judgement:
Civil Appeal No. 187 of 1983.
From the Judgment and Order dated the 17th August, 1982 of the Punjab and Haryana High Court in First Appeal From Order No. 199 M of 1979.
306 R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the appellant.
E.C. Agarwala, Mrs. H. Wahi and Rajiv Sharma for the respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
The parties herein were married at Jullundur City according to Hindu Vedic rites on or about 24th January, 1975.
The first daughter of the marriage Menka was born on 4th January, 1976.
On 28th February, 1977 second daughter Guddi was born.
It is alleged that 16th May, 1977 was the last day of cohabitation by the parties.
It is further alleged that on 16th May, 1977, the respondent husband turned the appellant out of his house and withdrew himself from her society.
The second daughter unfortunately expired in the house of the respondent/father on 6th August, 1977.
On 17th October, 1977, the wife appellant filed a suit against the husband/respondent herein under Section 9 of the hereinafter referred to as the said Act for restitution of conjugal rights.
In view of the argument now sought to be advanced, it is necessary to refer to the said petition.
In the said petition, the wife had set out the history of the marriage as hereinbefore briefly mentioned and alleged several maltreatments both by the husband as well as by her in laws and thereafter claimed decree for restitution of conjugal rights.
On 21st March, 1978, the learned Sub Judge Ist Class passed an order granting Rs. 185 per month as maintenance pendente lite and Rs. 300 as the litigation expenses.
On 28th March, 1978, a consent decree was passed by the learned Sub Judge Ist Class for restitution of conjugal rights.
It may be mentioned that on the petition of the wife for restitution of conjugal rights, the husband respondent appeared and filed his written statement admitting therein the factum of marriage between the parties but denied the fact that the respondent had ever made any demand from the petitioner as alleged or had ever disliked her or had withdrawn from her society or turned her out from his house as alleged by the wife petitioner in her petition for restitution of conjugal rights.
The respondent thereafter made a statement in the court that the application of the petitioner under Section 9 of the said Act be granted and decree thereof be passed.
Accordingly the learned Sub Judge Ist Class on 28th March 1978 passed the decree for the restitution 307 of conjugal rights between the parties.
It was alleged by the petitioner wife that the appellant had gone to the house of the respondent and lived with him for two days as husband and wife.
This fact has been disbelieved by all the courts.
The courts have come to the conclusion and that conclusion is not challenged before us that there has been no cohabitation after the passing of the decree for restitution of conjugal rights.
On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act against the appellant for divorce on the ground that one year had passed from the date of the decree for restitution of confugal rights, but no actual cohabitation had taken place between the parties.
The appellant filed her reply to the said petition.
The categorical case in reply of the appellant was that it was incorrect that after passing of the decree, there had been no restitution of conjugal rights between the parties, positive case of the appellant was that after passing of the decree, the wife was taken to the house of the husband by the parents of the wife after one month of the decree and that the husband kept the wife in his house for two days and she was again turned out.
It was further alleged that the wife had filed an application under Section 28A of the said Act in the court of Sub Judge, 1st Class, Jullundur on 22nd January, 1979 with the request that the husband should be directed to comply with the decree passed against him under Section 9 of the said Act and the application was pending at the time when the reply was filed by the wife to the petition for divorce.
The learned District Judge on 15th October, 1979 dismissed the petition of the husband for divorce.
The learned Judge framed two issues, one was whether there has been no restitution of conjugal rights after the passing of the decree for the restitution of conjugal rights, and secondly to what relief was the husband entitled to ? After considering the evidence of civil and criminal proceedings pending between the parties, the learned Judge came to the conclusion that there has been no resumption of cohabitation between the parties after 28th March, 1978 and decided the issue in favour of the husband but on the question of relief the learned Judge was of the view that in view of the provisions of Section 23 of the said Act and in view of the fact that the previous decree was a consent decree and at that time there was no provision like provision of Section 13B of the said Act i.e. 'divorce by mutual consent ', the learned Judge was of the view that as the decree for restitution 308 of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
Being aggrieved by the said decision, there was an appeal before the High Court of Punjab and Haryana.
So far as last mentioned ground was concerned, the High Court held that in view of the decision of this Court in the case of Dharmendra Kumar vs Usha Kumari, this contention was not open to the wife.
The court was of the opinion that in view of the said decision of this Court, it could not be said that the husband was taking advantage of his 'wrongs '.
In the said decision this Court noted that it would not be reasonable to hold that the relief which was available to the spouse against whom a decree for restitution of conjugal rights had been passed should be denied to the one who does not comply with the decree passed against him or her.
The expression "in order to be a 'wrong ' within the meaning of Section 23 (1) (a) the conduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to.
So, therefore, Section 23 (1) (a) provides as follows: "23.
(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub clause (a), sub clause (b) or sub clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and").
In that view of the matter, the High Court rejected the contention.
So far as the other aspect was concerned, the learned Judge expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties and therefore being a collusive one disentitled the husband to a decree for divorce.
This view was taken by the learned trial judge relying on a previous decision of the High Court.
Mr. Justice Goyal of the High Court felt that this view required reconsideration and he therefore referred the matter to the Chief Justice for constitution of a Division Bench of the High Court for the consideration of this question.
309 The matter thereafter came up before a Division Bench of Punjab and Haryana High Court and Chief Justice Sandhawalia for the said court on consideration of different authorities came to the conclusion that a consent decree could not be termed to be a collusive decree so as to disentitle the petitioner to decree for restitution of conjugal rights.
It may be mentioned that before the Division Bench of behalf of the appellant wife, counsel did not assail the factual finding of the Trial Court that there was no co habitation after the decree for restitution of conjugal rights nor did he press the first ground of defence namely that the appellant could not take advantage of his 'wrong ' because of having refused cohabitation in execution of the decree.
However, the ground that the decree for restitution of conjugal rights was in a sense collusive decree was pressed before the Division Bench.
In view of the Full Bench decision of the Punjab and Haryana High Court in the case of Joginder Singh vs Smt.
Pushpa wherein the majority of the Judges of the Full Bench held that a consent decree in all cases could not be said to be a collusive decree and where the parties had agreed to passing of a decree after attempts had been made to settle the matter, in view of the language of Section 23 of the court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree.
Section 23 sub section (2) provides as follows: "(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties: Provided that nothing contained in this sub section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub section (1) of section 13.
" In this case from the facts on record it appears that there was no collusion between the parties.
The wife petitioned against the husband on certain allegations, the husband denied these allegations.
He stated that he was willing to take the wife back.
A decree on that basis was passed.
It is difficult to find any collusion as such in 310 the instant case.
Apart from that we are in agreement with the majority of the learned judges of the Division Bench of Punjab and Haryana High Court in the case of Joginder Singh vs Smt.
Pushpa (supra) that all cases of consent decrees cannot be said to be collusive.
Consent decrees per se in matrimonial matters are not collusive.
As would be evident from legislative intent of Section 13B that divorce by mutual consent is no longer foreign to Indian law of divorce but of course this is a subsequent amendment and was not applicable at the time when the decree in question was passed.
In the premises we accept the majority view of the Division Bench of Punjab and Haryana High Court on this point.
In this appeal before this Court, counsel for the wife did not challenge the finding of the Division Bench that the consent decree as such was not bad or collusive.
What he tried to urge before us was that in view of the expression 'wrong ' in Section 23(1) (a) of the Act, the husband was disentitled in this case to get a decree for divorce.
It was sought to be urged that from the very beginning the husband wanted that decree for divorce should be passed.
He therefore did not deliberately oppose the decree for restitution of conjugal rights.
It was submitted on the other hand that the respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully well that this decree he would not honour and thereby he misled the wife and the Court and thereafter refused to cohabitate with the wife and now, it was submitted, cannot be allowed to take advantage of his 'wrong '.
There is, however, no whisper of these allegations in the pleading.
As usual, on this being pointed out, the counsel prayed that he should be given an opportunity of amending his pleadings and, the parties, with usual plea, should not suffer for the mistake of the lawyers.
In this case, however, there are insurmountable difficulties.
Firstly there was no pleading, secondly this ground was not urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the wife in the trial court and before the Division Bench were contrary to the facts now sought to be urged in support to her appeal.
The definite case of the wife was that after the decree for restitution of conjugal rights, the husband and wife cohabitated for two days.
The ground now sought to be urged is that the husband wanted the wife to have a decree for judicial separation by some kind of a trap and then not to cohabitate with her and thereafter obtain this decree for divorce.
This would be opposed to the facts alleged in the defence by the wife.
Therefore 311 quite apart from the fact that there was no pleading which is a serious and fatal mistake, there is no scope of giving any opportunity of amending the pleadings at this stage permitting the wife to make an inconsistent case.
Counsel for the appellant sought to urge that the expression 'taking advantage of his or her own wrongs ' in clause (a) of sub section 23 must be construed in such a manner as would not make the Indian wives suffer at the hands of cunning and dishonest husbands.
Firstly even if there is any scope for accepting this broad argument, it has no factual application to this case and secondly if that is so then it requires a legislation to that effect.
We are therefore unable to accept the contention of counsel for the appellant that the conduct of the husband sought to be urged against him could possibly come within the expression 'his own wrongs ' in section 23(1) (a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the courts below.
Further more we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter.
Our attention, however, was drawn to a decision of a learned single judge of the Andhra Pradesh High Court in the case of T. Sareetha vs Venkata Subbaiah.
In the said decision the learned judge had observed that the remedy of restitution of conjugal rights provided for by Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution.
Hence, according to the learned judge, Section 9 was constitutionally void.
Any statutory provision that abridged the rights guaranteed by Part III of the Constitution would have to be declared void in terms of Article 13 of the Constitution.
According to the said learned judge, Article 21 guaranteed right to life and personal liberty against the State action.
Formulated in simple negative terms, its range of operation positively forbidding the State from depriving any person of his life or personal liberty except according to the procedure established by law was of far reaching dimensions and of overwhelming constitutional significance.
Learned judge observed that a decree for restitution of conjugal rights constituted the grossest form of violation of any individual right to privacy.
According to the learned judge, it denied the woman her free choice whether, when and how her body was to 312 become the vehicle for the procreation of another human being.
A decree for restitution of conjugal rights deprived, according to the learned judge, a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be sensed.
The woman loses her control over her most intimate decisions.
The learned judge therefore was of the view that the right to privacy guaranteed by Article 21 was flagrantly violated by a decree for restitution of conjugal rights.
The learned judge was of the view that a wife who was keeping away from her husband because of permanent or even temporary estrangement cannot be forced, without violating her right to privacy to bear a child by her husband.
During a time when she was probably contemplating an action for divorce, the use and enforcement of Section 9 of the said Act against the estranged wife could irretrievably alter her position by bringing about forcible conception permanently ruining her mind, body and life and everything connected with it.
The learned judge was therefore clearly of the view that Section 9 of the said Act violated Article 21 of the Constitution.
He referred to the Scarman Commission 's report in England recommending its abolition.
The learned judge was also of the view that Section 9 of the said Act, promoted no legitimate public purpose based on any conception of the general good.
It did not therefore subserve any social good.
Section 9 of the said Act was, therefore, held to be arbitrary and void as offending Article 14 of the Constitution.
Learned judge further observed that though Section 9 of the said Act did not in form offend the classification test, inasmuch as it made no discrimination between a husband and wife, on the other hand, by making the remedy of restitution of conjugal rights equally available both to wife and husband, it apparently satisfied the equality test.
But bare equality of treatment regardless of the inequality of realities was neither justice nor homage to the constitutional principles.
He relied on the decision of this Court in the case of Murthy Match Works, Etc.
vs The Assistant Collector of Central Excise Etc.
The learned judge, however, was of the opinion based on how this remedy was found used almost exclusively by the husband and was rarely resorted to by the wife.
The learned judge noticed and that is a very significant point that decree for restitution of conjugal rights can only be enforced under Order 21 Rule 32 of Code of Civil Procedure.
He also referred to certain trend in the American law and came to the 313 conclusion that Section 9 of the said Act was null and void.
The above view of the learned single judge of Andhra Pradesh was dissented from in a decision of the learned single judge of the Delhi High Court in the case of Smt.
Harvinder Kaur vs Harmander Singh Choudhry.
In the said decision, the learned judge of the Delhi High Court expressed the view that Section 9 of the said Act was not violative of Articles 14 and 21 of the Constitution.
The learned judge noted that the object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity.
The leading idea of Section 9 was to preserve the marriage.
From the definition of cohabitation and consortium, it appeared to the learned judge that sexual intercourse was one of the elements that went to make up the marriage, but that was not the summum bonum.
The courts do not and can not enforce sexual intercourse.
Sexual relations constituted an important element in the conception of marriage, but it was also true that these did not constitute its whole content nor could the remaining aspects of matrimonial consortium be said to be wholly unsubstantial or of trivial character.
The remedy of restitution aimed at cohabitation and consortium and not merely at sexual intercourse.
The learned judge expressed the view that the restitution decree did not enforce sexual intercourse.
It was a fallacy to hold that the restitution of conjugal rights constituted "the starkest form of governmental invasion" of "marital privacy".
This point namely validity of Section 9 of the said Act was not canvassed in the instant case in the courts below counsel for the appellant, however, sought to urge this point before us as a legal proposition.
We have allowed him to do so.
Having considered the views of the learned single judge of the Andhra Pradesh High Court and that of learned single judge of Delhi High Court, we prefer to accept on this aspect namely on the validity of Section 9 of the said Act the views of the learned single judge of the Delhi High Court.
It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "Conjugal".
Shorter Oxford English Dictionary, 3rd Edn.
I page 371 notes the meaning of 'conjugal ' as "of or pertaining to marriage or to husband and wife in their relations to each other".
In the Dictionary of English Law, 1959 Edn.
at page 453, Earl Jowitt defines 'conjugal rights ' thus: 314 "The right which husband and wife have to each other 's society and marital intercourse.
The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, section 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (s.22).
Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute.
Such a right is inherent in the very institution of marriage itself.
See in this connection Mulla 's Hindu Law 15th Edn.
p. 567 Para 443.
There are sufficient safeguards in Section 9 to prevent it from being a tyranny.
The importance of the concept of conjugal rights can be viewed in the light of Law Commission 71st Report on the "Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus: "Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one 's offspring.
Living together is a symbol of such sharing in all its aspects.
Living apart is a symbol indicating the negation of such sharing.
It is indicative of a disruption of the essence of marriage "breakdown" and if it continues for a fairly long period, it would indicate destruction of the essence of marriage "irretrievable breakdown".
Section 9 only is a codification of pre existing law.
Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an 315 injuction.
Sub rule (1) of Rule 32 is in these terms: "Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injuction by his detention in the civil prison, or by the attachment of his property, or by both.
" It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights the sanction is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property.
So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal rights where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for.
This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably.
It serves a social purpose as an aid to the prevention of break up of marriage.
It cannot be viewed in the manner the learned single judge of Andhra Pradesh High Court has viewed it and we are therefore unable to accept the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view.
Another decision to which our attention was drawn is also a Bench decision of the Andhra Pradesh High Court in the case of Geeta Laxmi vs G.V.R.K.
Sarveswara Rao.
There on the admitted 316 misconduct of the husband is not only in not complying with the decree for restitution of conjugal rights but ill treating the wife and finally driving her away from the house, it was held that the husband was not entitled to a decree under Section 13(1A) of the said Act in view of the wrong as contemplated under Section 23(1) (a) of the Act.
The facts of that case were entirely different from the facts of the instant case before us.
There is no such allegation or proof of any ill treatment by the husband or any evidence of the husband driving the wife out of the house.
In that view of the matter, this decision cannot be of any assistance to the appellant in the instant case.
Counsel for the appellant, however, contended before us that in the social reality of the Indian society, a divorced wife would be materially at a great disadvantage.
He is right in this submission.
In view, however, of the position in law, we would direct that even after the final decree of divorce, the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage.
Separate maintenance should be paid for the wife and the living daughter.
Until altered by appropriate order on application on proper materials such maintenance should be Rs. 200 per month for the wife appellant and Rs. 300 per month for the daughter Menka.
Wife would be entitled to such maintenance only until she re marries and the daughter Menka to her maintenance until she is married.
Parties will be at liberty to ask for variation of the amounts by proper application on proper materials made before Sub judge Ist Class Jullunder.
The respondent would pay costs of this appeal to appellant assessed at Rs. 1500.
The appeal is dismissed with the aforesaid directions.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary:
The wife appellant filed a suit against the husband respondent under Section 9 of the , for restitution of conjugal rights.
Though the respondent contested the petition contending that he had neither turned the appellant out from his house nor withdrawn from her society later as he made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by the Sub Judge for the restitution of conjugal rights between the parties.
After a lapse of a year, the respondent husband filed a petition under Section 13 of the Act against the appellant for divorce on the ground that though one year had lapsed from the date of passing the decree for restitution of conjugal rights no actual co habitation had taken place between the parties.
The appellant filed her reply contending that she was taken to the house of the husband by her parents one month after the decree and that the husband kept her in the house for two days and then she was again turned out.
It was further alleged that an application under Section 28A filed in the Subordinate Court was pending.
304 The District Judge after considering the evidence of the civil and criminal proceedings pending between the parties, came to the conclusion that there had been no resumption of cohabitation between the parties and that in view of the provisions of Section 23 and in view of the fact that the previous decree was a consent decree and that at the time of the passing of the said decree, as there was no provision like Section 13B i.e. divorce by mutual consent '; held that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
The respondent filed an appeal.
A Single Judge of the High Court following the decision of this Court in Dharmendra Kumar vs Usha Kumari ; , held that it could not be said that the husband was taking advantage of his 'wrongs ', but however expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties, and therefore being a collusive one disentitled the husband to a decree for divorce, and referred the matter to the Chief Justice for constitution of a Division Bench for consideration of the question.
The Division Bench held following Joginder Singh vs Smt.
Pushpa, AIR 1969 Punjab and Haryana page 397 that a consent decree could not be termed to be a collusive, decree so as to disentitle the petitioner to a decree for restitution of conjugal rights, and that in view of the language of Section 23 if the Court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree.
The appeal was allowed, and the husband granted a decree of divorce.
In the appeal to this Court it was contended on behalf of the wife appellant that : (a) in view of the expression 'wrong ' in section 23(1) (a) of the Act, the husband was disentitled to get a decree for divorce, and (b) Section 9 of the Act was arbitrary and void as offending Article 14 of the Constitution.
Dismissing the Appeal, ^ HELD: (1) In India conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute.
Such a right is inherent in the very institution of marriage itself.
There are sufficient safeguards in Section 9 of the to prevent it from being a tyranny.
[314 D E] 305 2.
Section 9 is only a codification of pre existing law.
Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction.
[314 H] 3.
Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view.
[315 G] T. Sareetha vs Venkata Subbaiah, A.I.R. 1983 Andhra Pradesh page 356, over ruled.
Harvinder kaur vs Harmander Singh Choudhry, A.I.R. 1984 Delhi, page 66, approved.
It is significant that unlike a decree of specific performance of contract; a decree for restitution of conjugal rights, where the disobedience to such a decree is willful i.e. is deliberate, might be enforced by attachment of property.
Where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only the properties have to be attached, is provided for.
This is so to enable the Court in appropriate cases when the Court has decreed restitution for conjugal rights to offer inducement for the husband or wife to live together and to settle up the matter amicably.
It serves a social purpose, as an aid to the prevention of break up of marriage.[315 C F] 5.
(i) Even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage.
Separate maintenance should be paid for the wife and the living daughter.
Wife would be entitled to such maintenance only until she remarries and the daughter to her maintenance until she is married.
[316 C; E] (ii) Until altered by appropriate order on application or proper materials, such maintenance should be Rs. 200 per month for the wife, and Rs. 300 per month for the daughter.
[316 D]


judgement:
Civil Appeal No. 1746 of 1980.
Appeal by Special leave from the Judgment and Order dated the 4th September, 1979 of the Punjab and Haryana High Court in Civil Writ Petition No. 2780 of 1979.
N.D. Garg, S.K. Bisaria and T.L. Garg for the appellant.
Girish Chandra for Respondent No. 3.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
In April 1962, the appellant was appointed as a clerk in the Hoshiarpur Central Co operative Bank Ltd., which is respondent 3 to this appeal.
On August 10, 1976 he was transferred as 'Branch Manager ' of the Dholbaha branch of the Bank.
On October 22, 1977 one Labh Singh s/o Harnam Singh opened an account in the Dholbaha Branch under an introduction given by one Bahram Singh.
Two days later, Labh Singh deposited in that account a draft in the sum of Rs. 5,000 issued by the Royal Bank of Canada on the Chartered Bank, New Delhi.
The amount due on the draft was credited by the Bank in Labh Singh 's account on November 14.
On that very day, Labh Singh withdrew a sum of Rs. 2,500 from his account.
Three days later, he withdrew the remaining amount of Rs. 2,500.
Soon thereafter a person claiming to be the real Labh Singh in whose favour the draft was issued by the Royal Bank of Canada, complained to the Chartered Bank, New Delhi, that the draft was stolen and that the money due thereon was fraudulently collected by the person in whose name an account was opened in the Dholbaha branch.
On November 10, 1978, the Executive Committee of respondent 3 Bank resolved that an enquiry be held for fixing responsibility in the matter of the fraudulent encashment of the draft.
The enquiry was held by the Chief Executive officer, Satish Chander Dutt, who was of the rank of the Assistant Registrar in the Co operative department.
As a result of the report submitted by him, the appellant was dismissed from service on December 30, 1978.
The demand raised by the appellant in regard to his dismissal was referred by the Government of Punjab to the Conciliation 319 officer, who recommended that the appellant 's case should be forwarded for adjudication on the question whether his dismissal from service was justified.
The Labour Commissioner of Punjab, exercising the powers of the State Government, declined to refer the dispute for adjudication on the ground that the appellant was not a workman.
The appellant filed a Writ Petition in the High Court of Punjab and Haryana, challenging the decision of the Labour Commissioner, but that Writ Petition was dismissed summarily.
The appellant has filed this appeal by special leave, challenging the decision of the High Court and of the Labour Commissioner.
The State of Punjab and the Labour Commissioner are respondents 1 and 2 to this appeal.
The grievance made by Shri N. D. Garg, who appears on behalf of the appellant, that the Labour Commissioner ought to have given reasons in support of his decision, is justified.
All that the Labour Commissioner has stated in the order is that the post held by the appellant did not fall "within the category of workman".
This, really, is the conclusion to which the Labour Commissioner came but no reasons are given to justify that conclusion.
We are of the opinion that the Labour Commissioner ought to have given reasons why he came to the conclusion that the appellant is not a "workman" within the meaning of section 2 (s) of the .
We could have remanded the matter to the Labour Commissioner asking him to state his reasons why the appellant is not a workman but, that will entail delay.
Instead, it is advisable from the point of view of not only the appellant but the Bank also that a deference is made either to the Labour Court or to the Industrial Tribunal under section 12 (5) of the , for adjudication of the question as to whether the dismissal of the appellant from the services of the Bank is legal and justified.
Accordingly, we direct that the 2nd respondent, the Laboure Commissioner, Chandigarh, to whom the State Government has delegated its powers under section 12 of the Act shall make a reference to either of the two authorities as he considers proper.
At one stage, we wanted to decide for ourselves the question as to whether the appellant is workman within the meaning of section 2(s) of the .
Considering the time that has gone by, we wish that we could have decided that question but, on the material before us, we find it difficult to do so.
The case of the appellant is that he is a mere matriculate who now possesses a some 320 what exalted and misleading designation of a 'Branch Manager. ' According to him, there are 58 Branches of the Bank in the District of Hoshiarpur, in 29 out of which there are only two officers, one of whom is called the Branch Manager and the other the Cashier.
He contends that the Branch Manager has no administrative or discretionary powers to exercise and is not employed in a supervisory capacity.
His case is that he is a clerk mis called the Branch Manager.
The contention of respondent 3 Bank, on the other hand, is that not only was the appellant 's remuneration in excess of Rs. 500 per mensem but, being employed in a supervisory capacity, he exercised functions mainly of a managerial nature.
It is alleged that he was vested with the power of superintending the working of the office, maintaining registers, sanctioning loans, receiving deposits, borrowing within the limits sanctioned by the Registrar, incurring contingent expenditure, attending meetings of the Board of Directors, the Executive Committee and other Committees constituted under the bye laws and certifying copies of entries in the banker 's books.
The grievance of the appellant is that the Bank did not raise any contention before the Labour Commissioner that he was not a workman within the meaning of the Act with the result that, he had no opportunity to meet that case.
The parties have included in the paper book before us some material bearing on that question but it will be unsatisfactory to decide that question without proper evidence.
After all, the question as to whether the appellant is a 'workman ' is basically a question of fact.
That is why, on the basis of the stray material before us, we do not consider it advisable to decide that question.
When this appeal was argued before us, a prosecution was pending in the Court of the learned Judicial Magistrate, Hoshiarpur, in which three persons were charged for impersonation and cheating in connection with the fraudulent encashment of the draft which led to the dismissal of the appellant.
The appellant was not only not included in the array of the accused in that prosecution but the judgment of the learned Magistrate dated August 19, 1981 shows that during the course of investigation, it was found that the appellant was not responsible for the fraud.
In fact, the appellant was examined as prosecution witness No. 4 in that case.
Two out of the three accused were discharged by the learned Magistrate while accused No. 1, Sham Lal, was convicted under sections 419 and 420 of the 321 Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500.
At the instance of the Bank, a reference was made to an Arbitrator under section 55 of the Punjab Co operative Societies Act, 1961, for deciding the question whether the appellant is liable to repay the amount of Rs. 5,000 to the Bank, which was fraudulently withdrawn by Labh Singh.
By an Award dated November 23, 1982 the Arbitrator dismissed the reference, holding that the appellant was not responsible for the fraudulent encashment of the draft.
The Arbitrator observed that the Bank could recover the amount from Sham Lal, who was convicted in the criminal proceedings, but not from the appellant.
We have referred to these two matters, the prosecution and the arbitration proceedings, in order that the Bank may examine whether it is not possible to drop the proceedings against the appellant and take him back in employment.
If the Bank finds that the appellant was merely negligent in the discharge of his duties as a Branch Manager, it may consider whether the appellant could be taken back in employment without the payment of full back wages.
For these reasons, we allow the appeal and direct respondent No. 2, the Labour Commissioner, Chandigarh, to make a Reference under section 12 of the , as directed by us.
The reference shall be make forthwith and it shall be disposed of within two months after its receipt.
There will be no order as to costs.
M.L.A. Appeal allowed.

summary:
The appellant was dismissed from the post of "Branch Manager" by respondent No. 3, Bank, after an inquiry relating to fraudulent encasement of a draft by one Labh singh.
His demand in regard to his dismissal, was referred by the Govt.
of Punjab to the Conciliation Officer, who recommended that the appellant 's case should be forwarded for adjudication on the question whether his dismissal from service was justified.
The Labour Commissioner, exercising the powers of the State Government, declined to refer the dispute to the Labour Court for adjudication but without giving any reasons for his conclusion that the appellant was not a "workman".
The appellant challenged before the High Court the decision of the Labour Commissioner in writ petition which was dismissed summarily.
Hence this appeal.
The grievance of the appellant is that the Labour Commissioner ought to have given reasons in support of his decision.
Allowing the appeal, ^ HELD: 1.
All that the Labour Commissioner has stated in the order is that the post held by the appellant did not fall within the category of "workman" but no reasons are given to justify that conclusion.
He ought to have given reasons why he came to the conclusion that the appellant is not a "workman" within the meaning of section 2(s) of the .
[319 D E] 2.
In the instant case, the Court keeping in view that remanding the matter to the Labour Commissioner for giving his reasons will entail delay, directed the Labour Commissioner, Chandigarh to make a reference either to the Labour Court or to the Industrial Tribunal section 12(5) of the Industrial 318 Disputes Act 1947 for adjudication of the question as to whether the dismissal of the appellant from the service of the Bank is legal and justified.
[319 E E]


judgement:
Appeal No. 213 of 1956.
Appeal from the judgment and decree dated Septem.
ber 22, 1954, of the Allahabad High Court in Special Appeal No. 8 of 1954 arising out of the judgment and decree dated January 6, 1954 of the said High Court in Civil Miscellaneous Writ Petition No. 651 of 1953.
section P. Sinha and section N. Mukherjee, for the appellant.
G. G. Mathur and C. P. Lal, for respondent No. 2.
756 1957.
March 20.
The Judgment of the Court was delivered by KAPUR J.
The ground on which the appellant company seeks to have the order of the Industrial Tribunal set aside is that no industrial 'dispute existed within the meaning of the expression as used in the U.P. (XXVIII of 1947) (hereinafter called the U.P. Act) and consequently the U.P. Government had no power to make the reference in question.
I Industrial Dispute ' is defined in section 2 of the U.P. Act as having the same meaning assigned to it as in section 2 of the (here inafter termed the Central Act).
There this expression has been defined in section 2 (k) to mean : " any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with the conditions of labour, of any person.
" The controversy between the parties arose in the following circumstances: Tajammul Hussain, respondent No. 3 was employed as a lino typist by the appellant company.
He was dismissed on May 8, 1952, on, allegations of incompetence under r. 12 (ii) of the Standing Orders of the appellant company.
It was alleged that the dismissal of Respondent No. 3 was welcomed by his co workers and other workmen in the employ of the appellant company and they made no grievance of it, nor did they espouse his cause.
The case of respondent No. 3 was not taken up by any union of workers of the appellant company nor by any of the unions of workmen employed in similar or allied trades, but the U.P. Working Journalists Union, Lucknow, with which respondent No. 3 had no connection whatsoever, took the matter to the Conciliation Board, Allahabad.
Ultimately, the U.P. Government made a reference to the Industrial Tribunal on June 3, 1953, by notification; the prefatory words of which are: 757 " Whereas an industrial dispute in respect of the matters hereinafter specified exists between the concern known as Newspapers Ltd., Allahabad and its workmen; and whereas in the opinion of the Governor it is necessary so to do for the maintenance of public order and I for maintaining employment.
One of the questions referred was: " ' Whether the services of Sri Tajammul Hussain Lino Operator were wrongfully terminated by the Management On February 13, 1953, the State Industrial Tribunal at Allahabad decided in favour of respondent No. 3 and ordered his reinstatement " without break of continuity of service " and also ordered the payment of his wages for the period during which he "remained dismissed".
An appeal was taken by the appellant company to the Labour Appellate Tribunal, who by its ,order dated February 24, 1953, affirmed the order of the Tribunal with costs.
The appellant company then moved a petition in the Allahabad High Court under article 226 of the Constitution but this was dismissed by Bhargava J. on January 6, 1954, and a Special appeal against this judgment was also dismissed.
The appellant company has come up in appeal with a certificate under article 133 (1) (c) of the Constitution.
The controversy which arises in this case is whether a dispute between an employer and a single workman falls within the definition of I industrial dispute ' as used in the U.P. Act.
In order to resolve this controversy, it is necessary to refer to the scheme of the U.P. Act and the relevant rules made thereunder.
The preamble of the Act runs: " to provide for powers to prevent strikes and look outs, and for the settlement of industrial disputes and other incidental matters ".
Section 3 of the Act confers certain powers on the State Government for the purpose of prevention of strikes, lock outs, etc.
The portion of this section relevant for the purpose of this appeal reads as follows: If in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or convenience, or the maintenance of public 758 order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or special order, make provision (c) for appointing industrial courts; (d) for referring any industrial dispute for conciliation or adjudication in the manner provided in the order (g) for any incidental or supplementary matters, which appear to the State Government necessary or expedient for the purpose of the order; " Under section 23 of the Act, the State Government can make rules consistent with the Act for giving effect to the provisions of the Act.
Under clauses (b), (c), (d) and (g) of section 3 and under section 8 of the U.P. Act, rules governing Conciliation Boards and Industrial Tribunals in U.P. were promulgated by Notification No. 615 (LL) XVIII 7 (LL) 1951, dated Lucknow, March 15, 1951.
Rule 4 deals with the reference of disputes to Conciliation Boards.
The relevant portions of this rule are: ,,Any workman or an employer or a registered association or trade union of employers or registered trade union of workmen or any federation of such associations or trade unions or where no registered trade union of workmen exists in any particular concern or industry, the representatives not more than 5 in number of the workmen in that concern or the industry, duly elected in this behalf by a majority of the workmen employed in that concern or industry, as the case may be, at a meeting held for the purpose, may by application in writing move a Conciliation Officer of the area for settlement of any industrial dispute by conciliation.
The application shall clearly state the industrial dispute or disputes.
" Rule 5 deals with proceedings and the power of inclusion of other undertakings.
The proviso to this rule is: " Provided that if the Board of its own motion or on an application made to it, is of the opinion that any question involved in any such dispute or matter affects or is likely to affect more than one workman in the same concern or industry or business or more 759 than one concern in the same industry or business, constituted within the jurisdiction of the Conciliation Board, it shall include in its proceedings relating to such dispute or order every such workman or concern or where there is a registered trade union covering the, majority of such concerns of workmen, such trade unions." Rules 7 to 11 A deal with Industrial Tribunals.
Rule 10 gives power to the Government to make a reference of any dispute to the Industrial Tribunal either on its own motion or after considering the Report of the Conciliation Board made under r. 6.
Rule 15(1) which deals with the representation of parties to the dispute provides: " The parties may in their discretion be represented before a Board or Tribunal or an Adjudicator (1) In the case of a workman by (a) an officer of a registered trade union of which he is a member; (b) an officer of a federation of trade unions to which the trade union referred to in sub clause (a) is affiliated ; (c) Where the workman is not a member of any registered trade union, by an officer of any registered trade union connected with, or by any other workman employed in the same industry or business, if so authorised in writing by the workman.
" The language of section 36(1) of the Central Act is almost identical.
Rule 27 prohibits strikes and look outs; and r. 28 gives finality and conclusiveness to the orders made or directions given.
The use of the word 'workmen ' in the plural in the definition of industrial dispute ' does not by itself exclude the applicability of the Act to an individual dispute because under a. 13(2) of the General Clauses Act subject. . . (2) words in the singular shall include the plural and vice versa," 760 But in order to get its true import it is necessary to view the enactment in retrospect, the reasons for enacting it, the evils it was to end and the objects it was to subserve.
The Act has therefore to be viewed as a whole and its intention determined by construing all the constituent parts of the Act together and not by taking detached sections or to take one word here and another there.
Exposition " ex visceribus actus " is applicable.
Lincoln College 's Case (1).
So construed the provisions of the U.P. Act show that the machinery of the Act has been devised with the object of maintaining industrial peace so as to prevent interference with public safety or public order or with the maintenance of supplies and services essential to the life of the community or of employment.
The Act is based on the necessity of achieving collective amity between labour and capital by means of conciliation, mediation and adjudication.
The object of the Act is the prevention of industrial strife, strikes and lock outs and the promotion of industrial peace and not to take the place of the ordinary tribunals of the land for the enforcement of contracts between an employer and an individual workman.
Thus viewed the provisions of the Act lead to the conclusion that its applicability to an individual dispute as opposed to dispute involving a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute, viz., the workmen as a body or a considerable section of them make common cause with the individual workman and thus create conditions contemplated by section 3 of the U.P. Act which is the foundation of State Governmental action under that Act.
The other provisions which follow that section only subserve the carrying out of the objects of the Acts specified therein.
The use of the word workman in the singular in rr. 4, 5 and 15 forms the basis of the argument for the inclusion of an individual dispute in the expression industrial dispute.
But this suffers from more infirmities than one.
Rule 4 authorises a workman to (1) ; 761 apply to a Conciliation Officer for the settlement of an industrial dispute.
The meaning sought to be given to this word is inconsistent with the language of the latter part of that rule; or where no registered trade union of workmen exists in any concern or industry, the representatives not more than 5 in number of the workmen. . duly elected.
" The first proviso to r. 5 is no surer foundation for the argument because in the context it can only be interpreted to mean that, should there be an industrial dispute then all workmen who may individually be the cause of the dispute or are to be affected by its decision should get notices of the proceedings.
Similarly, r. 15 only provides for the representation of " a workman " even if he is only one by an officer of a trade union or other person mentioned in the rule.
Besides, section 13(2) of the General Clauses Act as to the interpretation of the singular and the plural consider ably reduces the efficacy of the argument, which altogether loses its force in view of r. 26 which is as follows : " During the pendency of any conciliation proceeding or proceedings before the Tribunal or an Adjudicator in respect of any dispute an employer shall not (a) alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings or (b) discharge or punish, whether such punishment is by dismissal or otherwise, any workman concerned in such dispute save with the express permission in writing of a Conciliation Officer of the area concerned irrespective of the fact whether the dispute is pending before a Board or the Tribunal or an Adjudicator.
" The use of the words " workmen" and " workman in the above rule is indicative of the intention of the Act being applicable to collective disputes and not to individual ones, and this is fortified by the finality and the binding effect to awards by r. 28 and more speciall.v by a. 18 of the Central Act which makes 98 762 awards binding not only on the individuals present or represented but on all the workmen employed in the establishment and even on future entrants.
Another objection to reading these rules in the manner above suggested is that it would be tantamount to enlarging the scope of the expression 'industrial dispute ' and the powers conferred on the State Government under section 3 of the U. P. Act.
The executive cannot under the power of framing rules and regulations clothe itself with powers which the Statute itself does not give and which are inconsistent with the interpretation put on the expression 'industrial dispute '.
The cardinal rule in regard to promulgation of bye laws or making rules is that they must be legi fidei rationi consona, and therefore all regulations which are contrary or repugnant to statutes under which they are made are ineffective.
If the expression I industrial dispute ' as ordinarily understood and, construed conveys a dispute between an employer on the one hand and the workmen acting collectively on the other, then the definition of those words cannot be widened by a statutory rule or regulation promulgated under the Statute or by Executive fiat.
I The notification in the present case was under section 3(c), (d) and (g) and under section 8 which deal with (c) the appointment of industrial Courts, (d) referring any industrial disputes and (g) incidental or supplementary matters.
The Executive may in the exercise of these powers make such regulations which are necessary but under that garb it cannot extend the definition of the term industrial disputes, nor is this extended meaning necessary to subserve the objects of the Act.
I In our opinion therefore rules 4, 5 and 15 of the Rules cannot be a valid foundation for sustaining the argument raised that an individual dispute was within the definition of 'industrial dispute '.
Ordinarily, an award of a tribunal binds or affects the rights of parties to the proceedings but awards of Industrial Tribunals have extended implications and may affect the rights of all workmen of a concern or undertaking end even the future entrants.
This doctrine of 763 representation which enlarges the meaning of 'parties ' in the U.P. & Central Acts is an essential idea associated with industrial disputes and support , collectiveness as opposed to individualism.
See Latham C. J. in Metal Trades Employers Association vs Amalgamated Engineering Union(1).
Then there is the prohibition under r. 26 of the U.P. Act and section 33 of the Central Act against any change in conditions of service during the pendency of the proceedings the object of which is to ensure discipline and industrial truce during that period which also supports the basic idea of collectiveness in 'industrial disputes '.
In Central Provinces Transport Services Ltd. V. Raghunath Gopal Patwardhan (2), this Court observed that decided cases in India disclose three views as to the meaning of 'industrial dispute ' (i) a dispute between an employer and a single workman cannot be an 'industrial dispute '; (ii) it can be an industrial dispute; and (iii) it can not per se be an industrial dispute but may become one if taken up by a trade union or a number of workmen.
This Court discussed the scope of industrial dispute as defined in section 2(k), of the Central Act, and after referring to the conflict of judicial opinion as to its applicability to the case of a dispute between an employer and a single workman further observed: of the last of the three views stated above, and there is considerable reason behind it.
Notwithstanding that the language of section 2(k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the does appear to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the union or a number of workmen." (1) ; (2) ; 764 Although the question did not directly arise, this Court in D .
N. Banerji vs P. R. Mukherjee and others(1) discussed the meaning of the expression 'industrial dispute ' and was of the opinion that it "conveys the meaning to the ordinary mind that the dispute must be such as would affect large groups of workmen and employers ranged on opposite sides.
But at the same time, having regard to the modern conditions of society where capital an labour have organised themselves into groups for the purpose of fighting their disputes and settling them on the basis of the theory that in union is strength, and collective bargaining has come to stay, a single employee 'section case might develop into an industrial dispute, when as often happens, it is taken up by the trade union of which he is a member and there is a concerted demand by the employees for redress".
This view is in consonance with the basic idea underlying modern industrial legislation.
The interpretation given to the corresponding phrase "trade dispute" in English law and "industrial dispute" in Australian Law also accords with this view and in the absence of an express provision to the contrary or necessary intendment there is no reason to give a different interpretation to the expression in the Indian Statute.
According to English decisions an individual dispute of a workman is not included in 'trade dispute ' which corresponds to 'Industrial Dispute ' in the Indian Act.
In the English Trade Disputes Act of 1906 and 1919 as also in Reg.
58 AA of the Defence (General) Regulation, 1939, 'trade dispute ' was defined in language very similar to 'industrial dispute ' in the Indian Statute.
Dealing with a trade dispute, Lord Shaw in Conway v, Wade (2) said,: " But I cannot see my way to hold that "trade dispute" necessarily includes accordingly every case of person al difference between any one workman and one or more of his fellows.
It is true that after a, certain stage even such a dispute, although originally grounded, (1) ; , 310.
(2) , 520.
765 it may be, upon personal animosity, may come to be a subject in which sides are taken, and may develop into a situation of a general aspect containing the characteristics of a trade dispute; but until it reaches that stage I cannot hold that a trade dispute necessarily exists." Lord Wright observed in National Association of Local Government Officers vs Bolton Corporation (1) " I think the same may be said of the Industrial Courts Act and of reg.
58 AA, in both of which the word 'trade ' is used in the very wide connotation which it bears in the modem legislation dealing with conditions of employment, particularly in relation to matters of collective bargaining and the like. " Ex parte Keable Press Ltd.(2) was an instance of an individual dispute developing into a 'trade dispute ' because.
of the strike by a union to enforce the rein statement of dismissed workman.
That was how this term (trade dispute) was interpreted by the Court of Appeal in R. vs National Arbitration Tribunal(3) after taking into consideration the definition of the word 'dispute '.
In Australian cases also, without specific reference to any definition of the phrase the courts have excluded individual disputes from the scope of industrial disputes.
In Jumbunna Coal Mine vs Victorian Coal Miners Association (4), Griffths C.J. observed: " An industrial dispute exists where a considerable number of employees engaged in some branch of industry make common cause in demanding from or refusing to their employers (whether one or more) some change in the conditions of employment which is denied to them. . . . . . . . . " Similarly in Federated Saw Mills & Co. Employees of Australasia vs James Moore & Son Proprietory Ltd. (5), Griffths C.J. gave the characteristics of an industrial dispute as follows: " It is necessary at the outset to consider the meaning which the term 'industrial dispute ' conveyed (1) , 185.
(2) (3) (4) [1908] 6 C.L.R. 309, 332.
(5) ; , 487, 488.
766 in 1900 to the, minds of persons conversant with the English language. . . . "The word 'industrial denotes two qualities which distinguish them from ordinary private disputes between individuals, namely (2) that on one side at least of the dispute the disputants are a body of men acting collectively and not individually.
" Isaacs J. in George Hudson Ltd. vs Australian Timber Workers ' Union(1) stated: "The very nature of an 'industrial dispute ', as distinguished from an individual dispute, is to obtain new industrisl conditions, not merely for the specific individuals then working It is & 'battle by the claimants, not for themselves alone and not as against the respondents alone, but by the claimants so far.
as they represent their class According to Griffths C.J. "The term "industrial dispute" connotes a, real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community".
Vide Federated Saw Mills Case(2) at p. 488.
The same meaning was attached to the expression by Latham C.J. in Metal Traders Employers Association vs Amwlgamated Engineering Union(3) at p. 403: "Industrial disputes are essentially group contests there is always an industrial group on at least one side.
A claim of an individual employee against his employer is not in itself an industrial dispute We shall now refer to the Indian decisions which bear on this question.
Rajamannar C.J. in Kandan Textile Ltd. vs The Industrial Tribunal,,Madras and another(4) held that the definition of industrial dispute is wide enough to cover a dispute between an employer and an individual workman but taking into consideration section 18 of the Central Act he was of the opinion that such an extended definition cannot be given to it in section 2(k) of the Central Act.
Mack J. agreed with the decision of Rajamannar C. J. but he said that the case of an English language.
, (1) (1923] ; , 441.
(2) ; , 487, 488.
(3) ; , 403.
(4) A.I.R. 1951 Madras 616.
767 individual workman if taken up by the worker 's union makes such a dispute an industrial dispute.
In that case 1 1 items of difference were referred to the Industrial Tribunal.
, One of the items in dispute was the wrongful removal of a workman, Sundaram by name.
In the ', High Court an objection was taken to the legality of the award on the ground that no industrial dispute existed and that there was no material before the Government on the basis of which it could make a reference.
It was held that the dispute as to a single workman was not an industrial dispute.
Kandan Textile Ltd. case (1) was followed in United Commercial Bank, Ltd. vs The Commissioner of Labour, Madras (2) which was a case under section 41 of the Madras Shops and Establishments Act and the right of appeal given to an individual employee against the order of the employer dispensing with his services under section 41(2) of Madras Shops and Establishments Act was challenged on the ground that it had been taken away by the Central Act.
It was held that an individual worker had the right to appeal.
Vishwanatha Sastri J. in his judgment referred with approval to the distinction made between an individual dispute and an industrial dispute in Kandan Textile Ltd. vs Industrial Tribunal, Madras (supra).
The second view that such a dispute falls within the definition of the word "industrial dispute" is supported by a decision of a Full Bench of the Labour Appellate Tribunal Swadeshi Cotton Mills Co. Ltd. vs Their Workmen (3) There the question was mainly decided on the basis of section 33 A of the Central Act (introduced in 1950) which gives the right to an individual workman dismissed or dealt with contrary to section 33 of the Act during an industrial dispute to raise the matter before a tribunal.
The introduction of section 33 A would not alter the construction to be placed on the phrase 'industrial dispute '.
On the contrary it supports the view that an individual dispute is not comprised in that phrase.
In view of what has been said above, we are of the opinion that in so far as that case lay& down (3) 768 that a dispute raised by an individual workman as to his personal grievance is within an industrial dispute, it cannot be said to have been correctly decided.
The cases which support the third view are the following: J. Chowdhury vs M. C. Bannerjee (1) Was a case in which a lino operator was removed from service on the ground of his negligence and arrears of work.
The matter was referred to the Industrial Tribunal under the Central Act.
The Management moved the High Court under article 226 of the Constitution and section 45 of the Specific Relief Act and it was held that the Tribunal had no jurisdiction to entertain the matter as on a perusal of the various sections of the Central Act including sections 10 and 18 the dispute of an individual workman was not covered by the term industrial dispute. ' In Bilash Chandra Mitra vs Balmer Lawrie & Co. a suit was brought for the recovery of arrears of wages on the basis of an award of an Industrial Tribunal and one of the issues raised was ' whether an 'individual dispute ' fell within 'industrial dispute '.
Following the judgment in I. Chowdhury vs M. C. Bannerjee (1), Bose J. held that it did not.
Another case in which this view was held is N. 1.
Assurance Co. vs C. G. I. Tribunal (3).
There the Government referred the question of dismissal of an employee of an Assurance Co. and it was not proved that his case was taken up by the employees association.
The same view was adopted in Standard Vacuum Oil Co. vs Industrial Tribunal (4).
In Lakshmi Talkies, Madras vs Munuswami and Others (5), Balakrishna Ayyar J. held that an industrial dispute ' arises where a case of an individual workman is espoused by a union.
The same view was taken in Lynus & Co. vs Hemanta Kumar Samanta (6).
The view taken in these cases is in accord with the interpretation we have put on the expression 'Industrial dispute ' as defined in the U. P. Act or the Central Act.
(1) (2) [1953] A? C.W.N. tog.
(3) [l953] I.L.R. 32 Patna 181 (4) I.L.R. [1952] Trav.
Co. 432.
(5) [1055] L.L.J. 477. '(6) , 769 Taking into consideration the whole tenor of the Act and the decisions of this Court the decided cases to the extent that they take a contrary view, i.e., an individual dispute is comprised in an 'industrial dispute ' must unless there is something peculiar as to facts, be In spite of the fact that the making of a reference by the Government under the is the exercise of its administrative powers, that is not destructive of the rights of an aggrieved party to show that what was referred was not an 'industrial dispute ' at all and therefore the jurisdiction of the Industrial Tribunal to make the award can be questioned, even though the factual existence of a dispute may not be subject to a party 's challenge.
State of Madras vs C. P. Sarathy (1), It may also be noted that the notification issued by the U. P. Government on January 3, 1953, already quoted proceeds on the assumption that a dispute exists between the "employer and his workmen".
The points of dispute in the reference, however, comprise the wrongful termination of the service of only Tajammul Hussain, a lino operator.
The words used in the first part of the notification show that the Government was labouring under the misapprehension that this dispute was between the employer on the one hand and his workmen on the other, which, in fact it was not.
Tajammul Hussain could not be termed work , men (in the plural) nor could the U. P. Working Journalists Union be called "his workmen" nor is there any indication that the individual dispute had got transformed into an industrial dispute.
The very basis, therefore, of the reference was bad and must be held to be so.
We would, therefore, allow this appeal with costs.
Appeal allowed.
(1) , 347.

summary:
A dispute between an employer and a single workman does not fall within the definition of " industrial dispute " under the U.P. industrial Disputes Act, 1947.
But though the applicability of the Act to an individual dispute as opposed to a dispute involving a group of workmen is excluded, if the workmen as a body or a consicrerable section of them make common cause with the individual workman then such a dispute would be an industrial dispute.
755 Central Provinces Transport Service Ltd. v Raghunath Gopal Patwardhan, ; and D. N. Banerji vs P. R. Mukherjee; , , referred to.
Swadeshi Cotton Mills Co. Ltd. vs Their Workmen, (1953) I L.L.J. 757, in so far as it decided that a dispute raised by an, individual workman is within an industrial dispute, disapproved.
Case law reviewed.
The third respondent was employed as a lino typist by the appellant company but on allegations of incompetence he was dismissed from service.
His case was not taken up by any union of workers of the appellant company nor by any of the unions of workmen employed in similar or allied trades, but the U.P. Working journalists Union, Lucknow, with which the third respondent had no connection took the matter to the Conciliation Board, Allahabad, and ultimately the Government made a reference to the Industrial Tribunal by a notification in which one of the points for determination referred was as to whether the services of the third respondent were wrongfully terminated by the management.
The legality of the reference was challenged by the appellant and the question was raised as to whether a dispute between an employer and a single workman falls within the definition of "industrial dispute" under the U.P.
Held, that the reference was bad because the dispute was not between the employer on the one hand and his workmen on the other, nor could the U.P. Working journalists Union be called " his workmen ", within the meaning of the U. P.
Though the making of a reference by the Government under the Act is the exercise of its administrative powers, an aggrieved party can question the jurisdiction of the Industrial Tribunal to show that what was referred was not an industrial dispute.
State of Madras vs C. P. Sarathy, , referred to.