Upper Doab Sugar-Mil... v. State Of Uttar Prade...

Jagdish Sahai, J.:— The petitioner M/s. Upper Doab Sugar Mills Limited, Shamli (Muzaffarnagar) had employed the respondent No. 3 Sri Kulwant Rai Jain originally as a clerk in the Store Department of the Mills. He was later on transferred to the Accounts Section of the Mills some time in the year 1945. According to the petitioner the respondent No. 3 was inefficient in his work and consequently was not promoted to the post of Accountant which post was given to Sri Jagdish Prasad Gupta. The respondent No. 3 raised a dispute before the Regional Conciliation, Officer, Meerut complaining that his promotion was wrongly and unjustifiably withheld. The conciliation proceedings did not fructify and the State of Uttar Pradesh on 18th December, 1956 referred the following dispute to the adjudication of Sri K.K Pandey, respondent no. 2 by means of the Notification No. 2992 (LC) XVIII-LA-301 (MR) 11956:—

“Whether the employers have wrongfully and or unjustifiably deprived, Sri Kulwant Rai from the post of Accountant? If so to what relief is he entitled?”

2. The Adjudicator gave his award on the 19th of June, 1956 the operative portion of which reads as follows:—

“10. On the facts as above, I find that Sri Kulwant Rai Jain was wrongfully and unjustifiably deprived of the post of the Accountant since June 1, 1956. As such I decide that he should be allowed all the facilities of wages and increments etc., that have been allowed to Sri Jagdish Prasad Gupta since June 1, 1956. Hence forth he should continue to avail the said previleges of wages etc. connected with, the said post”

3. This award was published in the U.P Gazette dated October 15th, 1957, On these facts the Mills have prayed that the award dated 19-6-1957 (learned counsel states that 23rd April is a mistake) and the Government Order referring the industrial dispute to the Adjudicator be quashed. Two counter affidavits have been filed in this case—one is sworn to by the respondent No. 3 and the other by Sri O.N Misra, Labour Commissioner, U.P Government. On behalf of the petitioner a rejoinder affidavit has also been filed. It is not necessary to mention the various allegations made in the petition, the affidavit filed in support of it, the counter affidavits and the rejoinder affidavit. Reference to such of the allegation as are necessary for the decision of the case shall be made during the course of this judgment. Learned counsel for the petitioner has made the following submissions before me:—

(1) That the award of the Adjudicator was without jurisdiction as it was made in connection with as invalid of reference, and

(2) that the award suffers from legal errors which are apparent on the fact of the record.

4. No other submission has been made before me and the grounds other than these have not been pressed by the learned counsel for the petitioner. I will take the submisisons seriatim.

5. It has been contended that the award was without jurisdiction inasmuchm as the matter related to supersesion or promotion which could not be referred to an Industrial Tribunal by the Government. Admittedly this is a case which will be governed by the U.P Industrial Disputes Act, 1947. That Act did not provide the definition of the expression “Industrial Dispute”, but provide that the same definition which was given in the Central Industrial Disputes Act would be deemed to be the definition for the purpose of the State Act also. In the Central Act the expression “Industrial Dispute” has been defined as follows:—

“‘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 condition of labour of any person.”

6. The reference giving rise to this petition was admittedly made under clause 11 of G.O No. U-464 (LL)/XXXVI-B-257(LL) — 1954 The said clause 11 reads as follows:—

“Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time either of its own motion or after considering the report of the Conciliation Board may under sub-clause (3) of clause 5, or on an application made to it, by or in writing refer any dispute to the Industrial Tribunal or if the State Government considering the nature of the dispute or the convenience of the parties so decides, to any other person specified in that behalf for adjudication (hereinafter called the adjudicator).”

7. The Tribunal examined the respective merits of the respondent No. 3 and Sri Jagdish Prasad Gupta and came to the conclusion that it had not been proved that Sri Gupta was more efficient than Sri Kulwant. Rai Jain. The point that requires consideration is whether it would be an industrial dispute if any employer does not give to the employee promotion to a higher post and the matter has been taken up by the workmen as a class. In my opinion the definition, which has already been quoted above, is comprehensive enough to include a dispute of this nature. The preamble of the Act reads:

“Whereas it is necessary to provide for powers to prevent strikes and lockouts and for the settlement of Industrial disputed and other incidental matters;”

8. The long title of the Act is in the following words:—

“An Act to be provide for powers to prevent strikes and lock-outs, to settle industrial disputes and for other incidental matters.”

It appears to me that the intention of the legislature was to provide inter alia a form which could adjudicate between the labour and the employer in the disputes that arose in their relationship as such and in connection with the employment of labour. In the case of Western India Automobile Association v. The Industrial Tribunal, Bombay (1) their Lordships of the Federal Court observed as follows:—

“If the principal dispute which relates to wrongful dismissal or to a dismissal for an unjust cause or as a result of victimization is within the ambit of the definition all that flows incidentally and consequentially from such a dispute (even if that consequential matter is by itself a dispute), cannot be held to be outside the scope of the words of the definition “employment or non-employment”.

9. The question whether a person has been superseded or not or he was entitled to promotion or not would also be comprehended in the words “employment or non-employment” occurring in the definition. In the case of R.V Industrial Disputes Tribunal ex-parte Queen Mary College, University of London (2) it was observed as (follows:

“There are all sorts of industrial disputes which arise out of a difference between the employer and the employees in a factory in relation to a claim made merely by one man, cases, for example, where one man is unfairly victimised, or is unfairly victimised in the estimation of his fellow employees, and his fellow employees may make themselves parties to the dispute, because they may says: “Unless this man is treated in the way in which we think that he ought to be treated, there is going to be trouble.” Or there may be other reasons which cause men to be interested and to which to make themselves parties to a dispute which concerns only the claim of one man. Without being materially affected, other people may feel that their prospects of promotion are injured generally. They may be interested in the principle of the thing. They may say: “If a person of the length of service of Mr. Carreck is not promoted, what is going to happen to us when we get to that stage?”. Or there may be, on the fact which I have recounted, some general principle involved in the dispute on which this particular claim happens to be founded which is selected as a test action the general principle here being whether it is right or wrong for the applicants to adopt the attitude that they will not discuss individual claims with the trade union but will discuss them only with the individuals concerned.”

10. These are plainly the sort of grounds which have caused the trade union in this case to take the matter up because Mr. Paynter says that the end of his affidavit:

“It is a dispute, of general interest to such members (members of, the applicants) because the reference derives from the unwillingness of the applicants to discuss any individual case of promotion with the association and also because such members are concerned to secure the upgrading of a post and to assist a fellow member.”

“In short the proposition for which counsel for the Minister contends really comes down to this: If the union chooses to make the matter a union issue, if it chooses to take up the cudgels on behalf of its member and thereby to become belligerent in the matter, it is a dispute to which more than union will not do it unless there is a matter of some general principle involved; but if the union chooses to make it a general issue, it becomes a dispute to which the whole body of workmen or group are made parties. We think that that is the right view of the matter, and, indeed although I shall have to consider the terms of the order and the submissions of counsel for the applicants—we think that it is implicit so far as the authorities go, particularly R. v. National Arbitration Tribunal (3), on which counsel for the applicants relied for his general proposition. At the end of the judgment of the Divisional Court in the case, Lord Goodard, C.J having announced the general principle and that there was only a single workman involved in the dispute, said (1951) 2 All E.R at p. 833):

“It may well be that this definition is contemplating all along a class of workmen. Industrial disputes do arise because a large number or class of workmen support a particular workman who may be dismissed or downgraded by the employer, or sometimes because some particular workman is promoted and in the opinion of the body of workmen someone ought to have been preferred in his place. It may be that it is such matters, as that that the order is contemplating in its definition of “dispute.” That point we need not decide. What we do decide is that there must be a dispute between an employer and more than one workman in his employ though it may be that the dispute originates with a single workman, and that the others only become parties to the dispute in support of one member of their body.”

“Mr. Carreck has made a claim to be ungraded immediately; his claim has not been granted, by the applicants; and plainly the applicants the union are in dispute about that.

For these resans, we think that the matter was properly referred to the Tribunal and therefore the order of prohibition must be refused.”

11. In my judgment this decision lends support to the view that a matter relating to upgrading or promotion can also be an industrial dispute provided it is taken up by more than one workman.

12. For the reasons mentioned above I am of the opinion; that the reference to the Industrial Tribunal was correctly made and was not without jurisdiction.

13. The second submission of the learned counsel is that the Tribunal investigated into the respective merits of the respondent No. 3 Sri Kulwant Rai Jain and Sri Jagdish Prasad and held that respondent No. 3 was more efficient than Sri Jagdish Prasad. It is contended that the Tribunal could not go into this question, I am unable to agree with this submission also. The case as set up by the respondent No. 3 was that he was entitled to promotion, hut was victimised and Sri Jagdish Prasad appointed Accountant when actually the petitioner should have been appointed. In order to determine whether or not the respondent No. 3 was victimised and wrongly not promoted, a comparison had got to be made between his merits and those of Sri Jagdish Prasad. When the Tribunal did so, in my judgment it did nothing wrong. The last submission of the learned counsel is that the order referring the dispute to the Adjudicator is bad because it did not disclose, that the nature of the dispute and the convenience, of the parties required that it should not be referred to an Industrial Tribunal but an Adjudicator. It is further contended that the Government should have considered the nature of dispute and the convenience of the parties before referring the matter to the Adjudicator. This point was not taken in the grounds mentioned in the petition. There are no merits in this contention also. In opinion the Government was not required to specifically say so in the order of the reference. The fact that the Government had referred the dispute to the Adjudicator for decision indicates that it considered it necessary to do so. In special appeal No. 347 of 1959 a Bench of this Court consisting of Dayal and Upadhya, JJ. while dealing with a similar submission observed as follows:—

“Further, there is nothing in clause 11 to suggest that the order of reference must be in any particular form and must state that the State Government had considered these aspects of the matter and preferred to make a reference to the adjudicator. We are of the opinion that the mere fact that the State Government had referred the dispute to the adjudicator for decision indicates, unless rebutted, that the State Government had taken into consideration the nature of the dispute and the convenience of the parties and had then decided that it would be better that the dispute be referred to the adjudicator.”

14. That decision is binding upon me. In the present case there is no averment in the affidavit filed by the petitioner that the Government did not consider the question relating to the nature of the dispute and the convenience of the parties before referring the dispute to the Adjudicator. I, there-assume that these matters were considered by the State Government before referring the dispute to the Adjudicator. That it is possible to infer in a matter like this is borne out from a decision of the Supreme Court in the case of Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation(4). In that case one of the submissions advanced was that inasmuch as the scheme published did not disclose that the State Transport Undertaking was of the opinion that the scheme was necessary in the interest of the public, the necessary condition for the initiation of the scheme was not complied with and for that reason the Scheme could not be enforced. Their lord-Ships repelling the submission observed, as follows:

“The scheme was proposed by the said Undertaking in exercise of: the powers under Section 68-C of the Act for the purpose of providing an efficient, adequate, economical and properly, co-ordinated road transport service in public interest. Except for the fact that the word ‘opinion’ is omitted, the first part of the Section 68-C is incorporated in the preamble of the scheme; and, in addition, it also discloses that the scheme is proposed in exercise of the powers conferred on the State Transport Undertaking under Section 68-C of the Act. The State Transport Authority can frame a scheme only if it is of opinion that it is “necessary in public interest that the road transport service should be run or operated by the Road Transport Undertaking. When it proposes, or the reasons mentioned in the section, a scheme providing for such a transport undertaking, it is a manifest expression of its opinion in that regard. We gather from a reading of the scheme that the State Transport Undertaking formed the necessary opinion before preparing the scheme and publishing it. The argument of the learned counsel carried technicality to a breaking point and for the aforesaid reasons, we reject it.”

15. For the reasons mentioned above it appears to me that there are no merits in this Case. The petition is accordingly dismissed, but there is no order as to costs.