Shambu Nath Goyal Vs. Bank of Baroda,
Jullundur  INSC 21 (2 February 1978)
CITATION: 1978 AIR 1088 1978 SCR (2) 793 1978
SCC (1) 352
R 1985 SC 915 (3) F 1989 SC1565 (13)
Industrial Disputes Act 1947--Sec. 2(k)-Sec.
10--Before an industrial dispute is referred whether a written demand by the
workman is essential--Existence of industrial dispute.
The appellant was a clerk in the Bank of
Baroda. A charge sheet was served upon him. After holding departmental enquiry
he was dismissed from service. An appeal filed by the workman against the
dismissal was dismissed.
Thereafter, the matter was referred to
conciliation. On failure of conciliation, the Government referred the dispute
to the Industrial Tribunal under section 10 of the Industrial Disputes Act,
1947. The respondent raised a preliminary objection before the Tribunal that as
no demand in respect of the appellant was made upon the management there was no
industrial dispute in existence and, therefore, the reference made by the
Government under section 10 was incompetent. The Tribunal upheld the said
preliminary objection on the ground that as no demand was made by the
Government either oral or in writing before approaching the conciliation
officer there was no dispute in existence on the date of the reference.
Allowing the appeal,
HELD : 1. Section 2(k) of the Act defines
industrial dispute which requires that there should be a dispute connected with
the employment or nonemployment or terms of employment inter alia between the
employers and workmen. The Act nowhere contemplates that the dispute would come
into existence in any particular specific or prescribed manner. For coming into
existence of an industrial dispute a written demand is not sine qua non.
[795 B-C] Beetham v. Trinidad Cement Ltd.,
 1 All E.R. 244 at 249, referred to.
2. The key words in the definition of
Industrial dispute are dispute or difference. The term industrial dispute
connotes a real and substantial difference having some element of persistency
and continuity till resolved and likely if not adjusted to endanger the
industrial peace of the undertaking or the community. To read into definition
the requirement of written demand for bringing into existence an industrial
dispute would tantamount to rewriting the section. The power conferred by
section 10(1) on the Government to refer the dispute can be exercised not only
where the industrial dispute exists but when it is also apprehended. In making
a reference under section 10(1) the Government is doing an administrative act
and the fact that it has to form an opinion as to the factual existence of an
industrial dispute as a preliminary step to the discharge of its function does
not make it any the less administrative in character. [795 D-E, F-H, 796 A]
Madras State v. C. P. Sarathy, AIR 1953 SC 52 and Sindhu Resettlelment
Corporation Ltd. v. Industrial Tribunal,  LLJ 834, referred to.
3. The question whether an industrial dispute
exists on the date of reference is a question of fact to be determined on the
material placed before the Tribunal. [796 D]
4. 'In the present case the Tribunal
completely misdirected itself when it observed that no demand was made by the
workman claiming reinstatement after dismissal. When the enquiry was held it is
an admitted position that the workman appeared and claimed reinstatement. After
his dismissal he 794 preferred an appeal to the appellate forum and contended
that the order of dismissal was wrong and that in any event he should be
reinstated in service. When the Union approached the Conciliation Officer,the
Management appeared and contested the claim for reinstatement. There is thus unimpeachable
evidence that the concerned workman persistently demanded reinstatement. [796
E-H, 797 A]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 646 of 1971.
Appeal by Special Leave from the Award dated
25-10-1970 of' the Central Industrial Tribunal, Chandigarh in Reference No.
3/C of 1970 published in the Gazette of
India, Part 11, Section 3, Sub-section (11) dated 28-11-1970.
M. K. Garg for the appellant.
Ex parte against the respondent.
The Judgment of the Court was delivered by
DESAI, J. This appeal by special leave arises out of an award made by
Industrial Tribunal, Chandigarh in Reference No. 3/C of 1970 between S. N.
Goyal, workman and the management of the Bank of Baroda, by which the
industrial dispute raised by the workman complaining about his illegal
dismissal from service and seeking reinstatement was rejected holding that in
the absence of any demand having been made by the concerned workman on the
respondent bank and consequently no industrial dispute having come into
existence the Government was not competent to refer the dispute to the
'Tribunal for adjudication.
S. N. Goyal, workman was a clerk in the Bank
of Baroda, B.O.
Civil Lines, Jullundur City. A charge-sheet
dated 31st July, 1965 was served upon him whereafter an inquiry into charges
was held and ultimately the workman was dismissed from service, against which
the workman unsuccessfully appealed. The industrial dispute arising out of the
dismissal of the workman was espoused by Punjab Bank Workers Union. On the
failure recorded by Conciliation officer, Government of India made the
reference in the following terms :
" Whether the action 'of the management
of Bank of Baroda in dismissing Shri S. N. Goyal a clerk of Civil Lines Branch,
Jullundur of the Bank was justified ? If not, to what relief is he entitled
?" The Union filed statement of claim. The Bank of Baroda in its written
statement raised a preliminary objection that as no demand in respect of Shri
S. N. Goyal was made upon the management, there was no industrial dispute in
existence and therefore the reference made by the Government under s. 10 of the
Disputes Act was incompetent. There was another preliminary objection with
which we are not concerned in this appeal. The first preliminary objection
found favour with the Industrial Tribunal which upheld the contention that as
no demand either oral or in writing was made by the concerned workman before
approaching the Conciliation Officer, there was no dispute in existence on the
date of the reference and therefore the reference made by the Government was
795 Section 2(k) defines industrial dispute
as under :
"industrial dispute" means any
dispute or difference between employers 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 employment or with the conditions of labour
of any person;" A bare perusal of the definition would show that where
there is a dispute or difference between the parties contemplated by the
definition and the disputes or difference is connected with the employment or
nonemployment or the terms of employment or, with the conditions of labour of
any person there comes into existence an industrial dispute.
The Act nowhere contemplates that the dispute
Would come into existence in any particular, specific or prescribed manner. For
coming into existence of an industrial dispute a written demand is not a sine
,qua non, unless of course in the case of public utility service, because s. 22
forbids going on strike without giving a strike notice. The key words in the
definition of industrial dispute are 'dispute' or 'difference'. What is the
connotation of these two words. In Beetham v. Trinidad Cement Ltd.(1). Lord
Denning while examining the definition of expression 'Trade dispute' in s. 2(1)
of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:
"by definition a 'trade dispute' exists
whenever a 'difference" exists and a difference can exist long before the
parties become locked in a combat. It is not necessary that they should have
come to blows.
It is sufficient that they should be sparring
for an opening".
Thus the term 'industrial dispute' connotes a
real and Substantial ,difference having some element of persistency and
continuity till resolved and likely if not adjusted to endanger the industrial
peace of the Undertaking or the community. When parties are at variance and the
dispute or difference is connected with the employment, or non- employment or
the terms of employment or with the conditions of labour there comes into
existence an industrial dispute.
To read into definition the requirement of
written demand for bringing into existence an industrial dispute would
tentamount to re-writing the section.
The reference in the case before us was made
under s. 10(1) which provides inter alia that where the appropriate government
is of opinion that any industrial dispute exists or is apprehended it may at
any time by order in writing refer the matter for adjudication as therein
mentioned. The power conferred by s. 10(1) on the Government to refer the
dispute can be exercised not only where an industrial dispute exists but when
it is also apprehended. From the material placed before the Government,
Government reaches an administrative decision whether there exists an
industrial dispute or an industrial dispute is apprehended and in either event
it can exercise its power under s. 1 0 ( 1 ).
But in making a reference under s. 10(1) the
Government is doing (1)  1 All E.R. 244 at 249.
796 an administrative act and the fact that
it has to form an opinion as to the factual existence of an industrial dispute
as a preliminary step to the discharge of its function does not make it any
the, less administrative in character. The Court cannot therefore, canvass the
order of reference closely to see, if there was any material before the Govern-
ment to support its conclusion, as if it was a judicial or quasi judicial
determination. No doubt it will be open to a party seeking to impugn the
resulting award to show that what was referred by the Government was not an
industrial dispute within the meaning of the Act, and that, therefore, the
Tribunal had no jurisdiction to make the award. But, if the dispute was an
industrial dispute as defined in the Act, its factual existence and expediency
of making a reference in the circumstances of a particular case are matters
entirely for the Government to decide upon and it will not be competent for the
Court to hold the reference bad and quash the proceedings for want of
jurisdiction merely because in its opinion there was no material before the
Government on, which it could have come to an affirmative conclusion of those
matters, (vide Madras State v. C. P.
Sarthy(1). The Tribunal, however, referred to
the decision of this Court in Sindhi Resettlement Corporation Ltd. v.
Industrial Tribunal(2), in which this Court
proceeded to ascertain whether there was in existence an industrial dispute at
the date of reference, but the question whether in case of an apprehended
dispute Government can make reference under S. 10(1) was not examined. But that
apart the question whether an industrial dispute exists at the date of reference
is a question of fact to be determined on the material placed before the
Tribunal with the cautions enunciated in C. P. Sarthy's case (Supra). In the
case before us, it can be shown from the record accepted by the Tribunal itself
that there was in existence a dispute which was legitimately referred by the
Government to the Industrial Tribunal for adjudication. Undoubtedly, it is for
the Government to be satisfied about existence of the dispute and the
Government does appear to be satisfied.
However, it would be open to the party
impugning the reference that there was no material before the Government, and
it would be open to the Tribunal to examine the question, but that does not
mean that it can sit in appeal over the decision of the Government and come to
a conclusion that there was no material before the Government.
In this case the Tribunal completely
misdirected itself when it observed that no demand was made by the workman
claiming reinstatement after dismissal. When the inquiry was held, it is an
admitted position, that the workman appeared and claimed reinstatement. After
his dismissal he preferred an appeal to the Appellate forum and contended that
the order of dismissal was wrong, unsupported by evidence and in any event he
should be reinstated in service. If that was not a demand for reinstatement
addressed to employer what else would it convey. That appeal itself is a
representation questioning the decision of the Management dismissing the
workmen from service and praying for reinstatement. There is further a fact
that when (1) A.I.R. 1953 S.C. 53.
(2)  L.L.J. 843.
797 the Union approached the Conciliation
Officer the Management appeared and contested the claim for reinstatement.
There is thus unimpeachable evidence that the concerned workman persistently
demanded reinstatement. If in this background the Government came to the
conclusion that there exists a dispute concerning workman S. N. Goyal and it
was an industrial dispute because there was demand for rein- statement and a
reference was made such reference could hardly be rejected on the ground that
there was no demand and the industrial dispute did. not come into existence.
Therefore, the Tribunal was in error in
rejecting the reference on the ground that the reference was incompetent.
Accordingly this appeal is allowed and the
Award of the Tribunal is set aside and the matter is remitted to tribunal for
disposal according to law. The respondent shall pay costs of the appellant in
this Court. As the reference is very old the Tribunal should dispose it of as
expeditiously as possible.