Gyanendra Kumar, J.:— This appeal is directed against the order of Varma, J. dated March 3, 1966, allowing the writ petition filed by respondents Nos. 1 to 3 and quashing the order of the Labour Court dated March 22, 1965 which had found that the dispute between the parties was not an industrial dispute within the meaning of the Uttar Pradesh Industrial Disputes Act, hereinafter called the Act.
2. There is no controversy about the preliminary facts. Respondent No. 3, C.S Scott, was appointed a Foreman on May 9, 1956 on six months' probation with the appellant company M/s. Western India Match Company Ltd., Clutterbuckganj, Bareilly, hereinafter referred to as WIMCO or the company. His probationary period was, however, extended from time to time and later on he was transferred to the Labour Office. By means of their letter dated May 29, 1987 the Company terminated the services of C.S Scott, respondent. The matter was taken up by the Regional Conciliation Officer, Bareilly and was registered as case No. 83(B) 11857, but no conciliation could be arrived at. The matter was then referred to the Labour Commissioner, Kanpur but the State Government considered it inexpedient to refer the dispute to the Labour Court. This gave rise to civil misc. writ No. 1469 of 1959 challenging the decision of the State Government in refusing to make a reference to the Labour Court. However, the writ petition was dismissed on the ground that the matter was entirely within the discretion of the State Government. Thereafter fresh representations were made to the State Government to make a reference to the Labour Court. Ultimately by notification dated August 28, 1963, the State Government made a reference to the Labour Court which was registered as Adjudication case No. 140 of 1963. But the Labour Court rejected the reference on March 22, 1965 on the ground that there was no industrial dispute. Aggrieved by the aforesaid order of the Labour Court, respondents No. 1 to 3 filed civil Misc. Writ No. 3252 of 1965 which was allowed by the learned single judge; hence this appeal by the company. The main point involved in the instant appeal is whether there was an industrial dispute within the meaning of the Act. The words ‘industrial dispute’ have been defined in Section 2(1) of the Act. But this definition does not very much help to resolve the controversy between the parties. The first question is, when does a private or individual dispute between the workman and his employers become an industrial dispute? On this subject there is only judge-made law, e.g it has consistently been held that if the individual dispute between a workman and his employers has been sponsored by the trade union of the industry, it becomes an industrial dispute. The next question which follows is as to at what stage such sponsoring should be done by the union. The last question is whether the employee concerned should have already been a member of the sponsoring trade union on the date of his dismissal or on the date of sponsoring or on the date of a reference made by the State Government. All these matters are again mainly dependent upon the case law.
3. In the instant case the contention of the contesting respondents' is that C.S Scott was already a member of the Wimco Workers Union and that soon after his dismissal on May 29, 1957, the Union had taken up his cause and had sent an application dated July 2, 1957 to the Regional Conciliation Officer, Bareilly. The above facts are not admitted by the company, which contends that C.S Scott was not a member of the Union at the time of his dismissal but had joined the Union five years later in June or July, 1952. They also do not admit the sponsoring of the cause of the dismissed employee by the Union on on July 2, 1957.
July 2, 1957.
4. Thee necessary documents to prove or disprove the above contentions of the parties were not on the record. Hence on an application made by the contesting respondents, we directed the Standing counsel to produce the entire record of the conciliation case No. 83 (B) 1957 on March 11, 1968. The Standing Counsel accordingly produced the file on the aforesaid date. The record reveals that on July 2, 1957 the President of the Wimco Workmen Union had submitted an application to the Regional Conciliation Officer complaining that C.S Scott had wrongfully been discharged from service vide management's letter dated May 29, 1957. In this record there is also a written statement dated September 4, 1957, filed by C.S Scott, countersigned by Har Sahai Singh on behalf of the Wimco Workers Union. It is not disputed by the company that Har Sahai Singh was then the President of the Union. However, the Order of the Conciliation Officer dated September 4, 1957 shows that on the aforesaid date, no authorised agent of the Union put in appearance, with the result that no conciliation could be arrived at. These are all authentic documents forthcoming from the custody of the government authorities. The first two documents clearly show that the cause of C.S Scott had really been sponsored by the President of the Union on July 2, 1957 and he had prosecuted the same till at least September 4, 1957 when the written statement of C.S Scott was filed before the Regional Conciliation Officer, counter-signed by the president of the Union. Nevertheless, it appears from the order of the Conciliation Officer of that very date that no-body on behalf of the Union was present to negotiate the terms of conciliation. It is true that the aforesaid application dated July 2, 1957 and the written statement dated September 4, 1957 do not necessarily show that C.S Scott was a member of the Union on those dates.
5. On behalf of the appellant company, Mr. S.N Kacker has invited our attention to clause 2 of the ‘Order under U.P Industrial Disputes Act, 1947’ which lays down that an application for settlement of an industrial dispute may be made before the Conciliation Officer of the area concerned in form I ‘by an officer of a union of which he (workman) is a member’. Mr. Kacker, therefore, argues that it was necessary for C.S Scott to be a member of the Wimco Workers Union before its President could make the application dated July 2, 1957 to the Conciliation Officer. In this connection Mr. Kacker has invited our attention to the letter dated July 1, 1959 (Ex. E/12), addressed by C.S Scott to the management, saying ‘during my brief tenure of service I had not been enrolled as even a member of the existing union of the Wimco Workers’.
6. Relying on the aforesaid letter of C.S Scott and other circumstances mentioned in the findings of the Labour Court dated March 22, 1965, it was, perhaps, rightly held that C.S Scott was not a member of the Union in 1957 or even till after the State Government in the first instance refused to make a reference of the dispute to the Labour Court. But the further finding of the Labour Court, that ‘If a workman is not a member of the Union concerned at the time his services are terminated by his employers, he cannot get his cause espoused by the Union by becoming its member subsequently,’ is-extremely doubtful. As will be instantly shown, the relevant date is the date of the reference made by the State Government. As already noted above, the State Government had made a reference to the Labour Court on August 28, 1963. But more than one year before the said date C.S Scott had admittedly become a member of the Union in July, 1962, and on February 28, 1963 the executive committee of the Union had passed a unanimous resolution saying that the committee would also do the pairvi of C.S Scott's case, as the Wimco Workers Union had been doing before. It may be, as held by the Labour Court, that ‘this membership was obviously a contrivance to give the dispute the colour of a collective dispute’. But the Labour Court was obviously in error when it observed that such a course was not permitted by the scheme of the Act. There is no denying the fact that a responsible officer of the Union did initially espouse the cause of C.S Scott on July 2, 195T and also appeared before the Labour Court to uphold the same.
7. In support of his contention Mr. Kacker has placed reliance on the following authorities:
1. Padarthy Ratnam and Co. v. Industrial Tribunal(1).
2. Shamsuddin v. State of Kerala(2).
3. Khadi Gramodyog Workers' Union v. Industrial Tribunal(3)
8. In the first case it was held by a single Judge of the High Court of Andhra Pradesh that a dispute simpliciter between an employer and workman might develop into an industrial dispute, if the cause is espoused by a union of which he is a member, and that the membership of the union, which would give it jurisdiction to espouse his cause, must be one anterior to the date of the dismissal and not subsequent to it. The primary requirement must be that on the date on which some disciplinary action has been taken against the aggrieved workmen, their cause must be espoused either by the union of which they are members or by a substantial section of the entire establish-ment where the dismissed workmen were formerly employed.
9. Likewise in the second case, a division Bench of the Kerala High Court observed, “Where it is not proved that the cause of the individual worker was taken up by……….the union of which they were members at the time of dismissal, the reference of such dispute at the instance of such union of which the concerned workmen be came members after their dismissal could not be considered valid. It could not be contended that there is no necessity for the aggrieved person being members of the union at the time the act giving rise to the dispute had taken place. The community of interest has been insisted upon in order to exclude those who have no immediate and direct interest, from subsequent participation in any unconnected disputes, and the object would be defeated, were such interest not insisted upon at the initial stages. Such consequences……. could be avoided only by insistence on the community of interest between the aggrieved party and his association being existent at the time the event causing the dispute had happened, and ………..not arisen at a later date. Therefore, in determining whether the dispute be trade dispute or otherwise the material time is when the act complained against has happened, and not when the dispute is referred.”
10. Similarly, in the third case a division Bench of the Punjab High Court held that “an individual dispute can become an industrial dispute only if the cause of an individual worker is espoused by a union of which such a worker was a member on the date of dismissal. The fact that he became a member after the dismissal will be of no avail to him.”
11. It is regrettable that in none of the aforementioned cases was the ruling of the Supreme Court in Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate (4) considered. In order to appreciate the full force of the observations of the Supreme Court, it is necessary to consider the definition of the words ‘industrial dispute’ within the meaning of Section 2(k) of the Central Industrial Disputes Act, which corresponds to Section 2(1) of the U.P Industrial Disputes Act, 1947. The relevant words of this section are:
“2(1) ‘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…….”
12. In the aforementioned case, the Supreme Court pointed out that the expression ‘any person’ must be read subject to two limitations viz. “(1) the dispute must be a real dispute between the parties………so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other, and (2) the person regarding whom the dispute is raised must be one in whose employment, non-employment, terms of employment or conditions of labour (as the case may be) the parties to the dispute have a direct and substantial interest. In the absence of such interest the dispute cannot be said to be a real dispute between the parties. Where the workmen raise a dispute as against their employer, the person regarding whose employment, non-employment, terms of employment or conditions of labour the dispute is raised, need not be, strictly speaking, a ‘workman’ within the meaning of the Act but must be one in whose employment, non-employment, terms of employment or conditions of labour the workmen as a class have a direct or substantial interest.” Even the dissenting Judge A.K Sarkar, J. held that “a dispute concerning a person who is not a workman may be an industrial within Section 2(k)”. In the conclusion it was pointed out that where the person was not a workman as he belonged to the medical or technical staff, a different category altogether from workmen, and the workman of the establishment had no direct, nor substantial interest in his employment or non-employment and even assuming that he was a member of the same trade union, it cannot be said that the dispute regarding his termination of service was an industrial dispute within the meaning of Section 2(k) of the Act. From the above weighty observations of their Lordships of the Supreme Court, it is abundantly-clear that the mere fact that an employee is a member of the trade union and his cause has been espoused by the union does not necessarily convert an individual dispute into an industrial dispute, though this fact was considered to be the King pin in the three cases cited by Mr. Kacker. It is true that in many cases the dispute of a single-employee would become an industrial dispute when it is sponsored by a union because of the community of his interest with that of the other workmen of the industry; for it can thus be taken that it does affect the workmen as a class. But it is not always so.
13. There are two subsequent decisions of the Supreme Court and one each of the Patna and Punjab High Courts which have direct bearing on another point involved in the present case. In Management Of Indian Cable Co., Ltd., Calcutta v. Workmen (5), the Supreme Court ruled that the validity of a reference must be judged on the facts as they stand on the date of reference. In the same volume there is yet another case of the Supreme Court in Workmen of Rohtak General Transport Co. v. Rohtak General Transport Co. (6) which lays down that the real test to decide whether a dispute is an industrial dispute would be “had the dispute been sponsored by the workmen before it was referred for adjudication.?”
14. In Muller and Phipps (India) (Private) Ltd. v. Their Employees' Union (7), the Punjab High Court, relying upon the 1958 decision of the Supreme Court supra, held that “It would not be correct to say that the union could have sponsored the dispute in the instant case only if Sud (Workman) was, at the time the dispute arose, a member of the Union.” In Workmen of Jamadoba Colliery v. Jamadoba Colliery (8), the Industrial Tribunal had held that an individual dispute could not become an industrial dispute unless the dismissed workman was a member of the union, which sponsored his case, from before the date of dismissal. Nevertheless, a division Bench of the Patna High Court disagreed with the above proposition and ruled that the dispute became an industrial dispute on the date of reference, as the union had come into existence before reference and the workman was a member thereof. It also held 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…………………..such a change would take place, if it is sponsored by a union or a substantial number of workmen.” It is, therefore, clear that the date of reference is the crucial date and if the union had taken up and sponsored the cause of a workman prior to the reference, it became an industrial dispute from the time of such sponsoring.
15. In the instant case we have already seen that soon after the dismissal of C.S Scott, the President of the Workers Union had sponsored his case by making an application dated July 2, 1957 to the Regional Conciliation Officer and had also counter-signed his written statement on September 4, 1957. The matter had thus become an industrial dispute, even though the employee was not a member of the union, at that time. At any rate, C.S Scott had become a member of the Union by July, 1962, and the executive committee of the Union had taken up his cause on February 28, 1963 by passing a unanimous resolution for doing his pairvi, while the reference was made by the State Government, six months later on August 28, 1963. In this view of the matter, the dispute between C.S Scott and the management had obviously become an industrial dispute by the time the State Government made a reference to the Labour Court.
16. It has next been argued by Mr. Kacker that, if at all, the cause of C.S Scott had only been sponsored by the President of the Union by making an application for conciliation on July 2, 1957 and by counter-signing his written statement on September 4, 1957; but the sponsoring had not been done by the members of the Union as a whole. Likewise the resolution dated February 28, 1963 was passed by the executive committee of the Union and not by the general body of the Union. Under these circumstances, Mr. Kacker argues that espousal of the cause of C.S Scott cannot be considered to be by the Workers' Union as a whole.
17. A perusal of clause 2 of the ‘Order under U.P Industrial Disputes Act, 1947,’ itself shows that an application for the settlement of an industrial dispute may be made before the Regional Conciliation Officer “by an officer of the Union” and not necessarily by a resolution of the members of the Union or even its Executive Committee. It has not been disputed that Raghunandan Prasad who signed the aforesaid application dated July 2, 1957 was the President of the WIMCO Workers' Union at the relevant date.
18. As to the second objection of Mr. Kacker, that the resolution, dated February 28, 1963 was passed only by the executive committee of the WIMCO Workers' Union and not by its general body, a reference may be made to the case of Vidya Vijay Printing Press v. Its Workmen (9), wherein the Labour Appellate Tribunal of India held “When the cause of an individual workman is taken up by the office-bearers of the Union, the dispute must be held to be industrial dispute. The fact that the office-bearers of the union were not authorised by the general body by passing any resolution must be held to be irrelevant. It is not essential that such a resolution of the general body of members should be passed before the Union executive could in the exercise of its normal powers decide whether the union should or should not espouse the cause of one of its members. This being an ordinary duty required to be performed by the union in fit cases for the protection of the interest of its members, the executives of the Union roust be taken to have the right.” Thus this objection of Mr. Kacker is also without substance. Lastly it was contended on behalf of the appellant company that the contesting respondents had an alternative remedy by way of an appeal to the Supreme Court, against the order of the Labour Court, hence the instant writ petition must stand dismissed. In the first place, the fact that an appeal could lie to the Supreme Court direct against the judgment of the Labour Court is not an absolute bar to the entertainment of the writ petition. Secondly, the discretion in the matter has already been exercised by this Court in entertaining the writ petition and it does not seem proper to interfere with that discretion at this appellate stage.
19. For the reasons stated above, we dismiss the appeal and maintain the order of the learned single Judge. However, in the circumstances of the case, we make no order as to costs of this appeal. The Labour Court shall now adjudicate upon the reference on merits in accordance with law.
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