Citation Codes

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Case Number

Civil Writ No. 2322 of 1963

Advocates

Bhagirath Dass and B. K. Jhingan
D. N. Awasthy for
Respondents 1 and 3; Anand Swaroop and R. S. Mittal
for Respondent No. 2

Judges

H.R Khanna, J.

Acts

SECTION 10 A INDUSTRIAL DISPUTES ACT
Rule 3 of the Industrial Disputes (Punjab) Rules 1958.
Rule 3 of the Industrial Dispute (Punjab) Rules 1958,
sub-section (2) of section 10

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

The British India Corporation Limited (petitioner) challenged an order dated 13 November 1963 of the Industrial Tribunal by means of a petition under Articles 226 and 227 of the Constitution of India. The Tribunal had repelled the petitioner's objection to the validity of a reference made to the Tribunal under sub-section (2) of section 10 of the Industrial Disputes Act.

Facts (concise): In connection with a fight between two employees (Jiva Mal, respondent No. 2, and Waryam Singh) the petitioner dismissed Jiva Mal by order dated 20 August 1958. At that time other disputes were pending and the management applied under section 33(2) of the Act for approval; the Tribunal refused approval for Jiva Mal for non-compliance with section 33. The management then ordered payment of wages till 1 December 1958. A fresh application for approval of dismissal was refused by the Tribunal; a writ against that refusal was dismissed by a Division Bench on 12 October 1961.

Subsequently, on 12 September 1962 the Works Union issued a demand notice claiming Jiva Mal's dismissal was illegal and sought reinstatement with back wages (item No. 8). During conciliation both parties jointly applied on 18 October 1962 that the dispute in item No. 8 be referred for adjudication. The Union filed Form 'A' on 19 December 1962 (naming a dispute but not fixing the dismissal date); the management also filed Form 'A' specifying the date as 20 August 1958. The Punjab Government referred the dispute to the Tribunal under sub-section (2) of section 10 of the Act, in terms that did not expressly state the date of dismissal. The management objected in the Tribunal that the reference was invalid because it did not mention the date 20 August 1958; the Tribunal repelled that objection, leading to this writ petition.

Legal Issues Presented

Whether the reference to the Industrial Tribunal made by the appropriate Government under sub-section (2) of section 10 of the Industrial Disputes Act was valid when the terms of reference did not mention a date of dismissal that the petitioner had specified in its Form 'A'.
Whether a variation between the subject-matter as jointly requested before the Conciliation Officer and the particulars subsequently entered in the formal application (Form 'A') by one party can render a reference under sub-section (2) of section 10 invalid.

Arguments of the Parties

Petitioner's Arguments (management / Mr. Bhagirath Das)

The petitioner contended that the reference was invalid because the dispute specified in the reference differed from the dispute specified in the application in Form 'A' filed by the petitioner: the Form 'A' specified dismissal on 20 August 1958, whereas the reference omitted any date. The omission, it was argued, meant the reference did not match the petitioner's application and was therefore invalid.
The petitioner relied on three authorities (Travancore Mineral Workers' Union v. Government of India; Free Press Labour Union v. State of Madras; and Karamchand Thappar and Brothers Ltd. v. Their Clerical Employees) in support of its position that a reference must correctly reflect the nature of the application or the manner in which it was made.

Other Parties' Positions (Workers' Union / Conciliation joint request)

The Workers' Union's position, as represented in the joint application and Form 'A' it filed, was that in view of the withholding of approval under section 33 and wages having been paid up to 1 December 1958, the dismissal should be treated as occurring on a later date rather than 20 August 1958. The joint request made before the Conciliation Officer (18 October 1962) did not specify any particular date.
The parties jointly asked that the dispute referred in item No. 8 of the demand notice ("The dismissal of Jiva Mal Clerk is illegal. He should be reinstated and be paid the full back wages.") be referred for adjudication. The Government's reference followed that joint request without explicitly restating the dismissal date.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Travancore Mineral Workers' Union v. Government of India (1957-1958) 12 FJR 180 (Punj)	Authority for the proposition that where only one party makes an application for referring a dispute, that party cannot insist that the reference be made under sub-section (2) of section 10 of the Act.	The Court held this authority inapposite on the facts of the present case because the present reference arose from a joint request by both parties and thus the factual matrix differed.
Free Press Labour Union v. State of Madras, AIR 1952 Mad 74	Held that sub-section (2) of section 10 does not entitle any one party to an industrial dispute to compel the Government to make a reference.	The Court observed this authority does not help the petitioner because the facts here involved a joint request by both parties; thus the cited principle did not assist the petitioner's contention.
Karamchand Thappar and Brothers Ltd. v. Their Clerical Employees (1952-1953) 4 FJR 305 (LATI-Cal)	Contained observations about sub-section (2) of section 10, but was essentially concerned with validity of a reference under clause (1) of section 10 and held that in such a case no application in the prescribed form was necessary.	The Court noted that this authority was not on all fours with the present facts and therefore did not support the petitioner's case.

Court's Reasoning and Analysis

The Court began with a plain reading of sub-section (2) of section 10 of the Industrial Disputes Act: when the parties apply in the prescribed manner, whether jointly or separately, for a reference and the appropriate Government is satisfied that the applicants represent the majority of each party, the Government shall make the reference. The statute therefore permits either joint or separate applications, subject to the Government's satisfaction about representation.

The petitioner's principal contention was that the reference made by the Government differed from the petitioner's own Form 'A' because the Form 'A' filed by the petitioner named 20 August 1958 as the dismissal date while the reference omitted any date; the petitioner argued that this variance rendered the reference invalid.

The Court rejected that contention for the following reasons (as stated in the opinion):

There was a genuine difference between the parties about what should be treated as the date of dismissal: the management insisted on 20 August 1958 (the date of the dismissal order), whereas the Workers' Union treated the dismissal as occurring on a later date given that approval under section 33 was withheld and wages were paid until 1 December 1958. The reference left the date open and therefore did not foreclose either party's position.
The primary dispute referred was the core question of whether the dismissal of Jiva Mal was justified and, if not, what relief he should receive. The precise date of dismissal was ancillary to that main dispute; the Tribunal could therefore adjudicate the central question without being rigidly bound by a specific date in the terms of reference.
The parties had made a joint request before the Conciliation Officer on 18 October 1962 for referral of item No. 8 of the demand notice; that joint request did not specify a date of dismissal. The reference essentially followed that joint request. The Court viewed the Form 'A' filing by the petitioner that attempted to specify 20 August 1958 as an attempt to "wriggle out" of the earlier joint position and held that such a unilateral variation should not be allowed to narrow the agreed scope of the joint request.
The Court emphasized policy and pragmatic consequences: accepting the petitioner's technical objection could produce absurd results (for example, a Tribunal unable to grant relief because the dated reference did not align with a later finding as to the actual date of dismissal), reducing adjudication to a farce. The Court was unwilling to exercise its discretionary writ jurisdiction to bring about such a result where the petitioner sought to repudiate its earlier solemn undertaking and where no manifest injustice to the petitioner was shown.
Finally, the Court stated a more general view that where parties mutually agree before a Conciliation Officer that a dispute be referred and make a joint request, a later unilateral variation in the formal application (Form 'A') by one party intended to secure undue advantage would not prevent the Government from making the reference under sub-section (2) of section 10 in accordance with the joint request.

The Court thus applied statutory interpretation, considerations of fairness between parties, the fact of the joint request, and practical consequences to dismiss the technical objection to the reference.

Holding and Implications

Holding: The petition was dismissed. The Court upheld the Industrial Tribunal's order repelling the petitioner's objection to the validity of the reference under sub-section (2) of section 10 of the Industrial Disputes Act.

DISPOSED OF

Implications and consequences:

The direct effect is that the reference to the Industrial Tribunal stands and the Tribunal may proceed to adjudicate the substantive dispute about the validity of Jiva Mal's dismissal.
The parties were ordered to bear their own costs.
The Court declined to set aside the reference on the technical ground of a date variation in a formally filed Form 'A' when the parties had earlier made a joint request for reference and the terms of the reference left the date open; the decision rests on the particular facts and the Court considered the position inappropriate to disturb by exercise of writ jurisdiction. The opinion does not announce a broader new precedent beyond its reasoning that a unilateral variation in Form 'A' will not necessarily invalidate a reference made pursuant to a joint request.

End of summary.

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British India Corporation Ltd. v. Industrial Tribunal, Punjab And Others

1. The British India Corporation Limited by means of this petition under Articles 226 and 227 of the Constitution of India seeks to assail the order dated 13th November, 1963 of the Industrial Tribunal by which the learned Tribunal repelled the objections of the petitioner with regard to the validity of the reference to the Tribunal under sub-section (2) of section 10 of the Industrial Disputes Act (hereinafter referred to as the Act).

2. The brief facts of the case are that in connection with some fight between Jiva Mal respondent No. 2 and Waryam Singh, employees of the petitioner company its New Egerton Woollen Mills, Dhariwal, the management of the petitioner-company dismissed Jiva Mal by order dated 20th August, 1958. Waryam Singh was also dismissed and his dismissal was upheld by the Industrial Tribunal, but we are not concerned with that. At the time of the dismissal of Jiva Mal certain disputes were pending for adjudication before the Tribunal and, accordingly, the management made an application under sub-section (2) of section 33 of the Act for obtaining approval for their action. The Tribunal did not grant that approval regarding Jiva Mal on the ground of non-compliance with the provisions of section 33 of the Act. The Management thereupon passed an order directing that Jiva Mal be paid wages till 1st December 1958. A fresh application was then filed seeking approval of dismissal but the Tribunal declined to give approval and dismissed the application. A writ petition was filed against this order but it was dismissed by a Division Bench of this Court on 12th October, 1961*. On 12th September, 1962 the Works Union of the Mills gave a demand notice to the petitioner-company claiming that the dismissal of Jiva Mal was illegal and he should be reinstated. The parties' counsel are agreed that item No. 8 of the said notice was to the following effect:

“The dismissal of Jiva Mal Clerk is illegal. He should be reinstated and be paid the full back wages.”

3. In pursuance of the above demand notice, conciliation proceedings were held by the Conciliation Officer, Jullundur, and during the course of conciliation the parties jointly made on 18th October, 1962 an application before the Conciliation Officer, the operative part of which was as under:

“It is hereby requested that the demand No. 8 in the demand notice dated 12-9-1962 surrounding the wrongful and illegal alleged dismissal may be referred for adjudication. This is a joint request of both the parties.”

4. This application was signed by the representatives of the Management as well as the Workers Union. Certain formalities had to be complied with in pursuance of the above agreement, but it appears that the Management wanted to wriggle out of that agreement. Accordingly on, the following day, that is, on 19th October, 1962, letter was addressed by the Management in which it wanted that the date of dismissal of Jiva Mal should be incorporated in the agreement and be mentioned as 20th August 1958. The Conciliation Officer wrote to both the parties that they should do the needful in complying with the formalities. Accordingly, on 19th December, 1962 the President of the Workers Union sent letter (Annexure ‘D’) to the Conciliation Officer. Enclosed with that letter, was Form ‘A’ duly filled in as required by Rule 3 of the Industrial Disputes (Punjab) Rules 1958. In this application the dispute was specified to be:

“Whether the dismissal or whatsoever of Shri Jiva Hal Clerk-in-charge, is justified and in order? If not, whether he should be reinstated to his job with full back wages?”

5. The Management also filled in Form ‘A’ and in that specified the dispute to be:

“Whether Shri Jiva Mal was rightly dismissed on 20th August 1958? If not, to what relief he is entitled.”

6. The Punjab Government thereupon referred the following dispute for adjudication to the Tribunal under sub-section (2) of section 10 of the Act:

“Whether the dismissal of Shri Jiva Mal, Clerk-in-charge is justified and in order? If not to what relief is he entitled?”

7. The Management thereupon sent a letter dated 15th April 1958 to the Punjab Government stating that in the reference the date of dismissal should also be mentioned as 20th August, 1958. As no action apparently was taken on the above representation of the Management, the Management took an objection before the Tribunal about the validity of the reference on the ground that the date of dismissal should have been mentioned to be 20th August 1958 in the terms of reference. This objection, as stated above, was repelled by the learned Tribunal. Feeling aggrieved, the petitioner has approached this Court by means of this writ petition.

8. sub-section (2) of section 10 of the Act, under which the reference was made to the Tribunal, reads as under:

“(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, Labour Court Tribunal or National Tribunal the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.”

9. Plain reading of the above sub-section goes to show that the appropriate Government has to make a reference of an industrial dispute to a Board, Court, Labour Court, Tribunal or National Tribunal if the parties to the dispute apply in the prescribed manner for the reference of the dispute provided the Government is satisfied that the persons applying represent the majority of each party. It is not, however, necessary that the parties to the dispute should apply jointly and it is quite enough whether they apply jointly or separately.

10. Mr. Bhagiradi Das appearing on behalf of the petitioner has not disputed that the condition about the satisfaction of the Government that the persons applying represented the majority of each party has been fulfilled. His contention, however, is that the nature of dispute mentioned in the reference made to the Tribunal and the one specified in the application in the prescribed form ‘A’, which was filed on behalf of the petitioner, are different and not identical. Whereas, it is pointed out, the application in Fonn ‘A’ filed on behalf of the petitioner specified the dispute to relate to the dismissal of Jiva Mal on 20th August 1958, the actual reference has mentioned the dispute to be in respect of Jiva Mal's dismissal without mentioning the date of dismissal. The reference, according to the learned counsel, is therefore invalid.

11. I have given the matter my consideration and am of the view that the above contention is not well-founded and cannot i.e accepted. It would appear that there is a difference between the parties as to what should be regarded as the date of dismissal of Jiva Mai. According to the management, the date of dismissal is 20th August 1958 because it was on that date that the order of dismissal was made, though the order was subsequently modified in view of the rejection of the application under section 3-3 of the Act and Jiva Mal was paid wages up to 1st December 1958. The stand taken by the Workers' Union, however, is that in view of the fact that the approval under section 33 of the Act for dismissal of Jiva Mal was withheld and wages were paid up to 1st December 1958, the dismissal should be held to have been made not on 20th August 1958 but on subsequent date. The reference actually made leaves the matter open and the main question as to whether the dismissal of Jiva Mal was rightly made has been referred to the Tribunal. The reference has an element of elasticity and avoids any rigid position so that in fairness no party may be handicapped by the terms of reference in presenting its case. Indeed, the vital question of dispute and which needs adjudication between the parties is about the validity of the dismissal of Jiva Mal and the question as to whether his dismissal was on 20th August 1958 or on some subsequent date is a matter of only ancillary importance.

12. It is no doubt true that the petitioner also mentioned 20th August 1958 as the date of dismissal in the application in Form ‘A’ in the subject matter of the dispute to be referred, but no such date was mentioned when the parties jointly agreed before the Conciliation Officer on 18th October 1962 that the dismissal of Jiva Mal should be referred for adjudication. The joint request was for reference of the dispute as contained in item No. 8 in the demand notice admittedly did not pinpoint to any particular date as the date of dismissal. The dispute, which has been referred for adjudication, is essentially in accordance with the application dated 18th October 1962 which was jointly made by the parties for referring the dispute to the Tribunal. The mere fact that in the matter of formalities the petitioner while filing from ‘A’ has tried to wriggle out from the original position to which it was committed, cannot have the effect of restricting or whittling down the scope of the agreement dated 18th October 1962 regarding which the parties had made a joint request.

13. In case the position taken by the petitioner were accepted, it can lead to all kinds of difficulties and may even render the entire reference to be farcical. In base the date of dismissal of Jiva Mal lie mentioned as 20th August 1958 in the reference and the Tribunal finds on the material that the dismissal, though wrongful, look place on a subsequent date, in that event the Tribunal might possibly find it difficult to grant any relief. The entire proceedings of adjudication would in such a case be reduced to a farce. This is a position which cannot be countenanced and this Court, in the exercise of its discretion in this petition for writ, of high prerogative would decline to grant any relief to the petitioner who seeks to bring about such a result. Besides that, the petitioner-company wants to go back on the solemn undertaking given by it before the Conciliation Officer on 18th October 1962, and this Court would be most reluctant to use its discretion in favour of the petitioner when no manifest injustice has been done to it.

14. Apart from the above, I am of the view that where the two parties to an industrial dispute mutually agree that the dispute be referred for adjudication to the Industrial Tribunal and for that purpose make a joint request to the Conciliation Officer, the fact, that in the formal application in Form ‘A’ mentioned in Rule 3 of the Industrial Dispute (Punjab) Rules 1958, one of the parties makes, with a view to draw an undue advantage, some variation while specifying the subject matter of the agreed dispute, would not prevent the Government from making a reference of the dispute, as agreed before the Conciliation Officer, to the Industrial Tribunal under sub-section (2) of section 10 of the Act.

15. Mr. Bhagirath Das has referred to three cases, Travancore Mineral Workers' Union v. Government of India, (1957-1958) 12 FJR 180 (Punj); Free Press Labour Union v. State of Madras, AIR 1952 Mad 74 and Karamchand Thappar and Brothers Ltd. v. Their Clerical Employees, (1952-1953) 4 FJR 305 (LATI-Cal). The petitioner, in my opinion, cannot derive any benefit from the above authorities because in none of them the facts were similar to those of the present case. The questions arising for determination in those authorities were likewise different. In Travancore Mineral Workers' Union case, (1957-1958) 12 FJR 180 (Punj) it was held that where only one of the parties makes an application for referring a dispute it would not be open to that party to contend that the reference should be made under sub-section (2) of section 10 of the Act. In the Free Press Labour Union case, AIR 1952 Mad 74 again the Court held that sub-section (2) of section 10 of the Act does not entitle anyone of the party to an industrial dispute to compel the Government to make a reference.

16. In the case of Karamchand Thappar and Brothers, (1952-1953) 4 FJR 305 (LATI-Cal) though there were some observations about sub-section (2) of section 10 of the Act, the Court was essentially dealing with the validity of a reference under clause (1) of section 10 of the Act and held that in such a case no application in the prescribed form is necessary.

17. The petition, accordingly, fails and is dismissed but in the circumstances I leave the parties to bear their own costs.

KH/AGI/V.B.B

18. Petition dismissed.

British India Corporation Ltd. v. Industrial Tribunal, Punjab And Others

Structured Summary of the Court's Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (management / Mr. Bhagirath Das)

Other Parties' Positions (Workers' Union / Conciliation joint request)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

British India Corporation Ltd. v. Industrial Tribunal, Punjab And Others

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