Ramaswami, J.:— In this case the petitioners have obtained a rule calling upon the respondents to show cause why a writ of mandamus should not be issued for quashing the order of the respondent no. 2, dated the 7th of April 1953, transferring petitioner no. 1 Sri Vinaya Nath Narain Sinha to Calcutta to work as a correspondent of the Searchlight. Cause was shown by Mr. Baldeva Sahay on behalf of the respondents.
Petitioner no. 1, Sri Vinaya Nath Narain Sinha, is a senior Assistant Editor of the Searchlight, a newspaper printed and published at Patna. He alleges that on the 30th of March 1953, Sri Parasnath Sinha, Managing Director of the Bihar Journals, Ltd., ordered his transfer to Calcutta to work in the capacity of the correspondent of the newspaper. The order was that petitioner no. 1 should join at Calcutta on the 6th of April 1953, but subsequently the date of joining was extended up to the 13th of April 1953. Petitioner no. 1 alleges that he had been elected as the Vice-President of the Bihar Journalists' Union, and the respondents were opposed to his taking any part in the activities of that particular trade union. Petitioner no. 1 alleges that the order of his transfer to Calcutta was an act of victimisation on the part of the respondents. On the 1st of April 1953, petitioner no. 1 and petitioner no. 2, Sri Shri Krishna Datta Bhatt, who is the Secretary of the Bihar Journalists' Union; applied to the Labour Commissioner of Patna seeking his intervention in the matter. On the 3rd of April 1953, Sri R.N Sharma, Conciliation Officer and Assistant Commissioner of Labour, started conciliation proceedings. He wrote to the respondents asking them to stay the order transferring petitioner no. 1 to Calcutta and fixed the 8th of April 1953 for hearing the matter. In reply to the letter of the Conciliation Officer, the respondents asserted that the Conciliation Officer had no jurisdiction, to start proceedings. The contention of the respondents was that there was no industrial dispute, and petitioner no. 1, Sri Vinaya Nath Narain Sinha was not a workman within the meaning of the Industrial Disputes Act. On the 7th of April 1953, respondent no. 2 Sri Parasnath Singh made a peremptory order that the petitioner no. 1 should comply with his previous order, dated the 30th of March 1953 and join the post of the correspondent at Calcutta. The petitioners assert that in making this order the opposite party committed a breach of section 33 of the Industrial Disputes Act which states that—
“during the pendency of any conciliation, proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings”.
The petitioners, therefore, pray that a writ in the nature of mandamus should be issued to the respondents for quashing the order of transfer made on the 30th of March 1953 and reiterated on the 3rd of April 1953.
In their counter-affidavit the respondents submit that the order of transfer was made for the sake of administrative convenience and there was no question of any victimisation of the petitioner. The respondents further object that neither the Labour Commissioner nor the Conciliation Officer had any jurisdiction to interfere in the dispute. It is stated in the counter-affidavit that the petitioner is neither a manual workman nor a member of the clerical staff. He is, on the contrary, the senior Assistant Editor of the newspaper and his case fell outside the purview of the Industrial Disputes Act. The respondents contend that section 33 of the Industrial Disputes Act has no application to the case.
The first question in this case is, therefore, whether section 33 of the Industrial Disputes Act applies to this case.
Section 33 states:
“During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall—(a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be”.
In this context section 12 must also be read.
Section 12(1) enacts:
“Where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.”
On behalf of the respondents, Mr. Baldeva Sahay submitted that there was no industrial dispute and the Conciliation Officer had no jurisdiction to start conciliation proceedings under section 12. Learned Counsel referred to the definition of the expression ‘industrial dispute’ given in section 2(k) of the Industrial Disputes Act.
Section 2(k) defines ‘industrial dispute’ to mean—
“any dispute or difference between employers and employers, or 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”.
Mr. Baldeva Sahay contended that petitioner no. 1 Sri Vinaya Nath Narain Sinha was not a ‘workman’ within the meaning of the Act, and the Conciliation Officer had, therefore, no jurisdiction to start proceedings.
The argument of the learned counsel is based upon section 2(s) which defines ‘workman’ to mean
“any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward………………………….”
Mr. Baldeva Sahay maintained that petitioner no. 1 was not a clerical or manual workman and the dispute between him and the management of the Searchlight would not fall within the ambit of the Industrial Disputes Act. The opposite view put forward by Mr. B.C Ghosh on behalf of the petitioners was that petitioner no. 1 was employed in doing skilled clerical work and that he was a ‘workman’ within the meaning of the Industrial Disputes Act. Mr. B.C Ghosh said that the pay of the petitioner no. 1 was about Rs. 450 per month, that he was employed as a senior Assistant Editor of the newspaper and that his job was to write editorial articles and notes and to read the proofs thereof. Mr. Ghosh stressed the argument that the editorial articles and notices written by petitioner no. 1 were subject to the approval of the Editor and might not be inserted, in the newspaper if the Editor did not approve them. Learned counsel submitted that there was no written specification of duties maintained for the editorial staff of the Searchlight and there was also no written contract of service between petitioner no. 1 and the management of the newspaper. There is absence of documentary evidence on the point but upon the affidavits filed in the case it appears that the duty of petitioner no. 1 was generally to write editorial articles and notes and read proofs thereof and that the articles and notes were subject to the approval of the Editor. Mr. B.C Ghosh argued that the work of petitioner no. 1 was of skilled clerical nature and that he was, therefore, a ‘workman’ within the meaning of the Industrial Disputes Act. I am unable to accept the argument of the learned counsel.
section 2(s) defines ‘workman’ to mean—
‘any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward…………………’.
In the lexicographic sense a clerk generally denotes a person employed in a subordinate position in a public or private office to make fair copies of documents or to do mechanical work of correspondence. In my opinion the duties assigned to petitioner no. 1 as senior Assistant Editor are not clerical. In doing his editorial work, petitioner no. 1 has to display qualities of initiative and independence and it is, I think, too far-fetched to argue that the duties of petitioner no. 1 are of mechanical or routine description. I hold that petitioner no. 1 is not a ‘workman’ within the meaning of the Trade 1 Disputes Act. Mr. B.C Ghosh said that the expression ‘workman’ should be interpreted in a wider and more comprehensive sense so as to meet the requirement of modern social and industrial conditions. But it will be straining the language of section 2(s) to interpret it in the sense for which the petitioners contend.
In this connection, it is important to notice that in the Trade Unions Act (Act XVI of 1926) the expression ‘workman’ is defined in a wider sense. Section 2(g) of that Act states:
“‘Trade dispute’ means any dispute between employers and workmen or between workmen and workmen, or between employers and employers which is connected with the employment or non-employment, or the terms of employment or the conditions of labour, of any person, and ‘workmen’ means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises”.
I do not wish to express any final opinion, but petitioner no. 1 may be a ‘workman’ within the meaning of the Trade Unions Act, but he is not, in my opinion, a ‘workman’ within the meaning of the Trade Disputes Act. In support of his argument, Mr. B.C Ghosh referred to a passage in the judgment of Lord Wright in National Association of Local Government Officers v. Bolton Corporation, which runs thus: “In my opinion, the respondents” contention would unduly narrow and limit the wide connotation which should here be given to ‘trade’ and to ‘workman’. Section 11 of the Act of 1919 shows that ‘trade’ is used as including ‘industry’ because it refers to a trade dispute in the industry of agriculture. The same inference appears from the short title. It is described as an Act to provide for the establishment of an industrial court in connexion with trade disputes. Trade and industry are thus treated as interchangeable terms. Indeed ‘trade’ is not only in the etymological or dictionary sense, but in the legal usage, a term of the widest scope. It is connected originally with the word ‘tread’ and indicates a way of life or an occupation. In ordinary usage it may mean the occupation of a small shopkeeper equally with that of a commercial magnate. It may also mean a skilled craft. It is true that it is often used in contrast with a profession. A professional worker would not ordinarily be called a tradesman, but the word ‘trade’ is used in the widest application to the appellation ‘trade unions’. Professions have their trade unions. It is also used in the Trade Boards Act to include industrial undertakings. I see no reason to exclude from the operation of the Industrial Courts Act the activities of local authorities, even without taking into account the fact that these authorities now carry on in most cases important industrial undertakings”. But this passage must be read in the context of the English Industrial Courts Act, 1919. Section 8 of that Act defines ‘trade dispute’ and ‘workman’ in much wider terms than in the corresponding Indian Statutes.
Section 8 of the English Industrial Courts Acts, 1919, states:
‘The expression ‘trade dispute’ means any dispute or difference between employers and workmen, or between workman and workmen connected with the employment or non-employment, or the terms of the employment or with the conditions of labour of any person.
The expression ‘workman’ means any person who has entered into or works under a contract with an employer whether the contract be by way of manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour”.
Mr. B.C Ghosh also relied upon the case of D.N Banerji v. P.R Mukherjee, but this authority is of no assistance to the petitioners, for, the Supreme Court expressly left, open the question whether the Sanitary Inspector and the Head Clerk of the Municipality were officers and not ‘workmen’ within the meaning of the Industrial Disputes Act. Mr. B.C Ghosh also strongly relied upon the Award of the Banking Companies Tribunal, dated the 26th of March 1953. At page 1267 the Tribunal state that an officer has responsibilities of a directional and controlling nature and that, on the contrary, a clerk does work of a routine or mechanical nature and has no responsibility to take final decision in most of the matters which come in his hands. The Tribunal further make a distinction between supervisory work and managerial or controlling work and reach the conclusion that accountants, head cashiers and supervisors of banks were not officers but are workmen of the bank. Mr. Ghosh pointed out that the Tribunal had accepted the view of Justice Bind Basni Prasad in the U.P Conciliation Board case of the year 1948. But I do not think that Mr. Justice Bind Basni Prasad or the Tribunal intended to lay down a universal test for deciding whether an employee is a workman or an officer. The tests were laid down in cases which related to Banking Companies where conditions are highly peculiar. At page 1268, the Banking Companies Award reads: “The real point of controversy is with reference to the question whether normal supervisory work, sort of what is described as directional and controlling powers, is sufficient by itself to take an employee out of the category of workmen. We think it will not be right to lay down a general proposition of that sort. Most often, supervisory work is entrusted to senior clerks who have experience of that kind of work and who as sectional heads can supervise similar work of clerks under them. It may be that in some instances, supervisory work is of such a type and character that it can only be a responsibility of an officer, strictly so called. That may very well happen where there is a supervising hierarchy, and particularly so in big banks and in Head Offices and branches in important cities where the volume of work is considerable and requires supervision at several stages. It must be remembered that in the banking industry there is supervision at several levels, as for instance, where a cheque goes round a number of hands to see whether it is in order and should be paid and in some cases where the amounts are large still higher officers may have to scrutinise the same. Supervision, therefore, in banking industry cannot be regarded as a clear dividing line between clerical and officers' work. In this respect the peculiarities of this industry must be kept in view. As already stated, a hard and fast rule cannot be laid down”. The observations made by Justice Bind Basni Prasad and by the Tribunal must, therefore, be read in the special background of the conditions prevailing in the banking industry and cannot be applied to the present case.
On behalf of the respondents Mr. Baldeva Sahay referred to the award of the Industrial Court in Jam-e-Jamshed Press, Bombay v. Workmen Employed Under It. In which it was held by the Industrial Tribunal that members of the Editorial Department of the newspaper were not covered by the definition of the word ‘workmen’ under section 2(s) of the Industrial Disputes Act. It was contended before the Tribunal on behalf of the employers that the members of the Editorial Department were not occupied in doing work which was mainly skilled clerical work but do journalistic work which was superior to and distinct from skilled clerical work or the work done by the workmen in the press section. This argument was accepted by the Tribunal but there is no actual discussion of the point and the case proceeded mainly on the admission that the case did not fall within the ambit of the Industrial Disputes Act.
For the reasons already stated, I think petitioner no. 1 Sri Vinaya Nath Narain Sinha is not a workman within the meaning of the Industrial Disputes Act and section 33 of the Act has no application to the present case.
Assuming that my conclusion on this point is not right and that there has been a breach of section 33 of the Act on the part of the respondents, the question arises whether petitioner no. 1 has any civil right of action. This question is important, for the existence of a civil right is the foundation of an application for the grant of a writ under Article 226 of the Constitution. Unless, therefore, the petitioner no. 1 establishes that there has been a breach of civil right, the application for issue of a writ under Article 226 of the Constitution must fail. On behalf of the opposite parties Mr. Baldeva Sahay maintained that even if section 33 had been violated, petitioner no. 1 had no right of action.
Mr. Baldeva Sahay referred to section 31(1) of the Act which is as follows:
“Any employer who contravenes the provisions of section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both”.
The submission of the learned counsel was that special penalty has been attached to the breach of section 33 and that remedy is exclusive, and petitioner no. 1 has no civil remedy in addition to the remedy expressly provided by the statute. Mr. B.C Ghosh on behalf of the petitioners put forward the opposite view that apart from the express penalty provided in section 31, petitioner no. 1 had a right of civil action for breach of section 33. In my opinion, the question raised depends upon the intention of the Trade Disputes Act. Was it intended to make the duty one which was owed to the individuals aggrieved or was it intended to be a public duty only? The answer depends upon the construction of the whole Act and the circumstances in which it has been enacted.
In the approach to this question it is necessary to have regard to certain principles which afford guidance in ascertaining the intention of the Legislature. For example, if a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is dimnified by the breach. For, if it were not so, the statute would be wholly ineffectual. But where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner “[Lord Tenterden, C.J in Doe v. Bridges]. This passage was cited with approval by the Earl of Halsbury, L.C in Pasmore v. Oswaldtwistle Urban District Council. But this general rule is subject to exceptions. It may be that, though a specific remedy is provided by the Act, yet the person injured has a personal right of action in addition. That depends on the scope and language of the particular statute. For instance, in Black v. Fife Coal Co., Ltd., Lord Kinnear observed: “If the duty be established, I do not think there is any serious question as to the civil liability. There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Atkinson v. Newcastle Waterworks Co., and by Lord Herschell in Cowley v. Newmarket Local Board solves the question. We are to consider the scope and purpose of the statute and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention”.
An illustration of the general rule is the leading case of Atkinson v. Newcastle & Gateshead Waterworks Co.. In that case it was held by the Court of Appeal, reversing the decision of the Court of Exchequer, that the defendant company was not liable in damages for the destruction of the plaintiff's house by fire, although its destruction was directly due to the failure of the defendants to perform the duty laid upon them under the Waterworks Clauses Act, 1847, to maintain a certain pressure of water in their water-pipes for the purpose of extinguishing fire. The statute in question provided that any breach of this duty should be an offence punishable by a fine of ten pounds, and the Court came to the conclusion that on the true interpretation of the statute the intention of the Legislature was that this should be the sole remedy available. The principle is stated by Lord Cairns as follows: “Apart, then, from authority, I should say, without hesitation, that it was no part of the scheme of this Act to create any duty which was to become the subject of an action at the suit of individuals, to create any right in individuals with a power of enforcing that right by action; but that its scheme was, having laid down certain duties, to provide guarantees for the due fulfilment of them, and where convenient to give the penalties, or some of them to the persons injured, but, where not convenient so to do, there simply to impose public penalties, not by way of compensation, but as a security to the public for the due performance of the duty”.
Adopting this principle, it is necessary to consider the scope and object of the Trade Disputes Act and to ascertain for whose benefit the protection of section 33 is intended. Section 33 undoubtedly imposes a duty on the employers but the important question is—to whom is the duty owed? Was it intended by the framers of the Act to make the duty one which was owed to the petitioner, or was it a duty owed to the public?
The preamble of the Act states:
“It is expedient to make provision for the investigation and settlement of industrial disputes and for certain other purposes”.
There is nothing in the title or preamble of the Act which suggests that it is a charter for the employees or that it is enacted solely for the benefit of the employees like the Factories Act or the Trade Unions Act. On the contrary, the preamble suggests that the object of the Act was the proper adjustment of relations between capital and labour, preservation of law and order, and the increases of industrial production. Chapter II deals with the constitution of authorities like Conciliation Officers, Boards of Conciliation, Courts of Enquiry and Industrial Tribunals. Chapter III deals with references of disputes to Boards, Courts or Tribunals. Chapter IV of the Act relates to procedure, powers and duties of authorities constituted for investigation and settlement of industrial disputes. Chapter V is entitled “Strikes and lock-outs”.
Section 22(1) of this Chapter states that:
“No person employed in a public utility service shall go on strike in breach of contract without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking……………”.
Section 22(2) states that—
“No employer carrying on any public utility service shall lock-out any of his workmen without giving them notice of lock-out as hereinafter provided, within six weeks before looking out……………”
Section 23 states:
“No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out—(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings; (b) during the pendency of proceedings before a Tribunal and two months after the conclusion of such proceeding; or (c) during any period in which a settlement or award is in operation in respect of any of the matters covered by the settlement or award”.
Section 24 provides that a strike or a lock-out shall be illegal if it is commenced or declared in contravention of section 22 or section 23. Chapter VI is important. Section 26(1) states that any workman who commences, continues or otherwise acts in furtherance of an illegal strike shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees. Section 26(2) similarly provides that any employer who commences, continues or otherwise acts in furtherance of an illegal lock-out shall be punishable with imprisonment for a term which may extend to one month, or with fine, or with both. Section 27 provides penalty for instigation of an illegal strike or lock-out. Section 28 states that any person who knowingly expends or applies any money in direct furtherance of any illegal strike or lock-out shall be punishable with imprisonment for a term of six months. Section 30 provides penalty for disclosing confidential information.
Section 31(1) states:
“Any employer who contravenes the provisions of section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both”.
Upon this consideration of the various provisions of the Act it is manifest that the overriding purpose of the Act is the benefit of the community and not the benefit of the employees or of the employers. For instance, section 24 imposes a statutory duty on the employees not to commence or declare an illegal strike. If there is a breach of this statutory duty on the part of the employees, can it be contended that the employer has a right of civil action against the employees in default in addition to the statutory penalty provided by section 26(1)? Clearly not. Similarly if the employer declares an illegal lock-out, there is a breach of the obligation created by section 24 but the employees have no right of civil action. The exclusive remedy open to them is criminal prosecution under section 26(2). The duty imposed by section 33 on the employer is certainly not more important than the duty owed by the employer under section 24. In my opinion the duty imposed by section 33 is a duty owed not to the employees concerned but a duty owed to the public which can be solely enforced by criminal prosecution under section 31. Mr. Ghosh referred to section 34 of the Act and complained that sanction of the Government was necessary before a criminal court could take cognizance of any offence under section 33. But this circumstance supports the conclusion I have already reached that the duty is owed under section 33 not to the employees but to the public. For the matter is left under section 34 to the discretion of the local Government to authorise or not to authorise the criminal prosecution for the breach of the statutory duty imposed on the employer under section 33. There is also another circumstance to be considered.
Section 31(1) states that any employer who contravenes the provisions of section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. If the Legislature intended that the duty owed under section 33 was a private right owed to the employees, it is unlikely that the Legislature would have imposed heavy criminal penalties of this description. This circumstance also indicates that section 33 deals with violation of public right and the remedy for such violation is the exclusive remedy provided by the statute. There is also another matter to be taken into consideration. Section 33A makes a special provision for adjudication as to whether the conditions of service, etc., have been changed during the pendency of proceedings before a Tribunal.
Section 33A states:
“Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Tribunal and on receipt of such complaint that tribunal than adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly”.
The provisions of section 33A also indicate that the employee has no right of civil action for breach of section 33 if the proceedings are pending before a Tribunal. Upon reading the Act as a whole and after considering its scope and object, I am satisfied that the duty imposed on the employer under section 33 is a duty not owed to the particular employee prejudicially affected, but it is a duty owed to the public. To put it differently, the employees affected have no right of action for a breach of the statutory obligation imposed by section 33. The remedy for breach of section 33 is the special penalty provided in section 31 of the Act, and the statutory obligation can be enforced only by that special penalty. It is manifest that the petitioners in this case have no civil right even if it is assumed that there is breach of section 33 on the part of the respondents.
In view of these considerations I think that this application for issue of a writ under Article 226 of the Constitution must fail and should be dismissed with costs. Hearing fee five gold mohars.
Sinha, J.:— I agree.
K.D
Application dismissed.
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