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G. Gurumurthy And Another v. K. Ramulu And Others

Andhra Pradesh High Court

Aug 6, 1957

Judgment

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Factual and Procedural Background

This is an application under Article 226 of the Constitution seeking a writ of certiorari to quash (a) the order of the Industrial Tribunal, dated 24th November 1954, in Industrial Dispute No. 11 of 1954 and (b) the order of reference in G.O.Ms No. 1140 (Development), dated 29th June 1954.

On 29th June 1954 the Government of Andhra, invoking section 10(1)(c) of the Industrial Disputes Act, 1947, referred the issue for decision whether the termination of services of Sri K. Ramulu (driver) as of 15th January 1953 was justified and, if not, what reliefs he was entitled to. The Salur Motor and General Workers' Union and the petitioners were named as parties. The Industrial Tribunal (Visakhapatnam) held on 24th November 1954 that Ramulu's dismissal was unjustified and ordered reinstatement with back wages excluding five months' wages admittedly already paid. The petitioners appealed to the Labour Appellate Tribunal at Madras which, by order dated 26th September 1955, affirmed the Industrial Tribunal's finding and dismissed the appeal. The writ petition in this Court was filed on 3rd November 1955.

Factual background leading to the reference (as found by the Tribunal and narrated in the opinion): The Parameswari Bus Service partnership was dissolved around early 1952 and the petitioners acquired buses M.D.V 1030 and O.R.K 346 and formed a new partnership. A general strike in September 1952 over bonus and wages involved Sri K. Ramulu, a driver of M.D.V 1030. After the strike he was ordered on 6th October 1952 to do additional night-train pickup duty, transferred on 11th December 1952 to a different route, and warned on 29th December 1952 that failure to comply would lead to termination. The union wrote on 8th January 1953 requesting reconsideration. On 11th January 1953 the management sent a letter terminating Ramulu's services effective 15th January 1953; five other drivers were dismissed around the same time.

Conciliation by the District Labour Officer produced a tentative agreement dated 22nd February 1953 under which the owners agreed to pay wages to the six dismissed workers until their cases were finally disposed of by a Tribunal, to pay wages as per the Payment of Wages Act, the Union agreed to abandon the movement started on 10th February 1953, and the owners were free to run the buses. Subsequently all dismissed workers except Ramulu were reinstated. The Government of Madras, by Memorandum dated 13th August 1953, declined to refer the matter for adjudication and suggested six months' wages as compensation instead of reinstatement. Later correspondence, union requests to refer the matter, notices of a proposed Satyagraha and communications from the Commissioner of Labour were recorded. The Government of Andhra, after formation on 1st October 1953 and in light of later developments, made the formal reference on 29th June 1954.

Legal Issues Presented

Whether the order of the Government of Madras dated 13th August 1953 (declining to refer) was binding on the successor Government of Andhra and, if so, whether the Government of Andhra therefore lacked jurisdiction to make a reference under section 10(1)(c) of the Industrial Disputes Act.
Whether a reference under section 10(1) of the Act can be made without following the procedure prescribed in section 12(5) (i.e., whether the Government must first follow the conciliation procedure before making a reference).
Whether the dismissal of a single worker (Sri K. Ramulu) could constitute an "industrial dispute" within the meaning of the Act, thereby giving the Industrial Tribunal jurisdiction to decide the matter.
Whether the Industrial Tribunal's (and the Labour Appellate Tribunal's) conclusion that the dismissal was unjustified and that reinstatement with back wages was appropriate was erroneous on the merits and liable to be set aside by this Court under Article 226.

Arguments of the Parties

Petitioners' Arguments

The Government of Madras had already passed a valid order on 13th August 1953 declining to refer the dispute; that order was conclusive and binding on the successor Government of Andhra, so the subsequent reference by Andhra was illegal.
The Government of Andhra did not follow the procedure indicated in section 12(5) of the Industrial Disputes Act before making the reference; therefore the reference was invalid.
The reference was without jurisdiction because the dismissal of a single worker does not constitute an "industrial dispute" under the Act.
The award directing reinstatement of the first respondent was incorrect on the merits (i.e., the dismissal was justified), and both Tribunals erred in finding victimisation and ordering reinstatement with back wages.

Respondent / Union Arguments

The opinion does not contain a detailed account of the respondents' or the Union's separate legal arguments beyond the factual narrative and the fact that the Workers' Union consistently espoused the case of the first respondent and entered into and sought enforcement of the conciliation agreement dated 22nd February 1953.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Madras v. C.P. Sarathy. 1953 1 M.L.J 212.	To establish that an order of reference under section 10(1) is an administrative act; the Government's decision as to existence/expediency of referring an industrial dispute is administrative and not subject to close judicial scrutiny as if it were a judicial/quasi-judicial determination.	The Court relied on this principle to hold that the earlier Madras Government's refusal to refer (13th August 1953) did not preclude the Government of Andhra from making a fresh reference after considering subsequent events; the reference by Andhra under section 10(1) was therefore not invalid merely because Madras had earlier declined to refer.
Raju's Cafe, Coimbatore v. The Industrial Tribunal (citation as referenced in opinion).	To support the proposition that the Government may make a reference under section 10(1) independently of following the procedure in section 12(5); i.e., reference-making jurisdiction under section 10 is independent of section 12.	The Court invoked this authority to reject the petitioners' contention that section 12(5) procedures had to be followed before making a reference under section 10(1); it held that the Government of Andhra could validly make the reference without the prior procedure prescribed in section 12(5).
Newspapers Ltd. v. Sate Indutsrial Tribunal. A.I.R 1957 S.C. 532.	The petitioners relied on this decision to argue that the dismissal of a single worker could not constitute an industrial dispute (as a ground to challenge the Tribunal's jurisdiction).	The Court noted the petitioners' reliance but observed no indication that this objection was pressed before the Tribunals; on the facts, because the Workers' Union espoused the first respondent's case and the reference explicitly named the Union and the petitioners, the Court held that the dismissal of an individual, when espoused by a union, can constitute an industrial dispute and the Tribunal had jurisdiction.

Court's Reasoning and Analysis

The Court proceeded in a stepwise manner addressing each principal contention raised by the petitioners:

On whether the prior Madras Government's refusal to refer precluded a later reference by the Government of Andhra: the Court treated references under section 10(1) as administrative acts (following State of Madras v. C.P. Sarathy). Because the Government of Andhra had available additional material and subsequent events (further correspondence, union requests, the Satyagraha notice, and communications from the Commissioner of Labour), it was open to that Government to form its own opinion and make a fresh reference. Therefore the earlier Madras order was not binding in a way that would oust Andhra's jurisdiction.
On whether the procedure in section 12(5) had to be followed before making a section 10(1) reference: the Court held that the jurisdiction to make a reference under section 10(1) is independent of the conciliation procedure in section 12. Relying on the reasoning cited from Raju's Cafe, the Court accepted that the Government could validly make a reference without first completing the section 12 procedure.
On whether the matter referred was an "industrial dispute": although the petitioners argued that the dismissal of one worker could not be an industrial dispute (relying on Newspapers Ltd. v. State Industrial Tribunal), the Court observed that the Workers' Union throughout espoused Ramulu's case, that there had been an agreement between the union and the petitioners, and that subsequent agitation and correspondence concerned non-implementation. The reference named the Union and the petitioners as parties. On these facts the Court concluded that an individual workman’s case, when espoused by a registered union, does constitute an industrial dispute within the Act, and thus the Industrial Tribunal had jurisdiction.
On the merits (whether dismissal was justified): the Court recognized that justification of dismissal is essentially a question of fact. Both the Industrial Tribunal and the Labour Appellate Tribunal had concurrently held that the dismissal was an act of victimisation and ordered reinstatement with back wages (less wages already paid). The High Court found no error in the concurrent factual conclusions that would justify interference under Article 226.

On the basis of the above analysis, the Court concluded that none of the petitioners' grounds entitled them to relief under Article 226.

Holding and Implications

Holding: The writ petition is DISMISSED. The petitioners are not entitled to invoke the jurisdiction of this Court under Article 226 to quash the Industrial Tribunal's award or the Government of Andhra's reference. The petition is dismissed with costs and the Advocate's fee fixed at Rs. 100.

Implications:

The Industrial Tribunal's award reinstating Sri K. Ramulu with back wages (subject to the deduction of wages already paid) and the Labour Appellate Tribunal's affirmation of that award remain effective and were not set aside by this Court.
The Government of Andhra's reference under section 10(1)(c) was valid notwithstanding the earlier Madras Government's refusal to refer and despite non-completion of the section 12(5) procedure prior to reference; the Court treated such decisions as administrative and open to reconsideration on fresh material.
No broader precedent beyond the application of the cited authorities to these facts is expressly announced by the Court; the decision results in the direct effect on the parties (dismissal of the writ petition and affirmation of the Tribunal awards) and the opinion does not suggest the setting of a new legal doctrine beyond statutory interpretation already applied.

Show all summary ...

1. This is an application under Article 226 of the Constitution for the issue of a writ of certiorari to quash the order of the Industrial Tribunal, dated the 24th November, 1954, in Industrial Dispute No. 11 of 1954 and also the order of reference made in G.O.Ms No. 1140, Development, dated 29th June, 1954.

2. On the 29th June, 1954, in G.O.Ms No. 1140, the Government of Andhra, in exercise of the powers conferred by section 10(1)(c) of the Industrial Disputes Act of 1947, referred to the Industrial Tribunal, Visakhapatnam, the following issue for decision:

“Whether the termination of the services of Sri K. Ramulu, driver, with effect from 15th January, 1953 is justified; if not, to what reliefs is he entitled?”

3. The Salur Motor and General Workers' Union and the petitioners were mentioned as the parties to the dispute. Notices were duly issued on the parties and they filed written statements containing their respective contentions. In its award, dated the 24th November, 1954, the Industrial Tribunal, Visakhapatnam, held that the dismissal of Ramulu (1st respondent) was unjustified and that he should be reinstated with effect from the date of dismissal. The Tribunal also held that the 1st respondent was entitled to back wages from the date of dismissal up to the date of reinstatement, excluding the five months' wages which the management admittedly paid to him. Against the said award, the petitioners preferred an appeal to the Labour Appelate Tribunal of India at Madras. By their order, dated the 26th September, 1955, the Labour Appellate Tribunal affirmed the finding of the Industrial Tribunal and dismissed the appeal. The above writ petition was filed in this Court on the 3rd November, 1955, for the reliefs mentioned above.

4. On behalf of the petitioners it is contended (1) that there is a valid order passed by the Government of Madras on the 13th August, 1953, declining to refer the dispute for adjudication and that the said order is conclusive and binding on the successor Government and that the reference made by the Government of Andhra is illegal inasmuch as the procedure indicated in section 12(5) was not followed before the reference was made; (2) that the reference made by the Government of Andhra is without jurisdiction inasmuch as the dismissal of a single worker does not constitute an industrial dispute; and (3) that the award directing the reinstatement of the first respondent is bad on the merits.

5. In order to appreciate the above contentions, it is necessary to mention briefly the facts preceding the reference. The Parameswari Bus Service was a partnership consisting of the petitioners and others and it was owning several buses, of which M.D.V 1030 is one. The firm was dissolved in or about the beginning of 1952 and the assets of the firm were divided in specie among the partners. The buses M.D.V 1030 and O.R.K 346 fell to the share of the petitioners at the said division and they formed themselves into a new partnership. In or about September, 1952, there was a general strike by several bus employees for bonus and wages, in which the first respondent, who was employed as a driver of the bus M.D.V 1030, took a leading part. That strike terminated by 3rd October, 1952, after the management granted certain concessions to the employees. On the 6th of October, 1952, the petitioners directed the first respondent to do the additional duty, of picking up passengers arriving by the night trains. On the 11th of December, 1952, the first respondent was transferred to drive the bus from Salur to Parvatipur. On the 29th of December, 1952, the first respondent was informed by the petitioners that he had disobeyed their earlier order and that if he would not comply with that order within a week, his services would be terminated. The President of the Workers' Union, Salur, addressed a letter on 8th January, 1953, to the petitioners explaining the difficulties that the first respondent would be put to, if he had to shift from Vizianagaram to Salur and requesting the management to reconsider the matter. On 11th January, 1953, the ??? sent a letter terminating the services of the first respondent with effect from 15th January, 1953. Along with the first respondent, five other bus drivers were also dismissed by the management at about the same time. An attempt at conciliation by the District Labour Officer resulted in a tentative agreement, dated the 22nd of February, 1953, between the President of the Workers' Union and the petitioners. The terms agreed to are as follows:

“(1) The owners of M.D.V 1030 and O.R.K 346 agree to pay wages to the six dismissed workers till their cases are finally disposed of by an Industrial Tribunal.

(2) The owners agree to pay the wages as per the Payment of Wages Act.

(3) The Union agree to abandon the movement started against the owners from 10th February, 1953, with immediate effect.

(4) The owners are at liberty to run the buses with immediate effect”.

6. It appears from the evidence that subsequently the workers, except the first respondent, were reinstated in service. On the 13th of August, 1953, the Government of Madras by their Memorandum No. 55487-P-III/53-2 informed the Secretary of the Workers' Union that the ‘Government do not see any case for adjudication with regard to the reinstatement of the worker Sri K. Ramulu (respondent) and he is requested to advise the worker to accept the payment of six months' wages as compensation in lieu of reinstatement’. On the 11th of September, 1953, the Labour Officer intimated the petitioners and the President of the Workers' Union that they should meet him at Bobbili for conciliation. On the 18th of September, 1953, the President of the Union wrote to the petitioners for payment of wages as per the agreement. This was replied to by the petitioners in their letter, dated the 23rd of September, 1953. By his letter, dated, the 24th of September, 1953, the President of the Union requested the Government of Madras to make a reference of the dispute to the Tribunal. On the 26th of September, 1953, the President of the Union wrote to the petitioners to implement the agreement, dated the 22nd of Februay, 1953. On the 30th of May, 1954, the President of the Union gave notice to the petitioners intimating them that the members of the Salur Motor Transport and General Workers' Union would organise a Satyagraha from the 15th of June, 1954. On the 10th of June, 1954 the Commissioner of Labour wrote to the President of the Workers Union that the Assistant Commissioner of Labour would be visiting Vizianagaram on the 28th and he was asked to meet him and represent his grievances. The President of the Workers' Union was requested to desist from organizing the Satyagraha and not to precipitate matters. On the 29th of June, 1954, the Government of Andhra made a reference under section 10(1)(c) of the Act. In the appendix to the Government order, the issues for decision were set out and the employers and the workers, represented by the Salur Motor Transport and General Workers' Union, were mentioned as the parties to the dispute.

7. Having mentioned the relevant facts, I shall now proceed to consider the contentions raised on behalf of the petitioners. From the narration of the facts made above, it is clear that the order of the Government of Madras was passed on the 13th of August, 1953. The Workers' Union made representations with regard to the dispute to the Government of Madras subsequent to their order, dated the 13th of August, 1953, and subsequently the Government of Andhra, after its formation on 1st October, 1953. The order of the Government refers to the correspondence subsequent to the 13th of August, 1953, viz., the letters from the Workers' Union, dated 24th September, 1953 and 30th May, 1954 and the letters from the Commissioner of Labour, dated 7th December, 1953, 13th February, 1954 and 14th May, 1954. These letters have been exhibited by the Industrial Tribunal. The question then is, is the order of reference made by the Government under section 10(1)(c) of the Act without jurisdiction.

8. It has been argued for the petitioners that the Government of Madras having declined to make a reference the Government of Andhra had no jurisdiction to refer the dispute because (1) the order of the Government of Madras is binding out he Government of Andhra which is its successor; and (2) that the procedure indicated in section 12(5) has not been followed by the Government of Andhra before they made the reference under section 10(1)(c)

9. Dealing with the nature and character of an order of reference under section 10, 1), their Lordships of the Supreme Court observed in State of Madras v. C.P Sarathy . 1953 1 M.L.J 212., thus:—

“…….In making a reference under section 10(1) the Government is doing an administrative act and the fact that it has to from an opinion as to the factual existence of an industrial dispute as a perliminray 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 its 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 industral 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 id 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”.

10. The order of the Madras Government, dated the 13th of August, 1953, was passed on the basis of the material then in their possession. Subsequently there was further correspondence between the President of the Workers' Union and the Labour Officer and also between the Commissioner of Labour and the Government. The Union gave notice of their intention to start a Satyagraha. The Government, after a consideration of the subsequent events, came to the conclusion that there was a dispute which must be referred for the decision of the Tribunal and they accordingly made a reference under section 10(1) of the Act. The fact that the Government of Madras declined to make a reference does not invalidate the order of reference made by the Government of Andhra. The order passed by the Government of Madras is an administrative order and is neither a judicial nor a quasi judicial order. It was open to the Government of Andhra to take into account the subsequent happenings and circumstances and in the event of their being satisfied that there was a dispute to make a reference under section 10(1), and that is what the Government of Andhra have done.

11. The further contention that no reference can be made under section 10(1) without following he procedure laid down in section 12(5) of the Act is unsustainable. Under section 10(1) the Government can make a reference if they are of opinion that an industrial dispute exists or is apprehended. The jurisdiction of the Government to make a reference under section 10(1) is independent of the procedure laid down in section 12(5). As has been pointed out in Raju's Cafe, Coimbatore v. The Industrial Tribunal, it cannot be said that before the Government could make a reference under section 10(1) of the Act, the procedure indicated in section 12 of the Act should be followed. The Government can even independent of section 12, make a reference under section 10.

12. It is then contended that what was referred to for the decision of the Tribunal was not an “industrial dispupte” at all and therefore the Industrial Tribunal had no jurisdiction to make the award, and in support of this contention reliance has been placed upon a decision of the Supreme Court in Newspapers Ltd. v. Sate Indutsrial Tribunal . A.I.R 1957 S.C 532., it may be mentioned at the outset that there is no indication either in the order of the Industrial Tribunal or in that of the Labour Appellate Tribunal that this contention was raised before them. Counsel for the petitioners, however, argued that this ground of objection was raised in the statement filed by the petitioners before the Industrial Tribunal and that ??? was also mentioned in the grounds of appeal filed before the Labour Appellate Tribunal. Even if this ground of objection might have been so mentioned, it does not appear that it was pressed before either of the Tribunals. Assuming that it is open to the petitioners to raise this ground of objection in this writ petition, it may be mentioned that from a consideration of the facts stated above, it was the Workers' Union that had throughout espoused the case of the first respondent. The agreement, dated the 22nd of February, 1953, was between the Union and the petitioners. Thereafter the President of the Workers' Union was complaining that the petitioners had not implemented the terms of the agreement arrived at between them. The subsequent agitation was by the Workers' Union and the reference made under section 10(1) mentions the Workers' Union and the petitioners as parties to the dispute. The contention of the petitioners that the dismissal of a single worker cannot constitute an industrial dispute, cannot therefore be accepted. The case of an individual workman, if espoused by the Workers' Union, constitutes an industrial dispute.

13. The third ground urged on behalf of the petitioners is that the conclusion reached by both the Tribunals, that the dismissal of the first respondent by the petitioners is unjustified, is erroneous it cannot be disputed that the question as to whether the dismissal of the first respondent is justified or not, is essentially one of fact. On a consideration of the facts, both the Tribunals have concurrently held that the order of dismissal of the first respondent is an act of victimisation and that he is entitled to be reinstated in service with back wages, I do not find any error in this conclusion which justifies the interference of this Court under Article 226.

14. For the above reasons, the petitioners are not entitled to invoke the jurisdiction of this Court under Article 226. This writ petition, therefore, fails and is dismissed with costs. Advocate's fee Rs. 100.

Ch. R.

15. Petition dismissed.