{"id":696,"date":"1963-11-23T00:00:00","date_gmt":"1963-11-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tata-chemicals-ltd-and-ors-vs-kailash-c-adhvaryu-on-23-november-1963"},"modified":"2015-04-21T21:17:04","modified_gmt":"2015-04-21T15:47:04","slug":"tata-chemicals-ltd-and-ors-vs-kailash-c-adhvaryu-on-23-november-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tata-chemicals-ltd-and-ors-vs-kailash-c-adhvaryu-on-23-november-1963","title":{"rendered":"Tata Chemicals Ltd. And Ors. vs Kailash C. Adhvaryu on 23 November, 1963"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Tata Chemicals Ltd. And Ors. vs Kailash C. Adhvaryu on 23 November, 1963<\/div>\n
Equivalent citations: AIR 1964 Guj 265, 1964 (9) FLR 394, (1964) 0 GLR 649, (1965) ILLJ 54 Guj<\/div>\n
Author: P Bhagwati<\/div>\n
Bench: P Bhagwati<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 P.N. Bhagwati, J. <\/p>\n
 1. This appeal raises some questions relating to the construction of certain provisions of the Industrial Employment (Standing Orders) Act, 1946. The facts giving rise to this appeal are few and for the most part undisputed and may be briefly stated as follows. The first appellants are a limited company carrying on business   of  manufacturing   chemicals   at   Mithapur in Jamnagar District.    The second appellant is the Works Manager of the factory of the first appellants  at  Mithapur  while  the  third  respondent  is the   Divisional   Engineer   in   Charge   of   the   power house of the first appellants.    The respondent was employed   as   a  clerk  in the establishment  of   the first   appellants  since   and   May   1950   and   at   the material   time he  was   drawing   a   basic   salary   of Rs.   80\/-   per  month  plus   Dearness   Allowance   of Rs.   69\/-   per   month,   his   total   emoluments   thus being   Rs.   149\/-      per  month.        The     industrial establishment   of   the   first   appellants   being   an industrial   establishment   to   which   the   Industrial Employment    (Standing   orders)    Act,    1946,   was applicable,    Standing   Orders   amongst   others,   for clerks other  than  workmen  employed  by   the  first appellants   were   certified   by   the   Commissioner  of Labour,   Bombay,   and Certifying Officer,  Bombay, under Section 5 of the Act.    The Standing Orders came into force on 27th February 1957 and applied to all  clerks employed in   the industrial establishment of the first appellants  to do clerical  labour but   excluding  all   clerks   in   the  employ   of  contractors.     It   was   not   disputed   that   the   respondent  was a person to whom  the  Standing Orders applied.     On   or about   13th   November   1958,   the respondent   was     dismissed   from     service  on   the ground   that   the  respondent   had   committed   acts of   major   misconduct   specified   in   Clauses   9,   17 and  25 of Standing Order No.   31.     According to the respondent the first appellants did not comply with the procedure set out in Clause 4 of Standing Order No. 32 before passing the order of dismissal as required  by  Clause  3  of   that Standing Order. The respondent,   therefore   filed a suit against the appellants contending that the respondent was dismissed   by   the appellants  without  complying  with Standing Order No.   32  and  that the dismissal of the respondent was,  therefore, ultra vires and that the respondent consequently continued to be in the employment of the first appellants and was entitled to   receive   from   the   first   appellants   emoluments from   14th  November   1958   upto   the  date   of   reinstatement.    The prayers which be claimed in the suit   were:    (i)   a   declaration   that   the   order   of dismissal passed by the appellants against the respondent was   illegal  and   ultra   vires   and   the   respondent accordingly continued in the employment of the first appellants:  and   (2) an order for payment of all emoluments from 14th November 1958 upto   the   date   of   reinstatement.     The   suit   was resisted  by the appellants on various  grounds.   In this appeal I am concerned only with the grounds which   were  urged   by   the   appellants   as   and   by way  of preliminary   objection   to   the   suit   and   it is,  therefore, not necessary to recapitulate in detail the grounds affecting the merits of the defence. It is  sufficient     to  state   that   the      appellants   contended  that in dismissing the respondent they had complied with Standing Order No. 32 and that the dismissal of the     respondent was.     therefore, not invalid.     The     three   main   grounds      which   were urged by way of preliminary objection to the suit were, firstly that the suit was barred  by the provisions of Section 9 of the Code of Civil Procedure, secondly   that  the  civil  Court had   no  jurisdiction to hear the suit in view of the provisions of the Industrial   Disputes   Act,   1947,   and   thirdly   that the suit was barred under the provisions of the Specific Relief Act. The first two grounds do cot survive for consideration in this appeal since they were negatived by the lower appellate Court and they have not been pressed before me by Mr. I.M. Nanavati, learned advocate appearing on behalf of the appellants. The only ground out of tie aforesaid three, grounds which was urged before me was the last ground, namely, that the suit was barred under the provisions of the Specific Relief Act. The argument under this head was that the suit was in effect and substance a suit to enforce a contract of personal service and was, therefore, not maintainable by virtue of the provisions of Section 21 (b) of the Specific Relief Act. The trial Court upheld the validity of this argument and dismissed the suit with no order as to costs. The respondent thereupon preferred an appeal in the Court of the District judge, Jamnagar, The learned Assistant Judge who heard the appeal took the view that though Section 21 (b) debarred the respondent from asking for reinstatement in service, the respondent would in any event be entitled to maintain a claim for damages for wrongful dismissal and that the Court having power to award the relief of damages under the provisions of the Specific Relief Act, the suit was not barred by the provisions of the Specific Relief Act. The learned Assistant Judge accordingly set aside the dismissal of the suit and remanded the suit to the trial Court for decision on merits. The appellants thereupon preferred the present appeal in this Court.\n<\/p>\n
 2. There were in the main two contentions urged by Mr. I.M. Nanavati on behalf of the appellants in support of the appeal. The first contention was the same which was advanced before the trial Court and the lower appellate Court, namely, that the suit was not maintainable by virtue of the provisions of Section 21(b) of the Specific Relief Act since it was in effect and substance a suit to enforce a contract of personal service. I shall immediately proceed to deal with this contention but before I do so. I may briefly indicate the second contention urged by Mr. I.M. Nanavati. The second contention of Mr. I.M. Nanavati was based on the provisions of Section 13-A of the Industrial Employment (Standing Orders) Act, 1946. He contended that by virtue of the provisions of this Section the Labour Court was the only authority which had jurisdiction to adjudicate upon the claim of the respondent in the suit and that the jurisdiction of the civil Court to do so was impliedly barred and that the suit was therefore, liable to be dismissed. This contention raised a very interesting question of law relating to the construction of Section 13-A of the Industrial Employment (Standing Orders) Act, 1946, and able arguments were advanced upon it. I shall examine these arguments a little later after I have disposed of the first contention of Mr. I.M. Nanavati.\n<\/p>\n
 3. The first contention was formulated by Mr. I.M. Nanavati in the following manner. He urged that when the respondent claimed in the plaint that the order of dismissal passed against him was illegal and ultra vires and that he continued in the employment of the first appellants, what he in effect and substance claimed was specific performance of the contract of employment between him and the first appellants which was a
\ncontract of personal service dependant on the per
\nsonal qualifications or volition, of the parties. He
\ncontended that Section, 21(b) of the Specific Relief
\nApt ruled that a contract which was so dependant
\non the personal qualifications or volition of the
\nparties or otherwise from its nature was such that
\nthe Court could not enforce specific performance
\nof it in material terms, could not be specifically
\nenforced and that the contract of employment between the respondent and the first appellants being
\nsuch a, contract, the respondent was not entitled
\nto specific enforcement of such contract against
\nthe appellants. The relief which was in effect
\nand substance claimed by the respondent was,
\ntherefore, in the submission of Mr. I.M. Nanwavati,
\na relief which was barred by the provisions of
\nSection 21(b) of the Specific. Relief Act and the
\nsuit was, therefore, liable to fail. This contention
\nwas urged by Mr. I.M. Nanavati by way of preliminary objection to the maintainability of the
\nsuit and was argued on a demurrer as if the allegations made in the plaint were true. Now it was
\nindisputable and could not with any colour of reason be disputed on behalf of the respondent that
\nthe contract of employment between the respondent and the first appellants was a contract of
\npersonal service which was incapable of being
\nspecifically enforced by virtue of the provisions of
\nSection 21(b) of the Specific Relief Act but the
\nanswer given by Mr. K.M. Chhaya, learned advocate appearing on behalf of the respondent to
\nthis contention of Mr. I.M. Nanavati was that
\nthe suit was not a suit to enforce a contract of
\npersonal service so as to be barred by the provisions of Section 21(b) of the Specific Relief Act.\n<\/p>\n
Mr. K. M. Chhaya urged that the dismissal of the
\nrespondent could be effected only in terms of the
\nStanding Orders and that since in making the
\ndismissal, Standing Order No. 32 was violated, the
\ndismissal was a nullity and the suit was therefore
\nmerely a suit for a declaration of statutory invalidity of the dismissal and not for enforcing a con
\ntract of personal service. The question which
\ntherefore arises for consideration on these rival
\ncontentions is whether a suit for a declaration that
\nthe dismissal is null and void and that the servant
\ncontinues in the employment of the master on the
\nground that the dismissal is in violation of the
\nprovisions of the Standing Order which prescribes
\nthat no dismissal shall be made except after
\ncomplying with a certain procedure can be said
\nto be a suit to enforce a contract of personal
\nservice:\n<\/p>\n
 4. Now in cases of this kind relating to termination of a contract of master and servant, a distinction must be made between a breach of a contractual obligation and a breach of a statutory obligation. This distinction is one of principle and has general application in respect of all contracts but it assumes particular significance in its application to contracts of master and servant for it is in this latter class of cases that the occasion for its recognition and application arises most often. If there is a breach of a contractual obligation committed by a party to a contract, the other party has ordinarily two remedies available to him. He may either treat the contract as broken and sue for damages or he may refuse to accept the repudiation of the contractual obligation as a breach discharging the contract and keeping the contract alive for performance, he may sue for specific enforcement of the contract provided specific enforcement of the contract is permissible under the Specific Relief Act. If the contract is a contract of master and servant this latter remedy would obviously not be available for there can be no specific enforcement of a contract of personal service under Section 21(b) of the Specific, Relief Act and the only remedy available would be the remedy by way of damages. Where on the other hand an obligation is imposed by a statute which provides that the contract shall be terminable only in the manner provided by, the statute, there can be no valid or effective termination of the contract unless the procedure prescribed by the statute is complied with by the party intending to terminate the contract. In such a case if the procedure prescribed by the statute is not complied with, there would be no valid and effective termination of the contract. The contract would continue to subsist between the parties for the action of terminating the contract being in violation of the statutory obligation would be null and void. When a suit is filed by the: aggrieved party contending that the termination of the contract is a nullity since it has not been, effected in the manner required by the statute, the relief sought by the aggrieved party, would not be a relief for specific performance of the contract but would be a right rarely for a declaration of the statutory invalidity of the act of termination. There being no breach of a contractual obligation, no question would arise of claiming damages for breach of contract or of enforcing specific performance of the contract. Specific performance of the contract would be necessary only if some contractual obligation is required to be enforced and that in its turn would be necessary only it the contractual obligation is broken, but where the complaint is not regarding the breach of any contractual obligation but only regarding the breach of a statutory obligation on the fulfilment of which alone the termination of the contract can take place, there would be no occasion or need to ask for specific enforcement of the contract but what the aggrieved party would be required to claim would be a declaration that the termination of the contract is null and void and that the contract continues to subsist between the parties. Applying this proposition to a contract of master and servant which is sought to be terminated by the master in breach of a statutory obligation which declares that the contract shall not be terminable except in a particular manner, the relief claimable by the aggrieved servant would be a declaration that his dismissal is null and void and that he continues in the employment of the master. In such a case Section 21(b) of the Specific Relief Act would not apply and the bar contained in that Section would not be attracted.\n<\/p>\n
 5. This distinction between a contractual obligation and a statutory obligation which I am making is borne out by at least two decisions which were cited at the bar, The first decision to which I shall refer in this connection is the decision of the Court of Queen’s Bench Division in England  is  Barber v.   Manchester Regional  Hospital  Board,  (1958) 1  WLR  181.    The headnote of the case given in this report sets out the facts with sufficient clarity and I need do no more than reproduce the   same.    The plaintiff,    a consultant on   the  staff   of   a   local authority   hospital,   continued to serve the hospital after it was transferred to   the   National   Health  Service  pursuant   to the National Health Service Act,  1946, and came under the  control  of  a regional hospital board.     In accordance   with regulations   made   under   the   Act he continued his existing duties for the preliminary period  laid  down  therein  without   entering  into  a new contract with the board. , By a circular letter of July   1,  1949  the board informed  the  plaintiff that   permanent   contracts on   the   basis of   terms and  conditions   of service  for  hospital  staff  issued by  the  Minister  of Health   in   June,   1949,   would shortly   be  offered   to   all   whole-time   officers,   but that   pending   settlement of   such   contracts   the duties of his present post would be continued “subject to the  terms and conditions of service above referred  to”. The terms and conditions concerned covered whole-time  arid part-time consultants and, by Clause 16,  gave to a consultant who considered his   appointment   was   being   unfairly   terminated   a right  to  submit   his   case   to   the   Minister,   whose duty it was to place the case before a professional committee, and,   in the light  of their advice, confirm   the   termination,   or   direct   reinstatement   of arrange some third, solution.     That procedure  was  to   be   completed   before   the board’s   decision   to terminate   was   carried   into   effect.     On   and   after July  1,   1949,   the  plaintiff continued to serve the Hospital.      As he refused to sign a permanent contract on   the  terms  offered  by   the  board  he was dismissed,   and   the   Minister, refused   to   entertain an appeal under Clause  16 of the terms and conditions of service above referred to on the ground that the plaintiff was not at the time of his dismissal,   employed   under   a contract   which   incorporated   those   terms   and conditions.     The   plaintiff thereupon sued the board and the Minister of Health,   claiming   inter alia,   declarations   that   he was employed under a contract which did in fact incorporate  those terms and   conditions   and   that his   employment   with the   board   had   never   been validly   determined   and   that   he   was   entitled   to salary up to the date of the writ.  On these facts it was  held  by  Barry, J,,   that  by  continuing   to serve  the board  after the receipt of the letter of July 1, 1949, the plaintiff must be deemed impliedly to have accepted the offer contained therein and had accordingly entered  into a new contract, with the   board   which clearly, having   regard to the terms of the letter,   incorporated   the  terms   and conditions of service    issued    by the    Minister in June,   1949, in, so far as  they  were applicable to his particular contract and that Clause 16 of  the terms and conditions  of service,  being clearly appropriate   for inclusion   in the contract had   contractual force between the plaintiff and the board and that by carrying into effect the termination of his employment before the terms of Clause 16 had   been   complied   with and a decision reached by  the   Minister  of  Health,   the  board   had   committed a breach     of its  contractual     obligation towards him.  On the question whether the plaintiff was entitled to a declaration that his employment with the board had never been validly determined and that he was entitled to salary up to the date of the writ or whether he was entitled
\nonly to damages for breach of contract, the learned
\nJudge held that since what was complained of in
\nthe suit was a breach of a contractual obligation,
\nto award  the plaintiff a  declaration that his employment with the board had  never been validly
\ndetermined and that he was entitled to salary upto
\nthe   date   of   the   writ   would   be   tantamount   to
\nenforcing   performance   of   a contract   of personal
\nservice   which   could   not  be done   under  the   law
\nand that the plaintiff was, therefore, entitled only
\nto   damages   for breach  of contract.     The  learned
\nJudge, on  more occasions  than  one  in the  course
\nof his judgment emphasized the fact that the right
\nwhich   the plaintiff Bought to  enforce  in the suit
\nwas  a  contractual right  and the  obligation  which
\nwas sought to be enforced against the board was
\na contractual   obligation   and that   was   the   basis
\non which the learned Judge, distinguished the case
\nbefore , him   from   the   decision   of   the House of
\nLords   in Vine   v.   National Dock   Labour Board,
\n(1957)   2 WLR   106 :   (1956) 3   All ER 939.    The
\nlearned   Judge   quoted   a passage from   the  judgment of Lord Keith   in Vine’s Case,   1957-2 WLR
\n106:   (1956) 3 All ER 939 which was in the following   terms:\n<\/p>\n
  “This is not a straightforward relationship of master and servant. Normally, and apart from the intervention of statute, there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages”. <\/p>\n
\n \n\n This   passage   clearly   recognizes   a   distinction   bet\nween  a contractual    obligation  and     a  statutory\nobligation.   According   to   the   learned   Law Lord,\nthere would never be a nullity    in terminating a\ncontract of     master and servant apart  from the\nintervention   of   statute,   meaning   thereby   that if\na statute intervenes, even termination of an ordinary contract of master and servant can be affect\ned by the vice of nullity.    If there is a dismissal\nof   the   servant   by   the   master   in  breach of   a\nstatutory  obligation  which   requires   that   the  dismissal   shall   not be effected   except in accordance\nwith a certain procedure, such dismissal would not\nbe in breach of a contract but would be in breach\nof a statute and would be a nullity.   The learned\nJudge after quoting the above passage from Vine's\nCase,   1957-2   WLR   106 : (1956)   3 All   ER   939\nobserved in words which leave no doubt that he\nheld the  plaintiff's' only remedy against the board.\nto   be in   damages   because what   was   complained\nof by  the plaintiff  against the board was merely\na breach   of  a contractual   obligation and not a\nbreach  of a statutory\/obligation: \n<\/pre>\n
  “Giving this matter the best consideration I can; I am unable to equate this case to the circumstances which were being considered by the Court of Appeal and the House of Lords in 1957-2 WLR 106 : (1956) 3 All ER 939. There the, plaintiff was working under a statutory scheme of employment, and clearly in those circumstances all the Lords of Appeal who dealt with the case in the House of Lords took the view that it could not be dealt with as though it were an ordinary master and servant claim in which the rights of the parties were regulated solely by contract. Here, despite the strong statutory flavour attaching to the plaintiff’s contract, I have reached the conclusion that in essence it was an ordinary contract between master and servant and nothing more. In those circumstances I feel bound to apply the general rule stated by Lord Keith, and to reach the conclusion here that the plaintiff’s only remedy against the board is the recovery of damages.”\n<\/p>\n
 These observations clearly show that where there is a mere breach of a contractual obligation in terminating a contract of master and servant the dismissal being in breach of contract would only sound in damages and the servant would not be entitled to a declaration that the dismissal is invalid and that he continues in the employment of the master since that would amount to enforcement of a contract of personal service. But where there is a breach of a statutory obligation which prevents the termination of the contract except in the manner prescribed by the statute, the dismissal being in breach of the statute, is null and void and the servant is entitled to a declaration that the dismissal is null and void and that he continues in the employment of the master. There is in such a case no enforcement of the contract of personal service.\n<\/p>\n
 6.  The other decision to which I must refer is the decision of the Supreme Court in Dr. S. Dutt v.   University   of   Delhi,  AIR<\/a>   1958   SC   1050.     In this   case   the   respondent,   namely,   the  University of Delhi,   by a resolution of   the  Executive Council,   dated  26th  April   1951, terminated  the service of the appellant who was a Professor of Chemistry employed by the respondent.    The appellant there upon appointed Professor M. N. Saha, the celebrated scientist,  as an arbitrator under the provisions of   Section   45   of   the   Delhi   University   Act   and required the respondent to appoint another arbitrator.     There   were  several   disputes   which   the   appellant wanted to be adjudicated upon by arbitration and one of the disputes was that his dismissal by   the   respondent  was   wrongful   since   the  Vice-Chancellor Dr.   Sea who according to him was inimically   disposed   towards   him,   had   shut   out   all discussion on  the question and  procured a resolution  for his   dismissal,   and   that  because  of  such malicious and  wrongful   barring  of  discussion,   the resolution   was  bad.     The  respondent  did   not appoint  another arbitrator   with  the result  that   the appellant  appointed  Professor M.   N.   Saha to  act as  sole   arbitrator.     Professor   M.   N.   Saha   thereafter entered   upon  the  arbitration  and   ultimately made an award   declaring inter alia  that  the   dismissal of     the  appellant  was   “ultra     vires,   mala fide and had no effect on his status” and that he still continued to be a Professor of the University of  Delhi.     This   award   was   challenged   on   behalf of the respondent.     The  challenge  was,   however, negatived by the Sub Judge, Delhi, whereupon two appeals were preferred on behalf of the respondent, it being a matter of doubt as to where the appeal lay.     The   appeals   were   withdrawn   by   the   High Court to itself for trial, and the High Court allowed the appeals holding that the award in so far as it declared that the dismissal of the appellant was ultra vires and that he still continued to be a professor of the University, disclosed an error apparent on the face of the award and was, therefore, liable to be set aside. The High Court took the view that the contract of service between the appellant and the respondent was a contract of personal service and that the award had the effect of specifically enforcing such contract of personal service and, therefore, offended Section 21(b) of the Specific Relief Act. The appellant thereupon carried the matter in appeal before the Supreme Court. It was urged on behalf of the appellant before the Supreme Court that the declaration that the appellant continued in service under the University in spite of his dismissal by the latter was a declaration which the law permitted to be made and was, therefore, not erroneous. Reliance was placed on the decision of the Privy Council in The High Commissioner for India v. I. M. Lall, 75 Ind App 225: (AIR 1948 PC 121), and it was contended that such a declaration had in fact been made by the Privy Council in that case. Repelling this contention the Supreme Court pointed out the basis on which I. M. Lall’s Case, 75 Ind App 225: (AIR 1948 PC 121) was decided by the Privy Council in the following words:\n<\/p>\n
  “It was then    contended     that a declaration that the appellant continued in his service   under the respondent in spite of his dismissal by the latter was a declaration which the law permitted to be made and was not therefore erroneous.    It was-said that such a declaration had in fact been made by  the Judicial Committee in  75 Ind.   App.   225: (AIR 1948 PC  121).    This contentio, in our view also lacks substance.    That was not a case based on a  contract     of  personal     service.    Indeed  the contract of the    respondent in that case provided that the service was “to continue during    the pleasure of His Majesty,   His Heirs and Successors, to be  signified  under   the  hand   of  the  Secretary   of State for India”.     The respondent had  been   dismissed  by an  order made under the hand  of the Secretary of State for India, and as he was liable to be dismissed at the pleasure of the Crown he could   base  no complaint  against his  dismissal  on the   contract of  service   and   did  not,   in   fact, do so.    He founded his suit on the claim that his dismissal by the Crown from the Indian Civil Service of which he was a member,   was  void and of no effect as certain mandatory provisions of the Government  of India   Act,   1935,   had   not  been  complied with.    The Judicial Committee accepted this claim   and   thereupon   made   the   declaration   that the purported dismissal of the respondent was void and inoperative and he remained a member of the Service at the date of the institution of his suit. The   declaration   did   not   enforce   a   contract   of personal   service but  proceeded   on   the  basis   that the  dismissal   could   only  be  effected   in   terms   of the   statute   and   as   that   had   not   been   done,   it was a nullity, from which the result followed that the respondent had continued in service.    All that the   Judicial   Committee   did   in   this   case  was   to make a declaration of a statutory invalidity of an act,  which  is   a   thing  entirely  different  from   enforcing a contract of personal service.”\n<\/p>\n
 These observations of the Supreme Court clearly show that where a dismissal is challenged not on the ground of a breach of a contractual obligation but on the ground of a breach of a statutory obligation,   the suit cannot  be  said   to  be a suit for enforcing a contract of personal service.    The Supreme Court  pointed  out  that  in   I.   M.   Lall’s Case,   75  Ind  App  325 :   (AIR   1948 PC  121)   the dismissed servant did not base his complaint against dismissal on the contract of service but contended that his dismissal was void and of no effect since certain   mandatory   provisions   of   the   Government of India Act, 1935, had  not been complied with. The   Supreme   Court   thus   clearly   recognized   the distinction between a breach of a contractual obligation and a breach of a statutory obligation in so far as termination of a contract of personal service is concerned.    In view of this position it was contended   on  behalf  of  the   appellant   that  his   was also a case of an ultra vires dismissal as I. M. Lall’s Case,  75 Ind  App  225 :   (AIR   1948 PC  121) was and  therefore,   governed   by   the   same   considerations.    The Supreme Court,   however,   observed   in relation   to   this   contention   that   the   appellant’s case never was  that his dismissal  was  ultra vires the statute or otherwise a nullity and the appellant was,  therefore, not entitled to rely on the analogy of I.M. Lall’s Case, 75 Ind App 225:   (AIR 1948 PC 121).    The very fact that the  Supreme Court proceeded to  consider  whether  the  case  before  it was a case of an   ultra vires act or a case of a mere wrongful dismissal in breach of a contractual obligation shows  that  the Supreme Court, was   of the view that if the act in question was an ultra vires act in breach of a statutory obligation as In I.  M. Lall’s Case, 75 Ind  App 225 :   (AIR   1948 PC   121)   a   declaration   could   have   been   validly granted   to   the   effect   that   the   dismissal   of   the appellant was null, and void and that he continued in   the   employment   of   the   respondent   and   Section   21(b)  of   the  Specific   Relief   Act   would   not have, stood in the way.    The Supreme Court did not say that it  was   immaterial   to consider   whether the dismissal  was  ultra vires on the ground that   even   if   it   were,   it   would   still   amount   to specific enforcement of a contract of personal service.    The Supreme Court thus impliedly held that if the  dismissal  was   challenged   as   ultra  vires  or null and void as contravening a statutory obligation,  a declaration could be granted to the effect that   the   dismissal   was   null   and   void   and   the servant continued in the employment of the master and that a suit claiming such relief could not be said to be a suit to enforce a contract of personal service so as   to attract the bar  of  Section  21(b) of the Specific Relief Act.\n<\/p>\n
 7. Having regard to this position in law, I must next consider whether the obligation under Standing Order No. 32 which was, according to the respondent, violated in the present case in making an order of dismissal against him was a contractual obligation or a statutory obligation. In order to be able to appreciate the arguments bearing upon this question, it is necessary to consider broadly the scheme of the Industrial Employment (Standing Orders) Act, 1946. The Act was enacted on 23rd April 1946 because the Legislature thought that it was
\n  “expedient to require employers in individual establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known  to workmen employed by them”.\n<\/p>\n
 Prior   to   the   passing   of   the   Act,   conditions   of employment   obtaining   in   several   industrial   establishments were governed by contracts between the employers   and   their  employees.     Sometimes   these conditions  were  reduced   to   writing   but  in   many cases,   they were not reduced to  writing and were governed by oral agreements.    Inevitably in many cases,   the   conditions   of   service   were   not   well defined  and    there   was  ambiguity      or  doubt  in regard to their nature and scope. That is why the Legislature took the view that in regard to industrial establishments to which the Act applied,   the conditions of employment subject to which industrial labour was employed,  should  be well defined and should be precisely known to both the parties With   that   object,   the   Act   made  provisions   for making  Standing Orders which, on being certified, prescribed   the   conditions   of   service   between   the industrial establishments in question and their employees so that what used to be governed by contract   heretofore   would   now   be   governed   by   the statutory Standing Orders in so far as the matters dealt with  by   the  statutory   Standing  Orders  are concerned.     This   is   the   principal   object   of   the Act which must be borne in mind in determining the   present  question   in   controversy   between   the parties.\n<\/p>\n
 8. The Act applies to every industrial establishment   wherein   one   hundred   or   more   workmen are employed or were employed on any day of the preceding twelve months.    It can be extended even to establishments   whose complement of labour  is less   than one  hundred  provided   a notification   in that behalf  is   issued   by  the appropriate  Government in the Official Gazette.     It does not apply to any industry to which Chapter VII of the Bombay  Industrial  Relations  Act,   1946   applies or   to any industrial  establishment  to  which   the  provisions of the Madhya  Pradesh Industrial  Workmen (Standing Orders) Act,  1959, apply, for these State enactments   have   made   distinct   and   independent provisions   for   the   framing   of   Standing   Orders. Standing   Orders   are   defined   by   Section   2(g)   to mean rules     relating  to matters     set out in  the Schedule.     Section   3(1)   requires   that   within   six months from  the date on which   the Act becomes applicable to an  industrial establishment,   the employer shall  submit  to  the Certifying  Officer   five copies   of  the   Draft  Standing  Orders   proposed   by him   for  adoption  in   his   industrial   establishment. Section  3(2)   enacts  that   provision  shall   be  made in   such   draft   for   every   matter   set   out   to   the Schedule  which  may   be   applicable  to   the   industrial   establishment,   and  where   model   Standing orders  have been  prescribed,  such  draft shall,   so far as is  practicable, be in conformity   with such model.     Under Section 4   the Standing Orders are certifiable  if provision  is made   therein  for  every matter set out in the Schedule which is applicable to  the industrial  establishment,   and   the   Standing Orders are otherwise in conformity with the provisions of the Act.    This  last  requirement necessarily   imports   the  consideration   specified   in   Section 3(2),   namely, that the draft Standing Orders must  be  in conformity  with   the  model   Standing Orders.    Prior to the amendment of Section 4 by Act 36 of 1956, it was not competent to the Certifying   Officer   to   adjudicate   upon the   fairness   or reasonableness   of   the   provisions  of   any   Standing Orders but the Section was amended by Act 36 of 1956 and the effect of the amendment is that it has now been made the function of the Certifying Officer to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. The net summary of the position under Section 4, therefore, is that the Standing Orders have to provide for all matters specified in the Schedule and they have also to be in conformity with the Act which includes the requirement that they have to be in  conformity with the model Standing Orders, so far as is practicable. Their fairness and reasonableness can also now be examined by the Certifying Officer and suitable modifications can be made in accordance with the decision of the Certifying Officer. Section 5 provides for the procedure which has to be followed by the Certifying Officer before  certifying the Standing Orders. The procedure is intended to give an opportunity to both the parties  to be heard before the final order is passed. Section 6 provides for an appeal and Section 7 lays down that the Standing Orders shall come into operation on the expiry of 30 days from the date on which authenticated copies thereof are sent as required by Section 5(3), or where an appeal is  preferred, on the expiry of seven days from the date on which copies of the appellate order are sent under Section 6(2). Section 8 requires the  Certifying Officer to keep a register of Standing Orders and under Section 9, the Standing Orders have to be prominently posted by the employer in English and in the language understood by the majority of the workmen on Special boards. Section 10(1) lays down that Standing Orders finally  certified under the Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modifications thereof came into operation. Section  10(2)  prior to its  amendment by Act 36 of 1956 authorized only the employer to apply for the modification of the Standing Orders but as a result of the amendment, workmen have also now been given the right to apply for such modification.  It is thus clear that after they are certified, the Standing Orders have to remain in force for six months at least unless of couse they are modified in the meanwhile by consent. After six months are over, an application for modification of the Standing Orders can be made either by the employer or by the workmen and the problem would then be considered after following the procedure prescribed in the Act for certifying the original Standing Orders. Section 11 confers the necessary powers of a Civil Court on the Certifying  Officer and the appellate authority and Section 12 prohibits   the   admission   of   oral  evidence   which has  the  effect  of  adding to or otherwise  varying  or contradicting Standing Orders as finally certified under the Act, in any Court. Section 13 provides for penalties and the procedure to enforce  them.   Sub-section (2) of this Section is rather material arid it prescribes that an employer who does any act in contravention of the Standing Orders finally certified under the Act for his industrial establishment shall be punishably  with fine.\n<\/p>\n
It is, therefore, made penal for an employer to do any act in contravention of the Standing Orders finally certified under the Act. Section 13-A was not in the Act but it was subsequently introduced by Act 36 of 1956. I shall have occasion to examine the true meaning and effect of this Section a little later when I deal with the second contention of Mr. I.M. Nanavati, Proceeding further with the  scheme of the Act, Section 14 confers on the appropriate Government power to exempt, conditionally or unconditionally, any industrial establishment and Section 15 confers on the appropriate Government the power to make rules to carry out the purposes of the Act. The Schedule to the Act contains eleven matters on which Standing Orders are required to be framed. This in brief is the Scheme of the Act.\n<\/p>\n
 9. It is in the light of the object and scheme of the Act set out above that I must examine the question as to what is the true nature of the Standing Orders certified under the Act for any particular industrial establishment. Mr. I.M. Nanavati contended that the Standing Orders when certified were incorporated in the contract of employment between the employer and the workmen and that they had, therefore, contractual force and riot statutory force. The rights and obligations created by the Standing Orders were, in the submission of Mr. I.M. Nanavati, contractual rights and obligations and not statutory rights and obligations. Mr. I.M. Nanavati relied on two circumstances in support of this  conclusion which he pressed for my acceptance. The first circumstance alleged by Mr. I.M. Nanavati was that there was no specific provision in the Act making Standing Orders binding on the employer and the workmen. Mr. I.M. Nanavati readily conceded that Section 13(2) made it penal for an employer to do any act in contravention of the Standing Orders but he urged that this provision was, hot sufficient to impart a binding character to the Standing Orders. The second circumstance alleged by Mr. I.M. Nanavati was that in any event even if Section 13(2) could be regarded as making the Standing Orders binding on the employer, there was no provision in the Act which made the Standing Orders equally binding on the workmen and that no binding character, therefore attached to the Standing Orders by reason of any statutory provision. The contention of Mr. I.M. Nanavati, was that the Standing Orders were incorporated as terms of  the contract of service and that binding character therefore attached to them by reason of contract and not by reason of law. Mr. I. M. Nanavati in support of this contention drew my attention to the relevant provisions of the Bombay Industrial Relations Act, 1946, and pointed out that there was no provision in the Act similar to Section 40 of the Bombay Industrial Relations Act, 1946, which provided that the Standing Orders shall be determinative of the relations between employer and employees in regard to all  industrial matters specified in Schedule I.  Now it is no doubt true that there is no express provision in the Act similar to Section 40 of the Bombay Industrial Relations Act, 1946, expressly declaring that the Standing Orders shall be determinative of the relations between the employer and the workmen. But it is clear from the various provisions of the Act and particularly Section 7 that the Standing Orders when certified become operative and bind the employer and, the workmen. If the Standing Orders were not to be binding on the employer and the workmen and it were open to the employer and the workmen either to incorporate them in the contract of service or not the entire object and scheme of the Act would be frustrated. The object of making the conditions of service precise and definite in the form of Standing Orders would be completely defeated, for the evil in the shape of ambiguity or doubt in regard to the nature and cope of the conditions of service which existed prior to the commencement of the Act and which was sought to be remedied by the enactment of file Act would still continue. Besides, there would be no point in requiring that the Standing Orders most be prominently posted by the employer in English and in the language understood by the majority of his workmen on special boards unless of course the Standing Orders were to be binding on the employer and the workmen. It must also be remembered that Standing Orders are defined to mean rules relating to matters set out in the Schedule. The use of the word “rules” is of some significance. This would not have been used to describe the Standing Orders if it was left to the meet will of the employer to enter into any contract of service with the workmen despite the Standing Orders. Then again the Certifying Officer is given the power to determine the fairness or reasonableness of the Standing Orders and that to obviously done because the Standing Orders are to govern the relations between the employer ad the workmen. The employer and the workmen are both entitled to ask for modification of the Standing Orders and the same procedure is prescribed in regard to the modification of the Standing Orders as obtains in regard to the certification of the original Standing Orders. This elaborate machinery of certification of the Standing  Orders and the modifications thereof would be robbed of all significance if the Standing Orders finally certified under the Act were not to be binding on the employer and the workmen. Lastly; Section 13(2) clearly indicates that there is on toe employer at any rate an obligation to act in conformity with the Standing Orders. If there is an obligation on the employer to act in accordance with the Standing Orders, there would equally be a corresponding obligation on the workmen so to act. I am, therefore, of the opinion that on a true construction of the various provisions of the Act, the Standing Orders when finally certified under the Act are binding on the employer and the workmen and govern the relations between the employer and the workmen and it is not open to the employer and the workmen to contract themselves out of the rights and obligations created by the Standing Orders.\n<\/p>\n
 10. So much on principle. Turning to the authorities, I find that the above view which I am inclined to take  is also supported by a decision of the Patna High Court in Bihar Journals Ltd. v. Ali Hasan, AIR 1959 Pat 431. There are no doubt two decisions of the Allahabad High Court which have taken a different view, but with the greatest respect to the learned     Judges who decided those cases, I find myself unable to accept that view. That view completely ignores the basic purpose of Standing Orders and does not give due effect to the provisions of Section 13(2). As a matter of fact Section 13(2) does not appear to have been cited at all before the learned Judges for there is no reference to it in either of the two judgments. But the matter does not rest here. There are at least two decisions of the Supreme Court which have definitely taken the view that the Standing Orders once certified under the Act are binding on the employer and the workmen. The first decision is that reported in Guest, Keen, Williams Private Ltd. v. P. J. Sterling, AIR<\/a> 1959 S C 1279. In that case Gajendragadkar J., delivering the judgment of the Supreme Court examined the object and scheme of the Act and at the end observed:\n<\/p>\n
   “Nevertheless the Standing  Orders when they were   certified   became      operative  and   bound   the employer and all his employees ….    The position  then   is   that  though   the   relevant  standing   order about  the  age of superannuation came into operation under Section    7 and was binding thereafter upon the employer and all his employees the right  of  the  respondent   to  challenge   the validity or propriety o the standing   order    and to claim a suitable modification in it cannot be    disputed. The   Standing  Orders   certified   under   the   Act   no doubt   become   part   of   the   terms   of  employment by operation of Section 7;. .      .      .      .      .”\n<\/p>\n
 The same learned Judges speaking on behalf of the Supreme Court in the other decision reported in Bagalkot Cement Co. Ltd. v. R. K. Pathan, AIR<\/a> 1963 SC 439 also made observations to the same effect when he said:\n<\/p>\n
  . . . . .The object of the Act, as we have
\nalready teen, was to require the employers to
\nmake the conditions of employment precise and
\ndefinite and the Act ultimately intended to pres
\ncribe these conditions in the form of standing
\norders so that what used to be governed by a con
\ntract heretobefore would now be governed by the
\nstatutory standing orders ….”\n<\/p>\n
 These observations of the Supreme Court clearly
\nshow that the Standing Orders when finally certified
\nunder the Act become operative and bind the
\nemployer and the workmen by virtue of the pro
\nvisions of the Act and not by virtue of any con
\ntract between the employer and the workmen.\n<\/p>\n
The rights and obligations created by the Standing Orders derive their force not from the con
\ntract between the parties but from the provisions
\nof the Act. They are statutory rights and obligations and not contractual rights and obligations.\n<\/p>\n
If, therefore, Standing Order No. 32 was violated
\nby the first appellants in dismissing the respondent
\nthe violation was a violation of a statutory obligation and not a violation of a contractual obligation and the respondent was therefore, entitled
\nto maintain a suit for a declaration that the order
\nof dismissal passed by the first appellants in violation of this statutory obligation was null and void
\nand that ho, therefore, continued in the employment of the first appellants, without in any way
\nattracting the bar of Section 21 (b) of the Specific Relief Act.\n<\/p>\n
 11. That takes me to the next contention of Mr. I.M. Nanavati.     The contention briefly,    was that having regard to the provisions of Section 13A, the Labour Court was the only authority which had jurisdiction to entertain the claim of the respondent and that the Civil Court had no jurisdiction to entertain the suit. Mr. I.M. Nanavati relied on the well known principle of construction that where a Statute creates a right or liability and gives a special remedy for enforcing it, the remedy provided by the statute alone must be availed of and the Civil Court would have no jurisdiction to grant any relief in enforcement of such right or liability. The Industrial Employment (Standing Orders) Act, 1946, argued Mr. I.M. Nanavati, created a right to observance of the Standing Orders certified under the Act and a liability to observe them and by Section 13A provided a special remedy for enforcing it, namely, a reference to the Labour Court and the Labour Court alone had, therefore, jurisdiction to compel obedience to the Standing Orders and the jurisdiction of the Civil Court to do so was excluded. Mr. K.M. Chhaya on the other hand contended on behalf of the respondent that the scope of Section 13A was limited and that it did not empower the Labour Court to grant any relief for enforcement of the rights and liabilities created under the Standing Orders and that the jurisdiction of the Civil Court to grant such relief could not be said to be impliedly barred. Mr. K.M. Chhaya urged that the relief claimed by the respondent in the suit in the present case could not be granted by the Labour Court under Section 13A and that the enactment of Section 13A could not, therefore operate to deprive the Civil Court of its jurisdiction to grant such relief. These rival contentions raised an interesting question of law relating to the construction of Section 13A and I shall now proceed to examine it.\n<\/p>\n
 12. It may be mentioned at the outset that this contention disputing the jurisdiction of the Civil Court to entertain the suit on the ground that the Labour Court was the exclusive authority constituted by Section 13A to enforce the rights and liabilities arising under the Standing Orders was neither taken in the written statement of the appellants nor was it urged before the trial Court or the lower appellate Court. It was sought to be raised for the first time at the hearing of this appeal before me. I would not, therefore, ordinarily have entertained this point but left it to the appellants to apply for leave to amend the written statement when the suit came up for hearing before the trial Court on remand and then urge it before the trial Court if leave to amend was given. But I felt that such a course would involve great hardship on the respondent who was a dismissed employee of the appellants and that it would be desirable that this point being a point of law should be disposed of by me, even though no plea raising this point was taken in the written statement and it was not advanced before the trial Court or the lower appellate Court.\n<\/p>\n
 13. Now Mr. I.M. Nanavati is certainly right in his contention and I agree with him that if there is one rule of construction clearer than any other, it is this, namely that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by the statute alone must be followed.   That rule was stated in the following words by Willen J.,     in a classical passage from his judgment    in Wolverhampton New Water Works Co. v. Hawkesford, (1859) 6 C. B.   (N. S.) 336, at p. 356: —\n<\/p>\n
  “There are three classes of cases in which a liability may be established founded upon statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is where the statute gives the right to sue merely but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. …. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to”.\n<\/p>\n
 This passage was quoted with approval by the
\nSupreme Court in N. P. Ponnuswami v. Returning
\nOfficer, Namakkal, AIR<\/a> 1952 SC 64 and the
\nSupreme Court observed in relation to this pas
\nsage :\n<\/p>\n
  “The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd., (1919) A.. C. 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tabago v. Gordan Grant and Co. 1935 A. C. 532 and Secy. of State v. Mask and Co., 44 Cal W.N. 709 : (AIR 1940 PC 105); and it has also been held to be equally applicable to enforcement of rights (see Hurdutraj v. Off. Assignee of Calcutta, 52 Cal W. N. 343, at P. 349….”\n<\/p>\n
  This being the true rule on the subject the question which must be considered is; does the Industrial Employments (Standing Orders) Act, 1946, provide a remedy for the enforcement of the rights and liabilities created by the Standing Orders certified under the Act? The only Section of the Act which was relied upon by Mr, I.M. Nanavati as providing such remedy was, as I have pointed out above. Section 13A. It is therefore, necessary to examine the language of Section 13A and to determine its precise scope and content.\n<\/p>\n
 14. Section 13A did not form part of the Industrial Employment (Standing Orders) Act, 1946, when it was enacted on 23rd April 1946. It was introduced in the Act by way of an amendment by Act 36 of 1956 which came into force with effect from 28th August 1956. It is, therefore, clear–and it was not disputed on behalf of the appellants–that if a suit like the present one had been filed before 28th August 1956, the Civil Court would undoubtedly have had jurisdiction to entertain the suit. The only question is: has the insertion of Section 13A made any difference? Section 13A is in the following terms:\n<\/p>\n
   “13A. Interpretation, etc., of standing orders : — If any question arises as to the application or interpretation of a standing order certified under this Act, any employer or workman may refer the question to any one of the Labour Courts constituted under the Industrial Disputes Act, 1947 (XIV of 1947) and specified for the disposal of such proceeding by the appropriate Government by notification in the Official Gazette, and the Labour Court to which the question is so referred shall after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties.”\n<\/p>\n
If any question arises as to the application of interpretation of Standing Orders certified, under the Act, a right is given to the employer and the workman to refer such question for the decision of the Labour Court, provided of course there is a Labour Court specified for the disposal of such proceeding by the appropriate Government by notification in the Official Gazette. There was no dispute in the present case that there is a Labour Court specified for the disposal of proceedings under Section 13A by the Government of Gujarat by notification in the Official Gazette. As a matter of fact the notification produced, by Mr. I.M. Nanavati clearly showed that in exercise of the powers conferred by Section 13A of the Act, the Government of Gujarat has specified the First Labour Court. Ahmedabad, the Second Labour Court, Ahmedabad, and the Third Labour Court, Ahmedabad, for the purpose of proceedings under Section 13A in the areas of various districts including Jamnagar District in which the factory of the first appellants is situate. It is, therefore, apparent that so far as the industrial establishment of the first appellants is concerned, Section 13A would apply in relation to a question arising as to the application or interpretation of Standing Orders certified under the Act and such question can be referred by the employer or the workmen to the First Labour Court, Ahmedabad, or the Second. Labour Court, Ahmedabad, or the Third Labour Court, Ahmedabad, and the decision of such Labour Court would be final and binding on the parties. Now the question which requires to be answered is : Does this power of the Labour Court under Section 13A embrace within its scope the power to enforce the rights and liabilities created under the Standing Orders certified under the Act? Can Section 13A be said to have provided a remedy for enforcement of the rights and obligations created by the Standing Orders certified under the Act for it is only if Section 13A can be regarded as having provided a remedy for enforcement of the rights and obligations created by the Standing Orders certified under the Act that on the rule of interpretation above stated, the jurisdiction of the Civil Court to enforce such rights and obligations can be said to be excluded. I must, therefore, examine what is the precise scope and extent of the power conferred on the Labour Court under Section 13A and determine whether the Labour Court has power under Section 13A to enforce the rights and liabilities created by the Standing Orders certified under the Act.\n<\/p>\n
 15. Standing Orders as soon as they are certified under the Act become binding on the employer and the workmen and determine the relations between them. Each, is, therefore, entitled to exact observance of the Standing Orders from the other. If there is any violation of the Standing Orders, an employer or the workman who is aggrieved by the violation, is entitled to complain about the violation and to enforce his right which is infringed by the violation. The enforcement of the right would involve giving of redress with a view to securing such enforcement. Such redress may be by way of declaration or direction. In the case of a threatened violation of the right under the Standing Orders, such redress may even take the form of prohibitory relief. To take only one example by way of an illustration: Suppose in the present case Standing Order No. 32 was in fact violated by reason of no inquiry having been held as provided by Clause 4 of Standing, Order No. 32 before the making of the order of dismissal. The dismissal of the respondent would in that event be in violation of the right conferred on the respondent under Standing Order No. 32 and the respondent would be entitled to enforce such right aganst the first appellants, the reliefs necessary to secure such enforcement being a declaration that the dismissal of the respondent was null and void and that the respondent continued in the employment of the first appellants and a direction that the respondent be paid his emoluments from the date of dismissal upto the date of reinstatement. The enforcement of the right created by Standing Order No. 32 would not be possible unless these reliefs can be given to the respondent. The question, therefore, resolves itself into a narrow one, namely, can the Labour Court under Section 13A grant the aforesaid relifs to the respondent? Can the Labour Court give the necessary reliefs for enforcement of the rights and liabilities created by the Standing Orders under Section 13A? If such reliefs can be given by the Labour Court under Section 13A there would be considerable force in the argument of Mr. I.M. Nanavati but I am afraid such is not the position.\n<\/p>\n
 16. The language of Section 13A clearly negatives the contention of Mr. I.M. Nanavati. Section 13A on a plain grammatical construction rules that if any question arises as to the application or interpretation of a Standing Order certified under the Act, such question can be referred to the Labour Court by the employer or the workman and on such reference, the Labour Court is empowered to decide such question and the decision bf the Labour Court is declared to be final and binding on the parties. The Section provides only for reference of a question as to the application or interpretation of a Standing Order certified under the Act and the Labour Court is authorized to give its decision on the question so referred. The function of the Labour Court is limited only to the decision of the question as to the application or interpretation of the Standing Order which is referred to it. The Labour Court is not invested with the power to grant relief in enforcement of the rights and liabilities created by the Standing Orders. There are no words in Section 13A which empower the Labour Court to grant redress for violation of the rights and obligations    created under  the   Standing   Orders.       The  Labour   Court cannot for example in     the present case giant a declaration that the dismissal of the respondent is null and, void and   that   the  respondent   continues in the employment of the first appellants nor can the Labour Court give  any  direction  to the  first appellants to pay to the respondent his emoluments from the date of dismissal upto the date of reinstatement.       Mr.   I.  M.   Nanavati  contended  that the power conferred on the  Labour     Court under Section 13A to decide any question as to the application or interpretation of a Standing Order which might be referred to it by an employer or a workman  carried  with  it   the  power   to  give  relief  to the employer or the workman who made such reference.      I cannot assent to this proposition.  There is a wide difference between a power to determine a question and a power to grant  relief by     way of redress of a grievance that any right or obligation has been violated.    No power to grant relief by way  of enforcement of the  rights and obligations   created   by   the   Standing        Orders   can   be implied merely from the conferment of power on the Labour Court to decide any question as to the application   or  interpretation  of  a  Standing Order, which might be referred to it by the employer or the workman.    Though in making this submission Mr. I.M. Nanavati did not expressly state so, he really     relied on the doctrine  of implied  powers. But as pointed oat by the Supreme Court in Bidi Leaves    Etc.  Association v.  State of Bombay,<\/a> 64 Bom L.    R.    375   :   (AIR     1962  SC 486),     the doctrine of  implied  powers cannot  be     invoked unless  it is  found  that  a power  conferred  on an authority cannot be discharged or the power cannot be exercised  at  all  unless some auxiliary     or incidental  power is assumed to exist.    The     two powers,  the one actually conferred on the Labour Court by Section     13A  and the other sought to be attributed  to   the Labour Court by Mr.   I.  M. Nanavati are essentially distinct powers and it is not necessary to the exercise of the former that the latter should also exist in the Labour Court.    Ever without having the latter power the Labour Court can   effectively      exercise   the   former   power.     It clearly appears from these considerations that Section 13A has been enacted with a view to resolving  differences   which  may  arise  between   the  employer and  the workman as to the application or interpretation  of a Standing  Order  which  do   not involve the  enforcement of the   rights and liabilities created under the Standing Orders by  giving redress to one party or the’ other.      If any action is taken by the employer in violation of the Standing   Orders   which   requires   to  be     given   to   the workman,   such redress     cannot be given by    the Labour Court under Section   13A and  unless     the Union espouses the cause of the workman and raises an industrial dispute which may be referred by the appropriate    Government to the Labour Court for  adjudication   under  the   provisions   of  Sections 10 or 12 of the Industrial Disputes Act, 1947, the only remedy available to the workman would    be to file a civil suit for securing such redress.    Section 13A cannot stand in the way of the workman seeking such redress from the civil Court.\n<\/p>\n
 17.    Mr. I.M. Nanavati contended that    if  this construction were placed upon Section  13A it would defeat the object of enactment of the Section which was to, confer a right on an individual workman to secure enforcement of the rights conferred upon him by the Standing Orders. He urged that until the introduction of Section 13A the only remedy available against the employer to breach of the obligations imposed by the Standing Orders was the raising of an industrial dispute by the Union and reference of such industrial dispute by the appropriate Government for adjudication by the Labour Court. Unless the Union espoused the cause of the individual workman, he had no remedy available to him. It was for this reason, argued Mr. I.M. Nanavati, that Section 13A was brought on the statute book for the purpose of conferring a right on the individual workman to obtain redress for his grievances. Mr. I.M. Nanavati pointed out that under the Bom bay Industrial Relations Act, the workman enjoyed a similar right to approach the Labour Court for any violation of his rights tinder the Standing Orders and it was with a view to equating the rights of the workman governed by  the Industrial Disputes Act, 1947, with the rights of the workman governed by the Bombay Industrial Relations Act, 1946, that Section 13A was introduced by way of an amendment. This contention of Mr. I.M. Nanavati is in my opinion, not well-founded. In the first instance the language of Section 13A does not support this contention. It must be remembered that the intention of the legislatures is to be gathered from the language used and the Court’s function is not to say what the Legislature meant but to ascertain what the Legislature has said it meant. The Court should not forget the words of caution uttered by Lord Watson in Salomon v. Salomon and Co., 1897 AC 22 :\n<\/p>\n
  “Intention of the Legislature is a common but very slippery phrase, which popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication”.\n<\/p>\n
 Having regard to the language used by the Legislature in Section 13A, it is not possible to take the view that Section 13A was intended to confer a right on an individual workman to secure enforcement of the rights conferred upon him by the Standing Orders. If such were the intention appropriate language would have certainly been used by the Legislature. There is also one other factor which militates against this contention of Mr. I.M. Nanavati though it is a slight one. The present case has arisen within the Gujarat State and in its application to the Gujarat State the Industrial Employment (Standing Orders) Act, 1946, stands amended by Bombay Act 21 of 1938. The effect of the amendment is that if any question arises as to the application or interpretation of a Standing Order, the employer or the workman or the prescribed representative of workmen can refer such question to the Labour Court. If the intention of the Legislature were to confer a right on an individual workman to approach the Labour Court to enforce his rights under the Standing Orders there would have been no point in including the representative of workmen in the category of persons entitled to apply to the Labour Court under Section 13A. The representative of workmen, namely, the Union, had always a right to raise an industrial dispute and to ask the appropriate Government to refer it for adjudication to the Labour Court. This circumstance also, indicates though in a small way that the scope, of Section 13A is a narrow and limited one and it relates to resolution of differences as to the application or interpretation of Standing Orders which do not involve enforcement of the rights and obligations created under the Standing Orders by giving of redress to one party or the other and does not embrace applications for redress in enforcement of the rights and obligations created under the Standing Orders. Mr. I.M. Nanavati pointed out that the effect of accepting this construction would be that the individual workman would be deprived of the remedy by way of approaching the Labour Court for redress under Section 13A and he would be consigned only to the remedy of a suit in a Civil Court which would not be a cheap and expedtious remedy as the remedy by way of approaching the Labour Court under Section 13A. The Industrial Employment (Standing Orders) Act, 1946, is a welfare legislation and the Court should, therefore argued Mr. I.M. Nanavati, adopt a beneficent rule of construction in that if Section 13A is capable of two constructions, the construction contended for by him being a construction, more beneficial to the workman should be preferred to the other construction. Mr. I.M. Nanavati relied on certain observations from the judgment of, the Supreme Court in Alembic Chemical Works Co. Ltd. v. Workmen. AIR<\/a> 1961 S C 647 in support of this proposition. Now this proposition is unexceptionable and there can be no dispute about it, but the difficulty in the way of Mr. I.M. Nanavati is that this proposition is not at all applicable in the construction of Section 13A. Section 13A is, for reasons which I have already given, not capable of two constructions and the rule of construction relied on by Mr. I.M. Nanavati cannot, therefore, apply.\n<\/p>\n
 18. In this view- of the matter it is clear that the present case falls within the second category of cases referred to by Willes J., in the passage from his judgment in Wolverhampton’s Case, (1859) 6 C.B. (NS) 336 quoted above. The Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946, create rights and obligations but the Act does not provide any special or particular remedy for enforcing such rights and obligations and the workman whose rights are infringed by violation of Standing Order can, therefore, proceed by an ordinary action in a Civil Court in order to enforce such rights against the employer. The contention of Mr. I.M. Nanavati based on the provisions of Section 13A must, therefore, be rejected.\n<\/p>\n
 19. The result, therefore, is that the appeal fails and will be dismissed with costs all throughout.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Tata Chemicals Ltd. And Ors. vs Kailash C. Adhvaryu on 23 November, 1963 Equivalent citations: AIR 1964 Guj 265, 1964 (9) FLR 394, (1964) 0 GLR 649, (1965) ILLJ 54 Guj Author: P Bhagwati Bench: P Bhagwati JUDGMENT P.N. Bhagwati, J. 1. This appeal raises some questions relating to the construction of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-696","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nTata Chemicals Ltd. And Ors. vs Kailash C. 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