http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: RAM PRASAD VISHWAKARMA

       Vs.

RESPONDENT: THE CHAIRMAN, INDUSTRIAL TRIBUNAL

DATE OF JUDGMENT: 12/12/1960

BENCH: GUPTA, K.C. DAS BENCH: 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 repre- sentation 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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.

JUDGMENT: 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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 repre. sented 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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  dis- putes,  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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 excep- tional  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. Appeal dismissed 204