DAMODARAM SANJIVAYYA

NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

CASE ANALYSIS - WORKMEN OF DIMAKUCHI TEA ESTATE v. THE

MANAGEMENT OF DIMAKUCHI TEA ESTATE, 1958 AIR 353

SUBJECT

LABOUR LAW

NAME OF THE FACULTY

Mr. R. BHARAT KUMAR

Name of the Candidate: AKHIL H KRISHNAN

Roll No.: 2018005
Semester V

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 ACKNOWLEDGMENT

I am highly indebted to my Hon’ble Labour Law Professor, Mr. R. Bharat Kumar, for giving
me a wonderful opportunity to work on the topic: Case Analysis - Workmen of Dimakuchi
Tea Estate v. The Management of Dimakuchi Tea Estate, 1958 Air 353, and it is because of
his excellent knowledge, experience and guidance, this project is made with great interest and
effort. I would also take this as an opportunity to thank my parents for their support at all
times. I have no words to express my gratitude to each and every person who has guided and
suggested me while conducting my research work.

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 TABLE OF CONTENTS

ABSTRACT...............................................................................................................................4
CASE ANALYSIS - WORKMEN OF DIMAKUCHI TEA ESTATE v. THE
MANAGEMENT OF DIMAKUCHI TEA ESTATE, 1958 AIR 353.......................................5
INDUSTRIAL TRIBUNAL...................................................................................................6
SUPREME COURT...............................................................................................................7
CASE LAWS...........................................................................................................................12
Narendra Kumar Sen And Ors. vs All India Industrial Disputes, AIR 1953 Bom 325........12
Central Provinces Transport vs Raghunath Gopal Patwardhan, 1957 AIR 104...................14
Western India Automobile vs The Industrial Tribunal, (1949) 51 BOMLR 894.................15
The Newspapers Ltd vs The State Industrial Tribunal, 1957 AIR 532................................17
D. N. Banerji vs P. R. Mukherjee And Others, 1953 AIR 58..............................................18
Birla Brothers Ltd. v. Modak', ILR (1948) 2 Cal 209 (B)....................................................19
R. v. National Arbitration Tribunal, Ex parte Keabble Press, Ltd. [1943] 2 A.E.R. 633.....20
The Workmen vs Greaves Cotton & Co. Ltd. & Ors, 1972 AIR 319..................................21
Director-HR, Ushodaya Enterprises Pvt. Ltd. V. Dy. Secy to Govt., State of A.P., 2012 (6)
ALD 555...............................................................................................................................22
Himachal Futuristic Communications Ltd. V. State of HP, 2014 (3) ShimLC 1363...........23
Voltas Limited V. State of Maharashtra and Ors., 2013 (6) MhLj 460...............................24
Hindustan Unilever Limited and Anr. V. State of Assam and Ors, (2013) 1 GLR 173.......25
Chandrasekhara Sharma v. C. Krishnaiah Chetty Jewellers Private Limited, 2012(4) Kar LJ
279........................................................................................................................................26
Standard Chartered Grindlays Bank Retired Employees Association v. Union of India,2007
II LLJ 887.............................................................................................................................27
John Joseph Khokar v. Bhadange B. S. & Ors,1998 (1) LLJ 447 (Bom)............................28
CONCLUSION........................................................................................................................30

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 ABSTRACT
The question for decision in this case was whether a dispute raised by the workmen relating
to a person who was not a workman could be an industrial dispute as defined by S. 2(k) of the
Industrial Disputes Act, 1947, as it stood before the amendments of 1956. The appellants,
who were the workmen of Dimakuchi Tea Estate, espoused the cause of one Dr K. P.
Banerjee, Assistant Medical Officer, who had been dismissed unheard with a month's salary
in lieu of notice. The dispute raised was ultimately referred by the state government for
adjudication under s. 10 of the Industrial Disputes Act. Both the Tribunal and the Appellate
Industrial Tribunal took the view that as Dr Banerjee was not a workman within the meaning
of the Act, and the dispute was not an industrial dispute as defined by S. 2(k). On appeal, the
Supreme Court said, there can be no question about the status of Dr Banerjee as a ‘non
workman’. It upheld the decisions of both the Tribunal and the Appellate Industrial Tribunal
and dismissed the appeal by the workmen.

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 CASE ANALYSIS - WORKMEN OF DIMAKUCHI TEA ESTATE v.
THE MANAGEMENT OF DIMAKUCHI TEA ESTATE, 1958 AIR 353

COURT: SUPREME COURT OF INDIA

CASE NAME: Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea
Estate

CITATION: 1958 AIR 353

BENCH: SUDHI RANJAN DAS (CJ), S K DAS J., A K SARKAR J.

AUTHOR: SUDHI RANJAN DAS

DELIVERED ON: 04/02/1958

RELAVENT ACT(S): INDUSTRIAL DISPUTES ACT, 1947

"S. 2 (k): "Industrial dispute" means 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;"

"S. 2 (s): " Workman " means any person employed (including an apprentice) in any industry
to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the
purposes of any proceedings under this Act in relation to an industrial dispute, a workman
discharged during that dispute, but does not include any person employed in the naval,
military or air service of the Government. "

FACTS OF THE CASE

The appellants in this case are the workmen of Dimakuchi Tea Estate represented by Assam
Chah Karmachari Sangha. The respondent is the management of Dimakuchi tea estate. The
dispute in this case is about the dismissal of one Dr K P Banarjee who was appointed as the
assistant medical officer of Dimakuchi Tea Estate with effect from November 1, 1950. He
was appointed based on a satisfactory medical report and on probation for three months. The
conditions for this probationary appointment are as follows –

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 a) The person can be terminated with a seven days’ notice if he/she is found to be
unsuitable for the employment.
b) An instant dismissal, if found guilty for misconduct.
c) The person will be confirmed in the garden service if at the end of the probationary
period he/she is found to be suitable for employment.

In February 1951, 3 months after his initial employment, Dr Banerjee was given an increment
of ₹5 per mensem. But on April 21, 6 months after his initial employment, Dr Banerjee
receives a letter from the manager of the tea estate stating his instant dismissal from
employment and payment of one month’s salary in lieu of notice. On enquiring about the
reason for his sudden dismissal the management cited the reason to be “on the medical side”
and “the deceitful manner in which you added figure to the requirement of the last medical
indent after it had been signed by Dr Cox”. On enquiry by the Secretary of Assam Chah
Karmanchari Sangha, which espoused the cause if Dr Banerjee, the manager informed that Dr
Banerjee was found to be incompetent for medical duties by the chief medical officer (Dr
Cox) and doesn’t have sufficient knowledge to do his duty. This reply did not satisfy the
appellants.

After certain unsuccessful conciliation attempts the matter was referred to a board known as
the tripartite appellate board consisting of the labour commissioner of Assam, two members
of the Assam branch of the Indian Tea Association and Assam Chah Karmachari Sangha
respectively. This board recommended that Dr Banerjee should be reinstated. On which the
two parties had disagreements on.

Then, on December 23, 1953, the Government of Assam issued a notification referring the
dispute, under Section 10 of the Industrial dispute Act, for adjudication to a tribunal.

INDUSTRIAL TRIBUNAL

ISSUE

The issue under consideration was as follows:

“a) Whether the management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P.
Banerjee, A. M. O.?

b) If not, is he entitled to reinstatement or any other relief in lieu thereof?”

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RESPONDENTS CONTENTION

The respondents challenged the jurisdiction of the tribunal on the basis that Dr Banerjee was
not a ‘workman’ with in the meaning of the act. Hence, there is no ‘industrial dispute’ as Dr
Banerjee not being a ‘workman’ fails to satisfy the conditions set out by the definition of
‘Industrial dispute’ under the Industrial Disputes Act.

HELD

Dr Banerjee is not a ‘workman’ within the meaning of the act. Therefor the case is beyond
the jurisdiction of the tribunal.

An appeal to the Labour Appellate tribunal of India was dismissed affirming the decision of
the lower tribunal. The appellants accordingly moved to the Supreme Court.

SUPREME COURT
ISSUE

“Whether a dispute in relation to a person who is not a workman falls within the scope of the
definition of industrial dispute contained in s. 2 (k) of the Industrial Disputes Act, 1947.”

APPELLANT’S CONTENTIONS

The counsel for the appellant contented that the term ‘anyone’ as mentioned in S.2(k) of the
Industrial dispute act must be defined in its literal sense so that it will include non-workmen
too. Further, realizing the absurd cases that might arise in defining so; the counsel for the
appellant conceded to setup some limitation to the width of the term ‘anyone’ as follows:

1) “The dispute must be a real and substantial one in respect of which one of the parties
to the dispute can give relief to the other; e. g., when the dispute is between workmen
and employer, the employer must be in a position to give relief to the workmen.”
2) “The industrial dispute if raised by workmen must relate to the particular
establishment or part of establishment in which the workmen are employed so that the
definition clause may be consistent with s. 18 of the Act.”

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 3) “The dispute must relate to the employment, non- employment or the terms of
employment or with the conditions of labour of any person, but such person must be
an employee discharged or in service or a candidate for employment.”
“the person about whom the dispute has arisen need not be a workman within the
meaning of the Act, but he must answer to the description of an employee, discharged
or in service, or a candidate for employment.”
4) “The workmen raising the dispute must have a nexus with the dispute, either because
they are personally interested or because they have taken up the cause of another
person in the general interest of labour welfare.”

Staying inside the constraints set by these limitations, the counsel for the appellant argues
that, the present dispute can be considered an ‘Industrial dispute’ under S.2(k) of the
Industrial dispute act based on the following reasons:

1) The employer can give relief in matter of termination of Dr Banerjee.

2) Dr Banerjee belongs to the establishment managed by the respondent.
3) The dispute is regarding the termination of an employee (though not a workman)
4) The workmen are vitally interested in this dispute as Dr Banerjee belonged to their
trade union and an ex parte decision to dismiss an employee without prior notice is a
matter of general interest to all the workmen in the establishment.

The counsel for the appellants brings in to the courts attention the definition of ‘trade
disputes’ under Indian Trade Unions Act, 1926 in which the word ‘workmen’ is defined as
"all persons employed in trade or industry whether or not in the employment of the employer
with whom the trade dispute arises."

The counsel for the appellant also relied upon decision of the full bench Appellate tribunal in
number of appeals reported in 1952 Labour Appeal Cases, p. 198, where the majority
expressed the view “that a dispute between employers and workmen might relate to
employment or non- employment or the terms of employment or conditions of labour of
persons who were not workmen, and the words ‘any person’ used in the definition clause
were elastic enough to include an officer, that is, a member of the supervisory staff.”

RESPONDENT’S CONTENTIONS

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The counsel for the respondent argued that it is not its contention that the word ‘any person’
should be understood as referring only to a ‘workman’ but it must include all persons of the
workman class.

JUDGEMENT

The majority in the bench concurred with the decisions of the lower courts and dismissed the
appeal.

REASONS

The court considered S. 2(k) of the industrial dispute act and analysed its three parts:

i) There must be a dispute of difference

ii) The dispute or difference must be between employers and employers, employers
and workmen, workmen and workmen
iii) The dispute or difference must be connected with the employment or non-
employment, the terms of employment or the condition of the labour, of any
person.

Considering the term ‘any person’ being the bone of contention in this case, the court tries to
interpret the term ‘any person’.

According to the court, the term ‘any person’ cannot include anybody and everybody in the
whole wide world. It is necessary to put certain limitations while defining this term.

No dispute between employer and employee can exist if there never existed or can never
possibly exist an employer – workman relation between them. The definition clause,
according to the court, must be read in context of the subject matter and scheme of the act;
and must be read with the object of legislature in view.

Hence, examining the salient provisions of this act, the court came to the following
conclusions:

The principle objects of the act are:

i) “the promotion of measures for securing and preserving amity and good relations
between the employer and workmen;”

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 ii) “an investigation and settlement of industrial disputes, between employers and
employers, employers and workmen, or workmen and workmen, with a right of
representation by a registered trade union or federation of trade unions or
association of employers or a federation of associations of employers;”
iii) “prevention of illegal strikes and lock-outs;”
iv) “relief to workmen in the matter of lay-off and retrenchment;”
v) “collective bargaining.”

The act, according to the court, is primarily meant for regulating the relations between
employers and workmen of the past, future and present. The act also draws a distinction
between ‘workmen’ and the managerial/supervisory staff and is made to benefit the former.

Answering to the limitations put by the counsel for the appellant; the court conceded that
there is no real difficulty with regards to the first two limitations. But there are certain
concerns in accepting the third and fourth.

The court, while it agrees that the term ‘any person’ cannot be completely equated with ‘any
workmen’ as defined in the act, its definition also cannot be as wide as formulated by the
counsel for the appellant.

The court finds that, prior to the amendments of 1956, the term ‘workmen’ included only the
workmen discharged during the dispute barring the workman who was discharged prior to the
dispute; even if the reason for the dispute is itself the discharge of the person. Hence, it can
be understood from this context that the reason the legislature used the expression ‘any
person’ is to include beyond any doubt the non-employment of such a dismissed workman
within the ambit of an industrial dispute. There is also a wide gap between the meaning of
‘Workmen’ and ‘Employee’ under the definition of ‘workmen’ in S. 2(s) as it stood prior to
1956. All the workmen, according to the act, is an employee but not all employees are
workmen; which excluded the supervisory staff from the definition of ‘workmen’. Limitation
3 ignores this distinction and tries to equate ‘any person’ to any ‘employee’ in the past,
present and future which is not in consistence with the object of legislature in view.

The court further questions the direct and substantial interest of the workmen on the
employment, non-employment, terms of employment, and condition of labour of the
supervisory staff who is a ‘non-workman’ under the provisions of the act and on whom the
act has not conferred any benefit. According to the court, the expression ‘any person’ means
a person in whose employment, non-employment, terms of employment and conditions of

10
labour the workmen as a class have a substantial and direct interest and also with whom they
have a community interest. In the absence of these interests the dispute cannot be considered
to be a real dispute.

The court relies on Narendra Kumar Sen v. All India Industrial Disputes (Labour Appellate)
Tribunal, AIR 1953 Bom 325 while considering the fourth limitation put fourth by the
counsel for the appellant. It considers limitation 4 to be “too generally stated’. The court
states that “the principle of solidarity of the labour movement or general welfare of labour
must be based on or correlated to the principle of community of interest” and the workmen
can raise dispute only in respect to the issues of whom they have a direct and substantial
interest as mentioned by Chagla C. J. in the case of Narendra Kumar Sen v. All India
Industrial Disputes (Labour Appellate) Tribunal, AIR 1953 Bom 325.

The court also distinguished between an individual dispute and industrial dispute. An
industrial dispute is an action to obtain new industrial conditions, not for a specific individual
working in the industry but for the class of employees working there. Thus, this suit by the
plaintiffs in order to obtain a favourable decision for an individual of whom they do not have
a direct or substantial interest cannot be considered as an industrial dispute.

On the definition of ‘workmen’ including all the employees in the Indian Trade Unions Act
as argued by the counsel for the appellant, the court stated that the provisions of the act have
different objects in view. The object, scheme and purpose of both the acts are different and
each act must be interpreted on its own terms. Thus, applying the same meaning for similar
words in both the acts cannot be accepted.

HELD
that the expression 'any person' occurring in S. 2(k) of the Industrial Disputes Act, 1947,
cannot be given its ordinary meaning and must be read and understood in the context of the
Act and the object the Legislature had in view. Nor can it be equated either with the word
'workman' or 'employee'.

The two tests of an industrial dispute as defined by the section must, therefore, be, one the
dispute must be a real dispute, capable of being settled by relief given by one party to the
other, and two,+++++ the person in respect of 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, and this must
depend on the facts and circumstances of each particular case. Applying these tests, the
11
dispute in the present case which was in respect of a person who was not a workman and
belonged to a different category altogether, could not be said to be a dispute within the
meaning of S. 2(k) of the Act.

CASE LAWS

Narendra Kumar Sen And Ors. vs All India Industrial Disputes, AIR 1953 Bom 325
FACTS

Some of the employees of the Ford Motor Co. formed a union to protect their interests, and
the petition is filed by the five petitioners on behalf of themselves and all other workmen
employed by the second respondent company. This union raised an industrial dispute in 1946.
It was referred to the Industrial Tribunal which gave its award on 5-5-1913. There was
another dispute between the workmen of the Ford Motor Co. and the company again in
September 1949 and it was referred to the Industrial Tribunal by Government under Section
10(ii) of the Industrial Disputes Act. The award in this dispute was given on 20-1-1951.
There was an appeal from this award and the Appellate Tribunal confirmed the award. There
was a third dispute which was referred to the Industrial Tribunal by Government on 16-8-
1950. In this dispute the award was given on 25-10-1951. An appeal was preferred from this
award and the Appellate Court gave its decision on 29-5-1952.

ISSUE

Whether the Labour Tribunal has the jurisdiction to adjudicate with regard to the scales of
pay and the right of bonus of employees of the second respondent company who are not
workmen of the company within the meaning of the Industrial Disputes Act?

REASONING

The appellant’s interpretation of the expression "industrial dispute" and particularly of "any
person", it would mean this that the workmen upon whom rights have been conferred by the
Act can dictate to the employer to confer certain benefits upon his employees who do not fall
in the category of workmen. Further, another curious result of the appellant’s argument
would be that although the non-workmen or persons not falling in the category of workmen

12
as defined by the Act could not themselves raise any dispute and make it an industrial dispute
and have it adjudicated upon, they could yet have their rights determined vicariously through
the agency of some other parties. That again is an interpretation which seems to be totally
inconsistent with the scheme of the Act, because the award that is given by the Tribunal and
which is made binding is an award which can only be made binding upon the parties to that
award, and it is difficult to hold that although persons who are not workmen cannot be parties
to a dispute, yet the employers can be bound as against them by the Tribunal adjudicating
upon their rights. Therefore, when Section 2(k) speaks of the employment or non-
employment or the terms of employment or the conditions of labour of any person, it can
only mean the employment or non-employment or the terms of employment or the conditions
of labour of only those persons in the employment or non-employment or the terms of
employment or with the conditions of labour of whom the workmen themselves are directly
and substantially interested. If the workmen have no direct or substantial interest in the
employment or non-employment of a person or in his term of employment or his conditions
of labour, then an industrial dispute cannot arise with regard to such person. It is clear that in
this particular case it cannot be said that the workmen of the respondent company are
interested in the scales of pay of, or the bonus to be given to, divisional heads and foremen.
They may strongly feel about the rights of these employees, they may have strong sympathy
for their claims, they may even be oppressed by a sense of injustice, but these are all
considerations foreign to the object of the Act. It is only primarily in their' own employment,
in their own terms of employment, in their own conditions of labour that workmen are
interested and it is with regard to these that they are entitled to agitate by means of raising an
industrial dispute and getting it referred to a Tribunal by Government under Section 10.

HELD

That both the Industrial Tribunals and also the Labour Appellate Tribunal were right in taking
the view that they had no jurisdiction to adjudicate upon the question to pay scales and the
right to bonus of the employees of the second respondent company who were not workmen
within the meaning of the Act.

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Central Provinces Transport vs Raghunath Gopal Patwardhan, 1957 AIR 104
FACTS

June, 1950, goods belonging to the appellant company were stolen and as the result of an
enquiry the respondent was dismissed on the ground of gross negligence and misconduct. He
was prosecuted on a charge of theft but was acquitted in March, 1952, and thereupon he made
an application before the Labour Commissioner for reinstatement and compensation under s.
16(2) of the Central Provinces and Barar Industrial Disputes Settlement Act, 1947.

ISSUE

Whether an application for reinstatement and compensation by a dismissed employee is

maintainable under s. 16 of the Act?

REASONING

The court relied on the judgement in Western India Automobile Association v Industrial
Tribunal, Bombay to decide whether a dismissed employee is an employee as defined under
S. 2(10) of the Industrial Dispute Act. There, it was held that the definition in s. 2(k)
including as it did, all disputes or (1) differences in connection with employment or non-
employment of a person was sufficiently wide to include a claim for reinstatement by a
dismissed workman. The court also dismissed various other contentions of the appellant on
merit.

HELD

A dispute between an employer and an employee who has been dismissed and who makes a
claim for reinstatement and compensation, would be an industrial dispute within the meaning
of s. 2(12) of the Act, and s. 16 enables the employee to enforce his individual rights against
an order of dismissal, discharge, removal or suspension.

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Western India Automobile vs The Industrial Tribunal, (1949) 51 BOMLR 894
FACTS

A writ of prohibition by a single bench of the Bombay High Court was cancelled by the
division bench. The dispute was referred by the state under Section 10 of the Act to the
Industrial tribunal. The Single bench held that, the Western India Automobile Association
was an employer and any dispute between it and its workers fell within the ambit of the Act.
It was also held that the dispute as to reinstatement of dismissed employees was outside the
scope of the Act. The Division bench conformed the decision of single bench in the first
point. However, on the second point it held that the that the dispute as to reinstatement of
dismissed employees was an "industrial dispute" between the employer and the employees
within the meaning of the Act and the Tribunal had jurisdiction to adjudicate upon it.

ISSUES

a) whether the Act has application to cases of private employers or is limited only to cases
where either the Central or the Provincial Government, or a local authority is the
employer

b) whether the dispute as to reinstatement of certain dismissed employees is a matter

which is preferable to the Tribunal.

REASONING

The preamble to the Act gives a wide scope to it, when it says that it is expedient to make
provision for the investigation and settlement of industrial disputes and for certain other
purposes thereinafter appearing. It does not limit its sphere to businesses run only by the
Government or local authorities. The scheme of the Act fits in with the interpretation we are
placing on the expression "employer", and any other construction of it would create
incongruity and repugnancy between different sections of the Act. The Act was intended to

15
be a more comprehensive law on trade disputes than its predecessor, the Trade Disputes Act,
1929. It was not denied that under that Act, the term "employer" included within its scope
industries owned by persons other than Government departments or local authorities.

To answer the second question, the court relied on the definition by Lord Porter in National
Association of Local Government Officers v. Bolton Corporation [1943] A.C. 166, 191.,
worded in very wide terms which unless they are narrowed down by the meaning given to the
term "workman" would seem to include all employees, all employment and all workmen,
whatever the nature or scope of the employment may be. Reinstatement is the employment of
a person non-employed and is thus within the words of Lord Porter "all employment." Thus,
it would include cases of re-employment of persons victimized by the employer. The court
also added that according to the act reinstatement may be an essential relief to be provided for
in any machinery, devised for settlement of industrial disputes. "Any dispute connected with
employment or non-employment" would ordinarily cover all matters that require settlement
between workmen and employers, whether those matters concern the causes of their being
out of service or any other question, and it would also include within its scope the reliefs
necessary for bringing about harmonious relations between the employers and the workers.

HELD

On the first question the court upheld the decision of the single bench and division bench. On
the second question it held that the Tribunal has jurisdiction to adjudicate on the dispute and
it can be trusted to do its duty and it cannot be said that it will give the reinstatement relief
unless it thinks it is necessary to do so.

16
The Newspapers Ltd vs The State Industrial Tribunal, 1957 AIR 532
FACTS

The 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.

ISSUE

Whether a dispute between an employer and a single workman falls within the definition of
"industrial dispute" under the U.P. Industrial Disputes Act, 1947.

REASONING

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

17
with the individual workman and thus create conditions contemplated by s. 3 of the U.P. Act
which is the foundation of State Governmental action under that Act.

HELD

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. Industrial Disputes Act, 1947. 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.

D. N. Banerji vs P. R. Mukherjee And Others, 1953 AIR 58

FACTS

The chairman of a municipality dismissed two of its employees, namely, the Sanitary
Inspector and the Head Clerk, and-the Municipal Workers' Union, of which these two
employees were members questioned the propriety of the dismissal and claimed that they
should be re-instated and the matter was referred by the Government to the Industrial
Tribunal for adjudication under the Industrial Disputes Act, and an objection was raised by
the municipality that the dispute was not an industrial dispute. the Tribunal held that the
dismissals were clear cases of victimisation and hence wrongful.

ISSUE

Whether the employees of municipalities could be said to be engaged in an industrial dispute

within the meaning of section 51, sub-section 35, of the act?

REASONS

Industrial disputes occur when, in relation to operations in which capital and labour are
contributed in co-operation for the satisfaction of human wants and desires, those engaged in
co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a
share of the product or any other terms and conditions of their co-operation. Profit making
may not be a necessity for something to be an industry.

HELD

18
There was no ground urged before the Supreme court that the Sanitary Inspector and the
Head Clerk of the Municipality were officers and not "workmen " within the meaning of the
Act. The dispute raised on their behalf by the Workers' Union of which they were members
is, in our view, an " industrial dispute " within the meaning of the Act.

Birla Brothers Ltd. v. Modak', ILR (1948) 2 Cal 209 (B)

FACTS

Birla Brothers had dispensed with the services of four employees and had transferred an
employee from Calcutta to Budge Budge, and the case of the trade union of the workers of
Birla Brothers was that these were acts of victimisation as the employees concerned were
permanent members of the union.

ISSUE

Whether this complaint of the workmen could constitute the subject-matter of an industrial
dispute?

REASONS

The dismissal of these workmen was the main cause of the dispute and the dispute was with
the whole body of workmen and not only with the workmen who were actually dismissed,
and according that being so, it was quite clear that there was an industrial dispute between
Birla Brothers and the trade union representing the workmen. Therefore, in the dismissal of
the workmen all the workmen were directly and substantially interested because it was a
question of victimization and that affected the whole trade union movement. These workmen
were dismissed during the dispute and therefore they fell within the definition of "workman".

HELD

It can constitute as a subject matter of an industrial dispute.

19
R. v. National Arbitration Tribunal, Ex parte Keabble Press, Ltd. [1943] 2 A.E.R. 633

FACTS

In this case a member of a trade union had formerly been employed by a newspaper. The
newspaper was ordered to cease publication for a time. When this ban on publication was
lifted, the newspaper, according to the custom of the trade, applied to the union for suitable
workmen. The union sent the former employee in question, but the newspaper refused to
accept him in any position on their staff. The union insisted on his reinstatement and called a
strike in consequence.

ISSUE

Whether it is a trade dispute within the meaning of the Conditions of Employment and
National Arbitration Order, 1940.

REASONING

In the circumstances the dispute was between the appellants and their workmen and the
National Arbitration Tribunal had jurisdiction to entertain the reference. It was noticed that
the whole dispute in this case related to reinstatement. It was not contended that the dispute
as to reinstatement was outside the scope of the definition of the phrase "trade dispute." On
the other hand, it was assumed that this dispute was within the ambit of the definition.

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The Workmen vs Greaves Cotton & Co. Ltd. & Ors, 1972 AIR 319
FACTS

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 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 Industrial Disputes Act 1947 (hereinafter called the 'Act'). had failed, the
disputes in respect of the aforesaid matters were ultimately referred by the Maharashtra
Government. The Tribunal, however, held that the supervisors were not workmen within the
meaning of the Industrial Disputes Act 1947, and hence the claim for revision of wages and
dearness allowance payable to them should be rejected.

ISSUES

Whether, if the supervisors were all non-workmen, the appellants could raise a dispute about
their terms of employment?

REASONING

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

21
Tribunal has no jurisdiction, notwithstanding the fact that some or many of them may
become non-workmen during the pendency of the dispute.

HELD

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.

Director-HR, Ushodaya Enterprises Pvt. Ltd. V. Dy. Secy to Govt., State of A.P., 2012
(6) ALD 555
FACTS

House Keeping Assistant was appointed through letter of employment issued to him. Said
person was transferred to work at another office of petitioner company. However, said person
had not reported to duty pursuant to order of transfer and that act of said person was
construed as wilful disobedience. Petitioner company terminated contract of employment of
said person. Deputy Commissioner of Labour had forwarded representation made by General
Secretary of respondent no. 5 to petitioner company. Conciliation Officer and Assistant
Commissioner of Labour issued notice to petitioner that complaint made by General
Secretary was admitted to conciliation.

ISSUES

a) Whether there was an 'industrial dispute' as defined under Section 2(k) of Act

b) Whether 5th respondent-Trade Union, had no locus standi to espouse a complaint on

behalf of concerned workman.

c) Whether concerned workman on his own volition and conduct ceased to be an employee of
Petitioner company and hence question of adjudication of any dispute of a person who was
not in employment of Petitioner would not arise.

REASONING

A small-time housekeeping assistant was effectively shown door and when his cause was
sought to be espoused by trade union, petition was instituted questioning validity of very

22
reference. By participating in adjudicatory process, petitioner was not going to be any poorer
but it could have fair chance to establish its bona fides. However, instant petition was part of
'stone walling' tactics normally adopted by employers. Cumbersome and expensive process of
litigation could cause any amount of frustration to individual workman. Further, even though
cause was sponsored by trade union, even such trade unions did not have overflowing cash
chests with them. Therefore, even recognized trade union could not be able to match litigative
zeal of employer.

HELD

Any dispute which was connected with employment or non-employment or terms of

employment or with conditions of labour could form an industrial dispute under Section 2(k)
of Act.

Himachal Futuristic Communications Ltd. V. State of HP, 2014 (3) ShimLC 1363
FACTS

The four writ petitions involve common questions of law and fact hence taken up together for
disposal by this common judgment. In all the four references, petitioner(s) pleaded that
respondent(s) No. 2 were not workmen, in terms of the Mandate of Section 2(s) of the Act.
As they were discharging their supervisory or managerial function and so many workmen
were under their control.

ISSUE

Whether the respondent(s) No. 2 herein were workmen and were discharging supervisory or
managerial function?

REASONING

The Court while examining whether an employee is a workman in terms of the mandate of
Section 2(s) of the Act or otherwise, has to take into account so many aspects and it is for the
employer to plead and prove that employee is not a workman. Applying the test to the instant
case and while keeping in view the definition under Section 2(s) of the Act, the writ

23
petitioner(s) have specifically averred in their reply before the Tribunal that they had
informed respondent(s) No. 2 herein that there was no manufacturing activities in the plant
thus, no work was expected in near future and for that reason their services were terminated,
which suggests that respondent No. 2 herein were not discharging supervisory or managerial
function but were performing manufacturing activities and because of lack of manufacturing
activities in the plant, their services were terminated. Thus, it is admission on the part of the
writ petitioner(s) that respondent(s) No. 2 herein were working as workmen.

HELD

It can be concluded that the said Engineers are skilled workmen, in terms of Section 2(s) of
the Act and termination orders were not made in accordance with the provisions of Section
25N of the Act and the termination orders made by the petitioner(s) are set aside.

Voltas Limited V. State of Maharashtra and Ors., 2013 (6) MhLj 460
FACTS

The petitioner challenges the order of reference dated 9th July, 2012.The order of reference
concerns "contract labour", who are not employees of the petitioner company. There is no
'employer-employee' relationship between the petitioner company and such "contract labour".
As such, the dispute is in respect of the persons, who are not "workmen" under Section 2(s)
of the said Act.

ISSUES

Whether 'employee-employer relationship' exist between the parties or not?

REASONING

It was not possible to truncate order of reference, particularly when it could not be disputed
that in making reference, appropriate Government merely exercises administrative powers.
Merely because Tribunal might not be ultimately in position to grant some of reliefs, was no
ground to interfere with impugned reference order. Thus, appropriate Government exercises

24
administrative function and not adjudicatory function, impugned reference order could not be
faulted.

HELD

The appropriate Government in making a reference of section 10(1) of Industrial Disputes

Act, 1947 exercises administrative powers and that the High Court ought not to examine a
challenge to a reference order, as if sitting in appeal.

Hindustan Unilever Limited and Anr. V. State of Assam and Ors, (2013) 1 GLR 173
FACTS

Long Term Settlement (LIS) was entered into between Hindustan Unilever Limited (PPF)
Shramik Sangha (respondent No. 6) and management to settle the dispute relating to lockout.
An industrial dispute was thereafter raised by the Hindustan Unilever Limited (PPF) Shramik
Sangha (respondent No. 6) on the issue relating to stoppage of membership fee deduction
from the wages of the workmen and signing of new LTS. As both respondent Nos. 6 and 7
claimed to represent majority of the workmen, management requested the State to facilitate
an election-based membership verification process. However, respondent No. 6 objected. In
view of such a situation, management decided to conduct verification by interview method
under the supervision of a retired Supreme Court Judge. But it was objected to by respondent
No. 6. Aggrieved, the management has filed the present writ petition.

ISSUES

a) Whether ascertainment of membership strength of a union be a subject matter of industrial

dispute or not?

b) Whether the management should treat respondent No. 6 as the majority union or not?

REASONING

An industrial dispute, comprises of three components firstly, the factum of a real or

substantial dispute, secondly, to the parties to the dispute and lastly, to the subject matter of
that dispute. The subject matter may relate to any of two matters, namely (i) employment or

25
non-employment and (ii) terms of employment or conditions of labour of any person. To
prove an industrial dispute all three components must co-exist. In the absence of even one,
the dispute will not be an industrial dispute. Ascertainment of membership strength of a trade
union per se would not be a dispute relatable to the employment or non-employment or the
terms of employment or the conditions of labour of the workmen working in the factory of
the management. Thus, the conclusion is inevitable that the process of conducting
membership verification of rival unions by the management would not be an industrial
dispute as per the statutory definition of industrial dispute under Section 2(k) of the Act.

In so far, the second question, as to whether the management should treat respondent No. 6
as the majority union, is concerned, it does not arise for consideration at all as the same was
not a subject matter of the conciliation proceeding. If no dispute is raised by the employee
with the management, any request send by them to the Government would only be a demand
by them and not an industrial dispute between them and their employer.

HELD

A mere demand to a Government without a dispute being raised by the workmen with their
employer cannot become an industrial dispute.

Chandrasekhara Sharma v. C. Krishnaiah Chetty Jewellers Private Limited, 2012(4)

Kar LJ 279
FACTS

Petitioner was appointed as a sales man in the respondent company and was asked to undergo
training which was extended and was converted into probationary period, and salary was also
increased. Petitioner was informed by respondent that his probationary services are no longer
required with effect from the close of 8th September, 1998 and petitioner was paid a sum of
Rs. 9,351.25 in full and final settlement of accounts. Petitioner was also informed that this
action was in accordance with Section 2(s) of the Industrial Disputes Act, 1947. Aggrieved
by the said action petitioner raised a dispute before the Labour Commissioner. Management
contended that the petitioner is no more a workman.

ISSUES

Whether the petitioner was a workman or not?

REASONING

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Courts have not formulated an explanation as to who are considered as people employed in
"manual and operational work." Manual or operational work may be classified as one that
requires no special set of skills. It is mostly associated with physical labour. By way of
exception, the courts have excluded such works which need imaginative or creative quotient.
A work that requires training would imply that the work is of special nature and requires a
distinct application of mind. It is not considered a manual/clerical/operational work or
technical work. However, in a few cases the courts have deviated from strict interpretation
and excluded ancillary creative works while considering the definition of "workman." A
person suggesting ways to increase sale is using an imaginative mind and therefore, is out of
the scope of this definition. However, a person carrying out such ideas by distributing
pamphlets or engaging in door-to-door publicity will be covered as a "workman" under the
ID Act.

HELD

A salesperson may use various techniques to convince the consumers but that is not
considered as use of creative or imaginative faculty and such sales person, even if he goes
through a training to acquire knowledge about the product, will not be excluded from the
definition of a workman.

Standard Chartered Grindlays Bank Retired Employees Association v. Union of

India,2007 II LLJ 887
FACTS

This writ application is filed by the petitioners for a direction upon the Regional Labour
Commissioner (Central), Kolkata, to submit his failure report on the conciliation of the
industrial dispute regarding denial of higher pensionary benefits to the employees of the
respondent bank who retired before November 1, 2001 and also for other consequential
reliefs. The petitioner No. 1 is a Regional Trade Union of the retired employees of the
respondent bank. The petitioner No. 2 & 3 are the retired employees of the respondent bank.
The respondent bank was formerly known as ANZ Grindlays Bank. It is renamed and known
as the Standard Chartered Grindlays Bank. While enhancing the upper limit of pension from
Rs. 6,000/- to 9,000/- of the employees retired on or after November 1, 2001, the respondent
bank did not revise the quantum of pension of the employees who had already retired from
the services of the bank. "The Standard Chartered Grindlays Bank Retired Employees

27
Welfare Association", registered under the West Bengal Societies Registration Act, 1961,
made several representations to the respondent bank for consideration of the case of the
retired employees on the question of extending the benefit of enhanced pension to the retired
employees. It was then contended that the retired workers furthermore do not fall under the
definition of “workmen”.

ISSUES

Whether the retired workers fall within the definition of “workmen” under Industrial Dispute
Act?

REASONING

The case Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate
was referred, for the purpose of interpretation of the term “any person” as defined in Section
2 (k) of the Industrial Dispute Act and stated that the retired workmen will fall within the
definition of “workmen”.

HELD

Hence, it was held that, a retired employee can be included in the term "workman" as defined
in section 2(s) of the Industrial Disputes Act, 1947 and can be a party to an industrial dispute.

John Joseph Khokar v. Bhadange B. S. & Ors,1998 (1) LLJ 447 (Bom)
FACTS

Petitioner and Respondent worked in the Mazagaon Dock Limited, registered under
Companies Act, having its factory at dockyard road, Bombay. Both the petitioner and
respondent were promoted after a period of time. On December 2nd, 1975 Petitioner was
promoted to Special Marine Grade, and thereafter as Mistry on June 1, 1976. The next
promotional post from Mistry is charge hand and Petitioner alleges that one post of charge
hand felt vacant on April 1, 1986. On November 19, 1987 Shri K. D. Loh, the 3rd respondent
was promoted on the post of charge hand w.e.f. December 1, 1986 though according to
Petitioner, the Respondent was much junior to him and was also promoted as Mistry much

28
later than him. The Petitioner filed the complaint before the Industrial Court. The
Respondent`s contention was that the Petitioner is not a workman according to Section 2(s) of
Industrial Dispute Act, since he was holding supervisory work and was in supervisory post.

ISSUE

Whether the petitioner John Joseph Khokar is a workman within the meaning of the
definition under Industrial Dispute Act?

REASONING

The position that emerges from the aforesaid discussion is that in determining the question
whether a person employed by the employer is workman under Section 2(s) of Industrial
Disputes Act or not, the Court has principally to see main or substantial work for which the
employee has been employed and engaged to do Neither the designation of the employee is
decisive nor any incidental work that may be done or required to he done by such employee
shall get him outside the purview of workman, if the principal job and the nature of
employment of such employee is manual, technical or clerical. In hierarchy of employees,
some sort of supervision by the employee over the employees of the lower ladder without any
control may not by itself be sufficient to bring that employee in the category of supervisory,
yet if the principal job of that employee is to oversee the work of employees who are in the
lower ladder of the hierarchy and he has some sort of independent discretion and judgment,
obviously such employee would fall within the category of supervisor. Each case would
depend on the nature of the ditties predominantly or primarily performed by such employee
and whether such function was supervisory or not would have to be decided on facts keeping
in mind correct principles.

HELD

In reference to the Dimakuchi Tea Estate Case it was pointed out that: When a person is
performing various functions, which overlap in their characteristics, the nature of main
function for which the claimant is employed should be considered while proving whether that
person employed comes under the definition of workmen or not.

It was observed by the judge that the Petitioner`s job was to oversee the work of the workmen
under him. In other words, he supervises the work done by the other workmen and the duties

29
and functions of the Petitioner is that of supervisor. In this view of the matter, the finding
recorded by the Industrial Court that Petitioner is not workman is right.

CONCLUSION
The definition of workman is intentionally open ended and courts tend to interpret it as
widely as possible to protect more and more employees. There is no straight jacket formula in
determining whether an employee is a workman. Reference to his designation is not
sufficient, and the true nature of his functions must be examined. Certain general tests to
show that an employee is not a workman are to examine if his job mainly involves a certain
amount of creativity, initiative, independent judgement, and is not mainly of a clerical nature,
or only involving manual labour without proper application of mind, or any such clerical or
manual work is only incidental to his main working. However, these should not be considered
the only guidelines to determine whether or not an employee is a workman, and it may differ
on a case-to-case basis. There seem to be no court decisions which clearly states the list as to
who all fall within the purview of “workmen” by referring to Industrial Dispute Act. Also,
the landmark case of Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi
Tea Estate is a turning point in the Labour legislation, with reference to Industrial Dispute
Act, the case has clearly referred in the above-mentioned cases and its reference is of great
importance to conclude as to who is a workman.

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