\naccordingly filed before respondent No. 1 two applications
\nor statements contending inter alia that the application
\nunder s. 33-A of the Industrial Disputes Act, filed by those
\npersons (respondents Nos. 4 to 23 herein) were not maintain.
\nable and were otherwise fit to be rejected. It was asserted
\non behalf of the appellant that the appellant as lessee of
\nthe said Mills had strictly complied with the terms and
\nconditions of the lease and there had been no contravention
\non its part of s. 33 of the Act, in regard to any of the
\nworkmen concerned in the aforesaid two miscellaneous cases.
\nIt was pointed out that none of the persons who had filed
\nthe said applications was comprised in the 18 persons who
\nwere specifically mentioned in Cl. 11 of the lease and who
\nwere specifically exempted from the operation of the said
\nclause nor were they comprised in the category of members of
\nthe staff whom the appellant as lessee, was not entitled to
\nretrench under Cl. 13(v) of the lease, with the result that
\nnone of the said clauses of the lease could be said to have
\nbeen violated by the appellant.
\nOn July 13, 1955, the appellant filed in the High Court of
\nJudicature at Patna a writ application under Arts. 226 and
\n227 of the Constitution being Miscellaneous Judicial Case
\nNo. 392 of 1955 impleading the Chairman, Industrial
\nTribunal, Bihar as respondent No. 1, the State of Bihar as
\nrespondent No. 2, the liquidator as respondent No. 3 and the
\napplicants in
\n260
\nthe said miscellaneous cases Nos. 26 and 27 of 1955 pending
\nbefore the Industrial Tribunal as respondents ‘Nos. 4 to 23
\nfor a writ of certiorari quashing the said Miscellaneous
\nCases Nos. 26 and 27 of 1955, a writ of Mandamus restraining
\nthe respondent No. 1 from proceeding with or otherwise
\ndealing with the said miscellaneous cases costs and further
\nand other reliefs.
\nThe main Contentions urged by the appellant in the said
\npetition were:-
\n(1) that under each one of the points referred for
\nadjudication, considerable burden was sought to be imposed
\non the sugar factories concerned ; that all the properties
\nand effects of the Gay Sugar Mills Ltd., were in the custody
\nof the Court as from the date of the order for Winding up
\nviz., November 14,1951 ; that ,the said notification did not
\npurport to include Gaya Sugar Mills Ltd., in that light and
\ndid not describe the company as having already gone into
\nliquidation ; that no leave of the Court was obtained before
\ncommencing or continuing the proceedings before the Tribunal
\nand in fact the liquidator was neither named as a party nor
\nwas any notice given to him of the commencement of the
\nproceedings and that therefore go far as the Gava Stugar
\nMills Ltd., (In Liquidation) was concerned there was no
\nproceedingly in the eye of the law before respondent No. 1
\nand as such the Miscellaneous Cases Nos. 26 and 27 of 1955
\nof which notices had been sent to the appellant were not
\nmaintainable; and
\n(2) that no notice of the adjudication proceedings arising
\nout of the aforesaid Notification dated December 2, 1954, “-
\nas at any stage given to the appellant who was in possession
\nunder the terms of the lease granted by the Court ; that the
\nappellant being lessee under orders and under terms of the
\nlease approved by the Court was liable for breach of the
\nterms of the lease, if any, and that also to the Court
\nalone; that there was no violation of s. 33 of the
\nIndustrial Disputes Act, if the appellant bona fide acted up
\nto the terms of the lease and being itself no party to any
\nadjudication proceedings-before any Tribunal or before
\nrespondent No. 1 there could be no breach of s. 33 of
\n261
\nthe Act and as such no application under s. 33A.of the, Act
\ncould be maintained against the appellant.
\nNo affidavit in reply was filed by or on behalf of any of
\nthe respondents and the application came up for hearing
\nbefore Ramaswami, C. J. and Raj Kishore Prasad, J. who
\ndelivered the judgment of the Court on September 20, 1956,
\ndismissing the application with costs.
\nAssuming but without, expressing any opinion that the
\nreference made by the State Government under s. 10(1) of
\nthe Industrial -Disputes Act was a legal proceeding within
\nthe meaning of s. 171 of the Indian Companies Act the High
\nCourt held that s. 10(1) of the Industrial , Disputes Act,
\nwas not controlled by s. 171 of the Indian Companies Act and
\ntherefore no leave of the Court was necessary before making
\na reference of the Industrial Disputes under s. 10 (1) of
\nthe Industrial Disputes, Act.. It was also of opinion that
\neven though the reference under s. 10(1) of the Industrial
\nDispute Act was made by the State Government on December 2,
\n1954, and the applicant had taken the lease of the said
\nMills subsequently i. e., on December 6, 1954, the applicant
\nwas an ” employer ” within the meaning of the term used in
\nss. 33 and 33A of the Act, and that it was not necessary for
\nthe application of either of those sections that the
\nemployer who discharges or punishes the workmen or who
\nalters the conditions of service of the workmen should be
\nthe identical employer concerned in the industrial dispute
\nwhich is the subject-matter of adjudication. It was
\nsufficient for invoking the provisions of either of those
\nsections that there is the relationship of employer and
\nemployee at the -time the workman is discharged or punished
\nor at the time his conditions of service are altered to his
\nprejudice. It was further of opinion that even though the
\nliquidator was not made a party to the reference made by the
\nState Government under s. 10(1) of the Industrial Disputes
\nAct, the Gaya Sugar Mills Ltd., Guraru was specifically
\nmentioned as one. of the parties in Appendix I, that the
\nGaya Sugar Mills Ltd., continued to be a legal personality
\nthough an order for winding up had been made and that there
\n262
\nfore the Company was properly made a party to the reference
\nunder S. 10(1) of the Act. The fact that the notice given
\nto the liquidator on January 11, 1955, might have been
\nreceived late by the liquidator did not, in the opinion of
\nthe Court, make any difference to the position inasmuch as
\nthe award of the Industrial Tribunal was made on February
\n17, 1955, i. e., long after the date of the notice and there
\nwas no lack of jurisdiction in the Industrial Tribunal to
\nmake the award valid and binding on the Gaya Sugar Mills
\nLtd., Guraru. The High Court accordingly rejected the
\napplication as stated above.
\nThe applicant applied for leave to appeal to this Court on
\nNovember 9, 1956, but the High Court refused to grant the
\ncertificate on the ground that the proceeding for grant of a
\nwrit of certiorari under Art. 226 is not a civil proceeding
\nwithin the meaning of Art. 133 of the Constitution. The
\napplicant thereupon applied for and obtained from this Court
\non April 1, 1957, special leave to appeal and the appeal has
\nnow come up for hearing and final disposal before us.
\nThe two main contentions which were urged before us by the
\nlearned Counsel for the appellant were:-
\n(1) that the Gaya Sugar Mills Ltd., Guraru had been
\ntaken into liquidation and respondent No. 3 had been
\nappointed the liquidator thereof; that the reference made by
\nthe State Government to the Industrial Tribunal on December
\n2, 1954, involved considerable financial burden on the said
\nMills and- the State Government ought to have obtained the
\nsanction of the Court under s. 171 of the Indian Companies
\nAct before making a reference of the industrial disputes to
\nthe Industrial Tribunal under s. 10(1) of the Industrial
\nDisputes Act, qua the said Mills and that not having been
\ndone, the reference was bad in law and there was no question
\nof the applicability of either s. 33 or s. 33A of the Act,
\nand
\n(2) that on a true construction of ss. 33 and 33A of the
\nAct, the ” employer ” therein mentioned could only be the ”
\nemployer ” concerned in the industrial dispute which was the
\nsubject-matter of reference, that the applicant had taken
\nthe lease of the said:
\n263
\nsugar Mills on December 6, 1954, 4 days after the date of
\nreference made by the State Government under, s. 10(1) of
\nthe Act, and that therefore the applicant was not an ”
\nemployer ” within the meaning of the terms as used in s. 33
\nor s. 33A of the Act, and even if the allegations made by
\nthe applicants in Miscellaneous Cases Nos. 26 and 27 of 1955
\nbefore respondent No. 1 were correct, it was not necessary
\nfor the applicant to have obtained the permission of the
\nIndustrial Tribunal under a. 33 of the Act, and therefore
\nthe said applications under s. 33A of the Act, filed by res-
\npondents 4 to 23 were not maintainable.
\nIt will be appropriate at this stage to set out the relevant
\nsections of the Indian Companies Act and the Industrial
\nDisputes Act, 1947 (as they then stood) which fall to be
\nconsidered by us in this appeal.
\nS. 171 (Indian Companies Act):
\n” Suits stayed on winding up order: When a winding up order
\nhas been made or a provisional liquidator has been appointed
\nno suit or other legal proceeding shall be proceeded with or
\ncommenced against the company except by leave of the Court,
\nand subject to such terms as the Court may impose.”
\nS.10(1) (Industrial Disputes Act, 1947):Reference of
\ndisputes to Boards, Courts or Tribunals:
\nWhere the appropriate Government is of opinion that any
\nindustrial dispute exists or is apprehended, it may at any
\ntime, by order in writing-
\n(a) refer the dispute to a Board for promoting a settlement
\nthereof;
\n(b) refer any matter appearing to be connected with or
\nrelevant to the dispute to a Court for inquiry
\nor
\n(c) refer the. dispute or any matter appearing to be
\nconnected with or relevant to, the dispute to a Tribunal for
\nadjudication:
\nProvided that where the dispute relates to a public utility
\nservice and a notice under section 22 has been given, the
\nappropriate Government shall, unless it considers that the
\nnotice has been frivolously or vexatiously given or that it
\nwould be inexpedient so
\n264
\nto do, make a reference under this subsection not-
\nwithstanding that any other proceedings under this Act in
\nrespect of the dispute may have commenced,”
\nS. 33 (Ibid): Conditions of service etc., to remain
\nunchanged during pendency of proceedings
\nDuring the pendency of any conciliation proceedings or
\nproceedings before a Tribunal in respect of any industrial
\ndispute, no employer shall-
\n(a) alter, to the prejudice of the workmen concerned in
\nsuch dispute, the conditions of service applicable, to them
\nimmediately before the commencement of such proceedings; or
\n(b) discharge or punish, whether by dismissal or otherwise,
\nany workman concerned in such dispute, save with the express
\npermission in writing of the conciliation officer, Board or
\nTribunal, as the case
\nmay be.”
\n33-A (Ibid): Special provisions for adjudication
\nas to whether conditions of service etc., changed during
\npendency of proceedings:
\n” Where an employer contravenes the provisions of section 33
\nduring the pendency of proceedings before a Tribunal, any
\nemployee aggrieved by such contravention, may make a
\ncomplaint in writing, in the prescribed manner to such
\nTribunal and on receipt of such complaint that Tribunal
\nshall adjudicate upon the complaint as if it were a dispute
\nreferred to or pending before it, in accordance with the
\nprovisions of this Act and shall submit its award to the
\nappropriate Government and the provision of this Act shall
\napply accordingly.”
\nAs to (1):-Section 171 of the Indian Companies Act occurs in
\nPart V which relates to the winding up of companies and
\nprescribes that once a winding up order has been made no
\nsuit or other legal proceedings shall be proceeded with or
\ncommenced against the Company except by leave.of the winding
\nup Court and subject to such terms as the Court may impose.
\nThe Court is in custody of all. the properties and assets of
\nthe Company through the liquidator and is in control of the
\nwinding up-proceedings with a view to the proper realization
\nof the assets: and, the equitable,
\n265
\ndistribution thereof amongst the creditors of the Company.
\nNo suit or other legal proceeding can therefore be proceeded
\nwith or, commenced against the’ Company except by leave of
\nthe Court and such leave is a necessary prerequisite of the
\nprosecution of such legal proceeding. In order to decide
\nthe question of the applicability of s. 171 of the Indian
\nCompanies Act it has to be ascertained (a) whether the
\nreference in question is a proceeding against the Company,
\nand, if So (b) whether such reference can be said to be a
\nlegal proceeding within the meaning of s. 171 of the Indian
\nCompanies Act.
\nThere has been unfortunately a considerable confusion of
\nthought in the court below and the facts have not been
\nproperly appreciated. The first question to determine was
\nwho was the party to the reference. It appears to have been
\nassumed that the Gay a Sugar Mills Ltd., was a party to the
\nreference and that the only defect in the order of reference
\nwas that the liquidator was not made a party to the refer-
\nence. This difficulty was sought to be got over by holding
\nthat the Gaya Sugar Mills Ltd., continued to be a legal
\npersonality though an order for winding up had been made,
\nthat the Company had not ceased to exist as a legal. entity,
\nand, therefore, the Company was properly made a party to the
\nreference under s. 10(1) of the Industrial Disputes Act.
\nThis was, however, not the correct position on a true
\ninterpretation of the terms of reference. The reference was
\nbetween the managements of the Sugar factories specified in
\nAppendix I and their workmen represented by the Unions
\nspecified in Appendix 11. Gaya Sugar Mills Ltd., Guraru was
\nmentioned as item 2 in Appendix I but it is quite clear that
\nwhat was intended to be made a party to the reference under
\nthis item was the:-management of the Sugar factory which
\nbelonged to the Company called the Gaya Sugar Mills Ltd.,
\nwhoever. that management may be. The mention of the Company
\nwas to indicate and to point out the particular factory
\nwhose management for the time being was to be one of the
\nparties to the reference and
\n34
\n266
\nit required to be ascertained who was comprised within the ”
\nmanagement ” of the Mills. The State Government could not
\nhave been oblivious of the fact that the Company had gone
\ninto liquidation and a liquidator of the Company had been
\nappointed by the court and was leasing out the factory to
\ndifferent lessees. If the Company itself were a party to
\nthe reference the liquidator ought to have been mentioned
\nthere as such but that apparently was not done for the
\nsimple reason that the factory was being worked by the
\nlessees under the terms of the leases duly sanctioned by the
\ncourt. The liquidator was therefore not in management of
\nthe factory and the only persons who were in management were
\nthe then lessees to whom leases were granted by the
\nliquidator with the sanction of the court. The Industrial
\nTribunal was obviously in error when it gave notice of the
\nproceedings to the liquidator. The liquidator was no more
\nin management of the factory and was therefore not entitled
\nto be served with any notice; the then lessees were in
\nmanagement and they were the only parties to whom notice of
\nthe proceedings should have been given. The liquidator no
\ndoubt wrote to the Industrial Tribunal that he had received
\nthe notice too late for him to attend. This letter of the
\nliquidator was treated with scant courtesy by the Industrial
\nTribunal who merely endorsed at the foot of the letter that
\nthe hearing had already concluded and nothing further than
\nenquiring of the Post Office as to the reason of the delay
\nin the delivery of the letter could be done. The Industrial
\nTribunal proceeded to make its award on February 17, 1955,
\nwithout having before it the management of the factory,
\nviz., the lessees who had obtained the lease of the said
\nMills from the liquidator and for all practical purposes the
\nsaid award was ex parte so far as the lessees who were at
\nthe date of the reference in management of the factory and
\nwere obviously intended to be a party to the reference were
\nconcerned. The appellant came into management of the
\nfactory after the reference and could not at the date of the
\nreference be in contemplation of the State Government as a
\nparty and in- any
\n267
\nevent, no notice whatever was given to the appellant’ of the
\nproceedings before the Tribunal. By no stretch of
\nimagination could it be said that the Company (In
\nLiquidation) was a party to the reference, the said Mills
\nhaving been given on lease to the lessees who worked the
\nMills thereafter not for and on behalf of the Company but on
\ntheir own account, they being responsible for the profit and
\nloss in the working of the Mills. The Company thus not
\nbeing a party to the reference the proceedings which were
\ncommenced on December 2, 1954, before the Tribunal were not
\nproceedings against the Company (In Liquidation). -This
\nbeing the position on a true construction of the terms of
\nthe notification by which the reference was made the
\nquestion whether the reference was a legal proceeding within
\nthe meaning of s. 171 Of the Indian Companies Act does not
\narise for our decision and we prefer not to express any
\nopinion on that part of the question.
\nAs to (2):-The next question to consider is the connotation
\nof the term ” employer ” as used in ss. 33 and 33A of the
\nIndustrial Disputes Act. These sections postulate the
\npendency of a proceeding of an industrial dispute. It
\nrequires two to raise a dispute. An Industrial Dispute is
\nthus defined in s. 2(k) of the Act:,,
\nIndustrial dispute ” means any dispute or difference between
\nemployers and employers, or between employers and workmen,
\nor between workmen and workmen, which is connected with the
\nemployment or non-employment or the terms of employment or
\nwith conditions of labour, of any person.
\nIf this definition is bodily lifted from s. 2 (k) and
\nsubstituted for the expression ” industrial dispute ”
\n,occurring in s. 33 and ss. 33 and 33A of the Act are then
\nread, it will at once become clear that the employer can be
\nno other than the employer with whom the workers had the
\nindustrial dispute and cannot mean merely an employ who
\ndischarges or punishes or who alters the conditions of
\nservice of the workmen concerned. If the interpretation
\nadopted by the High Court was correct it would mean that the
\nIndustrial
\n668
\ndispute which is referred for adjudication to the Industrial
\nTribunal may have arisen between employer A and his workmen
\nbut during the pendency of those proceedings employer B who
\nhad nothing to do with employer A would be prevented from
\ndischarging or punishing the workmen or altering their
\nconditions of service, provided only that the workmen
\nconcerned happened to be interested in the industrial
\ndispute which was pending before the Industrial Tribunal.
\nIf there is no connection at all between the employer A and
\nthe employer B in the illustration given above, one fails to
\nsee how a mere identity of the establishments or the
\nidentity of the workmen could be enough to bring the
\nemployer B within the purview of these sections. The very
\npurpose of the enactment of as. 33 and 33A of the Industrial
\nDisputes Act is, as observed by this Court in the Automobile
\nProducts of India Ltd.
\nv. Bukmaji Bala (1).
\n” to ensure that proceedings in connection with industrial
\ndisputes already pending should be brought to a termination
\nin a peaceful atmosphere and that no employer should during
\nthe pendency of those proceedings take any action of the
\nkind mentioned in the sections which may give rise to fresh
\ndisputes likely to further exacerbate the already strained
\nrelation between the employer and the workmen. To achieve
\nthis object a ban has been imposed upon the ordinary right
\nwhich the employer has under the ordinary law governing a
\ncontract of employment. Section 22 of the 1950 Act and
\nsection 33 of the 1947 Act which impose the ban also provide
\nfor the removal of that ban by the granting of express
\npermission in writing in appropriate cases by the authority
\nmentioned therein.”
\nThe scope of the enquiry under section 33 of the Industrial
\nDisputes Act has also been the subject matter of
\nadjudication by this Court and it was held in Atherton West
\n& Co., Ltd. v. Suti Mill Mazdoor Union (2) that the
\nauthority:
\n” concerned would institute an enquiry and come to the
\nconclusion whether there was a prima facie case
\n(1) [1955] i S.C.R. 1241, 1256.
\n(2) [1953] S.C.R. 780, 787.
\n269
\nmade out for the discharge or dismissal of the workman and
\nthe employer, his agent or manager was not actuated by any
\nimproper motives or did not resort to any unfair practice or
\nvictimisation in the matter of the proposed discharge or
\ndismissal of the workman.”
\nA similar ratio would apply where an employer changes the
\nconditions of service of the workmen concerned. If this be
\nthe criterion for determining whether an employer was
\nentitled to discharge or punish the workmen or alter their
\nconditions of service without the permission in writing of
\nthe authority concerned that employer cannot be any other
\nthan the one who is concerned in the industrial dispute
\nwhich is the subject matter of adjudication. If employer B
\nhas nothing to do at all with employer A who is really the
\nparty concerned in such industrial dispute which is the
\nsubject-matter of adjudication, there will be no question of
\nattributing any improper motives or unfair practice or
\nvictimization to the employer B in regard to the action
\nwhich he proposed to take against the workmen. Whether the
\nemployer B would be entitled to such action or not would
\nhave to be determined in other proceedings which may be
\ntaken in the matter of industrial disputes which may
\nsubsequently arise between himself and his workmen after
\nsuch action was taken. But he would certainly not be bound
\nbefore taking such action to seek the permission in writing
\nof the Industrial Tribunal before which an industrial
\ndispute was pending as between those workmen and another
\nemployer with whom he had no concern. The latter
\ninterpretation is therefore more in consonance with the
\nprinciple underlying the enactment of s. 33 of the
\nIndustrial Disputes Act and it must be held that the
\nemployer contemplated by ss. 33 and 33A of the Industrial
\nDisputes Act must be the identical employer concerned in the
\nindustrial dispute which is the subject-matter of
\nadjudication. In other words, the employer contemplated by
\nss. 33 and 33A of the Industrial Disputes Act must be the
\nemployer with whom the workmen mentioned as aggrieved under
\ns. 33 had a subsisting relationship of employer
\n270
\nand employees at the commencement of the proceedings
\nreferred to in those sections. The identity of the employer
\nat the commencement of the reference with the employer who
\nintends to take proceedings within the ban of s. 33 of the
\nAct must be established and if the latter has no concern
\nwith or relationship with the former ss. 33 and 33A of the
\nAct do not dome into operation at all. Such identity could
\nin the event of change in the employers be established by
\nshowing that the latter employer was merely a nominee or
\nBenamidar of the former or that on the analogy of s.
\n18(3)(c) of the Industrial Disputes Act he came with in the
\ndescription of ” his heirs, successors or assigns in respect
\nof the establishment to which the dispute relates, in which
\nevent the award made by the Indus. trial Tribunal would be
\nbinding on him just as much as on the former employer of the
\nworkmen concerned. These are, however, the only cases in
\nwhich according to the provisions of the Industrial Disputes
\nAct the identity of the employers at the commencement of the
\nproceedings and the intended discharge or punishment or
\nchange in the conditions of service of the workmen concerned
\ncould be established and unless the employer who intended to
\ndischarge or punish or change the conditions of service of
\nthe workmen was in this sense identical with the employer
\nwho was concerned in the industrial dispute which is the
\nsubject-matter of adjudication no question could arise of
\nthe operation of section 33 or section 33A of the Industrial
\nDisputes Act.
\nWhat then was the position of the appellant under the
\nreference in question ? It does not appear from the record
\nas to who was the management of the said Mills on December
\n2, 1954. The lease in favour of the old lessees, Guraru
\nCane Development and Cane Marketing Union Ltd., had
\napparently come to an end by efflux of time, the period of
\nthe lease presumably being up to the end of the crushing
\nseason which would end some time in the month of November,
\n1954. An application had been made by the liquidator to
\ngrant a lease in favour of the appellant and this
\napplication was granted by the Court on December 3, 1954, so
\nthat in any event before December 3, 1954, the appellant
\ncould
\n271
\nnot be said to be in management of ‘the said Mills. As a
\nmatter of fact, the lease was executed in favour of the
\nappellant on December 6, 1954, and the possession of the
\nsaid Mills was also given to the appellant by the liquidator
\non the same day. It could not, therefore, be said that the
\nappellant was comprised within the description of the
\nmanagement of the Gaya Sugar Mills Ltd., at the date when
\nthe reference was made by the State Government. If that was
\nso, a reference Of a previous date, without anything more,
\ncould not comprise the appellant within its scope and that
\nappears to have been the position as understood even by the
\nIndustrial Tribunal which gave no notice to the appellant
\nbut gave notice of the proceedings erroneously as we hold to
\nthe liquidator of the Company. The appellant was not in
\nmanagement of the said Mills and it could not be bound by
\nthe reference because at no stage was any attempt made
\neither to amend the terms of the reference or even to serve
\non the appellant a notice of the proceedings which were to
\ntake place before the Industrial Tribunal. Under the
\nIndustrial Disputes (Central) Rules, 1947, enacted by the
\nCentral Government in exercise of the powers conferred upon
\nit by section 38 of the Industrial Disputes Act, intimation
\nof the place and time of hearing had got to be given to the
\nparties to the reference (Rule 10); and the Industrial
\nTribunal was enjoined to call upon the parties at the first
\nsitting to state their case (Rule 11) the only power given
\nto the Industrial Tribunal to proceed ex parte was when a
\nparty to the proceedings failed to attend or to be
\nrepresented without good cause shown (Rule 19) ; and the
\nrepresentatives of the parties appearing before an
\nIndustrial Tribunal were to have the right of examination,
\ncross-examination and of addressing the Tribunal when
\nevidence had been called (Rule 24) : The ‘whole of this
\nprocedure envisaged the parties to the reference being
\nproperly notified of the proceedings before the Industrial
\nTribunal and taking part therein either by themselves or
\nthrough, their authorised representatives. The fact that no
\nsuch notice was given to the appellant by the Industrial
\nTribunal goes to show that in the circum-
\n272
\nstances that obtained the appellant was certainly not
\nunderstood by the Tribunal as having been a party to the
\nreference and it could not be said on the -terms of the
\nreference itself which was made on December 2, 1954, that
\nthe appellant, which came into existence as the lessees of
\nthe said Mills on December 6, 1954, was a party to the said
\nreference. If the old lessees were in management of the
\nsaid Mills on December 2 1954, there was no identity of
\nemployers as between them and the appellant, the appellant
\ncertainly did not claim under the old lessees nor could it
\nbe described as their ” heirs, successors or assigns ” in
\nrespect of the establishment to which the dispute related
\nwithin the meaning of s. 18(3) (c) of the Industrial
\nDisputes Act, There is no suggestion whatever that the
\nappellant was or is a benamidar of the previous lessees. In
\nno event could the appellant therefore be held to be, bound
\neither by the reference or the award made by the Industrial
\nTribunal, the identity of the employers at the date of the
\nreference with the employers at the time when the acts
\ncomplained of in the applications under s. 33-A of the
\nIndustrial Disputes Act were purported to be done by them
\nnot having been established.
\nIf that is the true position, no question of the appellant
\nobtaining written permission of the Industrial Tribunal
\nunder s. 33 of the Act for discharging or punishing or for
\neffecting a change in the conditions of service of the
\nworkmen concerned could arise. If no such permission were
\nneeded, s. 33A of the Act also could not come into operation
\nand the applications in Miscellaneous Cases Nos. 26 and 27
\nof 1955 we’re not maintainable.
\nThe result is no doubt unfortunate ; because the Industrial
\ndisputes which were referred to the Industrial Tribunal by
\nthe reference in question were general in their nature and
\nwould comprise within their scope the workmen who were
\nworking in the Gaya Sugar Mills Ltd., at all relevant times.
\nThe appellant came in management of the said Mills from and
\nafter December 6, 1954, and it was certainly intended that
\nthese, disputes which had either existed or were apprehended
\nbetween the appellant on the one hand and the workmen
\n273
\nworking in the said Mills on the other should be adjudicated
\nupon under the terms of that reference. If the appellant
\ncould be comprised within the description of the ”
\nmanagement ” of the said Mills at the date of the reference,
\nviz., December 2, 1954, the object and the purpose of the
\nreference qua the workmen of the said Mills would be
\naccomplished. The difficulty, however, is that the several
\nmanagements which would come into existence on successive
\nleases being granted by the Court in the present case cannot
\nbe said to have been comprised within the term “managements
\nof the Sugar factories specified in Appendix I” even though
\nthe Gaya Sugar Mills Ltd., Guraru is mentioned as item 2
\ntherein. Such a construction would make the several
\nsuccessive lessees who came into existence during the whole
\nof the period when the reference was pending -before the
\nIndustrial Tribunal parties to the reference involving fresh
\nnotices to be issued, fresh statements of case to be
\nfurnished, fresh hearing to be granted, to each of the
\nsuccessive lessees under the Industrial Disputes (Central)
\nRules, 1947, a result which certainly could not have been
\ncontemplated by the State Government when the reference was
\nmade.
\nIt, therefore, follows that the appellant was not by any
\ncount a party to the reference dated December 2, 1954, and
\nnot being such a party was not an “employer” within the
\nmeaning of ss. 33 and 33-A of the Industrial Disputes Act
\nqua the workmen who filed the applications in Miscellaneous
\nCases Nos. 26 and 27 of 1955. If the workmen felt that they
\nhave been victimised or that there had been an unfair labour
\npractice, they could perhaps raise fresh industrial disputes
\nand press the State Government to make a fresh reference of
\ntheir industrial disputes under s. 10(1) of the Act, as to
\nwhich we say nothing, but it is quite clear to us that the
\nworkmen cannot in the circumstances of this case raise an
\nindustrial dispute indirectly by having recourse to an
\napplication under s. 33-A of the Act. In the premises if
\nthe appellant was not bound, as we hold it was not, to ask
\nfor the written permission of the
\n35
\n274
\nIndustrial Tribunal before discharging, punishing or
\neffecting a change in the conditions of service of the
\nworkmen concerned no application under s. 33-A of the Act
\ncould be maintained against it even on the assumption that
\nthe allegations made in the said applications were correct.
\nThe result, therefore, is that the proceedings in Mis-
\ncellaneous Cases Nos. 26 and 27 of 1955 before the res-
\npondent No. 1, Industrial Tribunal, Bihar, Patna are without
\njurisdiction and liable to be quashed. The appeal of the
\nappellant will therefore be allowed, the order made by the
\nHigh Court on September 20, 1956, will be set aside and a
\nwrit of certiorari will issue against respondent No. 1
\nquashing the proceedings in the said Miscellaneous Cases
\nNos. 26 and 27 of 1955. The appellant will be entitled to
\nits costs throughout against the contesting respondents.
\nAppeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
PETITIONER: S. K. G. SUGAR LTD. Vs. RESPONDENT: SRI ALI HASSAN, CHAIRMAN, INDUSTRIAL TRIBUNAL, BIHAR & OTHERS DATE OF JUDGMENT: 04\/11\/1958 BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. DAS, SUDHI RANJAN (CJ) SINHA, BHUVNESHWAR P. SUBBARAO, K. WANCHOO, K.N. CITATION: 1959 AIR 230 1959 SCR Supl. (1) 254 ACT: Industrial Dispute-Discharge by employer of … Read more<\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"fifu_image_url":"","fifu_image_alt":""},"categories":[4928],"tags":[],"amp_enabled":true,"_links":{"self":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts\/29759"}],"collection":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/comments?post=29759"}],"version-history":[{"count":3,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts\/29759\/revisions"}],"predecessor-version":[{"id":138122,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts\/29759\/revisions\/138122"}],"wp:attachment":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/media?parent=29759"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/categories?post=29759"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/tags?post=29759"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}