Workmen of M/S Dharampal Premchand (Saughandhi)
Vs. M/S. Dharampal Premchand (Saughandhi) [1965] INSC 69 (16 March 1965)
16/03/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
HIDAYATULLAH, M.
RAMASWAMI, V.
CITATION: 1966 AIR 182 1965 SCR (3) 394
CITATOR INFO:
R 1970 SC 737 (7,8) E 1970 SC1205 (6) R 1978
SC 828 (16)
ACT:
Industrial Disputes Act 1947 (14 of 1947),
ss. 2(k), 10 and 36--"Industrial dispute"-Meaning-Dismissed Employees
only members of Union-Union raises dispute-Maintainability.
HEADNOTE:
Out of 45 employees of the respondent, 18 had
become members of a Trade Union. Later, these 18 employees were dismissed by an
order passed on the same day. The Union took up the cause and ultimately the
dispute was referred to the Tribunal, where the respondent raised the
preliminary objection that the reference was invalid inasmuch is the dispute
referred to the Tribunal was not an industrial dispute but was merely an
individual dispute, and besides these dismissed employees no other employees of
the respondent was a member of the Union, and so the Union could not raise the
dispute. This was upheld by the Tribunal. In appeal by special leave;
HELD: The appeal must be allowed.
The definition of "industrial
dispute" in s. 2(k) shows that before any dispute raised by any person can
be said to be an industrial dispute, it must be shown that it is connected with
the employment or non-employment of that person. This condition is satisfied in
the present case. [396 D] Having regard to the broad policy underlying the Act,
this Court and indeed a majority of Industrial Tribunals are inclined to take
the view that notwithstanding the width of the words used by the Act in
defining an "industrial dispute" it would be expedient to require
that a dispute raised by a dismissed employee cannot become an industrial
dispute, unless it is supported either by his Union or, in the absence of a
Union by a number of workmen. [397 B-C] Considerations which would be relevant
in dealing with a dispute relating to an individual employee's dismissal, would
not be Material in dealing with a case where a large number of employees have
been dismissed on the same day.
[399 G-H] A Union of workmen may validly
raise a dispute as to dismissal even though it may be a union of minority of
the workmen employed in any establishment. Similarly if there is no union of
workmen in any establishment, a group of employees can raise the dispute and
the dispute then becomes an industrial dispute, though it may relate to the dismissal
of an individual employee. [399 H] In a given case it is conceivable that the
workmen of an establishment have no union of their own and some or all of them
join the union of another establishment belonging to the same industry. In such
a case if the said union take up the cause of the workmen working in an
establishment which has no union of its own, it would be unreasonable to hold
that the dispute does not become an industrial dispute because the Union which
has sponsored it is not the union exclusively of the workmen working in the
establishment concerned. In every case where industrial adjudication has to
decide 395 whether a reference in regard to the dismissal of an industrial
employee is validly made or not it would be necessary to inquire whether the
Union which has sponsored the case can fairly claim a representative character,
in such a way that its support to the case would make the dispute an industrial
dispute. [400 F-H] Besides, 18 workmen, dismissed by an order passed on the
same day, themselves form a group of workmen which would be justified in
supporting the cause of one another. [401 C] Central Provinces Transport
Service v. Raghunath Gopal Patwardhan, [1956] S.C.R. 956 and The Newspapers
Ltd. v. The State Industrial Tribunal, U.P., [1957] S.C.R. 754, relied on.
Bombay Union of Journalists v. The Hindu,
Bombay, [1961] 11 L.L.J. 436, explained and distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 532 of 1963.
Appeal by special leave from the Award dated
February 9, 1962, of the Industrial Tribunal, Delhi in I.D. No. 294 of 1961.
Sukumar Ghose, for the appellant.
S. V. Gupte, Solicitor-General, S. Murthy and
B. P. Maheshwari, for the respondent.
The Judgment of the Court was delivered by
Gajendragadkar, C. J. The short question of law which arises for our decision
in this appeal is whether the order passed by the Delhi Administration
referring the dispute between the appellants, the workmen of M/s Dharampal
Premchand, Saughandhi and the respondent, the employer, M/s Dharampal Premchand
Saughandhi, Delhi was valid. The order of reference has been passed by the
Delhi Administration under ss. 10(1)(d) and 12(5) of the Industrial Disputes
Act, 1947 (No. 14 of 1947) (hereinafter called the Act). When the Industrial
Tribunal, Delhi took up this matter for hearing, the respondent raised a
preliminary objection that the reference was invalid inasmuch as the dispute
referred to the Tribunal by the impugned order of reference is not an
industrial dispute. but is merely an individual dispute which cannot be the
subject-matter of a valid reference under s. 10(1) of the Act. This contention
has been upheld by the Tribunal, with the result that the Tribunal has held that
it has no jurisdiction to adjudicate upon the merits of the dispute referred to
it. It is against this order that the appellants have come to this Court by
special leave. On behalf of the appellants, Mr. Sukumar Ghose contends that the
view taken by the Tribunal is not sound, and that raises the question as to
whether the dispute referred to the Tribunal for its adjudication in the
present case can be said to be an industrial dispute within the meaning of s. 2(k)
of the Act.
The facts which it is necessary to state for
the purpose of dealing with this point are very few and they are not in
dispute. The respondent is a firm which carries on business as perfumers and
tobacconists in Chandni Chowk, Delhi. On the 28th July, 1961, the respondent
passed the impugned order dismissing the services of its 18 employees. On that
date, the respondent had in its employment 45 employees. It appears that on the
16th July, 396 1961, the 18 employees who were dismissed by the respondent had
become members of the Mercantile Employees' Association which is a registered
Trade Union in Delhi. On the 29th July, 1961, the said Association took up the
cause of the dismissed employees and carried the dispute before the
Conciliation Officer, Delhi. The conciliation proceedings, however, failed, and
at the instance of the Association the present reference was made on the 6th
September, 1961. It is in the light of these facts that we have to decide
whether the dispute referred to the Tribunal for its adjudication is an
industrial dispute within the meaning of s. 2(k) of the Act or not.
Section 2(k) defines an "industrial
dispute" as meaning any dispute or difference between employers and
employees, or between employers and workmen, or between workmen and workmen,
which is connected with the employment 'or non employment or the terms of
employment or with the condition of labour, of any person. This definition
shows that before any dispute raised by any person can be said to be an
industrial dispute, it must be shown that it is connected with the employment
or non-employment of that person. This condition is satisfied in the present
case, because the dispute is in relation to the dismissal of 18 workmen, and in
that sense, it does relate either to their employment or non-employment. The
question, however. still remains whether it is a dispute between employers and
workmen.
Literally construed, this definition may take
within its sweep a dispute between a single workman and his employer, because
the plural, in the context, will include the singular. Besides, in the present
case, the dispute is in fact between 18 workmen on the one hand, and their
employer on the other, and that satisfies the requirement imposed by the fact
that the word "workmen" in the context is used in the plural. But the
decisions of this Court have consistently taken the view that in 'order that
dispute between a single employee and his employer should be validly referred
under s. 10 'of the Act, it is necessary that it should have been taken up by
the Union to which the employee belongs or by a number of employees. On this
view, a dispute between an employer and a single employee cannot, by itself, be
treated as an industrial dispute, unless it is sponsored or espoused by the
Union of workmen or by a number of workmen. In other words, if a workman is
dismissed by his employer and the dismissed workman's case is that his
dismissal is wrongful, he can legitimately have the said dispute referred for
adjudication before an Industrial Tribunal under s. 10(1) of the Act, provided
a claim for such a reference is supported either by the Union to which he
belongs or by a number of workmen, vide Central Provinces Transport Services v.
Raghunath Gopal Patwardhan(1) and The Newspapers Ltd. v. The State Industrial
Tribunal, U.P. (2).
(1) [1956] S.C.R. 956.
(2) [1957] S.C.R. 754.
397 This view is based on a consideration of
the general policy underlying the provisions of the Act. As is well-known, the
Act has been passed for the investigation and settlement of industrial disputes,
and its material provisions have been enacted, because it was thought expedient
to make provision for such investigation and settlement of disputes, keeping in
mind the importance of the development of Trade Union Movement on proper lines
in this country. Having regard to this broad policy underlying the Act, this
Court and indeed a majority of Industrial Tribunals are inclined to take the
view that notwithstanding the width of the words used by the Act in defining an
"industrial dispute", it would be expedient to require that a dispute
raised by a dismissed employee cannot become an industrial dispute, unless it
is supported either by his Union or, in the absence of a Union, by a number of
workmen. Unless such a limitation was introduced, claims for reference may be
made frivolously and unreasonably by dismissed employees, and that would be
undesirable.
Besides, in order to safeguard the interests
of the working class in this country, it was thought that the development of
Trade Union movement on healthy Trade Union lines was essential and that
requires that disputes between employers and employees should be settled on a
collective basis. A complaint against a wrongful dismissal should, therefore,
be the subject-matter of reference, provided the workmen acting collectively
take up the case of the dismissed employee and contend that the dismissal is
unjustified or wrongful. It is on these grounds that this Court has held that
an individual dispute arising from an alleged wrongful dismissal of an employee
can be validly referred under s. 10 only if it is supported by the Union of the
workmen to which the dismissed employee belongs or by a group of his co-employees.
There is no dispute that the Mercantile Employees' Association has taken up the
dispute on behalf of the 18 dismissed employees. In fact, as we have already
indicated, the said Association took up this dispute before the Conciliation
Officer and when the conciliation proceedings failed, it successfully moved the
Delhi Administration to make a reference under s. 10(1) of the Act.
It was, however, urged before the Tribunal
that besides the 18 dismissed employees, no other employee of the respondent is
a member of the said Association, and so, it was contended that the said
Association was not authorised to raise the dispute, and in the absence of
proof of the fact that the dispute had been sponsored or espoused by the Union
of the employees of the respondent, the reference should be held to be invalid.
This contention has been upheld by the Tribunal; and so, the question which we
have to decide is whether the Tribunal was right in holding that the Mercantile
Employees' Association had no authority to raise and support the present
dispute.
398 In support of its conclusion, the
Tribunal has relied upon the decision of this Court in Bombay Union of
Journalists and others v. The "Hindu", Bombay & Anr.(1). In that
case, the services of one Salivateeswaran, who claimed that he was a full-time
employee of the "Hindu", a daily newspaper published in Madras, were
terminated and an industrial dispute was raised in respect of the said
termination by the Bombay Union of Journalists. The contention raised by the
employer was that the reference was invalid inasmuch as the dispute referred
for adjudication was an individual dispute and not an industrial dispute. This
contention was accepted by the Tribunal; and that brought the dispute before
this Court.
In dealing with the effect of the decision
pronounced by this Court in that case and particularly of certain observations
made in the course of the judgment, it is necessary to bear in mind one finding
of fact which had been recorded by the Tribunal and confirmed by this Court. It
appears that in that case, the appellants strongly relied upon a resolution
passed on April 17, 1948, by which it was alleged that the Bombay Union of
Journalists had taken up the dispute of Salivateeswaran against the
"Hindu" and had decided to demand reliefs for the "retrenched
Journalist".
Evidence was led to prove that such a
resolution had been passed, but that evidence was discarded both by the
Tribunal and this Court, and this Court definitely found that "the
evidence tends to establish the plea raised by respondent No. 1 that the record
of the alleged resolution was fabricated with a view to support the case of
Salivateeswaran". In other words, in point of fact, there was no reliable
evidence to show that the Bombay Union of Journalists had taken up the case of
the retrenched employee Salivateeswaran. In view of this finding, it follows
that the 'observations made by this Court in regard to the requirements of a
valid reference under s. 10(1) of the Act are in the nature of orbiter
observations.
It does appear that in dealing with the point
of law as to the requirements of a valid reference, this Court 'observed that
"the dispute, in the present case, being prima facie an individual
dispute, in order that it may become an industrial dispute, it had to be
established that it had been taken up by the Union of employees of the "Hindu",
Bombay, or by appreciable number of employees of the "Hindu", Bombay.
Similarly, it was also observed that the "principle that the persons who
seek to support the cause of a workman must themselves be directly and
substantially interested in the dispute, applied to the case before the
Court"; and so, one of the tests which this Court applied was whether the
persons who supported the cause, were employees of the same employer; if they
were not, it was thought that they could not be regarded as interested in the
dispute and as such, their support may not (1) [1962] 3 S.C.R. 893.
399 convert an individual dispute into an
industrial dispute.
That is why the support lent to the cause of
Salivateeswaran by the Bombay Union of Journalists was found to be insufficient
to convert the cause into an industrial dispute.
These observations, no doubt, prima facie
lend support to the view which the Tribunal has accepted. It appears that the
Bombay Union of Journalists had on its roll several working Journalists in
other journals; but out of the three working journalists working with the
"Hindu" at its Bombay office, two had become the members of the
Bombay Union of Journalists, viz., Salivateeswaran and Venkateswaran.
Tiwari, the third working journalist working
in the office of the "Hindu", Bombay, had not become a member of the
said Union. In the Office of the "Hindu", there were seven other
workmen, but they were working on the administrative side.
In other words, out of the ten employees in
the office of the " Hindu", seven were on the administrative side,
and three on the journalism side; and out of these three, two were members of
the Union. It is in the light of these facts that this Court expressed the
opinion that the Bombay Union of Journalists was not competent to raise the
dispute, and even if it had raised it, the dispute could not have become an
industrial dispute.
In our opinion, the observations on which the
Tribunal has relied in support of its conclusion in the present case, should
not be read as laying down any hard and fast rule in the matter. Take, for
instance, the case of an employer who employs 20 workmen, and assume that these
workmen have not formed any Union. If the employer illegally dismisses all the
workmen employed by him, it cannot be suggested that the dispute about the
dismissal of these employees would not become an industrial dispute because
there is no Union to support them and the dismissed employees themselves cannot
convert their individual dispute into an industrial dispute.
In the present case, out of 45 employees 18
have been dismissed, and there is no evidence to show that these employees have
a Union of their own. In such a case, it would be difficult to hold that though
the number of employees dismissed is 18, they cannot raise a dispute by
themselves in a formal manner. Considerations which would be relevant in
dealing with a dispute relating to an individual employee's dismissal, would
not be material in dealing with a case where a large number of employees have
been dismissed on the same day. It is not disputed that a union of workmen may
validly raise a dispute as to dismissal even though it may be a union of the
minority of the workmen employed in any establishment. The majority union, of
course, can raise a dispute, and if a reference is made under s. 10(1) of the
Act at its instance, the reference, is valid. Similarly, if there is no union
of workmen in any establishment, a group of employees can raise the dispute and
the dispute then becomes an industrial dispute, though it may 400 relate to the
dismissal of an individual employee. This position is not disputed. If that is
so, it is difficult, we think, to apply or extend the observations made in the
case of the Bombay Union of Journalists(1) to the present case. In the present
case, we are dealing with a reference made by the Delhi Administration in
relation to the appellants' contention that the dismissal of 18 employees is
invalid, and not with a case of the dismissal of a single employee. Therefore,
we do not think that the Tribunal was right in relying upon the decision in the
case of the Bombay Union of Journalists(1) in support of its conclusion that
the present reference was invalid.
It is well-known that in dealing with
industrial disputes, industrial adjudication is generally reluctant to lay down
any hard and fast rule or adopt any test of general or universal application.
The approach of industrial adjudication in dealing with industrial disputes has
necessarily to be pragmatic, and the tests which it applies and the
considerations on which it relies would vary from case to case and would not
admit of any rigid or inflexible formula. There is no doubt that the
limitations introduced by the decisions of this Court in interpreting the
effect of the definition prescribed by s. 2(k) of the Act were based 'on such
pragmatic considerations. It may also be conceded that if the dismissal of an
individual employee working in an establishment in Delhi is taken up by the
union of workmen in a place away from Delhi that would clearly not make the
dispute an industrial dispute. Section 36 of the Act which deals with the
representation of parties, incidentally suggests that the union which can raise
an individual dispute as to a dismissal validly, should be a union of the same
industry. Generally, it is the union of workmen working in the same
establishment which has passed the impugned order of dismissal. But in a given
case, it is conceivable that the workmen of an establishment have no union of
their own, and some 'or all of them join the union of another establishment
belonging to the same industry. In such a case, if the said union takes up the
cause of the workmen working in an establishment which has no union of its own,
it would be unreasonable to hold that the dispute does not become an industrial
dispute because the union which has sponsored it is not the union exclusively
of the workmen working in the establishment concerned. In every case where
industrial adjudication has to decide whether a reference in regard to the dismissal
of an industrial employee is validly made or not, it would always be necessary
to enquire whether the union which has sponsored the case can fairly claim a
representative character in such a way that its support to the cause would make
the dispute an industrial dispute. "Industry" has been defined by s. 2(j)
of the Act and it seems to us that in some cases, the union of workmen working
in one industry may be competent to raise a dispute about the wrongful
dismissal of an employee engaged in an establishment belonging to the same
industry where workmen (1) [1962] 3 S.C.R. 893, 401 in such an establishment
have no union of their own, and an appreciable number of such workmen had
joined such other union before their dismissal. In fact, the object of trade
union movement is to encourage the formation of larger and bigger unions on
healthy and proper trade union lines, and this object would be frustrated if
industrial adjudication were to adopt the rigid rule that before any dispute
about wrongful dismissal can be validly referred under s. 10(1) of the Act, it
should receive the support of the union consisting exclusively of the workmen
working in the establishment concerned.
Besides, there is another way in which this
question can be considered. If 18 workmen are dismissed by an order passed on
the same day, it would be unreasonable to hold that they themselves do not form
a group of workmen which would be justified in supporting the cause of one
another. In dealing with this question, we ought not to forget the basic theory
on which limitation has been introduced by this Court on the denotation of the
words "industrial dispute" as defined by s. 2(k) of the Act.
Therefore, we are satisfied that the Tribunal was in error in rejecting the
reference on the preliminary ground that the dispute referred to it was an
individual dispute and not an industrial dispute within the meaning of s. 2(k).
The result is, the appeal is allowed, the
finding of the Tribunal on the preliminary issue is reversed, and the matter is
sent back to the Tribunal for disposal in accordance with law. There would be
no order as to costs.
Appeal allowed.
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