judgement:
Appeal No. 2435 of 1966.
Appeal from the judgment an order dated November 6, and December 6, 1962 of the Bombay High Court in First Appeal No. 453 of 1960.
3 3 5 V. section Desai.
R. G. Samant, P. C. Bhartari and J. B. Dada chanji,for the appellants.
V. M. Tarkunde, K. R. Chaudhuri.
K. Rajendra Chaudhuri and Hari Singh, for the respondents.
The Judgment of the Court was delivered by Ray, J.
This appeal is by certificate against the judgment dated 6 November/6 December, 1962 of the Bombay High Court dismissing the appellants ' suit filed on 14 September, 1959 against the respondents, inter alia, for possession of suit property.
By an indenture of lease dated 16 March, 1944 the respon dents became lessees of the appellants for a period of 5 years, from 1 March 1943 in respect of the agricultural lands belonging ,to Jivanji Jamasji Mistry 's Adarian Charities.
The appellants terminated the tenancy of the respondents by notice to quit dated 25 October, 1955.
The notice to quilt was effective on the expiry of 31 March, 1957.
The appellants without prejudice to the October, 1955 notice gave another notice to quilt dated 10 June, 1958 to deliver possession within 7 days.
The respondents contended that they were protected tenants under the Bombay Tenancy Acts 1939 and 1948 and, therefore,.
the appellants would not be entitled to possession.
The trial Court held that after 31 March, 1957 the respon dents continued in possession and the appellants allowed the respondents to continue in possession by extending the term of the lease at least for one year up to 31 March, 1958.
The trial Court hold that the notice dated 25 October, 1955 terminating the tenancy with effect from 31 March, 1957 could not therefore be relied on by the appellants.
As to the notice dated 10 June, 1958 the trial Court held that it was not a valid notice and a proper three months notice expiring with the year on 31 March, 'shouldhave.
been given by the appellants.
On appeal the High Court held that it was not necessary to consider whether the respondents had acquired the status of protected tenants.
The High Court held that the lease which was operative from 1 March, 1943 for a period of 5 years was under section 23(1)(b) of the Bombay Tenancy Act, 1939 as amended, in 1946 deemed to be for a period of not less than 10 years.
The lease was therefore effective up to 28 February, 1953.
Meanwhile the Bombay Tenancy and Agricultural Lands Act, 1948 came into force on 28 December, 1948.
The High Court held that section 5 of the Bombay Act, 1948 as it originally stood was in terms similar to section 23 of the 1939 Act but as a result of amendment of section 5 of the 1948 Act by the Bombay Act 33 6 XXXIII of 1952 the period of the lease was renewed up to 28 February, 1963 and therefore the appellants could not obtain a ,decree for posession.
Though section 5 of the 1948 Act as amended by the Bombay Act of 1952 was repealed by Bombay Act XIII of 1956 the High Court held that the tenants had acquired the vested right of protection against termination of tenancy merely on the ground of ,expiry of the duration fixed by agreement.
The High Court said that it was not necessary to decide whether the respondents had acquired the status of protected tenants.
The High Court held that by reason of the provisions of section 5 of the 1948 Act as amended in 1952 the respondents acquired renewed tenancy up to 28 February, 1963 and unless the plaintiff landlord could show that rights so acquired had ended they could not claim possession.
When the appeal came up for hearing before this Court on 13 February, 1970 this Court sent the matter back to the High Court for submitting a report.
on two questions.
First, whether on 1 March, 1953 , the respondents were protected tenants.
Second, if the respondents were protected tenants on 1 March, 1953 whether on that account the respondents had the right 'to ,claim the benefit of section 5 and other relevant sections of the Bombay Tenancy and Agricultural Lands Act 67 of 1948.
The High Court recorded the findings on 27 January, 1971.
The High Court recorded the answers that the respondents were protected tenants on 1 March, 1953 and, secondly, the respondents did not have the right to claim the benefit of section 5 or other relevant sections of the Bombay Tenancy and Agricultural Lands Act, 1948.
The respondents challenged the second finding of the High Court.
The Bombay Tenancy Act, 1939 came into effect on 2 April.
Section 3 of the 1939 Act spoke of a tenant who would be deemed to be a protected tenant if he held land continuously for a period of not less than 6 years immediately preceding 1 January, 1938 and cultivated such land personally during the said period.
The Bombay Tenancy Amendment Act, 1946 introduced changes into the 1939 Act.
These were sections 3A and 23.
Under section 3A of the 1946 Amendment Act every tenant on the expiry of one year from the date of the coming into force of the 1946 Amendment Act would be deemed to be a ' protected tenant for the purpose of the Act and his rights as protected tenant would be recorded in the Record of Rights, unless his landlord has within the said period made an application to the relevant authority for a declaration that he was not a protected tenant.
Under section 23 of the 1946 Amendment Act no lease of any land after the coming into force of the said section in the relevant 33 7 area was to be for a period of less than 10 years and secondly every lease subsisting on the said date, namely, coming into force of the Act or made after the said date in respect of any land in such area shall be deemed to be for a period of not less than 10 years.
The leases subsisting on the date when the 1946 Amendment Act came into force could not be terminated before the expiry of the period of 1 0 years only on the ground.
that the period of lease had expired but such a lease could be terminated by a tenant by surrendering the lease.
The Bombay Tenancy Amendment Act 1946 was brought into force from 8 November, 1946 throughout the Province of Bombay.
The effect of the 1946 Amendment Act in the present case was that the lease which was subsisting on that date, viz., 8 November, 1946 was deemed to be for a period of not less than 10 years from 1 March, 1943 when the lease came into effect.
The other important change as a result of the 1946 Amendment Act was that under section 3A of the Act the tenant was deemed to be a protected tenant for the purpose of this Act and his rights were to be recorded in the Record of Rights.
The facts found by the High Court in the present case are that the tenant respondents" rights were recorded and the appellants did not make an application after the coming into force of the 1946 Amendment Act that the respondents were not protected tenants.
Therefore, the res pondents were protected tenants and the lease was effective for10 years from the date of the lease.
This extension of the lease for 5 years beyond the period of 5 years mentioned in the lease was by virtue of the provisions in the statute.
The Bombay Tenancy Act, 1939 was repealed by the Bombay Tenancy and Agricultural Lands Act, 1948 referred to, as the 1948 Act.
It may be stated here that the 1948 Act repealed the whole of the Bombay Tenancy Act, 1939 except sections 3, 3A and 4 which were also modified in the manner mentioned in Schedule 1 to the 1948 Act.
In the present case, the High Court has recorded the finding that the respondents were protected tenants on 1 March, 1953.
That finding is not challenged by either side in the present appeal.
The respondents have challenged the other finding of the High Court that the respondents did not have the right to claim the benefit of section 5 or other relevant sections of the 1948 Act.
The rival contentions in the present appeal are on the effect of section 5 of the 1948 Act which was introduced as an amendment by Bombay Act 33 of 1952 in substitution of section 5 as it originally stood in the 1948 Act.
On behalf of the respondents it is said that they were protected tenants under the 1948 Act and the lease of the respondents which had come into existence on 338 1 March, 1943 was extended up to 28 February, 1953 and as a result of an amendment of section 5 by the 1952 Amending Act the period of the lease was extended up to 28 February, 1963, and therefore, the appellants could not claim eviction.
The appellants on the other hand contended that the respondents who had a subsisting lease dated 1 March, 1943 for 5 years received the benefit of statutory extension of the period by another 5 years up to 28 February, 1953, and on 1 March, 1953 the respondents were protected tenants who had an unlimited period of tenancy which could be terminated in accordance with the provisions of section 34 of the 1948 Act.
It was also said on behalf of the appellants that section 5 which was introduced into the 1948 Act by the Amending Act of 1952 which came into effect on 12 January, 1953 did not at all apply to protected tenants but only to ordinary tenants.
Even if it were assumed that section 5 of the 1948 Act as amended by the 1952 Act applied, it was said ,on behalf of the appellants that as a result of the Bombay Amending Act 13 of 1956 which came into effect on 1 August, 1956 section 88B introduced by the Amending Act of 1956 removed section 5 from the statute and the appellants were not entitled to invoke any protection under that section of the statute.
In order to appreciate these contentions it is necessary to refer to section 5 which was introduced into the 1948 Act by the Amending Act of 1952 which is as follows "5 (1) No tenancy of any land shall be for a period of than ten years.
Provided that at the end of the said period and thereafter at the end of each period of ten years in succession, the tenancy shall, subject to the provisions of sub sections (2) and (3); be deemed to be renewed for a further period of ten years on the same terms and conditions notwithstanding any agreement of the contrary.
(2)The landlord may, by giving the tenant one year 's notice in writing before the end of each of the period referred to in sub section (1), terminate the tenancy with effect from the thirty first day of March in the last year of each of the said period, if he bona fide requires the land for any of the purposes specified in sub section (1) of section 34, but subject to the provisions of sub sections (2) and (2A) of the said section, as if such tenant was a protected tenant.
(3)Notwithstanding anything contained in sub section (1): 33 9 (a) every tenancy shall, subject to the provisions of sections 24 and 25, be liable to be terminated at any time on any of the grounds mentioned in section 14; and (b) a tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord : Provided that such surrender shall be in writing and shall be verified before the Mamlatdar in the prescribed manner".
The question in the forefront is whether section 5 introduced by the Amending Act of 1952 applied to protected tenants.
Counsel on behalf of the respondents contended not only that the said section 5 applied to protected tenants but also that if the said section 5 were held to be applicable only to ordinary tenants the respondentswho were protected tenants could claim the benefit of ordinarytenants by virtue of their position of contractual tenants.
The 1948 Act recognised a tenant to be a protected tenant if such person had been deemed to be a protected tenant under sections 3, 3A or 4 of the Bombay Tenancy Act, 1939.
Section 34 of the 1948 Act provided that notwithstanding anything contained in section 14 a landlord might terminate the tenancy of a protected tenant on the grounds and in the manner as provided in that section.
It therefore follows that a protected tenant had been given security under the 1948 Act for an unlimited duration and he could be accepted either on grounds mentioned in section 14 or for grounds mentioned in section 34 of the 1948 Act.
A protected tenancy therefore did not come to an end on the expiration of any particular period.
A protected tenancy could be brought to termination only on the grounds and in the manner mentioned in sections 14 and 34 of the 1948 Act.
It is also ncoticeable that no new protected tenancy could come into existence under the 1948 Act.
Section 5 of the 1948 Act as it originally stood provided that no tenancy could be for a period of less than ten years and no tenancy was to be terminated before the expiry of the period of 10 years except on the grounds mentioned in section 14.
Therefore, under section 5 of the 1948 Act as it originally stood, tenants other than protected tenants were given a security to the extent of 10 years only.
Persons other than protected tenants could under sections 14(2) and 15 of the 1948 Act be allowed 34 0 to hold over and in such case of holding over the tenancy "of such a tenant shall be deemed to have been renewed for a further period of 10 years from the date of the expiry on the same terms and conditions".
Therefore, under the 1948 Act prior to the amendment in 1952 there was on the one hand a protected tenant with a security for an unlimited period whose tenancy could be terminated for grounds and in the manner mentioned in sections 14 and 34 of the 1948 Act and on the other hand a person other than protected tenant who had a security for a period of 10 years with the possibility of a landlord allowing such a tenancy to hold over in which case he would have a further period of 10 years.
Unless :the tenancy was terminated in accordance with the provisions of the Act.
It is in this context that section 5 was introduced into the Act by the Amending Act of 1952.
The effect of the amended section 5 came up for consideration by this Court in Trimbak Damodhar Raipurkar vs Assaram Hiraman Patil & Ors.(1) The facts in that case were these.
A tenancy came into existence on 5 February, 1953 for 5 years.
Under the provisions of section 23 (1) (b) of the 1939 Act as amended in 1946 the subsisting lease was deemed to be for a period of not less than 10 years.
During the subsistence of the tenancy the 1948 Act came into existence.
A notice was given to the tenants calling upon them to deliver possession after expiration of the period of tenancy on 31 March, 1953.
Meanwhile, the 1952 Amending Act had come into effect on 12 January, 1953.
The tenant in that case relied on section 5 as amended in 1952.
That case was of an ordinary tenant and not of a protected tenant.
This Court held that the Amending Act 1952 repealed section 14(2) of the 1948 Act, amended section 5 of the 1948 Act and the effect of the amendment in that case was stated as follows : "Shortly stated the effect of this amendment was that the tenancy of the respondents, who were till then ordinary tenants as distinct from protected tenants, could not be terminated on the expiry of their tenancy except by giving one year 's notice and that too on the ground that the lands were required by the landlord for bona fide personal cultivation and that the income of the said lands would be the main source of income of the landlord".
Prior to the Amending Act of 1952 the tenancy of an ordinary tenant could be terminated on the grounds mentioned in section 14 before the expiry of the period of 10 years.
An ordinary tenant however could hold over under section 14(2) of the 1948 Act.
After the amendment of section 5 and the repeal of section (1) [19621 supp.
1 section C. R. 700 3 4 1 14(2) of the 1948 Act a tenancy contemplated in section 5 of the Act would at the end of each period of 10 years subject to the provisions of sub sections (2) and (3) be deemed to be renewed for a further period of 10 years.
This was a new protection afforded to tenancies mentioned in section 5 of the Act.
The second sub section of section 5 as amended in 1952 provided that the landlord by giving one year 's notice in writing before the end of each period of ten years referred to in section 5 (1) of the Act could 'terminate the tenancy with effect from the thirty first day , of March in the last year of each of the said period, if the landlord bona fide required the land for any of the purposes specified in section 34(1) but subject to the provisions of sub sections (2) and (2A) as if such tenant was a protected tenant.
On the one hand a tenant under section 5 as amended in 1952 could have a renewal of a further period of 10 years and on the other the landlord could terminate the tenancy at the end of the period of 10 years by giving a notice as mentioned in section 5(2) of the Act as amended in 1952.
The decision of this Court in Trimbak Damodhar Raipurkar 'section case (supra) noticed the distinction between ordinary tenants and protected tenants and applied section 5 as amended in 1952 to.
the case of an ordinary tenant as distinct from a protected tenant.
This decision also held that there was a statutory extension of the duration of the lease by virtue of the provisions of the Act.
It could not be said that when a lease for 5 years was extended as, a result of the provision of the statute that extension was in terms of the contract.
In Trimbak Damodhar Rajpurkar 's case (supra) this Court held that before the lease could expire on 31 March,, 1953 in that case the period of the lease had been extended for 10 years as a result of the amendment of section 5 by the Amending Act of 1952 which came into effect on 12 January, 1953, and it could not be terminated save and except as specified by a valid notice or a surrender.
The notice given in the month of March, 1952 in that case which called upon the tenant to deliver posses sion on the expiry of the statutory period of 10 years on 31 March, 1953 proved abortive by reason of the operation of the amendment of section 5 renewing the term of the tenancy for the period of ten years.
The principal reason as to why section 5 as amended in 1952 does not apply to a protected tenant is that the tenancy of a protected tenant under the 1948 Act was of unlimited time and the tenant other than a protected tenant had a security only for 10 years and it is only under section 5 as amended in 1952 that such a tenant other than a protected tenant became entitled to renewal of the tenancy for a further period of 10 years in succession as mentioned in the said section.
Secondly, section 5 and, in parti 3 42 cular, sub section (2) thereof as amended in 1952 spoke of termination of tenancy by the landlord by giving the tenant one year 's notice in writing if the landlord bona fide required the land for any of the purposes specified in sub section (1) of section 34 but subject to the provisions of sub sections (2) and (3) of the said section as if such a tenant was a protected tenant.
The words "as if such a tenant was a protected tenant ' indicate that the legislature treated section 5 as applying to tenancies other than protected tenancies.
If the word 'tenancy ' 'occurring in section 5 of the Act as amended in 1952 related to protected tenancy the words as if such a tenant was a protected tenant ' in section 5(2) would not have been necessary.
In the third place, section 5 of the 1948 Act as amended in 1952 was in Chapter II of the Act.
Chapter 11 related to general provisions regarding tenancies.
Sections 31 and 34 of the 1948 Act which related to protected tenants occurred in Chapter III of the 1948 Act.
The heading of Chapter III of the 1948 Act before the amendment thereof in 1956 was 'Protected tenants their special rights and privileges '.
The recognition of protected tenant was only under section 31 of the 1948 Act.
The termination of a tenancy of a protected tenant was specifically provided for only in section 34 of the Act.
Section 34 itself provided that notwithstanding anything contained in section 14 the tenancy of a protected tenant could be terminated as.
mentioned in section 34 of the Act.
It is true that section 14 of the Act occurred in Chapter 11 but that section was attracted only for termination of tenancy of a protected tenant because of the grounds mentioned in section 14.
These were spe cific provisions for protected tenants.
Fourthly, the termination of tenancy of a person other than a protected tenant after the amendment of section 5 in 1952 on the grounds mentioned in section 34 of the Act was by applying the grounds as if such tenant was a protected tenant.
It is, therefore, manifest that if section 5 as amended in 1952 applied to protected tenants the manner of termination of tenancy mentioned in section 5, namely, by giving one year 's notice in writing before the end of each period of ten years would have been totally inconsistent with the manner of termination of tenancy of a protected tenant.
A protected tenant had unlimited security of tenure with the exception of termination by one year 's notice on the grounds mentioned in section 34 whereas the tenancy of one other than a protect would continue to be, renewed for a period of ten years section 34 (1)only at the end of each period of ten years.
Fifthly, under the1948 Act no new protected tenancy could come into existence whereas a tenancy other than that of a protected tenant would continue to be renewed for a period of ten years in succession unless the tenancy was terminated at the end of one such period of ten years.
Finally, if a protected tenancy of 343 unlimited time was brought within the ambit of section 5 as amended in 1952 the protected tenancy would be contemplated to be renewed for periods of ten years in succession.
Any such renewal for periods of ten years would be destructive of the protected tenant 's unlimited security as to duration of tenancy.
In view of our conclusion that section 5 of the 1948 Act as amended in 1952 does not apply to protected tenancy for the reasons indicated above, it is not necessary to consider another contention advanced on behalf of the respondents that apart from protected tenancy section 5 of the 1948 Act as amended could be invoked as a part of contractual tenancy.
The reason is obvious.
The protection afforded by section 30 of the 1948 Act to contractual terms of tenancy is that the rights or privileges vested in the tenancy under any contract cannot be abridged or limited.
The provisions contained in section 5 of the 1948 Act as amended are provisions of the statute not applicable to protected tenants and a protected tenant cannot therefore claim the protection of such a statutory provision far less on the ground that it is a right or privileges arising out of any contract.
It has to be borne in mind that section 5 as amended in 1952 speaks of the fictional renewal of a tenancy for periods of ten years.
A protected tenant on the other hand acquired the statutory "Status or irremovability" when the 1948 Act recognised a protected tenant and nothing more was required to be done to renew or extend the duration of statutory tenure.
To apply the renewal of tenancy for periods of ten years under the amended section 5 would be to rob the protected tenancy of its unlimited security and truncate it into tenancy for period of ten years renewable as mentioned therein.
In the present case the tenancy under the lease which was for a 5 years commencing 1 March, 1943 was operative in duration upto 29 February, 1948.
The respondents by virtue of section 23 (1) (b) of the Tenancy Act of 1939 as amended in 1946 became entitled to an extension of 5 years under the statutory provisions.
This Court in Trimbak Damodhar Raipurkar 's case (supra) noticed that the extension of the duration of the lease was virtue of a statute.
This is described as a 'Statory security of tenure". "Various statutes give security of tenure to tenants.
The co called statutory tenancy created under the Rent Acts . . upon the determination of contractual tenancy is not, properly speaking, a species of tenancy, it is a personal right in the tenant not to have an order for possession made against him unless certain specified conditions are fulfilled; it is a " status of irremovability" (See Woodfall Landlord 'and Tenant, 27th Edition, Vol.
1 paragraph 703 pp.
295 to 296).
An ordinary tenant could invoke in aid the provisions of section 5 of the 344 1948 Act as amended in 1952 and even in that case the extended terms would be under the statute and #lot as part of the contractual term.
A protected tenant, as is the case here, is disentitie to be within the scope of the amended section 5.
The 1948 Act was amended by the Bombay Amending Act 13 of 1956 which came into effect on 1 August.
As a result of the 1956 amendment section 5 which had been introduced into the Act by the amended Act of 1952 ceased to be on the statute and a new section 5 was substituted.
But the new section 5 substituted in 1956 has no relevance to the present appeal.
The contention on behalf of the respondents was that section 5 as amended in 1952 had conferred a vested right on the respondents and therefore the deletion of the amended section 5 by the 1956 amendment could not take away the vested rights of the respondents.
The contention on behalf of the appellants as to the effect of substitution of the amended section 5 by a totally different section 5 of 1956 was first that section 5 did not apply and even if it applied it did not create a vested right and secondly if the statute conferred any protection or privilege the statute could ,take away such a protection or privilege.
This Court in Sidram Narsappa Kamble vs Sholapur Borough Municipality & Anr.(1) considered the effect of the 1956 Amendment Act in relation to protected tenants.
In the present appeal, in view of our conclusion that section 5 of the 1948 Act as amended in 1952 did not apply to protected tenants, it is not necessary to consider the contention advanced on behalf of the respondents whether they had any vested right in the amended section 5.
For these reasons the findings of the High Court dated 27 January, 1971 are upheld and the judgment dated 6 November 6 December, 1962 is set aside.
Counsel for both the parties submitted that the matter that matter would have to be remanded to the High Court for consideration as to whether there was a valid termination of tenancy.
The matter is remanded to the High Court for decision of the appeal as to whether there was a valid termination of tenancy.
(1) ; 345 In view of the fact that this is an old litigation we hope that the matter will be heard as soon as is convenient to the High Court.
The order of costs passed by the High Court is set aside.
Costs of this appeal will abide the result of the decision of the High Court.
The successful party would be entitled to costs.

summary:
The respondents were lessees of the appellants for a period of 5 years from March 1, 1943.
They were protected tenants under the Bombay Tenancy and Agricultural Lands Act, 1948.
They contended that the appellants landlords could not claim eviction, because, being protected tenants their lease was extended by statute up to February 28, 1953, and as a result of the amendment of section 5 of the 1948 Act by amending Act of 1952 the period of lease was further extended upto February 28, 1963.
On the question whether a protected tenant could claim the benefit of section 5 as amended by amending Act of 1952, HELD : Section 5 of the 1948 Act as amended in 1952 did not apply to protected tenancy.
The principal reason was that the tenancy of a protected tenant under the 1948 Act was of unlimited time.
Whereas a tenant other than a protected tenant had a security only for 10 years and it was only under section 5 as amended in 1952 that a tenant other than a protected tenant became entitled to renewal of the tenancy for a period of 10 years in succes sion as mentioned in the said section.
Any such renewal, for periods of ten years, of a protected tenancy, would be destructive of the protected tenant 's unlimited security as to duration of tenancy.
Secondly, if section 5 as amended in 1952 applied to protected tenants the manner of termination of tenancy mentioned in section 5, namely, by giving one year 's notice in writing before the end of each period of ten years would have been totally inconsistent with the manner of termination of tenancy of a protected tenant.
The tenancy of a protected tenant could be terminated by one year 's notice on the grounds mentioned in section 34 whereas the tenancy of one other than a protected tenant, could be terminated on the grounds mentioned in section 34(1) only at the end of each period of ten years.
Thirdly, if the word tenancy occurring in s.5as amended in 1952 related to protected tenancy the words "as if such atenant was a protected tenant in section 5(2) would not have been necessary".
And finally, section 5 as amended in 1952 was in Ch.
II which contained general provisions regarding tenancies and sections 31 and 34 of 1948 Act which related, to protected tenants occurred in Ch.
III of the 1958 Act.
[341 H 342 H] Trimbak Damodhar Rajpukar vs Assaram Patil, [1962] Supp.
1 S.C.R. 700, referred 'to.


judgement:
l Appeals Nos. 1239 to 1241 of 1966.
Appeals by special leave from the Award dated October 1, 1965 of the Industrial Tribunal, Maharashtra, Bombay in Reference (I.T.) Nos. 84, 112 and 121 of 1959.
K. T. Sule, M. G. Phadnis and Vineet Kumar, for the appel lants (in all the appeals).
G. B. Pai, P. N. Tiwari and P. K. Rele, for the respondents (in all the appeals).
3 7 5 P. Jaganmohan Reddy, J.
These three Appeals are by the P. Jaganmohan Reddy,J.
These three appeals are by the Workmen of the three Respondent Companies respectively Civil Appeal No. 1239 of 1966 is against Greaves Cotton & Co. Ltd., Civil Appeal No. 1240 of 1966 is against Greaves Cotton & Crompton Parkinson Pvt. Ltd., (later amalgamated in 1966 and a new Company formed as Crompton Greaves Ltd.), and Civil Appeal No. 1241 of 1966 is against Kenyon Greaves Pvt. Ltd. On the 29th April 1958 a charter of demands was presented by the Workmen through their Trade Union Greaves Cotton and Allied Companies Employees Union to the Respondents in the above three Appeals and to Russian & Hornby India Pvt.
Ltd. These demands were in respect of the wage scale, dearness allowance, leave gratuity etc.
After the conciliation proceedings under sub section (4) of Section 12 of the (hereinafter called the 'Act ').
had failed, the disputes in respect of the aforesaid matters were ultimately referred by the Maharashtra Government to Shri P. D. Sawarkar for adjudication under Section 10 (1) (d) read with 12 (5 ) of the Act.
In respect of demands made against Greaves Cotton & Co. Ltd., the reference was made on 8 4 59 and 24 12 59; against Greaves Cotton & Crompton Parkinson Pvt. Ltd. on 30 5 59 and 24 12 59 and that against Kenyon Greaves Pvt. Ltd., on 8 6 59 and 9 1 60 respectively.
We are here not concerned with the other references.
By an Award dated 3rd June, 15th and 16th June 1960 the Sawarkar Tribunal revised the wage scales and dearness allowance of all workmen employed by those Companies.
Ruston & Hornby India Pvt. Ltd. appealed against the Awards to this Court which by a common Judgment dated 14th November 1963 held that the wage scale and dearness allowance fixed by the Industrial Tribunal for the clerical and subordinate staff did not require any interference and to that extent dismissed the Appeal.
It however set aside the wage scale and dearness allowance fixed for factory workmen and remanded the matter to the Tribunal for fresh fixation of wage scale and dearness allowance with these observations : "We allow the Appeal with respect to the factory workmen and send the case back to the Tribunal for fixing the wage structure including basic wages and dearness allowance and for granting adjustments in the light of the observations by us.
The new Award pur suant to this Award will come into force from the same date namely April 1, 1959".
When the references were taken up by the Tribunal on remand the parties agreed that in view of the decision of this Court certain 3 76 references stood finally disposed of namely references dated 24th December, 1959 by the Workmen in Greaves Cotton & Co. Ltd., and in Greaves Cotton & Crompton Parkinson Pvt. Ltd. and that dated 9th January 1960 by the workmen of Kenyon Greaves Pvt.
Ltd. The other three which were also held to be finally disposed of were against the Workmen of Ruston & Hornby India Pvt. Ltd. with which we are not concerned in this Appeal.
The parties however, agreed that only three references dated 8th April, 1959, 30th May 1959 and 8th June, 1959 by workmen against Greaves Cotton & Co. Ltd., Greaves Cotton & Crompton Parkinson Pvt. Ltd., and Kenyon Greaves Pvt. Ltd. survive.
During, the proceedings before the Tribunal two questions were raised (1) Whether the Supreme Court remanded the matter for consideration of the dispute in respect of certain categories of employees including those of the Supervisors; and (2) Whether it was open to the Respondents to claim fixation of service conditions on the basis of individual units.
On behalf of the employees it was contended that the dispute regarding the Foremen or Supervisors who were included in the term subordinate staff was concluded by the Judgment of the Supreme Court inasmuch as it had dismissed the Appeal in respect of Clerical and subordinate staff.
The employers on the other hand contended that the reference was in respect of the six categories of Workmen specified in the Supreme Court Judgment which included Supervisors.
Shri Athalye who was the then Judge of the Industrial Court after hearing the parties made an order on 14th July 1964, inter alia holding : (1) That the Companies were precluded from agitating that wage scales in the different factories should be fixed on the basis of individual units; and (2) that the Sawarkar Award was set aside by this Court in respect of all workmen except those who could be properly classified as office staff.
After this order the Respondents were asked to file statements regarding comparative wage scales of Supervisors, in their concerns as well as in other concerns.
These statements were filed without prejudice to their contention that the Tribunal had no jurisdiction to fix wage scale in respect of Supervisory staff.
The documents filed on behalf of the third Respondent namely Kenyon Greaves Pvt Ltd., showed that it did not employ any staff in the Supervisory grade.
Thereafter the references were heard by Shri Paralkar who had succeeded Shri Athalye as Judge, 377 Industrial Tribunal.
It was contended before him that the Foreman (Supervisors) were not workmen within the definition given in the Act and that no wage scales in respect of the Supervisors in the Respondent Companies should be fixed.
The stand taken by the Appellant was that it was not open to the Respondent Companies to raise the question whether the Supervisors were Workmen within the meaning of the Act as it did not arise on the remand orders made by this Court.
In the alternative it was contended that many Supervisory work men, concerned in the dispute were drawing a total salary below Rs. 500 'and that even if everyone of them was promoted from the category of supervisors or for the sake of argument it was held that Foremen and Supervisory staff were not workmen within the meaning of the Act, the Workmen had a right to raise a dispute regarding wage scale and dearness allowance of the Supervisory staff because they have a communist of interest with them.
The Tribunal therefore had jurisdiction to entertain the depute in respect of wage scales and dearness allowance of the Supervisory staff.
The Appellant also contended on behalf of the Workmen that the only question that was pending before the Tribunal was to fix wages for factory workmen and therefore the Tribunal had no jurisdiction to decide at that stage as to which category the workmen belonged.
The Tribunal by its Award of the 1st October 1965 held after hearing the parties that Supervisors were not workmen within the meaning of the Act and that the claim for revision of wage scale and dearness allowance payable to them was in that view rejected.
Against this Award the above Appeals were filed by Special Leave granted by this Court confined only to the point whether the decision contained in paragraph 15 and 16 of the Award was correct.
At the outset it was conceded by the parties that Civil Appeal No. 1241 of 1966 by the Workmen against the Kenyon Greaves Pvt. Ltd. did not survive because there are no persons working in the Supervisory capacities and drawing less than Rs. 500/being the two conditions requisite under Section 2 (s) (iv) of the Act to be a 'Workman the non fulfilment of which would deprive the Tribunal of its jurisdiction to determine the dispute; and therefore the appeal has to be dismissed.
Even in respect of the other two appeals the learned Advocate for the Respondent submits that there are no workman working in the Supervisory capacities and drawing less than Rs. 500/ in the 3 78 other two Undertakings in respect of which the Appeals have been filed and consequently they should also be dismissed.
We shall, however, deal with this submission later on.
Before us five contentions have been urged by the learned Advocate for the Appellant: First whether the case of Supervisors was at all remanded to the Tribunal for adjudication by the Supreme Court; Secondly whether it was open to the Respondents to agitate when the matter was remanded to the Tribunal, for the first time to challenge the jurisdiction of the Tribunal to fix wage scale and dearness allowance of the Supervisors; Thirdly whether Supervisors getting less than Rs. 500/ per month on the crucial date namely the date of reference can raise a dispute regarding wages which take them beyond Rs. 500/ ; Fourthly whether workmen can raise a dispute about non workmen, as regards terms of employment of non workmen and in what circumstances.
Fifthly whether the Tribunal on remand is right in holding that in December 1964, none of the Supervisors were drawing less than Rs. 500/ .
With respect to the first two contentions the Appellant 's learned Advocate submits that in the Special Leave Petition against the Award passed by Mr. Sawarkar neither the wage scales of Supervisors nor any question about the jurisdiction of the Tribunal was raised nor was such a contention urged before this Court in the Appeals which were partly allowed and remanded by this Court.
Even before the Industrial Tribunal, after the remand, when the Respondent Companies in compliance with its orders dated 15 1 54 submitted statements giving the names of workmen including Supervisors (Foremen) which were covered by the reference and gave their details as called for by the said Tribunal, the comments of the Appellants which were submitted on 27 2 64 were that the category of Supervisors was not covered by the order of remand, and the wage scale and dearness allowance for that category have been confirmed by this Court by its judgment dated the 14th November 63.
This was controverted by the Respondents and by further supplementary written statement dated 16 3 64, each of the Respondent Companies, it is alleged, tried to cover up and reagents the matter which had already been settled by this Court regarding uniform service conditions for the entire Greaves Cotton group of Companies on the basis that Greaves Cotton & Co., was the principal Company.
379 Even in these supplementary written statements it is alleged no question was taken up by the Respondent Companies that the Foremen were not workmen within the meaning of the Act.
The Appellant had on 24 3 64 submitted an application to the Industrial Tribunal stating that the supplementary written statements should not be taken on record since the issue in the said supplementary statements regarding uniformity in the wage scale and dearness allowance was decided by this Court.
It also urged that the issue regarding Drivers, Cleaners and apprentices and Supervisors were categories remanded by the Supreme Court for fixing their wage scale should be decided as a preliminary issue.
As we have already stated the Tribunal gave its decision on the two issues which were raised before it after this Court had remanded the matter.
On the other hand it is contended by the Respondents that it is not open to the Appellants to raise this question because the Special Leave having been confined only to the point whether the decision contained in paragraphs 15 and 16 of the Award is correct, it is open to it to urge that the Supervisors were not workmen.
It was pointed out that from Paragraph 15 and 16 of the Award it is evident that the demand for the revision of the wage scale and dearness allowance of the Supervisors even for the lowest grade on the lowest scale made them non workmen as their emoluments exceed Rs. 500/ , which decision also clearly indicates that the question of fixation of the Supervisors wage scale and dearness allowance was remanded to the Tribunal.
It is further stated that this Court had in its Judgment dated 14th November 1963 allowed the Appeal with respect to the 'factory workers ' and sent the case back top the Tribunal for fixing the wage structure for the 'factory workmen ', that it is implicit in the order of remand that the Tribunal would have jurisdiction to determine whether any employee of the factory was or was not a workman within the meaning of the Act; that if the Appellant 's contention is accepted it would virtually mean that this Court by its Judgment had conferred a jurisdiction on the Tribunal to deal with the case of non workmen which the Tribunal under the Act did not possess; and that the question whether there is community of interest between other workmen of the Respondent and Supervisors who may be non workmen is a mixed question of fact and law, which has not been raised before the Tribunal and ought not be allowed to be raised for the first time before this Court.
It is also contended that the question whether some of the workmen could raise a dispute regarding the grades of the Supervisors as there is a community of interest was not the subject matter of the decision in para 15 and 16 of the Award, and that since the wages including dearness allowance of all supervisors at the date of the Award were in excess of 380 Rs. 500/ the question of considering the claims of the Supervisors who were non workmen at the instance of supervisors workmen ,does not arise.
It is not in our view necessary to go into these several contentions except to examine the scope of the Judgment of this Court in Civil Appeals Nos. 272 280 of 1962 dated 14 11 61 by which the remand was made to the Tribunal.
The order is in the following terms : "We therefore dismiss the Appeal so far as retrospective effect and adjustments as also fixation of wages and dearness allowance with respect to clerical and subordinate staff are concerned.
We allow the appeal with respect to factory workmen and send the cases back to Tribunal for fixing the wage structure including basic wage and dearness allowance and for granting adjustments in the light of the observations made by us. ".
The Award of the Tribunal which this Court was considering in the said appeals dealt with the clerical and subordinate staff separately from the factory workmen.
It is in respect of the portion of the Award relating to Clerks and subordinate staff that the appeal was dismissed and that dealing with the factory workmen was remanded.
Factory workmen had been divided into six categories and the employees of the Respondents had been directed to be fixed with separate wages for each category.
These six categories were: (i) Unskilled.
(ii) Semi skilled I. (iii) Semi skilled II.
(iv) Skilled I. (v) Skilled II, and (vi) Skilled III.
Apart from this the Sawarkar Tribunal in para 58 said, in those references it was concerned with the factory work men of only the three Respondent Companies; that different scales of wages prevail for different classes of workmen but which categories should be placed in which class is not prescribed.
It referred to the wage scale of different classes of workmen prescribed by Shri Divatia in which apart from the above six categories, three categories of Supervisors grade I, II & III were also given.
The Tribunal, however, while retaining these six categories introduced a seventh category of higher unskilled, which as this Court observed was not justified because there cannot be degrees of want of skill among unskilled class.
Apart from this the main attack was on the wages fixed for these six categories on the ground that 381 the Tribunal completely overlooked the wages prevalent for these categories in concerns which it had considered comparable.
Court observed "but the way in which the Tribunal has dealt with the matter shows that it paid scant regard to the exemplars.
filed before it and did not care to make the comparison for factory.
workmen in the same way in which it had made comparison for clerical and subordinate staff.
In this circumstances wagescales fixed for factory workmen must be set aside and the matter remanded to the Tribunal to fix wage scales for factory workmen dividing them into six categories as at present and then fixing wage after taking into account wages prevalent in comparable concerns.
The parties will be at liberty to lead further ' evidence in this connection".
It is clear from this judgment that the subordinates and factory workmen were, treated separately and we cannot accept the contention of the learned Advocate for he Appellant that in dismissing the appeal this Court had rejected the contentions of the Respondents relating to the Supervisors who according to it were included in the category of subordinate: staff.
Earlier the Sawarkar Award had after noticing that there are 3 sub divisions in the category of Supervisors laid down the scales which were higher having regard to its desire to prescribe the same scales for the three sub divisions as those for skilled sub division 1.
It is also apparent from the statements ' filed that the Foremen or Supervisors were divided into 3 categories according to their pay scales.
The pay of the Grade I was Rs. 360 20 500, of Grade Rs. 300 15 360 and of Grade III Rs.
250 10 300.
The Appellants themselves referred to these Supervisors as Foreman.
Work men under Section 2 (s) (iv) of the Act means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual supervisory or technical work, "but does not include any such person who being employed in a supervisory capacity, draws wages exceeding Rs. 500/ per mensem or exercise either by the nature of the duties attached to the office or by reasons of the powers vested in him, functions mainly of a managerial nature".
This Court in remanding the case of the factory workmen had under contemplation all those workmen who on the date of the reference were employed in a Supervisory capacity and drawing less than Rs. 500/ as these were included in six categories of workmen as classified by the Tribunal.
We do not think there is anything in the remand order to warrant the submission that the case of Supervisors was included among the category of subordinate staff or that it was not remanded.
After the remand the Tribunal was justified in holding that this Court had set aside 'the Award of the previous Tribunal in respect of all those workers who could not be properly classified as office staff in which the Foremen or Supervisors could not be Am L 1340 Sup CI/71 382 included.
It is also not the case of the Appellants that workers who were working in a Supervisory capacity were classified as ,office staff.
In our view it was open to both the parties to raise all the contentions that were open to them because on remand the wage structure of the factory workers including basic wage and their dearness allowance had to be considered afresh.
This conclusion is supported by the fact that parties were given liberty to adduce further evidence in respect thereto.
A reference to para 15 and 16 of the Award to which special leave is confined makes it clear that both parties were proceeding on the basis that the Tribunal has jurisdiction to deal with those supervisors who under the Act are workmen.
The only controversy was whether the Tribunal could fix a wage scale, for them which will ultimately give them a total wage together with basic pay and dearness allowance of over Rs. 500/ p.m. or fix scale which has an initial starting salary with dearness allowance in excess of Rs. 500/ p.m. which makes them non workmen and thus deprive it of jurisdiction to deal with the dispute.
It may be of interest to notice the arguments addressed before the Tribunal on behalf of the parties.
The contention by the Companies was that though the Supervisors may be in the category of workmen at the time of the reference the Tribunal would have no jurisdiction to revise their wages and grant to them at any stage, a total emoluments exceeding Rs. 500/as that would convert them into non workmen.
On the other band on behalf of the employees the submission was that the Companies had not raised this question in appeal before the Supreme ,Court and in any case it was 'not open to them to contend that the 'Tribunal had no jurisdiction to revise the wage scales of this class as Shri Athalye in ' his order of 14 7 64 had on a consideration of the Judgment of this Court held that the question of revision of the wages and dearness allowance of the Supervisors class was to be considered by that Tribunal.
In our view therefore, the ,dispute relating to the Supervisors wage structure and dearness allowance could, certainly on the plea of both employers and employees, be determined by the Tribunal.
The only question that could be raised and has been raised was whether the Tribunal has jurisdiction to fix wage scales to go beyond Rs. 500/ and whether as a matter of fact there were any workmen at the time of the dispute who were working in a supervisory capacity drawing a wage not exceeding Rs. 500/ .
The Tribunal noted that Shri Phadke for the Companies did not urge that the persons for whom revision was sought are engaged in managerial functions or at the time the dispute arose were all non workmen so is to dis,entitle them to raise the dispute and to exclude the jurisdiction of the Tribunal altogether.
If it were so, the Tribunal observed, the question must be deemed to have been impliedly concluded by the decision of the Supreme Court and the interpretation put 383 there were persons employed in a Supervisory capacity drawing a wage not exceeding Rs. 500/ and who as workmen within the amended definition of that expression were interested in demanding scales which take them beyond Rs. 500/ .
But it was contended by the Companies that even if the employees are entitled to raise the demand the Tribunal would have no jurisdiction to grant it in a manner so as to convert them into non workmen.
On these contentions the Tribunal held that although 'the Supervisors drawing a wage not exceeding Rs. 500/ may be entitled to raise the demand and ask for a scale which would take them beyond Rs. 500/ they would not be justified in making a claim for a scale which at the very commencement would provide them with a wage in excess of Rs. 500/ .
A claim for Rs. 300/as basic wage for the last grade of Supervisors together with a claim for dearness allowance would come to an amount in excess of Rs. 500/ and thus convert the Supervisors into non workmen even at the very commencement.
Such a claim, the Tribunal thought would obviously not be tenable because although it may be permissible on the grounds of social justice to revise the wage scale which may be justified by the circumstances in the case it will not be permissible for the Tirbunal to fix it so as to convert a workman into a non workman.
This leads us to the consideration of the third and the fourth point urged before us namely whether the Supervisors getting less than Rs. 500/ per month on the crucial date which is the date of reference can raise the dispute for wages taking them beyond Rs. 500/ and whether workmen can raise a dispute about non workmen.
In our view the Tribunal has jurisdiction to consider revision of wage scale, dearness allowance and other emoluments so long as there is a category of workmen who are employed in a supervisory capacity and drawing less than Rs. 500/ .
Even where the workman in a supervisory capacity ask for a pay structure which takes them beyoned Rs. 500 that by itself does not preclude its jurisdiction to determine what is the proper wage structure, for that class or category of workmen.
The view of the Tribunal was that though it is possible for Supervisors who are workmen on the date of the reference to demand a wage scale beyond Rs. 500/ they would not be justified in making a claim for a scale which at the very commencement would give them a wage in excess of Rs. 500/ so as to take them out of the category of workmen and make them non workmen.
The learned Advocate for the Appellant submits that merely because a claim is made by the Supervisors for an initial wage in excess of Rs. 500/it does not imply that it will be granted or merely for that reason deprive the Tribunal of its jurisdiction to pass an Award in respect of a wage which it considers to be fair and proper.
There 384 is no gain saying the fact that once a Tribunal is vested with the, jurisdiction to entertain the dispute which is validly .
referred, it does not cease to continue that jurisdiction merely because the claim made goes beyond the wage which takes workmen out of that category and make them non workmen.
What has to be seen is whether on the date of the reference there was any dispute in respect of the workmen which could be referred under the Act to the Tribunal.
In any case can workmen raise a dispute about non workmen even if many or all of them have since the reference become non working ? In All India Reserve Bank of India Employees Association vs Reserve Bank of India,(1) this Court had occasion to consider these aspects.
In that case Class 11 and Class III staff of the Reserve Bank of India through their Association and Class IV staff through their Union raised an industrial dispute which was referred 'by the Central Govt.
to the Tribunal.
One of the items referred concerned scales of pay, allowances and sundry matters connected with the conditions of service of the three classes, the most important ones being the demand of Class 11 staff claiming a scale commencing with Rs. 500/ .
The Tribunal held that the Class II staff worked in a Supervisory capacity and this demand for a minimum salary of Rs. 500/ , if conceded, would take the said staff out of the category of 'workman ' as defined in Sec.
2(s) of the Act.
Such an Award, and any Award, carrying wages beyond Rs. 500/ at any stage, was according to the Tribunal beyond its jurisdiction to make.
It also held that other workmen could not raise a dispute which would involve consideration of matters in relation to non workmen and that it would be even beyond the jurisdiction of the Central Govt.
to refer such a dispute under the Act.
The Tribunal therefore made no Award in regard to the Supervisory staff in Class IT.
This Court held that the Tribunal was not justified in holding that if at a future time an incumbent would draw wags in the time scale in excess of Rs. 500/ , the matter must be taken to be withdrawn from the jurisdiction of the Central Govt.
to make a reference in respect of him and the Tribunal to be ousted of the jurisdiction to decide the dispute, if referred Supervisory staff drawing less than Rs. 5001 per month cannot be debarred from claiming that they should draw more than Rs. 500/presently or at some future stage in their service.
They can only be deprived of the benefits, if they are non workmen at the time they seek the protection of the Act.
It was further held that in Sec. 2 (k) of the Act the word person has not been limited to 'workmen ' and must therefore receive a more general (1) ; 3 8 5 meaning.
But it does not mean any person unconnected with the disputants in relation to whom the dispute is not of the kind described.
It could not have been intended that although the dispute does not concern them in the least, workmen are entitled to fight it out on behalf of non workmen.
But if the dispute is regarding employment, non employment, terms of employment, or conditions of labour of non workmen in which workmen are themselves vitally interested the workmen may be able to raise an industrial dispute.
Workmen can for example raise a dispute that a class of employees not within the definition of 'workmen ' should be recruited by promotion from workmen.
When they do so the workmen raise a dispute about the terms of their own employment though incidentally the terms of employment of those who are not workmen is involved.
But workmen cannot take up a dispute in respect of a class of employees who are not workmen and in whose terms of employment those workmen have no direct interest of their own.
What direct interest suffices is a question of fact but it must be a real and positive interest.and not fanciful or remote.
Hidayatullah, J, as he then was, speaking for this Court concluded at page 45 thus : "It follows therefore that the National Tribunal was in error in considering the claim of class 2 employees whether at the instance of members drawing less than Rs. 500/ as wages or at the instance of those lower down in the scale of employment.
The National Tribunal was also in error in thinking that scales of wages in excess of Rs. 500 per month at any stage were not within the jurisdiction of the Tribunal or that Govt.
could not make a reference in such a contingency.
We would have been required to consider the scales applicable to those in Class 11 but for the fact that the Reserve Bank has fixed scales which are admitted to be quite generous".
The case of Workmen of Dimakuchi Tea Estate vs Management Dimakuchi Tea Estate, (q) was referred to with approval.
There the majority section R. Dass, C.J, section K. Das, J. (A. K. Sarkar J, dissenting) had held that the workmen cannot raise a dispute in respect of a non workman one Dr. K. P. Banerjee whose services were terminated by the management by paying him one month salary in lieu of notice.
It was contended that Dr. Banerjee being not a workman his case is not one of an industrial dispute under the Act and is therefore beyond the jurisdiction of the Tribunal to give any relief to him.
The matter had been referred to a Board known as 'the Tripartite (1) ; 386 Appellate Board which recommended that Dr. Banerjee should be reinstated from the date of his discharge.
Later the Govt.
of Assam referred the dispute for adjudication to a Tribunal constituted under Sec. 6 of the Act.
The Tribunal held that it had no jurisdiction to give any relief to him.
The Appeal to the Labour Appellate Tribunal of India, Calcutta was also dismissed.
Special Leave was granted, but was limited to the question whether the dispute in relation to a person who is not a workman falls within the scope of an industrial dispute under Sec.
2(k) of the Act.
The majority held that where the workmen raise a dispute as against their employer the "person regarding whom the dispute is raised must be one in whose employment, non employment, terms of employment or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. .
Where the workmen raise a dispute as against their employer the personregardin g whose employment, non employment, terms ofemployment or conditions of labour the dispute israisedneed not be, strictly speaking, a 'workman ' within the meaning of the Act, but must be one in whose employment, non employment, terms of employment or conditions of labour the workmen as a class have a direct or substantial interest".
Applying these principles the majority came to the conclusion that Dr. Banerjee who belonged to the Medical or Technical staff was not a workman and the Appellants had neither direct nor substantial interest in his employment or non employment and even assuming that he was a member of the same trade Union it cannot be said on the test laid down that the dispute regarding his termination of service was an industrial dispute within the meaning of Sec. 2(k) of the Act.
section K. Das, J, who delivered the judgment of the majority in the above case also spoke for the Court in Workmen vs Dahingeapara Tea Estate.(1) In the Dahingeapara case on the sale of the Tea Estate as a going concern the purchaser continued to employ the labour and some members of the staff of the vendor.
The question was whether the dispute raised by such workmen regarding the employment of the rest of the members of the old staff was an industrial dispute.
It was held that it was.
The reference was against the outgoing management as I well as against the incoming management of the Tea Estate.
It may be noticed that under the agreement of sale an option was given to the purchaser to continue in employment, the members of (1) A.I.R. 1968 S.C. 1026.
387 the staff.
it also made the vendor liable for the claims by the members of the staff not so retained in service by the purchaser.
In these circumstances it was held that as between the vendor and the discharged workmen the latter came within the definition of the workmen as they were discharged during the pendency of conciliation proceedings.
This fact however, did not make them workmen of the purchaser.
Even then they were persons in whose employment or non employment the actual workmen of the Dahingeapara Tea Estate were directly interested.
The ratio of the Western India Automobile Association vs Industrial Tribunal, Bombay,(1) as, also of the later decision in Workmen of Dimakunchi Tea Estate vs Management ( 2 ) was made applicable and the dispute was held to be clearly an in dustrial dispute within the meaning of the Act.
A reference is made to the Standard Vacuum Refining Company of India Ltd., vs Its workmen & Anr., (3) where the question relating to the dispute arising out of the demand for the abolition of the contract system of employing labour for cleaning and maintenance work at the refinery including the premises and plant belonging to it and for absorbing the workmen employed through the contractors into the regular service of the Company was considered.
The Company objected to the reference on the ground that : ( 1 ) it was incompetent inasmuch as there was no dispute between it and the Res pondents, and it was not open to them ,to raise a dispute with respect to the workmen of some other employer namely the contractor; and (2) in any case it was for the Company to decide what was the best method of carrying on its business and the Tribunal could not interfere with function of the management.
The Tribunal held that the reference was competent and that the claim was justified.
Following the Dimakuchi case this Court held that the dispute in the present case was an industrial dispute because (1) the Respondents had a community of interests with the workmen of the contractor; (2) they had also a substantial interest in the subject matter of the dispute in the sense that the class to which they belonged, namely workmen, was substantially affected thereby, and (3) the Company could give relief in the matter.
The conclusion of the Tribunal that the contract system should be abolished was held to be just in the circumstances of the case and should not be interfered with.
It would therefore appear that the consistent view of this Court is that non workmen as well as Workmen can raise a dispute in respect of matters affecting their employment, conditions of service etc., where they have a community of interests, provided they are direct and are not remote.
As stated in the (1) ; (2) A. I. R. 388 Reserve Bank of India 's case(1) "But workmen cannot take up a dispute in respect of a class of employees who are not workmen and in whose terms of employment, those workmen have no direct interest of their own".
At any rate as long as there are persons in the category of workmen in respect of whom a dispute has been referred it cannot be said that the Tribunal has no jurisdiction notwithstanding the fact that some or many of them may become non workmen during the pendency of the dispute.
In these circumstances the Tribunal in our view was wrong in holding that the dispute regarding Supervisors was not maintainable merely because a demand was made for a higher wage scale, which would take them out of the category of workmen.
The Tribunal has jurisdiction to decide these matters because on the crucial date the supervisors were workmen and merely because of the demand the Tribunal does not lose its jurisdiction to prescribe the pay scales and the dearness allowance either by reason :of the fact that the maximum will go beyond Rs. 500/ or that even the initial pay demanded will be more than Rs. 500/ .
Provided that at the time of adjudication there are some at least in the category who are workmen.
But the question is if there are none at all and all of them have become, non workmen either during the pendency or at the time of adjudication, does the dispute survive ? In other words does the dispute remain a dispute between employers and workmen within the meaning of Section 2 (k) of the Act? These questions arise out of the fifth contention urged before us by the learned Advocate for the Respondents namely whether in fact there are now any supervisors working in any of the Companies because as the learned Advocate for the Respondent contends, if, they are none and they are all non workmen, the dispute lapses and at any rate the fixation of a wage scale for non existing workmen would be an exercise in futility.
The learned Advocate for the Appellant contests this proposition on the ground that even if there are no supervisor workmen working in the Companies, the matter should be considered by the Tribunal inasmuch as any pay scale prescribed by it would have retrospective operation as from the 1st of April 59 which what this Court had directed while remanding the case back to the Tribunal in Civil Appeals Nos.
272 280 of 1962.
For this reason it is said that those workmen who have since gone out of the category of workmen ,or have retired or resigned would be entitled to the benefit of the pay structure and could recover arrears.
In the Reserve Bank case(") a similar situation had to be considered.
The reference to the National Tribunal was in 1960 and by the time the matter came to be decided all of them were getting wages in (1)[1966] 1 S.C. 25. 3 8 9 excess of Rs. 500/ per month and were non workmen.
It was held at page 46 "In view of the fact that all of them now receive at the start 'wages ' in excess of Rs. 500/ per month, there is really no issue left concerning them,, once we have held that they are working in a supervisory capacity.
" In the result the Appeal was dismissed with the observation that it would have partly succeeded but for the creation of new scales of pay for Class II employees and acceptance of some of the minor points by the Reserve Bank.
It is however, contended by the learned Advocate for the Appellant that in that case Mr. Chari had acknowledged at page 37 that the scales of pay which were awarded were as generous as the present circumstances of our country permit.
In view of this admission it is said that this Court made no order and therefore that should not be taken into consideration in deciding whether the matter should be remended to the Tribunal for fixing pay scales of the Supervisors.
The learned Advocate however ignored the observation immediately preceding the admission made by Mr. Chari.
It was observed at page 37 "but more than this the minimum total emoluments as envisaged by the definition of wages, even at the commencement of service of each and every member of Class II staff on January 1, 1962 now exceed Rs. 500/ p.m.
This of course was done with a view to withdrawing the whole class from the ambit of the reference, because it is supposed, no member of the class can now come within the definition of 'workman '.
We shall, of course, decide the question whether the resolution has that effect.
If it does, it certainly relieves us of the task of considering scales of pay for these employees for no remit is now possible as no National Tribunal is sitting.
The scales have been accepted as generous, the dispute regarding scales of pay for Class II employees under the reference, really ceases to be a live issue".
The decision, therefore, must be understood in the light of the above observations.
The reason for this conclusion is that if there are no workmen of the category with respect to whom a dispute has been referred the Tribunal cannot be called upon to prescribe a wage structure for non existing workmen, nor does it have the jurisdiction to do so.
The dispute in this sense must be deemed to have lapsed.
The question therefore to be determined in this case is whether as a matter of fact there are any workmen now working in a Supervisory capacity who are drawing more than Rs. 500/ , so that it would be futile for us to direct the Tribunal to fix scales of Day and dearness allowance in respect of a category of employees who are no longer workmen and with respect 3 90 to whom the reference can be said to have been withdrawn as in the case of the Reserve Bank of India.
In 'Support of this contention that there are in fact no supervisors at present who can be termed workmen in the two Companies the learned Advocate for the Respondents asked for permission to file an affidavit which permission we gave with liberty to the Appellant to file a counter.
Accordingly the Appellant, has filed a counter and the Respondents have submitted their rejoinders.
In paragraph 3 of the affidavit filed on behalf of the Respondents it is stated that the Second Respondent Company namely Greaves Cotton & Crompton Parkinson Pvt.
Ltd. (Crompton Greaves Ltd).
, employed 15 employees in the Supervisory cadre as shown in the statement filed in pursuance of the Tribunals order dated 15 1 64 but as on the date of the affidavit only four persons remained in the Supervisory cadre Grade 11.
There are no person employed in other Supervisory grade.
It was.also pointed out that all these 4 employees were in the Supervisory Grade II and drawing a total salary as on July 1971 exceeding Rs. 500/ a month.
In the annexure to the affidavit the reason given was that eachone of the Supervisors at the time when the statement was filedin January 1964 had ceased to be a Super visor.
Out of the15 persons, whose names were given, four resigned.
2 retired, one died two retrenched and two were, promoted as Technical Assistants.
The remaining four of them are all drawing per month a salary of Rs. 545/50 as Grade II Supervisors.
These are S/Shri Deshmukh, Gurbax Singh Kaslay and Pastakia.
In so far as Greaves Cotton & Co. Ltd., is concerned, it was urged that even on 1 1 64 as per exhibit RC. 2 the only three Supervisors who had been working with them were drawing a salary in excess of Rs. 500/ which will take them out of the category of workmen.
These are G. G. Naik, section section Kulkarni, M. D. Gupte, who were on that date drawing a total salary of Rs. 505/ ; Rs. 581/73, and Rs. 545/58 respectively.
This statement was again reiterated in the rejoinder, where it was stated that these were promoted in 1965, the latter two as Assistant Engineers and the former as Superintendent Cone & tube plant.
The counter affidavit by the Appellant sworn to by the General Secretary of the Greaves Cotton & allied Companies Union apart from containing averments which are not germanium to the matter in issue does not traverse the specific statement in respect of each one of the Super visors nor does it say that any of them were still supervisors drawing a salary of less than Rs. 500/ .
It was because of the submission of the learned Advocate on instructions that there are still some Supervisors 3 91 employed by the Respondents who are workmen within the meaning of Sec. 2 (s) of the Act, we had asked him to file a counter giving the name of the person or, persons who are still working in that capacity and their total emoluments; but we find from the counter except for a bare denial no specific averment as aforesaid has been made nor does the counter states categorically who are the persons who are now working as Supervisors and drawing less than Rs. 500/ .
With the counter were annexed two statements Annexure 'A ' & Annexure 'B ', the former showing supervisors working in Greaves Cotton & Crompton Parkinson Ltd., as on 30 5 59 with wage drawn by them on that date, the latter is the statement showing list of Supervisors working in the said Company as on 1st October '65 and the wage drawn by them for the month of September, 1965.
Merely to state that there were Supervisors on 8 4 59 the day on which the Govt.
of Maharashtra made the reference or in 1964 or 1965 or to say that even today there are Supervisors working in that Com pany or that the Industrial Tribunal went into the question and gave its finding against the Company holding that there were Departmental Foremen in the Factories of Greaves Cotton & Co. Ltd., does not advance the case any further than what it was when we permitted the Respondents to file the affidavit.
We cannot therefore accept a mere denial in respect of the crucial point whether today there are Supervisors working in the Respondent Companies who are drawing a basic wage together with dearness allowance of less than Rs. 5001/ as stated in the affidavit and again reiterated in the rejoinder.
The entire argument of the Respondents that any decision given by this Court would be otiose is based upon the existence or non existence of the said fact.
In view of the omission to state specifically in the counter the names of the persons who as of now are still working as Supervisors and drawing less than Rs. 500/ we cannot but hold that the averments made by the Respondents that there are no employees who are working at present in a supervisory capacity and who can be said to be workmen, have been substantiated.
If so, for the reasons given the issue lapses, as such these appeals will be dismissed but in the circumstances without costs.

dataset_name: IN-Abs

summary:
This Court, in appeal against the award of the Industrial Tribunal in disputes between the appellants and the respondents, confirmed the wage scale and dearness allowance fixed by the Industrial Tribnual for the clerical and subordinate staff, but set aside the wage scale and dearness allowance fixed for factory workmen and remanded the matter to the Tribunal for fresh fixation.
When the matter was taken up by the Tribunal the workmen contended that the dispute regarding foremen or supervisors was, concluded by the judgment of this Court on the ground that they were included in subordinate staff.
The Tribunal, however, held that the supervisors were not workmen within the meaning of the , and hence the claim for revision of wages and dearness allowance payable to them should be rejected.
In appeal by special leave to this Court, on the questions : (1) Whether the case of supervisors was remanded to the Tribunal for adjudication; (2) whether it was open to the respondents to contend for the first time after remand that the Tribunal had no jurisdiction to fix the wage scale and dearness allowance of supervisors; (3) Whether supervisors getting less than Rs. 500/ per mensem on the date of reference could raise the dispute regarding wages which would take their 'salary beyond Rs. 500 per mensem; (4) Whether, if the supervisors were all non workmen, the appellants could raise a dispute about their terms of employment, and (5) whether in fact none of the supervisors was drawing less than ' Rs. 500 per mensem when the matter was taken up on remand and the Tribunal was, therefore, right in rejecting the appellant 's claim for fixation of the wage scale and dearness allowance of supervisors.
HELD : (1) The judgment of this Court shows that the subordinate staff and factory workmen were treated separately.
This Court in remanding the case of the factory workmen had under contemplation all those workmen, who on the date of reference, were employed in a supervisory capacity and drawing less than Rs. 500.
There is nothing in the remand order to warrant the submission that the case of supervisors was included in the category of subordinate staff, or, that it was not remanded.
[381 C D, F H] (2) It was open to both parties to raise all the contentions that were open to them, because, on remand the wage structure of the factory workers, including basic wage and dearness allowance, had to be considered afresh.
A reference to paragraphs 15 and 16 of the award, to which the special leave was confined, showed that both parties were proceeding on the basis that the Tribunal had jurisdiction to deal with those supervisors who, under the Act, were workmen.
[382 A C] (3) The Tribunal bad jurisdiction to consider revision of wages, dearness allowance and other emoluments so long as there is a category of 374 workmen who though employed in a supervisory capacity, were drawing less than Rs. 500/ .
Even if they ask for a pay structure which takes their salary beyond Rs. 500/ that by itself does not preclude the jurisdiction of the Tribunal to determine what is the proper wage structure for that class or category of workmen.
Once a Tribunal is vested with the jurisdiction to entertain the dispute it does not cease to have that jurisdiction merely because the claim made goes beyond the wages which takes workmen out of that category and makes them non workmen.
What has to be seen is whether on date of reference there was any dispute in respect of workmen which could be referred under the Act to the Tribunal.
Therefore, supervisory staff drawing less than Rs. 500/ per mensem cannot be debarred from claiming that they should draw more than Rs. 500/presently that is, at the very commencement of inquiry or at Some future stage in their service.
They can only be deprived of the benefits if they are non workmen at the time they seek the protection of the Act.
[383 F H; 384 A C G H] (4) Workmen can raise a dispute in respect of matters affecting the employment, conditions of service etc.
of workmen as well as non workmen, when they have a community of interest.
Such interest must be real and positive and not merely fanciful or remote.
But workmen cannot take up a dispute in respect of a class of employees who are not workmen and in whose terms of employment the workmen have no direct interest of their own.
, What interest suffices as direct is a question of fact; but as long as there are persons in the category of workmen in respect of whom a dispute has been referred it cannot be said that the Tribunal has no jurisdiction, notwithstanding the fact that some or many of them may become non workmen during the pendency of the dispute.
[385 A D; 387 H; 388 A B] All India Reserve Bank of India Employees Association v, Reserve Bank of India; , , Workmen of Dimakuchi Tea Estate vs Management of Dimakuchi Tea Estate, ; , Workmen vs Dahingeapara Tea Estate, A.I.R. 1968 S.C. 1026, Western India Automobile Association vs Industrial Tribunal, Bombay, and Standard Vacuum Refining Company India vs Its Workmen, ; , followed.
(5) In the present case, however, on the evidence, it must be held that when the matter was taken up on remand there were no supervisors drawing less than Rs. 500/ per mensem and hence, there were no employees who were working in a supervisory capacity who can be said to be workmen.
If there are no workmen of the category with respect to whom a dispute ,has been referred, the Tribunal cannot be called upon to prescribe a wage structure for non existing workmen nor does it have jurisdiction to do so.
The dispute with respect to them, must be deemed to have elapsed.
[388 C F; 389 G H]