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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: THE GANDHARA TRANSPORT COMPANY (P) LTD ANDOTHERS

DATE OF JUDGMENT26/04/1973

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. REDDY, P. JAGANMOHAN

CITATION:  1975 AIR  531            1974 SCR  (1)  98  1975 SCC  (4) 838

ACT: Industrial  Disputes  Act  (14  of  1947)  s.   2(k)-Dispute espoused  by  five  out of the  total  sixty  workmen-If  an industrial dispute.

HEADNOTE: The  respondent company dismissed three of its  workmen  and retrenched  another employee.  Some of the workers  demanded the  reinstatement of the dismissed workmen and  payment  of retrenchment  compensation  to the  retrenched  workmen  and raised  a dispute about the matter.  The-  State  Government referred  the  dispute to the Labour  Court  The  management raised the objection that there was no industrial dispute in as much as the cause of the workmen had not been espoused by a  substantial  body  of the workmen of  the  company.   The Labour  Court rejected the objection.  In a  writ  petition, the  High  Court  held that there were  60  workmen  in  the employment  of the respondent company, out of whom  only  18 workmen  have  espoused  the  cause  of  the  dismissed  and retrenched  employees, and even out of these 18  workmen  13 had already been dismissed and that therefore, only 5 out of 60  workmen  had  espoused the cause of  the  dismissed  and retrenched  workmen; and hence, it could not be said that  a substantial  body of the workmen had espoused the  cause  of the  workmen and therefore, there was no industrial  dispute which could be referred. Dismissing the appeal to this Court, HELD:     The  State  Government will have  jurisdiction  to make a reference only if there     is an industrial dispute. As the espousal of the dispute in the present case was only by  five  out of sixty employees it could not be  said  that there has been an espousal of the dispute in this case by an appreciable body of the workmen of the respondent-company so as  to  make it an industrial dispute.  Since there  was  no industrial   dispute.  the  reference  made  by  the   State Government  had  been rightly held by the High Court  to  be incompetent. [161E-F] Workmen  of  Rohtak  General  Transport  Company  v.  Rohtak General   Transport   Company,   [1962]   1   L.L.J.    634, distinguished.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 449 of 1969. Appeal  by  special  leave  from  the  judgment  and   order September  10, 1968 of the Punjab and Haryana High Court  at Chandigarh in L.P. No. 108 of 1966. V. C. Mahajan and R. N. Sachthey, for the appellant. Bishen Narain and Harbans Singh, for respondent No. 1. The Judgment of the Court was delivered by VAIDIALINGAM, J. This appeal, by special leave, is  directed against  the  judgment and order dated the  10th  September, 1968, of the Division Bench of the High Court of Punjab  and Haryana in L.P.A. No. 108 of 1966, confirming the order’  of the  learned single Judge and holding that the order of  the State  Government  dated  the 5th March,  1962  referring  a dispute for adjudication was incompetent. The  respondent  company  dismissed  three  of  its  workmen between the 15th December, 1959 and 6th January, 1960 and it also retrenched another employee on the 7th February’  1960. The District Motor Transport Workers’ Union appears to  have raised  a dispute with the-management on the 17th  November, 1960 and demanded the reinstate-  99 ment  of  the dismissed workmen as well as  the  payment  of retrenchment  compensation  regarding the  workman  who  was retrenched.   The  demand not having been met  with  by  the management   and  conciliation  having  failed,  the   State Government  was  approached for making a  reference  of  the dispute for adjudication.  On the 9th June, 1960, the  State Government declined to make a reference.  A further  attempt was  made to persuade the State Government by  the  ’workmen concerned to make a reference, but that attempt also failed, as will be seen from the order dated the 29th July 1961.  In this  order,  the State Government had stated  that  out  of sixty  workmen employed in the concern, only 18 workmen  had supported   the  demand  and  these  18  included   thirteen dismissed  workers of ’the company.  It is the further  view of  the Government that as a substantial number  of  workmen had  not espoused the cause of the dismissed workmen,  there was  no  industrial  dispute which  could  be  referred  for adjudication.   It  is to be noted from this  order  of  the State Government that out of the 18 workmen, who are  stated to have espoused the cause of the workmen in this case, only five  were in the employment of the respondent  company  and thirteen  others  were  workmen of the  respondent  who  had already   been  dismissed  from  service.    Therefore,   he espousing  of the cause of the present workmen was  only  by five  workmen, who were, at the relevant time,  actually  in the employ of the company. Another  attempt  appears to have been made  to  induce  the State  Government  to  make a reference and  this  time  the attempt succeeded, as will be seen from the order dated  the 5th  March,  1962.  The State Government,  which  had  twice refused  to  make  a reference, acceded  this  time  to  the request of the workmen and referred for adjudication to  the Labour Court, Rohtak, the following two questions :-               "1.   Whether  termination  of   services   of               Sarvashri  Manmohan  Singh,  Jagir  Singh  and               Inderjit.   Singh is justified and in order  ?               If not, to what relief they are entitled ?               2.    Whether   the   retrenchment   of   Shri               Mohinder ’Singh, Booking Clerk, is  justified,               and  in order ? If not, to what relief  he  is               entitled ?" When the Labour Court commenced the, proceedings in  respect

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of  this  dispute,  the management  raised  two  preliminary objections.  We are concerned with only the first objection. namely, that the dispute that has been referred by the State Government  for  adjudication is not an  industrial  Dispute under  section 2(k) of the Industrial Disputes Act  inasmuch as  the  cause  of the workman had not been  espoused  by  a substantial body of the workmen of the Company.  Tie  Labour Court accepted the plea of the workmen that the dispute  was industrial  dispute and overruled the preliminary  objection raised in that regard by the management. The  company  filed a writ petition in the  High  Court  for quashing  the  order  of the Labour Court as  well  as  the. reference made by the State Government.  The learned  single Judge  accepted the plea of the management that the  dispute in question had not been sponsored by a substantial body  of the  workmen  of the respondent company, and in  this  view, held that the order of reference was incompetent. 100 The  workmen  did not challenge the decision of  the  single Judge.  But the State challenged the same in Letters  Patent Appeal  before  a  Division Bench of the  High  Court.   The Division  Bench  has agreed with the views  of  the  learned single  Judge  and  confirmed his  order  holding  that  the reference  made  by the State  Government  was  incompetent. According to the findings of the learned single Judge, which have  been accepted by the Division Bench. the  position  is that  on the 17th November, 1960, when the espousal  of  the cause  of  the dismissed and retrenched  workmen  was  made, there  were  sixty workmen in the employ of  the  respondent company.   It  has  also  been found  that  the  demand  was supported  by 18 workmen, namely, five workmen, who were  in the  employ of the respondent and thirteen others,  who  had already  been dismissed from service.  The view of the  High Court  is  that  having due regard to the  strength  of  the workmen, namely’ sixty, and the admitted position that  only five of the workmen then in employ espoused the dispute,  it cannot be stated that a substantial body of the workmen have espoused   the  cause  of  the  dismissed   and   retrenched employees. Mr. V. C. Mahajan, learned counsel for the appellant, has no doubt strenuously urged that the view of the learned  single Judge  and the Division Bench is erroneous.  In  support  of his  contention,  the  learned counsel referred  to  us  the decision  of  this  Court  in  Workmen  of  Rohtak   General Transport  Company v. Rohtak General  Transport  Company(1). He pointed out that the facts in that case show that  though only  five out of twenty-two workmen espoused the  cause  of the dismissed employee, it was held by this Court that  five workmen  could  be  considered  to  form  a  substantial  or appreciable  body  of the workmen of the company  and  hence there  was  an  industrial  dispute  giving  power to  the Government  to refer the same for adjudication.  Based  upon this  decision, the counsel urged that as it has been  found in the present case that out of the total of sixty  workmen, five  have supported the cause of the workmen concerned,  it must  also  be held that there has been an espousal  of  the dispute  by  an appreciable number of the employees  of  the company  and that there is an industrial dispute, which  was properly referred by the Government. It  is  no doubt true that on a superficial reading  of  the above  decision, it can be stated that an espousal  by  five out  of twenty-two workmen will amount to a sponsoring of  a dispute  by  an  appreciable  body  of  the  workmen  of  an employer.   We will assume that the said decision lays  down such  a  proposition.  Even applying the ratio of  the  said

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decision-  to the case on hand, the proportion is very  low, being  five  to  sixty.   That  means  only  1/12th  of  the employees in  the  establishment  of  the  management  has espoused  the  cause  of the  dismissed  workmen.   Such  an espousal,  in our opinion, cannot be considered to be by  an appreciable or substantial body of workmen so, as to consti- tute the dispute an industrial dispute. In  our  opinion, the above decision does not lay  down  the proposition  that  whenever five out of  twenty-two  workmen sponsor a dispute or in such proportion, there is always an espousal of the cause by a (1)  [1962] (1) LLJ 634. 101 substantial or appreciable body of workmen so as to make the dispute an industrial dispute.  No such proposition, in  our opinion,  is laid down by this Court in the said  decision. If  the said decision is care fully read, it will  be  clear that  the  workmen  therein relied  on  certain  resolutions passed  by all the employees of the company  supporting  the cause  of  the dismissed workmen.  Further, there  was  also material  on  record  to show that the  cause  of  dismissed employees  was  taken up by a union. It was in view  of  all these  circumstances, added to the fact that the  management therein  had  not challenged those items of  evidence,  that this Court held in the particular circumstances of that case that  there has been a proper espousal of the cause  of  the dismissed employees so as to make the dispute an  industrial dispute.   This  decision,  therefore,  does  not  give  any assistance to the appellant. In  this connection it must be stated that the  workmen  did not   plead  even  before  the  Tribunal  that  any   union, representative of the workmen, has taken up the dispute.  On the  other hand, the sole contention that was raised  before the  Labour Court for justifying the order of reference  was that the espousal of the cause of the dismissed workmen  has been  by  an  appreciable  number  of  the  workmen  of  the respondent’s  establishment.   In view of this,  it  is  not necessary   for   us   to  consider   whether   any   union, representative  of the workmen concerned, has  espoused  the cause of the workmen in this case.  In fact, we do not  find from  the  judgment  either of the single Judge  or  of  the Division  Bench that any such plea was even advanced by  the workmen.   In  fact the Labour Court has held that  no  such plea was taken by the workmen. The sponsoring by the 13 dismissed employees will have to be left  out  of consideration.  If so, we are  left  with  the position that the espousal of the dispute, in this case, was only  by  five  out of sixty employees  of  the  respondent- company.  It cannot in the circumstances, be held that there has  been  an  espousal of the dispute in this  case  by  an appreciable body of the workmen of the respondent-company so as  to make it an Industrial Dispute.  The State  Government will have jurisdiction to make a reference only if there  is an Industrial Dispute.  As there was no Industrial  Dispute, the reference made by the State Government has been  rightly held by the High Court to be, incompetent. The  appeal fails and is dismissed with costs of  the  first respondent. V.P.S.                       Appeal dismissed. 102