Social Justice and Labour Jurisprudence: Justice V.R. Krishna Iyer's Contributions

Social Justice andLabour Jurisprudence

Social Justice andLabour Jurisprudence

Justice V.R. Krishna Iyers Contributions

I. Sharath Babu and Rashmi Shetty

Copyright National Law School of India University, 2007

All rights reserved. No part of this book may be reproduced or utilised in any form or by anymeans, electronic or mechanical, including photocopying, recording or by any informationstorage or retrieval system, without permission in writing from the publisher.

First published in 2007 by

Sage Publications India Pvt LtdB1/I1, Mohan Cooperative Industrial AreaMathura RoadNew Delhi 110 044www.sagepub.in

Sage Publications Inc2455 Teller RoadThousand Oaks, California 91320

Sage Publications Ltd1 Olivers Yard, 55 City RoadLondon EC1Y 1SP

Sage Publications Asia-Pacific Pte Ltd33 Pekin Street#02-01 Far East SquareSingapore 048763

Published by Vivek Mehra for Sage Publications India Pvt Ltd, typeset in 10/12 Agaramondby Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises,New Delhi.

Library of Congress Cataloging-in-Publication Data

Sharath Babu, I., 1960Social justice and labour jurisprudence: Justice V.R. Krishna Iyers contributions/I.

Sharath Babu and Rashmi Shetty.p. cm.

1. Labour laws and legislationIndia. 2. Krishna Iyer, V.R., 1915 3. JudicialpowerIndia. 4. JudgesIndia. 5. Labour courtsIndia. I. Shetty, Rashmi.II. Title.KNS1220.S53 344.5401dc22 2007 2007001007

ISBN: 978-0-7619-3523-0 (HB) 978-81-7829-678-4 (India-HB)

Commissioning Editor: Leela KirloskarSage Production Team: Gayatri E. Koshy and Rajib Chatterjee

Contents

List of Cases 8

Foreword by Justice V.R. Krishna Iyer 36

Preface 39

1 Introduction 43

Labour IssuesAttitude of the Judiciary of Late 45

2 Industrial Jurisprudence 50

Introduction 50 Purpose of the Industrial Disputes Act, 1947 52 The Constitution and Labour Philosophy 53 Interpretation of Labour Statutes: The Constitutional Values 55 The Binding Nature of Decisions of the Superior Courts 57 The Role of English Law as Precedent 58 Powers of the High Courts under Article 226 of the Constitution 58

3 Threshold Part Issues under the Industrial Disputes Act, 1947 60

The Definition of Industry 60 The Definition of Workman 132 The Definition of Industrial Dispute 135 The Definition of Award and its Scope 138 The Meaning and Scope of Undertaking under the 141

Industrial Disputes Act, 1947

4 Collective Bargaining Agreement Issues 151

The Far-reaching Impact of Nullifying Settlements 152 Wages for Strike Period 158 The Legality of Strikes 160 The Scope and Coverage of Settlements under the 171

Industrial Disputes Act, 1947 The Force of a Settlement under the Industrial Disputes Act, 1947, 178

as against the Provisions of the General Statute: The Rule Termination of Settlements: The Legality 231

5 Maharashtra (Recognition of Trade Unions and Prevention of 240Unfair Labour Practices) Act, 1972

The Recognition of Trade Unions: Procedural Requirements 240

6 The Governments Power of Reference of Industrial Disputes 244

When is the Second Reference Valid? 244

6 Social Justice and Labour Jurisprudence

The Nature of Power Conferred on the Appropriate 250Government under Section 10(1) of the Act

The Scope of the Power of Reference under Section 10(1) 254 The Precise Scope of Section 10(3) 260

7 Industrial Adjudication: The Concept 263

The Concept of Tribunal 263 Interference with the Tribunals Award 263 Powers of the Labour Court to Give Appropriate Relief to a 265

Dismissed Workman under Schedule II, Item I of the Act Powers of the Labour Court to Give Appropriate Relief to 271

Laid-off Workmen where Chapters VA and VB of the IndustrialDisputes Act, 1947, Have No Application

The Power of Tribunals to Scrutinise the Employers Action under 277Section 33(2)

The Discharge of a Workman during the Pendency of the Proceedings 283and the Powers of the Labour Court to Provide Appropriate Relief

Findings of the Labour Court with Respect to Relief for a 284Dismissed Workman

The Rigidity of the Tribunals in Extending Equal Benefits to the 290Same Class of Workmen: Validity

The Findings of the Labour Court: Validity 291 Awarding Benefits to Workmen who are not Parties 292

to the Settlement: Validity The Role of the Supreme Court in Interfering with Respect to an 294

Appeal against the Award Illegal Termination: The Remedy 301

8 Voluntary Arbitration as a Mechanism for Dispute Settlement 307

When Can an Arbitration Award be Set Aside? 307 Arbitrators Ruling over the Justifiability of Mass Termination by the 317

Employer on Account of Illegal Strike: Interference when Justified

9 Industrial Employment (Standing Orders) Act, 1946 361

Service Conditions: The Scope of the Standing Orders Act 361 Modification of Standing Orders: The Views of the Supreme Court 369

10 Change of Service Conditions: Restrictions on the Freedom of the Employer 372

Notice of Change Exclusively under Section 9A 372 Pendency of Proceedings before the Conciliation Officer: 378

Duties under Section 33(1)(a) Termination during Pendency of Proceedings: Validity 379 The Role of the Labour Court or Tribunal in Adjudicating Matters 384

under Sections 33(2) and 33(3) Application for Approval of an Act of Dismissal for Misconduct: 388

The Scope for Interference Action Amounting to Change of Conditions of Service during 402

Pendency of the Proceedings: The Amount of Relief

Contents 7

11 Disciplinary Proceedings 409

Reopening of Disciplinary Proceedings: The Rule 410 Cases where the Act of Misconduct is Not So Serious: The Relief 411 Termination on Grounds of Loss of Confidence: Discharge Simpliciter 412

or Discharge for Misconduct Mass Termination without Enquiry: The Approach 418

12 Lay-off and Retrenchment 458

The Law Relating to Retrenchment 458 Closure and Retrenchment: The Distinction 464 The Definition of Retrenchment under Section 2(oo) 468 The Definition of Retrenchment under the Payment of 472

Gratuity Act, 1972: Interpretation The Scope of Retrenchment that Includes All Kinds of Termination 476 The Procedure for Retrenchment: The Approach 480

13 Labour Employed through Middlementheir Rights 486

The Entitlement of Contract Labour to be Absorbed 486as Regular Employees

14 Wages and Monetary Benefits 490

Payment of Tips to Hotel Staff: Whether a Part of the Dearness Allowance 490 Running Allowance: Whether Wages 491 Grant of Additional Dearness Allowances: Principles for Consideration 497 Interpretation of an Industrial Truce Agreement Relating to 500

Wage Structure: The Approach Computation of Dearness Allowance: Validity 503 Adjusting Payment of Customary Bonus under the Statute: 506

The Guiding Principles Effects of Agreements which are Inconsistent with the Payment of 520

Bonus Act, 1965: The Interpretation Constitutional Validity of Section 10 of the Payment of Bonus Act, 1965 529 Applicability of the Payment of Bonus Act, 1965: The Scope of 530

Section 32(5)(c) Veracity of the Balance Sheet: Powers of the Tribunal 531

15 Social Security and Welfare 536

Employees State Insurance Act, 1948: Applicability 536 Computation of Maternity Benefit under the Maternity Benefit Act, 1961 541 The Employees Provident Fund and Miscellaneous Provisions Act, 1952: 547

Interpretation of Section 14B The Payment of Gratuity Act, 1972: Applicability 561 Principles to be Followed in Framing a Scheme of Gratuity 565

by the Industrial Tribunal under Schedule 3, Item 5 of the IndustrialDisputes Act, 1947

About the Authors 574

List of Cases

Sl. No. Name of the Case Citation Page Number in Book

1. A.K. Kraipak vs U.O.I (1970) 1 SCR 457: AIR 1970 SC 150 156, 157

2. A.K. Roy vs U.O.I (1982) 1 SCC 271: (1982) SCC (cri) 152 126

3. A.M. Allison vs B.L. Sen 1957 SCR 359: AIR 1957 SC 227 294

4. Aeltemesh Rein vs U.O.I (1988) 4 SCC 54: 1988 SCC (cri) 900 118, 126

5. Ahmedabad Mill Owners Association vs (1965) (11) FLR 337: (195067) 507The Textile Labour Association 1. SCLJ 253: (1966) 1. S.C.R. 382

6. Air India Corporation, Bombay vs V.A. Rebello (1972) 3 SCR 605: AIR 1972 SC 1343 282

7. Air India Statutory Corporation vs United Labour Unon. (1997) 9 SCC 377 48

8. Alembic Chemical Works Co. Ltd. vs Workmen AIR 1961 SC 647 370

9. Alien vs Flood 1898 A.C. 1 166, 313

10. Allen vs Flood (1898) AC 1 445

11. Alloy Steel Project vs The Workmen 1971 (22) FLR 181: 1971 (3) SCR 529 533

(List of Cases continued )



12. M/s. Ameteep Machine Tools vs Labour Court AIR 1980 SC 2135 29192

13. Anandji Haridas and Co. Pvt. Ltd. vs Engineering 1975 (30) F.L.R. 133 229Mazdoor Sangh (1975) 3 S.C.R. 542

14. Assam Oil Co. vs Its Workmen (1960) 3 SCR 457: AIR 1960 SC 1264 334, 338, 433, 445

15. Associated Cement Co. Ltd. vs P.D. Vyas AIR 1960 SC 665 366

16. Associated Cement Companies Ltd. AIR 1972 SC 1552 296

17. Avinder Singh vs State of Punjab (1979) 1 SCC 137 551

18. M/s. Avon Services Production Agencies (P) Ltd. AIR 1979 SC 170 47, 141, 14245, 25054vs Industrial Tribunal

19. B. Shah vs Presiding Officer AIR 1978 SC 12 57, 54247

20. B.S. Vadera vs U.O.I 1968 2 S.C.R 575 217

21. Babu Manmohan Das Shah vs Bishun Das 1967 1 S.C.R. 856 227

22. Babu Ram C.A. No. 107 of 1966 decided on 165, 212, 313Nov. 27, 1968 (S.C)

23. Bangalore Water Supply and Sewerage Board vs A. Rajappa (1978) 2 SCC 213: 47, 48, 49, 61116, 185, 198AIR 1978 SC 548 217, 218, 238, 467

24. Bar Council of Maharashtra vs M.V. Dabholkar (1976) 1 SCR 306 508




25. Baroda Borough Municipality 1957 SCR 33, AIR 1957 SC 110 76

26. Barraclough vs Brown and Others 1897 A.C. 615 169, 316

27. Barsi Light Railways Co. Ltd. vs K.N. Joglekar AIR 1957 SC 121: (1957) 1 LLJ 243; 474, 563(195657) 11 FJR 317

28. Basti Sugar Mills Co. Ltd. vs State of U.P. and Another AIR 1979 SC 262 52029

29. Bata Shoe Co. (P) Ltd. vs D.N. Ganguly 1961 (2) F.L.R. 183 176, 349, 446, 447

30. Beetham vs Trinidad Cement Ltd. (1960) 1 AII ER 274 136

31. Bengal Bhatdee Coal Co. vs Ram Prabesh Singh. (1964) 1 SCR 709: AIR 1964 SC 486 288

32. Bengal Chemical and Pharmaceutical Works Ltd, Calcutta (1959) Suppl. 2 S.C.R. 136 296, 570AIR 1959 SC 633

33. Bengal Chemical and Pharmaceutical (1969) 2 SCR 113: AIR 1969 SC 360 498, 505Works Ltd. vs Its Workmen

34. Bharat Bank Ltd. vs Employees of Bharat Bank Ltd. AIR 1950 SC 188 399

35. Bharat Barrel and Drum Manufacturing Co. AIR 1967 SC 361 165, 311

36. Bharat Heavy Electricals Ltd. vs State of U.P. and Others (2003) 6 SCC 528 488

37. Bharat Sugar Mills Ltd. vs Shri Jai Singh (1976) 1 SCR 361: AIR 1975 SC 1441 391, 392, 393

38. Bhiwani Textile Mills vs Their Workmen (1969) 2 LLJ 739 SC 375




39. Bihar State Road Transport Corporation Case (1970) 3 SCR 708 268, 415

40. Binny Ltd vs Their Workmen AIR 1972 SC 1975 253

41. Bolton Corporation 1943 AC 166 71

42. Bombay Gas Co. Ltd. vs Jagannath Pandurang (1975) II LLJ 345 (SC) 519

43. Bombay Panjarapole (1972) 1 SCR 202: AIR 1971 SC 2422 98, 107

44. British India Corporation (1965) 10 Fac LR 244 (SC) 570

45. British Paints AIR 1966 SC 732 570

46. Buckingham and Carnatic Co. Ltd. vs Workers of the Company 1952 LAC 490 268, 330, 414, 430

47. Buckingham and Carnatic Co. vs Venkatiah AIR 1964 SC 1272 404

48. Budge Budge Municipality. 1953 SCR 302: AIR 1953 SC 58 112

49. Bungo Steel Furniture AIR 1967 SC 378: (1967) 1 SCR 633 165, 311, 343, 441

50. Burn and Co. Ltd. vs Their Workmen AIR 1959 SC 259 349, 446

51. C. Sankaranarayanam vs State of Kerala AIR 1971 SC 1997 212

52. C.S.T. vs Radhakrishan (1979) 2 SCC 249 551

53. Calcutta Insurance Co. Ltd. AIR 1967 SC 1286 570

54. Cape Brandy Sydicat vs IRC (1921) 2 KB 403: 90 LJKB 461 (CA) 125




55. Central Bank of India Ltd. New Delhi vs AIR 1969 SC 983 288Shri Prakash Chand Jain

56. Central Board of Dawoodi Bohra community vs (2005) 2 SCC 673: 2005 SCC 125State of Maharashtra (L and S) 246 2005 SCC (cri) 546

57. Central Press (1977) 3 SCR 35: (1977) LIC 884 541AIR 1977 SC 1351

58. Champsey Bhara and Co. 50. I.A. 324 165, 311

59. Chanan Singh vs Registrar, Co-op. Societies, AIR 1976 SC 1821 41011Punjab and Others

60. Chartered Accountants (Rabindranath Sen) vs (1963) 1 Lab.LJ 567 (cal) 107First Industrial Tribunal, West Bengal

61. Chief Conservator of Forests vs Jaganath Maruthi Kondhare (1996) 2 SCC 293: 1171996 SCC (L and S) 500

62. Chief Conservator of Forests vs Jagannath Maruti Kondhare (1996) 2 SCC 293 46

63. Chinta Lingam vs G.O.I. (1971) 2 SCR 871 558

64. Coir Board vs Indira Devai P.S. (1998) 3 SCC 259 49, 124, 128

65. Commissioner of Coal Mines Provident Fund Dhanbad vs J.P. Lalla (1976) 3 SCR 365 558

66. Conway vs Wade. 1909 AC 506 78




67. Cooper Engineering Ltd. vs P.P. Mundha 1976 1 SCR 361: 1975 LIC 1441 389, 391, 396, 397, 398, 399, 401, 408

68. Cooper vs Wilson (1937) 2 KB 309 399

69. Corporation of the City of Nagpur vs Its Employees AIR 1960 SC 675 74, 75, 76, 77, 78, 80, 81, 83, 93, 107,109, 110, 120,

70. M/s. Cox and Kings (Agents) Ltd. vs Their workmen and others AIR 1977 SC 1966 13841, 24449

71. Cricket Club of India AIR 1969 SC 276 101, 103, 105, 107

72. Crompton Greaves vs The Workmen AIR 1978 SC 1489 15960, 348, 445

73. D.C. Roy vs Presiding Officer, M.P. Industrial Court Indore (1976) 3 SCR 801: AIR 1976 SC 1760. 354, 451, 452

74. D.N. Banerji vs P.R. Mukherjee 1953 SCR 302: 61, 64, 65, 66, 68, 69, 72, 73, 74, 75,76, 107, 108, 110, 112,118, 119

AIR 1953 SC 58 61, 64, 65, 66, 68, 69, 72, 73, 74, 75,76, 107, 108, 110, 118, 119, 198

75. D.P. Maheshwari vs Delhi Administration 1983 (47) FLR 477: 1451983 (2) LLJ 424

76. Dabholkar AIR 1976 SC 242 88

77. M/s. Dalmia Dadri Cement Ltd. vs Its Workmen 1970 LIC 350 (Punj) 400

78. Dawkins vs Rokeby (1873) 8 QB 255 339, 436




79. Delhi Administration, Delhi vs Workmen of Edward AIR 1978 SC 976 26062Keventers and Another

80. Delhi Cloth and General Mills Co. vs Ludh Budh Singh 1972 LIC 573 395, 397, 398, 399, 401

81. Delhi Cloth and General Mills Co. vs Workmen AIR 1970 SC 919 569

82. Delhi Cloth and General Mills Ltd. vs Shambu Nath Mukerjee (1976) 1 SCR 591: AIR 1978 SC 8. 480

83. Delhi Transport Undertaking vs Goel (1970) 2 LLJ 20: (1970) 11 LLJ 20 269, 270, 416

84. Devendra Pratap Narain Raj Sharma vs State of U.P. 1962 Supp (1) SCR 315: 495AIR 1962 SC 1334

85. Dhanrajgirji Hospital vs Workmen AIR 1975 SC 2032 99, 107, 109, 120

86. Dhingras Case 1958 SCR 828: AIR 1958 SC 36 329, 332, 429, 432

87. Dilbagh Rai Jerry vs Union of India AIR 1974 SC 130 49197

88. Divisional Supt. Northern Rly. vs Pushkar Dutt Sharma (1967) 14 Fac LR 204 495

89. Doe vs Bridges (1831) 1 B and AD 847 (2) 859 169, 3169 LJ 03 KB 113: 199 ER 1001

90. Eastern Electric and Trading Co. vs Baldev Lal 1975 LIC 1435: AIR 1975 SC 1892 288

91. Employers in Relation to Digwadih Colliery vs AIR 1966 SC 75 479Their Workmen




92. Engineering Mazdoor Sabha vs Hind Cycles Ltd. (1962) 2 LLJ 760 SC 163, 229, 234, 310, 337(1963) Supp. I.S.C.R. 625

93. Express Newspapers (P) Ltd. vs Michael Marx AIR 1963 SC 1141 404

94. Fabricated Engine Drivers 1913 16 CLR 245 (Aus) 78

95. Federated Municipal and Shire Employees Union of 26 C.L.R. 508 (Aus.) 73Australia vs Melbourne Corporation

96. Federated School Teachers Association of Australia vs (1929) 41 CLR 569 78State of Victoria

97. Forbes Forbes Campbell and Co. Ltd. vs Engineering AIR 1978 SC 340 24043Mazdoor Sabha

98. French Motor Car Company Ltd. vs Their Workmen 1963 (61 FLR 80: (105067) S.C.L.J. 5054136: (1962) 2 LLJ 744

99. G.T. Lad and Others vs Chemical and Fibres India Ltd. (1979) 1 SCC 590: AIR 1979 SC 582 354, 4027, 451

100. Gaya Cotton and Jute Mills Ltd. vs Gaya Cotton and 1952 2 Lab. LJ 37 (L.A.T 1-Cal) 272, 459Jute Mills Labour Union

101. M/s. Ghaziabad Engineering Co. Pvt. Ltd. vs AIR 1978 SC 769 37071The Certifying Officer and Another

102. Gladstone vs Bower (1960) 3 All ER 353 341, 439




103. Graham Trading Co. (India) Ltd. vs Its Workmen (1960) 1 SCR 107(111): 511AIR 1959 SC 1151 at 1153

104. Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes AIR 1980 SC 1896 44, 55, 59, 31857, 32059,Mazdoor Sabha and Others 41855, 42057

105. Hamdard Dawakhana Wakf vs Its Workmen (1962) 2 LLJ 772 289

106. Haribhau Shinde vs F.H. Lala Industrial Tribunal AIR 1970 Bom. 213 223

107. Harinagar Cane Farm vs State of Bihar AIR 1964 SC 903 131

108. Hariprasad Shivshankar Shukla vs A.D. Divakar 1957 SCR 121 477, 478, 480

109. Hariwadan K. Desai vs LIC of India 1977 Lab. IC 1072 228

110. M/s. Hatisingh Mfg. Co. Ltd. vs U.O.I AIT (1960) 3 SCR 528: AIR 1960 SC 923 144, 466

111. Hem Raj vs State of Ajmer (1954) SCR 1133: AIR 1954 SC 462 296

112. Herbertsons Ltd. vs Their Workmen and Others 1977 LIC 162 172, 233

113. Heydons Case 1584 (76) ER 634 77, 111

114. Himangsu Chakraborty vs L.I.C of India 1977 Lab. IC 622 (Cal HC) 225

115. Hind Construction and Engineering Co. Ltd. vs Their Workmen (1965) 2 SCR 83: AIR 1965 SC 917 288

116. Hindustan Antibiotics AIR 1967 SC 948 570

117. Hindustan Construction Co. Ltd. vs G.K. Patankar and Another AIR 1976 SC 907 29394




118. Hindustan Lever Ltd. vs Rammohan Roy AIR 1972 SC 1156 376

119. M/s. Hindustan Steel Ltd. vs Their Workmen 1970 LIC 102 394

120. Hindustan Steel Ltd. vs Workmen, Orissa 3 SCR 303: AIR 1973 SC 878 467

121. Hindustan Tin Worker vs Its Employees AIR 1979 SC 75 59, 448, 449, 450

122. Hindustan Tin Works vs Its Employees 1978 LIC 1667: AIR 1979 SC 75 351, 353, 448, 449, 450

123. Hookinsons vs Feraie (1857) 3 C.B. (N.S) 189 165, 311

124. Hotel and Catering Industry Training Board vs (1968) 1 WLR 1526, 1530 66Automobile Proprietary Ltd.

125. Howrah-Amta Light Railway Co. Ltd. vs Central (1966) 2 LLJ 294, 302 (Pat HC) 512Government Industrial Tribunal

126. Hukam Chand vs U.O.I AIR 1972 SC 2427 217

127. Hussain Bhai vs The Alath Factory Thezhilali Union, (1978) 4 SCC 257 47, 59, 48689Kozhikode and Others

128. Hydro-Engineers AIR 1969 SC 182 570

129. I.M.H. Press, Delhi vs Addl. Industrial Tribunal Delhi AIR 1961 SC 1168 349, 447

130. I.S.I. Case AIR 1976 SC 145 1067

131. I.T.O vs M.C. Ponnoose (1970) 1 S.C.R 678 212

132. Imperial Tobacco Company of India Ltd. vs Its Workmen AIR 1962 SC 1348. 350, 447




133. India General Navigation and Rly Co. Ltd. vs Their Workmen AIR 1960 SC 219 348, 349, 350, 352, 353445, 446, 447, 449, 450

134. India Marine Service (1963) 3 SCR 575: AIR 1963 SC 528 298

135. Indian Hume Pipe Co. Ltd. vs Workmen AIR 1960 SC 251: (1960) 2 SCR 32 478

136. Indian Iron and Steel Co. Ltd. vs Their Workmen 1958 SCR 667: AIR 1958 SC 130. 349, 393, 447

137. Indian Link Chain Manufacturers Ltd. vs Workmen (1972) (24) F.L.R 321 212, 223

138. Indian Standards Institution (Workmen) vs 1976 (2) SCR 138: AIR 1976 SC 145 61, 106Indian Standards Institution

139. Inland Revenue Commrs. vs Ayrshire Employers Mutual (1946) 1 All ER 637 339, 437Insurance Association

140. M/s. Ispahani Ltd. vs Employees Union (1960) 1 SCR 24: AIR 1959 SC 1147 511

141. J.K. Cotton Spinning and Weaving Mills Co. Ltd. 1961 (2) F.L.R. 529 198, 206, 366vs State of U.P.

142. Jai Chand Sawhney vs Union of India (1969) 3 SCC 642 493, 494

143. Jalan Trading Co. (P) Ltd. vs D.M. Aney and Another AIR 1979 SC 233 530

144. Jalan Trading Co. Pvt. Ltd. vs Mill Mazdoor Union AIR 1967 SC 691 514, 530

145. James Clark (1944) 1 K.B. 566 165, 312




146. Jardine Henderson Ltd. vs Workmen 1962 Supp (3) SCR 382: 512AIR 1963 SC 474

147. Judhisthir Chandra vs Mukherjee AIR 1950 Cal. 577 190

148. K. Savanth vs The Mysore State Road Transport AIR 1978 SC 1133 500502Corporation and Another

149. K.C.P. Employees Association, Madras vs 1978 I LLJ 322: AIR 1978 SC 474 53133Management of K.C.P. Ltd., Madras and Others

150. K.L. Gupta vs Bombay Municipal Corporation (1968) I SCR 674 558

151. K.S. Ramaswamy vs U.O.I 1977 1 LLJ 211: 1978 Lab IC 46 226(Mad HC)

152. K.T. Rolling Mills Pvt. Ltd. vs M.R. Meher AIR 1963 Bom. 146 276, 463

153. Kajori Lal Agarwal vs U.O.I (1966) 3 SCR 141: AIR 1966 SC 1538 125

154. Kalyanmal Bhandari vs State of Rajasthan 1975 Lab. IC 790 (Raj HC) 212

155. Kamalaranjan vs Secy. of State AIR 1938 PC 281 342, 439

156. Kanhaiya Lal Gupta vs Ajeet Kumar Dey (1967) 2 LLJ 761 (All) 276, 463

157. Keshavananda Bharati vs State of Kerala AIR 1973 SC 1461: (1973) 4 SC 228 46, 114, 120

158. Keventers Karmachari Sangh vs Lt. Governor Delhi (1971) 2 LLJ 375 (Delhi) (DB) 260, 261




159. Killick Nixon Limited vs Killick and Allied Companies (1975) Supp SCR 453: 499Employees Union (AIR 1975 SC 1778)

160. Komalprasad vs The Central India Spinning AIR 1978 SC 473 411Weaving and Mfg Co. Ltd. and Another

161. L. Michael and Another vs M/s. Johnson Pumps Ltd. AIR 1975 SC 661 44, 51, 26571, 41217

162. L. Robert DSouza vs Executive Engineer, Southern Rly. (1979) ILLJ 211 (Ker) 480

163. L.I.C. of India vs D.J. Bahadur AIR 1980 SC 2181 51, 52, 53, 54, 56

164. L.I.C. of India vs Sunil Kumar Mukherjee 1964 (8) F.L.R. 158 206, 215

165. Lalla Ram vs Management of D.C.M Chemical Works Ltd. AIR 1978 SC 1004 28489

166. London and Blackwall Railway vs Limehouse District 26 LJ Ch 164: 69 ER 1048 366Board of Works

167. M. Pontish vs Veeramallappa AIR 1961 SC 1107 110

168. M. Tilak and Co. vs Third Industrial Tribunal AIR 1959 Cal. 797 512

169. Madan Mohan Pathak vs U.O.I. (1978) 3 S.C.R. 334 183, 210, 212, 218, 220

170. Madhya Pradesh State Road Transport Corporation vs 1970 LIC 510 394Industrial Court, M.P.

171. Madras State vs C.P. Sarathy AIR 1953 SC 53 137, 252




172. Magor and St. Mellons Rural District Council vs 1952 AC 189 342, 439Newport Corporation

173. M/s. Mahabir Jute Mills Ltd. Gorakhpur vs Shibban Lal AIR 1975 SC 2057 15258Saxena and Others

174. Mahalaxmi Cotton Mills Ltd. Calcutta vs 1952 LAC 370 511Mahalaxmi Cotton Mills Workers Union

175. Mahendra Singh Dhantwal vs Hindustan Motors Ltd. AIR SC 2062 27783, 37984

176. Malayalam Plantations Ltd. Cochin vs 1975 LIC 848: AIR 1975 (Ker) 86 543, 547Inspector of Plantations, Mundakayam

177. Management of Bangalore, Woollen, Cotton and Silk Mills AIR 1968 SC 585 139, 246Co. Ltd. vs The Workmen

178. Management of Bombay Co. Ltd. vs Workmen (1964) 7 SCR 277: AIR (1964) SCR 1770 512

179. Management of Borpukhurie Tea Estate vs AIR 1978 SC 992 38587The Presiding Officer, Industrial Tribunal, Assam and Another

180. Management of Churakulam Tea Estate vs Workman (1969) 1 SCR 931: AIR 1969 SC 998 511

181. Management of Hindustan Steel Ltd. vs The Workmen 3 SCR 303: AIR 1973 SC 878 467

182. Management of Hotel Imperial, New Delhi vs AIR 1959 SC 1342 274, 462Hotel Workers Union




183. Management of Ritz Theatre (P) Ltd. vs Its Workmen AIR 1963 SC 295 392, 398, 399

184. Management of Safdarjung Hospital, New Delhi vs (1971) 1 SCR 177: 62, 64, 65, 68, 95, 99, 1049,Kuldip Singh Sethi AIR 1970 SC 1407 114, 120, 130

185. Management of U.B. Dutt and Co. vs Workmen of 1962 3 (SCR) 822: AIR 1963 SC 411 268, 330, 414, 430U.B. Dutt and Co.

186. Management of Willcox Buckwell India Ltd. vs AIR 1964 SC 1166: (1965) 3 SCR 448: 479Jagannath

187. Management of Wenger and Co. vs Workmen AIR 1964 SC 864 490

188. Managing Director National Garage vs (1967) ILLJ 545 (Pun) 480J. Gonsalves Goodlass Nerolac Paints (P) Ltd. vsChief Commissioner

189. Maneka Gandhi (Mrs) vs UOI 1978 2 SCR 621 549

190. Mangaldas Narandas vs Payment of Wages Authority (1957) 2 LLJ 256 190

191. Maruti Mahipati Mullick vs Polson Ltd. 1970 Lab. IC 308, 310, 19471 Bom. LR 655 (Bom. HC)

192. Mary Sewards vs Owner of the Vera Curz (1884) 10 AC 59, 68 196, 198, 206, 366

193. May and Baker (1961) 2 ILJ 94 570




194. Mazagaon Dock Ltd. vs Commissioner of Income Tax and 1951 S.C.R. 848 226Excess Profit Tax

195. Md. Qasim Larry, Factory Manager, Sasamusa Sugar Works 1964 (9) FLR 115 193, 204vs Md. Samsuddin and Another

196. Mersey Docks and Harbour Board vs Coggins and Griffith Ltd. 1947 AC 1 133

197. Model Mills AIR 1958 SC 311 349, 447

198. Moghul Steam Ship Co. 1892 A.C. 25 166, 313

199. Mohinder Singh Gill vs Chief Election Commissioner, (1978) 2 SCR 272 549New Delhi

200. Mohmedalli vs UOI (1963) Supp. I SCR 993 558

201. Municipal Corporation of Delhi vs Rasal Singh, etc. AIR 1976 SC 2454 28384

202. Municipal Corporation of Greater Bombay vs P.S. Malvenkar (1978) 3 SCR 1000: AIR 1978 SC 1380 334, 434

203. N.M. Desai vs Testeels Ltd. CA. No. 245 of 1970: 550D/-17-12-1975 (SC)

204. N.M. Desai vs Testeels Ltd. and Another AIR 1980 SC 2124 379

205. Nagendra Nath Bora vs Commr. of Hills Division and 1958 SCR 1240: AIR 1958 SC 398 337Appeals, Assam




206. Narayanaswamy vs Presiding Officer (1971) 1 LLJ 310 (Mad) 192

207. Navinchandra vs Manager, Ahmedabad Co-op (1978) 19 Guj LR 108 337Department Stores Ltd.

208. Newabbganj Sugar Mills Co. Ltd. vs Union of India (1976) 1 SCR 120 508

209. Oil and Natural Gas Commission vs Workmen AIR 1973 SC 968 376

210. Om Oil and Oilseeds Exchange Ltd., Delhi vs (1966) Supp. SCR 74: AIR 1966 SC 1657 482Their Workmen

211. Organo Chemicals Industries and Another vs UOI and Others AIR 1979 SC 1803 54765

212. Oriental Textile Finishing Mills, Amritsar vs (1972) 1 SCR 490: AIR 1972 SC 277. 350, 447Labour Court Jullunder

213. P.H. Kalyani vs M/s. Air France, Calcutta (1963) 1 LLJ 697: AIR 1963 SC 1756 287, 337, 354, 451, 452

214. P.N. Kaushal vs UOI (1978) 3 SCC 558 551

215. P.P. Abubacker vs Union of India AIR 1972 Ker 103, 107 para 5 496

216. Panitole Tea Estates (1971) 3 SCR 774: AIR 1971 SC 2171 354, 451

217. Pannalal Binjraj vs UOI 1957 SCR 223 558

218. Patna Electric Supply Co. Ltd. Patna vs Bali Rai AIR 1958 SC 204 387

219. Pellas vs Neptune Marine Insurance Co. (1980) 5 CPD 34, 40 214




220. Phulbari Tea Estate vs Its Workmen 1960 1 SCR 32: AIR 1959 SC 1111 393

221. Precision Bearings India vs Baroda Mazdoor Sabha AIR 1978 SC 419 497500

222. Prem Nath Motors Workshop Pvt. Ltd. vs (1971) 22 Fac. LR 370 394Industrial Tribunal Delhi

223. Premier Automobiles AIR 1975 SC 2238. 169, 212, 315, 316

224 Pritam Singh vs State of Madras (1950) SCR 453: AIR 1950 SC 169 296

225. Province of Bombay vs Bombay Municipal Corporation AIR 1947 PC 34 551

226. Provincial Transport Service vs State Industrial Court (1968) 3 SCR 650: AIR 1963 SC 114 350, 447

227. Punjab National Bank vs Its Workmen AIR 1960 SC 160 353, 393, 450

228. Quinn vs Leathem 1901 A.C. 495 166, 313, 348, 445

229. R.B.H.N. Jute Mills vs Provident Fund Commissioner 1958 I LLJ 598 (Pat) 552

230. R.S. Joshi STO vs Ajit Mills (1977) 4 SCC 98 552

231. R.V. Secretary of State 1973 2 All ER 103 471

232. R.V. Secretary of State for the Home Department ex p (1975) 2 WLR 1 (1995): 1 All ER 888: 126Fire Brigades Union (1995) 2 AC 513 (CA)

233. Rajasthan Electricity Board vs Mohan Lal AIR 1967 SC 1857 363, 366




234. Rajasthan State Electricity Board vs Mohan Lal 1976 (2) SCR 377: AIR 1967 SC 1857 115

235. Ram Kishore Sharma vs Addl. District Judge Saranpur 1969 All LJ 225: (1970 Lab JC 582) 495

236. Raman Nambissan vs State Electricity Board (1967) 1 LLJ 252 368

237. Ramnagar Cane and Sugar Co. Ltd vs Jatin Chakravorty 1960 (1) F.L.R. 411 176

(195067)S.C.L.J. 2369:

(1960) 3 S.C.R. 968

238. Rohtak Hissar District Electricity Supply Co. Ltd. vs (1966) 2 SCR 863 365State of U.P.

239. Rohtas Industries vs Its Union AIR 1976 SC 425 44, 52, 58, 30717, 336

240. Rookes vs Barnard (1964) 1 All ER 367 168, 315, 348, 445

241. Roshan Lal vs Union 1968 1 S.C.R 185 212

242. Royal Acquarium vs Parkinson (1892) 1 QB 431 339, 436

243. Royal Talkies, Hyderabad and Others vs AIR 1978 SC 1478 53641Employees State Insurance Corporation

244. Russell vs Russell 1987 AC 395 196

245. S. Narayanaswami vs G. Panneerselvam AIR 1972 SC 2284 342, 439




246. Sadhu Singh vs State of Pepsu AIR 1954 SC 271 296

247. Samsher Singh vs State of Punjab (1975) I SCR 814: AIR 1974 SC 2192 329, 331, 332, 429, 431, 432

248. Sanghi Jeevaraj Ghewar Chand vs Secretary, Madras Chillies AIR 1969 SC 530: (1969) 1 SCR 366 275, 463, 514, 516, 517Grain Kirana Merchants Workers Union

249. Santosh Gupta vs State Bank of Patiala AIR 1980 SC 1219 47680

250. Sasa Musa Sugar Works (P) Ltd. vs Shobrati Khan MA AIR 1959 SC 923 354, 452

251. Satya Studios vs Labour Court (1961) 1 LLJ 105 192

252. Seaford Court Estates Ltd. vs Asher (1949) 2 All ER 155 110, 342, 440

253. Secretary Madras Gymkhana Club Employees Union 1968 (1) SCR 742: AIR 1968 SC 554 86, 87, 101, 102, 103, 105, 106,vs Gymkhana Club 107, 109, 120, 131

254. Secretary, Haryana State Electricity Board vs AIR 1999 SC 116 488Suresh and Others

255. Shambu Nath Goyal vs Bank of Baroda AIR 1978 SC 1088 13638

256. Shankar Chakravarti vs Britannia Biscuit Co. Ltd. and Another AIR 1979 SC 1652 388401

257. Shaw. vs D.P.P. 1962 AC 220 341, 438

258. Sheo Prasad vs Addl. District Judge, Moradabad AIR 1962 All 144 494




259. Shivnandan Sharma vs The Punjab National Bank Ltd. AIR 1955 SC 404 133

260. Shri Ram Swarath Sinha vs Belund Sugar Co. (1954) Lab AC 697 393

261. Shukla Manseta Industries Pvt. Ltd. vs Workmen 1977 (55) FLR 246 223

262. Shyamala Studios vs Kannu Devar (1966) II LLJ 428 (Mad) 281, 383

263. Siemens Engineering and Manufacturing Co. 1976 Supp. SCR 489 549, 550of India Ltd. vs UOI

264. Sindhu Settlement Corporation Ltd. vs Industrial Tribunal AIR 1968 SC 529 137

265. Solicitors Case 1962 Supp (3) SCR 157: 85, 86, 88, 90, 107, 109, 120AIR 1962 SC 1080

266. Sorrel vs Smith 1925 A.C. 700 166, 168, 313, 314

267. South Indian Bank Ltd. vs A.R. Chacko 1964 (8) FLR 118 194, 204, 212, 220, 221, 223

268. Sri Rama Machinery Corporation (P) Ltd. Madras vs (1966) II LLJ 899 (Mad) 281, 383N.R. Murthi

269. State Bank of India vs R.K. Jain (1972) 1 SCR 755: 1972 LIC 13 393, 394, 395, 398, 399

270. State of Andhra Pradesh vs S. Sree Rama Rao (1964) 3 SCR 25: AIR 1963 SC 1723 337

271. State of Bihar vs Dr Asis Kumar Mukherjee (1975) 2 SCR 894: AIR 1975 SC 192 342, 440




272. State of Bihar vs S.K. Roy 1966 Supp. SCR 259: AIR 1966 SC 1995 125

273. State of Bombay vs The Hospital Mazdoor Sabha (1960) 2 SCR 866: AIR 1960 SC 610 74, 75, 80, 83, 106, 107, 109, 110,113, 120, 121, 131, 144, 466, 470

274. State of Gujarat vs Pratamsingh Narsinh Parmar (2001) 9 SCC 713: 2002 SCC 46, 117(L and S) 269

275. State of Orissa vs Dr (Miss) Binapani Dei AIR 1967 SC 1269 157

276. State of Punjab vs Jai Bir Singh (2005) 5 SCC 1 46

277. State of Punjab vs Labour Court Jullundur and Others AIR 1970 SC 1981 47276, 56165

278. State of Rajasthan vs Mst. Vidhyawati 1962 Supp. (2) SCR 989: 115AIR 1962 SC 933

279. State of U.P. vs Jai Bir Singh (2005) 5 SCCI 45, 11632

280. State of U.P. vs Babu Ram Upadhya (1961) 2 S.C.R 679 165, 212

281. State of U.P. vs Basti Sugar Mills Co. Ltd. AIR 1961 SC 420 at p. 426 528

282. Steel and General Mills Co. Ltd. vs (1972) 1 LLJ 284: (1971) 1 LIC 1356 276, 463Additional District Judge, Rohtak

283. Steel Authority of India Ltd. vs National Union (2001) 7 SCC 1 46Water Front Workers




284. Straw Board Manufacturing Co. vs Its Workmen AIR 1977 SC 941 43, 50, 56571

285. Sukhdev Singh vs Bhagatram 1975 (30) F.L.R 283 (SC) 206, 212, 223, 363, 366, 367

286. Swadeshi Industries Ltd. vs Its Workmen AIR 1960 SC 1258. 447, 450

287. Tata Chemicals Ltd. vs Its Workmen AIR 1978 SC 828 17278, 5036

288. Tata Engineering and Locomotive Co. Ltd. vs S.C. Prasad (1969) 2 LLJ 799 289, 334, 434

289. M/s. Tata Iron and Steel Co. Ltd. vs Workmen AIR 1972 SC 1917 377

290. Tata Oil Mills Co. Ltd. vs Its Workmen 1964 7 SCR 555: AIR 1965 SC 155 287, 334, 434

291. Technological Institute of Textiles vs Its Workmen 1965 II LLJ 149 (SC) 141, 246, 248

292. The Ahmedabad Textile Industries Research Association 1961 (2) SCR 480: AIR 1961 SC 484 98, 99, 107

293. The Chartered Bank, Bombay vs The Chartered Bank (1960) 11 LLJ 222: AIR 1960 SC 919 267, 268, 330, 331, 334, 414,

Employees Union 415, 430, 431, 434

294. The Employers in Relation to Punjab National Bank vs AIR 1978 SC 481 13235, 264Ghulam Dastagir

295. The Indian Express Newspapers (Bombay) Pvt. Ltd. and AIR 1978 SC 1137 50, 25460, 263Another vs The Indian Express Newspapers (Bombay)Employees Union and Others




296. The Jhagrakhan Collieries (P) Ltd. vs Shri. G.C. Agrawal, 1975 (30) F.L.R./175 (S.C.) 177Presiding Officer, Central Govt. Industrial Tribunal-cum-Labour Court, Jabalpur

297. The Lord Krishna Textile Mills vs Its Workmen (1961) 3 SCR 204: AIR 1961 SC 860 287

298. The Management of Indian Oil Corporation vs Its Workmen AIR 1975 SC 1856 50, 54, 193, 194, 37378

299. The Management of Murugan Mills Ltd. vs Industrial AIR 1965 SC 1496: (1965) 2 SCR 148 267, 270, 281, 282, 330, 334, 414Tribunal Madras 416, 430, 434

300. The Mumbai Kamgar Sabha Mumbai vs AIR 1976 SC 1455 44, 52, 55, 57, 50620

M/s. Abdulbhai Faizallabhai and Others

301. The Queen vs Marshall Ex Parte Federated Clerks 1975 (132) CLR 595 103Union of Australia

302. The Rambagh Palace Hotel, Jaipur vs AIR 1976 SC 2503 49091

The Rajasthan Hotel Workers Union, Jaipur

303. The Senior Electric Inspector vs Laxmi Narayan Chopra 1962 SCR 146: AIR 1962 SC 159 111

304. The State Bank of India vs Shri N. Sundara Money AIR 1976 SC 1111 55, 466, 46972, 479, 480

305. The Statesman Ltd. vs Their Workmen AIR 1976 SC 758 294301




306. The Workmen of M/s. Firestone Tyre and Rubber Co. of AIR 1976 SC 1775 27177, 280, 396, 397, 399, 45964India (P) Ltd. vs The Firestone Tyre and Rubber Co.

307. The Workmen Shift Incharge Substation vs AIR 1980 SC 511 53, 29091The Presiding Officer

308. Thiru Manickam and Co. vs State of T.N. (1977) 1 SCC 199: 1977 SCC (tax) 125

165 AIR 1977 SC 518

309. Thiruvenkataswami vs Coimbatore Municipality (1968) 1 LLJ 361 368

310. Thorpe vs Adam (1871) LR 6 CP 125 366

311. Tin Printers (Pvt.) Ltd. vs Industrial Tribunal (1967) 2 LLJ 677 400

312. Titaghur Paper Mills Co. Ltd. vs Ram Naresh Kumar 1961 1 LLJ 551 288

313. Trustee of Port of Bombay vs Premier Automobiles Ltd. (1974) 4 SCC 710: AIR 1974 SC 923 472

314. Tulsidas Khimji vs Workmen (1962) 11 LLJ 435: AIR 1963 SC 1007 512

315. U.P. State Electricity Board and Another vs Hari Shankar Jain AIR 1979 SC 65 55, 199, 206, 217, 36169

316. Union of India vs Bungo Steel Furniture Pvt. Ltd. (1967) 1 SCR 324: AIR 1967 SC 1032 313, 343, 441

317. Union of India vs J.N. Sinha AIR 1971 SC 40 157

318. Union of India vs Hafiz Mohd IIR (1973) 2 Delhi 673 at 676: 469APR 1975 Delhi 75 at 76




319. United States vs American Trucking Association (1940) 310 U.S. 534 57, 340, 437

320. University of Delhi 1964 (2) SCR 703: AIR 1963 SC 1873 91, 92, 93, 94, 107, 109, 119

321. V.P. Gindroniya vs State of Madhya Pradesh AIR 1970 SC 1494 275, 462

322. Vasantlal Maganbhai Sanjanwala vs State of Bombay 1961 1 S.C.R. 341 227

323. Veiyra (M.A) vs Fernandez AIR 1957 Bom. 100: (1956) I LLJ 547 275, 462

324. W.M. Agnani vs Badri Das (1963) 1 LLJ 684 287

325. Watney Combe Reid and Co. vs Berners 1915 AC 885 199

326. Western India Automobile Association (1949) 1 LLJ 245 170, 317, 333, 4331949 FCR 321: AIR 1949 FC III

327. Western India Match Co. Ltd. vs The Third Industrial AIR 1978 SC 311 3012

Tribunal West Bengal and Others

328. Western India Match Co. Ltd. vs Their Workmen (1963) 2 LLJ 459 387

329. Western India Match Co. Ltd. vs Western India Match Co. AIR 1970 SC 1205: (1970) 3 SCR 370 158, 252Workers Union

330. Workman of Dimakuchi Tea Estate vs 1958 SCR 1156: AIR 1958 SC 353 112The Management of Dimakuchi Tea Estate




331. Workmen of Dewan Tea Estate vs Management AIR 1964 SC 1458: (1964) 5 SCR 548 275, 462

332. Workmen of Edward Keventers Pvt. Ltd. vs 1969 ILR Del 767 (DB) 26062Delhi Administration

333. Workmen of Hindustan Shipyard (Pvt) Ltd. vs (1961) 2 LLJ 526 (A.P.) 375

Industrial Tribunal, Hyderabad

334. Workmen of Indian Standards Institution vs Management (1960) 2 SCR 866: 61, 106of Indian Standards Institute 1976 ILLJ SC 33

335. Workmen of Motipur Sugar Factory (Pvt) Ltd. vs (1965) 3 SCR 588: AIR 1965 SC 1803 350, 392, 447Motipur Sugar Factory

336. Workmen of Sudder Office Chinnamare vs Management (1972) LIC 1262: (1971) 2 LLJ 620. 267, 268, 414, 415, 434

337. Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. vs AIR 1980 SC 1454 48184The Management of Jorehaut Tea Co. Ltd.

338. Workmen of Swadeshi Cotton Mills Co. Ltd. vs 1973 LIC 711 (All) 140, 246, 249Swadeshi Cotton Mills Co. Ltd. Kanpur

339. Workmen of the Rajasthan Atomic Power Project vs AIR 1976 SC 441 1976 (32) 23133Management of Rajasthan Atomic Power Project FLR 90: 1976 LIC 315




340. Workmen of Tirumala Tirupathi Devasthanam vs AIR 1980 SC 604 53031Management and Another

341. Workmen vs M/s. Dharampal Premchand Saughandi (1965) 3 S.C.R (394) 177

342. Workmen vs New Egerton Woollen Mills 1969 (18) F.L.R. 228: (1969) 2 LLJ 782: 505(196768) 32 FJR 182)

343. Yamuna Mills Co. Ltd vs Majdoor Mahajan Mandal, 1957 (1) LLJ 620 190, 191Baroda and Others

344. Yogendra Nath Naskar vs CIT (1969) 1 SCC 555: (1969) 3 SCR 742 125

Foreword

Social Justice and Labour LawA Judges Foreword

Indian jurisprudence has many dimensions and labour law does occupy a prominentjudicial space by way of case law, as is evident from the profusion of rulings on Parts IIIand IV of the Constitution and industrial statutes. The working class is not confined tourban factories and technological services that are well organized, but extend to the vastlydispersed villages of rural India. We are a socialist republic, as the Preamble to the Con-stitution articulates . There are several statutes, that deal with the rights and duties of theworking people, which are enforceable through courts. Inevitably, trade unionismwithpolitical and economic ideologieshad to come up for their semantic construction beforethe courts, especially the highest court, making the final pronouncement.

Judges have their biases, because they often belong to the bourgeoisie. Consequently,capitalists resist socialist meanings, and labour injustice results in strikes and other indus-trial disputes. It is in this context that I have had the opportunity to deal with tradeunions and explore the constructive role they play in producing harmony and peace,better understanding and just settlement of disputes between managements and workers.Without casting any reflections on the robed brethren who rarely have the benefit ofindustrial dispute in action, I must be forgiven for saying that Justice Gajendragadkarwas a pioneer in the field of labour law. During my time on the Bench, I took a liberalview of the rights of labour, who are the actual builders of Bharat with sweat and toil andhard engineering. There will be chaos in industrial jurisprudence if we do not evoke asense of justice in those whose sweat and toil as operators of production result in factories,plantations and workshops. The great and now late D.A. Desai, Chinnappa Reddy andquite a few other eminent jurists, including myself, have striven towards the creation of adynamic labour jurisprudence. Radical but realistic was my vision, shared by several ofmy colleagues. Law assigns a construction worker the status not of a mere wage earnerbut a skilled producer of goods and services.

Many questions arise as to what is an industry and who is a worker, how law mustmediate in disputes, how the relations between workers and managements should befairly regulated and how far courts can intervene to ensure social justice and how healthyconditions can be created through conciliation. I must frankly say that judges as a classhave an ethos not happily in favour of the working class. The Politics of the Judiciary,written by Prof. Griffith, makes this clear:

Judges are the product of a class and have the characteristics of that class. Typically coming frommiddle-class professional families, independent schools, Oxford or Cambridge, they spend

Foreword 37

20 to 25 years in successful practice at the bar, mostly in London, earning very considerableincomes by the time they reach their forties. This is not the stuff of which reformers are made,still less radicals.

Winston Churchill once told the House of Commons:

The courts hold justly a high, and I think, unequalled pre-continence in the respect of theworld in criminal cases, and in civil cases between man and man, no doubt, they deserve andcommand the respect and admiration of all classes of the community, but where class issues areinvolved, it is impossible to pretend that the courts command the same degree of general con-fidence. On the contrary, they do not, and a very large number of our population have been ledto the opinion that they are, unconsciously, no doubt, biases.

Lord Justice Scrutton, in an address to the University of Cambridge, observed:

Where are your impartial judges? They all move in the same circle as the employers, and theyare all educated and nursed in the same ideas as the employers. How can a labour man or a tradeunionist get impartial justice? It is very difficult sometimes to be sure that you have put yourselfinto a thoroughly impartial position between two disputants, one of your own class and one notof your class.

The points I have quoted above are not alien to the Indian forensic mentality. Cardozosgreat book The Judicial Process also hints at judicial predilections. If the Constitution is toreceive fair curial treatment, judges must consciously negate the class character of thehigher judiciary in India that has had a tradition of feudal and colonial conditioning.I must make it clear that I have had colleagues powerfully Left in tune with the Preambleto the Constitution and true to their oath of office. The majority of the judges, however,are of a different class, unwittingly shaped by their social milieu. Felix Frankfurter providesan apt reminder:

For the highest exercise of judicial duty is to subordinate ones personal pulls and ones pri-vate views to the law of which we are all guardiansthose impersonal convictions that make asociety a civilized community, and not the victims of personal rule.

Brothers D.A. Desai and Chinnappa Reddy are precisely what the Constitution in itsPreamble emphasises as a tryst with the people of India.

I would not prolong these prefatory observations as the readers will read through thebook for themselves and be able to judge impartially from the socialistic perspective.I know that there is a tendency, especially after American capitalist influence has gainedhold on Indian economic philosophy, of rejecting Nehru and Indira Gandhi; but thistrend must be corrected. A majority of judges, brought up contrary to the views of thefounding fathers, are inclined to ignore the progressive Preamble and the labour law setout in Part IV of the Constitution. Industrial law, after US economic domination ofIndian legal thought, has reached the vanishing point of social justice jurisprudence.History, in the long run, will rewrite the current pro-West verdict of the judiciary andwill vindicate what we, in our profound convictions, dreamtIndias labouring peoplein their vast majority would make Indias one billion and odd humans a happy family.


Pro-US, critics notwithstanding, my consolation is that even Lord Denning had in aletter to me written:

You have indeed been using your time to full advantage. Your book on Human Rights and theLaw will be of the greatest value to many. During your time on the bench, you were a leader ofthought on these matters and your judgements have received much acclaim. I find myself largelyin agreement with your point of view. Meanwhile, with all best wishes for success in all themany things you still do so that others may learn of your wisdom.

Justice V.R. Krishna Iyer

Preface

The labour legislations that govern the industrial relations aspectnamely the TradeUnions Act, 1926; the Industrial Employment (Standing Orders) Act, 1946; and theIndustrial Disputes Act, 1947historically contributed immensely to the growth of labourjurisprudence in India. A clear understanding of the content of these principal legislationsis the first and foremost need. The labour legislation would see the light of the day, witha clear presumption that it is an adequate code in meeting the whole purpose meant underthe long title to it. But when put into practice in a country like India with its myriadproblems, many uncertainties and legislative gaps, advertent or inadvertent, are found inmeeting the purposes. In this context, the role of the judiciary is paramount in maintainingregularity and certainty. The immediate post-Constitutional period witnessed the apexcourt, under Article 136 of the Constitution, convincedcontrary to the apprehensionsof the first Law Commission that labour matters were thrust upon a Court which hasnot the means or materials for adequately informing itself about the different aspects ofthe questions which arise in these appeals and therefore finds it difficult to do adequatejusticethat it could not only entertain matters from the labour courts and tribunals,but also expressed itself decisively and comprehensively on every subject that entered intolabourmanagement relations. The credit for this initial step should go to the late JusticeGajendragadkar, former Chief Justice, along with his brethren judges for rendering invalu-able decisions on labour matters, which in fact laid solid foundations as far as labourjurisprudence in India is concerned. Later, immediately after the Keshavananda Bharathicase, it was historically perceived that the apex court had elevated with pro-socialist judges.In this background, the contribution of Justice V.R. Krishna Iyer to the growth of labourjurisprudence was viewed as pro-labour .

It is agonising to note that the labour laws, especially the laws relating to industrialrelations, are perceived by employers in the country as rigid, restricting their freedom tocarry on business with flexible labour so as to meet the competitive situations in the globalmarket. Also, there is an impression that the awards of the industrial courts have madeemployers shell out huge amounts by way of back wages in case of a small lapse in con-ducting the domestic enquiry, which has left their business in ruins. No doubt the chang-ing perceptions of the global market may require certain reforms in the area of industrialrelations law in the country, specially in the areas relating to retrenchment and closure.But at the same time, the prevailing economic scenario of the country should be kept inmindthe percentage of work force made up by the unorganised sector in the countrystotal working population, their wage levels, their pattern of employment, the prevailingsocial security measures, and their social and educational status.

On the other hand, the workers and their organisations are vexed by the time-consumingprocesses involved in the adjudicating system. Already substantial amounts of informationare available, through various studies, as to the reasons for such delay. This needs closeexamination in order for apt conclusions to be drawn. The statutory mandate of prescribinga time limitunder Section 10(2A) of the Industrial Disputes Act, 1947within whichthe labour courts and the tribunals have to submit awards, whether in cases of individualdisputes or in industrial disputes, in the order of reference by the appropriate governmenthas become redundant in view of the experience gained. This was the major concern ex-pressed by Justice V.R. Krishna Iyer while deciding labour disputes. The finger must bepointed towards the legislature for this lapse of continuing without any reforms in thisarea for years.

In this book the labour judgements delivered by Justice V.R. Krishna Iyer, both speakingfor the majority and in terms of the judgements concurring with the majority view, areplaced on record contextually in accordance with their subject content as per the frameworkof industrial laws in this country. The authors place on record their own observations tonegate the contrary views expressed with regard to Justice Krishna Iyers commitment indeciding the labour matters. The critics may be correct in their assertion that at one stageof his tenure, i.e., while deciding the Bangalore Water Supply and Sewerage Board case,he might have yielded too much in expanding the scope of the definition of industry;but it was done with a qualification, urging the Parliament to step in with a legislative re-form, making his intention clear. Throughout his role as a judge of the apex court, JusticeV.R. Krishna Iyer has demonstrated constructively the art of interpretating the provisionsof labour legislations with the technicalities involved therein wherever there is ambiguityor inconsistency. The spirit and essence of the Directive Principles of State Policy underPart IV of the Constitution are what he held sacrosanct while he interpreted the provisionsof labour welfare legislations. Where the law is sole in its intention, his approach was tointerpret the spirit of it and the circumstances under which it has emanated from. Wherethe law contained a gap, the manner in which he filled the gap by solely confining himselfto the long title of the legislation is admirable.

Of course, there are also instances wherein he interfered with the awards of the labourcourts and the industrial tribunals when they failed to follow what the legislation providedfor, though such decisions went against the labour.

The purpose of this work is to make very clear certain key aspects of industrial relationsin India to those within the country and to the outside world, with a view to impressingupon the reader that the labour laws are not harsh but humane, oriented towards providinga protective mechanism for the economically weaker sections of this vast country.

The authors pay tribute to Dr A. Jayagovind, Vice-Chancellor of the prestigious Na-tional Law School of India University, Bangalore, and Prof. Babu Mathew, Professor (onLien), National Law School of India University, Bangalore, for their sincere inspiration,encouragement and support in this endeavour. The authors express their deep sense ofgratitude to Mr Sachin Biraj, Research Officer, Centre for Labour Studies, Mrs Bernadine,Project Research Officer, and Mrs Pushpa of the Centre for Child and Law for their in-valuable support in completing this work. The authors place on record their indebtednessto the Humanist Institute for Cooperation with Developing Countries, The Netherlands(HIVOS) for their valuable financial support in completing this work.


Finally, the fundamental purpose of this work is in one way to give a clear understandingof the very linkage between labour issues and Constitutional philosophy as perceived byJustice V.R. Krishna Iyer, and clarify the art of interpretation and understanding of theprovisions of various labour legislations for students of law, researchers, academics, tradeunion organisations, and managerial persons. This is presented with due respect to themembers of the bar and judicial fraternity in India.

I. Sharath BabuRashmi Shetty

Disclaimer: All judgements, acts and laws in this book have been reproduced as it isfrom the original. The publishers are not liable for any issues that might arise therefrom.

Preface 41

Chapter 1

Introduction

Judges occupy the public bench of justice. They implement the publics sense of justice.If the courts are the fulcrum of the justice system, there is a strong case for the reform ofcourt methodology and bestowal of attention on efficient management of judicial admin-istration. Otherwise, the courts may be so overloaded or so mismanaged that they grindto a halt and the exercise of citizens rights is discouraged or frustrated. A vital aspect ofjudicial remedies is speeding the pace of litigation from the cradle to the grave. We arereluctant to make these self-critical observations towards putting our house in order, butwhen the consumers of justicesuch as workmenlose interest in the judicial process,legislative unawareness of the research and development of the courts and a simplificationand acceleration of the judicative apparatus become matters of national concern. Lawsdelays are, in some measure, caused by legislative inaction towards making competent,radical changes in the procedural laws and sufficient financing and modernising of thejustice system a high-priority programme.1

Opposed to the traditional industrial culture of open competition or laissez faire, thepresent structure of industrial law is an outcome of long-term agitation and struggle bythe working class for participation in industries for their growth and profits on an equalfooting with the employers. Therefore, in interpreting the industrial law, which aims atpromoting social justice, the interests of employers, employees and, in a democratic society,the people as a whole, who are the ultimate beneficiaries of the industrial activities, haveto be kept in view.2

Several critical questions arose with regard to the interpretation of various aspects ofthe Industrial Disputes Act, 1947 and other related labour legislations immediately after thecommencement of the Constitution. On all these questions, our courts have accepted theprinciples prevailing by way of precedents and the interpretation of the statutes, consideringthe socio-economic background from which these laws have emanated.

The decisions rendered by his lordship Justice V.R. Krishna Iyer, including those whereinhis coordination in delivering the dominant view was involved in the area of labour law,are central to this work. In every decision, his lordship referred to the previous ratio pre-vailing on the point and has analysed and applied the ratio while deciding similar issueswith authority. Where the law was silent on the issue and where there was no prevailingratio on the issue, Justice Krishna Iyer with precision and the application of interpretativeskills decided the cases unambiguously. This way, in judicial terms, is called the creativityof the judge. This applied to important areas of industrial relations, where the Parliamentconstrued the purpose by reading between the lines of the provisions of said legislationsand Justice Krishna Iyer deals with this without leaving any impression of having gonebeyond the statutory implication.


Equal credit is richly deserved by the judges who occupied posts in the apex Courtimmediately after the commencement of the Indian Constitution. They are JusticeP.B. Gajendragadkar, Justice K.N. Wanchoo, Justice K.C. Das Gupta, Justice PathanjaliSastri, Justice J.M. Shelat, Justice Grover, Justice K.S. Hegde, Justice H.R. Khanna, JusticeJaswant Singh, Justice D.A. Desai, Justice O. Chinnappa Reddy and Justice P.B. Sawant.An immense contribution to labour jurisprudence immediately after the commencementof the Constitution was from Justice P.B. Gajendragadkar, who rendered labour judgementswith great clarity and precision within the confinements of the Constitution and therelevant statutory provisions. Of course, at the same time, he was very cautious in adheringto the norms of industrial discipline to be followed by an industrial worker. The Consti-tution was the guiding principle for these judges in deciding labour matters. The DirectivePrinciples of State Policy embodied in Part IV of the Constitution were the spirit enshrinedin the judgements of this era.

In this work, every case wherein either Justice Krishna Iyers majority view or his con-current view were involved has been discussed at length in order to give readers a clearunderstanding of the judgement. His role as a judge involved rewriting the followingprovisions/areas under labour legislations. This was done in keeping with the Constitu-tional mandate under the Directive Principles of State Policy under Part IV as well as theobject with which the labour legislations were enacted. While deciding each case, hewent beyond the routine to consider the issue carefully with a view that such decisionswould guide the deciding of similar cases in future. At the same time, he sounded a noteof caution: that while exercising the wider power under Article 136, the Supreme Courtmust have due regard for the Constitutional limitations on Article 133(1) and owe alle-giance to those restraints save in exceptional cases.

1. Interpretation of the definition of industry under Section 2(j) of the Industrial DisputesAct, 1947.3

2. Clarification of the meaning of the term undertaking within the scope of the IndustrialDisputes Act, 1947.4

3. Legally limiting the scope of the prerogative of the employer in dismissing the workman onthe ground of loss of confidence.5

4. Defining the scope of the operation of Section 33(2)(b), i.e., whether it goes beyond thescope of acts of misconduct specified under the standing orders of the establishment.

5. Whether the scope of the powers of the arbitrator under Section 10A of the IndustrialDisputes Act, 1947, covers the matters specified as outside the scope of the said Act.6

6. The antagonistic relationship between a claim for compensation for tortuous liability andthe definition of industrial dispute under Section 2(k) of the Industrial Disputes Act,1947.7

7. The hard question relating to labour employed through a middleman and their claim forabsorption as regular employees of the principal employer in situations where the provisionsof the Contract Labour (Regulation & Abolition) Act, 1970, are defeated in employingsuch labour.8

8. Does Section 11A of the Industrial Disputes Act, 1947, include an arbitrator?9

9. Whether mass dismissal for participating in an illegal strike amounts to discharge simpliciteror discharge for misconduct.10

10. Entitlement to customary bonus by the workmenthe scope of Section 17 and Section 34of the Payment of Bonus Act, 1965.11

Introduction 45

There is mention in the judgements delivered by Justice Krishna Iyer pertaining togrey areas in the legislations, relating to the position of other staff employed in the Con-stitutional functions of the government12 and the prohibition of strikes during the pen-dency of the proceedings before the authorities specified in Section 23(a) of the IndustrialDisputes Act, 1947.13

Also one can find a noble gesture from Justice Krishna Iyer, while deciding casesinvolving a workman initiating flawed proceedings in respect of money due from theemployer under special labour legislations. After having settled the right position of lawby quashing the award of the tribunal, he disposed of the matter with an assurance fromthe employers counsel that the amount due would be paid to the workman without put-ting him to the hardship of repeating the proceedings to recover the money due.

Labour IssuesAttitude of the Judiciary of Late

The Indian judicial experience is unique. Judicial accountability was very much inquestion in the first two decades of the Supreme Court, from 1950 to 1973. There wereclashes between the Supreme Courts decisions on property and on agrarian and eco-nomic reform, and the Governments view that the Supreme Court was unsympathetic andat times hostile to its legislation on such matters. However, after 1973, there has been nosuch problem as the judiciary changed its direction.14 But the recent years developmentsin the labour judgements of the Supreme Court are very much a cause for concern. Fornearly a decade, during the liberalisation era, the Indian judiciary has exhibited a trend ofinsensitivity towards upholding the prevailing political economy of the country as far asthe issues pertaining to labour rights are concerned. Of late, the Supreme Court hasrendered certain judgements pertaining to the primary aspects of labour rights and indus-trial relations recognised over the years, leading to certain concerns.

Today no one speaks of judges accountability for their judgements in labour matters.The present scenario is that many state governments have either declared some regionsexclusive economic zones, excluding them from the purview of the labour laws, or haveprovided exemptions to many sectors from the application of vital labour laws. The strengthof the organised-sector workforce is receding everyday. The workers of the unorganisedsector constitute 93 per cent of the total working population in the country, and they areworking in totally exploitative conditions without any protective coverage under variouslabour legislations. It is equally painful to note that the Central Trade Union Movementin India has fallen way behind in addressing these issues.

Labour jurisprudence in India has a history of more than five decades, emanatingfrom the Directive Principles of State Policy in the Constitution. This is what the SupremeCourt prior to the regime of Justice Krishna Iyer and during his regime insisted upon andincorporated while delivering its decisions. Today this soundness in the judgements relat-ing to labour matters may be spoken or felt but no remedy is provided.15

In the recently decided State of UP vs Jai Bir Singh,16 a five-judge bench of the courtheld that:

The word industry seems to have been redefined under the Amendment Act keeping in viewthe judicial interpretation of the word industry in the case of Bangalore Water Supply.17 Had there


been no such expansive definition of industry given in Bangalore Water Supply18 case, it wouldhave been open to Parliament to bring in either a more expansive or a more restrictive definitionof industry by confining it or not confining it to industrial activities other than sovereign functionsand public welfare activities of the State and its departments. Similarly, employment generatedin carrying on of liberal professions could be clearly included or excluded depending on socialconditions and demands of social justice. Comprehensive change in law and/or enactment ofnew law had not been possible because of the interpretation given to the definition of industryin Bangalore Water Supply19 case. The judicial interpretation seems to have been one of the in-hibiting factors in the enforcement of the amended definition of the Act for the last 23 years.The Supreme Court must, therefore, reconsider where the line, excluding some callings, servicesor undertakings from the purview of industry should be drawn and what limitations can andshould be reasonably implied in interpreting the wide words used in Section 2(j). That no doubtis rather a difficult problem to resolve more so when both the legislature and the executive aresilent and have kept an important amended provision of law dormant on the statute-book.

It is not necessary to say anything more and leave it to the larger Bench to give such meaningand effect to the definition clause in the present context with the experience of all these years andkeeping in view the amended definition of industry kept dormant for long 23 years. Pressingdemands of the competing sectors of employers and employees and the helplessness of thelegislature and the executive in bringing into force the Amendment Act compel this Bench, tomake the reference.

The decision in Bangalore Water Supply20 is not a unanimous decision. Of the five Judges whoconstituted the majority, three have given a common opinion but two others gave separateopinions projecting a view partly different from the views expressed in the opinion of the otherthree Judges. Beg, C.J. having retired had no opportunity to see the opinions delivered by theother Judges subsequent to his retirement. Krishna Iyer, J. and the two Judges who spoke throughhim did not have the benefit of the dissenting opinion of the other two Judges and the separatepartly dissenting opinion of Chandrachud, J., as those opinions were prepared and deliveredsubsequent to the delivery of the judgment.

Let the cases be now placed before Honble Chief Justice of India for constituting a suitablelarger Bench for reconsideration of the judgment of this Court in the case of Bangalore WaterSupply.21

Thanks are due to the Supreme Court for conducting detailed, principled, empiricalresearch on the Bangalore Water Supply22 decision. If one proceeds in this manner in re-spect of every case decided by the Supreme Court, that may be the best order of the day.

The background for constituting the five-judge bench on a reference made in theState of Punjab vs Jai Bir Singh23 was due to apparent conflict between the judgements oftwo different benches of the Supreme Court on a question as to whether Social ForestryDepartment of the state, which is a welfare scheme undertaken for the improvement ofthe environment, would be covered by the definition of industry under Section 2(j) ofthe Industrial Disputes Act, 1947, in the cases of Chief Conservator of Forests vs JagannathMaruti Kondhare 24 (of three judges) and State of Gujarat vs Pratamsingh Narsinh Parmar 25

(of two judges).The Supreme Court ought not to have shown such a concern since the decision of the

three judges would prevail in the circumstances. Moreover, the norm in jurisprudencethat a smaller bench of the apex Court is always bound by the decision of a larger benchis seriously threatened in the circumstances.26 If this be the situation, why may not asmaller bench appeal to the Honble Chief Justice of India to reconsider the decisionin the Kesavananda Bharati27 case and the decision in the Steel Authority of India28 case?

Introduction 47

One may even entertain a motion that this must be a plausible approach to nullifying thepragmatic efforts of Justice Krishna Iyer in the Bangalore Water Supply 29 case, with regardto the definition of industry under the Act.

Was this exercise by the Supreme Court really necessary? The long title of the IndustrialDisputes Act, 1947, clearly provides for the investigation and settlement of industrialdisputes and for certain other purposes. As long as the management transparently exer-cises its powers in maintaining industrial discipline by having a clear policy within themanagerial level, the situation should not warrant the extent of adverse effects sufferedwhen matters reach the level of adjudication. If the approach of the Supreme Court is tonarrow down the definition of industry under the Act on the felt grounds, then it throwshundreds of labourers into the open market, as unemployed, without having any forumfor the redressal of their grievances. Civil servants who are out of the purview of theIndustrial Disputes Act, 1947, have remedies under the Constitution for the redressal oftheir grievances. But the employees who possess the character of neither civil servant norworkman under the Industrial Disputes Act, 1947, are left in despair, without any remedyunder the present competitive global economy. There is no answer yet from the apexCourt on this important need of the hour. Unlike Britain, we do not have comprehensiveemployment laws in India that deal with the employment-related rights of employeesin the event of abrupt termination, dismissal or other related grievances, other than theIndustrial Disputes Act, 1947.30

After all, the Supreme Court need not come down to the state of showing a graveconcern for the industry and baptising their hire-and-fire policy at the cost of the starvinglabouring masses in India. Of course, recent decisions of the Supreme Court in enforcingindustrial discipline as pertaining to acts of misconduct on the part of workmen is wel-come, since judges like C.J. Gajendragadkar and Krishna Iyer have shown great concernfor industrial discipline while dealing with such matters.

The views of the nation on certain matters may definitely change and, unconsciously,judges interpret the law to correspond with the changes in national views, circumstancesand progress. The most precious rights in any state are those of justice and equality. Itis quite possible that gradually inroads may be made on these by the force of circumstancesfollowing the evolution of new national ideas which the yawning void of the future con-ceals from us. Yet the highest judiciary must lead the way with circumspection, keepingin view the social realities of our society. It should not yield to say that the political phil-osophy and economic necessity of the dominant classes may animate legal theory.

NOTES

1. Justice V.R. Krishna Iyers observation in Straw Board Manufacturing Co. vs Its Workmen, AIR 1977 SC 941at para 3.

2. State of UP vs Jai Bir Singh (2005) 5 SCC at para 33.3. See Bangalore Water Supply and Sewerage Board vs A. Rajappa and Others. (1978) 2 SCC 213: AIR 1978 SC.4. See M/s Avon Services Production Agencies (P) Ltd vs Industrial Tribunal. AIR 1979 SC 170. The same was

nullified by an amendment act of 1982, by inserting section 2(ka).5. See L. Michael & another vs M/s Johnson Pumps India Ltd. AIR 1975 SC 661.6. See Rohtas Industries vs Its Union. AIR 1976 SC 425.7. Ibid.8. See Hussainbhai vs The Alath Factory Tezhilali Union, Kozhikode and Others. (1978) 4 SCC 257.9. See Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha and Others. AIR 1980 SC 1896.


10. See Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha and Others. AIR 1980 SC 1896.11. See The Mumbai Kamgar Sabha Mumbai vs. M/s Abdulbhai Faizulbhai. AIR 2976 SC 1455.12. In Bangalore Water Supply and Sewerage Board vs A. Rajappa and Others (1978) 2 SCC 213 : AIR 1978 SC

548 (para 74), it was observed that: although we are not concerned in this case with those categoriesof employees who particularly come under departments charged with the responsibility for essentialconstitutional functions of government, it is appropriate to state that if there are industrial units severablefrom the essential functions and possess an entity of their own it may be plausible to hold that the employeesof those units are workmen and those undertakings are industries. A blanket exclusion of every one of thehost of employees engaged by government in departments falling under general rubrics like, justice, defence,taxation, legislature, may not necessarily be thrown out of the umbrella of the Act. We say no more exceptto observe that closer exploration, not summary rejection, is necessary.

13. See Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha and Others. AIR 1980 SC 1896. At para108, it is observed that: Prefatory to the discussion about the factum of misconduct and its sequel, wemust remind ourselves that the strike was illegal, having been launched when another industrial disputewas pending adjudication. Section 23(a) appears, at a verbal level, to convey such a meaning althoughthe ambit of sub-clause (a) may have to be investigated fully in some appropriate case in the light of itsscheme and rationale. It looks strange that the pendency of a reference on a tiny or obscure industrialdisputeand they often pend too longshould block strikes on totally unconnected yet substantial andrighteous demands. The constitutional implications and practical complications of such a veto of a valuableright to strike often leads not to industrial peace but to seething unrest and lawless strikes.

14. Andhyarujina. T.R. 2005. Judicial Accountability: Indias Methods and Experience, in Cyrus Das andK. Chandra (eds), Judges and Judicial Accountability, p. 101. Delhi: Universal Law Publications Co. (P) Ltd.

15. See Steel Authority of India Ltd vs National Union Waterfront Workers (2001). 7 SCC1. The fundamentalissue involved in the case was when once the contract labour system was duly abolished by the appro-priate Government under section 10 of the Contract Labour (Regulation & Abolition) Act, 1970, whetherthe erstwhile contract labour are entitled to be absorbed automatically as the regular employees of theprincipal employer. The court unprovokingly reversed the previous ratio laid down by the court in AirIndia Statutory Corporation vs United Labour Union (1997). 9 SCC 377, and held that such workers are notentitled to such privilege (at paras 89 and 125[3]).

Further, the court in that context held (at paras 8 and 9)

that the history of exploitation of labour is as old as the history of civilization itself. There has been anongoing struggle by labourers and their organizations against such exploitation but it continues in oneform or the other. The Industrial Disputes Act, 1947, is an important legislation in the direction of at-taining fair treatment to labour and industrial peace, which are the sine qua non for sustained economicgrowth of any country. After the advent of the Constitution of India, the State is under an obligation toimprove the lot of the workforce. Articles 23, 38, 39, 43, 43-A, 14 and 15 are relevant in this regard. ThePreamble to the Constitution is the lodestar and guides those who find themselves in a grey area whiledealing with its provisions. It is now well settled that in interpreting a beneficial legislation enacted togive effect to the Directive Principles of State Policy which is otherwise Constitutionally valid, the con-sideration of the court cannot be divorced from those objectives. In a case of ambiguity in the languageof a beneficial labour legislation, the courts have to resolve the quandary in favour of conferment of,rather than denial of, a benefit on the labour by the legislature but without rewriting and/or doing vio-lence to the provisions of the enactment.

16. (2005) 5 SCC.17. Bangalore Water Supply and Sewerage Board vs A. Rajappa and Others (1978) 2 SCC 213: 1978 SCC

(L&S) 215.18. Ibid.19. Ibid.20. Ibid.21. Ibid.22. Ibid.23. (2005) 5 SCC 1.24. (1996) 2 SCC 293.25. (2001) 9 SCC 713.

Introduction 49

26. As to this, the court has justified its stance on the following grounds: A necessity to re-examine the deci-sion rendered in Bangalore Water Supply was felt in Coir Board Case (1998) 3 SCC 259 wherein it was ob-served that:

Looking to the uncertainty prevailing in this area and in the light of the experience of the last twodecades in applying the test laid down in the case of Bangalore Water Supply it is necessary that thedecision is reexamined. The experience of the last two decades does not appear to be entirely happy.Instead of leading to industrial peace and welfare of the community (which was the avowed purpose ofartificially extending the definition of industry), the application of the Industrial Disputes Act, 1947 toorganizations, which were quite possibly not intended to be so covered by the machinery set up underthe Act, might have done more damage than good, not merely to the organizations but also to employeesby the curtailment of employment opportunities.

An order of reference to the Chief Justice for constituting a larger Bench of more than seven judges, ifnecessary, was passed. However, when the matter was listed before a three-Judge Bench, the request forconstituting a larger Bench was refused both on the grounds that the Industrial Disputes Act had undergonean amendment and that the matter did not deserve to be referred to a larger Bench as the decision ofseven Judges in Bangalore Water Supply case was binding on Benches of less than seven Judges. But nosuch inhibition limits the power of the present Bench of five Judges which has been constituted on areference made due to apparent conflict between the judgments of two different Benches of the SupremeCourt. The experience of Judges in Coir Board case was not derived from the case in which the observationswere made. The experience was from the cases regularly coming to the Supreme Court through theLabour Courts. It was experienced by all dealing in industrial law that overemphasis on the rights of theworkers and undue curtailment of the rights of the employers to organize their business had given rise toa large number of industrial and labour claims resulting in awards granting huge amounts of back wagesfor past years, allegedly as legitimate dues of the workers, who were found to have been illegally terminatedor retrenched. Industrial awards granting heavy packages of back wages sometimes result in taking awaythe very substratum of the industry. Such burdensome awards in many cases compel the employer havingmoderate assets to close down industries causing harm to interests of not only the employer and theworkers but also the general public who is the ultimate beneficiary of material goods and services fromthe industry. The awards of reinstatement and arrears of wages for past years by Labour Courts bytreating even small undertakings of employers and entrepreneurs as industries is experienced as a seriousindustrial hazard particularly by those engaged in private enterprises. The experience is that many timesidle wages are required to be paid to the worker because the employer has no means to find out whetherand where the workman was gainfully employed pending adjudication of industrial dispute raised byhim.

Exploitation of workers and the employers has to be equally checked. But law and particularly industriallaw needs to be so interpreted as to ensure that neither the employers nor the employees are in a positionto dominate the other. Both should be able to cooperate for their mutual benefit in the growth of indus-try and thereby serve public good.

27. Keshavananda Bharati vs State of Kerala. AIR 1973 SC 1461: (1973) 4 SC 228.28. Bangalore Water Supply and Sewerage Board vs A. Rajappa and Others. (1978). 2 SCC 213: 1978 SCC

(L&S) 215.29. Ibid.30. In the absence of such an approach, the numerous problems needing solution that now arise in the shape

of industrial disputes cannot be tackled satisfactorily, and this is why every civilised government has thoughtof a machinery of conciliation officers, boards and tribunals for the effective settlement of disputes.

Chapter 2

Industrial Jurisprudence

Introduction

In this chapter, various aspects relating to the concept of industrial jurisprudence, theConstitutional commitment to labour and the principles of interpretation of labourlegislationsas dealt with by Justice Krishna Iyer while deciding labour caseshavebeen analysed with a view to restating the position on these. Of course, the SupremeCourt too has several times touched upon these issues while deciding labour cases. It is,however, in order to demonstrate Justice Krishna Iyers trendsetting vision of labour juris-prudence that these aspects have been dealt here.

Industrial jurisprudence is not a static, rigid code of cold text, but dynamic, burgeoningand warm with life. To the Biblical interrogation What man is there of you, who if hisson asks bread, will give him a stone?,1 it replies emphatically: None

Our industrial jurisprudence strives to treat capitalists and labour as co-sharers and tobreak away from the tradition of labours subservience to capital.2

The primary concern of industrial jurisprudence is to maintain peace among the variousparties and ensure the contentment of the workers, the end product being increased pro-duction informed by distributive justice. Law, especially labour law, is the art of establishingeconomic order sustained by social justice. It aims at pragmatic success, but is guided byvalue-based realities. It believes in relativity and rejects absolutes. Article 43Awhichemphasises the workers role in production as partners in the processread in the light ofthe earlier accent on workers rights and social justice, accords a new status and sensitivityto industrial jurisprudence in our socialist republic. This social philosophy must informinterpretation and adjudicationa caveat needed because precedents become time-boundand no longer appropriate as the societal ethos progresses. The golden rule in a rapidlychanging system is that there are no golden rules. We should be guided by realistic judicialresponses to societal problems against the backdrop of the new radical values implied inreserving social justice to labour, who are the production backbone of the nation.3

Industrial law in India has had many twilight patches, as illustrated by the problem ofan employee whose services have been terminated simpliciter by the management. Twosocially vital factors must inform the understanding and application of industrial juris-prudence. The first is the Constitutional mandate of Part IV, obligating the state to makeprovision for securing just and humane conditions of work. Security of employment is

Industrial Jurisprudence 51

the first requisite of a workers life. The second, equally axiomatic consideration is that aworker who wilfully or anti-socially holds up the wheels of production or underminesthe success of the business is a high risk and deserves, in the industrial interest, to be re-moved without tears. Legislation and judicial interpretation have woven the legal fabricbased on these patterns.4

To lose sight of the crucial nature of legislationthat is, in terms of the role of industrialdisputes and their settlement by lawand to regard it as mere enactment with little bear-ing on the terms and conditions of service in enterprises is to miss the distinctiveness ofgenre, unique flavour and legislative quintessence of the Industrial Disputes Act.5

Law is a form of order, and good law must necessarily mean good order. The roots ofjurisprudence lie in the soil of societys urges and it blooms with nourishment from thehumanity it serves. To petrify statutory constructions by imposing pedantic impedimentsand to forget that the law of all laws is that the welfare of the people is paramount, is tobid farewell to the spirit of our Constitutional order.

The Constitutional bias towards ensuring social justice to the weaker sections, includingthe working class, in the Directive Principles of State Policy is a factor that must enliventhe judicial consciousness while decoding the meaning of legislation. Rules of constructionof a Victorian vintage cannot override this value-laden guidebook that is the Constitution.6

Bidding farewell to the context and fanatically adhering to the text of the law may leadto the tyranny of literalitya hazardous road that misses the authors meaning or reachesfor a sense that the author never meant. Lord Denning has observed: A judge should notbe a servant of the words used. He should not be a mere mechanic in the powerhouse ofsemantics. Reed Dickerson has, in his The Interpretation and Application of Statuteswarned against the disintegration of statutory construction and quoted Fuller to say:7

We do not proceed simply by placing the word in some general context Rather, we askourselves, what can this rule be for? What evil does it seek to avert?

Surely the judicial process is something more than a cataloguing procedure.

a rule or statute has a structural or systematic quality that reflects itself in some measure intothe meaning of every principal term in it.8

In the decision of major industrial disputes, three factors are thus involved. The interestsof the employees, who have received Constitutional guarantees under the DirectivePrinciples; the interests of the employers, who have received a guarantee under Article 19and other articles of Part III of the Constitution; and the interests of the community atlarge, which are so important in a welfare state. It is on lines cognizant of these thatindustrial jurisprudence has developed during the last two decades in India.9

Now, if a sacrifice is necessary in the overall interest of the industry or a particul

Social Justice and Labour Jurisprudence: Justice V.R. Krishna Iyer's Contributions

Documents

Transcript of Social Justice and Labour Jurisprudence: Justice V.R. Krishna Iyer's Contributions