Workmen of Indian Express (P) Ltd. Vs.
The Management [1968] INSC 294 (26 November 1968)
26/11/1968 SHELAT, J.M.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
CITATION: 1970 AIR 737 1969 SCR (2) 913 1969
SCC (1) 228
CITATOR INFO:
E 1970 SC1205 (6)
ACT:
Industrial Disputes Act, 1947, s.
10-Requirements for 'individual dispute' becoming an "industrial
dispute".
HEADNOTE:
The workmen were appointed by the respondent
company under the designation of copy holders and an order in July 1959, issued
by the management, expressly described them as such.
It was alleged however, that despite this
order, the management, both before and after the date of the order, had always
given to the workmen the work of proofreaders. A dispute arose whether the two
workmen should be treated as proof readers and the executive committee of the
Delhi Union of Journalists, at a meeting on December 1, 1966, after considering
the representation made to it by the two employees, decided to take up their
case and thereafter initiated conciliation proceedings. Eventually, the Delhi
Administration referred the dispute. to the Industrial Tribunal. It was
contended by the management before the Tribunal that the dispute was an individual
dispute and not an industrial dispute so that the Tribunal had no jurisdiction
to adjudicate it. The Tribunal accepted this contention.. Evidence was led
before the Tribunal to show that the working Journalists employed by the
respondent company numbered 131 out of whom 68 were employed in Delhi.
Out of these, 31 were members of the Delhi
Union of Journalists which was an outside union and which they had joined after
July 1959. The Tribunal's view was that the 31 working journalists having
joined the Union *after the cause of action had arisen in July 1959, the
resolution of the union's executive committee would not constitute espousal of
the workmen's dispute as there would be no nexus between the dispute and the
Union, and therefore, the resolution dated December 1, 1960 did not have the
effect of convening the dispute into an industrial dispute.
In appeal to this Court by special leave,
HELD: The Tribunal's view that the dispute
was not an industrial dispute, was incorrect.
Bombay Union of Journalists v. The Hindu,
Bombay, [1962] 3 S.C.R. 893, Central Provinces Transport Services Ltd. v. Raghunath
Gopal Patwardhan, [1956] S.C.R. 956, Newspapers Ltd. v. State Industrial
Tribunal U.P., [1957] S.C.R. 754 and Workmen v. M/s. Dharampal Premchand, [1965]
3 S.C.R.
394, referred to.
The espousal by the union could not be said
to be beyond time as such espousal could only take place after and not before
the dispute arose or the cause of action arose. The test of an industrial
dispute is whether at the date of the reference the dispute was taken up and
supported by a union, or by an appreciable, number of workmen. In the present
case this test was clearly satisfied. [917 C] If the number of working
journalists in the respondent company were to be taken as 68, membership of the
union by as many as 31 working journalists would certainly confer on the union
a representative character. Even if the number of working journalists were to
be taken as 131, it 914 would not be unreasonable to say that 31, i.e. about
25% of them would, by becoming the members of the union, give a representative
character to the union. At the material time there was no union of working
journalists employed by the respondent company. Therefore, in accordance with
the decision in the Workmen v. M/s. Dharampal Premchand the union could be said
to have a representative character qua the working journalists employed in the
respondent company.
The union had taken up the cause of the two
workmen by its executive committee passing a resolution and its office bearers
having followed up that resolution by taking the matter before the conciliation
officer. Though the grievance of the two workmen arose in July 1959, when the
management declined to accept them as proof-readers the union had sponsored
their cause before the date of reference as laid down in the case of The Hindu,
Bombay. 'That being the position it could not be gain said that the dispute was
transformed into an industrial dispute as it was sponsored by a union which
possessed a representative character vis-a-vis the working journalists in the
employ of the respondent company. [919 C--G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1733 of 1967.
Appeal by special leave from the Award dated
April 10, 1967 of the Industrial Tribunal, Delhi in Reference I.D. No. 241 of
1961.
M.K. Ramamurti, Shyatnala Pappu, Vineet Kumar
and Madan Mohan, for the appellants.
S.V. Gupte, Lalit Bhasin, S.K. Mehta and K.L.
Mehta, for the respondent..
The Judgment of the Court was delivered by
Shelat, J. Two workmen, Gulab Singh and Satya Pal, were appointed by the
respondent-company in December 1956 and February 1955 respectively under the
designation of copy holders. It was alleged that they were entrusted with the
duties of proofreaders and therefore they claimed that they should be treated
as such. In July 1959 the management issued an order in which the two workmen
were described as copy-holders. It was alleged that in spite of this order the
management continued to give the workmen the work of proof-readers. A dispute
whether the two workmen should be treated as proof readers having arisen and
having been espoused by the Delhi Union of Journalists, the Delhi
Administration, by a notification dated AUgust 2, 1961 referred it to the
Industrial Tribunal, Delhi.
The management contended that the said
dispute was an individual dispute and not an industrial dispute and that that
being so it was wrongly referred to the Tribunal and the Tribunal had no
jurisdiction to adjudicate it. The Tribunal raised the preliminary issue,
namely, whether the dispute relating to the said two workmen was an industrial
dispute. The Tribunal held that 915 it was not an industrial dispute but was
only an individual dispute of the two workmen and therefore it had no
jurisdiction to adjudicate the said reference. The workmen obtained special
leave from this Court and that is how this appeal has come up before us for
disposal.
Apart from the oral evidence, the appellants
relied on two documents, Ex. WWI/A, which purported to be the minutes of a
meeting held on November 15, 1960 of 17 working journalists and Ex. WB/1
purporting to be the minutes of a meeting of the executive committee of the
Delhi Union of Journalists held on December 1, 1960. The union maintained that
these two resolutions were proof of espousal of the dispute, the first by an
appreciable number of the co- workers of the two aggrieved workmen and the
second by the union and therefore the dispute though originally an individual
dispute was converted into an industrial dispute.
The Tribunal rejected Ex. WW1/A, namely, the
minutes of the alleged meeting of the 17 working journalists in the employ of
the respondent company as unreliable. The Tribunal next considered whether,
even assuming that the said 17 working journalists espoused the cause of the
two workmen that espousal transformed the dispute in question into an
industrial dispute, in other words, whether they constituted an appreciable
number sufficient to change the dispute into an industrial dispute. At the material
time the Branch office of the respondent company at Delhi consisted in all of
388 employees, out of whom 140 were working in the Press. The working
journalists numbered 131, out of whom 63 were outstation correspondents and the
remaining 68 were working journalists performing their duties in Delhi and New
Delhi. The Tribunal held that though the said 63 working journalists were
outstation journalists they nevertheless belonged to the staff of the
respondent company's Delhi Branch, and therefore, could not be excluded from
consideration. The question which the Tribunal posed to itself was whether 17
out of the said 131 working journalists could be said to be an appreciable
number.
According to the Tribunal, even if those 63
outstation correspondents were excluded and only 68 working journalists were
considered, 17 of them would not constitute an appreciable number sufficient to
convert the said dispute into an industrial dispute. It also held that mere
passing of a resolution without anything done to follow it up was not
sufficient to constitute espousal. There was no evidence that after passing the
said alleged resolution on November 15, 1960 anything further was done. On
these facts the Tribunal did not consider the aforesaid resolution, assuming
that it was passed, as constituting espousal.
As regards the resolution dated December 1,
1960 the minutes of the meeting of the executive committee of the Delhi Union
of Journalists were produced before the Tribunal. The minutes 916 stated that
the meeting after considering the representation made to it by the employees of
the Indian Express decided to take up the case of the two workmen and
authorised the office bearers of the union to initiate the necessary
proceedings. The Tribunal found that the union initiated a fresh dispute before
the Conciliation Officer and that there was no pending case initiated earlier,
i.e., before December 1, 1960 by another union as alleged by the appellants
which could have been continued by the union. A copy of the statement of claim
filed by the union before the Conciliation Officer was also produced before the
Tribunal.
There was evidence that 31 working
journalists employed in the respondent company had become the members of the
Delhi Union of Journalists. But they had joined the union after the said order
of July 1959. The Tribunals' view was that the said 31 working journalists
having joined the Delhi Union of Journalists after the cause of action had
arisen in July 1959, the said resolution of the union's executive committee
would not constitute espousal as there would be no nexus between the dispute
and the union, and therefore, the resolution dated December 1, 1960 did not
have the effect of converting the said dispute into an industrial dispute.
Mr. Ramamurti, for the appellants, contended
that the resolution dated December 1, 1960 coupled with the fact that the union
initiated conciliation proceedings in respect of the demand of the said two
workmen was sufficient to transform the dispute into an industrial dispute. On
the other hand, Mr. Gupte, appearing for the company, contended that a dispute
which is prima facie an individual dispute may assume the character of an
industrial dispute if it is taken up or espoused by an appreciable body of the
workmen of the establishment. Espousal by a union is regarded as sufficient,
for, that means that it is an espousal by an appreciable number of workmen in
that establishment. If such a dispute is espoused by an outside union, the
workmen of the establishment, appreciable in number, must be members of such a
union. On these contention, the question for our determination is whether the
Delhi Union of Journalists can be said to have espoused the dispute of the two.
workmen; if so, whether it did in time, and whether the union not being
exclusively a union of the workmen employed in the* respondent company, could
espouse the said cause.
The resolution dated December 1, 1960 passed
by the executive committee of the union was not disbelieved by the Tribunal.
That, coupled with the fact that the union authorities initiated the
conciliation proceeding, must mean that the union had espoused the cause of the
two workmen.
The dispute arose in July 1959 when the
management refused to treat the two work- 917 men as proof-readers. Thereafter
the executive committee, after considering a representation made to it by the
employees of the respondent company, as the resolution reads, passed the said
resolution authorising the office bearers of the union to initiate proceedings
in the matter of the said dispute and the secretary accordingly initiated
proceedings before the conciliation officer. In these circumstances, it is not
possible to appreciate how the espousal by the union can be said to be beyond
time as such espousal can only take place after and not before the dispute
arose, or as counsel put it, the cause of action arose. In The Bombay Union of
Journalists v. The Hindu, Bombay(x) this Court in clear terms laid down that
the test of an industrial dispute is whether at the date of the reference the
dispute was taken up and supported by a union, or by an appreciable number of
workmen. There being no doubt of the union having taken up the cause of the two
workmen before the reference the first two parts of the question must be
answered in the affirmative.
The next question is whether the cause of a
workman in a particular establishment in an industry can be sponsored by a
union which is not of workmen of that establishment but is one of which
membership is open to workmen of other establishments in that industry. In
Central Provinces Transport Services Ltd. v. Raghunath Gopal Patwardhan(2) this
Court noted that decided cases in India disclosed three views as to the meaning
of an industrial dispute: (1) a dispute between an employer and a single workman
cannot be an industrial dispute, (2) it can be an industrial dispute and (3 )
it cannot per se be an industrial dispute but may become one if taken up by a
trade union or a number of workmen. After discussing the scope of industrial
dispute as defined in sec. 2(k) of the Act it observed that the preponderance
of judicial opinion was-clearly in favour of the last of the three views and
that there was considerable reason behind it. In the Newspapers Ltd. v. The
State Industrial Tribunal, U.P.(3) the third respondent was employed as a lino
typist by the appellant company. On an allegation of incompetence he was
dismissed from service.
His case was not taken up by any union of
workers of the appellant company, nor by any of the unions of workmen employed
in similar or allied trades. But the U.P. Working Journalists Union, Lucknow,
with which the third respondent had no concern, took the matter to the
Conciliation Board.
On a reference being made to the Industrial
Tribunal by the Government the legality of that reference was challenged by the
appellant company on the ground that the said dispute could not be treated as
an industrial dispute under the U.P.
Industrial Disputes Act, 1947' which defined
by sec. 2 an industrial dispute as having the same (1) [1962] 3 S.C.R. 893. (2)
[1956] S.C.R. 956.
(3) [1957] S.C.R. 754.
918 meaning assigned to it in sec. 2(k) of
the Central Act. This Court upheld the contention observing that the notification
referring the said dispute proceeded on an assumption that a dispute existed
between the employer and "his workmen", that Tajammul Hussain, the
workman concerned, could not be described as "workmen", nor could the
U.P. Working Journalists Union be called "his workmen" nor was there
any evidence to show that a dispute had got transformed into an industrial
dispute. The question whether the union sponsoring a dispute must be the union
of workmen in the establishment in which the workman concerned is employed or
not had not so far arisen. It seems. such a question arose for the first time
in the case of Bombay Union of Journalists v. The Hindu, Bombay(1). The
decision in that case laid down (1) that the Industrial Disputes Act excluded
its application to an individual dispute as distinguished from a dispute
involving a group of workmen unless such a dispute is made a common cause by a
body or a considerable section of workmen and (2) the members of a union who
are not workmen of the employer against whom the dispute is sought to be raised
cannot by their support convert an individual dispute into an industrial
dispute. Persons who seek to support the cause must themselves be directly and substantially
interested in the dispute and persons who are not the employees of the same
employer cannot be regarded as so interested. The Court held that the dispute
there being prima facie an individual dispute it was necessary in order to
convert it into an industrial dispute that it should be taken up by a union of
the employees or by an appreciable number of employees of Hindu, Bombay. The
Bombay Union of Journalists not being a union of the employees of the Hindu,
Bombay, but a union of all employees in the industry of journalism in Bombay,
its support of the cause of the workman concerned would not convert the
individual dispute into an industrial dispute. The members of such a union
cannot be said to be persons substantially and directly interested in the
dispute between the workman concerned and his employer, the Hindu Bombay. But
in Workmen v, M/s. Dharampal Premchand(2) this Court, after reviewing the
previous decisions, distinguished the case of Hindu, Bombay and held that
notwithstanding the width of the words used in sec. 2(k) of the Act a dispute
raised by an individual workman 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, that a union may validly raise a dispute though it may be a minority
union of the workmen employed in an establishment that if there was no union of
workmen in an establishment a group of employees can raise the dispute which
becomes an industrial dispute even though it is a dispute relating to an
individual (1) [19623] S.C.R. 893. (1) [1965] 3 S.C.R.
394.
919 workman, and lastly, that where the
workmen of an establishment have no union of their own and some or all of them
have joined a union of another establishment belonging to the same, industry,
if such a union takes up the cause of the workman working in an establishment
which has no union of its own, the dispute would become an industrial dispute
if such a union can claim a representative character in a way that its support
would make the dispute an industrial dispute.
The evidence of the union secretary was that
in 1959-60, 31 working journalists of the respondent company were members of
the Delhi Union of Journalists. It was nobody's case that these 31 members did
not continue to be the members of that union in 1960-61 also. If the number of
working journalists in the respondent company were to be taken as 68 membership
of the union by as many as 31 working journalists would certainly confer on the
union a representative character. Even if the number of working journalists
were to be taken as 131, it woUld not be unreasonable to say that 31, i.e.,
about 25 % of them would, by becoming the members of the union, give a
representative character to the union. It is clear from the evidence that at
the material time there was no union of working journalists employed by the
respondent company. Therefore, in accordance with the decision in the Workmen
v. M/s. Dharampal Premchand(1) the union can be said to have a representative
character qua the working journalists employed in the respondent company. There
can be no doubt that the union had taken up the cause of the two workmen by its
executive committee passing the said resolution and its office bearers having
followed up that resolution by taking the matter before the conciliation
officer. Though the grievance of the two workmen arose in July 1959 when the
management declined to accept them as proof-readers the union had sponsored
their cause before the date of reference as laid down in the case of Hindu,
Bombay. 'That being the position it cannot be gainsaid that the dispute was
transformed into an industrial dispute as it was sponsored by a union which
possessed a representative character vis-a- vis the working journalists in the
employ of the respondent company.
We must, therefore, hold that the Tribunal's
view that the dispute was not an industrial dispute was incorrect.
The award, therefore, will have to be set
aside and the appeal of the workmen allowed. There will be no order as to
costs.
R.K.P.S. Appeal allowed.
(1) [1963] 3 S.C.R. 394.
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