1. This is an application under Articles 228 and 227 of the Constitution by some of the workmen of the Jamadoba Colliery (hereinafter referred to as the company), challenging the decision of the Central Government Industrial Tribunal, Dhanbad, dated 15 August 1965 (annexure A), upholding the preliminary objection raised by the company to the validity of a reference made to the said tribunal by the Government of India under Section 10 of the Industrial Disputes Act. The Congress Mazdoor Sangh, which is a trade union, has taken up the cause of the workmen.

2. The dispute that was referred for adjudication to the tribunal was whether the dismissal of a workman named Tulsi, loco driver of the said colliery, was Justified or not. The said workman was dismissed on 30 July 1962 It was stated by the company before the tribunal that a branch union of the Congress Mazdoor Sangh came into existence at Jamadoba Colliery sometime in 1963 after the date of dismissal of the workman, and that the dismissed workman also became a member of the said union thereafter. This statement of fact was, however, strenuously challenged by the petitioners' union, on whose behalf evidence was led to show that the trade union for Jamadoba Colliery was in existence from 1958, and that the dismissed workman bacame a member of that union on 10 June 1962, before his dismissal.

3. The learned tribunal, however, after a discussion of the entire evidence, held that, though the Congress Mazdoor Sangh might have existed in other places from before, nevertheless a branch of that trade union came into existence in Jamadoba Colliery only sometime in 1963 after the date of dismissal of the workman, and that he bacame a member of the same thereafter. This, being a pure finding of fact cannot be challenged here.

4. On the basis of the aforesaid finding, the preliminary question which the learned tribunal was asked to decide was whether there could be a valid Industrial dispute if the union, which took up the cause of the dismissed workman, Itself came into existence after the date of dismissal and the dismissed workman bacame a member of the union thereafter. The actual date on which the Central Government made the reference to the tribunal for adjudication under Section 10 was 19 December 1963 Admittedly, on that date, the dismissed workman was a member of the trade union of workers under the company, and his cause had been espoused by that trade union. The learned tribunal, after reviewing some of the reported decisions, held chat an individual dispute cannot become an industrial dispute unless the dismissed workman was a member of the union, which sponsored his case, from before the date of his dismissal. Hence, It rejected the reference as Incompetent on this preliminary issue, and did not enter into the merits of the dispute.

5. Sri Roy for the petitioner challenged the correctness of this view. According to him, though, on the date of dismissal of the workman, viz., 7 August 1962, the dispute may have been merely an individual dispute, nevertheless it became an Industrial dispute on the date (19 December 1963) on which the appropriate Government made a reference to the tribunal under Section 10 of the Industrial Disputes Act. This change was brought about because the union of the workmen under the same employer, viz., the company, had (on the findings of the tribunal) come into existence prior to 19 December 1983, the dismissed workman had become a member of that union, and that union had espoused his cause. Sri Roy urged that the mere fact that the union Itself came into existence after the date of dismissal would not affect the legal position.

6. The question is not free from difficulty, and there is no direct decision dealing with it. But certain principles have been repeatedly laid down by their lordships of the Supreme Court, and I think they would clearly support the contention of Sri Roy. It is now well-settled that, even If, on the date of dismissal of a workman, the dispute was an individual dispute, it may, under some circumstances, become an industrial dispute, on the date of reference under Section 10 of the Industrial Disputes Act. Such a change would take place if it is sponsored by a union or by a considerable number of workmen. To quote their lordships of the Supreme Court in Indian Cable Company, Ltd. v. its workmen 1962-I.L.L.J. 409 at 415:

What Imparts to the dispute of a workman the character of industrial dispute is that it affects the rights of the workmen as a class. That in why the above decisions lay down that the dispute of a single workman would become an Industrial dispute when it is sponsored by a union or by a considerable number of workmen; for it can then be taken that it does affect them as a class. No hard and fast rule can be laid down as to the number of workmen whose association Will convert an individual into an Industrial dispute. That must depend on the facts of each case, and the nature of the dispute. The group might even be a minority, as held by this Court in Associated Cement Companies, Ltd. v. their workmen 1960--1 L.L.J 490. But it must be such as to lead to an inference that the dispute is one which affects workmen as a class.

7. It is also well-settled that the validity of a reference must be judged on the facts as they stand on the date of reference and not as they stood on the date of the dismissal. This was reiterated in the well-known case, Bombay Union of Journalists and Ors. v. the "Hindu," Bombay, and Anr. 1961--II L.L.J. 436 in the following terms at pp. 442-443:

...In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the dispute was taken up as supported by the union of the workmen of the employer against whom the dispute is raised by an Individual workman or by an appreciable number of workmen.

It is true that some of the observations in this judgment were held to be mere obiter in Workmen of Dharampal Premchand (Saugandhi) v. Dharampal Premchand (Saugandhi) 1965-I.L.L.J. 668 at 672. But, on the question as to what is the crucial date the observations contained in this judgment have been reiterated by their lordships of the Supreme Court in subsequent judgment. Thus, in Indian Cable Company, Ltd. v. its workmen 1962--I L.L.J. 409, the aforesaid observations were reiterated. It is true that, if there is undue delay between the date of dismissal of a particular workman and the date on which the labour union took up his cause and hereby made it an industrial dispute, that delay may affect the relief to be granted by the tribunal to the workmen, as pointed out by the Madras High Court in United Bleachers (Private), Ltd , Mettupalayam v. Labour Court, Coimbatore 1965--II L.L.J. 237; but it cannot have the effect of Invalidating the reference Itself.

8. On these principles, there seems no special reason why, in the case, it could not be held that the dispute regarding the validity of dismissal of workman Tulsi became an industrial dispute on 19 December 1983, the date on which the reference was made. Before that date a union of the workers of Jamadoba Colliery had come into existence, the dismissed workman had become a member of the union and his cause had been espoused by the union. I am usable to find any principle in support of the view taken by the tribunal that the union Itself muse have been in existence prior to the date of dismissal, and that the workman should have been a member of that union prior to that date. If such a view be taken, the growth of trades union movement on healthy lines will be somewhat adversely affected. In some establishments, there may be only one trade union of workers, which union itself is completely under the influence of the employer. In such an establishment, if the employer dismisses one of its workmen, who is hostile to that trade union, the union will not take up his cause. He can make the dispute an industrial dispute only If a sufficient number of workmen take up his cause before the date of reference. But, if the same number of workmen constitute themselves into a union according to law and sponsor the cause of the dismissed workman, who also becomes a member of the union, there seems no SUfficient ground to hold that the dispute has not become an Industrial dispute What a mere group of workmen can do without constituting themselves into a union may as wall be done by them after becoming a union according to law. It is true that a trade union is a distinct legal personality separate from that of the group of workmen who are members of the same, but this difference seems irrelevant in considering whether the dispute has become an industrial dispute or not. If the view contended for by Sri Balbhadra Prasad Singh is accepted, undue restrictions will be placed in the formation of trade unions other than those which are completely dominated by the employer.

9. The various decisions, on which the learned tribunal has relied and which were also cited before us, relate to cases where the workman's cause was sponsored by a union of a different establishment. Thus, in the Andhra case, Padarthi Ratnam & Co., Guntur v. Industrial Tribunal 1958--II L.L.J. 290, the dismissed workmen, after the date of their dismissal, became members of a trade union which, though relating to the same industry, was in respect of a different establishment. It was also held, on a discussion of the facts, that the dismissed workmen joined the union only for the purpose of raising the dispute about the validity of their dismissal. Under such circumstances, the learned Judges held that the individual dispute did not become an industrial dispute. This decision was followed by the Kerala High Court in Shamsuddin v. State of Kerala 1961--I L.LJ. 77. There also, the dismissed workman, after the date of their dismissal. Joined a union consisting of workers of different establishments. It was held that the existence of community of interest was essential to justify an individual dispute to become an Industrial dispute, and that mere sympathy from fellow-workers of some other employer will not suffice. This difficulty always arises where the cause of the dismissed workmen is sponsored by a union not under the same establishment but of a different establishment; but, where the union consists of workers under the same establishment, the community of Interest is always there, and there is no question of mere sympathy.

10. But, even in those cases where the cause of the dismissed workman is sponsored by a union consisting of workers of another establishment, their lordships of the Supreme Court have laid down that, under some circumstances, the individual dispute may become an Industrial dispute. I may refer to the recent pronouncements of the Supreme Court in Workmen of Dharampal Premchand v. Dharampal Premchand 1965--I LLJ 668 (vide supra) where the view taken in the Hindu case 1961--II L.L J. 436 (vide supra), was explained, and it was pointed out that, if an appreciable number of workers of the same establishment joined a union consisting of workers of a different establishment, such a union may, by taking up the cause of the dismissed workman, make it an Industrial dispute. 1961--II LL.J. 436 (vide supra) was distinguished on the ground that an appreciable number of workers of the establishment concerned had not joined the union which took up the cause of the dismissed workmen; but, at the same time, their lordships uttered the following words of caution (see p 673):

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 dispute 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 ....

This passage shows clearly that it cannot be laid down as a principle of universal application that, unless the trade union, which sponsored the cause of the dismissed workman, was in existence prior to the date of his dismissal, an industrial dispute cannot arise under any circumstances.

11. Sri Balbhadra Prasad Singh for the opposite party relied on the following passage (especially the portion Italicized) in the aforesaid judgment:

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 in such an establishment have no union of their own, and an appreciable number of such workmen had joined such other union before dismissal.

From this passage, it was urged that the membership of the union must be prior to the date of dismissal of the workman concerned under all circumstances, even though the union may consist of workers of the same establishment. In my opinion, such an inference does not follow from the aforesaid passage, especially in view of the caution which their lordships themselves uttered about adopting pragmatic approach and not following any rigid or inflexible formula. They were not dealing with a case like the present one where the union, which sponsored the cause of the workman, consisted of workers under the same employer. The Punjab decision in Khadi Gramodyog Bhawan Workers' Union New Delhi v. Krishnamurthi (E ) Industrial Tribunal, Delhi 1966--II L L J. 261, was relied on. Bat a careful scrutiny of the judgment would not support the contention raised by Sri Balbhadra Prasad Singh for the opposite party. There, is was alleged that the dismissed workman became a member of the union after the date of his dismissal, and that his cause was espoused by that union prior to the date of reference by the Government. Their lordships, bow-ever, held that they were bound by the finding of fact of the single Judge that there was nothing to show than the cause of the individual workman was taken up by a union before the date of reference. To quote their own words at p 264:

In the absence of any finding even by the tribunal we will not venture to give one for the first time in the Letters Patent Appeal.

It is true that, in the subsequent paragraph (p. 264), they expressed their agreement with 1958--II L.LJ. 290 (already cited), bat took care to leave open the question, which is of vital importance here, by the following words:

We might make it clear that in view of the limited scope of the arguments raised before the learned single Judge we are expressing no opinion as to whether it will make any difference if the cause had been taken up by a union of the workmen of the establishment in which the dismissed employee was employed.

Thus, this decision has expressly left open the very question which arises for consideration here, and it cannot be of any help to the company.

12. I am, therefore, of the opinion, that, in view of the principles laid down by their lordships of the Supreme Court themselves, as pointed out above, and the words of caution uttered by them in 1965--I L L J. 668 at 673, there la no principle which can justify the view that, even though a union, consisting of the employees under the same establishment, sponsored the cause of the dismissed workman, the dispute did not become an industrial dispute merely because the union came into existence after the date of his dismissal. For these reasons, the application is allowed, the order of the tribunal, dated 15 August 1965 (annexure A) is set as de, and it la directed to re-hear Reference No. 97 of 1963 on merits and dispose of it according to law. There will be no order as to costs.

K.B.N. Singh, J.

13. I agree.