Jain, J.:— This is an appeal by company management against the order upholding the jurisdiction of “Ninth” Industrial Tribunal for adjudication on the issue whether termination of service of one Ravi Soren was justified. The said Industrial Tribunal had not only taken the evidence on the merit of the issue but had even finally heard the argument but unwisely had decided only preliminary point in regard to jurisdiction and has held that there is no “industrial dispute” and consequently no jurisdiction for adjudication. The respondents challenged this finding of the Industrial Tribunal in the Court and the learned Single Judge in writ matter bearing C.O No. 10224(W) of 1987 has reversed the finding vide judgment, dated August 7, 1989, and in consequence remitted the case to the Tribunal for adjudication. Being aggrieved, the management has filed this appeal to challenge the validity of aforesaid reference.
2. The facts of the case may be briefly noticed. It is an admitted position that respondent 2, Ravi Soren, was given an employment in the company on compassionate ground on December 2, 1977, after the death of his elder brother Gopi Soren who was an employee of the company. Respondent 2 was given an employment when it was asserted that the wife of deceased Gopi Soren has deserted him in his life time and had even remarried and consequently was neither entitled to employment nor the maintenance. However, the company had received the complaint from Smt. Surojmani Soren as to the failure of respondent 2, Ravi Soren to maintain her and even she had staked the claim for employment as the wife of late Gopi Soren. The necessary enquiries were made by the management and such enquiries justified the claim of Smt. Surojmani Soren both for maintenance as also for employment. As respondent 2 has refused to maintain Smt. Surojmani Soren and had even obtained the employment by denying the status of her being the wife of late Gopi Soren, the company terminated the services of respondent 2 on December 17, 1981. Respondent 2 disputed the termination immediately on the next day and demanded his reinstatement. The co-workers of respondent 2 also supported him and even threatened industrial unrest on the next day of the termination order. The controversy could not resolved in the conciliation proceedings and the failure report was submitted to the Government of West Bengal. The dispute was then referred to the “Ninth” Industrial Tribunal vide order of the labour department of the Government of West Bengal, dated January 18, 1984. The reference under S. 10 of the Industrial Disputes Act has clearly mentioned the aforesaid issue whether the termination of the service of Ravi Soren was justified. The parties then filed their written statements before the Industrial Tribunal and in support of their pleas had examined the evidence and then the Tribunal heard the arguments on merit. However, the Tribunal refused to decide the main issue on the ground that there is no industrial dispute in terms of the provision of S. 2(k) of the Act. The writ Court as stated above, reversed the finding and remitted the case for expeditious adjudication. It is clear that the basic controversy was whether Smt. Surojmani Soren is the wife of late Gopi Soren and thus entitled to maintenance from respondent 2. This controversy took serious turn when the informal persuasion of the company did not succeed and resulted into termination of the service of respondent 2. In this context, the issue arose whether the termination of the service was justified and the Government being satisfied of the existence of such dispute referred the matter for adjudication.
3. The basic submission of the learned counsel for the appellant is that the reference was made by the Government by treating the dispute as a collective dispute between the management and a single workman presumably under S. 2(k) of the Act and the reference was never intended on the footing of an individual dispute between the management and a single employee under S. 2-A of the Act. The dispute could not be established as a collective dispute and consequently there was no existence of industrial dispute so as to warrant the reference under S. 10 of the Industrial Act. It was submitted that the reference was clearly bad in law and could not confer any jurisdiction on the Tribunal. It was also argued that the reference could not be saved by mere existence of industrial dispute under S. 2-A of the Act as the Government has not formed any opinion prior to reference in regard to existence of industrial dispute under S. 2-A of the Act. The defence argument is that the industrial dispute had come into existence in terms of S. 2-A of the Act and thereafter Government had merely to consider whether the issue of termination of service required the adjudication and not whether the dispute was a collective or an individual dispute. The question is whether the aforesaid reference could be saved even though the Government has not expressly considered the existence of industrial dispute under S. 2-A of the Act. The reference order as also the relevant provisions of the Act may now be mentioned.
4. The reference order of the West Bengal Government under S. 10 of the Act is as follows:
“Government of West Bengal
Labour Department
No. 204-IR
IR/IOL-37(1)/81Dated: 18.01.1984
Whereas an industrial dispute exists between Steel Authority of India, Ltd., Alloy Steels Plant, Durgapur-8, and their workmen represented by Hindustan Steel Employees' Union, 36/49, Harshabardhan Road, Durgapur-4, relating to the undermentioned issue being a letter specified in the Second Schedule to the Industrial Disputes Act, 1947 (14 of the 1947),
And whereas it is expedient that the said dispute should be referred to an Industrial Tribunal constituted under S. 7-A of the said Act;
Now, therefore, in exercise of the powers conferred by S. 10 of the Industrial Disputes Act, 1947 (14 of 1947), the Governor is pleased hereby to refer the said dispute to the Ninth. Industrial Tribunal constituted under Notification No 4481-GL/G/3-A-20/66, dated September 7, 1967, for adjudication;
The said Ninth Industrial Tribunal shall meet at such places and on such dates as it may direct;
ISSUES
Whether termination of service of Sri Ravi Soren, Counter Assistant Grade III, canteen department, is justified? What relief, if any, is he entitled to?
By order of the Governor,
S.K Dhara
Assistant Secretary to the Government of West Bengal.”
5. The definition clause of S. 2 of the Act in relation to the industrial dispute is in the following words;
“2(k) ‘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;
2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.— Where any employer discharges, dismisses, retrenches or otherwise terminates the service of an individual workman, any dispute or difference between the workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.”
6. The relevant portion of S. 10 of the Act is in the following words:
“10(1). Reference of disputes to Boards, Courts or Tribunals.— Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing—
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
“10(4). Where in an order referring an industrial dispute to (A Labour Court, Tribunal or National Tribunal) under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication (the Labour Court or the Tribunal or the National Tribunal, as the case may be), shall confine its adjudication to those points and matters incidental thereto.”
7. The relevant portion of S. 12 is as follows:
“Duties of Conciliation Officers.— (1) Where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under S. 22 has been given, shall, hold donciliation proceedings in the prescribed manner.
(4) If no such settlement is arrived at, the Conciliation Officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such, facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in Sub-sec.(4), the appropriate Government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal), it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore.
8. The relevant portion of S. 18 of the Act is in the following words:
“18. Persons on whom settlements and awards are binding—
18(3). A settlement arrived at in the course of conciliation proceedings under this Act (or an arbitration award in a case where a notification has been issued under Sub-sec.(3-A) of S. 10-A) or fan award (of a Labour Court, Tribunal or Naional Tribunal] which has become enforceable) shall be binding on—
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board (arbitrator) (Labour Court, Tribunal or National Tribunal), as the case may be, records the opinion that they were so summoned without proper cause;
9. The relevant portion of S. 36 is in the following words:
“36. Representation of parties.— (1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by—
(c) Where the worker is not a member of any trade union, by (any member of the executive or other office-bearer) of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed.”
10. The three things appear to be essential in the context of S. 10 of the Act, firstly, there should be an industrial dispute, secondly, it should be expedient to make reference, thirdly, the term of reference should normally be specified to avoid vagueness. If there is an industrial dispute in terms of S. 2-A of the Act, it is more than necessary as to the first requirement under S. 10 of the Act. It is not relevant whether the industrial dispute under S. 2-A of the Act is supported by any union of the workers or by sufficient number of workmen. If there is no industrial dispute in terms of S. 2-A then alone it would be necessary to see whether the individual dispute has been espoused by the union or espoused by the sufficient number of the workmen. If there is an industrial dispute in terms of S. 2-A of the Act then the Government has merely to see whether it is expedient to refer the dispute to the Tribunal. The expediency may be due to practical necessity or otherwise desirable to make reference for adjudication. The prima facie, satisfaction may also induce the appropriate Government to refer the dispute. The point is that it should appear expedient from the circumstances of the case. If the reference order indicates the point in dispute for adjudication it would clearly show that the Government was prima facie satisfied that it would be expedient to refer the matter without in any way influenced whether it is industrial dispute under S. 2-A of the Act or S. 2(k) of the Act. In the instant case, there appears to be family rift before the death of the deceased workman Gopi Soren. Respondent 2 had virtually worked for about four years before the appellant received the complaint from alleged wife of Gopi Soren. There were allegations and counter-allegations in respect to the status of Smt. Surojmoni Soren and such controversy has resulted even in the dismissal of respondent 2. If this incident has given birth to an industrial dispute under S. 2-A of the Act, the same incident need not mature for the birth of industrial dispute under S. 2(k). As noted above, the appropriate Government has merely to see whether an industrial dispute has come into existence or not and if industrial dispute has come into existence under S. 2-A or the Act, the first requirement for reference has been satisfied and the question of the espousal by other workman or by the union of workmen becomes wholly irrelevant. The question whether the reference is expedient or not, is an independent consideration depending on the nature of the issue involved or whether prima facie it could be said that the issue required adjudication. It does not depend on the consideration whether the industrial dispute is under S. 2-A or under S. 2(k) of the Act. The background of the termination order and the controversy in relation to the termination of the services could only be clarified and resolved by adjudication and consequently the reference order mentions specifically the issue to be adjudicated by the Tribunal. There is no vagueness on the issue. In the instant case of the reference order has mentioned irrelevant party or has omitted to mention necessary party it may not be fatal to the validity of the reference. The Tribunal has all the power to add the party in the proceeding and this power would be incidental to the main issue of adjudication. If industrial dispute exists under S. 2-A, the concerned individual would always be necessary party and he would be deemed to be a party in the reference order even though the name of the individual workman has not been mentioned. The reference order in the instant case, has clearly mentioned the name of individual workman in the issue which was framed for adjudication It is thus clear that the order of reference in the instant case satisfied all three requirements namely existence of industrial dispute, the expediency of making reference and the specific point for adjudication. The reference order could not become bad, in the instant case, merely because an irrelevant party has been mentioned or the industrial dispute was considered in the context' of irrelevant party or industrial dispute was not considered in the context of an industrial dispute under S. 2-A of the Act. The industrial dispute has taken birth under S. 2-A of the Act as soon as the demand for reinstatement was made by respondent 2 and consequently there was no need for consideration whether industrial dispute of the category under S. 2(k) exists or does not exist. The formal defects in the reference order or clerical mistakes in the tide of the reference order or irrelevant consideration of the industrial dispute under S. 2(k) of the Act would not vitiate the order in circumstances of this case.
11. In Delhi Cloth and General Mills Company, Ltd. v. Workmen [A.I.R 1967 S.C 469], it has been held that the Court should not construe the reference too technically or in a pedantic manner but attempt should be made construe it fairly and reasonably. As noted above the industrial dispute in the instant case has come into existence under S. 2-A and the appropriate Government has thought it expedient to make the reference and indicated the nature of the dispute by framing the specific point then such reference could not be described as bad simply because the title of the reference has not mentioned the industrial dispute under S. 2-A or has wrongly mentioned the existence of the industrial dispute under S. 2-A. The Court has to see the substance and not the form of the order in order to find whether the reference is bad or not. If an industrial dispute has come into existence by the operation of law under S. 2-A of the Act, then it will be presumed that the Government has considered the effect of 1 aw on the issue before it. The necessary party could always be heard and added by the Tribunal.
12. In Hochtief Gammon v. Industrial Tribunal, Bhubaneshwar [A.I.R 1964 S.C 1746]. It has been held:
“It is not open to the Tribunal to travel materially beyond the terms of reference for it is well settled that the terms of reference determine the scope of its power and jurisdiction from case to case. Where certain points of dispute have been referred to the Industrial Tribunal for adjudication it may, while dealing with the said points deal with matters incidental matters, the Tribunal feels that some persons who are not joined to the reference should be brought before it, it may be able to make an order in that behalf under S. 18(3)(b) as it now stands.”
The Tribunal thus could always summon the necessary party and could ignore the irrelevant party mentioned in the reference order in the facts of this case.
13. The Industrial Tribunal could always consider whether there is an industrial dispute or there is no industrial dispute, if the Tribunal holds that there is an industrial dispute then the question of any adjudication does not arise. However, if the Industrial Tribunal holds that there is an industrial dispute then the Tribunal is bound by the terms of the reference of adjudication as the Industrial Tribunal is a Tribunal of limited jurisdiction. If the Industrial Tribunal, while dealing with an industrial dispute, came to the conclusion that persons other than those mentioned were necessary for a valid determination of the said dispute, it had the ample power to summon them and if such persons were summoned to appear in the proceedings the award that the Industrial Tribunal may ultimately pronounce would be binding on them. The Tribunal is merely to consider whether the industrial dispute exists or does not exist. If industrial dispute exists under S. 2-A in a given case, it has jurisdiction to adjudicate on the issue irrespective of the fact whether industrial dispute under S. 2(k) exists or does not exist. The Industrial Tribunal can always summon the necessary party if not mentioned in the reference order and can always ignore the party which has been mentioned wrongly. The incidental power in the Tribunal would always enable it to take the necessary steps in the facts of each case. The Tribunal in the instant case, has heard the issue on merit and recorded the evidence of the parties including concerned individual workman and yet at the fag end decided the reference only on preliminary point of the jurisdiction without deciding the issue on merit. It is not that the Tribunal has decided the preliminary issue on the threshold. The Tribunal has even not considered whether the industrial dispute exists in terms of S. 2-A in the facts of the case. The learned Single Judge of the writ Court was thus fully justified in setting aside the order of the Industrial Tribunal.
14. In Rajasthan State Road Transport Corporation v. Krishna Kant [1995 (2) L.L.N 271], it has been held, in Para. 35, at pages 284 and 285:
“It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly, i.e, without the requirement of a reference by the Government — in case of industrial dispute covered by S. 2-A of the Industrial Disputes Act. This would go a long way in removing the misgiving with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil Courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.”
It is thus clear that the reference is a rule when the industrial dispute arises unless issue raised is a totally frivolous ex facie. As noted above, the industrial dispute in the instant case has come into existence on the next day of the passing of the order of terminating the service and the Government has indicated the nature of the dispute by specifically mentioning whether the dismissal of Ravi Soren was justified. The reference was made as the issue was fit for adjudication. The reference does not become bad simply because the reference has mentioned irrelevant party or has not expressly mentioned necessary party. It may be noted that the co-workers of Ravi Soren had also protested by writing letter to the concerned authority of the company on the same day when the Ravi Soren has demanded reinstatement. The union office-bearer has also taken initiative to draw the attention of the conciliation authorities and the conciliation authorities had made an attempt to patch up but ultimately the failure report had to be submitted to the Government. It was throughout an individual dispute and in such dispute the moral support was also given by co-workers by raising the issue before the concerned authorities. This moral support of co-workers perhaps led to incorrect mentioning in the title of the reference as if the industrial dispute has come into existence under S. 2(k) and not under S. 2-A of the Act. Factual situation of the seed of the unrest was present and in this context the mere lapse of the Government to incorrectly mention as if an industrial dispute has arisen under S. 2(k) and not under S. 2-A of the Act would not vitiate the reference and Industrial Tribunal has the jurisdiction to adjudicate on the issue referred.
15. In Niemla Textile Finishing Mills Ltd. v. Second Punjab Tribunal [A.I.R 1957 S.C 329], it has been held that S. 10 of the Act is not unconstitutional. The constitutionality of S. 2-A was challenged in State of West Bengal v. Jute and Jute Goods Buffer Stock Association [1977 C.W.N 809], but it has been held that S. 2-A of the Industrial Disputes Act or when read with S. 10 of the Industrial Disputes Act, 1947, is not discriminatory and does not offend against Art. 14 of the Constitution and consequently is not unconstitutional or ultra vires. Their Lordship further observed as follows:
“It appears to us the object of making a classification in S. 2-A, is to protect an individual workman, deprived of his employment, to get the benefits of Industrial Disputes Act and to eliminate the seed of dissatisfaction and industrial unrest at their very root, before it is aggravated or spread over to a large body of workman, apprehending threat of industrial strike. Where group interest of the union and other workmen does not support an individual dispute, substantive right has been created in favour of an individual worker to have recourse to redress his grievance before the Industrial Tribunal under the provisions of the Act. In S. 2-A, individual dispute is ‘deemed’ to be an industrial dispute notwithstanding that no other workman or any union of workmen is a party to the dispute. It fits in with the structure of the Act, for the reason that all other provisions of the Act are to be read as if S. 2-A were in the Act. That ‘deeming’ is not merely for the purpose of making a reference under S. 10(1) of the Act, it also affects the objects of the Act. Therefore, in our view, classification made in S. 2-A has a reasonable nexus with the object of the Act. Section 2-A in our view, does not destroy the concept of industrial dispute as collective dispute because that concept still remains in the major class and in all other provisions of the Act. The new section only widens the concept of industrial disputes so as to include the individual dispute, which was so long construed by judicial pronouncements within its fold, not even all individual disputes, only those specified in that section.”
As noted above, the industrial dispute in the instant case, has come into existence under S. 2-A of the Act on the next day of the termination of the service of Ravi Soren. It has even been supported by co-workers by separate letter to the authorities of the company and even the said union has taken the initiative for conciliation before the appropriate authority but such conciliation failed and failure report was submitted to the Government. The reference was made in these circumstances and consequently the reference could not be said to be bad.
16. In State of Madras v. C.P Sarathy [A.I.R 1953 S.C 53], it has been held:
“Though it is desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference, it must be remembered that in making a reference under S. 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. The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support 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 the 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 there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.”
Their Lordship of the Supreme Court has further observed, in Para 17 as follows:
“In view of the increasing complexity of modem life and the interdependence of the various sectors of a planned national economy, it is obviously in the interest of the public that labour disputes should be peacefully and quickly settled within the framework of the Act rather than by resorting to methods of direct action which are only too well calculated to disturb the public peace and order and diminish production in the country, and courts should not be astute to discover formal defects and technical flaws to overthrow such settlements.”
As noted above, the formal defects in the title of the reference would not mean much as the industrial dispute had come into existence on the next day of the termination of the service by operation of law. The Government must be presumed to have considered the effect or law on the facts of this “case.” It was not necessary for the Government to form an opinion whether industrial dispute in terms of S. 2(k) had come into existence or not as such dispute has already come into existence by law. Moreover, the Government could always take into consideration the “ground reality,” even though it may not technically fulfill the requirements of S. 2(k) of the Act.
17. In Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna [A.I.R 1961 S.C 857], it has been held:
“When a dispute concerning an individual workman is taken up by the union, of which the workman is a member as a matter affecting workmen in general and on that basis a reference is made under the Industrial Disputes Act the individual workman cannot ordinarily claim to be heard independently of the union.”
The facts of the instant case are very different as the industrial dispute had come into existence in the context of S. 2-A of the Act and individual workman in the facts of the instant case is a necessary party and can claim hearing independent of the union. This authority could not help the appellant in any way.
18. In Chemicals and Fibers of India, Ltd. v. D.G Bhoir [1975 (2) L.L.N 1]. Their Lordship of the Supreme Court observed as follows, in Para. 2, at page 3:
“In enacting S. 2-A the intention of the Legislature was that an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated should be given relief without its being necessary for the relationship between the employer and the whole body of employees being attracted to that dispute and the dispute becoming a generalized one between labour on the one hand the employer on the other…”
The principles of the authority was in relation to the right of the strike by the general body of the workmen in the context of the individual dispute. The facts of the instant case are very different and this authority would not support the case of the appellant that the reference is bad.
19. In Deepak Industries, Ltd. v. State of West Bengal [1975 (2) L.L.N 168], the workmen concerned had not raised any dispute individually and, in that context the dispute could not be held to have arisen under S. 2-A of the Act. The dispute was espoused by the union of which the concerned workmen were not the members nor there was any resolution of the union and in that context it was held that union had no locus standi and consequently there was no industrial dispute under S. 2(k) of the Act. This authority is clearly distinguishable as in the present case the individual dispute has been raised though apparently shown as collective dispute between the employer and the workmen represented by the concerned union.
20. In Manager, Hotel Imperial, New Delhi v. Chief Commissioner, Delhi [A.I.R 1959 S.C 1214], it has been observed as follows:
“The reference which is otherwise valid does not become incompetent simply because it is mentioned therein that the workman will be represented by such and such union in the dispute.”
It was further observed:
“The addition of the words represented by the Hotel Workers' Union Katra Shahanshabi, Chandni Chowk, Delhi, was merely for the sake of convenience so that the Tribunal may no to whom it should give notice when proceeding to deal with the reference. That however did not preclude the workmen, if they wanted to be represented by any other union, to apply to the Tribunal for such representation or even to apply for being made parties individually.”
The learned counsel for the appellant tried to distinguish this authority by arguing that there is a lot of difference when the title recites the employees “as represented by the union and the title recites the employees are represented by the union. In the former case it will merely mean the manner of representation whereas in the later case it will mean the identity of the workmen who had raised the dispute. All this in the circumstances of the instant case, could be said to be a mere technicality. The question in the instant case, is whether the industrial dispute of the individual nature even if described as collective dispute would make the reference incompetent or not. The faculty citation in reference or other capping could not change the characteristic of the dispute and the circumstances had already been indicted in which the Government has mentioned the name of the union in the reference title. The mentioning of the name of the union in the citation of the reference was held to be for the sake of serving the notice and was held to be not sufficient to change the character of the dispute if the reference is otherwise valid. Thus in the facts of the instant case mere addition of the name of the union which may or may not be a proper party would not make the reference bad in law.
21. In M.N Pramanick v. Eighth Industrial Tribunal [1983 (1) L.L.N 186], it has been observed as follows, in Para. 6, at page 191:
“… In a reference under the Industrial Disputes Act, the real party is the concerned employees and their case may be represented by the union. In the circumstances, the validity of the reference will not be affected simply on the ground that the name of the union was changed before the reference was made. In my view, it is also not material if at the time of dismissal of the said employees they were not members of the said union and/or the union was not primarily concerned with the class of the employees to which the said workmen belonged. Sri Sengupta is justified in his contention that after amendment of S. 2-A any dispute with regard to termination of service will be an industrial dispute and admittedly the reference was made in respect of an industrial dispute relating to termination of service of the said employees. So far as the decision of Deepak Industries case [1975 (2) L.L.N 168], is concerned, it appears to me that the facts of the said case are different and the decision of the Supreme Court made in Hotel Imperial case [A.I.R 1959 S.C 1214], was not also taken into consideration in the said decision …”
In the instant case also, the real dispute is in between the employer and individual workman (Ravi Soren) and mere mentioning of union in the citation of mere omission of the name of the workman in the cause title, though mentioned clearly in the issue, would not vitiate the reference.
22. In Sri Rajagopal Transport (Private), Ltd. v. Labour Court, Madurai [1980 —II L.L.J 351], the relevant Paras. 4 and 8 of the case of National Asphalt Products Construction Company v. N.M Kothari [1977 (1) L.L.N 331], were extracted and reproduced as below, in Para. 8, at page 335.
“…This being so, all that was done by S. 2-A was to widen for the purpose and to the extent discussed above the definition of ‘industrial dispute’ given in Cl.(k) of S. 2 of the said Act. Therefore, whether the dispute referred to in the order of reference is an industrial dispute within the meaning of Cl.(k) of S. 2 or S. 2-A of the said Act, is of no consequence so far as the power of the Labour Court to adjudicate the same in service is concerned. In one case it will be the workmen of an employer collectively who will be a party to the dispute and in the other case, it will be the individual workman or workmen concerned. So long as the dispute is one arising out of the termination of service of an employee in one of the various manners, it will constitute an industrial dispute capable of being referred to adjudication under S. 10 of the said Act.”
The facts of the instant case are similar to this authority and it would clearly save the reference order.
23. In Coimbatore Co-operative Milk Supply Union, Ltd. v. S. Siluvaimuthu [1970 — II L.L.J 101], it has been observed:
“This being a question of jurisdiction, the mere fact that the Government say that they did not mean to invoke S. 2-A is immaterial, if the Court finds that the Government had jurisdiction by virtue of S. 2-A, it is open to the Court to sustain the reference with reference to that.”
The facts of the instant case, is almost similar to this case. The Government in the instant case by the citation in the reference purported to say that the reference is that of collective dispute and not individual dispute but if the Court finds that the Government had jurisdiction by virtue of S. 2-A, it is open to the Court to sustain the reference.
24. In National Asphalt Products Construction Company v. N.M Kothari [1977 (1) L.L.N 331] (vide supra), it has, held, in Paras 8 and 9, at page 335:
“8… Therefore, whether the dispute referred to in the order of reference is an industrial dispute within the meaning of Cl.(k) of S. 2 or S. 2-A of the said Act, is of no consequence so far as the power of the Labour Court to adjudicate the same is concerned….
9. The source of power to make the reference of an industrial dispute for adjudication lies in S. 10 of the said Act. There is no provision in S. 10 which required the Government to mention, while making the reference, that it is doing so in connection with an industrial dispute as defined in S. 2(k) or S. 2-A of the said Act. Hence, a mere absence of reference either to S. 2(k) or S. 2-A of the said Act, in the order of reference will not go to show that it is not an industrial dispute within the meaning of either of the two provisions. Nor is the order of reference assailable on the ground that it does not indicate whether the dispute referred is under one or the other of the two provisions, since the law does not require the Government to do so If a question does arise as to whether a dispute is one as defined under S. 2(k) or S. 2-A, it is for the adjudicating authority to ascertain the same from the material on record.”
It has already been noted in the instant case that the material indicates that the industrial dispute under S. 2-A of the Act has arisen on the next day of the order of termination and even the co-workers of Ravi Soren were agitated about the termination and had threatened industrial unrest, the matter was referred to conciliation but such proceeding failed and the failure report was duly submitted to the Government. The dispute also related to the status of complaining women in the family of the deceased worker. Thus the dispute in essence was an individual dispute, though supported by some of the workmen. Therefore, whether the dispute referred to in the order of reference is an industrial dispute within the meaning of Cl. 2(1) of S. 2-A of the said Act is of no consequence so far as the power of the Tribunal to adjudicate the same is concerned. The facts of this authority are almost similar to the instant case. The learned counsel for the appellant submitted that this authority would not solve the problem as the parties would not know as to the nature of the dispute before the Tribunal decides the issue and it would may effect their rights and liabilities. There is no merit in the submission. In the instant case the company knew from the very beginning that industrial dispute under S. 2-A of the Act has arisen as the concerned workman namely Ravi Soren had demanded reinstatement on the next day of the termination of service. With respect, we fully agree to the proposition of law as laid down in National Asphalt Production Construction Company, case (vide supra).
25. In Katkona Colliery of Western Coalfields, Ltd v. Central Government Industrial Tribunal-cum-Labour Court, Jabalpur [1978 (2) L.L.N 452], it has been observed, in Para. 3, at page 455:
“… An individual dispute relating to discharge, dismissal, retrenchment or termination of a workman arises immediately the workman is discharged, dismissed, retrenched or terminated without his consent or in face of his opposition. This individual dispute because of the legislative fiat contained in S. 2-A becomes an industrial dispute…”
It was further observed, in Para. 3, at page 456:
“The dispute did not become an industrial dispute because it was taken up by the trade union; the dispute was an industrial dispute because of S. 2-A. The union only acted for the workmen as required by S. 36 of the Act.”
As stated hereinbefore, the dispute in the instant case has arisen immediately on the next day of the order of termination of the service of Ravi Soren when he demanded the reinstatement. He was merely supported by co-workers and even the office-bearer of the union extended the support to him by representing his case. The Industrial dispute arose not because of such support but arose in the instant case under S. 2-A of the Act.
26. The learned counsel for the appellant has streneously urged that there is vast difference between a dispute which is a collective dispute and a dispute that is an individual dispute. In further elaboration, it was contended that the order of reference would alone determine as to what kind of dispute referred for adjudication and it is not open to Tribunal or Court to treat it as an individual dispute, if the reference order unmistakably had indicated the reference of collective dispute simply because the collective dispute could not be proved by the respondents. We are unable to accept this elaborated submission for the aforesaid reasons. The Government commits the case or the issue for adjudication and not the parties. If industrial dispute in terms of S. 2-A of the Act has come into existence, the Government has merely to consider whether it is expedient to refer the dispute or commit the case for adjudication. If the Government inadvertently or wrongly or even deliberately commits the dispute for adjudication under S. 2(k) of the Act, the Tribunal has still power for adjudication if from material it could be said that the dispute has come into existence under S. 2-A of the Act by operation of law. The Tribunal in doing so, would not go beyond the term of reference as the term of reference was whether the termination of service was justified or not justified. The formal defects in the citation of reference order will not oust the jurisdiction of the Tribunal for the reasons already mentioned in the foregoing parts of the judgment. There is thus no ground for interference in the order of the learned Single Judge of the writ Court.
27. In the result the appeal is dismissed with costs. The judgment and order of the learned Single Judge of the writ Court is hereby affirmed.
28. Ruma Pal, J.:— I agree.
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