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PETITIONER: WESTERN INDIA MATCH CO.  LTD.

       Vs.

RESPONDENT: WESTERN INDIA MATCH CO.  WORKERS UNION & ORS.

DATE OF JUDGMENT: 09/01/1970

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. VAIDYIALINGAM, C.A. REDDY, P. JAGANMOHAN

CITATION:  1970 AIR 1205            1970 SCR  (3) 370  1970 SCC  (1) 225  CITATOR INFO :  RF         1975 SC2057  (12)  R          1979 SC 170  (7)  F          1985 SC 915  (3)

ACT: Industrial   Dispute-Union  espousing  cause  of   dismissed workman-If  such workman should be member of the  Union-U.P. Industrial Disputes Act (28 of 1947), s. 4(k) and Industrial Disputes  Act  (14 of 1947), s. 10-’At any time’  scope  of- Refusal  by Government to refer dispute for  adjudication-If and when Government can reconsider decision.

HEADNOTE: The  appellant terminated the service of a workman in  1957. At  that time he was not a member of  the  respondent-union. The  respondent however, espoused the cause of  the  workman and took up the matter before the Conciliation Officer.  Two of   the   union’s  office-bearers   appeared   before   the Conciliation  Officer but the Conciliation Officer  did  not recognise  them as authorised agents of the union,  because, there  were  some  disputes regarding  their  election.   He therefore  recorded that the conciliation proceedings  could not be proceeded with on the ground that no authorised agent of  the union appeared before him at the  proceedings.   The State Government assumed, that though the union had espoused the  workman’s  cause,  it had not cared to  appear  at  the conciliation  proceedings at all, and refused to  refer  the industrial dispute for adjudication. In 1962, the workman became a member of the respondent-union and the union again took up the matter with the  Government. After some correspondence, in which it was pointed out  that in  fact  two  officers  of the  union  did  appear  at  the conciliation  proceedings,  the State Government,  in  1963, referred the dispute for adjudication. On the question of the validity of reference, HELD  :  (1) Under s. 4(k) of the U.P.  Industrial  Disputes Act.  1947,  if the State Government is of opinion  that  an industrial dispute exists or is apprehended, it may, at  any time,  refer the dispute for adjudication.   The  expression ’of  any time’, does not confer an unfettered  or  arbitrary

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discretion on the Government.  At whatever time the  Govern- ment  decides  to refer a dispute  for  adjudication,  there must,  at that time, exist an industrial dispute or  such  a dispute must be apprehended. [373 F; 377 F-G] (2)Though  a  dispute  may  initially  be  an   individual dispute, the other workmen may espouse it on the ground that they have a community of interest and that they are directly and   substantially  interested  in  the  employment,   non- employment  or  conditions of employment  of  the  concerned workman.   Therefore, when the existence of  the  industrial dispute  is  challenged,  the test is  whether  the  dispute referred  to adjudication is one in which the workmen  or  a substantial  section of them have a direct  and  substantial interest.   The espousal by the other workmen may be at  the time when the cause of the dispute occurs or later, because, the workmen may not, at the time when the dispute occurs, be sufficiently organised to espouse his cause or there may not have  been  a  union at that time.  Since  no  reference  is contemplated by s. 4(k) when the dispute is not an 371 industrial  dispute,  or,  even if it is so,  it  no  longer exists or is not apprehended, the existence of the community of  interest,  evidenced  by  the  espousal  converting   an individual  dispute into an industrial dispute, must  be  at the  date when the reference is made and not necessarily  at the date when the cause occurs. Further, the community of interest does not depend on whether theconcerned    workman was a member or not of the union at the date whenthe  cause occurred.  The question of the work-man’s membership has tobe kept  apart from the right of the other Work-men to  espouse his cause and the power of the Government under s. 4(k).  In the  present case, the reference was competent  because  the fact  that the workman was not a member of the union on  the date when the cause of the dispute arose did not preclude or negative  the existence of. the community of  interest,  nor did it disable the other workmen, through their union,  from making  that dispute their own. [375 B-E, G-H; 376  A-B,  D; 382 A-B, D-E) Workmen v. Management of Dimakuchi Tea Estate, [1958] S.C.R. 1156,  Bombay  Union of Journalists v. The  Hindu,  Bombay,. [1962]  3 S.C.R. 893 Workmen of Indian Express (P)  Ltd.  v. The  Management,  [1969] 1 S.C. Cases 228,  and  Workmen  v. Dharampal Premchand. [1965] 3 S.C.R. 394 followed. Muller  & Phipps (India) (P) Ltd. v. Their  Employees  Union [1967]  2  L.L.J. 222 and Workmen v.  Jamadoba  Colliery  of Tata,  Tata  Iron  & Steel Co.  Ltd. [1967]  2  L.L.J.  663, referred to. Padarthy  Ratnam  &  Co. v. industrial  Tribunal,  [1958]  2 L.L.J.  290, Shamsuddin v. State of Kerala, [1961] 1  L.L.J. 77   and  Khadi  Gramodyog  Bhawan  Workers’  Union  v.   E. Krishnamurthy, A.I.R. 1966 Punjab 173, overruled. (3)The  Government’s  function is to refer a  dispute  for adjudication so thatindustrial   relations   may    not continue to remain disturbed, and -not todecide      the merits  of the dispute.  Therefore, it cannot be  held  that once  the  Government  has refused to  refer  a  dispute  to adjudication, it cannot change its mind on a reconsideration of  the matter, either because new facts have come to  light or  because it had misunderstood the existing facts  or  for any  other  relevant consideration, and decide to  make  the reference.   Where,  however,  it  reconsiders  its  earlier decision  and  makes a reference it can do so  only  if  the dispute is an industrial one and either exists at that stage or is apprehended, and the reference must be with regard  to

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only  that industrial dispute.  Further, though it does  not affect  the  jurisdiction  of  the  Government  to  make   a reference, before doing so, the Government should take  into account  the  lapse  of time and any  inconvenience  to  the employer,  and should not allow itself to be stampeded  into making References in cases of old or stale disputes or allow the  revival  of such disputes on the  pressure  of  outside agencies. [378 A-C; 381 B-E] In  the  present case, the Government’s refusal  to  make  a reference at the earlier stage on the ground that the  union had not cared to appear at the conciliation proceedings, was based  on a misapprehension.  Therefore, if  the  Government subsequently  found that its earlier decision was  based  on such  a misapprehension, and on facts brought to its  notice it reconsidered the matter and decided to make the reference since  the  dispute was ’still subsisting, it could  not  be said  that  the  exercise of the  discretion  was  improper, merely  because,  four years had elapsed since  its  earlier decision not to make the reference. [381 F-H; 382 B-D] 372 State of Madras v. C. P. Sarathy, [1953] S.C.R. 334, 346 and Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal, [1968] 1 L.L.J. 834, 839, followed. Gurumurthi  v. Ramulu, [1958] 1 L.L.J. 20, Vasudeva  Rao  v. State  of  Mysore [1963] 2 L.L.J.  717,  Rawalpindi  Victory Transport  Co. (P) Ltd. v. State of Punjab, [1964] 1  L.L.J. 644,  Champion  Cycle Industries v. State of U.P.  [1964]  1 L.L.J.  724,  Goodyear (India) Ltd.,  Jaipur  v.  Industrial Tribunal,  [1968] 2 L.L.J. 682 and Rewa Coal Fields Ltd.  v. Industrial Tribunal, A.I.R. 1969 M.P. 174, approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1914 of 1968. Appeal  by special leave from the judgment and  order  dated March 12, 1968 of the Allahabad High Court in Special Appeal No. 301 of 1966. C.K.  Daphtary,  R. N. Banerjee, P. N. Tiwari and  0.  C. Mathur, for the appellant. S.C. Agarwala, R. K. Garg and S. Chakravarty, for respon- dents Nos. 1 and 3. The Judgment of the Court was delivered by Shelat,  J. On May 9, 1956 the  appellant-company  appointed respondent  3 as a foreman on probation for a period of  six months.   On expiry of that period the  probationary  period was  extended from time to time and ultimately respondent  3 was transferred to the labour office of the company.  On May 29,   1957,  while  respondent  3  was  still  serving   his probationary  period,  the company terminated  his  service. The matter was thereupon taken up by respondent 1 before the Regional  Conciliation Officer, Bareilly who registered  the case  as  Case  No. 83B/57.   For  the  reasons  hereinafter stated,  no conciliation could be arrived at and  the  State Government  declined  to make a reference  for  adjudication under  the U.P. Industrial Disputes Act,  1947  (hereinafter called the Act).  On the said refusal, respondent 3 filed  a writ  petition in the High Court for a mandamus.   The  High Court dismissed the petition on the ground that the decision of  the State Government to refer or not to refer a  dispute for  adjudication was a matter of its discretion.   By-about the   end   of  1962  the  respondent-union   made   further representation  to  the State Government and  by  its  order dated August 28, 1963 the Government made a reference of the dispute  regarding  the said termination of the  service  of

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respondent  3 to the Labour Court for adjudication.  By  its order  dated  March 22, 1965 the Labour Court  rejected  the reference  on  the  ground  that  there  was  no  industrial dispute, and therefore, the reference was not  maintainable. Respondents  I to 3 thereupon ’filed a writ petition in  the High Court which was allowed by a learned Single Judge.   An appeal against the said order filed by 373 the  appellant  -company  was dismissed.   This  appeal,  by special  leave,  is directed against the order of  the  High Court dismissing the appellant-company’s writ petition. Counsel for the appellant-company, in support of the appeal, raised  the following points : (1) Was it possible  for  the respondent-union to validly espouse the cause of  respondent 3 when he was not a member at the date when his service  was terminated  Even if it was, was there in fact an espousal so as  to  convert his individual dispute  into  an  industrial dispute  ? (2) Do the words "at any time" in s. 4(k) of  the Act  have  any limitations, or can the  Government  refer  a dispute,  for  adjudication  after the lapse  of  about  six years,  as in this case, after the accrual of the  cause  of the  dispute ? (3) In what circumstances can the  Government refer  such  a dispute for adjudication  after  it-has  once refused to do so ? The definition of ’industrial dispute’ in s. 2(l).of the Act is in the same language as that in s. 2(k) of the Industrial Disputes  Act, 1947.  The expression  ’industrial  dispute’, therefore,  must bear the same meaning as it is assigned  to that expression in the Central Act.  It is now  well-settled by a long series-of decisions that notwithstanding the  wide language  of the definition in s. 2(k) of the  Central  Act, the dispute contemplated there is not an individual  dispute but   one  involving  a  substantial  number  of   work-men. However, a dispute, though originally an individual dispute, may become. an industrial dispute if it were to be  espoused and  made  a  common  cause by workmen as a  body  or  by  a considerable  section  of them.  Section 4(k)  of  the  Act, therefore, must be held to empower the Government to make  a reference  of  such  a dispute only  for  adjudication.   It provides that where the State Government is of opinion  that any industrial dispute exists or is apprehended, it may,  at any  time,  by  order  in writing,  refer  the  dispute  for adjudication  to a labour court or to a  tribunal  depending upon  whether  the matter. of the industrial  dispute  falls under one or the other Schedule to the Act. The  first question that falls for determination is  whether where  a  dispute is originally an  individual  dispute  but becomes an industrial one as a result of its being  espoused by a union or,a substantial number of workmen, the concerned workman should have been a member of such union at the  time when  the cause of such dispute arises.  It appears that  at one  time there was a conflict of judicial opinion  on  this question.   Some  of the High Courts took the view  that  in order  that an individual dispute may be converted  into  an industrial dispute on, as aforesaid, its being espoused by a substantial number of workmen, the concerned workman must be a  member  of the union at the time of the  accrual  of  the cause  of the dispute.  Thus, in Padarthy, Ratnam &  Co.  v. Industrial Sup.   CI(NP)70-9 374 Tribunal(1)  the  High Court of Andhra Pradesh held  that  a dispute simpliciter between an employer and a workman  might develop into an industrial dispute if the cause is  espoused by a union of which he is a member, and that the  membership

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of the union which would give it the jurisdiction to espouse his cause must be anterior to the date of the dismissal  and not subsequent to it.  A similar view was also taken by  the High Courts of -Kerala and Punjab. (see Shamsuddin v.  State of  Kerala(’) and Khadi Grainodyog Bhawan Workers’ Union  v. E.  Krishnamurthy,  Industrial  Tribunal(’).   In  a   later decision, however, the High Court of Punjab appears to  have taken a contrary view.  In Muller & Phipps (India) (P)  Ltd. v.  Their  Employees’ Union(’) the dispute  related  to  the retrenchment of a workman and the failure of the employer to re-employ  him in spite of its having re-employed two  other employees out of their turn as against the turn of the  con- cerned workman.  The High Court rejected the employer’s con- tention  that the espousal of the union was not valid as  it was  made  after the retrenched workman had  ceased  on  his being  retrenched to be a member of the union on the  ground that if that contention were to be upheld it would mean that no union can ever espouse the cause of a retrenched workman. In  Workmen v. Jamadoba Colliery of Tata Iron and Steel  Co. Ltd.(’),  the union which espoused the causE of the  workman came  into  existence  after  his  dismissal.   The  workman naturally  became its member after his dismissal.  The  High Court  disagreed with the Tribunal, which had  rejected  the reference,  ’and  held  that even if, oN  the  date  of  the dismissal  of  a  workman, the  dispute  was  an  individual dispute,,   it  may  under  some  circumstances  become   an industrial dispute on the date of the reference and that the validity of the reference has to be judged on the facts,  as they stand on the date of the reference and not at the  date of the dismissal.  Therefore, even if there was no union  at the date of the workman’s dismissal to espouse his cause, if such  a union comes into existence before the reference  and the  dismissed  workman  becomes its member  and  the  union thereupon  espouses his cause that would be sufficient.   It also held that there was no principle in support of the view that  the  union  must be in existence at the  time  of  the dismissal. After the decision by this Court in Workmen v. Management of Dimakuchi  Tea Estate(") there can be no doubt  that  though the  words "any person" in the definition of  an  industrial dispute  in  s. 2 (k) of the Central Act are very  wide  and would  on  a mere literal interpretation include  a  dispute relating  to  any  person, considering the  scheme  and  the objects of the Act all disputes are not industrial  disputes and that a dispute becomes an industrial dis- (1)  [19581 2 L.L.J. 290. (2)  [1961] 1 L.L.J. 77. (3)  A.I.R. 1966 Pun. 173. (4)  [1967] 2 L.L.J. 222. (5)  [1967] 2 L.L.J. 663. (6)  [19581 S.C.R. 1156. 375 pute where the person in respect of whom it is raised is one in whose employment, non-employment, terms of employment or. conditions  of  labour  the parties to the  dispute  have  a direct  or substantial interest.  The  question,  therefore, which  would  arise  in cases where  the  existence  of  the industrial  dispute  is  challenged, is  whether  there  was between the parties to the reference, i.e, the employer  and his  workmen,  an industrial dispute.  The  parties  to  the industrial   dispute  are  obviously  the  parties  to   the reference,  and therefore the dispute must be an  industrial dispute  between such parties.  It follows, therefore,  that though a dispute may initially be an individual dispute, the workmen may make that dispute as their own, that is to  say,

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espouse  it  on  the ground that they have  a  community  of interest  and are directly and substantially  interested  in the employment, non-employment, or conditions of work of the concerned workman.  This premise pre-supposes that though at the  date when the cause of the dispute arises that  dispute is  an  individual  dispute, such a dispute  can  become  an industrial  dispute  if it is spoused by the  workmen  or  a substantial section of them after the cause of the  dispute, e.g.,  dismissal,  has taken place.  It may be that  at  the date of such dismissal there is no union or that the workmen are  not sufficiently organised to take up the cause of  the concerned  workman  and no espousal for that  or  any  other reason takes place at the time when such cause occurs.   But that  cannot  mean that because there was no such  union  in existence  on  that  date,  the  dispute  cannot  become  an industrial one if it is taken up later on by the-union or by a  substantial  section of the workmen.  If it  is  insisted that the concerned workman must be a member of the union  at the  date of his dismissal, the result would be that  if  at that  period  of time there is no union in  that  particular industry  and  it  comes into existence later  on  then  the dismissal  of  such  a workman can never  be  an  industrial dispute  although  the  other workmen have  a  community  of interest  in the matter of his dismissal, and the cause  for which or the manner in which his dismissal is brought  about directly  and substantially affects the other workmen.   The only  condition  for an individual dispute turning  into  an industrial  dispute, as, laid down in the case of  Dimakuchi Tea  Estate(), is the necessity of a community  of  interest and  not  whether  the concerned workman was or  was  not  a member  of  the  union at the time of  his  dismissal.   The parties  to  the  reference  being  the  employer  and   his employees, the test must necessarily be whether the  dispute referred  to adjudication is one in which the workmen  or  a substantial  section of them have a direct  and  substantial interest  even  though such a dispute relates  to  a  single workman.   It  must  follow that the existence  of  such  an interest,  evidenced by the espousal by them of  the  cause, must  be  at  the date when the reference is  made  and  not necessarily at the date when the cause occurs, otherwise, as aforesaid, in some (1)  [1958] S.C.R. 1156. 376 cases  a  dispute  which was originally  an  individual  one cannot become an industrial dispute.  Further, the community of  interest  -does  not depend  on  whether  the  concerned workman  was  a  member or not at the date  when  the  cause occurred, for, without his being a member the dispute may be such that other workmen by having a common interest  therein would be justified in taking up the dispute as their own and espousing it. Any  controversy  on  the  question  as  to  whether  it  is necessary  for  a concerned workman to be a  member  of  the union  which  has espoused his cause at the time  when  that cause arose has been finally set. at rest by the decision in Bombay Union of Journalists v. The "Hindu", Bombay(’)  where this  Court  laid down that the test whether  an  individual dispute got converted into an industrial dispute depended on whether  at the date of the reference the dispute was  taken up  and supported by the union of workmen of  the  ,employer against whom the dispute was raised by an individual workman or  by  an  appreciable number of such  workmen.  (see  also Workmen  v.  M/s  Dharampal Premchand (2 )  and  Workmen  of Indian  Express  (P)  Ltd.  v.  The  Management  (I).    The argument, therefore, that the reference in this case was not

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competent on the .ground that the concerned workman was  not a member of the union at the date when the cause giving rise to  the dispute arose, -and that therefore, the union  could not  have  espoused  the  dispute  to  convert  it  into  an industrial dispute is not correct and cannot be upheld,. The next question is whether the expression "at any time" in s. 4(k) means what its literal meaning connotes, or  whether in  the context in which it is used it has any  limitations. Counsel  for the company argued that the  concerned  workman was  admittedly not a member of the respondent-union in  the beginning of 1959 when the State Government refused to  make the  reference, that he became a member of  the  respondent- union  in  July  1962,  that  it  was  thereafter  that  the respondent-union  revived the said dispute which had  ceased to be alive after the Government’s said refusal and that  it was  at the instance of the Union that the Government  later on  ,changed its mind and in August 1963 agreed to make  the reference.   The contention was that the  Government  having once  declined  to refer the dispute, could not  change  its mind  after  a lapse of nearly six years after  the  dispute arose and that though the expression "at any time" does  not apparently  signify any limit, it must be construed to  mean that  once the Government had refused to make the  reference after considering the matter and the -employer thereupon had been led to believe that the dispute was not to be  agitated in a tribunal and had consequently made his own arrangement, the Government cannot, on a further agitation by the (1) [1962] 3 S.C.R. 893. (2) [1965] 3 S.C.R. 1994. (3)  [1991] 1 S.C. Cases 228. 377 union,  take  a  somersault  and  decide  to  refer  it  for adjudication.   It was argued that if it were so,  it  would mean  that a workman, who after termination of his  service, has already obtained another employment, can still go to the union,  become its member and ask the union to  agitate  the dispute  by  espousing it.  Such an  action,  if  permitted, would cause dislocation in the industry as when the employer has in the meantime made his own arrangement by appointing a substitute in place of the dismissed workman on finding that the   latter  had  already  found  other  employment.    The legislature,  the argument proceeded, could not,  therefore, have used the words "at any time" to mean after any,  length of time. From  the words used in s. 4(k) of the Act there can  be  no doubt  that the legislature has left the question of  making or  refusing  to make a reference for adjudication  to,  the discretion of the Government.  But the discretion is neither unfettered  nor arbitrary for the section  clearly  provides that  there must exist an industrial dispute as  defined  by the  Act  or  such a dispute must be  apprehended  when  the Government  decides  to  refer  it  for  adjudication.    No reference thus can be made unless at the time when the- Gov- ernment decides to make it an industrial dispute between the employer and his employees either exists or is  apprehended. Therefore,  the expression "at any time".  though  seemingly without  any limits, is governed by the context in which  it appears.   Ordinarily,  the question of making  a  reference would  arise after conciliation proceedings have  been  gone through  and  the conciliation officer has  made  a  failure report.   But  the  Government need not wait  until  such  a procedure has been completed.  In an urgent case, it can "at any time", i.e., even when such proceedings have not  begun. or  are  still  pending, decide to  refer  the  dispute  for adjudication.   The expression "at any time" thus  takes  in

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such  cases  as  where  the Government  decides  to  make  a reference  without waiting for conciliation  proceedings  to begin or to be completed.  As already stated, the expression "at any time" in the context in which it is used  postulates that  a reference can only be made if an industrial  dispute exists  or is apprehended.  No reference is contemplated  by the  section when the dispute is hot an industrial  dispute, or  even  if  it  is  so, it no  longer  exists  or  is  not apprehended,  for,instance, where it is already  adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is  no longer in existence. In  the State of Madras v. C. P. Sarathy(1) this Court  held on construction of s. 1 0 ( 1 ) of the Central Act that the, function  of  the appropriate Government  thereunder  is  an administrative function.  It was so held presumably  because the Government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication so that the industrial relations bet- (1)  [19531 S.C.R. 334, at 346. 378 ween  the  employer and his employees may  not  continue  to remain  disturbed and the dispute may be resolved through  a judicial  process as speedily as possible.  In the light  of the nature of the function of the Government and the  object for  which  the  power  is conferred  on  it,  it  would  be difficult  to hold that once the Government has  refused  to refer, it cannot change its mind on a reconsideration of the matter  either because new facts have come to light  or  be- cause  it  had misunderstood the existing facts or  for  any other   relevant  consideration  and  decide  to  make   the reference.  But where it reconsiders its earlier decision it can make the reference, only if the dispute is an industrial one  and either exists at that stage or is  apprehended  and the  reference it makes must be with regard to that  and  no other   industrial   dispute.  (Cf.    Sindhu   Resettlement Corporation,  Ltd. v. Industrial Tribunal(’).  Such  a  view has been taken by the High Courts of Andhra Pradesh, Madras, Allahabad,  Rajasthan,  Punjab  and  Madhya  Pradesh.   (see Gurumurthi  (G.) V. Ramulu (K.)(’) Vasudeva Rao v. State  of Mysore(’) Rawalpindi Victory Transport Co. (P) Ltd. v. State of  Punjab(’),  Champion Cycle Industries v. State  of  U.P. (5),  Goodyear (India) Ltd., Jaipur v.  Industrial  Tribunal (6)  and  Rewa  Coal Fields  Ltd.  v.  Industrial  Tribunal, Jabalpur ( 7 ) . The reason given in these decisions is that the function of the Government either under s. 10(l) of  the Central  Act  or a similar provision in a  State  Act  being administrative,  principles such as res judicata  applicable to judicial Acts do not apply and such a principle cannot be imported for consideration when the Government first refuses to  refer  and later changes its mind.  In  fact,  when  the Government refuses to make a reference it does not  exercise its  power;  on the other hand it refuses  to  exercise  its power  and  it  is only when it decides  to  refer  that  it exercises  its  power.   Consequently, the  power  to  refer cannot  be said to have been exhausted when it has  declined to  make a reference at an earlier stage.  There is  thus  a considerable body of judicial opinion according to which  so long  as an industrial dispute exists or is apprehended  and the  Government is of the opinion that is so, the fact  that it  had  earlier  refused to exercise  its  power  does  not preclude  it from exercising it at a later stage.   In  this view,  the mere fact that there has been a lapse of time  or that a party to the dispute was, by the earlier refusal, led to  believe that there would be no reference and  acts  upon

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such  belief,  does  not  affect  the  jurisdiction  of  the Government to make the reference. It  appears  that there was a controversy  before  the  High Court  whether there was at all any espousal of the  dispute by the respon- (1)  [19681 1 L.L.J. 834, 839. (2)  [1958] 1 L.L.J. 20. (3)  [1963] 2 L.L.J. 717. (4)  [19641 1 L.L.J. 644. (5)  [1964] 1 L.L.J. 724. (6)  [1968] 2 L.L.J. 682. (7)  A.I.R. [19691 M.P. 174. 379 dent-union,  and  if  there was, at what  stage.   The  High Court,  therefore, got produced before it the record  before the   conciliation  officer.   Strictly  speaking,   in   a- proceeding  for certiorari under Art. 226, the record  which would be produced before the High Court would be that of the Tribunal  whose order is under challenge.  But if  the  High Court  got produced in the interests of justice the file  of the  conciliation  officer which alone  could  show  whether there  was  espousal  by  the union or  not,  no  one  could reasonably object to the High Court calling for that  record for  the  purpose of ascertaining whether the stand  of  the union  that  it had taken up the cause of respondent  3  was correct or not. As the High Court has said, that file showed that on July 2, 1957  one Har Sahai Singh, the then President of the  union, had complained to the Regional Conciliation Officer  against the  termination  of service of respondent 3  and  following that  complaint, respondent 3 had filed a written  statement dated September 4, 1957 which was counter-signed by the said Har  Sahai  Singh  in  his capacity  as  the  President  and presumably,  therefore, on behalf of the union.  The  record also  indicated  that on that very day, i.e.,  September  4, 1957,  the Conciliation Officer recorded an order  that  the conciliation proceedings could not be proceeded with as  "no authorised   agent"  of  the  union  appeared  before   him. Presumably, the Conciliation Officer in course of time  must have  made  his  failure  report.   From  these  facts   the following   conclusions   must  emerge  :   (1)   that   the Conciliation  Officer had taken cognisance of  the  dispute, (2) that he took that dispute as having been espoused by the union  through  its president, (3) that thereupon  he  fixed September  4, 1957 as the date for holding the  conciliation proceedings  and informed the parties to attend before  him, and (4) that as "no authorised agent" on behalf of the union appeared  before  him,  he recorded  that  the  conciliation proceedings could not go on. These facts clearly go to  show that  the then president of the union had not made the  said complaint  in  his personal capacity but  as  the  president representing  the  union.  This is borne out  to  a  certain extent  by a subsequent resolution of the executive body  of the  union dated February 28, 1.963 which recites  that  the executive  committee of the union will continue to  take  up the cause of respondent 3 as it had been so far doing.   But Mr.  Daphtary emphasised that even this resolution  did  not mean  that the union had taken up the cause of respondent  3 as its own since the resolution uses the word ’pairavi’  and not  espousing or sponsoring the workman’s cause.   Pairavi, according to him, means acting as the agent of a party to  a proceeding  and  not being a party to the  proceeding  which would  be the position had the union taken up the  Complaint as  its  own.   In  our  view  we  need  not  look  at   the said .resolution in so narrow a manner, for, the facts taken

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as a whole indicate that the union had in fact taken up  the cause  of  the workman.  The President evidently  could  not have countersigned the 380 written   statement  of  the  concerned  workman   and   the Conciliation  Officer could not have given a notice  to  the union to appear before him and could not have recorded  that he  did not proceed with the conciliation proceedings as  no authorised  agent  of the union appeared before  him  unless every  one understood that the union had taken up the  cause of  the workman.  The notice dated August 2, 1957 issued  by the  Conciliation  Officer  after the  union  President  had lodged his said complaint is on record and shows that it was issued to the management and the union calling upon both  of them  to  appoint their respective  representatives  on  the conciliation board as required by the Government Order dated July  14, 1954.  It also shows that the Officer treated  the dispute  as having been espoused by the union as the  notice recites the dispute as an industrial dispute. . The subsequent facts would seem to indicate that the Govern- ment  declined to make the reference presumably  because  of the report of the Conciliation Officer that in spite of  the said  notice no authorised agent of the union  had  appeared before him and therefore no conciliation had been  possible. As already stated, a writ petition to compel the  Government to  make the reference proved unsuccessful.  It may be  that the  respondent-union  may  have decided to  press  for  the reference  after  the concerned workman became  its  member. That  fact, however, is irrelevant for the purposes  of  the jurisdiction  of  the Government under s. 4(k).   One  fact, however,  is  clear  that the  respondent-union  carried  on correspondence with the Labour Ministry and also passed  the said resolution dated February 28, 1963.  The correspondence which  was carried on from- about November 1962  shows  that the  union pressed the Government to make the reference  and the Government ultimately made the reference in August 1963. That correspondence further shows that the Government at one stage  pointed  out  that the union had in  1957  failed  to appear  before  the  Conciliation Officer  although  it  had espoused  the dispute and that that fact had influenced  the Government’s   refusal  then  to  refer  the   dispute   for adjudication.   The union pointed out (1) that at  the  time when  the  said  complaint was lodged  in  1957  before  the Conciliation  Officer the union’s ’president was one  Varma, (2)  that in the meantime elections for the  union’s  office bearers took place when the said Har Sahai Choudhury and one Girish  Chandra Bharati were elected president and  working- president   respectively’  (3)  that   the   above-mentioned individuals  appeared before the conciliation  officer,  but the  said Varma did not, as he had failed in the  elections, (4)  that  dispute arose about the said  elections  and  the Registrar of the Trade Union-, refused to recognise the  new office bearers, and (-I) that the conciliation officer  also refused  to  recognise  the said  Har  Sahai  Choudhary  and Bharati   a,;  the  duly  elected  president   and   working president, and therefore, although both of 381 them attended the meeting fixed by that officer, the  latter recorded that no authorised agent of the union had  appeared before him and no conciliation, therefore, could be  arrived at.  It thus appears from the correspondence that  following the  espousal of the said dispute by the union, two  of  the office   bearers  of  the  union  did  appear   before   the conciliation   officer  but  were  not  recognised  as   the authorised  agents  of  the union on  account  of  the  said

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disputes about the elections.  If the Government, therefore, had  refused then to make the reference on the  ground  that though  the union had espoused -the workman’s cause  it  had not  cared  to appear at the conciliation  proceedings,  the Government’s  decision  refusing to make the  reference  was clearly on misapprehension.  If the Government  subsequently found  that  its  earlier  decision  was  based  on  such  a misapprehension  and  on  facts brought  to  its  notice  it reconsiders the matter and decides to make the reference  it is  difficult  to  say  that  it  exercised  the  discretion conferred  on  it by s. 4 (k) in any  inappropriate  manner. But that does not mean that if s. 4(k) is construed to  mean that  the  Government can reconsider its  earlier  decision. such a construction would result in unions inducing  workmen to  join them as members or to shift their  membership  from one  to the other rival union on promises by such  union  to revive disputes which are already dead or forgotten and then press  the  Government to make a reference  in  relation  to them . There is no reason to think that the Government would not  consider  the  matter properly or allow  itself  to  be stampeded  into making references in cases of old  or  stale disputes  or  reviving  such disputes  on  the  pressure  of unions. It is true that where a Government reconsiders its  previous decision and decides to make the reference, such a  decision might  cause  inconvenience  to  the  employer  because  the employer in the meantime might have acted on the belief that there would be no proceedings by way of adjudication of  the dispute  between him and his workmen.  Such a  consideration would,  we  should  think.  be taken  into  account  by  the Government  whenever,  in  exercise of  its  discretion,  it decides  to  reopen its previous decision as also  the  time which  has lapsed between its earlier decision and the  date when  it decides to reconsider it.  These are matters  which the  Government  would  have  to  take  into  account  while deciding whether it should reopen its former decision in the interest of justice and industrial peace but have nothing to do with its juris diction under S. 4(k) of the Act.  Whether the   intervening  period  may  be  short  or   long   would necessarily depend upon the facts and circumstances of  each case,  and therefore, in construing the expression  "at  any time"  in  s. 4(k) it would be impossible to  lay  down  any limits to it. In  the  present case though nearly four years had  gone  by since the earlier decision not to-make the reference, if the Government 382 was satisfied that its earlier decision had been arrived  at on a mis-apprehension of facts, and therefore, required  its reconsideration,  neither  its  decision to do  so  nor  its determination to make the reference can be challenged on the ground of want of power.  The fact that the dispute  between the  concerned  workman  and the management  had  become  an industrial dispute by its having been espoused by the  union since  1957 cannot be disputed.  The fact that  the  workman was  then  not a member of the union does  not  preclude  or negative the existence of the community of interest nor  can it  disable  the,  other workmen through  their  union  from making that dispute their own.  The fact that the Government refused  then  to exercise its power cannot  mean  that  the dispute  had  ended or was in any manner resolved.   In  the absence of any material it Is not possible to say that  with the refusal of the Government then and the dismissal of  the writ  petition by the High Court in March 1959 the  dispute, which  was  already  an industrial dispute,  had  ceased  to

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subsist  or that on respondent 3 joining the union  in  July 1962 the union -revived a dispute which was already dead and not in existence.  His becoming a member in July 1962 was as immaterial  to the power of the Government under s. 4(k)  as the  fact  -of his not being a member at the time  when  his cause  was  espoused in 1957 by the union  and  the  dispute becoming  thereupon an industrial dispute.  The question  of his  membership,  therefore, haS to be kept apart  from  the right  of  the other workmen to espouse his  cause  and  the power  of the Government under s. 4(k).  It may be that  his becoming  a  member in 1962 may have been the cause  of  the union’s  subsequent  efforts to persuade the  Government  to reconsider its decision and make a reference on proper facts being placed before it and its earlier misapprehensions  re- moved.    But  that  again  has  nothing  to  do  with   the jurisdiction of the Government under s. 4(k) of the Act. In our view, the appellant-company fails on both the  points and  its  appeal against the High Court’s  decision  becomes unsustainable.   Accordingly,  we dismiss  the  appeal  with costs. V.P.S.                     Appeal dismissed. 383