Case Analysis

-Vidhi Thakkar

Western India Automobile Association 1949 I L.L.J 245

FACTS

1. The controversy is firstly as to the scope of the Act, i.e., 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, and secondly, as to whether
the dispute as to reinstatement of certain dismissed employees is a matter which is referable
to the Tribunal.
2. On an application for a writ of prohibition and a writ of certiorari against the Tribunal
restraining it from proceeding with the investigation of this dispute it was held by Coyajee
J. that the Western India Automobile Association was an employer and any dispute
between it and its workers fell within the ambit of the Act.
3. The appeal filed by the Province was allowed and the decision of Coyajee J. on the second
point was set aside. It was held 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. The same two points that
were seriously canvassed before the High Court were urged before us.
4. As regards the first contention raised on behalf of the association that the scope of
the Industrial Disputes Act, 1947, is only limited to cases of industries or of undertakings
carried on by Government or local authority and that it does not include within its scope
industries carried on by private individuals, we have no hesitation in repelling it. The
argument on this point is based on the definition of the term "employer" given in Clause
(g)(i) of Section 2 of the Act, which runs thus.
5. It was contended that as the association did not fall within the definition of the word
"employer" given in the Act (the definition being exhaustive), in its case there was no
 power to make a reference to the Tribunal and that the scope of the Act was limited to cases
of Government-run concerns or those in which a local authority was the employer.

6. In the Trade Disputes Act, VII of 1929, this expression was denned in Section 2(c) in the
following terms :

'Employer' in the case of any industry, business or undertaking carried on by any

department of any Government in British India, means the authority prescribed in this
behalf, or, where no authority is prescribed, the head of the department.

7. 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.
8. 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 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.
9. "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.
10. The interpretation we are placing on these words was accepted on a similarly worded
definition in the English statutes on this subject. In the Industrial Courts Act, 1919, "trade
dispute" has been denned as meaning any dispute or difference between employers and
workmen, or between workmen and workmen connected with the employment or non-
employment or the terms of the employment or with the conditions of labour of any person.
11. It will be 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. In the judgment it was observed as follows
12. It is not disputed that the particular dispute in question relates to a subject-matter of the
kind which is referable to the tribunal. Reference may also be made to Section 5 of the
Trade Disputes Act, 1906. "Trade dispute" is defined as:

Any dispute between employer and workmen and between workmen and workmen which is
connected with (inter alia) the employment or non-employment of any person.

ISSUES

WESTERN INDIA AUTOMOBILE ASSOCIATION v INDUSTRIAL TRIBUNAL Federal

Court, (1949) I L.L.J. 245 [The Government of the Province of Bombay referred to a Tribunal a
dispute between the Automobile Association and its workmen, about the reinstatement of
dismissed workmen and payment of back wages.

The Association raised two pleas: (I) That the Industrial Disputes Act, as is evident from the
definition of employer in Section 2(g) (i) and (ii), referring to Central, State, and local governments
only, is limited to industries carried on by government or local authorities, and hence is not
applicable to an industry carried on by private individuals.

(2) That a dispute involving reinstatement of dismissed employees is not an industrial dispute. The
Association failed on (I) but succeeded on (2) before a single judge of the Bombay High Court,
but the division bench overruled the single judge on (2), so that the Association failed there on
both issues.

Is a Private Employer an "Employer" within Section 2(g)?

It was contended that as the association did not fall within the definition of the word 'employer'
given in the Act (the definition being exhaustive), in its case there was no power to make a
reference to the Tribunal and that the scope of the Act was limited to cases of Government concerns
or those in which a local authority was the employer. In our opinion, the definition given is neither
exhaustive nor inclusive. In plain terms, the definition says that "employer" in relation to an
industry carried on by or under the authority of any department of Government means head of the
department (where no other authority is prescribed) and in the case of an industry carried on by or
on behalf of a local authority, its chief executive officer. In relation to such industries a definition
been given of the term 'employer'... as it was not easy in such cases to discover with certainty an
individual or an office who would answer the description this definition indicates who shall be
regarded as employer in the particular cases. No attempt, however, was made to define the term
'employer' generally or in relation to other persons carrying on industries or running undertakings.

ANALYSIS

It will be recalled that as early as 1949, it was urged before the Federal Court in Western India
Automobile Association v. The Industrial Tribunal Bombay that the industrial Tribunal had no
jurisdiction to direct an employer to reinstate his dismissed employees and the plea made was that
such a direction was contrary to the known principles which govern the relationship between
master and servant. This contention was negatived by the Federal Court.

The issue raised in this case was whether an industrial tribunal can direct the employer to re-instate
a worker. The judgement said that while a civil court could not re-instate an employee, an industrial
tribunal most definitely could do so. It was pointed out that the object of adjudication was to
substitute for strikes and lock-outs by doing justice to the workers claim, and that this could not
be done if the focus was going to be on the enforcement of contractual agreements. Instead it was
felt that the law was so structured that industrial tribunals adopted a different approach to the
problem. The tribunals were in effect creating new rights since they are empowered to modify or
change existing contracts and thus existing contracts could be overwritten.

A ratification of this judgement was made in one of the early Supreme Court judgements - Bharat
Bank Ltd v Their employees.1 To quote "It is its [Tribunals] duty to adjudicate on a serious dispute
between employers and employees as affecting their right of freedom of contract and it can impose
liabilities of a pecuniary nature and disobedience of its award is made punishable. The powers
exercisable by a tribunal of the nature were considered in a judgement of the Federal Court of
India in Western India Automobile Association v Industrial Tribunal Bombay, and it was observed
that such a tribunal can do what no court can, namely add to alter the terms or conditions of the

1
Bharat Bank Ltd. v. Their Employees 1950 II L.L.J. 921
contract of service. The tribunal having been entrusted with the duty of adjudicating a dispute of
a particular character, it is for this reason that it is armed with the extraordinary powers." Another
passage from the same judgement says "In settling the disputes between the employers and
workmen, the function of the tribunal is not confined to administration of justice in accordance
with law. It can confer rights and privileges on either party which it considers reasonable and
proper, though they may not be within the terms of the existing agreement. It has not merely to
interpret or give effect to the contractual rights and obligations of the parties. It can create new
rights and obligations between them which it considers essential for keeping industrial peace."

This, then is the definitive thematic of Indian labour law any labour contract/agreement can be
overridden and redefined on the basis of notions held by the labour courts as to what is just, fair
and expedient. This kind of intervention is quite in contrast to the Common Law perception of the
contract of employment, which is rooted in the general law of contracts. Common Law sees the
contract of employment as a legally binding agreement between "master and servant" or to state it
in more contemporary language between employer and employee.

As industrialising societies have sought greater equality in society, one institutional response has
been to progressively substitute collective for individual bargaining. 2 Specifically, as regards
labour and industrial relations, collective bargaining of some sort has more or less displaced the
master and servant relationship as the rubric around which employers and workers interact. Apart
from this, the modern welfare state compels the inclusion of statutory terms along with the terms
agreed on by parties. Typically such terms include the provision of safe working conditions,
reasonable work hours and the payment of minimum wages. Though collective bargains of a sort
have come to dominate many of the interactions between employers and employees all over the
world, there is a good deal of variation as to both the extent to which the law regulates collective
bargaining and the manner in which the law intervenes with the collective bargaining process. An
exhaustive description of the relationship between the legal system and collective bargaining in
various parts of the world cannot be seriously attempted here, but it is important to mention a
couple of broad features present in diverse legal systems, so as to provide a working comparison
with the Indian law.

2
The Changing Function of Contract" in Wolfgang Friedmann(1972) Law in a Changing Society Middlesex Penguin
Books 119-160
CONCLUSION:

The case has characterized the term 'emplyoment or non-employment ' is worried about the
representatives' disappointment or refusal to utilize a laborer. In the Para 30 of the case judgment
while articulating the judgment the court has exceptionally very much considered in every one of
the realities and have given judgment by giving concordant development of Industrial Dispute Act
and Contract Act. At the point when there is a contention between at least two statues or at least
two sections of a statute then the run of concordant development should be embraced. The govern
takes after an exceptionally basic commence that each statute has a reason and expectation
according to law and ought to be perused all in all. The understanding reliable of the considerable
number of arrangements of the statute ought to be received. For the situation in which it should be
difficult to blend both the arrangements, the court's choice with respect to the arrangement might
win. After this judgment was given the ambit of the demonstration was reached out on privately
owned businesses too additionally it has exceptionally all around characterized the word work
giving it a more extensive development.

It was contended that the Industrial Disputes Act ought to be translated in order to maintain a
strategic distance from repugnancy with the arrangements of the Contract Act. As we would see
it, no inquiry of repugnancy emerges, as the inquiry under the watchful eye of the Court is the
thing that debate were secured by the meaning of "modern question" in Act XIV of 1947. Once a
specific debate is found to fall under the "meaning of modern question in the Act, the locale to
choose the same rested with the Tribunal.

So far as should be obvious, reestablishment might be a fundamental help to be accommodated in

any apparatus, concocted for settlement of modern question. "Any debate associated with business
or non-work" would usually cover all issues that require settlement amongst laborers and
managers, regardless of whether those issues concern the reasons for their being out of
administration or some other inquiry, and it would likewise incorporate inside its degree the reliefs
vital for realizing agreeable relations between the businesses and the specialists.