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TMI Blog1960 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... writ and on that ground the appeal against the High Court's order must also be dismissed. Appeal dismissed. - Civil Appeal No. 157 of 1959 & 158 of 1959 - - - Dated:- 12-12-1960 - GAJENDRAGADKAR, P.B., WANCHOO, K.N. AND GUPTA, K.C. DAS, JJ. For the Appellant :M.C. Setalvad, Attorney-General for India and G. C. Mathur,. For the Respondent : M. R. Krishna Pillai, JUDGMENT DAs GUPTA, J.- These two appeals raise the question of the maintainability of an application made by the Employers' Association of Northern India, Kanpur on behalf of , the J. K. Cotton and Weaving Mills Co., Ltd., a member of the Association in connection with the proposed termination of service of certain members of its Watch and Ward Staff. But before we come to the consideration of this question it is necessary to indicate in brief the long and tortuous path this matter has traveled before coming to us. The application of the Employers' Association purported to be under clause 5(a) of the Government order dated March 10, 1948, as amended by a later order of May 15, 1948. This order was issued by the Governor of the United Provinces in exercise of the powers conferred on him by cl. (b), (c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that having regard to the Standing Orders their services should be terminated in accordance with the Standing Orders. It accordingly directed in modification of the order made by the Board "that the services of the 27 sepoys in question be terminated in accordance with the Standing Orders and that they would not be paid extra compensation as directed by the Board." The workmen then appealed to the Labour Appellate Tribunal of India. The appellate tribunal held relying on an earlier decision of its own in Kanpur Mill Mazdoor Union v. Employers' Association of Northern India ((1952) 1 L.L.J. 195) that the application under cl. 5(a) of the Government Order was not maintainable. Accordingly it allowed the appeal and set aside the award of the Board as well as the Industrial Court. J.K. Cotton and Weaving Mills Co., Ltd., thereupon filed an application under Art. 226 of the Constitution to the High Court of Judicature at Allahabad praying for a writ in the nature of certiorari calling for the records of the case from the Labour Appellate Tribunal of India and quashing the order of the Tribunal which has been mentioned above. Mr. Justice Chaturvedi, before whom this application came u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an industrial dispute. This provision is in cl. 5(a) which may be set out in full:- "5(a). Any employee or recognised association of employers or registered Trade Union of workmen or, where no registered trade union of workmen exists in any particular concern or industry, the representatives not more than five in number of the workmen in such concern or industry duly elected in this behalf by a majority of the workmen, in such concern or industry as the case may be, at a meeting held for the purpose, may by application in writing move the Board to enquire into any industrial dispute. The application shall clearly state the industrial dispute or disputes which are to be the subject of such inquiry." Clause 10 provides for the constitution of industrial courts for specified areas. Clause 12 provides for appeals to this Court against the awards made by the Board. The other clauses up to clause 22 deal with the powers and procedure of the Board or the Industrial Court and with the duties of employers to permit certain meetings to be held. Then comes cl. 23 which is in these words:- "Save with the written permission of the Regional Conciliation Officer or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is workmen it is a case of contemplated non-employment which will come within the expression "industrial dispute". The other question is whether the provisions of cl. 23 of the order bar an application under cl. 5(a) during the con- tinuance of any enquiry before the Regional Conciliation Board or the Additional Conciliation Board or during the pendency of the appeal before the Industrial Court. There is no dispute that on June 13, 1950 when the application under clause 5(a) was made an inquiry was in fact pending before a Conciliation Officer. It appears that on July 9, 1949 the Governor of the United Provinces made an order directing the Labour Commissioner of the United Provinces or a Conciliation Officer nominated by him in this behalf to redstart the adjudication proceedings between the J. K. Cotton Weaving Mills Co., and S. N. Shukla, a dismissed employee of the concern. The Adjudica- tor was directed to conclude the adjudication and submit his award by August 15,1949. The time was extended by subsequent orders-first to November 15, 1949 and then to March 31, 1950, again to June 30, 1950 and thereafter to September 30, 1950. It is true that at the time these orders extendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly this disharmony as pointed out above between two provisions viz., cl. 5(a) and cl. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule however we have to remember that to harmonise is not to destroy. In the interpretation of statutes the court,% always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also. On the construction suggested by the learned Attorney-General it is obvious that by merely making an application under cl. (5) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl. 5(a) instead of making an application under cl. 23, cl. 23 will be a dead letter. A construction like this which defeats the intention of the rule making authority in cl. 23 must, if possible, be avoided. It is hardly necessary to mention that this rule in cl. 23 was made with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hill v. Crease ((1828) 5 Bing. 177), United States v. Chase ((1890) 135 U.S. 255) and Carroll v. Greenwich Ins. CO. ((1905) 199 U.S. 401). Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that cl. 5(a) has no application in a case where the special provisions of cl. 23 are applicable. As in the present case an inquiry was in fact pending before a Conciliation Officer, cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board. In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of cl. 5(a) comes into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision. On the above conclusions we hold that the Labour Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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