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PETITIONER: WORKMEN OF M/S DHARAMPAL PREMCHAND(SAUGHANDHI)

       Vs.

RESPONDENT: M/S.  DHARAMPAL PREMCHAND (SAUGHANDHI)

DATE OF JUDGMENT: 16/03/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. RAMASWAMI, V.

CITATION:  1966 AIR  182            1965 SCR  (3) 394  CITATOR INFO :  R          1970 SC 737  (7,8)  E          1970 SC1205  (6)  R          1978 SC 828  (16)

ACT: Industrial Disputes Act 1947 (14 of 1947), ss. 2(k), 10  and 36--"Industrial  dispute"-Meaning-Dismissed  Employees  only members of Union-Union raises dispute-Maintainability.

HEADNOTE: Out of 45 employees of the respondent, 18 had become members of a Trade Union.  Later, these 18 employees were  dismissed by  an order passed on the same day.  The Union took up  the cause  and  ultimately  the  dispute  was  referred  to  the Tribunal,  where  the  respondent  raised  the   preliminary objection  that  the reference was invalid inasmuch  is  the dispute  referred  to  the Tribunal was  not  an  industrial dispute  but was merely an individual dispute,  and  besides these dismissed employees no other employees of the  respon- dent  was a member of the Union, and so the Union could  not raise  the  dispute.  This was upheld by the  Tribunal.   In appeal by special leave; HELD:The appeal must be allowed. The definition of "industrial dispute" in s. 2(k) shows that before any dispute raised by any person can be said to be an industrial  dispute, it must be shown that it  is  connected with the employment or non-employment of that person.   This condition is satisfied in the present case. [396 D] Having  regard to the broad policy underlying the Act,  this Court  and  indeed a majority of  Industrial  Tribunals  are inclined to take the view that notwithstanding the width  of the  words  used  by  the Act  in  defining  an  "industrial dispute"  it  would be expedient to require that  a  dispute raised  by a dismissed employee cannot become an  industrial dispute,  unless it is supported either by his Union or,  in the absence of a Union by a number of workmen. [397 B-C] Considerations  which  would be relevant in dealing  with  a dispute  relating  to an  individual  employee’s  dismissal, would  not be Material in dealing with a case where a  large number  of  employees have been dismissed on the  same  day.

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[399 G-H] A  Union  of  workmen  may validly raise  a  dispute  as  to dismissal  even though it may be a union of minority of  the workmen  employed in any establishment.  Similarly if  there is  no  union of workmen in any establishment,  a  group  of employees can raise the dispute and the dispute then becomes an industrial dispute, though it may relate to the dismissal of an individual employee. [399 H] In  a  given case it is conceivable that the workmen  of  an establishment have no union of their own and some or all  of them  join the union of another establishment  belonging  to the same industry.  In such a case if the said union take up the  cause of the workmen working in an establishment  which has  no union of its own, it would be unreasonable  to  hold that  the  dispute  does not become  an  industrial  dispute because  the Union which has sponsored it is not  the  union exclusively  of  the workmen working  in  the  establishment concerned.  In every case where industrial adjudication  has to decide 395 whether  a  reference  in  regard to  the  dismissal  of  an industrial  employee  is  validly made or not  it  would  be necessary  to inquire whether the Union which has  sponsored the  case  can fairly claim a representative  character,  in such  a  way  that its support to the case  would  make  the dispute an industrial dispute. [400 F-H] Besides,  18  workmen, dismissed by an order passed  on  the same day, themselves form a group of workmen which would  be justified in supporting the cause of one another. [401 C] Central  Provinces  Transport  Service  v.  Raghunath  Gopal Patwardhan, [1956] S.C.R. 956 and The Newspapers Ltd. v. The State  Industrial Tribunal, U.P., [1957] S.C.R. 754,  relied on. Bombay Union of Journalists v. The Hindu, Bombay, [1961]  11 L.L.J. 436, explained and distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 532 of 1963. Appeal  by  special leave from the Award dated  February  9, 1962,  of the Industrial Tribunal, Delhi in I.D. No. 294  of 1961. Sukumar Ghose, for the appellant. S.   V.  Gupte,  Solicitor-General,  S.  Murthy  and  B.  P. Maheshwari, for the respondent. The Judgment of the Court was delivered by Gajendragadkar, C. J. The short question of law which arises for our decision in this appeal is whether the order  passed by  the Delhi Administration referring the  dispute  between the appellants, the workmen of M/s Dharampal Premchand, Sau- ghandhi  and  the respondent, the  employer,  M/s  Dharampal Premchand  Saughandhi,  Delhi  was  valid.   The  order   of reference has been passed by the Delhi Administration  under ss. 10(1)(d) and 12(5) of the Industrial Disputes Act,  1947 (No.  14  of 1947) (hereinafter called the Act).   When  the Industrial Tribunal, Delhi took up this matter for  hearing, the  respondent  raised  a preliminary  objection  that  the reference  was invalid inasmuch as the dispute  referred  to the  Tribunal by the impugned order of reference is  not  an industrial  dispute.  but is merely  an  individual  dispute which  cannot  be the subject-matter of  a  valid  reference under s. 10(1) of the Act.  This contention has been  upheld by the Tribunal, with the result that the Tribunal has  held that it has no jurisdiction to adjudicate upon the merits of

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the  dispute referred to it.  It is against this order  that the appellants have come to this Court by special leave.  On behalf  of the appellants, Mr. Sukumar Ghose  contends  that the view taken by the Tribunal is not sound, and that raises the  question  as  to whether the dispute  referred  to  the Tribunal  for  its adjudication in the present case  can  be said  to be an industrial dispute within the meaning  of  s. 2(k) of the Act. The facts which it is necessary to state for the purpose  of dealing  with  this point are very few and they are  not  in dispute.  The respondent is a firm which carries on business as  perfumers and tobacconists in Chandni Chowk, Delhi.   On the  28th  July, 1961, the respondent  passed  the  impugned order dismissing the services of its 18 employees.  On  that date, the respondent had in its employment 45 employees.  It appears that on the 16th July, 396 1961, the 18 employees who were dismissed by the  respondent had become members of the Mercantile Employees’  Association which  is  a registered Trade Union in Delhi.  On  the  29th July,  1961, the said Association took up the cause  of  the dismissed  employees  and  carried the  dispute  before  the Conciliation Officer, Delhi.  The conciliation  proceedings, however, failed, and at the instance of the Association  the present  reference was made on the 6th September, 1961.   It is  in  the  light of these facts that  we  have  to  decide whether the dispute referred to the Tribunal for its adjudi- cation  is  an industrial dispute within the meaning  of  s. 2(k) of the Act or not. Section 2(k) defines an "industrial dispute" as meaning  any dispute  or difference between employers and  employees,  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  condition of labour, of any person.  This definition shows that before any  dispute  raised  by any person can be  said  to  be  an industrial  dispute, it must be shown that it  is  connected with the employment or non-employment of that person.   This condition  is  satisfied in the present  case,  because  the dispute  is in relation to the dismissal of 18 workmen,  and in that sense, it does relate either to their employment  or non-employment.    The  question,  however.  still   remains whether  it  is  a dispute between  employers  and  workmen. Literally  construed,  this definition may take  within  its sweep  a dispute between a single workman and his  employer, because  the  plural,  in  the  context,  will  include  the singular.   Besides, in the present case, the dispute is  in fact between 18 workmen on the one hand, and their  employer on the other, and that satisfies the requirement imposed  by the  fact that the word "workmen" in the context is used  in the   plural.   But  the  decisions  of  this   Court   have consistently  taken  the view that in  ’order  that  dispute between a single employee and his employer should be validly referred  under s. 10 ’of the Act, it is necessary  that  it should have been taken up by the Union to which the employee belongs  or  by  a number of employees.   On  this  view,  a dispute between an employer and a single employee cannot, by itself,  be treated as an industrial dispute, unless  it  is sponsored or espoused by the Union of workmen or by a number of  workmen.  In other words, if a workman is  dismissed  by his  employer and the dismissed workman’s case is  that  his dismissal  is  wrongful, he can legitimately have  the  said dispute  referred  for  adjudication  before  an  Industrial Tribunal  under  s. 10(1) of the Act, provided a  claim  for such  a reference is supported either by the Union to  which

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he belongs or by a number of workmen, vide Central Provinces Transport Services v. Raghunath Gopal Patwardhan(1) and  The Newspapers Ltd. v. The State Industrial Tribunal, U.P. (2). (1)  [1956] S.C.R. 956. (2)  [1957] S.C.R. 754. 397 This view is based on a consideration of the general  policy underlying the provisions of the Act.  As is well-known, the Act has been passed for the investigation and settlement  of industrial  disputes, and its material provisions have  been enacted, because it was thought expedient to make  provision for  such investigation and settlement of disputes,  keeping in  mind  the importance of the development of  Trade  Union Movement on proper lines in this country.  Having regard  to this broad policy underlying the Act, this Court and  indeed a majority of Industrial Tribunals are inclined to take  the view that notwithstanding the width of the words used by the Act  in  defining  an  "industrial  dispute",  it  would  be expedient  to require that a dispute raised by  a  dismissed employee  cannot become an industrial dispute, unless it  is supported either by his Union or, in the absence of a Union, by  a  number  of workmen.  Unless  such  a  limitation  was introduced, claims for reference may be made frivolously and unreasonably  by  dismissed  employees, and  that  would  be undesirable. Besides, in order to safeguard the interests of the  working class  in this country, it was thought that the  development of  Trade  Union movement on healthy Trade Union  lines  was essential and that requires that disputes between  employers and  employees should be settled on a collective  basis.   A complaint against a wrongful dismissal should, therefore, be the subject-matter of reference, provided the workmen acting collectively take up the case of the dismissed employee  and contend  that the dismissal is unjustified or wrongful.   It is  on  these  grounds  that this Court  has  held  that  an individual   dispute  arising  from  an   alleged   wrongful dismissal of an employee can be validly referred under s. 10 only if it is supported by the Union of the workmen to which the  dismissed  employee belongs or by a group  of  his  co- employees.    There  is  no  dispute  that  the   Mercantile Employees’ Association has taken up the dispute on behalf of the  18  dismissed employees.  In fact, as we  have  already indicated, the said Association took up this dispute  before the Conciliation Officer and when the conciliation  proceed- ings failed, it successfully moved the Delhi  Administration to make a reference under s. 10(1) of the Act. It was, however, urged before the Tribunal that besides  the 18 dismissed employees, no other employee of the  respondent is  a  member  of  the said  Association,  and  so,  it  was contended  that the said Association was not  authorised  to raise  the dispute, and in the absence of proof of the  fact that the dispute had been sponsored or espoused by the Union of the employees of the respondent, the reference should  be held to be invalid.  This contention has been upheld by  the Tribunal;  and so, the question which we have to  decide  is whether   the  Tribunal  was  right  in  holding  that   the Mercantile Employees’ Association had no authority to  raise and support the present dispute. 398 In  support of its conclusion, the Tribunal has relied  upon the  decision of this Court in Bombay Union  of  Journalists and  others v. The "Hindu", Bombay & Anr.(1). In that  case, the services of one Salivateeswaran, who claimed that he was a  full-time  employee  of the "Hindu",  a  daily  newspaper published  in  Madras,  were terminated  and  an  industrial

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dispute was raised in respect of the said termination by the Bombay  Union of Journalists.  The contention raised by  the employer was that the reference was invalid inasmuch as  the dispute referred for adjudication was an individual  dispute and not an industrial dispute.  This contention was accepted by  the Tribunal; and that brought the dispute  before  this Court. In  dealing  with the effect of the decision  pronounced  by this  Court  in  that  case  and  particularly  of   certain observations  made  in  the course of the  judgment,  it  is necessary to bear in mind one finding of fact which had been recorded  by the Tribunal and confirmed by this  Court.   It appears  that in that case, the appellants  strongly  relied upon a resolution passed on April 17, 1948, by which it  was alleged  that the Bombay Union of Journalists had  taken  up the  dispute of Salivateeswaran against the "Hindu" and  had decided  to demand reliefs for the "retrenched  Journalist". Evidence  was led to prove that such a resolution  had  been passed, but that evidence was discarded both by the Tribunal and  this Court, and this Court definitely found  that  "the evidence  tends to establish the plea raised  by  respondent No.  1  that  the  record  of  the  alleged  resolution  was fabricated   with   a   view  to   support   the   case   of Salivateeswaran".   In other words, in point of fact,  there was  no reliable evidence to show that the Bombay  Union  of Journalists had taken up the case of the retrenched employee Salivateeswaran.   In view of this finding, it follows  that the  ’observations  made  by this Court  in  regard  to  the requirements of a valid reference under s. 10(1) of the  Act are in the nature of orbiter observations. It  does appear that in dealing with the point of law as  to the requirements of a valid reference, this Court  ’observed that "the dispute, in the present case, being prima facie an individual   dispute,  in  order  that  it  may  become   an industrial  dispute,  it had to be established that  it  had been  taken  up by the Union of employees  of  the  "Hindu", Bombay,  or  by  appreciable  number  of  employees  of  the "Hindu",  Bombay.  Similarly, it was also observed that  the "principle that the persons who seek to support the cause of a  workman  must themselves be  directly  and  substantially interested  in the dispute, applied to the case  before  the Court";  and so, one of the tests which this  Court  applied was  whether  the  persons who  supported  the  cause,  were employees  of  the same employer; if they were not,  it  was thought that they could not be regarded as interested in the dispute and as such, their support may not (1)  [1962] 3 S.C.R. 893. 399 convert  an individual dispute into an  industrial  dispute. That is why the support lent to the cause of Salivateeswaran by  the  Bombay  Union  of  Journalists  was  found  to   be insufficient  to  convert  the  cause  into  an   industrial dispute. These  observations, no doubt, prima facie lend  support  to the  view which the Tribunal has accepted.  It appears  that the  Bombay  Union of Journalists had on  its  roll  several working Journalists in other journals; but out of the  three working  journalists working with the "Hindu" at its  Bombay office,  two had become the members of the Bombay  Union  of Journalists,   viz.,  Salivateeswaran   and   Venkateswaran. Tiwari,  the third working journalist working in the  office of the "Hindu", Bombay, had not become a member of the  said Union.  In the Office of the "Hindu", there were seven other workmen,  but they were working on the administrative  side. In  other words, out of the ten employees in the  office  of

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the  "  Hindu", seven were on the  administrative  side, and three  on the journalism side; and out of these  three,  two were  members  of the Union.  It is in the  light  of  these facts that this Court expressed the opinion that the  Bombay Union of Journalists was not competent to raise the dispute, and  even  if it had raised it, the dispute could  not  have become an industrial dispute. In  our opinion, the observations on which the Tribunal  has relied  in  support of its conclusion in the  present  case, should not be read as laying down any hard and fast rule  in the matter.  Take, for instance, the case of an employer who employs  20 workmen, and assume that these workmen have  not formed  any Union.  If the employer illegally dismisses  all the workmen employed by him, it cannot be suggested that the dispute  about  the dismissal of these employees  would  not become  an industrial dispute because there is no  Union  to support  them and the dismissed employees themselves  cannot convert their individual dispute into an industrial dispute. In  the  present  case, out of 45  employees  18  have  been dismissed,  and  there  is no evidence to  show  that  these employees  have  a Union of their own.  In such a  case,  it would  be  difficult  to  hold that  though  the  number  of employees  dismissed is 18, they cannot raise a  dispute  by themselves  in a formal manner.  Considerations which  would be  relevant  in  dealing  with a  dispute  relating  to  an individual  employee’s dismissal, would not be  material  in dealing  with a case where a large number of employees  have been  dismissed on the same day.  It is not disputed that  a union of workmen may validly raise a dispute as to dismissal even though it may be a union of the minority of the workmen employed  in  any  establishment.  The  majority  union,  of course,  can  raise a dispute, and if a  reference  is  made under s. 10(1) of the Act at its instance, the reference, is valid.   Similarly, if there is no union of workmen  in  any establishment,  a group of employees can raise  the  dispute and  the dispute then becomes an industrial dispute,  though it may 400 relate  to  the dismissal of an individual  employee.   This position  is not disputed.  If that is so, it is  difficult, we  think, to apply or extend the observations made  in  the case  of the Bombay Union of Journalists(1) to  the  present case.  In the present case, we are dealing with a  reference made  by  the  Delhi  Administration  in  relation  to   the appellants’ contention that the dismissal of 18 employees is invalid,  and not with a case of the dismissal of  a  single employee.  Therefore, we do not think that the Tribunal  was right in relying upon the decision in the case of the Bombay Union  of Journalists(1) in support of its  conclusion  that the present reference was invalid. It  is well-known that in dealing with industrial  disputes, industrial  adjudication is generally reluctant to lay  down any  hard  and  fast rule or adopt any test  of  general  or universal   application.    The   approach   of   industrial adjudication   in  dealing  with  industrial  disputes   has necessarily to be pragmatic, and the tests which it  applies and  the considerations on which it relies would  vary  from case to case and would not admit of any rigid or  inflexible formula.  There is no doubt that the limitations  introduced by the decisions of this Court in interpreting the effect of the  definition prescribed by s. 2(k) of the Act were  based ’on such pragmatic considerations.  It may also be  conceded that  if the dismissal of an individual employee working  in an  establishment  in  Delhi is taken up  by  the  union  of workmen  in a place away from Delhi, that would clearly  not

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make  the dispute an industrial dispute.  Section 36 of  the Act   which  deals  with  the  representation  of   parties, incidently  suggests  that  the union  which  can  raise  an individual  dispute as to a dismissal validly, should  be  a union  of the same industry.  Generally, it is the union  of workmen  working in the same establishment which has  passed the impugned order of dismissal.  But in a given case, it is conceivable  that  the workmen of an establishment  have  no union of their own, and some ’or all of them join the  union of another establishment belonging to the same industry.  In such  a  case, if the said union takes up the cause  of  the workmen  working in an establishment which has no  union  of its  own, it would be unreasonable to hold that the  dispute does  not  become an industrial dispute  because  the  union which  has sponsored it is not the union exclusively of  the workmen  working in the establishment concerned.   In  every case  where industrial adjudication has to decide whether  a reference  in  regard  to the  dismissal  of  an  industrial employee  is  validly  made  or  not,  it  would  always  be necessary  to enquire whether the union which has  sponsored the case can fairly claim a representative character in such a  way that its support to the cause would make the  dispute an  industrial dispute.  "Industry" has been defined  by  s. 2(j)  of the Act and it seems to us that in some cases,  the union of workmen working in one industry may be competent to raise a dispute about the wrongful dismissal of an  employee engaged  in an establishment belonging to the same  industry where workmen (1)  [1962] 3 S.C.R. 893, 401 in such an establishment have no union of their own, and  an appreciable  number  of such workmen had joined  such  other union before their dismissal.  In fact, the object of  trade union  movement is to encourage the formation of larger  and bigger  unions on healthy and proper trade union lines,  and this  object would be frustrated if industrial  adjudication were  to adopt the rigid rule that before any dispute  about wrongful dismissal can be validly referred under s. 10(1) of the  Act,  it  should  receive  the  support  of  the  union consisting exclusively of the workmen working in the  estab- lishment concerned. Besides, there is another way in which this question can  be considered.  If 18 workmen are dismissed by an order  passed on the same day, it would be unreasonable to hold that  they themselves  do  not form a group of workmen which  would  be justified  in  supporting  the cause  of  one  another.   In dealing with this question, we ought not to forget the basic theory on which limitation has been introduced by this Court on  the  denotation  of the words  "industrial  dispute"  as defined by s. 2(k) of the Act.  Therefore, we are  satisfied that the Tribunal was in error in rejecting the reference on the  preliminary ground that the dispute referred to it  was an  individual dispute and not an industrial dispute  within the meaning of s. 2(k). The  result  is, the appeal is allowed, the finding  of  the Tribunal  on  the  preliminary issue is  reversed,  and  the matter  is  sent  back  to  the  Tribunal  for  disposal  in accordance with law.  There would be no order as to costs. Appeal allowed. 402