Anjilamma and ors. Vs. Labour Court-iii, Hyderabad and anr. - Court Judgment

Excerpt:
labour and industrial - termination - sections 2 (s), 2-a and 2-a (2) of industrial dispute act, 1947 - whether legal heirs of deceased workman are entitled to institute industrial dispute questioning validity of termination of services even after death of workman under section 2-a - matter decided in view of precedents - court concluded that cause of action to seek reliefs contemplated under act from labour court does not die in totality with death of workman - legal heirs are not required to be 'workmen' within meaning of section 2 (s) - legal heirs competent to institute industrial dispute for benefit of estate left behind by deceased workman. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - 195/91) in the first respondent labour court-iii at hyderabad directly invoking the provisions of section 2-a(2) of the act as amended by the andhra pradesh amendment act 32 of 1987, claiming that the termination of the services of the workmen was illegal, improper, contrary to the regulations and in violation of principles of natural justice as well as in violation of provisions of section 25f of the act. bijendra narain [1967]1scr93 .according to the supreme court, the maxim 'actio personalis moritur cum persona' a personal action dies with the person, has a limited application and it operates in a limited class of actions ex delicto such as action of damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. 9. the industrial disputes act has created the adjudicatory forums like labour courts, industrial tribunals and national industrial tribunals to adjudicate upon the disputes arising between the capital and the labour. and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory'.in this context, it must be pointed out that, so far as the granting of relief of reinstatement is concerned, it would be nugatory on the death of the workmen concerned pending the reference before the tribunal or the labour court, as the case may be. in support of its conclusion, the bombay high court proceeded on the following reasoning at page 291 :it is well established that all civil rights of every kind vested in a deceased person and all causes of action in that connection, except those which are in the category of not capable of surviving after his death, survive to his heirs. the decision that was given by the labour court, therefore, appears to us contrary to the above well established position. having regard to the well established principle that all causes of action-except those which are known as dying along whit the death of a person-must survive to his heirs, the cause of action created in favour of workman under sub-section (2) of sec. it operates in a limited class of action ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. if according to the apex court if a pending proceedings can be continued by the legal heirs/representatives of the deceased workman after the death of the workman during the pendency of the proceedings, there is no good reason to hold that such legal representatives/heirs are incompetent to institute the dispute before the industrial court after the death of a workman have locus standi to continue an industrial dispute instituted by such workman in a labour court in law, then they are also competent to institute such workman. kerala) high court in gwalior rayon's case (supra) and that of the gujarat high court in bank of baroda's case (supra) which views are affirmed by the apex court in rameshwar manjhi's case clearly go to show that legal heirs/representatives of a deceased workman can institute industrial dispute before the jurisdictional labour court after the death of such workman. 15. this question may be considered from another angle as well.orders.r. nayak, j.1. the only question which arises for consideration in this writ petition is that whether the legal heirs of a deceased workman whose services were terminated by his employer as a measure of punishment can validly institute an industrial dispute before the labour court under section 2a of the industrial disputes act, 1947, for short 'the act' questioning the validity of the action of the employer in terminating the services of such workman and claim reliefs as provided under the act. this question arises for consideration in the backdrop of the following facts; 2. the first petitioner is the widow and the petitioners 2 to 7 are the children of one late shri ramdas who was working as a watchman in the establishment of the second respondent divisional engineer (electrical operations), andhra pradesh state electricity board, mahabubnagar, ramdas was appointed on 20-9-1966 and his services were terminated on 30-3-1989 by the second respondent under regulation 28(3) of the a.p.s.e.b. service regulations. ramdas died on 28-12-1990. during the life time ramdas did not institute industrial dispute before the labour court. after the death of ramdas the petitioners instituted i.d. no. 535/92 (old i.d. no. 195/91) in the first respondent labour court-iii at hyderabad directly invoking the provisions of section 2-a(2) of the act as amended by the andhra pradesh amendment act 32 of 1987, claiming that the termination of the services of the workmen was illegal, improper, contrary to the regulations and in violation of principles of natural justice as well as in violation of provisions of section 25f of the act. the second respondent in his counter-claim took the contention that the industrial dispute instituted by the petitioners is not maintainable and the action of the management in terminating the services of the workman under regulation 28(3) of the regulations is fully justified and legal. during the pendency of the dispute before the labour court the first petitioner examined herself as w.w. 1 and marked exs. w-1 to w-8 in support of the claim of the petitioners. second respondent did not adduce any oral evidence but during cross-examination of w.w. 1 eleven documents were marked as exs. m. 1 to m. 11. 3. the learned labour court in the first instance proceeded to consider the question whether the petitioners could maintain industrial dispute under section 2a(2) of the act. the learned labour court after referring to the definition of the terms 'industrial dispute' and 'workman' came to the conclusion that the petitioners have no locus standi to file industrial dispute under section 2-a(2) of the act. in that view of the finding the labour court dismissed the dispute by its award dated 28-2-1994. being aggrieved by the said award the petitioners have approached this court by way of this writ petition. 4. on the question which arises for consideration in this writ petition as formulated above there is no verdict decision of the supreme court, but there is a direct decision by a learned single judge of this court (per s. dasardha rama reddy, j.) answering the question positively in the case of bharathamma and others v. the labour court and anr. 1995 (2) ald 472. however sri c. v. mohan reddy, the learned standing counsel appearing for the second respondent-divisional manager, a.p.s.e.b. would submit that in the aforementioned decision of this court, the learned judge did not consider the question whether the legal representatives of the deceased employee in that case were 'workmen' within the meaning of section 2(s) of the act. further, the learned standing counsel would submit that sub-section (2) of section 2a of the act enables only workman to institute an industrial dispute directly in the labour court for adjudication of the dispute and legal heirs of a deceased workman are incompetent to institute such a dispute before the labour court and theses precise questions were not dealt with by the learned judge in bharathamma's case (supra). the learned counsel further would submit that the doctrine of 'actio personalis moritur cum persona' is applicable to the facts of this case and the industrial dispute instituted by the petitioners after the death of the workman ins wholly incompetent and not maintainable. 5. the question put before the court need not detain the court for long inasmuch as though there is no direct decision of the apex court on this point, the decision of the apex court in rameshwar manjhi (deceased) through his son lekhiram manjhi v. management of sangramgarh colliery and others 1994 i clr 9 to the court. 6. at common law by reason of the rule expressed in the maxim 'actio personalis moritur cum persona' most actions of tort die with the person, whether the person dying was the injured person or the wrong doer. the main exception to this common law rule was that an action could be sustained against a deceased person's personal representatives in respect of property which had been appropriated by the deceased and added to his estate. the old common law rule has been almost entirely reversed by section 1(1) of the law reform (miscellaneous provisions) act, 1934 which provides in general terms that on the death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. the only exception is that causes of action for defamation still die with either the wrong doer or the injured person. to deal with cases in which damage is the gist of the action and the wrong doer dies before the damage occurs, the act provides that where damage has been suffered by reason of any act or omission in respect of which a causes of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there is deemed to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered. 7. clerk & lindsell on torts (fifteenth edition) dealing with 'survival of causes of action' state as under, under the sub-head 'what may be recovered'. 'what may be recovered : since it is the deceased's own cause of action which survives for the benefit of his estate the estate should recover such damages as the deceased himself would have been awarded had he survived. damages for pain and suffering and loss of amenity are obviously restricted to compensation for that period when the deceased actually suffered such disabilities. damages for loss of expectation of life again survive for the benefit of the estate but are now assessed at a relatively low conventional sum. the house of lords in pickett v. british rail engineering board (1980) a.c. 136 have now held, overruling oliver v. ashman (1962) 2 q.b. 610 that damages for personal injuries in the case of a living plaintiff do include a sum to compensate the plaintiff for loss of earning during those years, 'the lost years', when the plaintiff would normally have expected to live and work but as a result of his injuries now faces a premature death and consequent loss of overall earnings expected from a normal lifespan. the loss of earnings in these 'lost yeas' were found to be part of the damage suffered by the plaintiff who was to be awarded compensation for this loss subject to the deduction of a sum estimated to represent the plaintiff's own probable expenses in these years, as his early death would preclude any need for this class of expenditure. a claim for loss of earnings during the 'lost years' survives for the benefit of his estate and thus may be recovered in a law reform act action. the plaintiff in pickett v. british rail engineering board in fact died after the trial at first instance and the appeal was accordingly carried on by his widow as administratrix of his estate. but of course the action although in reality for the benefit of the deceased's estate was not a law reform act claim. nevertheless atleast two of their lordships appeared to assume that damages for the 'lost years' were recoverable in an action on behalf of the estate.' according to the learned authors if a cause of action of a deceased survives for the benefit of his estate, such cause of action does not die with his death and it survives for the benefit of his estate and the estate could recover damages as the deceased himself would have recovered had he survived. 8. in this connection it is relevant to note what the apex court has to say about the maxim 'actio personalis moritur cum persona' in its decision in girijanandini v. bijendra narain : [1967]1scr93 . according to the supreme court, the maxim 'actio personalis moritur cum persona' a personal action dies with the person, has a limited application and it operates in a limited class of actions ex delicto such as action of damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. in that case the apex court held that an action for account is not an action for damages ex delicto and does fall within the enumerated classes. the maxim 'actio personalis moritur cum persona' though part of english common law has been criticised even in england. it has been pointed out that the said maxim is unjust and it has often caused grave injustice. that realisation and criticism led to the passing of law reform (miscellaneous provisions) act, 1934 in england providing that on the death of any person all causes of action subsisting against or vested in him shall survive against, or as the case may be for the benefit of his estate. 9. the industrial disputes act has created the adjudicatory forums like labour courts, industrial tribunals and national industrial tribunals to adjudicate upon the disputes arising between the capital and the labour. the terms 'industry', 'industrial dispute' and 'workman' are defined under clauses (j), (k) and (s) of section 2 of the act. section 11a of the act confers discretionary power on the industrial court to order reinstatement or lumpsum compensation in lieu of reinstatement and back wages and continuity of service etc. the kerala high court speaking through chadrasekhara menon, j. in gwalior rayons, mavoor v. labour court and ors. 1978 (ii) llj 118 dealing with the scope and nature of adjudication by labour courts and industrial tribunals under act has observed as under : 'the scope of adjudication by a tribunal under the industrial disputes act is much wider than determination of the legal rights of the parties involved of redressing the grievances of an aggrieved workman in accordance with law. as gajendragadkar, j. points out in chwnpur tannery limited v. guha (1961-ii llj 110 at p. 112), the adjudication by the industrial disputes act is only an alternative form of settlement of industrial disputes on a fair and just basis. the primary duty of the industrial tribunals 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 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 apprehensions of the workman without losing sight of the interest of the industry. as rajamanner, c.j. stated in shree meenakshi mills ltd. v. state of madras (1952-ii llj 326 d.b.) 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 the parties without apparent conflicts such as are likely to interrupt production and entail other damages. in the circumstances proceedings before the labour court or the industrial tribunal under the industrial disputes act cannot be equated to a personal action in torts in a civil court which would come to an end with the death of the aggrieved party to the dispute. in the general set up of an industry, in the nature of relationship between the employer and the employees, a dispute between the employer and even an individual employee generally effects the entire community of workmen in the industry. they acquire an interest in the dispute. it ceases to be an individual dispute and becomes an industrial dispute affecting the interest of the entire body of workmen. any decision of the labour court will affect the interest of the whole body of workmen and the dispute, therefore, cannot die with the death of the individual workman. before section 2a of the act was introduced the courts had said that an individual dispute should be taken up by the workmen as such before it can become an industrial dispute. section 2a makes an individual dispute though not taken up by the collective body of workers an industrial dispute.' 10. a division bench of the gujarat high court in bank of baroda v. its workmen 1979 (ii) llj 57 after referring to the decision of the kerala high court in gwalior rayons, mavoor v. labour court and others (supra) observed as under at pages 62 and 63 : '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 executors or administrators; except causes of action for defamation, assault, as defined in the indian penal code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory'. in this context, it must be pointed out that, so far as the granting of relief of reinstatement is concerned, it would be nugatory on the death of the workmen concerned pending the reference before the tribunal or the labour court, as the case may be. however, the reinstatement involves the concept of back-wages also and very often the tribunal has to pass orders providing for the back-wages from the date of wrongful termination of the services till the date of reinstatement. it is only under the industrial dispute act that in the field of industrial relations, the tribunal concerned can direct reinstatement of the workman. under the ordinary civil law, it is not open to a civil court to direct reinstatement of a workman. the only thing that a civil court can do is to provide for damages for wrongful termination of service or wrongful dismissal. again, the whole concept under the industrial disputes act of the tribunal ascertaining whether the termination of services was proper, legal and just is unknown to the civil courts. so in the case of a deceased workmen where the reference is under section 2a of the industrial disputes act, the heirs and legal representatives can agitate the question, firstly, whether the termination of the deceased workman was just, legal and proper and secondly, if it was wrongful and invalid, then what compensation in terms of money could have been given to the workman from a particular date fixed by the tribunal till the date of reinstatement and if reinstatement cannot be granted because of the death of the workman, till the date of his death. it is therefore in this context of section 306 of the succession act that the right to prosecute these special proceedings before the industrial tribunal survives to the administrators, executors, heirs and legal representatives of the deceased workmen. it is only a cause of action for personal injury or in the case of defamation or assault or battery or malicious prosecution which cannot be said to survive after the death of the person concerned.' 11. the views of the kerala high court and that of gujarat high court were quoted with approval by the supreme court in rameshwar manjhi (deceased) through his son lekhiram manjhi v. management of sangramgarh collieries and others (supra). 12. the supreme court in rameshwar manjhi's case (supra) was called upon to decide a question whether an industrial dispute survives when the workman concerned dies during its pendency and whether the proceedings before the tribunal or labour court be continued by the legal heirs/representatives of the deceased workman while answering that question positively the supreme court noticed divergence of opinions amongst several high courts on that question and the apex court after referring to all the decisions on the point approved the reasoning of the bombay high court in sitabai v. auto engineers and others 1972 (i) llj 290. the bombay high court held that a window has a right to apply for computation of gratuity amount which became payable to her late husband. in support of its conclusion, the bombay high court proceeded on the following reasoning at page 291 : 'it is well established that all civil rights of every kind vested in a deceased person and all causes of action in that connection, except those which are in the category of not capable of surviving after his death, survive to his heirs. causes of action, which are personal and do not survives, consists 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 would 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.' 13. the apex court after referring to divergent opinions expressed by the high courts observed as under paras, 11, 12 and 13 in rameshwar manjhi's (supra). '11. we do not agree with the view-point of delhi, and orissa high courts to the effect that the claim for computation under sub-section (2) of section 33c of the act dies with the death of the workman. it is difficult to understand why a claim of money which became payable to the deceased workman should not be climbable, upon satisfaction of other relevant conditions, by the heirs of the deceased workman by making a claim under sub-section (2) of section 33c of the act. having regard to the well established principle that all causes of action-except those which are known as dying along whit the death of a person-must survive to his heirs, the cause of action created in favour of workman under sub-section (2) of sec.33-c of the act should in normal circumstances survive to the heirs. we approve the reasoning of the bombay high court in sithabai's case 1972 i llj 290. 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 dobbed as unjust maxim, obscure in its original, 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 brijanandini v. bijendra narain : [1967]1scr93 observed as under : 'the maxim 'actio personalis moritur cum persona', a personal action dies with the person has a limited application. it operates in a limited class of action ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. an action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory.' 13. it is thus obvious that the applicability of the maxim 'actio personalis moritur cum persona' depends upon the 'relief claimed' and the facts of each case. by and large the industrial disputes under section 2a of the act relate to the termination of services of the concerned workman. in the event of death of the workman during pendency of the proceedings, the relief of reinstatement, obviously, cannot be granted. but the final determination of the issues involved in the reference may be relevant for regulating the conditions of service of the other workmen in the industry. primary object of the act is to bring industrial peace. the tribunals and labour courts under the act are the instruments for achieving the same objective. it is, therefore, in conformity with the scheme of the act that the proceedings in such cases should continue at the instance of the legal heirs/representatives of the deceased workman. even-otherwise there may be a claims for back-wages or for monetary relief in any other form. the death of the workman during pendency of the proceedings cannot deprive the heirs of the legal representatives of their right to continue the proceedings and claim the benefits as successors to the deceased workman.' 14. as already pointed out supra the question weather the legal heirs/representatives of a deceased-workman can raise an industrial dispute directly under section 2-a(2) of the act did not arise for consideration in any of the decisions of the high courts or in rameshwar manjhi's case (supra). but the supreme court in para 13 in the context of an industrial dispute filed under section 2a of the act has laid down the law that in the event of death of the workman during pendency of the proceedings the legal representatives or heirs can continue the proceedings. if according to the apex court if a pending proceedings can be continued by the legal heirs/representatives of the deceased workman after the death of the workman during the pendency of the proceedings, there is no good reason to hold that such legal representatives/heirs are incompetent to institute the dispute before the industrial court after the death of a workman have locus standi to continue an industrial dispute instituted by such workman in a labour court in law, then they are also competent to institute such workman. the observation of the supreme court in paras 11 and 12 in general and in para 13 in particular read with the views expressed by the calcutta (sic. kerala) high court in gwalior rayon's case (supra) and that of the gujarat high court in bank of baroda's case (supra) which views are affirmed by the apex court in rameshwar manjhi's case clearly go to show that legal heirs/representatives of a deceased workman can institute industrial dispute before the jurisdictional labour court after the death of such workman. 15. this question may be considered from another angle as well. as pointed out supra, the labour court in exercise of its discretionary power under section 11a of the act can grant reliefs of reinstatement or lumpsum compensation in lieu of reinstatement, back wages, continuity of services or any other appropriate relief, pecuniary or otherwise having regard to the facts and circumstances of each case. in the present case if the workman were to alive he would have instituted the industrial dispute in the labour court and there was absolutely no legal impediment for him to do so and if the industrial court were to uphold the claim of the workman it would have granted the relief of reinstatement or lumpsum compensation in lieu of reinstatement, back wages and other reliefs. if that is so what the deceased workman himself would have been awarded by the labour court except the relief of reinstatement had he be survived, should be considered to be a part of his estate. the learned authors clerk & lindsell on torts have pointed out that since it is the deceased's own cause of action which survives for the benefit of his estate, the estate should recover such damages as the deceased himself would have been awarded had he survived. therefore it should be held that with the death of the workman the cause of action to seek reliefs contemplated under the act from the labour court does not die with him in totality and the causes of action to recover lumpsum compensation in lieu of reinstatement and back-wages do survive for the benefit of his estate. recognising this position and in order to resolve the conflict of opinions existed earlier among several high courts, the legislature inserted sub-section (8) in section 10 by amending act 46 of 1982 and after the amendment proceedings before any adjudicatory authority in relation to an industrial dispute shall not lapse merely be reason of the death of any of the parties to the dispute being a workman and the adjudicator is enjoined to complete such proceedings and submit his award to appropriate government. there cannot be any dispute that the petitioners-legal heirs of the deceased workman are entitled to the estate left behind the workman. this is so having regard to the provisions of section 306 of the indian succession act and the observation of the division bench of the gujarat high court in the case of bank of baroda extracted above and approved by the apex court. in that view of the matter i am in respectful agreement with the view taken by may learned brother s. dasaradha rama reddy, j. in bharathamma & others v. the labour court (supra) and it does not require any reconsideration. 16. in the result and for the foregoing reasons i hold that legal heirs/legal representatives of a deceased workman are entitled to institute an industrial dispute before the labour court questioning the validity of termination of services of such workman even after the death of such workman under section 2a of the industrial disputes act. it is not necessary that such legal heirs/representatives should be 'workmen' within the meaning of section 2(s) of the act and in fact they are not and cannot be workmen within the meaning of that term unless in a given case they are also workmen under the same employer. the essence of the matter is that if on the death of a workman any or all causes of action survives/survive for the benefit of estate left behind by him, it is competent for the legal heirs of such workman, as the custodian of the estate of the deceased workman, either to continue the pending proceedings instituted by the deceased workman or to institute the proceedings after the death of the workman before of a workman an industrial dispute instituted by him or an industrial dispute capable of being instituted by him will not die with him and despite his death such a dispute remains to be an 'industrial dispute' within the meaning of section 2(k) of the act as contemplated under sub-sec.(8) of section 10 of the act and the legal heirs to and the administrators of, the estate-of the deceased have locus standi to prosecute such dispute either by continuing the pending proceedings or by instituting fresh proceedings in the industrial courts as representing the deceased's estate and for the benefit of the estate. in the present case the benefit of the estate. in the present case the cause of action which accrued to the workman on 30-3-1989 to institute industrial dispute in the labour court for claiming reliefs of lumpsum compensation in lieu of reinstatement, back-wages did not die with the workman on 28-12-1990 but did survive for the benefit of the estate left behind by him. therefore, i hold that the industrial dispute raised by the petitioners before the labour court is competent and maintainable. 17. for the foregoing reasons i allow this writ petition with costs. advocate's fee is fixed at rs. 1,500/-. the impugned award of the labour court is quashed and the proceedings are remanded to the labour court with a direction dispose of the dispute within a period of three months from the date of receipt of a copy of this order. the registry is directed to send a copy of this order to the labour court forthwith.

Judgment:
ORDER

S.R. Nayak, J.

1. The only question which arises for consideration in this writ petition is that whether the legal heirs of a deceased workman whose services were terminated by his employer as a measure of punishment can validly institute an industrial dispute before the Labour Court under Section 2A of the Industrial Disputes Act, 1947, for short 'the Act' questioning the validity of the action of the employer in terminating the services of such workman and claim reliefs as provided under the Act. This question arises for consideration in the backdrop of the following facts;

2. The first petitioner is the widow and the petitioners 2 to 7 are the children of one late Shri Ramdas who was working as a watchman in the establishment of the second respondent Divisional Engineer (Electrical Operations), Andhra Pradesh State Electricity Board, Mahabubnagar, Ramdas was appointed on 20-9-1966 and his services were terminated on 30-3-1989 by the second respondent under Regulation 28(3) of the A.P.S.E.B. Service Regulations. Ramdas died on 28-12-1990. During the life time Ramdas did not institute industrial dispute before the Labour Court. After the death of Ramdas the petitioners instituted I.D. No. 535/92 (old I.D. No. 195/91) in the first respondent Labour Court-III at Hyderabad directly invoking the provisions of Section 2-A(2) of the Act as amended by the Andhra Pradesh Amendment Act 32 of 1987, claiming that the termination of the services of the workmen was illegal, improper, contrary to the regulations and in violation of principles of natural justice as well as in violation of provisions of Section 25F of the Act. The second respondent in his counter-claim took the contention that the industrial dispute instituted by the petitioners is not maintainable and the action of the Management in terminating the services of the workman under Regulation 28(3) of the Regulations is fully justified and legal. During the pendency of the dispute before the Labour Court the first petitioner examined herself as W.W. 1 and marked Exs. W-1 to W-8 in support of the claim of the petitioners. Second respondent did not adduce any oral evidence but during cross-examination of W.W. 1 eleven documents were marked as Exs. M. 1 to M. 11.

3. The learned Labour Court in the first instance proceeded to consider the question whether the petitioners could maintain industrial dispute under Section 2A(2) of the Act. The learned Labour Court after referring to the definition of the terms 'industrial dispute' and 'workman' came to the conclusion that the petitioners have no locus standi to file industrial dispute under Section 2-A(2) of the Act. In that view of the finding the Labour Court dismissed the dispute by its award dated 28-2-1994. Being aggrieved by the said award the petitioners have approached this Court by way of this writ petition.

4. On the question which arises for consideration in this writ petition as formulated above there is no verdict decision of the Supreme Court, but there is a direct decision by a learned single Judge of this Court (per S. Dasardha Rama Reddy, J.) answering the question positively in the case of Bharathamma and others v. The Labour Court and Anr. 1995 (2) ALD 472. However Sri C. V. Mohan Reddy, the learned Standing Counsel appearing for the second respondent-Divisional Manager, A.P.S.E.B. would submit that in the aforementioned decision of this Court, the learned Judge did not consider the question whether the legal representatives of the deceased employee in that case were 'workmen' within the meaning of Section 2(s) of the Act. Further, the learned Standing Counsel would submit that sub-section (2) of Section 2A of the Act enables only workman to institute an industrial dispute directly in the Labour Court for adjudication of the dispute and legal heirs of a deceased workman are incompetent to institute such a dispute before the Labour Court and theses precise questions were not dealt with by the learned Judge in Bharathamma's case (supra). The learned Counsel further would submit that the doctrine of 'actio personalis moritur cum persona' is applicable to the facts of this case and the industrial dispute instituted by the petitioners after the death of the workman ins wholly incompetent and not maintainable.

5. The question put before the Court need not detain the Court for long inasmuch as though there is no direct decision of the Apex Court on this point, the decision of the Apex Court in Rameshwar Manjhi (Deceased) through his son Lekhiram Manjhi v. Management of Sangramgarh Colliery and others 1994 I CLR 9 to the Court.

6. At Common Law by reason of the rule expressed in the maxim 'actio personalis moritur cum persona' most actions of tort die with the person, whether the person dying was the injured person or the wrong doer. The main exception to this common law rule was that an action could be sustained against a deceased person's personal representatives in respect of property which had been appropriated by the deceased and added to his estate. The old common law rule has been almost entirely reversed by Section 1(1) of the Law Reform (Miscellaneous Provisions) Act, 1934 which provides in general terms that on the death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. The only exception is that causes of action for defamation still die with either the wrong doer or the injured person. To deal with cases in which damage is the gist of the action and the wrong doer dies before the damage occurs, the Act provides that where damage has been suffered by reason of any act or omission in respect of which a causes of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there is deemed to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

7. Clerk & Lindsell on Torts (Fifteenth Edition) dealing with 'Survival of Causes of Action' state as under, under the sub-head 'What may be recovered'.

'What may be recovered : since it is the deceased's own cause of action which survives for the benefit of his estate the estate should recover such damages as the deceased himself would have been awarded had he survived. Damages for pain and suffering and loss of amenity are obviously restricted to compensation for that period when the deceased actually suffered such disabilities. Damages for loss of expectation of life again survive for the benefit of the estate but are now assessed at a relatively low conventional sum. The House of Lords in Pickett v. British Rail Engineering Board (1980) A.C. 136 have now held, overruling Oliver v. Ashman (1962) 2 Q.B. 610 that damages for personal injuries in the case of a living plaintiff do include a sum to compensate the plaintiff for loss of earning during those years, 'the lost years', when the plaintiff would normally have expected to live and work but as a result of his injuries now faces a premature death and consequent loss of overall earnings expected from a normal lifespan. The loss of earnings in these 'lost yeas' were found to be part of the damage suffered by the plaintiff who was to be awarded compensation for this loss subject to the deduction of a sum estimated to represent the plaintiff's own probable expenses in these years, as his early death would preclude any need for this class of expenditure. A claim for loss of earnings during the 'lost years' survives for the benefit of his estate and thus may be recovered in a law Reform Act action. The plaintiff in Pickett v. British Rail Engineering Board in fact died after the trial at first instance and the appeal was accordingly carried on by his widow as administratrix of his estate. But of course the action although in reality for the benefit of the deceased's estate was not a Law Reform Act claim. Nevertheless atleast two of their Lordships appeared to assume that damages for the 'lost years' were recoverable in an action on behalf of the estate.'

According to the learned authors if a cause of action of a deceased survives for the benefit of his estate, such cause of action does not die with his death and it survives for the benefit of his estate and the estate could recover damages as the deceased himself would have recovered had he survived.

8. In this connection it is relevant to note what the Apex Court has to say about the maxim 'actio personalis moritur cum persona' in its decision in Girijanandini v. Bijendra Narain : [1967]1SCR93 . According to the Supreme Court, the maxim 'actio personalis moritur cum persona' a personal action dies with the person, has a limited application and it operates in a limited class of actions ex delicto such as action of damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. In that case the Apex Court held that an action for account is not an action for damages ex delicto and does fall within the enumerated classes. The maxim 'actio personalis moritur cum persona' though part of English Common Law has been criticised even in England. It has been pointed out that the said maxim is unjust and it has often caused grave injustice. That realisation and criticism led to the passing of Law Reform (Miscellaneous Provisions) Act, 1934 in England providing that on the death of any person all causes of action subsisting against or vested in him shall survive against, or as the case may be for the benefit of his estate.

9. The Industrial Disputes Act has created the adjudicatory forums like Labour Courts, Industrial Tribunals and National Industrial Tribunals to adjudicate upon the disputes arising between the Capital and the Labour. The terms 'Industry', 'Industrial dispute' and 'workman' are defined under clauses (j), (k) and (s) of Section 2 of the Act. Section 11A of the Act confers discretionary power on the Industrial Court to order reinstatement or lumpsum compensation in lieu of reinstatement and back wages and continuity of service etc. The Kerala High Court speaking through Chadrasekhara Menon, J. in Gwalior Rayons, Mavoor v. Labour Court and Ors. 1978 (II) LLJ 118 dealing with the scope and nature of adjudication by Labour Courts and Industrial Tribunals under Act has observed as under :

'The scope of adjudication by a Tribunal under the Industrial Disputes Act is much wider than determination of the legal rights of the parties involved of redressing the grievances of an aggrieved workman in accordance with law. As Gajendragadkar, J. points out in Chwnpur Tannery Limited v. Guha (1961-II LLJ 110 at p. 112), the adjudication by the Industrial Disputes Act is only an alternative form of settlement of Industrial Disputes on a fair and just basis. The primary duty of the Industrial Tribunals 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 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 apprehensions of the workman without losing sight of the interest of the industry. As Rajamanner, C.J. stated in Shree Meenakshi Mills Ltd. v. State of Madras (1952-II LLJ 326 D.B.) 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 the parties without apparent conflicts such as are likely to interrupt production and entail other damages. In the circumstances proceedings before the Labour Court or the Industrial Tribunal under the Industrial Disputes Act cannot be equated to a personal action in torts in a Civil Court which would come to an end with the death of the aggrieved party to the dispute. In the general set up of an industry, in the nature of relationship between the employer and the employees, a dispute between the employer and even an individual employee generally effects the entire community of workmen in the industry. They acquire an interest in the dispute. It ceases to be an individual dispute and becomes an industrial dispute affecting the interest of the entire body of workmen. Any decision of the Labour Court will affect the interest of the whole body of workmen and the dispute, therefore, cannot die with the death of the individual workman. Before Section 2A of the Act was introduced the Courts had said that an individual dispute should be taken up by the workmen as such before it can become an industrial dispute. Section 2A makes an individual dispute though not taken up by the collective body of workers an industrial dispute.'

10. A Division Bench of the Gujarat High Court in Bank of Baroda v. Its Workmen 1979 (II) LLJ 57 after referring to the decision of the Kerala High Court in Gwalior Rayons, Mavoor v. Labour Court and others (supra) observed as under at pages 62 and 63 :

'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 executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory'. In this context, it must be pointed out that, so far as the granting of relief of reinstatement is concerned, it would be nugatory on the death of the workmen concerned pending the reference before the Tribunal or the Labour Court, as the case may be. However, the reinstatement involves the concept of back-wages also and very often the Tribunal has to pass orders providing for the back-wages from the date of wrongful termination of the services till the date of reinstatement. It is only under the Industrial Dispute Act that in the field of industrial relations, the Tribunal concerned can direct reinstatement of the workman. Under the Ordinary civil law, it is not open to a Civil Court to direct reinstatement of a workman. The only thing that a Civil Court can do is to provide for damages for wrongful termination of service or wrongful dismissal. Again, the whole concept under the Industrial Disputes Act of the Tribunal ascertaining whether the termination of services was proper, legal and just is unknown to the Civil Courts. So in the case of a deceased workmen where the reference is under Section 2A of the Industrial Disputes Act, the heirs and legal representatives can agitate the question, firstly, whether the termination of the deceased workman was just, legal and proper and secondly, if it was wrongful and invalid, then what compensation in terms of money could have been given to the workman from a particular date fixed by the Tribunal till the date of reinstatement and if reinstatement cannot be granted because of the death of the workman, till the date of his death. It is therefore in this context of Section 306 of the Succession Act that the right to prosecute these special proceedings before the Industrial Tribunal survives to the administrators, executors, heirs and legal representatives of the deceased workmen. It is only a cause of action for personal injury or in the case of defamation or assault or battery or malicious prosecution which cannot be said to survive after the death of the person concerned.'

11. The views of the Kerala High Court and that of Gujarat High Court were quoted with approval by the Supreme Court in Rameshwar Manjhi (deceased) through his son Lekhiram Manjhi v. Management of Sangramgarh Collieries and Others (supra).

12. The Supreme Court in Rameshwar Manjhi's case (supra) was called upon to decide a question whether an industrial dispute survives when the workman concerned dies during its pendency and whether the proceedings before the Tribunal or Labour Court be continued by the legal heirs/representatives of the deceased workman While answering that question positively the Supreme Court noticed divergence of opinions amongst several High Courts on that question and the Apex Court after referring to all the decisions on the point approved the reasoning of the Bombay High Court in Sitabai v. Auto Engineers and others 1972 (I) LLJ 290. The Bombay High court held that a window has a right to apply for computation of gratuity amount which became payable to her late husband. In support of its conclusion, the Bombay High Court proceeded on the following reasoning at page 291 :

'It is well established that all civil rights of every kind vested in a deceased person and all causes of action in that connection, except those which are in the category of not capable of surviving after his death, survive to his heirs. Causes of action, which are personal and do not survives, consists 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 would 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.'

13. The Apex Court after referring to divergent opinions expressed by the High Courts observed as under paras, 11, 12 and 13 in Rameshwar Manjhi's (supra).

'11. We do not agree with the view-point of Delhi, and Orissa High Courts to the effect that the claim for computation under sub-section (2) of Section 33C of the Act dies with the death of the workman. It is difficult to understand why a claim of money which became payable to the deceased workman should not be climbable, upon satisfaction of other relevant conditions, by the heirs of the deceased workman by making a claim under sub-section (2) of Section 33C of the Act. Having regard to the well established principle that all causes of action-except those which are known as dying along whit the death of a person-must survive to his heirs, the cause of action created in favour of workman under sub-section (2) of Sec.33-C of the Act should in normal circumstances survive to the heirs. We approve the reasoning of the Bombay High Court in Sithabai's case 1972 I LLJ 290.

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 dobbed as unjust maxim, obscure in its original, 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 Brijanandini v. Bijendra Narain : [1967]1SCR93 observed as under :

'The maxim 'actio personalis moritur cum persona', a personal action dies with the person has a limited application. It operates in a limited class of action ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory.' 13. It is thus obvious that the applicability of the maxim 'actio personalis moritur cum persona' depends upon the 'relief claimed' and the facts of each case. By and large the industrial disputes under Section 2A of the Act relate to the termination of services of the concerned workman. In the event of death of the workman during pendency of the proceedings, the relief of reinstatement, obviously, cannot be granted. But the final determination of the issues involved in the reference may be relevant for regulating the conditions of service of the other workmen in the industry. Primary object of the Act is to bring industrial peace. The Tribunals and Labour Courts under the Act are the instruments for achieving the same objective. It is, therefore, in conformity with the scheme of the Act that the proceedings in such cases should continue at the instance of the legal heirs/representatives of the deceased workman. Even-otherwise there may be a claims for back-wages or for monetary relief in any other form. The death of the workman during pendency of the proceedings cannot deprive the heirs of the legal representatives of their right to continue the proceedings and claim the benefits as successors to the deceased workman.'

14. As already pointed out supra the question weather the legal heirs/representatives of a deceased-workman can raise an industrial dispute directly under Section 2-A(2) of the Act did not arise for consideration in any of the decisions of the High Courts or in Rameshwar Manjhi's case (supra). But the Supreme Court in para 13 in the context of an industrial dispute filed under Section 2A of the Act has laid down the law that in the event of death of the workman during pendency of the proceedings the legal representatives or heirs can continue the proceedings. If according to the Apex Court if a pending proceedings can be continued by the legal heirs/representatives of the deceased workman after the death of the workman during the pendency of the proceedings, there is no good reason to hold that such legal representatives/heirs are incompetent to institute the dispute before the Industrial Court after the death of a workman have locus standi to continue an industrial dispute instituted by such workman in a Labour Court in law, then they are also competent to institute such workman. The observation of the Supreme Court in paras 11 and 12 in general and in para 13 in particular read with the views expressed by the Calcutta (sic. Kerala) High Court in Gwalior Rayon's case (supra) and that of the Gujarat High Court in Bank of Baroda's case (supra) which views are affirmed by the Apex Court in Rameshwar Manjhi's case clearly go to show that legal heirs/representatives of a deceased workman can institute industrial dispute before the jurisdictional Labour Court after the death of such workman.

15. This question may be considered from another angle as well. As pointed out supra, the Labour Court in exercise of its discretionary power under Section 11A of the Act can grant reliefs of reinstatement or lumpsum compensation in lieu of reinstatement, back wages, continuity of services or any other appropriate relief, pecuniary or otherwise having regard to the facts and circumstances of each case. In the present case if the workman were to alive he would have instituted the industrial dispute in the Labour Court and there was absolutely no legal impediment for him to do so and if the Industrial Court were to uphold the claim of the workman it would have granted the relief of reinstatement or lumpsum compensation in lieu of reinstatement, back wages and other reliefs. If that is so what the deceased workman himself would have been awarded by the Labour Court except the relief of reinstatement had he be survived, should be considered to be a part of his estate. The learned Authors Clerk & Lindsell on Torts have pointed out that since it is the deceased's own cause of action which survives for the benefit of his estate, the estate should recover such damages as the deceased himself would have been awarded had he survived. Therefore it should be held that with the death of the workman the cause of action to seek reliefs contemplated under the Act from the Labour Court does not die with him in totality and the causes of action to recover lumpsum compensation in lieu of reinstatement and back-wages do survive for the benefit of his estate. Recognising this position and in order to resolve the conflict of opinions existed earlier among several High Courts, the Legislature inserted sub-section (8) in Section 10 by Amending Act 46 of 1982 and after the amendment proceedings before any adjudicatory authority in relation to an industrial dispute shall not lapse merely be reason of the death of any of the parties to the dispute being a workman and the adjudicator is enjoined to complete such proceedings and submit his award to appropriate Government. There cannot be any dispute that the petitioners-legal heirs of the deceased workman are entitled to the estate left behind the workman. This is so having regard to the provisions of Section 306 of the Indian Succession Act and the observation of the Division Bench of the Gujarat High Court in the case of Bank of Baroda extracted above and approved by the Apex Court. In that view of the matter I am in respectful agreement with the view taken by may learned brother S. Dasaradha Rama Reddy, J. in Bharathamma & Others v. The Labour Court (supra) and it does not require any reconsideration.

16. In the result and for the foregoing reasons I hold that legal heirs/legal representatives of a deceased workman are entitled to institute an industrial dispute before the Labour Court questioning the validity of termination of services of such workman even after the death of such workman under Section 2A of the Industrial Disputes Act. It is not necessary that such legal heirs/representatives should be 'workmen' within the meaning of Section 2(s) of the Act and in fact they are not and cannot be workmen within the meaning of that term unless in a given case they are also workmen under the same employer. The essence of the matter is that if on the death of a workman any or all causes of action survives/survive for the benefit of estate left behind by him, it is competent for the legal heirs of such workman, as the custodian of the estate of the deceased workman, either to continue the pending proceedings instituted by the deceased workman or to institute the proceedings after the death of the workman before of a workman an industrial dispute instituted by him or an industrial dispute capable of being instituted by him will not die with him and despite his death such a dispute remains to be an 'industrial dispute' within the meaning of Section 2(k) of the Act as contemplated under sub-sec.(8) of Section 10 of the Act and the legal heirs to and the administrators of, the estate-of the deceased have locus standi to prosecute such dispute either by continuing the pending proceedings or by instituting fresh proceedings in the Industrial Courts as representing the deceased's estate and for the benefit of the estate. In the present case the benefit of the estate. In the present case the cause of action which accrued to the workman on 30-3-1989 to institute Industrial Dispute in the Labour Court for claiming reliefs of lumpsum compensation in lieu of reinstatement, back-wages did not die with the workman on 28-12-1990 but did survive for the benefit of the estate left behind by him. Therefore, I hold that the industrial dispute raised by the petitioners before the Labour Court is competent and maintainable.

17. For the foregoing reasons I allow this writ petition with costs. Advocate's fee is fixed at Rs. 1,500/-. The impugned award of the Labour court is quashed and the proceedings are remanded to the Labour Court with a direction dispose of the dispute within a period of three months from the date of receipt of a copy of this order. The Registry is directed to send a copy of this order to the Labour Court forthwith.