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1987 Supreme(Bom) 121
IN THE HIGH COURT OF BOMBAY
H.W. Dhabe M.W. Sambre, JJ.
Nagpur District Central Co-operative Bank .... Appellant.
Versus
State of Maharashtra others .... Respondents.
Letters Patent Appeal No. 25 of 1987, decided on 13-3-1987.
Advocates appeared :
D.K. Khamborkar, for appellant.
Anand Parchure, for respondent No. 3.
Headnote:BOMBAY INDUSTRIAL REGULATION, ACT, 1946
Section 3 (13) (b)-Definition of word employee-Whether includes ex-employees Held that a person who is dismissed, discharged, retrenched or whose services are terminated not on account of any dispute is covered by substantive part of the definition clause itself viz. by the expressions any person employed.
It is now well-settled that in construing a welfare Legislation a liberal approach should be adopted and a purposive construction which would effectuate the object of the welfare Legislation should be given to the expressions used in the statute. It may be seen that if the ex-employees are not held to be included within the said definition of employee it would result in an anomalous situation and cause great hardship to the employees which is not intended by the statute. It would also be anomalous that an employee who is dismissed, discharged, retrenched or whose services have been terminated on account of any dispute is covered by the definition but the employee who is simpliciter dismissed or discharged is not covered by the said definition. Moreover the ex-employees would not then be entitled to claim under the Act any benefits and particularly retirement benefits to which they are entitled under the conditions of their service or to raise any dispute in regard to the same although such matters are the subject-matter of the B. I. R. Act as is clear from the definition of the expression "industrial matter" given in Section 3 (18) of the said Act.
At any rate it may be seen that the definition clauses in Section 3 of the B. I. R. Act, as is usual in every statute, are to be given the meanings assigned to them in the said definition clauses unless there is anything repugnant in the subject or context. Following the judgment of the Supreme Court in Bennette Coleman Co.s case cited supra, it will have then to be held that if an "ex-employee" is not covered by the definition of the word "employee" as given in Section 3 (13) of the B. I. R. Act construed stricto sensu then the said definition would be repugnant to the subject or the context of the industrial disputes in relation to the ex-employees which are the subject-matter of the B. I. R. Act as is clear from the definitions of the expressions "industrial dispute" and "industrial matter" given in Sections 3 (17) and 3 (18) of the said Act respectively. The above contention on behalf of the appellant, therefore, cannot be accepted.
The Counsel for the cessation of (sic) has urged that the requirement of cessation of employment on account of any dispute in the inclusive clause of definition of the word "employee" under the B.I.R. Act is applicable only in the case of termination of employment and not in the case of dismissal, discharge or retrenchment. If the inclusive clause read as whole and in particular the last portion of the said clause, viz. "before or after his dismissal, discharge, retrenchment or, as the case may be, termination from employment" would show that the requirement of cessation of employment on account of dispute in the inclusive clause is applicable in the cases of dismissal, retrenchment also and is not restricted to termination from "employment" only. However, the above submission on behalf of the appellant would not make any difference to the construction which is to be placed upon the definition of the word "employee" because a person who is dismissed, discharged, retrenched or whose services are terminated not on account of any dispute is covered by the substantive part of the definition clause itself viz. by the expression "any person employed".
Section 42 (4)-Maharashtra Recognition of Trade Unions and prevention of Unfair Labour Practices Act, 1971, Section 3 (5)-Approach notice-Not necessary 10 be given before an ex-employee can move Labour Court for necessary relief under the Acts.
Approach notice is mandatory or is a condition precedent in view of the proviso to Section 42 (4) of the BIR Act if an employee has to move the Labour Court thereunder for necessary relief. It cannot be said to be intended that the said requirement which is mandatory for claiming relief under the BIR Act is also mandatory for claiming the relief under the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act. The approach notice, therefore, cannot be held to be necessary to be given before an ex-employee can move the Labour Court for necessary relief under the Act.
2. Clause (b) of the definition clause in section 3(13) of the B.I.R. Act is relied upon to show that a person who has been dismissed, discharged or retrenced or whose services have been terminated from employment is covered by the said definition only if his dismissal, discharge, retrenchment or termination of his service is on account of any dispute relating to change in respect of which a notice is given or application made under section 42 whether before or after his dismissal, discharge, retrenchment or as the case may be, termination from employment. The submission on behalf of the appellant thus is that unless an application under section 42(4) is made to the employer, popularly known as approach notice, the respondent No. 3 cannot be said to be an employee within the definition of the word "employee" under the B.I.R. Act. On the other hand it is contended on behalf of the respondent No. 3 that a person who is dismissed, discharged or retrenched or whose services are terminated is covered by the substantive part itself of the definition of the word "employee". In support of the above contention reliance is placed on behalf of the respondent No. 3 upon a decision of the Full Bench of this Court in the case of (K.B. Khatavkar v. S. Taki Beligrami)1, 1971 Mh.L.J. 753. The above decision is upon the provisions of the definition of the word "employee" in the B.I.R. Act itself and it no doubt supports the contention urged on behalf of the respondent No. 3.
3. Besides the above decision there are other decisions of the Supreme Court by which it is a settled view that a person who is dismissed, discharged, retrenched or whose services are terminated is covered by the substantive part of the definition of the word "employee". I may usefully refer to the decision of the Supreme Court in the case of (Central Provinces Transport Service Ltd. v. Raghunath)2, A.I.R. 1957 S.C. 104 in this regard. It was a case which arose under the provisions of the C.P. and Berar Industrial Disputes Settlement Act, 1947 (for short "The C.P. and Berar Act") which was then applicable in the Vidarbha Region of the State of Maharashtra. The definition of the expression "employee" in section 2(10) of the said Act is in material particulars pari materia with the definition of the said expression in section 3(13) of the B.I.R. Act. It may also be seen that the definition of the expression "industrial dispute" given in section 2(12) and the definition of the expression "industrial matter" given in section 2(13) of the aforesaid C.P. Berar Act are in pari materia with the definitions of the
