SURYAPRAKASH WEAVING FACTORY Vs. INDUSTRIAL COURT

JUDGEMENT

(1.) THIS appeal arises out of an petition filed for an order under Section 45, Specific-Relief Act, requiring the Industrial Court of Bombay to forbear from arbitrating upon certain industrial disputes. Tendolkar J. before whom the petition came in the first instance held that the petition must fail on certains preliminary grounds. An appeal was preferred from that decision and the Court of appeal held that it was competent to the Court to issue and order under Section 45 if it was found that the reference made to the Industrial Court was not a proper reference. Therefore the petition again went back to Tondolkar J. to consider it on merits who finally dismissed it. It is from that order of dismissal that this appeal is preferred.

(2.) THE one short point that has been urged by Mr. Amin on behalf of the petitioners is that Government wore not competent to refer the dispute between the petitioners and their employees to the Industrial Court as they purported to do. It is urged by Mr. Amin that Government cannot exercise its powers under. Section 73, to refer a dispute to the Industrial Court unless proceedings have been taken under Section 42 (2), Bombay Industrial Relations Act, 1946. The Act, as the preamble states, is put on the statute book for the regulation of the relations of employers and employees in certain matters, to consolidate and amend the law relating to the settlement of industrial disputes and to provide for certain other purposes. Section 42 (2) requires an employee desiring a change in respect of an industrial matter which is not specified in Schedule I or III to give a notice in the prescribed form to the employer through the representative of the employees who shall forward a copy of the notice to the Chief Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. "industrial matter" is defined, and that means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment and includes-- (a) all matters pertaining to the relationship between employees and employers, or to the dismissal or non-employment of any person; (b) all matters pertaining to the demarcation of functions of any employees or class of employees. Then there are two other Sub-clauses : (c) All matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under this Act; (d) all questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole. "industrial dispute" is defined, and it means any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any industrial matter. In this case the dispute between the employer and employee was in relation to a matter which was covered by item 9 of Schedule II and that is "wages including the period and mode of payment. " Therefore it is perfectly true that if an employee desired a change in respect of his wages, he would have to give a notice under Section 42 (2 ). The effect of giving the notice would be to commence conciliation proceedings which are provided for under the Act, because Section 42 (2) itself provides that the notice submitted by the employee has to be forwarded to the Conciliator. The Act then provides for conciliation proceedings, and if the conciliation proceedings end in a settlement, that settlement has to be registered in the manner provided under Section 68. Chapter 11 provides for arbitration and under Section 66, an employer and an employee may agree to submit their differences to a named arbitrator. They may also agree to submit the arbitration to a Labour Court or the Industrial Court. Then we come to Section 73 which provides :

(3.) IT is necessary in the public interest to do so. " in this case this appeal has been argued on the basis that no proper notice was given of a change under Section 42 (2 ). As a matter of fact, a notice was given, but the contention of the petitioners was that the notice was not given, by a representative of the employees as required by Section 42 (2 ). The learned Judge did not decide that question as in his opinion Government had the power under Section 73 to refer an industrial dispute to the Industrial Court without a notice of change being given under Section 42 (2 ). 3. Mr. Amin's contention is that there can be no industrial dispute under the Bombay Industrial Relations Act, 1946, till a notice of change has been given as required by Section 42 (2 ). In other words, what he contends is that the power of Government to refer a dispute to the Industrial Court under Section 73 only arises after a notice of change has been given under Section 42 (2 ). Till such a notice is given, there is no industrial dispute at all and therefore nothing can be referred to an Industrial Court. This contention is made in the teeth of the definition of "industrial dispute" given in the Act to which we have already referred. As far as the definition is concerned, there is nothing in it to suggest that an industrial dispute only arises after a notice of change is given under Section 42 (2 ). All that "industrial dispute" means is any dispute or difference between an employer or an employee which is connected with any industrial matter, and it is not suggested in this case that the present dispute is not connected with an industrial matter. According to Mr. Amin, an industrial dispute starts as soon as a notice of change has been given, and till that happens neither the provisions with regard to arbitration nor the right of the Government to refer a matter to the Industrial Court can become operative. It is clear from the scheme of Section 42 (2), that a notice of change has to be given in order that conciliation proceedings should follow upon such a notice of change being given. It may be that an employer and an employee may take the view that conciliation proceedings would be fruitless and they may desire to go to arbitration under Section 66 without resorting to the conciliation machinery provided by the Act. But according to Mr. Amin, it would not be open to the employer and employee to do so. Before even they could go to arbitration they must first give a notice under Section 42 (2); then only can they refer a dispute under Section 66 to arbitration. Equally, according to Mr. Amin, as we have pointed out before, the power of Government under Section 73, would only arise after a notice has been given under Section 42 (2 ). There-fore, even if Government are satisfied that a serious situation has arisen in industry which requires immediate action and which requires immediate settlement, Government would be helpless unless the employee gives a notice under Section 42 (2 ). 'therefore the whole machinery of the Bombay Industrial Relations Act would come to a standstill if for any reason, however wrong that reason may be, an employee does not choose to give a notice of change under Section 42 (2 ). Mr. Amin's answer is that if without giving a notice he goes on strike, the strike would be illegal under Section 97 of the Act. But Government are interested in promoting the welfare of industry and maintaining cordial relations between the employee and the employer and no useful purpose can be served merely by having an illegal strike on their hands and being in a position to prosecute the employees who have gone on strike. But before an illegal strike is declared, a situation may arise of such gravity that Government may require to have the matter settled by the Industrial Court by referring to it the dispute under Section 73. According to Mr. Amin, the learned counsel for the petitioners, the Government must sit with folded hands, wait till the employee has given a notice under Section 42 (2), before it can resort to its power given to it under Section 73.