1. The petitioner, the management of the National Power Supply Corporation, Ltd., carries on business of supply of electric power in Dhubri. In connexion with the dismissal of one Hirendra Nath Bhattacharjee, an employee of the petitioner at the branch office at Dhubri, an industrial dispute arose which was referred by the State Government by its order dated 13 February 1959, to the presiding officer of the labour court for adjudication. The reference was numbered as Reference No. 10 of 1959. During the pendency of the aforesaid industrial dispute, the opposite party 3 to the present petition-Goalpara Zilla Electric Supply Workers' Union, Dhubri-made an application before the labour court under Section 33A of the Industrial Disputes Act, in which it was alleged that Benode Behari Kar, Nihar Kanta Chakraborty, Nepal Chandra Ghosh and Nagina Much, all workmen of the petitioner, who are opposite parties 4 to 7 to this petition respectively, were dismissed during the pendency of the aforesaid reference in violation of the principles of natural justice for their trade union activities. The petitioner raised before the labour court several preliminary objections as to the maintainability of the petition. But the labour court gave its award on merits and repelled the preliminary points raised by the petitioner.
2. The contention raised by the petitioner is that as the petitioner had raised by a separate application certain preliminary points before the labour court, the labour court should have disposed of those preliminary issues first and thereafter should have given an opportunity to the petitioner to substantiate their case on merits after holding that the preliminary points had no force. As the labour court disposed of the preliminary point and the merits of the application by one award, the petitioner was deprived of his opportunity to produce evidence which would have established that the dismissal of the workman was justified. In support of the contention reliance is placed on the language of Section 33A of the Industrial Disputes Act (hereinafter called ' the Act') which reads as follows:
Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a labour court, tribunal or national tribunal, any employee aggrieved by such contravention may make a complaint in writing, in the prescribed manner, to such labour court, tribunal or national tribunal and on receipt of such complaint that labour court, tribunal or national tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly.
3. It is urged that if there has been a contravention of the provisions of Section 33 by the employer, the employee has been given a right to apply in writing to, the labour court for adjudication of the dispute. The non-compliance with the provisions of Section 33 is thus a condition precedent for the exercise of the powers to adjudicate the dispute between the parties under Section 33A. After the labour court has found that there has been a contravention of the provisions of 3. 33, the labour court acquires jurisdiction to 'adjudicate upon the dispute between the workmen and the employer. It is thus necessary for the labour court to decide whether there has been a contravention of Section 33 or not before entering upon the adjudication of the dispute. Section 33A, according to the petitioner's contention, contemplates two distinct stages. At the first stage the labour court has to decide whether there has been a contravention of the provisions of Section 33 and after having come to the conclusion that there has been a contravention, it has to decide the dispute on merits. As in the present case the decision on the preliminary issue that there has been non-compliance with the provisions of Section 33 was not given separately, the petitioner was prejudiced in their case on merits of the dispute.
4. In my judgment there is no force in this contention. The labour court before giving any relief to the employee under Section 33A has to find out first that there has been a contravention of the provisions of Section 33. The contravention of the provisions of Section 33 is the foundation for the exercise of the power to adjudicate upon the dispute. But the section does not contemplate two distinct and separate stages in the inquiry and the labour court was not bound under Section 33A to decide the preliminary issue first and thereafter proceed to inquire into the merits after giving fresh opportunity to the parties to adduce evidence. On the facts of the present case it does not appear from the award that the petitioner was in any way prejudiced and the petitioner had no opportunity to adduce evidence in support of their case. Reference is made by the counsel for the petitioner to the case of Equitable Coal Company, Ltd. v. Algu Singh 1958-I L.L.J. 793 and reference is made to the following passage p. 795:. In an enquiry held under Section 23 [Industrial Disputes (Appellate
Tribunal) Act, 1950]. two questions fall to be considered: is the fact of contravention by the employer of the provisions of 8. 22 proved If yes, is the order passed by the employer against the employee justified on the merits? If both these questions are answered in favour
of the employee, the Appellate Tribunal would no doubt be entitled to pass an
appropriate order in favour of the employee. If the first point is answered in favour of the employee, but on the
second point the finding is that, on the merits, the order passed by the employer against the employee is justified, then the breach of Section 22 proved against the employer may ordinarily be regarded as a technical breach and it may not, unless there are compelling facts in favour of the employee, justify any substantial order of compensation in favour of the employee. It is unnecessary to add that, if the first issue is answered against the employee, nothing further can be done under Section 23.
This case, to my mind, does not support the contention of the petitioner that the inquiry under Section 33A has to be made at two stages-first the labour court has to determine that there has been a violation of the provisions of Section 33 and thereafter decide on merits after giving fresh opportunity to the parties to adduce evidence in support of their cases.
5. On merits it is contended that Section 33 was not contravened in the present case as the union took up the case of the workmen who were not concerned in the dispute which was the subject-matter of the reference. The reference related to the discharge of Hirendra Nath. Bhattacharjee and the other workmen cannot be said to be concerned in the dispute raised by Hirendra Nath Bhattacharjee on his dismissal. Cases where the reference is with regard to matters which affect all the workers of the concern stand on a different footing and in such cases it can be said that all the workers employed in the concern are interested in the dispute and thus can be said to be concerned in the dispute within the meaning of Section 33. But when the reference relates to employment or non-employment of an individual workman, all other workmen cannot be said to be concerned in the dispute. The word ' concerned,' to my mind, has a wider connotation than the actual party to the reference. In the case of New India Motors (Private), Ltd., New Delhi v. K.T. Morris 1960-I L.L.J. 551, it was observed as follows at p. 554:. What does the expression workmen concerned in such dispute' mean The appellant contends that the main dispute was in regard to the discharge of seven apprentices employed by the appellant, and it is only the said seven apprentices who were concerned in the said dispute. The respondent was not concerned in the said dispute, and so the termination of his services cannot attract the provisions of Section 33(1)(a). Prima facie, the argument that 'workmen concerned in such
dispute should be limited to the workmen directly or actually concerned in such dispute appears plausible, but if we examine the scheme of the Act and the effect of its material and relevant provisions, this limited construction of the clause in question cannot be accepted.
The expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute.
Section 18(3) of the Act reads as follows :-
(3) A settlement arrived at in the course of conciliation proceedings under this Act or an award of a labour court, tribunal, or national tribunal which has become enforceable shall be binding on-
(a) all parties to the industrial dispute;
(b) all other parties summoned' to appear in the proceedings as parties to the dispute, unless the board, labour court, tribunal or national tribunal, as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in Clause (a) or 01. (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates ;
(d) where a party referred to in 01, (a) or 01. (6) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
The dispute of an individual workman is essentially an individual dispute. But, when it is taken up by a large number of workmen of the concern, it assumes the character of an industrial dispute. Thus, although the reference relates only to the discharge of Hirendra Nath Bbattacharjee, still as it was taken up by all the workmen of the concern, it assumed the character of an industrial dispute and a reference was made to the labour court for adjudication of the dispute. Thus the workers on whose behalf the case of Hirendra Nath Bhattacharjee was taken up. are all concerned in the dispute and it cannot be sad that the workers who were discharged and whose case was taken up by the union by an application under Section 33A were not concerned in the dispute which was the subject-matter of Reference No. 10 of 1959.
6. The next point taken by the petitioner is that under Section 33A the application is to be filed by the employee aggrieved by the contravention of the provisions of Section 33. In the present case, the persons who were entitled to make an application were the opposite parties 4 to 7 and not the Goalpara Zilla, Electric Supply Workers' Union, Dhubri. The union had no right to make an application under Section 33A. The contention is that it is open to the union to take up the matter of the dismissal of the workmen and ask for a reference under Section 10 of the Act. When a matter is taken up by the union, it becomes an industrial dispute and reference can be made under Section 10. But, apart from the right given to the union to collectively bargain or collectively bring the dispute relating to the discharge of a workman to the labour court for adjudication, the individual workman aggrieved by the contravention of Section 33 has also been given fight to get the dispute decided by the labour court during the pendency of the reference. Section 33A thus gives a right to an individual workman to approach the labour court for a decision of the dispute and the section is to be strictly construed. On the plain reading of Section 33A it is clear that the workman aggrieved by the contravention of the provisions of Section 33 alone is entitled to apply. If the union is authorized in writing by the workman aggrieved, the application by the union will be an application by the aggrieved workman. But the union in its own right cannot take up the dispute regarding the dismissal of a workman as an industrial dispute and apply under Section 33A for adjudication.
7. There is nothing on the records of this case to show that any such authority was given to the union to apply on behalf of the aggrieved workmen. Reference is made to the case of Belur Iron and Steel Workers’ Union, Belur v. Shyam Engineering Works, decided by the Appellate Tribunal, Calcutta 1952-II LLJ. 315. In this case, dealing with the provisions of Section 23 of the Appellate Tribunal Act, 1950, the tribunal held that the right to make a complaint against a dismissal in contravention of Section 22 is available only to the ' aggrieved workman ' and, therefore, a complaint by the union was not maintainable. The point was raised before the labour court and the labour court relying upon the case of Steel Brothers & Co., Ltd. v. their workmen 1954-I L.L.J. 314, has held that the petition by the secretary of the union on behalf of the union was maintain able.
8. It will appear from the award itself that the Steel Brothers case did not lay down that the union independently can apply under Section 33A. The union can only apply when authorized by the employee aggrieved. In the present case the labour court has held that as the management has failed to show that the employee did not give any authority to the union to file a petition, the petition was maintainable. When the point was raised by the management, it was within the-knowledge of the union and it was for the union to adduce evidence to show that there has been an authority by the aggrieved workmen to the union to file a petition under Section 33A of the Act. The labour court, in our opinion, has committed a manifest error of law in holding that the application on behalf of the union secretary was maintainable in the absence of any authority by the aggrieved workmen. In this view of the matter, it is not necessary to go farther into the merits of the dispute. We accordingly allow this petition, and Bet aside the award. But we make no orders as to costs.
S.K. Dutta, J.
9. I agree.