Ram Prasad Vishwakarma Vs. The
Chairman, Industrial Tribunal [1960] INSC 288 (12 December 1960)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION: 1961 AIR 857 1961 SCR (3) 196
CITATOR INFO :
D 1985 SC 311 (20)
ACT:
Industrial Dispute-Dismissal of
workman-Industrial Dispute raised by union-Representation of workman before
Tribunal--Industrial Disputes Act, 1947 (14 Of 1947), ss. 2(k), 36.
HEADNOTE:
On the termination of the appellant's
services by his employer an industrial dispute was raised by his union and the
question of his dismissal along with a number of other disputes was referred to
the Industrial Tribunal. After several adjournments of the case the management
and the union filed a joint petition of compromise settling all the points in
dispute out of Court. Prior to this the appellant filed an application praying
that he might be allowed to be represented by two of his co-workers instead of
the Secretary of the Union in whom he had no faith and who had no authority to
enter into the compromise on his behalf.
This prayer was not allowed by the Tribunal
which made an award in terms of the compromise. The appellant, thereupon, made
an application to the High Court praying for a writ quashing the order of the
Tribunal disallowing him to be represented by a person of his own choice and
197 also for a direction to the Tribunal not to record the compromise. The High
Court summarily dismissed the Writ Petition., On appeal by special leave, Held,
that the appellant was Dot entitled to separate representation when already
being represented by the Secretary of the union which espoused his cause. A
dispute between an individual workman and an employer cannot be an industrial
dispute as defined in s. 2(k) of the Industrial Disputes Act unless it is taken
up by a Union of workmen or by a considerable number of workmen. When an
individual workman becomes a party to a dispute under the Industrial Disputes
Act be is a party, not independently of the Union which has espoused his cause.
Central Provinces Transport Service Ltd. v.
Raghunath Gopal Palwardhan, [1954] S.C.R. 956, followed.
Although no general rule can be laid down in
the matter, the ordinary rule should be that representation by an officer of
the trade union should continue throughout the proceedings in the absence of
exceptional circumstances justifying other representation of the workman
concerned.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 31 of 1960.
Appeal by special leave from the judgment and
order dated March 14, 1957, of the Patna High Court in Miscellaneous Judicial
Case No. 165 of 1957.
P. K. Chatterjee, for the appellant.
S. P. Varma, for respondents Nos. 1 and 4.
Nooni Coomar Chakravarti and B. P.
Maheshwari, for respondent No. 2.
1960. December 12. The Judgment of the Court
was delivered by DAS GUPTA, J.-This appeal by special leave is against an order
of the High Court of Judicature at Patna dismissing summarily an application of
the present appellant under Art.
226 and Art. 227 of the Constitution. The
appellant was a workman employed in the Digha factory of Bata Shoo Company
(Private) Limited, since October, 1943. On January 13, 1954, the management of
the company served him with a charge-sheet alleging that he had been doing
anti-union activities inside the factory during the working hours and so was
guilty under section 12B(1) of the Standing Orders and Rules of the company. On
198 January 14, he submitted a written reply denying the charge and asking to
be excused. On January 15, the management made an order terminating his
services with effect from January 18, 1954. An industrial dispute was raised on
this question of dismissal by the Union and was referred along with a number of
other disputes to the Industrial Tribunal, Bihar, by a notification dated April
29, 1955. After written statements were filed by the Union and the management,
February 20, 1956, was fixed for hearing at Patna. Thereafter numerous
adjournments were given by the Tribunal on the joint petition for time filed by
both the parties stating that all the disputes were going to be compromised. On
November 16, 1956, the Tribunal made an order fixing December 20, 1956,
"for filing compromise or hearing". On December 20, 1956, however a
fresh application for time was filed but it was stated that agreement had
already been reached on some of the matters and opportunity was asked for to
settle the other matters. The case was however adjourned to January 21, 1957,
for filing a compromise or hearing. On that date a further petition was again
filed and a further extension of time was allowed till February 1, 1957. On
January 31, the parties, that is, the management and the Union filed a joint
petition of compromise settling all points of disputes out of court.
Prior to this, on January 12, 1957, the
present appellant had made an application praying that D. N. Ganguli and M. P. Gupta,
two of his co-workers might be allowed to represent his case before the
Tribunal instead of Fateh Singh, the Secretary of the Union and that he did not
want his case to be represented by Fateh Singh as he had no faith in him.
This application was dismissed by the
Tribunal by an order dated February 26, 1957. On March 7, 1957, the appellant
filed a fresh petition stating that he had not authorised Fateh Singh to enter
into any agreement in his case and praying that the agreement filed in respect
of his case should not be accepted and that he and his agents should be heard
before the disposal 199 of the case. This prayer was not allowed by the. Tribunal
and by an order dated March 11, 1957, an award in terms of the petition of
compromise was made.
The appellant filed his application to the
Patna High Court on March 13, 1957, praying for an issue of an appropriate writ
or direction quashing the Tribunal's order of February 26, 1957, by which the
Tribunal had rejected his prayer for representation by a person of his own
choice in place of Fateh Singh, the Secretary of the Union. Prayer was made in
this petition also for a direction on the Tribunal not to record the compromise
in so far as it related to the appellant's case and to give its award without
reference to the settlement and on proper adjudication of the matter.
The High Court dismissed this application
summarily. It is against that order of dismissal that the present appeal by
special leave has been preferred.
On behalf of the appellant it is argued that
the Tribunal committed a serious error in rejecting his application to be
represented by a person of his own choice instead of Fateh Singh, the Secretary
of the Union and thereafter in making an award on the basis of the reference.
It has to be noticed that on the date the application *as made before the High
Court the award had already been made and so there could be no direction as
prayed for on the Tribunal not to make the award. If however the appellant's
contention that the Tribunal erred in rejecting his application for separate
representation was sound he would have been entitled to an order giving him
proper relief on the question of representation as well as regarding the award
that had been made.
The sole question that arises for our
determination therefore is whether the appellant was entitled to separate
representation in spite of the fact that the Union which had espoused his cause
was being represented by its Secretary, Fateh Singh. The appellant's contention
is that he was a party to the dispute in his own right and so was entitled to
representation according to his own liking. The question whether when a dispute
concerning an individual workman is taken up by the Union, of which the workman
is a member, as 200 a matter affecting workmen in general and on that basis a
reference is made under the Industrial Disputes Act the individual workman can
claim to be heard independently of the Union is undoubtedly of some importance.
The question of representation of a workman who is a party to a dispute is
dealt with by section 36 of the Industrial Disputes Act.
That section provides that such a workman is
entitled to be represented in any proceeding under the Act, by (a) an officer
of a registered trade union of which he is a member, (b) an officer of a
federation of trade unions to which the trade union of which he is a member is
affiliated and (c) where the workman concerned is not a member of any trade
union by an officer of any trade union concerned with the industry, or by any
other workman employed in that industry.
The appellant was the member of a trade
union; and he was actually represented in the proceedings before the Tribunal
by an officer of that Union, its Secretary, Fateh Singh.
The Union through this officer, filed a
written statement on his behalf. Upto January 12, 1957, when the appellant
filed his application for separate representation, this officer, was in charge
of the conduct of the proceedings on behalf of the appellant. Never before that
date, the appellant appears to have raised any objection to this
representation.
The question is, whether, when thereafter he
thought his interests were being sacrificed by his representative, he could
claim to cancel that representation, and claim to be represen. ted by somebody
else. In deciding this question, we have on the one hand to remember the
importance of collective bargaining in the settlement of industrial disputes,
and on the other hand, the principle that the party to a dispute should have a
fair hearing. In assessing the requirements of this principle, it is necessary
and proper to take note also of the fact that when an individual workman
becomes a party to a dispute under the Industrial Disputes Act he is a party,
not independently of the Union which has espoused his cause.
It is now well-settled that a dispute between
an individual workman and an employer cannot be an 201 industrial dispute as
defined in section 2(k) of the Industrial Disputes Act unless it is taken up by
a Union of the workmen or by a considerable number of workmen. In Central
Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan (1) Mr. Justice
Venkatarama Ayyar speaking for the Court pointed out after considering numerous
decisions in this matter that the preponderance of judicial opinion was clearly
in favour of the view that a dispute between an employer and a single employee
cannot per se be an industrial dispute but it may become one if it is taken up
by an Union or a number of workmen. "Notwithstanding that the language of
section 2(k) is wide enough to cover disputes, between an employer and a single
employee", observed the learned Judge, "the scheme of the Industrial
Disputes Act does appear to contemplate that the machinery provided therein
should be set in motion to settle only disputes which involve the rights of
workmen as a class and that a dispute touching the individual rights of a
workman was not intended to be the subject of adjudication under the Act, when
the same had not been taken up by the Union or a number of workmen".
This view which has been re-affirmed by the
Court in several later decisions recognises the great importance in modern
industrial life of collective bargaining between the workman and the employers.
It is well known how before the days of collective bargaining labour was at a
great disadvantage in obtaining reasonable terms for contracts of service from
his employer. As trade unions developed in the country and collective
bargaining became the rule the employers found it necessary and convenient to
deal with the representatives of workmen, instead of individual workmen, not
only for the making or modification of contracts but in the matter of taking
disciplinary action against one or more workmen and as regards all other
disputes.
The necessary corollary to this is that the
individual workman is at no stage a party to the industrial dispute
independently of the Union. The Union or those (1)[1954] S.C.R. 956.
26 202 workmen who have by their sponsoring
turned the individual dispute into an industrial dispute, can therefore claim
to have a say in the conduct of the proceedings before the Tribunal.
It is not unreasonable to think that s. 36 of
the Industrial Disputes Act recognises this position, by providing that the
workman who is a party to a dispute shall be entitled to be represented by an
officer of a registered trade union of which he is a member. While it will be
unwise and indeed impossible to try to lay down a general rule in the matter,
the ordinary rule should in our opinion be that such representation by an
officer of the trade union should continue throughout the proceedings in the
absence of exceptional circumstances which may justify the Tribunal to permit
other representation of the workman concerned. We are not satisfied that in the
present case, there were any such exceptional circumstances. It has been
suggested that the Union's Secretary Fateh Singh himself had made the complaint
against the appellant which resulted in the order of dismissal. it has to be
observed however that in spite of everything, the Union did take up this
appellant's case against his dismissal as its own. At that time also, Fateh
Singh was the Secretary of the Union. If are Union had not taken up his cause,
there would not have been any reference.
In view of all the circumstances, we are of
opinion, that it cannot be said that the Tribunal committed any error in
refusing the appellant's prayer for representation through representatives of
his own choice in preference to Fateh Singh, the Secretary of the Union.
As a last resort, learned counsel for the
appellant wanted to urge that the Secretary of the Union had no authority to
enter into any compromise on behalf of the Union. We find that no such plea was
taken either in the appellants application before the Tribunal or in his
application under Arts. 226 and 227 of the Constitution to the High Court.
Whether in fact the Secretary had any
authority to compromise is a question of fact which cannot be allowed to be
raised at this stage.
203 In the application before the High Court
a statement was also made that the compromise was collusive and mala fide.
The terms of the compromise of the dispute
regarding the appellant's dismissal were that he would not get reemployment,
but by way of "humanitarian considerations the company agreed without
prejudice to pay an ex-gratia amount of Rs. 1,000/(Rupees one thousand)
only" to him. There is no material on the record to justify a conclusion
that this compromise was not entered in what was considered to be the best
interests of the workman himself In our opinion, there is nothing that would
justify us in interfering with the order of the High Court rejecting the
appellant's application for a writ. The appeal is accordingly dismissed. There
will be no order as to costs.
During the hearing Mr. Chakravarty, learned
counsel for the company, made a statement on behalf of the company that in
addition to the sum of Rs. 1,000 which the company had agreed to pay to the
appellant as a term of settlement the company will pay a further sum of Rs. 500
(Rupees five hundred) only ex-gratia and without prejudice. We trust that this
statement by the counsel will be honoured by the company.
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