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PETITIONER: SHAMBU NATH GOYAL

       Vs.

RESPONDENT: BANK OF BARODA, JULLUNDUR

DATE OF JUDGMENT02/02/1978

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KRISHNAIYER, V.R.

CITATION:  1978 AIR 1088            1978 SCR  (2) 793  1978 SCC  (1) 352  CITATOR INFO :  R          1985 SC 915  (3)  F          1989 SC1565  (13)

ACT: 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.

HEADNOTE: 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., [1960] 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

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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, [1968] 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]

JUDGMENT: 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 :

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             "  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 Industrial 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 incompetent. 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.

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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)  [1960] 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

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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) [1968] 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. P.H.P.                              Appeal allowed. 798