Western India Match Co. Ltd. Vs.
Western India Match Co. Workers Union & Ors  INSC 1 (9 January 1970)
09/01/1970 SHELAT, J.M.
REDDY, P. JAGANMOHAN
CITATION: 1970 AIR 1205 1970 SCR (3) 370 1970
SCC (1) 225
CITATOR INFO :
RF 1975 SC2057 (12) R 1979 SC 170 (7) F 1985
SC 915 (3)
Industrial Dispute-Union espousing cause of
dismissed workman-If such workman should be member of the Union-U.P.
Industrial Disputes Act (28 of 1947), s. 4(k)
and Industrial Disputes Act (14 of 1947), s. 10-'At any time' scope ofRefusal
by Government to refer dispute for adjudication-If and when Government can
The appellant terminated the service of a
workman in 1957.
At that time he was not a member of the respondent-union.
The respondent however, espoused the cause of
the workman and took up the matter before the Conciliation Officer. Two of the
union's office-bearers appeared before the Conciliation Officer but the
Conciliation Officer did not recognise them as authorised agents of the union,
because, there were some disputes regarding their election. He therefore
recorded that the conciliation proceedings could not be proceeded with on the
ground that no authorised agent of the union appeared before him at the
proceedings. The State Government assumed, that though the union had espoused
the workman's cause, it had not cared to appear at the conciliation proceedings
at all, and refused to refer the industrial dispute for adjudication.
In 1962, the workman became a member of the
respondent-union and the union again took up the matter with the Government.
After some correspondence, in which it was
pointed out that in fact two officers of the union did appear at the
conciliation proceedings, the State Government, in 1963, referred the dispute
On the question of the validity of reference,
HELD : (1) Under s. 4(k) of the U.P. Industrial
Disputes Act. 1947, if the State Government is of opinion that an industrial
dispute exists or is apprehended, it may, at any time, refer the dispute for
adjudication. The expression 'of any time', does not confer an unfettered or
arbitrary discretion on the Government. At whatever time the Government decides
to refer a dispute for adjudication, there must, at that time, exist an
industrial dispute or such a dispute must be apprehended. [373 F;377 F-G]
(2)Though a dispute may initially be an individual dispute, the other workmen
may espouse it on the ground that they have a community of interest and that
they are directly and substantially interested in the employment, nonemployment
or conditions of employment of the concerned workman. Therefore, when the
existence of the industrial dispute is challenged, the test is whether the
dispute referred to adjudication is one in which the workmen or a substantial
section of them have a direct and substantial interest. The espousal by the
other workmen may be at the time when the cause of the dispute occurs or later,
because, the workmen may not, at the time when the dispute occurs, be
sufficiently organised to espouse his cause or there may not have been a union
at that time. Since no reference is contemplated by s. 4(k) when the dispute is
not an 371 industrial dispute, or, even if it is so, it no longer exists or is
not apprehended, the existence of the community of interest, evidenced by the
espousal converting an individual dispute into an industrial dispute, must be
at the date when the reference is made and not necessarily at the date when the
cause occurs. Further, the community of interest does not depend on whether the
concerned workman was a member or not of the union at the date when the cause
occurred. The question of the work-man's membership has tobe kept apart from
the right of the other Work-men to espouse his cause and the power of the
Government under s. 4(k). In the present case, the reference was competent
because the fact that the workman was not a member of the union on the date
when the cause of the dispute arose did not preclude or negative the existence
of. the community of interest, nor did it disable the other workmen, through
their union, from making that dispute their own. [375 B-E, G-H; 376 A-B, D;
382 A-B, D-E) Workmen v. Management of
Dimakuchi Tea Estate,  S.C.R.
1156, Bombay Union of Journalists v. The
 3 S.C.R. 893 Workmen of Indian Express
(P) Ltd. v. The Management,  1 S.C. Cases 228, and Workmen v.
Dharampal Premchand.  3 S.C.R. 394
Muller & Phipps (India) (P) Ltd. v. Their
Employees Union  2 L.L.J. 222 and Workmen v. Jamadoba Colliery of Tata,
Tata Iron & Steel Co. Ltd.  2 L.L.J. 663, referred to.
Padarthy Ratnam & Co. v. industrial
Tribunal,  2 L.L.J. 290, Shamsuddin v. State of Kerala,  1 L.L.J.
77 and Khadi Gramodyog Bhawan Workers' Union
v. E. Krishnamurthy, A.I.R. 1966 Punjab 173, overruled.
(3)The Government's function is to refer a
dispute for adjudication so that industrial relations may not continue to
remain disturbed, and -not todecide the merits of the dispute. Therefore, it
cannot be held that once the Government has refused to refer a dispute to
adjudication, it cannot change its mind on a reconsideration of the matter,
either because new facts have come to light or because it had misunderstood the
existing facts or for any other relevant consideration, and decide to make the
reference. Where, however, it reconsiders its earlier decision and makes a
reference it can do so only if the dispute is an industrial one and either
exists at that stage or is apprehended, and the reference must be with regard
to only that industrial dispute. Further, though it does not affect the jurisdiction
of the Government to make a reference, before doing so, the Government should
take into account the lapse of time and any inconvenience to the employer, and
should not allow itself to be stampeded into making References in cases of old
or stale disputes or allow the revival of such disputes on the pressure of
outside agencies. [378 A-C; 381 B-E] In the present case, the Government's
refusal to make a reference at the earlier stage on the ground that the union
had not cared to appear at the conciliation proceedings was based on a
misapprehension. Therefore, if the Government subsequently found that its
earlier decision was based on such a misapprehension, and on facts brought to
its notice it reconsidered the matter and decided to make the reference since
the dispute was 'still subsisting, it could not be said that the exercise of
the discretion was improper, merely because, four years had elapsed since its
earlier decision not to make the reference. [381 F-H; 382 B-D] 372 State of
Madras v. C. P. Sarathy,  S.C.R. 334, 346 and Sindhu Resettlement
Corporation Ltd. v. Industrial Tribunal,  1 L.L.J. 834, 839, followed.
Gurumurthi v. Ramulu,  1 L.L.J. 20,
Vasudeva Rao v. State of Mysore  2 L.L.J. 717, Rawalpindi Victory
Transport Co. (P) Ltd. v. State of Punjab,  1 L.L.J.
644, Champion Cycle Industries v. State of
U.P.  1 L.L.J. 724, Goodyear (India) Ltd., Jaipur v. Industrial Tribunal,
 2 L.L.J. 682 and Rewa Coal Fields Ltd. v. Industrial Tribunal, A.I.R.
1969 M.P. 174, approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1914 of 1968.
Appeal by special leave from the judgment and
order dated March 12, 1968 of the Allahabad High Court in Special Appeal No.
301 of 1966.
C.K. Daphtary, R. N. Banerjee, P. N. Tiwari
and 0. C. Mathur, for the appellant.
S.C. Agarwala, R. K. Garg and S. Chakravarty,
for respondents Nos. 1 and 3.
The Judgment of the Court was delivered by
Shelat, J. On May 9, 1956 the appellant-company appointed respondent 3 as a
foreman on probation for a period of six months. On expiry of that period the
probationary period was extended from time to time and ultimately respondent 3
was transferred to the labour office of the company. On May 29, 1957, while
respondent 3 was still serving his probationary period, the company terminated
The matter was thereupon taken up by
respondent 1 before the Regional Conciliation Officer, Bareilly who registered
the case as Case No. 83B/57. For the reasons hereinafter stated, no
conciliation could be arrived at and the State Government declined to make a
reference for adjudication under the U.P. Industrial Disputes Act, 1947
(hereinafter called the Act). On the said refusal, respondent 3 filed a writ
petition in the High Court for a mandamus. The High Court dismissed the
petition on the ground that the decision of the State Government to refer or
not to refer a dispute for adjudication was a matter of its discretion.
By-about the end of 1962 the respondent-union made further representation to
the State Government and by its order dated August 28, 1963 the Government made
a reference of the dispute regarding the said termination of the service of
respondent 3 to the Labour Court for adjudication. By its order dated March 22,
1965 the Labour Court rejected the reference on the ground that there was no
industrial dispute, and therefore, the reference was not maintainable.
Respondents I to 3 thereupon 'filed a writ
petition in the High Court which was allowed by a learned Single Judge. An
appeal against the said order filed by 373 the appellant -company was
dismissed. This appeal, by special leave, is directed against the order of the
High Court dismissing the appellant-company's writ petition.
Counsel for the appellant-company, in support
of the appeal, raised the following points : (1) Was it possible for the
respondent-union to validly espouse the cause of respondent 3 when he was not a
member at the date when his service was terminated Even if it was, was there in
fact an espousal so as to convert his individual dispute into an industrial
dispute ? (2) Do the words "at any time" in s. 4(k) of the Act have
any limitations, or can the Government refer a dispute, for adjudication after
the lapse of about six years, as in this case, after the accrual of the cause
of the dispute ? (3) In what circumstances can the Government refer such a
dispute for adjudication after it-has once refused to do so ? The definition of
'industrial dispute' in s. 2(l).of the Act is in the same language as that in
s. 2(k) of the Industrial Disputes Act, 1947. The expression 'industrial
dispute', therefore, must bear the same meaning as it is assigned to that
expression in the Central Act. It is now well-settled by a long series-of
decisions that notwithstanding the wide language of the definition in s. 2(k)
of the Central Act, the dispute contemplated there is not an individual dispute
but one involving a substantial number of work-men.
However, a dispute, though originally an
individual dispute, may become. an industrial dispute if it were to be espoused
and made a common cause by workmen as a body or by a considerable section of
them. Section 4(k) of the Act, therefore, must be held to empower the
Government to make a reference of such a dispute only for adjudication. It
provides that where the State Government is of opinion that any industrial
dispute exists or is apprehended, it may, at any time, by order in writing,
refer the dispute for adjudication to a labour court or to a tribunal depending
upon whether the matter. of the industrial dispute falls under one or the other
Schedule to the Act.
The first question that falls for
determination is whether where a dispute is originally an individual dispute
but becomes an industrial one as a result of its being espoused by a union or,a
substantial number of workmen, the concerned workman should have been a member
of such union at the time when the cause of such dispute arises. It appears
that at one time there was a conflict of judicial opinion on this question.
Some of the High Courtís took the view that in order that an individual dispute
may be converted into an industrial dispute on, as aforesaid, its being
espoused by a substantial number of workmen, the concerned workman must be a
member of the union at the time of the accrual of the cause of the dispute.
Thus, in Padarthy, Ratnam & Co. v. Industrial Sup. CI(NP)70-9 374
Tribunal(1) the High Court of Andhra Pradesh held that a dispute simpliciter
between an employer and a workman might develop into an industrial dispute if
the cause is espoused by a union of which he is a member, and that the
membership of the union which would give it the jurisdiction to espouse his
cause must be anterior to the date of the dismissal and not subsequent to it. A
similar view was also taken by the High Courts of -Kerala and Punjab. (see
Shamsuddin v. State of Kerala(') and Khadi Grainodyog Bhawan Workers' Union v.
E. Krishnamurthy, Industrial Tribunal('). In
a later decision, however, the High Court of Punjab appears to have taken a
contrary view. In Muller & Phipps (India) (P) Ltd.
v. Their Employees' Union(') the dispute
related to the retrenchment of a workman and the failure of the employer to
re-employ him in spite of its having re-employed two other employees out of
their turn as against the turn of the concerned workman. The High Court
rejected the employer's contention that the espousal of the union was not valid
as it was made after the retrenched workman had ceased on his being retrenched
to be a member of the union on the ground that if that contention were to be
upheld it would mean that no union can ever espouse the cause of a retrenched
In Workmen v. Jamadoba Colliery of Tata Iron
and Steel Co. Ltd.('), the union which espoused the causE of the workman came
into existence after his dismissal. The workman naturally became its member
after his dismissal. The High Court disagreed with the Tribunal, which had
rejected the reference, 'and held that even if, on the date of the dismissal of
a workman, the dispute was an individual dispute,, it may under some
circumstances become an industrial dispute on the date of the reference and
that the validity of the reference has to be judged on the facts, as they stand
on the date of the reference and not at the date of the dismissal. Therefore,
even if there was no union at the date of the workman's dismissal to espouse
his cause, if such a union comes into existence before the reference and the
dismissed workman becomes its member and the union thereupon espouses his cause
that would be sufficient. It also held that there was no principle in support
of the view that the union must be in existence at the time of the dismissal.
After the decision by this Court in Workmen
v. Management of Dimakuchi Tea Estate(") there can be no doubt that though
the words "any person" in the definition of an industrial dispute in
s. 2 (k) of the Central Act are very wide and would on a mere literal
interpretation include a dispute relating to any person, considering the scheme
and the objects of the Act all disputes are not industrial disputes and that a
dispute becomes an industrial dis(1) [19581 2 L.L.J. 290.
(2)  1 L.L.J. 77.
(3) A.I.R. 1966 Pun. 173.
(4)  2 L.L.J. 222.
(5)  2 L.L.J. 663.
(6) [19581 S.C.R. 1156.
375 pute where the person in respect of whom
it is raised is one in whose employment, non-employment, terms of employment
conditions of labour the parties to the
dispute have a direct or substantial interest. The question, therefore, which
would arise in cases where the existence of the industrial dispute is
challenged, is whether there was between the parties to the reference, i.e, the
employer and his workmen, an industrial dispute. The parties to the industrial
dispute are obviously the parties to the reference, and therefore the dispute
must be an industrial dispute between such parties. It follows, therefore, that
though a dispute may initially be an individual dispute, the workmen may make
that dispute as their own, that is to say, espouse it on the ground that they
have a community of interest and are directly and substantially interested in
the employment, non-employment, or conditions of work of the concerned workman.
This premise pre-supposes that though at the date when the cause of the dispute
arises that dispute is an individual dispute, such a dispute can become an
industrial dispute if it is spoused by the workmen or a substantial section of them
after the cause of the dispute, e.g., dismissal, has taken place. It may be
that at the date of such dismissal there is no union or that the workmen are
not sufficiently organised to take up the cause of the concerned workman and no
espousal for that or any other reason takes place at the time when such cause
occurs. But that cannot mean that because there was no such union in existence
on that date, the dispute cannot become an industrial one if it is taken up
later on by the-union or by a substantial section of the workmen. If it is
insisted that the concerned workman must be a member of the union at the date
of his dismissal, the result would be that if at that period of time there is
no union in that particular industry and it comes into existence later on then
the dismissal of such a workman can never be an industrial dispute although the
other workmen have a community of interest in the matter of his dismissal, and
the cause for which or the manner in which his dismissal is brought about
directly and substantially affects the other workmen. The only condition for an
individual dispute turning into an industrial dispute, as, laid down in the
case of Dimakuchi Tea Estate(), is the necessity of a community of interest and
not whether the concerned workman was or was not a member of the union at the
time of his dismissal. The parties to the reference being the employer and his
employees, the test must necessarily be whether the dispute referred to
adjudication is one in which the workmen or a substantial section of them have
a direct and substantial interest even though such a dispute relates to a
single workman. It must follow that the existence of such an interest,
evidenced by the espousal by them of the cause, must be at the date when the
reference is made and not necessarily at the date when the cause occurs,
otherwise, as aforesaid, in some (1)  S.C.R. 1156.
376 cases a dispute which was originally an
individual one cannot become an industrial dispute. Further, the community of
interest -does not depend on whether the concerned workman was a member or not
at the date when the cause occurred, for, without his being a member the
dispute may be such that other workmen by having a common interest therein
would be justified in taking up the dispute as their own and espousing it.
Any controversy on the question as to whether
it is necessary for a concerned workman to be a member of the union which has
espoused his cause at the time when that cause arose has been finally set. at
rest by the decision in Bombay Union of Journalists v. The "Hindu",
Bombay(') where this Court laid down that the test whether an individual
dispute got converted into an industrial dispute depended on whether at the
date of the reference the dispute was taken up and supported by the union of
workmen of the ,employer against whom the dispute was raised by an individual
workman or by an appreciable number of such workmen. (see also Workmen v. M/s
Dharampal Premchand (2 ) and Workmen of Indian Express (P) Ltd. v. The
Management (I). The argument, therefore, that the reference in this case was
not competent on the .ground that the concerned workman was not a member of the
union at the date when the cause giving rise to the dispute arose, -and that
therefore, the union could not have espoused the dispute to convert it into an
industrial dispute is not correct and cannot be upheld,.
The next question is whether the expression
"at any time" in s. 4(k) means what its literal meaning connotes, or
whether in the context in which it is used it has any limitations.
Counsel for the company argued that the
concerned workman was admittedly not a member of the respondent-union in the
beginning of 1959 when the State Government refused to make the reference, that
he became a member of the respondent union in July 1962, that it was thereafter
that the respondent-union revived the said dispute which had ceased to be alive
after the Government's said refusal and that it was at the instance of the
Union that the Government later on ,changed its mind and in August 1963 agreed
to make the reference. The contention was that the Government having once
declined to refer the dispute, could not change its mind after a lapse of
nearly six years after the dispute arose and that though the expression
"at any time" does not apparently signify any limit, it must be
construed to mean that once the Government had refused to make the reference
after considering the matter and the -employer thereupon had been led to
believe that the dispute was not to be agitated in a tribunal and had
consequently made his own arrangement, the Government cannot, on a further
agitation by the (1)  3 S.C.R. 893.
(2)  3 S.C.R. 1994.
(3)  1 S.C. Cases 228.
377 union, take a somersault and decide to
refer it for adjudication. It was argued that if it were so, it would mean that
a workman, who after termination of his service, has already obtained another
employment, can still go to the union, become its member and ask the union to
agitate the dispute by espousing it. Such an action, if permitted, would cause
dislocation in the industry as when the employer has in the meantime made his
own arrangement by appointing a substitute in place of the dismissed workman on
finding that the latter had already found other employment. The legislature,
the argument proceeded, could not, therefore, have used the words "at any
time" to mean after any, length of time.
From the words used in s. 4(k) of the Act
there can be no doubt that the legislature has left the question of making or
refusing to make a reference for adjudication to, the discretion of the
Government. But the discretion is neither unfettered nor arbitrary for the
section clearly provides that there must exist an industrial dispute as defined
by the Act or such a dispute must be apprehended when the Government decides to
refer it for adjudication. No reference thus can be made unless at the time
when the Government decides to make it an industrial dispute between the
employer and his employees either exists or is apprehended.
Therefore, the expression "at any
time". though seemingly without any limits, is governed by the context in
which it appears. Ordinarily, the question of making a reference would arise
after conciliation proceedings have been gone through and the conciliation
officer has made a failure report. But the Government need not wait until such
a procedure has been completed. In an urgent case, it can "at any
time", i.e., even when such proceedings have not begun.
or are still pending, decide to refer the
dispute for adjudication. The expression "at any time" thus takes in
such cases as where the Government decides to make a reference without waiting
for conciliation proceedings to begin or to be completed. As already stated,
the expression "at any time" in the context in which it is used
postulates that a reference can only be made if an industrial dispute exists or
is apprehended. No reference is contemplated by the section when the dispute is
hot an industrial dispute, or even if it is so, it no longer exists or is not
apprehended, for instance, where it is already adjudicated or in respect of
which there is an agreement or a settlement between the parties or where the
industry in question is no longer in existence.
In the State of Madras v. C. P. Sarathy(1)
this Court held on construction of s. 1 0 ( 1 ) of the Central Act that the,
function of the appropriate Government there under is an administrative
function. It was so held presumably because the Government cannot go into the
merits of the dispute, its function being only to refer such a dispute for
adjudication so that the industrial relations bet(1) [19531 S.C.R. 334, at 346.
378 ween the employer and his employees may
not continue to remain disturbed and the dispute may be resolved through a
judicial process as speedily as possible. In the light of the nature of the
function of the Government and the object for which the power is conferred on
it, it would be difficult to hold that once the Government has refused to
refer, it cannot change its mind on a reconsideration of the matter either
because new facts have come to light or because it had misunderstood the
existing facts or for any other relevant consideration and decide to make the
reference. But where it reconsiders its earlier decision it can make the reference,
only if the dispute is an industrial one and either exists at that stage or is
apprehended and the reference it makes must be with regard to that and no other
industrial dispute. (Cf. Sindhu Resettlement Corporation, Ltd. v. Industrial
Tribunal('). Such a view has been taken by the High Courts of Andhra Pradesh,
Madras, Allahabad, Rajasthan, Punjab and Madhya Pradesh. (see Gurumurthi (G.)
V. Ramulu (K.)(') Vasudeva Rao v. State of Mysore(') Rawalpindi Victory
Transport Co. (P) Ltd. v. State of Punjab('), Champion Cycle Industries v.
State of U.P.
(5), Goodyear (India) Ltd., Jaipur v.
Industrial Tribunal (6) and Rewa Coal Fields Ltd. v. Industrial Tribunal,
Jabalpur ( 7 ) . The reason given in these decisions is that the function of
the Government either under s. 10(l) of the Central Act or a similar provision
in a State Act being administrative, principles such as res judicata applicable
to judicial Acts do not apply and such a principle cannot be imported for
consideration when the Government first refuses to refer and later changes its
mind. In fact, when the Government refuses to make a reference it does not
exercise its power; on the other hand it refuses to exercise its power and it
is only when it decides to refer that it exercises its power. Consequently, the
power to refer cannot be said to have been exhausted when it has declined to
make a reference at an earlier stage. There is thus a considerable body of
judicial opinion according to which so long as an industrial dispute exists or
is apprehended and the Government is of the opinion that is so, the fact that
it had earlier refused to exercise its power does not preclude it from
exercising it at a later stage. In this view, the mere fact that there has been
a lapse of time or that a party to the dispute was, by the earlier refusal, led
to believe that there would be no reference and acts upon such belief, does not
affect the jurisdiction of the Government to make the reference.
It appears that there was a controversy
before the High Court whether there was at all any espousal of the dispute by
the respon(1) [19681 1 L.L.J. 834, 839.
(2)  1 L.L.J. 20.
(3)  2 L.L.J. 717.
(4) [19641 1 L.L.J. 644.
(5)  1 L.L.J. 724.
(6)  2 L.L.J. 682.
(7) A.I.R. [19691 M.P. 174.
379 dent-union, and if there was, at what
stage. The High Court, therefore, got produced before it the record before the
conciliation officer. Strictly speaking, in a proceeding for certiorari under
Art. 226, the record which would be produced before the High Court would be
that of the Tribunal whose order is under challenge. But if the High Court got
produced in the interests of justice the file of the conciliation officer which
alone could show whether there was espousal by the union or not, no one could
reasonably object to the High Court calling for that record for the purpose of
ascertaining whether the stand of the union that it had taken up the cause of
respondent 3 was correct or not.
As the High Court has said, that file showed
that on July 2, 1957 one Har Sahai Singh, the then President of the union, had
complained to the Regional Conciliation Officer against the termination of
service of respondent 3 and following that complaint, respondent 3 had filed a
written statement dated September 4, 1957 which was counter-signed by the said
Har Sahai Singh in his capacity as the President and presumably, therefore, on
behalf of the union. The record also indicated that on that very day, i.e.,
September 4, 1957, the Conciliation Officer recorded an order that the conciliation
proceedings could not be proceeded with as "no authorised agent" of
the union appeared before him.
Presumably, the Conciliation Officer in
course of time must have made his failure report. From these facts the
following conclusions must emerge : (1) that the Conciliation Officer had taken
cognisance of the dispute, (2) that he took that dispute as having been
espoused by the union through its president, (3) that thereupon he fixed
September 4, 1957 as the date for holding the conciliation proceedings and
informed the parties to attend before him, and (4) that as "no authorised
agent" on behalf of the union appeared before him, he recorded that the
conciliation proceedings could not go on. These facts clearly go to show that
the then president of the union had not made the said complaint in his personal
capacity but as the president representing the union. This is borne out to a
certain extent by a subsequent resolution of the executive body of the union
dated February 28, 1.963 which recites that the executive committee of the
union will continue to take up the cause of respondent 3 as it had been so far
doing. But Mr. Daphtary emphasised that even this resolution did not mean that
the union had taken up the cause of respondent 3 as its own since the resolution
uses the word 'pairavi' and not espousing or sponsoring the workman's cause.
Pairavi, according to him, means acting as the agent of a party to a proceeding
and not being a party to the proceeding which would be the position had the
union taken up the Complaint as its own. In our view we need not look at the
said .resolution in so narrow a manner, for, the facts taken as a whole
indicate that the union had in fact taken up the cause of the workman. The
President evidently could not have countersigned the 380 written statement of
the concerned workman and the Conciliation Officer could not have given a
notice to the union to appear before him and could not have recorded that he
did not proceed with the conciliation proceedings as no authorised agent of the
union appeared before him unless every one understood that the union had taken
up the cause of the workman. The notice dated August 2, 1957 issued by the
Conciliation Officer after the union President had lodged his said complaint is
on record and shows that it was issued to the management and the union calling
upon both of them to appoint their respective representatives on the
conciliation board as required by the Government Order dated July 14, 1954. It
also shows that the Officer treated the dispute as having been espoused by the
union as the notice recites the dispute as an industrial dispute. .
The subsequent facts would seem to indicate
that the Government declined to make the reference presumably because of the
report of the Conciliation Officer that in spite of the said notice no
authorised agent of the union had appeared before him and therefore no
conciliation had been possible.
As already stated, a writ petition to compel
the Government to make the reference proved unsuccessful. It may be that the
respondent-union may have decided to press for the reference after the
concerned workman became its member.
That fact, however, is irrelevant for the
purposes of the jurisdiction of the Government under s. 4(k). One fact,
however, is clear that the respondent-union carried on correspondence with the
Labour Ministry and also passed the said resolution dated February 28, 1963.
The correspondence which was carried on fromabout November 1962 shows that the
union pressed the Government to make the reference and the Government
ultimately made the reference in August 1963.
That correspondence further shows that the
Government at one stage pointed out that the union had in 1957 failed to appear
before the Conciliation Officer although it had espoused the dispute and that
that fact had influenced the Government's refusal then to refer the dispute for
adjudication. The union pointed out (1) that at the time when the said
complaint was lodged in 1957 before the Conciliation Officer the union's
'president was one Varma, (2) that in the meantime elections for the union's
office bearers took place when the said Har Sahai Choudhury and one Girish
Chandra Bharati were elected president and workingpresident respectively' (3)
that the above-mentioned individuals appeared before the conciliation officer,
but they said Varma did not, as he had failed in the elections, (4) that
dispute arose about the said elections and the Registrar of the Trade Union-,
refused to recognise the new office bearers, and (-I) that the conciliation
officer also refused to recognise the said Har Sahai Choudhary and Bharati a,;
the duly elected president and working president, and therefore, although both
of 381 them attended the meeting fixed by that officer, the latter recorded
that no authorised agent of the union had appeared before him and no
conciliation, therefore, could be arrived at. It thus appears from the
correspondence that following the espousal of the said dispute by the union,
two of the office bearers of the union did appear before the conciliation
officer but were not recognised as the authorised agents of the union on
account of the said disputes about the elections. If the Government, therefore,
had refused then to make the reference on the ground that though the union had
espoused -the workman's cause it had not cared to appear at the conciliation
proceedings, the Government's decision refusing to make the reference was
clearly on misapprehension. If the Government subsequently found that its
earlier decision was based on such a misapprehension and on facts brought to
its notice it reconsiders the matter and decides to make the reference it is
difficult to say that it exercised the discretion conferred on it by s. 4 (k)
in any inappropriate manner.
But that does not mean that if s. 4(k) is
construed to mean that the Government can reconsider its earlier decision.
such a construction would result in unions
inducing workmen to join them as members or to shift their membership from one
to the other rival union on promises by such union to revive disputes which are
already dead or forgotten and then press the Government to make a reference in
relation to them . There is no reason to think that the Government would not
consider the matter properly or allow itself to be stampeded into making
references in cases of old or stale disputes or reviving such disputes on the
pressure of unions.
It is true that where a Government
reconsiders its previous decision and decides to make the reference, such a
decision might cause inconvenience to the employer because the employer in the
meantime might have acted on the belief that there would be no proceedings by
way of adjudication of the dispute between him and his workmen. Such a
consideration would, we should think. be taken into account by the Government
whenever, in exercise of its discretion, it decides to reopen its previous
decision as also the time which has lapsed between its earlier decision and the
date when it decides to reconsider it. These are matters which the Government
would have to take into account while deciding whether it should reopen its
former decision in the interest of justice and industrial peace but have
nothing to do with its juris diction under S. 4(k) of the Act. Whether the
intervening period may be short or long would necessarily depend upon the facts
and circumstances of each case, and therefore, in construing the expression
"at any time" in s. 4(k) it would be impossible to lay down any
limits to it.
In the present case though nearly four years
had gone by since the earlier decision not to-make the reference, if the
Government 382 was satisfied that its earlier decision had been arrived at on a
mis-apprehension of facts, and therefore, required its reconsideration, neither
its decision to do so nor its determination to make the reference can be
challenged on the ground of want of power. The fact that the dispute between
the concerned workman and the management had become an industrial dispute by
its having been espoused by the union since 1957 cannot be disputed. The fact
that the workman was then not a member of the union does not preclude or
negative the existence of the community of interest nor can it disable the,
other workmen through their union from making that dispute their own. The fact
that the Government refused then to exercise its power cannot mean that the
dispute had ended or was in any manner resolved. In the absence of any material
it Is not possible to say that with the refusal of the Government then and the
dismissal of the writ petition by the High Court in March 1959 the dispute,
which was already an industrial dispute, had ceased to subsist or that on
respondent 3 joining the union in July 1962 the union -revived a dispute which
was already dead and not in existence. His becoming a member in July 1962 was
as immaterial to the power of the Government under s. 4(k) as the fact -of his
not being a member at the time when his cause was espoused in 1957 by the union
and the dispute becoming thereupon an industrial dispute. The question of his
membership, therefore, has to be kept apart from the right of the other workmen
to espouse his cause and the power of the Government under s. 4(k). It may be
that his becoming a member in 1962 may have been the cause of the union's
subsequent efforts to persuade the Government to reconsider its decision and
make a reference on proper facts being placed before it and its earlier
misapprehensions removed. But that again has nothing to do with the
jurisdiction of the Government under s. 4(k) of the Act.
In our view, the appellant-company fails on
both the points and its appeal against the High Court's decision becomes
unsustainable. Accordingly, we dismiss the appeal with costs.
V.P.S. Appeal dismissed.