Western India Automobile Association v Industrial Tribunal, Bombay (1949)

Two foundational questions about the Industrial Disputes Act were settled here, within two years of its enactment.

First: does the Act apply to private employers at all, or only to Government departments and local authorities? The employer argued that the definition of "employer" in s. 2(g) mentioned only those two, and was exhaustive. The Court rejected this.

Second, and more important: can an Industrial Tribunal order a dismissed workman to be reinstated? At common law and in equity no court would compel an employer to take back a servant — the remedy for wrongful dismissal was damages. An English court had just held that a tribunal could not order reinstatement. The Federal Court held that a dispute about reinstatement is an industrial dispute and that the Tribunal may award reinstatement.

A dispute between the Western India Automobile Association and its workers was referred to an Industrial Tribunal under s. 10 of the Industrial Disputes Act 1947. Fourteen demands were referred; no objection was taken to thirteen. The fourteenth read: "Such of the members of the W.I.A.A. staff who joined the strike at the date of its commencement on January 2, 1947, and/or thereafter should be reinstated."

The Association sought writs of prohibition and certiorari from the Bombay High Court. Coyajee J held that the Association was an employer within the Act, but that the dispute as to reinstatement was outside it, and issued a writ. On appeal, the Division Bench dismissed the Association's appeal on the first point and allowed the Province of Bombay's appeal on the second, holding that reinstatement was an industrial dispute within the Tribunal's jurisdiction. The Association appealed to the Federal Court.

1. Is the Industrial Disputes Act 1947 limited to industries carried on by Government or a local authority, because of the definition of "employer" in s. 2(g)?
2. Is a dispute as to the reinstatement of dismissed employees an "industrial dispute" within s. 2(k), so that the Tribunal can adjudicate on it and award reinstatement?

The appeal failed and was dismissed with costs.

Private employers are covered

The Court had "no hesitation in repelling" the argument that the Act was confined to Government and local-authority undertakings. On s. 2(g): "In our opinion, the definition given is neither exhaustive nor inclusive." It merely identifies who is to be treated as employer in those two cases, where it is not easy to find an individual answering that description. "No attempt, however, was made to define the term "employer" generally or in relation to other persons carrying on industries or running undertakings."

The preamble, the scheme of the Act, and its history as a more comprehensive successor to the Trade Disputes Act 1929 all pointed the same way. The Court said it was "not possible to argue that this elaborate machinery was devised for the benefit of industries run by Government and local authorities only".

Reinstatement is within "employment or non-employment"

The definition of industrial dispute is worded in very wide terms. "Reinstatement is the employment of a person non-employed". The Court gave four illustrations of disputes about employment or non-employment — including where "An employer may dismiss a man, or decline to employ him. This matter raises a dispute as to non-employment."

"Reinstatement is connected with non-employment and is therefore within the words of the definition." The words "employment or non-employment" "are of the widest amplitude and have been put in juxtaposition to make the definition thoroughly comprehensive", and "The words "in connection with" widen the scope of the dispute and do not restrict it by any means."

On the purpose of the Act: industrial disputes often begin with demands, lead to dismissal of the leaders and then a strike, and dismissed workmen "are usually the first victims in an industrial dispute." Hence "reinstatement may be an essential relief to be provided for in any machinery, devised for settlement of industrial disputes."

The Court drew support from English definitions of "trade dispute" in almost identical words, and from R v National Arbitration Tribunal, ex p Keabble Press, where a dispute wholly about reinstatement was treated as a trade dispute.

The "no court compels a contract" objection

The strongest argument was that ordering reinstatement makes a contract between unwilling parties. The Court answered that the definition already covers disputes where a union demands, or objects to, the employment of a person — in which the Tribunal can direct employment against an unwilling employer. So "there appears no logical ground to exclude an award of reinstatement from its jurisdiction."

Horatio Crowther distinguished

In R v National Arbitration Tribunal, ex p Horatio Crowther & Co the King's Bench Division held a reinstatement direction ultra vires. The Federal Court explained that the English judges did not hold that reinstatement was outside the definition of trade dispute; they held only that the tribunal lacked power to grant that relief. The Court distinguished "jurisdiction" in the sense of authority to entertain a matter from the power to grant a particular relief.

The English decision rested on reasons that did not apply in India: reinstatement was not ordinarily allowed in law or equity; the English Order made awards on wages and conditions implied terms of the contract but said nothing about reinstatement; no sanction existed to enforce it; and no suit lay to obtain it. By contrast, the Indian Act "has provided a sanction against disobedience of the award". Hence: "An order for reinstatement contained in an award can certainly be enforced by the coercive machinery provided by the statute."

Other arguments rejected

• Wrongful dismissal gives rise to two consequences, damages and reinstatement; it is illogical that one is within the Tribunal's jurisdiction and the other not.
• A union may take up the cause of discharged workmen: "We see no difficulty in the respondents (union) taking up the cause of the discharged workmen and the dispute being still an industrial dispute between the employer and the workmen." The words "any person" at the end of the definition are "a complete answer" to the argument that only discharged workmen could be parties.
• Arguments from the Contract Act, the Trade Unions (Amendment) Act, and the sequence of the words "employment or non-employment" were rejected.

Conclusion

"The Tribunal has jurisdiction to adjudicate on the dispute and it can be trusted to do its duty and it cannot be said that it will give the reinstatement relief unless it thinks it is necessary to do so." No question of jurisdiction arose to justify a prerogative writ.

(1) The Industrial Disputes Act 1947 applies to private employers; the definition of "employer" in s. 2(g) only identifies the employer for Government-department and local-authority industries and is not an exhaustive definition. (2) A dispute about the reinstatement of dismissed workmen is a dispute "connected with the employment or non-employment" of a person and is therefore an industrial dispute under s. 2(k); an Industrial Tribunal to which it is referred may award reinstatement, even though a civil court could not, because the Act supplies its own machinery to enforce awards.

• Direct question: Can an Industrial Tribunal order reinstatement of a dismissed workman? Discuss the common-law position and how the Industrial Disputes Act changed it. Start with damages as the only common-law remedy, then this case: reinstatement falls within "employment or non-employment", and the Act provides enforcement machinery.
• Direct question: Does the Industrial Disputes Act apply to private employers? Use the s. 2(g) argument and the Court's answer that the definition is "neither exhaustive nor inclusive".
• Problem question: striking workers are dismissed and the union demands reinstatement; the employer says the Tribunal cannot compel it to re-employ anyone. Apply this case, and explain why Horatio Crowther does not help the employer in India.
• Remember the court: it is the Federal Court, 1949 — say so in your answer.