GIRJA SHANKAR KASHI RAM versus THE GUJARAT SPLNNING & WEAVING CO. LTD.

J.-Thi.s appeal by special leave against the order of the Born bay High Court summarily dismissing the pc ti ti on of the appellants under Art. 227 of the Constitution raises an important question with regard to the right of a Ropresentative Union under the Bombay Industrial Relations Act, No. XI of 1947, (hereinafter called tho Act) to appear in a proceeding under the Act to the exclusion of an employee desiring a change under s. 42(4) of the Act. Tbe question arises in this way. The Gujarat Spinning and Weaving Company Limited (hereinafter called thB old Company) closed its busineBB on May 14, 1953 and sold its assets to the Tarun Commercial Mills Company Limited (hereinaft:;r called the new Com· pany). The old Company had discharged all its workmen when it closed its business which happened before s. :!5F relating to retrenchment was introduced in the Industrial Disputes Act, (No. XIV of 1947). The new Company re-started the business after a week and took in it.s service the workmen of the old Company. It appears th:\t at the time the closure took place a <liHpute wa~ pending between the old Company and its workmen with respect to bonus. As the clo~ur1J had taken place while that dispute was pending, the Textile Labour Association (hereinafter called the Association), which· is a Representative Union of the textile workers in the city of Abmedabad, filed an application under s. 22 of the Industrial Disputes (Appellate Tribunal) Act of 1950 before the Lab~ur Appellate Tribunal where the dispute was pending. In that matter there was a compromise, and though, according to the old Company, there was no available surplus to give bonus, the old Company agreed to pay bonus by way of settlement to the extent of I /8th of the earnings of the work!Ilen for the year in dispute; and in consideration of this the Association on behalf of all the workmen discharged as a result of closure agreed not to press for any compensation for their discharge and the workmen who accepted the b'.lnus by this agreement gave an undertaking not to c !aim compensation in any other way in any future proceeding. This happened in March 19.55. Thereafter in July 1956, 376 persons who had been in the employ of the old Company and were a minority of its workmen gave notice under s. 42(1) of the Act and claimed compensation for the closure which had taken place in 1953. As no settlement could be arrived at between the parties this was followed by an application under s. 42( 4) of the Act before the labour court in October 1956 and these workmen claimed that they should be paid adequate compensation for the closure of the mill in view of their past services. To this application both the old Company and the new Company were made parties. The application was opposed by both the companies on various grounds with which we are however not concerned in the present appeal. In January 1957, the Association made an appearance before the labour court and contended that the application should be dismissed in view of the compromise wl:tich had been arrived at before the Labour Appellate Tribun'tl in 1953. The labour court accepted this contention and dismissed the application.

pp. 892–893

Thereupon some of the workmen went in appeal to the industrial court and their contention seema to have been that, though no individual oan be permitted to appear in any proceeding where the Rep.esentative Union 'lppears as representative of employees, in this case the action of the Association after itR appearance in not supporting the case of the workmen before the labour court was malafide; therefore the Association should not have been allowed to appear on behalf of tho employees who had applied to the labour court and they ehould be permitted to carry on their application. This contention was rejected by the industrial court, which was of opinion that it was not for an industrial court to go into the question of bona/ides or malafitles for appearance of a Representative Union and that the law under the Act was clear that where a Representative Union appeared it alone could represent thti applicants even in a case under s. 42( 4) of the Act. The appeal was therefore dismiBsed. Thereupon the employee.s appear to have filed a petition \,efore the High Court unde.r Art. 227 of the Constitution, which was summarily rejected. The High Cuurt also n· fuRed to give leave to appeal. Then thore was a petition to th is Court for special leave which was granted, and that is how the matter has come up before us.

p. 894

'l'he main contention on behalf of the appellant.a h~fore is tha.t reading the various provisions or theAct, an employee making an application under s. 42( 4) of th<' Act is not debarred from appearing in the labour or industrial court and carrying on with his application even though the Repreeent11tive Union makes an appearanoo. It is submitted that if the inti>rprntation pr1.·ssrd on behalf of the respondents were a.ceepten it would amount to tyranny of the Representative Union and this could not be the intention of the legislature in framing the Act. It is also contenrled that if the interpretation pressed on behalf of the respondents is correct, the provisions in the Act may he liable to be struck down as ultra vires the Constitution.

pp. 894–895

The case of the respondents on the other hand is that the provisions of the Act are perfectly plain and provide that where a Representative Union appears in any proceeding it alone, to the exclusion even of the employee who might have made an application under s. 42 (4), is entitled to carry on with the proceedings and the employee concerned has no locus standi in the matter after· the application has been filed by him, if the Representative Union chooses to appear. It is urged that the so-called tyranny by the Representative Union can have no bearing on the interpretation of the provisions of the Act if they are plain in their intent. Further it is contended that there is no question of the constitutionality of the various provisions of the Act in this case as at no stage has the constitutionality of the . provisions been challenged by the appellants, not even in their special leave petition.

p. 895

Before we deal with the interpretation of the various provisions of the Act· in this behalf we may point out that the constitutionality of the provisions has never been challenged so far and we therefore express no opinion as to the colliltitutionality of these provisions. We are further of opinion that the argument based on the so-called tyranny of a Representative Union or its motives in taking t.he action it may choose to take in any proceeding after it appears can have no relevance if the intention of the legislature as it can be gathered from the various provisions is perfectly plain.

p. 895

Let us therefore see what the Act provides in this behalf. The main provisions with which are concerned are contained in Chap.Vof the Act which deals with "representatives of employees and employers, and appearance on their behalf". It may be stated at the outset that the Act contains elaborate provisions for registrat.ion of unions and approved unions in Chapters III and IV respectively and ia in this respect riifferent from the Industrial Disputes Act. Under Chap. III the Registrar is given the power to register a. Representative Union for any indUBtry in any local area and also the power to cancel such r~istration under certain circumstances and there is also a provision for appeal where a registration is oancolled. Then <Jomes Chap. V which deals with the representatiVPil of employees and employers and anpe11.ranoe on their behalf in proceedings under the Act. Section 27 provide3 for recognition of an aeeociation of employers and its right to app!l&r in proceedings under the Act. Seotion 30 enumerates the representatives of employees and gives an order of preferenoe in which the six cl&lllle8 of rP.preqentatives of employees mentioned in that section oan appear or act in any industry in any local area., the first being a Representative Union for such industrv. It is not in dispute that the A88ociation in the present is a Representative Union in the textile industry in thl\t region and has the most preferential right to appear or to act

pp. 895–896

the representative of employees in the textile industry in that are11. Sections 28 and 29 provide for election or representatives or employees where there is no Representative Union in rt'llp60t of any industry in any local area and such elected representativeR under s. 30 are respreaentativea of employees and are fifth in order of preference. Then we oome to 27 A, 32 and 33 with which we are particularly concerned in this appeal. Th11y may be read in exten.~.

p. 896

"2"A-Save as provided in sections 32 and 33. no employee shall be allowed to appear or act in any prooeeding under this Act except through the representative of employees."

p. 896

"3~A conciliator, a Board, an Arbitra· ior. a'wsge Board, a Labour Court and the Industrial Court may, if hu or it coneiders it expedient for the ends of justice, permit an indivHual, whether an employee or not, to appear in any proceeding before him or it ;

pp. 896–897

Provided that no suoh individual shall be permitted to appear in any proceedings in which a Representative Union has appeared as the representative of employees."

p. 897

"33-N otwithstanding anything contained in any .other provision of this Aot, an employee or a representative union shall be entitled to appear through any person.

p. 897

(a) in all proceedings before the industrial court ;

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(aa) in all proceedings before a wage board;

p. 897

(b) in proceedings before a Labour Court for deciding whether a strike, lock-out, closure or stoppage or change or an order passed by an employer under the standing orders is illegal or for deoiding any industrial dispute referred to it under section 72 ;

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( c) in such other proceedings as the Industrial Court may, on application made "in that behalf, permit ;

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Provided that a legal practitioner shall not be permitted under clause (o) to appear in any proceeding under this Act except before a Labour Court as provided in section 83A or the Industrial Court ;

p. 897

Provided further that no employee shall be entitled to appear through any person in any proceeding under this Act in which a Representative Union has appeared u the repre1entative of employees."

p. 897

It will be seen that e. 27 A provides that no employee ~hall be allowed to appear or act ,in any proceeding under the Act, except through the representative of employet>s, the only exception to this being t.he provisions of 32 and 33. There· fore, this R<'ctio!I completely bans the appearance of an employee or of any one on his behalf in any proceeding after it has once commenced except through the representative of employees. The only exceptions to this complete ban are to be found in ee. 32 and 33, to which we shall presently refer. But it i~ clear that bona /irks or mala fi<IM of the reprt>eentative of employees can have nothing to do with th" ban placed by ~. 27 A the appearance of any one else except the representative of employees defined in e. 30 and that if anyone else can appPar in any proceeding. we must find a provision in that behalf in either s. 32 or s. 33 which are the only exceptions to 27A. It may be noticed that there is no exception in e. 27A in favour of the empfoyee, who might have made an application under s. 42 (4). to appear on his own behalf and the ban which is placed bys. 27A will apply equally to such an employee. In order however to aoften the rigour' of the provisions of a. 27A, for it may well be that the representative of employees may not choose to appear in many proceedings started by an employee under 42 ( 4 ), exceptions are provided in es. 3:? and 33. The scheme of these three provisions clearly is that if the Representative Union appears, no one else can appear and carry on a proceeding, even if it be i,egun on an application under s. 42 (4\ but where the Representative Union does not cho06e to appear there are provisions in

p. 898

32 and 33 whi.ch permit others to appear in proceedings under the Act.

p. 898

Section 32 gives power to a conciliator, a boa.rd, a wage board, a. labour court and the industrial court to permit an individual, whether an employee or not, to appear in any proceeding before him or it. This shows that the complete ban imposed bys. 27A can be removed if the authorities under the Act think it expedient to permit another person to appear and that person may be an employee or not. Thus· the employee who has made an application under s. 42(4) may be permitted to appear before tbe authorities under the Art ; but this provision is subject to a proviso namely that no such individual which would include an employee who has himself made an application under s. 42(4), shall be permitted to appear in any proceeding in which the Representative Union has appeared as the representative of employees. Reading therefore ss. 27A, 30 and 32 together, it is clear that no one else can appear in any proceeding under the Act except a representative of employees ; but the authorities ari;i empowered to permit anyone to appear whether he be an employee or not, if they consider it expedient for the ends of justice (and we have no doubt that where representative of employees does not choose to appear the authorities will generally permit the employee who has made the application under s. 42(4) to appear). but this power is subject to the proviso, namely, that no one will be allowed to appear if the Representative Union has made an. appearance. It will be seen that the proviso puts the Representative Union in a special position out of the six classes mentioned as representatives of employees in s. 30. Thuss. 32 makes it clear that where the Representative Union of the six classes in s. 30, appears no one else can appear, including the person who mi~ht have made an application under s. 42 (4). If the other five classes which ~.re mentioned in s. 30 as representatives of employees appear, the authorities have the P.Ower to allow the employee or any other person to appear along with them.

pp. 898–899

Then we come t-0 s. 33, which starts with a non obBllt.nte clause and deals with the appearance of an employee or a repreRentative union through any person. 8Pction 33 thus is an exception to s. 27 A an :I authorisea an employee who could not appear in any proceeding under the Act except through the representative of employees under 27 A, to appear through any perRon in certain proceedings men· tioned in 33, but this again i.~ subject to provisos, with the first of which we are not concerned here. The second proviso lays down that no employee Rhall he entitled to appear through any person in any pro<'PMing unrler thr- Aet in which the Representativ" Union has appeared as the rPpresente.· tive of timployees. This proviso age.in gives a. special position to the Representative Union out of the six classes of representatives of employees provided in s. 30 anrl makes it clear that though an employee may appear in certain proceedings specified in s. 33 through any person in spite of s. 27A, he cannot do so where a Representative Union has appeared as tho representative of em· ployees. Here again the position is the same as in s. 32; if a representative of employees other than a Representative Union has appeared in the proceeding the employee can also appear through any pers'?n in the proceedings mentioned in s. 33; but he cannot do so where the representative of employe011 which has appeared even in proceedings under s. 33 is the RepresentBtive Union.

p. 900

Tho result therefore <•f taking 2i A, 32 and 33 together is that s. 27 A first places a complete ban on the appearanre of an employee in proceed. ings under the Act once it has commenced except throu<rh the representative of employees. But there a.re two exceptions to this ban contained in

p. 900

32 and 33, Sertion 32 is concerned with all prooeedings beforr the authorities and gives power to the authorities under the Act to permit an employee himself to appear even though a representative of employees may have appeared hut this permission cannot he granted where the representative Union has appeared as a representative of employees. Section 33 which is the other exception allows an employee to appear through any person in certain proceedings only even though a representative of employees might have appeared; but here again it is subject to this that no one else, not even the employee who might have made the application, will have the right to appear if a Representative Union has put in appearance as the rl:presentative of employees. It is quite clear therefore that the scheme of the Act is that where a Representative Union appears in any proceeding under the Act, no one else can be allowed to appear not even the employee at whose instance the proceedings might have begun under s. 42 ( 4). But where the appearance is by any representative of employees other than a Representative Union authorities under s. 32 can permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain proceedings specified in s. 33. But whenever the Representative Union has made an appearance, even the employee cannot appear in any proceeding under the Act and the representation must be confined only to the Representative Union. The complete ban therefore laid by s. 27 A on representation otherwise than through a representative of employees remains complete where the representative of employees is the Representative Union that has appeared ; but if the representativa of employees that has appeared is other than the Representative Union then ss. 32 and 33 provide for exceptions with which we have already dealt.

pp. 900–901

'!'.here oa.n therefore be no escape from the concJu. BJOn tha.t the Act plainly intends that where the Representative Union appears in any proceeding under the Act even though that proceeding might have commenced by an employee under s. 42 (4) of the Act, the Representative Union alone can represent the employee and the employee oa.nnot '.l.ppear or act in such proceeding. . . In this view o.f t~e mattn the appeal must tail and Is hereby d1sm1ssed. In the circumstances we pa.as no order as to costs.

p. 902

Appe.al dismiB&ed. THE COMMISSIONER OF INCOME-TAX BOMBAY

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v.

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l\IANILAL DHANJI, BOMBAY (S.K. DAs, M. and J.C. SHAH, JJ.)

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Income Tax-Trmt in favour of child-No

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=ruing in incomt tnul i~ of a.<llUM~-Triut by aut.18tea fatMr- Aaae&U iue for benefit of him8df, wife and cAi/dron-Whtther income i•come of aaauaee-lndian lnconit·W Act (XI of 1922) 41(1)-·Indian

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(11of1882) In the of of and that the on that amount to

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and added the and that minor daughter rettive

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attained the of In the minor the

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the had in of =tain and the net the "for of and and malnten•

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and of death". In the of 14, 170 the of

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