THE MANAGEMENT OF INDIAN CABLE CO., LTD., CALCUTTA versus ITS WORKMEN

VENKA'J'ARAMA AIYAR, J.-This is an appeal by spt,'<lial leave against the award of the Industrial Tribunal, Punjab, passed in Reference Ko. 5 ofl959 on February 11, 1960. The appellant is a Public Limited Company incorporated under the Indian Companies Act, 1913, and it carries on business in the manufacture and sale of electric cables, wires etc. Its registered office is at Calcutta and its faotory is located at Jamshedpur. Before January I, '1956, it had no branches and was selliIJg its goods through McEsrs Gillanders Arbuthnot and Co., as its agents. During this period, a company incorporated in England and called the British Insulated Callendars Cables Ltd. referred to as the B.I.C.C. Ltd., in these proceedings was carrying on business in the sale of cables and wires in India with , branches at Bombay, Madras, Calcutta, Delhi, Trivandrum, Ahmedabad, Nagpur, Kanpur, Bangalore and Ambala. Towards the end of 1955, the B.I.C.C. Ltd. decided to stop its trading in India and to close its branches. The appellant Company then decided to take them over and run them as its own. The workmen in the service of the B.I:C.C. Ltd. were most of them offered re-employment on terms and conditions contained in a communication dated November 23, 1955, sent by the a,ppellant to them, and they having accepted them the branches began to function as those of the appellant from January l, 1956. Among the branches thus taken over was the one at Ambala. The business of that · branch consisted, apart from the sale of goods manufactured by the appellant, in the execution of the contracts of the B.I.C.C. Ltd., with the Government of Punjab, which it had taken over. These contracts were about to be completed in the beginning of 1958, and as, having regard to the volume of its own business in that area, the appellant considered that the maintenance of ·a branch at Ambala was unremunerative, it decided to close it. Accordingly on May 8, 1958, it terminated the services of all its workmen at Ambala, numbering 11 in all, paid them their salaries, wages in lieu of notice, retrenchment compensation, gratuity, and provident fund, and wound up the branch. According to the appellant, the workmen accepted these amountB without any protest and co·operated with the management in the despatch of its goods to Delhi and other places. It is the case of the work;men that they received the amounts uuder protest. But nothing, however, turns on thi"· On June 5, 1958, six of the workmen who had been discharged on :lfay 8, 19;!8, sent a representation to the managemont complaining th>tt the closL1re of tho branch was unjL1stilied, that as all the branchos of tho Company formed one unit, tho retrenchment should be done according to "All India soniority basis" and that the workmen. had a legal right to get employment in the other branches. A copy of this representation was sent to the Punjab Government, which issued a notification on .February :!, 1959, referring the dispute for adjudication to the Indus'trial Tribunal. Punjab, under s. (I )(d) of the Industrial Disputes Act, J 947, hereinafU-r referrrd to as "the Act." The reference was in these terms :-

pp. 592–594

"Whether the retrenchment of the following workmen of Ambala Branch of the Indian Cable Company Ltd., is justified and legal under the provisions of section 25 G of the Industrial Disputes Act, 1947, and whether the soniority of workmen in all the branches of the company was pooled for tho purpose of effecting retrenchment? If not, to what relief

p. 594

are the following workmen entitled ? Then follow the names of the six workmen.

p. 594

Bofore the Tribunal, the appellant raised certain preliminary objections to the maintriinability of the referedce. By its order dated August Ii, 1959, the Tribunal overruled these objections. Then the matter was heard on the merits, and on February II, 1960, the Tribunal pronounced its award directing tho appellant to take back the "six workmen in thoir employment with effect from 8-5·1958 so that there is no break in tho continuity of service of any of them" and to pay them "their full wages from 8-5-1958 till the date they are absorbed". It is against this a.\l'ard that the present appeal by special leave has beon brought.

p. 594

The appellant has urged the following contentions in support .of this appeal:-

p. 595

( 1) The Tribunal was not competeµt to entertain or adjudicate on the reference.

p. 595

(2) The Punjab Government was not competent to make the order of reference dated February 2, 1959.

p. 595

(3) The disputes of the workmen were individual disputes and not industrial dispputes as defined in the Act and that, in consequence the Government had no power to refer the same for adjudication.

p. 595

(4) The branch at Ambala was an industrial establishment within s. 25G and that having been closed no relief could be granted to the workmen under that section.

p. 595

( 1) The question' as to the competence of the Tribunal to entrtain or adjudicate on the reference could shortly be disposed of as it is covered by our decisions in The Atlas Cycle Industries Ltd. v. Their Workmen (I) and M/s. Dalmia Dadri Cement Ltd. v. Bhri A.N. Gujral and others(') with whioh the present appeal was heard. The material facts bearing on this question are that Shri A.N. Gujral was appointed to the· Industrial Tribunal on April 28, 1953, when he was over sixty years of age. The validity of his appointment is impugned on the ground that it is not in accordance withs. 7(3)(c) of the Act. Then, on April 9, 1957, Shri A. N. 'Gujral was appointed as presiding officer of a new Tribunal constituted under s. 70 of the Act. The validity of this appointment is attacked on the ground that as his appointment as Tribunal on April 28, 1953, was invalid he was not qualified to be appointed under s. 7A(3)(b) of the Act. Then again, under s.·7C(-b), Shri A. N. Gujral would have had to retire on June 4, 1957, when he would have attained the age of sixty-fil·e. But the Punjab Log!slature then enacted Act 8 of 1957 raising tho ago of retirement under s. iC (b) from sixty-fivo to sixty-seven. This law, it is said, is repugnunt to Art. 14 of the Constitution as its object was to benefit one individual Shri A. N. Gujml am! tho notifications under the Act extending his term of office from time to time am in opera.ti ve. The present reference which was made to him on February

pp. 595–596

1959, is said to he invalid on the ground that Sbri Gujra.l was not validly in office. On June 4, 1959, the term of office of Shri A. N. Gujral expired, and Shri Passey, retired .Judge of the Punjab High Court was appointed as Tribunal in his place. The present reference came up before him and resulted in the award dated February 11, l!J60, which is the subject matter of the present appeal It is said that a.s the reference was not validly pending before Shri A. N. Gujral, Shri Passey not seized of it as his successor and that as there was no fresh reference to him, the proceedings are without jurisdiction and void. We have held in our Judgments in The Atl.as Cycle Industries case. (1) and M /s Dalmia Dudri Cement case(') tha.t the notification Jated April 28, 1953, appointing Shri A. ~- Gujral as Tribunal under s 7(3) of the Act and the notification dated April 19, 1957, appointing him as the Presiding Officer under s .. 7C are valid, that the Punjab Act 8 of 1957 is not unconstitutional, and the notifications extending the tenure of office of Sbri A. N. Gujral till ,Juno 4, 1959, are intra i·ires. 1<,ollowing the8e decisions, we must overrule this contention.

p. 596

(2) We shall nox:t consider the question as to the competence of the Punjab Government to make the order of reference dated February 2, 1959. The contention of tho appellant is that after the closure of the branch at Ambala May 8, 1958, it had no place of business in the State of Punjab, and that, in consequence, on February 2, 1959, the Government of Punjab had no jurisdiction to make the reference. Section 10 of the Act provides that when an industrial dispute exists or is apprehended the appropriate Government may refer it to a Tribunal for adjudication. Section 2 (a) defines appropriate Government as meaning the Central Government in relation to certain classes of disputes and State Government in relation to other industrial disputes. It is common ground that the dispute with which we are concerned is not one falling within the jurisdiction of the Central Government and that it is only the State Govern· ment that has the competence to make the refer. ence. The point in controversy is as to which of the States has jurisdiction to do so. The Act contains no provisions bearing on this question, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions or proceedings. Dealing with a similar question under the provisions of the Bombay Industrial Relations Act, 1946, Chagla, C. J. observed in Lalbhai Tricumlal. Mills Ltd, v. Vin and other (

pp. 596–597

"But what we are concerned with to decide is : where did the dispute substantially arise? Now, the Act does not deal with th'e cause of action, nor does it indicate what factors will confer jurisdiction upon the Labour Court. But applying the well-known tests of jurisdiction, a court or tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject matter of the dispute substantially arises within jurisdiction ..

p. 597

-In onr o'pinion, these principles are applicable for deciding which of the States has juris· diction to make a reference under s. 10 of the Act.

p. 597

Discussing the question on the principles stated above, it is not m dispute that the appellant was not carrying on business anywhere in Punjab on the date of the reference. The Punjab Government would, therefore have jurisdiction to make the reference only if the ca.use of action had arisen wholly or in part within the State. If the validity of the closure of the br<inch had itself been in dis·· pute, the ca.use of action must undoubtedly be held to have arison within the State and the reference would be competent. It is argued for the respondents that as the retrenchment on which, the dispute h'18 arisen was made in Amhala, the State of Punjab had jurisdiction to refer under s. IO of the Act, the question of the appropriate reliefs to be granted under s. 25G. But the appellants contend that when once the closure itself is accepted as valid and binding, then there could be no queRtion of retrenchment, which can only be with reference to a continuing industry as held by this Court in Pipruioh Sugar Mill.s J,td. v. P.ipmidi Sugar Mil/.s Jfazdoor Union(')and llariprasarl Shii:slwnkar Shukla v. A. D. /Jivikar (') :<nd that to attract s. 2.'iG. it must be hold that the Calcutta office and the branches all form one establishment and that in that viow relief under that section could be granted only in relation to branches situate in other States, no part of the ca.use of action could be held to havo arisen within the State of Punjab. In the view we are taking on the question as to whether. the branch at Ambala was an industrial establishment within s. 25G, we do not consider it necessary to express any opinion on this question.

p. 598

(3) It is next contended for the appellant that the disputes raised by the respondent-workmen were not industrial disputes as defined in the Act but merely individual disputes, and that in consequence the Government had no power to refer them to a tribunal under s. 10 of the Act. Section 2 (k) defines industrial dispute as meaning "any dispute or difference between employers and employers, 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." According to the appellant a dispute can be an industrial dispute within this definition only when it is raised by workmen and not merely by one of them. The respondents. on the other hand, contend that on its true construction, s. 2(k) will comprehend even a dispute between an employer and a single workman, and the observations in R v. National Arbitration Tribunal (') are relied on as supporting that position. There the question discussed was whether the expression "dispute or difference between . employers and workmen" in Article 7 of the Conditions of Employment and National Arbitration Order, 1940, would cover a dispute between an employer and one workman, and Lord Goddard, C. J., answered it in the affirmative, basing himself on s. I (1) of the Interpretation Act, 1889, which provides that words in the plural shall include the singular. The argument is that, having regard to ·the rule of interpretation embodied in s. 13 (2) of the General Clauses Act, 1897, the ratio of this decision is equally applicable to the construction of s. 2 (k) and that it must be held to include a dispute between an employer and a single workman.

pp. 598–599

This question however is not res integra. It has been considernd in a number of cases in this Court and decided adversely to the present contention of the respondents. In Central Provinces Transport Services Ltd. v. Raghunath Gopal Patwardhan (') the point in controversy was whether an individual . . dispute was an industrial dispute within s. 2 (k) o~ the Act. After stating that three divergent vwws had been expressed on the question and that tho preponderance of judicial opinion was in favour of t.he view that a dispute between an · employer and a single employee could not per se be an industrial dispute but that it might beoome one if it was taken up by a Union or a number of workmen, this Court observed:

pp. 599–600

"there is considerable reason behind it. Notwithstanding that the language of s. 2 (k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the fodustrial Disputes Act does appear to contemplate that the machinery provided therein should he set in motion, to settle only disputes which involve the rights of work· men as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen." (p. 964 ).

p. 600

This view was adopted in Th,; Newspapers LW.. v. '/'he State l11d1rnt.rial '/'rihmzal, C. P. (1) where the point arose directly for decision. Discussing th<.' meaning of the expression "industrial dispute" in the U.P. Industrial Disputes Act which is the same as s. 2(k) of the Act, this Court observed that though on the rule of construction laid down in s. 13(2) of the General Clauses Act, 1897, the plural would include the singular, in the context of the legislation, the word "workmen" did not include "a workman", and that a disput-0 between an employer ancl a single workman did not fall within the dofinition of industrial dispnte. Both these decisions were followed by thia Court in Bombay Union of (1)':.(1~571 C.~R. Journalists v. "Hindu", Bombay (1) and the law was thus stated :-

pp. 600–601

"Therefore, the applicability of the Industrial Disputes Act to an individual dispute as diHtinguished from a dispute involving a group of workmen is excluded, unless the workmen as a body or a considerable section of them make common cause· with the indivi-

p. 601

dual workman". (p. 439). The respondents seek to distinguish these decisions on the ground that in all of them the dispute was raised by a single workman, whereas in the present case six of the workmen have joined in making a demand. They urge that a dispute ceases to be an individual dispute and becomes an industrial dispute when more than one workman joins in it. It is true th'.it in the decisions citerl above the dispute was raised by a single workman. But the reasons on which these decisions ·rest, viz., that the policy behind the Industrial Disputes Act is to protect workmen as a class against unfair labour practices and not to enact. special provisions ·for enforcing the claims of individual workmen, would equally militate against the contention that a dispute which is essentially individual in character would become an industrial dispute merely because two persons haye joined in it. What imparts to the dispute of a workman the character of industrial dispute is that it affects the rights of the workmen as a class. That is why the above decisions lay down that the dispute of a single workman would become an industrial dispute when it is sponsored by a Union or by a considerable number of workmen; for it can then be taken that it does affect them as a class. No hard and fast rule can laid down as to the number of workmen whose association will convert an individual into an industrial dispute; That must depend on the facts of each case, and the nature of the dispute. The group might even be a minority, as held by this Court in Associal.ed Cement Companie.~ Lt,d. v. Their Workmen(l). But. it must he such as to lead to an inference that the dispute is onf> which affects workmen as a clas~.

pp. 601–602

In this veiw, we shall have now to consider whether the dispute of tho respondents was taken up by a Union, or by a largo number of workmen. The Ambala branch had a Union of the workmen of the appellant company, and that has not moved in the matter. The Delhi branch of the appellant has its own union, and it wrote to the Con'cilation Officer. Delhi, on December IO, I 958, to intervene in the dispute, but he replied on December Ii, 1958 that ho had no jurisdiction in the matter. Thereupon the union withdrew its application. According to the respondents the Commercial Elll ployees' Union in Delhi was also moved hy them to take up their ca ust• and it did so, hut this is not established. ~for1•over as it is admitted that no other employees of the appPllant company were members of this Union, it would have had, un the decision of this Court in Hombay Union of Journali'.sts v. "Ilindn", Bombay('), locus standi to take up the dispute. After the Government of Punjab had made tho reference on February 2, 1959, the Delhi Union appeared before the Tribllllal in Mareh 19ii9, and so did the Union of the Kanpur branch in April 19.59, and both of them supported the respondents. It is argued that this was sufficient to clothe the disputes of the respondents with the character of indurtrial dispute. But if a reference can validly be made only if an industrial dispute exists or is apprehondcd, and if an individual dispute becomes an industrial di8pute only when it is supported by a Union or hy a considerable number of workmen, that support mtrnt necessarily precede the reference and from the foundation for it. The intervention, therefore, of tho Delhi Union J. in March, 195.9 and of the Kanpur Union in April, 1959, cannot give vali<lity to the reference, if it was not valid when it was made. That has been held by this Court in Bombay Union of .Journalists v. "The Hindu", Bombay(l), where it was observed that the validity of a reference must be judged on the facts as they stand on the date of . reference and that just as a withdrawal of the support by a union after a reference is made cannot render it invalid, likewise the support by it after the date ofreference cannot make it valid. If, therefore, the validity of the reference dated February 2, 1959, depended upon whether the cause of the respondents had been taken up by a Union, the question will have to be answered in the negative.

pp. 602–603

It is then contended for the respondents that even apart from the support of the union, their dispute mu.st be considered to be an industrial dispute, because six of the workm•:n have joined in it, and if regard is had only to the Ambala branch, they even constituted a majority. To this the appellant replies that th" claim of the respondents that retrenchment should have been made nuder s. 25 G of the Act after pooling for purposes of seniority all the branches proceeds on the footing that all the branches from one establishment, that that is also the basis on which the refnence dated February 2, 1959, is made, that therefore in deriding whether a considerable number of workmen have joined in the dispute, regard must bR had to the number of workmen in all-the branches, and that was 860, and that six out of 860 was an infinitesimal number, a mere drop in an ocean, and that therefore the disputes did not become industrial disputes. The respondents retort that the contention of the appellant that in discharging the respondents, it had not violated s. 25 G proceeds on an assertion that the Ambala branch is a distinct industrial establishment, and that on th:1t footing the rospondentA from a majority of the workmen hPing Rix out of eleven. ft is manifest that the st11,nd t11,ken hy both the parties on tho question whether the <lispu in backed by a considerable number of workmen is inconsistent. with the stand t:1ken by them on the question whether tho discharge of the workmen at Ambala wa~ in contravention of s. 2!lG of tha Act. In this situation tho course which we propose to adopt is first to determine whethor the branch at Amba.la is a sep;1rat{l industrial establishment withins. 25 G of the Act, and then ciecidc the rights of the parties in nccordancc therewith.

pp. 603–604

( 4) Section 25 G provides tha.t when it is proposeci to retrench workinen on thi> ground of s1irpl11sage the rule tha.t the List t<i eorne should ho the first to go should ordinarily be observed. Rut this is subject to two limitations. It operates only within the establishment in which the retrenchment i~ to be m>1dc and to the c;itogory to which the retrenched workmen belong. It is these two factors that are determin11,tive of the true s~cipe of the section.

p. 604

~ow what is an industrinl establishment Then· is a definition of it given in the Explanation to s. 2:3 A(:!} but that is limited to ss. 2;>C, :!5D 'lnd 2.~E. There being no definition of th() expression in thn.t Act applicable to s. '.!.5Q, w" must construct it in its ordinary sonRe, guideci by such indir,ations as th" context might furnish. [n Prai:at Kumar ](ar v. W.'J'.C. Parker ('),Harries, C T., observed that the words "indu&rial establishment" meant tho place at which the workmen were employed, and that accordingly s. 2;{ of the Act which impo,cs prohibition 11gain"t strikes by any "workman who i~ employed, in anv industrial establishment.", "could n'lt cover case Zlf workmen in Bombay strikiug against an employer with whom employees in Calcutta hav~ dispute." According to this view, it is of the essence of the concept of an industrial establishment that it.is local in its set-up. This is also implicit in the Explanation to the definition of "lay·off" in s.2(kkk) of the Act, that "every workman whose name is borne on the muster rolls of the industrial establish· ment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning , of this clause."

pp. 604–605

If this be the correct connotation of thll words "industrial establishment", then the branches of a company located in different places must be held to be distinct "industrial establishments", for purposes of s. 25G. This question came up directly for decision before ohe Madras High Court in I ndi.a Tyre and Rubber Co. v. Their workmen('). In that case, a company whose business was to manufacture and sell tyres had its head office in Bombay and a branch office at Madras. There were sub-depots at Ernakulam, Bangalore and Vijawada within the jurisdiction of the Madras Branch. The company retrenched some of the workmen at the Madras office as surplus, and on that a dispute was raised by them that as the retrenchment had been made without pooling all tbe depots as one unit, s. 25G had been infringed. The Tribunal accepted that contention and held that the retrenchment was bad. The correctness of this decision having been questioned in a petition under Art. 226, the Madras High Court held on an examination of the scheine of the Act and on a review of the authorities, that if an industry had establishments located in different places, each of them would be a separate industrial establishment within s. 25G of the Act, and that accordingly the office at Madras was one industrial establishment and that the sub-depots in the different States were separate industrial establishments. On the factf1, this decision is very near the present case and is strongly relied on for the appellant.

pp. 605–606

We should, in this connection, refer also to s. lO(lA) of the Act, wherein it is provided" that when the dispute relates to industrial establishmonts in more than one State, tho Central Government might refer it for adjudicat10n to a National Tribunal. This provision is based on the notion that the industrial establishments of a concern situated in different States are distinct establishments.

p. 606

Then again on the terms of s. 250, the relief provided therein is to be granted within the category of workmen who are proposed to be discharged. This posits that there is one code governing the grades of workmen an<l their scales of wages and that is ordinarily possible only when the establishment is functioning at a given plaoe. If there arc different branches in different places and there are different scales of wages, the rule laid down in s. 250 would be incapable of compliance unless all the branches have one sea.le of wages and the rules provide for automatic transfer from place to place having regard to the seniority and grades. Thus whether we have rogar<l to the popular sense of the words 'industrial establishment', or to the limitation of relief under s. 25G to workmen in the same category, the conclusion would appear to bo inescapable that each branch of a company should normally be regarded as a distinct industrial establishment.

p. 606

Bearing th.e above principles in mind, we may now proceed to consider whether, on the facts found the Amba.la branch is an industrial establishment. The Tribunal bas held tha.t it is not and the respondents insist that it is a finding of fact with which thia Court cannot interfere in an appeal under Art. 136 of the Constitution. We are unable to agree. In Associated Central Companies v. Their W orlcmen (1), this Court has held that the question whether a factory at Chaibasa and a quarry at Rajanka owned by the appellant were two different establishments for the purpose of s. 25E was not merely one of fact, as its determination involved the application of the correct tests underlying s. 25E, and in that view, this Court examined the correctness of the conclusions of the Tribunal and reversed its decision on the merits. In our judgment, the question whether a branch or a department is in itself an industrial establishment within s. 25G is likewise one of mixed fact and law, and the correct inference to be drawn from the fact established is one of Jaw open ~o consideration by this Court, vide also the decision of the Born bay High Court in Tulsidas Khimji v. Ji'. Je,ejeebhoy (2), where a .finding by the Tribunal that four departments of a firm which were all parts of one establishment was set aside in an application under Art. 226, the Court holding that it was not purely a question was fact.

pp. 606–607

We may now proceed to examine the facts of the present case. The Tribunal begins its award with the statement, "it. may be held straightaway that the workmen have not been able to prove strictly any common pool of seniority". The appellant contends that having regard to the scope of the reference, the Tribunal should have on this finding answered it against the respondents. What the Tribunal did was that it then went on to examine certain other facts and stated its conclusion thus:-

p. 607

"All these facts establish abundantly that each of the branches of the I. C. C. is ot a separate industrial entity or establishment but only a component part of the cent·ral unit a Calcutta to which it belongs. It is thus the Company (f. C. C.) that forms the industrial unit and it must have as required by s. 25G of the Industrial Disputes Act given effect to the principle of last come first go when the

pp. 607–608

occasion for the retrenchment had arisen." Now the facts on which the above conclusion was reached may be classed into two categories-those which have reference to the managPment of the industry. and those which '>ear on the service conditions of the workmen. Dealing with tho former, the Tribunal finds that it is the company with its registered office at Calcutta that controls and runs all the branches, that it is the company that employs the workmen and dismisses them, thqt the six respondents were appointed not by tho Ambala branch but by the company and that they were discharged on May 8, 1958, by the company, that the branches do not prepare each its own individual annual balance sheet but that it is only the company that prepares its annual balance sheet including therein the accounts of all the branches and that. it is the company that meets the financial requirements of the br,mches. These facts, it is 11a.id, show that the brn.nches have no separate existence of their own.

p. 608

We are of the opinion that the facts stated above do not support the conclusion of tho Tribunal that all tho branches from one unit of industrial establishmunt. If a Company establishes several branches, the control of these branches must necessarily vest in it, and under thEl provisions of the Indian Companies Act, there can be only one annual balance sheet for the whole company. Un this point R. W. I gave the following evidonco :-

p. 608

"My duty consists of amalgamation of all the accounts of the various branches of the Co., and to get them audited. The audited account.8 are forwarded to the head office at Calcutta, under my signatures · and they are later incorporated in the Company's accounts. The branches prepare their own accounts and forward them to me. I then make a consolidated statement and get the accounts audited

pp. 608–609

and send them to the head office." It is therefore dear that while the branches have their own separate accounts the company has its own consolidated annual balance sheet as required by the provision of the Companies Act. In mir opinion, the facts stated above do not necessarily lead to the conclusion that the head office and the branches must all be regarded as forming one industrial establishment. On the reasoning of the Tribunal, where the industry has a head office, and branches in other places,-it may be, even in different States-all of them will have to be regarded as forming one establishment. Such a conclusion would in our opinion, be wholly erroneous.

p. 609

Turning next to the facts relating to service conditions of the workmen, the finding is that the rules of the company relating to provident fund, gratuity and bonus and service conditions in general are applicable to the employees of the company in all its branches. But this again appears to us to be not of much consequence. It only signifies that all the employees of the company were treated alike in the matter of provident fund, bonus and similar benefits. It does not lead to the inference that all the branches were treated as one. What is material for the purpose of the present discussipn is whether the same rules relating to the category of workmen and their scales of wages are in force in all the branches. It is only then that the s. 25G could be applied. On that the uncontradicted evidence of R. W. 1 is that "the I. C. C. has different scale of pay for different branches".· On this evidence, there can be no question of integrating workmen trenched in one branch in another branch and, in consequence, the establishment in each branch must be treated as a separate entity. An attempt was made on behalf of tho rni' pondentd to get over this evidence by showing that transfors from one branch to another were uoual. R W. l denied that there was any provision in the rulos for transfor of the employees from one brancfi to another, and cross.examined with reference to the transfer of some of the employees from Bombay to Delhi, he stated:

pp. 609–610

"The Delhi branch wanted a typist very very urgently and we sent Mr. l\Iamm from Bombay. After doing his work at Delhi, he was reverted to Bomhay. The same was the cai;e with regard to l\Ir. Tamboowala. Mr. Tamboowala was· <ibo sent from Bombay. Aftor having been at Delhi for several weeks he returned back to Bombay. No employee of one branch is sent to another even for a

p. 610

temporary period without his consent." This oviden<"e is fully borne out. by the communication dated November 2:1, l 95!i, containing the terms on which thP respondents and other workmen in the branchc8 were employed. It expressly provides that the "will be stationed in the same place to do work of a similar nature as at present with British Insulated Callender's Cables Ltd.". This clearly establishM that the workmen were recruited only for· the particular branch where they were employed, and that is destructive of the contention that all the establishments are to be l'flgarded as forming one unit. How unrealistic the contention the resp on den ts i8 will he easily seen when we examine how it will work in the case of some of the respondents. For example, Shrimati Chameli is a swocpress, who has been in service for 9 yen,r~. Is she to be sent to Trivandrum branch, displacing a swecpress, employed there more recently, and on a lower scale of wages ? Then again Shri Ram Avatar is a peon employed less than two years previously. Is he to be absorbed in the Madras branch, displacing a peon employed one year ago, on lower wages ? There are likewise two clerks recruited some 2 1/2 years previously. It is these workmen that go to. make up the majority of six.

pp. 610–611

The appellant also contends that each branch has its own Labour Union, maintains its own accounts and has its own banking accounts and that these facts go to show that each branch is a distinct industrial establishment.

p. 611

Now the question is whether on the facts found the Ambala branch is a separatP industrial establishment or whether the Head Office and the branches all constitute one establishment. In Associated Cement Companies v. Their Workmen (1) considering the tests applicable for <letermining what constitutes one establishment for purpose of s. 25E(3) of the Act this Court observed:-

p. 611

"Several tests were referred to in the course of arguments before us such as, geographical proximity, unity of ownership, management and control, unity of employment and conditions of service, functional integrality, general unity of purpose etc ...... It is, perhaps, impossible to lay down any one test as an absolute and invariable test for all cases. The real purpose of these tests is to find out the true relation between the parts, branches, unit etc. If in their true relation they constitute one integrated whole we say that the establishment is one; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit." (pp. 7W-717)

p. 611

Relying on the abov•~ observations the respondents conterul th:it as there is unity of ownership: management and control. •md of conditions of service between tho Head Office· and tho branches they should be held to he one establishment, where as the appellant contends that as there is absence of geographical unity and functional integrality, each branch should be held to be a separate establishment. In Assuciated Cement Companies case(') it was held that all the tests referred to in the judgm1mt were satisfied and therefore the quest.ion of tho comparative weight to be attached to the several tests did not arise for consideration. Having regard to the principles deducible from the language of tho section alrnady stated the decisive elements in our judgment are the loeatio!J of the establishment am! the functional integrality i.e. the existence of one code relating to the categories of workmen and their scales of wages. In 'hdsidas lihirnji's case (') the quest.ion was whother four Departments of a business ostablishment in the city of Bombay were distinct industrial establishments within 25G and it was held that as there was no fun et i.,nal integrality between them, they should be held to be different ostablishmonts, notwithstanding they were located in the same place. And in this case ~ho branches are located in different places and there is also a Jack of functional integrality. Wo are of opinion that oach branch is a separate industrial establishment. ·

p. 612

On. this finding· it follows that the dispute of the respondents is an industrial dispute as defined in s. 2(k) as that has been raised by the majority of the workmen of tho Ambala branch, which is an industrial establishment. But the osta.blisbment has been closed and the closure itself is nut impugned as bad on the ground that it F.J.R. is oolonrable and not bona fide, s. 25G has no application and the respondents, therefore, are not entitled to any relief under that section. In the result the appeal is allow0d, the order of the Tribunal is· set aside and the reference answered against the respondents. In the circumstances the parties will bear their own costs throughout.

pp. 612–613

Appeal allowed. KEWAL Kl{ISHAN

p. 613

v.

p. 613

STATE OF PUN.JAB (J. L. P. B. and T. L.

p. 613

JJ.)

p. 613

Sea Customs-Goods eeized in reasonable . belief that they are smuggled-Burden of proof-If on person from possession goods are seized-Con8litntionality of statutory provis·ion- The Sea Custom; Act, 1878(8 of 1878), .167(81), 178A- Foreign Exchange Regu.lation Act, J.947(7 of 1947), 23A.

p. 613

The .and of Out. of of re~t of

p. 613

Th~ had and

p. 613

ands. of an thats.

p. 613

of and it thats.

p. 613

that

p. 613

that Collector of Customs, Madras Nat/iella Sampathu~Chetty

p. 613