Vs. M/S. Forbes Gokak Ltd  Insc 95 (11 February 2005)
Pal & C.K. Thakker
out of SLP (c) No.19025 of 2004) RUMA PAL, J.
appellant was employed by the respondent. He claimed promotion as a clerk. When
this was not granted, the appellant raised an industrial dispute. The question
whether the appellant was justified in his prayer for promotion with effect
from the date that his juniors were promoted was referred to the Industrial
Tribunal by the State Government. In their written statement before the
Tribunal the respondent denied the appellant's claim for promotion on merits.
In addition, it was contended by the respondent that the individual dispute
raised by the appellant was not an industrial dispute within the meaning of
Section 2(k) of the Industrial Disputes Act, 1947, as the workman was neither
supported by a substantial number of workmen nor by a majority union. The
appellant claims that his cause was espoused by the Gokak Mills Staff Union.
the Tribunal, apart from examining himself, the General Secretary of the Union was examined as a witness in support of the
appellant's claim. The General Secretary affirmed that the appellant was a
member of the Union and that his cause has been
espoused by the Union.
including letters written by the Union
to the Deputy Labour Commissioner, as well as the objection filed by the Union before the Conciliation Officer were adduced in
evidence. The Tribunal came to the conclusion that in view of the evidence
given by the General Secretary and the documents produced, it was clear that
the appellant's cause had been espoused by the Union which was one of the Unions of the respondent employer. On
the merits, the Tribunal accepted the appellant's contentions that employees
who were junior to him have been promoted as clerks. It noted that no record
had been produced by the respondent to show that the Management had taken into
account the appellant's production records, efficiency, attendance or behaviour
while denying him promotion. The Tribunal concluded that the act of the
respondent in denying promotion to the appellant amounted to unfair labour
practice. An award was passed in favour of the appellant and the respondent was
directed to promote the appellant as a clerk from the date his juniors were
promoted and to give him all consequential benefits.
award of the Industrial Tribunal was challenged by the respondent by way of a
writ petition. A Single Judge dismissed the writ petition. The respondent being
aggrieved filed a writ appeal before the Appellate Court.
Appellate Court construed Section 2(k) of the Industrial Disputes Act 1947 and
came to the conclusion that an individual dispute is not an industrial dispute
unless it directly and substantially affects the interest of other workmen.
Secondly it was held that an individual dispute should be taken up by a Union
which had representative character or by a substantial number of employees
before it would be converted into an industrial dispute neither of which
according to the Appellate Court, had happened in the present case. It was held
that there was nothing on record to show that the appellant was a member of the
Union or that the dispute has been
espoused by the Union by passing any resolution in that
definition of "Industrial Dispute" in Section 2(k) of the Act shows
that an Industrial Dispute means any dispute or difference between an employer
and employers or between employers and workmen, or between workmen and workmen,
which is connected with the employment or non-employment or the terms of the
employment or with the condition of labour, of any person. The definition has
been the subject matter of several decisions of this Court and the law is well
settled. The locus classicus is the decision in Workmen of M/s. Dharampal Premchand
(Saughandhi) 1965 (3) SCR 394 where it was held that for the purposes of
Section 2(k) it must be shown that
dispute is connected with the employment or non employment of a workman.
dispute between a single workman and his employer was sponsored or espoused by
the Union of workmen or by a number of
workmen. The phrase "the union" merely indicates the Union to which the employee belongs even though it may be
a Union of a minority of the workmen.
establishment had no union on its own and some of the employees had joined the Union of another establishment belonging to the same
such a case it would be open to that Union
to take up the cause of the workmen if it is sufficiently representative of
those workmen, despite the fact that such Union
was not exclusively of the workmen working in the establishment concerned. An
illustration of what had been anticipated in Dharam Pal's case is to be found
in the Workmen of Indian Express Newspaper Newspaper Private Ltd. AIR 1970 SC
737 where an 'outside' union was held to be sufficiently representative to
espouse the cause.
present case, it was not questioned that the appellant was a member of the Gokak
Mills Staff Union.
was any issue raised that the Union was not
of the respondent establishment. The objection as noted in the issues framed by
the Industrial Tribunal was that the Union
was not the majority Union. Given the decision in Dharam Pal's
case, the objection was rightly rejected by the Tribunal and wrongly accepted
by the High Court.
as espousal is concerned there is no particular form prescribed to effect such
espousal. Doubtless, the Union must normally express itself in the
form of a resolution which should be proved if it is in issue. However proof of
support by the Union may also be available aliunde. It
would depend upon the facts of each case. The Tribunal had addressed its mind
to the question, appreciated the evidence both oral and documentary and found
that the Union had espoused the appellant's cause.
Division Bench misapplied the principles of judicial review under Article 226
in interfering with the decision. It was not a question of there being no
evidence of espousal before the Industrial Tribunal. There was evidence which
was considered by the Tribunal in coming to the conclusion that the appellant's
cause had been espoused by the Union. The High
Court should not have upset this finding without holding that the conclusion
was irrational or perverse. The conclusion reached by the High Court is
all these reasons the decision of the High Court cannot stand and must be set
counsel appearing for the respondent then submitted that the matter may be
remanded back to the Division Bench of the High Court as the Court had not
considered the other arguments raised by the respondent while impugning the
award of the Industrial Tribunal. It appears from the impugned decision that
the only other ground raised by the respondent in the Writ Appeal was that the
grievance of the appellant had been belatedly raised. We have found from the
decision of the Industrial Tribunal that no such contention had been raised by
the respondent before the Tribunal at all. We are not prepared to allow the
respondent to raise the issue before the High Court.
respondent finally submitted that pursuant to the disciplinary proceedings
initiated against the appellant in the meanwhile, the appellant had been
dismissed from service and that the order of dismissal was the subject matter
of a separate industrial dispute. We are not concerned with the proprietary of
the order of dismissal except to the extent that the appellant cannot obviously
be granted actual promotion today. Nevertheless, he would be entitled to the
monetary benefits of promotion pursuant to the award of the Industrial Tribunal
which is the subject matter of these proceedings uptil the date of his
further relief that the appellant may be entitled to must of necessity abide by
the final disposal of the industrial dispute relating to the order of dismissal
which is said to be pending.
therefore allow the appeal and set aside the decision of the High Court. The
award of the Industrial Tribunal is confirmed subject to the modification that
the promotion granted by the award will be given effect to notionally for the
period as indicated by the award up to the date of the appellant's dismissal
from service. Reliefs in respect of the period subsequent to the order of
dismissal shall be subject to the outcome of the pending industrial dispute
relating to the termination of the appellant's services. If the termination is
ultimately upheld, the appellant will be entitled only to the reliefs granted
by us today. If on the other hand the termination is set aside, the appellant
will be entitled to promotion as granted by the award.