GAMBHIRJI ODHARAJ Vs. BIND BASNI PRASAD

JUDGEMENT

(1.) This petition raises a rather important question as to the construction of Section 115A, Bombay Industrial Relations Act, 1946. The Sidhpur Mills, respondents No. 3 before us, closed some of their departments on 10-12-1950, and continued the closure till 28-2-1951, and in these three months they played off some of their employees. Playing off is a technical term in industry & we understand that what it means is that due to the closure of certain departments some of the employees are asked to work for less hours than they were working before the closure and these employees are paid on the basis of the less work done by them On 24-3-1951, 98 employees of the Sidhpur Mills approached the mills in respect of their compensation for being played off under the proviso to Section 42(4), and on 15-5-1951 they applied to the Labour Court in respect of this compensation. This application was No. 450 of 1951. On 25-5-1951, the Mazdoor Mahajan Sangh also applied to the Labour Court in respect of compensation to the employees of the Sidhpur Mills who had been played off for the period December 1950 and January and February 1951, and this application of the Sangh was No. 505 of 1951. On 28-8-1951, a compromise was arrived at between the Sangh and the Sidhpur Mills. It may be mentioned that the Sangh is a registered union under the Industrial Relations Act and is also a representative union. The Labour Court passed an order under Section 115A in terms of this compromise. The employees who had made their application on 24-3-1951, and who were not members of the Sangh required the Labour Court to adjudicate upon their application and the Labour Court took the view that in view of the compromise arrived at that application was no longer maintainable and dismissed it. An appeal was taken to the Industrial Court and the Industrial Court confirmed that decision. There was a further appeal to the Labour Appellate Tribunal which also took the same view, and now one of these 98 employees has come before us alleging that the Labour Court has failed to exercise the jurisdiction vested in it by law and that it was incumbent upon the Labour Court to hear the application No. 450 of 1951 and pronounce its decision thereon.

(2.) The question therefore that We have to consider and decide is whether by reason of the compromise arrived at between the representative union and the employer, the Sidhpur Mills Co. Ltd., it was not competent for the individual employees of the Sidhpur Mills to proceed with an application which they have made under Section 42(4); in other words, whether a compromise arrived at in an application made by the representative union under Section 42(4) was binding upon the employees who had made an independent application to the Labour Court under the same section. It is pertinent to note that the compromise relied upon by the employer is a compromise which was arrived at in application No. 505 of 1951 and no compromise was arrived at in application No. 450 of 1951. Application No. 450 of 1951 was never heard and never decided. The view taken by the Labour Court was that merely by reason of the compromise arrived at in application No. 505 of 1951, inasmuch as that compromise was between a representative union and the employer, the employees lost their right to get a decision in their own application which they had properly made under Section 42(4). Now, as we said before, both the applications No. 450 of 1951 and No. 505 of 1951 were made under Section 42(4), and turning to that section, it confers a right both upon an employee and a representative union desiring a change in respect of any order passed by the employer under standing orders, or any industrial matter arising out of the application or interpretation of standing orders, or an industrial matter specified in Schedule III, to make an application to the Labour Court. Now, before such an application can be made, the employee or a representative union has to approach in the prescribed manner the employer with a request for the change- and also provided no agreement has been arrived at in respect of the change within the prescribed period. The industrial dispute with which we are concerned admittedly relates to standing orders and the matters-specified in Schedule HI.

(3.) Now, it is important to look at Sub-section (2) of Section 42 and to see the different scheme envisaged by the Legislature in enacting Section 42(2) and in enacting Section 42(4). Section 42(2) deals with industrial matters not specified in Schedule I or III and in respect of those industrial matters where an employee desires a change, no right has been, given to him to approach the employer. He can only do so through the representative of the employees. There is reason behind the different scheme-embodied in Section 42(2) and Section 42(4). Schedule II deals with matters which are of general interest to-the industry and therefore it is quite possible that the view was taken that with regard to such matters both the approach to the employer and to the Labour Court should be by a representative union and not by individual employees concerned. But Section 42 (4) deals with matters contained in Schedules I and III and many of these matters are of particular interest to the employee himself, and it may well be that in a particular case the representative union may not be sufficiently interested to ventilate the grievances of an individual employee, and therefore the Legislature has expressly conferred a right upon the employee who has a grievance with regard to any of the matters contained in Schedule I or III. In this particular case the 98 employees, after complying with the necessary provision with regard to the giving of notice to the employer, approached the Labour Court in order to ventilate their individual grievances. The representative union, the Sangh, also thought the matter of sufficient importance generally to labour to take up the same grievance and make an application with regard to it. Therefore here we have a case where both the individual employee and the representative union have made concurrent applications to the Labour Court under Section 42(4). Then an agreement is arrived at between the employer and the representative union and the Labour Court had no alternative except to record that agreement and make it a part of its own decision,