TMI Blog1993 (11) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... n the death of a workman the industrial dispute cannot survive and the proceedings must come to an end, whereas the Kerala and Gujarat High Courts have held that the industrial dispute survives the deceased workman and the reference can be continued by the legal heirs/representatives of the deceased workman. 3.We may briefly notice the facts of the case. Rameshwar Manjhi was working as coal-cutter in the service of the respondent-management. On May 3, 1974 he met with an accident while working in the colliery and as a consequence his right leg was amputated. The Medical Board recommended him for light duty on surface. It is his case that he presented himself before the management and requested that he be permitted to resume duties but the management did not permit him to join. The case of the management is that the workman became unfit to perform the duties and as such his services were terminated with effect from July 22, 1974 by giving him adequate compensation. Rameshwar Manjhi raised a dispute under Section 2-A of the Industrial Disputes Act, 1947 (the Act). Central Government referred the dispute for adjudication to the Tribunal in the following terms: Whether the actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that due to death of the concerned workman during the pendency of the adjudication proceeding the industrial dispute has come to an end and the reference cannot proceed further and has become infructuous as such. 4.To resolve the controversy it is necessary to examine the reasoning and the conclusions reached by various High Courts on the point in issue. The first decision is that of Assam High Court in the Tocklai Experimental Station v. State of Assam4. The matter was initially before a Division Bench. On difference of opinion it was referred to the third Judge. The majority held that the cause of a dead man could not be taken up by workmen's union and even if they had an interest in the employment or non-employment of the workman, it ceased along with his death. It was further held that in the case of an employer, his antecedent liability would survive the closure of his business but in the case of an employee, his claim to reinstatement expires along with his death and it no longer remains a dispute capable of settlement or adjudication. 5.Patna High Court in Bihar Working Journalists' Union v. H.K. Chaudhuril on the interpretation of clauses (c) and (d) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and do not survive, consist of damages due to the personal injuries suffered by a deceased and for defamation and assault, In that connection, Fatal Accidents Act was passed so that in connection with damages suffered in consequence of death of a deceased could be claimed on behalf of the dependents of a deceased person. But apart from certain personal causes of action which died with the death of a deceased person every other cause of action for civil claims has been held to have continued in existence so as to survive to his heirs for more than a century now. The decision that was given by the Labour Court, therefore, appears to us contrary to the above well established position. 8. We are not inclined to agree with the view taken by the learned Judges of theAssam, Patna, Delhi and Orissa High Courts. 9. The Assam High Court has primarily gone on the interpretation of the expression industrial dispute under Section 2(k) of the Act. It is not necessary for us to examine the reasoning of the Assam High Court any further because by insertion of Section 2-A into the Act with effect from December 1, 1965, any dispute or difference between an individual workman and his employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther relevant conditions, by the heirs of the deceased workman by making a claim under sub-section (2) of Section 33-C of the Act. Having regard to the well established principle that all causes of action except those which are known as dying along with the death of a person must survive to his heirs, the cause of action created in favour of workman under sub- section (2) of Section 33-C of the Act should in normal circumstances survive to the heirs. We approve the reasoning of the Bombay High Court in Sitabai case7. 12.The maxim 'actio personalis moritur cum persona' though part of English Common Law has been subjected to criticism even in England. It has been dubbed as unjust maxim, obscure in its origin, inaccurate in its expression and uncertain in its application. It has often caused grave injustice. This Court in a different context, in considering the survival of a claim for rendition of accounts, after the death of the party against whom the claim was made, in Girja Nandini Devi v. Bijendra Narain Choudhury8 observed as under: The maxim 'actio personalis moritur cum persona' a personal action dies with the person has a limited application. It operates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of settlement of industrial disputes on a fair and just basis. The primary duty of the Industrial Tribunal is to establish peace in the industry between employer and workmen. Any unfair action by the management even against an individual worker might cast its shadow on the general body of workers who might get perturbed by such 8 AIR 1967 SC II 24, 1131 : (1967) 1 SCR 9 (1961) 2 LLJ 110, 112: AIR 1967 SC 667 action. A resolution of the dispute might then become necessary for industrial peace notwithstanding the death of the workman concerned pending proceeding. The personal relief to the workman concerned to a certain extent occupies a subsidiary place in the scheme of things. Not that it is not important. It is only a consequential result of the decision primarily arrived at securing industrial peace settling the apprehension of the workmen without losing sight of the interest of the industry. As Rajamannar, C.J. stated in Sri Meenakshi Mills Ltd. v. Labour Appellate Tribunal10 the essential object of enacting the Industrial Disputes Act is to provide recourse to a given form of procedure for the settlement of disputes in the interest of maintenance of peaceful relations between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate.' Therefore, I see no reason why the Labour Court should cease to exercise jurisdiction in considering the question whether the termination of the services of the two employees was justified or not merely because they died during the course of the proceedings. A decision on that is certainly in the interest of the other employees. And the benefits that would be due to the deceased employees on the finding of the Labour Court can be realised on behalf of their estate by their legal heirs under Section 33-C(2) of the Act. 15. In Bank of Baroda v. Workmen2 a Division Bench of the Gujarat High Court, followed the reasoning of Chandrasekhara Menon, J. in Gwalior Rayons case3. B.J. Divan, C.J. speaking for the Bench quoted verbatim from Gwalior Rayons case3 and in addition observed as under: It may be pointed out that under Section 306 of the Indian Succession Act, 'All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase2. We agree with and approve the reasoning and the conclusions reached therein. 17.With respect to the learned Judges of the Assam, Patna, Delhi and Orissa High Courts, we are not inclined to agree with their reasoning and the conclusions to the effect that on the death of a workman his heirs and legal representatives cannot continue the reference or an application under Section 33(2) of the Act before the Tribunal/Labour Court. 18.We, therefore, hold that on the death of the workman, even when the reference is of an individual dispute under Section 2-A of the Act, the Tribunal does not become functus officio or the reference does not abate merely because, pending adjudication, the workman concerned dies. It is open to the heirs and legal representatives of the deceased workman to have the matter agitated and decided. 19.We allow the appeal, set aside the award of the Tribunal dated January 4, 1982 and send the case back to the Central Government Industrial Tribunal-cum-Labour Court No. 3, Dhanbad, Bihar for decision on merits. The Tribunal shall finally dispose of the matter within six months of the receipt of this judgment. The appellant shall be entitled to his cost ..... X X X X Extracts X X X X X X X X Extracts X X X X
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