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CASE NO.: Appeal (civil)  1089 of 2005

PETITIONER: J.H. Jadhav                                      

RESPONDENT: M/s. Forbes Gokak Ltd.                   

DATE OF JUDGMENT: 11/02/2005

BENCH: Ruma Pal & C.K. Thakker

JUDGMENT: J U D G M E N T (Arising out of SLP (c) No.19025 of 2004) RUMA PAL, J.

Leave granted.

The appellant was employed by the respondent.  He  claimed promotion as a clerk.  When this was not granted,  the appellant raised an industrial dispute.  The question  whether the appellant was justified in his prayer for  promotion with effect from the date that his juniors were  promoted was referred to the Industrial Tribunal by the  State Government.  In their written statement before the  Tribunal the respondent denied the appellant’s claim for  promotion on merits.  In addition, it was contended by the  respondent that the individual dispute raised by the  appellant was not an industrial dispute within the meaning  of Section 2(k) of the Industrial Disputes Act, 1947, as the  workman was neither supported by a substantial number  of workmen nor by a majority union. The appellant claims  that his cause was espoused by the Gokak Mills Staff  Union.  Before the Tribunal, apart from examining himself, the  General Secretary of the Union was examined as a witness  in support of the appellant’s claim.  The General Secretary  affirmed that the appellant was a member of the Union and  that his cause has been espoused by the Union.   Documents including letters written by the Union to the  Deputy Labour Commissioner, as well as the objection filed  by the Union before the Conciliation Officer were adduced  in evidence. The Tribunal came to the conclusion that in  view of the evidence given by the General Secretary and  the documents produced, it was clear that the appellant’s  cause had been espoused by the Union which was one of  the Unions of the respondent employer. On the merits, the  Tribunal accepted the appellant’s contentions that  employees who were junior to him have been promoted as  clerks.  It noted that no record had been produced by the  respondent to show that the Management had taken into  account the appellant’s  production records, efficiency,  attendance or behaviour while denying him promotion.  The  Tribunal concluded that the act of the respondent in  denying promotion to the appellant amounted to unfair  labour practice.  An award was passed in favour of the  appellant and the respondent was directed to promote the  appellant as a clerk from the date his juniors were  promoted and to give him all consequential benefits.          The award of the Industrial Tribunal was challenged  by the respondent by way of a writ petition.  A Single Judge

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dismissed the writ petition.  The respondent being  aggrieved filed a writ appeal before the Appellate Court.  The Appellate Court construed Section 2(k) of the Industrial  Disputes Act 1947 and came to the conclusion that an  individual dispute is not an industrial dispute unless it  directly and substantially affects the interest of  other  workmen.  Secondly it was held that an individual dispute  should be taken up by a Union which had representative  character or by a substantial number of employees before  it would be converted into an industrial dispute neither of  which according to the Appellate Court, had happened in  the present case. It was held that there was nothing on  record to show that the appellant was a member of the  Union or that the dispute has been espoused by the Union  by passing any resolution in that regard.           The definition of  "Industrial Dispute" in Section 2(k) of  the Act shows that an Industrial Dispute means any dispute  or difference between an employer 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 the employment or with  the condition of labour, of  any person.  The definition has  been the subject matter of several decisions of this Court  and the law is well settled. The locus classicus  is the  decision in  Workmen of M/s. Dharampal Premchand  (Saughandhi) Vs. M/s. Dharampal Premchand  (Saughandhi) 1965 (3) SCR 394 where it was held that for  the purposes of Section 2(k) it must be shown that(1) the  dispute is connected with the employment or non  employment of a workman. (2) the dispute between a  single workman and his employer was sponsored or  espoused by the Union of workmen or by a number of  workmen.  The phrase "the union" merely indicates the  Union to which the employee belongs even though it may  be a Union of a minority of the workmen. (3) the  establishment had no union on its own and some of the  employees had joined the Union of another establishment  belonging to the same industry. In such a case it would be  open to that Union to take up the cause of the workmen if it  is sufficiently representative of those workmen, despite the  fact that such Union was not exclusively of the workmen  working in the establishment concerned. An illustration of  what had been anticipated in Dharam Pal’s case is to be  found in  the Workmen of Indian Express Newspaper  (Pvt.) Ltd. Vs. Management of Indian Express  Newspaper Private Ltd. AIR 1970 SC 737 where an  ’outside’ union was held to be sufficiently representative to  espouse the cause.         In the present case, it was not questioned that the  appellant was a member of the Gokak Mills Staff Union.  Nor was any issue raised that the Union was not of the  respondent establishment.  The objection as noted in the  issues framed by the Industrial Tribunal was that the Union  was not the majority Union.  Given the decision in Dharam  Pal’s case, the objection was rightly rejected by the  Tribunal and wrongly accepted by the High Court. As far as espousal is concerned there is no particular  form prescribed to effect such espousal.  Doubtless, the  Union must normally express itself in the form of a  resolution which should be proved if it is in issue. However  proof of support by the Union may also be available  aliunde. It   would   depend   upon   the   facts of each  case. The Tribunal had addressed its mind to the question,  appreciated the evidence both oral and documentary and  found that the Union had espoused the appellant’s cause.  

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The Division Bench misapplied the principles of  judicial review under Article 226 in interfering with the  decision.  It was not a question of there being no evidence  of espousal before the Industrial Tribunal.  There was  evidence which was considered by the Tribunal in coming  to the conclusion that the appellant’s cause had been  espoused by the Union. The High Court should not have  upset this finding without holding that the conclusion was  irrational or perverse. The conclusion reached by the High  Court is therefore unsustainable. For all these reasons the decision of the High Court  cannot stand and must be set aside.          Learned counsel appearing for the respondent then  submitted that the matter may be remanded back to the  Division Bench of the High Court as the Court had not  considered the other arguments raised by the respondent  while impugning the award of the Industrial Tribunal. It  appears from the impugned decision that the only other  ground raised by the respondent in the Writ Appeal was  that the grievance of the appellant had been belatedly  raised.  We have found from the decision of the Industrial  Tribunal that no such contention had been raised by the  respondent before the Tribunal at all.  We are not prepared  to allow the respondent to raise the issue before the High  Court.         The respondent finally submitted that pursuant to the  disciplinary proceedings initiated against the appellant in  the meanwhile, the appellant had been dismissed from  service and that the order of dismissal was the subject  matter of a separate industrial dispute. We are not  concerned with the proprietary of the order of dismissal  except to the extent that the appellant cannot obviously be  granted actual promotion today.  Nevertheless, he would  be entitled to the monetary benefits of promotion pursuant  to the award of the Industrial Tribunal which is the subject  matter of these proceedings uptil the date of his dismissal.  Any further relief that the appellant may be entitled to must  of necessity abide by the final disposal of the industrial  dispute relating to the order of dismissal which is said to be  pending.          We therefore allow the appeal and set aside the  decision of the High Court. The award of the Industrial   Tribunal is  confirmed subject  to the modification that the  promotion granted by the award will be given effect to  notionally for the period as indicated by the award up to the  date of the appellant’s dismissal from service.  Reliefs in  respect of the period subsequent to the order of dismissal  shall be subject to the outcome of the pending industrial  dispute relating to the termination of the appellant’s  services.  If the termination is ultimately upheld, the  appellant will be entitled only to the reliefs granted by us  today.  If on the other hand the termination is set aside, the  appellant will be entitled to promotion as granted by the  award.