(1) THIS industrial dispute between Prabhat Brass Band, Poona, and the workmen employed under them was referred to me for adjudication under Clause (d) of Sub-section (1) of S. 10 of the Industrial Disputes Act, 1947, by Government of Bombay, Labour and Social Welfare Department, Order No. AJP. 38 (1) 57, dated 28 April 1958. The demands of the workmen are mentioned in the schedule annexed to the order of reference. They will be reproduced in due course.
(2) THE usual notices were sent to the parties and the General Secretary, Band Kamgar Union, Poona, filed a statement of claim on behalf of the workmen on 16 May 1953. In response to the general notice under form VIII, 52 workmen who styled themselves as the present employees of Prabhat Brass Band, Poona, filed a separate abatement of claim on 30 June 1958. To the first statement of claim which was filed by the Band Kamgar Union, the firm filed its written statement on 7 July 1958.
(3) SOME preliminary objections to the maintainability of the reference have been raised in the written statement. They are as follows :- Paragraph 3 :
"the first party submits that the workmen employed by them being the second party to the reference, are not workmen within the meaning of S. 2 (s) of the Industrial Disputes Act, 1947. The workmen employed by the first party are artists-cum-musicians, appointed for specific period under contracts and therefore they do not and cannot fall within the definition of the workmen (sic) under the Industrial Disputes Act. The first party therefore submits that there is not and cannot be any industrial dispute between the first party and the artists-cum-musicians employed by them."
Paragraph 4 :
"the first party therefore submits that it is not competent to the Government of Bombay to refer the alleged industrial dispute to the tribunal and order passed without prejudice is bad in law and ultra vires. The first party therefore submits that this tribunal has no jurisdiction to adjudicate the demands referred to it."
(4) BEFORE I quote the second preliminary objection raised in the written statement, I shall narrate in brief the history of the dispute. The Prabbat Brass Band, Poona, is a partnership firm which engages musicians to play music especially during marriage seasons. Each musician executes a service bond either for three months, six months, nine months or a year. His remuneration for the whole period is fixed. He undertakes not to play in any other band during the continuance of his contract. He agrees to play for the firm whenever and wherever called upon to do so. He has liberty to draw advances against his remuneration. He undertakes to be present for practices and not to remain absent without leave. The musical instrument which he agrees to play is also mentioned in the agreement. One original and two true copies of such agreements are produced as Exs. C-1, U-1 and U-2, respectively.
(5) THE history of this firm is given in the union's statement of claim. It is stated that this firm was started in 1938. It has in its employ 60 to 70 workmen. The firm gets service bonds executed by each of its employees. Until recently there was no union of the employees in this industry. It is contended that as soon as a union was formed, the firm discharged a large number of workmen without any fault on the part of the employees. It is also contended that the firm has engaged other musicians in place of the discharged workmen and have thus committed a breach of Ss. 25f and 25h of the Industrial Disputes Act. One of the demands of these workmen is that the twenty workmen who were unlawfully discharged should be reinstated and paid all back wages. The other demands are that the system of taking service bonds for short periods and renewing them from time to time be abolished and employees who have put in a continuous service of one year should be treated as permanent. The second demand is that the workmen should be paid an allowance for working at odd hours. The third demand is that if the workmen have to go to places beyond five miles from Poona they should be paid a daily allowance over and above meals. And the fourth demand is that as from 1 February 1957 the wages of these employees should be raised by Rs. 15 per month. 6. The fifth demand is as regards reinstatement of twenty workmen, who, it is contended, were discharged unlawfully. In the schedule to the order of reference the names, date of the expiry of the bond, date of appointment and pay of these twenty workmen are given. Admittedly, these twenty workmen were out of employment either on 30 June 1957 or 31 July 1957 when the period mentioned in their respective service bonds expired. The bonds were not renewed. Sri R. S. Kulkarni who appeared for the union admitted that only these twenty workmen were the members of the Band Kamgar Union so far as this particular firm was concerned.
(6) THERE are 52 other employees in the service of this firm. They appointed one of their colleagues, Sri S. J. Kane, to represent them in this dispute. The letter of authority is signed by all the 52 employees. Sri Kane filed a statement of claim which also is signed by all the 52 employees. The gist of their statement of claim is that they are musicians and as such are not workrmen so that word is defined in the Industrial Disputes Act. They further contend that the union does not represent them; that they have no grievance against the Prabhat Brass Band and that the tribunal should not make any award which will prejudicially affect their interest. Lastly they have contended that the tribunal should not compel them to remain in the employment of the firm longer than they would voluntarily want to do. In short, these present workmen have raised no dispute against the firm; they do not wish to raise any dispute even now and they therefore agree with the firm that the reference should be disposed of as untenable.
(7) THE second preliminary objection raised by the firm is in the following terms :- Paragraph 5 :
"the first party begs to point out that there are 60 musicians-cum-artists at present employed by them and they are not members of the union. No demand has been made by them or on their behalf till now. The artists-cum-musicians on whose behalf the present demands are made are not in the employment of the first party nor are their demands taken up or supported by any of the present artists-cum-musicians. The first party therefore submits that there is no industrial dispute and the union or the alleged workmen at whose instance the reference is made are not entitled to raise these disputes and in any event any industrial dispute which does not relate to or concern their demands."
It is therefore prayed in Para. 6 of the written statement that a decision on these preliminary points be first given.
(8) THE first question is whether the musicians engaged by the firm are "workmen" as defined in S. 2 (s) of the Industrial Disputes Act. Sri R. A. Gagrat for the company referred me to the case of Thomas D'souza and others v. Filmstan, Ltd. , Bombay [1953 - II L. L. J. 416]. That was a complaint under S. 33a of the Industrial Disputes Act. A preliminary objection was raised by the company that the complainants being musicians were not "workmen" within the meaning of the Industrial Disputes Act. The learned industrial tribunal held that simply because the musicians were required to play the musical instruments with their hands or mouth or other part of their body, they could not be called skilled manual workers. Then the learned tribunal gave instances of a clerk or a surgeon who bad to put in a great deal of skilled work with his hands but who could never be called skilled manual worker. He therefore held that the musicians before him were not "workmen".
(9) THE learned tribunal was certainly right in holding that musicians were not workmen because the definition of the word "workman" that was in force in those days was -
"'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. . . " This definition was enlarged by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 36 of 1956. This definition came into force on 29 August 1956. The enlarged definition is as follows :- "'workman' means any person (including an apprentice employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. . . "
(10) THE word "technical" in the new definition has, in my opinion, brought a large number of workers within the term "workman" who were considered to be outside that definition before the amendment. What then, does the word "technical" mean ? The Chambers' English Dictionary gives the following definition :-
"technical (adj.) : pertaining to art, especially the useful arts : belonging to a particular art or profession. Technique : Method of performance, manipulation, especially everything concerned with the mechanical part of a musical performance. (Gr. technikes - techne, art, akin to tekein, to produce, bring forth)"
Thus we see that the adjective technical and the noun technique are derived from the same Greek origin - technikes. The Concise Oxford Dictionary gives the following definition :
"technical (a) : of or in particular art, science, handicraft, etc. ; of, for, in, the mechanical arts. Technique (N) : Mode of artistic execution in music, painting, etc. ; mechanical skill in art."
It is therefore quite clear that musicians who know the "mode of artistic execution in music, "who, in other words, possess the 'technique" of music are technical persons pertaining to the art of music. I am therefore of the opinion that they must be held to be workmen as that word is now defined.
(11) NOW, as regards the second preliminary objection raised in the firm's written statement, it is urged that when the reference was made on 28 April 1958, the twenty workmen on whose behalf the union made demands ware not in the employ of the firm; that the union does not represent the workmen who are today in the employ of the firm and that therefore the union is not empowered to press the demands for the twenty workmen who are no longer the firm's employees. Now, it is true that the service bonds of these twenty workmen were not renewed at the end of the periods mentioned in the said bonds. Therefore they went out of employment either on 30 June 1957 or on 31 July 1957. By demand 5 these workmen want reinstatement and all back wages. What, then, is the material date ? In this connexion I may refer to the case of Volkart Bros. v. T. V. Chellappa [1954 I. C. R. Bom. 1122. ] The head note of the report summarizes the decision aptly and I take the liberty to quote it in extenso :
"a dispute on the question of gratuity was referred to adjudication, on 15 May 1950. The industrial tribunal made an award on 26 May 1951, and the award was published on 14 June 1951. The first respondent claimed from the appellant company gratuity on the basis of the award. The company's contention was that he was not entitled to the benefit of gratuity under the award, inasmuch as his services terminated in May 1950. The Appellate Tribunal accepted the contention of the appellant company and reversed the decision of the industrial tribunal which had held that the first respondent was entitled to the benefit of the gratuity awarded. In a petition for a writ of certiorari, the High Court held that there was an error apparent on the face of the decision of the Appellate Tribunal and quashed the decision. The company appealed."
(12) IN appeal, it was observed that the Appellate Tribunal had proceeded on the basis that the services of the first respondent had been terminated at the end of April, before the date of the reference. However, the notice in this case, according to the High Court, expressly terminated the contract of service as from the end of May 1950, and the mere fact that the employer told his employee that unless he was asked to work in May he should not do so, did not mean that the relationship of master and servant had in any way been altered or modified. The High Court, therefore, held that the Appellate Tribunal was in error in holding that the services of the employee had been terminated as from the end of April 1950.
(13) ANOTHER error apparent on the face of the judgment was, the High Court held, that the material date which the tribunal had taken into consideration was the date of reference while under S. 18. The material date was not the date of reference but the date when the industrial dispute arose. In its opinion, therefore, the view that the order of the Appellate Tribunal should be quashed because the Tribunal had erred in accepting the date of the reference as the material date and not the date of the dispute, was correct. The appeal was, therefore, dismissed. "
(14) THE decision of their lordships of the Bombay High Court has therefore clearly laid down that the material date at least as regards certain demands is the date when the dispute arises. I find from the conciliation proceedings that the union had sent the first charter of demands to the firm on 11 February 1957. On that day, indisputably, the twenty workmen were in the employ of the firm. One of the demands was the abolition of the service bond system. Then, after these workmen found that their bonds were not renewed, they made the demand of reinstatement on 18 August 1957. How far the demands now before me can be awarded is a matter which can be decided only after going into the merits of each of them. I therefore direct that the company should file its written statement on merits within fifteen days of the date of the receipt of a copy of this Part I award, sending a copy thereof to the union and to Sri S. J. Kane, the representative of the present workmen. The case will be fixed for hearing after the receipt of the written statement of which hearing due notice will be issued to all parties concerned. I direct that this Award - Part I, be submitted to Government.